DICKSON D. BOLOU v. FEDERAL COLLEGE OF EDUCATION, OBUDU & ANOR (2019)

DICKSON D. BOLOU v. FEDERAL COLLEGE OF EDUCATION, OBUDU & ANOR

(2019)LCN/13078(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/C/228/2018

RATIO

LABOUR LAW: WRONGFUL TERMINATION: DUTY OF THE CLAIMANT

In wrongful termination the claimant is required to place before the Court the contract of employment from where he derives the rights which he claims were violated, see KATTO VS. CBN (1999) LPELR-1677(SC) which restated the responsibility of any claimant who alleges that his employment was wrongfully terminated thus:
It is the law that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the Court the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these. The principle has been laid down by this Court in many cases including specifically Amodu vs. Amode (1990) 5 NWLR (PT.150) 356, followed in Iwuchukwu vs. Nwizu (1994) 7 NWLR (PT. 357) 379 at 412. In Amodu vs. Amode (supra), Agbaje, J.S.C., who read the leading judgment observed at page 370:

“….. it appears clear to me that since it is the plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question. To this Wali, J.S.C. added at p.373: “The term of the contract of service is the bedrock of the Appellant’s case.”PER YARGATA BYENCHIT NIMPAR, J.C.A.

BURDEN OF PROOF UNDER SECTIONS 131 AND 132 OF THE EVIDENCE ACT 2004 IS ON THE PERSON WHO ASSERTS

ADMISSION: DEFINITION IN LAW

It is settled law that where a Respondent fails to react to an issue he is deemed to have admitted it, see MANCHA VS. EMUKOWATE (2017) LPELR-43113(CA) which held:
“It is settled law that where a party fails to respond to a point or an issue, either in the brief of argument or oral presentation, the opposing party is deemed to have admitted all that his adversary has stated – Okongwu vs. Nigeria National Petroleum Corporation (1989) 4 NWLR (PT. 115) 296, Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt 1209) 518 and International Tobacco Company Plc vs. British American Tobacco Nigeria Ltd. (2013) LPELR-CA/IL/43/2012.”PER YARGATA BYENCHIT NIMPAR, J.C.A.

STATUTORY FLAVOUR EMPLOYMENT: DEFINITION
An employment with statutory flavor is an employment which enjoys statutory flavor and in which the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: IMOLOAME VS. W.A.E.C. (1992) NWLR (PT.265) 303; OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599; SHITTA-BEY vs. PUBLIC SERVICE COMMISSION (1981) 1 SC 40. See COMPTROLLER GENERAL OF CUSTOMS & ORS. VS. GUSAU (2017) LPELR-42081(SC).PER YARGATA BYENCHIT NIMPAR, J.C.A.

BREACH OF FAIR HEARING: FAILURE OF THE COURT TO RESOLVE ALL ISSUES IS A BREACH OF FAIR HEARING
Failure to resolve all issues is also a breach of fair hearing as was held by the apex Court in the case of HONEYWELL FLOUR MILL PLC VS. ECOBANK (2018) LPELR-45127 (SC). This aspect relates to the failure to issue two prior warning which was considered earlier in this judgment and found not relevant. The trial Court is still expected to have said the case of the Appellant does not fall under that provision instead of glossing over it and keeping mute on the issue. As it was said, the Court should say something even if the party is talking nonsense. It is a duty that must be carried out in interest of justice.PER YARGATA BYENCHIT NIMPAR, J.C.A.

THE DUTY OF THE TRIAL COURT TO PRONOUNCE ON ALL ISSUES BEFORE IT
See also FRN VS. DAIRO & ORS. (2015) LPELR-24303(SC) which held as follows:
By way of preliminary observations, we note that, except in such recognised exceptions as established in cases like Okonji vs. Njokanma [1991] 7 NWLR (Pt. 202) 131; Oro vs. Falade [1995] 5 NWLR (Pt. 396) 385, citing Anyaduba & Anor. vs. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt. 243) 535; Balogun vs. Labiran (1988) 3 NWLR (Pt. 80) 66 at 80, the long-established rule is that an intermediate Court has a duty to pronounce on all material issues placed before it, Samba Petroleum Ltd. and Ors. vs. UBA PLC and Ors [2010] 6 NWLR (pt) 530, 531; Brawal Shipping vs. Owonikoko [2000] 6 SCNJ 508, 522; Federal Ministry of Health vs. Comet Shipping Agencies Ltd. [2009] 9 NWLR (Pt. 1145) 193; Adeogun vs. Fasogbon [2011] 8 NWLR (Pt. 1250) 427; Ovunwo vs. Woko (2011) 17 NWLR (Pt.1277) 522 etc.”Per NWEZE, J.S.C.PER YARGATA BYENCHIT NIMPAR, J.C.A.

