UMA v. KOFANA SECURITIES AND INVESTMENT LTD & ANOR (2021)

UMA v. KOFANA SECURITIES AND INVESTMENT LTD & ANOR

(2021)LCN/15785(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, June 07, 2021

CA/A/73/2019

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

IDIKA KALU UMA APPELANT(S)

And

1. KOFANA SECURITIES AND INVESTMENT LTD 2. UMANA OKON UMANA RESPONDENT(S)

RATIO

THE POSITION OF LAW ON A “TRAVERSE”

By the authority of Feirline Pharmaceutical Industries Ltd & Anor v. TrustAdJusters Nigeria Ltd CITATION (supra), it is clear that where a fact in a statement of claim is evasively traversed, there is an implied admission. See also the Supreme Court case of Meridien Trade Corporation Limited v. Metal Construction (W. A.) Limited (1998) S C 20 where Per Mohammed J. S.C. held thus:
“A traverse which is evasive amounts to an implied admission. Every allegation of fact made in 2. Statement of claim or counter-claim which the party on whom it is served does not intend to admit must be specifically traversed by film in his defence or defence to counter-claim, as the case may be, and a general denial of such allegations or a general Statement of non-admission of them is not sufficient traverse of them. PER IGE, J.C.A.

WHETHER OR NOT A LOWER COURT MUST PRONOUNCE ON ALL ISSUES SUBMITTED BY PARTIES BEFORE IT

The law needs no restatement that a lower Court or Tribunal has a bounden duty in judicial deliberation to examine and pronounce on all issues that may be submitted to it by parties in dispute before the Court or a Tribunal. The reason is not farfetched. It is to prevent failure of justice or a miscarriage of justice which amounts to denial of fair hearing within the intendment of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended unless it can be shown that the issue has been encapsulated or subsumed under another issue and the subject matter of the complaint in the appeal was actually dealt with by the Court complained against. See;
1. THIMNU V. UBN PLC & ORS (2013) LPELR – 22127 CA pages 20 – 21 per BADA, JCA.

WHETHER OR NOT A DEFENDANT IS EXPECTED TO DENY AN FACTS PLEADED BY THE CLAIMANT, WHICH THE DEFENDANT DOES NOT ADMIT
The settled position of the law is that a Defendant is expected to deny frontally and concisely any fact(s) pleaded by the claimant which he, the Defendant does not admit. There is no room for evasive or rigmarole denial of facts in averments contained in claimant’s statement of claim otherwise the Defendant will be taken to have admitted such undenied facts. See the case of:
T. LAWAL OWOSHO & ORS VS. MICHAEL ADEBODWALE DADA (1984) NSCC 568 at 576 per ANIAGOLU, JSC who said:
“But a plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly, either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarly within the knowledge of the plaintiff is taken to have admitted them.
The matter was put clearly by this Court in Messsrs. Lewis and Peat (N.R.I.) Ltd v E. A. Akiemien (1976) 7 S. C. 157; (1976) 1 All N. LR. (Pt. 1) 460 where Idigbe J.S.C., in giving reasons for the judgment of the Court, stated the principle at 465 to p. 466 thus:-
“When as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an ‘issue of fact’. We must observed, however, that in order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically, and he does not do this satisfactorily by pleading thus: ‘defendant is not in position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof’. As was held in Harris v Gamble (1987) 7 Ch. D. 877 a plea that ‘defendant puts plaintiff to proof’ amounts to insufficient denial, equally a plea that ‘defendant does not admit correctness (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v Tregent (1879) 12 Ch. D. 758.” PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court of Nigeria delivered on the 18th day of March, 2015 by Honourable Justice Q. A. Shogbola dismissing the claims of the Appellant as claimant before the lower Court.

The claimant now Appellant had by a complaint dated and filed on 20th November, 2013 claimed against the Respondents as Defendants in the said Court as follows:
i. An order directing the Defendant to release the two Toyota brand cars that the plaintiff used as his personal and official cars while he was the MD/CEO of Kofana Securities and Investments Limited.
ii. An order directing the Defendants to pay to the Plaintiff, full cash value of 5% of the registered shareholding of Kofana Securities and Investments Limited which belong to the Plaintiff.
iii. An order of this Court directing that the salary slashed from the Claimant from February, 2009 to the time of his forced resignation contrary to the terms of his employment be refunded to him, which is N17,200,000.00.
iv. An Order of this Court that the refund of the slashed salary be repaid at the interest of 15% for every month owed.
v. N20 Million as damages for the persecutions, harassments and intimidation the Plaintiff received from the Defendants
vi. N750,000 being expenses incurred with respect to the EFCC investigation, including expenditures in respect of the Port Harcourt office of the Defendant and the sum of N200,000.00 being the legal cost for engaging the services of a Legal Practitioners in the course of the EFCC investigation.
vii. A Declaration that the refusal to release the letter of acceptance of the claimants resignation is contrary to labour laws of the Federal Republic of Nigeria and other International instruments and threatens the economic and family rights of the claimant.
vii. An order of this Court mandating the 1st Defendant to issue the Claimant with his Acceptance of Resignation letter.
ix. The Cost of this suit being N5,000,000.00 dated this 20th day of November, 2013.”

The said complaint was accompanied with statement of claim consisting of 49 paragraphs and other front loaded documents. The Defendants now Respondents filed their statement of defence to the action on 8th April, 2014. The matter later proceeded to trial at the end of which the learned trial Judge gave considered judgment wherein he dismissed all the claims or relief sought by the Appellant.

Pursuant to the order of this Court granted on 17th October, 2018, time was extended for Appellant to appeal the aforesaid judgment of the National Industrial Court.

The Appellant has now appealed to this Court vide his NOTICE OF APPEAL filed on 31st day of October, 2018 containing seven (7) grounds which without their particulars are as follows:
“1. GROUND ONE
The learned trial Judge misdirected himself and denied the Appellant fair hearing when he failed to consider issues canvassed and facts placed before him by the claimant after holding thus:
“The key issue before the Court is whether the claimant has proved his case to be entitled to the two official cars. It is clear from the facts available to the Court that the claimant has not proved credible (sic) evidence to support his claim that executives in the financial industry are allowed to go away with their official cars. He claimed he was allowed to go with vehicles he had when in the employment of FCMB would have thought evidence to this effect would have been produced to the Court. Furthermore, the assertion is not buttress (sic) by citing rule or instance where Executives were allowed to go away with their official cars. Furthermore, the claimant did not tender his letter of employment or referred to the provisions of condition of service of the defendant that allows him to go away with two vehicles no matter the state of condition of the two vehicles… There is agreement with the defendant that provides the (sic) he could go away with the two official vehicles: (Underlining Ours for Emphasis).
2. The learned trial Judge misdirected himself and therefore denied the Appellant fair hearing when he held that:
“The claimant contention is that the defendant slashed claimant’s salary without just passing a resolution since they failed to produce the said resolution which is a public document. That is illegal and contrary to law in page 6.4 of the claimants final address, the claimant narrated how he came to sum of N17,200.000.00 (Seventeen Million, Two Hundred Thousand Naira) only.” It is not in dispute that the defendant took a decision to slash salaries from the pleadings, submissions, oral evidence, witness statement in oath, the claimant did not state how he arrived at N17,200,000.00 (Seventeen Million, Two Hundred Thousand Naira) only. The onus is on the claimant who will fail, if he tells to produce evidence on how he arrived at the figure. The Court would not go into the realm of speculation.” (Underlining Ours for Emphasis).”

GROUND THREE
The learned trial Judge erred in law when he descended into the arena of conflict and held thus “It is in the interest of the claimant to hand over all the 1st Defendant properties in his possession, until this is done, the Court cannot compel the 1st defendant to release the acceptance of resignation letter.
GROUND FOUR
The learned trial Judge erred in law, when he failed to determine the success or otherwise of relief (vii) sought by the Appellant.
GROUND FIVE
The learned trial Judge erred in law, when he failed to determine the success or otherwise of relief (v) sought by the Appellant.
GROUND SIX
The learned trial Judge erred in law and thereby denied the Appellant fair hearing when he failed to decide one way or the other on the issue of traverse raised by the Appellant.
GROUND SEVEN
Error in Law
The judgment is against the weight of evidence.”

The Appellant’s brief of argument was dated 28th March, 2019 and filed on 3rd April, 2019. It was deemed properly filed on 30th April, 2020 while the Respondents’ brief of argument was dated and filed the 20th day of May, 2020. The Appellant’s reply brief of argument was dated 27th May, 2020 and was filed on 28th May, 2020.

The appeal was heard on 2nd March, 2021 when learned Counsel to the parties adopted their respective brief of argument.

