REGISTERED TRUSTEES OF THE CATHOLIC ARCHDIOSCESE OF ABUJA & ANOR v. AGBOCHONU (2020)

REGISTERED TRUSTEES OF THE CATHOLIC ARCHDIOSCESE OF ABUJA & ANOR v. AGBOCHONU

(2020)LCN/15200(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/A/457/2013

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. THE REGISTERED TRUSTEES OF THE CATHOLIC ARCHDIOSCESE OF ABUJA 2. REV. SIS. CHIDEBELU P. NIGWE APPELANT(S)

And

BARTHOLOMEW AGBOCHONU RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE NO COUNTER-CLAIM IS FILED, A REPLY IS GENERALLY UNNECESSARY

The rule of practice is that where no counter claim is filed, a reply is generally unnecessary if it’s sole object is to deny allegations contained in the statement of defence.
The proper function of the reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raise issues of fact not arising out of the defence. In OBOT VS. CENTRAL BANK OF NIGERIA (1993) 8 NWLR (PT. 310) 140, per Niki Tobi, JSC (Pp. 45 – 46. paras. E – D) the Supreme Court held as follows:
“(i) In general, it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence. (ii) A reply to merely join issues is not permissible. If no reply is filed, all material facts alleged in the statement of defence are put in issue. (iii) The proper function of a reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raised issues of fact not arising out of the defence. Also, a reply is the proper place for meeting the defence by confession and avoidance. (iv) In order to allow a party to file a reply the trial Court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an Issue.” (Emphasis Mine). Apart from the fact that a Reply is not usually necessary as shown from the authority cited above, it is also worthy of mention, that pleadings are different from counter affidavit because once a counter affidavit is filed and no reply is filed to any new facts raised, those new facts raised is deemed admitted as affidavit in itself is evidence which needs no further proof. PER IDRIS, J.C.A.

WHETHER OR NOT PLEADINGS ARE EVIDENCE

However, pleadings are not evidence as the facts averred in any pleading needs further proof and that is why documents are pleaded and witnesses called to give evidence in support of the averments in a pleading.
It is now settled, that pleadings do not constitute evidence and therefore, where such pleading is not supported by evidence – oral or documentary, it is deemed by the Court as having been abandoned. There are too many decided authorities in this regard. See the case of NEWBREED ORG. LTD VS. ERHOMOSELE (2006) LPELR – 1984 (SC). PER IDRIS, J.C.A.

DEFINITION OF THE TERM “PROVISIONAL”

‘The word ‘provisional’ is defined as temporary, preliminary, tentative. It is also defined as ‘provided for a present service or temporary necessity; adopted tentatively….’ See the case of ONAGORUWA VS. J. A. M. B. (2001) 10 NWLR (PT. 722) 742; per Fabiyi, JCA, also see JAMB VS. ORJI (2008) 2 NWLR (1072) 552 AT 568, PARA C. and the Black’s Law Dictionary. PER IDRIS, J.C.A.

DUTY OF THE COURT WHERE THERE IS CONFLICTING EVIDENCE BETWEEN ORAL AND DOCUMENTARY EVIDENCE

Where there are conflicting evidence between oral and documentary evidence, the Court is bound to look at the documentary evidence to proof same. See the case of MADU VS. MADU (2008) 6 NWLR (PT. 1083) P. 296. Oral evidence cannot be used to contradict documentary evidence. See also the case of HAWAD INTERNATIONAL SCHOOLS LIMITED VS. MINA PROJECT VENTURES LIMITED (2003) 39 WRN 57 AT 69. PER IDRIS, J.C.A.