THE DUTY OF THE TRIAL COURT TO PRONOUNCE ON ALL ISSUES BEFORE IT: EXCEPTION
One of such exceptions I dare say is where the issue of jurisdiction succeed and which is manifest on the process, and one example is where the writ was issue by a law firm, and where a suit is remitted back for retrial, in order not to prejudice the mind of the judge, the Court in such a situation avoid making a pronouncement on those issues that have to retried. So there are exceptions to the rule.PER YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

DICKSON D. BOLOU Appellant(s)

AND

1. FEDERAL COLLEGE OF EDUCATION, OBUDU
2. HONOURABLE MINISTER OF EDUCATION Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This judgment is premised on the judgment of the National Industrial Court sitting in Calabar and delivered on 19th February, 2015 by Hon. Justice Obaseki-Osaghae in suit No. NICN/CA/74/2013 wherein the claim of the Appellant as Plaintiff for unlawful termination as Director of Works with the 1st Respondent was dismissed and he was ordered to refund to the Respondents the sum of N1,526,000.00 (One Million, Five Hundred and twenty Six Thousand Naira) only being money the 1st Respondent lost through over pricing and over invoicing of various items. Dissatisfied with the decision of the Court below, the Appellant filed a Notice of Appeal pursuant to leave of Court granted on the 30th April, 2018 setting out 6 grounds of appeal.

?Facts leading to this appeal are straight forward and better appreciated from the pleadings of the parties and respective positions taken at the trial. The claim has a chequered history as it commenced in the Federal High Court Abuja before it was transferred to Calabar and subsequently transferred to the Court below.

The Appellant was Director of Works with the 1st Respondent when his employment was terminated and he took out a writ on the 8th January, 2010 challenging his termination, in support of the writ is a statement of claim where in the Appellant sought the following reliefs:
i. A declaration that the termination of his appointment as contained in the memorandum of termination of Appointment dated the 12th day of October, 2009 is unlawful, null, void and of no effect whatsoever.
ii. A Declaration that the directive that he should refund the sum of 4.2 Million Naira is unlawful, void and of no effect whatsoever.
iii. A declaration that the visitation panel exceeded its powers and terms of reference and acted in breach of fair hearing.
iv. A declaration that the decision of the Governing Council of the Federal College of Education, Obudu, as they relate to the Plaintiff, were reached without affording him prior opportunity to answer and defend himself against the allegations leveled against him.
v. An order re-instating the Plaintiff into service of the 1st defendant as its director of works.
vi. An order that the Plaintiff be paid all

arrears of enumeration and outstanding benefits stopped as a result of the unlawful termination of employment.

The Appellant as claimant alleged that the visitation panel empanelled for the 1st Respondent made adverse recommendations concerning him without giving him a hearing and his written submissions to the review panel was not considered. That he protested in writing and his employment was terminated while he was awaiting a response. That the termination letter came with a memorandum asking the Appellant to refund the sum of N4.2 Million Naira which represents unretired purchase advance. He then took out a writ against the Respondents challenging the termination and demand for refund.

The claim was denied and with issues joined the matter proceeded to hearing wherein the Appellant testified and the 1st Respondent also called a sole witness in defence. Upon a careful consideration of the evidence and written addresses of the parties, the Court below entered judgment in favour of the Respondents dismissing the claim of the Appellant. Aggrieved by the said decision the Appellant filed this appeal.

The Appellant?s brief settled by EDIDIONG USUNGURAUA, ESQ., is dated 14th May, 2018 filed on the 18th May, 2018. It distilled 5 issues for determination as follows:
i. Whether the failure of the learned Trial judge to consider and determine the corrosive effect of the non-issuance by the Respondent of two prior warnings to the Appellant before the termination of his appointment as required by his conditions of service constitutes a denial of fair hearing to the Appellant and if yes, whether the judgment is not liable to be set aside.
ii. Whether the trial Court had the jurisdiction to have granted to the 1st Respondent a relief not sought by directing the Appellant to refund to the 1st Respondent the sum of N1,526,000.00 (One Million and twenty six thousand Naira) and if no, whether that directive does not constitute a denial of fair hearing/trial to the Appellant against whom that relief not sought was granted.
iii. Whether the learned trial judge was right to hold that the Appellant was afforded fair hearing by the visitation Panel which did not invite him at all to appear before it or the review panel which did not take into cognizance his

written defense and before whom he spent less than 10 minutes.
iv. Whether there was any scintilla of evidence before the trial Court to support its finding that the Appellant?s employment was properly terminated and in particular, that there was compliance by the Respondents with the provisions of clause 7.2 of the Appellant?s contract of service.
v. Whether in view of the evidence before the Court, the learned trial judge was not wrong in holding that the Visitation Panel did not exceed its terms of reference and mandate.

The 1st Respondent?s Brief settled by RICHARD OGBECHE ESQ., is dated 20th June 2018 and filed on the 22nd June, 2018. It distilled 4 issues for determination as follows:
a. Whether the learned Trial Judge failed to consider and determine the condition for termination of appointment of the Appellant as provided for in his condition of service and have enough evidence before the Court to hold that the 1st Respondent compiled (sic) with Section 7(2) of the condition of service.
b. Whether the visitation and review panel afforded the Appellant the opportunity to defend himself and gave him fair hearing.

c. Whether the learned trial Judge was not right in holding that the visitation panel did not exceed its terms of reference and mandate.
d. Whether the lower Court can consequentially grant relief not sought by any of the party.

The 2nd Respondent who was served with all processes in this appeal and hearing notices failed and neglected to appear to take any step in this appeal. The Court then granted the Appellant leave to hear the appeal on the Briefs of the Appellant and 1st Respondent only and in the absence of the 2nd Respondent who in spite of being served with all processes including hearing notices neglected to appear to respond to the appeal.

