MOGAJI v. BENUE STATE UNIVERSITY (2022)

MOGAJI v. BENUE STATE UNIVERSITY

(2022)LCN/17110(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/MK/46/2021

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

DR. ANDREW ABIODUN MOGAJI APPELANT(S)

And

BENUE STATE UNIVERSITY RESPONDENT(S)

RATIO

THE PURPOSE OF A PRELIMINARY OBJECTION

It has been reiterated in several authorities that a preliminary objection seeks to attack the appeal and meant to terminate the appeal in limine without a hearing, see the case of ZENITH BANK PLC V JOHN & ORS (2015) LPELR-24315(SC) which held:
“I would want to cite the views of this Court in preliminary objection, aims and objectives and when necessary. In the case of SPDC v. Amadi (2011) 14 NWLR (Pt.1266) 157 at 192 where this Court held thus: “Preliminary Objection is the procedure to be adopted where a respondent opposes to the hearing of an appeal, the purpose of preliminary objection is to terminate the hearing of an appeal in limine either partially or totally…. It must be emphasised that by Order 2 Rule 9(1) the procedure is adopted only for the hearing of an appeal and not for any other process.” From the same line of thought of the case above, cited is Contract Resource Nigeria Ltd v. United Bank for Africa Plc (2011) 5 CLRN 17 at 21, this apex Court said: “The purpose of a preliminary objection is to contend that the appeal is defective or incompetent. If sustained, the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal.” Per PETER-ODILI, J.S.C. PER NIMPAR, J.C.A.

THE POSITION OF LAW WHERE THERE ARE DEFECTS IN COURT PROCESSES

Where there are defects in the processes and if there are other competent grounds which can sustain the appeal, the use of preliminary objection is discouraged and a motion on Notice is the most appropriate process to file, see SPDC (NIG) V AMADI & ORS (2011) LPELR-3204 in which the Supreme Court held thus:
“Preliminary Objections are filed against the hearing of an appeal and so once it succeeds, the appeal no longer exists. All often, we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a Preliminary objection should not be filed instead a Notice of Motion seeking to strike out the defective grounds of the appeal should be filed.”
The Appellate Courts have continued to advice counsel to file appropriate processes but those words of counsel have remained unheeded as counsel still file the wrong the process thereby wasting Courts valuable time.
In this appeal even if the objection succeeds it would not terminate the appeal because there is a competent ground of appeal that can sustain the appeal and the objective of a Preliminary Objection seeking to terminate the appeal has been defeated. The objection is against ground two only and there is a competent ground one to sustain the appeal, see ODUNUKWE V OFOMATA (2010) 18 NWLR (Pt. 1225) 404. PER NIMPAR, J.C.A.

THE POSITION OF LAW WHERE AN EMPLOYEE WHOSE APPOINTMENT IS GOVEREDNED BY STATUTE IS DISMISSED OR RELIEVED OF HIS POSITION AND IS FOUND TO BE UNLAWFUL BY THE COURT

Looking at OLANIYAN V UNIVERSITY OF LAGOS (supra) and related authorities, once the Court finds that an employment has statutory flavor and was wrongfully terminated, reinstatement is the only option available because the law must be obeyed, in doing so the law also presupposes that there was no interruption in the relationship since the law was not complied with, once a body established by law fails to comply with the law, the action taken is null and void. It presumes that the employee was still in the service of the employee and if so, then salaries and allowances should also have been running without interruption. The cessation of services was the willful act of the employer and it could do that but still bound to pay the employee, see the case of VISITOR, IMSU & ORS V OKONKWO & ORS (2014) LPELR-22458(CA) which held thusly:
“Once an employee whose appointment is governed by Statute is dismissed or relieved of his post and it is found to be unlawful by the Court and such employee is restored, the employee would be paid only his salaries, emolument or other allowances due and accrued to him as if the unlawful removal never took place, award of damages in whatever form or however described will not be granted in favour of the employee. See ‘EX’- CAPT CHARLES EKEAGWU vs. THE NIGERIAN ARMY Per IGE, J.C.A. (Pp. 103-104 paras. B-B). PER NIMPAR, J.C.A.

