MOBIL PRODUCING NIGERIA UNLIMITED V. OTOABASI EFFIONG
(2011)LCN/4590(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2011
CA/C/204/2009
RATIO
FILING OF AFFIDAVIT: CIRCUMSTANCES WHEN THE FILING OF AFFIDAVIT WILL BECOME NECESSARY
The law does not mandate a party filing an objection to file an affidavit or to bring the objection in any form. The filing of affidavit however will become necessary where there is dispute or controversy as to facts relating to the objection. See Bello v. N.B.N. (1992) 6 NWLR (Pt. 246) 206 Universal Trust Bank of Nigeria v. Ozoemena (2007) All FWLR (Pt. 359) 1014 PER ISAIAH OLUFEMI AKEJU, J.C.A.
SERVICE OF COURT PROCESS ON A COMPANY: HOW A COURT PROCESS IS SERVED ON A COMPANY
The general view that has been consistently expressed and adopted by this court in matters of service of processes on company is that the Company and Allied Matters Act 1990 has made provision that eliminated the rigorous and cumbersome procedure for service under the Act of 1968 by permitting service under the domestic rules of court. Thus the various decisions have consistently been to permit service of processes at the office of the Company not being necessarily the registered office; hence the decisions of this court in Bello v. N.B.N (1992) 6 NWLR (Pt. 246) 26G; U.B.N Plc v. Orharhuge (2000) 2 NWLR (pt. 645) 495; Newswatch Communications v. Attah (2000) 2 NWLR (Pt. 646) 592; Daewoo Nig. Ltd. v. Uzoh (2008) All FWLR (Pt. 399) 456 among others. By the combined meaning or effect of Section 78 of CAMA cited above, and Order 12 Rule 8 of the High Court Rules, a process is served on a company by: (a) Giving the writ or document to any Director, Secretary or other principal officer. (b) By leaving it at the office of the corporation or company. PER ISAIAH OLUFEMI AKEJU, J.C.A.
SERVICE OF COURT PROCESS: WHAT IS THE POTENT EVIDENCE OF SERVICE OF COURT PROCESS
…the most potent evidence of service of court process is the Affidavit of service issue by the court bailiff, see Mobil Nigeria Plc v. Pam (2000) 5 NWLR (Pt, 659) 506. PER ISAIAH OLUFEMI AKEJU, J.C.A.
UNCONTROVERTED AFFIDAVIT EVIDENCE: ESSENCE OF FILING A COUNTER AFFIDAVIT WHERE A PARTY SEEKS TO CHALLENGE THE CONTENT OF AN AFFIDAVIT
A counsel cannot by his own ipse dix it no matter how forensic or articulate or brilliant oppose . He must file a Counter affidavit since the content of an unchallenged affidavit must be accepted by court and acted upon. See Honda Place Ltd vs. Globe Motor Holdings Nig, Ltd. (2005) All FWLR (Pt. 283) 1. PER ISAIAH OLUFEMI AKEJU, J.C.A.
AFFIDAVIT EVIDENCE: POSITION OF THE LAW ON WHEN AFFIDAVIT EVIDENCE MUST BE MADE AVAILABLE
Ordinarily the law does not mandate a person filing a Preliminary Objection to file any affidavit where what is relied upon is pure law. Where facts will however be required, affidavit evidence must be made available. See Bello v. N.B.N. (supra); U.T.B. v. Ozoemena (2007) All FWLR (Pt. 358) 1014. PER ISAIAH OLUFEMI AKEJU, J.C.A.
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF; ON WHAT BASIS ARE CIVIL CASES DECIDED
It is elementary law that burden is on a person asserting the affirmative of an issue to prove that his assertion. It is also the law that civil cases are decided on a balance of probabilities. See Sections 135 and 137 Evidence Act and the cases Daodu v. N.N.P.C (1998) 2 NWLR (pt. 539) 355; Kata v. Potiskum (1998) 3 NWLR (pt. 540) 1; Itauma v. Akpe-Ime (2000) 7 SC (t. 11) 24. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JAFARU MIKAILU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MOBIL PRODUCING NIGERIA UNLIMITED Appellant(s)
AND
OTOABASI EFFIONG Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Akwa Ibom state, Eket Division delivered on 5th day of August, 2009 in Suit No: HEK/57/2006 which the Respondent as Plaintiff commenced through the writ of summons and statement of claim filed on 15th May, 2006.
