AMINETU OMOLOLA SALAMI v. UNION BANK OF NIGERIA PLC (2010)

AMINETU OMOLOLA SALAMI v. UNION BANK OF NIGERIA PLC

(2010)LCN/3681(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of April, 2010

CA/A/203/2007

RATIO

WORDS AND PHRASES: MEANING OF AMBIGUITY

Ambiguity is an English word and its ordinary meaning can be found in any standard English Dictionary. The New Webster’s Dictionary of the English Language (International Edition) gives the meaning of ‘Ambiguity’ as ‘the quality of having more than one meaning: an idea, statement or expression capable of being understood in more than one sense’. In the same Dictionary the meaning of the word ‘Ambiguous’ is given as ‘having more than one meaning or interpretation, equivocal, doubtful, uncertain’. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

LABOUR LAW: TYPES OF EMPLOYMENT

The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavour. In this regard, see the case of CENTRAL BANK OF NIGERIA V. IGWILLO [2007] 14 NWLR (Pt. 1054) 393. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

LABOUR LAW: REMEDIES AVAILABLE TO AN EMPLOYEE FOR WRONGFUL TERMINATION OF EMPLOYMENT

“The damages recoverable usually in cases of wrongful dismissal/termination have been pronounced upon by our courts in several decided cases, such damages are said to be the losses reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other. Certainly, they do not include or take account of speculative or sentimental values. The court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh appointment. See Ajolore v. Kwara State College of Technology & Anor (1980) FNLR 414.”

Lastly, in the cases of OSISANYA V. AFRIBANK (NIG.) PLC [2007] 6 NWLR (Pt.1031) 565: and IFETA V. SPDC OF NIG. LTD [20Q6] All FWLR (Pt.314) 305: the Supreme Court dwelling on the measure of damages in an action for wrongful termination of employment held to the effect that in a claim for wrongful dismissal, the measure of damages, prima facie is the amount which the plaintiff would have earned had the employment continued according to the contract of employment. That the measure of damages in a situation where the employer on giving the prescribed notice has a right to terminate the contract before the end of the term apart from other entitlements should be limited to the amount the plaintiff would have earned over the period of the notice bearing in mind that the plaintiff has a duty to minimize the damages he sustains by the wrongful dismissal. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

DAMAGES: NATURE OF AGGRAVATED DAMAGES

Aggravated damage is definitely a kind of damage that is in a class of its own. That is, it is different from special and/or general damages as it has different principles governing its award. In this regard, see the case of ODIBA V AZEGE (1998) 7 NWLR (Pt.566), (1998) 7 SC (Pt.1) 79 where the Supreme Court per Iguh, J.S.C; dwelling on exemplary or aggravated damages said thus: –

“It is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men.”

Indeed, in the earlier case of ALLIED BANK OF NIGERIA LIMITED V AKUBUEZE (1997) 6 NWLR (Pt.509) the Supreme Court per Mohammed, J.S.C; dwelling on circumstances when exemplary damages are awarded had said thus: –

“Perhaps, it ought to be stressed that exemplary damages, properly so may only be awarded in action in torts but only in three categories of cases, namely: –

(i) Oppressive, arbitrary or unconstitutional action by the servants of the Government;

(ii) Where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff;

(iii) Where exemplary damages are expressly authorized by statute.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

DAMAGES: WHAT SHOULD THE COURT NOT CONSIDER IN AWARDING DAMAGES IN CASES OF WRONGFUL TERMINATION OF EMPLOYMENT

in SHENA SECURITY CO. LTD. V. AFROPAK (NIG) LTD & ORS (Supra) wherein the Supreme Court made it clear that, damages awardable in cases of wrongful dismissal/termination of employment cannot include or take account of speculative or sentimental values. That the court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh appointment. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

EVIDENCE: WHAT IS THE POSITION OF THE LAW IN RELATION TO TENDERING OF DOCUMENTS AS EVIDENCE

LABOUR LAW: COLLECTIVE AGREEMENTS; WHEN WILL A COLLECTIVE AGREEMENT BE BINDING

The law as it relates to collective agreements as stated in the case of ABALOGU V, SPDC LTD [2003] 13 NWLR (Pt.837) 308 at 337 is that a collective agreement is binding on the parties where it is expressly or by necessary implication incorporated or embodied in the contract of service but not otherwise. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

LABOUR LAW: REQUIREMENT BEFORE AN EMPLOYER CAN SUMMARILY DISMISS AN EMPLOYEE

It is settled law that, an employer can summarily dismiss an employee in all cases of gross misconduct provided that the affected employee is given fair hearing; and this is so whether the affected employee is in private employment or statutory employment. See in this regard the cases of ZIIDEEH V. RIVERS STATE CIVII. SERVICE COMMISSION [2007] All FWLR 243 at 265 – 266; and ANNAM V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] All FWLR (Pt. 296) 843. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

AMINETU OMOLOLA SALAMI Appellant(s)

AND

UNION BANK OF NIGERIA PLC Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: (Delivering the Leading Judgment): The Appellant herein as Plaintiff commenced the instant case before the High Court of Kogi State by a writ of summons dated 22/11/1999 and filed on 24/11/1999. The said High Court presided over by Honourable Justice H. A. Olusiyi delivered its judgment in the case on 19/12/2006. (See pages 98 – 122 of the Record of Appeal for the judgment). The High Court of Kogi State presided over by Honourable Justice H.A. Olusiyi will hereinafter simply be referred to as ‘the lower court’. The reliefs which the Plaintiff claimed against the Defendant are set out in paragraph 34 of the Statement of Claim at pages 3 – 9 of the Record of Appeal. They read thus:-
“(1) A declaration that the Defendant is in breach of the provisions of the main collective Agreement between the Nigerian Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Institutions in Dismissing (sic) the plaintiff i.e. condition of service.

