IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON WEDNESDAY, THE 10TH DAY OF MAY, 2023
BEFORE THEIR LORDSHIPS:
OBIETONBARA O. DANIEL-KALIO JUSTICE, COURT OF APPEAL
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/LAG/CV/23/2022
BETWEEN
UNION BANK OF NIGERIA PLC APPELLANT
AND
PENSIONERS ASSOCIATION
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
By way of a Complaint dated 04/01/2017 and Amended Statement of Facts dated and filed on 22/05/2017 before the National Industrial Court, Lagos Judicial Division (the lower Court), the 1st-122nd Respondents, as Claimants, prayed the Court for reliefs against the Appellant and the 123rd Respondent, as Defendants, as follows:
ALTERNATIVELY, the Claimants claim for:
The Appellant and the 123rd Respondent filed separate Statements of Defence in denying the claim of the 1st-122nd Respondents. At trial, the 1st-122nd Respondents called a sole witness and tendered tones of documents which were admitted as Exhibits. The Appellant and the 123rd Respondents respectively called a lone witness each. They also tendered some documents in evidence. At the close of the case for all the parties, written final addresses were filed and adopted by learned counsel representing the parties. The lower Court delivered its judgment on 10/09/2020 wherein reliefs (A), (B) and (C) were granted while relief (D) was refused. The lower Court also granted the Respondents’ alternative reliefs in full.
The Appellant lodged this appeal as an expression of its dissatisfaction with the judgment of the lower Court vide a Notice of Appeal dated and filed on 05/10/2021 anchored on five grounds of appeal. The appeal was filed subsequent to the leave granted by this Court on 28/09/2021 as contained at page 848 of Volume 2 of the Record of Appeal.
The facts of the case leading to this appeal, can be summarized as follows: The 1st-122nd Respondents, who were former employees of the Appellant, exited the Appellant’s employment at various times between 2007 and 2012. It is their case that at the time they joined the Appellant’s employment, employee pension benefits were governed by the Appellant’s Pension Trust Deed (otherwise referred to as the Defined Benefits Pension Scheme/Legacy Pension/In-House Pension Scheme). The 1st-122nd Respondents alleged that upon their respective exits from the Appellant’s employment, they started receiving their pensions under the said Defined Benefits Scheme, until sometime in 2013 when the Appellant unilaterally stopped paying them under the Defined Benefits Scheme and migrated them to the Contributory Pension Scheme, provided under the Pension Reform Act, 2004. Consequently, they prayed the lower Court to compel the Appellant to restore them to the Defined Benefits Pension Scheme.
The Appellant’s position, on the other hand, was that following the commencement of the Pension Reform Act, the Appellant commenced the Contributory Pension Scheme and made the requisite deductions and contributions as mandated under the Act. The said deductions and contributions were commenced in January 2006 and continued till the respective exit dates of the Respondents. The Appellant further averred that the said deductions and contributions were made on account of all the Respondents from January 2006, as none of the Respondents was exempted from the Contributory Pension Scheme under the Act. It is the further case of the Appellant that despite having commenced the Contributory Pension Scheme for all the Respondents since January 2006 (which was to the knowledge of the Respondents), the Appellant erroneously continued to pay the 1st-122nd Respondents under the Defined Benefits Scheme upon their respective exits. This continued until January, 2013, when the error was discovered, to wit: that the 1st-122nd Respondents had actually been placed under the Contributory Pension Scheme since 2006 and had taken benefits of the several deductions and contributions made in their favour under the said Contributory Pension Scheme, whilst also simultaneously taking benefit of the Defined Benefits Scheme. Consequently, the Appellant put an end to further payments under the Defined Benefits Scheme and advised the Respondents to approach their respective Pension Fund Administrators, to whom the deductions and contributions were remitted, for the payment of their pensions under the Contributory Pension Scheme, to which they rightfully belong.
Pursuant to the Rules of Procedure of this Court, parties to the appeal, except the 123rd Respondent, filed and exchanged Briefs of Argument. Appellant’s Brief of Argument, settled by Dr. Francis Chuka Agbu, SAN, with Muhammad Sani Umar, Okechukwu Geoffrey Ezeokoli and Tajudeen Ganikale, signed by Muhammad Sani Umar and filed on 28/02/2022, was adopted along with the Reply Brief filed on 07/09/2022, by when the appeal came up for hearing on 07/03/2023. Respondents’ Brief of Argument, settled by Ahmed Adetola-Kazeem with Mubarak Mustapha was filed on 30/05/2022 and adopted by at the hearing of the appeal. While learned counsel for the Appellant urged the Court to allow the appeal, 1st-122nd Respondents’ counsel prayed the Court to dismiss same. 123rd Respondent did not file any Brief.
In the Appellant’s Brief of Argument, five issues were distilled for determination and they are reproduced here below:
On their part, the 1st-122nd Respondents formulated four issues for determination, couched thus:
Issue No.1
Whether the trial Court was right to have given judgment in favour of the 1st – 122ndRespondents notwithstanding its finding that there was inconsistency in the evidence of the 1st – 122nd Respondents’ sole witness. (Ground 1)
Issue No.2
Whether having regards to the finding of the learned trial court that the Appellant cannot divest the 1st – 122nd Respondents of the already accrued pension rights which were duly communicated to the 1st – 122nd Respondents and indeed acted upon by the Appellant, the trial Court was right to have granted the reliefs (H) and (I) submitted to it. (Distilled from ground 2)
Issue No.3
Whether the learned trial Court was right when it granted the 1st – 122nd Respondents’ alternate reliefs having refused the grant the 1st – 122nd Respondents’ relief (D) submitted to it. (Distilled from Ground 3)
Issue No.4
Whether the judgment of the learned trial court properly evaluated the facts and evidence presented before it and whether it occasioned any miscarriage of justice. (Distilled from grounds 4 & 5)
Upon a careful perusal of the Record, especially, the Judgment appealed against, I am of the considered view that the issues nominated by the Appellant can adequately resolve this appeal without leaving any stone unturned, as even the issues formulated by the 1st-122nd Respondents are not different from the ones nominated by the Appellant. In the circumstance, I will adopt the said issues in the resolution of this appeal.
