BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. MR. NAPOLEON ESEALUKA
(2013)LCN/5943(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2013
CA/B/369/2009
RATIO
“In Okoli v. Okoli (2003) 8 NWLR (Pt.823) pg.565, Fabiyi JCA (as he then was) held that declaratory orders must be based on adequate exercise of discretion judicially and judiciously. Discretion is the art of being circumspect. He cited Eromini v. Ihueko (1939) 3 SC (pt.1) Pg.30, (1989) 2 NWLR (Pt.101) Pg.46. According to Black’s Law Dictionary 9th Edition, a request for a declaratory relief is an unilateral request to a court to determine the legal status or ownership of a thing. However in seeking the relief a claimant may urge the court to go further to exercise its discretion by granting certain consequential orders which would be enforceable upon the declaration sought being made in his favour.” Per OGUNWUMIJU, J.C.A.
“Mohammed JSC in Elabanio v. Dawodu opined that the phrase “cause of action” is a combination of facts and circumstances giving rise to the right to file a claim for a remedy in court. It includes every material facts which is necessary to the proved to entitle the plaintiff to succeed.” Per OGUNWUMIJU, J.C.A.
“In Ifeta v. SPDC Nig. Ltd. Supra the Supreme Court reiterated the position of the law. It is to the effect that where there has been a purported wrongful termination of a contract of service, a declaration to the effect that the contract still subsists will rarely be made. See Bankole v. NBC supra. The principle of assessment of damages for breach of contract generally is restituo in integrum – that is the Plaintiff shall be restored as far as money can do it into the correct position he would have been had the breach not occurred. The Plaintiff is not entitled to claim all manner of damages. Oguntade JSC in that case pronounced emphatically that the measure of damages where a master brings the contract of employment to an end without the requisite notice stipulated in the parties’ contract is the salary the employee would have earned had the employment been properly determined. Nigerian Produce Marketing Board v. Adewunmi (1972) NSCC Pg.662 at 665 was relied upon for this position.” Per OGUNWUMIJU, J.C.A.
“The Respondent’s brief settled by Prince Felix Nbanefo Nwoko (KSC) did not formally set out the issues identified by the Respondent from the Appellant’s grounds of appeal but contrary to the rules of brief writing argued the grounds of appeal in the Respondent’s amended brief filed on 8/6/2012. This is against the norm of brief writing as laid down in several judicial precedents stipulating that arguments must be based on issues and not on grounds of appeal. See ACME Builders Ltd. v. Kaduna State Water Board & Anor (1999) 2 SCNJ 25; Stephen Onawhosa & Ors. v. Peter Ikede Odiuzou (1999) 1 SCNJ 13; Elsie Agbai v. Samuel Okugbue (1991) 9 – 10 SCNJ 49; Abubakar Abba Tukur v. Governor of Taraba State (1997) 6 SCNJ 81. However, it is in the interest of justice that a faulty or inelegant brief should not be disregarded in any event. See ACME Builders Ltd. v. Kaduna State Water Board, supra.” Per OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
BENIN ELECTRICITY DISTRIBUTION COMPANY PLC.
(Substituted in place of National Electricity Power Authority) Appellant(s)
AND
MR. NAPOLEON ESEALUKA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Benin delivered by Hon. Justice Awokulehin on 23rd January, 2010. The facts that led to this appeal are as follows:
The Respondent herein was Plaintiff at the trial court and he was the employee of the Appellant who was Defendant at the trial court. The Respondent’s employment was confirmed in 1987 and became officer III in 1996. In 1995, a fraud took place in the Appellant’s office and the Respondent and others were arrested and charged to the Magistrate Court. In October 1996, he was interdicted and placed on half salary. He stood trial for two years and was discharged and acquitted.
During the subsistence of Magistrate Court proceedings, Respondent by a letter was invited to appear before an Ad-Hoc Administrative Panel. He denied all the allegations leveled against him.
After his discharge and acquittal by the Magistrates’ court he instructed his solicitors to write to the Appellant demanding that he be recalled to duty as he was still under interdiction. The Respondent claimed that the last letter the Respondent received from the Appellant was the letter inviting him to the Ad-Hoc panel. He did not receive any letter of dismissal OR termination of his appointment. He insisted that the outcome of the Ad-Hoc panel was never communicated to him. The Respondent said he did not move out of his residence which he moved into in 1996 and the address is well known to the Appellant.
The Appellant claimed the Respondent was dismissed from its service and the letter was sent by registered post. The Respondent filed a writ insisting that his employment was still subsisting. He claimed the following reliefs.
