TIMOTHY OGUNDEJI SUNDAY GBADEYAN v. UNIVERSITY OF ILORIN (2014)

TIMOTHY OGUNDEJI SUNDAY GBADEYAN v. UNIVERSITY OF ILORIN

(2014)LCN/7486(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of October, 2014

CA/IL/27/2012

RATIO

RELIEF: CONSEQUENTIAL ORDER; THE MEANING OF A CONSEQUENTIAL ORDER

A consequential order has been defined in the case of ODOFIN VS. AGU (1992) 3 NWLR (PT.229) 350 at 372 PARAGRAPH F as follows:
“A consequential order is one giving effect to a judgment or order to which it is consequential. See, OBAYAGBONA VS. OBAZEE (1970) 5 S.C. 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made”

Similarly, in Re: Akputa (1996) 7 NWLR (Pt.461) 448 at 459, paragraph D. the word “consequence” was defined as:
“That which flows or comes after as a result or inference. It also means the relation of an effect to its cause…………
It means, “The result following in natural sequence from an event which is adapted to produce or to aid in producing such result”. per. CHIDI NWAOMA UWA, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE, BOTH ORAL AND DOCUMENTARY AND THE DUTY OF AN APPELLATE COURT TO INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT ARE PERVERSE
The evidence in this case are all documentary. No doubt it is the duty of the trial court to evaluate evidence before it in arriving at a decision, oral or documentary but where the court arrives at a perverse decision then, this court can interfere with the findings from the available evidence, see, FATOYINBO VS. WILLIAM ALIAS SANNI (1956) SCNLR 274 at 275, LAWAL VS. DAWODU (1972) 1 ALL NLR PT.2 at 270, IWUOHA VS. NIPOST (2003) 4 SC (PT. 2) 37 at 54, where his lordship TOBI. JSC held thus in this respect:
“I should say that evaluation of a document is not within the exclusive preserve of the trial Judge, both the trial judge and the appellate judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate Judge does not see, he sees like the trial judge, the document as exhibit. Therefore, where the finding of a trial Judge on documentary evidence is perverse, an appellate judge will easily see the perversion, and employ his appellate power to correct it” per. CHIDI NWAOMA UWA, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

TIMOTHY OGUNDEJI SUNDAY GBADEYAN Appellant(s)

AND

UNIVERSITY OF ILORIN Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Federal High court, sitting at Ilorin, presided over by A.O. Faji, J. delivered on the 23rd day of November, 2011. The appellant herein was the plaintiff in the lower court who vide an originating summons dated 9th day of February, 2010 filed on 10th February, 2010, Pages 1 – 3 of the printed records of Appeal sought the following reliefs:
1. “A DECLARATION that a letter of acceptance of the Plaintiff’s Notice of Retirement constitutes a condition precedent to the valid determination of the contract of service between the plaintiff and the defendant herein.
2. A DECLARATION that a letter of acceptance is the condition precedent and a platform upon which the plaintiffs pension and gratuity can be calculated and paid in accordance with the dictates of the pension Act, 2004.
3. A DECLARATION that the defendant’s mute attitude to the letter of Notice of Retirement written by the plaintiff since 10th June, 2005 constitutes a refusal to accept the plaintiffs intention to retire.
4. A DECLARATION that the plaintiff’s contract of employment with the defendant is still valid and subsisting in view of the continued refusal and/or neglect of the defendant to convey its acceptance of the said Notice of Retirement.
5. AN ORDER mandating the defendant forthwith to pay all the arrears of salary and other entitlements due to the plaintiff till date.
6. AN ORDER directing the defendant to restore the name of the plaintiff to the pay roll of the staff of the defendant.”

At the close of trial, the trial court refused reliefs 1, 3 – 6 of the plaintiffs claim and granted relief 2.

The appellant was unhappy with the judgment of the trial court hence he filed his Notice of Appeal on 20th January, 2012 containing 6 (six) grounds of appeal, pages 117 – 122 of the printed records of Appeal.

The background facts are that the appellant was employed by the respondent as a lecturer in the faculty of law. A contract of service/employment was entered into by both parties with a statutory flavour. It was contended that the respondent’s condition of service for senior staff stipulates that an employee of the respondent qualified for pension and gratuity could only retire from the service of the respondent after at least ten (10) years of meritorious service.

