NEW NIGERIA BANK PLC. V. SOLOMON OWIE
(2010)LCN/3847(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of June, 2010
CA/B/104/2003
RATIO
JURISDICTION: WHEN CAN A COURT EXERCISE JURISDICTION OVER AN ACTION
It became well settled in the decision of Madukolu v. Nkemdilim (1962) 1 All NLR p. 587 and numerous other decisions of both the Supreme Court and this Court that, a Court can only exercise jurisdiction over an action when,
(1) It is properly constituted as regards qualification of the members of the bench disqualified for one reason or another, and
(2) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to exercise of jurisdiction.
It follows that non-compliance with any of the foregoing determinants of jurisdiction is a defect in competence which is extrinsic to adjudication. See also the cases of:
(1) Skenconsult (Nig) Ltd. v. Ukey (1981) 1 S.C. p. 6;
(2) Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (Pt. 570) p.353;
(3) Sofolahan v. Fowler (2002) FWLR (Pt. 108) p.1521 and
(4) Shelim v. Gobang (2009) All FWLR (Pt.496) p. 1866.
It is also a settled principle of law that, it is plaintiffs’ claim that determines the issue of jurisdiction. The claims before the trial court vide both the writ of summons and statement of claims can be found in pages 2 and 4 to 8 of the record of Appeal respectively. PER OYEBISI F. OMOLEYE, J.C.A.
ADDRESS OF COUNSEL: WHETHER THE ADDRESS OF COUNSEL CAN REPLACE EVIDENCE
It is settled law that, the address of counsel can never be a substitute or replacement of hard evidence, no matter how brilliantly couched. Therefore, it will not matter whether or not counsel are prompted in this regard by the courts. For to allow counsel either on his own volition as in the instant matter or the prompting of the court to deviate from parties’ claims before the court willy nilly will not only lead to legal anarchy, it will be tantamount to foisting on the court jurisdiction that the court does not possess. In the case of: Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) p.179, the Supreme Court Muhammad, J.S.C. restated the legal principle the umpteenth time at p- 223, paras. B – C that,
The law is well pronounced upon that no matter how brilliant the address of counsel is, it cannot be a substitute for pleadings or evidence. Courts are enjoined to limit and restrict themselves to pleaded and proved facts – see: Lewis & Peat (N.R.I) Ltd. v. Akhimien (1976) 7 SC 157 at page 160; Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at p. 792; Igwe v. A.I.C.E (1994) 8 NWLR (Pt. 363) 459 at p.481.
See also the cases of,
(1) C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR (Pt. 1083) p.362;
(2) Harka Air Services Ltd. v. Keazor (2006) 1 NWLR (Pt. 960) p. 160;
(3) Auto Import Export v. Adebayo (2005) 19 NWLR (Pt. 959) p. 44;
(4) Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) p.1 and
(5) Agbamu v. Ofili (2004) 5 NWLR (Pt. 867) p.540. PER OYEBISI F. OMOLEYE, J.C.A.
COURT: DUTY OF TRIAL COURT TO KEEP STRICTLY TO THE PLEADINGS OF PARTIES
The law is equally settled that a trial Court must keep strictly to the pleadings of parties. The Supreme Court stood firmly on this legal principle in the case of: Ifabiyi v. Adeniyi (2000) 5 S.C. p. 31. where the earlier decision of the Court in the case of Obioma v. Olomu (1973) 3 S.C. p. 1 at 7, was quoted with approval per Onu, JSC in the following words:
A Court has no jurisdiction to make an order which has not been pleaded or prayed for by a litigant such order is wrong and will be annulled on appeal. See Elumeze v. Elumeze (1969) 1 All NLR 311. A trial (sic) should not import in (sic) his (sic) judgment issues not properly or rose at the trial. Adebisi v. Oke (1967) NMLR 64. A trial Judge, in deciding a case, must not, even when the interest of justice so demands stray from the pleadings. See Dipcharima v. Alli (1974) 12 SC.45. The finding and the declaration that the Respondent “is the district head of Ile-Ire in Ifelodun Local Government of Kwara State” was made without any jurisdiction and must be annulled as it was not a matter which was pleaded. I can not agree more.