The learned Counsel to the Appellant, IKORO N. A. IKORO, Esq., who settled the Appellant’s brief of argument distilled four issues for determination as follows:
“a. Whether the learned trial Judge did not deny the Appellant his right to fair hearing when he failed to determine the issue of traverse which was vigorously argued by the Appellant in his final address (Distilled from ground 6)
b. Whether in the circumstances of this case, the learned trial Judge did not deny the Appellant his right to fair hearing when she failed to consider both oral and documentary evidence placed before him to prove the case of the Appellant. (Distilled from grounds 1, 2 and 7).
c. Whether the failure of the learned trial Judge to determine the success or otherwise of Relief (vii) which dealt with breach of family and economic right and Relief (v) were not a denial of the right to fair hearing of the Appellant to determine the right and obligation of the parties in open Court and in fair manner. (Distilled from grounds 4 and5).
d. Whether the learned trial Judge did not err in law when he held that the release of acceptance of resignation of the Appellant was contingent on the release of properties of the 1st Respondent held by him, when there was no counter-claim or argument with regard to such issue in the Respondent’s final address (Distilled from ground 3).”

The learned Counsel to the Respondents OLASOJI O. OLOWOLAFE Esq., also nominated four issues for determination as follows:
“ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE DID NOT DETERMINE THE ISSUE OF TRAVERSE IN THE CASE. (GROUND 6)

ISSUE 2
WHETHER THE LEARNED TRIAL JUDGE DID NOT CONSIDER THE ORAL AND DOCUMENTARY EVIDENCE PLACED BEFORE HIM BY THE APPELLANT AND THEREBY IN ANY WAY DENY THE APPELLANT OF HIS RIGHT TO FAIR HEARING (GROUNDS 1) 2 AND 7)
ISSUE 3
WHETHER RELIEFS VII AND V HAD NOT BEEN SUBSUMED IN OTHER RELIEFS AND WHETHER THE DISMISSAL OF THE CASE OF THE APPELLANT IN ITS TOTALITY HAD NOT DETERMINED THE ESSENCE OF THE RELIEFS (GROUNDS 4 AND 5)
ISSUE 4
WHETHER THE LEARNED TRIAL JUDGE DESCENDED TO THE ARENA OF CONFLICT WHEN HE REFUSED THE DECLARATION FOR THE ACCEPTANCE OF THE APPELLANT’S RESIGNATION ON THE GROUND THAT IT WOULD BE IN INTEREST OF THE APPELLANT TO RETURN THE 1ST RESPONDENT’S PROPERTIES IN HIS POSSESSION BEFORE SUCH A CLAIM COULD BE MAINTAINED (GROUND 3)

The appeal can be determined on the four issues formulated by the Appellant. I will take issue 1 and 2 together:
a. Whether the learned trial Judge did not deny the Appellant his right to fair hearing when he failed to determine the issue of traverse which was vigorously argued by the Appellant in his final address (Distilled from Ground 6)
b. Whether in the circumstances of this case, the learned trial Judge did not deny the Appellant his right to fair hearing when she failed to consider both oral and documentary evidence placed before him to prove the case of the Appellant. (Distilled from Grounds 1, 2 and 7).

According to the learned Counsel to the Appellant, issue 1 stems from Section 36(1) of the Constitution of Nigeria 1999 as amended. The Appellant stated that the trial Court failed to consider what the learned Counsel called “the legal question of MERE DENIAL and GENERAL TRAVERSE” which he said was duly argued before the lower Court but that the lower Court failed to determine the issue. According to him denial and traverse are within the contemplation of Section 36(1) of the extant Constitution for purposes of “any question” He stated that the argument on traverse was used to support all the reliefs sought and the trial Court according to learned Counsel to the Appellant said the trial Judge actually noted that parties argued on the traverse at page 421 of the record of appeal. That failure to determine the issue was clearly a denial of the right to fair hearing of the Appellant. He said further that failure to consider a core issue of law by a Court without valid reason amount to a denial of fair hearing. That the fundamental nature of traverse is that a general traverse is deemed to mean issue has not been joined on the said fact and the Court cannot require the Appellant to prove what the law has exempted him from proving. He relied on the following:
1. IROLO V. UKA (2002) 14 NWLR (PT. 786) 195 at 225 D – F.
2. TAR & ORS V. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR – 44216 CA PER SANKEY, JCA.
3. FAGBERO V. AROBADI (2006) 7 NWLR (PART 978) 172.

The learned Counsel to the Appellant is of the view that the lower Court has failed to consider all points of law canvassed by the parties and it was clear that the lower Court judgment lacked core ingredient of a valid judgment and it is thus perverse same judgment having denied the party fair hearing relying on AYINDE ADEYEMO V. OKUNOLA AROKOPO (1988) SCNJ 1 at 15 and INEC V. DPP & ORS (2014) LPELR – 22809 CA 42 – 43 per LOKULO – SODIPE, JCA. He urged the Court to resolve issue 1 in Appellant’s favour.

On issue 2, the learned Counsel to the Appellant directed the Court to pages 422 – 423 of the record to submit that notwithstanding the fact that the claimant testified as to communications he had with 2nd Defendant/Respondent personally before he let FCMB and in the absence of any testimony by 2nd Respondent and during cross-examination, the lower Court found that claimant did not tender his letter of employment or referred to the provision of condition of service of the defendant that allows him to go away with the two vehicles. That any communication between the Appellant and the 2nd Respondent could only be answered by the 2nd Respondent and not by someone who never spoke with him. He drew attention to paragraphs 5.31 – 5.39 of the claimant’s Final Address at pages 346 – 348 of the record. He reproduced the said address on pages 7 – 10 of the Appellant’s Brief of Argument.

He submitted that despite the crucial argument that evidence of DW1 was hearsay with regard to pre-incorporation agreement between the Appellant and 2nd Respondent, the Learned judge did not consider same before ruling on the matter. He also listed what he considered to be the failure of the trial Judge to mention or consider some pieces of evidence listed as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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a. “The learned trial Judge failed to evaluate the testimony of the claimant (both oral and documentary) before the Court which stated that the Respondents failed to confirm the appointment of any staff of the 1st Respondent.

b. The learned trial Judge failed to evaluate the uncontroverted fact laid by Appellant that he started working for the 1st Respondent before it was registered as a corporation, and that the Appellant herein was the first employee of the company.
c. The uncontroverted evidence before the trial Court was that the Appellant was at no time offered an employment letter, but was rather made offers by the 2nd Respondent to come and work for him under oral agreements.
d. That no admissible evidence was laid to contradict the terms of offer made by the 2nd Respondent to the Appellant and the testimony of the DW1 with regard to oral communication between the Appellant and 2nd Respondent amounts to hearsay evidence.
e. That the Trial Judge suo motu made a case for the Respondents that no case was made by the Appellant, while he refused to consider whether or not the evidence of DW1 was hearsay as regards the oral offer to the Appellant.

f. The facts in issue before the Court was not the practice in the financial sector with regard to vehicle of directors but on the agreement between the Appellant and the 2nd Respondent which was oral.

g. That the case of the claimant at the Trial Court was about a personal car given to him before the company was registered and an official car and was at no time about two official cars.
h. That, the Appellant testified that he left his former employment after he received guarantee that his terms would be met.
i. That DW1 admitted he has never met 2nd Defendant.”

That the learned trial Judge made matter worse by making favourable finding to the Appellant and suo motu decided that no evidence was led to the finding she had already made. He referred this Court to pages 424 – 425 of the record.

HE submitted that the finding of the learned trial Judge clearly breached Appellant’s right to fair hearing as the learned trial judge, according to the Appellant’s took two contrasting positions. That all these amount to lack of proper evaluation which went to the root of Section 36 of the Constitution of the Federal Republic of Nigeria relying on the cases of:
1. ONYERO & ANOR V. NWADIKE (2011) LPELR 8147 SC.
2. MORAH V. OKWUANYANGA (1990) 1 NWLR (PART 125) 225 at 235 G – H per UWAIFO, JCA.
3. YUSUF & ORS VS. AKANDE & ORS (2011) LPEPR – 5114 CA P 22 23 per FASANMI, JCA.

The learned Counsel submitted that the trial Court also failed to consider Exhibits PW1 – PW1 which were bundles of documentary evidence before the lower Court to the learned Counsel this is a complete denial of fair hearing. He urged the Court to resolve issue 2 in Appellant’s favour.