It was made out that the appellant, a senior staff, having served the respondent for, at least, ten (10) years notified the respondent by his letter dated 10th June, 2005 of his intention to voluntarily retire. The receipt of the letter was acknowledged by the Respondent on 6th July, 2005, pages 4 and 11 of the printed records. Further, that between July 2005, when the appellant appeared before the Defendant’s Pension and Gratuity office and August, 2008 when the National Pension Commission came to University of Ilorin for the Institution’s Pensioners verification exercise, the Respondent had not taken any action concerning the appellant’s notice of retirement and on his pension and gratuity

At the verification exercise, the appellant presented himself as one of the Pensioners by taking necessary National Pension Commission Forms and filled them as required by pensioners of the respondent especially, those of the law faculty who had retired six months before him.

The Appellant’s forms were rejected by the verification team after their demand for the letter of acceptance or approval of the appellant’s notice of intention to retire. The acceptance letter entitles the appellant to a “Pension Number”. The appellant who had no reply to his notice had nothing to present.

The verification team deemed it that the Appellant was still in service, since he had no letter of acceptance of his notice of retirement, pages 5, 14 and 15 of the printed records.

The Respondent made out that the letter of approval or acceptance of the appellant’s 2005 and 2008 was not written because the appellant’s file with the University could not be located and there was nothing they could do without the file, page 5, paragraph 9 of the affidavit in support of the originating summons.

The resultant effect was that the appellant could not process the payment of his pension and gratuity because his clearance form could not be completed before the National Pension Commission Verification team that invited the respondent. The team felt that the appellant had not retired.

Thereafter, as made out by the appellant, he continuously demanded for the letter of acceptance and the respondent failed to write same from 2005 till date.

The appellant contended that, after several demands, for the letter of acceptance from the respondent without any response, the appellant wrote a letter to notify the respondent of his intention to withdraw his unaccepted letter of retirement and he withdrew same. The Appellant thereafter requested to be reinstated to the respondent institution and to be assigned his duty post. It was alleged that the Respondent failed to act and did not respond to the appellant. As it were, the appellant was neither released to enjoy his pension and gratuity nor reinstated by the respondent so as to continue to discharge his functions under the contract of employment between the parties herein. The Appellant went to court. The trial court affirmed and sustained the appellant’s relief 2 claimed in the originating summons but, dismissed reliefs 1, 3, 4, 5, and 6 and awarded costs against the Appellant. This gave rise to the present appeal. The Appellant formulated three (3) issues to be determined by this court.
They are:
1. “Whether the trial judge rightly or justifiably raised suo-motu and determined in his judgment, the uncontested and foreign issue of alleged appellant’s purported resignation letter and the legal effect of its non-acceptance by the respondent; when the contested but jettisoned issue before him is the legal effect of an unaccepted appellant’s notice of intention to retire pursuant to the respondent’s condition of service for senior staff and the Pension Act, 2004. (Grounds 1 and 3).
2. The trial judge having granted relief 2 out of the appellant’s six (6) reliefs claimed whether it was, therefore, right and proper of him to have dismissed the appellant’s remaining consequential reliefs. (Grounds 2, 5 and 6).
3. Whether the judgment of the lower court dismissing appellant’s reliefs 1, 3, 4, 5 and 6 are against the weight of affidavit evidence and the dictates of the law, and whether the decision is, therefore, unjustiable, improper and not well founded. (Ground 4).
The respondent on her part distilled two (2) issues for the determination of the appeal. They are:
1. “Whether the learned trial judge suo-motu raised any issue and if yes, whether such issue was raised without calling on the parties to address the court on the issue so raised?
2. Whether the learned trial judge was not right to have refused reliefs 1, 3 – 6 of the appellant on the premise that issuance of letter of acceptance to the appellant’s notice of retirement is not a condition precedent before the appellant’s retirement could take effect”.

The respondent’s issue one, was distilled from ground 1 of the Appellant’s Notice of Appeal while issue 2 is distilled from grounds 2, 3, 4, 5, and 6 of the Grounds of Appeal.

In arguing the appeal, the appellant appeared in person and adopted and relied on his brief of argument dated and filed on 30/11/12 settled by Mathew Obaro Esq. The Appellant’s reply brief was filed out of time; same was abandoned by the appellant at the hearing.