(a) A Declaration that the appointment of the plaintiff is subsisting having not been reviewed by the appropriate authority vested with the competence to legally do so.
(b) A Declaration that having been cleared of any complicity with regards to the allegation leveled against the plaintiff, the defendant is stopped from withholding the financial benefits, allowances and salary due to the plaintiff.
(c) A Declaration that the letter of interdiction issued to the Plaintiff in October, 1995 is not a Letter of Termination of employment or Dismissal from service.
(d) A Declaration that having failed to come up with anything negative against the Plaintiff after subjecting him to the constituted Ad-Hoc Committee by the Defendant in 1997, the Defendant is stopped from taking any step howsoever from preventing the plaintiff from continuing with his job in the Defendant’s establishment.
(e) An order directing the Defendant to immediately recall the Plaintiff to work, pay to plaintiff all his outstanding salaries/allowances from October, 1996 until completion of employment in accordance with the terms and condition of Employment. The salaries and allowances, etc. are set out below as special damages.
The Appellant insisted during the trial that the Respondent was dismissed from its service vide a letter dated 17th December, 1999 which was sent to the Respondent by registered post. The postal registration slip was tendered and admitted without objection.
The Appellant claimed that Respondent was dismissed from its service and that the letter of dismissal was sent to Respondent by registered post. However, Appellant could not show by way of any evidence that the dismissal letter was in fact received or signed for by the Respondent. The Respondent went to court insisting that his employment with the Appellant is still subsisting.
The learned trial judge in his judgment delivered on the 23rd January, 2009 declared the dismissal of the Respondent invalid on the grounds of non-delivery of the dismissal letter to the Respondent and ordered his reinstatement including the payment of all his outstanding entitlements from the date of interdiction until the date he is recalled.
The Appellant being dissatisfied with the aforesaid judgment of the trial court lodged an appeal vide its Notice of Appeal filed on the 12th February, 2009 containing 13 grounds of appeal.
From the said grounds the Appellant distilled five grounds of appeal as contained in the amended brief settled by P. O. Osemwenkha Esq. dated 8/2/2012, filed on 9/2/2012 but deemed filed on 9/5/2012. They are set out below:-
1. Whether the learned trial judge was right in ordering the reinstatement of the Respondent by the Appellant when he did not enjoy an appointment with a statutory flavor. (Grounds 1, 5 & 7).
2. Whether the learned trial judge was right in setting aside the dismissal of the Respondent when the respondent never challenged his dismissal in any of the reliefs sought from the lower court. (Grounds 2, 3, 4 & 9)
3. Whether in the circumstances of the case it can be said that the Respondent was not dismissed from the service of the Appeal. (Grounds 8 & 10)
4. Whether the learned trial judge was right in his finding that no date was pin-pointed as to when the cause of action arose in view of the evidence on record. (Grounds 6 & 11)
5. Whether the learned trial judge properly exercised his discretionary powers in ordering the reinstatement of the Respondent and the payment of all his emoluments from the date of interdiction to the date he is recalled back to work. (Grounds 12 & 13)
The Respondent’s brief settled by Prince Felix Nbanefo Nwoko (KSC) did not formally set out the issues identified by the Respondent from the Appellant’s grounds of appeal but contrary to the rules of brief writing argued the grounds of appeal in the Respondent’s amended brief filed on 8/6/2012. This is against the norm of brief writing as laid down in several judicial precedents stipulating that arguments must be based on issues and not on grounds of appeal. See ACME Builders Ltd. v. Kaduna State Water Board & Anor (1999) 2 SCNJ 25; Stephen Onawhosa & Ors. v. Peter Ikede Odiuzou (1999) 1 SCNJ 13; Elsie Agbai v. Samuel Okugbue (1991) 9 – 10 SCNJ 49; Abubakar Abba Tukur v. Governor of Taraba State (1997) 6 SCNJ 81.
However, it is in the interest of justice that a faulty or inelegant brief should not be disregarded in any event. See ACME Builders Ltd. v. Kaduna State Water Board, supra.
In the circumstances, the issues as distilled by the Appellant shall be considered in the determination of this appeal. Learned Appellant’s counsel argued issues 1 and 2 together. However, there is duplicity in the formation of the issues. Issues 1 and 5 are the same while issues 3 and 4 are the same.
Having looked at the issues as identified and argued by the appellant, I am inclined to rephrase and reorganize the germain points in controversy between the parties as follows:
1. Whether there is enough evidence to prove that the Respondent was actually dismissed from the service of the Appellant and if so did the Respondent actually challenge the dismissal.