By the Amended statement of claim filed on 4th April, 2008 with the leave of court, the Respondent claimed as follows:
“i. A DECLARATION that the suspension of the plaintiff from duty without pay by the defendant ceased on 31/10/2004.
ii. A DECLARATION that the contract of appointment between plaintiff and defendant is still subsisting.
iii. AN ORDER compelling the defendant to pay the plaintiff the following:
(a) N50, 000.00 monthly salary with effect from 1/11/2004 until plaintiff’s appointment is properly determined.
(b) N120, 000.00 annual medical allowances with effect from 2004 till plaintiff’s appointment is properly determined.
(c) N50, 000.00 annual leave giant with effect from 2004 until plaintiff’s appointment is properly determined.
(d) N50, 000.00 annual Christmas bonus with effect from 2004 until plaintiff’s appointment is properly determined.
(e) N50, 000.00 annual Turkey allowance with effect from 2004 until plaintiffs appointment is properly determined.”
The case of the Respondent was that the Appellant employed him as a Spy Police Constable through a letter dated 23/10/96 making the employment effective from 1/11/96, and was placed on suspension without any payment from 1/7/2004 vide the letter dated 28/6/2004 issued by the defendant’s Security department and he remained on suspension up to the date he filed his action at the lower court.
The case went into trial and the parties adduced oral evidence.
In the judgment delivered on 5th August, 2009, the lower court upheld the Respondents’ claim and ordered the Appellant to pay the total of Three Million, One Hundred Thousand Naira (N3, 100, 000.00) being the Respondent’s entitlements by way of salary and leave grant from November, 2004 to July, 2009 with N20, 000 as cost of the action. The Court also ordered that “the Defendant shall continue to pay the plaintiff his earnings as long as his employment subsists with the Defendant.”
The Appellant was dissatisfied with the decision of the lower court and filed a Notice of Appeal on 4th August, 2009 which was later amended with the leave of this Court. The Amended Notice of Appeal with six grounds of appeal was filed on 17/2/2010.
In the appellants’ Brief of Argument settled by Roland Obaju Esq. as Learned Counsel for the Appellant, the following 5 issues were distilled from the six grounds of appeal:
“1.1 Whether the lower court was right preliminary to refuse the objection of the appellant challenging; the service of the originating processes at a branch office on a none principal officer of the Appellant (Ground 1).
1.2 Whether from the facts and circumstances of the case, the Respondent can rightly be held to be an employee of the Appellant (Ground 2 and 3).
1.3 Whether the judgment of the Court was not perverse when it failed to construe statutory provisions particularly Sections 214 (1), 227 of the Constitution of the Federal Republic of Nigeria as well as Sections 6 and 7 of the Public Order Act (Cap P42) Laws of the Federation of Nigeria, 2004 on the judgment of the Court (Grounds 3 and 4.
1.4 Whether the decision of the Court does not amount to forcing an employee upon an employer against its wish and what is the effect of the Oath of Allegiance undertaken by Respondent to serve the Federal Repu6lic of Nigeria and the Nigeria Police (Ground 5 and 6).
1.5 Whether the belated exclusion of the Appellant’s Amended Statement of Defence did not violate the principles of fair hearing and thereby occasioned miscarriage of justice.”
The Respondent’s Brief of Argument was settled by Livinus Udofia Esq. and filed on 24/12/2010. The Learned Counsel raised the following issues for determination:
“1. Whether the learned trial judge was not right in dismissing the Notice of preliminary objection challenging service of the originating processes hereof on the appellant.
2. Whether the learned trial judge was not right in holding that the respondent is an employee of the appellant and not a supernumerary policeman within the meaning of the police Act.
3. Whether the Appellant is entitled to treating the Respondents’ employment as having been terminated on the strength of the letter of termination (Exhibit 7) issued by the Police.
4. Whether the learned trial judge was not right in striking out the defendants’ amended statement of defence filed without leave.”
In the argument of the issues formulated the Learned Counsel for the Appellant in respect of issue No 1. Submitted that the decision of the lower court dismissing the Appellant’s preliminary objection was reached per incuriam in view of the position of the Supreme Court in the cases of Mark v. Eke (2004) s NWLR (Pt. 865) 54. He cited also Kraus Thompson Organization Ltd. v. Unical (2004) 9 NWLR (pt. 879) 631 and submitted that the lower court was in error when it held that service on the appellant at Ibeno instead of the registered office in Lagos was proper service.
The Learned Counsel submitted that the failure of service had vitiated the entire action since the Court did not possess the jurisdiction, the proper order should be to strike out the suit relying on Ngige v. Achukwu (2005) 2 NWLR (pt. 909) 123.
The Learned Counsel invited this court to hold that there was no service founding the action and to consequently upturn the ruling of the lower court on the issue of service of the originating processes.