WHETHER OR NOT TERM OF CONTRACT OF SERVICE IS THE BEDROCK OF ANY CASE WHERE THE ISSUE OF WRONGFUL TERMINATION OF EMPLOYMENT CALLS FOR DETERMINATION

It is a trite position of law that the term of contract of service is the bedrock of any case where the issue of wrongful termination of employment calls for determination. See the cases of AMODU VS. AMODE (1990) 5 NWLR (PT. 150) 356; IWUCHUKWU VS. NWIZU (1994) 7 NWLR (PT. 357) 379 AT 412.
In AMODU VS. AMODE (SUPRA), Agbaje, JSC who read the leading judgment observed at page 370 as follows:-
“It appears clear to me that since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question.” To this, Wali. J.S.C. added at page 373: – “The term of the contract of service is the bedrock of the appellant’s case.” As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the Court will not and should not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. (Emphasis Mine). PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated 10th January, 2004 and filed on the 10th January, 2004 and which statement of claim was amended and filed on the 27th October, 2004, the Respondent as Plaintiff at the trial Court instituted an action against the 1st and 2nd Appellants who were the defendants at the trial Court respectively and sought for the following reliefs against the Defendants jointly and severally:-
1. An Order declaring the Termination Letter dated 17th December, 2003 and addressed to the Plaintiff, and signed by the 3rd Defendant terminating the teaching appointment of the Plaintiff with Regina Pacis Girl’s Secondary School null and void.
2. A Declaration that the termination of the appointment of the Plaintiff is a violation of his conditions of service and therefore wrongful.
3. An Order compelling the defendants to reinstate the Plaintiff to his former position as a staff of Regina Pacis Girl’s Secondary and payment to him of all his outstanding salaries and entitlement from December, 2003 until his appointment is properly terminated or he resigns his appointment or retires.

Or in the alternative an Order compelling the Defendants to pay the Plaintiff his salary and other entitlements for the next ten years calculated at N317,330.64 per annum.
5. Exemplary damages in the sum of N1,000,000.00.

On the other hand, the 1st and 2nd Defendants (now Appellants) jointly filed their Statement of Defence which was amended twice. The 2nd Amended Statement of Defence is dated 6th March 2006 and filed on the 7th March, 2006.

It is also important to note that by a Motion on Notice dated and filed on the 1st June, 2004 by the Defendants, the name of the 2nd Defendant (Regina Pacis Girl’s Secondary) was struck out leaving only the 1st and 2nd Appellants as Defendants (1st and 2nd Defendants).

Before going into the appeal, here is a summary of the facts involved in this Appeal:
The Respondent as plaintiff at the trial Court, instituted this action claiming that he was offered employment by the 1st Appellant as a teacher to teach the students of Regina Pacis Girls Secondary School.

The Respondent also Claimed that after his employment, he was given a provisional offer of employment dated 27th October, 1998, after which, by a regularization of offer of Appointment dated 13th March, 2001 containing the terms of employment and the conditions of service, the 1st Appellant through its education board offered the Respondent permanent appointment.

The Respondent claimed that he was employed as a physics teacher and placed on a salary of N317,330.64 per annum. He also claimed that he was employed to teach Physics to the Senior Secondary III students otherwise known as the examination class.

The Respondent further claimed that he also taught Mathematics to Junior Secondary School Students (JSS3) of the same school and that as soon as he started teaching, the SS3 class which has been doing poorly, suddenly made a remarkable improvement on their grades and in the year 2002, the school recorded a 100% pass in Physics at the WAEC level.

He further claimed that he also recorded a remarkable improvement amongst the JSS3 students he had taught mathematics in the year 1999 and 2000 as when he presented the students at the National Competitive examination in mathematics, they emerged as winners in the competition. He further claimed that the National Competitive Examination Board presented him with certificates of merit in 1999 and 2000.

The Respondent claimed that on the 8th of December, 2003, he received a query from the 2nd Appellant which he responded to. He further claimed that the query given to him on the 8th of December 2003 was the only query he got.

The Respondent claimed that he subsequently received a letter dated 17th December, 2003 signed by the 2nd Appellant and terminating his appointment with the 1st Appellant.

The Respondent claims that the said termination was in violation of his condition of service and aimed at destroying his career, as no employer would want to employ a person with the stigma of termination of employment attached to it.
The Respondent at the trial Court opened his case on the 10th of November, 2004 and he was the sole witness who testified and tendered 5 Documents admitted and, marked as Exhibits A – E.

The Respondent closed his case on the 9th December, 2004 and the matter was adjourned to 23rd March, 2005 for the defence to open their case.