Upon a careful consideration of the Notice of Appeal, the record of appeal and the briefs of the Appellant and the 1st Respondent, the Court shall adopt the issues formulated by the Appellant for determination in this appeal. That will enable the Court consider and resolve all the areas of complaint in the appeal. The Appellant considered issues one and four together. I shall determine the issues all at once for expediency and to avoid repetition.

ISSUE ONE & FOUR
The Appellant started by arguing combined issues one and four and submitted that he was not given 2 prior written warnings/query before his appointment was terminated in contravention of the Clause 6.7(b) of the Appellant?s Conditions of service and questioned whether that failure did not vitiate the purported termination of employment. He contended that the employment is one with a statutory flavor. He also listed 3 conditions which must coexist before any termination can be lawful. He contended that the trial Court did not resolve the non fulfillment of the conditions for termination of employment, a failure which he alleged breached his right to fair hearing, citing ODETAYO VS. BAMIDELE (2007) WRN VOL.35 1 AT 15 and a long line of cases on the need for a Court to consider all issues presented for determination and that there is no exception to the rule relying on F. C. D. A. VS. SULE (1994) 3 NWLR (PT. 332). On the effect of failure to pronounce on all issues, the Appellant relied on CHIEF BROWN UZUDA & ORS VS. MR. EZEKIEL EBIGAH & ORS. (2009) 15 NWLR (PT. 1163) 1 SC to urge the Court to intervene in this regard.

Submitting further, the Appellant argued that there was no evidence before the Court to support the findings arrived at by the trial Court that informed it to hold that the termination was lawful. He contended that he was a permanent or confirmed staff and he ought to have been paid three months salary in lieu of notice and that there was uncontroverted evidence that he was not paid, more so the Respondents did not show proof of payment. That this was in disregard of the use of the word ‘shall’ in the relevant clause in the contract of employment, relied on ENGR. ABRAHAM ADEBISI GBADAMOSI VS. NIGERIAN RAILWAY CORPORATION (2006) LPELR-11668. The Appellant submitted that the three months salary in lieu of notice is not an alternative to the giving of notice as is the case with junior staff. He referred to the termination of employment memorandum marked as Exhibit CW3 paragraph 2 where it states that the college Bursar should pay the Appellant his 3 months? salary in lieu of notice. Appellant argued that termination of a confirmed staff must follow due process, relied on

MOHAMMED M. ALHASSAN VS. AHMADU BELLO UNIVERSITY, ZARIA & ORS. (2009) LPELR-8138(CA).

He submitted that any decision not supported by evidence is perverse, citingMINI LODGE LIMITED & ANOR VS. CHIEF OLUKA OLAKA NGEI & ANOR. (2009) 18 NWLR (PT. 1173) 254. Arguing further, the Appellant said the right of the Respondents to terminate his employment is dependent on the payment of the three month?s salary in lieu of notice.

On the 1st Respondent?s failure to issue the Appellant with a prior written warning in compliance with the conditions of service, that the default meant the purported termination is null and void, citing OZOBIA VS. ANAH (1999) 5 NWLR (PT. 601) 13 and AINA VS. JINADU (1992) 4 NWLR (PT. 233) 91. He urged the Court to find for him under issues one and four.

ISSUE TWO
The Appellant under issue two submitted that in our adversarial legal system, the principle of law is that a Court cannot grant or award a party a relief not sought for but the trial judge negated this age long principle when it made an award of the sum mentioned above to the 1st Respondent.

He urged the Court to view the pleading to assess if there is any claim in the line of what the trial Court awarded. He cited the following cases:AFROTEC TECHNICAL SERVICES (NIG) LTD. VS. M.I. A. & SONS (2000) 12 SCNJ 298; PROF J. ADEPOJU AKINYANJU VS. UNIVERSITY OF ILORIN & ORS. (2005) 7 NWLR (PT. 923) 87 and submitted that he was also not given a hearing concerning the award and therefore the award is null and void because the Court has no jurisdiction, relied on DAIRO VS. UNITED BANK FOR AFRICA (2001) 16 NWLR (PT. 739) 490, on the importance of jurisdiction the Appellant further relied on OBI VS. INEC & 6 ORS. (2007) 7 SC 297. He then urged the Court to find for the Appellant under issue two.

ISSUE THREE
Proffering arguments in support of the third issue, the Appellant submitted that the trial Court found that the Appellant was given fair hearing before his employment was terminated and that was in error because his case was that his defence was not taken into cognizance in determining his case because he spent less than 10 minutes with members of the panel and therefore he was not given adequate opportunity to defend himself more so the

allegation against him is criminal, citing FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) LPELR-1264 (SC). He referred to Exhibit DW8 ? Appellant?s letter to the Hon. Minister of Education which he said was not an acknowledgement that he was given a fair hearing but a passionate appeal to be given a hearing but that the trial judge over stretched it to mean he said he was given a hearing. He referred to ZIIDEEH VS. R.S.C.S.C (2007) 3 NWLR (PT. 1022) 568; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 618; AFRIBANK (NIGERIA) PLC VS. OSISANYA (1999) LPELR- 5206(CA); ALHAJI ABDULLAHI BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE, ZARIA & OR. (1991) 5 NWLR (PT. 192) to contend that he was not given a hearing. Furthermore, he submitted that the effect of any breach of right to fair hearing is that the termination is declared null and void, citing OLUFEAGBA & ORS. VS. ABDUL RAHEEM & ORS. (2009) LPELR- 2613 (SC) in support. He urged the Court to find for the Appellant under this issue.

