CENTRAL BANK OF NIGERIA v. UCHENNA GODSWILL DINNEH (2010)

CENTRAL BANK OF NIGERIA v. UCHENNA GODSWILL DINNEH

(2010)LCN/3555(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of February, 2010

CA/A/121/08

RATIO

APPEAL: NATURE OF A GROUND OF APPEAL

A ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing. See UGBOAJA V. AKITOYE-SOWEMIMO & ORS (2008) All FWLR (Pt. 439) 407 at 418. It is indeed a settled position of the law that Issues for determination in an appeal must derive or arise or relate to the grounds of appeal. This is so whether or not it is the issue(s) formulated by an appellant or respondent that is/are under consideration. This settled position of the law however does not preclude a respondent from formulating his own issue(s) with a slant favourable to his case. See OSSAI V. WAKWAH (2006) All FWLR (Pt. 303) 239 at 251 – 252. It is only when a respondent adds to the grounds of complaint in the appeal that he is duty bound to lodge a cross-appeal against the judgment in question or to file a respondent’s notice. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

PLEADINGS: WHAT CONSTITUTES A TRAVERSE

Denial of facts otherwise known as traverse in the defendant’s pleading occurs when the averments in the plaintiff’s statement of claim are controverted. When a proper traverse is made in the pleading of a defendant, the question thereby raised amounts to an issue of fact.

PLEADINGS: WHETHER AVERMENTS IN PLEADINGS AMOUNT TO EVIDENCE

The law is that averments in a pleading are not evidence. That any averment in a pleading ,in respect of which there is no evidence is deemed abandoned. See NIGERIAN ADVERTISING SERVICES LTD & ANOR V. UNITED BANK FOR AFRICA & ANOR (2005) ALL FWLR (Pt.284) 275 at 286 PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

PLEADINGS: ESSENCE OF PLEADINGS

The essence of pleadings amongst others is to compel parties to define accurately and precisely the issue upon which the case is to be contested. This is to avoid elements of surprise by either part. It is not to adduce evidence which goes outside fact pleaded. 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. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

LABOUR LAW: CATEGORIES OF CONTRACT OF EMPLOYMENT

In the case of CBN v. IGWILLO cited in the Respondent’s brief of argument and which case is also reported in (2007 All FWLR (Pt.379) 1385), the Supreme Court stated at page 1401 that there are three categories of contract of employment, 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. The Supreme Court dwelling further on when an employment is said to have statutory flavour said on the same page 1401 thus:-

“An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which parties agreed to be master and servant…”

See also the cases of IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION; ADEFEMIWA V. OSUN STATE COLLEGE OF EDUCATION, ILESA (2009) All FWLR (Pt.456) 1860 at 1866 -1967 (CA); and WAWA v. A-G, CROSS RIVER STATE (2008) All FWLR (Pt.401) 807 at pages 829 and 845 (CA). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE WHERE AN ASSERTION IS MADE

LABOUR LAW: MEASURE OF DAMAGES IN AN ACTION FOR WRONGFUL TERMINATION OF EMPLOYMENT

In the case of IFETA V. SPDC OF NIG. LTD [2006] 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. The Supreme Court in the case under reference however made it clear that the re-instatement is usually ordered in contracts of employment with statutory flavour. Indeed in the case of CBN v. Igwillo (supra) the Supreme Court made it clear that the proper order to make where it is found that, an employment with statutory flavour has been wrongfully terminated is one re-instating the affected employee. Such employee in addition is however entitled to damages representing his salaries during the period of his purported dismissal. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES:

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

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

Between

CENTRAL BANK OF NIGERIA – Appellant(s)

