DR. GEORGE NYONG IKPE UDOFIA v. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS.
(2011)LCN/4617(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of June, 2011
CA/C/104/2010
RATIO
EXTRACTION OF EVIDENCE DURING CROSS EXAMINATION: WHETHER EVIDENCE EXTRACTED DURING CROSS EXAMINATION NOT BE PLEADED BY EITHER OF THE PARTIES GOES TO NO ISSUE
It is firmly established, that evidence led or extracted under cross examination which has not been pleaded by either of the parties, goes to no issue. Thus, an adverse party who thought that the evidence is relevant and material to the issue of fact in contention, is obliged to make it part of his case and plead it, in order to bring it in line with evidence on record or lead independent evidence on it. This is more so, where the said piece of evidence extracted under cross- examination, if accepted by the trial court, could decide the issue between the parties one way or the other. see Slee Transport Ltd. v. Oluwasegun & Anor. (1923) 1 All NLR 668 /676. Hence, such a party will do well to seek leave of the trial court and accordingly amend his pleadings. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
PLEADINGS: EFFECT OF PLEADINGS DULY FILED AND EXCHANGED ON THE PARTIES AND THE COURT
The law is settled that parties as well as the court are bound by the pleadings duly filed and exchanged and as such, a party cannot be allowed to discard his pleadings and make a case which is completely at variance with his pleadings. See National Investment and properties Ltd. v. Thompson organsation Ltd. (1969) 1 NMLR 99. Thus, facts in pleadings which remained un-established by evidence will not be accredited by the court. Likewise, evidence which is not predicated on pleaded facts will be discountenanced by the court, as such evidence goes to no issue. See Chukwumah v. shell Petroleum (1993) 4 NWLR (pt. 289) 512. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVALUATION OF EVIDENCE: WHETHER IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE AND IT IS ONLY WHERE IT HAS NOT BEEN WELL CARRIED OUT THAT THE APPELLATE COURT WILL INTERFERE WITH IT
… the law is firmly established that it is the trial court that saw and heard the witnesses that has the primary duty of evaluating the evidence and the appellate court will only interfere where the duty has not been well carried out. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
SPECIAL DAMAGES: WHETHER SPECIAL DAMAGES MUST NOT ONLY BE SPECIFICALLY PLEADED BUT ALSO PROVED STRICTLY
… it is the law that a party who claims special damages must not only plead it specifically, he must also prove it strictly. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
GRANT OF DECLARATION OF RIGHT: WHETHER THE COURT CAN GRANT DECLARATION OF RIGHT IN DEFAULT OF DEFENCE
It is the law, that the court does not grant declarations of right either in default of defence or indeed on admission, without hearing evidence and being satisfied by such evidence see Kwajaffa v. B. O. N. Ltd. (1999) 1 NWLR (Pt. 587) 423; Ogunjumo v. Ademolu (1995) 4 NWLR (pt. 389) 254; Bello v. Eweka (1981) 1 SC 10. Also, the law is settled that a court can only act on the basis of pleaded facts and evidence placed before it by the party who has the duty to do so. See N. B. C. I. v. Alfijir (Mining) Nig. Ltd. (1993) 4 NWLR (Pt. 287) 346. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
DR. GEORGE NYONG IKPE UDOFIA – Appellant(s)
AND
1. AKWA IBOM STATE CIVIL SERVICE COMMISSION
2. HON COMMISSIONER FOR EDUCATION
3. GOVERNMENT OF AKWA IBOM STATE
4. MR. N. C. EZEH
5. MR. A. W. INYANG
6. HON. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, AKWA IBOM STATE – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): The Appellant was the plaintiff in suit No. HU/39/97 commenced through the writ of summons and statement of claim filed on 2nd May, 1997. By his amended statement of claim filed on 7th April, 2003, the plaintiff claimed against the defendants, declaratory reliefs, payment of salary and allowances particularized therein as special damages.