The 1st and 2nd Appellants opened their defence on the 5th May, 2005 and called five (5) witnesses; DW1 – DW5 who testified and tendered 11 documents, admitted and marked as Exhibits F – G.

The 1st and 2nd Appellants closed their case on 19th July, 2005 and the matter was adjourned to 27th September, 2005 for adoption of final written addresses. Parties then filed and adopted their respective addresses on the 31st January, 2006.

After considering the evidence led by parties, the Learned Trial Judge, Honourable Justice A. A. I. Banjoko delivered Judgment in the Suit No- FCT/HC/M/159/04 on the 21st June, 2006 wherein the trial Judge granted Judgment in favour of the Respondent.

Dissatisfied with the Judgment of the trial Court, the Appellants filed a Notice of Appeal dated and filed on the 11th December, 2006 comprising of three grounds of appeal.

The Appellants and the Respondent have filed and exchanged their respective briefs of argument.
In the Appellants’ joint brief of argument as settled by their counsel Abishido Anthony Dodo Esq. dated 1st June, 2015 and filed on the same date, the following issues for determination were distilled from the grounds of appeal as follows:-

Whether the order of the trial Judge, directing the Appellants to pay the Respondent’s outstanding salaries and entitlements from December, 2003 till his appointment is terminated, is not erroneous and occasioned a miscarriage of justice? (Ground One).
2. Whether the lower Court’s evaluation of documentary evidence tendered during the trial and the findings made therefrom were not erroneous and occasioned a miscarriage of justice? (Ground 2 & 3).
The Appellants’ Counsel argued issues One and Two together.
The Appellants’ Counsel argued that in their Second Amended Statement of Defence, the Appellants averred that the function of the 1st Appellant’s education board were carried out by the board directly or through its principal officers among whom is the 2nd Appellant where the situation so demands.

The Appellants’ Counsel further argued that following the exigency of the situation of the Respondent’s conduct, the employment of the Respondent was terminated by the 2nd Appellant in the exercise of the powers exercisable by her and the said termination of the Respondent was ratified by the 1st Appellant’s board.

However, all these facts were not denied by the Respondent as no reply was filed to the said 2nd Amended Statement of Defence.

The Appellants’ Counsel therefore urged this Court to hold that the said averment be deemed admitted by the Respondent. On this Point, the Appellants Counsel cited the case of OGOLO VS. FUBARA (2003) 11 NWLR (PT. 831) PG 231 SC @ PP. 265 – 266 PARA H – A.

The Appellants’ Counsel also argued that it is the contention of the Appellants that Exhibit A, which regularized the appointment of the Respondent, did not revoke Exhibit F which contained the conditions of service of the Respondent and urged the Court to read both documents together in determining the contractual dispute between the parties and also to determine whether the termination of the Respondent’s employment is valid or not considering the circumstances that led the 2nd Appellant to exercise the power of termination.

The Appellants’ Counsel argued that the trial Court discountenanced Exhibit F and took only Exhibit A into consideration while deciding on the validity of the termination of the Respondent’s employment.

The Appellant’s Counsel also argued that the reasons given by the Court was that there was no reference to Exhibit F in the letter of termination served on the Respondent as contained in Exhibit B as did Exhibit A.

The Appellants’ Counsel further argued that the trial Court held that there was a period of three-years gap between the execution of Exhibits A and Exhibit F and also, the 2nd Appellant did not indicate that it was acting for the 1st Appellant’s board in Exhibit B.

The Appellants’ Counsel further argued that the trial Court held that the 2nd Appellant, being a servant, cannot terminate the employment of another servant and that the ratification of the 2nd Appellant’s exercise of power of termination was not valid.

The Appellants’ Counsel argued that the failure of the trial Court to read both Exhibits A and F together is erroneous in law. He cited the case of BFI GROUP CORP. VS. B. P. E. (2012) 18 NWLR (PT. 1332) PG. 209 SC @ PP. 234 – 235 PARA H – A.

The Appellants’ Counsel argued that the conditions that regulated the employment of the Respondent were contained in Exhibit F while Exhibit A was the letter that regularized the said employment.