AND

UCHENNA GODSWILL DINNEH – Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading judgment) This appeal is against the judgment delivered on 13/12/2007 by the Federal High Court, Abuja Division, presided over by Hon. Justice Chikere. The Federal High Court will hereinafter be simply referred to as ‘the lower court’.
The Appellant was the Defendant in an action instituted before the lower court by the Respondent as Plaintiff challenging his dismissal from the employment of the Appellant. The Respondent prior to his dismissal had risen to the position of Senior Supervisor in the Foreign Operations Department of Bills Office. In 2003 an allegation was made by the Appellant that documents relating to statutory allocations in respect of Benue; Anambra; and Edo States were forged. Queries were raised and served on the Respondent and he duly responded to the same. Disciplinary Committee was set up to look into the allegations made against the Respondent in the queries and the Appellant not being satisfied with the explanations given by the Respondent proceeded to dismiss him. The Respondent equally being dissatisfied with the way and manner in which he was dismissed from the employment of the Appellant, commenced the instant action challenging his dismissal. Parties duly filed and exchanged pleadings. The pleadings were also amended by the parties. The Respondent ended his pleadings with a Further Amended Statement of Claim dated 19/11/2004 filed on the same day pursuant to the leave of the lower court granted on the aforementioned 19/11/2004; and Reply to Fourth Further Amended Statement of Defence dated 21/2/2007 and filed on the same day. The Appellant likewise ended its pleadings with a Fourth Further Amended Statement of Defence dated 12/12/2006 and filed on 21/2/2007 pursuant to the leave of the lower court granted on 16/2/2007. Parties respectively called one witness at the hearing of the case before the lower Court and tendered several pieces of documentary evidence by consent of their respective counsel. Parties by their respective counsel also admitted some facts as presented on the pleadings in the course of the trial before the said court. After parties adopted their respective written addresses, the lower court delivered its judgment and therein granted the claims of the Respondent.
In the Statement of Claim dated 25/7/2003 filed along with the Writ of Summons on 29/7/2003, the Respondent claimed the following reliefs against the Appellant: –
“1. DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June, 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiff’s right to fair hearing; and the rules and regulations governing his contract of service with the Defendant.
2. DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June, 2003 for offences, acts and or omission which occurred during the period when he was on annual leave and not on duty is wrong and unlawful, null and void.
3. AN ORDER reinstating the plaintiff back to his employment with the Defendant.
4. AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emolument and entitlements from July, 2003 until the plaintiff is re-instated.
5. AN ORDER of injunction restraining the Defendant whether by itself, its servants, agent and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block D6 Flat 44 (Intermediate and Junior) Garki, Abuja”.
The reliefs the Respondent claimed against the Appellant in the Further Amended Statement of Claim are: –
“1. DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June, 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiff’s right to fair hearing and the rules and regulations governing his contract of service with the Defendant.
2. DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June, 2003 for offences, acts and or omission which occurred during the period when he was on annual leave and not on duty is wrong and unlawful, null and void.
3. AN ORDER reinstating the plaintiff back to his employment with the Defendant.
4. AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emolument and entitlements from July, 2003 until the plaintiff is re-instated.
5. AN ORDER of injunction restraining the Defendant whether by itself, its servants, agents, and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block D6, Flat 44 (Intermediate and Junior) Garki, Abuja”.
The reliefs the Respondent claimed against the Appellant in the Further Amended Statement of Claim are: –
“1. DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June, 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiff’s right to fair hearing and the rules and regulations governing his contract of service with the Defendant.
2. DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June, 2003 for offences, acts and or omission which occurred during the period when he was on annual leave and not on duty is wrong and unlawful, null and void.
3. AN ORDER reinstating the plaintiff back to his employment with the Defendant.
‘ALTERNATIVELY’
a. An order direct (sic) at or against the defendant to pay to the plaintiff his salary and other emoluments mentioned in paragraph 58 above for the remainder of 13 years which the plaintiff would have served but for the wrongful action of the defendant mentioned in the statement of claim.
b. Further order directed at or against the defendant for the immediate payment to the plaintiff the latter’s gratuity and pension benefit calculated as if the plaintiff has retired at the age of 60 years and as if he has served the defendant for 35 years.
c. An order directed at or against the defendant for the payment of all other entitlement to the plaintiff as obtain (sic) or applicable in the policy, practice and or tradition of the defendant.
4. AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emolument and entitlements from July, 2003 until the plaintiff is re-instated.
5. AN ORDER of injunction restraining the Defendant whether by itself, its servants, agents, and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block D6 Flat 44 (Intermediate and Junior) Garki, Abuja”.
The Appellant being aggrieved with the judgment of the lower court granting the Respondent his claims, appealed against the said judgment to this Court by a Notice of Appeal dated 25/2/2007 (sic) and filed on 27/2/2008. The Notice of Appeal was subsequently amended and further amended with the leave of, this Court. The latest Notice of Appeal being the Further Amended Notice of Appeal dated 2/6/2009 and filed on 22/6/2009. This process contains nine (9) grounds of appeal. The said nine (9) grounds without their particulars read thus: –
“(1) The Judgment is erroneous, null and void because the trial court acted in breach of the constitutional right to fair hearing afforded the appellant by the Constitution of the Federal Republic of Nigeria in that the consideration of the case for the defence was based or premised on abandoned or amended pleadings of the defendant.
(2) The trial Judge erred in making the finding that the defendant dismissed the plaintiff from its employment for the reason that he committed misconducts that amounts (sic) to criminal offence(s) which misled her to hold that the defendant had a duty to prove the allegations of misconduct against the plaintiff to the satisfaction of the court or beyond reasonable doubt, that the administrative panel that investigated the allegations had no competence to pry into the allegations and that the defendant wrongly tried the plaintiff for commission of criminal offence(s) because
(i) the letter of dismissal clearly stated that he was dismissed for gross misconduct and there was no dispute between the parties concerning the reason for the dismissal in the pleadings
(ii) what was carried out was investigation which is not prohibited by the Constitution or any other law and
(iii) the employment was one governed by common law under which it is permissible for the employer to investigate any matter involving his employee and make findings thereon in respect of any misconduct without making a finding on the commission of a crime.
(3) The trial Judge erred in holding that the court had jurisdiction to entertain this suit and that the plaintiff fulfilled the requirement of appealing against his dismissal through internal machinery provisions in the contract between the parties before resorting to litigation in a court of law because:
(i) there was no pleading and no proof that the plaintiff served a letter of appeal on the defendant as required by the contract and
(ii) tendering in evidence an alleged copy of the letter of appeal is inadequate to prove the due service of the letter on the appropriate organ or official of the defendant notwithstanding the non-objection to tendering of the letter by the defendant.
(4) The trial Judge erred in law in holding in effect that the plaintiff proved a case of wrongful dismissal against the defendant when there was no proof that the dismissal of the plaintiff was carried out otherwise than by the procedure provided for under the contract of employment between the parties, that is, there was no breach of contract committed by the defendant in the process as due process was followed.
(5) The Judgment is erroneous in law because the awards of damages made by the trial judge were not in accord with the measure of damages for wrongful dismissal because as established by judicial authorities, including previous decisions of the Supreme Court and the Court of Appeal on the point, the measure of damages for wrongful dismissal is limited to losses suffered in respect of salary for the period during which the employer could have lawfully brought the employment to an end by termination of it under the contract, in this case a period of one month pursuant to clause 2 in chapter 3 of the staff manual
of the defendant.
(6) The learned trial Judge erred in law in awarding judgment to the plaintiff for claims of pension and gratuity and all other monetary claims because the staff manual of the Central Bank of Nigeria provides that an employee of the category of the plaintiff who was dismissed from the employment of the bank would not be entitled to any entitlements like those that were awarded to the plaintiff in this case pursuant to chapter 3 clause 5 of the staff manual.
(7) The judgment is erroneous in law in that the award of the order of injunction made by the trial judge in respect of the official residence in which the defendant (sic) lived is wrongful and illegal and not in accord with the principle established by the Supreme Court in the case of Nwana v. F.C.D.A. (2004) 13 NWLR (pt. 889) 128 at pages 144 to 145, paragraph H – D of the report to the effect that a person who occupies an official residence is a mere licensee whose right to possession is determined by his removal from office, whether wrongly or rightly.
(8) The Judgment is erroneous in that the trial judge therein treated the proceedings of 6th July, 2004 as one which resulted in the amendment of the then existing last pleadings of the parties because the judge did not make any order granting leave to parties to amend their pleadings on that day.
(9) The trial Judge erred in law in granting declarations of right to the plaintiff because in doing (sic) he so acted in breach of the principle of law to the effect that where a court is called upon to make a declaration of right it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence not by admission by parties, and in this case she had no evidence, to rely upon in making the award of declarations that she made”.
The relief which the Appellant seeks from this Court is one allowing the appeal and setting aside of the judgment of the lower court delivered on 13/12/2007 and in its stead an order striking out the suit for being incompetent; or an order setting aside the award of damages made by the lower court and dismissing all the claims of the Respondent.
In compliance with the rules of this Court parties filed and exchanged their briefs of argument. The briefs of argument were amended, Appellant’s Amended Brief of Argument and Amended Reply Brief settled by B. Aluko-Olokun, SAN; are dated 17/6/2009 and 20/7/2009 and filed on 22/6/2009 and 23/7/2009 respectively. Respondent’s Brief of Argument settled by L.O. Fagbemi, SAN; is dated 8/7/2009 and filed on 9/7/2009. The appeal was entertained on 3/11/2009 and learned Senior Counsel for the parties respectively relied on and adopted the briefs of argument fifed on behalf of their clients.
Nine (9) Issues are formulated for the determination of the appeal in the Appellant’s amended brief of argument. The Issues which are said to have been distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 respectively of the grounds of appeal, read thus: –
“(1) Whether the trial judge acted properly in utilising the contents of previous pleadings of the defendant other than the last and subsisting 4th Amended statement of defence that the defendant filed in adjudicating in this case and whether this act of the trial Judge vitiated the entire trial and judgment or any part thereof by rendering them unconstitutional, null and void.
(2) Whether the findings by the trial Judge that the defendant dismissed the plaintiff from its employment for the reason that he committed misconduct amounting to criminal offence(s), that the defendant had a duty to prove the allegations of misconduct against the plaintiff to the satisfaction of the court or beyond reasonable doubt, that the administrative panel that investigated the allegations had no competence to pry into the allegations of misconduct against him and the defendant wrongly tried the plaintiff for commission of gross misconduct were correct.
(3) Whether the trial Court did not have jurisdiction to entertain this suit on account of the failure of the plaintiff to utilise the internal machinery provided for seeking redress provided for in the contract of employment between the parties.
(4) Whether the dismissal of the plaintiff by the defendant was wrongful or in accord with the contract of employment between the parties.
(5) Whether the award of damages made by the trial Judge in this suit is in accord with proper or appropriate measure of damages for wrongful dismissal and, if not what is the appropriate amount
of damages that the plaintiff was entitled to in this case having regard to the fact that the employment was liable or capable of being terminated by only one-month notice under the contract of employment.
(6) Whether the awards of judgment to the plaintiff in respect of claims for entitlements including pension, gratuity and all other monetary awards were justifiable since the plaintiff had been dismissed having regard for (sic) provisions of chapter 3 clause 5 of the Central Bank of Nigeria Staff Manual.
(7) Whether the order of injunction made by the trial Judge in this case in respect of the official residence of the plaintiff was proper or legal following the dismissal of the plaintiff from the service of the defendant or whether the plaintiff was entitled to continue to live in the official residence that was assigned to him by the defendant after he had been dismissed from service without express permission of the defendant and whether the court had jurisdiction to compel the defendant to allow the plaintiff to continue to live in the official residence.
(8) Whether the trial Judge erred in treating the proceedings of her court in this case on 6/7/2004 as proceedings that resulted in the amendment of the pleadings of the parties that existed prior to those proceedings.
(9) Whether the judgment of the learned trial judge was right when there was no evidence given by the plaintiff on any material fact in his pleading concerning his claims for the two declaratory reliefs that he sought”.
The Respondent distilled six (6) Issues from the Appellant’s nine grounds of appeal, for the determination of the appeal in his brief of argument. The Issues read thus: –
“1. Whether admission made by Counsel is binding and whether in the face of such an admission which was not expressly withdrawn, Plaintiff is obliged to prove facts already admitted?
Grounds 1 and 8.
2. Whether Appellant proved that internal machinery provided was not exhausted before Plaintiff filed his suit at the trial Court? Ground 3.
3. Considering the totality of the allegation of criminality against the Plaintiff, whether Appellant can lawfully proceed against the Plaintiff on allegation rooted in criminality, when no Court of law had found him guilty of any criminal allegation? Ground 2.
4. Considering the facts and circumstances of this case, whether the Defendant/Appellant was justified in its decision dismissing the Plaintiff from its employment? Ground 4.
5. Whether the Plaintiff is entitled to the reliefs granted by the trial Court? Grounds 5,6 and 7.
6. Whether or not the judgment of the trial court is predicated on admission only, having regard to the claim of the plaintiff? Ground 9”.
The Appellant objected to the Issues formulated by the Respondent as set out above; in its amended Reply brief. In this regard the Appellant said that Respondent’s Issues 1, 2, 3 and 6 are incompetent. This is because none of the aforementioned Issues gives rise to any of the questions raised therein. In other words that the Issues 1, 2, 3 and 6 as formulated by the Respondent do not relate to the grounds of appeal to which they were tied. The Appellant made the observation that the Respondent did not file a cross-appeal.
It is also the submission of the Appellant that Respondent’s Issue 5, which is said to have been formulated from grounds 5, 6 and 7 of the grounds of appeal, does not encompass the complaints in the said grounds. It is submitted by the Appellant that the Respondent under his Issue 5 did not concern himself with the consideration of the matters raised by grounds 5, 6 and 7 of the grounds of appeal. The matters raised in the grounds in question according to the Appellant are: (1) the purport and effect of chapter 3 clause 5 of the Central Bank of Nigeria Staff Manual; (2) propriety of giving the right to an officer who has been relieved of his employment to continue to remain in possession of his official residence; and (3) measure of damages for wrongful dismissal.
Dwelling on Respondent’s Issue 6, the Appellant submitted that it is incompetent because it does not arise from any of the grounds of appeal and particularly from ground 9 upon which the Respondent claims to have based it. Ground 9 according to the Appellant alleges in essence, the failure of the Respondent to call evidence on which the lower court could have based its judgment and not lack of evidence at all.