The Learned Counsel for the Respondent argued that the preliminary objection was not accompanied by affidavit stating facts but the facts were stated in the Learned Counsel’s address which the lower court rightly rejected. He contended that the preliminary objection was mainly on non compliance with Section 97 of the Sheriffs and Civil Process Act Cap 407 whereas the Writ of Summons in this case was issued in the High Court of Akwa Ibom State holden at Eket for service on the defendant at the Qua Iboe Terminal (QIT) Ibeno, also in Akwa Ibom State. He submitted that service on companies and corporations is guided by Section 78 of Companies and Allied Matters Act which provides that a Court process is also to be served in the manner provided by the Rules of Court.
The 2nd issue in the Appellants’ Brief is whether the Respondent can be held to be the Appellants’ employee.
The Learned Counsel for Appellant argued that the Respondent founded his employment with the Appellant upon exhibit L, the letter of offer of appointment as spy Police Constable; which was also the document the lower court relied upon as creating employment. The learned counsel argued that the letter, exhibit 1 however has raised questions as to whether the Appellant could offer appointment as a Supernumerary police and whether such an appointment is not a creation of statute and therefore beyond the reach of private entity. He submitted that the words “as a spy Police Constable” in exhibit 1 imported an extra requirement which Appellant does not have the capacity to give. He submitted that the status of a spy Policeman is statutorily created by virtue of Sections 18 – 22 of Police Act cap. P. 19 Law of the Federation of Nigeria, 2004.
The Learned counsel submitted also that exhibit 1 created an inchoate contract that is meant to recommend the Respondent to the Nigeria Police Force to facilitate his enlistment as a spy policeman.
For the definition of offer and acceptance as in contract, the learned counsel cited the case of Obaike v. B. C. C. Plc (1997) 10 NWLR (pt. 525) 435 and submitted that there was no agreement on all the material terms in respect of exhibit 1 which was inchoate and as a result of which the parties signed exhibit B, the service condition agreement that sought to clarify exhibit 1, He argued that the offer of employment was subject to the successful attendance of Police Training School and subject to the Respondent meeting the condition for recruitment and enlistment into the Police force such as the requisite height, chest, age and physical fitness to make him eligible for recruitment and enlistment in to the Nigerian Police force, and by all these the entire process had been brought under the authority of Sections 18-22 of Police Act, thereby making the employment to have statutory flavour. He cited Idoniboye – Obu V. NNPC (2003) 4 MJSC 131 to submit that the employment of supernumerary Police under Sections 18 – 22 of Police Act is statutory and beyond the ability of the Appellant to create.
The Learned Counsel submitted that from the facts and circumstances of this case the Respondent cannot be held to be an employee of the Appellant because there is a supervening statutory requirement that has wrested the power from the appellant. He submitted that the lower court was in error to have held that the Respondent was employees of the Appellant moreso, that exhibit’s create an illegal contract which the court cannot enforce.
On this issue, the Learned Counsel for the Respondent referred to the evidence of the Respondent as PW1 and the letter of appointment issued to him by the Appellant which he tendered as exhibit 1 after which the Appellant suspended the Respondent without pay vide exhibit 3 which was signed by the Appellants’ Security Coordinator.
The Learned Counsel submitted that from all the circumstances of this case, the Appellant was/is the employer of the Respondent on the basis that Appellant employed him, issued him letter of employment, subjected him to medical examination at its own hospital, sent him to Police for training on Basic Security, issued identity card to him and exercised disciplinary control over him. He submitted that once there is failure to comply with the relevant provisions of Section 18 of Police Act, the employee is not a Spy Police within the meaning of that section, relying on Mobil Producing Nigeria unlimited v. Udo (2009) All FWLR (pt. 482) 1177, He submitted also that when an enactment has prescribed the modalities for carrying out an act any deviation from such mode will render the act unlawful, citing Akuneziri v. Okonwa (2001) FWLR (pt. 35) 604; university of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 9 NWLR (Pt. 363) 367 and concluded that if there has been non-compliance with the specific requirement of the Police Act, then the Respondent is an employee of the Appellant.
Issue No. 3 is about the lower court’s decision to discountenance exhibits and failed to construe statutory provisions such as Sections 214 (1), 227 of the Constitution of the Federal Republic of Nigeria, as well as Sections 6 and 7 of the Public Order Act (Cap. P. 42) Laws of the Federation of Nigeria , 2004 the combined effect of which provisions is that civil institutions cannot own police or employ police as its staff or make them to wear the uniform, dress or any insignia of the police all of which the Respondent admitted in evidence that he was wearing. He said the Respondent also passed through Police Training School, in Calabar and took the oath of allegiance to serve the Federal Republic of Nigeria and not the Appellant.
