ADDY v. UNIMAID
(2022)LCN/15993(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, January 12, 2022
CA/A/460A/2015
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
PROFESSOR EMMANUEL O. ADDY APPELANT(S)
And
UNIVERSITY OF MAIDUGURI RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended, it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality.
Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi criminal Panel or body. See:-
1. R. ARIORI & ORS V MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 AT 23 – 24 per OBASEKI, JSC.
2. CHIEF J.L.E. DUKE V GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 AT 366 B – C per GALADIMA, JSC who said:-
“It now remains for me to consider whether the Appellant was given a fair hearing before issuance of Exhibit 3 of the 2nd Respondent. By the term “fair hearing within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective case. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or Respondent thereto.”
In other words, equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 6(1) of the 1999 Constitution as amended. Where it is proved that a party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside fort with.
See NICHOLAS CHUKWU JEKWU UKACHUKWU VS PDP & ORS (2014) 2 SCM 2002 AT 223 F- D – 224 A -H per K. M. O. KEKERE-EKUN, JSC who said:-
“The fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law constituted in such a manner as to secure its independence and impartiality.”
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.
See Tsokwa Motors (Nig.) Ltd. vs. U. B.A. Plc., (2008) All FWLR (Pt. 403) 1240 at 1255 A – B (2008) 1 SCAM, 204, Adigun vs. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 674, Okafor vs. A. G. Anambra State (1991) 3 NWLR (Pt. 200) 59, Leaders & Co. Ltd. vs. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; (2010) 12 (Pt. 2) SCM, 120.” PER IGE, J.C.A.
WHETHER OR NOT THE TRIAL COURT CAN GO OUTSIDE THE CONFINES OF A CONTRACT OF EMPLOYMENT BETWEEN PARTIES TO A DISPUTE
The lower Court cannot go outside the confines of the terms of employment between the parties as embodied in documentary evidence. It is not the business of the Court to rewrite the contract for the parties. See
1. GABRIEL ADEKUNLE OGUNDEPO & ANOR V. THOMAS ENITAN OLUMESAN (2011) 8 NWLR (PART 1278) 54 AT 70C-D per FABIYI, JSC who said:
“I need to still point out at this stage that it is not the business of a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition. A Court of record should never accede to the importation of unrelated ‘grey’ areas of the law by a party to prop what is not contained in the instrument made by the parties. See Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 30 and Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 576”.
2. CENTRAL BANK OF NIGERIA & ANOR VS MRS. AGNES IGWILLO & ANOR (2007) 14 NWLR (PART 1054) 393 AT 419H – 420 A – C per AKINTAN, who said:-
“The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer, and (c) those where the employment is regulated or governed by statute often referred to as having statutory flavour. See Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms and under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra, Ogunke v. National Steel Development Authority (1974) NMLR 128, Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47, Ideh v University of Ilorin (1994) 3 NWLR (Pt. 330) 81, Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303 and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.” PER IGE, J.C.A.
THE POSITION OF LAW ON THE PRIMARY DUTY OF THE TRIAL COURT
Where as in this case, the Appellant accused the lower Court of perverse decision on the oral and documentary evidence led and proffered before the lower Court, this Court is in the same position as the lower Court to examine the documentary evidence to find out if the lower Court really misused or misapplied the oral and documentary evidence and it results in perverse decision which has occasioned a miscarriage of justice, this Court will intervene to do justice. See
1. MRS. ELIZABETH IRABOR ZACCALA VS MR KINSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D per M. D. MUHAMMAD, JSC who said:
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility crises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC); (2014) 2 NWLR (Pt. 1392) 483.
“In Nkebisi v. State (2010) 5 NCC 84 at 104; (2010) 5 NWLR (Pt. 1188) 471, this Court held that an Appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court, Abuja, Coram: M. N. ESOWE, J., delivered on 30th day of September, 2015 in Suit No: NICN/ABJ/255/2012.
The Appellant herein as the Claimant via a General Form of Complaint commenced this action at the trial Court against the Defendant, claiming the following reliefs:
“1. An Order of the Honourable Court that the termination of the Claimant contract of employment by the Defendant is irregular, illegal, unlawful, null and void and of no effect whatsoever.
2. An Order of the Honourable Court that the Claimant is entitled to all his outstanding salaries and allowances from March 2010 until the date of judgment.
3. An Order of the Honourable Court directing the Defendant to reinstate the Claimant as a bonafide staff of the Defendant’s institution forthwith.
4. An Order of the Honourable Court directing the Defendant to pay the Claimant his arrears of monthly Nigeria Expatriate Supplementation Scheme put as $6,000 US Dollars from May, 2005 health allowances, housing allowances and salaries from March 2010 until the date or judgment.
5. An Order of the Honourable Court compelling the Defendant to pay over to the Claimant his arrears of monthly salary from the month of March, 2010 until the date of judgment.
6. An Order of this Honourable Court compelling the Defendant to pay the sum of N50,000,000 (Fifty Million Naira) as general damages to the claimant.
7. An Order of this Honourable Court compelling the Defendant to bear the solicitors fees and the cost of this suit put at N1,000,000 (One Million Naira).”
Upon service on the Defendant of the Originating Processes, the Defendant joined issues with the Claimant. The matter thereafter, went into hearing on 9th September, 2013.
The Claimant testified for himself and tendered Exhibits A to Z1, Z2 and closed his case on 17/10/2013. The Defendant opened his case on 13/10/2014 wherein Dr. Bukar Alhaji testified as the lone witness. He tendered Exhibit Prof 5 which was subsequently admitted in evidence and thereafter, closed the Defendant’s case on 19/11/2014. Counsel to the parties filed and exchanged their respective final written addresses.
In the judgment of the trial Court “In sum, my final judgment is as follows:
Claim 1 fails. The termination of the Claimant’s contract of employment by the Defendant is not irregular, illegal, unlawful and void. The employment is a common law employment popularly referred as M/S relationship.
Claim 2 fails.
Claim 3 also fails. The Court is unable to order reinstatement of the Claimant as a bonafide staff of the Defendant’s institution.
Claim 4 succeeds in part. This Court hereby directs the Defendant to pay the Claimant his Nigeria Expatriate Supplementation Scheme put as $4,750 and any other Ness accruing to him.
Claim 5 fails. The Claimant is not entitled to any arrears of salary.
Claim 6 fails. A general damage was not proved.
Claim 7 fails and is dismissed.
Judgment is entered.”
Dissatisfied with the above decision of the lower Court, the Appellant appealed to this Court vide a Four (4) Grounds Notice of Appeal filed on the 4th December, 2015. The grounds of appeal without their particulars are as follows:
“Ground One:
The learned trial Judge with respect erred in law by denying the Appellant fair hearing in not considering all the evidence placed before it by the Appellant.
Ground Two:
The learned trial Judge with respect misdirected himself as to law and fact when he held that the employment relationship that existed between the parties was a Master/Servant relationship, and upon this failed to order the reinstatement of the Appellant.
Ground Three:
The learned trial Judge erred in law when he stated that the Claimant did not prove the issue of $5,000 for Nigeria Expatriate Supplementary Scheme even though it was not challenged.
Ground Four:
The learned trial Judge erred in law when he failed to consider the totality of evidence adduced by the Appellant at the trial.”
From the above grounds of appeal, Counsel for the Appellant distilled three (3) issues for the determination of this appeal in the Appellant’s Brief of Argument filed on the 24th March, 2016. In response, Counsel for the also formulated three (3) issues in Respondent’s Brief of Argument filed on the 2nd March, 2017.
The appeal was heard on 14th day of October, 2021, as Counsel to the parties adopted their respective briefs of arguments.
The three (3) issues submitted by Counsel for the Appellant, OSITA IBEKWUTE, ESQ are:
“1. Whether in the light of the lower Court judgment and evidence led at the trial Court, the Appellant’s right to fair hearing could be said to have been breached as to occasion a miscarriage of justice.
2. Whether an order for reinstatement is not only order appropriate to have been made by the lower Court in view of the admissible evidence before it.
3. Whether upon the admissible evidence at the trial Court, the Appellant is entitled to annual $6,000 US Dollars as Nigeria Expatriate Supplementation Scheme Allowance from May, 2005, until lawful termination of his appointment.”
The three (3) issues by distilled Counsel for the Respondent, P. A. BELLO, ESQ., is as follows:
“1. Whether in the determination of this case, the trial Court violated the Appellant’s right to fair hearing.
2. Whether the trial Court was wrong in law when it found that the employment relationship between the parties was that of master and servant that was not protected by statute.
3. Whether the trial Court was correct when it found that the Appellant failed to proof his claim for $6,000, Expatriate Supplementation Scheme Allowance against the Respondent.”
Issues distilled by parties are virtually same, this appeal will therefore, be determined on the three (3) issues as formulated by the Appellant.
Summary of Appellant’s & Respondent’s Submissions
Issue One:
Whether in the light of the lower Court judgment and evidence led at the trial Court, the Appellant’s right to fair hearing could be said to have been breached as to occasion a miscarriage of justice.
Counsel for the Appellant while arguing this issue submitted that upon the admissible evidence led at the trial Court and the judgment thereto, delivered by the learned trial Judge and also evidenced by the record of appeal, the Appellant’s right to fair hearing had greatly been affected as to occasion serious miscarriage of justice. He cited ADIGUN V. ATTORNEY GENERAL OYO STATE (1987) 1 NWLR (PT. 53) 678. He argued that the trial Court did not advert its mind to the vital evidence of the Appellant and in particular Exhibits C, G, J, L and N at pages 148 – 149, 154 – 156, 163, 166 and 168 of the record of appeal and as such occasioned a veritable miscarriage of justice that calls for the intervention of the appellate Court. That by the virtue of the Appellant being a Professor that his appointment is deemed to have been confirmed to retiring age of 65 years. He maintained that the trial Judge failed to consider a vital evidence of the Appellant which was placed before it. He cited AGU V. NNADI (2002) 18 NWLR (PT. 798) 103.