Appellant’s argument
On the first issue, learned counsel for the Appellant, opened his argument by referring the Court to page 24 of the Judgment of the lower Court, copied at page 834, Volume 1 of the Record of Appeal, where the lower Court found that as a result of the inconsistencies in the evidence of the only witness called by the Respondents, it was obligated not to rely on his testimony. The legal implication of this finding, according to the Appellant’s counsel, is that the Respondents have failed to prove their case and therefore not entitled to judgment, relying on the cases of Teumpenkenso vs. Ribadu & Anor (2017) LPELR-42984 (CA); Balogun vs. UBA Ltd (1992) 6 NWLR (Pt.247) 336; Onafowokan vs. State (1987) NWLR (Pt.61) 538; Makera & Anor vs. Galadanchi & Ors (2011) LPELR-8821(CA). He submitted that despite the above assessment of the Claimant’s sole witness by the lower Court, the Court strangely went ahead to give judgment for the Respondents, including declaratory reliefs, despite its finding that it was obligated to discountenance his evidence. Relying on Golit vs. IGP (2020) LPELR-50636 (SC); Abeke vs. Odunsi & Anor (2013) LPELR-20640 (SC); Onwe vs. The State (2017) LPELR-42589 (SC), and several other cases, learned counsel submitted that both the Court and the parties are enjoined to be consistent, and that a Court cannot in one breadth reject a piece of evidence and turn round subsequently to rely and make use of it. Counsel for the Appellant also accused the lower Court of descending into the arena of conflict by making a case for the Claimants/Respondents when, after finding that “CW did not have vivid knowledge of the facts of the case”, proceeded to hold that based on “basic knowledge before the Court”, the Appellant was liable to the Respondents. Counsel maintained that nowhere in its judgment did the lower Court indicate what facts constituted the said basic knowledge or how it came by the basic knowledge. It was argued that the lower Court used its basic knowledge to complement the Respondents’ inadequate knowledge of their case. The Court was urged to hold that the lower Court’s judgment is an aberration and tantamount to turning the law on its head.
On issue 2, the Court was again referred to the finding of the lower Court at page 25 of the judgment, copied at page 835 of the Record, to the effect that it will amount to illegality to allow the Respondents to continue to benefit under the In-House Defined Benefit Pension Scheme, and on that basis refused to grant relief (d) claimed by the Respondents. But in an astounding volte face, the lower Court went on to grant in full all the Respondents’ alternative reliefs which included an order for the continuous payment of pension to the Respondents by the Appellant on the basis of the Defined Benefit Pension Scheme up to January, 2013 and continue thereafter until the death of each of the Respondents. Learned counsel contended that having found that the restoration of the Respondents to the Defined Benefits Pension Scheme amounted to an illegality and having held that the Claimants could not continue to benefit from same - and even going ahead to refuse relief (d) on that ground - there was absolutely no basis (and the lower Court was thereby estopped) for the Court to grant the very same relief by compelling the Appellant to continue to pay the Respondents under the very same Defined Benefits Scheme until their respective deaths.
He submitted that the volte face by the lower Court betrayed either a total ignorance of the issues submitted before it or (as is more likely the case) an uncritical rush to “give the Respondents something” under a misguided notion of justice. It was argued that a Judge cannot prevaricate, he cannot approbate and reprobate on any issue before him, citing Eze vs. UNIZIK (2021) LPELR-56186 (CA) and other cases.
Under issue 3, it was submitted that a Court cannot simultaneously grant a main relief and an alternative relief, as that would amount to double compensation, which the law does not allow – G.K.F Investment Nig. Ltd vs. NITEL Plc (2009) 7 SCNJ 92 @ 116; Musa & Anor vs. Gana (2021) LPELR-55156 (CA) and others.
Counsel argued that in the light of the well-established position of the law on the point as enunciated above, the conduct of the lower Court in granting both the main reliefs and the alternative reliefs constituted an act of double compensation and therefore, ultra vires the powers of the Court and liable to be set aside. He further submitted that even where the main relief has only been granted in part, the Court is precluded from considering or granting the alternative reliefs, placing reliance on Idufueko vs. Pfizer Products Ltd & Anor (2014) LPELR-22999 (SC); Chukwu & Anor vs. Iheanacho-Agbo (2015) LPELR-40858 (CA). The Court was urged, on the strength of the authorities cited, to set aside the judgment of the lower Court, particularly, the part granting the alternative reliefs.
The complaint of the Appellant under issue 4 is that the lower Court failed and neglected to consider one of the issues submitted to it for consideration thereby occasioning a miscarriage of justice as a result of denial of fair hearing to the Appellant. According to learned counsel, part of the Appellant’s defence before the lower Court was that not only were the 1st-122nd Respondents required by the Pension Reform Act to be placed under the Contributory Pension Scheme, but that the Respondents had in fact (to their respective knowledge) been placed under the said Contributory Pension Scheme since January 2006 and had since that time benefitted under the Contributory Pension Scheme. Thus, the Appellant submitted that the continued payment of pension to the Respondents under the Defined Benefits Scheme (despite the commencement of the Contributory Pension Scheme and despite the benefits already being enjoyed by the Respondents under the said Contributory Pension Scheme) was no more than an innocent mistake on the part of the Appellant.