On the provisions of the Public Order Act, the learned counsel submitted that it is an offence under that law for any Corporate or Unincorporated entity to organize, train or equip persons for the purpose of usurping functions of the Nigeria police Force or armed forces while section 7 (4 and 5) of the same statute makes it an offence for any person to wear any uniform otherwise than in compliance with the provision of the Section.
The learned counsel argued that the Respondent who attended Police Training School in 1996 and was fully kitted in Police uniform with insignia, Police rank and number cannot turn round in 2006 and deny being a policeman. Moreso that he admitted in his testimony that he was a Policeman. He submitted that Sections 18-22 of Police Act govern the employment of Supernumerary Police personnel and makes the employment a statutory one, citing Evans Bros (Nig) Pub. Ltd. v. Faleye (2003) 10 NWLR (Pt. 838) 564. On when an employment is said to have statutory flavour, he cited CBN v. Archibong (2001) 10 NWLR (Pt.721) 492.
The learned counsel argued that it was not right for the lower court to shut its eyes to the overwhelming evidence especially exhibits 7 and 8 to hold that the Respondent was still an employee of the Appellant despite the exhibits 7 and 8 placed before court which were the letters of dismissal of the Respondent by the Commissioner of Police and the Service Conciliation Agreement signed by the Respondent but both of which the learned trial judge ignored and tagged as “Smuggled in” and “Stranger.” On the status of a Supernumerary Police, the learned counsel referred to the decision in SPDC (Nig) PLC v. Dino (2007) 2 NWLR (Pt. 019) 438.
He submitted that the decision of the lower court which terminated the suspension of the Respondent by the Appellant was contrary to the final decision that the Respondent was a staff of the Appellant as it divested the Appellant of the right to discipline its employee contrary to the Appellant’s right to hire and fire.
The learned counsel submitted on issue no. 4 that the court could no longer regard the Respondent as an employee of the Appellant after the appointment has been determined by exhibit 7 , citing Chukwumah v. Shell Petroleum (1993) 4 NWLR (pt. 289) 512.
On issue no. 5, the learned counsel submitted that by striking out the Amended Statement of Defence of the Appellant in the course of its judgment, the lower court had completely shut out the Appellant from the trial which was in breach of the rule of Audi alteram partem and occasioned a miscarriage of justice. He submitted also that the lower court subsequent rejection of exhibits 7 and 8 tendered and admitted in the course of trial had the consequence of shutting the Appellant out of the whole trial.
Issue no. 1 is about the objection of the Appellant to service of the Court process. The Appellant had filed an objection as follows:
“TAKE NOTICE that counsel on behalf of the Defendant/Applicant intends at the hearing of this suit to raise a Preliminary objection seeking the following orders:
1. AND ORDER setting aside the service of the Writ of Summons and Statement of Claim for being fundamentally irregular.
2. AN ORDER striking out the entire suit for lack of jurisdiction.
3. AND for such further or other orders.
AND FURTHER TAKE NOTICE that the grounds of this objection are that:
1. The service of the writ of summons and statement of claim were served on a clerk at the Qua Iboe Terminal Ibeno, office of the Applicant rather than the head or registered head office.
2. The writ of summons and statement of claim were not served or given to a Director, secretary or other principal officer of the Applicant.
3. The Defendant/Applicant being outside the jurisdiction of the court can only be served with an endorsed writ in compliance with the sheriff and Civil Process Act.
4. The totality of the suit is incompetent and the court lacks jurisdiction.
The Notice of objection was not supported by affidavit evidence and consequently the Respondent too did not file any.
After taking arguments thereon the learned trial court dismissed the Preliminary objection in his ruling at pages 100-106 of the record. The learned trial judge stated the circumstances of the objection at page 102 that:
“The parties did not file any affidavits. The objection and the reply were based on law. Therefore where facts are excessively brought in and relied upon I will not reckon with them.
The main contention of the defendant’s learned counsel is that the defendant was served with the Statement of Claim and the Writ of Summons at the Defendant’s branch office at Qua Iboe Terminal Ibeno within the jurisdiction of this court whereas the service ought to have been at the Defendant’s Head Office in Lagos, The affidavit in the file shows that the Defendant was served with the processes by delivering same personally to Ekanem Offiong, the Defendant’s Litigation officer at Q.I.T. Ibeno.”
In this appeal the learned counsel for the Appellant has argued that the lower court was wrong to have held that the Defendant (Appellant) was properly served.