(2) A declaration that the failure of the defendant to issue to the plaintiff a written query before dismissing her is in breach of the plaintiff’s right of fair Hearing (sic).
(3) A declaration that the Dismissal (sic) of the plaintiff by the defendant is wrongful, illegal, invalid, ultra vires and of no effect.
(4) A declaration that the Defendant dismissed the plaintiff using a wrong condition of service.
(5) A declaration that the employment of the plaintiff subsists not withstanding (sic) the purported Dismissal (sic).
(6) An order of re-instatement and to pay the plaintiff her full salaries, entitlements, allowances and benefits including promotion of the plaintiff until the determination of this case and/or an order for the plaintiff to be paid her gratuity and/or pension.
(7) The plaintiff claims the sum of N623,217.13 as Special Damages (sic) and N1,376,782.87 as General Damages (sic). Total (N2,000,000.00) Two Million Naira as Special and General Damages for wrong Dismissal (sic).”
The lower court after a review of the respective cases of the parties on the pleadings, and evaluation of the evidence adduced by the parties, made the finding in its judgment that the dismissal of the plaintiff was wrongful ‘both as a result of failure to give the required notice and as a result of an unproved gross misconduct’. In the light of the finding, the lower court ‘awarded damages to the plaintiff for her wrongful dismissal from service by the defendant, assessed on the basis of her salary and allowances for one month in lieu of notice plus one year’s salaries and allowances from the date after her dismissal’. The lower court further stated thus – “For avoidance of doubt, the defendant shall pay the plaintiff, as damages for wrongful dismissal from service thirteen months’ salaries and allowances.”
The Plaintiff being aggrieved with part of the judgment only; lodged the instant appeal by a Notice of Appeal dated 7/3/2007 and filed on the same day. The Notice of Appeal contains two grounds of appeal. The grounds of appeal and their respective particulars read thus: –
“GROUNDS OF APPEAL
(i) The trial Judge erred in law by not stipulating what constitute twelve months salaries and allowances.
Particulars of error
a. The plaintiff enumerated particulars of special damages in her statement of claims (sic) but the trial Judge never made reference to it thereby creating confusion as to what really constitutes salaries and allowances.
b. The plaintiff also included as special damages pension and gratuity but it is not clear in the judgment whether all these are included in the salaries and allowances as awarded.
(ii) The trial Judge erred in law for not awarding aggravated damages for unproven misconduct.
a. Having found that the allegation of misconduct against the plaintiff/Appellant (sic) was unproven the trial court should have gone ahead to award aggravated damages.”
Suffice it to say at this stage that the Defendant too, being dissatisfied with part of the judgment of the lower court equally lodged a Notice of Cross-Appeal against the same.
In compliance with the Rules of this Court, parties duly filed and exchanged briefs of argument in respect of the main appeal and the cross-appeal. Appellant’s brief of argument dated 27/10/2008 and filed on 30/10/2008 but deemed as properly filed and served on 5/11/2008 as well as Appellant/Cross-Respondents brief of argument dated 9/6/2009 but deemed as properly filed and served on 16/6/2009 were settled by Stanley Orakpo, Esq.; while Respondent’s brief of argument dated 15/12/2008 and filed on 15/1/2009 as well as Cross-Appellant’s brief of argument dated 21/1/2008 and filed on 23/1/2008; and Cross-Appellant’s Reply to Cross-Respondent’s brief of argument were settled by J.O. Adele, Esq. The appeal and cross-appeal were entertained on 19/1/2010. Stanley Orakpo learned lead counsel for the Appellant relied on and adopted the briefs he filed in urging this Court to allow the main appeal and to dismiss the cross-appeal. In the same vein, J.O. Adele, learned counsel for the Respondent/Cross-Appellant relied on and adopted all the briefs he filed in urging this Court to dismiss the main appeal and allow the cross-appeal.
The main appeal will be considered first in this judgment.
The two Issues formulated for the determination of the main appeal in the Appellant’s brief of argument are: –
1. Whether it is clear from the judgment of the trial Court what constitutes thirteen months salaries and allowances?
2. Whether the trial Judge was right in not awarding aggravated general damages having found that gross misconduct was unproven in view of the circumstances of the case?
The Respondent adopted the Issues formulated by the Appellant for the determination of the appeal in its brief of argument and responded to the same.
ISSUE 1
Dwelling on this Issue, the Appellant quoted what the lower court stated in its judgment at page 121 of the Record of Appeal. It reads thus: –
“In the light of the foregoing decided cases, and the whole circumstances of this case, I award damages to the plaintiff for her wrongful dismissal from service by the defendant assessed on the basis of her salary and allowances from the date after her dismissal. For the avoidance of doubt, the defendant shall pay to the plaintiff, as damages for wrongful dismissal from service, thirteen months salaries and allowances”
and submitted that the lower court has created ambiguity as to what the total amount is; and whether or not the award is special damages or general damages. This, the Appellant said is despite the fact that the particulars of special damages were enumerated in paragraph 34 of the Statement of Claim. The case of Adeniyi v. Oroja (2006) All FWLR (Pt. 324) 1839 at 1861 (CA) was cited as deciding that “An express pronouncement is a mandatory aspect of a Court’s duty, without which decisions could be open to abuse as a result of subjectivity A good judgment is that which is clear and unequivocal thereby avoiding any ambiguity”.
The Appellant submitted that because of the ambiguity as to what constitutes thirteen months salaries and allowances, the judgment of the lower court could not be enforced. The Appellant said that the lower court ought to have made a clear and unequivocal pronouncement as to the total amount that constitutes thirteen months salaries and allowances. The Appellant submitted that this Court pursuant to Order 4 of its Rules can make a specific pronouncement as to what constitutes thirteen months salaries and allowances and also whether the claim for special damages was established.
ISSUE 2
Dwelling on this Issue, the Appellant having quoted the finding of the lower court at page 121 of the Record of Appeal to wit: “in the instant case, I find the dismissal of the plaintiff wrongful both as a result of failure to give the required notice and as a result of an unproved gross misconduct” submitted that the lower court ought to have gone further to award aggravated general damages. The Appellant in this regard cited the case of British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 276 at 288 (CA). It is also the submission of the Appellant that if the award of the lower court is not special but general damages, then the award ought to be aggravated general damages which should have been much more than what the lower court awarded to her. The case of Ejura v. Aba (2004) All FWLR (Pt. 227) 490 at page 505 was cited on the meaning of aggravated damages. The Appellant urged this Court to allow her appeal by increasing the award made to her by the lower court after clarifying the said award. This is because the award of twelve months salaries as damages can hardly assuage her in view of all she went through. The Appellant in this regard urged that this Court should invoke the provisions of Order 4 Rule 9 of its Rules and should also take into consideration the dwindling purchasing power of the Naira in 2008 as against what it was in 1997 when she was dismissed. The cases of Benue Printing and Publishing Corporation v. Gwagwada (1989) 4 NWLR (Pt.116) 439 at 445; and A.I.B. Ltd v. Asaolu (2005) All FWLR (Pt. 270) 2092 at pages 2134 – 2135 were cited in aid.
Dwelling on Issue 1, the Respondent said that the judgment of the lower court is not in any way ambiguous as the same is categorical as regards the assessment of damages on the basis of salaries and allowances from the date after the Appellant’s dismissal. The Respondent said that in the Statement of Claim, the Appellant claimed amongst others N623,217.13 as special damages and N1,376,782.87 as general damages, and that the issue of salaries and allowances fell into the category of special damages as can be gleaned from the particulars of special damages. It is the further submission of the Respondent that it is not the duty of the lower court to state in arithmetical terms the total sum of special damages especially when there is no evidence from the claimant on the issue. That to do this would amount to a court delving into the arena of conflict between the parties as a party is to discharge the burden of proof on him at the trial of the action and the case of Ogu v. Ekweremadu (2005) All FWLR (Pt. 260) 1 at page 9 (CA) was cited.Still dwelling on the alleged ambiguity of the award of the lower court, the Respondent submitted that there is no ambiguity in the judgment of the lower court as Appellant knows what constitutes her thirteen months salaries and allowances as from the date of her dismissal having regard to what the Appellant was earning as monthly salaries and allowances before the date of her dismissal.
The Respondent contended that the submission of the Appellant that the judgment of the lower court could not be enforced was misplaced. This is because the Appellant has not applied to the lower court for the enforcement of the said judgment and that in any event, the enforcement of the judgment was not an issue at the trial and does not form part of the record of appeal. The Respondent also contended to the effect that the invitation to this Court to make pronouncements as to the amount that constitutes thirteen months salaries and allowances; and whether the claim for special damages was established is designed to enhance the chances of the Appellant’s case and that this is not a duty for this Court. This is particularly so as it is not for the court to speculate on the case for a party. The cases of Agiri v. Ogundele (2005) All FWLR (Pt. 250) 81 at 88; and Archibong v. Ita (2004) All FWLR (Pt.197) 930 at 935 were cited in aid. The Respondent submitted to the effect that the award of thirteen months salaries and allowances special damages to the Appellant though less than the amount claimed by her, was proper as a court is imbued with the power to award less than a party claims but not more than what is claimed and the case of Akinde v. Adelusola (2002) FWLR (Pt.86) 613 at 617 and 625 was cited in aid.
It is the submission of the Respondent that the case of Adeniyi v. Oroja (supra) cited by the Appellant is inapplicable to the instant one and also that the provisions of Order 4 of the Rules of this Court cannot avail the Appellant. The Court was urged to resolve Issue 1 in favour of the Respondent.
Dwelling on Issue 2, the Respondent submitted that the Appellant never claimed aggravated damages in the instant case and that the lower court had no vires or competence to have granted the same. This is because, a court has no jurisdiction to award a party what is not claimed and the cases of Okoko v. Dakolo (2007) 1 FWLR (Pt. 350) 499 at 539; and Garuba v. Kwara Investment Co. Ltd (2005) 4 FWLR (Pt. 281) 375 at 379, amongst others were cited in aid. Assuming that the Appellant claimed aggravated damages, (which is not conceded), the Respondent submitted that awarding the same would amount to an award of double compensation particularly in the instant action founded on contract of service. The cases of SPDC v. KATAD Nigeria Ltd (2005) All FWLR (Pt. 263) 675 at 670 and 689; and Gambo v. Ikechukwu (2004) All FWLR (Pt.204) 178 at 183 were cited in aid.
It is also the submission of the Respondent that the Appellant by ground 2 of the grounds of appeal has set up a case on appeal that is different from that set up before the lower court and that this should not be allowed or should be discountenanced. The case of Ngige v. Obi (2006) 3 FWLR (Pt. 322) 3938 at 3999 and 4034 – 4035 was cited in aid. It is the further submission of the Respondent that, Issue 2 to the extent that it raises the question of the lower court not awarding aggravated general damages cannot be said to arise from the ground of appeal. This is because, what the complaint in the ground of appeal raises is the issue of the lower court not awarding aggravated damages.The Respondent submitted that in any event there is no claim or any scintilla of evidence in respect of aggravated damages or aggravated general damages and that this Court like the lower court lacks the vires to award either of the claims. The Respondent submitted that the claims/reliefs for special and general damages as claimed by the Appellant at the lower court and that for aggravated damages or aggravated general damages being claimed before this Court are different and cases considered relevant to bring out the differences were cited in aid.
The first of the Appellant’s Issues raises the question as to whether it is clear from the judgment of the lower court what constitutes thirteen months salaries and allowances awarded her. The Appellant in effect has argued that the lower court has created an ambiguity by its award because the total amount or sum awarded is not stated and also because the lower court did not state whether the award is special or general damages.
Ambiguity is an English word and its ordinary meaning can be found in any standard English Dictionary. The New Webster’s Dictionary of the English Language (International Edition) gives the meaning of ‘Ambiguity’ as ‘the quality of having more than one meaning: an idea, statement or expression capable of being understood in more than one sense’. In the same Dictionary the meaning of the word ‘Ambiguous’ is given as ‘having more than one meaning or interpretation, equivocal, doubtful, uncertain’.
The lower court awarded the Appellant damages for her wrongful dismissal from service by the Respondent. The said court assessed the damages on the basis of the Appellant’s salary and allowances for one month in lieu of notice plus one year’s salaries and allowances from the date after her dismissal. (Underlining supplied by me for emphasis). The lower court for avoidance of doubt further said “the defendant shall pay to the plaintiff as damages for wrongful dismissal from service thirteen months’ salaries and allowances.”
The Respondent has argued that the award of the lower court is not ambiguous as it is categorical as regards its assessment on the basis of the Appellant’s salaries from the date after her dismissal.
I cannot agree more with the Respondent, that there is nothing ambiguous in the award made in favour of the Appellant by the lower court. The Appellant pleaded in paragraphs 30 and 34 of the Statement of Claim particulars of what she called ‘Gratuity’ and ‘Pension’ respectively. They amount to N623,217.13 and which sum was claimed as special damages. The total sum claimed under the heading of ‘Gratuity’ is N228.882.64. The sum includes the Appellant’s annual basic salary and other itemized allowances. The sum of N394.334.49 is claimed by the Appellant under the heading of ‘Pension’. The sum includes annual basic salary of the Appellant and itemized allowances. All the allowances itemized under the heading of ‘Pension’ are also contained under the allowances itemized under the heading of ‘Gratuity’. The allowances in question are (i) lunch subsidy; (ii) transport allowance; and (iii) housing allowance. The Respondent never denied the correctness of the sums set out by the Appellant in paragraphs 30 and 34 of the Statement of Claim. All that the Respondent did was to deny the entitlement of the Appellant to the same as she was a dismissed staff.
Thirteen months salaries and allowances as awarded the Appellant by the lower court cannot but mean any other thing than the monthly salary and monthly allowances she (i.e. Appellant) earned while in the employment of the Respondent for a period of thirteen months. That is, the monthly salary of the Appellant and monthly allowances multiplied by thirteen months, is the total sum awarded the Appellant by the lower court as damages for her wrongful dismissal from the employment of the Respondent. The award is clearly determinable and certain having regard to the pleading of the Appellant before the lower court. There is no averment in the Statement of Claim to the effect that pension is an allowance paid to the Appellant monthly as part of her total monthly emolument. Indeed ‘pension’ can hardly be an allowance payable to an employee as part of the employee’s monthly emolument while in employment given what ‘pension’ connotes. ‘Pension’ in the con of a contract of service is simply a fixed amount of money paid regularly to an employee who no longer works because of age, disablement, etc, or to his widow or dependent children, by the State, his former employer, or from funds to which he and his employer have both contributed. The Appellant has also argued that, the award of the lower court created ambiguity as the said court never disclosed whether the award it made in favour of the Appellant is special or general damages. The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavour. In this regard, see the case of CENTRAL BANK OF NIGERIA V. IGWILLO [2007] 14 NWLR (Pt. 1054) 393. I am in no doubt that the contract of employment between the Appellant and the Respondent falls into the first of the three categories stated above, i.e. that of purely master and servant.