Counsel urged the Court to make findings and make pronouncements as to the complaint of the Appellant by taking a look at the record of appeal and in line with the Appellant’s appeal. He further urged the Court to resolve issue one in favour of the Appellant, against the Respondent on the ground that the lower Court failed to dispassionately consider the Appellant’s case and as such occasioned a miscarriage of justice.
Reacting to issue one, learned Counsel for the Respondent reviewed the circumstances leading to the commencement of this action and how the trial Court arrived at its verdict. He argued that the contract of employment of the Appellant was renewed for about 15 times on 2 years’ basis and that the last one ended on the 30th September, 2009. That the Appellant was not satisfied with the response (Exhibit ‘P’), he got from Respondent when he applied for further renewal of the contract. Counsel stated that still Respondent wrote the Appellant informing him that the contract of employment was extended 17th day of May, 2010, which he, the Appellant rejected, and led to this action, wherein the Appellant alleged that the Respondent irregularly, illegally, and unlawfully terminated his contract of employment.
Learned Counsel contended that the Respondent did not terminate the contract of employment of the Appellant. That the Appellant, a citizen of Ghana was a contract staff and that he was not a permanent staff whose appointment could have been made permanent and pensionable. That Appellant’s employment was governed by the terms contained in Exhibit ‘C’ as modified by Exhibit ‘N’. Counsel opined that the Respondent’s case was that the contract of employment came to an end on the 30th day of September, 2009, as all efforts to extend it for a shorter period and for the last time was not accepted by the Appellant.
Counsel reproduced the findings of the trial Court at page 451 fine 19, 452 lines 1 – 8, thus:
“In the instant case, the claimant as usual applied for renewal of the contract for 2 years. The contract was rather extended and not renewed. This means that at the expiration of the previous renewal, and upon application for renewal, the Defendant impliedly denied the application and instead extended the already contract. I find nothing wrong in this, since they are at liberty to accept renewal or deny same or even very the terms… “
Counsel for the Respondent submitted that the above findings were not challenged by the Appellant in any of the grounds of appeal filed before this Court. That the effect being that the findings stand as the valid judgment of the Court and that this Court has no jurisdiction to review same in this appeal. He cited:
1. OPUTEH V. ISHIDA (1993) 3 NWLR (PT. 279) 56,
2. OGBIMI V. NIGER CONSTRUCTION (2006) 4 SCNJ 140 AT 154,
3. BHOJSONS PLC V. GEOFREY K. DANIEL-KALIO (2006) SCNJ 156 AT 168.
Contrary to the Appellant’s submission that there was no fair hearing accorded to him, Counsel for the Respondent submitted that the findings of the trial Court cited above are all embracing. That having found that the contract of employment came to an end by the election of the Respondent not to renew for another period, that the issue of termination of employment by 6 months’ notice or payment of 6 months’ salary in lieu of notice does not rise as stipulated in Exhibit ‘N’. That the terms stipulated in Exhibit ‘N’ did not derogate from the terms contained in Exhibit ‘C’. That whether or not the Appellant attended the age of 65 years will not change his status as a contract staff whose contract of employment “May be extended for specific period on mutually agreed terms ….” as contained in Exhibit ‘C’. Learned Counsel submitted further that the learned trial Judge gave dispassionate consideration to the Appellant’s case and did not deny him his right to fair hearing. He cited UBA V. ACHORU (1990) 6 NWLR (PT. 156) 254 AT 278. He stated that the entire authorities and submission of Counsel on this issue are misplaced, misapplied and of no legal assistance to the issue formulated by the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Issue Two:
Whether an order for reinstatement is not only order appropriate to have been made by the lower Court in view of the admissible evidence before it.
While arguing this issue, Counsel for the Appellant submitted that a look at page 168 of the record of appeal shows that no order outside reinstatement is appropriate in the instant case as there is nothing in the record of appeal to show that the contents of Exhibit ‘N’ at page 168 of the record of appeal was complied with by the Respondent. That by Exhibit C and D at pages 148 – 150 of the Record of Appeal, the Appellant’s appointment was duly made as an employee of the Respondent. Counsel referred the Court to Sections 11 and 12 of the Third Schedule to the University of Maiduguri and thereafter, contended that the Respondent being a creation of statute must act within the provisions of the law creating it. He stated that the Respondent entered into contract of employment with the Appellant and in furtherance issued Exhibits C, at pages 146 – 149, Exhibit ‘D’ at page 150 and Exhibit ‘N’ at page 168 of the record of appeal. Counsel stated that the Respondent acting within its power under Section 3 of the said Act creating it and in line with its objectives under Section 1 of the said Act conferred on the Appellant an employment with statutory flavour. While reproducing paragraph 5 of Exhibit C, at page 148 of the record of appeal, learned Counsel submitted that the implication is that they Appellant’s employment enjoys statutory flavour. He cited:
1. OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599 SC;
2. BERNARD LONGE V. FIRST BANK OF NIG., (2010) 36 WRN 1 AT 19.
Counsel maintained that the Respondent never complied with the requirements of Exhibit ‘N’ or Section 16 of the University of Maiduguri Act. He referred the Court to pages 423 – 426 of the Act establishing it. That the Respondent’s act of terminating the Appellant’s employment is still unlawful in view of Exhibit ‘N’ at page 168 of the record of appeal, because the specific contents of Exhibit ‘N’, has made the Appellant’s employment with the Respondent no longer that of ordinary master and servant relationship but of much higher relationship than that and employment with a fixed tenure of office. He therefore, submitted that the Appellant’s employment can only be terminated in line with Exhibit ‘N’ or by Section 16 of the University of Maiduguri Act and no more. He relied on UWAH V. AKPABIO (2014) PNLR RATIO 2 AT P. 104 SC. That since the Respondent has clearly failed to honour the contract agreement he had with the Appellant and the fact that the Respondent is a public institution, the only order appropriate to be made in the circumstances of this case is An Order for Reinstatement of the Appellant. He cited CBN V. IGWILLO (2012) 1 NILR PG. 1. That upon the issuance of Exhibit ‘N’ at page 168 of the record of appeal, the need to renew or extend the contract of the Appellant becomes an unnecessary surplusage. That since the Appellant’s term of employment upon Exhibit ‘N’ has become fixed and the only way of terminating his appointment can only be in line with the said Exhibit ‘N’ or the provision of Section 16 of the University of Maiduguri Act. He cited OMENKA V. MORISON INDUSTRIES LTD (2000) 13 NWLR (PT. 663) 147. Learned Counsel submitted that the termination of the Appellant’s employment has no legal justification not even under Section 19 of the University of Maiduguri.
That the Respondent cannot find cover under the said section. That the Appellant even rose to become a professor under the employment of the Respondent which should have been for the good of the nation to retain his services. He urged the Court to resolve the second issue for determination in favour of the Appellant and hold that the Appellant is entitled to an order of reinstatement and also a consequential order that all his entitlements including his allowances and other fringe benefits be paid to him.
Learned Counsel for the Respondent stated that the trial Court found that the relationship was that of master and servant and that the Appellant was not entitled to reinstatement and that contrary to the argument of the Appellant that having issued Exhibit ‘C’ and ‘D’ pursuant to Section 3(1)(b, j, q and r) of the University of Maiduguri Act, and in line with its objectives under Section 1 of the said Act, that the Appellant was conferred with an employment with statutory flavor, submitted that the findings of the trial Court remains the law on this subject. He cited FAKUADE V. OAUTH (1993) 5 NWLR (PT. 291) 47.
Learned Counsel for the Respondent further submitted that the trial Court was on a firm ground when it found that there is written contract i.e. Exhibit ‘C’ between the parties that stipulates the mode of determination of the said contract of employment, the rights of the parties which includes the remuneration and benefits of the Appellant. Counsel stated that in Exhibit ‘C’, the Appellant is at liberty to apply for a renewal of the contract of employment and that the parties are at liberty to fix the terms of the said contract of employment and that parties are to agree on the terms as they wished. He submitted that going by the contract of employment Exhibit ‘C’ as modified by Exhibit ‘N’, that the trial Court was right when he found that the relationship between the parties was that of ordinary master and servant relationship. Learned Counsel submitted that the argument of the Appellant at pages 9 paragraph 4:24 to 4:26 and page 10 of his brief to the effect that by Exhibit ‘N, Appellant enjoyed an employment higher than that of master and servant under the common law because his age of retirement was fixed at 65 years as a Professor that this argument is skewed and untenable.
