BENJAMIN UKELERE v. FIRST BANK OF NIG. PLC (2011)

BENJAMIN UKELERE v. FIRST BANK OF NIG. PLC

(2011)LCN/4690(CA)

In The Court of Appeal of Nigeria

On Monday, the 11th day of July, 2011

CA/J/1/2004

RATIO

NOTICE OF APPEAL: REQUIREMENTS OF LAW ON THE CONTENT OF A NOTICE OF APPEAL

By Order 6 Rule 2(1) Court of Appeal Rules, 2007 a notice of appeal is required to state whether the whole or part only of the decision of the court below is complained of. Where an appellant is complaining against part only of a decision, he is required to specify the part of the judgment and formulate grounds of appeal based on the said part of the decision complained against. Any ground raised from the other parts not appealed against becomes incompetent. See Oseyoman v. Ojo (1993) 6 N.W.L.R. (pt.229) 344. PER UCHECHUKWU ONYEMENAM, J.C.A

ISSUES FOR DETERMINATION: EFFECT OF AN ISSUE FOR DETERMINATION THAT IS NOT RELATED TO ANY OF THE GROUNDS FILED IN AN APPEAL

Issues for determination formulated in a brief of argument must be distilled from the grounds of appeal filed. Any issue that is not related to any of the grounds filed is irrelevant and goes to no issue. Consequently any argument in the brief in support of such issue ought to and must be discountenanced by the court. See Amadi V. NNPC (2000) 6 SC (Pt.1) 66 at 72; Shitta-Bey V. A. – G., Federation (1998) 10 NWLR (Pt. 570) 392. The appellant’s counsel stated that issue no. 1 arises from grounds 1, 2 and 3 of the grounds of appeal. I have examined grounds 2 and 3, I do not see anything either in form or in substance that relates issue no.1 with them. In other words issue no. 1 does not arise from grounds 2 and 3 in any way. In my opinion issue no.1 stems from ground 1 which unfortunately has been struck out. Consequently, issue no.1 has no nexus with the part of the decision of the lower court appealed against nor with any of the grounds raised there from. I therefore hold that issue no. 1 is incompetent and is accordingly struck out. PER UCHECHUKWU ONYEMENAM, J.C.A

REPLY BRIEF : WHEN IS A REPLY BRIEF NECESSARY AND ITS FUNCTION

A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply. Where a reply brief is necessary, it should be limited to answering new points arising from the respondent’s brief, See Olafisoye V. F. R. N. (2004) 4 NWLR (Pt.864) 580. PER UCHECHUKWU ONYEMENAM, J.C.A

TERMS OF AGREEMENT: EFFECT OF THE TERMS OF AN AGREEMENT ON THE PARTIES

The law is fixed that Parties are bound by their agreements. His Lordship Nnaemeka – Agu, J.S.C opined; “That parties enjoy their freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are invariably, the guide to its interpretation.” See Baba V. Civil Aviation (1991) 2 NSCC 145 at 152 lines 43 – 47. PER UCHECHUKWU ONYEMENAM, J.C.A

INTERPRETATION OF STATUTE: WHETHER THE PROVISIONS OF THE PENSIONS ACT CAP. 346 LFN 1990 IS APPLICABLE TO EMPLOYEES OF A BANK

Finally on the issue of pension, I want to state that Section 3 (2) (b) and (c) of the Pensions Act Cap. 346 LFN 1990 is not applicable to this case which is between respondent (bank) and the appellant (clerk). The Pensions Act applies to employees in the public service of the Federation, the appellant did not give evidence to show that he is either a Public servant or that the Pensions Act applies to the employees of the respondent. PER UCHECHUKWU ONYEMENAM, J.C.A

GENERAL DAMAGES: WHAT ARE GENERAL DAMAGES

JUSTICES

MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

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

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

BENJAMIN UKELERE – Appellant(s)

AND

FIRST BANK OF NIG. PLC – Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment): This is an appeal against part of the decision of the High court of Benue state, holden at Makurdi, delivered by Hon. justice E.N. kpojime on 10:1:2003, The appeal is in respect of appellant’s alternative reliefs for special and general damages and on the counter claim. The appellant dissatisfied with the part of the decision complained of filed a notice of appeal with four grounds on 3:4:2003.

By the evidence at the lower court, the appellant employed by the respondent on 20:5:1980 worked at her Makurdi branch until 19:11:1996 when he was served with Exhibit C a letter of retirement. Aggrieved, the appellant filed a suit against the respondent claiming reinstatement, special and general damages against the respondent for unlawful retirement. The appellant’s amended statement of claim dated 18:11:1999 is at pages 26-28 of the record.