The law as it relates to the remedy available to an employee, whose employment is wrongfully or unlawfully determined by the employer in contravention of the terms or conditions of service between the parties is now very settled. It is that in cases of ordinary employment (such as the one between the Appellant and Respondent is) where the terms provides for a specific period of notice before termination or salary in lieu thereof, the only remedy awardable to an employee whose employment was wrongfully terminated is the award of salary for the period of notice, and other legitimate entitlements due to the employee at the time the employment was brought to an end. In other words such an employee is neither entitled to an award of general damages nor a decree of reinstatement. The rationale for this is that the employee cannot be imposed by the court on an unwilling employer. See ATIVITE V. KABEL METAL LTD [2008] 10 NWLR (Pt. 1095) 399 at 415. Again, dwelling on the damages recoverable in cases of wrongful dismissal/termination of employment in the case of SHENA SECURITY CO. LTD V. AFROPAK (NIG) LTD & ORS (2008) 4-5 SC (Pt.11) 117 the Supreme Court said thus: –
“The damages recoverable usually in cases of wrongful dismissal/termination have been pronounced upon by our courts in several decided cases, such damages are said to be the losses reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other. Certainly, they do not include or take account of speculative or sentimental values. The court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh appointment. See Ajolore v. Kwara State College of Technology & Anor (1980) FNLR 414.”
Lastly, in the cases of OSISANYA V. AFRIBANK (NIG.) PLC [2007] 6 NWLR (Pt.1031) 565: and IFETA V. SPDC OF NIG. LTD [20Q6] All FWLR (Pt.314) 305: the Supreme Court dwelling on the measure of damages in an action for wrongful termination of employment held to the effect that in a claim for wrongful dismissal, the measure of damages, prima facie is the amount which the plaintiff would have earned had the employment continued according to the contract of employment. That the measure of damages in a situation where the employer on giving the prescribed notice has a right to terminate the contract before the end of the term apart from other entitlements should be limited to the amount the plaintiff would have earned over the period of the notice bearing in mind that the plaintiff has a duty to minimize the damages he sustains by the wrongful dismissal.
It is my considered view that, given the pronouncements of the Supreme Court quoted above, the classification of whether the award made in favour of the Appellant is special damages or general damages actually does not arise. The lower court having regard to the terms of the Appellant’s conditions of service with the Respondent would appear to have found the same determination by the giving of a month’s notice and being of the view that the requisite notice was not given, duly awarded a month’s salary and allowances in lieu of such notice and her other entitlements had the employment not been terminated. The award of one year’s salaries and allowances having regard to the judgment of the lower court is undoubtedly the other entitlement the said court found the Appellant entitled to. These would appear to be all that the Appellant was entitled; given the law as it relates to assessment of damages for breach of contract of employment in the category to which that of the Appellant belonged.
The Appellant has argued that, the lower court ought to have awarded aggravated damages having also found the determination of her employment to have been based on unproved gross misconduct as it carries with it some stigma on her character and for which she is entitled to substantial damages far beyond her salary for the period of notice.
This submission clearly shows that, the Appellant appreciates the position of the law that all she is entitled to is her salary for the period of notice and allowance as well as her other entitlement.
Responding to the submissions of the Appellant relating to aggravated damages, the Respondent made the point that the issue of aggravated damages does not arise as same was not claimed in the action before the lower court. The submission in this regard in my considered view cannot be faulted. The reliefs the Appellant seeks in the instant action as set out in the Statement of Claim have earlier been reproduced in this judgment. It is clear from the reliefs that there is no claim for aggravated damages.
Aggravated damage is definitely a kind of damage that is in a class of its own. That is, it is different from special and/or general damages as it has different principles governing its award. In this regard, see the case of ODIBA V AZEGE (1998) 7 NWLR (Pt.566), (1998) 7 SC (Pt.1) 79 where the Supreme Court per Iguh, J.S.C; dwelling on exemplary or aggravated damages said thus: –
“It is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men.”
Indeed, in the earlier case of ALLIED BANK OF NIGERIA LIMITED V AKUBUEZE (1997) 6 NWLR (Pt.509) the Supreme Court per Mohammed, J.S.C; dwelling on circumstances when exemplary damages are awarded had said thus: –
“Perhaps, it ought to be stressed that exemplary damages, properly so may only be awarded in action in torts but only in three categories of cases, namely: –
(i) Oppressive, arbitrary or unconstitutional action by the servants of the Government;
(ii) Where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff;
(iii) Where exemplary damages are expressly authorized by statute.”
The law allows for joinder of causes of action. It is therefore my considered view in the light of the cases cited above, that before the Appellant could be entitled to an award of aggravated damages as now being claimed in this appeal, she ought to have placed before the lower court a relief based on or founded in tort arising from her unlawful dismissal and must have also clearly pleaded facts and adduced evidence in relation thereto, of the acts of the Respondent that would warrant or sustain such an award. This the Appellant glaringly never did. Therefore, in as much as aggravated damages was a claim which the Appellant never claimed before the lower court, there is absolutely no basis upon which the non-granting of the same can properly be remedied by this Court pursuant to its general powers under Section 15 of its Act or under the provisions of Order 4 of its Rules.
Aside from the fact that the Appellant never had a claim for aggravated damages before the lower court, I cannot but say that such a claim is clearly not grantable having regard to the Appellant’s cause of action vis-a-vis the decision in SHENA SECURITY CO. LTD. V. AFROPAK (NIG) LTD & ORS (Supra) wherein the Supreme Court made it clear that, damages awardable in cases of wrongful dismissal/termination of employment cannont include or take account of speculative or sentimental values. That the court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh appointment.
In the light of all that has been said above, I resolve Issues 1 and 2 against the Appellant. In the circumstances, the main appeal is totally lacking in merit and the same is hereby dismissed.
CROSS-APPEAL
The Notice of Cross-Appeal filed by the Cross-Appellant/Respondent to be hereinafter simply referred to as ‘the Cross-Appellant’ contains six grounds of appeal. The grounds shorn of their respective particulars read thus: –
“GROUND 1
Part of the learned trial Judge’s judgment is unreasonable unwarranted and part of the said judgment is against the weight of evidence and this has occasioned miscarriage of justice GROUND 2
The learned trial Judge erred in law when he held that the plaintiff had proved that her dismissal from service by the defendant was wrongful and unjustified even when Exhibit ‘P10’ upon which the learned trial judge based part of its (sic) findings was wrongly admitted in evidence and particularly when the trial court had no power to act on Collective Agreements, i.e. Exhibits ‘P3’ and ‘P4’, by anchoring its finding on collective agreements and this has occasioned a miscarriage of Justice (sic) to the defendant.
GROUND 3
The learned trial Judge erred in law when he held in part of his Judgment that no opportunity at all was given to the plaintiff (claimant) by way of a query containing the allegations in order for the plaintiff (Claimant) to defend herself in writing of the allegations made against her even when plaintiff (Claimant) admitted under cross-examination vide documentary evidence that she was given an opportunity of answering the alleged complaints made against her and this has occasioned a miscarriage of justice to the defendant.
GROUND 4
The learned trial Judge erred in law when he held that “I award damages to the Plaintiff for her wrongful dismissal from service by the Defendant assessed on the basis of her salary and allowances for one month in lieu of notice plus one year salaries and allowances from the date after her dismissal”, when it had no power or jurisdiction to assess and award the damages of 13 months salaries and allowances to the Plaintiff and this has occasioned a miscarriage of justice to the Defendant.
GROUND 5
The learned trial Judge erred in law when he held and found the dismissal of the plaintiff wrongful both as a result of failure to give notice and as a result of unproven gross-misconduct because, there is no legally admissible evidence on the required Notice and even in the face of an admitted and/or proved gross misconduct made by the plaintiff in Exhibit ‘P23’ hence this has occasioned a miscarriage of justice against the Defendant”.
Five issues are formulated for the determination of the cross-appeal by learned Counsel for the Cross-Appellant in the said Cross-Appellant’s brief of argument. The five issues read thus:-
“(a) Whether the learned trial Judge was legally right to have held in part that the plaintiff (Appellant/Respondent) had proved that her dismissal from service by the Defendant (Respondent/Cross-Appellant) was wrongful or unjustified notwithstanding the fact that Exhibit ‘P10’ upon which the learned trial Judge based its (sic) finding upon, was wrongly admitted in evidence and particularly when the lower court (trial court) had no power to act on collective agreements Exhibits ‘P3’ and ‘P4’ since it is a product of a trade unionist pressure and which was what the trial court anchored part of its findings to find for the Plaintiff (Appellant/Respondent).
