MR. EMIKO EYESAN V. NIGERIAN NATIONAL PETROLEUM CORPORATION
(2012)LCN/5668(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of November, 2012
CA/L/1070/2010
RATIO
APPEAL: CONSEQUENCE OF A GROUND OF APPEAL WHERE NO VALID QUESTION FOR DETERMINATION IS RAISED
Issues 2.2 in the grounds of appeal do not raise any valid question for determination in this case. See Ezewusim V. Okoro (supra). When such is the case, the ground of appeal will be struck out. PER SIDI DAUDA BAGE, J.C.A
LABOUR LAW: EFFECT OF A CONTRACT OF EMPLOYMENT TERMINATED ON THE EMPLOYEE
It seems to me that when an employer brings the contract of employment to an end by terminating it, the employee ceases to be in his employment and his subsisting rights, if any are to make a claim for the terminal benefits as provided in the contract of employment. See Chukwumah v. Shell Petroleum (1993) 4 NWLR (pt. 287) 512. The employee could not at his own option keep alive a contract of employment, which has been determined by the employer.
At page 23-57 the courts conclude that:-
“With respect to the two courts below, I think that they missed the essential point of the dispute.” “Termination” or “Dismissed” of an employee by the employers translates into bringing the employment to an end … The two courts below should have seen that the latter dismissed of plaintiff/appellant was irrelevant and diversionary following his earlier termination.” PER SIDI DAUDA BAGE, J.C.A
Before Their Lordships
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
MR. EMIKO EYESANAppellant(s)
AND
NIGERIAN NATIONAL PETROLEUM CORPORATIONRespondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice C.E. Archibong of the Federal High Court, the Lagos division, delivered on the 31st of May, 2010 in suit No. FHC/L/CS/473/2006.
The amended statement of claim sanctioned by the lower courts direction of the 18th January 2008 and paragraph 12 thereof states:-
The plaintiff avers that his gratuity, pension and three (3) months notice of payment in lieu have not been paid to him till date.”
The amended statement of defence dated 4th February, 2009 was sanctioned by the order of the lower court, made on 22nd January 2009. It is the Defendants, case that the statutory notice of intention to commence legal proceedings was served after the action has become statute-barred.
The brief summary of the facts is as follows: – The Appellant worked for Nigerian Ports Authority for 12 years before he transferred his service from Nigerian ports Authority to the Respondent Corporation with effect from November 1, 1979. Under the Rules of the Respondent, the Appellant is deemed to have transferred not only his service but the 12 years already worked at Nigerian Ports Authority to the Respondent Corporation. The Appellant had worked for the Respondent for 22 years before the dispute that gave rise to this appeal arose.
By a letter dated 27th April 1990, Pipeline and products Marketing Company Limited a subsidiary of the Respondent and stranger to the master and servant relationship between the Appellant and Respondent purported to terminate the Appellant’s appointment with effect from 30th April, 1990.
The Appellant asked for re-instatement and negotiation continued between the Appellant and the Respondent until the Respondent in 2002 informed the Appellant that the management was reviewing the circumstances of the alleged termination of Appellant’s appointment.
The Respondent on September 1, 2005 informed the Appellant the termination of his employment has been converted to retirement with effect from April 27, 1990. This was not Appellant’s prayer in the course of negotiation. The Appellant had always asked for reinstatement as his purported termination was a nullity; it is a proper case for re-instatement according to the Appellant. Meanwhile, in the course of negotiation and investigation into Appellant’s case which took 15 years, the Appellant in order to mitigate his suffering but without renouncing his right to re-instatement by the Respondent took up appointment for 3 years with Nigerian Airways Limited.
The Appellant brought action in the court below seeking (i) declaration that the termination of his appointment in 1990 was unlawful null and void and of no effect (ii) a declaration that the Respondent’s decision to pay the Appellant his terminal benefits and entitlements based on 1990 salary scale is unlawful null and void. (iii) a declaration that the Appellant is deemed to have retired in 2005 and therefore entitled to his full benefits and entitlements in accordance with the prevailing salary scale 2005 when the Appellant is deemed to have retired and (iv) An order compelling the Respondent to pay the Appellant all his benefits and entitlement based on the current salary scale of the Respondent.
