PRINCE BONIFACE M. AGBU V. CIVIL SERVICE COMMISSION NASARAWA STATE & ORS
(2010)LCN/3683(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of April, 2010
CA/J/39/2006
RATIO
ACTION: IMPORTANCE OF PLEADINGS IN A TRIAL
In every trial pleadings and the evidence adduced determine the outcome of the trial, for parties are bound by the case they put up before the court. The main reason for the insistence of filing of pleadings in all cases is to ascertain with as much certainty as possible the issues in controversy between the parties and to create a situation where none of the parties is caught by surprise. Odogwu vs. Odogwu (1990) 4 NWLR (Part.143) 224.
A court is thus bound to confine itself to the questions raised by the parties to the exclusion of other questions, Ochonna vs. Unosi 1965 NMLR 321; Overseas Construction Co. Ltd. vs. Creek Enterprises Nig. Ltd. 1985 3 NWLR (Part 13) 407. PER Z. A. BULKACHUWA, J.C.A.
ACTION: WHETHER THE DOCTRINE OF LIS PENDENS IS APPLICABLE TO EVERY SUIT
The doctrine of lis pendens is not applicable to every suit. It only applies to a suit in which the object is to recover or assert title to a specific property which must be real property. It is not applicable to personal property – Combined Trade Ltd. vs. A.S.T.B. Ltd 1995 6 NWLR (Part 404) 709; Osagie vs. Oyeyinka & Anr. 1987 3 NWLR (Part 59) 144. PER Z. A. BULKACHUWA, J.C.A.
DAMAGES: HOW SHOULD SPECIAL DAMAGES BE CLAIMED
it is trite that special damages must be specially pleaded and strictly proved – Agunwa vs. Onukwuwe 1962 1 All NLR 537. PER Z. A. BULKACHUWA, J.C.A.
APPEAL: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES MADE BY THE TRIAL COURT
It is not the duty of an appellate court to re-assess the award of general damages by a trial court on the basis that it would have awarded a different figure if it had determined the matter at first instance. An appellate court can only intervene if it is satisfied that the trial court while assessing the damages applied wrong principles of law as taking into account some irrelevant factors or made an erroneous estimate of the damages in that the sum awarded is ridiculously high or ridiculously small. Agaba vs. Otubusin 1961 2 SCNLR 13; Uyo vs. Nigerian National Press Ltd. 1974 6 SC 103; Ozigbu Eng. Co. Ltd. vs. Iwuamadi 2009 16 NWLR (Part 1166) 44. PER Z. A. BULKACHUWA, J.C.A.
JUSTICES:
ZAINAB ADAMU BULKACHUKWA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
PRINCE BONIFACE M. AGBU – Appellant(s)
AND
1. CIVIL SERVICE COMMISSION NASARAWA STATE
2. MINISTRY OF FINANCE AND ECONOMIC PLANNING NASARAWA STATE
3. NASARAWA STATE GOVERNMENT – Respondent(s)
Z. A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The appellant was an employee of the 3rd respondent, the Nasarawa State Government and deployed to the Nasarawa State Ministry of Finance and Economic Planning when his appointment was terminated on the 21st November, 2002. As plaintiff, he initiated plaintiff, he initiated the action giving rise to this appeal with a writ of summons filed on the 7th April, 2003 before the Nasarawa State High Court claiming the following reliefs against the respondents as defendants;
(1) A declaration that the 1st defendant’s purported termination of appointment conveyed in the letter with Reference No. NCSC/PS/158/Vol.1/139 dated 21st November, 2002 is retrospective, malafide, improper, unconstitutional, null and void.
(2) A declaration that the plaintiff is entitled to all his personal salaries, entitlements and emoluments as a Senior Accounting Assistant with all the benefits of graded promotion in the Ministry of Finance and Economic Planning, Nasarawa State from 1st May,1999 until his appointment is duly terminated.
(3) An order of the court directing the defendants to re-instate the plaintiff to his supposed position.
(4) N487,131.76K special damages being the plaintiff’s accrued salary from May, 1999 to March, 2003 at his last grade level before his purported suspension.
(5) N150,000.00k general damages on the footing for loss of reprefation (sic) and goodwill and accrued leave grant.
Pleadings were filed and exchanged by the respective parties and the matter proceeded to trial. The plaintiff testified in person and tendered some documents. The defence also called one witness.
Counsels addressed the court and in a considered judgment delivered on the 20/5/2005 the trial court found as follows;
(1) That the termination of the plaintiff’s appointment by the defendants with retrospective effect was mala fide, improper, unconstitutional, null and void.