Our attention was drawn to the list of additional authorities which included the Public Service Rules, 2008, Section 8 Rule 020808 which was not listed but, that reliance was placed on the common law in the lower court. Reference was also made to Section 9 to the effect that the appellant was not given any certificate of service as provided and no letter in compliance with Section 8.

In the appellant’s first issue, it was the contention of the appellant that the learned trial judge in his judgment failed to resolve the issue of the effect of non acceptance of appellant’s notice of intention to retire but, instead raised suo motu the issue of the effect of non acceptance of a letter of resignation which is only applicable in an employment without statutory flavour. It was submitted that the trial court dismissed reliefs 1, 3, 4, 5 and 6 based on the effect of an unaccepted resignation of an employee’s letter by his employer. It was argued that the trial court was wrong to have dwelt extensively on the issue, of resignation and therefore misconstrued the letter of retirement for a letter of resignation. Further, that it was wrong for the lower court to have based its decision on the election matters of ADEFEMI VS. ABEGUNDE (2004) All FWLR (PT.203) 2109 and BENSON VS. ONITIRI (1960) NSCC 53.

It was submitted further, that the learned judge having raised the issue of resignation suo motu, based on above two cases ought to have heard from the parties on invitation to address the court on the issue of resignation. We were urged to hold that the lower court’s decision in respect of reliefs 1, 3 – 6 is perverse and a nullity.

On the appellant’s second issue, it was submitted that the grant of relief 2 by the trial court is not in issue and is not part of this appeal but, rather the consequential reliefs 1, 3 – 6 which would give effect to relief (2) granted by the trial judge. It was concluded that the granting of relief.2 without 1, 3 – 6 is of no use, because the letter which would have determined the effect of the non issuance or the non acceptance of the letter of resignation was not written. It was argued that the trial court ought to have granted the other reliefs, failure of which led to a perverse decision. We were urged to grant reliefs 1, 3 – 6 to give effect to relief 2.

On the appellant’s third issue, it was submitted that with Exhibit ‘D’ 1 the appellant demanded from, the respondent a formal letter ‘of acceptance to enable him fulfill the requirements of the Pension Board but, the respondent failed to issue the appellant the required letter and with Exhibit ‘D’2 the appellant wrote to inform the respondent of his intention to resume work in the respondent’s institution since the appellant’s intention to retire was not accepted, the appellant later also wrote Exhibit ‘E’ to the Dean of the Faculty of law in the same institution to assign him to his duty post. There was no response to any of the letters.

It was submitted that the lower court referred to these Exhibits but failed to evaluate them and attached no probative value to same. It was argued that the trial court failed in its duty to evaluate the documentary evidence before it, see, NWANKWO VS. NWANKWO (1995) 5 NWLR (PT.394) 153: ADELEKE VS. IYANDA (2001) 6 SC 18 at 29. The trial court having failed in its duties, the learned counsel argued that we should evaluate the documentary evidence before the court, which an appellate court has the right to do. See, IWUOHA VS. NIPOST (2003) 4 S C (PT.2) 37 at 54 and ADELEKE VS. IYANDA (SUPRA). We were urged to step into the shoes of the trial court, interfere with its findings, evaluate the evidence before the court and decide this case on its merits by granting the appellant’s reliefs 1, 3 – 6 claimed in the originating summons.

On the part of the respondent, Yakub Dauda Esq. appearing with T. E. Akintunde (Mrs.) adopted and relied upon the respondent’s brief of argument dated and filed on 30/1/13, deemed properly filed and served on 15/2/13 in urging us to dismiss the appeal. It was the contention of the learned counsel that the introduction of the Ruled in the additional authority has changed the case at the lower court argued on the Pension Act only and not the Public Service Rules.

In arguing his first issue, the learned counsel submitted that the appellant who appeared in person in the lower court extensively reacted to the issue of resignation raised by the lower court in his reply, see, page 98 lines 15 -19 of the printed records. It was argued that the learned trial judge did not raise the issue suo motu but the issue arose when both parties highlighted their addresses before the lower court.

In the alternative, it was argued that even if the learned trial judge raised the issue of resignation suo motu, the appellant ought to have shown a miscarriage of justice to succeed on this ground. See, IKENTA BEST NIG. LTD. VS. A.G RIVERS STATE (2008) 6 NWLR (PT. 1084) 612 and OLURUNKULE VS. ADISUN (2012) 6 NWLR (PT.1297) 407.