The appellant was the sole witness for himself. In the course of oral examination he tendered Exhibit t, a certificate of long-service; Exhibit 2, a booklet titled “Employee Code of Conduct and Ethical standard Guidelines”; Exhibit 3, letter titled “RETIREMENT”. The appellant admitted receiving letter of employment which contains terms of employment. He also admitted knowledge of Collective Agreement between him and the respondent. He stated that after he was served with Exhibit 3, he wrote to the defendant demanding his retirement benefits but he was informed that his gratuity has been used to reduce his indebtedness to the bank while his pension would commence from 31:10:2004 when he would have reached the age of 45years. The appellant testified that the original of his letter of employment was destroyed by fire but that he had the photocopy of same.

In their further amended statement of defence dated 30:5:2001 the defendant at paragraph 11 counter claimed as follows:

(a) “A declaration that the plaintiff was indebted to the Defendant to the tune of N1286, 007.76 and that the Defendant was right and entitled to deduct the plaintiff’s indebtedness from his entitlements to reduce the plaintiff’s outstanding debts to the defendant to N152,77.06 to be paid by the plaintiff to the defendant. The Defendant pleads all relevant documents and records of the loans taken and the positions of the plaintiff’s financial involvements with the Defendant.

(b) The Defendant/counter claimant shall rely on all the facts (averred in defence of the suit) in support of his counter claim”

Mr. Adie Solomon Terngu, a staff of the defendant was the sole witness for the defence. Exhibits D1 – D23 comprising of series of queries issued to the appellant for dereliction of duty, inefficiency, insubordination, indiscipline etc. were tendered through Mr. Terngu (DW1). According to Dw1 the terms of service guiding the plaintiff’s employment with the defendant are contained in the plaintiff’s letter of employment and in the collective agreement between the defendant and its employees and not in Exhibit 2. He enumerated the various loans given to the plaintiff by the defendant and stated further that even after the plaintiff’s gratuity was used to off-set the loans, he is still indebted to the defendant to the tune of N152,577.00 which they are claiming in their counter-claim. He tendered Exhibits F1, F2, F3, G1 and G2 to show the various loans the plaintiff took from the defendant. The Exhibits are as follows:

Exhibit F1 – Application for Car loan N48,000.00.

Exhibit F2 Re: Building loan – N49,000.00.

Exhibit F3 – Application for rent advance – N21,600.00 –

Two years advance rent.

Exhibit G1 – Approval of the car loan

Exhibit G2 – Acknowledgement of receipt of the car loan approval.

Dw1 denied the assertion by the plaintiff that his retirement is unlawful and irregular.

After due consideration of both the oral and documentary evidence led by each side, the submissions of the learned counsel for the parties, the learned trial Judge in a considered judgment delivered on 10:1:2003 made the following orders:

1. “The claim for the declarations sought in paragraph 13 (a) and (b) of the amended statement of claim dated 18th November, 1999 is hereby refused for lacking in merit.

2. The claim of special damages contained in paragraph 13 (c) of the claim is also dismissed as lacking in merit.

3. The claim for N10 million and alternative claim for N12 million for unlawful retirement are also dismissed for lacking in merit.

4. Although the claim for the sum of N133 430.70 gratuity succeeds, the plaintiff cannot be paid this entire amount in view of the set-off from the counter claim. The plaintiff is only entitled to the difference if any, after the deduction of the monthly repayments on the loans from the date of his retirement to the date of this judgment.

5. As regards the claim for the payment of pension, the plaintiff shall be entitled to the said payment upon reaching the pensionable age of 45 years.

6. The counter claim succeeds, as per the terms of this judgment. That is, only the monthly repayments due on the loans from the date the plaintiff was retired, up to the date of this judgment”.

See pages 122 – 123 lines 1 – 2 of the record.

Not satisfied with part of the judgment of the lower court, the appellant has appealed to this court seeking that the judgment and orders of the trial court dismissing appellant’s claims be set aside. Briefs of argument were duly filed and exchanged by the parties. The appellant’s brief dated 9:3:2004 and filed on 11:3 :2004 was settled by B.U. ohene Esq. The respondent’s brief dated 5:7:2004 and filed on 13:7:2004 but deemed filed on 2:2:2005 was settled by C.A. Ujah Esq. The appellant also filed a reply brief dated 2:3:2005 and filed on 4:3:2005 but deemed filed on 16: 5:2005.