That the rule of construction of document requires that the entire paragraphs of the document should be read together and not in isolation. He cited:
1. OJOKOLOBO & OR V. LAPADE ALAMU (1987) 7 SCNJ 98;
2. ROYAL EXCHANGE ASSURANCE NIG., LTD V. ASWANI TEXTILE INDUSTRIES LTD., (1991) 2 NWLR (PT. 176) 639 AT 669, and
3. CALABAR CEMENT CO., LTD V. DANIEL (1991) 4 NWLR (PT. 188) 750 AT 759.
Arguing further as per Exhibit Learned Counsel for the Respondent submitted that it was not the intention of the parties that the Appellant should remain in the employment of the Respondent, uninterruptable until he attained the age of 65 years. That the right of the Respondent to determine the contract any time or not to renew or extend the contract was not inhibited in any way. He urged this Court to give effect to the intention of the parties as expressed in Exhibit ‘C’ and ‘N’. He referred the Court to NIGER DAMS AUTHORITY V. LAJIDE (1973) 5 SC 207. Counsel drew the attention of the Court to paragraphs 7, 8, 20, 21, 22, 24, 25, 26 and 29 of the Statement of Claim, Exhibit C and Exhibit ‘O’ signed by the Appellant and submitted that by the said documents that the Appellant knew that he was a contract staff of the Respondent whose contract was renewable from time to time and NOT a permanent staff whose employment can only be determined upon attaining 65 years, otherwise he would not have applied by Exhibit O for renewal or extension of his contract of employment. Regarding Section 16 of the University of Maiduguri Act cited by the Appellant, Counsel opined that the said provision has no application to this case. That the said section deals with procedure to be followed before a disciplinary action can be taken against an academic staff of the University. He stated that the law is that a termination of contract of service brings to an end the relationship of master and servant, employer and employee based on the principles of the confidential relationship between them which cannot continue in the absence of mutuality. He relied on CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 512 AT 560 per KARIBI-WHYTE, JSC, (as he then was). He stated that where as in this case, a contract of employment makes provision that either party thereto may determine it by specific notice or payment of prescribed sum of money in lieu thereof, such relationship is that of master and servant in the legal and ordinary sense of that relationship and it will be impossible to declare that the servant was still in the employment of his master. He argued that a Court of law will not impose a servant on an unwilling master. That an order of reinstatement in the circumstance will be an aberration in contract of this nature. He cited:
1. KAYDEE VENTURES LTD. V. HON. MINISTER (2010) 2 SCNJ 276; AND
2. YADIS V. GREAT NIGERIA INSURANCE (2007) 5 SCNJ 86 AT 108.
Counsel submitted that if there is any proof that the Appellant contract of employment was wrongfully terminated that his only remedy is in damages. He cited OSISANYA V. AFRIBANK NIG. PLC (2012) 2 NWLR 214 AT 230 – 234. That this Court cannot award any damages in his favour because the Appellant failed to plead and give particulars of what he earns per month as salary and other allowances to enable the Court calculate what he would have been entitled to for six months in lieu of notice. He relied on:
1. ALHASSAN V. ABU ZARIA (SUPRA) AT PAGE 1005, and
2. IFETA V. SHELL PETROLEUM LTD (2006) 4 SCNJ 111 AT 127 – 128.
Counsel maintained that what the Appellant earn per month is a question of fact that must be pleaded and that proved damages are awarded on sound and well settled legal principles and not on sentimental or arbitrary grounds. He cited MAJA V. SAMOURIS (2002) 3 SCNJ 29 AT 48.
Issue Three:
Whether upon the admissible evidence at the trial Court, the Appellant is entitled to annual $6,000 US Dollars as Nigeria Expatriate Supplementation Scheme Allowance from May, 2005, until lawful termination of his appointment.
Learned Counsel for the Appellant submitted that upon express and implied contents of Exhibits G at page 154 – 158, Exhibit ‘H’ at pages 159 – 161, Exhibit J at page 163, Exhibit L at page 166 and Exhibit M at page 267 of the record of appeal respectively, that the Appellant is entitled to $6,000 annually as Nigeria Expatriate Supplementation Scheme (NESS) allowance from May 2005 until his lawful termination of his employment. He referred the Court to page 452 of the record of appeal where the trial Court found that the Appellant did not prove how he came about the sum of $5,000 (instead of $6 000) US Dollars per annum even though it is unchallenged. On this Counsel stated that what is admitted needs no further proof. He cited the case of ANTHONY V. AYE II & ORS (2004) ALL FWLR (PT. 227) 444 AT 482. Learned Counsel argued that the Respondent is a party to NESS agreement. He reproduced the opening paragraph of Exhibit G at page 157 of the record of appeal, paragraph 3 of the same page 157 and submitted that the implication of same is to the effect that the Respondent is a party of the NESS agreement.
Learned Counsel to the Appellant further argued that the issue of autonomy of Nigerian Universities, is that which this Court can take judicial notice of under Section 122(2)(a)(b) of the Evidence Act, 2011. He referred the Court to Section 7 of the Universities (Miscellaneous provisions) (Amendment) Act, 2003. That the Respondent being a party to NESS agreement should comply with Section 7 (3) of Universities (Miscellaneous provisions) (Amendment) Act 2003. That by virtue of Exhibit F at page 36 of record of appeal, that is, Government White Paper on the Report of the Presidential Visitation Panel to the University of Maiduguri, which the Respondent is bound to obey by virtue of Section 7 (3) of the Universities (Miscellaneous Provisions) (Amendment) Act, 2003. That the Appellant being an Expatriate is entitled to his NESS allowance. That the Appellant having been promoted as a Professor with effect from 01/10/2006 is entitled to $6,000 US Dollars annually as NESS allowance as can be seen at Exhibit ‘G’ at pages 37 and 38 of Record of Appeal which Appellant’s counterpart from other Universities in Nigeria also receive. That the words used in a document must be given effect and no word must be added or subtracted or ignored. He cited DANTATA V. MOHAMMED (2013) ALL FWLR (PT. 675) 279 RATIO 11 AT P. 285 (CA).
Counsel posited further, that since the issue of $6,000 US Dollars to Appellant as annual Nigeria Expatriate Supplementation Scheme was not challenged by the Respondent at the lower Court, despite having adequate opportunity to have done so, that the period of such allowance should be from May 2005 until lawful termination of the Appellant’s appointment. He urged the Court to resolve this issue in favour of the Appellant and against the Respondent.
In response to issue three, learned Counsel for the Respondent submitted that claim of the Appellant of $6,000 from the Respondent as his NESS is under the head of special damages. That the law requires Appellant to specifically plead and give particulars of this claim and also proof same with credible evidence. That the requirement of the law to plead and give particulars of this claim is to enable the Respondent know how the Appellant arrived at the said amount. He relied on the cases of:
1. RIVERS VEGETABLE OIL COMPANY V. EGBUKOLE (2010) ALL FWLR (PT. 544) 111 AT 130,
2. ALHASSAN V. ABU ZARIA (SUPRA) AT PAGE 1005; and
3. NWANJI V. COASTAL SERVICES NIG., LTD (2004) 11 NWLR (PT 885) 552 AT 567.
The Respondent’s learned Counsel contended that the claim of $6,000 emerged for the first time under the reliefs claimed in paragraph 41(iv). That the facts and particulars of the said claim were no where pleaded as required by law in the statement of fact in line with the decision of the Supreme Court in NWANJI V. COASTAL SERVICES NIG. LTD (SUPRA) AT PAGE 567. That the law presumes that all damages claimed by a Plaintiff in his Writ of Summons and Statement of Claim are deemed denied by a Defendant, thus placing the burden of proof on the Plaintiff who asserts to proof. He cited OSUJI V. ISIOCHA (1989) 3 NWLR (PT. 111) 623 AT 640. Counsel posited that in the instant case, the Respondent is deemed to have denied the damages claimed. That the figure is not born out of the facts pleaded. That the Respondent did not have the advantage of having access to the facts which makes such calculation possible.
Arguing further, learned Counsel to the Respondent posited that contrary to Exhibit K1 tendered in support of his claim that the document was not signed, thus making it a worthless piece of document. He relied on the cases of:
1. A.G. ABIA STATE V. AGHARANYA (1990) 6 NWLR (PT. 362 AT 371;
2. GARUBA V. KIC LTD (2005) 5 NWLR (PT. 917) AT 175- 176.
He stated that the figures contained in the said document are at variance with the claim of $6,000 contained in the paragraph 41(iv) of the Appellant’s claim. He submitted that Courts of law do not speculate but act on real evidence that are admissible before it. He cited:
1. BENEDICT NWOTI V. TOC MBANU (1991) 7 NWLR (PT. 206) 737 AT 745; and
2. EMMANUEL AGBANELO V. UNION BANK OF NIG. LTD (2000) 4 SC (PT. 1) 233 AT 238.
He maintained that the Appellant having failed to plead and proof the sum of $6,000 claimed, that the trial Court could not have awarded the sum to the Appellant as doing so will be arbitrary and speculative. He relied on ALHASSAN V. ABU ZARIA (SUPRA) AT PACE 1005. He urged the Court to disregard the entire argument and submission contained at pages 13 and 14 of the Appellant’s brief as they are irrelevant to the issues formulated by him. He further urged the Court to resolve this issue favour of the Respondent and find that the trial Judge was right in law when he found that the Appellant failed to proof his claim of $6,000 against the Respondent.
Resolution of Issues in the Main Appeal
Issue One
The loud contention of the Appellant under issue one is that based upon the admissible evidence before the lower Court the decision of the lower Court breached Appellant’s right to fair hearing and has thus led to miscarriage of justice.
The learned Counsel to the Respondent contended that the lower Court gave dispassionate consideration to the Appellant’s case and that the Appellant was not denied right to fair hearing.
The Exhibit’s heavily relied upon by the Appellant can be found on pages 148 – 149, 154 – 156, 163, 166 and 168 of the record of appeal. They are Exhibits C, G, J, L and N respectively.
By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended, it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality.
Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi criminal Panel or body. See:-
1. R. ARIORI & ORS V MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 AT 23 – 24 per OBASEKI, JSC.
2. CHIEF J.L.E. DUKE V GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 AT 366 B – C per GALADIMA, JSC who said:-
“It now remains for me to consider whether the Appellant was given a fair hearing before issuance of Exhibit 3 of the 2nd Respondent. By the term “fair hearing within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective case. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or Respondent thereto.”
In other words, equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 6(1) of the 1999 Constitution as amended. Where it is proved that a party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside fort with.
See NICHOLAS CHUKWU JEKWU UKACHUKWU VS PDP & ORS (2014) 2 SCM 2002 AT 223 F- D – 224 A -H per K. M. O. KEKERE-EKUN, JSC who said:-
“The fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law constituted in such a manner as to secure its independence and impartiality.”
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.
See Tsokwa Motors (Nig.) Ltd. vs. U. B.A. Plc., (2008) All FWLR (Pt. 403) 1240 at 1255 A – B (2008) 1 SCAM, 204, Adigun vs. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 674, Okafor vs. A. G. Anambra State (1991) 3 NWLR (Pt. 200) 59, Leaders & Co. Ltd. vs. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; (2010) 12 (Pt. 2) SCM, 120.”
