MWADKON v. PLATEAU STATE POLYTECHNIC COUNCIL & ANOR (2020)

MWADKON v. PLATEAU STATE POLYTECHNIC COUNCIL & ANOR

(2020)LCN/13980(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Tuesday, March 31, 2020

CA/J/88/2017

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

NUHU DALYOP MWADKON (Substituted For The Late Iliya Dalyop Mwadkon) APPELANT(S)

And

1. THE PLATEAU STATE POLYTECHNIC COUNCIL 2. THE GOVERNMENT OF PLATEAU STATE OF NIGERIA RESPONDENT(S)

RATIO

THE BURDEN OF ALLEGING AND PROVING MISREPRESENTATION

WHETHER OR NOT THE COURT CAN RAISE A MATTER SUO MOTU

It is settled law that any issue not raised in the Court below cannot be canvassed on appeal without leave, and any ground of appeal raising it is incompetent. See AKPENE V BARCLAYS BANK (1977) 1 SC 47, FADARE V A.G. OYO STATE (1982) 4 SC 1 at 16-17, UOR V LOKO (1988) 2 NWLR (Pt. 77) 430, BORNO STATE INDEPENDENT ELECTORAL COMMISSION AND 1 OR V ALHAJI ALI KACHALA (2006) 1 NWLR (Pt. 962) 587. So also, a judge has the right in our adjectival law to use particular words or phrase which in his opinion are germane to his evaluation of the fact of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issue suo motu. A judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the trial. See ENEKWE V INTERNATIONAL MERCHANT BANK OF NIG, LTD & 2 ORS (2006) 11-12 SC 3 at 16. It has been demonstrated in this judgment the relevant paragraphs of the pleadings of both the 1st and 2nd Respondents where they aver to facts pointing to acts of misrepresentation by the Appellant. As I said before that the fact leading to the retirement of the Appellant from the services of the State Judiciary was not disclosed as at the time of his new employment. It was not disclosed till the time of the merger of service. Let me say that the Appellant concealed the fact to himself. This fact also is never denied nor controverted. I believe the learned trial judge was absolutely right to rely and act on the issue of misrepresentation. See EGBUNA V EGBUNA (1989) 2 NWLR (Pt. 106) at 7773, OLADAPO V BANK OF THE NORTH LTD (2001) 1 NWLR (Pt. 694) 255. PER ONIYANGI, J.C.A.

DEFINITION OF A “WAIVER”

In the old case of ARIORI V ELEMO (1983) 1 SC NLR page 1 ESO JSC (as he then was and of blessed memory) said thus on waiver:
“… Rather than define the word, it is probably appropriate just to describe its concept. F. Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefits, but he either neglect to exercise his right to the benefit or where he has a choice or two, he decides to take one but not both. The exercise has to be voluntary act. There is little doubt that a man who is not under any legal disability should be the best judge of his own interest. It therefore, having full knowledge of the rights, interest, profit or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterward that he has not been permitted by the exercise of his rights, or that he has suffered by his not having exercised his right, he is, to put it in another way estopped from raising the issue.“
And CARRIBEAN TRADING AND FIDELITY CORPORATION V NNPC (1992) 7 NWLR (Pt. 252) P. 161. NIKI TOBI JCA (as he then was) stated thus:
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right. “Waiver need not be specifically pleaded. It can be inferred or implied after examining the conduct of the party. To my mind it is sufficient if the party relying on it relies on the other parties’ abandonment his right to complain.”
See also the cases of DR. JOHN OLUKAYODE FAYEMI AND ANOR V OLUSEGUN ADEBAYO ONI AND ORS (2010) LPELR – 4145. In CHIEF JOHN EZE V DR COSMAS IKECHUKWU OKECHUKWU AND ORS (2002) LPELR – 1194 where Uwaifo JSC said thus: “It is said that waiver is the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. It also arises when one dispenses with the performance of something he is entitled to whether conferred by law or by contract, with full knowledge of the material facts, or when a person does nor forebears to do something the doing of which is inconsistent with the right or his intention, to rely or insist upon it. It includes the disinclination to take advantage of some defect, irregularity, or wrong in the act or action of another through acquiescence, renunciation, repudiation, abandonment or surrender of the right to so. See Black’s Law Dictionary, 6th Edition, page 1580,”
See also the case of NIGERIA BOTTLING COMPANY PLC V CHIEF UZOMA UBANI (2013) LPELR – 21902. PER ONIYANGI, J.C.A.

EVALUATION OF EVIDENCE

Evaluation of evidence demands that the evidence adduced is assessed and weighed so as to give probative value quality to it. The process of evaluation of evidence goes beyond mere recital of the evidence adduced. In simple terms, the aim and purpose of all binding authorities is that where issues are joined as in the instant appeal in the pleadings and evidence of parties, it will become the responsibility of the trial Court to resolve those issue joined by evaluating the available evidence tendered. See the case of MOBIL PRODUCING NIG UNLTD V MONOKPO (2003) 18 NWL (Pt. 852) 346, OSAZUWA V ISIBOR (2004) 3 NWLR (Pt. 859) 16 at 39. In performing this sacred responsibility, the Court must determine whether the issues arose from the pleadings and whether they are relevant, credible, and admissible. All these will come to be the construction of an imaginary scale on which such evidence adduced by either would be weighed. See OPADERE V ODEBUNMI (2003) 16 NWLR (Pt. 845) 45 at 57-58. Where such evidence is found to be of probative value and preponderate on one side of the scale, such evidence will then be the constituent of the finding of the trial Court. See OSAZUWA V ISIBOR (2004) 3 NWL R (Pt. 859) 16 at 39 BODI V AGYO (2003) 10 NWLR (Pt. 846) 305 at 323-324. It is trite that at this stage, what matters is not the number of witnesses called by each party but rather the quality or probative value of such evidence tendered. See OYEWOLE V AKANDE (2009) ALL FWL (Pt. 491) 835, BASSIL V FAJEBE (2001) 11 NWL (Pt. 725) 592 at 608, MOGAJI V ODOFIN (1978) 4 SC 91, DATOEGOEM DAKAT V MUSA DASHE (1997) 12 NWLR (Pt. 531) 46, CHIEF ADEBAYO BASHORUN OLUFOSOYE AND ORS V JOHNSON O. OLORUNFEMI (1989) NWLR (Pt. 95) 26. Let me add that it is trite that a trial Judge must assess and appraise all evidence before him. See ADELEKE V IYANDA (2001) 13 NWLR (Pt. 729) 1, ADENIJI V ADENIJI (1972) 4 SC 10, ONISAODU V ELEWUJU (2006) 13 NWLR (Pt.998) 517, M.S.C. EZEMBA V S.O. IBENEME AND ANOR (2004) 14 NWLR (Pt. 894) 617. It is also trite and elementary principle of law that evaluation of evidence is the primary and essentially the function of the trial Court. Where and when this function is properly and satisfactorily done, an appellate Court will not interfere. See WOLUCHEM V GUDI (1981) 5 SC 291, ABISI AND ORS V EKWEALOR AND ANOR (1993) 6 NWLR (Pt. 3020 643. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Plateau State in Suit number PLD/1345/2010 sitting at Jos delivered by Hon. Justice R. K. Sha on the 30th day of September, 2016 whereby the Appellant Nuhu Dalyop Mwadkon was substituted for Iliya Dalyop Mwadkon, the Plaintiff before the trial Court who passed on to the great beyond on 26th day of February, 2017 after the judgment appealed against has been delivered and an appeal lodged. (See the Notice of Death filed by his Counsel Eric E. Duniya Esq. dated 28th day of April, 2017 and filed on the 4th day of May, 2017.