The appeal was heard on 23:5:2011 B.U Ohene Esq. for the appellant and C.A. Ujah Esq. for the respondent adopted and relied on their respective briefs of argument, while Mr. Ohene urged the court to allow the appear, Mr. Ujah urged the court to dismiss the appeal.

The appellant formulated 3 issues for determination:

1. “Whether or not the Appellant/Plaintiff has proved that his compulsory retirement was unlawful.

2. whether or not the Appellant/Plaintiff proved his claim for special and general damages.

3, whether or not the Respondent has Proved her counter claim”

The respondent formulated the following 3 identical issues with little modification on issue no. 1. The issues are:

(a) “Whether the appellant proved that his retirement was unlawful as being contrary to the contractual terms and conditions of employment between him and the respondent.

(b) Whether the appellant proved his claims for special and general damages.

Before I consider the issues formulated by the parties I want to reiterate that the appellant did not appeal against the whole decision of the lower court. In the notice of appeal, under the part of the decision of the lower court complained of; it reads:

“The decision in respect of Appellant/Plaintiff’s alternative claims for special and general damages and on the counter claim”.

Also at page 4 paras . 4.08 4.09 of the appellant’s brief it was stated categorically that:

“The Appellant does not wish to contest the portion of the court’s judgment refusing reinstatement.

Appellant is herein contesting the decision of the trial court refusing the alternative claim for gratuity of N133,430.70 and pension of N26,001,88 and general damages of N12m naira.”

By necessary implications therefore; The appeal is not against the court’s decision refusing to declare the retirement of the appellant unlawful nor the refusal to grant his reinstatement under paragraph 13 (a) and (b) of the amended statement of claim; nor against the special and general damages under paragraph 13 (c) and part of 13 (d) of the amended statement of claim; appeal is against paragraph 13 (d) stating:

“OR IN THE ALTERNATIVE.

An order for the payment of the plaintiff’s gratuity of N133 430.70 and annual pension of N20,001.88 for 1996, 1997, 1998 and 1999 and General Damages of N12,000,000.00 (twelve million naira) being general damages for unlawful retirement.”

The appeal is also against the respondent’s counter claim.

For ease of understanding of the judgment, I shall at this point reproduce the reliefs sought at paragraph 13 of the appellant’s amended statement of claim. Paragraph 13 states:

13. “WHEREOF the plaintiff has suffered severe damages as a result of the acts and negligence of the Defendant and claims against the Defendant the following reliefs:-

A declaration that the purported retirement of the plaintiff is null, void and of no effect.

A declaration that the plaintiff is still in the employment of the Defendant.

SPECIAL DAMAGES:

And order for the payment of all the outstanding salaries and allowances due to the Plaintiff viz annual salary of N40,000.00 Allowance N72,000.00 (seventy two thousand naira) from November, 1996 to date of actual reinstatement, on a pro-rata basis.

General damages of N10,000,000.00 (ten million naira) for unlawful retirement or IN THE ALTERNATIVE”.

The alternative claim is as already reproduced above. See page 28 of the record.

Ground one of the grounds of appeal states:

“The learned trial Judge erred in law when he held that Appellant had not proved that his dismissal is unlawful”

From a careful examination of ground one of the grounds of appeal; the relevant portions of paragraph 13 of the amended statement of claim; the orders contained in the decision of the court on 10:1:2003; I am of the firm view that ground 1 of the grounds of appeal is not raised from the part of the decision of the lower court complained against by the appellant. Accordingly, I hold that the said ground is incompetent and is hereby struck out.

I have considered the issues formulated by the parties, I am of the view that the issues as formulated by the appellant will very well dispose of the issues in dispute in this appeal. I therefore adopt the issues distilled by the appellant and will consider them serially. But before I proceed to consider the issues, I have yet another hurdle to cross in view of the fact that the appellant did not appeal against the whole decision of the lower court and more importantly the fact that I have held that ground 1 of the grounds of appeal is incompetent. I must at this point resolve whether issue no.1 is distilled from any of the grounds of appeal relating to the part of the decision of the lower court complained of.

Having struck out issue no, 1, what is left of the issues are issues nos. 2 and 3 which I herein renumber as issues nos. 1 and 2. Counsel for the appellant divided issue no. 1 into the following subheadings for the convenience of argument:

(a) Special Damages (i) Gratuity (ii) Pension

(b) General Damages.

He submitted that gratuity of N133,430.70 was pleaded in appellant’s amended statement of claim and evidence led to that effect. He contended that the respondent’s amended statement of defence did not challenge the said pleading nor was evidence led to controvert appellant’s evidence on this. It is trite that facts not denied in pleadings are deemed admitted and facts for which such uncontroverted evidence is given is deemed proved. Learned counsel relied on: Kyari V. Alkali (2001) All FWLR (Pt. 60) 1484; Okoli V. Morecabs Finance Nig. Ltd. (2001) All FWLR (Pt. 60) 1597; Mobil Producing United V. Monokpo (No. 2) (2001) All FWLR (Pt.78) 1210.