(2) An order to the defendants to pay the plaintiff the sum of N112,179.69k being the balance of his arrears of outstanding salaries and allowances having already paid the plaintiff the sum of N374,952.07k.
(3) An award of N50,000.00 as general damages.
(4) Prayer for re-instatement refused and dismissed.
The appellant being dissatisfied with the above finding appealed to this court on 4 grounds of appeal. Parties filed and exchanged their briefs of argument. In the appellant’s brief, the following issues were identified;
(1) Whether the learned trial judge was right when he ignored completely to pronounce on the legal effect of exhibits 15 and 16 which were made by the respondents during the pendency of the suit.
(2) Whether, from the relief the plaintiff/appellant sought in paragraph 44(B) of his statement of claim the learned trial Judge was right when he denied the appellant claim of his arrears of salary and entitlement up to August 2003.
(3) Having found and further held that the termination of the plaintiff’s/appellant’s employment made on 21st November 2002, which led to the cause of action was null and void and of no effect, was the learned trial judge correct in her decision that it will be quite impossible to grant the declaration sought that the plaintiff is still in the employment of the respondent.
(4) Whether the legal principles relating to the award of general damages were rightly applied by the trial court, having due regards to the pleadings and circumstance of the suit.
The respondents identified these issues in their joint brief of argument;
(1) Whether the principle of lis pendens is applicable in this suit.
(2) Whether the learned trial Judge erred when he granted to the appellant relief -to the-extent of his claim and not outside it.
(3) Whether the trial court was right when he declined to re-instate the appellant having declared that the termination of contract of employment contained in Exhibit 16 as valid and in accordance with paragraph V of Exhibit 2.
(4) Whether the legal principles in relation to award of general damages were misapplied by the trial court.
The two sets of issues are similar, I will accordingly adopt the issues identified by the appellant in the determination of the appeal.
ISSUE 1
The appellant’s issue 1 is on all fours with the respondents’ issue 1.
The appellant’s submission on these issues is premised on the following factors:
(1) That the matter was first initiated before the lower court on the 7th April, 2003;
(2) That service of the originating processes were affected on the defendants/respondents on 8th April, 2003.
(3) That in the plaintiff’s/appellant’s statement of claim as per paragraph 44 (A) therefore the relief sought from the lower court was for a declaration that the 1st defendant purported termination of appointment conveyed in the letter with reference No. NCSC/PS/158/Vol.1/139 dated 21st November, 2002 is retrospective, malafide, improper, unconstitutional, null and void.
(4) That the plaintiff/appellant had led evidence to show that before the institution of the suit he has written series of letters to the respondents requesting for his recall from his suspension of May 1999, and was instead served with a letter of termination dated 21st November, 2002 with retrospective effect from 1st May, 1999.
(5) That the Attorney General and Commissioner for Justice Nasarawa State in a letter dated 18th February, 2003 advised against the termination.
(6) That by a letter dated 19th May, 2003 the plaintiff was reinstated and by another letter dated 21st August, 2003 his appointment was again terminated. And that in paragraph 3 of the plaintiff’s reply to the statement of defence the plaintiff pointed out that the two letters are intended to over-reach the judgment of the court with particular regards to the 1st relief.
It was the contention of the appellant on these factors that the plaintiff before the lower court had tendered without objection his letter of pensionable appointment (Exhibit 2) with its conditions and mode of termination of the appointment to show that the appointment which has statutory backing must be terminated in the way and manner prescribed by that statute, and any other manner of termination inconsistent with the statute is null and void and of no effect.
The appellant submits that that learned trial judge having upheld the contention of the plaintiff that the letter of termination dated 21/11/2002 (Exhibit 13) is void and of no effect, the court erred when it upheld the second letter of termination (Exhibit 16) for the said letter was written during the pendency of the suit. That the principle of lis pendens should have applied, instead of the court failing to make a pronunciation on exhibit 16 and relying on the general principle of a court not imposing an employee on an unwilling employer.
We are urged to resolve this issue in favour of the appellant with a consequential order declaring Exhibit 16 void and of no effect.
The respondent in his brief of argument submits on this issue that Exhibits 15 and 16 were tendered in evidence by the appellant and he placed reliance on them: That the appellant acted on Exhibit 15 and in fact assumed office benefited from it and collected his salaries and entitlements without any complaint before the issuance of the second letter of termination Exhibit 19, as such the appellant was estopped by virtue of Section 151 of the :Evidence Act from challenging the admissibility of Exhibits 15 and 16 having benefited from Exhibit 15.