After exchange of pleadings, the case went to trial and in the judgment delivered on 2nd July, 2009, the claims of the plaintiff were dismissed by the lower court. Being dissatisfied with that judgment, the plaintiff filed his notice of appeal on 14th September, 2009 with four grounds of appeal. Henceforth in this judgment, the plaintiff will be referred to as the appellant and the defendants as respondents. The appellant’s brief of argument settled by Dr. Aquaowo Essien, learned counsel for appellant was filed and issues were formulated therein for determination. This was after the grant of leave by this court for the filing of five additional grounds of appeal which were deemed filed on 19th January, 2011. The issues distilled therefrom are as follows:
“1. Whether the panel that was set up by the defendants to investigate allegations of dereliction of duty by the plaintiff was properly constituted in accordance with the provisions of civil service rules and one of the twins pillars of the principles of natural justice?
2. Whether the compulsory retirement of the plaintiff from civil service by the 3rd defendant was not premature and malicious having regard to the interpretation of exhibits “L1” and “K” by the Bureau of Establishment, a body that has the final say on establishment matters?
3. Whether the court below was right in basing its judgment on deduction and so- called admission by the plaintiff without taking into consideration the totality of the evidence led on both sides and being satisfied with such evidence before delivering its judgment?
4. Whether the court below was right in holding that the plaintiff pleaded no facts to show that he was entitled to promotion but was denied when there were sufficient evidence to that effect?”
The 1st – 6th respondents’ counsel Mrs. F. J. Ibanga of the Ministry of Justice, Akwa Ibom State settled the respondents’ brief of argument which was filed on 16th February, 2011. She also formulated four issues for determination. They are as follows:
“1. Whether the appellant was accorded fair hearing in accordance with rules of natural justice before he was demoted from the rank of Chief Education Officer Grade Level 13 to the rank of Principal Education Officer Grade Level 12 for dereliction of duties. (Ground 1).
2. Whether the compulsory retirement of the appellant by letter No. SSCE/ES/27/Vol.II/171 dated 13th January, 1997 after more than 35 years of service in the 3rd Respondent by Exhibit J. was premature and malicious in view of Exhibit L1 and K. (Ground 2)
3. Whether from the totally of the evidence before the court, the Learned Trial Judge was justified in her findings that the issue of the scripts being left behind in the strong room of the Oron Sub-treasury was not a mere or even strong suspicion. That it was an established fact admitted by the plaintiff, and that the publication of the results in Exhibit G does not suggest that the scripts were not left behind in the strong room of the Oron Sub-treasury. (Ground 3)
4. Whether the appellant had proved his case at the lower count that he was entitled to promotion. (Ground 4)”
The appellant’s counsel argued on the first issue that the principle of natural justice that is nemo judex in causa sua was breached in the composition of the panel that investigated the allegation against the appellant, in that Mr. A. W. Inyang, a Director who later became the Permanent Secretary and immediate boss of the appellant and who had earlier issued a query to him, headed the panel. This argument was debunked by the respondents, with the counter argument that the piece of evidence relied upon by the appellant in this regard, was obtained under cross – examination and was not in line with the pleadings which had stated that it was one Bassey J. Ekanem who headed the panel. Reference was made to paragraph 12 of appellant’s amended statement of claim. The said piece of evidence as submitted by the respondents, counsel must go to no issue, since parties are bound by their pleadings. This submission is well made. It is firmly established, that evidence led or extracted under cross examination which has not been pleaded by either of the parties, goes to no issue. Thus, an adverse party who thought that the evidence is relevant and material to the issue of fact in contention, is obliged to make it part of his case and plead it, in order to bring it in line with evidence on record or lead independent evidence on it. This is more so, where the said piece of evidence extracted under cross- examination, if accepted by the trial court, could decide the issue between the parties one way or the other. see See Transport Ltd. v. Oluwasegun & Anor. (1923) 1 All NLR 668 /676. Hence, such a party will do well to seek leave of the trial court and accordingly amend his pleadings.
The law is settled that parties as well as the court are bound by the pleadings duly filed and exchanged and as such, a party cannot be allowed to discard his pleadings and make a case which is completely at variance with his pleadings. See National Investment and properties Ltd. v. Thompson organsation Ltd. (1969) 1 NMLR 99. Thus, facts in pleadings which remained un-established by evidence will not be accredited by the court. Likewise, evidence which is not predicated on pleaded facts will be discountenanced by the court, as such evidence goes to no issue. See Chukwumah v. shell Petroleum (1993) 4 NWLR (pt. 289) 512.