WHETHER OR NOT A PARTY CAN SEEK AWARD FOR SALARIES AND ALLOWANCES AND ALSO SEEK GENERAL DAMAGES

On the claim for general damages, the appellant cannot be granted the relief seeking salaries and allowances and still be entitled to general damages. General damages can be granted where the order for reinstatement is not made. See EKEAGWU V THE NIGERIAN ARMY & ANOR (2010) LPELR-1076(SC) which held:
“I am, however, not unmindful of the fact that where a plaintiff seeks the relief of reinstatement which relief is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement the plaintiff/party is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable.” Per ONNOGHEN, J.S.C.
With the award for salaries and allowances, there is therefore, no damage occasioned to qualify for general damages. All the argument on general damages is unnecessary and not relevant here. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court sitting in Makurdi and delivered by HON. JUSTICE S. H. DANJIDDA, J. on 4th February, 2020 wherein the lower Court entered judgment in favour of the Appellant, however, the Court refused to grant relief 15 which is the claim for payment of entitlements, promotion, salaries, allowances, general damages and some other reliefs without advancing any reasons. The Appellant dissatisfied with the decision, filed a Notice of Appeal on the 16th day of February, 2021 setting out 2 grounds of Appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. The Appellant was Claimant at the trial Court, the National Industrial Court of Nigeria sitting in Makurdi before which he claimed declaratory, injunctive and monetary reliefs against the Respondent relating to his employment and unjustified dismissal from the services of the Respondent. The Appellant by his Amended Claim sought for the payment of entitlement, promotion, salaries, allowances, general damages and post-judgment interest. Parties joined issues, the matter proceeded to hearing, the Appellant testified for himself and tendered Exhibits AAM-01, AAM-02 and AAM-03, AAM-04 to AAM32, AAM32A1-AAM32, A29, AAM33 to 39 while the Respondents called 2 witnesses and tendered Exhibit SMU1A. At the end, the trial Court partly entered judgment in favour of the Appellant by nullifying the dismissal Order and ordered the reinstatement of the Appellant but refused to award the monetary and some other declaratory reliefs without advancing any reasons thereof. The Appellant aggrieved with part of the said judgment brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the appeal. The Appellant’s brief settled by OCHA P. ULEGEDE, ESQ., is dated 6th day of March, 2021 filed on 8th of March, 2021. The Appellant distilled 2 issues for determination as follows:
1. Whether the learned trial Judge was right when he refused the Appellant’s relief for payment of Appellant’s entitlements of promotions, salaries and allowances in the circumstances of the case. (Distilled from ground 1).
2. Whether the learned trial Judge erred in law in not making any finding on reliefs 14 and 15 which the Appellant sought before the Court and in the circumstances of the case. (Distilled from ground 2).

The Respondent’s Brief settled by S.D. SWEM, ESQ., dated 13th July, 2021, filed on the same day but deemed on the 14th July, 2021. The Respondent adopted the issues donated by the Appellant.

Thereafter the Appellant filed a reply brief dated 11th day of October, 2021 and deemed on the 25th October, 2021.

PRELIMINARY OBJECTION
The Respondent filed a notice of preliminary objection on 13th day of July, 2021
GROUNDS:
1. Ground 2 of the Notice of Appeal herein is a ground that the Appellant needed the leave of the Honourable Court to file pursuant to Section 243 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. The Appellant did not seek the leave of Court before filing Ground 2 of the Notice of Appeal.
3. Ground 2 of the Notice of Appeal herein and Appellant’s issue 2 distilled therefrom consequently incompetent and liable to be struck out.

ARGUMENT IN SUPPORT OF PRELIMINARY OBJECTION

The Respondent submits that ground 2 of the grounds of appeal filed by the Appellant is incompetent and ought to be struck out because the said ground was filed without leave of the Court. According to the Respondent, the Appellant filed a motion with number CA/MK/49/M/2020 before this Court on the 4/5/2020 praying the Court for leave to appeal against part of the judgment of the National Industrial Court to which the Appellant Exhibited a Proposed Notice of Appeal containing only one ground of Appeal which the Court granted the leave on 8/2/2021, therefore, because ground 2 of the Notice of Appeal herein was not placed before the Court on Motion No.: CA/MK/49/2020, the leave granted by this Court on 8/2/2021 in respect of the Motion cannot be extended to cover ground 2 of the Notice of Appeal.

It is the argument of the Respondent that ground 2 of the Notice of Appeal herein is one that needs leave of the Court to be filed as it does not relate to a question of fundamental rights contained in Chapter IV of the Constitution which can be filed as of right as contemplated by Section 243 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), therefore, failure of the Appellant to seek leave to file ground 2 of the Notice of Appeal as required by law renders the said ground of appeal incompetent as held in DAPAAH & ANOR V. ODEY (2018) LPELR-46151(CA). Further on this, the Respondent argued that even if ground 2 of the Notice of Appeal herein related to the Appellant’s fundamental rights, the Appellant would still have needed an extension of time by the Court to file same because as at 22/2/2021 when the Notice of Appeal herein was filed, it was already over a year after the judgment being appealed against was delivered, by which time, the period allowed by law for the Appellant to file an appeal against the judgment had elapsed. The Respondent relied on OBI V. OJUKWU & ANOR (2009) LPELR-8511(CA).