(b) Whether the learned trial Judge was legally right when it (sic) held in part of its (sic) judgment that no opportunity at all was given to the Claimant (Appellant/Respondent) by way of query containing allegations in order for the said Appellant/Respondent to defend herself in writing of the allegations made against her even when the said Claimant (Appellant/Respondent) admitted under cross-examination vide documentary evidence that she was even given an opportunity of answering the alleged complaints made or proffered against her which said complaint/Allegation (sic) had given birth to this suit at the lower court and consequently this Cross-Appeal.
(c) Whether the learned trial Judge was legally right when it (sic) held in part that “I award damages to the plaintiff for her wrongful dismissal from the service of the defendant assessed on the basis of her salary and allowances for one month in lieu of notice plus one year salaries and allowances from the date of her dismissal” even when the said lower court (trial court) had no power or jurisdiction to assess and award the damages of months salaries and allowances in favour of the Claimant (Appellant/Respondent).
(d) Whether the learned trial Judge was right when he held or found in part that the dismissal of the plaintiff was wrongful both as a result of failure to give the required Notice and as a result of an unproven gross-misconduct in the absence of any legally admissible evidence on the said required Notice and even in the face of proved or admitted gross-misconduct made by the Claimant (Appellant/Respondent) in Exhibit ‘P23’.
(e) Whether the learned trial Judge was right when he found in part for the plaintiff (Claimant) (Appellant/Respondent) not withstanding that part of the said learned trial judge (sic) was unreasonable unwarranted and part of the said judgment is against the weight of evidence.”
The Cross-Appellant married Issue (a) to ground 2; Issue (b) to ground 3; Issue (c) to ground 4; Issue (d) to ground 5; and Issue (e) to ground 1 respectively of the grounds of appeal contained in the Notice of Cross-Appeal.
Learned counsel for the Appellant, Cross-Respondent (who will hereinafter be simply referred to as ‘the Appellant’) in the party’s brief of argument adopted the Issues formulated by the Cross-Appellant with some modification and came up with the following Issues: –
“1. Whether the learned trial Judge was legally right to have held in part that the Plaintiff (Appellant/Respondent) has proved that her dismissal from service by the Defendant (Respondent/Cross-Appellant) was wrongful on the state of evidence before the Court.
2. Whether the learned trial judge was legally right when he held in part of his judgment that no opportunity at all was given to the claimant (Appellant/Respondent) by way of query containing allegation in order for the said Appellant/Respondent to defend herself in writing of the allegation made against her.
3. Whether the learned trial judge was legally right when it (sic) held m part that “I award damages to the Plaintiff for her wrongful dismissal from service by the Defendant assessed on the basis of her salary and allowances for one month in lieu of notice plus one year salaries and allowances from the date after her dismissal”.
4. Whether the learned trial judge was right when he held or he found in part that the dismissal of the Plaintiff was wrongful both as a result of failure to give notice and as a result of an unproven cross-misconduct (sic).
5. Whether or not the learned trial judge had properly evaluated the evidence adduced by both parties and had drawn the correct inference from the facts proved.”
The Cross-Appellant filed a Reply brief to the brief of argument of the Appellant/Cross-Respondent but all that learned counsel did in the said brief was to expatiate on the submissions earlier made in the Cross-Appellant’s brief of argument and/or to proffer submissions to counter those of the Appellant. The Appellant raised no new Issue or point of law in her brief of argument to that of the Cross-Appellant and the Reply brief of the Cross-Appellant is therefore uncalled for.
I find the issues formulated by the Appellant to be more incisive having regard to the complaints raised in the grounds of appeal in the Notice of Cross-Appeal; therefore the cross-appeal will be decided on the Issues formulated by the Appellant.
ISSUE 1
Dwelling on this Issue in the brief of argument of the Cross-Appellant, learned counsel submitted to the effect that it was wrong of the lower court to have found that the Appellant proved her dismissal from the service. This is because the lower court based its finding in this regard on Exhibit ‘P10’ which was wrongly admitted in evidence as it was not pleaded. And what is more, the lower court had no power to act on the collective agreements marked Exhibits ‘P3’ and ‘P4’ (which Appellant wrongly referred to as her conditions of service and not Exhibit ‘P10’) in the absence of evidence establishing their adoption as the Appellant’s conditions of service. That Exhibits ‘P3’ and ‘P4’, which are products of unionist pressure amounted to nothing more than mere collective agreements and that the lower court was legally wrong to have based part of its decision on the said Exhibits. The cases of Texaco Nigeria Plc v. Kehinde (2002) FWLR (Pt. 94} at 143; and Shuiabu v. Nigeria Arab Bank Ltd (1998) 4 SCNJ 109 at 129 were cited in respect of the status of Exhibits ‘P3’ and ‘P4’. Learned Counsel also submitted that this Court as an appellate court is now duty bound to expunge Exhibit ‘P10’ as it went to no issue. The cases of Jolayemi v. Alaoye (2004) All FWLR (Pt, 217) 584 at 586 and Nwaga v. Registered Trustee Recreation Club (2004) FWLR (Pt.190) 1360 at 1379 were cited in support. Learned Counsel submitted that reliance by the lower court on Exhibits ‘P3’ and ‘P4’; as well Exhibit ‘P10’ respectively has in the circumstances occasioned a miscarriage of justice. Again learned counsel (though not so conceding) submitted that it even if Exhibits ‘P3’ and ‘P4’ have legal effect, the Appellant cannot seek for any legal protection under the provisions of Article 4 Part II (section 1) Clause IV of Exhibit ‘P4’ which relate to summary dismissal as no agreement was reached between the Respondent and the said Appellant in relation thereto. In conclusion, learned Counsel submitted that the lower court misapplied the law to the facts of illegally admissible evidence in relation to Exhibit ‘P10’ and also misunderstood the law relating to collective agreement and that these have grossly occasioned a miscarriage of justice.
Learned counsel for the Appellant dwelling on the Issue under consideration said that the Appellant pleaded the nature and conditions of service in respect of her employment in paragraphs 3, 4, 5 and 11 of the Statement of Claim. He submitted that the position of the law is that one does not need to specifically plead a document. All that is necessary is for material acts relating to a document to be pleaded and the cases of Ojoh v Kamah (2006) All FWLR (Pt.297) 978 at 1001; and Zenon Petroleum & Gas Ltd v. Idrisiyyaa (Nig) Ltd (2006) All FWLR (Pt. 312) 2121 at 2140 were cited in aid. It is the further submission of learned counsel that given the pleading of the Appellant regarding her employment a document such as Exhibit ‘P10’ that went to show the terms of the employment was legally admissible and properly admitted by the lower court. This is more so as the Cross-Appellant did not object to the admissibility of the said Exhibit ‘P10’ when it was tendered. The case of Dagaci of Dere v. Dagaci of Ebwa (2006) All FWLR (Pt.306) 786 at 824 was cited in aid. It is also the submission of learned counsel that even if Exhibit ‘P10’ was wrongly admitted in evidence (which he however did not concede), the wrongful admission cannot constitute a good ground for the reversal of the decision of the lower court unless the Cross-Appellant can show that without the said Exhibit P10 the decision of the lower court would have been otherwise and the case of Idundun v. Okumagba (1976) 9-10 SC 227 was cited in aid. Learned counsel further submitted that the Cross-Appellant has not done this.
Learned Counsel agreed with the submission of learned Counsel for the Cross-Appellant concerning collective agreements such as Exhibits ‘P3’ and ‘P4’. He however submitted to the effect that,all the cases cited by learned counsel to the Cross-Appellant in relation to collective agreements were not applicable to the instant case as parties considered themselves bound by the same. In this regard, the cases of Unity Bank Plc v. Oluwafemi (2007) All FWLR (Pt. 382) 1923 at 1950 in which the cases Daodu v. United Bank for Africa Plc (2004) 9 NWLR (Pt. 878) 276 at 280 and Abalogu v. The Shell Pet. Dev. Co. Ltd (2003) 13 NWLR (Pt. 837) 308 at 312, were applied was cited in aid. Learned Counsel submitted to the effect that the Cross-Appellant having admitted in its pleading and evidence before the lower court that the collective agreements are part of the Appellant’s conditions of service are estopped from stating the contrary. The cases of Governor of Ekiti v Ojo (2006) All FWLR (Pt. 331) 1298 at 1318; Iloabachre v. Phillips (2002) FWLR (Pt.115) 726 and Otto v. Mabamjie (2004) 17 NWLR (Pt. 903) 489 at 504 were cited in aid. Lastly learned counsel submitted that no miscarriage of justice has been shown in this case by the Cross-Appellant by the reliance placed on Exhibits P3, P4 and P10 by the lower court.
This case was commenced before the lower court by the filing of a writ of summons and Statement of Claim by the Appellant. Parties duly exchanged pleadings and the Cross-Appellant even amended its Statement of Defence at some point in time. It is no doubt settled law that, one of the aims of pleadings is to give parties notice of their respective cases so that each one of them can adequately prepare his evidence and arguments upon issues raised in the pleadings. See EZIKE & ORS V. EGBUABA (2008) 11 NWLR (Pt.1099) 627.