In proof that the 1st-122nd Respondents had being benefitting under the Contributory Pension Scheme, the Appellant relied on the Respondents’ pay-slips (salary advises marked Exhibit JM 1, (at pages 532 – 567 volume 1 of the Record of Appeal) which showed that the contributory pension had in fact commenced since 2006, to the knowledge of the 1st-122nd Respondents.
In addition to the said pay-slips, the 1st-122nd Respondent’s sole witness (CW) also testified under cross-examination that there were inflows into their pension accounts right from 2006 till they each left the Appellant’s employment and that the inflows consisted of deductions and contributions from employee and the employer; page 802 Volume 1 of the Record of Appeal.
Learned counsel stated that based on the said pieces of evidence, the Appellant raised the issue as to whether, commencing from 2006, the 1st-122nd Respondents were entitled to benefit simultaneously under the Defined Benefits Scheme and the Contributory Pension Scheme (See Issue III of the 1st Defendant’s Final Address at page 740 of volume 1 of the Record of Appeal). According to counsel, curiously, in its decision at pages 832 – 836 of the Record of Appeal), the lower Court totally ignored the said issue and all the pieces of evidence that were led in respect thereof. It was submitted that by ignoring the said issue and the said pieces of evidence, the lower Court occasioned grave injustice when it held that the Appellant should continue to pay pension to the 1st-122nd Respondents under the Defined Benefits Scheme, without any pronouncement as to the benefits already conferred and being enjoyed by them under the Contributory Pension Scheme. Counsel argued that equity leans against double portions as the Courts are not allowed to grant double compensation – Joint Project Devpt Co. & Ors vs. Akinlade (2014) LPELR-22559 (CA); Zenith Bank vs. Okeke (2020) LPELR-50798 (CA); GLO & Anor vs. Jami (2021) LPELR-55729 (CA).
On the duty of Court to consider all issues submitted to it for determination, counsel cited the following authorities: Opuiyo vs. Wari (2007)6 SCNJ 131; Uzuda & Ors vs. Ebigah (2009) LPELR-3458 (SC); Ovunwo & Anor vs. Woko & Ors (2011) LPELR-2841 (SC). He urged the Court to set aside the judgment of the lower Court for being a miscarriage of justice.
Issue 5 was distilled from ground 5, the omnibus ground of appeal. the said issue ought to have been married and canvassed either under issue 1 or issue 4, but learned counsel chose to make it a distinct issue. I will, in the determination of the issues, consider issue 5 and the arguments canvassed therein along with issue 4.
Respondents’ argument
Arguing issue 1, learned counsel for the 1st-122nd Respondent submitted that contrary to the impression created by the Appellant in its brief, the inconsistencies in the evidence of CW are not such that are fatal to the case of the 1st-122nd Respondents which could warrant a reversal of the judgment merely for the Appellant to show the existence of those contradictions without showing further that the trial Judge did not avert to, and consider the effects of these contradictions. That for an Appellant to succeed on the ground of contradiction in the evidence of witnesses, the contradiction must be shown to amount to substantial disparagement of the witness/es concerned; making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses, relying on GTB vs. Aleogena (2019) LPELR- 46922 (CA) @ 21-24. He argued that a contradiction that would make a Court disbelieve a witness has to be on a material point, on the main issue before the Court, not collateral contradiction, citing BSS Engineering Services Ltd vs. Fidelity Bank (2021) LPELR-53458 (CA). Counsel submitted that the contradiction in this case is with regards to the date of commencement of the Contributory Pension Scheme where the 1st-122nd Respondents contended it was 2009 while the Appellant maintained it was 2006, which is not the real or life issue before the lower Court.
On the submission by the Appellant’s counsel that the lower court employed its basic knowledge to complement the 1st-122nd Respondents’ inadequate knowledge of their case, counsel submitted that there is nowhere in the judgment of the learned trial Court suggesting that the Court employed its “basic knowledge” to complement the 1st-122nd Respondents’ knowledge of their case as claimed by the Appellant. He submitted that the context in which the learned trial judge used the phrase “basic knowledge” was employed to strengthen the decision of the Court in favour of the 1st-122nd Respondents against the evidence of the Appellant which the Court considered improbable. The Court was urged to discountenance the submissions of the Appellant on this issue.
With regards to issues 2 & 3 which were argued together, 1st-122nd Respondents’ counsel submitted that the vital documents that determined the rights and obligations of parties in this suit is Exhibit W.E 1, which are the 1st-122nd Respondents’ respective disengagement letters at pages 63-481 of the Record, which were the respective contractual documents stipulating in clear terms the accrued pension benefits of each of the 1st-122nd Respondents issued by the Appellant and which has gained the sanctity and force of law; Asuotu vs. Rriarch (Nig) Ltd (2019) LPELR-48181 (CA). Learned counsel contended that the Appellant did not only issue the exit letters in Exhibit W.E 1 Page 1-475 to the 1st-122nd Respondents, it went ahead to implement the terms contained in the said disengagement letters not only in respect of the 1st-122nd Respondents’ gratuities but also in respect of their Pensions from 2007 to 2013 before the Appellant unilaterally stopped payment of Pensions without reference to the 1st-122nd Respondents. It was argued that the Appellant is not imbued with any power in law to stop an employee’s gratuity, pension or terminal benefits when same has accrued and already being earned. NNPC vs. Komolafe (2021) LPELR-55824 (CA), was cited in support.