The Respondent contended that leave to appeal, being a discretionary power of the Court, is not granted at large or in a vacuum but usually tied to specific grounds of appeal which are placed before the Court and such exercise of judicial discretion cannot be extended to extraneous matters which were not before the Court at the time of the exercise of the Court’s discretion. The Respondent urge the Court to uphold the preliminary objection by holding that ground 2 of the Notice of Appeal herein is incompetent having been filed without the leave of the Court and to also strike out ground 2 of the Notice of Appeal.

RESPONSE TO RESPONDENT’S PRELIMINARY OBJECTION
The Appellant submits that the Respondent challenged the competence of ground 2 of the Notice of Appeal and relied on Section 243(2) of the 1999 Constitution, that the case of DAPAAH & ANOR V. ODEY (2018) LPELR-46151(CA) 6-9 and OBI V. OJUKWU & ANOR (2009) LPELR-8511(CA) 14-15 are completely inapplicable, misconceived and misleading, the Appellant urge the Court to discountenance the authority. He reproduced the content of the Notice of Appeal filed on the 22/2/2021 to submit that the grouse of the Respondent is that in the Application in CA/MK/49/M/2020 for leave, the proposed Notice of Appeal contains just one ground of appeal and so it was argued that the Appellant cannot raise ground 2 since it is not contained in the proposed Notice of Appeal, however, the order granted the Appellant is not in any way circumscribed to any ground of appeal.

The Appellant further submits that assuming without conceding that the Appellant needed to have stuck strictly to the proposed ground of appeal when seeking leave, the Respondent has not shown what injustice he will suffer or has suffered therefrom. The Appellant urge the Court to dismiss the preliminary objection for lacking in merit.

It is the argument of the Appellant that it is leave to appeal part of the judgment in Suit No.: NICN/MKD/15/2018 and not leave to appeal in terms of the proposed ground and also, the Respondent have lost sight of the fact that even in the proposed Notice of Appeal annexed to that application, the Appellant stated clearly that “More Grounds of Appeal may be filed upon receipt of the Records”. Furthermore, the Appellant submits that the application of the Appellant for leave to appeal was not challenged in any way by the Respondent and same was granted unopposed by the Honourable Court.

RESOLUTION OF PRELIMINARY OBJECTION
The Respondent filed a Notice of preliminary Objection on 13/7/21 wherein he sought an order striking out Ground 2 of the Notice of Appeal herein and Appellant’s issue 2 therefrom, for being grossly incompetent before the Court. The objection was based on 3 grounds as specified on the Notice of Preliminary Objection and I reproduce them here for emphasis:
i. Ground 2 of the Notice of Appeal herein and Appellant’s issue 2 distilled therefrom, for being grossly incompetent before the Honourable Court.
ii. The Appellant did not seek the leave of Court before filing Ground 2 of the Notice of Appeal.
iii. Ground 2 of the Notice of Appeal herein and the Appellant’s issue 2 distilled therefrom consequently incompetent and liable to be struck out.

The arguments in support of the preliminary objection were incorporated in the Respondent’s Brief as summarized earlier and the response in the Appellant’s reply brief. Both were adopted at the hearing.

The Respondent’s argument incorporated in the Respondent’s Brief contends that ground two is incompetent because it was filed without leave. It has been reiterated in several authorities that a preliminary objection seeks to attack the appeal and meant to terminate the appeal in limine without a hearing, see the case of ZENITH BANK PLC V JOHN & ORS (2015) LPELR-24315(SC) which held:
“I would want to cite the views of this Court in preliminary objection, aims and objectives and when necessary. In the case of SPDC v. Amadi (2011) 14 NWLR (Pt.1266) 157 at 192 where this Court held thus: “Preliminary Objection is the procedure to be adopted where a respondent opposes to the hearing of an appeal, the purpose of preliminary objection is to terminate the hearing of an appeal in limine either partially or totally…. It must be emphasised that by Order 2 Rule 9(1) the procedure is adopted only for the hearing of an appeal and not for any other process.” From the same line of thought of the case above, cited is Contract Resource Nigeria Ltd v. United Bank for Africa Plc (2011) 5 CLRN 17 at 21, this apex Court said: “The purpose of a preliminary objection is to contend that the appeal is defective or incompetent. If sustained, the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal.” Per PETER-ODILI, J.S.C.

Where there are defects in the processes and if there are other competent grounds which can sustain the appeal, the use of preliminary objection is discouraged and a motion on Notice is the most appropriate process to file, see SPDC (NIG) V AMADI & ORS (2011) LPELR-3204 in which the Supreme Court held thus:
“Preliminary Objections are filed against the hearing of an appeal and so once it succeeds, the appeal no longer exists. All often, we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a Preliminary objection should not be filed instead a Notice of Motion seeking to strike out the defective grounds of the appeal should be filed.”
The Appellate Courts have continued to advice counsel to file appropriate processes but those words of counsel have remained unheeded as counsel still file the wrong the process thereby wasting Courts valuable time.
In this appeal even if the objection succeeds it would not terminate the appeal because there is a competent ground of appeal that can sustain the appeal and the objective of a Preliminary Objection seeking to terminate the appeal has been defeated. The objection is against ground two only and there is a competent ground one to sustain the appeal, see ODUNUKWE V OFOMATA (2010) 18 NWLR (Pt. 1225) 404.