I have painstakingly considered the Appellant’s grounds of appeal vis-a -vis the Respondent’s Issues objected to as well as the Issues formulated by the Appellant itself from the grounds of appeal. I do not understand the Respondent by any of the Issues formulated by him to be adding to any of the Appellant’s complaints in any of its grounds of appeal. Therefore the question of cross-appealing as contended by the Appellant has no basis. I do not equally understand the Respondent by any of the Issues he has formulated as seeking for the affirmation of the judgment of the lower court upon other grounds apart from those relied upon by the said court. In the circumstance the filing of a respondent’s notice therefore equally has no basis. The Appellant decided to formulate one question from each of the nine grounds of appeal it filed. It is definitely entitled to do this. The Respondent in formulating his Issue 1 married grounds 1 and 8 of the grounds of appeal together. He also married grounds 5, 6 and 7 of the grounds of appeal together in formulating his Issue 5. The Respondent is eminently in order to have done this. All that the Respondent has done in formulating his Issues is to give a slant to the Issues formulated by the Appellant having regard to his (i.e. Respondent’s) case. The slant given to the Issues formulated by Appellant by the Respondent’s Issues is just to show that the issues formulated by the Appellant have no basis and in any event cannot result in the consequences as argued by the Appellant. All the Issues formulated by the Respondent in the circumstances sufficiently have bearing on the grounds of appeal cum Issues formulated by the Appellant and therefore cannot properly be said not to relate to the grounds of appeal.
In the final analysis, the objection of the Appellant to the Issues formulated by the Respondent is overruled. I find the issues formulated in the Respondent’s brief of argument to be very competent.
The appeal will be determined upon the Issues as formulated by the Appellant in its brief of argument. However related Issues would be considered together as was done in the Respondent’s brief of argument.
APPELLANT’S ISSUES 1 AND 8
Dwelling on this Issue 1, the Appellant said that, the lower court considered this case on the basis that it had on 6/7/2004 admitted paragraphs 10-50 and 58 of the Respondent’s Statement of Claim. The Appellant further said that after that day, by consent of the parties, and leave of the lower court, it amended its Statement of Defence on four occasions and that it did not include the aforementioned admitted paragraphs in its later pleadings. That it expressly excluded all previous admissions in its later pleadings. The Appellant also said that the Respondent did not offer any evidence on any of the major or material issues in the case and also did not call evidence in this regard through any witness. It is the submission of the Appellant that, it is a breach of the constitutional right of a litigant to prevent him from conducting his case in the manner he likes or not to consider the case put forward by him. It is also the submission of the Appellant that abandoned or amended brief or admission or any part thereof that is not repeated in a later brief is useless and not worthy of consideration because it ceases to define issues between the parties once amendment is made. The case of Tunbi v. Opawoye
(2000) 1 SCNJ 1 was cited in aid. The Appellant said that the Respondent admitted in his address before the lower court that the 4th Further Amended Statement of Defence was its final pleading. The Appellant said that the submission of the Respondent before the lower Court that ‘it is a settled principle of law that all amendments date back to the time of commencement of the action and we respectfully urge the court to so hold’ is sound. That the lower court was wrong in the view it took that the submission tantamount to stating that the admissions of 6/4/04 (sic) were still in force. The 4th Further Amended Statement of Defence and the Respondent’s Further Amended Statement of Claim according to the Appellant defined the issues in the case; and any process or declaration made by counsel for the Appellant prior to the time of filing the said 4th Further Amended Statement of Defence on 21/2/2007, it was submitted ceased to be binding from that day and there was no need to specifically or expressly refer to earlier pleadings or amendments thereof. The Appellant not only submitted that its latest pleading superseded any earlier pleading, but that in any event in paragraph 1 of each of its pleading, it denied all the averments in the Respondent’s pleadings except those that were expressly admitted in the current process or pleadings. The Appellant said that this precluded the consideration of any other admission outside those contained in the process or pleading. The Appellant submitted that the lower Court erred in considering the content of an amended pleading and that this has occasioned a mistrial and rendered the proceedings a nuility. That the judgment of the lower court deserved to be set aside and or the appeal allowed and the judgment of the lower court declared null and void on account of the issue.
Dwelling on Issue 8, the Appellant referred to the proceeding of 6/7/2004 as showing that counsel for both parties simply announced to the lower court that they had reached agreement in specific regards. That both Counsel did not request for the leave of the lower court to amend their then existing pleadings; that the said court equally did not make any comment on what both learned counsel stated before it; but merely adjourned the matter to 8/10/2004. The Appellant submitted that the effect of these is that there was in fact no valid amendment made by the parties on 6/7/2004.
The Appellant submitted in the alternative that even if amendments were made to the pleadings of the parties on 6/7/2004 by the agreement reached by the parties, such an agreement ceased to have any force after parties subsequently amended their pleadings. That by the subsequent act of amendment, whatever was contained in the agreement of 6/7/2004 was no more defining the issues in the case and the agreement abandoned. It is the submission of the Appellant that it was improper of the lower Court to have used the agreement in adjudicating over this case and that it was erroneous for the said Court to have alluded to the proceedings of 6/7/2004 as one in which amendments were made. It was further submitted that this vitiated the judgment of the court, as it was based on a presumption that leave was granted the parties to amend their pleadings, thereby rendering the said judgment null and void.
The Respondent responded to the Appellant’s Issues 1 and 8 under consideration under his Issue 1. Dwelling on the Issues which were summarized as dealing with admissions by parties, the Respondent submitted that it is an established principle of law that facts admitted need no further proof. Section 75 of the Evidence Act and the case of Ejiogu v NDIC (2001) 3 NWLR (Pt. 699) 1; were cited in aid. It is the submission of the Respondent that Counsel when acting within the scope of his authority can compromise or admit a fact and that such admission or compromise is binding and effective. The case of Mosheshe General Merchant Ltd v Nigeria Steel Products Ltd 1 NWLR (Pt. 55) 110 at 121 was cited as showing the scope of authority of counsel vis-a-vis the case of his client. The Respondent said that the parties joined issues with each other on their respective pleadings and that, the case proceeded to trial on the basis of the issues so joined. Reference was made to the proceeding of 1/6/2004 to show that parties not only agreed that paragraphs 1 – 29 of the Amended Statement of Claim were admitted by learned counsel for the Appellant but also that Exhibits A, B, C, D, E, F, G and H were tendered by the consent of both learned counsel for the parties during the examination-in-chief of PW1. Again, reference was made to the proceeding of 6/7/2004 to show the admissions and concessions made by both learned Counsel in the case. The Respondent submitted that the admissions made by learned counsel for the Appellant being direct and relevant are binding on the Appellant and that neither of the parties can argue against the admitted facts. The Respondent said that the submission of the Appellant that the admissions made in the case were no longer relevant and binding upon the filing of the 4th Further Amended Statement of Defence, was misleading and erroneous. This is because nowhere in the pleadings or proceedings did the Appellant state that it was resiling from the earlier admissions or withdrawing from them. The Respondent further said that the amendment of an earlier pleading does not mean that the averments earlier made are no longer relevant. The Respondent submitted that, the essence of an amended pleading is that it relates back to the date the original pleading was filed and that the Appellant has a duty to show that the facts admitted in the earlier pleadings were no longer the issue in the amended pleadings. It is the submission of the Respondent that the Appellant has failed to do this. The case of FBN v Tsokwa (2004) 5 NWLR (Pt. 860) 271 was cited to show what an amendment connotes. This Court was urged to hold that the lower Court was perfectly in order to have relied on the admissions made by the Appellant as it has failed to show that the issues or facts admitted in the pleadings that were amended are no longer the issues calling for determination by the Court. That a subsequent amendment carried out will in no way diminish the efficacy of the earlier and subsisting admissions.
In its amended Reply brief, the Appellant said nothing different from what it had earlier said in its brief of argument in respect of Issues 1 and 8 under consideration.
The pleading of the Respondent upon which the instant case proceeded to hearing is the Amended Statement of Claim dated 8/12/2003 and which was amended pursuant to the order of the lower court made on 2/12/2003. The process which is at pages 106 – 113 of the Record of Appeal was filed on 12/12/2003. The averments in the amended process are no different in purport from those in original Statement of Claim save that some averments were now pleaded with more particulars or in detail and this consequently led to the renumbering of paragraphs 32 – 52 of the Statement of Claim as paragraphs 40 – 60 in the Amended Statement of Claim.
The first of the Appellant’s pleadings is the Statement of Defence at pages 91 – 92 of the Record of Appeal. It is dated 3/9/2003. The Appellant having stated therein that, all the allegations in the Respondent’s Statement of Claim are denied unless expressly and specifically admitted proceeded to set out its case. The case set up in paragraphs 2 – 8 of its Statement of Defence is that the operation of the Appellant is governed by the Central Bank Decree No. 24 of 1992; that the employment of the Respondent does not enjoy statutory favour as he never held the office of Governor or Deputy Governor of the Appellant; that the terms and conditions of the Respondent’s written contract are contained in the Appellant’s staff manual; that the Appellant pursuant to the staff manual has the right to terminate the employment of the Respondent by giving him one month notice or payment of one month salary in lieu of notice; that the Respondent had no right to continue to live in the Appellant’s quarters after he was relieved of his employment; that the Respondent did not avail himself of the provision relating to appeal against dismissal as contained in the staff manual governing his employment; and that the Respondent is not entitled to any and ail of the reliefs he claims in the case.
The Appellant on 2/12/2003 filed an Amended Statement of Defence dated 1/12/2003. The process is at pages 104 – 105 of the Record of Appeal. The case set up in the said process is no different from that in the Statement of Defence save that the Appellant specifically referred to the provisions of clause 2 in chapter 3 of its staff manual as vesting it with the right to terminate the employment of the Respondent by giving him one month notice or paying him one month salary in lieu of such notice without the need to comply with any other condition.