On his second issue, it was submitted that the Appellant failed to refer to a specific provision either in the respondent’s condition of service or pension Act that made issuance of a letter of acceptance of retirement a condition precedent before such retirement could validly or effectively take effect.

It was argued that the Appellant failed to put before the trial court the respondent’s conditions of service on, the Notice of retirement which the appellant said he submitted. It was further submitted that the contractual agreement between the parties is Exhibit ‘A’, dated 5th of May, 1994, addressed to the Appellant, the letter of appointment, at page 7 of the printed records, is the only thing to look into to determine the relationship between the parties. Reference was made to paragraph 3 being the method by which the relationship could be brought to an end. It was argued that acceptance of Notice of retirement is not a condition precedent before the relationship between the parties could be brought to an end.

In the alternative, without conceding, it was submitted by the learned counsel that assuming the appellant was right that a notice of acceptance of his retirement must be communicated to him before such retirement could be effective, Exhibit ‘C’ fulfilled the condition. It was argued that by Exhibit ‘C’ dated 20th July, 2005, the respondent acknowledged and approved the appellant’s Notice of retirement and invited the appellant to report to the CEO (Pension and Gratuity) in respect of his retirement from the University, see, page 11 of the printed records.

It was submitted that by Exhibit ‘D’, letter dated 28th January, 2009, the appellant agreed and acknowledged that his relationship with the respondent had come to an end. Further, it was argued that the respondent acted in line with the terms of Exhibit ‘A’. Also that from paragraphs 21, 22, and 23 of the respondent’s counter affidavit against the originating summons, at page 41 of the records was to the effect that since the appellant retired from the service of the respondent, he had been involved in active politics to the extent that he was the flag bearer of a registered political party in the National Assembly Elections conducted in April, 2011 and that the Appellant neither applied for nor was he granted leave of absence or any other leave by the respondent before the appellant contested an elective position.

It was argued that the contents of paragraphs 21 – 23 of the respondent’s counter affidavit against the appellant’s originating summons were not challenged or denied which amounts to admission, see, A.G ONDO STATE VS. A.G. EKITI STATE (2001) FWLR (Pt 79) 1431 at 1458 PARAGRAPHS B – E.

The learned counsel submitted that by virtue of Section 107(1)(F) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), (hereafter referred to as the Constitution) a person in the public service cannot qualify to contest for an elective position, such person is required to have resigned or retired from the public service thirty (30) days before election.

Further, it was the contention of the learned counsel that the issuance of Exhibit ‘C’ is a surplusage because resignation, retirement or withdrawal from service takes effect from the submission of notice of such resignation, retirement or withdrawal, see, ADEFEMI VS. ABEGUNDE (2004) ALL FWLR (PT 203) 2109 at 2129 PARAGRAPH F, which relied upon the case of BENSON VS. ONITIRI (1960) 5 FSC 69.

We were urged to hold that the appellant’s retirement took effect from the moment he submitted his notice of retirement to the respondent and that notice of acceptance or approval of such retirement is not a condition precedent before the Notice of retirement could take effect. We were also urged to hold that the case of Shittu (supra) which the appellant relied upon can be distinguished from the present case in that, in the above case, the employer positively refused to accept the letter of resignation and directed the employee to return to work immediately whereas approval was given in the present case by the issuance of Exhibit ‘C’.

It was the contention of the learned counsel to the respondent that, there is no difference between resignation and retirement by the provisions of Section 107(1)(F). Further, that what was considered in Shittu’s case (supra) was resignation and not retirement. It was also submitted that what the appellant sought in the lower court were declaratory in nature, by which the onus is on the appellant to prove his entitlement to the relief sought not the respondent to deny same, reliance was placed on the case of IGBINOVIA VS. UBTH (2000) 8 NWLR (Pt.667) 53 at 68 PARAGRAPHS B – D. It was concluded that the appellant failed to justify his entitlement by not proving that by the respondent’s condition of service and/or Pension Act that the issua.nce of a letter of acceptance is a condition precedent before his notice of retirement could be effective and also failed to produce before the lower court any of the letters of acceptance said to have been issued by the respondent to some of his colleagues that retired six (6) months before his application, see, OLADIPO VS. MBA LGA (2010) 5 NWLR (PT.1186) 117 at 160 PARAGRAPHS E – N. 116 PARAGRAPHS A – B.