For the sake of resolving the grouse of the Respondent and assuming the objection is competent, the Court granted leave to the Appellant to appeal against part of the judgment of the trial Court (see page 553 of the record of appeal) and it was granted without any objection. Therein was the statement that more grounds could be filed upon being served with the record of appeal. The Respondent did not oppose it and furthermore, the leave is to appeal and it was not leave in respect of individual grounds of appeal, and once leave is granted the issue of leave to appeal would have been settled. The leave granted was not conditional, limited or restricted to a number of grounds. It was leave to appeal against part of the judgment of the lower Court. The question is whether the Respondent suffered any miscarriage of justice? It was not stated in the preliminary objection that any miscarriage of justice was occasioned.

Furthermore, the judgment of DAPAAH & ORS V ODEY (supra) which incidentally, I wrote, is not applicable here because it emphasized that where leave is required and none was sought, then the appeal is incompetent and in that case, it was with reference to the constitutional requirement that all grounds other than grounds touching on fundamental rights can only be valid with leave of Court. That is different from what the Respondent is arguing here. It is therefore not applicable.

Flowing from above, the preliminary objection is incompetent and even in the alternative, assuming it could still be determined on the merit, it lacks merit and is hereby dismissed. I shall proceed to determine the main appeal.

MAIN APPEAL
ISSUES ONE AND TWO
The Appellant reproduced the Appellant’s relief 11 as contained in page 283 of the record to submit that the Appellant specifically pleaded and successfully led evidence in proof of his entitlements before the trial Court relating to his promotions, salary and allowances and sought specific relief on the same before the trial Court however, the trial Judge refused to grant his claim without giving any reason for the refusal. The Appellant argued that his employment with the Respondent has statutory flavor because the same is governed by the law that established the Respondent tendered before the trial Court as Exhibit AAM42. The Appellant relied on COMPTROLLER GENERAL OF CUSTOM & ORS V. COMPTROLLER ABDULLAHI B.G. (2017) LPELR-42081 (SC), IMOLOAME V. WAEC (1992) 9 NWLR(PT. 265) 303 (SC) and ADEGOKE V. OSUN STATE COLLEGE OF EDUCATION (2010) LPELR- 3601 (CA).

It is the argument of the Appellant that the office of the Appellant is an appointment based on rules, regulations and the statute that created it and the Respondent cannot dismiss the Appellant without following the rules, regulations and statute that established it. Continuing, the Appellant contends that failure to adhere to the rules by the Respondent implies that the Appellant will continue to hold his office with his rights and entitlements intact and it is upon this that the trial Court ought to have granted the entire 11 reliefs claimed by the Appellant before the Court. The Appellant referred the Court to the cases of OKEME V. CIVIL SERVICE COMMISSION, EDO STATE & ORS (2000) LPELR-6825(CA), AHMED V. AHMADU BELLO UNIVERSITY (ABU) & ANOR (2016) LPELR-40261(CA), IBAMA V. SPDC (NIG) LTD (2005) 17 NWLR (PT. 954) 364 and OSISANYA V. AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT. 1031) 565.

The Appellant submitted that it is trite law that a Court cannot grant relief not sought or more than what was claimed before it by a party since the Court is not a Father Christmas and the Court is bound to grant a relief claimed before it, provided there is evidence in proof thereof. The Appellant relied on PHILIP EKEOCHA & ANOR V. ADOLPHUS EKEOCHA (2013) LPELR-22492(CA), DAVID AYHOK & ANOR V. PLATEAU PUBLISHING CORPORATION & ORS (2020) LPELR-50320 (CA) and FIRST AFRICAN TRUST BANK LTD & ANOR V. BASIL O. EZEGBU & ORS (1993) LPELR-1279(SC). The Appellant further submits that where the Court decides not to grant any relief even when there is evidence in proof thereof, the Court is bound to give reasons for the refusal to grant such a relief, however, in this instant case, the trial Court failed to give reasons why it refused to grant the relief of the Appellant even after the Appellant led evidence in proof of the reliefs.

It is the contention of the Appellant that the trial Court ought to have granted the relief as a consequential relief after holding that the Appellant had proved his case on preponderance of evidence, even without the Appellant asking for it, therefore, it is a serious error in law for the trial Judge to refuse to award the Appellant his entitlements, salaries and allowances without a reason. The Appellant relied on OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR V. ACTION CONGRESS OF NIGERIA (2010) LPELR-2818 (SC) and FIRST AFRICAN TRUST BANK LTD & ANOR V. BASIL O. EZEGBU & ORS (1993) LPELR-1279(SC).