On the submission of the Appellant faulting the decision of the lower Court to grant the alternative relief (i) having made a finding that the Respondents cannot be allowed to continue benefitting under the UBN Plc In-House Staff Pension Scheme, Respondent’s counsel contended that all that the lower Court had done was to evaluate the evidence of the parties and to come to a finding that although some of the 1st - 122nd Respondents ought not by virtue of the operation of the Pension Reform Act, 2004, be under the Defined Benefit Scheme (i.e., In-house Pension Scheme) having not been exempted from the Contributory Pension Scheme, and to restore them to the In-house Pension Scheme would amount to giving backing to an obvious illegality, but at the same time the Court could not ignore the obvious facts and evidence before it by virtue of Exhibits W.E1, Page 475, at Pages 45-500 of the Record, and Exhibit W.E2b (letter dated 29th April 2008 (page 495 of the Record) from the Appellant to PENCOM) on the completion of actuarial valuation by HR Nigeria Limited, wherein parties had consensually agreed to be bound by the contents of the aforelisted exhibits, and so therefore, the parties were bound by their agreement, which culminated in the resolution of this instant issue against the Appellant and the consequent order of the trial court as per alternative relief (i). It was further submitted that contrary to the position taken by the Appellant, there was indeed a factual and legal basis for the lower Court to have granted relief (i), having found that there was indeed an approval granted the Appellant to operate its existing In-House Pension Scheme as evidenced by PENCOM letter of 06/03/2008.
With specific reference to issue 3, counsel to the 1st-122nd Respondents, while conceding the trite position of the law that a Court cannot grant a main relief and an alternative relief simultaneously, on the authority of Odutola Holdings Ltd & Ors vs. Ladejobi & Ors (2006) LPELR-2260 (SC), submitted that where the principal relief fails or the alternative relief would not amount to a double compensation, then the alternative relief is grantable, relying on Elephant Investment Ltd vs. Fijabi (2015) LPELR-24732. He submitted that the lower Court granted the alternative reliefs because the principal reliefs A, B, C were not exhaustive of the 1st-122nd Respondents’ remedy as the refusal of the lower Court to grant relief D makes the already granted reliefs A-C nugatory. It was the further contention of counsel that all the reliefs claimed in the alternative which the lower Court granted did not in any way amount to giving a double compensation to the 1st-122nd Respondents. Counsel argued that the only way the 1st-122nd Respondents could have been able to enjoy the fruit of the declaratory orders made in their favour was to grant the alternative reliefs. The Court was urged to resolve issues 2 & 3 in favour of the 1st-122nd Respondents.
The 4th issue revolves around the non-consideration of one of the issues submitted to the lower Court for determination by the Appellant, which the 1st-122nd Respondents contended, was properly considered by the lower Court. However, instead of canvassing argument as to how the lower Court considered the issue referred to by the Appellant, and at what pages of the Record of Appeal, learned counsel for the 1st-122nd Respondents devoted so much time in considering the issue and evaluating the evidence himself, as can be seen in his submissions at paragraphs 4.4.3 to 4.4.10 at pages 25-28 of the 1st-122nd Respondents’ Brief of Argument. I will return to this point in the resolution of the issues in this appeal.
Replying to issue 5 formulated by the Appellant, counsel to the 1st-122nd Respondents submitted that it is the practice of the Appellate Courts that they do not interfere with the findings of trial Courts where such findings are supported by credible evidence. He argued that there is no element in the judgment of the lower Court which suggest perverse finding or misdirection by the learned Judge. He referred to pages 816-832 of the Record where, according to him, the lower Court evaluated the evidence before reaching its conclusion at page 833. Counsel maintained that on the strength of the trial Court’s findings there was no any probable evidence before it that the Appellant discontinued the In-House Pension Scheme under the Trust Deed in 2006. Rather, the Court found as contradictory, the testimony of appellant’s DW1 who testified that the “In-House Pension Scheme was continued up until 2013”, and that there was indeed no evidence of mistake capable of being believed which may have led to the payment of pension to the 1st-122nd Respondents by the Appellant under the In-House Pension Scheme pursuant to the Trust Deed up till 2013. The Court was urged to hold that no miscarriage of justice was occasioned by the judgment appealed against and to proceed to dismiss the appeal and affirm the judgment of the lower Court.
The Appellant filed a Reply Brief in response to the Brief of the 1st-122nd Respondents.
Resolution of the Appeal
Issue 1
This issue queries the judgment entered in favour of the 1st-122nd Respondents after the lower Court found that their sole witness is not a witness of truth and that his evidence is unreliable due to inconsistencies. The law is settled that where the witness of a party gives inconsistent or contradictory evidence on material facts, his evidence on the point must be regarded as unreliable and must be rejected. See Zakirai vs. Muhammad & Ors (2017) LPELR-42349 (SC); Etim vs. Akpan & Ors (2018) LPELR-44904 (SC); Ayorinde vs. Kuforiji (2022) LPELR-56600 (SC). On the other hand, it is also the law that contradictions which do not affect the substance of the issue to be decided are irrelevant. For it to be relevant, the contradictions must be shown to amount to a substantial disparagement of the witness or witnesses concerned, rendering it unsafe to rely on his evidence. The Court does not reject the evidence of a party simply on minor contradictions. See Okere vs IGP (2021) LPELR-53079 (SC); Musa vs. The State (2019) LPELR-46350 (SC); Kayili vs. Yilbuk & Ors (2015) LPELR-24323(SC). What I tried to do above is to reiterate the settled position of the law as it relates to inconsistent or contradictory evidence given by the same party and their effect in judicial proceedings.