The Respondent on 2/3/2004 filed a Reply to the Amended Statement of Defence. It is dated 27/2/2004. This process which is at page 152 of the Record of Appeal was deemed as properly filed on 1/6/2004. Therein, the Respondent averred that clause 2 of chapter 3 of the Appellant’s staff manual is inapplicable to him; and also said that by a letter dated 4/7/2003 he wrote to the appropriate officer of the Appellant seeking for the review of his dismissal but that the Appellant failed to acknowledge the receipt of the said letter.
Hearing commenced in the case on the same 1/6/2004 before the lower court. It would appear glaring from all that has been said above, that the pleadings of the parties before the lower court as at 1/6/2004 when hearing commenced were Respondent’s Amended Statement of Claim and Reply to the Amended Statement of Defence on the one hand; and Appellant’s Amended Statement of Defence on the other hand. In the course of hearing on the said 1/6/2004 the following is recorded as having transpired at pages 388 – 389 of the Record of Appeal: –
“L.O. Fagbemi ,SAN Informs Court that parties have agreed that paragraphs 1 to 29 of the amended Statement of Claim are admitted by the Defendant.
B. Aluko-Olokun, (SAN) We concede admitting paragraphs 1 – 29 of the amended statement of Claims (sic).
L.O. Fagbemi, (SAN) We are also tendering the following documents by consent namely: –
(1) Letter of 8/5/03 written by the Defendant to Plaintiff Exhibit ‘A’.
(2) Plaintiff’s reply dated 12/5/03 Exhibit ‘B’.
(3) Defendant’s letter to Plaintiff dated 13/1/03 Exhibit ‘C’.
(4) Plaintiff’s reply to letter of 13/1/03 dated 14/1/03 Exhibit ‘D’.
(5) Plaintiff’s application for annual leave dated 4/11/02 Exhibit ‘E’.
(6) Defendant’s approval dated 12/11/02 Exhibit ‘F’.
(7) Staff manual of Defendant Exhibit ‘G’.
B. Aluko-Olokun, (SAN) – Confirms that the above documents marked Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, and ‘H’ are tendered by consent of both parties.
(8) Letter of dismissal dated 12/6/03 Exhibit ‘H’.
Witness identifies Exhibit ‘A’ as the query issued to him by the Defendant on allegation of fraud on the statutory revenue allocation. I have put in 23 years in the service of Defendant before Exhibit ‘H’ was issued. I have another 12 years more to put in before I can retire.
L.O. Fagbemi, (SAN) – Applies for adjournment
B. Aluko-Olokun, (SAN) – Does not oppose.
Court- Case adjourned till 29/6/04 and 6 – 7/7/04 for continuation”.
It is pertinent to note that paragraph 1-29 of the amended Statement of Claim admitted by learned Senior Counsel for the Appellant relate to the following averments/allegation made by the Respondent as to the position he held and where he resided prior to his dismissal by the Appellant from service; the status of the Appellant and location of its of its offices; post to which the Respondent was initially employed, date of the employment and the fact of the misplacement of his letter of employment; posts which the Respondent has held after he was employed and how he came to be transferred to the head office of the Appellant in 1992; the award he got from the Appellant in 1994 due to his meritorious service; the position the Respondent held in 1997; his Department of deployment as at 5th May, 2003 and meritorious service thereat until his dismissal; Appellant’s staff manual being the document that provides for the conditions of employment of all Appellant’s staff; letter served on the Respondent on 13/1/2003 requesting his explanation in respect of forgery involving statutory allocations to Benue State Government for the month of October, 2002 and Respondent’s reply thereto dated 14/1/2003; query dated 8/5/2003 and delivered to the Respondent on 9/5/2003 bordering on attempted fraud in respect of statutory allocations to Benue, Anambra and Edo States and the response of the Respondent thereto by his letter dated 12/5/2003; invitation to the Respondent to appear before the Appellant’s Central Disciplinary Committee (CDC) from 19 – 24 of May, 2003; the fact that the Respondent was on leave in the year 2002 when the alleged forgery in relation to Benue State occurred and therefore could not have participated in the alleged forgery Respondent’s appearance before the CDC which investigated the fraud relating to the Benue and Enugu branches of the Appellant; Appellant’s directive on 19/7/2002 (prior to the alleged forgeries relating to Benue Anambra and Edo States Governments accounts with the Appellant) to the Respondent to report at the NDLEA Office at Gwagwalada; directive of the NDLEA that Respondent should report at the Lagos Office of NDLEA where he was informed of the reason for his invitation; and Respondent’s detention at the NDLEA Lagos Office for 9 days and what transpired between the Appellant and the Respondent after he returned to office from the detention.
The averments in question also deal with the invitation to the Respondent for interview by the Internal Audit Department Panel of Investigation on 30/8/2002 and issuance of a query dated 20/1/2003 by the FOD of the Appellant; contention of the Respondent that the allegations in relation to revenue allocations for Benue, Anambra and Edo States do not concern him as he was on leave at the material time; contention that the period of commission of the alleged offences fell within the period of Respondent’s annual leave; and contention of the Respondent that all the issues raised in the queries issued to him were exhaustively and satisfactorily addressed by him.
Hearing in the case did not continue on 29/6/2004. On that day, the Appellant moved an application dated 14/6/04 seeking for the leave of the lower court to further amend its Amended Statement of Defence by the addition thereto of a paragraph 6(a). The application was not opposed by learned senior counsel for the Respondent and duly granted by the lower court. The case was adjourned till 6 – 7/7/2004 for continuation of hearing.
The Further Amended Statement of Defence dated 1/12/2004 was filed on the very day the lower court granted the Appellant leave to file the same i.e. 29/6/2004. Paragraph 6 (a) introduced therein was specifically in response to paragraph 58 of the Amended Statement of Claim. Therein the Appellant averred to the effect that any of its dismissed employees is not entitled to any salary and allowances after being given the notice of the dismissal.
Hearing in the case continued on 6/7/2004. This is what transpired on the day as recorded at pages 392 – 393 of the Record of Appeal: –
“B. Aluko-Olokun, (SAN) – Informs Court that counsel on both sides have agreed to the facts as follows-
(i) The Defendant admits all the averments in the Statement of Claim except the following paragraphs 40 and 50 thereto
(ii) With respect to paragraph 58 of statement of claim the Defendant admits that the terminal salary and other entitlements of the Plaintiff are as stated therein, but deny that he is entitled to the same from the day he was dismissed.
(iii) The Defendant seeks to withdraw paragraph 7 of the further amended Statement of Defence,
(vi) The Plaintiff well (sic: will) admits paragraphs 2, 3, 4, 5 and 6 of the further amended Statement of Defence.
(v) Counsel states that the matters denied by Defendant (are matters of law and documents) tendered by consent be deemed as duly read by consent. (Please note that the words in brackets which were omitted in the record are as contained in the original transcripts in the file of the lower court).
(vi) That the cases on both sides are deemed to be closed.
L.O. Fagbemi,(SAN)- I confirm what my brother Silk has just announced to Court. Although Plaintiff has been in the witness box, I have no more questions to put to him and I believe my brother Silk has none either for him. May I ask for a date for address.
Court – Case is adjourned to 8/10/04 for address”.
It is pertinent to state at this stage that the averments in paragraphs 40 and 50 of the Amended Statement of Claim which learned counsel for the Appellant did not admit relate to the following assertions of the Respondent; that none of the terms and conditions for which his contract of employment could be terminated or dismissed was available to the Appellant when it dismissed the Respondent; and that the Respondent strictly complied with the dictates of the provisions of the staff manual as they relate to grave misconduct.
It was after the case had been adjourned for address that the Respondent procured the leave of the lower court on 19/11/2004 to file a Further Amended Statement of Claim. The lower court in granting the Respondent leave, also gave the Appellant the liberty to amend its Further Amended Statement of Defence.
The Further Amended Statement of Claim fifed by the Respondent pursuant to the leave of the lower court made on 19/11/2004 is at pages 169- 179 of the Record of Appeal. It is dated 19/11/2004 and was filed on the same day.
The amendments introduced into the Respondent’s case in the process are in respect of: –
(i) paragraph 12 where the Respondent pleaded his reliance on the staff manual of the Appellant which was made pursuant to the provisions of the (law) Act setting up the Defendant;
(ii) paragraph 52 where the Respondent contended that he has 13 years more to put into the service when he would have put in mandatory 35 years. He averred that, he is presently 42 years old and still willing and able to work if given the opportunity.
(iii) the addition of a new paragraph 60 wherein the Respondent averred that he would have remained in the employment of the defendant until he attained the age of 60 years when he would
have put in 35 years of service but for the decision of the defendant which was based on wrong premises and unfounded.
(iv) the renumbering of the original paragraph 60 as paragraph 61 and the addition to the reliefs set out therein of a new relief as an alternative relief.
The Appellant’s 2nd Further Amended Statement of Defence dated 15/2/2006 and filed on 16/2/2006 was deemed as properly filed by the lower court on 30/11/2006. The process is at pages 221- 223 of the Record of Appeal. The amendments introduced into the process are in respect of:-
(i) paragraphs 6, 7 and 8 where the Appellant now averred that the dismissal of the Respondent was carried out in compliance with the requirement of his contract of employment as provided in the Appellant’s staff manual and the details of the procedure adopted or followed set out.
(ii) paragraph 12 where the Appellant now contended that the lower court lacked jurisdiction to entertain the matter because the subject matter is a contract.
On 16/2/2007, leave was again granted the Appellant not only to recall PW1 for cross-examination but also to amend its 2nd Further Amended Statement of Defence by the addition of a new paragraph 13 and renumbering the existing paragraphs. The process filed on 21/2/2007 by the Appellant pursuant to the leave of the lower court granted on 16/2/2007 surprisingly is titled ‘Fourth Further Amended Statement of Defence’. It is at pages 264- 266 of the Record of Appeal. There is no evidence on the face of the Third Further Amended Statement of Defence at pages 242 – 244 of the Record as to its date of filing or the order of court pursuant to which it was filed The amendment introduced into the Appellant’s case by the new paragraph 13 of the 4th Further Amended Statement of Defence was to plead lack of jurisdiction on the part of the court to entertain the case on the basis of Section 2 of the Public Officers Protection Act Cap 379 LFN, 1990.
On 5/4/2007 Appellant counsel decided not to re-call PW1 for cross examination anymore, but elected to open the defence and called DW1.
Learned Senior Counsel for the Appellant given his submissions that have been reviewed hereinbefore does not dispute the binding nature or effect of admissions made by parties in a case on one another in the course of a trial. He has however submitted to the effect that upon the introduction into the case of the Appellant’s 4th Further Amended Statement of Defence, the admissions which were expressly made in the course of hearing on 1/6/2004 and 6/7/2004 respectively fizzled into nothingness. This is because it is the said 4th Further Amended Statement of Defence vis-a-vis the Respondent’s Further Amended Statement of Claim both of which came into being after the admissions were made that defined the issues between the parties in the case. This according to the Appellant is particularly so as in paragraph 1 of each of its pleadings it denied all the averments in the Respondent’s pleadings except those that were expressly admitted.

