MATTHEW IWUOHA v. MOBIL PRODUCING NIG. UNLTD.
(2011)LCN/4524(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of May, 2011
CA/C/15/2005
RATIO
AMENDMENT OF PLEADINGS: EFFECT OF AMENDMENT OF PLEADINGS
The effect of amendment is that once it is ordered, what stood before amendment would no longer be material before the court and no longer defines the issues to be tried in the suit. See AMANAMBU v OKAFOR (1966) 1 ALL NRL 205; ROMITI V MCGREGOR (1974) 11 SC 133 at 152; KATTO V CBN (1999) 6 NWLR (Pt. 507) 390 at 412. PER KUMAI BAYANG AKAAHS, J.C.A.
TERMINATION OF APPOINTMENT: WHETHER THE COURT CAN GO OUTSIDE THE TERMINATION LETTER TO DISCOVER THE REASONS FOR THE TERMINATION
It is settled that where no other reason is stated for the termination of appellant appointment except that the Appellant’s service “were no longer required”, the court cannot go outside the said letter to discover the reasons for the termination. See: CHUKWUMAH V SHELL PETROLUEM DEV.CO. LTD (1993) 4 NWLR (Pt. 289) 512; CBN V AMIKA (2000) 13 NWLR KATTO v CBN supra at page 408… PER KUMAI BAYANG AKAAHS, J.C.A.
PLEADINGS: WHETHER PLEADINGS CONSTITUTE EVIDENCE
Pleading do not constitute evidence. PER KUMAI BAYANG AKAAHS, J.C.A.
HEARSAY EVIDENCE: DUTY OF THE TRIAL JUDGE WHERE A WITNESS GIVES HEARSAY EVIDENCE AND THE OTHER SIDE DOES NOT OBJECT TO IT
If a witness gives hearsay evidence and the other side does not object, the trial judge is not expected to invite counsel to address him before he expunges such evidence or attaches little or no weight to such evidence. PER KUMAI BAYANG AKAAHS, J.C.A.
ORDER OF NON-SUIT: WHETHER THE TRIAL JUDGE MUST INVITE THE PARTIES TO ADDRESS HIM BEFORE ENTERING AN ORDER OF NON-SUIT
It is the law that before the trial Judge enters an order of non-suit, he should invite the parties to address him which was omitted in the instant case. PER KUMAI BAYANG AKAAHS, J.C.A.
POWER OF COURT OF APPEAL: SCOPE OF THE POWER OF THE COURT OF APPEAL UNDER SECTION 15 OF THE COURT OF APPEAL ACT
This court in exercise of its power under section 15 of the Court of Appeal Act has full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance. This power reviewing the evidence and making any order or entering any judgment which the lower court could have made or entered. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MATTHEW IWUOHA Appellant(s)
AND
MOBIL PRODUCING NIG. UNLTD. Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): By letter dated June 28th, 1979 and received in evidence as Exh. ‘B’, the plaintiff now Appellant was offered employment as Expeditor II- Traffic on a basic salary of N3,600.00 per annum in Mobil producing Nigeria. He was entitled to a rental subsidy of N1,080.00 per annum; Christmas Bonus of N150.00 and N270.00 annual leave allowance bringing the total of his emoluments to N5, 100.00 per annum. His appointment was confirmed in a letter dated 2nd January, 1988 tendered as Exh. ‘C’. On 27th December, 1989 he received Exh. ‘A’ is terminating his appointment with effect from 31st December, 1989. He took out a Writ of summons on 5th April, 1990 claiming N1,000,000.00 as special and general damages for wrongful dismissal. The Writ and Statement of Claim were later amended raising the damages to N8,000,000.00. The defendant denied the claim. Pleadings were filed and exchanged. Thereafter the plaintiff testified and tendered several exhibit and was cross-examined. The defence also called a witness, namely, Mr. Steve Michael Asuquo, the Human Resource Co-Coordinator for Mobil Producing Unlimited who testified and tendered the Mobil Producing Nigeria Employee Handbook and was admitted as Exh. ‘W’. After the Defence witness was cross-examined, learned counsel addresses the court. In a reserved judgment delivered on 15th January, 2004, the learned trial Judge held that the plaintiff was entitled to be following:
i) Salary up to and including 31/12/89
ii) One month’s salary in lieu of notice
iii) Proportionate leave pay and allowance
iv) Overtime pay if any
v) Severance benefit
vi) All other benefit and entitlement due to the plaintiff.