The Federal High Court per Archibong J, or 18/1/2008 suo motu dismissed the claim 1 and 2 of the Appellant and in a considered judgment on May 31, 2010 dismissed the entire suit. The Appellant has filed a 5 ground notice of appeal dated 14/8/2010, on page 387 of the records of appeal. From the 5 grounds contained therein the Appellant has distilled the following four (a) issues for determination as follows:-
(1) Whether the purported termination of the Appellant’s appointment in 1990 was effective to put an end to the contract of employment between the Appellant and the Respondent. If not whether the Respondent could anchor the Appellant’s retirement on that purported termination of 1990 (Grounds 1 and 2)
(2) Whether the evidence before the court disclosed that all the entitlements of the Appellant have been paid.
(3) Whether it was right for court below to have sou motu dismissed the Appellant’s claims 1 and 2 without the benefit of argument from the parties to the suit.
(4) Whether the Appellant could not do something to mitigate his suffering/loss from the wrongful and void action of the Respondent, and whether the Appellant’s mitigation of his damages would preclude him from asserting his lawfully recognized rights.
On the other hand, the Respondent to his brief of argument dated 30/3/11 incorporated a Preliminary Objection. The arguments in support of the said preliminary objection are contained on pages 2-6 of the brief. With the preliminary objection as a background, the Respondent formulates the following two (2) issues from the 5 ground notice of appeal as follows:-
(a) When did the conversion of the appellant termination of employment to retirement by the respondent come into effect for the purpose of computation of his terminal benefits?
(b) Was the learned trial judge correct in dismissing the plaintiffs claim?
This court shall determine the Preliminary Objection first before delving into the appeal.
In arguing the preliminary objection, learned counsel to Respondent, O. Delano Esq., submitted that, in both the Notice of Appeal filed on the 12th of August 2010 and appellant brief filed on 22nd of December 2010 respectively, the appellant raised issues outside the judgment of the lower court delivered on 31st May 2010. His grounds of appeal and brief of argument raised issues contained in the ruling of the lower court delivered on the 18th January 2008.
From the reliefs sought by the plaintiff/Appellant at the lower court in his writ of summons and statement of claim, the Respondent/Defendant, filed a motion dated 5th December, 2006 and a preliminary objection to the suit. The Respondent had prayed that court to strike out the suit being statute barred. The plaintiff/appellant filed a counter-affidavit dated 12th March 2007. The motion was moved on the 18th January 2008, and a ruling delivered the same day. The said ruling struck out the 1st and 2nd prayers/reliefs of the Appellant as not being justiceable and upheld the 3rd and 4th as not being statute barred. The appellant was then ordered to amend his pleading to reflect the ruling of the court which he did and filed on the 25th January 2008
Having failed to file an appeal against the ruling of the lower court delivered on the 18th January, 2008, the appellant is deemed to be satisfied with the said ruling. See section 25(a) of the Court of Appeal Act 2004.
Learned counsel submitted further that, the ruling of 18th January 2008 is an interlocutory decision and ought to have been appealed against within fourteen days. No appeal was filed within the fourteen (14) days allowed or thereafter. See: – EJOWHOMU V. EDOK-ETER MANDILAS LIMITED (1986) 5 NWLR (pt. 39) 1; NWARIE V. AMAUWA (1991) 8 NWLR (pt. 207) 81.
Learned counsel further submitted that, a party can in the final appeal complain against an interlocutory decision of the lower court provided he seeks for an extension of time within which to appeal against the interlocutory ruling and obtain the leave of court to do so. See: – EZEWUSIM V. OKORO (1993) 5 NWLR (PT. 294) 470 AT 393 – 4.
The appellant has neither sought an extension of time within which to appeal or leave of Court to Appeal in relation to the ruling of the lower court of 18th January 2008. Therefore the appellant cannot in this appeal formulate any grounds of appeal touching on his termination from the services of the defendant or issues determined by the ruling of 18th January 2008. The issue has been disposed off before the matter went to trial.
Learned counsel further submitted that, by the time this case proceeded to trial in the lower court the plaintiff/appellant had only two reliefs left. It is upon these amended reliefs that trial took place and judgment given on the 31st May 2010. For ease of reference, the said amended reliefs are:-
(1) A declaration that the plaintiff is deemed to have retired in 2005 and therefore entitled to his full benefits and entitlements in accordance with the 2005 salary scale/guidelines of the Nigerian National Petroleum Corporation (NNPC) scale.
(2) An order compelling the defendant to pay the plaintiff all his benefits and entitlement that is the backlog of all salaries, increments, pension and gratuity based on the 2005 Nigerian National Petroleum Corporation (NNPC) salary scale.