The respondents further submits that the trial court did pronounce on the-legal effect of Exhibits 15 and 16 by its declaration that Exhibit 13 (the first letter of termination) was null and void and did hold that Exhibit 16 having satisfied the requirements of Exhibit 2 was valid.
The respondents maintain that the principle of lis pendens is not applicable in this case, for it applies only in cases involving real property and the case of Dan-Jumbo vs. Dan-Jumbo 1999 7 SCNJ 122 relied upon by the appellant is distinct and distinguishable from the case at hand and thus not applicable. Pointing out that in the case at hand the lis in issue is the termination of appointment that Exhibits 15 and 16 did not at any point seek to transfer any real property interest in the lis of this suit to the benefit of the respondents.
We were also urged to resolve this issue in favour of the respondents.
The legal redress sought by the appellant in the instant case was the determination of the legality or otherwise of the letter of termination dated 21st November, 2002 with retrospective effect from 1st May, 1999 issued to him by his employers the respondents, which led to the initiation of the matter before the trial court by the filing of a statement of claim on the 7th of April, 2003. This was served on the defendants/respondents on the 8th April, 2003. A statement of defence was filed out of time on the 6/2/2004 and with leave of court granted on the 8/12/2004 time was extended for the filing of the said statement of defence and it was deemed properly filed and served on that day. With the exchange of pleadings issues were joined by the parties and with the filing of a reply by the plaintiff the matter proceeded to trial.
In every trial pleadings and the evidence adduced determine the outcome of the trial, for parties are bound by the case they put up before the court. The main reason for the insistence of filing of pleadings in all cases is to ascertain with as much certainty as possible the issues in controversy between the parties and to create a situation where none of the parties is caught by surprise. Odogwu vs. Odogwu (1990) 4 NWLR (Part.143) 224.
A court is thus bound to confine itself to the questions raised by the parties to the exclusion of other questions, Ochonna vs. Unosi 1965 NMLR 321; Overseas Construction Co. Ltd. vs. Creek Enterprises Nig. Ltd. 1985 3 NWLR (Part 13) 407.
In the instant case the first relief sought by the appellant as per paragraph 44(A) of his statement of claim is for a declaratory relief that the letter of termination of appointment dated 21st November, 2002 served on him by his employers the respondents is retrospective, malafide, improper, unconstitutional, null and void. All the other three reliefs are tied to the above relief.
It is noteworthy that Exhibits 15 and 16 were introduced by the defendants as per paragraphs 19, 23 and 29 of the statement of defence. This was replied to by the plaintiff as per paragraphs 3 and 4 of the reply to the statement of defence.
The said paragraphs are reproduced here for ease of reference;
Statement of defence
(19) In further answer to paragraph 23 of the statement of Claim the defendants aver that they were magnanimous enough notwithstanding the above paragraph and reinstated the plaintiff to his office. The letter of re-instatement with Ref. No. NCSC/PS/153/Vol.II/63 dated the 19th of May, 2003 is hereby pleaded.
(23) In further answer to paragraph 3 of the statement of claim, the defendants aver that the plaintiff was re-instated into his office.
(29) In further answer to paragraph 3 of the statement of claim, the defendant avers that the plaintiff was reinstated and all his accrued arrears of salaries and entitlements have been paid. The defendants shall at trial rely on the PV indicating payment of the said accrued arrears of salaries and entitlements which is hereby pleaded.
Reply to statement of defence
(3) In specific reply to paragraphs 19 and 23 of the defence the plaintiff shall contend at trial that a letter of re-instatement purportedly made on 19th May, 2003 long after this suit had come into existence on 7th April, 2003 was done to overreach the judgment of the court and therefore bad in law.
(4) In specified reply to paragraph 30(a) of the defence the plaintiff shall contend that he was merely suspended in July, 1999 purportedly reinstated on 19th May, 2003 and terminated on 21st August, 2003 and therefore was never at anytime cut up by the limitation act.
As can be seen from the above, Exhibits 15 and 16 were part of the pleadings of the parties and subsequently became part of the issues raised at the trial of the matter.
See the testimony of the plaintiff at page 27 of the printed records;
…When the case was pending a day before the commencement of hearing the defendants gave me a letter of re-instatement letter, I resumed work but was later served with another termination letter. I have letters to show that I was re-instated and later terminated. I can identify the two letters from the headed paper of the Civil Service Commission and my name…
Court: The letter of re-instatement into the service dated 19th May, 2003 and the termination letter dated 21st August, 2003 are admitted in evidence and marked Exhibits 15 and 16 respectively.