A general denial or traverse without more, it has been held does not amount to a denial but is deemed to be an admission. See FIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LTD (2007) All FWLR (Pt. 352) 1719 at 1734. This is why the law requires that essential and material allegations in a plaintiffs pleading should not be reacted to in a statement of defence by a general denial or traverse. Instead they should be specifically denied. It is the specific denial or traverse of averments in the plaintiff’s statement of claim that can meaningfully give rise to an issue or give rise to an issue in a claim by the plaintiff. See NIKO ENGINEERING LTD V. AKINSINA & ORS (2005) All FWLR (PT. 292 AT 307-308).
I have before now observed in this judgment that the pleadings of the parties before the lower court when both learned counsel for the parties made the admissions and concessions of 1/6/2004 were the Respondent’s Amended Statement of Claim and Reply to the Amended Statement of Defence on the one hand and the Appellant’s Amended Statement of Defence on the other hand. Paragraphs 1 – 29 of the Amended Statement of Claim were admitted by the Appellant in the knowledge of what the averments in the paragraphs in question portended as well as in the knowledge of the Appellant’s case as set up in the Amended Statement of Defence.
The case of the Appellant as set up in the Amended Statement of Defence has been highlighted before now. The Appellant clearly never controverted the facts pleaded by the Respondent in paragraph 1- 29 of his Amended Statement of Claim. Though the general traverse converse covered the averments in the said paragraphs, given the purpose or efficacy of a general traverse as shown in the cases cited above, it would appear that in law the facts pleaded in the paragraphs stood admitted. The action of learned counsel to the Appellant expressly admitting the said paragraphs on 1/6/2004 was only a display of his appreciation of the position of the law in relation to facts in a statement of claim not specifically controverted in a statement of defence. In any event I know of no principle of law that precludes a defendant who in his statement of defence has even specifically pleaded facts to controvert those in the statement of claim from conceding to the case of the plaintiff at the trial.
The reasons for such a move can be legion but those that readily come to mind are: (i) a defendant can do establish the facts to controvert the case of the plaintiff as pleaded by him; (ii) a later realization or revelation that facts specifically pleaded to controvert the case of the plaintiff as pleaded by him and/or (ii) a later realization or revelation that facts specifically pleaded to controvert the case of the plaintiff are false.
The pleadings of the parties when the admissions and concessions of 6/7/2004 were made by both learned Counsel for the parties were the Respondent’s Amended Statement of Claim and Amended Reply to the Amended Statement of Defence on the one hand; and Appellant’s Further Amended Statement of Defence on the other hand. This process as earlier stated is no different from the one it amended save that it was averred therein with specific reference to paragraph 58 of the Amended Statement of Claim that a dismissed employee of the Appellant is by virtue of clause 5 of chapter 3 at page 7, of the staff manual not entitled to any salary and allowances after the date he is given notice of dismissal. This time around, the Appellant (who on 1/6/200 admitted only paragraph 1-29 of the Amended Statement of Claim) now admitted all the paragraphs of the same process save paragraphs 40 and 50 thereof.
The final pleadings of the parties in this case after the proceeding of 6/7/2004, were the Respondent’s Further Amended Statement of Claim dated 19/11/2004 and Reply to the 4th Further Amended Statement of Defence at pages 169- 214 and page 267 respectively of the Record of Appeal; on the one hand and the Appellant’s 4th Further Amended Statement of Defence on other hand. It is to be noted that in his latest pleading the Respondent never deviated or derogated from the facts pleaded in his previous pleadings, in the establishment of his case that his dismissal by the Appellant was wrongful. On the other hand it is apparent from a perusal of the Appellant’s 4th Further Amended Statement of Defence that the Appellant now pleaded some facts that went to controvert some of the facts pleaded by the Respondent in relation to the wrongfulness of his dismissal from the employment of the Appellant. This the Appellant did in paragraphs 6 – 8 of the 4th Further Amended Statement of Defence by pleading the procedure it took in coming to the decision to dismiss the Respondent. In other words, in its 4th Further Amended Statement of Defence the Appellant in some degree pleaded facts that controverted some of the facts pleaded in the paragraphs of the Respondent’s pleading that it had hitherto admitted.
The question that begs for an answer however, is what evidence did the Appellant who had earlier admitted the wrongfulness of the Respondent’s employment, as pleaded by the said party offer in respect of the averments which it now pleaded to controvert the same in its 4th Further Amended Statement of Defence.
The Appellant called one witness in the proof of its case. The witness is one Friday Floyd Chukwugozie Olimini. He testified as DW1. His evidence under examination-in-chief and cross-examination is at pages 421 – 423 of the Record of Appeal. I must say that I find no iota of evidence offered by the witness in respect of the averments in paragraphs 6 – 8 of the Appellant’s 4th Further Amended Statement of Defence.