In the case of: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (pt. 1119) p. 361, the supreme court per Mohammed, J.S.C. held at pgs. 381 – 382 paras.G – H & A that:
It is both fundamental and an elementary principle in the determination of actions before a court or tribunal, that the adjudicating body is bound to limit itself to the claim before it. A court may indeed maKe incidental orders which flow naturally from the relief claimed. However, a court has no power and is not under any circumstance entitled to award a relief not claimed by the party in the writ of summons and statement of claim. See Egonu v. Egonu (1978) 11 – 12 SC 111; Obioma v. Olomu (1978) 3 SC1: Elumeze v. Elumeze (1969) All NLR 311; Chief Registrar v. Vamos Navigation Ltd. (1976) 1SC 33. Judgments are based on the issues tried and decided and the right of the court. See Solana v. Olusanya (1975) 6 SC 55. Where trial is conducted by pleadings, the judgment thereon must be based on issues joined between the parties – see Metal Construction (W.A) Ltd. v. Migliore (1979) 6 – 9 Sc. 163.
See also case of:
(1) Ativie v. Kabelmetal Nig. Ltd. (2008) 10 NWLR (Pt.1095) p.399 and
(2)Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) P.487. PER OYEBISI F. OMOLEYE, J.C.A.
LABOUR LAW: WHETHER THERE MUST BE A LEGAL NEXUS BETWEEN THE CONDITIONS OF SERVICES AND THE TERM OF A COLLECTIVE AGREEMENT
The learned counsel for the Respondent reproduced in extenso, the findings of Tobi, JCA (as he then was), in the case of: A.C.B. Plc. v. Nwodika supra at pgs. 487 – 488. paras. H – B as follows:
It is clear from the state of the case law that where a collective agreement is incorporated or embodied into the conditions or contract of services, it will be binding on the parties, otherwise, no. The case law did not indicate what method will satisfy the incorporation or embodiment theory or practices. Is it by cross reference to the conditions or contract of service on the part of service to the collective agreement? Or is it by lifting specific sentence or sentences from the conditions or contract of service to the collective agreement? Or is it by interpolation? These are some of the technical commercial details, which the case law, probably understandably did not go to. I think the important thing is for the court to read the language of the two documents with the eyes of an eagle before taking decision. In the exercise, the court will be guided by the affinity of the language which must invariably draw the required legal nexus. In the absence of clear language, the court will not be wrong in searching for the real intention of the parties, and it is whether they really intended in a case of dispute that the two documents should be read together is the court’s duty to decide the case.(Underlined is for emphasis)
In my humble but firm view. The case of: A.C.B. Plc. v. Nwodika supra does not really advance the argument of the learned counsel for the Respondent. This is because the bottom line is that, the firm position of case law is that, to create a binding contract, parties must express their agreement in a form which is sufficiently certain for the courts to enforce. See also the cases of:
(1) Orient Bank v. Bilante Inter. Ltd. (1991) 8 NWLR (Pt. 515) p. 37 and
(2) Saka v. Ijuh (2010) 4 NWLR (Pt. 1184) p. 405.
In essence, the basic requirement under established case law is that, there must be a legal nexus between the conditions of services and the term of a collective agreement. This legal nexus in my opinion is the incorporation of the relevant terms of the collective agreement into the conditions of services. In the absence of clear language of incorporation, the courts have been enjoined to search for the real intention of the parties. PER OYEBISI F. OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
NEW NIGERIA BANK PLC. Appellant(s)
AND
SOLOMON OWIE Respondent(s)
OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State holden in Benin City delivered on 21st May, 1997 by Hon. Justice V.A.O. Omage J. (as he then was). The Respondent as plaintiff claimed vides his writ of summons and statement of claim against the Appellant as defendant, as follows:
(a) A declaration that the letter of 1/2/93 with Re. NNB/AGM/(B/OPS)P by which the Defendant purportedly retired the Plaintiff is inconsistent, with the conditions of service governing the plaintiff’s employment, ultra-vires the Board of Directors of the Defendant and is null, void and of no effect.
(b) A declaration that the Plaintiff is entitled to remain in his continuous employment by the Defendant until he attains the age of sixty (60) years as provided by the Defendant’s conditions of service.
(c) An order directing the Defendant to reinstate the Plaintiff forthwith to the position of an Assistant General Manager and to pay him all his outstanding salaries and allowances less the amount unilaterally credited by the Defendant to the Plaintiff account purporting same to be his terminal benefits.
ALTERNATIVELY:
An order directing the Defendant to pay the Plaintiff:
(i) The sum of N1,698,642.00 being the total emoluments (salaries and allowances) the Plaintiff would have earned if he had remained in the Defendant’s employment until attaining the age of 60 years.