Under cross-examination by the defence, the plaintiff at page 28 stated;
“It is true I was paid the sum of N374,952.07k as at August, 2003 this was as a follow up to the letter of reinstatement”.
From the above it can be seen that it was the defendant that raised the issue of the letter of reinstatement and the letter of the second termination of appointment which were tendered by the appellant when he was testifying as Exhibits 15 and 16. The said Exhibits were part of the defendants’ case-to show that the plaintiff was re-instated on the realization that the 1st termination was illegal and his appointment was subsequently terminated.
The appellant’s maintained that the 2nd letter of termination was issued during the pendency of the case and is rendered invalid as the principle of lis pendens is to the effect that the law does not allow to the litigating parties or give to them during the pendency of the litigation involving any property rights in such property so as to prejudice any of the litigating parties. Dan-Jumbo vs. Dan-Jumbo 1999 7 SCNJ 112.
The respondents are of the opinion that the principle of lis pendens is not applicable to this case neither is the case of Dan-Jumbo vs. Dan-Jumbo (supra), that the doctrine of lis pendens affects a purchaser who buys real property, the subject of litigation during the pendency of the litigation as the law does not allow litigants rights to real property in dispute which prejudices the opposite side.
He points out that in this matter Exhibits 15 and 16 have no connection with real property nor was any right to a property transferred.
Here I am more disposed to upholding the submission of the respondents, the facts of the case in Dan-Jumbo vs. Dan-Jumbo (supra) are distinguishable from the facts of this case. In Dan-Jumbo’s case the lis is the grant of probate of a Will the validity of which was challenged by caveat and which was still to be determined by an appellate court. The lis in the instant case is a contract of employment.
The doctrine of lis pendens is not applicable to every suit. It only applies to a suit in which the object is to recover or assert title to a specific property which must be real property. It is not applicable to personal property – Combined Trade Ltd. vs. A.S.T.B. Ltd 1995 6 NWLR (Part 404) 709; Osagie vs. Oyeyinka & Anr. 1987 3 NWLR (Part 59) 144.
In any case, a plaintiff rises or falls in any trial on the strength of his pleadings and the evidence he adduces in support. Exhibits 15 and 16 were not part of the plaintiff’s pleadings before the lower court although they were tendered through him. By his testimony he had shown he benefited from Exhibit 15 as he resumed work during the pendency of the suit and was pai9 arrears of his salaries and entitlements. His claim relates completely to Exhibit 13 the first letter of termination.
Exhibits 15 and 16 were part of the case before the lower court as they formed part of the pleadings and evidence before it. The court correctly pronounced upon them.
The doctrine of lis pendens is not applicable in the circumstances of this case. I so hold. The issue is resolved against the appellant.
ISSUE 2
This relates to the appellant’s claim in relief 4 on special damages as particularized in paragraph 44D of the statement of claim which is reproduced hereunder.
Statement of Claim
44(D) N487,131.76 Special Damages being the plaintiff accrued salary from May, 1999 to March, 2003 at his last grade level before his purported suspension.
Particulars of Special Damage
(i) May – December1999 salary = N45,357.44
(ii) Jan – April 2000 salary = N22,678.72
(iii) May – December 2000 salary = N94,929.28
(iv) Jan – December 2001 salary = N144,073.92
(v) Jan – December 2002 salary = N144,073.92
(vi) Jan – March 2003 salary = N36,018.48
TOTAL = N487,131.76
It is the appellant’s submission that a closer look at the above relief will show that it was intended to take into account accrued, salaries and entitlements for the subsequent months beginning to run from the time of filing the suit in April, 2003 to any time limited by the trial court in its findings. That the trial court having upheld relief 44A of the claim and set aside the termination of 21st November, 2002, the accrued arrears of salary from April 2003 to August 2003 should have been granted under consequential orders of the court.
The respondents maintain that a plaintiff cannot obtain a relief which he did not expressly claim in the statement of claim neither can a Judge grant a relief which has not been asked for by a plaintiff in his pleadings, that in the instant case the learned trial judge rightly restricted himself to the sum claimed for to do otherwise would have amounted to his acting outside his jurisdiction. Nor was the plaintiff entitled to any payment outside the award of the trial court by way of consequential order.