ISSUE FIVE
Appellant submitted that the visitation Panel was not set up to investigate with a view to disciplining any

staff and therefore it lacked the vires to punish anybody. That the powers of the Panel were circumscribed in its terms of reference embodied in Exhibit CW2 with 9 items and none of which includes the discipline of any staff as it purported to have done by Exhibit CW3. Appellant referred to the evidence of DW1 which admitted that the visitation panel recommended the termination of the Appellant?s employment. He further contended that what was admitted need no proof, citing ONYENGE VS. EBERE (2004) 13 NWLR (PT. 889) 20 on admission against interest.

On acts done ultra vires of power, the Appellant submitted that such decisions are null and void, relying on EKANEM & ORS. VS. OBU (2010) LPELR-4084(CA) and U.N.T.H.M.B. VS. NNOLI (1994) 8 NWLR (PT. 363) 413 to contend that Appellant?s employment has statutory flavor and therefore the termination was null and void. He finally urged the Court to allow the appeal and grant reliefs sought.

The 1st Respondent in reaction to the appeal addressed it in the 4 issues reproduced earlier. It submitted that the conditions of employment and the memorandum of

termination of employment were fully considered by the lower Court before arriving at the judgment. It referred to the exhibits considered by the trial judge particularly Clause 7.2 of the Conditions of Service to arrive at the decision and therefore there was ample evidence to support the findings arrived at by the trial Court. On the issue of two warning letters prior to termination, the 1st Respondent submitted that it is not necessary when the termination is under Clause 7.2 and that it is a provision under Clause 6 and meant for a different type of disengagement from service.

On 1st Respondent?s issue two, it argued that visitation Panel was set up to carry out its mandate as per the terms of reference and to interact with principal officer which included the Appellant. Furthermore, that the Appellant appeared before them but is now claiming he spent less than 10minutes. It submitted that the Appellant still appeared before the review panel before the white paper was released and the Appellant also wrote Exhibit DW 8 to the Hon. Minister appreciating the opportunity given to him to defend

himself before the Panel which forecloses any issue of not getting a hearing.

The 1st Respondent in continuation of arguments submitted that the Appellant admitted he was given only 10 minutes to present his defence to the review Panel via Exhibit DW3. It argued that fair hearing is not when a decision is given in your favour and referred to IMONIKHE VS. UNITY BANK PLC (2011) 12 NWLR (PT.1262) 624 on fair hearing and submitted that the Appellant was heard by the visitation and the Review Panel therefore, the issues should be resolved against him.

On issue three the 1st Respondent submitted that the Court below found that the visitation panel did not exceed its powers given in the terms of reference and did not discipline the Appellant but merely recommended to the Visitor disciplinary measure in the form of the termination of employment. It argued that exhibit DW2 are the views of the Visitation panel/ Whitepaper, the relevant portion was reproduced. In essence it also recommended the employment of an Architect and Civil Engineer to assist the Appellant. The 1st Respondent submitted that the directive

for termination was given in the Visitation Panel?s Report-Exhibit DW2 paragraph 10.4.2 at page 71 of the record and it was within their mandate, therefore not ultra vires of their powers.

The 1st Respondent in arguing issue four submitted that the recommendation that the Appellant refund some money was also in the same document that recommended Appellant?s termination and the trial judge while assessing the Exhibit CW2 discovered that the Federal Government also directed that the Appellant refund the sum of N1,526,000.00 which the claimant had not challenged, referred to paragraph 4.31 at page 35 of the record of appeal. Furthermore, the 1st respondent submitted that the claim for retirement benefits was not established and consequently, the Court ordered the refund of the money and relied on the case of TOLANI VS. KWARA STATE JUDICIAL SERVICE COMMISSION (2009) ALL FWLR (PT.481) 917 to support the contention that the Court can grant a relief not claimed as a consequential relief. He relied on AMAECHI VS. INEC & ORS. (2007) 7-10 SC to support the point that the Court can in exceptional cases order a relief not sought by any party

and Courts are enjoined to enforce directives properly issued by government. It urged the Court to dismiss the appeal.

In reply the Appellant drew the Court?s attention to the Respondent failure to react to the issue that the Appellant was not paid his three months? salary in lieu of notice and repeated arguments on the same issue in the Appellant?s brief. Another aspect highlighted is that of the assertion that the Appellant?s employment was one with a statutory flavor to which every prescribed condition must be fulfilled, citing MOHAMMED M. ALHASSAN VS. AHMAMDU BELLO UNIVERSITY supra. On the effect of failure to respond to issues by the 1st Respondent, the Appellant contended that they are deemed admitted, relying on INTERNATIONAL TOBACCO COMPANY VS. BRITISH AMERICAN TOBACO NIGERIA LTD. & ANOR. (2013) LPELR-20494(CA) and NWANKWO VS. YAR?ADUA (2010) ALL FWLR (PT. 534) 1.