Despite this finding the learned trial Judge proceed to hold that it is not possible to quantify in cash the actual entitlements of the plaintiff or even all the items of entitlement until the plaintiff gets to the defendant Senior Staff accountant payroll as indicated in Exhibit ‘A’. he according non-suited the plaintiff.
The Plaintiff felt dissatisfied with the judgment and appealed against it in his Notice of Appeal dated 8th April, 2004 which Contained four ground of appeal. On 12/9/2006, the Appellant brought an application for leave to amend the Grounds of appeal and file two additional grounds. The application was moved and granted on 29/3/2007. From a total of six ground of appeal the following six issues were formulated for determination:-
1. Whether the learned trial Judge was right when he held that the Respondent did not make any imputation of crime against the Appellant thus the Appellant was on a frolic of his when he went outside Exh. ‘A’ to search for reasons for termination of his appointment in Exh. ‘E’ that was not proved?
2. Whether the learned trial Judge was right when he held that the Respondent having abandoned its pleadings the issues raised by the abandoned facts must be disregarded when other material facts including Exh. ‘E’ were properly before the court?
3. Whether the court below was right in ignoring the provisions of Exh. ‘H’ and raising suo motu the issue of its legal status, declaring same to be a non-binding gentleman’s agreement?
4. Whether the learned trial Judge had the jurisdiction to non-suit the Plaintiff and if he had, whether this was a proper case for an order of non-suit?
5. Whether the trial court right when it raised suo motu the issue of non-suit and ruled therein without calling on the counsel for the parties to address it on the issue?
6. Whether in the circumstance of this case, the Appellant was not entitled to restatement and eventual retirement benefits from Exxon Mobil which took over the Respondent?
The Respondent adopted the issue formulated by the Appellant.
I intend to dispose of issue No. 6 before dealing with the other issues raised in the appeal. In the Statement of Claim dated 9th July, 1990 there was an alternative claim for reinstatement in paragraph 23 of the Statement of Claim which reads:
“23. Wherefore, the Plaintiff’s claim is for Two Million Naira (2,000,000.00) being special and general damages for wrongful dismissal of the plaintiff in that the plaintiff who was a Senior Staff in the Aviation Department of the Defendant’s Branch Office at Eket, was summarily dismissed by a letter dated 27th December, 1989 contrary to the conditions of service and in breach of the Rules of Natural Justice, or in the ALTERNATIVE, to re-instate the Plaintiff.”
However in the Amended Statement of Claim dated 18th May, 2000 the alternative relief for reinstatement was omitted in paragraph 24 wherein the plaintiff pleaded as follows:
“24. Wherefore the plaintiff claim is for Eight Million Naira (N8,000,000.00) being special and general damages for wrongful dismissal/termination of the Plaintiff in that the Plaintiff who was a Senior Staff in the Aviation Department of the Defendant of the Defendant’s Branch Office at Eket, was summarily dismissed/terminated by a letter dated 27th December, 1989 contrary to his conditions of service and in breach of the Rules of Natural Justice” (See page 30 of the Record).
The effect of amendment is that once it is ordered, what stood before amendment would no longer be material before the court and no longer defines the issues to be tried in the suit. See AMANAMBU v OKAFOR (1966) 1 ALL NRL 205; ROMITI V MCGREGOR (1974) 11 SC 133 at 152; KATTO V CBN (1999) 6 NWLR (Pt. 507) 390 at 412. Since the statement of claim was amended pursuant to order of court dated 30/3/2000 and the alternative claim to reinstatement was omitted, that claim for reinstatement was abandoned and was no longer an issue to be considered during the trial. No evidence was given during trial for reinstatement and even if the plaintiff had testified in that regard such evidence would be liable to expunged since it would have gone to no issue.