It is in my view clear from the above that the propriety of the Respondent’s dismissal from the employment of the Appellant was in issue right from the first of the Respondent’s pleading to the last one he filed in this case. The Appellant in all its pleadings never specifically controverted facts pleaded by the Respondent in aid of his case that his dismissal was wrongful. The Appellant in its wisdom expressly stated at the trial of the case on 6/7/2004 that it admitted all the paragraphs of the Respondent’s Amended Statement of Claim save 40 and 50 thereof and in which the Respondent pleaded incisive facts in support of its case. It was in the last of its pleadings that the Appellant pleaded some facts suggesting that, the proper procedure was followed in dismissing the Respondent but even at that never adduced any iota of evidence in support of the averments.
Cases were cited in the Respondent’s brief of argument to show that admitted facts need no further proof and that admission by counsel is binding and effective. Section 75 of the Evidence Act was also referred to.
Section 75 of the Evidence Act indeed not only gives statutory recongnition to the fact that it is not only pleadings that facts in a civil case can be admitted, but that parties or their agents can admit the facts of a case at its hearing and that such admitted facts need not be proved unless the court hearing the case in its discretion requires the admitted facts to be proved otherwise than by the admissions.
As I have earlier said, the Appellant adduced no iota of evidence in respect of the averments it pleaded in its 4th Further Amended Statement of Defence in justification of its dismissal of the Respondent. Given this the situation where it cannot even be said that the Appellant placed anything before the lower court that ran contrary to its admissions, what then precluded the lower court from considering the instant case on the basis of the admission of the Respondent’s averments made by it through its counsel? It is my considered view that the Appellant is under serious misapprehension of the law when it submitted to the effect that the lower court erred in considering the admissions it made through its counsel, as it did not include the same in its amended pleadings made subsequent to the admissions. I do not think the submission in this regard is correct. This particularly so when it is appreciated that the admissions are in respect of facts pleaded by the Respondent in aid of his own case. It is only the Respondent that could have rendered the admissions irrelevant if it amended its pleading to exclude the admitted facts.
Given all that has been said above, I therefore do not see how the lower court can be accused of having breached the Appellant’s constitutional right to fair hearing in that it (i.e. Appellant) was prevented from conducting its case in the way it liked and/or of not considering the case put up by the Appellant because it considered the case on the basis of the Appellant’s admission. Indeed, what is glaring in the instant case is that the Appellant was given all the opportunity of conducting its case in the way it liked and that it was in the process that it made the admissions of 6/7/2004. If the Appellant now finds the use to which it put the opportunity, and consequences flowing therefrom unpalatable, this cannot be placed at the doorstep of the lower Court.
In the final analysis I therefore resolve Issues 1 and 8 of the Appellant’s Issues for determination of the appeal against it.
APPELLANT’S ISSUES 2 AND 4
Dwelling on Issue 2, the Appellant said that one of the major planks upon which the lower court rested its judgment was that the accusation against the Respondent bordered on criminality; in that the Respondent was accused of misconduct amounting to criminal offence; that the Respondent ought to have been tried by a regular court before his dismissal; and that the dismissal was a nullity and of no effect because he had not been so tried. The lower court was accused of having not averted its mind to the position of the law as modified and clarified by the Supreme Court in the case of Yusuf v. Union Bank of Nigeria (1996) 6 NWLR (Pt. 457). The case of Bamgboye v University of Ilorin (2001) FWLR (Pt. 32) was also cited as deciding that a tribunal conducting disciplinary proceedings cannot rightly be held to be trying a criminal charge where gross misconduct can be proved without the need to find the member of staff guilty of acts amounting to a criminal offence.The Appellant said this case is one of such. It is the submission of the Appellant that all the earlier cases starting from Sokefun v. Akinyemi (1980) 57 SC and Garba & Ors v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 that followed it are no longer good law. This the Appellant submitted makes the decision of the lower court to be erroneous and this Court was urged to set aside the decision of the lower court on this issue and hold that the hearing before its disciplinary committee and its decision were correct, legal and constitutional.
Dwelling on Issue 4, the Appellant submitted that the burden was on the Respondent to show or prove breach of the terms of his employment in that the manner of his dismissal was not in accordance with his contract of employment and that his employment enjoyed statutory flavour since he seeks reinstatement. The cases of Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506; and Jida v. Central Bank of Nigeria (2001) 5 NWLR (Pt. 705) 165; amongst others were cited, in aid.The Appellant again said that all averments in the Respondent’s pleading that it did not expressly admit in its 4th Further Amended Statement of Defence are deemed to be denied and therefore required to be proved by evidence by the Respondent. That all the previous or earlier admissions held on to by the lower court were not available to it to utilise and act upon. It is the submission of the Appellant that the evidence of the Respondent did not attempt to prove many of the ingredients of wrongful dismissal. The dismissal of the Respondent it was further said, has not been shown to have been carried out otherwise than in accordance with the provisions of the contract of employment between the parties. This Court was urged to allow the appeal on this Issue and hold that the Respondent failed to prove wrongful dismissal and order that the case be dismissed. Pleadings the Appellant stressed are no substitute for evidence.
The Respondent responded to these two Issues by his Issues 3 and 4 and argued them together. To appreciate the Issues the Respondent set out the facts and circumstances leading to his dismissal and said that they had to be considered holistically. The Respondent said that he was dismissed from the service of the Appellant vide Exhibit ‘H’. He however said that, Exhibit ‘H’ cannot be considered in vacuo as there are some other correspondences that turned out to be the precursors of Exhibit ‘H’. In this regard, reference was made to Exhibit ‘A’ which is the query issued to the Respondent. The Respondent said that, Exhibit ‘A’ was predicated upon fraud/forgery pertaining to statutory revenue allocations and that it clearly raised the issue or question of crime, it is the submission of the Respondent that where the dismissal of an employee is based on an allegation of crime, such an allegation must first of all be proved before it can stand and the case of Shuaibu v. UBN (1995) 4 NWLR (Pt. 388) 173 was cited in aid. The Respondent also submitted that though an employer is not bound to give any reason for lawfully terminating a contract of service, the employer must however give reason for summarily dismissing the servant and cited the case of Savannah Bank (Nig) Plc v. Fatokun (2002) 1 NWLR (pt.749) 544 at 560 in aid. The Respondent further submitted that the Appellant having given the reason for his dismissal. The Respondent said, it was clear from the totality of the documentary and oral evidence before the lower court that the alleged impropriety which was raised against him took place when he was on his annual leave duly approved by the Appellant. In this regard reference was made to Exhibit ‘D’ which the Respondent said was never challenged and therefore remained correct. The case of Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt.1957) 218 at 242 and 246 was cited in aid. The Respondent further said that it stood to reason that as he was on annual leave at the time of the alleged incident of fraud and forgery, he cannot be made responsible for act of grave misconduct. In other words, that the Appellant has not proved the alleged act of grave misconduct. This is aside from the fact that the allegation of fraud and forgery which formed the basis of the Appellant’s conclusion on the alleged act of ‘grave misconduct’ which allegations are criminal in nature were not proved before any court of law. This being the position, the Respondent submitted that the lower court was right in respect of all it stated at pages 470 – 471 of the Record and particularly when it concluded that his dismissal was null and void. The Respondent stressed that it would have been a travesty of justice if the lower court had found otherwise given the fact that the alleged misconduct the Appellant relied on in dismissing him took place or occurred when he was not around.
The Respondent said that it was beyond doubt that the Appellant is a creation of statute and referred in this regard to the averment in paragraph 2 of the Further Amended Statement of Claim. The averment the Respondent said was admitted by the Appellant as can be seen in the proceedings for 1/6/2004 and 6/7/2004. The Respondent again referred to paragraph 34 of the Further Amended Statement of Claim as setting out the grounds upon which he can be dismissed from the service of the Appellant. The staff manual, where the grounds are stated according to the Respondent was admitted as Exhibit ‘G’. This is aside from the fact that Appellant’s counsel admitted paragraph 34 of the Further Amended Statement of Claim during the proceedings of 1/6/2004 and 6/7/2004. It is the submission of the Respondent that the employment of the Appellant’s employees is with statutory flavour since the Appellant is a creation of statute and the case of CBN v. Igwillo (2007) 14 NWLR (Pt. 1054) 393 at 421 was cited in aid. It is the further submission of the Appellant that where the employer acted contrary to the terms and conditions of a contract of employment that enjoys statutory flavour, then such an act is null void. The Respondent submitted that his dismissal was ultra vires the Appellant and therefore null and void as the Appellant did not comply or show any compliance with the staff manual. In this regard the Respondent said that in proceeding against him for grave misconduct, the Appellant did not show or state which of the items of paragraph 6.4.2.2B (a) of the staff manual he breached to warrant his dismissal from service.
In its amended Reply brief, the Appellant stated that the arguments in respect, of Issue 4 at page 10 of its amended brief of argument adequately dealt with Respondent’s Issue 3. The Appellant went further to deal with Respondent’s Issue 4, but all that was stated in the amended Reply brief in substance the same with what had been said in the amended brief of argument.
As it can be from the submissions of the Appellant highlighted above, it is its stand that the decision of the Supreme Court in the cases of Yusuf v. Union Bank of Nigeria and Bamgboye v. University of Ilorin (both supra) have radically changed the position of the law as stated by the same Court in the cases of Sofekun v. Akinyemi and Garba v. University of Maiduguri (both supra). It has also been submitted by the Appellant that the burden is on the Respondent to show or prove that his dismissal was not in accordance with his contract of employment and that his employment enjoyed statutory flavour. Indeed under its Issue 5, the Appellant specifically submitted that the Respondent’s employment lacked statutory flavour as he was neither the Governor nor Deputy Governor of the Appellant and cited the cases of Katto v. CBN and CBN v. Okosun (both supra) in aid of the submission.
It is my view that the first point to resolve is the nature of the Respondent’s employment. The Respondent in my view has clearly revealed in its pleadings that he considered his employment to be one with statutory flavour; while the Appellant would appear to have portrayed the respondent’s employment a that of ordinary master and servant. In resolving the nature of the Respondent’s employment I will rely in decided cases.
In the case of CBN v. IGWILLO cited in the Respondent’s brief of argument and which case is also reported in (2007 All FWLR (Pt.379) 1385), the Supreme Court stated at page 1401 that there are three categories of contract of employment, 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. The Supreme Court dwelling further on when an employment is said to have statutory flavour said on the same page 1401 thus:-
“An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which parties agreed to be master and servant…”
See also the cases of IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION; ADEFEMIWA V. OSUN STATE COLLEGE OF EDUCATION, ILESA (2009) All FWLR (Pt.456) 1860 at 1866 -1967 (CA); and WAWA v. A-G, CROSS RIVER STATE (2008) All FWLR (Pt.401) 807 at pages 829 and 845 (CA).
The Respondent’s in its Further Amended Statement of Claim averred to the effect that his contract of employment is governed by the Appellant’s staff manual and which is a document proving for the conditions of employment of all staff of the Appellant. The staff manual the Respondent’s further stated was made pursuant to the provisions of the Act setting up the Appellant.
There is no specific denial from the Appellant in its pleading that its staff manual made pursuant to its Act, or that it is a document that provides for the conditions of employment of its staffs. Indeed the Appellant in paragraph 4 of its 4th Further Amended Statement of Defence said that its staff manual governed the employment of the Respondent and further portrayed the dismissal of the Respondent from its service as having been done in compliance with the provisions of its staff manual.
Applying the decisions in the cases cited above to the facts as pleaded in the pleadings of the parties, I am in no doubt that the employment of the Respondent prior to his dismissal was one with statutory flavour given the fact that the staff manual of the Appellant which was tendered by consent on 1/6/2004 and marked Exhibit G was not only made pursuant to the provisions o the Act establishing the Appellant and also contains clear provisions in relation to the employment and discipline of its employees. Indeed the question as to whether or not employment with the Appellant is one with statutory flavour would appear to have been laid to rest in the case of CBN v Igwillo wherein the affected staff was neither the Governor nor Deputy Governor of the Appellant and the Supreme Court clearly found his employment to be with statutory flavour. The submissions of the Appellant that the employment of the Appellant is not one with statutory flavour is therefore contrary to the prevailing or current position of the law.
The submission of the Appellant that the Respondent has the duty to show or prove the breach of the terms of his employment is no doubt sound in law.
This is because