I have examined the issues raised by the parties, the Appellant’s issue one covers the respondent’s first issue, while issues two and three cover the respondent’s second issue. I would determine the appeal based on the appellant’s issues, starting with issues 2 and 3 which are related, I would resolve same together.

The only issue I have identified for the determination of this appeal is:
“Whether the learned trial judge having granted the appellant’s relief 2 out of the appellant’s six (6) reliefs claimed before the lower court, it was 4 proper to have refused and dismissed the appellant’s reliefs 1, 3 – 6 on the basis that issuance of a letter of acceptance to the appellant’s Notice of retirement is not a condition precedent before the appellant’s retirement could take effect”.

No doubt in the lower court, the learned trial judge granted relief 2. I will for quick reference reproduce same hereunder.
2.”A DECLARATION that a letter of acceptance is the condition precedent and a platform upon which the plaintiff’s pension and gratuity can be calculated and paid in accordance with the dictates of the Pension Act, 2004″.

The learned trial judge in granting the appellant’s relief 2 sought in the lower court held thus:
“Reliefs 1, 3 – 6 are hereby dismissed. Relief 2 is granted to the extent that approval of retirement is the platform upon which the plaintiff’s pension and gratuity can be calculated and paid being at best an administrative requirement of the Pensions Commission”.

By the above holding, the lower court acknowledged and agreed that approval of retirement is the platform or the basis upon which the plaintiff’s pension and gratuity could be calculated and paid as required by the Pensions Commission. I earlier in this judgment reproduced reliefs 1, 3 – 6 which were dismissed by the trial court. This appeal is not questioning or challenging the grant of relief (2) above. The respondent also did not cross appeal against the grant of same. The implication is that the parties are satisfied with the grant of the relief and thus it is binding on them.

By the grant of relief 2, itis clear and agreed. that a letter of acceptance to a notice or letter of retirement from the respondent institution is a platform upon which the plaintiff’s pension and gratuity could be calculated and paid as stipulated by the pensions Act, 2004.

Secondly, the letter of acceptance is a condition precedent which precedes the right of pension. Thirdly, the appellant’s pension and gratuity would not be calculated until such letter of acceptance is received by the Pension Commission in line with the dictates of the Pensions Act, 2004 under which the action was taken and case argued. I am at one with the submissions of the appellant in his brief of argument.

After the grant of relief 2 above, the learned trial judge at page 115 of the printed records in his judgment held as follows:
“I must therefore reiterate the position that a notice of retirement takes effect from the day it was received and brings the employment contract to an immediate end. Indeed, the Defendant acknowledged receipt of the notice or retirement vide its letter of 6th July, 2005 which the plaintiff exhibited”

The learned trial judge proceeded and resolved as follows:
“Pursuant to the Defendant’s conditions of service and the Pensions Act 2004. It is not necessary for the Defendant to communicate its acceptance of the Notice of Retirement given by the plaintiff for the purposes of bringing the employment contract to an end since the contract comes to an end as soon as the notice of retirement is received by the employer. Since the answer to question 1 is in the negative, there are no legal consequences except that the contract of employment has come to an end”. (Underlining mine for emphasis).

In my respectful view, the above holding by the learned trial judge is inconsistent with the grant of relief 2 and the position of the law. The lower court in my firm view was wrong to have held that a notice of retirement takes effect from the day it was received and terminates the contract of employment. Also, wrong to have held above that it is not necessary for the Defendant to have communicated its acceptance of the Notice of Retirement given by the plaintiff for the purpose of bringing the employment to an end. It was also erroneous to hold that there are no legal consequences after the contract of employment has come to an end. The above holding with respect is inconsistent with the reasoning of the trial judge in granting relief 2.

The same court after the above erroneous holding that all that is required is a letter of retirement to be written to the respondent in this case and that a response of acceptance need not be communicated to the appellant, at pages 115 – 116 of the printed records held thus:
“The sub answer to question 1 is that for purposes of pension and gratuity and in the circumstances of this case in which Defendant has not disputed the requirement for purposes of pension and gratuity as put forward by the Pensions Commission, as a matter of law it is not compulsory for the employer to give an approval of the retirement but is desirable and only necessary to that extent for the employer to give such an approval of retirement. The only relief claimed in this connection is relief 2 to the extent that approval of retirement is the platform upon which the plaintiff’s pension and gratuity can be calculated and paid in accordance with the dictates of the Pension Act, 2004”. (Underlined mine for emphasis)

By the above holding, the learned trial judge agreed and held that for the purposes of pension and gratuity in the present case, the defendant did not dispute the requirement of the acceptance of the notice of, retirement as required and put forward by the Pension Commission. It is clear that acceptance of the notice is not only a requirement, it is necessary to qualify for pension and gratuity by the Pensions Commission. At the same time, the learned trial court erroneous held above that the approval of the retirement by an employer is not compulsory and also held that the employer’s approval is desirable and necessary to that extent (meaning for the purpose of pension and gratuity) for the employer to give the required approval of retirement.