Issue 1 and 2 were argued together. Learned counsel referred to paragraphs 9 and 10 of the Statement of Claim where he alleged that the Respondent accused him of falsifying official records kept by him on aviation fuel and gave a wrong/false impression on the aircraft fuel position of the defendant company which was admitted in paragraphs 9 and 10 of the Statement of Defence which led to the termination of his appointment and submitted that a master and servant relationship where an employee, imputed the commission of a crime by the employee, the employer is under obligation to subject the employee to trial by a regular court to establish the aspect of the crime committed and concluded that the learned trial judge erred in holding that Exh. ‘A’ contained no evidence of allegation of crime and that the allegation of crime contained in Exh. ‘E’ was not proved.
Exhibit ‘A’ is the letter of termination issued by Mobil Producing Nigeria to the Appellant and it reads:-
“LETTER OF TERMINATION
Dear Mr. Iwoha,
Please be advised that effective December 31, 1989 your service will no longer be required by the company.
By a copy of this letter, the Senior Staff Accountant Payroll is being requested to pay you all your final entitlements less any amount owed the company, after you have handed over all the properties of the Company in your possession.
Very truly yours
Signed: Alan J. Eade
Manager, Aviation.”
Learned counsel for the Respondent submitted that the lower court was right when it held that in considering the issue whether the termination of the appointment of the appellant was right or wrong, the court must confine itself to the letter terminating the appointment and not go outside it to look for other reasons which the Appellant thinks or suspects may have been behind the termination. This represents the correct position of the law. It is settled that where no other reason is stated for the termination of appellant appointment except that the Appellant’s service “were no longer required”, the court cannot go outside the said letter to discover the reasons for the termination. See: CHUKWUMAH V SHELL PETROLUEM DEV.CO. LTD (1993) 4 NWLR (Pt. 289) 512; CBN V AMIKA (2000) 13 NWLR (Pt. 683) 21; KATTO v CBN supra at page 408 where Belgore, JSC (as he then was) in dealing with a similar situation as in the instant appeal stated –
“The letter of termination of the respondent’s appointment simply stated that his service were no longer needed and he was advised to collect his one month’s salary in lieu of notice as provided for in Clause 2 of Exh. 7 (Staff Manual). The Satff Manual (Exh. 7) is the document regulating the contract of employment of the plaintiff with the defendant and clause 2 thereof is the binding clause. The letter of termination never adverted to any fraud, misconduct or dishonesty and the respondent cannot read into his termination letter what is not contained therein…”
Pleading do not constitute evidence. Consequently when the Respondent failed to lead evidence on the facts pleaded in paragraph 6 of the Statement of Defence, the learned trial Judge was right to hold that it had abandoned that part of the pleading admitting some part of the appellant claim as regard issue surrounding the termination of the appellant and the averments in the statement of defence relating thereto should be disregarded.
Issue No.3
This issue deals with whether the lower court ignored the contents of Exh. ‘H’ and raised suo motu the issue of its legal status.
Exhibit ‘H’ is the Collective Agreement of the Senior Staff Association of Mobil Producing Nigeria. It was made on 30th June 1988 between Mobil Producing Nigeria and the Petroleum & Natural Gas Senior Staff Association, Mobil Producing Nigeria Branch and it took effect from 1st July, 1988. The Collective Agreement was pleaded in paragraph 21 and 22 of the Amended Statement of claim thus:
“21 The Plaintiff hereby pleads Collective Agreement of Senior Staff Association and Employee’s Handbook on Condition of Service with the Defendant will rely upon same at the trial.