The Appellants’ Counsel further argued that while Exhibit A in one of its clauses provided for the power of termination of the Respondent’s employment, where he is found guilty of a criminal charge under the law or acts of misconduct, the circumstances that would give rise to the termination of the employment regularized by Exhibit A and how the power of termination of employment would be exercised are contained in Exhibit F.

The Appellant’s Counsel therefore submitted that the two documents are germane and ought to have been read together. On this point, he cited the case of UDEAGU VS. BENUE CEMENT CO. PLC (2006) 2 NWLR (PT. 965) PG. 600 CA @ PG. 628 PARA A – B.

The Appellants’ Counsel also argued that a communal reading of the two documents would reveal that the power to terminate the employment regularized by Exhibit A was conferred on the 1st Appellant’s board and the power could either be exercised by the board directly or through its principal officers.

The Appellant’s Counsel further argued that it was established during trial that the errant conducts of the Respondent, which the trial Court also deprecated in its judgment, warranted the exercise of the power of termination by the 2nd Appellant to save the precarious situation at the time and this was ratified by the 1st Appellant’s Board. Also, the clear wordings of Exhibit B are a pointer to the exercise of the power of termination on behalf of the 1st Appellant’s board.

The Appellants’ Counsel argued that the trial Court isolated Exhibits A and F in declaring that the termination of the Respondent’s employment is null and void. He further argued that this isolation also led the Court into ordering the payment of the Respondent’s outstanding salaries till his employment is properly terminated which is a grave error on the part of the trial Court.

The Appellants’ Counsel therefore submitted that the trial Court erred in law in its evaluation of Exhibits A and F tendered during trial by refusing to consider both documents and therefore call on this Court to re-evaluate the two exhibits and other documents tendered and admitted before the trial Court. On this Point, the Appellants’ Counsel cited the case of C. P. C. VS. OMBUGADU (2013) 18 NWLR (PT. 1385) PG. 66 SC @ PG. 133 PARA B – C.

The Appellants’ Counsel in addition, also submitted that the finding of the trial Court with respect to the status of the 2nd Appellant, which also flowed from its improper evaluation of evidence, is a grave error and has occasioned a miscarriage of justice.

The Appellants’ Counsel argued that the Appellants contended at the trial Court that all the principal officers of the 1st Appellant are empowered to apply sanctions on any erring staff as the circumstances may warrant and that this power was exercised by the 2nd Appellant when she terminated the employment of the Respondent and had the termination ratified by the 1st Appellant’s board. It is therefore erroneous for the trial Court to place the 2nd Appellant on the same footing with the Respondent on the basis that they are both servants of the 1st Appellant.

The Appellants’ Counsel submitted that the evaluation and findings of the trial Court are perverse and he cited the case of TIPPI VS. NOTANI (2011) 8 NWLR (PT. 1249) PG. 285 CA @ PP. 303 – 304 PARA H – C.

The Appellants’ Counsel further submitted that the perversity of the decision of the trial Court’s decision is reflected in its order nullifying the termination of the Respondent’s employment and ordering payment of his outstanding salaries until the employment is properly terminated.

The Appellants’ Counsel further argued that the reasons given by the Court was that there was no reference to Exhibit F in the letter of termination served on the Respondent as contained in Exhibit B as did Exhibit A; that Exhibit F was not specifically addressed to the Respondent as was Exhibit A; that there was a three-year gap between the execution of Exhibits A and F and also that the 2nd Appellant did not indicate that it was acting for the 1st Appellant’s Board in Exhibit B.

The Appellants’ counsel further argued that the Court also held that the 2nd Appellant being a servant cannot terminate the employment of another servant.

In Conclusion, the Appellants’ Counsel in urging this Court to resolve the two issues raised by him for determination in favour of the Appellants, cited the decision of the Supreme Court in the case of MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) PG. 217 SC @PP. 274 – 275 PARA H – B.