Learned counsel submitted further that, in view of the above, the following grounds on the Notice of Appeal filed on the 12th August 2010 and the brief of argument filed on the 22nd December 2010 are incompetent and should be struck out. Grounds 1, 2 and 5 are incompetent and issues 2.1 and 2.3 distilled from them are invalid and all of them should be struck out.
Learned counsel furthered his submission that, issues formulated for determination before the Court of Appeal should be such that answer to the said issue will have a decisive effect on the outcome of the appeal. Issues 2.2 in the grounds of appeal do not raise any valid question for determination in this case. See Ezewusim V. Okoro (supra). When such is the case, the ground of appeal will be struck out.
The Appellant/Respondent to the preliminary objection in reply contained in the reply brief filed 17/5/12, submitted that the appeal is against the whole judgment of the court below including the wrong procedure adopted by the court that led to miscarriage of justice. It is on Record that the trial court dismissed two claims of the Plaintiff/Appellant without hearing him, and this has occasioned miscarriage of justice. It is violation of section 36(1) of the constitution of the Federal Republic of Nigeria which guaranteed to the Appellant the fundamental right to fair hearing. It cannot be the law that a trial court can suo motu dismissed the claims of a party without calling the counsel to address the court. This is a denial of fair hearing which affects the whole proceedings of the case from the beginning to the end.
Learned counsel submitted further that, contrary to the assertion of the Respondent’s counsel, the dismissal of the two claims of the Appellant was not based on the Respondent’s motion of 5th December 2006 or any other motion whatsoever. The Respondent’s said motion was dismissed after the argument by the counsel. It is therefore not a matter of interlocutory ruling based on the Respondent’s motion. It is a matter of bad procedure adopted by the court below that has led to a miscarriage of justice. See Obodo V. Olomu (1987) 3 NWLR (pt. 59) 111. It was after the Ruling that the court suo motu dismissed (not struck out the Appellant’s claim).
Learned counsel further submitted that being dismissed the Appellant was over reached without being heard. See Okoduwa v. State (1990) 1 NWLR (pt. 76) 333.
Learned counsel submitted further that, it is trite law that a party may appeal against an interlocutory ruling or order immediately on the delivery of the said ruling or raise it at the appeal on the conclusion of the case. See: – Yaw Anene v. Efriyu 6 WACA 169 at 171.
From the Record of appeal before this court on pages 98 – 103, it showed the Respondent had filed a motion pursuant to Order 9 of the trial courts Rules, Section 12(1) of the NNPC Act and the inherent jurisdiction of that court. He was on the permission of that court allowed to move his preliminary objection on the 18/1/2008. The Appellant through his counsel V. Ahaotu filed a Counter Affidavit of 4 paragraphs dated 12/3/2007. He also argued the Counter Affidavit on the 18/1/2008. The Hon. Court on page 103 of the Record of appeal ruled on the Respondent’s preliminary objection on the same day the 18/1/2008. (For the purpose of clarity pages 98 – 103 is hereby reproduced)
HOLDEN AT LAGOS
ON FRIDAY 18TH JANUARY, 2008
BEFORE HONORABLE JUSTICE CHARLES EFANGA ARCHBONG JUDGE
SUIT No. FHC/L/CS/473/06
BETWEEN:-
MR EMIKO EYESAN … PLAINTIFF
AND
NIGERIA NATIONAL PETROLEUM CORPORATION… DEFENDANT
Plaintiff present
V. Ahaotu Esquire For the plaintiff/Respondent
D.O. Delano Esquire for the Defendant/Applicant
Delono: We shall be moving our preliminary objection subject to the convenience of the Court.
Court: Go ahead
Delono: This is a motion brought pursuant to order 9 of the Courts’ Rule, Section 12 (1) NNPC Act and the inherent jurisdiction of the Court.
In support of the motion we have a 13 paragraph affidavit sworn to by one Lola Omoyele. There are Exhibits attached. There is a 4 paragraph counter affidavit to which is attached 7 Exhibits.
NNPC v. Abubakar Abudulrahman (2006) 21 WRN 88 Section 12 (1) Allagoa JCA
Plaintiff herein was terminated on the 30th April 1990. He filed this action on the 9th of June 2006. By paragraph 11 of the statement of claim they state plaintiff was terminated in 1990.
There were two (2) notices to file this action. The first Defendant/Applicant Exhibit F dated September 2007, legal aid Team-Notice of petition to institute proceedings – this was 6 years 5 months after termination. The plaintiff/Respondent filed a counter affidavit paragraph 3 d (1)
Under section 22(1) of the NNPC Act, corporation includes its subsidiaries.