By a Statement of Claim to be found at pages 4-8 of record of appeal, the original Plaintiff claimed the following reliefs, as stated in paragraph 26 thereof:

Paragraph 26:-
WHEREFOR the Plaintiff claims against the Defendants jointly and severally as follows:
(a) AN ORDER directing the Defendants jointly and severally to pay the Plaintiff the sum of Three Hundred and Sixty Four Thousand and Sixty Five Naira Ninety Nine Kobo (N364, 065.99) being the balance of

Plaintiff’s gratuity.
(b) INTEREST at the rate of ten percentum (10%) per annum on the said sum of Three Hundred and Sixty Four Thousand and Sixty Five Naira Ninety Nine Kobo (N364, 065.99) from the date of judgment until the judgment is liquidated.
(c) Cost of this action.

The fact of the case, as can be gathered from the record of appeal include the following. The deceased Plaintiff took up an appointment as a staff of the judiciary of Plateau State. He was then appointed as a Court member on the 20th day of September, 1976 and was subsequently confirmed on the 20th April, 1979. He worked in that capacity for a period of 11 years 7 months and was compulsorily retired from service on the 29th day of June, 1988. The letter of appointment with the State judiciary, the letter of confirmation of the said appointment and that retiring him from the service are put in evidence and marked as Exhibits P1, P2 and P3 respectively. Upon the retirement of the Plaintiff he was paid the sum of N3,204.73k (Three Thousand, Two Hundred and Four Naira, Seventy Three Kobo) as his gratuity by the judiciary.

On the 6th day February, 1989, the Plaintiff

again sought and was again employed by the Plateau State Polytechnic (the 1st Defendant) with effect from 6th February, 1989. He was first employed by the 1st Defendant as a Store Assistant (Salary Section) Clerical Officer (Account) and retired from the employment as Senior Executive officer (Accounts).

Before his retirement from the service of the 1st Defendant and to be precise, in 1995, the 2nd Defendant (the Plateau State Government) through its agent the bureau of Establishment, Training, Grading and Pension, Office of the Head of service issued a circular Ref. No. S/PEN/10 Vo.1/104 and copied same to all staff of the 1st Defendant (the Plateau State Polytechnic) directing all officers that are yet to merge their previous service with the present one to do so or otherwise risk compulsory retirement. (See Exhibit 15). It is the case of the Plaintiff that he obeyed the circular by applying for a merger and in doing so returned the N3,204,73k he had earlier collected as gratuity on his retirement from the judiciary of Plateau State. The refund was receipted, dated 15/12/99 and tendered as Exhibit P6. It is also his case that the merger was approved by

the 2nd Defendant vide letter dated 3rd October, 2000 and tendered as Exhibit P7. The Plaintiff assert in his evidence that he retired from the service of the Defendants meritoriously after serving for 18 years on the 30th day of April, 2007.

The 1st Defendant computed his gratuity which amounted to N910,164.84 (Nine Hundred and Ten Thousand, One Hundred and Sixty Four Naira, Eighty Four Kobo), apportioning N546,098.90 to be paid by the 1st Defendant and the sum of N364,065.99 to be paid by the judiciary of Plateau State. The 1st Defendant then conveyed the fact to the State judiciary vide its letter dated 5th December, 2007. (Tendered and admitted as Exhibit P20). The 1st Defendant paid its own portion of N546,098.90k to the Plaintiff. Meanwhile the other portion of N364,065.99 was not paid. Thus made the Plaintiff (Appellant) to approach the 2nd Defendant on the non payment of the second portion (N364,065.99) through its agents, the Plateau Pension Board and the office of the State Auditor General.

The two agents each directed the 1st Defendant to pay to the Plaintiff the total sum computed (N910,164.84). See Exhibits P10, P16 and P12 dated

24/11/2009, 19/3/2010 and 11/3/2009 respectively. The 1st Defendant remained adamant despite the letter from the Plaintiff’s Solicitor threatening legal action. The Appellant eventually instituted the action. Both Defendants denied liability and hence the matter proceeded to full trial.

In the end, the learned trial judge in his considered judgment concluded that the Plaintiff (Appellant) failed to prove his case and dismiss same.

Dissatisfied with the outcome of the trial hence this appeal initiated by a notice of appeal filed on the 16th day of December, 2016. It has Ten Grounds of Appeal. (See pages 202 to 209 of the Record of Appeal). By the order of this Court sought and obtained, an Amended Notice of Appeal filed on the 28th day of June, 2017 was deemed as properly filed and served on the 14th day of May, 2018. Similar to the original notice of appeal, it also has Ten Grounds of Appeal. Therein the Appellant sought for the following reliefs.

Reliefs sought
(1) An order allowing the appeal.
(2) An order setting aside the judgment of the lower Court dated September, 2016.
(3) An order granting the Appellant’s reliefs

as contained in the Writ of Summons.

Consequent upon the transmission of the Record of Appeal on the 15th day of March, 2017, both the Appellant and the 1st Respondent filed and exchanged their briefs of argument. The 2nd Respondent (The Government of Plateau State of Nigeria) did not file any. Vide the application by the Appellant filed on the 9th day of April, 2019 this Court granted the order for the appeal to be argued on the Appellant’s and the 1st Respondent’s brief of argument.

The adopted Appellant’s brief of argument authored by Ayodele A. Adewole Esq., was filed on the 12th day of July, 2017. The said brief was deemed as properly filed and served on the 14th day of May, 2018. Therein the following issues were presented for the determination of the appeal:
(1) Whether the learned trial Judge was wrong when the lower Court found and held that the Appellant misrepresented facts and thereafter proceeded to rely on this finding to dismiss the claim before the lower Court. [Grounds 8 and 9]
(2) Assuming without conceding, that the Appellant misrepresented or failed to disclose facts, did the act of the Respondent in

granting the Appellant a merger of service after the fact of the Appellant’s previous service came to light amount to a waiver, thereby stopping the Respondents from denying the Appellant the benefits of the said merger. [Grounds 3, 5, 6 and 7]
(3) Whether the learned trial judge was wrong when the lower Court found and held that the Appellant failed to prove his entitlement to the relief sought for before the lower Court inspite of the overwhelming evidence on the Record showing that the Appellant had proved his claim to be entitled to judgment. [Grounds 1, 2, 4 and 10]

Also in the adopted brief of argument of the 1st Respondent authored by Caleb G. Dajan Esq., the following issues were distilled for the determination of the Appeal.
(1) Whether based on both the oral and documentary evidence adduced before the trial Court, the trial judge misdirected himself by dismissing the Appellant’s claim after proper evaluation of the evidence before him. [Grounds 1, 2, 3 and 10]
(2) Whether based on the oral and documentary evidence adduced before the trial Court, the lower Court’s judge set out a different case and adjudication

on same different from that presented by both parties at the trial Court. [Grounds 4, 5 and 6]
(3) Whether the trial Court was right when it held that the Appellant misdirected and concealed relevant facts which led to the erroneous merger of his previous service which was none-existent. [Grounds 7, 8 and 9].

I have read through the respective issues presented by parties. In my view, the respective issues by parties are drafted to achieve the same end result. Hence I will adopt the issues formulated by the Appellant for the determination of this appeal.

ISSUE ONE
Whether the learned trial Judge was wrong when the lower Court found and held that the Appellant misrepresented facts and thereafter proceeded to rely on this finding to dismiss the claim before the lower Court.