On the other hand, the Respondent filed its brief of argument dated 16th July, 2018 and filed on 19th May, 2018 settled by his Counsel, Mohammed Monguno, Esq. and raised Two (2) issues for determination. They are:
1. Whether the order of the trial Court, directing the Appellants to pay the outstanding salaries and entitlements from December 2003 till his appointment is properly terminated, is not erroneous and occasioned a miscarriage of Justice. (Ground 1 of the Notice of Appeal)
2. Whether the lower Court’s evaluation of documentary evidence tendered during trial and the findings made therefrom were not erroneous and occasioned a miscarriage of justice? (Ground 2 and 3 of the Notice of Appeal).

The Respondent’s Counsel argued the two Issues together.
The Respondent’s Counsel in response to the argument of the Appellants Counsel in paragraphs 4.2 – 4.4 of the Appellants brief of argument argued that there was no need for a reply to the Appellants Amended Statement of defence at the trial Court because no new issue was raised in the said statement of defence. That they were merely responding to facts already averred to in the Respondent’s Statement of claim and that there must be an end to litigation.

The Respondent’s Counsel argued that the Respondent had already made averments in paragraph 4, 14, 15 and 16 of his amended statement of claim to the effect that the 2nd Appellant is a servant of the 1st Appellant and that she had terminated the appointment of the Respondent. As such, the Appellants were also responding to those averments by stating that she had the power to terminate. The Respondent’s Counsel cited the case of UNITY BANK PLC VS. MR EDWARD BOUARI (2008) LPELR – 3411 (SC).

The Respondent’s Counsel also argued that the absence of a reply to the statement of defence does not mean an admission to the averments of the Appellants.

The Respondent’s Counsel further argued that a plain reading of paragraph B of Exhibit B shows that the 2nd Appellant neither made reference to acting on behalf of the board nor can ‘the school’ as used in that Paragraph, be construed to mean “the board”. On this Point, the Respondent’s Counsel cited the case of ARIJE & ORS VS. ARIJE & ANOR (2010) LPELR – 4566 (CA) PP 16 PARAS C – F.

The Respondent’s Counsel also argued that a servant cannot terminate the employment of another servant irrespective of the servant’s primus inter pares position as was the case in the termination of the Respondent’s employment and that the board alone can terminate his employment which was not done in this case. Therefore, the trial Court was right in stating that the Respondent’s termination was wrong and consequently declared void.

The Respondent’s Counsel argued that the trial Court was right in holding that the relevant conditions of service that will guide the employment of the Respondent is the one that is applicable at the time of termination and not employment which is Exhibit A in this case. On this point, the Respondent’s Counsel cited the case of TRUSTEES ECWA CHURCH VS. DELE ALL FWLR PT 298 @ 1265 (PP. 126 PARAS G – H). He also relied on the Judgment of the trial Court in Paragraph 5 of Page 295 of the Record of Appeal. The Respondent’s Counsel argued that the said documents referred to by the Appellants being Exhibit A and F were indeed properly evaluated as reference was made to them in the judgment of the trial Court and that the inference drawn from the evaluation was only contrary to that expected by the Appellants.

In trying to explain what the word evaluation meant, the Respondent’s Counsel made reference to the Black’s Law Dictionary and the case of ONWUKA VS. EDIALA (1989) 1 NWLR (PT. 96) 182 AT 208 PARAS D – E.

The Counsel to the Respondent argued that a close perusal of the Judgment of the trial Court revealed that the said Exhibit F was well considered and properly evaluated in line with the facts of the case and came to the rightful conclusion that the said Exhibit F did not and was not intended to regulate the Respondent’s employment and the fact that the trial Court did not come to the conclusion anticipated by the Appellants is not enough to describe the ruling as ‘perverse’.

The Respondent’s Counsel referred the Court to the case of OGIEMWONYI VS. STATE (2016) LPELR – 40292 (CA) and submitted that the said case follows his argument and captures the true facts of proceedings at the trial Court.

He further stated that the case stresses the fact that the Court of Appeal or any appellate Court, need not bother with the evaluation of evidence when same has been done sufficiently by the trial Court. He therefore, urged this Court to discountenance the arguments and inapplicable cases cited by the appellants and affirm the decision of the trial Court.

In conclusion, the Respondent’s Counsel urged this Court to discountenance this appeal and uphold the decision of the trial Court.

