TOTAL NIGERIA PLC v. EDWARD UZOMA ANYIAM (2013)

TOTAL NIGERIA PLC v. EDWARD UZOMA ANYIAM

(2013)LCN/6676(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of December, 2013

CA/J/59/2011

RATIO

WHETHER ISSUES FOR DETERMINATION MUST BE BASED ON THE GROUND OF APPEAL FILED

The law is trite, an issue for determination formulated by an appellant or respondent must be based on the ground of appeal filed otherwise it would be incompetent. In other words, an issue for determination which is not distilled from any of the grounds of appeal is incompetent and must be discountenanced together with the arguments advanced hereunder. See Ibator v. Barakuro (2007) 9 NWLR Pt. 1040 P.475 at 503: Amadi v. NNPC (2000) 10 NWLR Pt.674 P.76; Arowel v. Akefo (2003) 8 NWLR Pt.823 P.451 and Adelosula v. Akinde (2001) 12 NWLR Pt.887 P.295.

An issue for determination should be linked or related to a ground of appeal. Failure to link or relate an issue for determination to the ground of appeal will render the issue incompetent. See OMTC Ltd. vs. BV. Ltd. (2011) 9 NWLR Pt.1252 P.3020312. Per IBRAHIM SHATA BDLIYA, J.C.A

FACTORS TO BE CONSIDERED BY A TRIAL JUDGE IN EVALUATING EVIDENCE

In the evaluation of evidence, the trial judge has to consider or give due regard to, among other things the following:

(i) Admissibility of the evidence

(ii) Relevancy of the evidence

(iii) Credibility of the evidence

(iv) Conclusiveness of the evidence, and

(v) Probability of the evidence in the sense that it is more probable than the evidence of the other party

(vi) finally, the trial judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before arriving at a conclusion one way or the other. See Magaji Vs. Odofin (1978) 4 SC 91 and Adeyeye Vs. Ajiboye (1987) 3 NWLR Pt.61 p.432. Per IBRAHIM SHATA BDLIYA, J.C.A

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDE NWOSU-IHEME Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

TOTAL NIGERIA PLC Appellant(s)

AND

EDWARD UZOMA ANYIAM Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Plateau State High Court of Justice, (hereinafter referred to as the lower court) (Presided over by Y.B. Nimpar, J), delivered on the 15th of December, 2010, wherein judgment was entered in favour of the respondent (who was the plaintiff) and the appellant (who was the defendant) counter claim dismissed. The appellant was dissatisfied with the judgment of the lower Court hence his appeal to this Court by filing a Notice of Appeal dated and filed on the 14th of March, 2011.

The facts leading to the institution of the suit before the lower court by the respondent could be briefly summarized thus. Sometime in 1982, the respondent was employed by the appellant as an Accounts Clerk and by 2001 he had become a Sales Executive. He was in charge of Lafiya Zone of the appellant. In 2004 it was discovered that some supply of petroleum products to the Wamba Station were not accounted for per the records of the Company. An investigation was carried out. The respondent was found to be responsible for the unaccounted or missing sums of money. The appellant suspended and later dismissed the respondent. The respondent did not agree to his dismissal, hence the institution of the suit before the lower court.

The Notice of Appeal filed by the appellant are on pages 186-190 of the printed record of appeal. There are ten (10) grounds of appeal. Without their particulars they are hereunder reproduced for easier comprehension.