See Lilleker Brothers Nigeria Ltd & 2 orders v.
NNPC AND CRPC Ltd.
Appeal No. CA/A/13/2000
Exhibit B2 attached to plaintiff/Respondent Counter Affidavit refers.
Note statute of limitation – 6 years within to commence action.
Where an action is statute-barred the proper order to make is to dismiss the action.
N.P.A. v. Lotus Plastics Ltd. (2006) 3 WRN 133 at 171 per Mohammed JSC
I urge the court to dismiss this action having been bought by section 12 NNPC Act and the Statute of Limitation.
Ahaotu: We filed a counter Affidavit of 4 paragraphs dated 12th March 2007.
We are in court on issue of composition of benefits of the plaintiff in accordance with NNPC salary scale of 2005. See our Exhibit D2 dated 1st September 2005.
See our prayer (2) (3) and (4) and paragraph 10, 12, and 15 of Statement of Claim.
By virtue of Exhibit D2 the cause of action arose when the plaintiff went for verification exercise (3rd March 2006) see also paragraph 13, 13, 14 and 15 of the Statement of Claim.
Also counter Affidavit paragraph 3(h) and (i) retirement letter was received in the later part of 2005. Cause of action arose in April 2000 when plaintiff was invited to participate in pension verification exercise and find that his benefits and entitlement were calculated based on the old 1990 NNPC salary scale guidelines as against the current scale.
We have not asked for re-instatement so we are not contesting the plaintiff’s termination.
See Mbonu v. Nigeria Mining Corporation (2006) 13 NWLR pt. 998 at 659.
Okenwa v. Military Government of Imo State (1997) 6 NWLR pt 507 at 136.
Delano: In the case of Eboigbe v. NNPC (1994) 2 NWLR Pt. 347 page 649 at 665 per Onu JSC.
There is no room for negotiation.
Court: The reliefs 1 and 2 in the statement of claim are unintelligible and vogue as of themselves and go to no justiceable issues standing on their own. They are dismissed.
Reliefs 3.1 find to be founded on the communications to the plaintiff contained in Exhibit D2 attached to the Plaintiff/Respondent counter Affidavit in which a settled status resulting in accrued benefits was conveyed and within which the Plaintiff is now taking issue as to quantum and content of some. It must be stressed that pension is a continuing benefit. Any failure to pay same or a shortfall in quantum is a continuing injury for which there is no limitation till death.
The claim in relief 3, of the statement of claim is not statute-barred. The plaintiff’s is directed within the next 14 days to fine tune his pleadings in line with the ruling of this court. The Defendant will have another 14 days thereafter within which to file its statement of defence. Case adjourned to 5th March 2008 for mention.
sgd
C.E. ARCHIBONG
JUDGE
18/1/2008
HOLDEN AT LAGOS
ON FRIDAY 18TH JANUARY, 2008
BEFORE HONORABLE JUSTICE CHARLES EFANGA ARCHBONG JUDGE
SUIT No. FHC/L/CS/473/06
BETWEEN:-
MR EMIKO EYESAN … PLAINTIFF
AND
NIGERIA NATIONAL PETROLEUM CORPORATION… DEFENDANT
RULING
The Reliefs 1 and 2 in the statement of claim are unintelligible and vague as of themselves and go to no justiceable issues standing on their own. They are dismissed. Reliefs 3, I find to be founded on the communications to the Plaintiff contained in Exhibit D2 dated 5th September 2006, attached to the Plaintiff/Respondents Counter Affidavit in which a settled status resulting in accrued benefits was conveyed and with which the plaintiff is now taking issue as to quantum and content of some i.e. benefits accrued. It must be stressed that pension is a continuing benefit any failure to pay same or a short fall in quantum is a continuing injury for which there is no limitation till death.
The claim in Relief 3 of the Statement of Claim is not statute-barred. The plaintiff is directed within the next 14 days to fine tune his pleadings in line with the ruling of this court.
The defendant will have another 14 days thereafter within which to file its Statement of Defence. Case adjourns to 5th March 2008 for Mention.
Sgd
CHARLES E. ARCHIBONG
JUDGE
18/1/08.
