GURAMA L. DEKOM V. JUDICIAL SERVICE COMMISSION, PLATEAU STATE
(2010)LCN/4176(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of February, 2010
CA/J/206/2002
RATIO
ADDRESS OF COUNSEL : WHETHER ADDRESSES OF COUNSEL CAN TAKE THE PLACE OF EVIDENCE ADDUCED BY PARTIES TO A SUIT
In any Civil matter, addresses are submissions of counsel and no matter how brilliantly made can never take the place of evidence adduced by parties to a suit, a party fails or succeeds on his pleadings and the evidence supporting the pleadings – Warri Refining and Petro Chemical Co. Ltd Vs. Onwo 1999 12 NWLR (Part 630) 321; Okubale Vs. Oyagbola 1990 4 NWLR (Part 147) 723; Ekpeyong Vs. Nyong 1975 2 SC 71; Union Bank of Nigeria Ltd Vs. Ogboh 1995 2 NWLR (Part 380) 647; Ekpeyong Vs. Etim 1990 23 NWLR (Part 140) 549. PER Z. A. BULKACHUWA, J.C.A.
WHETHER THE PLEADINGS FILED IN A SUIT AND THE ISSUES JOINED THEREIN ARE BINDING ONTHE PARTIES TO THE SUIT AS WELL AS THE COURT
Parties to a suit and thus the Court are bound by the pleadings filed in a suit and the issues joined therein. See Ojo Vs. Adejobi 1978 3 SC 65; Usonga Vs. Usanga 1982 5 SC 103; Olatunji Vs. Adisa 1995 2 NWLR (pt. 376) 167. PER Z. A. BULKACHUWA, J.C.A.
DUTY PLACED ON A PARTY TO AN ACTION AND THE COURT WITH RESPECT TO SUCH ACTION
In as much as it is not the law of pleadings that laws must be pleaded before a party can rely on them, a party to an action is required to state such facts that will lead to the success of his case positively, precisely distinctly and briefly and a court seized of the matter is expected to apply such relevant laws for a just determination of the matter. PER Z. A. BULKACHUWA, J.C.A.
WRONGFUL TERMINATION: DUTY IMPOSED ON A SERVANT WHO COMPLAINS THAT HIS EMPLOYMENT HAS BEEN WRONGFULLY TERMINATED
A servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful. Okumu Oil Palm Co. Ltd Vs. Iserbienrhien (2001) 6 NWLR Pt. 710 Pg 660. Idoniboye-Obu Vs. NNPC (2003) 2 NWLR Pt. 805 Pg 589. In the case of Okoebor Vs. Police Council (2003) 12 NWLR Pt.834 Pg 444, the Court held inter alia – ‘When an employee complains that his employment has been unlawfully terminated, or that he was unlawfully dismissed, he has the burden not only to place before the Court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer.’ PER NDUKWE-ANYANWU, J.C.A
Before Their Lordships
ZAINAB ADAMU BULKACHUWAJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
Between
GURAMA L. DEKOMAppellant(s)
AND
JUDICIAL SERVICE COMMISSION, PLATEAU STATERespondent(s)
Z. A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The appellant, a Higher Executive officer on Grade Level 08/7 was the Registrar of the Chief Magistrate Court Barkin Ladi was dismissed by the Respondent on 2nd April, 2001. Consequent to his posting to the Chief Magistrate Court Barkin Ladi, he was the officer in charge of the open Registry of the Plateau State Judiciary, whose responsibilities included the receiving of mails, filing of same and forwarding the mails to the staff officer and responding to the mails within and outside the Plateau State Judiciary on behalf of the Chief Registrar.
In the course of his duties in 2000, the Appellant signed in service forms for some staff of the Respondent on behalf of the Chief Registrar for which he was queried for forgery on 9/1/2000.
A Senior Staff Disciplinary Committee chaired by the Chief Registrar was set up by the Respondent on the allegation of forgery. The appellant appeared before the Committee and on 2/4/2001 was issued with a letter of dismissal.
The Appellant being dissatisfied took out a writ before the High Court of Plateau State wherein he claimed the following reliefs;
1. A declaration in that the dismissal by the plaintiff from service of the Defendant is illegal, unconstitutional and void.