2. Whether the trial court was right in finding that the action at the trial court was not statute barred.
3. Whether the learned trial judge was right in ordering the reinstatement of the Respondent by the Appellant as well as the payment of all his emoluments from the date he was interdicted till the date he is recalled back to work.
ISSUE ONE
Learned Appellant’s counsel in the brief settled by P.O. Osemwenkha Esq. argued that the Respondent never challenged his dismissal or the circumstances which led to his dismissal. He argued that the Respondent was indicted and recommended for dismissal by Exhibit N and was dismissed vide Exhibit O. Counsel drew our attention to the fact that the lower court predicated its order of reinstatement of the Respondent on the non-receipt of Exhibit O. Meanwhile the Appellant had tendered Exhibit P a Certified True Copy of the registration slip showing that the letter of dismissal was sent to the Respondent by registered post. The Appellant led viva voce evidence in proof thereof. This was not controverted by the Respondent who admitted under cross-examination that he still resides in the address on Exhibit P.
It was also further submitted by Appellant that it is not part of our law that for a letter of dismissal to be efficacious the plaintiff must have admitted receiving same. He was queried, interdicted, wrote written representations to the Audit panel set up by the Appellant and later appeared before an Ad-Hoc Disciplinary Committee. He was thereafter dismissed. The Respondent even admitted that his salary was stopped in 1997. In Exhibit ‘L’ & ‘M’, that is, the Respondent’s motions in suit No.FHC/B/CS/30/2000 filed before the institution of the case the subject matter of this appeal, he had sought an Order of injunction restraining the Appellant from preventing him from enjoying his position as an Officer II Accounts with the Defendant. The counter-affidavit filed in opposition thereto by the appellant exhibiting the letter of dismissal were also tendered through him under cross-examination in proof of the fact that he was well aware of his dismissal before he instituted the suit in the lower court. Counsel argued that it does not lie in the mouth of the Respondent to say he did not know of his dismissal because it is obvious he knew. Appellant’s counsel submitted that there is a presumption that a letter sent by registered post was received by the addressee. He cited Jinadu v. Esuromiti-Aro (2005) 14 NWLR (Pt.944) 142 at 180 Para. D-G; Adams v. Lindsell (1818) 1 B. and A. 681; Sagay: Nigerian Law of Contract, 2nd Ed. P. 45 – 46. The Appellant also submitted that a perusal of the reliefs by the Respondent as plaintiff at the trial court shows that he never challenged his dismissal and it was the duty of the trial court to render to the claimant only his proven claim. He cited Nigerian Airport Authority v. Orjiakor (1998) NWLR (Pt.533) 265 at 276; Okosun v. CBN (1996) 2 NWLR (Pt.428) 77 at 88. Appellant’s counsel argued that the learned trial judge was wrong in predicating the order of reinstatement on the alleged non-delivery of the letter of dismissal.
On this issue, learned Respondent’s counsel in the brief settled by Prince Felix Nbanefo Nwoko (KSC) argued that the Appellant failed to discharge the burden of proof that Exhibit O conveying dismissal was ever received by the Respondent. He cited the following authorities in aid of his submission that he who asserts must prove. Osawaru vs. Ezeiruka (1978) 6 & 7 SC 135; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) Pg. 339; Mohammed Garba v. ALHAJI MADU GAJI (2002) FWLR (Pt.84) Pg. 1 & 3, ratio 2; Reynolds Construction Co. Nig. Ltd. v. Mr. Edward Okwejiminor (2002) FWLR (Pt.121) Pg. 1934-1936, ratio 6.
Learned Respondent’s counsel argued that even Appellant’s witness Mr. Ugbo (Admin. Manager) in his evidence before the trial court, informed the court that there is no evidence to show that Exhibit O got to the Respondent.
Counsel submitted that the importance of proper notice was emphasized in the following cases cited by him.
(a) Macviec Roberts v. Sule Katagun and Ors. (1967) All NLR 127.
(b) Ogundanmi v. C. F. Furniture W. A. Co. Ltd. (1961) All NCR 862
(c) Ererami v. A.C.B. (1973) 3 SC-SC 428/75
(d) Martins v. Braithwaite (Insurance Brokers) & Co Ltd. (1992) CCHCJ/11/17, 52
(e) Graham Douglas v. A.G. Rivers State 1970 – 1972 RSCR 70 (1973) 1 NMLR 58.
Counsel argued further that this court should refer to the last paragraph of Exhibit O which stated that the Appellant should acknowledge receipt on the attached duplicate copy. No such duplicate copy as signed by the Respondent was tendered by the Appellant.