In arguing issue number one, the learned Counsel representing the Appellant contended that in the course of the judgment of the lower Court, the learned trial judge found that the Appellant misrepresented facts [i.e. that he was employed in the service of the Plateau State judiciary] while making his application for employment with the 2nd Respondent. [He relied on page 200

of the Record of Appeal] where the learned trial judge while commenting on Exhibit D1 concluded that it showed that the Plaintiff [Appellant] made no mention of his previous employment with the State judiciary when applying merger of his services with the 1st Respondent. He contended that this fact is one of the main planks upon which the lower Court dismissed the Appellant’s claim. He urged the Court to take a look at the pleadings of the Respondent with a view of asserting whether there was a misrepresentation in the first place to have warranted the finding and decision of the learned trial judge. He urge the Court to hold that there was no misrepresentation. He referred to pages 37-41 of the record which contains the statement of defence of the 1st Respondent specifically he referred to paragraphs 16(a) and (e) on pages 39 and 40 of the record. He argued that looking at the said paragraphs, it is clear that the pleadings on misrepresentation of facts relates to the Appellant’s claim of what he was entitled to as the full complement of his gratuity. He added that the pleadings did not relate to the fact that the Appellant made any fraudulent

misrepresentations while seeking employment with the 1st Respondent, or in the cause of carrying out documentation with the 1st Respondent after being employed in its services. He submitted that the deposition in that paragraph of the statement of defence of the 1st Respondent is of no consequence to the finding of the learned trial judge at page 200.

On the pleading of the 2nd Respondent on the same issue contained on pages 65-68 of the record of appeal and in particular paragraphs 6 and 7 of the Statement of Defence of the 2nd Respondent, he submitted that the facts pleaded are more consistent with an allegation that the Appellant failed to disclose facts at the material time in question rather than a misrepresentation of fact. He added that whether the Appellant failed to disclose the fact of the nature of the termination of his previous employment is not an issue as far as issues of this nature are concerned. He argued that the law does not require a prospective employee to make disclosure that will render him or her ineligible for the employment sought. He relied on the case of ORANSAYE V E.C.N. [1969] NCLR 93 at 100. He queried whether there was a

concealment or misrepresentation of fact in proper perspective in this case. It is his argument that a misrepresentation means that the first party in question actively and deliberately misled the second party to the contract while non disclosure means that the first party did not make disclosure of material facts to the second contracting party. It added that this distraction is important to the resolution of this appeal because while misrepresentation may vitiate a contract, non disclosure does not have same effect. He refer to the case of ORANSAYE V ECN [supra] and UDOGWU V OKI [1990] 5 NWLR [Pt. 153] 721 at 730-731 paras G-A.

On the issue that the Respondent failed to properly and sufficiently plead misrepresentation, he argued that what is clear from the pleading herein before referred to is that paragraph 6 of the 2nd Respondent’s Statement of Defence is that it contains averments on alleged misrepresentation made by the Appellant relating to his application for merger of service. He submitted that the pleading in that paragraph are not related to representations made by the Appellant leading to his employment with the 2nd Respondent. He

added that the pleading contained in paragraph 7 of the Statement of Defence are vague and are made at large. He added that what is utmost significance is that in both cases, no particulars of the misrepresentation were provided and no notice of it given by the 2nd Respondent. He argued that the particulars appear to be embedded in the evidence by which the misrepresentation was sought to be proved. He argued further that issues are joined on pleadings and not on the evidence. He relied on the case of BAMGBOYE V UNIVERSITY OF ILORIN [1999] 10 NWLR [Pt. 622] 290 at 327 paras D-E.

He submitted that the pleadings of the 2nd Respondent did not meet the standard required. He added that a party who alleges misrepresentation must select the facts of misrepresentation as he knows them and plead and prove the particular mode of misrepresentation in order to succeed. He relied on the case of UDOGWU V OKI [supra] at 731 Paras E-F. He argued that the Respondents’ pleadings are grossly short of the mandatory requirement of the law and that the 2nd Respondent failed to give particulars of the alleged misrepresentation in

compliance with the provisions of Order 25 Rule 5[1] of the Plateau State High Court [Civil Procedure] Rules, 1987. It is his contention that apart from pleading misrepresentation, it should also be proved. That 2nd Respondent alleged the required standard of proof is proof beyond reasonable doubt. He relied on the case of OLUFUNMISE V FALANA [1990] 3 NWLR [Pt. 136] 1 at 16 para. F. He argued that in this case, neither the Court nor the Appellant is certain as to what was pleaded and the Court can not speculate on that. He referred to the following cases AGIP (NIG) LTD V AGIP PETROLEUM INT. [2010] 5 NWLR [Pt. 1187] 348 at 413 paras. B-D; HANI V AKAR ENT. LTD. V I.N.M.B. LTD. (2011) 1 NWLR [Pt. 1228] 302 at 320 paras. E-F and COUNCIL, F.U.T.A V AJIDAHUN [2012] 14 NWLR [Pt. 1321] 583 at 599 para E.

In the end he concluded on this issue that the fact that the Respondents were aware of all material facts, especially the fact that the Appellant was compulsorily retired from his previous employment, is not in dispute. Having proceeded to approve the merger of the Appellant’s services, the Respondent ought not be allowed to resile from the resulting effect of the said merger. He therefore urged the

Court to resolve the issue in favour of the Appellant.

It is the contention of the 1st Respondent that issue one should be answered in the negative and resolve same against the Appellant. He therefore submitted that from the totality of both oral and documentary evidence adduced before the trial Court, the learned trial judge did not misdirect himself by dismissing the Appellant’s claim after carefully and meticulously reviewing and evaluating both oral and documentary evidence before the Court. He referred to pages 182 to 201 of the record of appeal. He argued that both Respondents vehemently contended at the trial Court, that the Appellant was not entitled to any claim of the sum of N364,065.99 and after a proper evaluation of the evidence before the trial Court, the learned trial judge dismissed the Appellant’s claim. He added that it is trite law that the principal function of the trial Court is to evaluate evidence placed before it in arriving at a conclusion. It is only where and when a trial Court fails or shirks this responsibility that the appellate Court must of necessity intervene to serve the course of justice by evaluating or

re-evaluating such evidence. He relied on the case of AMADI V WEKERE [2015] 16 NWLR [Pt. 1486] 483 at 491 paras. B-C. He added that the finding of the learned trial judge on page 200 lines 6-13 of the record of appeal was purely found on finding of fact based on the oral and documentary evidence adduced before the trial Court.

On the issue of misrepresentation of facts as well as concealment of the true position or circumstances of the Appellant’s disengagement or retirement of service from his former employer, the Plateau State Judiciary which eventually led to the erroneous merger of his previous service which was non existent raised by the 1st and 2nd Respondents, he referred to page 42 paragraphs 3, 4, 5, page 45, lines 14-19 of the record as well as page 58 paragraph 7, page 59, paragraph 9, page 58 paragraphs 6, 9, 10, 11, page 64 paragraph 12 and contended that they all raised the issue of misrepresentation. He submitted further that the contention or argument of the Appellant that the issue of the misrepresentation was never made an issue at the trial Court as misleading and unfunded as it is proved beyond doubt that both Respondents at the

trial Court made misrepresentation an issue in their statement of defence and witnesses statement on Oath. He urge the Court to hold that the Appellant misrepresented facts leading to Exhibit P7, more so that it is also established beyond doubt at the trial Court that Exhibit P15 does not apply to the Appellant. He referred to pages 168, 169, 170 and 171 of the record. Further to the foregoing he posed the question: whether the Appellant can benefit from his act of misrepresentation and mischievous concealing of fact prior to his erroneous merger of service? He submitted that a party cannot benefit from mischievous concealment and misrepresentation of facts. He relied on the case of ADEGOKE MOTORS LTD VS ADESANYA AND ANOR [1989] 3 NWLR [Pt.109] 250 and the case of ONOJA v GOVT BENUE STATE [2016] 3 NWLR [Pt. 1499] 217 at 221. For the foregoing, he urged the Court to discountenance with the submission of the Appellant as well as the statutory authorities cited therein as not relevant to his appeal as same are not on all fours with the instant appeal. He urged the Court to resolve the issue against the Appellant and in favour of the 1st Respondent.