GROUNDS OF APPEAL
1. The learned Trial Court erred in law when he had that “…having found that the determination is one that carries with (sic) a stigma on the character of the Plaintiff, he shall be entitled to damages assessed in the sum of N1.5 Million (One Million, Five Hundred Thousand Naira Only).”
2. The Learned Trial Court erred in law when having held that “…Relief G cannot also be granted as it is not in consonance with the law on wrongful termination…” but nevertheless proceeded to hold further that …”the measure of damages was assessed above in the sum of N1.5 Million due to the stigma attached to his arising from the criminal allegations…”
3. The trial Court erred in law by arriving at a wrong finding that the Plaintiff is entitled to damages that will assuage the Plaintiff for the alleged stigma on his character.
4. The Learned Trial Court erred in law when he held that the “…Plaintiff is also entitled to all other benefits accruable to a person who has served the company for 22 years on voluntary disengagement…”
5. The Learned Trial Court having found that there is no evidence adduced in support of the Counter-claim and therefore not proved, the proper order the Court can make is that of non-suit of the Counter-Claimant and not dismissal.
6. The learned trial Court erred in law when he held that “…the argument of DW2 that the conditions in the handbook are complied with cannot stand the law…”
7. The learned Trial Court erred in law when it imputed into “Exhibit 15” issue of criminal allegations in holding that “…Obviously reasons number 2 and 3 in Exhibit 15 are criminal allegations…”, and thereby arrived at an erroneous conclusion that the Plaintiff was not tried before a court nor heard by panel set up by the Appellant.
8. The Judgment of the Lower Court is one sided and as such against the weight of evidence.
9. The Lower Court erred in law in entertaining the suit when it discloses no reasonable cause of action against the Defendant.
10. The Trial Court erred in law by relying on the decision in EZEKIEL VS WEST MINISTER DREDGING LIMITED (2009) 9 NWLR (PART 672) PG 248 AT 262 in awarding the sum of 1.5 Million as damages to the Plaintiff.
The appellant filed its brief of argument on 2nd June, 2011, in which four (4) issues were distilled from the ten (10) grounds of appeal. The issues are as follows:
1. Whether having regard to its decision that the Respondent’s dismissal was unlawful, the Lower Court was right in awarding the Respondent the sum of N1.5 Million as damages due to the stigma attached to the name of the Respondent arising from the Criminal Allegations. (Grounds 1, 2, 3, and 10).
2. Whether the Lower Court was right in dismissing the Appellant’s Counter-Claim for want of evidence. (Ground 5).
3. Whether the learned trial Court properly evaluated the evidence before it in arriving at its decision. (Ground 8).
4. Whether the Lower Court was not in error in entertaining the Respondent’s suit when in fact it discloses no reasonable cause of action. (Ground 9).

The respondent filed his brief of argument on the 22nd of March, 2013, wherein five (5) issues were formulated for determination in the appeal. They are thus:
1. Whether the claim of the Respondent before the Lower Court discloses reasonable causes of action (Ground 9 of the notice of appeal).
2. Whether the trial Court properly evaluated the evidence adduced before it before having at its decision (grounds 6, 7, and 8 of the notice of appeal).
3. Whether the Learned Trial Judge was right to have dismissed the counter-claim of the Appellant for want of evidence instead of non-suit (ground 5 of the notice of appeal).
4. Whether the Trial Judge having set aside the dismissal of the Respondent was right to have held that the Respondent was “entitled to all other benefits accruable to a person who has served the company for 22 years on voluntary disengagement.” (Ground 4 of the notice of appeal).
5. Whether from the claim of the Respondent and the evidence before the trial Court, the award of N1.5 Million to the Respondent as damages was right. (Grounds 1, 2, 3 and 10 of the notice of appeal).

A Reply brief was filed by the appellant in response to the arguments canvassed in the respondent’s brief. It was filed on the 15th of May, 2012.

On 14th of November, 2013, the appeal came up for hearing whereat learned counsel to the parties adopted their respective briefs of argument. Learned counsel to the appellant did urge the court to allow the appeal and set aside the judgment of the lower court. Learned counsel to the respondent urged the court to dismiss the appeal and affirm the judgment of the lower court. In the determination of an appeal, the appellate court can adopt reframe or formulate new issues which must be related to the grounds of appeal, which in its opinion would ultimately determine the appeal. That an appellate court can adopt issues formulated by the parties in the determination of an appeal has the support of this Court in the case of Adesina V. Ojo (2012) 10 NWLR Pt. 1309 p.552 @ 516, where IYIZOBA J.C.A. adumbrated that:
“There is nothing strange in a judge adopting the issues as formulated by any of the parties to a dispute if the judge is satisfied that the said issues capture the essence of the dispute.”