On the second leg of this issue, learned Respondent’s counsel argued that the Respondent can only challenge his dismissal if Exhibit O was actually served or delivered to him. In absence of any evidence of delivery to the Respondent, he cannot challenge what was not brought to his Notice. He cited Rock Botton Interior Ltd. v. Mohammed & Gafar (2005) All FWLR Pg.113 at Pg. 120-121. Counsel further argued that the non service or issuance of a formal letter of dismissal shows that the Respondent is still in the service of the appellant and the learned trial judge rightly stated the position. He argued that appropriate steps were not taken to terminate the appointment of the Respondent and he was still in the service of the Appellant so the issue of suing for wrongful dismissal did not arise since the Respondent never conceded that he had been dismissed.
The appellant by grounds 8 and 10 of the grounds of appeal sought to challenge the finding of fact by the learned trial judge to the effect that there was no proof that the Respondent received the letter Exhibit O wherein his dismissal from the Appellant’s service was conveyed to him. At the trial court, it appears from the judgment that the sole bone of contention between the parties was whether or not the Respondent received Exhibit O.
The learned trial judge devoted a lot of thought and consideration to that issue. At page 85 of the record, the learned trial judge held as follows:
“Again, it is important to consider the fact that the procedure for posting letters by registered mail achieves either of two aims; ensuring that the letter is received by the addressee or it is safely returned to the sender. Where a letter is received by the addressee there must be an evidence of receipt at the post office. The defendant ought to tender the necessary evidence in proof of delivery of the letter to the plaintiff. Here I agree with the submission of learned counsel for the plaintiff that posting a letter of dismissal cannot be equated with letter of offer as in the law of contract…”
At Pg. 84 of the record the learned trial judge also found as a fact –
“In the first place, a thorough perusal of Exhibit P does not show what document was actually posted by means of it. Neither was the date of postage reflected. I am left to ask the question, what if Exhibit O was not posted at all, or if it was posted at anytime, even after the commencement of this Suit? The evidence before me has only left me speculating, which is not permissible for a court of law. In Ezemba v. Ibeneme (2004) 14 NWLR (Pt.894) p. 617 at 640,
it was held that –
‘A court of law is always confined to the evidence before it. A court of law has no competence to arrive at conclusions on speculations or guess’.”
On the one hand, one is loath to encourage a scenario in which the addressee of a letter by registered post can deny receipt of such a letter, however on the other hand when there is no proof of actual postage of such a letter, the court is not entitled to speculate on that issue of fact. The very fact of a letter posted by registered post is to ensure actual and safe delivery to the addressee. The addressee is supposed to acknowledge receipt and the acknowledgment brought back to the post office. If not the Post Master would be held accountable for the letter. The learned trial judge was able to observe that Exhibit P which was the registration slip did not show the date of postage and that there is nothing to prove from the post master that the letter was delivered.
The most compelling argument in my view is that the Respondent’s solicitor wrote letters to the Appellant admitted as Exhibits F and G. Exhibit F was written on 20/10/1999 asking that the Respondent be reinstated. The Appellant ignored the opportunity to promptly respond to these letters from the Respondent’s solicitors to state categorically that the Respondent’s appointment had been terminated.
This point I must confess gave me some anxious moments. I am aware of the old Supreme Court Rules in Order VIII Rule 4(2) which provides that any notice which is required to be given shall be deemed to be duly given if forwarded by registered post addressed to the person to whom such notice is required to be given. In Monday Enweliku v. The State (1970) All NLR 57, the Supreme Court per Coker JSC was of the view that such notice is deemed to have been given on the day it was delivered for registered posting. The law is then that ordinarily if postage is proved, the termination or dismissal would take effect from the date of postage. In Jinadu v. Esurombi-Aro supra, this court held that there is a presumption that a letter sent by post was received by the addressee and that it is not open to the addressee to contend that the presumption is not available to the addressor where the addressee fails to show that the mode of delivery was other than by post. See also Akintunde v. Ojekiere (1971) NMLR Pg.91; WASA v. Kalla (1978) 3 SC Pg.21. It stands to reason that where a document is shown to have emanated from a particular person, the burden is no longer on that person to show that it was received. The presumption is activated when the document is actually shown to have been posted. Then it is presumed that it was received. The presumption of receipt must be rebutted by the addressee. The catch here is that the Appellant conceded that it posted several letters by registered mail to the Respondent. The slip shown as Exhibit P could have been in respect of the postage of any letter on any day. The presumption that the letter was received can only be activated if there is no dispute regarding whether it was actually posted on the stated date or not. However, the problem in this case at hand is that I physically examined Exhibit P tendered at the trial court and have to agree that the registration slip Exhibit P did not show the date of postage and no proof was forthcoming from the post office of the date the letter was actually posted or delivered. Knowing that non receipt of the notice was the crux of the Respondent’s case, the Appellant as Defendant at the trial court should have made more effort to prove that there was postage of the letter on a particular date.