In the light of the foregoing arguments for and against, on this issue, the pertinent question is whether or not the Appellant misrepresented the fact of his disengagement from the services of the Plateau State Judiciary when he sought for merger of his service with the Plateau State Polytechnic with that of the Judiciary. The fact laid before the trial Court both through the pleading of the 1st and 2nd Respondents is that the Appellant did not disclose the fact that he has been previously employed by the Plateau State judiciary and that he has been compulsorily retired and paid his gratuity. The picture the learned Counsel is painting by this issue and the supporting argument is that neither did the Respondent pleaded issue of misrepresentation and that it was the trial Court that suo motu raised the issue and rely on it to dismiss the Appellant’s suit before it. Let me start by asking the question, “What is misrepresentation?”.
In the case of MRS FELICIA DUROWAIYE V. UNION BANK OF NIGERIA PLC [2014] LPELR – 24309 this Court, per Uwa JCA said thus:
“Misrepresentation in Black’s Law Dictionary, 7th Edition has been defined

as follows: “The act of making a false or misleading statement about something, with the intent to deceive. The statement so made; an assertion that does not accord with the fact”. While negligence has been defined in the same dictionary as follows “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to project others against unreasonable risk of harm except for conduct that is internationally, wantonly or willfully disregarded of others right. The term denotes culpable carelessness.”
In USMAN DANTATA JNR V MOUKTAR MOHAMMED AND ANOR [2011] LPELR – 9117; Ogunwumiju JCA said thus:
“There are various species of misrepresentation. It is important to distinguish between the different types of misrepresentation because they give rise to different remedies. Fraudulent misrepresentation can entitle the representee to rescind the contract while other types of misrepresentation merely gives rise to an action for damages”
Further to the foregoing, his lordship said:

“The law has always been that a misrepresentation must be an unambiguous false statement of fact. A person who fails to carry out his stated intention does not thereby make a misrepresentation. See Wales V Wadham [1977] 1 WLR 199]”
In the light of the foregoing, my notion of what amounts to a misrepresentation is the making of an unambiguous false statement of existing fact. Put in another way, the act of concealing an existing fact so as to gain an advantage or by which an advantage will accrue to the person who conceals such fact.

It is trite that the burden of alleging and proving that degree of falsity which is required for the representation to be a misrepresentation rest, in every case, on the party who sets it up. See ALBERT AFEGBAI V ATTORNEY GENERAL EDO STATE [2001] LPELR – SC 193. In the instant appeal, both the 1st and 2nd Respondents in their pleading and witness statements on Oath aver and posited that the Appellant worked with the Plateau State Judiciary from September, 1976 as a Court member (see Exhibit 1]. He was compulsorily retired from the said employment in June 1988 (see Exhibit P3.) He sought and was employed by the Plateau State

Polytechnic in February, 1989. See Exhibit P4. The fact remains that all these, while he did not disclose the fact that he had worked with the State Judiciary and compulsorily retired and paid his entitlement. This fact did not come to lime light nor volunteered by the Appellant till when the Plateau State Government issued a circular to his employees that those who have served in other Ministries or Department of the Government other than their present place of employment should complete a designed form to merge both services. The Appellant filled the form with the intention of merging his services i.e. that with the State Judiciary from which he has been compulsorily retired with that of his current employment with the Plateau State Polytechnic. The circular calling for merger was tendered as Exhibit P15, Exhibit P17. It contains the condition for merger. It was at this stage that the Appellant with a bid of merging the said service was directed to pay back the gratuity paid to him at the point of his compulsory retirement from the service of the State Judiciary see Exhibit P6 for the revenue collector receipt to that effect.

Upon retirement from the

services of the Polytechnic his entitlement was computed to be N910,164.84 as gratuity for his both employments i.e. the State Judiciary and Polytechnic. However the 1st Respondent paid his own part of the gratuity which is computed to be N546,098.88. The balance of the sum of N364,065.99 was apportioned to be paid to the Appellant by the State Judiciary which is under the umbrella body of the 2nd Respondent. The second Defendant (Respondent) failed to make the payment to the Appellant and hence this suit.

Between the parties it is not in dispute that the Appellant’s 1st employment was brought to an end by the compulsory retirement of the Appellant and the subsequent payment of his retirement benefit of the sum of N3,204.74. From June, 1988 and February, 1989, the Appellant was not in any employment. It is also not in dispute that the issue of his compulsory retirement from the services of the State Judiciary was never disclosed any where even when he sought for and secured another job as a store officer with the State polytechnic (the 1st Respondent). It is also undisputable that the issue of his former employment was not disclosed throughout the

tenure of his employment till when the issue of merger of service was directed by the 2nd Respondent for all her employees vide circular No. PEN/10/vo.1/104 dated 6th October, 1995. See Exhibit P15. That is therefore to say that from February, 1989 to October, 1995 the Appellant never disclosed the fact of his former employment. Bearing in mind the respective meaning given to misrepresentation herein before in this judgment, it is clear and evident that the Appellant did not disclose nor put on record that he was formerly gainfully employed in the services of the 2nd Respondent and that the said employment was determined by a compulsory retirement. The finding of the learned trial judge on this issue cannot be faulted but commendable. By this, it also goes without saying that the Appellant has no subsisting service or employment to merge with his new employment with the 1st Respondent. The process of paying back the gratuity is predicated on a fraudulent motive. Since there was no employment to merge with the subsisting employment of the Appellant, the Appellant cannot place or join what is nonexistence with that subsisting. Put in another words, the Appellant

cannot put something upon nothing and expect it stay. See BILANTE INT’L LTD. V N.D.I.C (2010) ALL FWLR (Pt. 598) 804 at 825 para. E, ONAYEMI V IDOWU (2008) 9 NWLR (Pt. 1092) 306.

I am not unmindful of the contention of the Appellant accusing the learned trial judge of raising the issue which was not pleaded. That is to say that the Court raised the issue of misrepresentation suo motu. It is settled law that any issue not raised in the Court below cannot be canvassed on appeal without leave, and any ground of appeal raising it is incompetent. See AKPENE V BARCLAYS BANK (1977) 1 SC 47, FADARE V A.G. OYO STATE (1982) 4 SC 1 at 16-17, UOR V LOKO (1988) 2 NWLR (Pt. 77) 430, BORNO STATE INDEPENDENT ELECTORAL COMMISSION AND 1 OR V ALHAJI ALI KACHALA (2006) 1 NWLR (Pt. 962) 587. So also, a judge has the right in our adjectival law to use particular words or phrase which in his opinion are germane to his evaluation of the fact of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issue suo motu. A judge can only be accused of raising issue suo motu if the issue was

never raised by any of the parties in the trial. See ENEKWE V INTERNATIONAL MERCHANT BANK OF NIG, LTD & 2 ORS (2006) 11-12 SC 3 at 16. It has been demonstrated in this judgment the relevant paragraphs of the pleadings of both the 1st and 2nd Respondents where they aver to facts pointing to acts of misrepresentation by the Appellant. As I said before that the fact leading to the retirement of the Appellant from the services of the State Judiciary was not disclosed as at the time of his new employment. It was not disclosed till the time of the merger of service. Let me say that the Appellant concealed the fact to himself. This fact also is never denied nor controverted. I believe the learned trial judge was absolutely right to rely and act on the issue of misrepresentation. See EGBUNA V EGBUNA (1989) 2 NWLR (Pt. 106) at 7773, OLADAPO V BANK OF THE NORTH LTD (2001) 1 NWLR (Pt. 694) 255.

For all the foregoing therefore I resolve this issue against the Appellant and in favour of the 1st Respondent.

ISSUE TWO
“Assuming without conceding that the Appellant misrepresented or failed to disclose facts, did the act of Respondents in granting the

Appellant a merger of service after the fact of the Appellant’s previous service came to light amount to a waiver, thereby estopping the Respondents from denying the Appellant the benefit of the said merger”.