What the lower Court was enjoined under the law to scrutinize or examine to arrive at a just decision in this matter in order to discern if the Appellant’s employment was properly determined are the documents forming the contract of employment of the Appellant with the Respondent. Once it is proved that the disengagement of the Appellant is and was consistent with the Appellant’s Conditions of Service this Court will not interfere with the decision of the lower Court upholding the disengagement of the Appellant from Respondent’s employment.
The lower Court cannot go outside the confines of the terms of employment between the parties as embodied in documentary evidence. It is not the business of the Court to rewrite the contract for the parties. See
1. GABRIEL ADEKUNLE OGUNDEPO & ANOR V. THOMAS ENITAN OLUMESAN (2011) 8 NWLR (PART 1278) 54 AT 70C-D per FABIYI, JSC who said:
“I need to still point out at this stage that it is not the business of a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition. A Court of record should never accede to the importation of unrelated ‘grey’ areas of the law by a party to prop what is not contained in the instrument made by the parties. See Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 30 and Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 576”.
2. CENTRAL BANK OF NIGERIA & ANOR VS MRS. AGNES IGWILLO & ANOR (2007) 14 NWLR (PART 1054) 393 AT 419H – 420 A – C per AKINTAN, who said:-
“The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer, and (c) those where the employment is regulated or governed by statute often referred to as having statutory flavour. See Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms and under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra, Ogunke v. National Steel Development Authority (1974) NMLR 128, Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47, Ideh v University of Ilorin (1994) 3 NWLR (Pt. 330) 81, Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303 and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.”
On page 433 A – E OGBUAGU, JSC had this to say:-
“It must always be borne in mind and this is also settled firstly that where a contract (which includes contract of employment), involves several documents, the trial Court can only determine issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of The Attorney-General of Kaduna State v. Atta (1986) 4 NWLR (Pt. 38) 785 C. A. and Leymand (Nig.) Ltd. v Dizengoff W. A. (1990) 2 NWLR (Pt. 134) 610 at 620.
Secondly, where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of releasing of the Respondent to the 1st Appellant was that the 1st Appellant, shall accept the Respondent as employed and transferring his service from one body to another body. See the cases of John Holt & Co. (Liverpool Ltd v Stephen Lafe (1938) 15 NLR 14 and Bijou Nig.) Ltd v. Osidarohwo (1992) 6 NWLR (Pt. 249) 643 at 649. Again, a contract which must in law be in writing can only be varied by an agreement in writing. See the case of Morris v. Baron & Co. (1918) A. C. 1 at 39. Also settled, is that in the interpretation of a contract involving several documents, the documents must be read together. See the cases of Royal Exchange Assurance (Nig.) Ltd & 4 Ors v. Aswani Textile Industries Ltd (1991) 2 NWLR (Pt. 176) 639 at 669 C.A.”
Where as in this case, the Appellant accused the lower Court of perverse decision on the oral and documentary evidence led and proffered before the lower Court, this Court is in the same position as the lower Court to examine the documentary evidence to find out if the lower Court really misused or misapplied the oral and documentary evidence and it results in perverse decision which has occasioned a miscarriage of justice, this Court will intervene to do justice. See
1. MRS. ELIZABETH IRABOR ZACCALA VS MR KINSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D per M. D. MUHAMMAD, JSC who said:
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility crises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC); (2014) 2 NWLR (Pt. 1392) 483.
“In Nkebisi v. State (2010) 5 NCC 84 at 104; (2010) 5 NWLR (Pt. 1188) 471, this Court held that an Appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. The 1st Respondent’s appeal to the lower Court was on the basis of proper/non-evaluation of documentary evidence. Exhibit A and P.” (underlined mine).
2. MUSA ABDULMUMINI VS FRN (2018) 13 NWLR (PART 1635) 106 AT 117C-G per EKO, JSC who said:-
“A decision is said to be perverse when –
“a). it runs counter to the evidence before the Court, as:
b). it is not supported by the evidence adduce; or
c). where it has been shown that the Court took into account extraneous matters, or matters it ought not to have taken into account or shuts its eyes to the obvious; or
d). when it has occasioned a miscarriage of justice”.
See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 SC; (2002) 14 NWLR (Pt. 186) 195 SC. A perverse decision is one said to be persistent in error, different from what is reasonably required of a Court of justice.
I must, at this juncture say, as Karibi Whyte, JSC, did say in Anthony Ibhafidon v. Sunday Igbinosun (2001) 4 SC (Pt. 1) 96; (2001) 8 NWLR (Pt. 716) 653, that findings of fact are not sacrosanct. Where the conclusions made from the findings are not supported by evidence relied upon, or the proper conclusions or inferences are not drawn from the evidence, or where the trial Court failed to evaluate (or properly evaluate) the evidence, the appellate Court will, in the interest of justice, be free to do so. In such a situation, the appellate Court is entitled to evaluate the evidence and to give right decision supported by the evidence.
This duty of re-evaluation is what the Appellant herein alleges, in his issue 2, that the lower Court had abdicated in his appeal before it.
To succeed in an appeal, the onus is squarely on the Appellant to satisfy the appellate Court that the decision or judgment he had appealed was wrong. He discharges this onus by showing in what respects the decision appealed was wrong. He has to discharge this onus because the decision appealed is presumed, under Section 168(1) of the Evidence Act, 2011, to be valid and subsisting until set aside. If the Appellant fails to discharge this burden. This appeal is bound to be dismissed. See Obodo v Ogba (1987) 2 NWLR (PT. 54) 1 and Ogologo v Uche (2005) 14 NWLR (Pt. 945) 226 at 246.”
3. ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS.(2013) 8 NWLR (PART 1357) 550 AT 568 G – H to 571D per ARIWOOLA, JSC.
Exhibits C, J, L, and “N” relating to the appointment and Conditions of Service of the Appellant which are contained on pages 148 – 149, 163 166 and 168 of the record are as follows:-
EXHIBIT “C”
“UNIVERSITY OF MAIDUGURI
(Office of the Registrar)
PERSONAL AND CONFIDENTIAL
Ref No. R/SP592/Vol.1
Mr. Emmanuel O. Addy
Department of Biochemistry,
University of Maiduguri,
Maiduguri
Dear Sir,
I write on behalf of the Council of the University of Maiduguri to offer you an appointment as Assistant Lecturer in Dept. of Biochemistry. The duties of the post shall be such as the Head of Dept. may direct. The appointment, which is subject to your being declared medically fit, will commence on the date you arrive, in Nigeria on direct transit to Maiduguri or on the date you assume duty if you are now resident in Nigeria. The appointment is for two years in the first instance. It may be extended for specific periods on mutually agreed terms. (With effect from 5th March, 1979). Your salary will be at the rate of N4668.00 for a year, on Grade Level 09/1 i.e. N4668 .00 – N5640.00.
2. You will be eligible for the following:-
(a) Economy-Class air or approved class sea or road passages, from ZARIA to MAIDUGURI on appointment, on termination and on approved overseas leave for yourself, your wife and up to five children, normally below the age of 18 years, in accordance with the regulations approved by the University Council from time to time, if not entitled to these from any Government, Corporation or any public agency:
(b) Baggage allowance in accordance with the Regulations.
(c) Part-furnished residential accommodation at a rent which does not exceed… 81/4%… of your basic salary or housing allowance at the rate of N60.00… a month if University accommodation is not available.
(d) Free medical attention and hospital accommodation at reduced charges, for yourself and your family (i.e. your wife and children)
(e) Contract allowance of 25% of your basic salary.
3. You will be entitled to 30 days annual leave to be taken normally during the long vacation by arrangement through the Head of your Department and with the approval of the Registrar. In addition, you may be granted approved leave of absence in accordance with the regulations.
4. Further information about conditions in Maiduguri, entry permit, Visa and passages may be obtained from the Personnel office, University of Maiduguri, Nigeria.
5. I enclosed herewith two copies of a Memorandum of Appointment. If you decide to accept the appointment on the terms set out, please sign one copy over a ten kobo or equivalent stamp and return it to me.
6. Please let me know by … whether you accept this offer.
Yours faithfully,
Sgd.
Dahiru Bobbo
Registrar
cc. Vice-Chancellor
Bursar
Senior Accountant (Staff & General)
Head of Department
Internal Auditor.
HI/MSaad/.”
EXHIBIT “J”
UNIVERSITY OF MAIDUGURI
(Office of the Registrar)
R/ADM/ESTABS -154/Vol. III 31st August, 2005
NIGERIAN EXPATRIATE SUPPLEMENTATION SCHEME (NESS)
The University Administration is in receipt of a letter from the National Universities Commission (NUC), reference number NUC/ES/295 dated 5th August, 2005, informing the Vice-Chancellor that the NUC has suspended the payment of NESS entitlements with effect from 1st May, 2005. This was as a result of direct release of funds to Universities by the Federal Ministry of Finance with effect from 1st May, 2005, thereby ending the source of funding of NESS facilities for benefitting Universities. Consequently, the Commission has undertaken to pay all outstanding entitlements due to the beneficiaries on the scheme from their last payment up to 30th April, 2005.
In view of the above, I write to invite all beneficiaries to please come to the Office of the Deputy Registrar (Establishments) between Thursday 1st and Friday 2nd September, 2005, during working hours to sort out individual problems.
Beneficiaries are please requested to come along with relevant documents such as evidence of last payment and copies of application forms up to 30th April, 2005 (if any).
This is to enable us have a comprehensive report for submission to the National Universities Commission (NUC).