Responding under issue 1, the learned Counsel to the Respondents OLASOJI O. OKOWOLAFE Esq., stated that allegation of breach of fair hearing is not a magic wand that parties may just wave but must be considered within the prisms of the case of the parties. That issue of fair hearing is not a cut and paste principle of law which the parties can, in the abstract deploy for their comfort and convenience as the Appellant has sought to do in this case. According to him, the principle cannot be applied outside the facts of the case before the Court. He relied on the cases of:
1. ORUGBO V. UNA (2002) 16 NWLR (PART 792) 175.
2. APAURA V. LAGOS ISLAND LOCAL GOVERNMENT (2000) 17 NWLR (PT 1007).
3. AGBETU & ANOR V. AKINBOYO & ANOR (2012) LPELR – 9749 CA

On what is a “traverse”, he relied on the case of IGBINOVIA V. OKOMU OIL PALM PLC (2002) 17 NWLR (PT 796) 386 to submit that it is a Defendant’s denial of a fact or facts pleaded in the pleadings of the plaintiff. He stated that whether there had been traverse of a fact or facts is a matter of fact deductible from the pleadings. He submitted that the issue relating to whether there was traverse or not of the Plaintiffs pleading is of no substance in this appeal because the learned trial Judge, according to him considered explicitly the state of pleadings at page 421 of the record of appeal. That it was after the learned trial Judge considered the state of pleadings that he proceeded to decide whether the Appellant discharged the burden or onus placed upon him. That the trial Judge could not have come to a decision without his having considered the issue of traverse of pleadings. He relied on the case of OSAFILE V. ODI (1994) 2 NWLR (PT. 325) 125 at 137 -138. He agreed that the Appellant made a heavy weather of what he regarded as “this simple issue which ordinarily discernible from the state of pleadings…” which he said the learned trial Judge fully considered. He submitted that address of a learned Counsel is persuasive and not binding on the Court below. That no matter the industry put into or brilliance exhibited in an address of Counsel, it cannot make up for absence of evidence to prove or demolish a case, relying on the case of OGUNYOMBO V. OKOYA (2020) 16 NWLR (PT.793) 224 at 255 and ANDREW VS. INEC (2018) 9 NWLR (PT. 1625) 507 at 566.

That the fact that the Court did not make any pronouncement on the arguments of the Appellant’s learned Counsel on the issue of traverse meant that the argument was not helpful to the Court and same was rightly ignored. He submitted that this cannot constitute a breach of the Appellant’s right to fair hearing. That the lower Court did not breach the Appellant’s right to fair hearing in the way and matter the suit was decided. He urged the Court to resolve issue 1 in Respondent’s favour.

On Issue 2 as to lack of evaluation of oral and documentary evidence placed before lower Court and whether it was not a breach of Appellant’s right to fair hearing, learned Counsel to the Respondent stated that the argument of Appellant is both against the evaluation of evidence as well as credibility of witness. He submitted that where issue has to do with assessments of evidence of witnesses Appellate Court will rather leave that to the trial Court who had opportunity of assessing the demeanour of the witness or credibility as the lower Court was a vantage position at assessing the witnesses. He urged this Court not to interfere with the lower Court’s findings. He relied on the cases of IDAGU V STATE (2018) LPELR 44343 SC and OGU V. EKWEREMADU (2006) 1 NWLR (PT.969) 255. He urged the Court to revisit the evidence of DW1. He stated that the onus is on Appellant under Section 135 of the Evidence Act to prove his claims. He relied on the cases of ISEEOGBEKUN V. ADELAKUN (2013) 2 NWLR (PART 1337) 140 at 165 G- H and NGIGE V. INEC (2015) 1 NWLR (PART 1440) 281 at 313 F – H.

He opined that Appellant’s case stood in a special genre of its own and that it is difficult for one to discern whether it is a case of wrongful termination or just a case of tort of intimidation and or harassment. He presumed the case or a part of it as a case of wrongful termination of employment because according to him the Appellant voluntarily resigned his employment with the 1st Respondent.

That it is/was imperative for Appellant to place before the lower Court the terms and conditions of his employment in order to prove that his employers were in treaty. He relied on the case of WAEC V. OSHIONEBO (2006) 12 NWLR (PT 994) 258 and NDLEA V. ZAKARI (2015) 7 NWLR (PART 1458) 361 at 376.

That there was nothing before the lower Court to show the terms of contract of service that the Appellant sought to enforce and that this was held to be fatal to his case. That the case of Appellant was based on mere conjectures leaving nothing for Respondent to debunk.

That the scale of justice on the preponderance of evidence did not shift in favour of Appellant in accordance with principles laid down in MOGAJI V. ODOFIN (1978) 3 SC 91 and BUHAR V. INEC (2008) 19 NWLR (PART 1120) 246 and Section 137(1),(2) of Evidence Act on preponderance of evidence and balance of probability. He submitted that Appellant’s right to fair hearing was not breached. On relief one which Appellants claimed concerning order he sought directing Respondent to return two official cars to him, learned Counsel submitted that the Appellant did not produce any contractual terms to that effect. That the Appellant was relying on discussion he had with 2nd Respondent which learned Counsel said had been denied leaving the Appellant to prove his case in accordance with his pleading. He relied on the case of AKINGOSILE VS. IJOSE (1960) SCNLR 447 at 453.

That it is not for the 2nd Respondent to assist the Appellant to prove his case.

On pre-incorporated contract, learned Counsel to the Respondents submitted that under common law, the promoters cannot enter into a contract to bind a company after incorporation. He conceded however that under Companies and Allied Matters Act 1990 (“CAMA”) promoters of a company can commit it to contractual obligations made before incorporation. He relied on Section 72 of CAMA and the case of S. G. F. VS. SGTB (NIG) LTD (1997) NWLR (PART 497) 8 at 25 – 26.

That if such contract existed between the Appellant and 1st Respondent, the only way to prove it, is for the Appellant to show that 1st Respondent had ratified the contractual terms after its formation. That any purported agreement in that behalf between Appellant and 2nd Respondent had no legal effect.

On the allegation of 5% ownership of shares of 1st Respondent by Appellant, the Respondents submitted that there is no evidence of contractual obligation in that behalf between the parties and that Appellant failed to prove ownership of the said shares or that he was assigned the share as part of his employment contract.

That failure to so prove means that disputes relating to shares ought to have been ventilated in the Federal High Court. He relied on the case of WESTERN STEEL WORKERS LTD V. IRON & STEEL WORKERS UNION (1986) 3 NWLR (PT 30) 617 to further submit that lower Court has no jurisdiction over the claims of relating to shares.

On the claims for deductions from salaries of Appellant from February 2009 to the time of alleged forced resignation of Appellant, the learned Counsel to the Respondent submitted that since the Appellant was the Head of the Management that decided to slash salaries rather than to retrench the Appellant was stopped from going back on the issue having waived his right. That he cannot renege on the arrangement. He relied on the case of ARIORI V. ELEMO (1983) 1 SCNLR 1 and AUTO IMPORT & EXPORT LTD VS ADEBAYO (2005) 19 NWLR (PART 959) 44.

On the 15% interest claimed on the slashed salaries which Respondents said was arbitrary, the Respondents relied on earlier submission that Appellant has waived his right to claim such interest since the principal claim relied upon cannot be sustained. He relied on the case of EAGLE SUPER PACKS (NIG) LTD VS ABC PLC (2006) 17 NWLR (PART 1013) 20 at 57.

That in any event, interest must be fixed either by law or by trade custom and practice and practice and that in both cases interest must be specifically pleaded and strictly proved. He relied on the case of AGHRUKA V. FBN LTD (2010) 3 NWLR (PT. 1182) 465 at 481.

On claim of Appellant for N20,000,000.00 as damages for persecution, harassment and intimidation, the learned Counsel to the Respondents stated that no shred of credible evidence was led on the claim. That he failed to give any particulars of damages suffered. That damages are not awarded as largesse or out of sympathy of extraneous consideration but rather awarded on legal evidence adduced for the establishment of an actionable wrong or injury. He relied on the case of BRIG GEN. ADEKUNLE VS. ROCKVIEW HOTEL LTD (2004) 1 NWLR (PART 853) 161 at 175 – 176 H – B. That in this case, the Appellant did not adduce any evidence to establish any actionable wrong for which the award and interest would be made.

On claim for N950,000 as money spent at EFCC by Appellant, the learned Counsel to the Respondents stated that the Respondents are not liable because the Appellant was being investigated in his personal capacity and that it was EFCC affair that led the board to suspend the Appellant. That there is no such contract between the Appellant and Respondents.

He urged this Court to note that Appellant was claiming for declaratory reliefs which cannot be granted on admission or default. That the Appellant did not make any case for the declaratory claims or reliefs. He relied on the case of BELLO V. EWEKA (1981) 1 SC 101 at 10 and ABDULLAHI V. MILAD, KADUNA STATE (2004) 5 NWLR (PAR 866) 232 at 252.

That on all the reliefs, the Appellant did not prove any entitlement to the reliefs sought and as such there cannot be a breach of fair hearing on the ground of non-consideration of Appellant’s oral and documentary evidence. That the oral and documentary evidence aforesaid is too flippant to substantiate Appellant’s case.

He urged the Court to resolve issue 2 in Respondents’ favour.