Mr. Ohene of counsel submitted that the trial court rightly held that it was improper for the respondent to convert the whole of appellant’s gratuity to offset the appellant’s debt to the bank since the terms of repayment of the loans are regulated by the loan agreements Exhibits G1, F2, and F3.

Learned counsel however contended that the trial court was wrong to have failed to make the necessary consequential order that the appellant’s claim succeeds. On the fact that parties are bound by their agreements, he relied on: Baba V. Civil Aviation (1991) 2 N.S.C.C. 145

On the appellant’s claim for pension, the learned counsel submitted that the Dw1’s evidence that the appellant is only entitled to pension when he attains the age of 45years goes to no issue since that piece of evidence was not pleaded. He referred to: Nitel v. ocholi (2001) FWLR (Pt. 74) 254.

Counsel argued that while Exhibit 2 did not make the attainment of 45 years a condition for the payment of pension, Exhibit 3 makes reference to the payment of gratuity and pension upon retirement. He contended that Exhibit L is at variance with Exhibit 2 and 3 which makes the evidence of the respondent contradictory and as such should be discountenanced by the court. Learned counsel finally submitted that the appellant proved his claim for special damages due and payable to him upon retirement. He referred to: Sections 137 and 139 of the Evidence Act, Cap 112, Laws of the Federal Republic of Nigeria. Comet Shipping Agencies Ltd. v. Babbitt (2001) All FWLR. On general damages learned counsel basically repeated his submissions as summarised above and added that both the pleading and evidence of the appellant proved the very severe financial and social hardship which the compulsory retirement caused him and the members of his family; the destruction of the source of his livelihood and maximum job expectancy. He highlighted the fact that the lower court had conceded the possibility of granting general damages as a remedy to the appellant. He referred to page 114 lines 6-9 of the record.

In response, the learned counsel for the respondent anchored his submissions on the fact that by the pleadings, evidence and decision of the trial court, the appellant did not prove unlawful retirement consequent upon which that claim was dismissed. His submissions were also hinged on the fact that the appellant has appealed against part of the decision of the court below. It was his submission therefore that since the appellant admitted his indebtedness to the bank and did not

deny the respondent’s counter claim the orders of the learned trial Judge in respect of the appellant’s gratuity was in tune with the agreement of the parties as parties are bound by their agreement.

On the annual pension of the appellant, Mr. Ujah of counsel submitted that as was rightly found by the trial court neither Exhibit 2 which does not contain any contractual terms, conditions of employment or provisions that entitles the appellant to pension immediately upon his retirement nor Section 3 (2) (b) (c) of the Pensions Act Cap . 346 LFN 1990 is applicable to this case. It was also his submission that apart from paragraph 6 of the respondent’s amended statement of defence which pleaded 45 years as the age the appellant will be due for pension, the respondent’s oral evidence to that effect, the respondent by Exhibit L pleaded by the appellant informed the appellant that his pension will begin to run from when he attains the age of 45 years. He referred to pages 26, 48 and 85 lines 1-2 of the record. Learned counsel contended that Exhibit 3 dated 19:11:1996 and Exhibit L dated 16:6:1997 are not at variance with each other.

As for the general damages Mr. Ujah of counsel submitted that the learned trial Judge duly considered the appellant’s alternative claim for N12 million naira for unlawful retirement at page 114 lines 16-27 of the record and thereafter dismissed same for lacking in merits. Mr. Ujah finally urged the court to dismiss the appeal.

I am not unmindful of the appellant’s reply brief. A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply. Where a reply brief is necessary, it should be limited to answering new points arising from the respondent’s brief, See Olafisoye V. F. R. N. (2004) 4 NWLR (Pt.864) 580. The only issue of law raised in the appellant’s reply brief is on ground 1 and issue 1 which have been struck out. Other submissions in the reply brief amount to rearguing the appeal. The submissions did not answer any new issue raised by the respondent. The said reply brief does not abide by the purpose of reply brief in law.