The issues formulated for determination in the respective briefs of argument of the appellant and the respondent are not only interrelated but overlapping. Issue I of the appellant is issue 5 of the respondent; issue 2 of the appellant is issue 3 of the respondent issue 3 of the appellant is issue 2 of the respondent, issue 4 of the appellant is issue 1 of the respondent, Issue 4 of the respondent stands alone. In my view, therefore, issues 1, 2, 3, 4 of the appellant and issue 4 of the respondent, which have covered all the ten (10) grounds of appeal, would adequately determine the appeal whichever way they are resolved by the court. The issues to be considered and resolved in the determination of the appeal are therefore these:
1. Whether having regard to its decision that the Respondent’s dismissal was unlawful, the Lower Court was right in awarding the Respondent the sum of N1.5 Million as damages due to the stigma attached to the name of the Respondent arising from the Criminal Allegations. (Grounds 1, 2, 3, and 10).
2. Whether the Lower Court was right in dismissing the Appellant’s Counter-Claim for want of evidence. (Ground 5).
3. Whether the learned trial Court properly evaluated the evidence before it in arriving at its decision. (Ground 8).
4. Whether the Lower Court was not in error in entertaining the Respondent’s suit when in fact it discloses no reasonable cause of action. (Ground 9).
5. Whether the Trial Judge having set aside the dismissal of the Respondent was right to have held that the Respondent was “entitled to all other benefits accruable to a person who has served the company for 22 years on voluntary disengagement.” (Ground 4 of the notice of appeal).

RESOLUTION OF ISSUES
In the consideration and resolution of the issues for determination, I will take Issues 1, 3, 4, 5 and lastly 2, in that order.

ISSUE ONE (1)
Whether having regard to its decision that the respondent’s dismissal was unlawful, the lower court was right in awarding to the respondent the sum of N1.5 Million as damages due to the stigma attached to the name of the respondent arising from the criminal allegations.

On this issue, Kayode Esquire, of learned counsel to the appellant submitted that the lower court erred in law when it awarded the sum of N1.5 Million to the respondent as damages due to the stigma attached to his name arising from the allegations leveled against him which are criminal in nature which was not sought by the respondent before the lower court. It was learned counsel’s further submission that apart from there being no evidence to warrant such award of damages, the respondent did not claim such relief in his Amended Statement of Claim. That a court of law has no jurisdiction to award damages or grant a relief not sought, learned counsel relied on the case of Attivie Vs. Kabeimetal (Nig.) Ltd. (2008) 10 NWLR Pt. 1095 p.309 @ 422. It was also submitted that a court of law can not grant a relief gratuitously having not been claimed before it. The case of Afrotech Tech Services (Nig.) Vs. MIA & Sons Ltd. (2005) 15 NWLR Pt. 692 p.730 @ 791 was cited to reinforce the submission supra. The court has been urged to set aside the award of N1.5 Million awarded as general damages to the respondent having not been so awarded in accordance with any principles of law.

Manulu Esquire, for the respondent admirably and with all sense of responsibility expected of an experienced and knowledgeable counsel, in my view, rightly conceded that the N1.5 Million was wrongly awarded to the respondent having not been claimed by him.

The reliefs sought by the respondent are contained in paragraph 51 of the Amended Statement of Claim dated 3rd October, 2006. These are the reliefs sought by the respondent:
“a. A declaration that the suspension on 15/6/2004 and subsequent dismissal on 13/7/2004 of the Plaintiff from the services of the Defendant based on the audit report dated 15/6/2004 and the report on the investigation of alleged missing products and cash misappropriation constitute a violation of the Plaintiffs fundamental right to fair hearing, as estimated in Section 36 of 1999 constitution of the Federal Republic of Nigeria.
b. A declaration that the Defendant acted with bias in purporting to suspend and subsequently dismiss the Plaintiff from the Services of the Defendant after 22 years meritorious service to the Defendant.
c. A declaration that Plaintiff cannot be deprived of his fundamental rights.
d. A declaration that the audit report, the investigative panel’s report, the letter of dismissal dated 13/7/2004 and any other actions or proceedings based on them are nullities in so far as the Plaintiff was not given a fair hearing.
e. A declaration that the Plaintiff is still an employee of the Defendant and entitled to all his rights and privileges including promotions.
f. An injunction restraining the Defendant from further interference with the Plaintiff’s performance of his duties as employee of the Defendant except as that is permitted by Law.
g. Alternatively the Plaintiff claims from the Defendant the payment of his salaries up to the date of judgment and thereafter the payment of his disengagement entitlements i.e. his gratuity and pension and any other entitlements under the Defendant’s condition of service having served the Defendant for 22 years.”