ISSUES 3 AND 4
Under issue 3, the learned Counsel to the Appellant submitted that once a relief sought by a party is within the jurisdictional competence of a Court, the Court must decide on the relief one way or the other, having regard to the powers conferred on the Court and statute to settle issues. That failure on the part of the trial Court to resolve the issue is a denial of fair hearing under Section 36(1) of the Constitution.

He submitted that the lower Court has denied the Appellant his right and obligation when he failed to determine reliefs (v) and (vii) sought by the lower Court. He urged the Court to resolve issue 3 in Appellant’s favour.

On issue 4 as to whether release of acceptance of resignation of Appellant is contingent upon Appellant releasing or returning any properties of Respondents in his possession when there was no counter-claim by Respondents for any properties of theirs in Appellant’s possession the learned Appellant’s Counsel relied on the holding of trial Court on pages 425 – 426 of the record to submit that Respondents did not plead its properties in Appellant’s possession and that even if 1st Respondent did, there was no counter-claim on the return.

According to him, the most bizarre part of the judgment is about who is to supervise the return of the properties which the trial Court said it is a condition precedent to the grant of relief viii and which learned Counsel to the Appellant said the lower Court raised suo motu without invitation to parties to address him on it.

The Appellant’s learned Counsel accused the lower Court of descending into the arena and granted a relief not sought for by the 1st Respondent who did not counter-claim thereby infringed on nemo judex in causa sua submitting that a Court has no power to grant reliefs not sought by a party.
He relied on the cases of:-
1. AGBEDAVIES V LSDPC & ANOR (2011) LPELR – 3653 (CA) P. 34 per DANJUMA, JCA;
2. ODOFIN & ANOR V AGU & ANOR (PART 229) 350 per KARIBI-WHYTE, JSC.

That a person cannot be a Judge in his own cause relying on ORUGBO V UNA (2002) 9 – 10 SC 61 per NIKI TOBI, JSC.

He urged this Court to allow the appeal and set aside the judgment of the National Industrial Court delivered on 18/3/2015 in Suit No. NICN/ABJ/309/14.

In response to issue 3, the learned Counsel to the Respondent drew attention to the fact that Relief (v) is for the sum of N20 Million for damages while Relief (vii) is for a declaration that refusal of Respondents to accept the resignation of the Appellant constituted infraction of the Nigerian Labour Laws, International Instruments and “threatens the economic and family rights” of the Appellant. He informed the Court that the claims have been addressed under issue 2.

He submitted that a case can be decided on more than one issue and it does not constitute a denial of fair hearing or occasion a miscarriage of justice merely because a trial Court or an appellate Court did not consider issue or issues in deciding a whole case relying on the case of:-
1. FEDERAL MINISTRY OF HEALTH & ANOR V COMET SHIPPING AGENCIES LTD (2009) 9 NWLR (PT. 1145) 193 AT 222;
2. WILSON V OSHIN (2000) 9 NWLR (PART 673) 442 AT 462;
3. ANYADUBA V NIG. RENOWNED TRADING CO. LTD (1992) 5 NWLR (PT. 243) 535;
4. OKONJI V NJOKANMA (1991) 7 NWLR (PT. 202) 131.

He submitted that the decision of lower Court dismissing Appellant’s case in its totality has taken care of what he called “case of an Appellant’s in its totality” and that all the negligible issues raised for consideration would not have changed the face of the case of the Appellant.

On issue 4 as to whether the learned trial Judge descended to arena of conflict when he held that before Appellant could be entitled to order for the acceptance of his resignation letter he must first of all return the Respondents properties in his possession. The learned Counsel to the Respondent started off by saying that ground 3 from which the issue was distilled is invalid on the ground that the ground was based on obiter dictum or statement made by the way by lower Court.

I will not bother myself entertaining argument on this aspect of the Respondent’s submission as there was no motion filed by the Respondent seeking to have the said ground of appeal struck out or to be adjudged as incompetent. All submissions relating to the invalidity of ground 3 of the Appellant notice of appeal are hereby discountenanced.
In any event, the said ground of appeal is valid against ratio decidendi of the judgment appealed against. Any ground of appeal which challenges decision or an aspect of the decision of a Court the ground is competent.

Arguing the merit of issue 4, the learned Counsel to the Respondent submitted that the learned trial Judge did not step into arena of conflict nor make a case for any of the parties at the detriment of the case of the Appellant or at all. That the only time a Judge could be guilty of such allegation is when the trial Court raises an issue which did not exist in litigation or in contest between the parties and decides it in favour of one of the parties in a manner to defeat the case of one of the parties. He relied on the cases of EFCC V. CHIDOLUE (2019) 2 NWLR (PT 1657) 442 and AKEREDOLU VS ABRAHAM (2018) 10 NWLR (PT 1628) 510.

That the issue decided upon by the lower Court was not raised suo motu and that it was Appellant that raised it and it was responded to by the Respondents. That it was because the decision on it did not favour Appellant that brought about issue 4 and the unfounded allegation by the Appellant.

That the allegation of the Appellant is not in tanderm which what the law will regard as descent into the arena. That the allegation of the Appellant has no substance and does not impugn on the neutrality and impartiality of lower Court. He relied on the cases of KARIM V. NIGERIAN ARMY (2002) 4 NWLR (PART 758) 716 at 735 and SANMI VS. STATE (2019) 13 NWLR (PT. 1690) 551 at 581.

He urged the Court to decide all issues in favour of the Respondents against the Appellant. He also urged this Court to dismiss the appeal with what he described as “with crushing cost.”

In his reply brief, the learned Counsel to the Appellant urged the Court to discountenance the argument of the Respondent to the effect that a lower Court is not bound to consider an issue as raised by the party. That a general traverse is as good as an admission of claimant’s averment. He also urged the Court to discountenance argument of Respondent urging this Court to make a pronouncement of an issue raised by claimant means that the argument of claimant on the issue was not helpful to the Court and that Court rightfully ignored same. Appellant’s learned Counsel urged this Court to discountenance the submissions of the Respondent on issue 1. He relied on the cases of FAYEMI V ONI (2010) 17 NWLR (PT. 1222) 326 AT 295 B – D and ONOVO & ORS V MBA & ORS (2014) 14 NWLR (PART 1427) 391 AT 424 A – F.

On the argument of Respondent under issue 2 wherein the Respondent learned Counsel contended that the findings of lower Court on ownership of 5% share claimed by Appellant as having nothing to do with the Appellant’s employment, Appellant learned Counsel urged the Court to discard the argument because the lower Court according to him found that the shares belonged to the Appellant and that the Respondent did not appeal against the judgment of lower Court. He also opined that lower Court had jurisdiction to deal with the issue relating to the shares under Section 254(1) (a) and (f) of the 1999 Constitution as amended. He relied on the case of CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) LPELR – 827 (SC) 41 and PDP V ORANEZI (2017) LPELR 43471 (SC).

All other issues raised and submitted upon in the Appellant’s reply are a rehash of the main brief of Appellant.

RESOLUTION OF ISSUES
The bone of contention under issue 1 is the alleged failure of the lower Court to make specific finding on the submissions of Appellants at the lower Court to the effect that there was lack of proper traverse of the Appellant’s pleadings by the Respondent as Defendant at the lower Court.