It is therefore of no moment and I have accordingly discountenanced same.

on issue no. 1, the appellant’s contention is that he was entitled to his entire gratuity of N133, 430. 70 without any deductions there from to reduce his indebtedness to the respondent. The appellant appeared to have maintained the posture that notwithstanding the fact that the terms of the loans provided for monthly deductions; regardless of the counter claim for the repayments; since the duration of full payment of the loans had not lapsed the agreed monthly deductions should not be made from the gratuity. The law is fixed that Parties are bound by their agreements. His Lordship Nnaemeka – Agu, J.S.C opined;

“That parties enjoy their freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are invariably, the guide to its interpretation.”

See Baba V. Civil Aviation (1991) 2 NSCC 145 at 152 lines 43 – 47.

At no time was gratuity in issue at the lower court. Also not in issue and correct facts before the lower court are the facts that; the appellant was compulsorily retired; his gratuity upon retirement was N133,430.70; from the several loans he took while in service he was indebted to the respondent to the tune of N286,007.76 at the time of his retirement; that by the loans agreements a monthly deduction of N500.00 was made from his salary for each of the loans for the purpose of offsetting them; that contrary to the agreement of the parties the respondent converted the whole of the appellant’s gratuity to reduce his indebtedness from N286,007.76 to N152,577.06.

Based on these facts, the learned trial Judge held that the respondent was wrong to have deviated from the terms of their agreement by paying itself in advance from the gratuity of the appellant. She added that since the appellant did not default in his repayment before his retirement and the loan was not proved to be tied to the appellant remaining in the respondent’s employment; all that the respondent would be entitled to as at the date of judgment, is the monthly repayment which had accrued from the appellant’s date of retirement till 10:1:2003 and the interest at two percent per annum. This decision of the lower court is based on sound reason and does not occasion a miscarriage of justice, I will not interfere with it. I want to observe that before the learned trial Judge made order as to the manner in which the appellant’s indebtedness to the respondent could be recovered by the respondent through his gratuity, the court held: “Although the claim for the Sum of N133,430.70 gratuity succeeds,. ….” See order no. 4 at 122 lines 17-18 of the record. I do not see in any way in record where the trial court found or held page that the appellant’s claim for gratuity failed. Submissions on the this to me, are mere figment and are of no moment. Exhibit 2 which the appellant relied on to assert that his pension began to run from the year he was retired is a hand book captioned “Employee Code of Conduct and Ethical Standard Guidelines”. The title of exhibit 2 clearly suggests what it is. Under cross-examination DW 1 said, exhibit 2 –

“…….is a guide to the conduct of an employee. It is not binding on the plaintiff. If an employee breaches the stipulations of exhibit 2 he is not liable to any sanction from the defendant except if such a conduct also contravenes the provisions of the collective agreement and the conditions as stated in his letter of employment.”

It is further the evidence of DW.1 that every staff is expected to buy a copy of the collective agreement. The plaintiff however says that Exhibit 2 is the said collective agreement. Exhibit 2 was carefully examined by the learned trial Judge and given its probative value when she posed and answered the question:

” What then is exhibit 2?. The answer to this question is found in the introduction contained on page 3 of exhibit 2. It stated in part:-

“This manual contains the employee code of conduct and ethical standard guidelines of First Bank of Nigeria Plc. As an employee of the Bank, you are required to be thoroughly familiar with the guidelines provided in this manual, Understanding the polices, will enable you to comply with the code of conduct and ethical standards prescribed by the Bank.

…………… This manual does not provide contractual rights and is not intended to convey any guarantee of continued employment, or any term, or condition of employment other than as stated in your terms of employment.

……In the event that you require clarification on the provisions articulated in this manual, ask your supervisor, or contact the Human capital Management function.

As evidence that you have reviewed and understood the contents of this manual, please sign and date the acknowledgement slip below and return to the human capital management function within 75 days of your receipt of the manual. (Underlining mine for emphasis).

Exhibit 2 has therefore sufficiently and clearly, in unambiguous terms, said what it is. The plaintiff also clearly understood this introductory part and the entire exhibit 2 because he has signed it as directed, although he has not submitted the signed slip. His signature is on the loose sheet found between pages 4 and 5 of exhibit 2 and under the following words:

“I confirm that f have read and that I understand the provisions of the First Bank Employee Code of Conduct and Ethical Standards manual.”