From the reliefs sought by the respondent which has been reproduced supra, it is not in dispute that there was no claim for damages, special or general relating to stigma to the respondent’s person or character occasioned by the allegations against him by the appellant. The submission of the learned counsel to the appellant that the lower court erred in law by awarding for sum of N1.5 Million to the respondent has merit. The Supreme Court in the case of Ativie v. Kabeimetal (Nig.) Ltd. (2008) 10 NWLR Pt. 1095 p.309 @ 422 per Onnoghen J.S.C. said:
“Where a party seeks a particular relief from the court, the court is duty bound, where he established the right to it to award same to him. On the other hand, it is settled law that a party can not be awarded a relief he did not seek and where such is awarded, an appellate court is duty bound to set same aside upon appeal to that effect.”
Much earlier on, Iguh J.S.C., had stated the position of the law on the lack of jurisdiction of a court of law to award or grant relief(s) not sought for by any party to the litigation before it. On page 791 of Afrotech-Tech Services (Nig.) vs. M.I.A. & Sons Ltd. (2000) 15 NWLR Pt. 692, the learned Justice said:
“…I think I need to emphasize that the principles of law is well settled that a court of law must not grant to a party a relief which he has not sought or which is more than he has claimed…”

In view of the foregoing, I have no difficulty in agreeing with Kayode Esquire, of learned counsel to the appellant, and Manulu Esquire, that the award of N1.5 Million as damages to the respondent can not be sustained, having not be sought for. Accordingly, I do hereby make an order setting aside the award of the said N1.5 Million as damages to the respondent.

ISSUE THREE (3)
Whether the learned trial court properly evaluated the evidence before it in arriving at its decision:

Learned counsel to the appellant, Kayode Esquire made a lengthy submission from pages 20-25 of the appellant’s brief of argument, citing several decided cases to buttress the points being made. He concluded on page 25 of the brief of argument that the lower court did not properly evaluate the evidence adduced by the parties at the trial court before arriving at its decision setting aside the dismissal of the respondent and at the same time granting his entitlements that an employee of the Company could have earned for serving it for 22 years, because the court was of the view that it could not impose the respondent on the appellant.

For the respondent, Manulu esquire, referred to pages 126-127 of the record of appeal and contended that the lower court did evaluate the evidence before it, especially on page 135 and further submitted that where an appellant relied on non-evaluation or improper evaluation of evidence, he has the duty to specify or identify the evidence which have not been evaluated or improperly evaluated. In this case, learned counsel submitted that the appellant has failed to do so. The case of Ebia Construction Ltd. vs. Constain (West Africa) Plc. (2011) NWLR Pt.1242 p.110 @ 132 was cited in reinforcement of his submissions supra. It was further submitted that evaluation of evidence and the ascription of probative value thereto, are the primary duty of the trial court; the appellate court has no duty to disturb such evaluation of evidence and the ascription of probative value, unless the trial court failed in its duty.

Learned counsel contended that the trial court who saw and listened to the evidence of PW1, DW1 and 2 properly evaluated their evidence, and assessed their credibility before arriving at its decision. The court has been urged to hold that there was proper evaluation of the evidence by the lower court before arriving at its decision. He urged the court to resolve this issue in favour of the respondent.

What is evaluation of evidence by a court of law? How is evidence evaluated by the court? What is the effect of non-evaluation or improper evaluation of evidence by a court? What can an appellate Court do where there has been non-evaluation or improper evaluation of evidence by a trial court? These questions would be addressed and answered in a short while in this judgment.

In Bello Vs. State (2007) 10 NWLR Pt. 1042 p.564 @ 582 this court stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. There must be stated on record how the court arrived at its conclusion of preferring one piece of evidence to the other. See also . In Alake vs. State (1992) 9 NWLR Pt.265 p.260 the civil case of Ilori vs. Tella (2006) 18 NWLR Pt. 1011 p.268 @ 291 the Court of Appeal held that evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version of evidence to the other. See also Oyekola vs. Ajibade (2001) 17 NWLR Pt. 902 p.356 and Idakwo vs. Nigerian Army (2004) 2 NWLR Pt. 857 p.2419.

In the evaluation of evidence, the trial judge has to consider or give due regard to, among other things the following:
(i) Admissibility of the evidence
(ii) Relevancy of the evidence
(iii) Credibility of the evidence
(iv) Conclusiveness of the evidence, and
(v) Probability of the evidence in the sense that it is more probable than the evidence of the other party
(vi) finally, the trial judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before arriving at a conclusion one way or the other. See Magaji Vs. Odofin (1978) 4 SC 91 and Adeyeye Vs. Ajiboye (1987) 3 NWLR Pt.61 p.432.