In the instant case on appeal, the 1st-122nd Respondents called only one witness in proof of their claim before the lower Court. He testified on their behalf as CW. In her appraisal of the credibility of the 1st-122nd Respondents’ sole witness (CW) and the evidence given by him, the learned trial Judge found at page 24 of the judgment, copied at page 834 of the Record, as follows:
“On whether this Honourable Court can rely on the testimony of CW on the basis of his alleged inconsistencies, the 1st Defendant alleged that CW was not a witness of truth as he contradicted himself under cross-examination; the Court has taken notice of these inconsistencies and they are of a nature that they go straight to the root of the Claimants’ case; the witness CW did not strike the Court as a witness of truth, nor did he appear to have vivid knowledge of the facts of the case….”, as such, the Court is obligated to not rely on such testimony based on the inconsistencies”.
Contrary to the submission of learned counsel for the 1st-122nd Respondents that the inconsistencies referred to by the lower Court was with respect to whether the commencement date of deductions for Contributory Pension Scheme was 2006 or 2009, there is nothing in the judgment of the lower Court, before or after the above quoted statement, to support the position of learned counsel. The above verdict of the lower Court must therefore be taken as the Court’s total assessment of CW and his evidence before the Court. As it relates to the evidence of the Respondents’ sole witness (CW), the effect of the above-quoted finding of the lower Court is that it has appended its imprimatur on the following:
(a) There are inconsistencies in his evidence;
(b) The inconsistences are of a nature that goes straight to the root of the case, i.e., the inconsistencies go to the substance of the real issue before the Court;
(c) CW is not a witness of truth;
(d) The witness does not know the facts of the case;
(e) The Court is under a legal obligation not to rely on the testimonies of CW.
It was a damning verdict on CW and the entirety of his testimony that no ingenuity of counsel submission can cure. The lower Court did not restrict the above finding to any aspect or any particular piece of the evidence of CW. The verdict as regards the evidence of CW is a general verdict touching on all aspects of the evidence given by him. Counsel and this Court are bound by the Record of Appeal and are not allowed to read anything into it other than what the lower Court has stated. The Court did not say that the inconsistencies relate to any particular piece of evidence as being suggested by learned counsel for the 1st-122nd Respondents. Indeed, the damning verdict of the lower Court did not just stop at the evidence of the 1st-122nd Respondents’ sole witness, it extended to the witness himself without any qualification.
Whether the lower Court was right or not in characterizing the evidence of CW as inconsistent and that the inconsistencies have gone to the root of the case of the 1st-122nd Respondents, and further that CW is not a witness of truth, is not the concern of this Court in this appeal. There being no cross appeal against that finding, the said finding stands tall and unshakeable like the Rock of Gibraltar. This Court is therefore bereft of jurisdiction to interfere with the unchallenged finding, whether it was rightly made or not. Furthermore, in the absence of Respondents’ Notice of Contention urging the Court to affirm the lower Court’s judgment on other grounds despite the damning verdict on their sole witness, there is nothing this Court can do other than to proceed on the solid ground that in view of the rejection of the evidence of CW by the lower Court and the characterization of the said CW as an untruthful witness, the claim of the 1st-122nd Respondents before the lower Court is rendered bare, bereft of any evidence in support. This is more so that the lower Court held that it is obligated not to rely on the testimonies of CW based on the inconsistencies therein.
It may be argued that quite apart from the evidence of CW, there are tons of other documentary evidence before the lower Court. While that may be true, the law is that documents do not by themselves speak, they can only be used and relied upon in a judicial proceeding if a witness speak to them by explaining their purport and tying them to specific aspect of a party’s case. The onus is always on a party who tenders documents to relate each of the documents to specific part of his case through the evidence of a witness. See Maku vs. Al-Makura & Ors (2016) LPELR-48123 (SC); APGA vs. Al-Makura & Ors (2016) LPELR-47053 (SC). Where documents are tendered and witnesses are not called to speak to them, such documents are worthless and bereft of evidential value as it is not within the province of a Court to tie each document to specific aspect of a party’s case where the party has himself failed to do that in open Court. See Polaris Bank Ltd vs. Centre Point Travel Agency Ltd (2022) LPELR-57359 (CA); APGA vs. Al-Makura & Ors (supra). The implication is that in the instant case on appeal, all the Exhibits tendered by the 1st-122nd Respondents are deemed to have been dumped on the lower Court since the evidence of the sole witness called by them has been discountenanced by the Court.
Having ruled that the evidence of the sole witness called by the 1st-122nd Respondents is unreliable and that the witness himself is not a witness of truth, there was no evidence left upon which the lower Court will grant the reliefs sought by the 1st-122nd Respondents, as it did, especially bearing in mind that the reliefs sought are declaratory in nature. The action of the lower Court in granting the claims of the 1st-122nd Respondents after rejecting the evidence of their sole witness as unreliable and labelling him as untruthful witness, amounts to an unfortunate and regrettable judicial summersault. In the result, I resolve this issue in favour of the Appellant.