The Appellant submitted further that the trial Court had no jurisdiction to grant a relief not asked for in the pleadings, not claimed and therefore the appeal should succeed. Additionally, the Appellant submitted that he was not

given a hearing before the relief was granted by the trial Court and that too is enough to make the appeal succeed. On the power of the Court to grant reliefs not sought but as consequential order, Appellant cited again the case of TOLANI VS. KWARA STATE JUDICIAL SERVICE COMMISSION (2009) ALL FWLR (PT. 481) 917 to say it is strange and an exception to the rule.

The Appellant argued that the order for refund was gratuitous and extraneous to the judgment. He explained what a consequential order mean as he relied on EYIGEBE VS. IYAYI (2013) 11 NWLR (PT. 1365) 407 and OBAYAGBONA VS. OBAZE (1972) 5 SC 159 on purpose of consequential order. The Appellant submitted that the trial Court extended boundaries of litigation beyond that which the parties settled in the pleadings, citing BARBUS & CO. LTD. VS. UDEJI (2017) LPELR-41960(CA). Another aspect which the appellant identified as one not responded to, is one that the Appellant was not issued two prior warnings before his employment was terminated. He urged the Court to allow appeal.

Let me deal with the extensive reply brief filed by the Appellant who rehashed his

arguments in the Appellant?s brief contrary to settled position of law and the purpose of a reply brief. It is not an opportunity for the Appellant to expatiate on the previous arguments. It is strictly meant for the Appellant to respond to fresh issues of law in the Respondents brief, see AHMED VS. AHMED & ORS. (2013) LPELR 21143(SC) which restated the principle as follows:
“The position of a reply brief as provided in our Rules arises for the purpose of dealing with only new issues raised in the Respondent’s brief of argument and not otherwise. A reply brief is at its best when it deals with issues of law to wrap up the issues so raised in the Respondent’s case vis-a-vis the Appellant’s case. If I may emphasise, the Appellant’s case in his reply brief is to react to any new issues particularly those that have been raised in the respondent’s brief of argument but certainly not to re-argue and re-analyse the Appellant’s case all over again as that is what the Appellant has done here. In such situations, the Court’s reaction is to ignore, indeed to discountenance such a reply brief.”

RESOLUTION
The Appellants case at the trial Court is mainly one of wrongful termination of employment and other related claims. In wrongful termination the claimant is required to place before the Court the contract of employment from where he derives the rights which he claims were violated, see KATTO VS. CBN (1999) LPELR-1677(SC) which restated the responsibility of any claimant who alleges that his employment was wrongfully terminated thus:
It is the law that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the Court the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these. The principle has been laid down by this Court in many cases including specifically Amodu vs. Amode (1990) 5 NWLR (PT.150) 356, followed in Iwuchukwu vs. Nwizu (1994) 7 NWLR (PT. 357) 379 at 412. In Amodu vs. Amode (supra), Agbaje, J.S.C., who read the leading judgment observed at page 370:

The Appellant in this appeal tendered his letter of employment as Director of Works – Exhibit CW1 and which states therein that all other terms and conditions are as may be determined by the Governing Council in consultation with the Federal Civil Service Commission. The relevant condition of service which the Appellant contends was not complied with is Clause 7.1 of Exhibit DW5 which states thus:
Where it becomes necessary or desirable for the college to discontinue with the services of a staff member on a permanent appointment, the college shall discontinue the services of such member of staff by giving three months salary (lump sum) in lieu of notice. With regards to all on temporary appointment

and a junior staff, termination of service shall be by giving of one months notice in writing or payment of one months salary to the staff member concerned in lieu of notice.

The Appellant as a permanent staff is therefore entitled to 3 months? salary to be paid in lieu of notice when his appointment is deemed necessary and under Clause 7.1 of Exhibit CW5. He alleged that he was not paid. The letter of termination tendered in evidence as Exhibit CW3 stated therein that the Bursar of the College was directed to pay the three months salary in lieu of notice. It also directed the refund of the sum of N4.2Million to the college. The Appellant also latched on clause 6.7 (b) of the Conditions of Service which requires that before the termination of appointment, he should have been issued two prior warnings. The said clause provides as follows:
A confirmed employee may have his appointment terminated by the college on grounds of misconduct or general inefficiency provided that he has previously been warned in writing at least twice that his work has been unsatisfactory and that he was given the opportunity to defend himself.?

The Appellants letter of termination did not allude to the termination arising from misconduct or general inefficiency that can activate of the provision of the above quoted clause. It is not relevant to the case of the Appellant and failure to comply with it cannot be an issue. The trial Court found and rightly so that it is clause 7.2 that is relevant and the Respondents duly complied with the provisions in terminating Appellants employment.

On the failure to pay three months salary in lieu of notice as stated in the letter of termination, the burden was on the party who asserts the affirmative as required by Section 131 and 132 of the Evidence Act. The Appellant’s negative assertion does not place any burden to prove so. See WUNALA VS. UCHE (2010) 2 NWLR (PT 1179) 582 AT 586. The Respondents were duty bound to show that they actually paid the said sum or if there was an offset in view of the directive given to the Appellant to make a refund to the 1st Respondent, how it was offset. There was no such evidence before the trial Court and it was confounded by