From the ruling of court above, the Reliefs 1 and 2 of the statement of claim of the plaintiff /Appellant was dismissed sequel to the preliminary objection of the Defendant/Respondent. The learned trial court in line with its decision dismissing the Reliefs 1 and 2 of the statement of claim of the plaintiff/Appellant, ordered him within the next 14 days to fine tune his pleadings reflecting that order. The record of the court also showed that by the time this case proceeded to trial in the Lower court the plaintiff /appellant had only two (2) reliefs left. It is upon these amended reliefs that trial took place and judgment given on the 31st May 2010. The Appellant did not appeal against the dismissal of his reliefs 1 and 2 by the trial court in its ruling of the 18/1/2008. Furthermore the Appellant from the record complied with the directive given to him by the court to fine-tune his pleadings removing therein the dismissed reliefs 1 and 2, and proceeded to trial on his amended reliefs. I.e. reliefs 3 and 4 only. It was with those reliefs that he fought the case to judgment. The said dismissed reliefs 1 and 2 now constitutes the Grounds 1, 2 and 5 of the Appellants Notice of Appeal and also issues 2.1, and 2.3 of the Appellants brief of argument. The Appellant had argued in his Reply brief that contrary to the assertion of Respondents’ Counsel, the dismissal of the two claims was not based on the Respondents’ motion of 5th December 2006 or any other motion whatsoever. The record of appeal before this court on page 98 showed otherwise as reproduced copiously above. The Respondent on the 18/1/2008 moved his motion of 5/12/2006. The Appellant as plaintiff joined issue with him with his counter affidavit dated 12/3/2007 on the same 18/1/2008. The court entered its ruling on the Respondent’s application on the same day 18/1/2008.
The appellant maintained that his appeal is against the whole judgment because of the wrong procedure adopted by the court that led to miscarriage of justice. He also maintained it was an infraction of the fundamental pillar of justice, as the record will show that the trial court dismissed his two claims without hearing him, and thus occasioned miscarriage of justice, and a violation of section 36(1) of the constitution of Federal Republic of Nigeria 1999. There is only one Record of Appeal before this court. The Record was transmitted to this court on the 10/11/2010. The Record was compiled by K.O. Irabor Esq. Royal Garnel Solicitors, Appellants, solicitors 1 – 9 Berkley street (3rd Floor) Onikan, Lagos. The entire proceedings on pages 98 – 103 of this Record, was earlier on copiously reproduced by this court with regards to the proceedings of the 18/1/2008 it showed on that date, the Appellant was represented in court by his counsel V. Ahaotu. When the Respondent moved his motion on page 100, Ahaotu replied and said “we filed a counter Affidavit of 4 paragraphs dated 12th March, 2007…” He addressed the court with his reply.
Ahaotu Esq., Appellants Counsel was in Court on the same 18/1/2008, when the court entered its ruling. Where then is the infraction of the Appellant’s fundamental rights? Where is the claim that he was denied his fundamental right to fair hearing, and that the ruling was delivered in his absence when he was fully represented by counsel in court? No doubt, there was no denial of Appellant’s right by the trial court in its proceedings of 18/1/2008.
Again the Appellant laid emphasis on the fact that apart from the fact that the ruling of the trial court was not based on the Respondent’s motion, his appeal was more on the side of the bad procedure adopted by the trial court that has led to a miscarriage of justice. The decision of the trial court of the 18/1/2008 was an interlocutory decision. The Appellant made grounds 1, 2 and 5 of his Notice of Appeal from those grounds he distilled issues 2.1 and 2.3. Specifically section 15(1) court of Appeal Act; provides for Appeal in interlocutory orders and decisions, and the section states:-
“Where in the exercise by the High Court of a State or, as the case may be, by the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall by leave of that court or of the court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made exparte; or by consent of the parties, or relating only to costs.”
The words of the statue here state “shall by leave of that court or of the Court of Appeal (underline mine) makes it mandatory for compliance. From the record before this court, no such leave was sought for or obtained by the Appellant, from the trial court, or in this court before filing his appeal against the ruling of the trial court of the 18/1/2008. Also section 15(1) of the court of Appeal Act 2004 is made pursuant to section 242(1) (2) of the constitution of the Federal Republic of Nigeria 1999, where it provides:-
Section 242(1)
“Subject to the provisions of section 241 of this constitution an appeal shall be from decisions of the Federal High Court or High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
Section 242(2)
“The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court in respect of any civil or criminal proceedings in where an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.”
From the above therefore, the issue of leave is sinequo non to any appeal coming from an interlocutory decision. It must be pointed here that, where leave is obtained in respect of any interlocutory decision, such an appeal, can be consolidated with the main appeal for ease of management. See: – Abumere V. Abumere (2002) 10 NWLR (pt. 775) 441 at 451-452; Ikyernum V. Lorkumbor (2002) 11 NWLR (pt. 777) 52 at 78.