it is the settled position of the law that he who asserts must prove or establish that which he has asserted. See OCEANIC BANK INTERNATIONAL LTD V. UDUMEBRAYE [2008] All FWLR (Pt. 430) 769.
The Appellant has also submitted to the effect that the Respondent did not establish that the accusation against him bordered on criminality and that the lower Court was therefore wrong to have found that the Respondent was accused of misconduct amounting to criminal offence and that his dismissal is null and void because he was not tried by an ordinary court. That in the circumstances the Respondent’s dismissal is null and void.
I have read the judgment of the lower court at pages 455 – 471 of the Record of Appeal, it is clear therefrom that the lower Court indeed found that the Respondent was accused of misconduct amounting to criminal offence and that because of this he ought to have been tried by the ordinary court before he was dismissed. The lower Court in this regard relied on the decision of FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 652 at 657. While I cannot fault the finding of the lower court that given the content of Exhibits ‘A’ and ‘H’ the gross misconduct the Respondent was accused of indeed bordered on criminality, I am however unable to agree with the said court that the Respondent ought to have been tried in the ordinary court before he could be dismissed. In this regard see the cases of ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION [2007] All FWLR 243 at 265 – 266 where the Supreme Court per Ogbuagu, J.S.C, held amongst others that in statutory employment just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided the employee is given fair hearing. See also the decision of this Court in ANNAM V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] All FWLR (Pt. 296) 843 on the matter.
The lower Court apart from holding in the vein stated above, however also held to the effect that as the Respondent had shown that he was on leave when the misconduct bordering on criminality he was accused of was committed and not only tendered documents to the effect but as the Appellant never refuted this in any manner, it (i.e. lower court) has no option then to believe the Respondent that he knew nothing about the alleged crime.
The cases cited above that go to show that an employee in an employment with statutory flavour need not be first charged to court before he can be dismissed; it should be noted never decided to the effect that the dismissal of such an employee can be undertaken in any manner that the employer fancies. It is clear from the cases that the employer in adhering to the dictates of fair hearing which is all that is required of it/him must still follow the procedure set down in its regulations or conditions of service in other to properly dismiss an employee against whom misconduct bordering on criminality is alleged.
In the instant case, the Respondent having regard to the averments in his Further Amended Statement of Claim did not rely only on the fact that he was not first charged to court before he was dismissed in attacking his dismissal.
Earlier in this judgment, I have highlighted the case of the Respondent in challenging the propriety of his dismissal. Suffice it to say that the Appellant through its counsel admitted all the averments the Respondent pleaded in aid of his assertion that there was no basis for the decision of the Appellant finding him guilty of grave misconduct and that the conditions for which his employment can be terminated or dismissed had not crystalised or occurred when the Appellant dismissed him. I have already stated in this judgment that the admissions of all the paragraphs (save 40 and 50) of the Respondent’s Amended Statement of Claim where facts in support of his case were pleaded remained relevant and binding on the Appellant inasmuch as the Respondent never jettisoned the issues admitted in the Further Amended Statement of Claim. Though the Appellant in its 4th Further Amended Statement of Defence pleaded facts to the effect that it followed the proper procedure set out in the staff manual in dismissing the Respondent, I have also stated that the Appellant adduced no iota of evidence in the proof of its case in that regard. Given the situation and particularly as the Respondent is relieved of the duty of leading oral evidence on admitted facts by Section 75 of the Evidence Act, I, in the circumstances cannot see how the Appellant’s submission that the Respondent did not adduce evidence of the circumstances showing that his dismissal from the employment of the Appellant was in breach of his contract of employment can be said to be well founded. In the first place the Respondent adduced evidence in the proof of the wrongfulness of his dismissal through the admissions of counsel to the Appellant which relieved the Respondent of adducing oral evidence in respect of the admitted facts. The failure of the Appellant to adduce evidence in respect of paragraphs 40 and 50 of the Respondent’s pleading which it denied by necessary implication in its pleading also inured to the benefit of the Respondent.
In the circumstances, I cannot fault the conclusion of the lower court that the dismissal of the Respondent by the Appellant was a nullity and of no effect even if the said court in arriving at the conclusion wrongly applied the law as it relates to charging the Respondent before a court before he could be dismissed.
In conclusion while Appellant’s Issue 2 is resolved in favour of the Appellant, Issue 4 is however not so resolved. It is resolved against the Appellant.
APPELLANT’S ISSUE 3
Dwelling on this Issue, the Appellant said, it relates to the pleading concerning the failure of the Respondent to utilise its internal machinery of appeal against the decision to dismiss the Respondent to its (i.e. Appellant’s) Director of Personnel or Executive Director or Governor. The Appellant said in the main that having regard to the state of pleading as disclosed in paragraph 10 of its 4th Further Amended Statement of Defence and paragraph 2 of the Respondent’s Amended Reply to the 4th Further Amended Statement of Defence, the Respondent who had the burden of proving that he served a letter of appeal on it (i.e. Appellant) did not adduce the requisite evidence in the proof of the fact. It is the submission of the Appellant that tendering in evidence of a copy of the letter of appeal the Respondent claimed to have written to it was inadequate to prove due service of the said letter on its appropriate organ and that this is so notwithstanding the non objection to the same. The cases of Abubakar v. Chuks [2007] 12 SCNJ 1 at 12; and Yadis V. Great Nigeria Insurance Co. Ltd (yet unreported but decided by the Supreme Court on 4/5/08) were cited in support. The case of University of Ilorin v. Oluwadare [2006] 7 SCNJ 335 was also cited to show that failure to serve the Appellant with the letter of appeal, as alleged made the instant action brought by the Respondent to be premature and that consequently his claim must fail.
The Respondent dealt with Appellant’s Issue 2 under his Issue 3. The Respondent said that the provision of Clause 16 of Chapter 6 at page 6 of the Appellant’s staff manual which provides to the effect that a member of staff not satisfied with the decision of the Disciplinary Committee may appeal to the Director of Personnel, the Deputy Governor, General Administration or the Governor, constitutes a condition precedent to be satisfied before the filing of an action. The Respondent referred to the averment in the Appellant’s 4th Further Amended Statement of Defence where it raised the issue that he did not avail himself of the provision of appealing against the Appellant’s decision dismissing him and his own pleading on the issue as contained in
the Reply to the 4th Further Amended Statement of Defence and submitted that the law is that the fulfillment of a condition precedent before an action is filed is always presumed. The case of Mobil Producing Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1 at 23 was cited in aid. It is the submission of the Respondent that the law therefore presumed that he fulfilled all internal machinery before he filed the instant action and that the onus was on the Appellant to prove that he did not. The Respondent referred to the evidence of Appellant’s only witness at the hearing of the case i.e. DW1 at page 422 of the Record and submitted that the evidence of the said witness under examination-in-chief did not discharge the onus. He also referred to the evidence of the witness under cross-examination and submitted that the letter of appeal tendered through the witness as Exhibit ‘J’ being documentary is more probable than the ipse dixit of the witness as such evidence is the hanger by which oral evidence is assessed. The cases of Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 and CDC (Nig) Ltd v. SCOA (2007) 6 NWLR (Pt.1030) 300 at 366 were cited in aid.
The Appellant in its amended Reply brief in effect submitted that the burden was on the Respondent to establish that he complied with the internal machinery provided for in its staff manual.
The law as submitted by the Respondent clearly does not expect the Respondent being the initiator of the instant action to plead the fulfillment/satisfaction by him of the internal machinery of appeal provided for in the staff manual of the Appellant. The compliance with the internal machinery of appeal, not being necessary facts in respect of the Respondent’s claims is not required to be pleaded. See the case of Mobil Producing Umlimited (supra) cited by the Respondent. The Appellant being the party that raised the issue therefore had the onus of proving the same. The Appellant had very clear knowledge of the stand of the Respondent concerning the issue of compliance with its internal machinery given the averment in paragraph 2 of his Reply to the 4th Further Amended Statement. The Respondent in the said paragraph 2 not only averred that he wrote a letter dated 4th July, 2003 to the Director of Personnel of the Appellant seeking for the review of his dismissal but also alleged in the averment that the Appellant failed to acknowledge the receipt of the letter in question.
The evidence of DW1 the only witness called by the Appellant is at pages 422 – 423 of the Record. Dwelling on the issue of non-satisfaction of the internal machinery of the Appellant by the Respondent during his examination-in-chief, all that the witness stated was that any employee that felt unduly dismissed or terminated has the right to appeal to the ‘Government of Central Bank’ or Director, Human Resources stating his case. That such letters/appeals will be minuted to the Employees Relation Officer for processing. The witness concluded that no such letter was received from the Respondent. Under cross-examination the witness admitted that he is not the Director of Human Resources Department and that any letter of appeal by a dismissed/terminated staff will not be directed to him. A letter of appeal written by the Respondent having been tendered and admitted without objection from learned counsel to the Appellant, the witness further said that the Director of Human Resources is a woman but that he does not know her name. The witness not only admitted that he is not a member of the Management Board of the Department but also that the Director of Human Resources was presently in the office and knew that he was coming to court to testify. Under re-examination the witness said that there was no endorsement on Exhibit ‘J’ showing that it was received.
It is my settled view that, it is the particular averment in a pleading that donates the nature of evidence that has to be led in its proof. The Appellant averred to the effect that the Respondent did not avail himself of the provision in its (i.e. Appellant) staff manual relating to appealing against his dismissal.
The Appellant called a witness who could not testify concerning the receipt or non-receipt of any such letter if written by the Respondent. The witness under cross-examination made it clear any letter of appeal the Respondent might have written could not have been directed to him and that he not being a member of the Board of Management of the Department could not have had anything to do with such a letter.
It would in my view appear clear that the tendering of Exhibit ‘J’ showed that the Respondent wrote a letter of appeal. The averment in the Reply of the Respondent to the 4th Further Amended Statement of Defence on the issue is that the Appellant failed to acknowledge the receipt of the letter he wrote. The evidence of DW1 that there is no endorsement on Exhibit ‘J’ showing the fact of the receipt of the letter appears to be begging the question. The Respondent clearly pleaded the fact of non-acknowledgment of the receipt of the letter. The Director of Personnel or Human Resources as the official was then known and to whom the letter was alleged to have been written was aware that DW1 was going to court to testify. This official was not called to come and debunk the averment of the Respondent which is to the effect that a letter of appeal was written to him but that the receipt of same was not acknowledged. I am of the considered view that given the evidence led on the issue, the Appellant did not discharge the onus of proof on it that the Respondent did not satisfy its internal machinery relating to appeal. Indeed on the contrary the evidence adduced on the issue clearly suggests that the official to whom the letter i.e, Exhibit ‘J’ was addressed and who could have controverted or challenged the question of non-acknowledgment raised by the Respondent was kept away from testifying for reasons best known to the Appellant. In the circumstances the Respondent had on the state of evidence before the lower Court shown that it was more probable that he wrote the Appellant a letter of appeal against his dismissal but that the same was not acknowledged as he asserted.
In the light of the foregoing, I therefore do not see how the lower court can be said to be wrong in its conclusion that the Appellant cannot challenge its jurisdiction to entertain the instant action having regard to Exhibit ‘J’.
In conclusion Appellant’s Issue 3 is resolved against it.
APPELLANT’S ISSUES 5, 6 AND 7