Also, the settled position of the law as it relates to the tendering of documents or documentary evidence is that it is sufficient if statements of facts relating to the document are contained in the pleading and not necessarily that the document or piece of documentary evidence must be specifically pleaded in a party’s pleading. See AMAECHI V. INEC (2008) 5 NWLR (Pt.1080) 227. Pleading sufficient facts relating to the document goes to show its relevancy to the case of the party in question and once there is no legal bar to its admissibility, then the document is admissible. See OKONJIV. NJOKANMA (1991) 2 SCNJ 259.
The Appellant having regard to the averments in the Statement of Claim filed in the instant case, in my considered view, glaringly pleaded facts relating to the conditions of her service with the Cross-Appellant as being governed by the main Collective Agreement between the Nigerian Employees Association of Banks, Insurance and Allied Institutions and Association of Senior Staffs of Banks, Insurance and Financial Institutions; directives, circulars and Regulation. It is also my considered view that given the averments in paragraphs 23, 24 and 25 of the Statement of Claim, the Appellant gave the Cross-Appellant sufficient notice in respect of her case that the Collective Agreement between the Nigerian Employers Association Banks, Insurance and Allied Institutions and National Union of Banks, Insurance and Financial Institutions Employees used by the Cross-Appellant in dismissing her not only was inapplicable to an employee of her status (senior staff) but that the Cross-Appellant did not comply with the provision of the of the said inapplicable Collective Agreement relating to query in dismissing her thereunder.
The Cross-Appellant on its part not only averred in paragraph 29 of the Amended Statement of Defence that the Collective Agreement for Junior Staff is not the conditions of service regulating the relationship between it and the Appellant but also averred in paragraph 12 of the same process that the Collective Agreement between the Nigerian Employers Association of Banks, Insurance and Allied Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions amongst others governed the relationship between the parties.
The proceedings of the lower court for 16/10/2002 at pages 58 – 59 and 17/4/2003 at pages 63 – 64 of the Record of Appeal respectively, show clearly how the documents tendered and admitted as Exhibits ‘P3’; ‘P4’ and ‘P10’ came to be tendered and also that no objection was taken to their admissibility by the Cross-Appellant. It is also beyond dispute having regard to the judgment of the lower court at page 111 of the Record of Appeal that the document admitted as Exhibit ‘P3’ is the Collective Agreement between the Nigerian Employers Association of Banks, Insurance and Financial Institutions Employees (Junior Staff); while at page 112 of the Record of Appeal the same court revealed in its judgment that Exhibit ‘P’ is the Main Collective Agreement between the Nigerian Employers Association of Banks, Insurance and Allied Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions and Exhibit ‘P10’ is revealed to be an agreement of service between the Appellant and Cross-Appellant setting out some terms of the employment.
Given the state of pleadings of the parties in this case, I am of the considered view that it is clearly a misapprehension of the law on the part of the Cross-Appellant to have argued to the effect that all or any of Exhibits ‘P3’, ‘P4’ and/or ‘P10’ is inadmissible on the ground that they were not pleaded. I find the pleading of the Appellant to contain sufficient facts in relation to each of the aforementioned documents and thereby making their relevancy in the instant case most obvious.
There is a world of difference between admissibility and probative value or weight to be attached to a piece of documentary evidence. Relevancy comes before weight or probative value. It is relevancy that propels admissibility. If a piece of documentary evidence is relevant the court admits it once all other aspects of our adjectival laws are in favour of such admission. See ABUBAKAR V. CHUKS (2007) 12 SC 1 at pages 13 – 14.
It is not the submission of the Cross-Appellant that Exhibits ‘P3’, ‘P4’ and ‘P10’ are inadmissible in evidence pursuant to any of the provisions of the Evidence Act or any other law. Indeed, I do not see anything in any of the Exhibits in question that renders any of them inadmissible pursuant to the provision of any law. The Cross-Appellant has submitted that it was wrong of the lower court to have acted on Exhibits ‘P3’ and ‘P4’ as they were not pleaded and as they are mere collective agreements being products of unionist pressure and as there is no evidence of the adoption of the said Collective Agreements.
The Cross-Appellant would appear not to appreciate the case of the Appellant on the pleading and in respect of which she adduced evidence. Her case is that, she was dismissed pursuant to conditions of service applicable to Junior Staff (i.e. Exhibit ‘P3’) and not under the conditions of service for Senior Staff (i.e. Exhibit ‘P4’) amongst other directives, guidelines and circulars that are applicable to her employment with the Cross-Appellant. The Cross-Appellant having regard to its pleading clearly agreed that the conditions of service for Junior Staff (i.e. Exhibit ‘P3’) is not applicable to the Appellant and that it is the conditions of service for Senior Staff (i.e. Exhibit ‘P4’) that is applicable to her amongst circulars, directives, guidelines and other employee/employer documents vital to its (i.e. Cross-Appellant’s) survival. It would appear clear from the above that the Appellant’s claim that her conditions of service are not contained in a single document and this, the Cross-Appellant undoubtedly agrees with having regard to its pleading to the effect that the conditions of service applicable to the Appellant’s employment is Exhibit ‘P4’ amongst others.
The law as it relates to collective agreements as stated in the case of ABALOGU V, SPDC LTD [2003] 13 NWLR (Pt.837) 308 at 337 is that a collective agreement is binding on the parties where it is expressly or by necessary implication incorporated or embodied in the contract of service but not otherwise.
The letter of dismissal issued to the Appellant by the Cross-Appellant was admitted and marked as Exhibit 2. The said letter is re-produced at page 110 of the Record of Appeal. It is stated therein to the effect that the Appellant has in compliance with Article 4 Clause (IV) of Part II (Section 1) of the Collective Agreement been dismissed with effect from 15/12/1997 from the service of the Cross-Appellant for gross misconduct at Okengwe Branch. It is clear from a perusal of pages 111 – 112 of the Record of Appeal that the lower court upon scrutinizing both Exhibits ‘P3’ and ‘P4’ brought out the fact that, it is only in Exhibit ‘P3’ that provision is made for summary dismissal for offences under the broad heading of gross misconduct and that summary dismissal is not provided for in Exhibit ‘P4’.
It is settled law that, an employer can summarily dismiss an employee in all cases of gross misconduct provided that the affected employee is given fair hearing; and this is so whether the affected employee is in private employment or statutory employment. See in this regard the cases of ZIIDEEH V. RIVERS STATE CIVII. SERVICE COMMISSION [2007] All FWLR 243 at 265 – 266; and ANNAM V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] All FWLR (Pt. 296) 843. It is glaring from Exhibit ‘P2’ that the Cross-Appellant did not dismiss the Appellant for gross misconduct under its inherent powers in that regard. The Cross-Appellant held itself out as exercising its power of summary dismissal in respect of the Appellant for gross misconduct pursuant to the provisions of the conditions of service governing their relationship. Surely as Exhibit ‘P4’ does not provide for summary dismissal, it cannot be successfully argued that the dismissal of the Appellant was carried out under the said Exhibit ‘P4’. It is under Exhibit ‘P3’ that provision is made for summary dismissal for gross misconduct. It is a truism that a document when admitted in evidence speaks for itself, and in my considered view the irresistible inference from the documentary evidence before the lower court therefore, is that the Cross- Appellant dismissed the Appellant for gross misconduct pursuant to the provisions of Exhibit ‘P3’. The Cross-Appellant in the circumstances cannot properly be heard to say that the conditions of service marked Exhibit ‘P3’ has not been at least embodied in the Appellant’s contract of service by necessary implication or that there is no evidence of its adoption. The Cross-Appellant is the employer and having glaringly held itself out as acting pursuant to the provisions of Exhibit ‘P3’, that act by itself sufficiently shows the fact of adoption of the said Exhibit ‘P3’ by the Cross-Appellant. And as to Exhibit ‘P4’ which the Cross-Appellant itself pleaded as being applicable to the master/servant relationship between it and the Appellant, it is simply ludicrous for the Cross-Appellant to argue that there is no evidence of its adoption. All of Exhibits ‘P3’, ‘P4’ and ‘P10’ are pieces of legally admissible documentary evidence which the lower court was entitled to evaluate, ascribe probative value/weight and act upon. It must always be borne in mind that pleadings are also designed to shorten proceedings by ascertaining what facts are agreed to, so that evidence need not be led to prove them. See ABUBAKAR V. JOSEPH [2008] All FWLR (Pt.432) 1065 at 1105 – 1106: and DALEK NIG. LTD V. OMPADEC [2007] All FWLR [Pt.364] 204 at 227.
From the foregoing, I not only find nothing that legally rendered all or any of Exhibits ‘P3’, ‘P4’ and ‘P10’ inadmissible but also that the lower court acted properly in relying on the said Exhibits in coming to a decision in the instant case. This Issue is accordingly resolved against the Cross-Appellant and in favour of the Appellant.
ISSUE 2
Dwelling on the second Issue which raises the question as to the correctness of the finding of the lower court that the Appellant was not given any opportunity by way of query to defend herself, learned Counsel for the Cross-Appellant submitted in effect that the Appellant was not denied any opportunity in this regard having regard to Exhibit ‘P23’, It is also the submission of learned counsel that a formal query need not be served on the Appellant and that the Appellant admitted the misconduct she was accused of in Exhibit ‘P23’. The case of Lake Chad Research Institute v. Mohammed (2004) All FWLR (Pt. 225) 40 at 61 was cited in aid. Learned Counsel also cited the cases of Angel Spinning & Dyeing Ltd v. Ajah (2000) FWLR (Pt. 23) 1332 at 1336 and 13345 and Ali v. NAA All FWLR (Pt. 272) 265 at 289 to show that fair hearing is a privilege and not a right of an employee in a master/servant relationship where the employee’s appointment is dismissed or terminated.