Also to add that, the issue of leave to appeal, from interlocutory decisions to this court, from the lower court is both a constitutional and statutory requirement. An action instituted must strictly comply with both the constitutional and statutory requirement. None compliance by a claimant who might have a cause of action looses the right to enforce it by judicial process. See: – Eboigbe v. N.N.P.C. (1994)5 NWLR (pt. 347) 647 at 658 and 659 D-E; Odubeko V. Fowler (1993) 7 NWLR (pt. 308) 637; Oke V. Oke (2006) 4 NWLR (pt. 1008) 224 at 242 C-D.
In the instant appeal although the Appellant alleges denial of his right to fair hearing from the ruling of the trial court, or even bad procedure as he alleges adopted by that court, to appeal against that decision the law requires him first to obtain the leave to do so which he did not in this instance. The Supreme Court made this point very clear in the case of: – Oke V. Nwaogbuinya (2001) 1 SC (pt. 1) 22 and states:-
“An appeal against interlocutory Decision may be included in the Appeal against the final Decision of the Court. This would be help to avoid unnecessary delay in the determination of the main issues joined by the parties. An appellant wishing to adopt this need to obtain the Leave of Court.”
Lastly, let me add a word on the appellant complying with the directive of the trial court in its ruling of 18/1/2008 to fine tune his statement of claim; and to remove reliefs 1 and 2 dismissed by the ruling. The Appellant did not appeal that ruling at that time, or even after. He amended his statement of claim. He excluded reliefs 1 and 2 dismissed by court and preceded with his remaining reliefs to trial. The Law therefore considers his relief 1 and 2 as abandoned, and he cannot turn around to appeal against same. The Decision of the Supreme Court in Ojoh V. Kamalu (2005) 12 SC (pt. 11) 132 is apt on this point. The Supreme Court said:-
“An abandoned issue cannot in Law be raised on Appeal.”
In the final analysis, the preliminary objection dated and filed 30/3/11 by the Respondent, and argued in his brief of argument at pages 2 – 6 also dated and fired 30/3/11 is hereby upheld by this court. The objection is granted. In consequence therefore, Grounds 1, 2, and 5 of the Appellants Notice of Appeal, and issues 2.1 and 2.3 distilled from them in his brief of argument dated 20/12/2010 and filed on the 22/12/2010 are all hereby struck out by this court. The Appeal is to proceed strictly on the Appellant’s amended reliefs.
The Appellant issues for determination of this court from Grounds 3 and 4 of the Notice of Appeal are as follows:-
(1) Whether the evidence before the court disclosed that all the entitlements of the Appellant have been paid.
(2) Whether the Appellant could do something to mitigate his suffering/loss from the wrongful and void action of the Respondent, and whether the Appellant’s mitigation of his damages would preclude him from asserting his lawfully recognized rights.
On the other hand the Respondent also formulates the following two (2) issues from the two (2) Grounds of Appeal as follows:-
(1) When did the conversion of the appellant termination of employment to retirement by the respondent come into effect for the purpose of computation of his terminal benefits?
(2) Was the learned trial judge correct in dismissing the plaintiffs claim?
Learned counsel to the Appellant in his submission to issue 1, to wit whether the evidence before the court disclosed all the entitlements of the Appellant have been paid. Learned counsel maintained that there was no Legal evidence before the court below to show that all or any of the entitlements of the Appellant have been paid by the Respondent. The Documentary evidence sought to be tendered through Dw1 was rejected and marked as such. Even the evidence tendered by Dw2 if we assume without conceding that same is admissible cannot be evidence that all the Appellant’s entitlement had been paid, as Dw2 was not in a position to know what constitute the entitlement and benefits of the Appellant, being also a third party (stranger) to the relationship between the Appellant and the Respondent.
Learned counsel to the Respondent in reply submitted, primarily, the issue here is very simple. Is the benefit/entitlements due to the appellant payable at the scale in operation in 1990 or 2005.
Learned counsel submitted further that, in 1990 by a letter dated 27th April 1990 appellant’s appointment was terminated. By a letter dated 1st September 2005 the termination was converted to retirement with effect from the date of termination. Appellant move on with his life got employed elsewhere whilst he presses on to have his termination converted to retirement. The judgment of the lower court is instructive on this portion. See: – pages 8, page 385 of the records of proceedings. See also: – Jumbo V. Petroleum Equalization Fund (Management Board) & 2 Ors (2005) 4 F.W.L.R. 2335.
On the part of the court, this issue is brought to a very narrow margin. The duty of the court here is only to ascertain based on all the evidence before it, at what point can the benefits/entitlements of the Appellant be determined in his relationship with the Respondent. From the facts before the court, the Appellant’s appointment was terminated vide a letter served on him dated 27th April, 1990 by the pipe line and Products Marketing Company Limited (PPMC) a subsidiary of the Respondent. It was not in issue from the evidence before the court whether PPMC the subsidiary had the power to issue such a letter on the Appellant. What had remained, in issue was whether its action for issuing the letter on the Appellant was proper. The Appellant asked for re-instatement with the Respondent, and negotiations between the two continued, until the Respondent in 2002 informed the Appellant that the management was reviewing the alleged termination of the Appellant’s employment. The Respondent on September 1, 2005 informed the Appellant that the termination of his employment has been converted to retirement with effect from April 27, 1990.
The issue at stake here is when the benefits/entitlements of the Appellant accrue, 27/4/1990 or 1/9/2005. The trial court in its judgment on page 385 of the record of proceedings stated as follows:-
“The only real issue here is when did the plaintiff’s retirement from Nigerian National Petroleum Corporation take effect? The fact that is not in issue is that the plaintiff initially had his employment with the defendant terminated in 1990.
It was followed upon by several correspondences between the partner and representations made on behalf of the plaintiff to the defendant that the previous termination of the plaintiff appointment was converted to retirement effective, as it could only be from the date of the previous termination. The simple reason why it could not be effective from any point in time thereafter is simply because the plaintiff was disengaged from services; that his employment had ceased and he was no longer part of the Nigeria National Petroleum corporation establishment.
This court is in agreement with the trial court on this point, which is also in line with the Supreme Court’s decision in Jumbo V. Petroleum Equalization Fund (Management Board) & 2 Ors (2005) 4 FWLR 2335 (cited by counsel to the Respondent). The Supreme Court at page 2350 stated that:-
“The appellant was an employee of the 1st respondent. On 28th July 1988, his appointment was terminated. He considered his termination unlawful. He therefore brought a suit at the Federal High Court Abuja.
Continuing at page 2355 the Supreme Court stated that:-
“On 23/3/99 a letter from the office of the letter from the office of the secretary to the Government of the Federal dismissing five public servants of whom the plaintiff/appellant was one.
The first question that arises is – what is the status of the plaintiff’s relationship with the 1st defendant following his termination vide letter dated 28/7/98? It seems to me that when an employer brings the contract of employment to an end by terminating it, the employee ceases to be in his employment and his subsisting rights, if any are to make a claim for the terminal benefits as provided in the contract of employment. See Chukwumah v. Shell Petroleum (1993) 4 NWLR (pt. 287) 512. The employee could not at his own option keep alive a contract of employment, which has been determined by the employer.
At page 23-57 the courts conclude that:-
“With respect to the two courts below, I think that they missed the essential point of the dispute.” “Termination” or “Dismissed” of an employee by the employers translates into bringing the employment to an end … The two courts below should have seen that the latter dismissed of plaintiff/appellant was irrelevant and diversionary following his earlier termination.”
Going by the principles established by the Supreme Court in Jumbo’s case (supra) this court cannot but agree with the trial court’s position that the conversion of the termination of Appellant by the Respondent to retirement was only gratuitous, and as provided for, takes effect from 27/4/1990. The overall effect is that, the Appellant’s benefits and entitlement is the scale applicable in place as at 1990. This logic is akin to an amendment in Law which dates back to the original time of the document. The Appellant cannot be right to insist that his retirement benefits should be the scale in place as at 1/9/2005 when he was communicated of the change, and when in effect his retirement dates back to 27/4/1990. The Appellant’s benefits/entitlement is the scale in place as at 1990, and issue No. 1 is resolved against the Appellant and in favour of the Respondent.
On issue No. 2 whether the Appellant could not do something to mitigate his suffering/loss from the wrongful and void action of the Respondent, and whether the Appellant’s mitigation of his damages would preclude him from asserting his lawfully recognized rights.
Learned counsel to the Appellant submitted that, the Supreme Court reiterated the position of the taw where an employee asking for reinstatement takes another employment in the interim to keep body and soul together, this on its own, does not constitute a far to their reinstatement. See: – Prof. Olufeagba & Ors. V. Prof. Abdul-Raheem (2009) 12 MJSC 164.
Learned counsel submitted further that, the Respondent made mountain of the fact that after the Appellant’s purported termination by PPMCL, the Appellant went to work for another Federal Government parastatal Nigeria Airways. For 15 years the Appellant was not given duties to perform by the Respondent on the ground of a void action of PPMCL, a distinct legal entity from the Respondent. The Appellant merely mitigated his sufferings and loss otherwise, he may not have been alive to prosecute this suit.
Learned Counsel further submitted that there is no legal basis for the Respondent insisting on paying the Appellant based on 1990 scale when he was in fact retired from service in 2005. The Respondent should appreciate the gesture of the Appellant in not asking for interest on his monthly remuneration that was unlawfully withheld from him for 15 years.
Learned counsel to the Respondent in reply submitted that, upon his retirement the appellant went to work for Nigeria Airways limited. The lower court in his judgment at pages 8 – 9 came to the conclusion that it was irrelevant to the case.
Learned counsel further submitted that, the trial court was right in its finding. This is because with of termination the contractual relationship between the parties had come to an end. That is one of the decisions in Jumbo’s case (supra). See also Garuba V. Kwara Invest. Co. Ltd. & 2 ors. (2005) 13 WRN 1 at 19 – 20.
Learned counsel finally submitted that it is established that the respondent letter of 27th April 1990 brought to an end any contractual relationship with the appellant. The respondent followed up the cessation of contractual relationship with payment of appellant benefit/entitlement arrears and current pursuant to that letter of 1st September 2005 to a designated account supplied by the appellant, which money the appellant did not return. Thereafter, there is no contract of employment that the appellant could enforce against the respondent. This court is urge to dismiss the appeal for lacking in merit and uphold the decision of the lower court.
This court again examined the submissions carefully. The Appellant’s subsequent employment with the Nigeria Airways said to be a mitigating factor has no relevance whatsoever with the dispute before this court. This court is in complete agreement with the trial court in its judgment at pages 389 of the record of proceedings when it said:
“That the plaintiff proceeded to work elsewhere is irrelevant. He no longer works for the defendant, I see no basis for elevating this question or issue beyond this self evident fact that the plaintiffs employment at Nigeria National Petroleum Corporation, ended in 1990. And I so find.”
This court has nothing more to add on this apt finding of the trial court which is strictly in line with the Supreme Court’s decisions in Jumbo V. Petroleum Equalization Fund (Management Board) & 2 ors (2005) 4 FWLR 2335; and Garuba V. Kwara Investment Co. Ltd. & 2 ors. (2005) 13 WRN 1 at pages 1-20. This court has resolved issue No. 2 against the Appellant and in favour of the Respondent.
In the final analysis, having resolved all the issues in this appeal against the Appellant, and in favour of the Respondent, the appeal is devoid of any merit and it is hereby dismissed. The judgment of Hon. Justice C. E. Archibong, of the Federal High Court Lagos, in suit no. FHC/L/CS/473/2006, delivered on 31st day of May, 2010, is hereby affirmed by this court.
No costs awarded.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: Having had the privilege of reading in draft the lead judgment just delivered by my learned brother, the Hon. Justice S. D. Bage, JCA, I cannot but concur with the reasoning and conclusion reached therein, to the effect that the present appeal lacks merits. I have adopted the said reasoning and conclusion as mine, and accordingly dismiss the appeal for being unmeritorious.
Consequently, the judgment of the Federal High Court, which was delivered on 31/5/10, is hereby affirmed by me.
There shall be no order as costs.
RITA NOSAKHARE PEMU, J.C.A: I have been afforded a draft copy of the Judgment just delivered by my learned brother SIDI DAUDA BAGE JCA and I agree with his reasoning and conclusions.
All the issues have been exhaustively considered by my learned brother.
I do not see how a body can stop a person who has been treated unfairly by it in the first place from claiming any benefit for a blessing. If negotiation and investigation into Appellants, case took a period of 15 years, and the Appellant in order to mitigate his loss took on another job, that did not preclude the Respondent from restating him, if he was entitled to that relief,
However, with regard to his benefits/entitlement, the Appellant is entitled to it only as per the scale in place in 1990. In consequence the appeal is devoid of merit and same is dismissed by me.
I abide by the consequential order made that there shall be no order as to costs.
Appearances
K.O. Irabor Esq.For Appellant
AND
O. DelanoFor Respondent