As can be gleaned from the Appellant’s submission at the lower Court, what he contended in the behalf could be found on page 344 of the record wherein in his final address the claimant’s learned Counsel argued in paragraph 5.10 and 5.20 (sic) thus:
“5.10 The claimant will humbly use this issue to address facts before this Honourable Court in order to determine the state of pleadings and admissible evidence before Your Lordship and thereafter reply to the issue framed by the Defendant.
5.20 The following facts are not in contention
a. Facts stated in paragraphs 1, 2 and 19 of the statement of claim are not in contention.
b. The Defendants also do not deny that the claimant is an employee of the 1st Defendant, in fact in paragraph 13 of the statement of defence, the Defendants admitted that what the claimant stated in paragraphs 17, 18, 20 and 21 were expected of him as a paid employee. Therefore, paragraphs 17, 18, 20 and 21 are deemed admitted as they have not been specifically denied. See Fairfine Pharmaceutical Industries Ltd & Anor v. Trust Adjusters Nigeria Ltd CITATION: (supra)
c. Paragraph 3 of the statement of defence did not answer whether or not the 2nd Defendant is the owner and alter ego of the 1st Defendant, this makes the denial of paragraph 3 of the statement of claim evasive. The word “EVASIVE” has been defined by Collins Dictionary & Thesaurus (2nd Edition, latest Reprint 2007) page 405 as:
“tending or seeking to evade not straightforward 2. avoiding of seeking to avoid trouble or difficulties. 3. hard to catch or obtain; elusive.”
The Defendants were clearly elusive and chose to answer 2 different point than the one pleaded by the claimant. The Supreme Court has discourages this type of pleading in Longe v. FBN Plc (2010) 2-3 SC (Pt 111) 61 at 78 – 79 paras, 35 Per- Oguntade JSC held thus: “It is a Plaintiff who by his statement of claim primary nominates the issues to be tried in a suit and on which he relies to have judgment of the Court. For a Defendant, it is only necessary to resist the Plaintiff’s claims on the fact pleaded. It is not for the Defendant to set up facts which would convey that it is not just setting up a defence to the Plaintiff’s suit but setting up a new case of his own. He is only permitted to do this when he is setting a counter-claim. The approach of the Defendant/Respondent in the manner it crafted its statement of defence needlessly made the matter complex and unwieldy.
By the authority of Feirline Pharmaceutical Industries Ltd & Anor v. TrustAdJusters Nigeria Ltd CITATION (supra), it is clear that where a fact in a statement of claim is evasively traversed, there is an implied admission. See also the Supreme Court case of Meridien Trade Corporation Limited v. Metal Construction (W. A.) Limited (1998) S C 20 where Per Mohammed J. S.C. held thus:
“A traverse which is evasive amounts to an implied admission. Every allegation of fact made in 2. Statement of claim or counter-claim which the party on whom it is served does not intend to admit must be specifically traversed by film in his defence or defence to counter-claim, as the case may be, and a general denial of such allegations or a general Statement of non-admission of them is not sufficient traverse of them.
d. Paragraph 14 of the statement of defence which states that the averments in 22 to 23 “only exists in the mind of the claimant” is not a specific traverse, but an evasive traverse which amounts to an admission. See Famine Pharmaceutical Industries Ltd & Anor v. Trust Adjusters Nigeria Ltd CITATION: (supra), and the Supreme Court authority of Cameroon Airlines v. Otutuizu (2011) 1 – 2 SC (Pt.lll) 200 at 222 – 22;3 at pars 25 – 5 Per Rhodes-Vivour JSC, in his leading judgment held thus:
“On the close of pleadings material! facts are averred by the Plaintiff and denied by the Defendant, that the Defendant will put the Plaintiff to the strictest proof (as averred in Paragraph 6 of the further amended statement of defence) is bad. There must be a clear denial or non-admission.” The Defendant states that the averment in paragraph 18 of the Statement of Defence is evasive as it does not address the purpose of the paragraph. We will humbly address the intendment of the said paragraph 25 and 26 in the process of establishing whether the board actually slashed salaries as an alternative to staff rationalization. Guided by the fact that the said paragraphs are relevant to the facts in issue and also guided by the facts that issues have been joined on them, it is deemed that failure or neglect to respond to the said paragraphs amounts to an admission.
f. Paragraph 22 of the statement of defence fails the test of a specific traverse as it only states that: “The Defendants deny paragraph 43 of the statement of claim” instead of going ahead to deny specifically That there was no harassment or intimidation the Defendants rather asked further particulars. This is an evasive traverse and is therefore deemed as an admission. If it desperately needed further particulars, it should have done so by leave of Court. However out of the abundance of our heart, we provided more particulars in our reply.
g. This Honourable Court should note that at no point in the pleadings has the issue of who brought the claimant to work for the 1st Defendant been disputed. What has been disputed was what transpired in the negotiations to bring the claimant to work for the Defendant.”

The Appellant had complained that lower Court’s alleged failure contravenes Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended in that he was denied right to fair hearing rendering the judgment of lower Court perverse and liable to be set aside.

The law needs no restatement that a lower Court or Tribunal has a bounden duty in judicial deliberation to examine and pronounce on all issues that may be submitted to it by parties in dispute before the Court or a Tribunal. The reason is not farfetched. It is to prevent failure of justice or a miscarriage of justice which amounts to denial of fair hearing within the intendment of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended unless it can be shown that the issue has been encapsulated or subsumed under another issue and the subject matter of the complaint in the appeal was actually dealt with by the Court complained against. See;
1. THIMNU V. UBN PLC & ORS (2013) LPELR – 22127 CA pages 20 – 21 per BADA, JCA.

2. ABIODUN V. CJ KWARA STATE (2007) 18 NWLR (PART 1065) 109 at 152 per OGUNWUMIJU, JCA (Now JSC)
3. CHIEF BROWN UZUDA & ORS V. MR. EZEKIEL EBIGAH & ORS (2009) 15 NWLR (PART 1163) 1 at 17 B – C per CHUKWUMA LENEH, JSC and pages 21 F – H to 22 A – E per MUNTAKA – COOMMASSIE, JSC who said:-
“With due respect, I have carefully gone through the judgment of the lower Court and I found as submitted by the learned counsel to the appellants that neither case put forward by the appellant’s respondents in the main appeal nor the cross-appeal was considered. No doubt in considering the age of the case and the fact that the main claim is still lying before the trial Court un-decided after 25 years, the lower Court’s order would have been appropriate and unassailable but the fact that it failed, by reasons of omission to consider the case put forward by other party amounts to a breach of the principles of fair hearing as provided by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
My Lords, Courts are supposed to be Courts of law but they are equally Courts of justice. Substantial justice cannot be done unless Courts of justice strain to ensure that all the facts and issues put before them by both parties cases are considered before arriving at their decision. The effect of not considering the case put forward by a party before the Court that decided the case amounts to a complete black out of the un-heard party. 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. In the case of Opuiyo v. Omoniwari (2007) 6 SCNJ 131; (2007) 16 NWLR (Pt. 1060) 415 recently decided by this Court it was held thus:
“As a matter of law, a Court has the duty to consider the issues submitted to it for adjudication. Where a Court fails to consider and adjudicate on such issues, it is usually an error of law because the omission constitutes a denial to the part complaining of his right of fair hearing as enshrined in the constitution.” Per Oguntade J.S.C. at p. 138.
(Italics mine for emphasis)

I have read the record of appeal and the issue submitted for determination at the lower Court which issue was adopted by the Appellant’s learned Counsel and I am of the firm view that the Appellant did not specifically submit issue relating to lack of proper traverse of Claimant’s pleading by the Respondents. For avoidance of doubt, the learned Counsel to the Respondent submitted a sole issue for determination of the Court on page 290 of the Record of appeal thus:
“Whether considering the facts of the case and the evidence adduced, the claimant has brought any legally cognizable or enforceable action to be entitled to the reliefs sought in this case.”

The Learned Counsel for the Appellant on page 312 (page 8 of Appellant’s written address at lower Court) under issue for determination said as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“3.10 The Defendants have elected a sole issue for determination, viz: “Whether considering the facts of the case and the evidence adduced, the claimant has brought any legally cognizable or enforceable action to be entitled to the reliefs sought in this case
3.20 May we humbly adopt the same issue as in the argument of the Claimant’s final address.”

It was in consequence that the learned Counsel to Appellant under what he called facts in contention raised the matter of alleged failure of Defendant now Respondent to specifically deny paragraphs 17, 18, 20 and 21 of the Appellant Statement of Claim which Appellant referred to as issue that was not pronounced upon by the lower Court. The learned trial Judge made reference to the adoption of the sole issue by the appellant on page 416 of the record. The argument of Counsel on issue of traverse was mentioned on page 421 of the record by the learned trial Judge.

The learned trial Judge considered the state of pleadings of the parties when he said on page 421 that:
“Having considered the pleadings, submission, authorities and oral evidence given at the trial, the issue for the Court to determine is whether from the state of pleadings and evidence led in support of same, the claimant has discharged the burden of prove placed on him and consequently entitled to the reliefs claimed.”

The allegation that the learned trial judge did not consider the pleadings or traverse cannot be sustained.
Assuming without conceding that the allegation is sustainable, this Court will not necessarily come to the conclusion that there is a failure of justice or that the Appellant was denied right to fair hearing. There must be credible evidence borne out of the record showing that the failure to consider the issues alleged actually led to miscarriage of justice against the Appellant. See ISHAYA BAMAIYI V. THE STATE & ORS (2001) 8 NWLR (PT. 715) 270 AT 294 per OGWUEGBU, JSC who said:
“On whether the Court below was right when it failed to consider and pronounce upon all the issues submitted to it by the appellant for its determination. I agree with the submission of the appellant’s counsel that the Court below failed to consider and pronounce upon the second issue for determination submitted by the appellant in that Court. However, I am unable to hold that the failure to do so led to any miscarriage of justice in the circumstances of the case. There was also no denial of fair hearing as enshrined in Section 33 of the 1979 Constitution. Failure to consider and pronounce on all issues submitted to a Court or Tribunal will not, per se, amount to denial of a right to fair hearing having regard to the judicial decisions on the principle. In some cases, it may occasion failure of justice which amounts to denial of fair hearing and in others as in the case in the present proceedings, it will not. See kotoye v. Central Bank of Nigeria Ors (1989) 1 NWLR (Pt. 98) 419.”