22. The Plaintiff has spent all his working life in the Defendant’s Company and cannot find any alternative employment in these days of S.A.P. and austerity. He ought to have retired from the Defendant’s service in 2007. The plaintiff has therefore suffered injuries and damages and claim special and general damages as follows:-
He gave a breakdown of special Damages suffered which were multiplied by 18 years and also claimed General Damages of N1,237,517.00 and the total came a round figured of N8,000,000.00.
In its response the Defendant averred in paragraph 16, 17 and 18 of the statement of defence as follows:-
“16. The Defendant shall contend at the hearing that it did not undertake or contract to employ the plaintiff for any term of year or until he reached the retirement age. This privilege is not enjoyed by any employee of the defendant company.
17. The defendant shall contend that he plaintiff is not entitled to the reliefs claimed or any item therein.
18. Wherefore the defendant will urge the court to dismiss the plaintiff claim in its entirety with substantial costs as the same is speculative, exploitive, and baseless and an abuse of court process.”
In his consideration of Exhibit ‘H’ in the judgment, the learned trial Judge said:
“it is a collective agreement as I have already said. Being a collective agreement it is not enforceable because it was not adopted as forming part of the terms of the plaintiff’s employment contained in Exh. ‘B’. The legal status of collective Agreement is doubtful. It is a gentleman’s agreement totally devoid of sanctions. The enforcement of such an agreement is by negotiation between the parties to the agreement. See the cases of: NWAJAGU v BRITISH AMERICAN INSURANCE COY NIG. LTD (2000) 14 NWLR (Pt. 687) 356; AFRIBANK NIG. PLC v OSISANYA (2000) 1 NWLR (Pt. 642) 598.
Therefore a party to contract of employment desiring an enforcement of a collective Agreement must ensure at the commencement of the contract that the ‘Collective Agreement’ is incorporated into and forms part of the terms of the employments.”
Contrary to the submission of learned counsel to the appellant, the issue of the collective agreement was not raised by the trial judge suo motu but it was pleaded and evidence was adduced leading to the tendering of the document as Exh. ‘H’ and I must say he discharged the duty in an admirable way. He did not need to invite counsel to address him on every document tendered before considering the legal status of such evidence. If a witness gives hearsay evidence and the other side does not object, the trial judge is not expected to invite counsel to address him before he expunges such evidence or attaches little or no weight to such evidence. In the instant case the learned trial Judge stated the correct legal position regarding Collective Agreement that has not been incorporated into the contract and cannot be faulted in his reasoning and conclusion.
I intend to deal with issues 4 and 5 together and to pose the question whether non-suiting the plaintiff was necessary considering the pleading and the evidence both oral and documentary which the plaintiff adduced. In a proper case, I do not think a party who has been non-suited should appeal against the order of non-suit since the order entitles him to have a second bite at the cherry. It is the law that before the trial Judge enters an order of non-suit, he should invite the parties to address him which was omitted in the instant case. Learned counsel for the appellant contended that there is no where in the Akwa Ibom State High Court (Civil Procedure) Rules 1989 that the order of non-suit is mentioned and submitted that the principle of inclusion unius exclusion alterus is applicable and cited in support the following cases: LAWAL V NEPA (1976) 3 SC 109; ANYAKWO V A.C.B. (1976) 2 SC 41; LION BUILDING LTD V SHADIPE (1976) 12 SC; ONIBUDO V AKIBU (1982) 7 SC.
This submission is totally wrong and misleading. Order 34(1) of the High Court (Civil Procedure) Rules, 2009 of Akwa Ibom State specially grants power to a trial Judge to make such an order. It states as follows:
“34-(1) where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the court, the judge may suo motu or on application non-suit the claimant, but the parties’ Legal Practitioner shall have the right to make submissions about the propriety or otherwise of making such order.”
The Supreme Court in LAWAL V NEPA (1976) 3 SC 109 made a specific pronouncement that the High Court of Lagos State had no longer power to enter an order of non-suit and this is because the Lagos State High Court Rules, 1973 did not provide for an order of non-suit. That decision and that order cannot apply in the present suit since the High Court Rules of Akwa Ibom State allow for the order of non-suit.
