ENGR. NDIUWEM BENJAMIN AKPABOT v. POWER HOLDING COMPANY OF NIGERIA PLC & ORS
(2013)LCN/6173(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of May, 2013
CA/C/77/2012
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
ENGR. NDIUWEM BENJAMIN AKPABOT Appellant(s)
AND
1. POWER HOLDING COMPANY OF NIGERIA PLC
2. THE HONOURABLE MINISTER OF POWER & STEEL
3. FEDERAL MINISTRY OF POWER AND STEEL Respondent(s)
RATIO
THE POSITION OF LAW WHERE A CONTRACT REDUCED INTO WRITING
In Mandilas & Karaberis Ltd. vs. Otikiti (1963) 1 All NLR 22, Bairamian, F. J., held at page 26 that:”.-.when a contract is reduced into writing, the writing gives the terms agreed upon.”
see also Ihezukwu vs. Unijos (1990) 21 NSCC (pt.3) 80 at 88. PER TUR, J.C.A.
DEFINITION OF AN ADMISSION
An admission in law refers to as statement oral or documentary which suggests any inference as to any fact in issue or relevant fact.
The Black’s Law Dictionary, 6th edition defines it as.
“A statement made by one person of the parties to an action which amounts to a prior of acknowledgement by him that one of the material facts relevant to the issue is not as he now claims.” PER TUR, J.C.A.
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant was employed as a pupil Engineer by the Respondents and rose through the ranks to become an Assistant General Manager. The appellant proceeded on his annual leave to the United States of America in the year 2004. While there, the respondents nominated him to attend a procurement course at the International Law Institute, Washington D.C. holding from 13th day of September, to 8th day of October, 2004. On return to Nigeria the appellant received a letter terminating his appointment. The letter read as follows:
“STAFF REVIEW
In the course of realigning the Authority’s structure and operations, your services have been reviewed.
Consequently, your appointment is hereby determined in accordance with Regulation 41.6 of NEPA’s Conditions of service (1998 Edition) with effect from 1st September, 2004.
The General Manager (Finance and Accounts), Corporate Headquarters, Abuja has been directed to make appropriate payment to you in lieu of notice. You are, however required to surrender your identity card and NEPA property in your care to your supervisor, who is required to your supervisor, who is required to attest to your compliance.
Your entitlement, as may be applicable, is being processed for payment.
Management wishes you the best in your future endeavours.
ENGR. J. O. MAKOJU
MANAGING DIRECTOR/CHIEF EXECUTIVE.”
The appellant alleged that he was not allowed access into his office to recover his properties. The appellant instituted this suit before the Federal High Court, Abuja. When the learned trial Judge was transferred to Akwa Ibom State, by fiat, the suit was heard and determined at Uyo. The reliefs claimed by the appellant are set out in the Amended Statement of claim as follows:
“50. WHEREOF THE PLAINTIFF CLAIMS against the Defendants jointly and severally as follows:
I. A DECLARATION that the purported “determination” of the appointment of the plaintiff by the 1st defendant is wrongful, unlawful, invalid, null and void and of no effect whatsoever.
II. A DECLARATION that the obstruction or prevention by the defendants or any of their agents, servants or privies from the performance by the plaintiff of his duties in the 1st defendant is unlawful, improper, invalid, illegal and of no effect whatsoever.
III. AN ORDER directing the defendants to restore to the plaintiff all facilities, office, equipment and opportunities for the performance of his duties.
OR IN THE ALTERNATIVE:
IV. AN ORDER re-instating the plaintiff into the service of the 1st defendant forthwith.
V. AN ORDER of perpetual injunction restraining the 1st, 2nd and 3rd defendants, their agents, servants, successors in-title, persons claiming through or under any of them or their privies from obstructing, looking out, preventing, disturbing or in any manner whatsoever interference with the performance by the Plaintiff of his duties in the 1st or 3rd Defendants.
VI. AN ORDER directing the defendants to pay plaintiff all his outstanding remuneration, allowances and other entitlements from 1st September, 2004 till date.