The Appellant reproduced reliefs 14 and 15 and also restated the established principle of law regarding award of general damages as held in ENGR. SAMUEL D. YALAJU-AMAYE V. ASSOCIATED REGISTERED ENGINEERINGS CONTRACTORS LTD & LTD (1990) 6 SCNJ 149 and UNION BANK OF NIGERIA PLC V. VICTOR OLAITAN IDOWU & ANOR (2016) LPELR-41930(CA). Predicated on the above, the Appellant argued that he proved the wrongful acts of the Respondent, shown the injury he suffered based on the actions of the Respondent and has specifically sought for the award of general damages, however, the trial Court failed to award general damages sought for by the Appellant which is an error in law and it has also occasioned miscarriage of justice on the Appellant. The Appellant relied on PRINCE JAMES ALADESIUN V. SAMUEL FADAHUNSI & ORS (2013) LPELR-21852 (CA) to support his claim.

Citing AGU V. GENERAL OIL LTD (2015) LPELR-24613(SC), the Appellant contends that it is trite law that the object of award of damages is to compensate the plaintiff for the damages, loss and injury he has suffered. Also, relying on IDOWU V. AJAYI & ORS (2016) LPELR-41339(CA) and CODE OF CONDUCT BUREAU & ORS V. NWANKWO (2018) LPELR-44762 (CA) and AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358(SC), the Appellant submitted that the guiding principle in the award of general damages which is at the discretion of the Court are such as the law will presume to be the natural or probable consequences of the Respondent’s act and it needs not to be proved by evidence.

Furthermore, the Appellant contended that the Appellant claimed relief 15 which is the 10% interest on the judgment debt from the date of judgment till the final payment of the judgment debt, as a specific relief before the Court and Order 47 Rule 7 of the National Industrial Court Rules (2017) gives the trial Judge power to award interest on judgment sum even when same is not asked for, therefore, the trial Judge erred in failing to make any pronouncement on the relief, in favour or against the Appellant and notwithstanding the fact that the trial Judge found the case of the Appellant established.

The Appellant urge the Court to resolve these issues in favour of the Appellant.

RESPONDENT’S BRIEF
ISSUE ONE
The Respondent submits that the trial Judge was right in refusing to grant the Appellant’s relief for payment of entitlements of promotions, salaries and allowances in circumstances of the case. It is the argument of the Respondent that there was no issue of promotion before the lower Court, therefore, the Appellant’s claim for payment of entitlement of promotion had no root or bearing with the facts set out in the Appellant’s Amended Statement of Claim.

According to the Respondent, since the dismissal of the Appellant was based on very valid allegation of misconduct, which the lower Court found to have been proved, the Respondent’s act of dismissing the Appellant was not arbitrary or reckless and in the circumstance, the Appellant deserved no award of salaries and allowances for the period of his dismissal. Continuing, the Respondent argued that had the trial Court granted the Appellant’s relief, it will amount to rewarding the mischief and dishonesty practiced on the Respondent by the Appellant. The Respondent submitted that the cases of OKEME V. CIVIL SERVICE COMMISSION, EDO STATE & ORS (2000) LPELR-6825(CA), AHMED V. AHMADU BELLO UNIVERSITY (ABU) & ANOR (2016) LPELR-40261(CA), IBAMA V. SPDC (NIG) LTD (2005) 17 NWLR (PT. 954) 364 and OSISANYA V. AFRIBANK NIGERIA PLC (2007) relied on by the Appellant is not applicable in this case.

On the same score, the Respondent contends that the entire claim of the Appellant on entitlement of promotion, salaries and allowances were in the nature of special damages and the law is settled that special damages must be specifically pleaded and proved to the satisfaction of the Court before it can be granted by the Court as held in UNILORIN TEACHING HOSPITAL V. ABEGUNDE (2013) LPELR-21375(CA).

Predicated on the above, the Respondent submitted that from the record of proceedings, it is clear that the Appellant did not give particular of his entitlements to promotions, salaries and allowances in his pleadings and neither did the Appellant lead any evidence in proof of same, therefore, in claims of special damages, where the claimant fails to specifically plead and strictly prove his claim for special damages, same must fail and be dismissed.

Furthermore, the Respondent submits that the Appellant did not satisfy the conditions for the grant of payment of entitlements of promotions, salaries and allowances and the trial Judge was right in refusing to grant such mystical claims. The Respondent urge the Court to resolve this issue in favour of the Respondent.