With respect to the lower court, the court was wrong to have held that it is not compulsory for the employer to give an approval of the retirement, but correct to hold that the approval of retirement is necessary for the employer to give approval for the purpose of pension and gratuity.

The lower court went further at page 116 of the printed records to hold that:
“The only relief claimed in this connection is relief 2 to the extent that approval of retirement is the platform upon which the plaintiffs pension and gratuity can be calculated and paid in accordance with the dictates of the Pension Act, 2004”.

Following the above holding, the trial court granted the appellant’s relief 2. No doubt, the approval of retirement is the platform upon which the plaintiff’s pension and gratuity could be calculated and paid in accordance with the Pension Act. The trial court was right in the above holding and the grant of relief 2 which has not been challenged. It is the correct position of the law.

As rightly observed by the learned trial judge at page 115 of the printed records, the Defendant in the lower court did not dispute the requirement of the acceptance of the Notice of retirement but, for the purpose of pension and gratuity as put forward by the Pensions Commission, it was required that such acceptance be communicated to the employee who has applied to retire and same approved by the employer. The question that arises now is: Since the defendant did not dispute the requirement of the acceptance of the Notice and the Pensions Commission’s requirement that such acceptance be communicated to the commission, why did the defendant not comply with the segment of acknowledgement by writing a letter to that effect? Such letter was all that the Pensions Commission required to enable it compute and pay a retiring employee.

Next, what is the effect of such failure by the defendant to write or communicate the acceptance of his retirement to the appellant to enable him pursue his pension and gratuity? This is the crux of the appeal. The learned trial judge at page 112 of the printed records rightly made the following observation:
“It also appears to me that plaintiff’s position is that the said failure has led to the denial of his pension and gratuity as the Pensions Commission is unable to compute same since plaintiff has been unable to file the requisite forms. That is the gravamen of relief number 2”.

I am in agreement with the learned trial court’s view that the defendant’s failure to communicate the defendant’s acceptance of the Appellant’s retirement Notice meant that the appellant would not be in a position to fill the pension forms which would be used to calculate and pay his pension and gratuity by the Pension Commission. Without the acceptance letter from the defendant, the appellant would not be seen qr treated like a pensioner and would not qualify for pension or gratuity. Before this, at page 112 of the printed records, the learned trial judge held thus:
“It seems to me upon another look at the issues for determination in this case that plaintiffs case is that considering the Defendant’s conditions of service for Senior Staff and the Pension Act, is it necessary for the Defendant to communicate its acceptance of the Notice of Retirement given by the plaintiff. The answer to this will lead to consequences. …………………
……………………….
However, paragraphs 11 and 14 of plaintiff’s affidavit, the Pensions Commission asked for the said document. The absence of that document stalled the processing of plaintiff’s retirement benefits. The Defendant did not deny paragraphs 11 and 14 of this affidavit. The Defendant did not also state that the demand by the Pensions Commission is not appropriate or without legal basis. It therefore, seems that relief 2 has merit”. (Underlined mine for emphasis).

From the above holding, the learned trial judge understood the crux of the appellant’s case and that non fulfillment of the Defendant’s conditions of service for Senior Service and the Pension Act would naturally lead to consequences.

The learned trial judge went on to hold at page 113 of the printed records that:
“Indeed, Defendant tactfully admitted this by indicating its willingness to pay plaintiff’s pension from September, 2005 the date when plaintiff’s retirement took effect. That declaration in relief 2 is just a declaration and is not and cannot be a basis for the grant of the other reliefs. Issue 1 would thus seem to have two implications: Is the letter necessary for pension purposes? The answer is yes from the summation I have just made. (Underlined mine for emphasis)
The learned trial judge agreed and held that the acceptance letter is necessary for pension purposes, yet dismissed issue one as formulated by the trial court. It is erroneous.