He signed this on 5/6/95. Exhibit 2 is therefore not the collective agreement as contended by the plaintiff or the terms of the conditions of the contract between the plaintiff and the defendant as submitted by plaintiff’s counsel”.

see pages 109 fines 17 to 110 lines 1-16 of the record. I have thoroughly examined Exhibit 2, there is nothing to add but to affirm the finding of the learned trial Judge that Exhibit 2 is neither the collective agreement nor does it contain the contractual terms and conditions of employment. I strongly hold the view that the learned trial Judge was right in her finding on Exhibit 2 because I see nothing at page 20 of Exhibit 2 that fixes appellant’s pension upon his compulsory retirement no matter from what perspective that page is read. Exhibit 3 again adds no value to the case of the appellant. The relevant portion in Exhibit 3 reads:

“By a copy of this letter to your Branch Manager, one month salary is being credited to your account in lieu of notice. Also, the Pensions Manager, Head Office is being advised to compute and pay your entitlements, after deduction of all your outstanding indebtedness, in line with the new improved pensions and gratuity Scheme”

Again there is nothing in this paragraph nor in the entire Exhibit “3” that suggests by any rule of interpretation that the appellant should be paid his pension immediately upon his compulsory retirement.

Exhibit “L” titled “RE: TERMINAL BENEFIT & MONTHLY PENSION’ merely communicated to the appellant that his pension will commence on 31:10:2004 when he would have attained the age of 45 years. The appellant pleaded Exhibit L at paragraph 6 of his amended statement of claim, the respondent in paragraph 6 of her amended statement of defence admitted appellant’s paragraph 6. DW1 also gave evidence to support their admission of paragraph 6 of the appellant’s amended statement of claim inter alia that appellant’s pension will be due when he is 45 years of age.

See pages 26, 48 and 94 of the record. From the rules of pleading, the respondent pleaded that the appellant’s pension will be due when he attains 45 years of age and so the evidence of DW1 on the issue is sustainable in law. The trial Judge was therefore right in relying on it. From what I have observed and noted on Exhibits 2 and 3 above, Exhibit L in my opinion is not at variance with them as submitted by the appellant. So whereas in accordance with sections 137 and 139 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, the respondent established that the appellant was due for his pension upon attaining 45years of age, the appellant could not prove that he was entitled to his pension immediately upon his compulsory retirement. Again I have no reason to disturb the lower court’s finding on this.

I am mindful of the decision in comet shipp. Agencies Ltd. v. Babbit Limited (2001) FWLR (Pt.40) 1630 cited by the appellant’s counsel to urge the court to hold that the appellant proved his claim for special damages. The principles of law in the above decision is sound but is not relevant to the case at hand in that the lower court in the instant case held that special damages to wit; gratuity and pension were proved but in her order she stated when and how the damages will be due and paid which is what the appellant is challenging.

On general damages, the supreme court has held that they are damages which the court implies or presumes to have accrued from the wrong complained of. They are presumed to flow from the immediate, direct and proximate result of the wrong complained of. See Ijebu-Ode Local Govt. v. Adedeji Balogun & Co (1999) 1 NWLR (Pt.166) 136. The appellant referred to page 114 lines 69 of the record to submit that the learned trial Judge conceded that since she could not order re-instatement the appellant was entitled to general damages. With respect to counsel, this submission is highly misconceived, the totality of the evaluations made by the learned trial Judge at pages 113 lines 19 -31 and 114 lines 1-9 do not in the least sense of it suggest the import of appellant’s submission. While evaluating evidence on general damages, the learned trial Judge merely remarked that assuming the appellant had proved unlawful retirement, the remedy available to him would have been that of general damages since he did not prove that his employment had statutory flavour to entitle him to a re-instatement. She further held that since the case of unlawful retirement was not proved, the claim for general damages was lacking in merits and accordingly dismissed same.

Again this decision is borne out of sound reason and law and as such I find no superior reason to disturb the finding. The case of Nitel Plc V. Ocholi (2001) F.W.L.R (Pt.74) 254 cited by Mr. Ohene of counsel does not improve on the appellant’s case but goes further to buttress the fact that general damages is a remedy only available to a litigant who has succeeded in an action for unlawful termination of employment where such employment does not enjoy statutory flavour. Once the principal order sought in an action is refused, no order incidental to the principal order can be granted. See Awoniyi V. Registered Trustees of the Rosicrucian Order, AMORC (2000) 6 SC (Pt. 1) 103. In the circumstances of this case, since the lower court had refused to declare the appellant’s retirement unlawful she was duty bound to refuse the claim for general damages which was incidental, immediate and direct natural consequence of the unlawful retirement complained of. From the foregoing, I resolve issue no, 1 in favour of the respondent.

Learned counsel for the appellant on issue no.2 adopted his submissions on special damages. It was his further submission that the counter claim is the same as the appellant’s claim for gratuity. He therefore contended that it was an error for the trial Judge to hold on the one hand that it was improper for the respondent to have converted appellant’s gratuity to pay off his debt that was not yet due and on the other hand to hold that the counter claim of the respondent succeeds . He referred to pages 116 lines 11-14 and 122 lines 17-18 of the record. In the light of the above, learned counsel submitted that no cause of action had arisen and the counter claim was invalid and should have been dismissed. He cited: Effiong V. Ironbar (2001) All FWLR (Pt. 103) 505 at 516 Paras E-F.