ISSUE TWO
In arguing this issue, the Respondent submits that the Appellant was disciplined for an act of misconduct by way of dismissal, however, the trial Court found condonation on the part of the Respondent in the handling of the case. Further, the Respondent argued that awarding general damages in favour of the Appellant after finding that the Appellant was actually guilty of misconduct amounts to rewarding the Appellant for his infamous and reprehensible conduct and at the same time punishing the Respondent who is already a victim of the Appellant.

Still on the same score, the Respondent submitted that if there was any inconvenience or damages suffered by the Appellant by his dismissal, that should be blamed on the Appellant because the Appellant foisted such inconvenience on himself by choosing to commit misconduct against the Respondent. Furthermore, the Respondent submitted that since there was no judgment sum awarded by the lower Court in favour of the Appellant, the issue of interest on the judgment sum is otiose and completely irrelevant in the circumstance.

APPELLANT’S REPLY BRIEF
The Appellant reproduced paragraph 25 of the Appellant’s amended Statement of Fact and paragraph 23 of the Respondent’s amended Statement of Defence to submit that parties joined issues on the claim of promotion and it is misleading for the Respondent to say the relief is strange and has no root with the facts. The Appellant argued that having nullified the dismissal of the Appellant by the Respondent and ordered the Appellant’s reinstatement, the trial Court ought to have granted the reliefs of promotion and salary because the law is trite that where there is a wrong, there must be a remedy. The Appellant cited JEGEDE V. OLESHIN (2016) ALL FWLR (PT. 847) 555.

Furthermore, the Appellant submitted that there was no reasonable justification for dismissing the Appellant in the first instance and there was no need for punishment, therefore, failure to grant the Appellant’s relief was without any reason which occasioned injustice to the Appellant.
The Appellant urge the Court to allow the appeal.

RESOLUTION OF THE APPEAL
Upon a careful consideration of the Notice of Appeal, the record of appeal and the respective briefs of both counsel in this appeal, and I notice that the Appellant distilled 2 issues for determination which were duly argued and the Respondent adopted Appellant’s two issues for determination. With that consensus between the parties, the Court shall also adopt the two issues formulated by the Appellant for determination in this appeal. The two issues are inter-related; therefore, determination shall be seamless.

ISSUES ONE AND TWO
1. Whether the learned trial Judge was right when he refused the Appellant’s relief for payment of Appellant’s entitlements of promotions, salaries and allowances in the circumstances of the case. (Distilled from ground 1).
2. Whether the learned trial Judge erred in law in not making any finding on the reliefs 14 and 15 which the Appellant sought before the Court and in the circumstances of the case. (Distilled from ground 2).

The Appellant’s relief before the lower Court and with particular reference to this item of claim is paragraph 38 (10) and it provides thusly:
“Order of the Court directing the defendant to withdraw the letter of dismissal and reinstate the claimant to work and pay to the claimant all his entitlements to the claimant all his entitlements, of promotion, salary and allowances.”

The Appellant’s evidence on this relief is replica of the pleadings.
The Appellant’s counsel submitted that the claim was specifically pleaded. The contention of the Appellant is that because the employment of the Appellant is one with a statutory flavor, the Appellant held and will continue to hold office with all rights and entitlements running before the unlawful disruption. Appointment with statutory flavor was considered and described in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS V COMPTROLLER ABDULLAHI B.G. (2017) LPELR-42081 (SC) per KEKERE-EKUN, JSC as follows:
“An employment enjoys statutory flavor when 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. WAEC (1992 (NWLR) (Pt. 265) 303; Olaniyan Vs, University of Lagos (1985) 2 NWLR (Pt. 9) 599; Shitta-Bey V. Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the Respondent’s employment was governed by the Civil Service Rules 2008. In other words, his employment enjoyed statutory flavor.”

Looking at OLANIYAN V UNIVERSITY OF LAGOS (supra) and related authorities, once the Court finds that an employment has statutory flavor and was wrongfully terminated, reinstatement is the only option available because the law must be obeyed, in doing so the law also presupposes that there was no interruption in the relationship since the law was not complied with, once a body established by law fails to comply with the law, the action taken is null and void. It presumes that the employee was still in the service of the employee and if so, then salaries and allowances should also have been running without interruption. The cessation of services was the willful act of the employer and it could do that but still bound to pay the employee, see the case of VISITOR, IMSU & ORS V OKONKWO & ORS (2014) LPELR-22458(CA) which held thusly:
“Once an employee whose appointment is governed by Statute is dismissed or relieved of his post and it is found to be unlawful by the Court and such employee is restored, the employee would be paid only his salaries, emolument or other allowances due and accrued to him as if the unlawful removal never took place, award of damages in whatever form or however described will not be granted in favour of the employee. See ‘EX’- CAPT CHARLES EKEAGWU vs. THE NIGERIAN ARMY Per IGE, J.C.A. (Pp. 103-104 paras. B-B).
Flowing from above, it also goes to show that the pleading for salaries and entitlements is adequate because in the eyes of the law, there was no cessation in the relationship and therefore the salaries and allowances should also flow unhindered and should have been granted by the trial Court. The lower Court should have justified its refusal. It is unjudicial to just refuse a claim without supporting it with reasons. The trial Judge erred in refusing the claim for salaries and allowances.
However, the relief touching on promotions cannot be granted because promotions are not earned in the manner salaries are paid. The Appellant must go through designed assessment to qualify for promotion. Promotion is not automatic and cannot form part of what the law presumed should have been paid or given to the Appellant as salaries and allowances are earned.
Let us even assume that the relief for salaries and allowances was not part of the reliefs sought, the Court after reinstating the Appellant could have made an order for the payment of salaries for the period he was unlawfully removed and as a consequential order because in the eyes of the law, the Appellant was still employed by the Respondent. Furthermore, even, if it were to serve as deterrent to employers who think they can just act arbitrarily and in breach of the law regulating such employment, the Court should not hesitate to make an order for the payment of salaries and allowances.

On the claim for general damages, the appellant cannot be granted the relief seeking salaries and allowances and still be entitled to general damages. General damages can be granted where the order for reinstatement is not made. See EKEAGWU V THE NIGERIAN ARMY & ANOR (2010) LPELR-1076(SC) which held:
“I am, however, not unmindful of the fact that where a plaintiff seeks the relief of reinstatement which relief is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement the plaintiff/party is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable.” Per ONNOGHEN, J.S.C.
With the award for salaries and allowances, there is therefore, no damage occasioned to qualify for general damages. All the argument on general damages is unnecessary and not relevant here.

On the issue of interest to award on monetary judgment, the lower Court is empowered by the rules of the lower Court to award interest but in this case, the Appellant did not claim any liquidated sum of money to qualify for interest that is awarded on monetary judgment. There was no pleading for any specific sum of money or evidence in respect of any sum claimed as salaries and allowances. The claim is not made out. Issue two is resolved against the Appellant.

Having resolved the main issue in favour of the Appellant, the appeal succeeds. The judgment of the lower Court delivered by HON. JUSTICE S. H. DANJIDDA delivered on the 4th February, 2020 is hereby affirmed with an addition in terms of the relief seeking an order for the payment of salaries and allowances which is now granted. The judgment is therefore affirmed with the further award for salaries and allowances made herein.
Appeal is allowed.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading before now, the draft of the lead judgment just delivered by my learned brother, Y.B. Nimpar, JCA. My Lord has characteristically dealt with the salient Issues in contention most admirably and exhaustively and ordinarily, I should have nothing more to add to a well researched and eruditely scripted judgment which I adopt as mine.

Be that as it may, I endorse his reasoning and conclusions on the preliminary objection by the Respondent as well as the three (3) Issues distilled for determination which he resolved all against the Respondent and in favour of the Appellant in allowing the Appellant’s appeal and affirming the judgment of the trial Judge with the addition of the Relief seeking for an order that all the salaries, allowances and emoluments due to him should be paid to him.

I am in total support of the position taken by my Lord on the authorities of Comptroller-General of Customs & Ors. Vs. Comptroller Abdullahi B.G. (2017) LPELR-42081 (SC) per Kekere-Ekun, JSC; Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey vs. Public Service Commission (1981) 1 S.C. 40 and The Visitor IMSU & Ors. vs. Okonkwo & Ors. (2014) LPELR-22458 (CA), ably cited and relied upon by him that since the Appellant’s employment is garnished or statutorily flavoured, his employment enjoys a special status over and above the ordinary master and servant relationship (see Bamgboye vs. University of Ilorin (1999) 10 NWLR (Pt.623) 290; Ekiadolor vs. Osayende (2010) 6 NWLR (Pt.1191) 423).
Accordingly, as has been held by my Lord since the Court below found the dismissal of the Appellant by the Respondent to be null and void, the consequential order should be that of reinstatement and specific performance such that the Appellant’s employment is deemed continuous as if there had never been any dismissal. In the same vein therefore, the Appellant is entitled to all his salaries, allowances, and emoluments which should still be running in spite of his purported dismissal as the purported cessation of the Appellant’s services was masterminded by the Respondent.
See also the celebrated cases of Olufeagba & Ors. Vs. Abdur-Raheem & Ors. (2009) LPELR-2613 (SC) pp.84-86 Para. E-B; per Adekeye, JSC; P.H.C.N. vs. Offoelo (2012) LPELR-19717 (S.C.) Paras A-F; Saibu Vs. Kwara State Polytechnic, Ilorin (2008) LPELR-4524 (CA) per Agube, JCA; citing Iderima Vs. Rivers State C.S.C. (2005) 7 SCNJ 493 and Alhassan vs. A.B.U. Zaria (2010) All FWLR (Pt.538) at 1002, Paras D-F citing Balogun Vs. University of Abuja (2003) 13 NWLR (Pt.783) 42.