Thank you
Sgd
M. BUKAR USMAN
DEPUTY REGISTRAR (Estabs)
For: REGISTRAR
Distribution:
Prof. V. P. Gopal – Dept. of Biological Science
Prof. N. Sivachelvan – Dept. of Vet . Anatomy
Prof. R. K. Kachroo – – Dept. of Geology
Prof. M. A. Haquo – Dept. of Agric Engineering
Dr. I. Z. Khaa – Dept. of Chemistry
Dr. E. Ahmad – Dept. of Physics
Dr. Igbai Ahmed Khan – – Dept. of Chemistry
Dr. S. U. R. Chaudhari – Dept. of Vet. Surg. & Reproduction
Dr. Z. U. Siddiqui – Dept. of Maths & Stat.
Dr. E. A. Addy – Dept. of Biochemistry
Dr. M. R. Islam – Dept. of Geology
Dr. W. S. Richards – Dept. of Biological Science
Dr. M. A. Khalil – Dept. of Pathology
Dr. J. Msad – Dept. of Human Anatomy
Dr. Mohammed Aqil – Dept. of Chemistry
Dr. B. Hassan – Dept. of Maths & Stat.
Mrs . Shobha Chhangani – Dept. of Crop Science
cc: Vice-ChanceIIor
Registrar
EXHIBIT “L”
“NATIONAL UNIVERSITIES COMMISSION AJA NWACHUKWU HOUSE
PLOT 430 AGUWI-IRONSI STREET
MATTAMA DISTRICT
P.M.B. 237 GARKI G.P.O.
ABUJA – NIGERIA
PROFESSOR JULIUS A. OKOJIE
EXECUTIVE SECRETARY
TEL: (09) 4133185, 4133176-82
FAX: (09) 4133520
OFFICE OF THE EXECUTIVE SECRETARY
NUC/ES/133/VOL.23/86
The Vice-Chancellor.
University of Maiduguri
P.M.B. 1069,
Maiduguri
Borno State, Nigeria.
5th August, 2009
My Dear Vice -Chancellor,
RE: REQUEST FOR THE PAYMENT OF OUTSTANDING NESS ALLOWANCE TO DESIGNATED STAFF OF THE UNIVERSITY OF MAIDUGURI FOR THE PERIOD 1ST MAY, 2005 TO DATE
I refer to the above subject matter.
The Vice-Chancellor may wish to recall NUC letter, ref. NUC/ES/295 of 05/08/2005 on the decision of NUC Management to suspend further operation of the Nigerian Expatriates Supplementation Scheme (NESS). The suspension, which took effect from 1st May, 2005 was informed by the decision of the Federal Government to henceforth send recurrent grant of Universities (part of which was used to service the NESS) directly to them.
In view of the development and, by obligation of a contract, Universities concerned were urged by NUC to make individual arrangement to continue further payment of supplementation to its expatriate staff with valid NESS contract.
The National Universities Commission hereby re-affirms its position on the matter and once again appeals to your authority to please settle the claims of your expatriate staff in the interest of the system in particular, and the context of friendly relationship between Nigeria and the country of the expatriate staff. Please accept the assurances of my highest regard
Sgd.
Prof. Julius Okojie
Executive Secretary”
EXHIBIT “N”
“UNIVERSITY OF MAIDUGURI
P.M.B. 1069,
MAIDUGURI, NIGERIA.
REGISTRAR
DR. LAWAN BUKAR ALHAJI B.Sc. Ed., M.Ed., Ph.D, MIMC
TELEPHONE (076)232949, 232150, FAX: 076-236314
E-mail: registrar@unimaid.edu.ng
OFFICE OF THE REGISTRAR
Friday, April 17, 2009
R/SP.592/Vol. 1
Professor E. O. Addy
Department of Physiology Pharm. & Biochemistry
Faculty of Veterinary Medicine
University of Maiduguri
Dear Sir,
NOTIFICATION OF PROMOTION
I write to inform you that Council at its 111th meeting held on Monday 16th March, 2009 approved your promotion as Professor in the Department of Veterinary Pharmacology & Biochemistry with effect from 1st October, 2006, on salary of N676,674.00 per annum, in the UASS 7 step 7 (i.e . (N522,924.00 to 753,549.00).
Your next increment will be due on 1s t October, 2007.
As a Professor, your appointment is deemed to have been confirmed to retiring age of 65 years.
As a Professor of Biochemistry, you will take part in the organisation and conduct of teaching and research in the Department of Veterinary Pharmacology & Biochemistry and serve as member of Senate and of the Board of the Faculty of Veterinary Medicine and such examining bodies as may be necessary.
You will also be expected to elevate a substantial part of your time to original work and research.
As a professor, you shall not terminate your appointment other than at the end of the academic year, after having given to the Council, six months’ notice or salary in lieu thereof, unless the consent of Council is otherwise obtained. Council on the other hand, shall not terminate your appointment without having given you six months’ notice in writing of its intention to do so or having tendered payment of your six months’ salary in lieu thereof.
And the remaining conditions of your present appointment continue unchanged.
This letter supersedes ours R/SP. 592/Vol. 1 of Wednesday, March 18, 2009.
Please accept my congratulations.
Thank you
Yours faithfully;
Sgd.
DR. LAWAN BUKAR ALHAJI
REGISTRAR”
EXHIBIT “P”
“UNIVERSITY OF MAIDUGURI
P.M.B. 1069,
MAIDUGURI, NIGERIA.
REGISTER
DR. LAWAN BUKAR ALHAJI B. Sc. Ed., M. Ed., Ph. D, MIMC
TELEPHONE: (076)232949, 232150, FAX: 076-236314
E-mail: register@unimaid.edu.ng
OFFICE OF THE REGISTRAR
Monday, November 23, 2009
R/SP.592/Vol. 1
Professor E. O. Addy
Department of Physiology Pharm, & Biochemistry
Faculty of Veterinary Medicine
University of Maiduguri
Dear Sir,
RENEWAL OF CONTRACT APPOINTMENT
Please refer to our letter dated 26th August, 2009 on the above subject matter.
I write to inform you that the Vice-Chancellor has on behalf of the Appointments and Promotions Committee for Academic Staff, approved final renewal of your contract appointment with the University of Maiduguri up to the end of 2008/2009 academic session with effect from 30th September, 2009.
The terms and conditions co your contract appointment agreed with the University continue unchanged.
Please accept my congratulations.
Yours faithfully,
Sgd.
DR. LAWAN BUKAR ALHAJI
REGISTRAR.”
A community reading of the above exhibits encapsulating the terms and conditions of employment of the Appellant profoundly and glaringly shows that the contract of employment is purely that of Master and Servant that could be determined or brought to an end by either of the parties to it giving each other six months’ notice or payment of six months in salary in lieu of notice. The contract of service was initially for two years but renewed for the same period of time on terms initially agreed to parties. Exhibit “N” makes it clear that the appointment could be renewable until Appellant turned 65 years.
It is eminently clear from the letters relied upon by the Appellant that is his employment was not governed by any statute or regulation. The Appellant’s right to fair hearing was not in any way breached by the lower Court and no miscarriage of justice had been occasioned. I agree with the Respondent’s submissions that the lower Court gave a dispassionate consideration to the pieces of evidence led before the trial Court.
Issue 1 is resolved against the Appellant.
Issue 2
One of the pivots of the argument under issue 2 dealing with the failure of lower Court to order the Appellant’s reinstatement can be found in paragraph 4.26 of the Appellant’s Brief of Argument whereat the learned Counsel to him submitted thus:-
“It is our further submission your Lordships, that since the Respondent has clearly failed to honour the contract agreement he had with the Appellant, and the fact that the Respondent is a public institution, the only order appropriate to be made in the circumstances of this case is AN ORDER FOR REINSTATEMENT OF THE APPELLANT. Moreso, is the fact that by Exhibit B at page 145 of the Record of Appeal, the Appellant is still within the employable age having been born on 29th day of July, 1952.”
The learned Counsel to the Appellant had earlier argued in paragraphs 4.13 and 14.14 that by Exhibits “C” and “D” at pages 148 – 150 of the Record of Appeal, the Appellant appointed as an employee of the Respondent was consummated. He further founded his submission on Paragraphs 11 and 12 of the Third Schedules to the University of Maiduguri Act all of which provide:-
“(11) Subject to the Act and the statutes, the filling of vacancies in academic posts (including newly created ones) shall be as prescribed from time to time by statutes.
(12) (1) The administrative and professional staff of the University, other than principal officers and that mentioned in Article 9 of this Statute, shall be appointed by the Council or on its behalf by the Vice- chancellor or the Registrar in accordance with any delegation of power made by the Council in that behalf.
(2) In the case of administrative or professional staff who have close and important contacts with the academic staff, there shall be Senate participation in the process of selection.”
I have reproduced Exhibit “C” under issue 1 and Exhibit “D” only relates to date of assumption of duty. Exhibits “C” and “N” constitute the contract of employment between the Appellant and the Respondent.
The law is settled that in the interpretation of any law, schedules, subsidiary legislation or documents, the Court must adopt literal or ordinary grammatical meanings of the documents or law being construed. The documents and the related provisions of the law must be construed as a whole. See:
1. PDP VS. HON. (DR) HARRY N. ORANEZI & ORS (2018) 7 NWLR (PART 1618) 245 at 257 H to 258A per M. D. MUHAMMAD, JSC.
“Now, a cardinal principle of interpretation we must not forget, which learned Appellant’s Counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statue, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; (1992) 2 NWLR (Pt. 226) 661 and Artra Industry Nigeria Limited v. NBCI (1998) 3 SCNJ 97 at 115; (1998) 4 NWLR (Pt. 546) 357.”
2. UBN PLC VS ALHAJI AJABULE & ANOR (2011) 18 NWLR (PART 1278) 152 AT 185 per ADEKEYE, JSC who said:-
“In the law of contract, the law is that a written contract agreement entered into by parties is binding on them. Where there is any disagreement between the parties to such written agreement on any particular point, the only reliable evidence to resolve the claim is the written contract of the parties. The reason being that where the intention of the parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties.”