the sole witness called by the Respondents who told the Court she does not know if the money was paid to the Appellant. Failure to pay the three months salary in lieu of notice is a breach of the term of employment. The 1st Respondent in his brief did not react to the issue. It is settled law that where a Respondent fails to react to an issue he is deemed to have admitted it, see MANCHA VS. EMUKOWATE (2017) LPELR-43113(CA) which held:
“It is settled law that where a party fails to respond to a point or an issue, either in the brief of argument or oral presentation, the opposing party is deemed to have admitted all that his adversary has stated – Okongwu vs. Nigeria National Petroleum Corporation (1989) 4 NWLR (PT. 115) 296, Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt 1209) 518 and International Tobacco Company Plc vs. British American Tobacco Nigeria Ltd. (2013) LPELR-CA/IL/43/2012.”
The fact of non-payment of three months? salary in lieu of notice was therefore admitted and the trial judge erred in not pronouncing on this issue and also failed to make an award in favour of the Appellant. In the absence of evidence on

record, I find that the Appellant was not paid three months salary in lieu of notice as per the contract of service.
I can see at pages 85 of the record of appeal some amount as tabulated by the Advances Office against some outgoing staff and the Appellant is one of such staff. If the Respondents did an offset against the three months salary, they should have said so and supported it by evidence. However, there was no such evidence before the Court outside the mere ipsi dixit of DW1.

The Appellant also contended that his employment was one with a statutory flavor. An employment with statutory flavor is an employment which enjoys statutory flavor and in which the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: IMOLOAME VS. W.A.E.C. (1992) NWLR (PT.265) 303; OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599; SHITTA-BEY vs. PUBLIC SERVICE COMMISSION (1981) 1 SC 40. See

COMPTROLLER GENERAL OF CUSTOMS & ORS. VS. GUSAU (2017) LPELR-42081(SC).

It is not in dispute between the parties that the Appellant?s employment was governed by the Conditions of service referred to as Regulations Governing the Conditions of service of Staff in Federal Government Colleges of Education in Nigeria, Exhibit CW5. In other words, his employment did not enjoy statutory flavour. It is obvious that the Appellant?s employment does not fall within the class of employment that can be classified as one with a statutory flavor and that argument therefore cannot hold water and is discountenanced.

There is an alleged breach of fair hearing with regards to some issues not considered by the trial judge in its judgment. Undoubtedly, every Court, particularly a trial and intermediate Court is required to consider all issues presented before it for determination by parties, it is a duty and not optional, see PDP VS. INEC & ORS. (2018) LPELR-44373 (SC) and OKONJI VS. NJOKANMA & ORS (1991) LPELR- 2476(SC) which held as follows:
“…It is the duty of a Court, whether of first instance or appellate to consider all

the issues that have been joined by parties and raised before it for determination. If the Court failed to do so, without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions… SeeEzeoke & Ors. vs. Nwagbo & Ors.,(1988) 1 N.S.C.C. 414 at p.424; (1988) 1 N.W.L.R. (Pt. 72) 616 at p.62.”
Failure to resolve all issues is also a breach of fair hearing as was held by the apex Court in the case of HONEYWELL FLOUR MILL PLC VS. ECOBANK (2018) LPELR-45127 (SC). This aspect relates to the failure to issue two prior warning which was considered earlier in this judgment and found not relevant. The trial Court is still expected to have said the case of the Appellant does not fall under that provision instead of glossing over it and keeping mute on the issue. As it was said, the Court should say something even if the party is talking nonsense. It is a duty that must be carried out in interest of justice. The Appellant

misconceived the principle when he wrongly submitted that there are no exceptions to the rule, there are exceptions and one of such was stated in the case of COOKEY VS. FOMBO & ANOR. (2005) LPELR-815(SC) thus:
“As a matter of general principle, a Court should deal with and determine all the issues placed before it for determination. There are, however, some recognised exceptions, for example, where an issue is subsumed in another issue, see Obi Nwanze Okonji & 24 Ors. vs. Njokamna and Ors. (1991) 7 NWLR (Pt. 202) 131 at 146; Balogun vs. Labiran (1988) 3 NWLR (Pt. 80) 66 at 80.”
See also FRN VS. DAIRO & ORS. (2015) LPELR-24303(SC) which held as follows:
By way of preliminary observations, we note that, except in such recognised exceptions as established in cases like Okonji vs. Njokanma [1991] 7 NWLR (Pt. 202) 131; Oro vs. Falade [1995] 5 NWLR (Pt. 396) 385, citing Anyaduba & Anor. vs. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt. 243) 535; Balogun vs. Labiran (1988) 3 NWLR (Pt. 80) 66 at 80, the long-established rule is that an intermediate Court has a duty to pronounce on all material issues placed before

it, Samba Petroleum Ltd. and Ors. vs. UBA PLC and Ors [2010] 6 NWLR (pt) 530, 531; Brawal Shipping vs. Owonikoko [2000] 6 SCNJ 508, 522; Federal Ministry of Health vs. Comet Shipping Agencies Ltd. [2009] 9 NWLR (Pt. 1145) 193; Adeogun vs. Fasogbon [2011] 8 NWLR (Pt. 1250) 427; Ovunwo vs. Woko (2011) 17 NWLR (Pt.1277) 522 etc.”Per NWEZE, J.S.C.
One of such exceptions I dare say is where the issue of jurisdiction succeed and which is manifest on the process, and one example is where the writ was issue by a law firm, and where a suit is remitted back for retrial, in order not to prejudice the mind of the judge, the Court in such a situation avoid making a pronouncement on those issues that have to retried. So there are exceptions to the rule.