It is worthy of note that the evaluation of evidence and the ascription of value or quality thereto are the preserve of the trial judge who would have had the singular opportunity of seeing, hearing and observing the witness(s) giving evidence. In Yadis (Nig.) Ltd. vs. G.N.I.C. Ltd. (2007) 11 NWLR Pt.1055 p.587 @ 607, it was held that it is the primary duty of the trial court or trial judge to evaluate evidence, make findings and apportion probative value thereto, not for an appellate court to do so, except where the trial court failed to do so or it was improperly carried out. In Anyegwu vs. Onuche (2009) 3 NWLR Pt. 1125 p.659 @ 615, it was held that the finding of facts, evaluation of evidence, and the ascription of probative value thereto are the exclusive preserve of the trial court or trial judge as the case may be. Where a trial court properly evaluated the evidence before it and ascribed probative value thereto, an appellate court has no business to interference with such evaluation and ascription of probative value thereto. It cannot substitute its own findings, evaluation or ascription of probative value merely because it does not agree with the way and manner it was carried out by the trial court. See NEPA Vs. Adesanju (2002) 17 NWLR Pt.797 p.38 and Ndidi Vs. State (2007) 13 NWLR Pt.1052 p.633.

Did the learned trial judge evaluate the evidence before it in arriving at his decision on page 129 of the record of appeal to the effect that:
“The argument of DW2 that the conditions in the handbook are complied with can not stand the law. Having found that the dismissal was unlawful it is hereby set aside and is of no effect.”

The learned trial judge on pages 121 to 126 of the record of appeal made a summary of the evidence adduced by the respondent (as plaintiff) and the appellant (as defendant). He specifically considered the evidence of Pw1 and DW1 and DW2 and gave the reasons why he accepted and relied on the evidence of the respondent rather than that of DW1 and DW2. In my view what the trial judge did as shown on pages 121-126 of the record of appeal was an evaluation of the evidence whereby it preferred one set of evidence to the other. The exercise of his duty as required by law may not be eloquent as Kayode Esquire, of learned counsel, would like it to be. But it has satisfied or met the requirement of the law. For as pointed out by Augie, J.C.A.,- in the case of Ilori vs. Tella (2006) 18 NWLR Pt.1011 p.272:
“Evaluation of evidence entails the assessment of evidence so as to give value or quality to it, it involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other.”

As I pointed out earlier in this judgment, the evaluation of the evidence by the learned trial judge may not be at its best, but it was an assessment of the evidence whereby the learned trial judge preferred the evidence of the respondent to that of the appellant. This issue is hereby resolved against the appellant.

ISSUE FOUR (4)
Whether the lower court was not in error in entertaining the respondent’s suit when it disclosed no reasonable cause of action?

This issue questions the competence of the suit filed before the lower court by the respondent as to whether a reasonable cause of action has been disclosed by the pleadings or not. Kayode Esquire, of learned counsel to the appellant did submit that no reasonable cause of action has been disclosed as there is no dispute between the appellant and the respondent having regard to the pleadings. A number of decided cases have been relied upon by learned counsel to buttress his submission on pages 25-27 of the record of appeal.

For the respondent, Manulu Esquire, submitted that the issue of whether a reasonable cause of action has been disclosed by the pleadings before the lower court was not raised before that court. That the lower court did not take any decision on it, therefore, there can not be an appeal on such an important issue which was not raised and decision taken on by the lower court. That complaint being a new or fresh issue, it can not be raised without obtaining leave of this court or the Supreme Court as the case may be. It was contended that this issue having not been raised with the leave of court is incompetent and be discountenanced by the court in the determination of the appeal. Several cases have been cited and relied upon to buttress the submissions supra.

The issue whether a reasonable cause of action has been disclosed by the pleadings filed by the respondent or not, in my view would also touch on the issue of the jurisdiction of the lower court to have entertained and determined the suit filed by the respondent. Being an issue of jurisdiction, it can be raised at any time, even before the Supreme Court without first seeking leave of court to do so.
In OBIAKOR V. STATE (2002) 10 NWLR (PT. 776); 612 @ 626 PARA G the Supreme Court held that:
“Without necessarily any authority for now, the general principle is that when a party seeks to file and argue in this court any fresh issue not canvassed in the lower courts, whether that issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first.
But where the point or issue sought to be raised pertains to issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time.” (Underlined for emphasis).