With the resolution of issue 1, there would have been no need to proceed with the other issues in this appeal because the absence of evidence, following the disparagement of the sole witness and his evidence by the lower Court, goes to the root of the claim of the 1st-122nd Respondents before that Court. This Court, being a penultimate Court, however, I shall proceed to determine the other issues, in case my decision on issue 1 is found to be erroneous on appeal.
Issue 2
The 1st-122nd Respondents as Claimants before the blower Court, sought for four principal reliefs, numbered (A), (B), (C), (D). In addition to the principal reliefs, the 1st-122nd Respondents also sought for five alternative reliefs, numbered (E), (F), (G), (H), (I). Their claim under principal relief D is for:
AN ORDER COMPELLING THE 1ST DEFENDANT to restore forthwith each of the Claimants to the UBN PIc In-House Staff Pension Scheme established pursuant to the UBN Plc Staff Pension Trust Deed and pay to each of them the arrears of pensions that have accrued and are payable to them plus the interest thereon at the current bank rate from February 2013 to date and henceforth.
In its judgment, the lower Court, held that it would be illegal to allow the 1st-122nd Respondents to continue to benefit from the UBN Plc In-House Staff Pension Scheme (Defined Benefit Pension Scheme), even though it would have loved to restore them to the said benefit. On the basis of this finding, the lower Court refused to grant principal relief D, just quoted above. That is to say, the lower Court refused to allow the 1st-122nd Respondent to continue to derive benefit under the UBN Plc In-House Pension Scheme after they have been migrated to the Contributory Pension Scheme as provided by the Pension Reform Act, 2004. The refusal of the lower Court to grant relief D has gone to the very foundation of the action of the 1st-122nd Respondents.
From the passage of the judgment in which relief (D) was refused, the lower Court was sentimental and even expressed willingness to allow the 1st-122nd Respondents to continue to enjoy the In-House Pension Scheme, knowing fully well that doing so is illegal. This is what the lower Court said at pages 25-26 of the judgment, copied at pages 835-836, Volume 1 of the Record.
“…while the Court would like to maintain that the Claimants are entitled to be restored to the UBN Plc In-House Staff Pension Scheme, it cannot continue to give backing to an obvious illegality. While the 1st Defendants are not allowed to use this as a basis for their defence, the Claimants cannot be allowed to continue benefitting from same.”
What is the interest of the lower Court warranting its inclination to restore the 1st-122nd Respondents to the In-House Pension Scheme of the Appellant despite the provisions of the Pensions Reform Act, 2004, which requires that they be migrated to the Contributory Pension Scheme? The answer is best known to the learned trial Judge, as same is not apparent on the face of the Record. Holding onto that inclination in her head, the learned trial Judge, after refusing principal relief (D), proceeded to grant the alternative reliefs claimed by the 1st-122nd Respondents “in full”, meaning that all the alternative reliefs were granted in addition to principal reliefs (A), (B), (C).
Let me pose here and consider alternative relief (I), which is here below reproduced:
The order made here compels the Appellant to pay to each of the 1st-122nd Respondents the shortfall between the amounts transferred to their respective Pension Fund Administrators and the amount due and payable to each of them under the Defined Pension Scheme up to January, 2013, and to continue the said payment thereafter till after their death. The implication of this order of the lower Court is that the Court has restored the 1st-122nd Respondents to the previous UBN Plc In-House Pension Scheme, otherwise called Defined Benefit Pension Scheme, whose continues application it had earlier held to be illegal, in view of the coming into force of Contributory Pension Scheme under the Pension Reform Act, 2004.
At one breadth, the lower Court ruled that the 1st-122nd Respondents cannot be allowed to continue benefiting from the In-House Pension Scheme, which culminated in the refusal to grant principal relief (D), in another breadth, the same Court is ordering the Appellant to pay the difference between what was transferred to the Pension Fund Administrators for the benefit of the 1st-122nd Respondents and what they used to benefit under the In-House Pension Scheme, and to continue with that payment up till January, 2013, and thereafter, till the 1st-122nd Respondents ceased to be pensioners on account of their death. This is a case of giving by the left hand what was taking away by the right hand. It is a clear case of the lower Court approbating and reprobating at the same time. It is also a case of supporting and encouraging the perpetration of the same illegality that the lower Court earlier said it would not condone. The grant of alternative relief (I) amounts to contradicting the order of the lower Court when it refused principal relief (D). This is another instance of unfortunate and regrettable judicial summersault, coming as it were, from the very citadel of justice. I hold that the lower Court was in grave error when it granted alternative relief (I) after having refused to grant principal relief (D), thereby resolving issue 2 in favour of the Appellant.
Issue 3
This issue queries the decision of the lower Court in granting alternative reliefs together with the principal reliefs claimed by the 1st-122nd Respondents. It was submitted for the Appellant that a Court cannot simultaneously grant a main relief and an alternative relief, as that would amount to double compensation, which the law does not allow. It is not in dispute that in addition to the grant of the principal reliefs (A), (B) and (C), the lower Court proceeded to grant all the five alternative reliefs (E), (F), (G), (H) and (I) claimed by the 1st-122nd Respondents. Learned counsel for the 1st-122nd Respondents argued that if the alternative reliefs are not granted, the principal declaratory reliefs granted by the lower Court would be rendered nugatory.
