Nigerian Union Of Pensioners & Anor. V. Joseph Kyumeh & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Igoche J. of the High Court of Justice Makurdi, Benue State delivered on 1st day of November 2007 in suit No MHC/205/2007.

The briefs facts leading to this appeal are as follows: the 1st Plaintiff/Respondent was removed from office as Chairman of the 2nd Respondent following an administrative panel of inquiry constituted by the 2nd Appellant on the authority of the 1st Appellant. The respondents instituted suit No MHC/382M/2006 at the Benue State High Court challenging the aforesaid action of the appellants. The suit was determined in the respondents’ favour following which the suspension of the 1st respondent and the dissolution of the Exco of the 2nd respondent were quashed by the court below.

On 3/3/2007, the respondents by originating summons commenced suit No MHC/205/2007 at the Benue State High Court seeking for orders restoring the 1st respondent to office and for the appellants to also pay the 2nd respondent its check off dues. Since it was an originating summons, affidavit was adduced by the parties.

After hearing the parties on their evidences, the court below ordered the restoration of the 1st respondent to office with full benefits and also restrained the appellants or their servants or staffs from acting in any office of the 2nd respondent. The judgment is at pages 205-213 of the record. The learned trial judge at page 212 of the record had this to say:-

“…I answer the question posed by the plaintiffs in the affirmative. Consequently, I make the following orders:-

1. An order directing the plaintiffs to be restored to their former positions with all the full powers, authority and benefits they hitherto enjoyed for 1 year and 6 months to complete their 4 year term of office
2. An order of injunction restraining the 1st and 2nd defendants and all the other members of the 1st defendant or anybody acting under them or thereafter constituted from acting on the office of the Benue State Council and or Executive of NUP which they are not entitled to act….”

Dissatisfied with the judgment, appellants appealed to this court vide Notice of Appeal dated 5th November 2007 containing two grounds which are reproduced hereunder as follows:

“GROUNDS OF APPEAL

i. The decision is against the weight of evidence.

ii. The learned trial judge erred in law when she held that the NOTICE AND GROUNDS OF APPEAL and the revenue receipt founded upon to show the existence of appeal against the decision in suit No MHC/328/2007 are inadmissible in evidence having not been duly certified as public documents.

PARTICULARS OF ERROR

a. An appeal is deemed filed once a notice of appeal thereof is filed in the appeal registry of the court of trial.

b. The notice and grounds of appeal and the revenue receipt of the payment therefor, copies of which were exhibited in the counter-affidavit of the Defendant as exhibit 2A and 2B respectively are primary documents which do not require any certification before admission in evidence,

c. The entire proceedings were determined on affidavit evidence to which all parties filing same annexed copious documents for the perusal and consideration of the Court. No oral evidence in respect of any issue arisen therein was sought by or proffered to the trial court.