A close perusal of the provisions of the University of Maiduguri Act 3rd Schedule thereof relied upon and Exhibits “C”, “D” and “N” heavily relied upon by the Appellant cannot avail the Appellant in his quest for reinstatement. The Appellant’s appointment was not and is not governed by paragraphs 11 and 12 of Schedule to University of Maiduguri Act. Exhibits C, D and N are clear enough. They do not make the Appellant’s employment an employment with statutory flavour and it is not governed by any of the sections of the said Act.
What the Appellant sought to do is to foist and force himself on the Respondent. His employment is purely contractual and limited to two years renewable every two years.
It does not lie in the province of an employee on contact for specific period to dictate to his employer outside the terms and conditions governing his employment which was purely at the pleasure of his employer, the Respondent.
For avoidance of doubt, I like to refer to paragraphs 7, 8 and 29 of the Appellant’s Amended Statement of Fact wherein he pleaded as follows:-
“7. The Claimant avers that his contract of employment as an academic staff with the Defendant’s institution was renewed fifteen times.
8. The Claimant further aver that his contract of employment with the Defendant’s institution was on a two years basis. Find attached herewith and marked ANNEXURE ‘F” and “F1” are copies of letters of renewal of appointment dated 4/7/85 and October 17, 2007 same shall be relied upon by the Claimant at the trial.
29. The Defendant further notified the Claimant via a letter dated Monday, June 07, 2010 that his contract of employment with the institution terminated on 17th May, 2010. The said letter is hereby pleaded and marked ANNEXURE “W” and same shall be relied upon at the trial.”
The above pleaded facts by the Appellant constitutes acknowledgment or admission “that his contract of employment with the Defendant’s institution was on a two year basis” renewable by the mutual agreement of the parties. Annexure “W” aforesaid reads:-
“UNIVERSITY OF MAIDUGURI
P.M.B. 1069,
MAIDUGURI, NIGERIA,
REGISTRAR
DR. LAWAN BUKAR ALHAJI, B. Sc. Ed., M. Ed., Ph. D, MIMC
TELEPHONE :(076)232949, 232150, FAX: 076-236314
E-mail: registrar@unimaid.edu.ng
OFFICE OF THE REGISTRAR
Monday, June 07, 2010
R/SP. 592/Vol.1
Professor E. O. Addy
Department of Physiology Pharm. & Biochemistry
Faculty of Veterinary Medicine
University of Maiduguri
Dear Sir,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
RENEWAL OF 2007/2008 CONTRACT APPOINTMENT
Please refer to our letter Ref. No. NSP 592/Vol. 1 dated 11th January, 2010 on the above issue.
I am directed to remind you that your contract appointment with the University terminated on the 17th May, 2010 and from that date you seized to be the staff of this University.
You are please requested to set in motion the process of disengagement.
Thank you.
Yours faithfully,
V. O. OGUNBAMERU (MRS)
DEPUTY REGISTRAR (ESTABS)
FOR REGISTRAR.”
The Appellant’s contract appointment with the Respondent was terminated on 17th May, 2010 as pleaded by the Appellant.
As stated earlier the documents Exhibits “C” and “N” are binding on the Appellant as parties are bound by the conditions or stipulations contained in the contract or agreement voluntarily entered into. Exhibits “D” and “N” regulated the conditions of Appellant’s Employment with the Respondent. It is the related contractual documents or correspondences between the Appellant and Respondent that the Court is bound to examine. This much the lower Court did and justifiably came to the conclusion that there is nothing illegal or irregular in the termination of the Claimant’s contract of employment by the Respondent. See ADAMU MOHAMMED GBEDU & ORS VS JOSEPH I. ITIE (LIQUIDATOR) & ORS (2020) 3 NWLR (PART 1710) 104 AT 126 F – H per RHODES-VIVOUR, JSC who said:-
“The relationship between an employer and his employee is regulated by the service agreement or the conditions of services.
See College of Medicine of University of Lagos v. Adegbite (1973) 5 SC p. 149.
It follows that the only document which shows the Plaintiffs’ conditions of service and which the Court is enjoined to examine to determine the Plaintiffs’ entitlements is the service agreement.
The Court should only look at the contract of service, and no other document. Collective agreements do not supplement their contract of service unless they have been adopted as forming part of the terms of employment.”
Issue 2 is resolved against the Appellant.
Issue 3
This has to do with whether the Appellant is entitled to “Annual $6,000 US Dollars as Nigeria Expatriate Supplementation Scheme Allowance from May 2005″, until lawful termination of his appointment.
The Appellant had relied on Exhibits “G”, “J”, “L” and “M” to claim entitlement to the said $6000 USD.
The lower Court had on page 452 of the record stated that the Appellant did not prove the entitlement to $6000 USD but $4,700 NESS allowance and any other NESS Allowance according to the Appellant.
In reaction the Respondent on page 13 of her brief contended that it is not correct to say that the Respondent did not challenge the claim of the Appellant and entitlement to the sum of $6000 USD. The Respondent relied on paragraphs 6, 7, 9 and 23 of the Statement of Defence.
I have perused paragraphs 6, 7, 9 and 23 of the Respondent’s Amended Statement of Defence and it is true that issues were duly joined on entitlement to $6000 claimed by the Appellant. The Respondent made it abundantly clear that payment of NESS entitlement was not part of the terms and conditions of the employment of the Appellant had with the Respondent while Annexures K on page 165 of the record talked of 3 years entitlement totaling $13,500 at rate of N4,500 per annum, the Appellant claimed $6000 USD per annum. The document Exhibit K1 relied upon by the Appellant does not support his claim for $6000 USD which he failed to explain how the figure came about as rightly found by the lower Court. His claim to the sum of $6000 CJSD is at variance with his pleadings. See
1. ADAMU MOHAMMED GBEDU & ORS VS JOSEPH I. ITIE (LIQUIDATOR) & ORS (2020) 3 NWLR (PART 1710) 104 AT 129 E – G per RHODES-VIVOUR, JSC who said:-
“Was there linkage between NJIC 2002 and NJIC 2004 and the individual contracts of the employees (i.e. Appellants)?
In Adekeye v. Adesina (2010) 18 NWLR (Pt. 1225) P. 449 at 494, para. G.
I reminded Counsel that:
“…cases are not decided on emotions, sentiments or some misguided consideration. Cases are won on pleaded facts supported by compelling evidence.”
A pleading without evidence to support it is naked. Such a pleading is abandoned. There is no pleading that NJIC 2002 and NJIC 2004, collective agreement were incorporated into the individual contracts of the Appellants.”
2. STATOIL NIGERIA LTD VS INDUCON NIGERIA LTD & ANOR (2021) 7 NWLR (PART 1774) 1 AT 101 per AGIM, JSC who said:-
“Issues are joined in the pleadings and not on the evidence. Any evidence that is at variance with the issues joined in the pleading goes to no issue and is inadmissible. This Court has made this restatement in several cases without exception. In Bamgboye v. University of Ilorin (1999) 6 SC (Pt. 11) 72, (1999) 10 NWLR (Pt. 622) 290, this Court held that:
“Issues, it must be emphasized, are joined in the pleadings, not in the evidence. See Ehimare v. Emhonyon (supra), Adeosun v. Adisa (1986) 5 NWLR (Pt. 40) 225 at 235 and Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598 at 623 SC. Evidence which is at variance with the pleadings goes to no issue and should be rejected and if admitted should be expunged from the record. See Emegokwue v. Okadigbo (1973) 4 SC 113 at 117, Dike v. Nzeka (1986) 4 NWLR (Pt. 34) 144. 156 and Lana v. University of Ibadan (1987) 4 NWLR (Pt. 64) 245, 258 – 259, 262.”
It is important to note that by the letter from National University Commission payment of NESS allowance have been suspended by the National Universities Commission but the Universities with Expatriate Teacher were only “urged by NUC to make individual arrangement to continue further payment of supplementation to its EXPATRIATE STAFF WITH VALID NESS CONTRACT”. See Annexure “L” page 166 of the record.
The Respondent pleaded and stated that Appellant had no such valid NESS contract with it. The Appellant failed to debunk the contention of the Respondent.
I am of the view that issue 3 ought to be resolved against the Appellant and I hereby resolve issue 3 against the Appellant.
Having resolved all the issues against the Appellant, his appeal is HEREBY adjudged unmeritorious. The Appellant’s appeal is hereby dismissed in its entirety.
The judgment of the National Industrial Court of Nigeria Abuja Division delivered by HON. JUSTICE M. N. ESOWE on 30th September, 2015 is HEREBY AFFIRMED.
There will be no order as to costs.
CROSS-APPEAL
By her NOTICE of Cross-Appeal, the Respondent to the main appeal, University of Maiduguri cross-appeal to this Court on two grounds as follows:-
“2. PART OF THE DECISION OF THE TRIAL COURT COMPLAINED OF:
That part of the trial Court’s judgment where it directed the Cross-Appellant to pay the Respondent the sum of $4,750 of the NESS Allowance and any other NESS accruing to him.
GROUND OF APPEAL
(1) The learned trial Judge erred in law when he ordered the Cross-Appellant to the Respondent the sum of $4,750 as Expatriate Supplementation Scheme Allowance for the period of 1/10/2002 to 31/7/2003, when the Respondent did not seek any relief to that effect, no issues were joined by the parties thereon and the Cross-Appellant was not given the opportunity to defend itself on the issue before the Court made the order.
PARTICULARS OF ERROR
(A) The learned trial Judge had earlier dismissed the Respondent’s claim of $6,000 Expatriate Supplementation Scheme Allowance from May, 2005 contained in paragraph 41(iv) of his Amended Statement of fact, on the ground that the Respondent failed to prove same.