Particulars:
1. Salary/fringe benefits from 1/9/04-31/7/06 -N3,629,018.90
2. Monthly office allowance at 10,000 for 23 months-N230,000.00
3. Monthly fueling of official vehicle at N20,000 – N460,000.00
4. Monthly maintenance of official vehicle at N20,00 N460,000.00
5. DATV monthly subscription at N10,000 230,000.00
6. Average Telephone bills at Quarters at N20,000.00 460,000.00
7. Annual Professional fees for NSE/COREN N30,000.00
8. Medical bills for family and wards N250,000.00
9. Traveling Health Insurance for self and child – N80,000.00
10. Leave allowance for 2004, 2005, 2006 N496,281.60
11. Fees for procurement course in USA (already paid)
12. Estacode for procurement course in USA from
13/9/04-08/10/2004 allowing 2 days for traveling
at US$350/day at N140/US$- – N1,372,000.00
13. Return Airfare of US$3,000 at N140/US$ – N420,000.00
14. Embassy fees at US$200 at N140/US$ – N28,000.00
15. 2 No. Return Airfares to Lagos for Vista/Fingerprint
and taxi fares – N50,000.00
16. Return Airfares to Lagos en route to IJSA (course) – N25,000.00
17. Estimated Total – – N9,046,609.36
VII. Claims
Special damages in the sum of N1,310,800.00 (One million, three hundred and ten thousand, eight hundred Naira) only being the value of the personal items seized by the defendants.
Particulars of personal items lockout in office on 15th day of October, 2004.
1. Used personal Laptop computer purchased
in USA at US$200 at N140/US$ purchased in USA – N28,000.00
2. Le Grand Mont Blane Fountain pen with inkbottle at
400 euro at N1170/euro purchase at Amsterdam -N68,000.00
3. Personal traveling allowance brought back from USA
at US$3,000 at N140/US$ – N420,000.00
4. Monies given by fiends in Denver Colorado for
their relations at home at US$5,000 at N140/US$ – -N700,000.00
5. Logitech mouse at US$50 at N140/US$ – N7,000.00
6. Nortons Anti-virus software at US$70 at N140/US$ – N9,800.00
7. Microsoft Project and Work Breakdown structure
Software at US$700 at N140/US$ – N98,000.00
Total – N1,310,800.00
VIII. Costs of this action, legal costs, assessed as follows:
(a) Travel costs associated with this action – N250,000.00
(b) Hotel Accommodation – N100,000.00
(c) Stationeries, printing and photocopies by the
plaintiff being cost of correspondence with the
defendants and Attorney. – N200,000.00
(d) Legal Professional fees – N500,000.00
Total cost – N1,050,000.00
The respondents filed their Amended Statement of Defence and Amended Reply to the statement of defence denying liability. The parties called oral and documentary evidence. Counsel submitted written addresses which the learned trial federal judge, Hon.Justice A. I. Chikere considered before dismissing the suit. The learned Counsel to the appellant filed the Notice of Appeal on 1st March, 2012 followed by a brief of argument on 31st day of May, 2012. The respondent filed brief on 26th day of November, 2012. This prompted the appellant to file a reply brief on 7th day of December,2012. When the appeal came up for hearing on 26th day of February, 2013 Counsel adopted their respective briefs of argument.
The appellant distilled the following issues for determination:
“1.Whether the 1st Respondent having elected to determine the Appellant’s appointment pursuant to Regulation 41.6 of NEPA’s conditions of Service (Exhibit “1”),the learned trial judge was right to have placed reliance on Regulation 41.7 instead of Regulation 41.6 thereof in the determination of the case before him. (Grounds (i) and (ii), Notice of Appeal dated 5th April, 2012).
2. Whether the 1st Respondent was right to have relieved the Appellant of his appointment pursuant to Regulation 41.6 of NEPA’s condition of service (Exhibit “1”) in the absence of any assessment that the appellant had fallen short of expectations. (Grounds (iii) & (iv), Notice of Appeal dated 5th April, 2012).
3. Whether the learned trial judge was right when his Lordship held that the contract of employment between the 1st Respondent and the Appellant lacked statutory flavour (Ground (v), Notice of Appeal dated 5th April, 2012).
4. Whether the learned trial Judge was right in refusing the Appellant’s claims for special damages (Grounds (vi) and (vii), Notice of Appeal dated 5th April, 2012).”
The Respondents’ Counsel couched the issues for determination as follows:
“(a) whether the learned trial judge was right in holding that the appellant’s employment with the
1st respondent was properly and duty determined?
