Archbishop Olubunmi Okogie & Ors. V. Mrs Margaret Epoyun (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

In the Abeokuta Judicial Division of the High Court of Ogun State, the Respondent as Plaintiff took out a writ of summons against the Appellants as Defendants claiming the following reliefs:

“(1) A DECLARATION that Resolution “A” of the Board of Management of the Sacred Heart Hospital meeting of 22nd day of March, 1979 is binding on the defendants.

(2) A DECLARATION that as from the 22nd March, 1979, Pensions and Gratuities of all categories of staff of the Sacred Heart Hospital shall be in accordance with government regulations.

(3) AN ORDER that the pension and gratuity payable to the Plaintiff shall be in accordance with government regulations.

(4) AN ORDER of specific performance on the defendants to pay to the plaintiff her pension and gratuity in accordance with government regulations.”

Pleadings were filed and exchanged by the parties from which the following facts briefly emerge. The Appellants are members of the Board of Management of Sacred Heart Hospital, Lantoro Abeokuta while the Respondent was employed as a midwife/midwife-sister by that Hospital between the 4th November, 1979 and August 1994 when according to her, she voluntarily retired after putting in 15 years of service.

The Appellants sought to work out her gratuity on, her terminal annual basic salary of N19,638.00 which she, disagreed with while contending that her entitlement should be calculated on her total emoluments which include her basic terminal salary, transport allowance of N1,903.20; housing allowance of N180.00; shift duty allowance of N5,810.00; totalling N33,312.00. Her gratuity allowance she said, should be 140% of N33,312.00 which comes to N46,636.80 while her monthly pension should be 40% of her annual total emolument which should be N1,110.40 monthly.

At the trial, the Appellants called one witness while the Respondent called two witnesses. A number of Exhibits (‘A’ – ‘J’) were tendered and admitted. Counsel for both parties addressed Court and in his considered judgment delivered on the 18th June, 1996, the learned trial Judge Sonoiki J. gave judgment for the Respondent in terms of reliefs 1, 3 and 4 while refusing relief 2. It is against this judgment that the Appellants have appealed to this Court. Appellants filed a Notice of Appeal dated the 6th August, 1996 and filed on the 12th August, 1996 consisting of three Grounds of Appeal. The said Notice and Grounds of Appeal are to be found at pages 21-23 of the Record of appeal. The Appellants subsequently brought a motion on Notice dated the 29th June, 2004 and filed on the 5th July, 2004 pursuant to Order 3 Rule 2(5) and Rule 4(1) of the Court of Appeal Rules 2002 which was then in operation praying for leave of this Court to amend the Grounds of Appeal dated the 6th day of August, 1996. The application was granted on the 17th October, 2005 and an Amended Notice of Appeal dated 18th October, 2005 was filed on the 28th October, 2005. The Amended Notice of Appeal consists of five Grounds of Appeal which are reproduced hereunder shorn of particulars viz –

“GROUNDS OF APPEAL

(i) That the learned trial Judge erred in law by interpreting that portion relating to the payment of pensions and gratuities in accordance with government regulations in isolation or in disregard of other decisions therein contained in Resolution A of Exhibit E.

(ii) The learned trial Judge erred in law when after interpreting the word ‘comparable’ in paragraph 22 of Exhibit G to mean ‘near’ or ‘close’ went further to apply Government Scale which the 1st P.W. gave in court as if the said meanings of ‘near’ or ‘close’ is now equal to or the same with the Government Scale as ‘near’ or ‘close’ envisages a little or slight difference.

(iii) The verdict of the court is against the weight of evidence.

(iv) The learned trial Judge erred in law by rewriting the agreement and/or contract for the parties.