The argument of the Appellant in the main on the finding by the learned Judge that the Respondent ought not to grant the merger of service of the Appellant after the disclosure of his past service with the State Judiciary but rather than doing that, the Respondent still granted the merger of the services of the Appellant. It is this act of granting the merger of services of the Appellant despite the disclosure of his retirement of service that the learned Counsel representing the Appellant contended that should be treated as a waiver and that the Court should resolve the issue in favour of the Appellant. It is his argument that the concept of waiver has been described as intentional or voluntary relinquish of a known right or such conduct as warrant the inference of the relinquishment of such right. It also arises where one dispenses with the performance of something he is entitled to whether countered by law of by contract, with full

knowledge of material facts. He relied on the following casesOLATEJU V COMM. LANDS AND HOUSING KWARA STATE AND 2 OTHERS (2010) 14 NWLR (Pt. 1213) 299 at 325 paras. C-D, ADEMOLA II V THOMAS (1946) 12 WACA 81, KATSINA LOCAL AUTHORITY V MAKUDAWA (1971) 7 NSCC 199, EZE V OKECHUKWU (2002) 18 NWLR (Pt. 799) 348. He added that waiver also involves the law preventing a party from claiming or insisting on a right, which he previously, expressly or by conduct abandoned, surrendered and or ignored knowingly, at a later date. He relied on the case of ABE V SKYE BANK PLC (2015) 4 NWLR (Pt. 1450) at 543 paras. A-B. He submitted that the foregoing decisions unequivocally demonstrate that a waiver need not be expressly stated. It could be inferred from the conduct of the party against whom it is raised. It is his case that the Respondents requested the Appellant to return the gratuity that he had earlier collected following his first employment, as a condition for the consideration and grant of his application for merger of the service with the 1st Respondent. He submitted that it is settled law that where a person has altered his position in relation to another person, on the

basis of representations and actions of that other person, the other person would be estopped from denying the existence of the state of affairs that he made the first person to belief actually exist. He added that having regard to the evidence on record and the findings by the learned trial judge regarding what the Respondents should have done, but failed to do coupled with the fact that the Appellant was not entitled to the relief sought in the suit. This notwithstanding the fact that he made full disclosures and did all that he was asked to do. He submitted that the learned trial judge effectively punished the Appellant for the mistakes, if any, of the Respondents. He argued that having approved the merger under the circumstances in which it was done, he submitted that what the learned trial judge did in holding that the merger was improperly done amounted to rewriting the terms of the Appellant’s service with the Respondents. He added that it is settled law that a Court is not allowed to re-write the terms of an agreement between parties and parties are bound by their terms. He referred to the following cases: ALADE V ALIC (NIG) LTD (2010) 19 NWLR

(Pt. 1226) 11 at 144 paras. D-E BALIOL (NG) LTD V NAVCON (NIG) LTD (2010) 16 NWLR (Pt. 1220) 619 at 633 paras. A-D, U.B.N PLC V SOARES (2012) 11 NWLR (Pt.1312) 550 at 571 paras C-E.

He argued further that the finding of the learned trial judge that the Respondent lacked the vires to waive aside a letter issued by the Judicial Service Committee (new Commission) i.e. Exhibit P3, suggest that the learned trial judge has descended into the arena and made a case for the Respondents. He added that it was for the Respondents to escape liability which was the implication of the merger of his service. He argued that Courts are enjoined to refrain from making a case for one of the parties in litigation. He cited in aid the case of AKPAMGBO OKADIGBO V CHIDI (NO.2) (2015) 10 NWLR (Pt. 1466) 124 at 165 para. E. He argued that the finding of the Court that the Respondents lacked the vires to approve the merger of service inspite of Exhibit P3 was raised suo motu by the learned trial judge and used to deny the Appellant’s full compliment of his gratuity. He submitted that the findings of the learned trial judge were in contravention of the well settled principle of

law that parties are bound by their pleadings and that the Court are precluded from raising issues suo motu without calling on parties to address on them. He relied on the case of F.U.T.A V AJIDAHUN (supra) 611-612 paras. E-C, OGWE V I.G. P. (2015) 7 NWLR (Pt. 1459) 505 at 530 paras. D-F OMINIYI V ALABI (2015) 6 NWLR (pt. 1456) 572 at 592-593 paras B-B, C-E and D-E, YAR’ADUA V YANDOMA (2015) 4 NWLR (Pt. 1448) 123 at 195-196 para C-C.

He urged the Court to resolve the second issue in the affirmative and allow the appeal on this score.

The reaction of the learned Counsel representing the 1st Respondent on this issue is that the Court should resolve it against the Appellant. He equally adopted the submission on issue two. He argued further that based on the preponderance of evidence adduced before the trial Court both the oral and documentary, it is established beyond reasonable doubt that the Appellant misrepresented and concealed relevant facts which led to the approval of the merger of non existent previous service. He referred to pages 168-172, 199-201 of the record of appeal which clearly established the act of Appellant’s

misrepresentation, concealment and falsification of facts. He urged the Court not to disturb the finding of fact by the trial Court. He relied on the case of INTERNATIONAL NIGER BUILD CONSTRUCTION COMPANY LTD V GIWA (2003) 13 NWLR (Pt. 836) 69 at P.105 paras. C-D. He urged the Court to discountenance with the submission made by the Appellant that the Respondents have waived the issue of misrepresentation of facts, concealment and falsification as grossly misleading and untenable as it is trite law that “a party cannot benefit from mischievously concealing or misrepresenting facts”. He relied on the case of ADEGOKE MOTORS LTD V ADESANYA AND ANOR (1989) 3 NWLR (Pt. 109) (page not provided). He urge the Court to dismiss the appeal entirely and affirm the decision of the trial Court.

Considering the foregoing arguments, the issue raised therein are that of misrepresentation, raising issue suo motu and waiver. In resolving issue number one, I am of the humble view that both the issue of misrepresentation and raising issue suo motu by the Court are exhaustively considered and resolved. I adopt my finding and conclusion on those two and apply them in toto

to the issue at hand. What is left to be determined is the issue of waiver. In the old case of ARIORI V ELEMO (1983) 1 SC NLR page 1 ESO JSC (as he then was and of blessed memory) said thus on waiver:
“… Rather than define the word, it is probably appropriate just to describe its concept. F. Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefits, but he either neglect to exercise his right to the benefit or where he has a choice or two, he decides to take one but not both. The exercise has to be voluntary act. There is little doubt that a man who is not under any legal disability should be the best judge of his own interest. It therefore, having full knowledge of the rights, interest, profit or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these or some of them, he cannot be heard to complain

afterward that he has not been permitted by the exercise of his rights, or that he has suffered by his not having exercised his right, he is, to put it in another way estopped from raising the issue.“
And CARRIBEAN TRADING AND FIDELITY CORPORATION V NNPC (1992) 7 NWLR (Pt. 252) P. 161. NIKI TOBI JCA (as he then was) stated thus:
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right. “Waiver need not be specifically pleaded. It can be inferred or implied after examining the conduct of the party. To my mind it is sufficient if the party relying on it relies on the other parties’ abandonment his right to complain.”
See also the cases of DR. JOHN OLUKAYODE FAYEMI AND ANOR V OLUSEGUN ADEBAYO ONI AND ORS (2010) LPELR – 4145. In CHIEF JOHN EZE V DR COSMAS IKECHUKWU OKECHUKWU AND ORS (2002) LPELR – 1194 where Uwaifo JSC said thus:

“It is said that waiver is the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. It also arises when one dispenses with the performance of something he is entitled to whether conferred by law or by contract, with full knowledge of the material facts, or when a person does nor forebears to do something the doing of which is inconsistent with the right or his intention, to rely or insist upon it. It includes the disinclination to take advantage of some defect, irregularity, or wrong in the act or action of another through acquiescence, renunciation, repudiation, abandonment or surrender of the right to so. See Black’s Law Dictionary, 6th Edition, page 1580,”
See also the case of NIGERIA BOTTLING COMPANY PLC V CHIEF UZOMA UBANI (2013) LPELR – 21902.
In all the foregoing cases the condition for the applicability of “waiver” is clear and unambiguous. I have no hesitation in my mind that, that is the position of the law. Not this alone, those decisions are bounding on this Court being decision of Superior Court and the Apex

Court of the land. However the situation at hand is distinguishable. The distinguishing factor is that the subject matter in issue is merger of one service of the Appellant to the other. That is to say that his earlier service with the Judiciary of Plateau State which was abruptly brought to an end by compulsory retirement of the Appellant and his new employment by the Plateau State Polytechnic, Jos. Somewhere in this judgment, I gave a details as to when the 1st employment of the Appellant was brought to an end i.e. in June 1988.