Going by the decisions above cited, the lower Court should have ordered the Respondent to pay the Appellant all his entitlements as his employment was statutorily flavoured since the Court had made the order of re-instatement in favour of the Appellant.

As for the claim for general damages, and post judgment interest, the law is settled that general damages are such that naturally flow from the wrongful act of the Defendant as claimed and established by the Plaintiff although it does not need to be specifically pleaded and proved like special damages. General damages are said to be implied or presumed from the proximate, direct or immediate result of the act of the Defendant that the Plaintiff complained of and is normally granted at the discretion of the Court taking into consideration the peculiar circumstances of the case and guided by the judgment or standard of a reasonable man. See Garba vs. Kur (2003) 11 NWLR (Pt.831) 280; Ijebu-Ode Local Government Vs. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136; Mobil Oil (Nig.) Ltd. vs. Akinfosile (1969) 2 SCNLR 322; A.G. Oyo State vs. Fairlakes Hotel Ltd. (NO.2) (1989) 5 NWLR (Pt.121) 255 and the celebrated cases of EX. Odulaja Vs. A.F. Haddad (1973) 11 S.C. 357 at PP.361-362; Stroms Bruks Aktie Balog Vs. Hutchison (1905) A.C. 515 and British Transport Commission vs. Gourley (1956) A.C. 185.
In all the above cited cases, the principles governing award of damages particularly general damages were clearly enunciated that:
“damages are compensation in money.” They are a sum of money given to a successful Plaintiff for loss or harm of any kind. It seems to us that once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any kind of additional damages that may look like a bonus.”
See Anthony M. Soetan & Anor. Vs. A. Ade Ogunwo (1975) 6 S.C. 67 at 72.

Again, the Supreme Court in Omonuwa Vs. Wahabi (1976) 4 S.C. 37 at Pages 41-43 and indeed in Lagos City Caretaker Committee & Anor. Vs. Benjamin O. Unachukwu & Anor (1978) 3 S.C. 199 at pages 206-207; while commenting on the need to avoid double compensation to a victim of tort ably reasoned and re-stated the position of the law on the award of damages to wit: “It has been stated by this Court in numerous cases that where a victim of tort has been fully compensated under one head of damages for a particular injury, it is improper to award him damages in respect of the same injury under another head. See per Unsworth F.J. in Onaga vs. Micho & Co. (1961) All N.L.R. 324 at 328 wherein it was held that a contractor whose contract was wrongly terminated was entitled to recover any balance of payment for work done and also the loss of profit on the work he had been prevented from doing. An additional award as general damages made by the Court below was set aside as being unjustified double compensation.”
In Henry Ezeani & 6 Ors. Vs. Abraham Ejidike (1964) 1 All N.L.R. 402; Brett, J.S.C. stated at page 405.
“Although the measure of damages in an action in tort is not the same as an action in contract, but the rule against double compensation remains the same and applies to both.”

Guided by the above enunciated principles, the dictum of the Noble W.S.N. Onnoghen, JSC (as he then was) in the case of Ekeagwu Vs. The Nigerian Army & Anor. (2010) LPELR-1076 (SC) to the effect that the issue of measure of damages, in that case, became irrelevant since the relief for reinstatement had been granted the Appellant (as in the instant case), in which case all his salaries and emoluments shall be paid to him including fringe benefits up to the time of reinstatement and thereafter and as and when due, it will negate the doctrine of restitutio intergrum and Rule against double compensation, if the Appellant is again awarded general damages in addition to his entitlements after reinstatement.
In the light of the above, I also align myself with the position of my Lord that with the award of salaries and allowances no damage was occasioned to the Appellant apart from the fact he might have been traumatized by the purported dismissal from service which the payment of his said entitlements should assuage him of whatever he had suffered in the course of the dismissal.

On the issue of post judgment interest, my Lord has said it all in his lead judgment that same was not pleaded apart from the fact that Appellant did not claim any liquidated sum to necessitate such interest (See N.A.C.B. Ltd. vs. Achagwa (2010) 11 NWLR (Pt.1205) 3391; nor was any evidence adduced to buttress such claim.

Accordingly, for the above reasons and more elaborate reasons contained in the lead judgment, I shall also allow this appeal for being meritorious and affirm the judgment of the Honourable Justice S.H. Danjidda of the Makurdi Division of the National Industrial Court delivered on the 4th day of February, 2020 with the addition in terms of the relief for the payment of the salaries and all emoluments that are due to the Appellant which are hereby and ordered as prayed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother Hon. Justice Yargata Byenchit Nimpar, JCA., and I agree entirely with the reasoning and conclusion arrived therein.
I abide by the consequential orders made therein.