(ii) The sum of N145,946.00 being the outstanding, gratuity benefits due and payable to the Plaintiff by the Defendant based on his total emoluments as agreed.
(iii) The sum of N150,000 being the furniture allowance the Plaintiff would have earned if he was not wrongfully retired.
(iv) The sum of N12,744.00 being the outstanding allowances in lieu of leave for 1991 and 1992 due and Payable to the Plaintiff.
(d) A declaration that the Plaintiff is entitle to Pension benefits as set out in the Defendant’s Personal Policy.
The Respondent in a bid to prove his claims, testified and tendered evidence a plethora of documents. At the end of trial, the learned trial Judge gave judgment in favour of the Respondent in part of his claims. The trial Court held that the Respondent’s appointment was properly determined by the Appellant vide exhibit S01. That the Respondent in addition to the three month’s salaries in lieu of notice was entitled as of right to have his terminal benefits and gratuity calculated to include his allowances for housing, transport and luncheon along with his basic salary rate. The Respondent was equally awarded the sum of Fifty Thousand Naira as damages for anxiety and inconveniences.
The Appellant was displeased with the judgment and has appealed to this Court against it vide its notice and grounds of appeal containing three grounds of appeal. For easy reference, the three grounds of appeal with their particulars are reproduced hereunder as follows:
GROUND I
The learned trial Judge erred in law when he held as follows:
“It is for this reason that damages based on anxiety and inconveniences, not damages for loss of employment is assessed at N50,000.00 (Fifty Thousand Naira) is awarded to the Plaintiff for the defendant’s failure to pay to the plaintiff immediately his terminal dues, when three months salary was offered to the plaintiff in lieu of notice in Exhibit SO18, when Exhibit SO1 determined plaintiff’s appointment 20 days before the dues were offered to him”.
PARTICULARS OF ERROR
(a) The Plaintiff did not make any claim for damages based on anxiety and inconveniences in his pleadings.
(b) The learned trial court granted the plaintiff a claim which he never canvassed for at the trial.
(c) The learned trial court relied extensively on the address and submissions of the plaintiff’s learned counsel, which in law does not amount to either pleadings or evidence, in its award of damages for anxiety and inconveniences.
GROUND II
The learned trial Judge erred in law when he held as follows
“The inclusion of this commencement date of the 23rd October, 1992 render the provisions effective for the plaintiff. Exhibit S010 which computed the entitlement of the plaintiff under gratuity of the 16 years 6 months period of service of the plaintiff with the defendant does not take into account the terms of the agreement between the plaintiffs as a management staff with the defendant. The date shown on Exhibit S010 is 23rd February, 1993, after the commencement of the agreement in Exhibit S016B Clause 11. By that provision the plaintiff is entitled as of right to have his terminal benefits on gratuity calculated to include his allowances for housing, transport and luncheon together with his basic salary rate.”
PARTICULARS OF ERROR
(a) The agreement contained in Exhibit S016 was not a personal agreement between the plaintiff and the defendant; instead it was an agreement that was reached between the representatives of the plaintiffs trade union and the defendant.
(b) All the agreement as evidenced in Exhibits S016 and SO31 were all reached through the plaintiff’s trade union and the defendant.
(c) These agreements in law are not justiciable.
(d) That Exhibit S016 was date 27th February, 1992, while Exhibit SO31 was dated 26th October, 1992.
(e) It was clearly stated in Exhibit SO31 that the calculation of gratuity on basic salary and I other allowances was on concessional grounds to two named employees and that the “case shall not be cited as a precedent in future.”
(f) In the interpretation of a document a court is enjoined to abide by its literal and ordinary meaning.
GROUND III
The judgment is against the weight of evidence.
By the order of this court made on 29th October, 2009, the name of the Appellant, New Nigeria Bank Plc, was substituted with Unity Bank plc. Consequently, parties’ counsels were directed to amend the Notice of Appeal and all other processes filed in this appeal to be amended to reflect the substitution. Although the briefs of argument of the parties were not so amended, the position of the law is that, pursuant to the said order, Unity Bank Plc is the proper Appellant before this court.
The learned counsel for the Appellant formulated two issues for the determination of this appeal. The two issues read as follows:
1. Whether or not the award of Fifty Thousand Naira by the learned trial Judge as damages for anxiety and inconveniences and not damages for loss of employment in favour of the Respondent for failure of the Appellant to pay the Respondent’s terminal salary when the letter of termination was delivered is tenable in law?