With regards to issue two as formulated by the Appellant, it challenged the jurisdiction of the trial Court to make an award not sought by either of the parties before it concerning the refund the sum of N1.526M to the 1st Respondent. The trial Judge at pages 261 of the record held as follows:
The claimant is to refund to the 1st Defendant N1,526,000.00 (One Million, Five

Hundred Thousand and Twenty Six Thousand Naira) being the sum of money lost by the college through over-invoicing and pricing of various items between February and July 1999 as directed by the Visitor.?

The contention is that the award was gratuitous as no party sought for it. I have perused the statement of claim before the Court and I find no such relief. The Respondents as defendants before the trial Court did not have a counter claim. The Court unilaterally, without any invitation from any of the parties gave the award. The Appellant contended and rightly too, that the Court had no jurisdiction to make such an award. I totally agree with the Appellant that the Court exceed its jurisdiction in digressing into an area nobody invited it to look into. A Court is bound by the claim before it, see AKINRIMISI VS. MAERKS NIGERIA LTD. (2013) LPELR-20179 (SC), it held thus:
“It is trite law that the trial Court, and indeed, Courts of law are bound by the prayers or claims sought before them. It cannot grant a claim or a prayer not sought. Any such claim or prayer granted

without being pre-claimed by parties is invalid.”
See also OSUJI VS. EKEOCHA (2009) LPELR-2816(SC) thus:
“The position of the law is clear that a Court of Law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. Neither of the parties requested for partition of the family property. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a Trial Court. The Court must hear the view of the parties before making an order different from the one claimed?.. he could not be denied the right to be heard in the circumstance and moreover none of the parties specifically requested for such order. Abbas vs. Solomon (2001) 15 NWLR (pt 736) pg 483; Korede vs. Adedokun (2001) 15 NWLR (pt 736) pg 483.”
On this count, I agree with the Appellant that in doing so the trial Court breached the Appellant?s right to fair hearing and the Appellant can rightly have that order set aside. I hereby set aside the order

on the Appellant to refund the sum of N1.526M to the Respondents. An award made without jurisdiction is null and void.

The question of making the award as a consequential order as argued by the 1st Respondent is a nonstarter. Whether the Appellant protested the directive of the Visitor concerning the refund or not was not before the trial Court and therefore it should not have gone there. Agreed that a Court can grant a relief not claimed but strictly as a consequential order. A consequential order flows from the main relief and its purpose is specific, see NOEKOER VS. EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS. (2018) LPELR-44350(SC) in which the meaning and purpose of a consequential order was given as follows:
“The Supreme Court had made clarifications on matters pertaining to consequential orders and I specifically refer to the case of Chigozie Eze & 147 Ors vs. Governor of Abia State & Ors. (2014) 7 SCNJ 38 at 57 – 88 thus: “A consequential order is an order that gives effect to a judgment, it gives meaning to the judgment. It is traceable or following from the judgment prayed

for and made consequent upon the relief claimed by the Plaintiff. A consequential order must be incidental and flow directly and naturally from reliefs claimed. It is an offshoot of the main claim and it owed its existence to the main claim. It gives effect to the judgment already given.” In his contribution W. S. N. Onnoghen JSC (as he then was) at page 60 paras 15 – 25 had this to say: “It is under the above general principle of law that another principle was developed or emerged; that of consequential relief is a principle that enables a Court of law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the Court do justice between the parties. It is in line with the above that this Court ordered payment of salary and wages for the intervening period even though not expressly claimed.” See also Sule Eyigebe vs. Musa Iyaji (2013) SCNJ 428 at 445 – 446.”
What the trial Court did does not come under the special powers to make consequential orders and therefore perverse. The order or directive of the visitor was made to the

1st Respondent, a different body and not the Court. A Court of law cannot take administrative instructions outside the law and what the parties place before it for determination and supported by evidence. A Court is not equivalent to having a new sheriff in town who zealously tries to maintain law and order in a community. A Court must be guided by the claim before it.

The Appellant under issue three contended strongly that he was not given a hearing by the Visitation Panel. The trial Court in this judgment found otherwise, it held that the Appellant appeared before the visitation and the Review Panel and even wrote Exhibit DW8 to the visitor expressing gratitude and acknowledging the fact that he was heard on the allegation against him. The Appellant had also submitted a written memorandum, Exhibit DW3 to the Review Panel. The trial Court found thus:
?By the claimant?s own evidence he was heard by both the Visitation Panel and the Review Panel; and thereby given ample opportunity to defend himself which he did. I find that the claimant was not denied fair hearing.?

The Appellant argues that his defence presented to the panel was not taken into account in the determination of the case against him. The Appellant appeared before the two panels, he appeared physically and that was where he complained he did not stay for more than 10 minutes. In another chance he presented a written defence. The Visitation panel turned in its report to the visitor who sent a review panel. The report of the Visitation panel was opened to the public and the Appellant also participated. It was after the report was presented to the visitor that a whitepaper was released with the directive to terminate the employment of the Appellant. The question is what other opportunity did the Appellant need to have before the visitor can direct the termination of his employment? The Appellant was given an opportunity to be heard and was heard when he presented his position to the two panels. The Appellant in answers to a question in cross examination said thus:
?The visitation panel was not sympathetic to my case. I was never afforded the opportunity to properly defend

myself. I spent less than 10 minutes before the panel. I was not invited again. (witness is shown doc3). Before the white paper was presented, a panel came from Federal Ministry of Education. I made doc 3 to the panel from the Federal Ministry of Education (witness shown doc 8). I authored this document too.?