2. An order that the plaintiff be reinstated to his position before the purported date of dismissal and;
3. An order that the plaintiff be paid.
Pleadings were filed and exchanged by the parties, the case was heard wherein the appellant testified for himself and tendered some documents. The respondent rested his case on that of the plaintiff and counsel to the respective parties addressed the Court. In a considered Judgment delivered on the 26/3/2002 the trial court, nullified the dismissal of the appellant on ground of forgery but affirmed same on the ground of posting an officer out of state without authorization.
The appellant has now appealed to this Court on 2 grounds of appeal. Parties filed and exchanged their briefs of argument.
In the appellant’s brief which was deemed filed on 23/5/2006 these issues were identified;
1. Whether the Plateau State Judicial Service Commission Regulations, 1980 needs to be pleaded and tendered before a Court can act on it?
2. Whether due process was followed when the appellant was dismissed on the ground that he posted an officer out of station without authority?
The respondent in a brief deemed filed vide order of Court of 22/6/09 identified this issue for the determination of the appeal;
1. Whether the learned trial Judge was right in refusing to take judicial notice of the Plateau State Judicial Service Commission Regulations, 1980 (herein after called the regulations) as a result of which the appellant’s case was dismissed.
The issues formulated by the appellant are all encompassing to the grounds, I will in the circumstances adopt them in the determination of the appeal.
Issue 1 is based on ground 1 of the grounds of appeal which is a complaint against the finding of the trial Court at page 42 Lines 17-12 of the record where the Court partly held;
”Truly, these regulations were not pleaded and were not tendered. The said regulations are therefore not before the Court. The regulations which are not pleaded and are not tendered before the Court cannot therefore be made an issue before the Court…”
On this the appellant submits that by the combined effect of the provisions of Sections 73 and 74 (1) (a) of the Evidence Act, the Court ought to have taken judicial notice of the Plateau State Judicial Service Commission Regulations, 1980. That the said regulations which was made pursuant to the provisions of Section 185 of the 1979 Constitution, need not be pleaded and tendered before the lower court could act on it, relying on the evidential rule that a fact which is judicially noticeable need not be proved.
The sole issue of the respondent is formulated from ground 1 and so relates to the appellant’s issue 1.
He submits on the issue that the appellant as plaintiff has sought to establish before the lower court both by evidence and pleadings that the respondent was in default of compliance with condition precedent (procedure) as stipulated by Regulation 44 of the Regulation (supra). That that being the case the appellant was bound to specifically plead the provisions as required by the provisions of Order 25 Rule 5 (2) of the High Court of Plateau State Civil Procedure Rules 1987 (As amended). That where a servant complains of a default or violation of procedure under his terms of employment which is terminated, he is obliged to plead and prove by evidence the terms and conditions of service regulating his employment in order to show how it has been breached. That having not pleaded the regulation he cannot rebut the presumption of the law that the act of the respondent, as an official body, dismissing the appellant was regularly done, putting reliance on NEPA Vs. Mathew Aba 2001 FWLR Part 38 1240; Jereomi Akpan Vs. The State 2002 12 NWLR Part 780 189; A.G. Anambra State &. 6 Ors Vs. Ephraim Okeke and 4 Ors 12 NWLR Part 782 575; and Section 74 (3) of the Evidence Act, the respondent submits that the trial Judge was right in not taking judicial notice of the Regulations (supra) in the circumstances having not been pleaded by the appellant.
The finding of the lower court the subject of complaint under this issue is based on the address of the learned counsel to the plaintiff after parties have closed their case. It was not a finding on the pleadings and the evidence led before it. In any Civil matter, addresses are submissions of counsel and no matter how brilliantly made can never take the place of evidence adduced by parties to a suit, a party fails or succeeds on his pleadings and the evidence supporting the pleadings – Warri Refining and Petro Chemical Co. Ltd Vs. Onwo 1999 12 NWLR (Part 630) 321; Okubale Vs. Oyagbola 1990 4 NWLR (Part 147) 723; Ekpeyong Vs. Nyong 1975 2 SC 71; Union Bank of Nigeria Ltd Vs. Ogboh 1995 2 NWLR (Part 380) 647; Ekpeyong Vs. Etim 1990 23 NWLR (Part 140) 549.
Parties to a suit and thus the Court are bound by the pleadings filed in a suit and the issues joined therein. See Ojo Vs. Adejobi 1978 3 SC 65; Usonga Vs. Usanga 1982 5 SC 103; Olatunji Vs. Adisa 1995 2 NWLR (pt. 376) 167.