Dwelling on this Issue learned counsel for the Appellant said that the Cross-Appellant either misunderstood the purport of Exhibit ‘P23’ or decided to read it out of con. Learned counsel said that there was nothing in Exhibit ‘P23’ to which the Appellant was to respond. He also submitted that the Appellant admitted nothing in Exhibit ‘P23’. Learned counsel cited the case of Akumechiel v. Benue Cement Co. Ltd (1997) 1 NWLR (Pt 454) 695 at 703 in support of his submission to the effect that the removal of an employee by an employer for misconduct cannot be justified in the absence of adequate opportunity being offered the employee to explain, justify or else defend the alleged misconduct. It is the further submission of learned counsel that the Cross-Appellant in any case never made out a case of misconduct against the Appellant. The case of Texaco Overseas (Nig.) Petroleum Co. Unltd v Okundaye (2003) FWLR (Pt. 136) 961 was cited as showing that the burden is on the employer to prove the allegation of misconduct when not admitted by the employee and where that is the reason given for the determination of the employment. Learned counsel submitted that parties in the instant case joined issue on whether or not the Appellant was given fair hearing amongst others and that as parties are bound by their pleadings, the case of Angel Spinning & Dyeing Ltd (supra) cited by learned counsel for the Cross-Appellant was inapplicable. The case of Fagbenro v. Arobadi (2006) All FWLR (Pt. 310) 1575 at 1596 was cited in aid. It is the further submission of learned counsel that the Cross-Appellant cannot now change the case on appeal and the case of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 was cited in aid.
I have hereinbefore cited the cases of ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR 243 at 265 – 266 and ANNAM V, BENUE STATE JUDICIAL SERVICE COMMISSION [2006] All FWLR (Pt. 296) 843 to show that while the law invests an employer with the power to summarily dismiss an employee in all cases of gross misconduct whether the employment is one with statutory flavour or one of ordinary master and servant, the employer is however enjoined to accord the affected fair hearing before doing so.
It is pertinent to say that the provision of Section 36(1) of the 1999 Constitution has entrenched the common concept of natural justice with its twin pillars namely:
(i) that a man shall not be condemned unheard or what is commonly known as ‘audi alteram patem’, and
(ii) that a man shall not be a judge in his own cause or ‘nemo judex in causa sua’.
See BILL CONSTRUCTION CO. LTD V. IMANI & SONS LTD/SHELL TRUSTEES LTD (A JOINT VENTURE) (2006) 11-12 SC 90 at 93-94.
The law is settled that, it is the person who alleges the breach of the rules of fair hearing that has the burden of proving same, and in addition that whether a trial or proceeding had been fair or not, depends on the facts and circumstances of each case. See also ALHAJI RAUFU GBADAMOSI V. OLAITAN DAIRO (2007) 1 SC (Pt.II) 151 at 171-172; and AUGUSTINE MAIKYO V. W.E. ITODO & ORS (2007) 3 SC (Pt.II) 34 at 54. The Cross-Appellant has strenuously submitted that not only was the Appellant given the opportunity of defending herself having regard to Exhibit P23 but also that she admitted this under cross-examination. The lower court at pages 112-114 (para.1) of the Record of Appeal dealt with the issue as to whether or not the Appellant prior to her dismissal was given the opportunity to defend herself by the Cross-Appellant.
The lower court in its judgment found the conditions of service marked as Exhibit ‘P4’ to be applicable to the employment of the Appellant with the Cross-Appellant as at the time of her dismissal. I have stated hereinbefore that the Cross-Appellant itself agreed that the conditions of service admitted and marked as Exhibit ‘P4’ amongst others applied to the employer/employee relationship between it and the Appellant. The lower court made a definite and clear finding that Exhibit ‘P4’ applied to the employment of the Appellant with the Cross-Appellant. I have earlier found Exhibit ‘P4’ to be legally admissible and worthy of ascription of weight by the lower court and that the said court acted properly in relying on the said Exhibit. Exhibit ‘P4’ specifically provides for the procedure to be adopted in cases of ‘suspected dishonesty or any serious misconduct’ under the heading ‘Suspension’. It provides to the effect that an employee suspected of dishonesty or any other misconduct shall be suspended from duty for a period not exceeding 6 months during which investigations shall be concluded, The provision also allows for the suspension to continue until such a time when investigations are concluded in the event that this is not achieved within the initial 6 months. Exhibit ‘P23’ as stated in the judgment of the lower court is a Report captioned ‘Nature of Fraud – Misrepresentation of Hotel Bills by Hoteliers’ and which Report was admitted and marked as Exhibit ‘D1’. From a perusal of the Exhibit one is left in no doubt that there is no semblance of any accusation of gross misconduct the Appellant is expected to answer. It a question and answer session between an auditor and the Appellant. At the best Exhibit ‘P23’ qualifies as nothing more than the Report of an investigation conducted by an auditor. I am of the considered view that as stated by the lower court in its judgment, Exhibit ‘P23’ should have formed the basis of a formal notification to the Appellant of the case of gross misconduct against her and to which she was to respond.
Where the conditions of service between an employer and an employee provides for the procedure to be taken in hearing an employee accused of violating the said conditions, then it behooves the employer to adhere strictly to the procedure. See OBOT V CENTRAL BANK OF NIGERIA (1993) 9 SCNJ (part II) 268. It is my considered view, that in the event the employer fails to strictly comply with the procedure relating to hearing set down in the conditions of service, then it cannot be said that the affected employee was given a fair hearing.
The lower court found that Exhibit ‘P3’ (and rightly too in my view) is not the conditions of service applicable to the employment of the Appellant as alleged by her. In any event the lower court also found that the Cross-Appellant did not comply with the provision of the said Exhibit ‘P3’ that stipulates that the Appellant should be issued with a written query and afforded the opportunity to defend herself before she was dismissed. In reaching this conclusion, the lower court also found that Exhibit ‘P23’ was an Audit Question and Response Sheet and not a written query. As earlier said, a document when admitted speaks for itself and Exhibit P23 glaringly does not remotely disclose itself as a written query to the Appellant for any purpose. I therefore find the lower court to be eminently correct when it held that thus: “Even if exhibit ‘P3’ applied to the plaintiff, the defendant did not act in accordance with the terms and conditions of service contained therein in that the plaintiff was not given a written query and not afforded the opportunity to defend herself in writing before she was dismissed from service”.
Learned counsel for the Cross-Appellant cited the case of Angel Spinning & Dyeing Ltd v. Ajah (supra) as deciding that in a master/servant relationship, it is only a matter of privilege and not a right for an employee to be heard where the employee’s appointment is dismissed or terminated, Learned counsel also cited the case of Ali v. NAA (supra) as deciding that the mere failure to accord a dismissed or terminated employee right to fair hearing will not be enough to entitle him to judgment in an action for wrongful dismissal if on the evidence before the court a case of gross misconduct is made out against the employee.
What Omage, J.C.A; actually said in the case of Angel Spinning & Dyeing is to the effect that a servant has no claim to fair hearing where his contract of employment provides for payment in lieu of notice. The learned Justice of the Court of Appeal further said that the employment of the rule of fair hearing in a master and servant relationship is one of privilege especially if the contract of service does not provide for fair hearing.
Surely, the position of the law as stated in the Angel Spinning & Dyeing case is inapplicable in the instant case where the Cross-Appellant held itself out as having acted pursuant to Exhibit ‘P3’ which provides for the procedure to be taken in cases of gross misconduct. In any event, from the cases I have cited hereinbefore, it would appear that the position of the law is that when an employer decides to dismiss an employee on ground of gross misconduct, the employer is duty bound to afford the affected employee fair hearing. It would appear to be trite that a hearing need not attain the standard or form obtainable in a court before it can be said to be fair. Where a matter is not before a court of law, what is generally required in order to accord fair hearing to a person, is that there be an identifiable person or body of persons empowered and capable of going into the issue in disputation, and that the person who is to be adversely affected by the decision, act or proceeding, be given adequate notice of what is proposed and any allegation against him so that he will be afforded the opportunity to know the case against him to enable him prepare and answer the case against him. The Appellant having regard to Exhibit ‘P2’ was summarily dismissed by the Cross-Appellant for gross misconduct. The Cross-Appellant was duty bound in law to have given the Appellant a fair hearing given the ground for her dismissal. Exhibit ‘P23’ as earlier said is a question and answer session between an auditor and the Appellant; and at the best Exhibit ‘P23’ qualifies as nothing more than the Report of an investigation conducted by an auditor and which could be the basis of a formal allegation against the Appellant. There is no specific allegation of gross misconduct against the Appellant therein, talk less of the Appellant being given an opportunity to defend herself in respect of the same and admitting any such alleged gross misconduct.