In the circumstances, I have to agree with the finding of the learned trial judge that indeed the Respondent was not formally informed of his dismissal from the service of the Appellant as at the date claimed by the Appellant. See ACB v. Ewarami (1978) 11 NSCC Pg. 269.
The 2nd leg of this issue is the Appellant’s submission that the learned trial judge was wrong to have set aside the Respondent’s dismissal when the Respondent never challenged his dismissal in court. I find myself unable to agree with the learned counsel for the Respondent that the learned trial court was right when it decided that because the Appellant could not prove delivery of the letter of dismissal, the Respondent’s employment still subsisted as at the date of the judgment.
The Respondent averred in paragraph 20 of his statement of claim that his half salary had been stopped since May 1997 after he was interdicted. At Pg.29 – 30 of the record, Exhibit M was tendered through the Respondent. It is a counter affidavit filed by the Appellant dated 30/4/2000 which was not denied by Respondent. Attached to the counter-affidavit was the copy of the letter of dismissal. In essence by May 2000 when the Respondent was served with a copy of the letter of dismissal by way of an Exhibit attached to an affidavit he had constructive notice of his dismissal from service. I agree with learned Appellant counsel’s argument on that point. I do not think it is credible that he should continue to ignore the fact that he had been dismissed after he filed a motion to force the Appellant to pay him and the Appellant replied with a counter-affidavit that he had been dismissed. Thereafter he filed an action claiming that he had not been dismissed. It would be ridiculous to agree that he had not received constructive notice of his dismissal. He ought to have sued for wrongful dismissal. Then the learned trial court would have had to decide whether he was wrongfully dismissed or not and this court would have been able to review said decision.
This issue is partially resolved in favour of the Appellant.
ISSUE TWO
This issue turns on whether or not the trial court was right in finding that the action was not statute barred. On this issue, learned Appellant’s counsel argued that the fact of the suit being statute barred was pleaded in paragraph 15 of the Appellant’s Further Amended Statement of Defence wherein it claimed that the suit was instituted in violation of the Public Officer’s Protection Act being instituted well outside the three months prescribed by law. Counsel argued that the Respondent action was predicated on an interdiction on 22nd October, 1996 and stoppage of his salary on May, 1997. He referred to paragraphs 17, 20, 21, 22 and 27(c-e) of his Further Further Amended Statement of Claim.
He further argued that in view of the evidence on record it cannot be found as erroneously held by the trial judge that no date can be pin pointed as to when the cause of action arose. He pointed out that the Plaintiff was interdicted on 22nd October, 1995 and his salary was stopped in May, 1997 whereas he filed this suit on 1st June, 2000 more than 3 years and 8 months after the interdiction or more than 3 years and 1 month after the stoppage of his salary. It is also instructive that the Respondent was dismissed vide Exhibit N on 17th December, 1999.
He argued that if we look at the Respondent’s case from another standpoint his case is also bound to collapse. By paragraphs 21 and 22 of the Further Amended Statement of Claim, Plaintiff stated that his solicitors wrote the Defendants on 20th October, 1999 asking for his reinstatement. A reminder was written on 2nd February, 2000. He tendered both letters as Exhibits F and G. So if the court counts even from 2nd February, 2000 when his counsel wrote the said reminder to the Appellant to 1st June, 2000 when the action was instituted it is evidently 3 months and 27 days, well over the 3 months stipulated by law. He cited Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt.584) Pg.1 at pg.31-32; Offobochie v. Ogoja Local Government (2001) 16 NWLR (Pt.739) pg.458 at pg.490. He also submitted that it is immaterial that the alleged wrong is continuing. He cited the following cases of Adigun v. Ayinde (1993) 8 NWLR (pt.313) 516 at Pg.534-535; Grains Production Agency v. Ezegbulem (1991) 1 NWLR (pt.587) 399 at Pg.407.