The question is what are the facts pleaded in paragraphs 17, 18 20 and 21 of the statement of claim? They are as follows:-
“17. The claimant further avers that apart from suggesting the name that led to the current name of the company, he set out to work by providing a logo, got office space, recruited personnel via a management consulting group (FOSAD Consulting) and selected successful personnel via full board interviews, designed the company’s operational manual, and code of Ethics Manual embodied in the Handbook given to the 2nd Defendant as averred in paragraph 12 above. The claimant hereby pleads the Minutes of the Board Meeting of the 19th of October, 2007 as evidence of the claimant’s efforts at recruitment and we shall rely on same in trial. The Defendants are hereby given notice to produce same at trial.
18. The claimant avers that on the 11th of July, 2007, the Chairman of the Company at the time material, the 2nd Defendant, a Director Engr. Anietie Umana and the claimant in a company meeting, resolved that the claimant should prepare for the qualifying interview with Securities and Exchange Commission. The said minutes of the Board Meeting of July, 2007 is hereby pleaded. The Defendants are hereby given notice to produce same at trial.
20. The claimant avers that in his effort to grow the Company, he emphasized on the need for recapitalization of the Company which on registration was merely One Hundred Million (100,000,000) shares in the Board meeting held on the 22nd of January, 2008 at the Corporate Head Office and attended by Mrs. Florence Umana Umana (current Chairperson of the 1st Defendant), the claimant and Directors Mr. Udeme Ukpong Barr. Bankole Opashi, Engr. Anietie Okon Umana and Deacon Gabriel Igbokwe in the said meeting the company resolved to recapitalize to Two Billion Naira (N2 Billion) since the company wanted to be an Issuing House. It was agreed in the meeting that this would be done in phases and that the authorized share capital be increased accordingly depending on the level of recapitalization embarked upon.
21. The Claimant avers that he traded for the Defendants, carried out valuation exercises and navigated the firm through the financial meltdown era and kept the Company going while many others had their licences revoked. The Nigerian Stock Exchange in its maiden report of the Company on the 6th of January, 2009 commended the efforts he had led the company through including the fact that the share capital of the company had been increased from N200M to N600. The said shares as of the 18th of December, 2009 increased to N600M as indicated in the certificate of increase in share capital dated same day, of which the Claimant is a 5% shareholder of the share capital.
The said report and the certificate of increase in share capital is hereby pleaded and will be relied upon in this trial.”

The reaction of the Defendant now Respondent can be found in paragraphs 2 and 13 of the statement of defence as follows:-
“2. The Defendant denies paragraphs 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22,23, 24, 25, 26, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40, 41 42, 43, 44, 45, 46 and 47 of the statement of claim.
13. The Defendants state in response to 17, 18, 20 and 21 of the statement of claim that the Claimant did not do more than what he was being paid for as a salaried Managing Director of the 1st Defendant.”

The settled position of the law is that a Defendant is expected to deny frontally and concisely any fact(s) pleaded by the claimant which he, the Defendant does not admit. There is no room for evasive or rigmarole denial of facts in averments contained in claimant’s statement of claim otherwise the Defendant will be taken to have admitted such undenied facts. See the case of:
T. LAWAL OWOSHO & ORS VS. MICHAEL ADEBODWALE DADA (1984) NSCC 568 at 576 per ANIAGOLU, JSC who said:
“But a plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly, either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarly within the knowledge of the plaintiff is taken to have admitted them.
The matter was put clearly by this Court in Messsrs. Lewis and Peat (N.R.I.) Ltd v E. A. Akiemien (1976) 7 S. C. 157; (1976) 1 All N. LR. (Pt. 1) 460 where Idigbe J.S.C., in giving reasons for the judgment of the Court, stated the principle at 465 to p. 466 thus:-
“When as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an ‘issue of fact’. We must observed, however, that in order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically, and he does not do this satisfactorily by pleading thus: ‘defendant is not in position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof’. As was held in Harris v Gamble (1987) 7 Ch. D. 877 a plea that ‘defendant puts plaintiff to proof’ amounts to insufficient denial, equally a plea that ‘defendant does not admit correctness (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v Tregent (1879) 12 Ch. D. 758.”

However, it must be stated that paragraphs contained in a pleadings must not be construed in isolation because, like the construction of a statute or its provision, all the paragraphs in the pleading of a party must be considered as a whole in order to decipher and determine the issues joined on the pleading of the claimant vis-a-vis the Defendant’s pleadings.

See: HON CHRIS AZUBUOGU VS. HON. (DR) HARRY N. ORANEZI & OR (2018) 5 NWLR (PART 1613) 447 at 461 F – G per M. D. MUHAMMAD, JSC who said:
“It is settled that in construing pleadings, as it is with statues the averments should be considered as a whole to gather the collective import of the pleaded facts. The trial Court’s reading of paragraph 31 of the statement of claim in isolation, without relating the paragraph to the preceding paragraphs not surprisingly, pushed the Court into an avoidable error. The preceding paragraphs are not only complementary to the paragraph the Court singled out and relied on in determining the objections to its jurisdiction over the suit they also explain the meaning and scope of the subsequent paragraph. See The Minister of Housing and Local Government v. Lawbert (1969) 2 NMLR 447 and Mobil Oil (Nig) Plc v. IAL 36 file (2000) 4 SC (Pt. 1) 85, (2000) 6 NWLR (Pt. 659) 146; Yesufu Anor v. Ojo & Ors (1958) vol., I NSCC 99, (1958) SCNLR 430 and Kraus Thompson Org. Ltd. v. NIPSS (200– 1 17 NWLR (Pt.901) 44.”

A close examination and composite reading of the entire Statement of Defence filed by the Respondent at the lower Court shows that the Respondent doggedly and vehemently denied facts pleaded in the Statement of Claim in paragraphs 1. 2 and 19 of the said Statement of Defence.

The right of the Appellant to fair hearing guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended was not infringed by the lower Court more so that the Appellant was unable to establish any miscarriage of justice under the said issue 1.

Issue 1 is resolved against the Appellant.

ISSUE 2
The grouse of the Appellant under this issue is that the learned trial Judge did not consider both oral and documentary evidence placed before Appellant’s case and that Appellant’s right to fair hearing has been breached.

The law is settled that an Appellant who complains that the decision of the trial Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence, must prove or establish that the Court of first instance made improper use of opportunity of seeing the witnesses testifying before him. He must show that there was misapplication of oral and documentary evidence placed before the lower Court. He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and reevaluate the oral and documentary evidence. See;
1. CHIEF JAMES O. OLONADE & ANOR VS. H – B SOWEIMO (2014) 14 NWLR (PART 1428) 472 AT 495 G – H TO 496 per M. D. MOHAMMED who said:-
“Firstly, evaluation of relevant and material evidence and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses as they testified. Where the trial Court unquestionably evaluate the evidence and justifiably appraises the facts, as it has been manifestly shown to have been done in the instant case it is not the business of the lower Court, an appellate Court, to substitute its own views for the views of the trial Court. The application of this trite principle by the lower Court cannot, certainly, be a basis for the reversal of the Court’s decision. See Mogaji v. Odofin (1978) 4 SC 91; Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565) 226 and Sha v. Kwan (2000) 5 SC 178 (2000) 8 NWLR (PT. 670) 685.
Secondly, in a civil matter such as this, the Court decides the case on the balance of probabilities or preponderance of evidence. The trial Court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale weighing them together. The Court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary. See Fagbenro v. Arobadi (2006) 7 NWLR (PT. 978) 172.
2. MRS ELIZABETH IRABOR ZACCALA VS MR KINSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D per M. D. MUHAMMAD, JSC who said:
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court ‘s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.”
3. CHIEF NYA EDIM EKONG VS CHIEF ASUQUO E. OTOP & 7 ORS (2014) 11 NWLR (PART 1419) 459 AT 573 F – H per OKORO, JSC who said:-
“It is trite that all documents tendered before a Court at the trial of a case is part and parcel of the, evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v Dada (1978) 3 SC 35; Bamgboye v Olanrewaju (1991) 22 NSCC (Pt. 1) 501, (1991) 4 NWLR (Pt. 184) 132. I think since Exhibit C was tendered before the trial Court and was part of the record of appeal before the Court below the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”

It must however be borne in mind that it is not every slip or error by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. See AKINWATA OGBOGU MBANEFO VS. NWAKAIBE MOLOKWU & ORS (2014) 4 SCM 159 AT 183 A – H per PETER ODILI, JSC.

The reliefs sought by the Appellants at the lower Court have been reproduced earlier in this judgment.