2. Whether or not the learned trial Judge’s findings that the Respondent’s terminal benefits should be computed on the total emolument and not his basic salary is supported either in law or by the evidence adduced at the hearing?
On the other part, the learned counsel for the Respondent distilled two issues for the determination of the appeal. The two issues are reproduced hereunder as follows:
1. Whether the failure by the Appellant to pay the Respondent his terminal dues at the time of termination of his appointment is not a breach of contract which ought to entitle the Respondent to an award of damages?
2. Whether the findings of the trial Court that the proper computation of the Respondent’s gratuity should comply with the terms of agreement contained in Exhibit SO16B is unsupported having regard to the evidence adduced?
On the 8th of March, 2010 the learned counsel for the Appeal was heard by this Court, brief of argument dated 12th January, 2004 but deemed properly filled and served on 28th September, 2004 in urging that this appeal be allowed. The learned counsel for the Respondent was absent from Court but on 29th October, 2009 he was present in Court, and hearing of the appeal was further adjourned to 8th March, 2010. Hence, the Respondent’s amended brief of argument dated 25th May, 2007, deemed properly filed and served on 16th October, 2007, was taken to have been duly argued pursuant to Order 17 Rule 9 (4) of the Court of Appeal Rules, 2007.
The issues formulated for determination by the learned counsel for the parties are basically the same. Hence I shall adopt those formulated by the learned counsel for the Appellant which I shall consider seriatim along with those formulated by the Respondent’s counsel.
ISSUE ONE
Whether or not the award of Fifty Thousand Naira by the trial Judge as damages based on anxiety and inconveniences and not damages for loss of employment in favour of the Respondent for failure of the Appellant to pay the Respondent’s terminal salary when the letter of termination was delivered is tenable in law?
I have perused the submissions of the learned counsel for both parties along with all the legal authorities relied upon by them as well as the record of appeal. In my strong view, the point that calls for resolution under this issue is whether the trial Court properly awarded the sum of Fifty Thousand Naira damages for anxiety and inconveniences in favour of the Respondent when the said relief was not claimed by the Respondent.
It became well settled in the decision of Madukolu v. Nkemdilim (1962) 1 All NLR p. 587 and numerous other decisions of both the Supreme Court and this Court that, a Court can only exercise jurisdiction over an action when,
(1) It is properly constituted as regards qualification of the members of the bench disqualified for one reason or another, and
(2) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to exercise of jurisdiction.
It follows that non-compliance with any of the foregoing determinants of jurisdiction is a defect in competence which is extrinsic to adjudication. See also the cases of:
(1) Skenconsult (Nig) Ltd. v. Ukey (1981) 1 S.C. p. 6;
(2) Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (Pt. 570) p.353;
(3) Sofolahan v. Fowler (2002) FWLR (Pt. 108) p.1521 and
(4) Shelim v. Gobang (2009) All FWLR (Pt.496) p. 1866.
It is also a settled principle of law that, it is plaintiffs’ claim that determines the issue of jurisdiction. The claims before the trial court vide both the writ of summons and statement of claims can be found in pages 2 and 4 to 8 of the record of Appeal respectively.