When an employee, as in the instant case, complains that his employment has been wrongfully terminated or that he was wrongfully dismissed, he has the burden not only to place before the Court the terms and conditions of employment but the manner in which the said terms or conditions were breached by the employer. In the instant appeal, the summary of the plaintiff’s case before the lower court was that he was at all material times before the action consequent to his dismissal an employee of the respondent and that the defendant wrongly or unlawfully dismissed him from service. From the case presented by him, his complaint is the legal propriety or otherwise of the said dismissal.
In as much as it is not the law of pleadings that laws must be pleaded before a party can rely on them, a party to an action is required to state such facts that will lead to the success of his case positively, precisely distinctly and briefly and a court seized of the matter is expected to apply such relevant laws for a just determination of the matter. A High Court in Plateau State though expected by the provisions of Section 74(1)(a) of the Evidence Act, 2004 to take judicial notice of all laws, enactments and any subsidiary legislation made thereunder having the force of law is still bound by the provisions of its Civil Procedure Rules, the provision of which shall be the rules of civil procedure to be followed by the Plateau State High Court in the determination of all civil matters that come before it.
Order 25 Rule 6(1) thereof provides;
”A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality, which if not specifically pleaded, might take the other party by surprise’.
The plaintiff/appellant who was alleging an illegality in the manner of his dismissal should have pleaded and adduced evidence on the law that was breached by his dismissal.
In any case the finding complained against was an obiter by the trial court based not on the pleadings and evidence before it but on the submission in counsel’s address which can in no way take the place of evidence. The lower trial court was right to have made that observation and I accordingly resolve the issue against the appellant.
The appellant’s submission on the second issue was based mainly on the infringement of the provisions of the Plateau State Judicial Service Commission Regulations, 1980.
In a claim challenging alleged illegal dismissal of an employee by his employer. A party must plead and adduce such evidence as would show:
(1) his terms and conditions of service
(2) the breach of the conditions of service by the employer which was illegal. See Okoebor Vs. Police Council 2003 12 NWLR (Part 834) 444.
In the instant appeal the appellant had not produced his letter of appointment neither had he adduced such evidence to show in which way and manner his conditions of service were illegally breached. Having failed to have done so the lower trial court should have out rightly dismissed his claims in its totality, for a party fails or succeeds on the pleadings and evidence it puts before the court.
All that the appellant put before the court were the queries and his replies thereto and his letter of dismissal, they are in my view not sufficient to support his claim of illegal dismissal of his employment.
There being no respondent’s notice on the propriety or otherwise of not dismissing the claim out rightly, I will say no more.
Suffice to say that the appeal lacks merit and it is hereby dismissed. Parties to bear the cost of the action.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I was privileged to have read the lead judgment prepared and delivered by Her Lordship, Bulkachuwa, JCA. Having read the submissions of the learned counsel, contained in the respective briefs thereof vis-a-vis the record of appeal as a whole, I hereby concur with the reasoning and conclusion reached in the lead jdugment to the effect that the appeal lacks merit.
Consequently, the appeal is hereby dismissed by me. The judgment of the lower court delivered by Y. G. Dakwak, J; on 26/3/02 is hereby affirmed by me.
No order as to costs.
NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother, Bulkachuwa, JCA. I agree entirely with the lead judgment. I just want to add for emphasise that in an action for wrongful termination of employment or dismissal, it is necessary for the Plaintiff to plead and tender in evidence his letter of appointment and failure to do so may be fatal to his case.
A servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful. Okumu Oil Palm Co. Ltd Vs. Iserbienrhien (2001) 6 NWLR Pt. 710 Pg 660. Idoniboye-Obu Vs. NNPC (2003) 2 NWLR Pt. 805 Pg 589.
In the case of Okoebor Vs. Police Council (2003) 12 NWLR Pt.834 Pg 444, the Court held inter alia –
‘When an employee complains that his employment has been unlawfully terminated, or that he was unlawfully dismissed, he has the burden not only to place before the Court the terms and conditions of the employment but the manner in which the said terms or conditions were breached by the employer.’
In sum, the Appellant failed to prove that the Respondent dismissed him illegally. The appeal therefore must fail and its hereby dismissed. I abide by the order as to cost in the lead judgment.
Appearances
D. M. Jangkam Esq.,For Appellant
AND
Edward Pwajok Esq.,
S. P. Gang ADCL and
N. H. Gumut SSC,For Respondent