The reliefs related to what the Appellant believes to be his entitlements from the 1st and 2nd Respondents upon the Appellant’s resignation as the Managing Director and Chief Executive of the 1st Respondent, his employer. The Appellant pleaded in paragraphs 40, 41 42 and 43 of his Statement of Claim pleaded as follows:

“40. To the utter dismay of the claimant, on a certain morning, he came to work normally, was informed of a meeting by 10.00 a.m. and he went with his reports as MD only to be given a letter of indefinite compulsory leave for circumstances he did not engender.
41. The claimant avers that, he was forced into this compulsory leave without any warnings or management query by a letter dated July 6, 2012. The said letter to proceed on a compulsory and indefinite leave is hereby pleaded and the claimant shall be relying on same at the trial of this suit.
42. In the light of the development in paragraph 41, the claimant was forced to resign in protest by a letter dated August 31, 2012 when he realized that his salaries and entitlements were no longer forth coming. The said letter is hereby pleaded and shall be relied upon at the trial of this suit. The Defendants are hereby given notice to produce the original at the trial.
43. The claimant further states that, in the event of the last paragraph, no official entitlement or benefit have been given to him rather all he has been getting is harassment and intimidation from the board of the defendants.” In respect of the relief 1 wherein the Appellant claimed for release of two Toyota Brand Cars which he said he was using as his personal and official cars while in 1st Respondent’s employment to him. The learned trial Judge found that the Appellant did not tender letter of his employment to enable the Court decide Appellant’s entitlement to the said cars. The lower Court was right. There must be a letter of appointment which spells out the contract of employment that existed between the Appellant and the Respondents showing the rights and obligations of the parties and all other subsequent letters or agreement relating to the employment of Appellant as the Managing Director. Where the claimant is unable to produce such letters or contract of employment the Court will not grant to an employee’s entitlement or damages that cannot be traced to his terms of employment and without proving any breach of the said agreement. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own volition. The Court cannot rewrite the contract between the parties. See:
1.GABRIEL ADEKUNLE OGUNDEPO & ANOR VS THOMAS ENIYAN OLUMESAN (2011) 8 NWLR (PART 1278) 54 AT 70 C – D per FABIYI, JSC who held:
“I need to still point out at this stage that it is not the business of a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition. A Court of record should never accede to the importation of unrelated ‘grey’ areas of the law a party to prop what is not contained in the instrument made by the parties. See Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 30; Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 576.”
2. UBN PLC VS ALHAJI AJABULE & ANOR (2011) 18 NWLR (PART 1278) 152 AT 185 per ADEKEYE, JSC who said:-
“In the law of contract, the law is that a written contract agreement entered into by parties is binding on them. Where there is any disagreement between the parties to such written agreement on any particular point, the only reliable evidence to resolve the claim is the written contract of the parties. The reason being that where the intention of the parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties.”
3. CBN VS MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 AT 419 A TO 420 A – C per AKINTAN, JSC who said:
“The law is settled that there are now roughly three categories of contracts of employment, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer and those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NWLR 128; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (Pt. 330) 81: Shitta-Bey v. The Federal Public Service (Pt. 265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.”
On page 433A – E OGBUAGU, JSC also had this to say:-
“It must always be borne in mind and this is also settled firstly that where a contract (which includes contract of employment), involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of The Attorney-General of Kaduna State v. Atta (1986) 4 NWLR (Pt. 38) 785 C.A. and Leyland (Nig.) Ltd. v. Dizengoff W. A. (1990) 2 NWLR (Pt. 134) 610 at 620.
Secondly, where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of releasing of the respondent to the 1st appellant was that the 1st appellant shall accept the respondent as employed and transferring his service from one body to another body. See the cases of John Holt Co. (Liverpool) Ltd. v. Stephen Late (1938) 15 NLR 14 and Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt. 249) 643 at 649. Again a contract which must in law be in writing can only be varied by an agreement in writing. See the case of Morris v. Baron Co. (1918) A.C. 1 at 39. Also settled, is that in the interpretation of a contract involving several documents, the documents must be read together. See the cases of Royal Exchange Assurance (Nig.) Ltd. 4 Ors. v. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 at 669 C.A. ” (Underlined mine)
It is the duty of the Appellant to prove his case by leading credible evidence in support of his pleaded case. There is no document or contract of employment from which to infer entitlement of the Appellant to the two cars.

On the Appellant’s claim that the 1st Respondent be made to pay full cash value of 5% of the registered shareholding of the 1st Respondent which belong to him, the learned trial Judge rightly found that Exhibits PW9 and PW7 the Appellant has 5,000,000 ordinary shares in the 1st Respondent and that the shares belonged to him. The learned trial Judge also found rightly that Appellant cannot force the 1st Respondent to purchase the shares and he cannot ask for money. The Appellant must know by his experience in security and investments that being the owner of these shares he can sell them as he wishes either to 1st Respondent if the latter agrees to buy them or to persons interested at stock exchange market. The findings of the lower Court on relief (ii) is unassailable as they are supported by oral and documentary evidence before the Court.

On relief (iii) seeking the Court’s Order directing the 1st Respondent to refund his slashed salary from February, 2009 to the time of his forced resignation contrary to the terms of his employment be refunded to him which is N17,200,000.00.

Now contrary to the contention of the Appellant’s learned Counsel that the lower Court made finding to the effect that Appellant narrated how he came about the sum of N17 Million and that in the next breath he said Appellant did not narrate how he came about the sum, what the learned trial Judge did in the first narration in the sixth paragraph on page 424 of the record was a review or narration of what the Appellant’s learned Counsel submitted on paragraph 6.4 of the Claimant’s Final Address. The finding of the trial Court is on the same page 424 last paragraph through the first two lines on page 425 of the record of appeal.

From the pleadings and the record of proceedings, the Appellant was part of the management that decided the slash in salaries and while some staff decided to resign due to the salary slash, the Appellant did not resign. Under cross-examination on page 10 of the supplementary record the Appellant said:-
“Counsel:- You said 2 officers resigned their appointment because of slash in their salaries in paragraph 24 of statement of claim witness statement on oath. Why did you not resign?
Witness: I was part of the Company.”

Appellant must be taken to have waived his right to complain about slash in salary of which he was a part of the management that decided the slash in salaries. The claimant who did not see anything wrong in the manner the staff salaries including himself were slashed by the Company in 2009 is clearly estopped from raising the issue in his claim filed in November, 2013. Where a person has a right and he decided to trade off the right by failure to complain on the infringement of such right he cannot turn round to accuse the person or authority that abridged his right or entitlement after he has made the authority or the person who did something to his detriment to believe that he would no longer insist on that right or entitlement. The Appellant is also estopped from claiming that the slash in his salaries or emoluments was illegal or unlawful. The law will not allow him to approbate and reprobate. He has waived his right to complain against the slash in his salary. See HAJIA YUNUSA BAKARI V DEACONNESS (MRS) FELICIA OGUNDIPE & ORS (2021) 5 NWLR (PART 1768) 1 AT 43 B-E- C per RHODES-VIVOUR, JSC who said:-
“The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial Court was given dismissing the 1st respondent’s claim. The 1st appellant was happy. He did not complain. The 1st respondent/plaintiff filed an appeal. On appeal, the appellant defended the judgment and never made the defective statement of claim an issue.
When the appellant lost in the Court of Appeal, he appealed to the Supreme Court, and made the issue of the competence of the statement of claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.
It would be most inequitable and unjust to the 1st respondent/plaintiff for the appellant after waiving his right to complain about the plaintiff’s incompetent process to be allowed to complain on appeal. Waiver is inferred or implied after examining the conduct of the appellant.
No Court would allow the appellant to renege from his acquiescence.” (Underlined mine)
At page 68 F – H to 69A, my Lord PETER-ODILI, JSC had this to say:-
“ln the instant case, the point of the statement of claim being defective, having been settled by an unknown proxy of Chief A. S. Awomolo, SAN, is being raised for the first time in this second tier appeal. The appellant, on this issue, is caught by the doctrine of estoppel by conduct, which in Section 169 of the Evidence Act, 2011 is provided thus –
“When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
I should think it is now inequitable and unjust to the plaintiff/1st respondent for this Court to accede to this belated objection, the appellant having waived his right of timeous objection to the irregular statement of claim. Delay defeats equity. “

The refusal of lower Court to grant reliefs (iii) and (iv) is consistent with the law. The trial Court cannot be faulted.

Reliefs (v) and (vi) and (vi) were also justifiably refused by the lower Court because the claims were not proved or established. More importantly the findings of the learned trial Judge pertaining to claims for N750,000, N200,000 and as costs by Appellant on page 425 of the record were not appealed against. The law is trite that a party who fails to appeal decision or findings made against him or her is deemed to be satisfied with the decision or findings of the Court against him or her. The Appellant is deemed to be satisfied with decision or findings. See:
1. APC V. HON. D. KARFI & ORS(2018) 6 NWLR (PART 1616) 179 at 519 G- H per EKO, JSC who said:
“On 11th March, 2015, the three appellants herein lodged their appeal to the Court of Appeal (the lower Court) challenging the decision of the Federal High Court. INEC, in spite of the orders of the Federal High Court directing it not to recognize or otherwise deal with the candidate of the APC, 1st appellant, in the general election and/or placing the 3rd appellant or any other candidate of the APC on the ballot in consequence of the inconclusive primary election of 2nd December, 2014, did not appeal the decision of the Federal High Court. I need only re-state or emphasize the trite principle of law that decisions of Court not appealed against remain valid binding subsisting and taken as acceptable between the parties until the decision is set aside. See Akere v. Governor, Oyo State (2012) 50 11 NSCQR 345 at 414 415; (2012) 12 NWLR (Pt. 1314) 240; LSBPC v. Purification Tech. Ltd (2012) 521 NSCQR 274 at 309.”