In view of the foregoing, I hold that this issue which has been distilled from ground 9 of the ground of appeal, is competent. The court is to proceed and resolve same in this judgment.

On pages 25-27 of the appellant’s brief of argument Kayode Esquire, of the learned counsel contended that no reasonable cause of action has been disclosed by the pleaded facts in the suit filed by the respondent. A number of decided cases by the Supreme Court have been cited and relied upon on the principles of law regarding when a cause of action has been or not been disclosed by pleadings filed in any suit. The following cases were referred to by learned counsel to buttress his submissions that no reasonable cause of action has been disclosed by the pleadings in the suit filed by the respondent; see Oni vs. Igbalajibi (2006) 9 NWLR Pt. 984 p.150 @ 187; Abia State Vs. A.G. Federation (2005) 6 SCNJ P. 1; and Adetuna vs. Edet (2001) 3 NWLR Pt. 699 p.186 @ 194; among others. The court has been urged to hold that there is no cause of action disclosed by the pleadings in the suit filed by the respondent in the lower court, the suit was therefore incompetent and the lower court had no jurisdiction to have entertained same.

For the respondent, Manulu Esquire, referred to the case of Rinco Construction Co. Ltd, vs. Veepee Industries Ltd. & Anor. (2003) 9 NWLR Pt. 929 p.85 @ 95 wherein cause of action has been defined, and urged the court to hold that the pleadings of the respondent in the suit filed at the lower court disclosed a reasonable cause of action. Learned counsel referred to the findings of the lower court on page 123 of the record of appeal and submitted that by that findings and decision the lower court had unwittingly decided that there was reasonable cause of action disclosed by the pleadings in the said suit.

The pleadings of the respondent in the suit filed by him at the lower court are contained on pages 81-87 of the record of appeal. A careful perusal and analysis of the pleaded facts therein, especially from paragraphs 6 to 50 have disclosed a reasonable cause of action as defined in a plethora of decided cases by the Supreme Court and this Court. For instance see the following cases:
(i) Chijuko & ors vs. Maduewesi (2011) 16 NWLR Pt.127 p.181 @ 205;
(ii) Hissan (Nig.) Ltd. Yoganathan (2010) 4 NWLR Pt.1183 p.135;
(iii) Peacesate, Oil & Gas Ltd. (2012) 17 NWLR Pt.1329 p.391 @ 403;
(iv) Idachaba v. Ocholla Ilona (2007) 6 NWLR Pt.1030 p.277;
(v) Uwazuronye v. Govt. Imo State & Ors. (2013) 2 NWLR Pt.1355 p.28;
(vi) Beloxxi & Co. Ltd. vs. Soath Trust Bank & Ors. (2012) 2 NWLR Pt.1285 p.608.

The contention of Kayode Esq., of learned counsel to the appellant that there was no cause of action disclosed by the pleaded facts in the suit before the lower court can not be sustained in view of paragraphs 6-50 of the Amended Statement of Claim filed on the 4th of October, 2006. Issue 4 is hereby resolved against of the appellant.

ISSUE FIVE (5)
Whether the trial court having set aside the dismissal of the respondent was right to have held that he was entitled to all other benefits accruable to a person who had served the appellant’s Company for 22years on voluntary retirement or disengagement.

On pages 129 and 133 of the record of appeal the trial court held as follows on the entitlements of the respondent after setting aside his dismissal but refused to reinstate him on the premise that an employee can not be imposed on an unwilling employer:

PAGE 129 OF THE RECORD OF APPEAL
“The measure of damages is what the plaintiff would have earned if he were to withdraw his services voluntarily or be terminated lawfully or according to contract of service”

PAGE 137 OF THE RECORD OF APPEAL
“The plaintiff is also entitled to all other benefit accruable to a person who has served the Company for 22 years on voluntary disengagement.”

Learned counsel to the appellant submitted that having held on page 133 of the record of appeal that the claim per relief ‘G’ could not be granted, was wrong to have gone further to grant to the respondent all other entitlements or benefits accruable to a person who has served the Company for 22 years on voluntary disengagement. Manulu Esquire, for the respondent was of a different view. It was learned counsel’s submission that having set aside the dismissal of the respondent as being wrongful an order of reinstatement ought to have been made, but having regard to the settled principles of law that the court should not impose an unwanted employee on unwilling employer, such order could not have be made, rather the court ordered for the payment of all entitlements to the respondent as if he voluntary retired or his services ended in accordance with the terms of his employment. Learned counsel cited and relied on the case of Ativie Vs. Kabeimetal (Nig.) Ltd. (2008) 10 NWLR Pt. 1095 p.399 @ 415 to buttress his submissions.