In reply, learned Respondent’s counsel argued that at the trial court, the Appellant raised the issue of Public Officer’s Protection Act, claiming that the action was statute barred and ought to be dismissed. The trial court in a considered ruling disagreed with Appellant’s counsel submission. Respondent’s counsel complained that the Appellant did not appeal against the interlocutory ruling within time and ought to seek leave to do so at this court being a question of mixed law and fact. He conceded that an Appellant can marry an interlocutory with a final appeal so long as he obtains leave to appeal out of time against the interlocutory appeal. In view of the time limit prescribed by S. 25(2) of the Court of Appeal Act, otherwise, there would be no competent appeal in respect of the interlocutory decision. He cited the following cases New Nigeria Bank PLC v. Dencleg Ltd. & Anor. 2004 All FWLR (Pt.228) 606 at Pg.636-637 C.A.; Elom Onwe Oke & Ors. v. Eze Nwa Ogbuniya & Ors. (2001) 1 SC (Pt.22) at Pg.29-31; (2001) FWLR (pt.37) 1031 at Pg.1042 SC; Chief Maduabuchukwu v. Engr. Maduabuchukwu (2006) All FWLR (Pt.318) 695 at Pg.712 C.A.; In Okeke v. Petmag Nigeria Ltd. (2005) All FWLR (Pt.263) 760 at Pg.773 C.A.; Adejobi v. The state (2011) vol. 198 LRCN 41 at Pg.59.; Iyanda v. Amori (2006) (4) NWLR (pt.1000) p.474 at Pg.484.
Respondent’s counsel further insisted that as long as there is no evidence that Respondent was formally dismissed from service, his employment still subsist, and that the cause of action can only start to run when the Respondent receives a letter of dismissal. He cited Ibrahim v. Judicial Service Commission supra. He also referred us to Gulf Oil Co. Nig. Ltd. v. Chief Ometa Oluba & Ors. (2002) 12 NWLR (pt.780) p.92 at pg.98.
In the Appellant’s reply brief, Appellant’s counsel urged the court to be bound by the record before the court which did not include any ruling delivered on the issue by Awokulehin, J.
I must mention that there was an attempt by the Respondent vide motion dated on 6/7/2012 filed on 10/7/2012 to bring in a ruling delivered by G. O. Kolawole J. on 16/3/2004 in respect of this issue. The motion was struck out by this court on 26/9/2012. Be that as it may and needless to say, we are bound by the record transmitted by the trial court until it is successfully impugned before us. See Texaco Panama Inc. v. Shell PDC Ltd. (2005) 5 NWLR (Pt.759) Pg.209 at Pg.234. I have to say that the issue of limitation was raised in the Appellant’s Statement of Defence and in the address of counsel and the trial judge pronounced on it, therefore, the question of raising it with leave of court here does not arise.
In any event, we are bound by the pleadings. That is to say that the issue of jurisdiction, to wit that the Respondent’s claim was statute barred having been instituted in violation of the Public Officers (Protection) Act was duly pleaded in paragraph 20 of the Appellant’s 2nd Amended Statement of Defence (p.17 of the record of appeal) and in the Appellant’s written address (see p.46 – 47) of the record.
The learned trial judge held as follows on Pg.86 of the record.
“In the circumstances, I hold that Exhibit O the purported letter of dismissal of the Plaintiff herein is ineffectual for non-delivery of same to the Plaintiff. With my holding as above, the question of the Plaintiffs action being statute barred as canvassed by Defendant’s counsel is of no moment as what the court looks at is when the wrong which gave the Plaintiff a cause of action was committed and compare that date with the date on which the writ of summons was filed. See Golf Oil Company (Nig) Ltd. v. Chief Ometa Ozuba & Ors. (2002) 12 NWLR (Pt.780) p.92 at 98. In the instant case, no date can be pin-pointed as when the Plaintiffs cause of action arose.”
As I have held earlier, the Respondent is deemed to have constructive or imputed notice of his dismissal since April, 2000. He filed his writ of summons on 1/6/2000 within the three months provided by law. Thus his action was not statute barred. The second issue is resolved against the Appellant.
ISSUE THREE
The last issue is really whether the learned trial judge was right to have made the orders for payment of arrears of salary and reinstatement of the Respondent.
Learned Appellant’s counsel argued that the case of the Respondent at the lower court was that he enjoyed an ordinary contract of service regulated by the handbook and condition of service of the appellant which is Exhibit 1.