The learned trial Judge in making the said award held as follows:
The plaintiff did not make a specific claim for damages for the failure of defendant to pay the Plaintiff the three months salary in lieu of notice at the time that Exhibit SO1 was served on him but he addressed on it. The plaintiff was informed of the payment in lieu of notice in exhibit SO10. In any case the issue is incidental and arose from the facts of the case through it does not form part of the plaintiff’s specific claim, the plaintiff’s counsel address the court on it? Settled decisions of Court of superior jurisdiction have held that the failure to pay 3 months salary in lieu of notice at the time of the termination of appointment constitutes a breach of the contract. See Chukwuma v. NNPC supra. No formal contract of the service of plaintiff was tendered in these proceedings, but all the Exhibits tendered by the Plaintiff and the Defendant show that relationship of employer and employee existed between the plaintiff and Defendant for 16 years and 6 months. In determining that relationship by three months salary in lieu of notice the Defendant is required to pay the terminal salary at the time of the determination of the relationship. As the defendant has failed to do this, defendant is in breach of the contract. This situation in my view is different and distinct from the onus on the Plaintiff to show that his appointment was wrongfully terminated in his employment with the defendant. See College of Medicine v. Adegbeite 1973 5 SC. It is also the law that the Court has no power to grant relief not claimed before the Court. See Chief Bola Ige v. Olunloyo & Ors. 1984 1 S.C. 258 at 276. However, where as in this case the issue of entitlement to Plaintiff arose from the facts of the case, and the documents tendered Exhibits SO1 and SO10 show that the defendant is in breach of the contract of employment and the counsel have addressed the Court on the issue without prompting from the Court. Even though the Court is entitled to direct Counsel to address on the issue, though not claimed, a decision of the Supreme Court has held so. See Ekpeyong v. Iyang (1975) 2 S.C. 7. See also Shodepo v. Ademola (1992) 2 S.C. 71 with such relief may be granted if addressed upon, as said above. I have received address of counsel on the issue. It is for this reason that damages based on anxiety and inconveniences, not damages for loss of employment is assessed at N50,000.00 (Fifty Thousand Naira) is awarded to the Plaintiff for the defendant’s failure to pay to the Plaintiff immediately his terminal dues, when three months salary was offered to the plaintiff in lieu of notice in Exhibit SO10, when Exhibit SO1 determined Plaintiffs appointment 20 days before the dues were offered to him. (The underlined is for emphasis)
On the above reproduced findings of the lower Court, the learned counsel for the Appellant submitted that the findings can not form the basis of the award of damages which was never claimed by the Respondent. Furthermore, learned counsel for the Appellant had this to say:
…Nowhere did the Respondent plead that he was not paid his terminal benefits as and when due. Again, the Respondent did not lead any oral evidence on this issue. It only came up in his counsel’s address… Thus the learned trial court’s finding was clearly without any foundation in law. It is trite law that civil proceedings are conducted on the basis of the pleadings and evidence put before a court. A court of law ought not to base its decisions on the address and speculations of learned counsel no matter how brilliant or well conceived.
Contrariwise, the learned counsel for the Respondent in essence opined that, adhering to pleadings strictly amounts to a technical phenomenon which courts have departed from. And that failure to pay the Respondent’s terminal dues at the time of the termination of his appointment is a breach of contract which would automatically entitle him to an award of damages. He also argued that, the amount to a co sequential relief which need not be specifically pleaded or claimed.
From the claim as endorsed in the writ of summons and statement of claims of the Respondent which I have reproduced in extensor above, it is very patent that he did not claim damages of any kind, whether for breach of contract or loss of employment or anxiety or inconveniences. The learned trial Judge’s basis for the award under fire is that the matter came up in the addresses of counsel for the parties. The learned trial Judge clearly warned himself on the settled principle of law that, the courts are forbidden from granting a claim or relief that is not sought by a party in an action. With the greatest respect, I must disagree with the findings of the learned trial Judge, and the submissions of the learned counsel for the Respondent that the point under consideration borders on technicality. It is settled law that, the address of counsel can never be a substitute or replacement of hard evidence, no matter how brilliantly couched. Therefore, it will not matter whether or not counsel are prompted in this regard by the courts. For to allow counsel either on his own volition as in the instant matter or the prompting of the court to deviate from parties’ claims before the court willy nilly will not only lead to legal anarchy, it will be tantamount to foisting on the court jurisdiction that the court does not possess. In the case of: Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) p.179, the Supreme Court Muhammad, J.S.C. restated the legal principle the umpteenth time at p- 223, paras. B – C that,
The law is well pronounced upon that no matter how brilliant the address of counsel is, it cannot be a substitute for pleadings or evidence. Courts are enjoined to limit and restrict themselves to pleaded and proved facts – see: Lewis & Peat (N.R.I) Ltd. v. Akhimien (1976) 7 SC 157 at page 160; Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at p. 792; Igwe v. A.I.C.E (1994) 8 NWLR (Pt. 363) 459 at p.481.
See also the cases of,
(1) C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR (Pt. 1083) p.362;
(2) Harka Air Services Ltd. v. Keazor (2006) 1 NWLR (Pt. 960) p. 160;
(3) Auto Import Export v. Adebayo (2005) 19 NWLR (Pt. 959) p. 44;
(4) Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) p.1 and
(5) Agbamu v. Ofili (2004) 5 NWLR (Pt. 867) p.540.