Consequent upon the said retirement he was paid his gratuity of the sum of N3,204.74k. In the year 1989 he sought and secured another fresh employment with the 1st Respondent. He was in that service when in the year 1995, about 7 years in service, circular Ref No. PEN/10/Vol.1/104 dated 6th October, 1995 was issued calling on serving officer who transferred their service from one employer to the other in the services of Government of Plateau State to complete form for the merger of their current employment. The Appellant who as at then had no subsisting employment before his employment with the 1st Respondent completed the form

and sought for merger of his service. The pertinent question here is whether the Appellant had a subsisting employment which he sought to merge. The answer is in the negative. This is so because the first employment of the Appellant has been brought to an end by the act of his being compulsorily retired from service and paid his gratuity as indicated herein. Whatever went bye that warranted an alleged merger of service to me is not a product of proper, prudent and clear process. It is riddled with a lot of inuendic circumstance. It left a lot to be desired. That notwithstanding, my worry is that the Appellant had no subsisting service to merge. But in order to bend the dried wood, he was made to pay back the gratuity paid to him years back and which was not disclosed when taking the new employment with the 1st Respondent. To me this was made possible by the connivance of some offers. This, ordinarily I believe ought not to be. The foregoing form the distinguishing factor which in my candid view will render inapplicable the principle of waiver. I accordingly so hold.

For the foregoing and my findings and conclusion on issue number one, I also resolve this

issue against the Appellant and in favour of the 1st Respondent.

ISSUE THREE
“Whether the learned trial judge was wrong when the lower Court found and held that the Appellant failed to prove his entitlement to the relief sought for before the lower Court in spite of the overwhelming evidence on the record showing that the Appellant had proved his claim to be entitled to judgment.”

The argument of the Appellant regarding this issue is that against the background of the arguments set out in support of issues 1 & 2 above, the learned trial judge was wrong to have held that the Appellant failed to prove his claim before the lower Court, to be entitled to the grant of the reliefs sought for. He contended that in the event that the reasoning on the legal issues that led the learned trial judge to the decision now appealed against is over ruled, it is necessary for the Court to review the decision of the lower Court in order to determine whether the Appellant is entitled to the reliefs claimed before the lower Court having regard to the specific pronouncement of the learned trial judge at pages 200-201 of the record.

He argued further that the learned trial judge began well when the Court found that the lone issue for determination before the lower Court was whether it was wrong for the Respondent to withhold a part of the gratuity paid to the Appellant but later veered off tangent when he proceeded to undertake a judicial review of an administrative decision. It is his case that this exercise led the learned trial judge into error. He urged the Court to review this part of the decision of the lower Court and the evidence led at the trial and proceed to determine the right of the Appellant on the merit. He argued further that from the pleadings of the parties before the Court, the trial judge quite rightly found that the bone of contention in the case was whether the Respondents refusal to pay part of the Appellant’s gratuity apportioned to the Plateau State Judiciary was wrongful. He referred to page 194 of the record. He contended that the learned trial judge was quite right having regard to the pleading when he found that the bone of contention in the case was whether the Respondents’ refusal to pay part of the Appellant gratuity apportioned to the Plateau State

Judiciary was wrongful. He added that the learned trial judge was quite right because the issue of apportionment did not necessarily arise. This he said is the clear and unequivocal opinion and advise of the Plateau State Pension Board, the Auditor General of Plateau State and the head of Service of Plateau State. He relied on Exhibit P10, P12 and P16 respectively. He submitted that it was made clear in the two correspondence that apportionment does not apply where the two services that were merged are within the same tier of government. He contended further that the 1st Respondent admitted these facts. He referred to paragraphs 14 and 15 of the 1st Defendants statement of defence at pages 37-46 particularly paragraph 14 thereof at page 39. Where the 1st Respondent specifically admitted paragraphs 10, 20 and 21 of the claim. He argued that a denial in a statement of defence would be deemed an admission if it is simply general in terms, rather than providing specific fact in denial of the allegation in the claim. He relied on the following cases DANLADI V DANGIRI (2015) 2 NWLR (Pt. 1442) 124 at 166 paras. B-G, AJIBULU V AJAYI (2014) 2 NWLR (Pt. 1392) 483 at

498-499 paras. E-F and OPARAJI V AHIHIA (2012) 4 NWLR (Pt. 1290) 266 at 276-277 para. F.

It is his contention that the 1st Respondent’s defence that it apportioned the part of the Appellant gratuity that was subject of the claim to the Plateau State Judiciary had been rendered implausible by the content of Exhibits P10, P12 and P16. He argued that there was no basis for the learned trial judge to have found that the Appellant had not proved his case to be his case to be entitled to judgment as the lower Court did. Rather, the lower Court ought to have found for the Appellant against the Respondent. For the 2nd Respondent in response to paragraphs 19-20 of the claim it asserted that the approval given to the Appellant was in error as there was no service to be merged since the Appellant had retired. Referring to paragraph 9 of the 2nd Respondent’s statement of defence at page 67 of the Record. It is his case that the implication of these is that apportionment of gratuity was a real issue that was in contention before the lower Court. He invited the Court to determine what the purport of Exhibit P15 is i.e. the approval of the merger of service

and urge the Court to construe the document as a whole giving the words used therein their plain and ordinary meaning. He relied on the following cases:N.J.C. V AGUMAGU (2015) 10 NWLR (Pt. 1467) 365 at 423 paras. D-G and ZENITH BANK PLC V EKEREUWEM (2012)4 NWLR (Pt.1290) 207 at 230 paras. D-E. He concluded by submitting that what the learned trial judge did was to embark on a judicial review of an administrative action. He referred to page 200 of the Record. Further he said that even assuming without conceding that the 1st Respondent owes no duty to pay the Appellant, the balance of his gratuity, he is liable to the Appellant. Consequently there was no basis for the learned trial judge to have found that the Appellant had failed to prove his case to be entitled to judgment even after he had tendered all the necessary documentary evidence and led oral evidence thereon to be entitled to judgment. He urge the Court to set aside the finding of the learned trial judge in this regard and enter judgment for the Appellant in terms of his claim as contained in the Writ of Summons.

On behalf of the 1st Respondent, the Court is urged to resolve the issue against the

Appellant. It is his argument that the finding of the trial Court dismissing the Appellant’s claim was based on the pleadings and evidence adduced by both parties before the trial Court as it is trite law that a trial Court is bound by the pleading and evidence adduced by parties and it has the duty not to make a case different from that of the parties. He relied on the case of KARA V WASSAH (2001) 18 NWLR (Pt. 744) P. 125 Ratio 8. He added that the trial Court’s conclusion dismissing the Appellant’s claim is done based on its findings of facts supported by evidence as it is trite law that, before a judge before whom evidence is adduced by the parties to take a decision as to whose evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale, he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other and weigh them together, will then see which one is heavier not by number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses.