Learned appellant’s counsel is of the view that the contract between the parties was a mere contract of service and not one with statutory flavor. Counsel submitted that the learned trial judge erred because throughout the gamut of the judgment the learned trial judge did not address this salient issue of the nature of appointment enjoyed by the Respondent to enable him determine whether or not the relief of reinstatement is available to him, this is notwithstanding the fact that same was copiously addressed on by Appellant’s counsel. Counsel submitted further that it is a hallowed principle of law as established by a plethora of authorities that the removal or dismissal of an employee who enjoys an ordinary Contract of Service (as in the instant case) is to be governed by the Conditions of Service in contrast to employees who enjoy appointments with a statutory flavor. Any other form connotes wrongful termination or dismissal but does not make such dismissal null and void. He cited Isievwore v. NEPA (2002) 13 NWLR Pt.784 at Pg.417. Appellant’s counsel also argued strenuously that the trial court was wrong not to have followed the principle laid down by the Supreme Court in Isievwore v. NEPA to the effect that conditions of service enjoyed by National Electric Power Authority (NEPA) staff was that of an ordinary contract of service and was not one with statutory flavor. He submitted that the precedent was binding on the trial judge. He cited Emerah & Sons Ltd v. Attorney General, Plateau State (1990) 4 NWLR Pt.147 Pg. 788 at 801. Counsel further submitted that since the contract of employment is not governed by statute, the court was wrong to make an order of reinstatement and arrears of salary. He argued that a wrongfully dismissed employee cannot claim wages for services not rendered. He cited P & HSC LTD. v. Muglo My Ltd. (2009) 11 NWLR Pt.1153 Pg.611 at Pg.643; Olatunbosun v. NISER (1988) 3 NWLR Pt.80 Pg.25 at Pg. 55-56. He cited UBN v. Ogboh (1995) 2 NWLR Pt.380 Pg.647 at Pg.664; Fakuade v. OAUTH (1993) 5 NWLR Pt.291 Pg.47 at Pg.62 – 63; Dr. Chukwumah v. Shell Petroleum Development Co. Nig. Ltd. (1992) 4 NWLR Pt.289 pg.512 at pg.560; Geidam v. NEPA (2001) 2 NWLR Pt.696 Pg.45 at Pg.59. He argued that the trial judge misunderstood the purport of the Supreme Court judgment in Imoluame v. WAEC (1992) 9 NWLR pt.256 pg.303.
In reply, learned respondent’s counsel argued that the employment of the Respondent was never determined as there was no evidence of such a termination or dismissal properly before the court. Counsel opined that since the employment was never determined, the issue of the nature of the employment does not arise. He insisted that Isievwore v. NEPA supra is inapplicable to this case because in that case the employee had sufficient knowledge of his termination and the remedy available to him was different. Counsel submitted that the case made out by the Respondent is one of non-dismissal not wrongful dismissal and to that extent his appointment was never terminated. Counsel rejected the applicability of UBN v. Ogboh supra and Dr. Chukwumah v. Shell Petroleum supra to the facts of the case. Learned Respondent’s counsel argued that it is now trite in labour/industrial law practice that once an employer alleges criminality on the part of a staff, it must be proved in a competent court otherwise he cannot be sacked, disciplined or dismissed based on such allegation. Hence the learned trial judge held that Respondent is still a staff and entitled to all his emoluments.
Learned Respondent’s counsel also argued that the issue of statutory flavor arises where termination or dismissal is properly done through proper service of a letter of dismissal. He referred to Olatunbosun v. NISER, supra and Imoloame v. WAEC.
Let me make clear here that the case of the Respondent at the lower court is that he enjoyed an ordinary contract of service with the Appellant which was regulated by the Handbook and conditions of service of the Appellant which he tendered as Exhibit 1. Mohammed JSC in Elabanio v. Dawodu opined that the phrase “cause of action” is a combination of facts and circumstances giving rise to the right to file a claim for a remedy in court. It includes every material facts which is necessary to the proved to entitle the plaintiff to succeed.
I have read Isievore v. NEPA cited by Appellant’s counsel. In that case the Supreme Court construed the conditions of service enjoyed by NEPA staff (who were the employers of the Respondent when the cause of action arose in this case) and held that same was that of an ordinary contract of service. With the greatest respect to the learned Respondent’s counsel, the trial court was bound by that decision. Onu, JSC stated the law emphatically thus at Pg.435 of the NWLR:
“The court below was thus right, in my view, in holding that even if the retirement of the Appellant was wrongful his remedy was in damages and not be reinstated since doing so would amount to imposing a willing servant on an unwilling master. It is in this wise that I will discountenance the Appellant’s submission that his retirement be regulated by the Pensions Decree. This is moreso that the relationship between the Appellant and the Respondent was at all material times that of ordinary master/servant. There is no statute or law protecting the relationship in terms of what procedure to observe or must be observed in order to bring the relationship to an end. What indeed regulated the procedure was Exhibit P2 – the handbook and therefore if there was a breach (which is not conceded), it is only the conditions of service that would be applicable…”
There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.