The learned trial Judge after holding that the Collective Agreement was a gentleman’s agreement totally devoid of sanctions since it was not adopted as forming part of the terms of the plaintiff’s employment contained in Exh. ‘B’ proceeded to consider the remaining evidence adduced during trial. He dealt with Exh. ‘V’ and ‘W’. Exhibit ‘V’ is titled “Mobil Payroll Authorization Nigerian Employee Compensation while Exhibit ‘W; is the Mobil Producing Nigeria Employee Handbook. Paragraph 7.1 of Exh. ‘W’ deals with termination and the entitlement payable. It also provides for one month’s notice or one months salary in lieu of notice. He wants further to hold that –
“Since it is clear that his appointment was terminated, the plaintiff shall be entitled to be paid by the defendant as provided for in the Exhibit the following:
(i) Salary up to including 31/12/89 when the termination became effective.
(ii) One month’s salary in lieu of notice
(iii) Proportionate leave pay and allowance
(iv) Overtime pay if any
(v) Severance benefit
(vi) All other benefits and entitlement due to the plaintiff
Having enumerated the entitlement due to the plaintiff the learned trial Judge reached a rather bizarre conclusion when he stated that “it is not possible at this stage to quantify in cash the actual entitlement of the plaintiff or even all the items of entitlements”. He reached this conclusion based on the facts that the Plaintiff failed to comply with the directive given to him to report to the Senior Staff Accountant, Payroll to collect his entitlements. It was on account of this that he made an order non-suiting the plaintiff.
The evidence adduced by the plaintiff and accepted by the learned trial Judge lends itself readily to quantifying his entitlements. Apart from Exh. ‘V’ and ‘W’, the plaintiff gave oral evidence as to his entitlement and this is what he stated on 18/12/2000:
“I was entitled to salaries and other benefits. On monthly basis I was entitled to a salary of N1,5000.00; lunch subsidy N430; utility allowance N75; transportation N150.00; shift allowance N75.00. All these were per month (all adding up to N2,380.00 per month). For a year it would come up to N28,560. I was also entitled to yearly allowances. These include Leave Bonus – N1,500; Xmas Bonus – N1,500.00; House Ownership Factors – N7,000.00; House Rent N3,960.00; Medical – N3,000; Returned Transportation – N870.00; Xmas Turkey- N500.00. For a year all of them add up to N18,330.00 (See page 44 lines 15-27 of the records).
This court in exercise of its power under section 15 of the Court of Appeal Act has full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance. This power reviewing the evidence and making any order or entering any judgment which the lower court could have made or entered. Since the evidence adduced by the plaintiff regarding his entitlement was not demolished under cross-examination and except for the futuristic claim of his being entitled for the 18 years he was to work before his due date of retirement in 2007 which was rightly rejected by the learned trial Judge, I assess the following as the entitlement of the plaintiff;
(1) Salary and allowance for December 1989 – N2,380.00
(2) 1 month’s salary in lieu of Notice – N1,5000.00
(3) Yearly Allowances – N18,330.00
(4) Separation Benefit -6/10 x 20 = N192,000.00
TOTAL = N214,210.00
This plaintiff is entitled to N214, 210.00
I find that the appeal substantially succeeds. I allow the appeal and set aside the order non-suiting the plaintiff and in its place enter judgment in favour of the Plaintiff for N214, 210.00. I assess costs of N20,000.00 in favour of the Appellant against the Respondent.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the judgment of my learned brother, Akaahs, JCA. I am in agreement with the reasoning and conclusion therein that there is merit in the appeal. The appeal is allowed by me with costs as assessed and awarded in the lead judgment.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading in advance the lead judgment by my learned brother, Akaah, JCA. I am in full agreement with him that the appeal substantially succeeds. I entirely agree with the reasoning and conclusion reached therein. I also abide by the consequential orders made therein including the order as to costs.
Appearances
Udo UdemekongFor Appellant
AND
AERS AkpabioFor Respondent