Further, I will below set out paragraphs 11 and 14 of the Appellant’s affidavit in support of his originating summons, page 5 of the printed records to show that the appellant was not treated like a pensioner or retiree by the respondent or the Pension Commission for the reason that the respondent had never written the required letter of acceptance of the appellant’s letter to the appellant or the commission. It is noteworthy that nowhere has the respondent made out that the required letter had been written to the appellant or commission. Paragraphs 11 and 14 read thus:
11. “That I was turned back during the verification exercise because the officers from Abuja office of the National Pension Commission asked for the letter of approval of my notice of retirement which the defendant did not write to me or shown to have been written.
14. That because of the absence of approval letter to my notice of retirement, National Pension Commission said I am not an eligible pensioner and therefore, not entitled to mandatory Pensioner’s number and ID card”.
Further, by paragraph 15 of the same affidavit, the respondent did not issue the required letter of acceptance of the appellant’s retirement notice. From Exhibits ‘D’ 1 and ‘D’2, it is clear that the appellant demanded from the respondent the release of the approval letter, which was not done. By Exhibit ‘E’ the appellant expressed his desire to report back to his duty and requested to be given his schedule of duty and resumed work. There were no responses to Exhibits ‘D’I, ‘D’2 and ‘E’.
The parties and the trial court agreed that the acceptance of a notice of retirement is a condition precedent to a valid determination of an existing contract of employment with statutory flavour such as that of the appellant which is pensionable. The learned trial judge was called upon to determine the effect of the non issuance of the letter of approval of the appellant’s retirement which the court also identified at page 112 of the printed records, earlier reproduced in this judgment but, the lower court erroneously dwelt on when a notice of resignation takes effect, which is not the issue before the court.
Also, the holding at page 116 of the printed records in its judgment, the court was wrong to have held that there was no need for any acceptance or approval of a notice or resignation upon which relief 1 was dismissed, having earlier held at pages 112 – 113 that the acceptance letter of retirement is necessary and a requirement by the pension commission for the appellant to qualify for pension and gratuity, also page 116 of the records.
I am of the considered view that with the refusal of the respondent to issue the appellant with the necessary letter ‘of acceptance despite his demands for it, the appellant is deemed to still be in the service of the respondent. Relief 2 sought in the lower court is explicit, the grant of which leads to the consequences sought in reliefs 1, 3 – 6 of the plaintiffs claim. The grant of relief 2 would be of no use or benefit without the grant of reliefs 1, 3 – 6 which are answers to the effect of the non issuance or non acceptance of the letter of retirement.
The trial court having agreed that there is a need to communicate the acceptance letter of retirement which the respondent failed to issue to the appellant, thus, depriving him of any pension or gratuity ought to have granted reliefs 1, 3 – 6 as consequential reliefs which give effect to relief 2 granted by the trial court. A consequential order has been defined in the case of ODOFIN VS. AGU (1992) 3 NWLR (PT.229) 350 at 372 PARAGRAPH F as follows:
“A consequential order is one giving effect to a judgment or order to which it is consequential. See, OBAYAGBONA VS. OBAZEE (1970) 5 S.C. 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made”

From the above definition, I hold that reliefs 1, 3 – 6 are consequential reliefs to relief 2, the learned trial judge also confirmed this view, at page 112 to the effect that, it is necessary for the defendant to have communicated its acceptance of the retirement letter to the plaintiff, refusal of which would lead to consequences, which is the root of relief 2. The appellant was unable to enjoy any pension or gratuity from the Pension Commission because the acceptance letter had not been forwarded as required.

As it is, the appellant’s pension and gratuity were neither computed nor paid because the appellant’s employment had not been determined.

Both parties adequately argued the issue of the effect of the respondent not reacting to the appellant’s notice of retirement and communicating same to him and the trial court answered same and gave the consequences by granting relief 2 sought in the lower court.

Non acceptance of a resignation letter or retirement letter, under the Pension Act, whatever the case may be has been looked into and resolved while resolving the appellant’s second and third issues. There would be no need to resolve issue one all over again.

It is noteworthy that the bulk of the respondent’s argument bordered on when the date of resignation takes
effect, which is not the issue in this appeal; I discountenance all the argument along this line. Also, the argument proffered under the respondent’s second issue would be relevant only if there was a cross appeal against the grant of relief 2 by the trial court. As it is, the respondent left the appellant in limbo, he was not receiving his salaries and allowances as a staff of the respondent, at the same time, he was not qualified for pension and gratuity and was receiving none.