Having said that, a careful reading of the judgment of the trial court would show that the issue of the nature of the employment of the Respondent was not the basis of the court’s decision in making the discretionary orders.
The learned trial judge based his judgment on the fact that there was no dismissal and afortiori the Respondent was still entitled to all the salaries and allowances and reinstatement to his position. In that con, I would have agreed with that conclusion on the basis of the authority of ACB v. Ewarami (1978) 11 NSCC pg.269.
I have taken a close look at ACB v. Ewarami supra where the Supreme Court held that the learned trial judge in a similar situation where it found that the employer did not prove that it had given notice of dismissal to the employee that the trial judge had an unfettered judicial discretion to make the declaratory orders sought. The Supreme Court cited Hanson v. Radcliff UDC (1922) 2 Chancery pg.490 at pg.507 where Lord Sterndale M.R. held on declaratory orders as follows:
“The power of the court to make a declaration where it is a question of defining the rights of two parties is almost unlimited; and I might say only limited by its own discretion. The discretion should of course, be exercised judicially but it seems to me that the discretion is very wide.”
The court also relied on the Dictum of Banks L.J. in Guaranty Trust Coy of New York v. Hanney & Co. (1915) 2 KB p.536 at 572, wherein his Lordship stated inter alia as follows:
“There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation, I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors. I think the rule should receive as liberal a construction as possible.”
In Okoli v. Okoli (2003) 8 NWLR (Pt.823) pg.565, Fabiyi JCA (as he then was) held that declaratory orders must be based on adequate exercise of discretion judicially and judiciously. Discretion is the art of being circumspect. He cited Eromini v. Ihueko (1939) 3 SC (pt.1) Pg.30, (1989) 2 NWLR (Pt.101) Pg.46. According to Black’s Law Dictionary 9th Edition, a request for a declaratory relief is an unilateral request to a court to determine the legal status or ownership of a thing. However in seeking the relief a claimant may urge the court to go further to exercise its discretion by granting certain consequential orders which would be enforceable upon the declaration sought being made in his favour.
I am of the humble but firm view that while it would be equitable to grant the relief of arrears of salary and allowances till the Respondent’s employment was terminated in April 2000. It would run against all principles of common law and equity to order his reinstatement to the employment of the Appellant. To order reinstatement would go against the acceptable principles governing the relationship between the parties since both parties are ad idem as to the fact that there exists only a contract of service between them and the employment was not one imbued with statutory flavour. In Ifeta v. SPDC Nig. Ltd. Supra the Supreme Court reiterated the position of the law. It is to the effect that where there has been a purported wrongful termination of a contract of service, a declaration to the effect that the contract still subsists will rarely be made. See Bankole v. NBC supra. The principle of assessment of damages for breach of contract generally is restituo in integrum – that is the Plaintiff shall be restored as far as money can do it into the correct position he would have been had the breach not occurred. The Plaintiff is not entitled to claim all manner of damages. Oguntade JSC in that case pronounced emphatically that the measure of damages where a master brings the contract of employment to an end without the requisite notice stipulated in the parties’ contract is the salary the employee would have earned had the employment been properly determined. Nigerian Produce Marketing Board v. Adewunmi (1972) NSCC Pg.662 at 665 was relied upon for this position.
The interesting aspect of this case which perhaps makes it a hybrid is the fact that the plaintiff now Respondent did not claim wrongful dismissal but lack of notice of dismissal. In that con, I do not think it was right for the trial judge to make an order of reinstatement in a master/servant relationship not governed by statutory law or with statutory flavour. As I have imputed legal notice of the Respondent’s dismissal by end of April 2000, then the Respondent was only entitled to his salary from the date he was interdicted on half pay till end of April 2000 when he received constructive notice of his dismissal. That is the discretionary resolution that accords with the Law, equity and common sense. I hereby order that the Respondent be paid his full salaries and allowances due to him from 22nd October 1996 when he was put on half pay till April 2000. The appeal against the judgment delivered on 23/1/2009 in Suit No.FHC/B/CS/83/2000 succeeds in part. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother H. M. OGUNWUMIJU J.C.A, which I am in complete agreement with. The appeal succeeds in part.
I abide with the order as to costs contained in the lead Judgment.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in advance the lead judgment of my learned brother, Ogunwumiju, JCA. I am in full agreement with the reasoning and conclusion reached therein that the appeal succeeds in part and ought to be allowed.
In the circumstance, I only not adopt the lead judgment as mine, but also abide by the consequential orders made therein including the order relating to costs.
Appearances
P. O. Osemwenkha Esq.For Appellant
AND
Prince Felix Nbanefo Nwoko (KSC)For Respondent