That is what it means when it is said that civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the judge will naturally have regard to the following:-
(a) Whether the evidence is admissible.
(b) Whether it is reliant.
(c) Whether it is credible.
(d) Whether it is more probable than that given by the other party.

He relied on the following cases:KARA V WASSAH (2001) 18 NWLR (pt. 744) 117 at P.134/135, paras. H-C, OKON V NIGERIA ARMY (2018) 6 NWLR (Pt. 1614) P. 176 at 187 paras. G-H, 192-193 paras. H-A, also at pp.188 paras. A-C. He submitted further that flowing from the above, the decision of the trial Court on page 108 of the record, he submitted that the finding of the trial judge on pages 197 to 201 of the record dismissing the Appellant claim of N346,065.99k is not perverse nor does it lead to miscarriage of justice as claimed by the Appellant. He urge the Court to discountenance the submission of the Appellant and dismiss the Appeal. He refer to the case of UMANA V ATTAH (2004) 7 NWLR (Pt. 871) p.63 at p. 103 paras F-G where it was held thus:
“The golden rule regulating an

appellate review is that what an appellate Court has to decide is whether the decision of the trial Court was right and not whatever its reasons were.”

In my humble view what the foregoing arguments suggest is the question as to whether or not the learned trial judge properly evaluated the totality of the evidence placed before it before coming to the conclusion dismissing the case of the Appellant.

they are relevant, credible, and admissible. All these will come to be the construction of an imaginary scale on which such evidence adduced by either would be weighed. See OPADERE V ODEBUNMI (2003) 16 NWLR (Pt. 845) 45 at 57-58. Where such evidence is found to be of probative value and preponderate on one side of the scale, such evidence will then be the constituent of the finding of the trial Court. See OSAZUWA V ISIBOR (2004) 3 NWL R (Pt. 859) 16 at 39 BODI V AGYO (2003) 10 NWLR (Pt. 846) 305 at 323-324. It is trite that at this stage, what matters is not the number of witnesses called by each party but rather the quality or probative value of such evidence tendered. See OYEWOLE V AKANDE (2009) ALL FWL (Pt. 491) 835, BASSIL V FAJEBE (2001) 11 NWL (Pt. 725) 592 at 608, MOGAJI V ODOFIN (1978) 4 SC 91, DATOEGOEM DAKAT V MUSA DASHE (1997) 12 NWLR (Pt. 531) 46, CHIEF ADEBAYO BASHORUN OLUFOSOYE AND ORS V JOHNSON O. OLORUNFEMI (1989) NWLR (Pt. 95) 26. Let me add that it is trite that a trial Judge must assess and appraise all evidence before him. See ADELEKE V IYANDA (2001) 13 NWLR (Pt. 729) 1, ADENIJI V ADENIJI (1972) 4 SC 10, ONISAODU V ELEWUJU (2006) 13 NWLR (Pt.

998) 517, M.S.C. EZEMBA V S.O. IBENEME AND ANOR (2004) 14 NWLR (Pt. 894) 617. It is also trite and elementary principle of law that evaluation of evidence is the primary and essentially the function of the trial Court. Where and when this function is properly and satisfactorily done, an appellate Court will not interfere. See WOLUCHEM V GUDI (1981) 5 SC 291, ABISI AND ORS V EKWEALOR AND ANOR (1993) 6 NWLR (Pt. 3020 643.

In the light of the foregoing the question that agitates the mind having regard to the complaint of the Appellant is whether or not the finding and conclusion reached by the learned trial judge is a product of proper evaluation of the evidence tendered at the trial before the Court. I am not unmindful of the fact that the major complaint of the Appellant is that the conclusion of the learned trial judge is against the weight of evidence adduced. Where an Appellant complains that a judgment is against the weight of evidence, all he is saying is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which has been to the totality of the

evidence before the Court. To determine the complaint of the Appellant, the judgment of the trial Court has to be examined. I have carefully and soberly read through the record of appeal and in particular the entire proceeding before the trial Court and considered the entire Exhibits tendered i.e. Exhibits P1-P21 and D1& D2 and the finding of the learned trial judge in pages 197 to 201 of the record and I am of the firm view that the learned trial judge did not only properly evaluate all the evidence tendered but meticulously and painstakingly in his well considered judgment properly evaluated all the evidence tendered (oral and documentary). In my candid view, the conclusion reached by the learned trial judge is not only reasonable but a product of proper evaluation of the evidence tendered. The silence of the Appellant or better put, the concealment of fact of the Appellant’s compulsory retirement and payment of due gratuity to him by the State Judiciary, from 1989 when he applied and offered another employment till sometime in 1995 when circular number S/PEN/10/vol. 1/104 issued by the Government of Plateau State (2nd Respondent) requesting her

employees to merge their services is a great mitigating factor against the case of the Appellant. All that period as I found herein before and as rightly concluded by the learned trial judge, the Appellant had no existing service to merge with his subsisting employment with the 1st Respondent. The process that led to the paying back of the gratuity earlier on paid to him by the State Judiciary upon his compulsory retirement has much to be desired. To say a little, that arrangement suggest to me that there are some key elements that connived with the Appellant to sail through the alleged merger of service of the Appellant. This I belief should have been an issue of concern to the 2nd Respondent and which should ordinarily attract a process of investigation. I say no more.

On a final note and having concluded that the finding and conclusion of the learned trial judge is a product of proper reasoning and evaluation, this Court has no business in tampering with the finding and conclusion reached. Accordingly the call by the learned Counsel representing the Appellant for a re-evaluation of the evidence before the lower Court is outrightly declined. Instead, this

issue is resolved against the Appellant and in favour of the Respondents

In all, I come to the final conclusion that this appeal is meritless and deserved no better order than that of a dismissal. The appeal be and is hereby dismissed in its entirety.

In consequence, the well considered judgment of the High Court of Plateau State, Jos Judicial Division delivered in Suit No. PLD/J345/2010 on 30th day of September, 2016 Coram Hon. Justice R. K. Sha is hereby affirmed.

A cost of N100,00.00 is awarded against the Appellant and in favour of the 1st Respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The facts of this case fit perfectly within the local aphorism “cunnyman die, cunnyman bury am”. The deceased father Of the Appellant commenced his service With the civil service of the Plateau State Government as a staff of

Plateau State Judiciary on the 20th of September, 1976 and he worked thereat for a period of 11 years 7 months before his compulsory retirement on the 29th of June, 1988 and was paid his gratuity of N3,204.73k; effectively putting an end to that tenure of service. On the 6th of February, 1989, the deceased father of the Appellant was again employed by the Plateau State Polytechnic, the first Respondent, and he worked thereat until his retirement on the Of April, 2007 after 18 years Of service. In 1995, the Plateau State Government, the second Respondent, issued a circular directing all persons in its civil service and Who have transferred services from one agency or department to another to take steps to merge their previous service with the present one or risk compulsory retirement.

The deceased father of the Appellant, acting under the guise of the circular, applied to merge his previous service with the Plateau State Judiciary, and from which he was compulsorily retired and paid gratuity, with his service with the first Respondent. Somehow, the staff of the second Respondent approved the merger of the services and the deceased father of the

Appellant refunded the gratuity Of N3,204.73k and it was collected and receipted for. Upon his retirement from the service Of first Respondent, the deceased father of the Appellant applied for gratuity covering the combined period of his service with the first Respondent and with the Plateau State Judiciary and which amounted to sum of N546,098.90 was apportioned as due for his period of service with the first Respondent and to be paid by the first Respondent and the sum of N364,065.99 was apportioned for his period of service with the Plateau State Judiciary and to be paid by the State Judiciary. The first Respondent paid its own portion of N546,098.90k to the deceased father of the Appellant but the other portion of N364,065.99 was not paid.