(b) Whether the trial Judge was right in holding that the contract of employment between the appellant and the 1st respondent has no statutory flavour.
(c) Whether the trial Judge was right in dismissing the appellant’s claims for special damages?”
The learned Counsel to the appellant took exception to the issues formulated by the learned Counsel to the respondent in the Reply Brief on the ground they did not arise from the grounds of appeal citing Adah vs. Adah (2001) 2 SC 1 at 7. That they should be struck out. Order 18 rule 5 of the Court of Appeal Rules, 2011 sets out the circumstances when an appellant may file a reply brief as follows:
“5. The appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the respondent’s brief.”
A reply brief is to be restricted to only new points arising in a respondent’s brief of argument.
If it was intended to raise objection to the issues set forth for determination in the respondent’s brief of argument the learned Counsel to the appellant should have complied with the provisions of Order 10 rule 1 of the Rules (supra) which reads thus:
“1. A respondent intending to rely upon a preliminary objection to the hearing of the appear, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
The learned Counsel to the appellant did not comply with the above provisions. Besides, if preliminary objection is raised in a reply brief the respondent should be given the opportunity of responding to the argument or objection else this will offend one of the two pillars of fair hearing namely, hear from the opposing party before taking a decision usually expressed in Latin as Audi Alteram partem. See R vs. Cambridge University (1723) 1 Str.557; Kanda vs. Government of Malaysia (1962) A.C.322; Usani vs. Duke (2004) 7 NWLR (pt.871) 116 and Fagbule vs. Rodrigues (2002) 7 NWLR (Pt.765) 188. Under Order 18 rule 5 of the Court of Appeal Rules, 2011, the appellant should have complied with the provisions of Order 18 rule 5 of the Rules (supra) and raise same at the hearing. The learned Counsel did none of this hence I take it that the objection was abandoned and is accordingly struck out.
ISSUES ONE, TWO, THREE AND FOUR:
I shall take these issues together for purposes of convenience. The argument on these four issues is that the respondent could not have lawfully determined the appellant’s appointment under Regulation 41 .6 of the conditions of service which reads as follows:
“DETERMINATION OF APPOINTM ENT
41.6.1. Determination of appointment means loss of employment without loss of benefits already earned. This may be invoked in cases not bordering on disciplinary proceedings.
41.6.2. Condition:
Where an employee is assessed to have fallen short of expectation, the management fifty, as specified in the Delegated Authority Register invoke determination of appointment clause to relieve the staff or officer of his appointment with out formality.
However, where an employee who has served more than ten (10) years but is less than 45 years of age has his service determined, he shall qualify to earn monthly person only on attaining the age of 45 years.
41 .6.3. where an employee’s services are determined, he will be given one or three months’ salary in lieu of notice, as may be applicable.
41.7. TERMINATION OF APPOINTMENT:
Termination of appointment means loss of employment without loss of earned benefits.
41.7.1. An employee’s appointment may be terminated if his services are no longer required by giving one or three month’s salary in lieu of notice, as may be applicable.
41.7.2. An employee who commits any of the offences under Regulation 41.8.1 or 41.8.10 shall have his appointment terminated “for services no longer required.”
41.1-3. If an employee has received three warnings, his services will be dispensed with and his appointment terminated for “services no longer required.”
The argument by Counsel is that the appellant’s determination was not founded on disciplinary action hence to determine the appointment under Regulation 41.6 of the Conditions of Service without an assessment was wrongful. The learned Federal Judge erred to have upheld the determination.