In the circumstances, I find the position of the Cross-Appellant that the Appellant was given an opportunity to defend herself in respect of an unspecified gross misconduct by Exhibit ‘P23’ and that she admitted being given the opportunity as most tenuous. The finding of the lower court that the Appellant was not given an opportunity to defend herself in respect of any act of gross misconduct is in my view impeccable. Issue 2 is accordingly resolved against the Cross-Appellant and in favour of the Appellant.
ISSUE 3
This Issue questions the power possessed by the lower court to award one month salary and allowances in lieu of notice plus one year’s salaries and allowances to the Appellant for her wrongful dismissal from the service of the Cross-Appellant. Learned Counsel for the Cross-Appellant stated the law to be that the duty of a trial court in cases involving the assessment of damages is to only asses the damages proved. Learned Counsel submitted that in the instant case, the Appellant did not seek for the assessment of damages let alone prove the basis of the assessment of damages awarded the Appellant in its judgment. It is the submission of learned counsel that the issue of damages which touch on salary and allowances falls with the realm or category of special damages and not damages simpliciter or general damages. That because of this, the issue of salary and allowances must be strictly proved and the cases of Union Bank of Nigeria Plc v. Nwachukwu (200) FWLR (Pt.6) 986 at 988; and Obasuyi v. Business Ventures (2000) FWLR (Pt. 10) 1722 at 1725 were cited in aid. Learned Counsel also cited relevant cases relating to the proof of special damages and the consequences of failure to discharge the required proof.
It is also the submission of learned Counsel that the lower court went on a voyage of discovery by assessing damages for 13 months salaries and allowances in favour of the Appellant as issue was not placed before it, and that this has occasioned a miscarriage of justice that not only warrants the setting aside of that part of the judgment of the lower court, but also obviates the necessity of sending the case back for the purpose of assessing the proper award to be made. The case of Bhojsons Plc v. Daniel-Kalio (2005) 5 MJSC 136 at 139 was cited in aid. Still on the award of the made by the lower court, learned counsel submitted that before the Appellant could be entitled to the assessment of salaries and allowances, she ought to have pleaded and proved the same strictly by evidence and that it could not be inferred by a court of law. Relevant cases were cited in the brief of argument of the Cross-Appellant Learned counsel submitted that the lower court made its own estimation of salaries and allowances payable to the Appellant when the said court was not expected to have done this. That it was for the Appellant to have proved these strictly and by credible evidence.
Dwelling on this Issue, learned Counsel for the Appellant submitted that the lower court was legally right to have awarded damages to the Appellant for her wrongful dismissal assessed on the basis of her salaries and allowances. Relying on the cases referred by the lower court in its judgment, learned counsel submitted that it was obvious that what the lower court awarded the Appellant was general damages which it found the Appellant to be entitled to and not special damages. He said further that it was wrong of learned counsel for the Cross-Appellant to portray the award made by the lower court as special damages. It is the further submission of learned counsel that the Cross-Appellant never stated the miscarriage of justice the Cross-Appellant has suffered by the award made by the lower court or why it was wrong for the lower court to have assessed the award on the basis of one year salary and allowances, The case of Jinadu v. Esurombi-Aro (2005) All FWLR (Pt. 251) 394 at 395 was cited in aid of the meaning of ‘a miscarriage of justice’. Learned counsel cited the case of Dumez v.Ogboli (1972) 1 All NLR at 250 as deciding that an appellate court would only interfere with an award of general damages if it is shown to be either manifestly too high or manifestly too low or awarded on a wrong principle. It is the submission of learned counsel that the complaint of Cross-Appellant counsel is not that the award made by the lower court is too low or too high or awarded on a wrong principle of law but that it is that the award is in the realm of special damages that has not been strictly proved. Learned counsel submitted that award of general damages is a consequence of a successful litigation and cited the cases of A.C.B. Ltd v. B. B. Apugo (2001) FWLR (Pt.42) 38 in this regard.
On the assumption that the lower court awarded special damages (which is not conceded) learned counsel submitted that upon the state of pleadings and evidence adduced in the case, the issue of special damages which required only minimal proof was duly proved by the uncontroverted evidence before the lower court.
In the main appeal, cases were cited in relation to the quantum of damages recoverable by an employee whose appointment though determinate by the giving of notice or payment in lieu of notice, is wrongfully terminated. The position of the law having regard to the cases is that the proper measure of damages recoverable in such a situation is what the employee would have earned within the period of notice required to property bring the employment to an end together with other benefits by way of overtime, rent subsidy etc, in accordance with the contract. Having regard to the settled proper measure of damages as stated above, it is most clear that the question of special damages strictly speaking has no place in contract of employment just as it has no place in ordinary cases of contract of which contract of employment is but only a species. See XTOUDOS SERVICES NIGERIA LTD & ANOR V. TATSEL (W.A.) LTD & ANOR (2006) 26 NSCQR 1185 wherein the Supreme Court per Ogbuagu, J.S.C; said at page 1211 – 1212 thus: –
Special damages, are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and therefore, they must be claimed specially and proved strictly. While General damages, are such as the law will presume to be the direct natural or probable consequences of the act complained of…It need be stressed that in a claim for damages for breach of contract, the court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract…but where a plaintiff goes on to claim special damages, such must be specifically pleaded and proved.”
See also the case of IFETA (supra) wherein Kalgo, J.S.C; said thus: –
“The principle of assessment for breach of contract generally is restitutio in integram – that a plaintiff shall be restored to as far as money can do it, into the position he would have been if the breach had not occurred. It is not intended to give the plaintiff a windfall on all claims for damages…”
as well as the case of G.K.F. INVESTMENT NIGERIA LTD V. NIGERIA TELECOMMUNICATIONS PLC (2009) 13 NWLR (Pt.1164) 344 at 384.
In the instant case, the lower court relying on Exhibit ‘P10’ found that the Appellant’s employment with the Cross-Appellant was determinable by the giving of one month notice. The said court further found the Appellant’s employment to have been wrongfully terminated for failure on the part of the Cross-Appellant to give the Appellant a month’s notice and also as a result of unproved gross misconduct. The lower court assessed the damages due to the Appellant to be her salary and allowances for one month in lieu of notice.
The court went further to award one year’s salary and allowances to the Appellant.
There is no doubt that the lower court acting on Exhibit ‘P10’ was eminently right in the finding that the Appellant’s employment was determinable by the giving of one month’s notice to her by the Cross-Appellant. The Cross-Appellant having glaring not done this, made the dismissal of the Appellant wrongful. The award of damages to the Appellant assessed on the basis of one month’s salary and allowances in lieu of notice having regard to the position of the law in relation to assessment of damages for wrongful termination/dismissal of employment is therefore very correct.
The law definitely is not that all that the Appellant is entitled to is only the salary and allowances she would have earned for or during the period of notice. The Appellant having regard to the principle governing the award of damages in cases of wrongful dismissal/termination of employment is entitled to damages in the nature of other legitimate entitlements due to her at the time the employment was brought to an end. The entitlement depending on the facts of the case can also include pension and gratuity, See CHUKWUMAH V. SPDC OF NIGERIA LTD (1993) 5 SCNJ 1.
The Appellant averred in paragraph 31 of the Statement of Claim to the effect that she had worked for the Cross-Appellant for 21 years 8 months as a senior management staff and that at the point of her dismissal she was entitled to Gratuity and Pension. The Appellant duly set out what constitutes the Gratuity and also computed the pension due to her. As it has been stated before now, the Cross-Appellant did not deny what the Appellant set out as being her gratuity. The Cross-Appellant also did not deny the correctness of the pension the Appellant computed as being due to her. The stand of the Cross-Appellant is that the Appellant is not entitled to gratuity and pension because she is a dismissed staff and not because the number of years for which she has served, do not qualify her for the payment of pension and gratuity.
The law is clear that when a party disputes any averment in the pleading of an adversary, the said party must specifically deny the averment by pleading his version of the matter. Where a matter is pleaded by one party and the other party does not traverse the same, the pleaded matter remains a fact against the other side. See ESEIGBE V. AGHOLOR [1993] 12 SCNJ 82. The Cross-Appellant given its pleading in relation to the averment in paragraph 31 of the Statement of Claim therefore, did not dispute the correctness of the sums claimed by the Appellant as her gratuity and pension The gratuity claimed by the Appellant covers her salary and allowances for one year. The lower court apart from awarding the Appellant one month’s salary and allowances in lieu of the notice which the Cross-Appellant should have given her to properly terminate her employment further awarded her as damages her salaries and allowances for one year. The award having regard to the pleadings of the parties and evidence before the lower court was no more than what the Appellant claimed would have been due to her as gratuity had her employment not been terminated by the Cross-Appellant The award in my view amounts to no more than other entitlement due to the Appellant if her employment had not been terminated by the Cross-Appellant, and the award having regard to the settled principles relating to assessment of damages in cases of wrongful dismissal/termination of employment undoubtedly forms part of the damages which are natural and probable consequences of the breach of the Appellant’s contract of service and within the contemplation of the parties at the time of the contract. The damages in this regard require no special proof. The lower court it should indeed be noted never said that the award it made in favour of the Appellant was in special damages.