(B) The sum of $4,750 awarded by the learned trial Judge did not appear anywhere in the writ of summons and the statement of fact of the Respondent and was therefore in violation of the Appellant’s right to fair hearing.
(C) The Court has no power to award the said sum which was neither claimed nor proved by the Respondent.
(2) The learned trial Judge also erred in law when he failed to resolve a vital issue raised by the Cross-Appellant to the effect that University of Maiduguri was not a party to the Expatriate Supplementation Scheme agreement and was therefore no legally bound to pay the allowances provided there under to the Respondent.
PARTICULARS OF ERROR
(A) One of the issues properly raised by the Cross-Appellant was whether University of Maiduguri was a party to the Expatriate supplementation Scheme Agreement. However this issue was not decided upon by the learned trial Judge.
(B) Failure to consider the issue raised by the Cross-Appellant was a denial of its right to fair hearing in the matter.
(4) RELIEFS SOUGHT
To allow the appeal, set aside the part of the judgment of the trial Court ordering the Cross-Appellant to pay the Respondent the sum of $4,750 of the NESS Allowance and any other NESS accruing to the Respondent, and dismiss the claim.”
The Cross-Appellant’s Brief of Argument was filed on 6th February 2018 while Cross-Respondent’s brief was filed on 11th June, 2018.
The Appellant nominated two (2) issues for determination as follows:-
“Whether the trial Court dispassionately consider and determine the issues raised by the Cross Appellant with regard to who were the parties to Exhibit ‘G’ (The Nigerian Expatriate Supplementation Scheme Agreement) and the legal effect of failure to sign the said agreement by the National Universities Commission.
Having regard to the facts pleaded. The Reliefs sought and the evidence adduced by the parties whether the Cross Appellant’s right to fair hearing was not violated when the trial Court awarded the sum of $4,750 US Dollars in favour of the Cross Respondent.”
No issue was formulated by the Appellant/Cross-Respondent on the Cross-Appeal.
The two issue formulated will be taken together.
The learned Counsel to the Respondent/Cross-Appellant drew attention to paragraphs 10 – 17 at pages 131 – 133 of the Record of Appeal where the Appellant pleaded his entitlement to Nigeria Expatriate Supplementation Scheme Allowance. That the Appellant also pleaded that the allowance was being funded by National University Commission which suspended the payment of the money in 2005, when Nigerian Universities became autonomous but that the Cross-Appellant was directed to take over the payment of the allowances. That the Appellant relied on Exhibit “G” which Appellant referred to as NESS Agreement upon which his claim was predicated.
The Cross-Appellant according to the learned Counsel to her stated that the facts pleaded by the Cross-Respondent were controverted or denied in paragraphs 6, 7, 8 and 10 of the Statement of Defence of Cross-Appellant. The Cross-Appellant is of the view that even though the contract was made for its benefit, the agreement Exhibit “G” was not binding on the Cross-Appellant for the following reasons viz:-
“(a) The Cross-Appellant was not a party to it (Exh. “G”)
(b) The agreement was signed only by Respondent but was not signed by the National Universities Commission.
(c) That paragraph 2 of Exh. “G’ which provides that: The supplementation Agreement (Contract Annexure “A”) shall enter into force when executed by both parties and terminates upon contract expiration…”
He therefore saw the finding of the lower Court as a breach of Cross-Appellant’s right to fair hearing. He relied on the cases of OGBU VS STATE (2007) 2 SCNJ 319 AT 329 and UDENGWU VS UZUEGBU (2003) SCNJ 145 AT 153.
He accused the lower Court of failing to make proper pronouncement or evaluation of issues revolving around the payment of NESS Allowance. He urged the Court to interfere with the lower Court’s finding in that Exhibit “C” is not binding on the Cross-Appellant and that since the said Exhibit “G” was not executed by National Universities Commission it does not create any legal claim in the sum of $6000 USD in favour of the Cross Respondent. He relied on the case of OKEOLA VS BOYLE (1998) 2 NWLR (PT. 538) 533 AT 536 and OJIBAH VS OJIBAH (1991) 5 NWLR (PART 191) 296.
In respect of issue 2 the learned Counsel to the Cross-Appellant stated that the Cross-Respondent did not lead evidence to prove his claim and he dismissed the claim on page 452 line 24 – 25 of the record and that notwithstanding the standing the said finding, the learned trial Judge proceeded to hold at lines 25 – 26 of page 452 of the record that:-
“The Court can only order the Claimant to pay him the approved sum still unpaid.”
and awarded Cross-Respondent the sum of $4750 USD relying on Exhibit the learned Counsel to Cross-Appellant submitted that the parties did not join issue on non-payment of $4750 for period of 1/10/2002 to 31/7/2003 in their pleadings. That the lower Court was wrong in raising the issue suo motu facts outside the pleadings of the parties. He urged this Court to set aside the award of $4,750 USD made in favour of Cross-Respondent by the lower Court as an unsolicited award of special damages to the Cross Respondent. He urged the Court to allow the Cross-Appeal.
In response to the above submissions, the Cross-Respondent who settled the Cross-Respondent’s Brief by himself contended that the contract between him and the Cross Appellant is a foreign contract and as part of the contractual agreement he is entitled to yearly sum of $6000 USD known as Nigerian Expatriate Supplementation Scheme Allowance as a Professor. That it was being paid by the National Universities Commission until it was suspended in April 2005 per Exhibit “L” contained on page 166 of the record of appeal. That the Federal Government of Nigeria stated that it will send recurrent grants to the Universities from which Cross Respondent posited the NESS would be paid in accordance with Contractual Agreement Exhibit “G” copied on page 154 of the record-of appeal. He also relied on Exhibits “L” and “H” and the findings of the lower Court on the said allowance. He agreed that the lower Court did not specify the duration of the accrued NESS allowance or time frame for payment. He urged this Court to enlist Order 4 Rule 3 of Court of Appeal Rules 2011 to modify the order of the lower Court on payment of NESS allowance for what he called lawful period from May 2005 – May 2010 with 10% interest, all of which he said totaled $83,334 USD up to September 2015 which was the date of lower Court’s judgment.
On whether the Cross-Appellant is a party to the NESS Agreement, the Cross-Respondent relied and drew attention of this Court to pages 156 – 157 of the Record and Exhibits “G” and “L” to submit that by virtue of the Contractual Agreement vide Exhibit “G” and the National Universities Commission (NUC) Exhibit “L”, “the liability of any unpaid NESS Allowance had been lawfully transferred from the NUC to the Respondent accordingly, but most importantly the Respondent/Cross-Appellant is party to the NESS Agreement.”
On whether the Cross-Respondent proved that NESS Allowance for a professor is $6000 USD per annum, he submitted that it is a Statutory Allowance that requires no proof pursuant to Section 122 of the Evidence Act. He also relied on Section 123 of Evidence Act.
He stated that by Exhibit “K” dated 9th June, 2008 pages 165, 38, 44 and 45 of the record of appeal he has sufficiently proved his entitlement to it. He referred to Professors (including himself) who were entitled to NESS Allowance. That there was no objection to Exhibit “K” contained on page 165 of the record by the Cross Appellant and that Exhibit “D” on pages 162 of the record of appeal constitutes admission on the part of Cross-Appellant. He also relied on Exhibit “L”.
He submitted that it was not possible to determine the total amount due or accruing before judgment of lower Court but that Exhibit “L” had stated period of lawful engagement to be from May 2005 – 27th May, 2010 as adjudged, according to Cross-Respondent, by the trial Court.
The bedrock of his argument can be found on page 31 paragraphs 6, 9 to 621 where Cross-Respondent stated thus:-
“6.19 At $6,000 USD per annum for five years [i.e. MAY 2005 – MAY 2010 representing the lawful period of engagement] the sum owed was $30,000 USD. Moreover it should have paid upfront in May 2005 [a accordance with the NESS contractual agreement [see page 157 the [RECORD OF APPEAL]
6.20 Monies [like my NESS allowance] deposited in the bank naturally appreciates due to monthly or yearly interest paid into the account. Since the debt of money] $30,000 had been owed over long duration it would have naturally appreciated in value due to interest.
6.21 Then at 10% simple interest rate per annum from 1st May, 2005 to the 30th of September, 2015 – the date of judgment at the trial Court the total amount debt sums up to eighty-three thousand three hundred and thirty-four US Dollars 83 334 US Dollars. Please find the details of the Calculation in APPENDIX 2 on page 31 of this write up.”
By the pleading of the Appellant PROF. ADDY, the agreement to pay him Nigerian Expatriate Supplementation Scheme allowance was between the National University Commission and himself as per Exhibit “G” signed by Cross Respondent on 16/10/2000 and the amount payable was stated to be $3000. Five years later the National Universities Commission suspended by a letter dated 5th August, 2005 addressed to the Universities in Nigeria for which the National Universities Commission was paying NESS allowance, the National Universities Commission suspended the payment of NESS entitlement with effect from 1st May 2005 (see Exhibit – J).
By Exhibit “K” and “K1″ the dated 9th June, 2008 three years later the Appellant and some of his colleagues wrote to the Vice-Chancellor, of the Cross Appellant pleading with her to “kindly extend the sane benefit for us also and approve for the payment of the NESS with effect from 1st May, 2005.”
There is nothing pleaded to show that there was any agreement between the Cross-Appellant and the Cross-Respondent to pay or continue to pay NESS Allowance to the Cross Respondent. Exhibit “L” pleaded in paragraph 15 of the Cross-Respondent’s Amended Statement of Facts whereat he claimed that the Universities Commission informed the Vice-Chancellor of the Defendant to pay up outstanding claims expatriate staff reads in full as follows:
“NATIONAL UNIVERSITIES COMMISSION
AJA NWACHUKWU HOUSE
PLOT 430 AGUIYI-IRONSI STREET
MAITAMA DISTRICT
P.M.B. 237 G.P.O.