The deceased father of the Appellant complained to the Plateau Pension Board and the office of the State Auditor General on the non-payment of the N364,065.99 and the two agencies directed the first Respondent to pay to the money to the deceased father of the Appellant. The first Respondent refused to make the payment and hence the action in the lower Court. The lower Court found that the merger of services was

predicated on a misrepresentation and/or fraudulent concealment of facts by the deceased father of the Appellant and that he cannot be allowed to take advantage of it. The lower Court found that the deceased father of the Appellant did not make out a credible case to sustain his claims and it consequently dismissed the action. The deceased father of the Appellant died after the judgment and was substituted with the Appellant.

Counsel to the Appellant challenged the finding of the lower Court that the merger of services was predicated on a misrepresentation and/or fraudulent concealment of facts and he prayed the Court to upset the finding. This issue has been adequately dealt with in the lead judgment and I only wish to make a few additional comments. Reading through the circular of the second Respondent calling all persons in its civil service and who had transferred services from one agency or department to another to take steps to merge their previous service with the present one, it is obvious that it referred to persons with existing previous services and not those whose previous services had been effectively determined either by termination

and/or compulsory retirement or otherwise. The lower Court found that the deceased father of the Appellant concealed the fact that his previous service was effectively determined by compulsory retirement when he sought for employment with the first Respondent and misrepresented that he had an ongoing previous service at the time of the application of the merger and that the return of the gratuity paid to him was done in furtherance of these fraudulent concealment of facts.

In his book, The Nigeria Law of Contract Ed page 295, Professor Itse Sagay defined
“A misrepresentation is an untrue statement made by one party to a contract to the other before or at the time of contracting with regard to some existing fact or to some past event which is one of the causes that induced the contract.”

It is without doubt that the actions of the deceased father of the Appellant in failing to disclose that he had been compulsory retired from his previous employment and that he had no existing previous service at the time of applying for the merger of services induced the approval of the application of his merger of services; they clearly

come within the above stated definition of misrepresentation. The finding of the lower Court thereon was thus spot on.

Counsel to the Appellant further contended that, assuming without conceding that the Appellant misrepresented or failed to disclose facts, the act of Respondents in granting the merger of service after the fact of the Appellant’s previous service came to light amounted to a waiver, thereby estopped the Respondents from denying the Appellant the benefit of the merger. Counsel relied on the two concepts of waiver and estoppel. In Ariori Vs Elemo (1983) NSCC, 1 at 8, Eso JSC spoke of the term “waiver” thus:
“….waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both The exercise to be voluntary, etc. There is

little doubt that, a man who is not under any legal disability should be the best judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterward that he has not been permitted the exercise of his right, he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put in another way, stopped from raising the issue.” The law is that to amount to waiver, express or implied, two elements must co-exist; namely (1) the party against whom the doctrine is raised must be aware of the act or omission which constitutes the waiver and (ii) he must do some unequivocal act adopting or recognizing the act or omission — Olatunde Vs Obafemi Awolowo University (1998) 5 NWLR (Pt 549) 178, Bank of the North Ltd vs Yau (2001) 5 SCNJ 168.
With regards to estoppel, the variant relied upon by Counsel to the Appellant is the doctrine of estoppel by representation, also known as estoppel by conduct.

This doctrine stipulates that if a man by his own words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; lga Vs Amakiri (1976) 11 SC 1, Chukwuma Vs Ifeloye (2008) 18 N WLR (Pt 1118) 204. The principle upon which estoppel by representation is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt for the purpose of their legal relations; First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230.
The doctrine of estoppel by representation or by conduct is founded on the principle of fraud and it has five essential elements: (a) that there was a false representation or concealment of material facts; (b) that the representation must have been known to be false by the party making it or the party must have been negligent in not knowing its falsity; (c) that it was

believed to be true by the person to whom it was made; (d) that the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this intent; and (e) that the party asserting the estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds; Oyerogba Vs Olaopa (1998) 13 NWLR (Pt 583) 509, Bank of the North Ltd vs Yau (2001) 10 NWLR (Pt 721) 408, Chukwuma Vs Ifeloye supra.
What is apparent from the above expose of the law on the doctrines of waiver and estoppel, is that the party against whom either of the doctrines is to apply must have participated in the acts constituting the waiver and/or estoppel or must have done something that encouraged the acts. From the narration of the case presented by the Appellant before the lower Court, he was employed first by the Judiciary of the Plateau State and thereafter by the first Respondent. It is a fact of common knowledge that the Judiciary of Plateau State and the first Respondent, though part of the civil service of Plateau State, are separate

entities with their respective staff, duties, liabilities and obligations and this Court can take judicial notice of the fact under the provisions of Section 124 of the Evidence Act. From the case of the Appellant before the lower Court, they were the establishments saddled with the responsibility of paying Of his gratuity upon his final retirement from service in the sums Of N364,065.99 and N546,098.90 respectively. The first Respondent paid its share of the gratuity while the State Judiciary, which had compulsorily retired and thereon paid the Appellant his gratuity in 1988, refused to pay the sum apportioned to it.

There was nothing in the case of the Appellant that either of the two establishments or their staff participated in the exercise leading up to the alleged merger of his service and it was not his case that the refund of gratuity he made was not made to either of them. They were not complicit in the process by which the Appellant effected the merger of his services and cannot thus be said to be caught by the doctrines of waiver and estoppel in respect thereof. The Bureau of Establishment, Training, Grading and Pension in the office of the Head

of Service of the second Respondent who issued the circular on the merger of services and whose officers apparently participated in same was not the direct employer of the Appellant and was not the one responsible for the payment of his gratuity. Thus, whatever abandonment of right or conduct by representation that that office did, it cannot bind either the Judiciary of Plateau State or the first Respondent and it cannot have any effect on the claims of the Appellant in the present case.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Plateau State delivered in Suit No PLD/J345/2010 by Honorable Justice R- K. Sha on the 30th Of September 2016. I abide the order on costs in the lead judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the opportunity to read in advance the lead judgment of my learned brother MUDASHIRU N. ONIYANGI, J.C.A., and I am in agreement with his reasoning and conclusion.

I just wish to add, by way of emphasis, that the said second pensionable public

service employment, which the Appellant took while clearly suppressing the fact of his having already retired as a public servant from the Plateau State Judiciary, is an unconstitutional act which, properly speaking, ought not to have been even countenanced at all. This is because Paragraph 4[2] Of Part 1 of the Fifth Schedule to the 1999 Constitution of the Federal Republic of Nigeria clearly outlaws such conduct, with its provision that says:
A retired public servant shall not receive any other remuneration from public funds in addition to his pension and the emolument Of such one remunerative position.
This provision was also contained in Paragraph 4 of the 5th Schedule of the 1979 Constitution of the Federal Republic of Nigeria operative in 1989 when appellant defiantly took up his second public service employment with first defendant after retiring from the Plateau State Judiciary where he had already received pension and emolument. Appellant relies on waiver by second respondent in accepting the refund of his emolument. I do not see how waiver can avail him, for it is well-settled law that neither the effect of rule of public policy laid down

by statute nor provisions of the Constitution is capable of being waived: See Attorney General of Bendel State V. Attorney General of the Federation and others [1981] 10 S.C. 1 at 54, [1981] NSCC 314 at 343. Appellant’s contentions were therefore in reality dead on arrival, more so as the Court has a duty to uphold the provisions of the Constitution.

It is for this little bit and mainly for the well-reasoned lead judgment of my learned brother, which I hereby adopt as mine, that I also dismiss this appeal.

I abide the order for costs as contained in the lead judgment.

Appearances: