RENE ANTOUN & ANOR V. BENSON OGHENE
(2012)LCN/5343(CA)
In The Court of Appeal of Nigeria
On Monday, the 30th day of April, 2012
CA/L/486/05
RATIO
EVIDENCE: BURDEN OF PROOF IN CIVIL CLAIM
Firstly, a party in a civil claim has the onus of proving his claim in order to be entitled to Judgment. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WHETHER EXTRANEOUS EVIDENCE IS PERMISSIBLE IN AN AGREEMENT REDUCED IN WRITING
If an agreement has been reduced into writing, it is the terms and conditions as contained in the document that is the determinant factor and no oral or extraneous evidence is permissible. See UBN Ltd. V. Professor Albert Ojo Ozigi 1994 3 NWLR (Pt. 333) 385. In this wise, it is my view that the Respondent was bound to plead and rely only on the written agreement and terms of entitlements thereon and not to postulate viva voce such terms as he did at the trial. It is specific entitlement in the agreement that had to be specifically pleaded and proved and not any other or by no any other means. In Oloto V. NAO Ltd. (2001) 88 LRCN 2283, Kutigi, JSC stated thus:
“The issue (3)
The complaint here is directed to the award of N2, 186, 66 as special damages for the loss of two outboard engines by the trial court. It ought to be borne in mind that being an item of special damages, the law requires that it must be specifically pleaded and strictly proved as well” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: EFFECT OF EVIDENCE LED ON UNPLEADED FACTS; EFFECT OF PLEADINGS NOT SUPPORTED BY EVIDENCE
It is settled law that –
Evidence led in respect of unpleaded facts goes to no issue; and so also pleadings that are not supported by evidence must be disregarded as barren and unproved. The pleadings, in this case, at the trial was barren and so also the evidence led was unpleaded and went to no issue, therefore. See Chukwuma V. Shell (1993) 4 NWLR Pt. 289, 572 at 538. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WHETHER A JUDGE MUST ACT ON ADMISSIBLE EVIDENCE
As rightly submitted by the Appellant’s counsel, a trial Judge is only entitled to act on admissible evidence placed before him. See Opeola V. Opadiran (1994) 5 NWLR Pt 34, 368 at 386 paragraph F. The evidence led, not having gone to any issue ought have been disregarded. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. RENE ANTOUN
2. RAGOLIS WATERS LTD. Appellant(s)
AND
BENSON OGHENE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Hon. Justice E. A. Lufadeju of the Lagos State High Court delivered on the 25th day of February 2005 by which the said learned trial Judge granted all the reliefs claimed by the claimant/Respondent in his claim for specific sums for alleged breach of contract of employment by termination thereof before the attainment of the stipulated terminal age of 60 years. The Respondent who was the claimant at the lower court had taken out a writ of summons and statement of claim dated the 5th day of March, 1999 by which he claimed the following reliefs:
i) The normal entitlement upon retirement.
ii) The sum of N2.5 Million (Two Million Five hundred Thousand) Naira being the Plaintiff’s emolument up to sixty years retirement age.
iii) Damages of 1.5 Million Naira for wrongful termination of the Plaintiff’s employment.”
See pages 2 and 4 of the Record of Appeal for the Writ of Summons and the statement of claim respectively.
The 2nd Defendant filed a statement of Defence dated the 18th day of January, 2000, denying the Respondents claims. The facts of the case at the trial are succinctly put thus:
The Respondent who was an employee of the 2nd Respondent rose to the position of the Head of Bottling section after 16 years of service. He was 54 years old and due for compulsory retirement upon attaining the compulsory retirement age of 60 years. His appointment was however terminated after the service of the contractual Notice on him, when he still had 6 more years to compulsory retire from the service of the 2nd Respondent.
After the Plaintiff/Respondent had led evidence and closed his case, the learned counsel for the Appellants informed the trial court that it had no cross examination to make. It however, agree on a date for defence but failed to so appear.
(See page 139 of the record of proceedings)
Upon the non cross examination by the defendant/Appellant and entry of defence, the learned trial Judge proceeded to enter Judgment per the entirety of all the claims as made. The Judgment is contained at pages 127-142 of the Record of Appeal. Dissatisfied with the Judgment as earlier stated in this Judgment the Appellant herein filed an amended Notice of Appeal on 6/10/11 of the same date following the grant of motion for amendment granted on 29/3/07.
The initial Records of appeal was transmitted to this court by leave granted for departure from the Rules of this court on 7/3/06 and a supplementary record was also transmitted following the grant of the motion filed on 4/7/6 which was granted on the 29/3/7. Appellant relies on the Amended Notice of Appeal which was filed on 5/4/7. Upon the transmission of the records of appeal, the Appellant was granted leave for extension of time and a deeming order to file his Appellant’s Brief of Argument out of time following a motion to that effect granted on 15/10/08.
The said appellant’s Brief of argument filed on 31/5/07 was deemed filed on 15/10/08. The Appellant however relies on the Amended brief filed on 30/6/11. The Respondent on the other hand was also granted an extension of time to file and serve the Respondent’s Brief of Argument.
The Application to that effect, which was filed on 7/6/10, was granted on 8/6/10 with an order that it be filed within 14 days and specifically refusing the prayer No. 2 deeming the Respondent’s Brief of Argument already filed and served as having been properly filed and served.
No new brief would appear to have been filed and served by the Respondent as only the earlier one filed on 14/3/08 which was refused to be the subject of a deeming order appears in the record of appeal.
When the Appeal came up for hearing the learned counsel for the Appellants Susan Agu (Mrs.) leading I.C. Eke adopted the Appellant’s Brief of Argument and accordingly urged this court to allow the Appeal.
The Respondent’s learned counsel, J. Akamike Esq. on his part also stated that he was adopting the Respondent’s Brief of argument dated and filed on 20/6/11. I must state that there is no such brief dated 20/6/11 or even 30/6/11 filed by the Respondent herein in this appeal.
The Record of appeal which is the Bible of the court does not contain such Brief. It is the Appellant that has a brief of argument filed on 30/6/11 pursuant to an order for Amendment granted on 15th June 2011. Appellant’s Amended Brief was filed on 30/6/11 pursuant to the order of court made on 15th day of June, 2011.
The Appellant, herein formulated 3 issues as arising for the determination of this court from its 5(five) grounds of Appeal.
The issues are as follows:
1. Whether the learned trial Judge was right when she granted the reliefs sought by the Respondent and awarded the sum of N2.6 Million as normal entitlement upon retirement, without recourse to the terms and conditions of the Respondent contract of service as contained in exhibits A & C (Grounds 1, 2 and 5)
2. Whether the trial Judge was right to have awarded the sum of N 2.5 Million to the Respondent as emolument up to 60 years retirement age (Ground 3)
3. Whether the sum of N 1.5 Million awarded to the Respondent by the learned trial Judge as general damages is sustainable in law (Ground 4).
The Issues as formulated by the Appellant could be said to have been adopted seriatim and in total as the Respondent, did not only proceed to restate them as the Appellants’ issues for determination, but went on to argue those issues as perceived by the Respondent and in its favour, in justification of the Judgment appealed. I shall, therefore, in the interest of Justice proceed in this Judgment in the same manner, as argued.
Now to the arguments – The learned counsel for the Appellants’ Arguing: On Issue No. 1, submitted that the Plaintiff now Respondent, having sued in respect of the breach of the contract of Employment between the parties and having sought or claimed some entitlements as due to him upon compulsory retirement, recourse could only be heard to the terms and conditions of service binding between the parties in ascertaining these entitlements to be awarded. It was argued that the entitlements are as contained in Exhibits A & C. i.e. letter of Employment and Employee’s Handbook respectively as contained in pages 1 – 12 of the Supplementary records; that the court cannot go outside the terms of the said Exhibits “A” and “B” which constitute the Agreement between the parties. The Supreme Court case of Idoniboye-Obu V. N.N.P.C. (2001) 2 NWLR Pt. 805, 589 at 630 and the decision of this court in British Airways V. Makanjuola (1993) 8 NWLR Pt 371 at 276 at 289 para. FG were referred to in support. Learned counsel submitted that the learned trial Judge merely relied on the evidence of Plaintiff/Respondent in disregard of the terms of the contract of service in holding that “I have no reason whatsoever to disbelief the unchallenged evidence of the Plaintiff” See page 141 of the Record of Appeal. Learned counsel faulted the reliance made on the oral evidence of the Respondent as it was not based on the terms and conditions of service. It was further argued that reliance can only be had on page 12 of Exhibit “A” as done by the Respondent and the court where the employee’s employment is terminated as a result of redundancy or compulsory retirement at the age of 60 years or voluntary retirement by the employee, non of which was applicable to the Respondent’s case. That, although the evidence of the Plaintiff/Respondent was not challenged by the Appellant/Defendant, it was wrong for the trial court to have acted on it. It was also argued that the oral evidence upon which Judgment was entered was also at variance with the Respondent’s Amended Statement of claim; that the particulars of claim for normal entitlements upon retirement were not pleaded; also the exact amount being claimed as normal entitlement upon retirement was not pleaded. See page 21 – 22 of the record. Learned counsel pointed out that it was only at the trial that the Plaintiff/Respondent gave evidence of the amount involved and the particulars. It was contended that a claim for entitlement as in this case is in the nature of special damages and that the particulars thereof must be pleaded and proved in evidence. Nitel V. Oshodin (1999) 8 NWLR Pt 676 page 528 at 542; Daniels Holding V. Uba Plc (2005) 11 MJSC page 69 referred.
It was also argued that the oral evidence given went to no issue and ought to have been rejected. That the oral evidence led being at variance with the pleaded facts is not admissible in law and could not have sustained the Respondent’s case. That a trial Judge is only entitled to act on admissible evidence before it: Opeola V. Opadiran (1994) 5 NWLR Pt. 334 at page 386 par. F refers.
Finally, it was argued that the court ought to have disregarded the improperly received evidence not withstanding the absence of objection to it; and to decide the case on legal evidence. That this court should so do.
Arguing in response, the Respondent’s learned counsel in his Respondent’s Brief of argument filed 14/3/08, by the Issue No. 1 which is similar to Appellant’s issue No. 1 stated that the amount awarded was N2.16 Million Naira and not N2.6 Million.
That the said sum had been admitted by the parties in this court in the ruling for stay of execution; that the said sum is in strict conformity with the conditions of service, Exhibit ‘A’ at page 12 of the handbook. That the said entitlement have already been paid to his client, having been pleaded, testified to and not challenged by the Appellant.
The Respondent’s learned counsel gave a breakdown of his client’s entitlement based on 16 years of service and reckoning 6 months period for a valid Notice of retirement with incidental entitlement for breach thereof. Medical allowances and other benefits relating to right to allocation of bottled Ragolis Water and the value thereof of were raised and total package justified in the written submission.
In conclusion, it was argued that the Respondent had so testified to all these entitlements claimed and awarded without any cross examination by the Appellant and that that issue should therefore, be resolved in favour of the Respondent and against the Appellants. The resolution of this issue is simple. Firstly, a party in a civil claim has the onus of proving his claim in order to be entitled to Judgment.
The law is that in a civil claim, the duty of a court of law is to render unto a party as per his proven claim. See A.I.B. V. Packo Plastics (2001) 30 WRN 141 per Isa Ayo Salami JCA 159 – 160 lines 40 – 45. See also Agbi V. Ogbeh (2006) 39 LRN 17 39.
In my Judgment in TRSJ/147M/06 delivered at the High Court of Justice Taraba State, Gembu Judicial Division, Gembu, I had stated thus:
“It is clear from this law that it is only what the Plaintiff is entitled to that shall be given as a Judgment in his favor…”
See further, my contribution in CA/L/82/2002 between:
1. FORTUNE INTERNATIONAL BANK PLC
2. SUFOOK PETROLEUM SERVICES LTD.
3. MR. HENRY ADAWAR MAC PEPPLE
4. MR. ELFRIDA MCPEPPLE
5. MR. EMMANUEL MACPEPPLE
AND
CITY EXPRESS BANK LTD. Delivered on 30/3/12.
Having said as above, the question now is, was the Respondent entitled to the reliefs as granted at the trial court?
I have perused the record of appeal herein and find at pages 19-22, thereof that by the Amended Statement of Claim, (inked pages 20 – 23 in red) the Appellant claimed an unquantified retirement benefit. That is to say the amount was not pleaded. At paragraph 27 of the Amended statement of claim, the Plaintiff/Appellant averred as follows:
“Apart from the retirement benefit which the Plaintiff will receive he will also be entitled to at feast N2. 5 Million as emolument up to his retirement.
Wherefore the Plaintiff claim against the Defendants jointly and severally as follows:
1. Normal entitlement upon retirement,
2. The sum of N2.5 being the Plaintiff’s emolument up to the sixty years retirement age,
3. Damages of N1.5 Million for wrongful termination of the Plaintiff’s employment.”
I have perused carefully the submissions of the respective learned counsel for the parties and think that the starting point is to find out whether the Plaintiff had pleaded the sums awarded to him as his Normal entitlement and proved same, in law.
The Plaintiff, no doubt had pleaded thus: “Normal entitlement” and as the relief thereof did not also indicate the sum claimed as Normal entitlement. See the relevant portion of the Amended statement of claim reproduced supra. At the trial, as rightly pointed out by the Appellant’s learned counsel in his Brief of argument, the Respondent had testified by giving a breakdown of the sums or items constituting the amount perceived as Retirement entitlement. Those figures and or items were not specifically pleaded. The law is that in a claim for special damages, the specific claims must be specifically and specially pleaded and strictly proved. See Daniels Holding V. UBA PLC 9 (2005) 11 MJSC 69. Furthermore as rightly submitted by Appellant’s counsel, in an action for termination of employment, a claim for salaries and other entitlements are in the nature of special damages which must be specifically pleaded and proved. See Nitel V. Oshodin (1999) 8 NWLR Pt. 616 page 528 at 542. The Appellant as Plaintiff did not specifically plead the quantum of money referred to as other retirement entitlements. His oral evidence of facts and figures arising from his own calculation before the court therefore went to no issue as it amounted to evidence led on facts not pleaded. If an agreement has been reduced into writing, it is the terms and conditions as contained in the document that is the determinant factor and no oral or extraneous evidence is permissible. See UBN Ltd. V. Professor Albert Ojo Ozigi 1994 3 NWLR (Pt. 333) 385. In this wise, it is my view that the Respondent was bound to plead and rely only on the written agreement and terms of entitlements thereon and not to postulate viva voce such terms as he did at the trial. It is specific entitlement in the agreement that had to be specifically pleaded and proved and not any other or by no any other means. In Oloto V. NAO Ltd. (2001) 88 LRCN 2283, Kutigi, JSC stated thus:
“The issue (3)
The complaint here is directed to the award of N2, 186, 66 as special damages for the loss of two outboard engines by the trial court. It ought to be borne in mind that being an item of special damages, the law requires that it must be specifically pleaded and strictly proved as well”
It is settled law that –
Evidence led in respect of unpleaded facts goes to no issue; and so also pleadings that are not supported by evidence must be disregarded as barren and unproved. The pleadings, in this case, at the trial was barren and so also the evidence led was unpleaded and went to no issue, therefore. See Chukwuma V. Shell (1993) 4 NWLR Pt. 289, 572 at 538. As rightly submitted by the Appellant’s counsel, a trial Judge is only entitled to act on admissible evidence placed before him. See Opeola V. Opadiran (1994) 5 NWLR Pt 34, 368 at 386 paragraph F. The evidence led, not having gone to any issue ought have been disregarded. I so expunge the said evidence as led. The evidence led was at variance with the pleadings and the fact that it was not challenged does not confer legitimacy on it. See UBN V. Sax (1994) 8 NWLR Pt. 361, 150 at 171 paragraph B – C where it was held –
“Where the matter has been improperly received in the court below even where there is no objection raised, it is the duty of the Court of appeal to reject it and to decide the case on legal evidence.”
This case on appeal arose from a master-servant relationship wherefore reliefs were claimed for wrongful termination of employment. The Respondent at the trial tendered the handbook governing the employment and his letter of Appointment dated 7th August 1983 which were both admitted as Exhibits A and C. (See page 133 – 134 of the record of appeal). Reliance was placed on page 12 of Exhibit “A” for a calculation. Even if the Respondent had pleaded the particulars of his claim to entitlement sought, he could not go outside the terms of the said Exhibits which form or constituted the contract between the parties as far as the employment relationship was concerned. The terms of a contract is binding between parties thereto and is sacrosanct. It cannot be altered or rewritten by the parties, except under their agreement. In the same token, even the court cannot so alter such contract. It can only enforce the terms except they are against public policy or are illegal or contra bonus mores (contrary to morality). In Hilary Farms Ltd. & Ors. V. Mv. Mahtra Sister Vessel To Mv. “Kadrina” & Ors, (2007) 6 SCNJ 292 Ogbuagu JSC in his concurring Judgment at page 311, paragraphs 10 – 15 had this to say:
“The above conditions are clear and unambiguous that they need no interpretation. It need to be stressed and this is also settled that if parties enter into an agreement, they are bound by the terms….”
See also Egbereh V. Nimrah 2008 Vol. 758 LRCN. To pay the Respondent an unearned salary and benefits as entitlements is a subterraneous way of ordering the specific performance of a contract of service. A court will not make an order of specific performance of a contract of service as to do so will amount to imposing on an unwilling master, a servant no longer desired. See Mobil Oil Nigeria Ltd. V. A. Akinfosile (1969) NMLR 217. It is in this wise that, I think the grant of the unearned salary and benefits in prospect as made by the trial court is an indirect way of granting reliefs which the courts are forbidden to grant. By the contract of service and in particular Exhibit “A”, which is the Respondent’s letter of Employment, the Respondent’s employment may be terminated by the employer upon the giving of one month’s Notice. For the termination or the payment of one month’s salary in lieu of Notice for the avoidance of doubt the said Exhibit provides thus:
RAGOLIS WATERS LTD.
17TH AUG., 1983
Mr. Benson N. Oghene
116 Muyibi Street,
Olodi – Apapa.
Letter of Appointment
We refer to your recent application for employment and the subsequent interviews held in our office and are pleased to offer you employment as production Technician in our Plastic Moulding/Injection Section under the following conditions:
Date of Engagement – 15th September, 1983
Basis Allowance – N4, 800.00 p.a.
Housing Allowance – N 360, 00 p.a.
Transport Allowance – N 360, 00 P.a.
After completing twelve calendar months in our employment you will be entitled to an annual leave of 3 weeks duration.
Medical facilities will be provided for you at the company’s approved clinic.
Your employment shall be for a probationary period of three months during which you would be given only two weeks’ notice should your service be no long required. However, once you are confirmed you would be required to give one month’s notice in writing of your resignation. Similarly, after your confirmation, the company shall give you one month’s notice of termination of employment or pay you one month’s salary in lieu of notice.
You will be bound by the rules and regulation of the company.
Kindly confirm your acceptance of the above terms and conditions by signing and returning the duplicate copy of this letter.
Yours faithfully,
RAGOLIS WATERS LIMITED.
OLU OBASEKI.
By the letter of retirement of Appointment, the Respondent was retired by a Notice. The date of the letter being 8th January, 1998 was to take effect from 8th February, 1999. The parties or any of them has not raised any complaint as to the said Notice; and being a document its content cannot be varied or altered by anybody or the court. The Notice therefore was for a period of 1 year. It is a period beyond the 1 month period to which an employee was entitled to when it was a termination of appointment. Even in the case of retirement an employee by the terms of Exhibit the conditions of employment or contract of service was entitled to only 3 months.
Although the company is bound to give 3 months notice to employees who are due for retirement from the company’s service, and employees other than those retired on health grounds or due to total or partial disability will be required to work the period of Notice, the Respondent herein, who had not attained the retirement age of 60 years, (as he was shown by evidence to be 55 years) cannot be said to have been adjudged wrongfully retired for not being up to the statutory age for retirement. There was no such case made and therefore no finding or decision to that effect exists.
The Appellant’s learned counsel was therefore right when he submitted that the Respondent was not held to have been wrongfully retired. That there was no decision against the Appellant for any wrong breach of the terms of the service agreement between the parties and that the relief granted had no basis. That is correct. The Respondent’s contract of employment could be terminated or determined by a month’s Notice, since he was a confirmed employee. The cessation of employment by the giving of more than 1 month’s Notice, and in this case up to a year Notice, in my view, more than meets the requirement of Notice under the Contract of Employment. It is the letter and the service terms that are binding between the parties. The terms and conditions of service provides for one month’s Notice or 3 months Notice as the case may be. The Plaintiff/Appellant averred at paragraph 12 of his Amended Statement of Claim thus:
“That while on annual leave, the Plaintiff was served a letter of retirement dated 8th January, 1999. The said retirement is to commence from 8th February, 1999. The Plaintiff shall rely on the said letter at the trial”
This averment was not proved in evidence and therefore deemed abandoned. In law, a Plaintiff wins on the strength of his own case and not on the weakness of his opponent’s case. That is to say, the Defendant may decide not to call evidence. See Nwabuoku V. Ottih 1961 All NLR (Pt. 2) page 489, and the failure to call evidence will not prejudice him, rather the failure can only strengthen the opponent/claimant’s case if one had been made out. It cannot however be a basis for making a case where non exists or is not proved by the claimant. The Plaintiff made a claim for entitlements not earned yet as he based his retirement age at 60 years. His employment, not having been proved to be of statutory term of 60 years and neither has there been proof of the breach thereof, the Appellant cannot make a claim for alleged unearned entitlements for the duration of period between his age of 54 years and the speculative terminal period of 60 years claimed. In a contract of master and servant, the main function of the court is to interpret the contract, if any.
A court is not to go outside the terms and rewrite the contract for the parties, by making awards not established by evidence from the agreed terms. The Judgment of the trial court, based on the alleged want of reason to disbelieve the unchallenged evidence of the Plaintiff, is a Judgment based on oral evidence of claimant solely, rather than on the written documentary proof of the contract and conditions of service.
I therefore, agree with and resolve the Appellants’ 1st issue in their favour and against the Respondent.
On issue No. 2, the Appellant argued that the award of the claims as emolument for retirement up to age 60 years upon a claimed differential of 6 years (between 54 years and 60 years) and the award of damages to the tune of 1. 5 Million for unlawful determination amounted to double awards.
That if a relationship had been brought to an end, the award of damages cannot be added to full entitlement due and to be paid both in full. I agree that the court is not a Father Christmas to be dishing out reliefs indiscriminately. To pay the Respondent the sum ordered as damages and entitlement for period upfront of service period amounts to a double award and is a speculative award, in my humble view. The Respondent cannot be entitled to wages he has not earned.
See C.C.B Nig, Ltd. V. Nwankwo (1993) 4 NWLR Pt. 286 wherein it was held thus:
“An employee who has been dismissed in breach of his contract of employment is not entitled to treat the contract as subsisting and sue for account of profit which he would have earned to the end of the contract. A servant who has been unlawfully dismissed cannot claim his wages for services he never rendered.”
This authority is most apt and applicable as an answer against the claim by the Respondent of the sums of 1.5 Million as entitlement for the alleged 6 years period left for him to serve, and for such entitlements as the equivalent sum for cartons of Ragolis water and other fringe benefits expected as entitlements were he still in the employment of the 2nd Appellant.
To have granted the reliefs as claimed would mean that the court recognized in a conflicting pattern, the fact of cessation of the Respondent’s employment and at the same time thought that the Respondent was deemed to be in service in any case, hence the award for the unearned sums. The measure of damages in a case of wrongful dismissal is always the amount of money that is payable during the period of Notice to be given by the employer as stipulated in the Contract of employment and not salaries up to retirement. See B.S. Onalaja V. African Petroleum Ltd. (1991) 6 NWLR Pt. 198, 492.
I agree with the learned counsel for the Appellant when he urged that the trial Judge was wrong to have granted the claim for emolument up to 60 years as it was contrary to the contract of service which allowed either party to terminate the contract upon giving the required Notice to the other party.
The Appellant gave Notice. The Respondent did not prove that it was not the required Notice. He had the burden of proving this as it was he who will fail if no evidence in that respect was led. See sections 135 – 137 of the evidence Act and section 139, thereof. See also the presumption of withholding evidence under section 149 (d) Evidence Act 1990 (now section 149 (d) of the Evidence Act 2004. The law is that a party who asserts a fact and relies on such fact(s) or document but fails or neglects to produce same, it shall be presumed that such evidence or facts do not exist. It is important to stress that the proof required is proof in accordance to law. It should be understood that the claims at the trial were not brought under the undefended cause list procedure, which in any case would still require proof on the merit, notwithstanding. The Respondent had explicitly agreed by the submission of his learned counsel on his issue No. 2 that he had made a request for N2. 5 Million as payment up to age 60 years to the hearing of the Appellant and the Appellant did not refute, thereby agreeing to the request or claim. That the Appellant had every opportunity to refuse payment. A party shall only be entitled to his proven claim in law. A party does not succeed on the basis of the whims or caprices of a Judge or the non insistence of his opponent. See S.S.C. Ltd. V. Afropak Nig. Ltd. (2008) 164 LRCN 1 wherein this court, per Ayo Isa Salami, JCA opined thus: “A party wins or the strength of his proven claim.” See again Agbi V. Ogbeh (2008) 39 LRCN 17 at 39. I had reiterated the same position earlier in this Judgment. On the whole, this issue is resolved in favour of the Appellant. Issue No.3 has been effectively addressed by the resolution of issues No. 1 and 2. I need, however, only refer to the arguments therein in brief. The Appellant has submitted that the award of general damages was duplication upon the award for normal entitlements upon retirement and the sum as emolument up to 60 years of age. That the claims and awards were in the nature of special damages and needed to be specifically pleaded with particulars and proved. I agree that that is so. The Appellant had also argued that the award as made at the trial amounted to double compensation. In Kusfa V. United Bawo Construction Co, Ltd. (1994) 4 NWLR Pt, 336 page 7 at page 76, the Supreme Court held thus:
“In an action for breach of contract, a Plaintiff therefore who is well compensated under one head of damages for a particular claim cannot be compensated in respect of the same claim under another head of damage, as this will amount to double compensation. The law frowns against double compensation whether in contract or tort.”
The award of the sums as made all amount to not only double compensation, but triple compensation, in my view. The Respondent, in his argument on the 3rd issue, simply submits that the award as made was “suitable in law” as according to him the Appellants wrongfully determined the employment of the Respondent and did not deny this fact. That the consequence was bad on the Respondent who had made no plans for the retirement and had suffered serious set back for which he requested N1.5 Million to assist him in the set back which the Appellants did agree at the trial.
As I had stated in the resolution of the 1st issue, the burden of proof is upon the Claimant and not on the Defendant. Furthermore, the court is not a gratuitous or charity institution but a place for the ventilation and proof of one’s claimed rights which shall only be declared upon the proof of such claims. See Agbi V. Egbeh (2006) 39 LRCN 77 at 39 (SC) and A.I.B. V. Packo Plastics (2001) 30 WRN 741 per Ayo Isa Salami, JCA.
In Opeola V. Opediran and I.I. T.A. V. AMRAN, (1994) 3 NWLR Pt. 332 296 at 325 paragraph C – D, it was held thus:
“The position of the law is that for a claim for damages to succeed the Plaintiff who is making the claim must have findings in his favour in relation to the reliefs he seeks. In other words where he fails to prove his case upon which damages is sought then claim for damages must fail.”
The Respondent had failed to prove the wrongful determination of his employment. This constituted the basis for claiming general damages; and the trial court did not make any findings in respect of the alleged wrongful determination. I agree that, that claim should fail. The award made was speculative. At best it could be said to be an award based on the scanty evidence of termination or cessation of employment which was admitted but without proof or admission of its wrongfulness.
Learned counsel had argued that the award was arbitrary, excessive and at variance with established principles of law on the award of damages. He also urged that the award be set aside. I agree that this argument have basis; and on the strength of the views and resolutions herein before made in this Judgment, Issue No. 3 is accordingly resolved in favour of the Appellant. On the whole, this appeal has merit. I allow it. The decision of Lufadeju, J delivered on the 28th day of February, 2005 in Suit No. LD/620/99 is accordingly set aside and quashed. In substitution thereof, I order that the said Suit filed at the trial court be and stands dismissed pursuant to section 15 of the Court of Appeal Act 2004.
There shall be no order as to costs.
K. B. AKAAHS, J.C.A: I read in draft the judgment of my learned brother, Danjuma, JCA. I agree with the conclusion reached in the judgment that the appeal is meritorious and should be allowed.
The Appellants were granted leave to amend the Notice of Appeal on 29th March, 2007 which was fifed on 5th April, 2007. The Respondent died during the pendency of the appeal and was substituted by his brother, Peter Evumena Oghene on 15th June, 2011. In the Motion of 10th June, 2011 on which the order of substitution was granted, time was extended for the filing of the Respondent’s brief and the brief filed along with the motion was deemed as properly filed on 10th June, 2011. Consequent upon the order of Court dated 15th June, 2011; the Appellants filed their brief on 30th June, 2011.
My learned brother, Danjuma, JCA has restated the law that in a contract of employment involving master and servant, the main function of the Court is to interprete the contract of service whether the claim by the injured party is contested or not. Thus, where the conditions of service provides for the termination of the contract by giving one month’s notice or salary in lieu, notwithstanding the fact that there is a clause which allows the employee to continue in service until he reaches 60 years before he can compulsorily retire from service, such latter clause cannot be invoked if the contract lacks statutory flavour. If the items of damages claimed are special in nature, a party to succeed must plead and prove same in evidence. This was not done in this case; hence the appeal succeeds.
I endorse the order regarding costs.
JOHN INYANG OKORO, J.C.A: I had the privilege of reading in draft the Judgment of my lord, Danjuma, JCA just delivered with which I agree Although the Respondent gave in evidence the details of his entitlements as retirement benefits, that evidence could not be anchored in the pleadings of the Respondent as he failed to plead those sums amounting to “normal entitlement upon retirement”. It is trite that in a claim for special damages, the Claimant must specifically and specially plead those claims and must also strictly prove them. I agree with the learned counsel for the Appellant that in an action for termination of employment, a claim for salaries and other entitlements are in the nature of special damages which must be specifically pleaded and proved. See NITEL v. Oshodin (1999) 8 N.W.L.R. (pt.616) 528 at 542.
In the light of the above and the further expositions in the lead Judgment of my learned brother, Danjuma, JCA, I agree that this appeal is meritorious and is hereby allowed by me. I abide by all the consequential orders made in the lead Judgment, that relating to costs, inclusive.
Appearances
Sussan Agu (Mrs.) with I.G. EkeFor Appellant
AND
J. AkanikeFor Respondent