ABUJA – NIGERIA
5TH August, 2009
PROFESSOR JULIUS A. OKOJIE
EXECUTIVE SECRETARY
TEL: (09) 4133185, 4133176-82
FAX: (09) 4133520
OFFICE OF THE EXECUTIVE SECRETARY
NUC/ES/133/VOL. 23/86
The Vice-Chancellor,
University of Maiduguri
P.M.B. 1069,
Maiduguri
Born State, Nigeria.
My Dear Vice-Chancellor,
RE: REQUEST FOR THE PAYMENT OF OUTSTANDING NESS ALLOWANCE TO DESIGNATED STAFF OF THE UNIVERSITY OF MAIDUGURI FOR THE PERIOD 1ST MAY, 2005 TO DATE
I refer to the above subject matter.
The Vice-Chancellor may wish to recall NUC letter, ref. NUC/ES/295 of 05/08/2005 on the decision of NUC Management to suspend further operation of the Nigerian Expatriates Supplementation Scheme (NESS). The suspension, which took effect from 1st May, 2005 was informed by the decision of the Federal Government to henceforth send recurrent grant of Universities (part of which was used to service the NESS) directly to them.
In view of the development and, by obligation of contract, Universities concerned were urged by NUC to make individual arrangement to continue further payment of supplementation to its expatriate staff with valid NESS contract.
The National Universities Commission hereby re-affirms its position on the matter and once again appeals to your authority to please settle the claims of your expatriate staff in the interest of the system in particular, and the context of friendly relationship between Nigeria and the country of the expatriate staff.
Please accept the assurances of my highest regard
Sgd.
Prof. Julius Okojie
Executive Secretary.”
In apparent reference to Exhibit “L” the Defendant’s University vide letter dated Friday July 02, 2010 distributed to the Cross-Respondent and his colleagues informed them that they were not entitled to the NESS Allowances. The said letter Exhibit “M” reads:-
“UNIVERSITY OF MAIDUGURI
P.M.B. 1069,
MAIDUGURI, NIGERIA.
REGISTRAR
DR. LAWAN BUKAR ALHAJI, B. Sc. Ed., M. Ed., Ph. D, MIMC
TELEPHONE: (076)232949, 232250, FAX: 076-236314
E-mail: registrar@unimaid.edu.ng
OFFICE OF THE REGISTRAR
Friday, July 02, 2010
R/ADM/ES/ABS.J83/Vol.1<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
To: See Distribution.
RE: PAYMENT OF NIGERIAN EXPATRIATE SUPPLEMENTATION SCHEME (NESS) ALLOWANCE
I write to inform the underlisted staff that Council at its 115th meeting held on Wednesday 9th June, 2010 had mandated the University Management to inform: them that they are hot entitled for the above allowances.
Kindly take note please.
Thank you.
Sgd. 02/07/2006
SULE HELADI
PRIM ASST. REGISTRAR (ESTABS)
For: REGISTRAR
DISTRIBUTION
SP. 613 Professor S.V. Gopal Professor Department of Biological Science
SP. 1251 Professor M. A. Hague Professor Department of Agric Engineering & Env. Resources Engineering
SP. 2608 Professor R. K. Kachroo Professor Department of Geology
SP. 3020 Professor M. A. I. Khalil Professor Department of Human Pathology
SP. 591 Professor Emmanuel O. H. Addy Professor Department of Vet. Physiology & Pharmacology
SP. 2334 Dr. Zakawat U. Siddiqui Senior Lecturer Department of Mathematics & Statistics
SP. 2318 Dr. I. Z. Khan Reader Department of Chemistry
SP. 3216 Dr. Baduil Hassan Senior Lecturer Department of Mathematics and Statistics.”
There is no claim before the lower Court seeking for the nullification of Exhibit “M” which stated categorically that Cross-Respondent was not entitled to the money the NESS allowance.
The agreement Exhibit “G” has no bearing at all with Cross-Respondent’s to the sum of $6000 USD from May 2005. The agreement Exh “G” was purely between the National Universities Commission and Cross Respondent and upon the suspension of the payment of NESS allowance to the Cross Respondent vide letter of National Universities Commission dated 5th August, 2005, the agreement Exhibit “G” became spent or suspended. Since the Appellant/Cross-Respondent had no such agreement with Cross-Appellant, the Cross-Respondent’s claim for NESS allowance cannot be sustained as Exhibits “G” and “T” relied upon by the lower Court are wholly irrelevant to the Cross Respondent’s relief seeking the order that Cross-Appellant should pay him Nigeria Expatriate Supplementation Scheme put at $6000 USD from May 2005 when there is no contractual agreement with the Cross-Appellant in that behalf.
Furthermore, the pleadings of the Appellant/Cross-Respondent do not support the order of the learned trial Judge that Claimant should be paid the sum of $4,750 of the NESS Allowance and any other NESS accruing to Cross Respondent. No such case was made on the pleadings of both parties. There is no such question or reliefs submitted for adjudication before the lower Court and no issues were joined by the parties thereon.
The learned trial Judge ought to have confined himself to the pleadings of Cross-Respondent and reliefs sought. There is no jurisdiction in the said Court to grant to any party before it relief that are at variance with the pleadings and evidence before the trial Court. See AFRICAN CONTINENTAL SEAWAYS LTD VS. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235 at 249 – 250 per IRIKEFE, JSC who said:
“Before bringing our commentary on pleadings to a close, we would like to recall the following statement by the learned authors of BULLEN & LEAKE on PRECENDENTS OF PLEADING – 12th Edition P. 8.
The function of pleadings has been described as a reflection of the role of the Court and as an aspect of the adversary system of civil proceedings:
As the parties are adversaries it is left to each of them to formulate his case in his own way, subject to the basic rules of pleading… For the sake of certainty and finality, each party Nis bound by his own pleading and cannot be allowed to raise a different or fresh case without (due amendment properly made). Each party that knows the case he has to meet and cannot be taken by surprise at the trial.
The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty. It is no part of the duty or function of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation. Moreover, in such event, the parties themselves or at any rate one of them, might well feel aggrieved, for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
In our view the learned trial Judge was clearly in error to have decided this case on the issue of the agent of a disclosed principal, an issue not raised or relied upon by either party in the case. (Underlined mine).
It is the law that a Court or Tribunal must not indulge in the habit of granting reliefs not sought from the Court or Tribunal. See:
“1. AGIP V AGIP (2010) 5 NWLR (PT. 1187) 346 AT 427 B – C per FABIYI, JSC who said:-
“It is pertinent at this point to express it clearly that a Court should not grant a prayer that is not contained in a motion paper. See Chief R. A. Okoya v. Santilli & Ors (1990) 2 NWLR (Pt. 131) 172 at 205. By extension, a Court should not award that which was not claimed. This is because a Court is not a charitable organization.”
2. UNITY BANK PLC VS SOLOMON OWIE (2011) 5 NWLR (PART 1240) 277 at 288 H to 289 A-C per OMOLEYE, JCA who said:
The law is that a trial Court must keep strictly to the pleadings of parties. The Supreme Court stood firmly on this legal principle in the case of FABIYI vs. ADENIYI (2000) 5 SC P.31, (2000) 6 NWLR (Pt. 662) 532 at 542 paras. B-C where the earlier decision of the Court in the case of OBIOMA VS OLOMU (1978) 3 SC P. 1 at 7, was quoted with approval per ONU JSC in the following words:
“A Court has no jurisdiction to make an order which has not been pleaded or prayed for by a litigant such order is wrong and will be annulled on appeal. See ELUMEZE VS ELUMEZE (1969) 1 ALL NLOR 311. A Court should not import in his judgment issues not properly (sic) or raised at the trial. ADEBISI VS OKE (1967) NMLR 64. A trial Judge, in deciding a case must not even when the interest of justice demands stray from pleadings, see DIPCHARIMA VS ALI 1 (1974) 12 SC 45. The findings and declaration that the Respondent is the district head of Ile-Ile in Ifelodun Local Government of Kwara State was without any jurisdiction and must be annulled as it was not a matter which was prayed for nor a matter which was pleaded. I cannot agree more.” (Underlined mine).
The same is true in this appeal. The two issues raised for determination of the Cross-Appeal are resolved in Cross-Appellant’s favour. The portion of the judgment of the learned trial Judge wherein he held on page 452 of the record that:-
“In the light of the above, I resolve ISSUE 2 in favour of the Claimant and order that the Claimant be paid the sum of $4,750 of NESS Allowance, and any other NESS accruing to him.”
And on page 453 of the record that:-
“Claim 4 succeeds in part. This Court hereby directs the Defendant to pay the Claimant his Nigeria Expatriate Supplementation Scheme put as $4,750 and any other NESS accruing to him.”
are hereby set aside.
The Cross-Appeal is HEREBY ALLOWED.
There will be no order as to cost.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, PETER OLABISI IGE, JCA just delivered and I agree with the finding and conclusion arrived thereat that this appeal lacks merit and it is hereby dismissed by me as well. The judgment of the National Industrial Court of Nigeria in Suit No. NICN/ABJ/255/2012 delivered on 30th of September, 2015 by M.N Esowe, J is hereby affirmed.
I make no order as to cost.
CROSS-APPEAL
I have had the privilege of reading in draft the judgment in the Cross-Appeal of my learned brother, PETER OLABISI IGE, JCA just delivered and I agree with the reasoning, findings and conclusion reached therein that this Cross-Appeal has merit and it is allowed by me as well.
No order as to cost.
BATURE ISAH GAFAI, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Ige, JCA.
I agree with the reasonings expressed by my Lord on both the appeal and the Cross-Appeal. I adopt those reasonings as mine, by which I too dismiss the appeal and allow the Cross-Appeal.
Appearances:
OSITA IBEKWUTE, ESQ., with him, B. G. HARUNA, ESQ. For Appellant(s)
P. A. BELLO, with him, M. O. ADDEH For Respondent(s)