Having summarized the arguments of counsel, I wish to adopt the issues raised by the Appellants Counsel herein, and will address the said issues together as follows:-
1. Whether the order of the trial Judge, directing the Appellants to pay the Respondent’s outstanding salaries and entitlements from December, 2003 till his appointment is terminated, is not erroneous and occasioned a miscarriage of justice? (Ground One).
2. Whether the lower Court’s evaluation of documentary evidence tendered during the trial and the findings made therefrom were not erroneous and occasioned a miscarriage of justice? (Ground 2 & 3).

RESOLUTION OF ISSUES ONE AND TWO
Before addressing the issues raised by this Court and pronouncing on them as it affects the parties herein, it would be very important for me to examine the arguments of Counsel and also make my findings on same.

I would not shut my eyes to the fact that in Paragraphs 4.2 – 4.4 of the Appellants Brief of Argument, the Appellants Counsel argued that in their 2nd amended statement of defence, the Appellants averred that the functions of the 1st Appellant’s education board were carried out by the board directly or through its principal officers among whom is the 2nd Appellant.

The Appellants’ Counsel further averred that owing to the Respondent’s conducts, the employment of the Respondent was terminated by the 2nd Appellant in the exercise of powers exercisable by her and which termination was ratified by the 1st Appellant’s board.

The Appellants’ Counsel submitted, that all these facts were not denied by the Respondent as no reply was filed to the said Amended Statement of Defence.

I do not see the relevance of this argument to the issue raised before this Court but I will address same for all that it is worth. There is however, no need to dwell so much on the argument of counsel on this point. I will therefore, only concentrate on the Legal authority on this point.
The rule of practice is that where no counter claim is filed, a reply is generally unnecessary if it’s sole object is to deny allegations contained in the statement of defence.
The proper function of the reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raise issues of fact not arising out of the defence. In OBOT VS. CENTRAL BANK OF NIGERIA (1993) 8 NWLR (PT. 310) 140, per Niki Tobi, JSC (Pp. 45 – 46. paras. E – D) the Supreme Court held as follows:
“(i) In general, it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence. (ii) A reply to merely join issues is not permissible. If no reply is filed, all material facts alleged in the statement of defence are put in issue. (iii) The proper function of a reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raised issues of fact not arising out of the defence. Also, a reply is the proper place for meeting the defence by confession and avoidance. (iv) In order to allow a party to file a reply the trial Court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an Issue.” (Emphasis Mine). Apart from the fact that a Reply is not usually necessary as shown from the authority cited above, it is also worthy of mention, that pleadings are different from counter affidavit because once a counter affidavit is filed and no reply is filed to any new facts raised, those new facts raised is deemed admitted as affidavit in itself is evidence which needs no further proof.

It is very evident and clear from pages 220- 269 of the Record of Appeal, that the Respondent lead evidence in support of his claim in his pleadings both through documents pleaded and during examination in chief and cross-examination.

Based on the foregoing legal authorities, I hereby discountenance the argument of the Appellants counsel on this point.

The Appellants’ Counsel also argued that Exhibit A which regularized the appointment of the Respondent did not revoke Exhibit F which contained the conditions of service of the Respondent and urged this Court to read both documents together in determining the contractual dispute between the parties.

Even though I agree with the trial Court’s decision in discountenancing Exhibit F, I do so for a different reason. What are my reasons? Exhibit F contained the offer of provisional appointment dated 27th October, 1998, signed by the Principal, Rev. Sis. Chidebelu Nwigwe i.e. the 2nd Appellant and also contained the condition of service. While Exhibit A is a regularization of offer of permanent appointment dated 13th March, 2001 signed by the Education Secretary of the 1st Appellant.

In determining whether the Exhibits A and F should be read together, it would be quite intrusive for me to check out what the meaning of the word ‘provisional’ is.

‘The word ‘provisional’ is defined as temporary, preliminary, tentative. It is also defined as ‘provided for a present service or temporary necessity; adopted tentatively….’ See the case of ONAGORUWA VS. J. A. M. B. (2001) 10 NWLR (PT. 722) 742; per Fabiyi, JCA, also see JAMB VS. ORJI (2008)
2 NWLR (1072) 552 AT 568, PARA C. and the Black’s Law Dictionary.