The learned trial Judge’s duty was to interprete and give effect to the terms of the condition of service and no more, citing Fakuade vs. Obafemi Awolowo University Teaching Hospital Management Board (1993) 5 NWLR (Pt.291) 47 at 50; Kaydee Ventures Ltd. vs. Hon. Minister of the FCT (2010) 7 NWLR (Pt.1192) 171 at 217; Yadis (Nig.) Ltd. vs. U.N.I.C. Ltd. (2007) 14 NWLR (Pt.1055) 584 at 608; Iwuoha vs. NIPOST Ltd. (2003) I NWLR (Pt.822) 308 at 342 and Onibudo & Ors. vs. Akibu & Ors. (1982) NSIC (Vol.l3) 199 at 211; Katto vs. CBN (1999) 5 SC (Pt.2) 21 at 25. It was argued that the parties never joined issue at the trial Court on Regulation 41.7 of NEPA’S Conditions of Service upon which the learned trial Judge relied to dismiss the appellant’s suit. The issue was raised suo motu without giving Counsel an opportunity of a hearing, citing Adetoye vs. FIIR, Oshodi (2011) 14 NWLR (Pt.1267) 350 at 379. It was also argued that the learned trial Judge erred by holding that the appellant’s appointment was not one having statutory flavour but based on a relationship of master and servant. Reference was made to Section 318(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which defines public service of the federation to mean service of the federation in any capacity in respect of the Government of the Federation, and includes a staff of any statutory corporation established by an Act of the National Assembly. Counsel cited N.S.P.M.G. vs. Adekoye (2003) 16 NWLR (Pt.845) 128 at 147-148; Shitta-Bey vs. The Public Service Commission (1981) NSCC (Vol.12) 19 at 29; Salimar vs. Kwara Poly (2008) 5 NWLR (Pt.974) 477 at 498 and urged the Court to grant these declaratory reliefs on the authority of National Assembly vs. The President (2003) 9 NWLR (Pt.8231 104 at 133’134; Bisimillah vs. Yaba East Local Government (2003) 4 NWLR (Pt.810) 329 at 3GZ-368. Counsel’s contention was that the appellant was entitled to the special damages claimed for the property he had been prevented from removing from his office as a result of the determination of his appointment. The issues raised should be resolved in favour of the appellant.
The learned Counsel to the respondent cited the authority of Attorney-General of Kwara State vs. Ojulari (2007) 1 NWLR (Pt.1016) 551 at 557 ratio 4 and Section 11 of the Labour Act Cap.198 Laws of the Federation of Nigeria, 1990 to show that determination of the appellant’s appointment was in accordance with the terms of his contract. Once the determination accords with the terms of the contract the Court cannot interfere, citing Ishen vs. Julius Berger Plc (2008) 6 WR (Pt.1084) 34. It was contended that the determination was done in the course of realigning the structure of the respondents’ operations. The appellant’s employment was one of pure master and servant relationship, not having any statutory flavour, citing Institute of Health ABU Hospital Management Board vs. Mrs. Jummai R. I. Any P- (2011) 12 NWLR (Pt.1260) 1. The appellant was also not entitled to any special damages as claimed in the Court below. That these issues should be resolved against the appellant and the appeal dismissed, argued Counsel.
In questions of wrongful dismissal or termination of appointment the Court is to restrict herself to the interpretation of the terms and conditions of service and no more. See Morohunfola vs. College of Technology (1990) T SCNJ 51 ; Sapara s. UCHBM (1988) 7 SCN J 291; Olatunbosun vs. NISER (1988) 3 NWLR (Pt.80) 25 and Shell Petroleum Development Co. of Nigeria Ltd. & Ors. vs. M. S. Onasanyu (1976) SC 57.
In Mandilas & Karaberis Ltd. vs. Otikiti (1963) 1 All NLR 22, Bairamian, F. J., held at page 26 that:”.-.when a contract is reduced into writing, the writing gives the terms agreed upon.”
see also Ihezukwu vs. Unijos (1990) 21 NSCC (pt.3) 80 at 88.
The letter served on the appellant (Exhibit “1”) determining his appointment is clearly worded, namely, that it was in the course of realigning the Authority’s structure and operations that his service had been reviewed and consequently determined in accordance with Regulation 41.6 of NEPA’S Conditions of Service. In other words, the services of the appellant were “reviewed” before his appointment was “determined” but not on ground of criminality.
What is the meaning of “review” or “reviewed” and “assess’? The noun “review” means consideration, inspection, or re-examination of a subject or thing. See Black’s Law Dictionary, 9th edition, page 1434. “Review” also means an examination of something, with the intention of changing it if necessary. To “assess” means to make judgment about the nature or quality of somebody or something. See Oxford Advanced Learner’s Dictionary, 7th edition, page 75 and 1253.