Now it is clear that the service of processes on a company such as the Appellant is guided by Section 78 of Company and Allied Matters Act, 1990, Cap C20 Laws of the Federation of Nigeria, 2004 which provides that:
“78. A court process shall be served on a company in the manner provided by the Rules of court and any other document may be served on a company by leaving it at or sending it by post, to the registered office or the head office of the company.” The relevant and material Rule of Court in the instant case is
”8. when the suit is against a corporation or a Company authorized to sue and be sued in its name or in the name of an officer or trustee, the Writ or other documents may be served, subject to the enactment establishing such Corporation or Company or under which it is registered as the case may be by giving the same to any Director, secretary or other principal officer or by leaving it at the office of the corporation or Company.”
The learned counsel for the Respondent had argued in his brief in support of the decision of the learned trial judge that the Appellant failed to file affidavit in support of the preliminary Objection, a failure which he said was fatal in view of the existence of the affidavit of service by the Bailiff showing that he served the process on one Ekanem Offiong the litigation officer at Qua Iboe Terminal.
The law does not mandate a party filing an objection to file an affidavit or to bring the objection in any form. The filing of affidavit however will become necessary where there is dispute or controversy as to facts relating to the objection. See Bello v. N.B.N. (1992) 6 NWLR (Pt. 246) 206 Universal Trust Bank of Nigeria v. Ozoemena (2007) All FWLR (Pt. 359) 1014. After taking arguments the learned trial judge dismissed the objection for the reasons advanced in his Ruling, one of which is that the Appellant did not challenge the affidavit of service by the Bailiff that the processes were served on one Ekanem Offiong who he described as the litigation officer contrary to the bare assertion by the learned counsel that they were delivered to a clerk.
Another reason was that the Writ being locally issued at Akwa Ibom State High Court, Eket Division for service at the same Eket, the endorsement required under Section 97 of Sheriff and Civil Processes Act was inappropriate or unnecessary.
When the ruling went against the Appellant, she proceeded to file the Statement of Defence, subsequently amended and participated at the trial up to judgment.
The general view that has been consistently expressed and adopted by this court in matters of service of processes on company is that the Company and Allied Matters Act 1990 has made provision that eliminated the rigorous and cumbersome procedure for service under the Act of 1968 by permitting service under the domestic rules of court. Thus the various decisions have consistently been to permit service of processes at the office of the Company not being necessarily the registered office; hence the decisions of this court in Bello v. N.B.N (1992) 6 NWLR (Pt. 246) 26G; U.B.N Plc v. Orharhuge (2000) 2 NWLR (pt. 645) 495; Newswatch Communications v. Attah (2000) 2 NWLR (Pt. 646) 592; Daewoo Nig. Ltd. v. Uzoh (2008) All FWLR (Pt. 399) 456 among others.
By the combined meaning or effect of Section 78 of CAMA cited above, and Order 12 Rule 8 of the High Court Rules, a process is served on a company by:
(a) Giving the writ or document to any Director, Secretary or other principal officer.
(b) By leaving it at the office of the corporation or company.
In the instant appeal, the lower court believed that the processes were delivered on the Appellant at its QIT office and upon the litigation officer who he believed to be a principal officer.
The argument of the learned counsel for the Appellant on the status of the official served who he described as a clerk in contradiction of the Affidavit of service of the bailiff where he was described as litigation officer is in my view not well founded. This is because the most potent evidence of service of court process is the Affidavit of service issue by the court bailiff, see Mobil Nigeria Plc v. Pam (2000) 5 NWLR (Pt. 659) 506. A counsel cannot by his own ipse dix it no matter how forensic or articulate or brilliant oppose the content of an affidavit. He must file a Counter affidavit since the content of an unchallenged affidavit must be accepted by court and acted upon. See Honda Place Ltd vs. Globe Motor Holdings Nig, Ltd. (2005) All FWLR (Pt. 283) 1.
Ordinarily the law does not mandate a person filing a Preliminary Objection to file any affidavit where what is relied upon is pure law. Where facts will however be required, affidavit evidence must be made available. See Bello v. N.B.N. (supra); U.T.B. v. Ozoemena (2007) All FWLR (Pt. 358) 1014. In the case of Mark v. Eke (2004) 5 NWLR (pt. 865) 54 cited by the learned counsel for the Appellant, the court had ordered service on a registered company by pasting on the door of its office. The Appellant effectively debunked the service allegedly carried out by the Bailiff of court meaning that there was lack of service’ much unlike in the instant case where the Appellant was served and participated at the hearing of the suit up to judgment.
The crux of issues nos. 2, 3 and 4 raised by the Appellant is the relationship the Appellant had with the Respondent and the incidences thereof. In other words the lingering question is whether the Respondent was an employee of the Appellant, or was the respondent a Supernumerary Police attached to the Appellant’ These questions become crucial and germane from the uncommon circumstances of this case.