From the above definition, it shows that the effect of the letter of provisional appointment issued by the 1st Appellant to the Respondent is that the said Exhibit F is temporary and ceases to exist upon the issuance of Exhibit A which connotes a permanent offer of employment per se.

It is therefore my considered view, that upon the issuance of Exhibit A, Exhibit F ceases to exist and it is therefore the only contract of employment subsisting at the time of the termination of the employment of the Respondent by the 2nd Appellant. I hereby discountenance the argument of the Appellant’s Counsel on this point.

On the argument of the Appellants Counsel that a communal reading of Exhibits A and F would reveal that the power to terminate the employment regularized by Exhibit A can be exercised by the board directly or through its principal officers among whom is the 2nd Appellant?

Since I have held earlier that Exhibit F ceases to exist upon the issuance of Exhibit A, I will only base my finding on this point upon Exhibit A. It is the trite position of the law that a document speaks for itself and it is the best evidence of its contents. See the case of AHMED VS. CENTRAL BANK OF NIGERIA (2013) 11 NWLR (PT. 1365) 352 AT 374 PARAGRAPHS A – C. Looking at Exhibit A, clause 5 and 6 clearly states as follows:
“5. The Education Board may at any time summarily terminate the appointment if you are found guilty of a criminal charge under the law or of any act(s) of misconduct which brings the Education Board or the school of operation into disrepute. In this case, payment of any benefits is at the discretion of the Board.
1. Outside of Section 5(above), the Education Board or yourself may terminate the appointment on the proviso of a month’s notice in writing or payment of a month’s salary in lieu of notice. (Voluntary termination of appointments by teachers in secondary schools may be only at the end of a term.)” (Emphasis Mine).

The above quoted portion of the said Exhibit A clearly shows that it is only the Education Board that can terminate the appointment of the Respondent in case of involuntary termination of appointment and in the case of voluntary termination of appointment, either the Education board or the Respondent may terminate the appointment.

This brings me to the question I would love to ask. Is the 2nd Appellant, the principal of the Regina Pacis Girl’s Secondary School a member of the Education Board? To answer this question, it is important to get the meaning of the word ‘Board’ and who constitutes the members of the education board in the case at hand.

In the case of ADENIYI VS. EJIGBO LOCAL GOVERNMENT (2013) LPELR – 22017 (CA), this Court reiterated as follows:
“The word ‘Board’ is a plain word and according to the Black’s Law Dictionary 8th Edition, is defined as “a group of persons having managerial, supervisory, or advisory powers (Board of Directors).” Per West, JCA (P. 32, paras. A – B)

The Appellants averred in Paragraph 44 of their 2nd amended statement of defence thus:
“The Defendants further pleads that the 2nd Defendant’s position as it relates to the entire claim by the Plaintiff in this action, stands exclusively in relation thereto in no other capacity but as an officer of the 1st Defendant responsible for the administration of the Regina Pacis School.” (Emphasis mine). DW5 who is the Secretary of the education board, during his cross-examination contained at page 265 of the Record of Appeal gave evidence as follows:
“We are about 18 members… There is the Chairman, secretary and members, there is no treasurer, no financial secretary, no PRO, we have principal of college, sister Nwigwe, Rev. Bro Okereke Rector of the seminary, Father Nwadike, Rev. Father Patrick Orowole, also some ladies Mrs Omana, Mrs Ugendem, Mrs Gabadi, Dr. Mrs. Ikegbunam C.I, Rev. Father S. Tumba, Head of Primary School, Sister Uzukwu, Sister P. Akeem, Sister Ukafo”. (Emphasis Mine).

The same DW5 in his evidence during cross-examination contained at page 267 of the Record of Appeal stated thus:
“The Principal knows their duties as agents of the board.”

From the above quoted, both from the pleadings of the Appellants and the evidence by DW5 above, the 2nd Appellant was in one breathe described as an officer of the 1st Appellant and in another breathe, as an agent of the 1st Appellant and in yet another, a member of the Board. Hmm!