The relief sought by the plaintiff as per paragraph 44 (D) of his statement of claim are special damages and it is trite that special damages must be specially pleaded and strictly proved – Agunwa vs. Onukwuwe 1962 1 All NLR 537. The claimant is required to specifically plead the claim as well as itemize it. In the instant case the claim is on the accrued arrears of salaries and entitlements of the plaintiff within the period in question. The lower court having been satisfied that he was entitled to the claim is restricted to only what was pleaded and proved and cannot go beyond to award what is envisaged by way of consequential orders. A.G. vs. A.I.C. 2001 6 SCNJ 171. The claim of the appellants topped at March 2003 salary and that was what was awarded by the trial court. He is not entitled to any other award outside his claim particularly, so as evidence had shown that he had been paid salaries up to August, 2003.
This issue is also resolved against the appellant.
ISSUE 3
The appellant submits on this issue that the appellant’s employment has statutory flavour and the lower court having found that the termination of his appointment by the respondents made pursuant to their letter of 21st November, 2002 (Exhibit 13) the court should have granted his claim of re-instatement, putting reliance. Olarewaju vs. Afribank 2001 7 SCNJ 493; Olaniyan vs. University of Lagos 1985 2 NWLR (Part 9) 599; Shitta-Bey vs. Federal Service Commission 1982 1 SC 40.
The above decisions are to the effect that where an employment is wrongly or unlawfully determined; the employee is entitled to re-instatement especially where the employment is governed by statute.
Exhibit 13 is the letter of termination of appointment dated 21st November, 2002 with retrospective effect from 1st May, 1999. It was the letter declared null and void and unconstitutional by the trial court. Such a holding should normally entitle the plaintiff to re-instatement. However, a new factor was introduced into the suit by the introduction of Exhibit 15 – a letter reinstating the plaintiff/appellant to his former position. By his testimony the appellant told the court that he had accepted the re-instatement and had infact assumed duty and had been paid part of his accrued arrears of his salaries and entitlements. The employment of the appellant will then become determinable by Exhibit 2 (his letter of appointment and Exhibit 16 the 2nd letter of termination of his appointment).
There is no claim by the appellant against the legality of Exhibit 16. The finding by the lower court that it is in compliance with Exhibit 2 and therefore legal cannot be faulted.
For in any event, Exhibit 13 had been rendered null and void by the issuance and acceptance by the appellant of Exhibit 15 and his assumption of duty even without a court order.
The lower court was thus right in refusing to reinstate the appellant.
ISSUE 4
It is not the duty of an appellate court to re-assess the award of general damages by a trial court on the basis that it would have awarded a different figure if it had determined the matter at first instance. An appellate court can only intervene if it is satisfied that the trial court while assessing the damages applied wrong principles of law as taking into account some irrelevant factors or made an erroneous estimate of the damages in that the sum awarded is ridiculously high or ridiculously small. Agaba vs. Otubusin 1961 2 SCNLR 13; Uyo vs. Nigerian National Press Ltd. 1974 6 SC 103; Ozigbu Eng. Co. Ltd. vs. Iwuamadi 2009 16 NWLR (Part 1166) 44.
In awarding the damages in the instant case the learned trial judge found as follows;
“Finally on general damages of N150,000.00k, I think the plaintiff deserves the whole lot as punitive damage against the defendants having been led to drag the matter in court for about two years for something that is clear and even expressly admitted, nevertheless considering the fact that the unnecessary legal tussle is not the fault of the 3rd defendant who will incidentally pay the judgment sum, I award the sum of N50,000.00k as general damages”.
To my mind, the above finding had taken irrelevant factors into consideration in making the award. The person who finally pays the damages should not be a determining factor. The court having made a finding that the plaintiff was entitled to the sum claimed should have awarded him same.
In the circumstances, I find that the plaintiff is entitled to the N150,000.00k claimed. I resolve this issue in favour of the appellant.
The appeal on the whole fails, only partly allowed on the issue of general damages. The decision of the lower court on all other issues is affirmed. The award of general damages of N50,000.00k is substituted with an award of N150,000.00k.
No orders as to costs.
UZO NDUKWE-ANYANWU, J.C.A.: I have had the privilege of reading in draft form the judgment just delivered by my learned brother Bulkachuwa, JCA.
I agree totally with the reasoning and conclusions. I abide by the consequential orders contained therein.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the advantage of reading in advance, the judgment of BULKACHUWA Z.A. J.C.A. just delivered. I agree with the reasoning and conclusions reached therein, which I adopt as mine. The appeal fails except on the issue of general damages, which I also award in the sum of N150,000 to the Appellant. I abide by the orders made including the order as to costs.
Appearances
J. I. Orjude Esq. For Appellant
AND
D. C. Rikko Esq. For Respondent