The Appellant argued Issues 5 and 6 together in its brief of argument. Dwelling on the Issues the Appellant said that the lower court erred in not applying the correct measure of damages and just awarded the sums claimed by the Respondent as damages without regard to applicable measure of damages. It is the submission of the Appellant that one month salary of the Respondent is all that he is entitled to if it (i.e. Appellant) is found liable for wrongful dismissal. This according to the Appellant is because in a situation where an employment has no statutory flavour and employer has the right to determine the same for good or bad reasons or for no reason at all and when this is done in breach of an employee’s contract, the damages due to the employee is the salary he would have earned for the period of the notice required to terminate the employment where this is provided for. The cases of Katto v. CBN [1999] 6 NWLR (Pt. 607) 390; and CBN v. Okosun [1996] 2 NWLR (Pt. 428) 77 amongst others were cited. The book titled Nigerian Labour and Employment Law in Perspective by Oladosu Ogunniyi 2nd Edition at pages 228 – 230 was also referred to. It is also the submission of the Appellant that previous suits have specifically established that the employment of its employees unless they are Governor or Deputy Governor is not one with statutory flavour and that therefore the Respondent was not entitled to all the monetary and not-monetary awards made in his favour by the lower court. Referring to the averment in paragraph 58 of the Further Amended Statement of Claim wherein the Respondent pleaded his monthly salary to be N39,610.25, the Appellant submitted that this was all the Respondent could have been entitled to in the event his dismissal was wrongful. It is the submission of the Appellant that the Respondent however never adduced any evidence in proof of his salary. Damages the Appellant submitted are deemed denied unless specifically admitted. The Appellant said that it did not admit the salary of the Respondent.
ISSUE 7
Dwelling on this Issue, the Appellant in the main said that an injunction is granted to support a legal right and that there was no evidence concerning the Respondents legal right to live in or continue to live in or occupy its (i.e Appellants) premises after his employment came to an end. The case of Nwana v FCDA [2004] 13 NWLR (Pt. 889) 128 at 144 – 145 was cited in aid. The Appellant submitted that the principle in the case applied in the instant case to deprive the Respondent of a right to maintain an action for the relief.
The Appellant said that the Respondent, who was a mere licensee ceased to have any legal right over its premises following the determination of his employment. It was further submitted that a party who has no legal right cannot obtain an injunction. The following cases amongst others were cited in aid: Yalaju-Amaye v. AREC Ltd [1990] 4 NWLR (Pt 145) 422 at 451- 452; Union Beverages Ltd v. Pepsicola [1994] 2 SCNJ 157; and Justina Paul v. Ozokpo [1995] 4 SCNJ 119 at 139. It was also submitted that a claim for injunction must fail where it is ancillary to a claim for a declaration which is not maintainable and the case of Akunezini v. Okenwa [2000] 12 SCNJ 242 was cited in aid.
The Respondent dealt with the three Issues to which grounds 5, 6, and 7 of the grounds of appeal relate under his issue 5. The claims of the Respondent as set out in paragraph 61 of the Further Amended Statement of Claim were referred to. The Respondent said that the effect of the finding of the lower court that his dismissal was null and void is that he was never dismissed or removed from office. That this means he is still a staff of the Appellant until the laid down procedure is followed before he can be removed. The cases of Adefulu v. Okulaja (1996) 9 NWLR (Pt. 475) 668 at 693 and Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 168 were cited in aid. The Respondent referred to paragraph 58 of the Further Amended Statement of Claim where he pleaded his entitlements and said that the Appellant through its counsel at the proceeding of 6/7/2004 admitted the same but averred that he (i.e. Respondent) was not entitled to them from the date of his dismissal. The Respondent submitted that the qualification made by the Appellant’s counsel in respect of paragraph 58 (supra) was no longer relevant given the finding of the lower court that his dismissal was null and void. It is the further submission of the Respondent that the lower court was right in awarding his claims in the light of the admissions by learned Counsel for the Appellant. The Respondent also stated that he gave unchallenged evidence concerning the number of years for which he had served and number of years he had left to serve. He referred to page 289 of the Record of Appeal in this regard. The Respondent submitted that all the cases cited by the Appellant in support of its submissions as to the sum in damages he is entitled to are not relevant as the termination of appointment or dismissal in the cases were not found to be null and void unlike in the present case.
The Respondent submitted that in any event in his Further Amended Statement of Claim, his principal claim was for reinstatement. That the claims for monetary awards were alternative claims and that the payment of salary for 13 years remaining on his contract of employment was an alternative relief granted by the lower Court. The Respondent argued that by virtue of the case of CBN v. Igwillo (supra) it is not in doubt that where a contract of employment with statutory flavour is found wrongfully determined as in the instant case, he is entitled to reinstatement. It is the submission of the Respondent that if this Court is of the view that the alternative relief ought not to have been granted him (but which he did not concede), there was nothing that stopped this Court from varying the order of the lower court by now making an order that will meet the justice of the case and which order is that of reinstatement. It is the submission of the Respondent that this Court can do this pursuant to its powers under section 15 of the Court of Appeal Act, 2004. The case of Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309 at 319 was cited in aid.
I have earlier in this judgment stated that the employment of the Respondent with the Appellant is one with statutory flavour having regard to the position of the law on the issue. In the case of IFETA V. SPDC OF NIG. LTD [2006] 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. The Supreme Court in the case under reference however made it clear that the re-instatement is usually ordered in contracts of employment with statutory flavour. Indeed in the case of CBN v. Igwillo (supra) the Supreme Court made it clear that the proper order to make where it is found that, an employment with statutory flavour has been wrongfully terminated is one re-instating the affected employee. Such employee in addition is however entitled to damages representing his salaries during the period of his purported dismissal.
In the instant case, I do not think the submission of the Appellant that the Respondent gave no evidence concerning his salary has any basis given my earlier finding that the admissions made by Appellant’s counsel remained relevant and binding on the Appellant despite the amendments it made to its Pleadings. This as earlier stated is because the Respondent who pleaded the facts which the Appellant admitted through its counsel never rendered the facts so admitted to be non-issues in any of his amended pleading The Appellant having admitted in the course of the proceedings in this case on 6/7/2004 that the terminal salary and other entitlements of the Respondent are as pleaded in paragraph 58 of the Amended Statement of Claim cannot resile from the admission and now be heard to say that the Respondent did not adduce evidence in proof of his salary. This is particularly so as Section 75 of the Evidence Act relieves the Respondent of the need of leading oral evidence in respect of admitted facts and as the pleading in paragraph 58 of the Respondent’s Amended Statement of Claim remained the same in paragraph 58 of the Further Amended Statement of Claim.
Given all that has been said before now, Appellant’s Issue 5 and 6 argued together as well as his Issue 7 must all be resolved against it, in view of the findings that the employment of the Respondent prior to his dismissal was one with statutory flavour and that the employment was wrongfully terminated by way of dismissal and which made the same to be null and void.
In effect the Respondent remained an employee of the Appellant despite his purported dismissal. This being the situation, he is by virtue of the finding that his dismissal was unlawful, null and void entitled to be reinstated into his position and also to his salary for the period of his purported dismissal. He is also entitled to remain in the accommodation he had by virtue of his employment.
These are the proper orders the lower court should have made given its finding and in the absence of anything showing that he (i.e. Respondent) cannot now be re-instated into the post he held before his purported dismissal.
The issue of an employee being foisted on an unwilling employer has no application in employment with statutory flavour. There is therefore need to vary the order made by the lower court to conform with the appropriate order a court should make upon a finding that an employment with statutory flavour has been wrongfully terminated by way of dismissal.
APPELLANT’S ISSUE 9
Dwelling on this Issue, the Appellant said that the evidence adduced by the Respondent concerned introductory matters; the number of years he had put in and the number of years he expected he would put in before he retired. The evidence the Appellant said did not deal with any material fact which the lower court had to resolve in the case. The Appellant said that apart from the declaratory reliefs, the other reliefs sought by the Respondent were consequential and that they ought not to be considered unless and until the substantive reliefs of declarations were considered and granted. The Appellant said that the lower court in granting the declarations sought by the Respondent relied on the alleged admissions which it had departed from in its later pleadings. The Appellant said that by law, a party who admits a point is required to file an amended pleading setting out therein the admitted facts and that this was not the situation in the instant case. The cases of Dim v. Enemuo [2009] 4 SCNJ 199; Onu & Ors v. Agu & Ors [1996] 5 SCNJ 74; Clay Industries Nigeria Ltd v. Adeleye Aina & Ors [1997] SCNJ 491 amongst others were cited in aid of the points made under this Issue.
The Respondent stated that, the complaint addressed by the Appellant under this Issue is that admissions cannot be the basis of the granting of a declaratory relief. It is the submission of the Respondent that the position of the law that that declaration cannot be granted on the basis of admission is not applicable in the circumstances of the instant case. The Respondent said this is because apart from the admission made by the Appellant through its counsel, pieces of documentary evidence tendered by consent sufficiently established the case against the Appellant. It is the submission of the Respondent that it is preposterous of the Appellant to argue that the judgment of the lower court was based on admissions. The case of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 311 – 312 was 2 cited in aid. The Respondent urged that this Issue be resolved against the Appellant.
It is clearly a total misconception of the state of evidence in this case for the Appellant to argue that the declaratory reliefs claimed by the Respondent were so granted without his adducing evidence in support of the same. All the admissions made by counsel for the Appellant at the hearing of the case on 6/7/2004 and which by virtue of Section 75 of the Evidence Act the Respondent needed not to have called oral evidence in proof of, was before the lower court.
Also before the lower court, were the documents tendered by consent and which constituted evidence the lower court was enjoined to evaluate and act upon, It is obvious from a perusal of the judgment of the lower court that the said court made use of the documentary evidence before it, in arriving at the conclusion that the dismissal of the Respondent was a nullity and of no effect Indeed the case of Amaechi v. INEC (supra) cited by the Respondent eminently shows that the reliance placed on the admissions made by counsel to the Appellant and copious documentary evidence in the instant case is sufficient to ground the declarations the Respondent sought.
Accordingly, I do not see how it can be properly said that the Respondent did not adduce evidence on relevant averments to sustain the declarations granted him in the judgment of the lower court. Issue 9 is accordingly resolved against the Appellant.
Given the resolution of Appellant’s Issues 1, 3, 4, 5, 6, 7, 8 and 9 against it I find the instant appeal to be unmeritorious. It therefore fails and is hereby dismissed. However in view of the finding that the lower court did not make the proper order it should have made consequent to the finding that the dismissal of the Respondent from the employment of the Appellant (which as earlier stated is one with statutory flavour) is a nullity and of no effect, the orders (i) for the immediate payment of his gratuity and pension to be calculated as if he has retired at 60 years of age or served the defendant for 35 years; and payment to be made as obtainable or applicable to defendant’s policy, practice and tradition are set aside. In place of the judgment of the lower court, this Court pursuant to its powers under Section 15 of its Act, enters judgment for the Respondent in the terms of the reliefs set out in paragraph 61 of the Further Amended Statement of Claim namely: –
“1. DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June, 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiffs right to fair hearing and the rules and regulations governing his contract of service with the Defendant
2. DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June, 2003 for offences, acts and or omission which occurred during the period when he was on annual leave and not on duty is wrong and unlawful, null and void.
3. AN ORDER reinstating the plaintiff back to his employment with the Defendant.
4. AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emolument and entitlements from July, 2003 until the plaintiff is re-instated.
5. AN ORDER of injunction restraining the Defendant whether by itself, its servants, agents, and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block D6 Flat 44 (Intermediate and Junior) Garki, Abuja”.
Costs in the sum of N50,000.00 is awarded in favour of the Respondent and against the Appellant.

HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A: I have had a preview of the judgment just delivered by my learned brother A.O. LOKULO-SODIPE, J.C.A, I agree with the reasoning and conclusions reached therein that the appeal lacks merit. I adopt same as mine.
I also dismiss the appeal and abide by the consequential orders made including order as to costs

JIMI OLUKAYODE BADA, J.C.A: I have had the privilege of reading in a draft form the lead Ruling just delivered by my learned brother AYOBODE O. LOKULO-SODIPE JCA. His Lordship has exhaustively dealt with all the live issues in this appeal I have nothing more to add.
This appeal is unmeritorious and it is also dismissed by me I abide by the consequential orders including the order as to costs.

Appearances

B. Aluko-Olokun, SAN with F.U. Okolo For Appellant

AND

L.O. Fagbemi, SAN with O.A. Dare and B.A. Oyun For Respondent