Before I conclude on this point, it is important to examine the query issued to the Respondent. The said query was issued by the 2nd Appellant in the letter head of Regina Pacis Girl’s Secondary School and the letter of termination of appointment was also issued by the 2nd Appellant also in the letter head of Regina Pacis Girl’s Secondary School. Assuming that the 2nd Appellant can exercise disciplinary measure as an officer of the 1st Appellant as done through the query issued to the Respondent, same cannot be said as regard the issuance of the letter of termination as the mode of the issuance of same is clearly stated in Exhibit A which is the contract of employment at the time of the said termination of the contract of employment of the Respondent.

Unfortunately, no document was tendered before the Court to clearly show whether the 2nd Appellant is a member of the 1st Appellant’s education board. This leaves me to use Exhibit B and Exhibit A as the major determinant in deciding whether the 2nd Appellant is a member of the 1st Appellant’s education board and whether the termination done by the 2nd Appellant is validly done.

I agree with the argument of the Learned Counsel for the Respondent at Paragraph 4.10 of his brief of argument that a clear reading of Paragraph 7 of Exhibit B shows that the 2nd Appellant neither made reference to acting on behalf of the board, or can “school” as used in that paragraph be construed to mean “the board”.

It is important to note that Clause 5 and 6 of Exhibit A did not mention as well that the appointment of the Respondent can be terminated subject to ratification by the board, but it is clear that termination can only be by the board in case of involuntary termination and either by the board or Respondent in case of voluntary termination of appointment.

The Appellants Counsel has also argued in Paragraph 4.13 of his Brief of Argument that the trial Court erred in law in its evaluation of Exhibits A and F.

There would be no need to dwell more on this point as I have earlier examined the said Exhibits and found that the only document that the Court can look upon as evidencing the contract of employment is Exhibit A.

From my afore findings and evaluation of Exhibits F and Exhibits A, and my finding that Exhibit A is the only substantive contract of employment, it is clear that the appointment of the Respondent was wrongfully terminated and unlawful.

The two issues raised herein are hereby resolved in favour of the Respondents as follows:
Therefore, on the issue whether the order of the trial Judge, directing the Appellants to pay the Respondent’s outstanding salaries and entitlements from December, 2003 till his appointment is terminated, is not erroneous and occasioned a miscarriage of justice, I wish to state that this issue has become academic as I have already perused the document at Page 200 of the Record of Appeal which is a letter titled “summary termination of appointment” by the 1st Appellant and evidencing that the 1st Appellant had already complied with the order of the trial Court as regards the executory part of the Judgment. It is trite that the Court cannot be called to embark on academic exercise and no Court of law would act in vain. The general attitude of the Court is that they are loathe on making pronouncements on academic or hypothetical issues. See the case of NKWOCHA VS. GOV. ANAMBRA STATE (1984) 1 SCNLR 634 and OLADIPO VS. OYELAMI (1989) 5 NWLR (PT. 120). This issue is hereby resolved in favour of the Respondent.

Furthermore, based on my findings and evaluation of Exhibits F, A and B, the second issue is also resolved in favour of the Respondent.

I uphold the Judgment of the trial Court. The Appeal lacks merit and it is hereby dismissed. N250,000 is awarded as cost in favour of the Respondent against the Appellants.

STEPHEN JONAH ADAH, J.C.A.: I was availed the privilege of reading in draft the judgment just delivered by my learned brother Mohammed Baba Idris, JCA.

I am in total agreement with his reasoning and the conclusion in this appeal which I adopt as mine. The appeal lacks merit and I too do dismiss it. The judgment of the Lower Court in suit NO: FCT/HC/M/159/04 delivered on 21st June, 2006 is hereby affirmed. I abide by the order as to costs as made in the lead judgment.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

ANGA, ESQ., with him, A. ADEGBOYEGA, ESQ. and F. ALIYU, ESQ. For Appellant(s)

MONGUNU, ESQ., with him, C. OBISHANI, ESQ. and B. HEJHI, ESQ. For Respondent(s)