Furthermore it was learned counsel’s submission that the orders of the lower court in respect to the counter claim are not precise, definite or directed to any person as to who should pay who and what amount to be paid to who. Rather the orders left the parties on their own to sort out the balance of the money left. He submitted that when the orders of a court are imprecise, indefinite or not directed to any person in particular, such judgment cannot stand and an appeal would be allowed, He relied on Anthony Onuegbu & 3 Ors. v. Ifeyinwa unuegbu & 15 Ors (2001) All FWLR (Pt.75) 604 at 615 Para D.

In conclusion counsel urged the court to allow the appeal and to set aside the judgment of the lower court.

In reply to this issue Mr. Ujah of counsel submitted that the respondent’s counter claim was proved by the oral testimony of the respondent coupled with the documentary evidence Exhibits G1, G2, F1 to F3 tendered in court. He added that the counter claim for the sum of N286,007.76 was not denied but admitted by the appellant. Learned counsel submitted that in arriving at her decision the learned trial Judge took into account the contention of the appellant that by the terms of the loans he took from the respondents the duration for full liquidation of same had not lapsed. The learned trial Judge also took into consideration the fact that the repayment of the loans were by monthly deductions from the appellant’s salary and that the loans had life span of between 96 months to 20 years. He referred to page 86 lines 16-30 of the record.

Learned counsel further submitted that the orders of the trial court were very precise, definite and directed at the parties. He added that the contents of the orders were borne out of the evidence before the court and the clear agreements between the parties as to the debt of N286,00.76, monthly repayments by deductions until the entire loans are liquidated within 20 years, He said the case of Anthony onuegbu & 3 (pt, 75) 604 at G15 para D, is not relevant to the present case. Finally counsel submitted that the judgment of the lower court was sound, balanced, had no error, was based on evidence before the court and the findings of the trial court, he urged the court not to disturb the judgment and orders of the lower court.

A counter claim is a cross action and not merely a defence to the plaintiff’s claim. It is an independent action and not part of the original action though for convenience the two are tried together. The defendant in a counter claim assumes the position of a plaintiff and the plaintiff in the original action assumes the position of a defendant, simply put, parties in the original action swap positions in the counter claim. See Gowon v. Ike Okongwu (2003) 6 NWLR (pt.815) 38.

From the submissions of Mr. ohene of counsel it appears that he conceded to the fact that the respondent had proved their counter claim. Learned counsel’s submissions were now based on the validity of the counter claim. He argued that no cause of action had arisen to stem the counter claim. Also that the order of the lower court on the counter claim was not valid the same being bad in law which this court should not allow to stand. This view is further strengthened by the fact that the appellant did not file a defence to the counter claim nor deny the said counter claim in his oral evidence.

As a general rule, where the plaintiff fails to file a defence to a counter-claim, the trial court would assume that the plaintiff has no defence and enter judgment for the defendant counter- claimant. See Usman v. Garke (2003) 14 NWLR (Pt.840) 261. In his oral evidence the appellant admitted his indebtedness to the respondent but said he does not know the total amount he owes. Appellant’s only contention as far as the counter claim was concerned was the fact that time for repayment of the loan had not lapsed, See pages 84 line 31, 86 lines 16-31, 118 lines 21- 31 and 119 lines 1-2. For all intents and purposes the respondent through her pleadings, oral and documentary evidence before the lower court as was well set out in the judgment of the lower court proved her counter claim. See pages 117 lines 25 to 122 lines 1- 3.

The submission of the appellant that his claim for gratuity is identical with the counter- claim and as such the trial court erred when it held that appellant’s claim for gratuity fails but held that the counter claim succeeds is with due respect unfounded. Although this argument does not portray the correct position of the judgment of the lower court as earlier noted in this judgment but assuming it does, the position of the law is that the fate of a counter – claim, being an independent action, does not depend upon the outcome of the plaintiff’s case. See General Oil Ltd. v. FSB Int’l Bank Plc (2005) 5 NWLR (pt. 919) 579. In an action where there is a counter claim a plaintiff’s claim succeeds or fails on its own, vice versa the defendant’s counter claim. Accordingly, the trial court would not be in error if it dismissed the plaintiff’s claim on gratuity and granted the defendant’s counter- claim.