On the second issue, the retirement of the appellant cannot be said to be premature as argued by learned appellant’s counsel, in the face of the fact that he had spent the normal and lawful period of service which is 35 years and had himself given notice of his intention to retire. He was retired on the actual date chosen by him to retire. In any event, the question is; what is the legal wrong committed in an employee being compulsorily retired? This is more so, in the given facts and peculiar circumstances of this case.
On the third issue, the law is firmly established that it is the trial court that saw and heard the witnesses that has the primary duty of evaluating the evidence and the appellate court will only interfere where the duty has not been well carried out.
Finally, on the fourth issue, it is the law that a party who claims special damages must not only plead it specifically, he must also prove it strictly. There is no evidence in this case that the appellant was entitled to promotion as of right rather than as merited or as a privilege. It has been contended by the learned counsel for the respondents that there are two steps or grades of Assistant Director and Deputy Director between the appellant’s rank of Chief Education Officer and Director of Education. The appellant did not show by credible evidence what entitled him to special dispensation of triple promotions from Chief Education Officer to Director and in view of his demotion to the rank of Principal Education Officer.
The appellant, was a civil servant whose employment was guided by the civil service rules and other relevant laws. He was alleged to have committed what amounted to dereliction of duty, given a query and heard verbally through a panel of enquiry set up for that purpose. His allegation of breach of the rule of nemo judex is unfounded in that, the piece of evidence he relied upon is not founded upon the pleadings. The appellant testified as the Pw1 at the hearing of his action while the respondents also called one witness. It is clear from the record that the Dw1 was not in anyway shaken by the barrage of questions thrown at him by the learned counsel for the appellant under cross examination.
In the instant case, the plaintiff who has the burden of proof failed to prove, especially the declaratory reliefs sought which could not even be granted upon default of pleadings or even admission but on evidence of the claim properly and duly adduced. It is the law, that the court does not grant declarations of right either in default of defence or indeed on admission, without hearing evidence and being satisfied by such evidence, see Kwajaffa v. B. O. N. Ltd. (1999) 1 NWLR (Pt. 587) 423; Ogunjumo v. Ademolu (1995) 4 NWLR (pt. 389) 254; Bello v. Eweka (1981) 1 SC 10. Also, the law is settled that a court can only act on the basis of pleaded facts and evidence placed before it by the party who has the duty to do so. See N. B. C. I. v. Alfijir (Mining) Nig. Ltd. (1993) 4 NWLR (Pt. 287) 346. Alas, the appellant failed to prove the weighty assertions made by him.
Having carefully perused the record of appeal coupled with the arguments canvassed by the learned counsel for the parties in their respective briefs, I am of the mindset that the learned trial judge in respect of this case, did set out the issues joined by the parties in the pleadings, adequately assembled the evidence adduced by either side on the issues joined in the imaginary scale and rightly found which evidence outweighed the other, after due assessment, evaluation and ascription of probative value and ascertainment of quality of the witnesses who appeared and testified before him and the documentary evidence similarly tendered. In the given circumstances, the onus lies squarely on the appellant herein to satisfy the court below, that he is entitled on the basis of evidence adduced before the trial court, to the declaration sought by him. I am of the firm viewpoint, that the judgment of the lower court is a thorough appraisal of the evidence of the witnesses as well as the pleadings and this Court has no clear basis whatsoever to interfere therewith. The same shall remain as it is undisturbed.
In the given premise, the issues raised in this appeal are resolved against the appellant and in favour of the respondents. Appeal is devoid of merit and it is accordingly dismissed. I make no order as to costs.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother Massoud Abdulrahman Oredola, JCA. I agree with the reasons given in the judgment and the conclusion reached. The appeal lacks merit and it is accordingly dismissed. I award no costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading before now the lead judgment of my learned brother, Massoud Abdulrahman Oredola, JCA in this appeal, I agree that the appeal lacks merit and I too dismiss it.
I make no order as to costs.
Appearances
Udom Edemekong Esq.For Appellant
AND
F. J. Ibanga (Mrs.) Assistant Director, Civil Litigation, Ministry Of Justice, Akwa Ibom StateFor Respondent