As the name suggest, alternative relief means relief in the absence or failure of the main relief. The practice has developed over time that a party will set up two set of facts and claim separate reliefs based on the set of facts, with some of the reliefs in alternative to others. The aim is that when the first set of reliefs fails, the second set of reliefs may succeed. It’s like a gamble. The law is settled that where a principal claim succeeds and the Court grants same, there will be no need to consider any alternative claim thereto. Conversely, the grant of alternative relief simply means the discountenance of the principal reliefs. See The M.V. Caroline Maersk & Ors vs. Nokoy Investment Ltd (2002) LPELR-3182 (SC); Aideyan vs. Osagiede (2021) LPELR-56398 (CA). What this means is that, when a relief sought is in the alternative, the alternative relief will only be granted when it is practically impossible to award any of the items sought in the main reliefs. See Holborn Nig. Ltd vs. Chris Enterprises Ltd (2014) LPELR-23972 (CA); Idufueko vs. Pfizer Products Ltd & Anor (2014) LPELR-22999 (SC); Xtoudos Services Nig. Ltd & Anor vs. Taisei (W.A.) Ltd & Anor (2006) LPELR-3504 (SC); Nwoye vs. Federal Airports Authority of Nigeria (2019) LPELR-46402 (SC); Odutola Holdings Ltd & Ors vs. Ladejobi & Ors (2006) LPELR-2260 (SC).
In granting the alternative claims “in full”, the lower Court stated that refusing the alternative claims will be unfair to the 1st-122nd Respondents. This is notwithstanding the fact that alternative relief (I), which has been granted along with others, is akin to principal relief (D) in tenor and purport. In fact, alternative relief (I) is a reincarnated version of principal relief (D) which was refused by the lower Court on the ground that granting it will amount to illegality. Alternative relief (I) is tainted with the same illegality that afflicted principal relief (D), which made both of them ungrantable. In the case of Idufueko vs. Pfizer Products Ltd & Anor (supra), the Supreme Court held that even where only a part of the main claim is granted, not all, alternative relief ceases to be grantable, as equity leans against double portion. In the instant case on appeal, three of the four principal reliefs claimed by the 1st-122nd Respondents were granted, only one was refused. That is to say, a substantial portion of the principal relief was granted. Not caring about the rule against double compensation, the learned trial Judge, in a sweeping manner, proceeded to grant all the five alternative reliefs, as according to her, this was done to avoid causing unfairness to the 1st-122nd Respondents. It does not matter to the lower Court that granting all the alternative reliefs in addition to the grant of substantial part of the principal reliefs will tantamount to promoting illegality and breaching the provisions of the Pension Reform Act on Contributory Pension Scheme. Such a course ran contrary to the settled position of the law reiterated supra, and this Court cannot allow it to stand. In consequence, I resolve issue 3 in favour of the Appellant by holding that the lower Court was wrong when it proceeded to grant all the alternative reliefs after granting substantial part of the principal reliefs claimed by the 1st-122nd Respondents.
Issue 4
The complaint of the Appellant under issue 4 is that the lower Court failed and neglected to consider Issue 3 submitted to it by the Appellant for consideration which failure occasioned a miscarriage of justice, as a result of denial of fair hearing to the Appellant. According to learned counsel, part of the Appellant’s defence before the lower Court was that not only were the 1st-122nd Respondents required by the Pension Reform Act to be placed under the Contributory Pension Scheme, but that the Respondents had in fact (to their respective knowledge) been placed under the said Contributory Pension Scheme since January 2006 and had since that time benefitted under the Contributory Pension Scheme. Thus, the Appellant submitted that the continued payment of pension to the Respondents under the Defined Benefits Scheme (despite the commencement of the Contributory Pension Scheme and despite the benefits already being enjoyed by the Respondents under the said Contributory Pension Scheme) was no more than an innocent mistake on the part of the Appellant. Relying on Exhibit JM 1, the 1st-122nd Respondents’ pay slips at pages 532 – 567 volume 1 of the Record of Appeal, which shows that the contributory pension had, to their knowledge, commenced since 2006, and the evidence of CW under cross examination that there were inflows into their pension accounts consisting of deductions from employees and contributions from employer right from 2006 till they each left the Appellant’s employment, as can be seen at page 802 Volume 1 of the Record of Appeal, Appellant’s counsel formulated in the “1st Defendant’s Final Written Address”, copied at pages 727-752 of the Record, Issue (iii) for the determination of the lower Court as follows:
“Whether the Claimants are entitled to simultaneously receive pension under the Contributory Pension Scheme and the defunct Staff Pension Trust Deed.
According to the Appellant’s counsel, this issue was not considered by the lower Court in its judgment, thereby occasioning a miscarriage of justice to the Appellant.
Counsel to the 1st-122nd Respondents maintained that there was no miscarriage of justice in the judgment of the lower Court as all relevant issues and evidence were properly evaluated and assessed, referring to pages 816-832 of the Record where, according to him, the lower Court evaluated the evidence before reaching its conclusion.
Upon a careful perusal of the Record, I found that Issue (iii) in the “1st Defendant’s Final Written Address” was argued at pages 740-746, Volume 1 of the Record of Appeal. The lower Court reviewed the said argument at pages 12-14 of its judgment, copied at pages 822-824 of the Record. In its decision on the claim, the lower Court, either through human error or deliberate design, omitted, refused or neglected to make a decision on whether the 1st-122nd Respondents are entitled to receive pensions under both the In-House Pension Scheme and the Contributory Pension Scheme. In fact, no reference was made to the issue under the heading “COURT’S DECISION” which occupies pages 832-836 of the Record, even though the lower Court copiously reviewed the submissions of counsel on the issue. That omission was a fundamental omission with fatal consequences on the judgment of the lower Court. I say so because the entire dispute before the lower Court arose as a result of the stoppage of payment of pensions of the 1st-122nd Respondents by the Appellant, which was hitherto computed on the basis of the UBN Plc In-House Pension Scheme. The dispute arose when the Appellant migrated the 1st-122nd Respondents to the Contributory Pension Scheme as provided under the Pension Reform Act. The reliefs sought by the 1st-122nd Respondents included the payment to them of the shortfall between the amounts transferred to their respective Pension Fund Administrators and the amount due and payable to each of them under the Defined Pension Scheme up to January, 2013, and to continue the said payment thereafter till after their death. See alternative relief (i), which was incidentally granted by the lower Court. Therefore Issue (iii) formulated by the Appellant in its Final Written Address goes to the very root of the case at the lower Court, making its determination, one way or the other, of paramount importance. The lower Court, however, decided to shy away from the issue.