In other words the appellant’s appointment was “reviewed” or “assessed” by the respondents before his services were terminated. This is covered by paragraph 41.6.1 to 41.6.2 of the Conditions of Service of Exhibit “1”. That is to say, when the respondent assessed the appellant services he fell short of expectation. The management invoked the determination of appointment clause in Exhibit “1” to relieve the appellant of his appointment without formality. In my humble view the respondent acted within the terms of the Conditions of Service under Regulation 41.6.3 to direct the General Manager, Finance and Account to make appropriate payment to the appellant in view of notice, Regulations 41.6.1 must be read together with Regulation 41.6.2 to arrive at the intention of the lawmaker. I endorse the holding of the learned trial Judge at page 418 to 419 of the printed record when he held that:
“By the above letter (Exhibit “1”) the plaintiff ceased to be a staff of the 1st Defendant. His only damages lies in the collection of the salary in lieu of notice. This is as per the conditions of service of both parties earlier on reproduced.’,
By this holding the question whether the appellant’s employment had statutory flavour becomes academic. This Court will not embark on the voyage of entertaining academic questions. See Saraki vs. Kotoye (1992) 11-12 SCNJ (Pt.1) 26 at 44; N. I. Corporation of Nigeria vs. Power & Ind. Engineering co. Ltd. (1986) 1 NWLR (Pt.14) and N.N.S.G. vs. Sabana Ltd. (1988) 2 NWLR (Pt.74) 23.
I have read and re-read the judgment of the learned trial Judge but I fail to see where his Lordship relied on Regulation 41.7 instead of 41.6 to arrive at his decision. Even if he did, it is not every error that will lead to the Court of Appeal interfering with the judgment of the lower Court. See Amayo vs. Erinmwingbovo (2006) All FWLR (Pt.318) 612 at 628; Bankole vs. Pelu (1991) 1 NWLR (Pt.211) 523 and Mora vs. Nwalusi (1962) 2 SCNLR 73.
On the special damages claimed, it is my view that the learned trial Judge heard evidence from the appellant and the defence witnesses regarding the inventories taken of the appellant’s properties from his office in his absence. Where the evidence conflicted, it was within the province of the learned trial Judge to assess same, ascribing credibility to the evidence by determining whom to believe or disbelieve.
The learned trial Judge held at page 424-425 of the printed record as follows:
“In the Amended Statement of Defence dated and filed 11th day of March, 2010, the Defendants in paragraphs 32 stated thus:
“The 1st defendant in specific response to paragraphs 48 and 49 of the Statement of Claim states further that representatives of the Human Resources Department and the security unit were present when the said office was opened and an inventory of items found in the office was taken and was duly signed by the officers. The said inventory dated 25th day of October, 2004 was pleaded and marked Annexure “N”.”
The inventory of items are divided into”A” Official items and “B” personal effects. Basher Ali Mohammed in paragraph 10 of his witness on oath stated thus:
That the plaintiff effectively removed his personal effects from the office before vacating his office. The plaintiff did not leave any of the under listed items in the PHCN.
11. That the personal effects listed in the inventory are available at the security department of 1st Defendant.
During cross examination witness also stated that the plaintiff came to his office and took some documents before the inventory.
This piece of evidence was not denied by plaintiff. What is not denied is deemed admitted.
An admission in law refers to as statement oral or documentary which suggests any inference as to any fact in issue or relevant fact.
The Black’s Law Dictionary, 6th edition defines it as.
“A statement made by one person of the parties to an action which amounts to a prior of acknowledgement by him that one of the material facts relevant to the issue is not as he now claims.”
The plaintiff now claims that the under listed personal items are with defendant, but does not dispute the allegation that he went into his office prior to the taking of inventory and removed documents.
The evidence of Bashir Ali Mohammed to this effect is clear and unambiguous and due weight given thereto. I so hold.
In conclusion I hold that plaintiff case fails and reliefs sought refused.
No order as to cost.”
In my humble view the above holding is amply supported by the credible evidence adduced in the lower Court. I see no reasons to disturb the judgment of the learned Federal Judge. This appeal lacks merit and is dismissed. I make no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree that the appeal lacks merit and is hereby dismissed.
Appearances
Chief Robert I. Clarke, SAN with U. C. IkedimmaFor Appellant
AND
Akinboro O. with Kolawole Omotinugbon for 1st – 3rd Respondents.For Respondent