It is clear from the excerpt above that the Appellant is not complaining about not being given a hearing but the adequacy of time that should have been allotted to him and that the consideration must be sympathetic to his cause. Justice does not run in that manner. The concept of fair hearing was stated by the apex Court as follows:
“It has been said that the true test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. The burden is on the appellant to show that the seeming irregularity and the conduct of the trial complained of led to a failure of justice. See: Alhaji Isiyaku Mohammed vs. Kano N. A. (1968) 1 All N.L.R. 424 and Whyte vs. Police (1966) N.M.L.R. 215 at 219.”

See EKIYOR & ANOR vs. BOMOR (1997) LPELR-1082(SC)
The Appellant?s argument that he did not have more than 10 minutes with the panel cannot be reason to say he was not heard. Even Courts these days limit the time it gives to parties to present their case when the occasion demands abridgement of time. It does not amount to denial of fair hearing. Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles. The apex Court in the case of MBANEFO VS. MOLOKWU (2014) LPELR-22257(SC) held thus:
“It cannot be over flogged, the cardinal principle of fair hearing and a hearing is taken to be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. Without fair hearing the principles of natural justice are jettisoned and without the principles of natural justice the

concept of the Rule of Law cannot be established and grow in the society. See Otapo vs. Sunmonu (1987) 5 SC 228 at 259; In Ex-Parte Olakunrin (1985) 1 NMLR 652 at 66.

I was also able to carefully read the letter the Appellant wrote to the Visitor and I find that it is a request for further review or what one might say a suggestion on how the Visitation Report should have handle his case. It is my respectful opinion that the Appellant lacks the competence to suggest how the report should be handled by the visitor. His claim that he was not given a hearing is founded on the fact that the addendum to the report was not implemented and in his words, his defence is contained therein. So if his purported defence is in the addendum to the Report does it not mean that he was given an opportunity to present the said defence for it to be part of the addendum? The complaint that he was not given a hearing cannot stand. I also find that he was given a hearing. Fair hearing is not only when you get what you wanted. Fair hearing should also include your being refused what you

have failed to prove before a Court or administrative tribunal once you were given an opportunity to present your side of the story. The allegation of failure to get a hearing fails and is hereby discountenanced.

The Appellant also argued that the termination was null and void for failure to comply with a condition precedent. It is trite that a contract of employment wrongly determined cannot be declared null and void but unlawful and remedy lies in damages only, see ISHENO VS. JULIUS BERGER (NIG.) LTD. (2008) LPELR-1544(SC) and OSISANYA VS. AFRIBANK (NIG) PLC (2007) LPELR-2809(SC) which held:
“…where there has been a wrongful termination or dismissal, a declaration by the Court that the contract is subsisting will rarely be made if at all. See the case of Francis vs. Municipal Council of Kuala Lumpur (1962) 1 WLR 1411 at 1417; (1962) 3 All ER 633; Iwuchukwu vs. Engr. Nwizu & Anor. (1994) 7 NWLR (Pt. 357) 379 at 412; (1994) 7-8 SCNJ 328 at 361 and Ilodibia vs. Nigerian Cement Co. Ltd. (1997) 7 NWLR (Pt. 512) 174; (1997) 7 SCNJ 77 at 89, 90.”
The remedy for wrongful termination in an ordinary contract of employment without statutory flavor is damages

in lieu of notice. See IBAMA VS. SP.D.C. (NIG.) LTD. (2005) 17 NWLR (PT.945) 364 where Onnoghen JSC held: “Except in employment governed by Statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the Statute is governed by the terms under which the parties agreed to master and servant. Employment with Statutory backing must be terminated in the way and manner prescribed by the statute, and any other manner of termination inconsistent with the relevant statute is null and void and of no effect. In other cases governed only by agreement of the parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void, the only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master’s behaviour is wrong. For this wrongful act, he is only liable in damages and nothing more.” See also GBOBOH VS. BRITISH AIRWAYS PLC(2016) LPELR-4099(CA).

Flowing from above, the failure of the Respondents to ensure that 3 months’ salary in lieu of damages was paid to the Appellant is wrongful and I hereby make an order for the immediate payment of 3 months’ salary in lieu of notice to the Appellant. The order for the refund made in the judgment appealed against is also set aside.
The appeal therefore succeeds in part. I make no order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Yargata Byenchit Nimpar, JCA. My learned brother has carefully dealt with the three issues in this appeal. I agree with his reasoning and conclusion. I also allow the appeal in part.
I abide with the consequential order and the order as to costs

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read in draft, the leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I endorse, in toto, the reasoning and conclusion in the erudite judgment. l, too, allow the appeal, in part, in the terms displayed in the leading judgment. I abide by the consequential orders decreed in it.

Appearances:

Chris Ekong, Esq.For Appellant(s)

R. O. Ogbeche, Esq. with him, O. A. Ojugbo, Esq. for 1st RespondentFor Respondent(s)

Appearances

Chris Ekong, Esq.For Appellant

AND

R. O. Ogbeche, Esq. with him, O. A. Ojugbo, Esq. for 1st RespondentFor Respondent