The claim of the respondent before the lower court was (and still is) for declaration that his suspension from duty by the Appellant without pay ceased on 31/10/2004, and another declaration that the contract of appointment between the Appellant and himself was still subsisting. The respondent also claimed the order compelling the Appellant to pay him sundry sums of money “until the Plaintiff’s appointment is properly terminated.”
The parties filed and exchanged their pleadings before the commencement of trial. The plaintiff filed an amended statement of claim wherein he averred as follows inter alia:
“1. The Plaintiff is currently unemployed and resides at Eket, Akwa Ibom State of Nigeria.
2. The Defendant is oil prospecting multi-national company incorporated under the laws of Nigeria and maintains a Tank farm and it Operational Headquarters at Ibeno, Akwa Ibom State.
3. The Defendant by her letter dated 23/10/96 employed the Plaintiff as a Spy Police Constable with effect from 1/11/96. The said letter of appointment shall be founded upon at the trial hereof.
4. By a letter dated 28/6/2004 the Defendant’s Security department asked the plaintiff to proceed on suspension for allegedly staying away from duty. The said suspension took effect from 1/7/2004 without pay. The said letter shall be founded upon at the trial hereof.
4(a) Mr. Effgnga Usen who signed the suspension letter for the Defendant is a bonafide staff of the Defendant and was then security coordinator at the Bonny River Terminal (BRT) in River State.
5. The Plaintiff till date has not received any letter terminating the suspension.
6. The Plaintiff has been on suspension for more than one year without pay.
B. The period of suspension is unreasonable and malicious. The Plaintiff could not earnestly look for another job nor travel out of Eket because he is hoping that he will be recall (sic) to duty.
9. The Defendant had never placed any of its staff on suspension for a period longer than 3 months. Whatever the offence committed by any of the Defendant’s employee the period of suspension is usually not more than 3 months.
In paragraph 1 of its Statement of Defence at page 38 of the record of appeal, the respondent denied the above averments except paragraph 1 that the Plaintiff (Respondent) is currently unemployed.
The Appellant denied employing the respondent who it said enlisted as a supernumerary Police Officer and was deployed to its facility for security purposes only and over who the Appellant has no power to hire and fire.
It is elementary law that burden is on a person asserting the affirmative of an issue to prove that his assertion. It is also the law that civil cases are decided on a balance of probabilities. See Sections 135 and 137 Evidence Act and the cases Daodu v. N.N.P.C (1998) 2 NWLR (pt. 539) 355; Kata v. Potiskum (1998) 3 NWLR (pt. 540) 1; Itauma v. Akpe-Ime (2000) 7 SC (t. 11) 24. In support of his assertion that the Appellant employed him, the Respondent tendered exhibit 1, the letter of employment written on the Headed paper of the Appellant dated October 23, 1996 and written as follows:
“OFFER OF APPOINTMENT AS A SPY POLICE CONSTABLE
You are hereby offered a place in the security Unit of Mobil Producing Nigeria Unlimited (MPNU) as a Spy police constable.
Your appointment takes effect from 1st November, 1996, you will be required to pass Medical Examination conducted by Mobil Doctors.
You are advised to report with two passport photographs to Mr. I. S. Akwang (ACP) on 1st Nov. 1996, at Bam at QIT for attestation and documentation. Also provide yourself with two pairs of white shorts, two pairs of white T-shirts and a pair of white canvass.
Your training programme is being arranged with the police Training School, Calabar and may commence on 11/11/96.
Please sign and return the duplicate copy to this as confirmation of your acceptance of the offer.
B. O. B. Duke
Security Adviser”
Although the Appellant said exhibit 1 is not their exact letter, no other letter was produced to confirm that Respondent was employed by any other organization.
Sections 18-22 of Police Act have clearly set out the procedure by which a supernumerary policeman may be appointed. A person to be so appointed must be a member of the Police Force, and not somebody outside.
By the provisions of Sections 18-22 of Police Act, for a person to be a Supernumerary Policeman, he must be a member of the Police force who has been appointed by the appropriate authority to carry out Supernumerary Police duties. There is no evidence on record to show that the Respondent was employed under the system laid down in section 18 of police Act.
This court had cause to decide issues about the same Section 18 of Police Act in the case of Okon Johnson & Ors v. Mobil Producing Nig. unlimited (2009) All FWLR (pt. 530) 1331.