In the final analysis, I hold the view that the trial court was wrong to have dismissed the consequential reliefs 1, 3 6 having granted relief 2 from which these arose. I resolve issues two and three in favour of the appellant, the resolution of which also resolved the appellant’s first issue.
The evidence in this case are all documentary. No doubt it is the duty of the trial court to evaluate evidence before it in arriving at a decision, oral or documentary but where the court arrives at a perverse decision then, this court can interfere with the findings from the available evidence, see, FATOYINBO VS. WILLIAM ALIAS SANNI (1956) SCNLR 274 at 275, LAWAL VS. DAWODU (1972) 1 ALL NLR PT.2 at 270, IWUOHA VS. NIPOST (2003) 4 SC (PT. 2) 37 at 54, where his lordship TOBI. JSC held thus in this respect:
“I should say that evaluation of a document is not within the exclusive preserve of the trial Judge, both the trial judge and the appellate judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate Judge does not see, he sees like the trial judge, the document as exhibit. Therefore, where the finding of a trial Judge on documentary evidence is perverse, an appellate judge will easily see the perversion, and employ his appellate power to correct it”

Exhibit ‘D1’ and ‘D’ are letters the appellant wrote to the respondent demanding for a formal letter of acceptance of his retirement to enable the appellant meet up with the requirements of the Pensions Commission, see pages 17 and 19 of the printed records. The respondent did not respond to any of these letters. Thereafter, the appellant wrote Exhibit ‘E’ to the Registrar and the Dean, Faculty of Law, that he had resumed back to work in his office and Faculty, there was also no response to the letter. In my respectful view, the learned trial judge failed to evaluate properly the contents of these exhibits. I hold that the appellant remained a staff of the respondent institution and not a pensioner entitled to be considered for pension and gratuity by the Pension Commission. With the grant of relief 2 by the trial court, the natural consequence is the grant of reliefs 1, 3 – 6.

In the final analysis, I hold that the appeal has merit and it is hereby allowed. The decision of the learned trial judge dismissing the appellant’s reliefs 1, 3 – 6 is hereby set aside. I, instead hereby grant reliefs 1, 3-6 of the reliefs sought in the originating summons taken out by the Appellant.
I award costs of N50,000.00 to the appellant.

HUSSEIN MUKHTAR, J.C.A.: I have had the preview of the judgment just delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A. in draft, and I agree with him that this appeal has succeeded.

I agree with him that this appeal has succeeded.
It hardly makes any sense for the lower court to hold that a letter of acceptance of the notice of retirement is a precondition and platform upon which the appellant’s pension and gratuity and paid as provided by the Pensions Act 2004, but yet failed to declare that such letter of acceptance is a condition to the valid determination of the contract of service between the parties.

It is rather absurd and inconceivable that the appellant could, in the temple of justice, be subjected to complete clock and dagger. It seriously antagonizes the interest of justice to disoblige the appellant to hangout on either of the only two options of remaining within or taking his exit from the respondent’s service and take entitlements accruable to him under the Pensions Act.

For the avoidance of doubt the notice of retirement submitted by the appellant to the respondent constitutes only an offer to retire and requires the latter’s unconditional written acceptance to make the retirement legally effective.
For the reasons given in the leading judgment, I allow the appeal and set aside part of the decision of the court below dismissing reliefs 1 and 3 to 6. I also subscribe the consequential orders made in the judgment inclusive of the one on costs.

MUSA HASSAN ALKALI, J.C.A.: I had the privilege of reading in draft the 25 pages, lead judgment of my learned brother Chidi Nwaoma Uwa JCA.

I am in total agreement with His Lordship’s good foresight that the appellant remained a staff of the respondent institution and not a pensioner entitled to be considered pension and gratitude by the pension commission. The appeal succeeded meritoriously and is hereby allowed. The decision of the Federal High Court sitting at Ilorin presided over by A.O. Faji, J delivered on the 23rd day of November 2011, is hereby set aside accordingly. N50,000 costs awarded to the appellant.

Appearances

Appellant appeared in personFor Appellant

AND

Yakub Dauda Esq with T.E. Akintunde (Mrs.)For Respondent