2. MRS AISHA ABDURAHAMAN & ANOR VS MRS SHADE THOMAS (2019) 12 NWLR (PART 1685) 107 AT 124H TO 125 A – C per EKO
“Neither in the notice of appeal nor in their brief did the appellants make any, attempt, albeit feeble, to attack the foregoing decision, that crucially was fatal to their case. The law, as re- stated by Musdapher, JSC, in Jimoh Michael v. The State (2008) LPELR-1874 (SC) @ page 7: (2008) 13 NWLR (Pt. 1104) 361, is that where there is an appeal on some points only in a decision, the appeal stands or falls on those points appealed against only, while the other points or decision not appealed remain unchallenged. Such point or decision unchallenged is taken as acceptable to the parties, particularly the appellant. In other words, a finding or decision of the Court below not challenged on appeal must not, rightly or wrongly, be disturbed by the appellate Court. See Oshodi v. Eyifunmi (2000) LPELR – 2805 (SC); (2000) 13 NWLR (Pt. 684) 298; Nwabueze v. Okoye (1988) 2 NWLR (Pt. 91) 664. And as I stated elsewhere, a party to the proceeding who does not appeal a particular adverse finding or decision, or who takes no steps to have it reviewed is deemed to accept the verdict against him. See Ezerioha ors v. Ihezuo (2009) LPELR-4122 (CA). A finding of fact or point in a decision not appealed persists and remains binding on the parties to the suit.”

All the findings against the Appellant are in tandem with oral and documentary evidence before the Court. There was proper evaluation of all the pieces of evidence tendered or proffered before the lower Court.
Issue 2 is hereby resolved against the Appellant.

ISSUE 3
The issue is as to whether the failure of learned trial Judge to deal with reliefs (v) and (iv) were a denial of the right of fair hearing of the Appellant.
The said reliefs are as follows:-
“(v) N20 Million as damages for persecutions, harassments and intimidation the plaintiff received from the Defendants.
(vii) A declaration that the refusal to release the letter of acceptance of the claimant resignation is contrary to labour laws of the Federal Republic of Nigeria and other international instruments and threatens the economic and family rights of the claimants.”

As stated earlier on this judgment a Court is bound to deal with and pronounce on all the heads of claim made by a claimant. I have read the judgment of lower Court and I found that the lower Court did not deal with the reliefs claimed as Reliefs (v) and (vii) in the Appellant’s writ of summons and Statement of Claim.

I agree with the Appellant that the lower Court did not specifically deal with said reliefs but at the end of his judgment the learned trial Judge said:-
“For the reasons given above, the claims of the claimant fail and are hereby dismissed.”

The above clearly shows that he considered the said reliefs.
Issue 3 is resolved against the Appellant.

ISSUE 4
The complaint of the Appellant is that the learned trial Judge erred when he held that the release of acceptance of resignation of the Appellant was contingent upon release of properties of the 1st Respondent’s possession when there was no counter claim or argument with regard to such issue in the Respondent’s defence, and when there was no counter-claim.

The learned Counsel to the Respondent had argued that that aspect of the decision of lower Court was an orbiter. The learned Counsel to the Respondent cannot be right. What the learned trial Judge did tantamount to granting of relief to the Respondent in flagrant disregard of the pleadings of the parties and the reliefs sought. The Respondents did not put up a counter-claim in respect of the withholding of acceptance of Appellant’s resignation.

Parties are bound by their pleadings and a party cannot under any guise be allowed to deviate or meander outside the penumbra of reliefs sought and the pleadings.
Both the parties and the Court are severely limited and bound by the pleadings of the parties. The Court cannot be gratuitous in granting or awarding to a party what he does not ask for. See:
1. AFRICAN CONTINENTAL SEAWAYS LTD. VS. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD. (1977) 55C 235 at 249 – 350 per IRIKEFE, JSC who held:
“The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation … moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved, for a decision given on a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.”
“In our view, the learned trial Judge was clearly in error to have decided this case on the issue of the agent of a disclosed principal, an issue not raised or relied upon by either party in the pleadings.
(Underlined mine).
2. ONYIBOR ANEKWE & ANOR. VS. MRS. MARIA NWEKE (2014) 10 SCM 83 at 100 G – H per OGUNBIYI JSC who said:
“The law is well settled and elementary that parties are bound by their pleadings and the Plaintiff must succeed on the strength of her own case comprising both pleadings and evidence and not rely on the weakness of the defence in proof of her Claim. See Dada vs. DOSUNMU (2007) FWLR 388 at 410;Alhaji Monyamo Adesanya v. Adetayo Olaitan Otuewu Ors. (1993) 1 SCNJ P. 77 at 97.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

3. UNITY BANK PLC VS. SOLOMON OWE (2011) 5 NWLR (PART 1240) 273 at 2BB H to 289 C per OMOLEYE, JCA who said:
“The law is equally settled that a trial Court must keep strictly to the pleadings of parties. The Supreme Court stood firmly on this legal principle in the case of FABIYI v. ADENIYI (2000) 5SC P. 31, (2000) 6 NWLR (Pt. 662) 532 at 542 paras B – C where the earlier decision of the Court in the case of OBIOMA v. OLOMU (1978) 3SC P. 1 at 7, was quoted with approval per ONU. JSC in the following words:
“A Court has no jurisdiction to make an order which has not been pleaded or prayed for by a litigant, such order is wrong and will be annulled on appeal. See ELUMEZE v. ELUMEZE (1969) 1 ALL NLR 311. A trial (sic) should not import in his judgment issues not properly (sic) or raised at the trial. See ADEBISI v. OKE (1967) NWLR 64. A trial Judge, in deciding a case must not even, when the interest of justice demands stray from pleadings. See DIPCHARIMMA v. ALLI (1974) 125C 45. The findings and declaration on that the Respondent is the district head of lie-Ire in Ifelodun Local Government of Kwara State was without any jurisdiction and must be annulled as it was not a matter which was prayed for nor a matter which was pleaded. I cannot agree more.”
(Underlined mine).

The learned trial Judge was wrong in making such an order or finding to the effect that Appellant must first return 1st Respondent’s property in his possession before the letter of acceptance of Appellant’s resignation could be released to him by the 1st Respondent. No conditions precedent were pleaded or relied upon by the Respondents which Appellant must comply with before he could seek for the release of the letter of acceptance of the claimant’s resignation. It is not for the trial Judge to initiate controversy in a matter as it will be contrary to its character as an impartial arbiter holding the scale of justice in adjudication over matter of which the Court is seised of. See AFRICAN CONTINENTAL SEAWAYS LTD V NDRGWU LTD (1977) 5 SC 235 AT 249 – 250 per IRIKEFE, JSC.
Issue 4 is thus resolved in Appellant’s favour.

The Appellant’s appeal succeeds in part only in respect of issue 4 pertaining to the release of the letter of acceptance of the claimant’s resignation. This Court hereby make an order mandating the 1st Defendant now 1st Respondent to issue the claimant with acceptance of Resignation Letter as claimed in Relief (viii) of the claimant’s complaint on page 2 of the record of appeal.

However, since issues 1, 2 and 3 of the issues formulated by the Appellant for determination in this appeal HAVE BEEN RESOLVED AGAINST the Appellant, the Appellant’s appeal is hereby dismissed in respect of issues 1, 2 and 3. For avoidance of doubt, the dismissal of Appellant’s claims as contained in reliefs (i), (ii), (iii), (iv), (v), (vi), (vii) and (ix) on page 2 of the record and as claimed in paragraph 47(i),(ii),(iii),(iv),(v),(vi),(vii) and (ix) on pages 11 – 12 of the record by the lower Court IS HEREBY AFFIRMED.
There will be no order as to costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the privilege of reading in advance, the lead judgment of my learned brother lge JCA just delivered, to which I am in complete agreement. I too find that the appeal although succeeding in part, is hereby dismissed. I abide by the consequential order made therein.
No order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother PETER OLABISI IGE, JCA just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.

Appearances:

IKORO N. A IKORO, ESQ with him E. O. OLATUNDE, ESQ. For Appellant(s)

O. O. OLOWOLAFE, ESQ. with him, B. T. AKINLAWON For Respondent(s)