At page 1369, Orji Abadua JCA said:
“Undoubtedly the hood does not make a monk. The fact that the Appellants were described as spy police Mobil Producing Nigeria and were adorned with Nigeria police uniforms and other paraphernalia cannot make them Nigeria Policeman. As a matter of fact, the Appellants were meant to believe they were being recruited into the security unit of the 1st Respondent as the Spy police Mobil of Producing Nigeria Unlimited but not as Nigeria Supernumerary police Officer. ”
Also at page 1371 that:
“It was after the Appellants employment in the security unit of the 1st Respondent that the 1” Respondent sent them to the Police Training School. Even though exhibit, “JRS,” “JR4,’ “JR5” “JR6″ stated that the Appellants were offered appointments as Supernumerary police Corporate, they were still being employed in the security unit of the 1st Respondent as the 1st Respondent’s security personnel.”
The present Appellant was the 1st Respondent in Okon Johnson’s case and because of their similarity in their facts. I adopt that reasoning to this case.
The provisions of Section 18 of the police Act are clear enough that a Supernumerary police officer recognized by law is created by the procedure therein but evidence in the instant case shows that no such procedure was followed and that the use of the name “spy police constable” in exhibit 1 was the art or act of the appellant, and such cannot convert a person not hitherto in the police force to a Policeman whose employment will be made to have statutory flavour as opposed to exhibit 1 issued to which the appellant has every right to determine the contract of employment if it becomes apparent that the employment no longer falls in line with the law. A master that has the right to hire has the right to fire. An employer can terminate the employment of a servant notwithstanding the motive for doing so. See Osianya v. Afribank (Nig) Plc (2007) 6 NWLR (pt. 1031) 565. Issue 4 is whether the judgment of the lower court did not amount to imposing an employee over an unwilling employer against its wish and whether the decision was not founded upon facts not canvassed during trial.
The claim of the Respondent is for declaration that his suspension from duff without pay ceased on 31/10/2004, and another declaration that his contract of employment with the Appellant still subsists followed by order compelling the Appellant to pay salary and allowances till the employment is properly or lawfully determined.
Again the law, is that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts must prove that those facts exist, see University Press Ltd. v. I.K. Martins Nig. Ltd. (2000) 4 NWLR (Pt. 654) 584; Odukwe v. Ogunbiyi (1998) 6SC 72.The Respondent as plaintiff tendered exhibit 1 as his letter of employment with the Appellant. Exhibit 1 does not contain the conditions of respondents’ service or details of his monetary claim.
Again the Respondent was placed on suspension till further notice vide exhibit 3. The word “suspension” means to defer, interfere, interrupt, lay aside, temporize or hold in abeyance. It does not mean terminate, extinguish, or bring to an end. See Esiaga v. University of Calabar (2004) ALL FWLR (pt. 206) 391, In Longe v. First Bank of Nig. Plc (2010) All FWLR (pt. 525) 259, suspension was said to mean a temporary privation or deprivation of stoppage of privileges and rights of a person and a disciplinary procedure that can be for a fixed or indefinite period. Exhibit 3 was tendered by the Respondent and it states inter alia that “you are therefore suspended from duty without pay, with effect from Thursday 1 July, 2004 till further notice.” So the lower court (and this court too) must be satisfied by evidence from the Respondent that he had become entitled to his payment contrary to the directive in exhibit 3. One basic way of achieving this is to produce the regulation or guideline or whatever name it is called that regulates the employment. This the Respondent stated at page 117 under his cross-examination that “I have an employment Manual regulating my employment with the Defendant. The Manual does make provision for suspension. Yes
I have heard of the term “indefinite suspension.” The Respondent failed to produce any Manual that may make the court ascertain the Respondent monetary claim.
The court is not a party to the contract of employment between the parties and can only act on evidence before it. The previous suspension from which the lower court drew inferences dealt with instances of suspension that either had definite period or made on their own peculiarities. They cannot be basis for the court setting aside the decision of the employer to discipline its employee. The award of N3, 100,000.00 to the Respondent by the lower court negates the principle of law that the employer is empowered to exercise disciplinary control over an employee. There is also no evidence in support of the award.
Exhibits 7 and 8 were tendered by the Appellant to support its position that the Respondent was a Police Officer. Exhibit 8 is a document signed in 2004 about 8 years after the Respondent was employed, while exhibit 7 is the letter by which the Commissioner of Police allegedly approved the dismissal of the Respondent. No letter was produced as that upon which the approval of the Commissioner of Police was based, and there is nothing to link the Commissioner of Police with the employment of the Respondent with the Appellant. The Commissioner of police was therefore a stranger to the contract between the parties in this case and it is the law that he cannot enforce or take benefit under such a contract, See City Express Bank Ltd. vs. T & F Services Ltd. (2005) All FWLR (pt. 266) 124. The provisions of Sections 214 and 227 of the Constitution of the Federal Republic of Nigeria, 1999 as well as Sections 6 and 7 of Public Order Act forbid any corporate or incorporated organization from building, organizing or maintaining a militia group’ but those provisions do not turn the Appellant to a member of the Police Force. The Respondent remains the employee of the Appellant who remains on suspension.