Now, the law is trite that it is the duty of Court to make pronouncement on every issue properly raised before it for determination before arriving at a decision; and if a Court of law fails or neglects to so make pronouncement on such issues, it is likely to lead to miscarriage of justice. According to Muntaka-Coomassie, JSC, in Uzuda & Ors. vs. Ebigah & ORS (2009) LPELR - 3458 (SC):
"A party to a dispute must be heard before the determination of his rights by a Court of competent jurisdiction, without let or hindrance from the beginning to the end. The right to a fair hearing in a suit is not only a common law requirement in Nigeria but also a statutory and constitutional requirement. This principle is fundamental to all Court procedure and proceedings. Thus, when a party submits an issue to a Court for determination, that Court must consider and make pronouncement on it, unless if such amounts to hypothetical or academic issue. Where such issues amount to mere hypothetical and academic issue, the Court would not have jurisdiction to hear it.”
Similarly, in Oged Ovunwo & Anor vs. Iheanyichukwu Woko & ORS (2011) LPELR - 2841 SC, it was held, per Chukwuma-Eneh, JSC, that it is a Court's duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice, breaching the party's right to fair hearing.
The law is settled that a Court has a statutory duty to consider and decide on all issues raised and submitted to it for determination. The essence of considering and determining all issues raised before a court is to accord with the principle of fair hearing as enshrined in our Constitution and to avoid the breach of a complaining party’s right to fair hearing. It will amount to a serious lapse in the performance of his/her judicial duty for a Judge to shy away from determining all issues properly raised before him/her, as done by the trial Judge in the case now on appeal. In the case of Brawal Shipping (Nig.) Ltd vs. F.I. Nwadike Co. Ltd & Anor (2000) LPELR-802 (SC), Uwaifo, JSC, held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for consideration, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Owodunni vs. Registered Trustees of Celestial Church of Christ & Ors (2006) LPELR-2852 (SC); Samba Petroleum Ltd vs. U.B.A. PLC (2010) 6 NWLR 530; Dingyadi vs. INEC (2010) LPELR-40142 (SC); Sule vs. State (2009) LPELR-3125(SC). A deliberate failure by a court to consider all issues raised before it amounts to a miscarriage of justice and a failure to perform a statutory duty. See Ovunwo vs. Woko (2011) LPELR-2841 (SC).
In the case now on appeal, the lower court conveniently and completely ignored the 3rd issue raised in the 1st Defendant’s Final Address upon which evidence (Exhibit JM 1) was relied on by the Appellant. This is despite the fact that the court took time to review the elaborate submissions of the Appellant’s counsel on the said issue. I think, without mincing words, that the lower court was in grave error for abdicating its sacred judicial responsibility of dispassionately treating and determining every issue raised by the parties before it one way or the other. This failure or omission by the lower court has no doubt occasioned a miscarriage of justice to the Appellant who raised the issue that was not considered and determined. There is a reasonable probability that the Appellant may have gotten a favourable outcome had the lower court considered the issue. The consequence of failure by the lower court to consider issue (iii) raised by the Appellant has occasioned a failure of justice and breached the Appellant’s right to fair hearing. Issue 4 is accordingly resolved in favour of the Appellant.
With resolution of this issue in favour of the Appellant, it goes without saying that in arriving at its decision, the lower Court did not properly evaluate the evidence on the printed record. The argument of learned counsel for the 1st-122nd Respondents in response to the Appellant’s issue 5, that the lower Court evaluated the evidence at pages 816-832 of the Record before arriving at its conclusion, is with respect, incorrect. What the lower Court did at pages 816-832 of the Record was review of the submissions of counsel for the parties, simpliciter. That was neither evaluation of evidence nor evaluation of submissions of counsel. Evaluation of evidence means assessment of the evidence led by the parties and ascription of probative value to them with a view to determining on which side the pendulum or scale of justice tilts. “Evaluation of evidence by a trial Court should necessarily involve a reasoned believe of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other”; Lagga vs. Sarhuna (2008) LPELR-1740 (SC). It involves reviewing and criticizing the evidence given and estimating it. Let it be known, and clearly too, that review of evidence is not the same thing as evaluation of evidence, the two are not synonymous. With this, I also resolve issue 5 in favour of the Appellant.
Having come thus far, the final destination of this appeal is as clear as a bright sunny day. The appeal is meritorious and is accordingly allowed. Judgment of the National Industrial Court of Nigeria in Suit No: NICN/LA/03/2017 delivered on 10/09/2020, Coram: R.H. Gwandu, J., is hereby set aside.
I order that parties to this appeal shall bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Paul Omobhude for the Appellant
Mubarak Mustapha for the 1st-122nd Respondents
Timothy Adewale with M. Utin for the 123rd Respondent.
M. I. SIRAJO, JCA. CA/LAG/CV/23/2022 | PAGE |