I think the principles of law enunciated in the case of Ativie Vs. Kabelmetal (Nig.) Ltd. supra cited by Manulu Esq. of learned counsel to the respondent is apt on what type and or measure of entitlements was available to the respondent in the circumstances of case where his dismissal was set aside but could not be reinstated in view of the settled principles of law that a court of law can not impose an unwanted employee on an unwilling employer. The Supreme Court has put it beyond dispute the type of and measure of entitlement which is available to an employee whose dismissal has been held to be wrongful but can not be reinstated. On page 415 of Ativie vs. Kabeimetal (Nig.) Ltd. (2008) 10 NWLR Pt. 1095 @ 799, the Supreme Court said:
“…It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof as in this case, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end.” Underlining mine

In view of the decision of the Supreme Court in the case of Ativie vs. Kabeimetal Nig, Ltd. supra, the lower court was right in granting all other entitlements to the respondent accruable to any employee who had served for 22 years if such an employee had retired or disengaged in accordance with the terms of services. See case of Osisanya v. Afubade (Nig.) Plc. (2007) 6 NWLR Pt.1031 P.565. Issue five (5) is hereby resolved in favour of the respondent.

ISSUE TWO (2)
Whether the lower Court was right in dismissing the appellant’s counter-claim for want of evidence?

This issue has been distilled from ground 5 of the grounds of appeal which can be found on page 188 of the record of appeal. Manulu Esq. for the respondent submitted that the issue distilled from ground 5 of the grounds of appeal is incompetent in that it is not related thereto or put in another way not relevant to the particulars of the ground of appeal. It is his submission that the ground of appeal complained of the trial Court’s dismissal of the suit instead of non-suiting it. That the ground does not challenge or question the findings of the trial Court. Learned Counsel urged the Court to hold that the issue distilled from the said ground of appeal is incompetent and be struck out accordingly. The cases of Mobil Producing Nigeria Unlimited & Anr.v. Monokpo & Ors (2002) 3 NWLR Pt. 753 P.48 at 76-77 and Nitel Ltd. v. Ugbe (2002) 3 NWLR Pt.753 P.186 at 199 were relied upon to reinforce the submission supra.

Kayode Esq. learned Counsel to the appellant, in the Reply brief contended that the issue under consideration relates to ground 5 of the grounds of appeal. It is his contention that the issue which is distilled from ground 5 of the grounds of appeal questioned the order of the lower Court dismissing the suit before the trial Court instead of non-suiting it. The order of the lower court, according to learned counsel, is a type of decision of the Court. That by virtue of S. 241(1) of the 1999 Constitution, a party that is not satisfied with any decision of a High Court of Justice, can appeal against such decision. It is his further contention that what ground 5 of the grounds of appeal intends to achieve is to question the decision or order of the learned trial judge dismissing the suit instead of non-suiting it.

Is this issue (2) which has been distilled from ground 5 of the grounds of appeal competent? I think it is pertinent to refer to ground 5 of the grounds of appeal and the issue distilled therefrom. The 5th ground of appeal can be found on page 188 of the record of appeal contained in the notice of appeal filed by the appellant against the judgment of the lower court. It is as follows:

“GROUND FIVE
The learned trial Court (sic) erred in law when he dismissed the counter-claim of the Defendant/Appellant”

PARTICULARS
The learned trial court having found that there is no evidence adduced in support of the Counter-Claim and therefore not proved, the proper order the Court can make is that of non-suit of the counterclaim and not dismissal”

In order to find out whether issue 2 has been distilled from ground 5 of the grounds of appeal or not, I think it is desirable to critically examine the relevant ground and the issue distilled therefrom. In so doing the particulars of the ground of appeal is paramount, for it is the particulars that gives the elaborate or details of the purport of the ground of appeal. The particulars of the 5th ground of appeal deals with the dismissal of the suit and the desirability of the dismissal to have been non-suit order. In other words, the 5th ground of appeal, is questioning the propriety of the order of dismissal instead of non-suit. On the other hand, the issue distilled from the 5th ground of appeal is questioning the decision dismissing the suit for want of evidence. Clearly, there is no link between the 5th ground of appeal and the issue distilled therefrom. To appreciate the point being made, the issue distilled and of the 5th ground of appeal are reproduced hereunder thus:

5TH GROUND OF APPEAL
“Whether the lower court was right in dismissing the appellant’s counter-claim for want of evidence”

It is obvious from a scrutiny of the 5th ground of appeal and the issue distilled therefrom, the two do not relate. While the ground of appeal is questioning the propriety of dismissing the suit instead of non-suit of it, Issues (2) is questioning the basis of the dismissal for want of evidence. It is on this premise, that I am in total argument with Menulu Esq., of learned Counsel to the respondent, that the 2nd issue formulated by both the appellant and the respondent is incompetent for not having been distilled from ground 5 of the grounds of appeal or any other ground of appeal for that matter. As pointed out in the cases of OMTC Ltd. v. BV Ltd (2011) 9 NWLR PT.1252 p.307 at 312 and Ibatru v. Barakulano (2007) 9 NWLR Pt. 1040 P.475 at 509 where an issue is not distilled from a ground of appeal or where the issue so distilled is not linked or has no bearing to any ground of appeal, such issue would be incompetent and liable to be discountenanced by the Court in the determination of the appeal. Muhammad, J.C.A (as he then was) put it more clearly in these words in the case of Njoku vs. Registered Trustees, CHGF (2006) 18 NWLR Pt. 1011 P.239 @ 265.
“Firstly, it is trite that an appellant’s compliant is only lawful if articulated in any of the grounds of appeal heralded in the notice of appeal. An issue advanced by the appellant for the determination of his appeal which issue does not draw from any of the grounds of appeal is incompetent and unavailing to him. In the instant case, appellant’s 3rd issue being not borne out of any of the grounds of appeal in the notice of appeal is incompetent. It must and is hereby struck out. See Iwuoha v. Nipost Ltd. (2003) 8 NWLR (Pt. 822) 308 SC and Bankole v. Dada (2003) 11 NWLR (Pt. 830) 174.”

Okoro, J.C.A. (as he then was) had this to say in the case of Ayorinde vs. Kuforiji (2007) 4 NWLR Pt. 1024 P.341 @ 367.
“It is now elementary and it ought to be well grasped by counsel that issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal. See Tobi: The brief system in Nigerian Courts; Page 77 paragraph 111 see also Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) page 137 at 148.
General Oil Ltd. v. Chief Ogunyade (1997) 4 NWLR (Pt. 501) 613 at 621.
Since issues arise from the grounds of appeal; they ought to take account of the grounds of appeal and cannot raise issues outside their contemplation”.
and
“It is my well considered view that no matter how one stretches ground 3 of the grounds of appeal or any other ground for that matter it cannot accommodate the equitable principles of laches and acquiescence. Therefore part of issue No. 3 which has to do with these principles are hereby discountenanced not flowing from the grounds of appeal”.

In view of the foregoing, I am of the view that the 2nd issue distilled from the 5th ground of appeal, having not been linked or related to the 5th ground of appeal, is competent. I so hold. Consequently, I do hereby strike out the 2nd issue distilled from the 5th ground of appeal. It would not be considered in the determination of the appeal.

Having resolved issues (i) (ii) in favour of the appellant and issues 3, 4 and 5 in favour of the respondent the appeal succeeds in respect of issues (1) and (2). In the result, the appeal has partially succeeded to the extent of having resolved issues (1) and (2) in favour of the appellant. The net result is that the award of N1.5 million to the respondent is hereby set aside. The dismissal of the counter-claim is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now, the lead judgment of my learned brother Bdliya, JCA. I fully appraised myself of all his reasonings and conclusions. I agree with them and have nothing more to add. I too allow this appeal in part and also abide by all the consequential orders of my learned brother.

CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have had the opportunity of reading in draft the Judgment read by my learned brother, I.S. BDLIYA JCA and I agree that this appeal succeeds in part. The award of N1.5 Million to the Respondent is hereby set aside. The order dismissing the counter-claim is affirmed.

Appearances

A.M. Kayode Esq. with Phoebe Egbele (Miss)For Appellant

AND

L.E. Manulu Esq.For Respondent