Issue 5 is on the exclusion of the Appellant’s Amended Statement of Defence and whether it occasioned a miscarriage of justice.
The Appellant has argued that the lower court said in the course of its judgment that the Amended Statement of Defence which he filed without the leave of court was struck out. The learned counsel argued that this action by the lower court was a breach of his right to fair hearing.
The right to fair hearing is a fundamental right under Section 36 (1) of the Constitution of the Federal Republic of Nigeria. It is also a principle of natural justice founded upon the twin pillars of audi alteram parted and the nemo judex in causa sua, A hearing is fair where all the parties are heard, and heard in the presence of one another but where one of the parties is refused hearing or opportunity of being heard, such hearing does not qualify for fair hearing. See Ogundoyin v. Adeyemi (2001) 2 NWLR (pt. 750) 403; Bamgboye v. Unilorin (1999) 6 NWLR (pt. 400) 127. I have searched through the record of appeal in this case but I do not find anywhere the learned counsel referred either his motion or his Amended Statement of Defence to the lower court. What is rather clear on the records is that the learned counsel for the Appellant appeared diligently and almost religiously throughout the proceedings while he cross examined the PW1 (Plaintiff himself) and led his own D1-DW4. I cannot understand what he means by saying the Appellant was shut out of hearing.
It is simply the duty of a counsel who has filed a process in court to ensure that such a process gets to the file and to the knowledge of the court and the judge. In Ibator v. Barakura (2007) All FWLR (Pt. 371) 1669, it was held that a court cannot be wrong for not hearing a matter the existence of which was not known to court. Whether or not a court has been fair or whether there has been observance of the rule of fair hearing is measured by whether an opportunity of hearing has been given to all parties who are entitled to be heard. The Appellant in the instant case filed a Statement of Defence which he wanted to amend through the motion filed on 27/6/2008, but from beginning to the end of trial, he never mentioned the motion let alone moved it but rather went to file the amended Statement of Defence without leave of court.
The record shows that the learned counsel conducted the trial throughout and delivered his address without complaining.
Indeed the issue never arose before the tower court. In Ibator v. Barakuro (supra), Ogbuagu JSC said at page 1695:
If the learned counsel for the Appellants in his wisdom had decided as the “master” of their appeal before the court below to abandon their said motion and not even to mention it, how does the court below or the justices come in? I or one may ask. It should have been a different matter if the learned counsel for the Appellants had mentioned their said motion and the court below refused to hear the same and insisted on going on or ahead with the hearing of the appeal. Then, there and then, the complaint of the learned counsel for the Appellants and not even the Appellants personally should have been understandable and considered.”
The Appellant in the instant appeal simply chose to abandon the Amended Statement of Defence and fought the case on his original Statement of Defence, and no one shares the blame for doing that with him.
The lower court in its judgment made copious references to the evidence of the Appellants and even their pleadings.
I find no basis for the allegation of unfair hearing by the Appellant.
On the whole the appeal succeeds on the award of the sum of N3, 100,000.00 to the Respondent. I allow the appeal. The sum of N3, 100,000.00 awarded to the Respondent is set aside.
I make no order as to cost.
KUMAI BAYANG AKAAHS, J.C.A: I had a preview of the judgment delivered by my learned brother, Akeju, ICA. It is the case of the respondent that he was on indefinite suspension when he instituted the action and remained suspended at the time judgment was delivered. The letter of his employment (Exh.1) does not contain the conditions of service to enable either the trial court or this court on appeal ascertain what he is entitled to during the period of suspension. Consequently the basis for awarding N3, 100,000.00 in favour of the Respondent has not been established. I am therefore in agreement with my learned brother allowing the appeal on the award of N3, 100,000.00 and setting same aside.
JA’AFARU MIKA’ILU, J.C.A: I have read in draft the lead judgment of my learned brother Isaiah Olufemi Akeju, JCA. I agree with the reasons given in court and the conclusion reached thereof. The appeal succeeds and it is allowed.
However, the sum of N3, 100,000.00 awarded to the Respondent is set aside.
I make no order as to costs.
Appearances
Roland Obaji Esq,For Appellant
AND
Livinus Udofia Esq,For Respondent