A cause of action is a situation or state of facts which would entitle a party to sustain an action and give him right to seek a judicial remedy in his behalf. It is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives a person a right to judicial redress or relief against another so it consists of two elements, viz, the wrongful act of the defendant, which gives the plaintiff his cause of complaint; and the consequent damage. See Thompson v. Zurich Ins. Co., D.C. Minn., 309 F. Suppp. 1178, 1181; Oduntan v. Akibu (2000) 7 SC (Pt.11) 106; Messrs NV Scheep v. M.V. “S. Araz” (2000) 12 SC (Pt. 1) 154.

From the record, the appellant was retired on 19:11:1996 while the counter claim dated 30:5:2001 was filed on 5:6:2001 pursuant to order of court. see pages 41 to 51 of the record.

Also from the overwhelming evidence in the record the appellant was repaying the several loans he took from the respondent through monthly deductions from his salary. This means that at the end of each month from when the appellant started repaying the loan, there was always debt due for repayment. It therefore follows that from 19: 11: 1996 when the appellant retired and monthly deductions from his salary stopped the debt due for repayment accrued from that month till when the counter claim was filed in 2001 and continues to run until such a time the whole debt will be paid off. There is no doubt therefore that by the time the counter claim was filed the respondent had facts which gave her right to judicial redress against the appellant. Accordingly, I hold that cause of action arose before the counter claim was filed and the said counter claim is competent.

An order of court is one which directs a party to a case to do something in relation to the case. See Bello v. Fayose (1999) 11 NWLR (pt. 627) 510. A Judge is the master of his court and, so long as there is no miscarriage of justice against any of the parties, a court can make such orders as are necessary to bring the matter to a just conclusion within the rules of court and according to law. See Dapianlong v. Dariye (2007) 8 NWLR (pt.1036) 239. I have severally in this judgment upheld the findings of the learned trial Judge a as just and correct in law. I find no imprecision in the orders made by the lower court as to the mode of payment of the gratuity which order is based on the evidence the parties placed before her. The learned trial Judge in her conclusion went ahead to make orders which I adjudge precise orders directed at the parties. Consequently, I hold that the orders of the lower court is competent, on the whole I resolve issue no. 2 in favour of the respondent.

In conclusion, I hold that the appeal is lacking in merits. It therefore fails. I dismiss same. Judgment and orders of the High court of Benue State, Makurdi in suit No. MHC/53/99 delivered by Kpojime, J. on 10:1:2003 is upheld. Parties shall bear their respective costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read before now the judgment of my learned brother, U. Onyemenam JCA just delivered. I am in agreement with the reasoning and conclusion therein.

The law is settled that he who asserts must prove. See Sections 135- 137 of the Evidence Act. It is also trite that in an action for wrongful dismissal or wrongful retirement the foundation of the claim is the contract between the parties where the relationship is that of master and servant without statutory flavor. The complainant has the onus of proving how and in what manner his employment was wrongly terminated by the production of the terms and conditions of the contract of service. See: Ziideeh Vs Rivers State Civil Service Commission (2007) 3 NWLR (1022) 554 at 570 A – D; 577 D-G.

Exhibit 2 relied upon by the appellant is clearly nothing other than it explicitly declares itself to be – a Code of Conduct and Ethics Standard Manual. By his own showing, the appellant agreed that his letter of employment and the collective agreement between the respondent and its employees govern the relationship between the parties. Failure to tender them was fatal to his case.

The purpose of section 97 (1) (a) and (b) of the Evidence Act is to enable a party tender secondary evidence of a document where the original is in the hands of the adverse party. In the instant case. The appellant pleaded and testified that the originals had been handed over to his counsel and subsequently got destroyed when his counsel’s chambers was gutted by fire. Such pleading allows him to tender secondary evidence of the relevant documents. He failed to take advantage of the law in this case. I am of the view that the learned trial Judge was right to invoke Section 149 (d) of the Evidence Act against him. The appellant was consequently unable to establish the breach of any of the terms of the contract between himself and the respondent. He has failed to advance any reason to warrant interference with the decision of the lower court.

For these and the more exhaustive reasons contained in the lead Judgment I also dismiss the appeal as lacking in merit.

I affirm the judgment of the High Court of Benue State in Suit No:MHC/53/99 delivered on 10/1/2003 per E.N. KPOJIME, J, I abide by the order on costs

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of a preview of the lead judgment of my learned brother, Onyemenam, JCA. I fully agree with him. I too, would dismiss this appeal for lacking in any merit. I will also not make any order for costs.

Appearances

B.U. OHENE Esq.For Appellant

AND

C.A. Ujah Esq.For Respondent