Given all that has been said in relation to this Issue, I do not find the lower court to have violated the settled principles of assessment of damages in cases of wrongful dismissal/termination of employment, having regard to the damages it awarded the Appellant. In the circumstances there is no basis upon which this Court can properly interfere with the same. Consequently this Issue is resolved against the Cross-Appellant and in favour of the Appellant.
ISSUE 4
Dwelling on this Issue learned Counsel for the Cross-Appellant submitted that it was wrong for the lower court to have found the dismissal of the Appellant wrongful both as a result of failure to give the required notice and as a result of an unproved gross misconduct. This is because there was no pleading in respect of the required notice talk less of legally admissible evidence in respect of the required notice of one month the lower court found the Appellant to be entitled. It is the submission of learned counsel that instead of the Appellant pleading and proving that a notice of one month was required to terminate her appointment, she falsely pleaded Exhibits ‘P3’, ‘P4’ and ‘P12’ as her conditions of service and that the lower court misapplied the law to proved facts since the Appellant did not prove the non-issuance on her of one month salary in lieu of notice. Learned Counsel again submitted that Exhibit ‘P23’ was a tacit admission that the gross misconduct the Appellant was accused of was proved as there was no document or evidence that one month notice was not given. It is the submission of learned Counsel that as the lower court drew or made wrong legal inference from the facts before it, this Court has a duty to reverse that part of the decision of the lower court.
Dwelling on this Issue, Appellant’s Counsel submitted that the lower court was right when it held or found that the dismissal of the Appellant was wrongful both as a result of failure to give the required notice and as a result of an unproved gross misconduct. In this regard, learned counsel submitted that Exhibit ‘P10’ raised the issue of one month notice or payment in lieu of notice. It is the submission of learned counsel that Exhibit ‘P23’ was pleaded and tendered in proof of the Cross-Appellant’s averment that the Appellant was given fair hearing. That it is therefore not open to the Cross-Appellant to rely on the said Exhibit as proving that the Appellant admitted the gross misconduct alleged against her and the case of Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) All FWLR (Pt. 249) 1997 was cited in aid.
I have stated before now in this judgment to the effect that from the pleadings of the parties, it is clear that they are both agreed that the conditions of service of the Appellant is not contained in one single document. The lower court found Exhibit ‘P10’ which it relied upon as part of the conditions of service of the Appellant as providing for the determination of the Appellant’s employment by the Cross-Appellant giving her one month’s notice or paying her one month’s salary in lieu of notice. I have hereinbefore found that Exhibit ‘P10’ is legally admissible and properly admitted in evidence. As earlier stated, a document when admitted speaks for itself. Exhibit ‘P2’ – the letter of dismissal issued to the Appellant by the Cross-Appellant is dated 15/12/1997. It is stated therein that the dismissal of the Appellant takes effect from the very 15/12/1997. It is in my view clear as crystal from Exhibit ‘P2’ that the Appellant was not given any notice talk less of one month notice. Exhibit ‘P2’ in my view is sufficient evidence in proof of the fact that the Appellant was not given any notice prior to her dismissal. In the circumstances, it is clearly a misapprehension of the evidence before the lower court by the Cross-Appellant for it to argue that there was no legally admissible evidence on the required notice.
It is most clear from the pleadings of the parties that the Appellant never admitted any gross misconduct on her part. The position of the law is that an employer is not bound to state any reason why an employee’s appointment is being terminated; but where the employer gives a reason for the termination of the appointment, then the burden is on the employer to prove or establish the reason. See FAKUADE V. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD M9931 6 SCNJ (Part 1) 35.
The Cross-Appellant having regard to the submissions made on its behalf by learned counsel relies on Exhibit ‘P23’ as constituting admission by the Appellant of gross misconduct. Before now, I have found that Exhibit ‘P23’ did not accuse the Appellant of any gross misconduct talk less of the Appellant admitting the gross misconduct she was not accused of. In the light of the foregoing, I do not see how the lower court misapplied the law to the issues of notice and/or proof of gross misconduct. This Issue is accordingly resolved against the Cross-Appellant and in favour of the Appellant.
ISSUE 5
Dwelling on this Issue learned counsel for the Cross-Appellant submitted to the effect that the lower court in awarding the Appellant damages which it assessed at 13 months salaries and allowances suo motu became a Father Christmas. It is also his submission that since the Appellant admitted that she was allowed to defend herself in respect of the allegations made against her on a question and answer sheet the exercise of judicial discretion by the lower court without taking this into consideration made its judgment unreasonable and unwarranted. Again it is the submission of learned counsel that the findings of the lower court based on Exhibits ‘P3’ and ‘P4’ which have no force of law are unreasonable and unwarranted. In the main learned counsel submitted that if part of the evidence adduced by the Appellant is weighed on an imaginary scale against that adduced by the Cross-Appellant, the evidence of the Cross-Appellant outweighed that of the Appellant to the extent that part of the judgment in favour of the Appellant can be said to be against the totality of some part of evidence before the lower court. Relevant cases were cited.
Dwelling on this Issue, learned Counsel for the Appellant submitted that an omnibus ground of appeal such as ground one of the grounds of appeal in the Notice of Cross-Appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial and cannot be used to challenge a specific finding of fact or used to raise any issue of law or error in law. The case of Ajibola v. Kolawole (1996) 10 NWLR (Pt, 476) 22 was cited in aid. Stating that the Cross-Appellant in its brief of argument consistently hammered on ‘part of the judgment’ of the lower court and also attacked specific issues like the reliance placed on Exhibits P3 and P4 by the lower court, learned counsel submitted that the omnibus ground cannot be relied upon by the Cross-Appellant and that all the submissions made pursuant to the Issue formulated from the said ground should be discountenanced. Learned Counsel in the main also submitted that the totality of evidence adduced in the course of the trial when placed on an imaginary scale tilted heavily in favour of the Appellant and that the lower court was right in its decision. Cases considered to be relevant were cited.
The submission of learned Counsel for the Appellant regarding the inappropriateness of an omnibus ground of appeal to attack part of the decision of the lower court on specific findings is well grounded. In this regard, see the case of BHOJSONS PLC V. DANIEL KALIO (2006) 25 NSCQR 483 where the Supreme Court dwelling on omnibus ground of appeal per Mohammed, J.S.C; at page 498 said thus:-
“…The remaining ground, ground six is an omnibus ground of appeal. It is trite that there are several decisions of this court warning parties particularly those in desire to exercise their right of appeal that such parties cannot hide behind an omnibus ground of appeal to raise specific questions on matters like the issues of damages, in the absence of specific grounds of appeal raising the questions…”
See also the case of FINNIH V. IMADE (1992) 1 SCNJ 87.
The Cross-Appellant having regard to its Notice of Cross-Appeal did not appeal against the whole of the judgment of the lower court This fact is reiterated in ground 1 of the grounds of appeal. The Cross-Appellant having regard to the arguments under Issue (e) which it distilled from the omnibus ground of appeal, engaged in the argument of specific issues and which issues it had earlier distilled from grounds 2 – 5 of the grounds of appeal.
I am in no doubt that the Cross-Appellant has clearly misconceived the purpose of an omnibus ground of appeal and this renders its Issue (e) distilled therefrom incompetent. In any event all the issues argued under the said Issue (e) having been earlier argued and resolved against the Cross-Appellant, there is no need whatsoever to dwell on the same again. Issue 5 is accordingly resolved against the Cross-Appellant.
In conclusion and having resolved all the Issues for the determination of the cross-appeal against the Cross-Appellant, the said cross-appeal in the circumstances is found to be unmeritorious. It is hereby dismissed.
The main appeal and cross-appeal having failed, the judgment of the lower court delivered on 19/12/2006 is accordingly affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I agree.

ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Ruling just delivered by my brother, Ayobode Olujimi Lokulo-Sodipe, J.C.A. I agree with him that both main Appeal and the Cross-Appeal lacks merit, ought to be dismissed and is dismissed accordingly while affirming the judgment of the lower court delivered on 19/12/2006. I also abide with the consequential order as to costs.

Appearances

Stanley Orakpo with Chinyere OrjiFor Appellant

AND

J. O. AdeleFor Respondent