The law is equally settled that a trial Court must keep strictly to the pleadings of parties. The Supreme Court stood firmly on this legal principle in the case of: Ifabiyi v. Adeniyi (2000) 5 S.C. p. 31. where the earlier decision of the Court in the case of Obioma v. Olomu (1973) 3 S.C. p. 1 at 7, was quoted with approval per Onu, JSC in the following words:
A Court has no jurisdiction to make an order which has not been pleaded or prayed for by a litigant such order is wrong and will be annulled on appeal. See Elumeze v. Elumeze (1969) 1 All NLR 311. A trial (sic) should not import in (sic) his (sic) judgment issues not properly or rose at the trial. Adebisi v. Oke (1967) NMLR 64. A trial Judge, in deciding a case, must not, even when the interest of justice so demands stray from the pleadings. See Dipcharima v. Alli (1974) 12 SC.45. The finding and the declaration that the Respondent “is the district head of Ile-Ire in Ifelodun Local Government of Kwara State” was made without any jurisdiction and must be annulled as it was not a matter which was pleaded. I can not agree more.
In the case of: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (pt. 1119) p. 361, the supreme court per Mohammed, J.S.C. held at pgs. 381 – 382 paras.G – H & A that:
It is both fundamental and an elementary principle in the determination of actions before a court or tribunal, that the adjudicating body is bound to limit itself to the claim before it. A court may indeed maKe incidental orders which flow naturally from the relief claimed. However, a court has no power and is not under any circumstance entitled to award a relief not claimed by the party in the writ of summons and statement of claim. See Egonu v. Egonu (1978) 11 – 12 SC 111; Obioma v. Olomu (1978) 3 SC1: Elumeze v. Elumeze (1969) All NLR 311; Chief Registrar v. Vamos Navigation Ltd. (1976) 1SC 33. Judgments are based on the issues tried and decided and the right of the court. See Solana v. Olusanya (1975) 6 SC 55. Where trial is conducted by pleadings, the judgment thereon must be based on issues joined between the parties – see Metal Construction (W.A) Ltd. v. Migliore (1979) 6 – 9 Sc. 163.
See also case of:
(1) Ativie v. Kabelmetal Nig. Ltd. (2008) 10 NWLR (Pt.1095) p.399 and
(2)Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) P.487.
On the cases replied upon by the learned counsel for the respondent, I have read the case of: Chukwuma v. SPDC supra, a SUPREME Court decision. In the case, the apex Court did not award any kind of damages because damages were neither pleaded nor prayed for, rather, the Court only declared that there was breach of contract because the salary in lieu of notice was not paid at the point in the letter of termination was served. I have also read the earlier decision of this Court in the cases of:
(1) C.B.N. & Ors v. Okojie (2004) 10 NWLR (Pt. 882) p.488;
(2) N.N.P.C. v. Idoniboye-Obu (1996) 1 NWLR (Pt. 427) p.655 and
(3) Ifeadi v. Afedze (1998) 13 NWLR (Pt. 581) p. 205.
All I can say is that those cases are distinguishable from the instant case. And in any event, by the principle of stare decisis, I am bound by the standpoint of the Supreme Court in the cases referred to above by me. Accordingly, this issue is resolved in favour of the Appellant.
ISSUE TWO
Whether the finding of the trial Court that the proper computation of the Respondent’s gratuity should comply with the terms of agreement contained in Exhibit S.O. 16B is unsupported having regard to the evidence adduced?
This issue is very simply and straightforward, it relates to the applicability or otherwise of Exhibit S.O.16B to the Respondent in the calculation of his terminal benefits. The learned counsel for the Appellant contended that the Respondent is not entitled under Exhibit S.O. 16B, a collective agreement of all bank workers, because its provisions are not part of the terms of employment of the Respondent as contained in Exhibit S.O “8” 1 -34, the conditions of service of senior staff Employment.
On the contrary, the learned counsel for the Respondent in one breath argued that, Exhibit S.O. 16B is not a collective agreement in the general sense because item no.11 thereof had been previously used in the computation of the terminal benefit of some other employees of the Appellant bank. One of such is contained in Exhibit S.O. 31 wherein the terminal benefit of one Mr. Ben Anazia was calculated on the basis of basic salary, housing, transport and luncheon allowances. At the time, the Respondent was a member of the senior management staff and him signatory to that decision. It was argued in favour of the Respondent that not minding the proviso in exhibit S.O. 31 that the computation was done as a concession, the Respondent was equally entitled as held by the trial Court to have his own terminal benefits based on those same terms and conditions. The learned counsel for the Respondent stated that the case of: U.B. Ltd. v. Edet (1993) 4 NMLR (Pt 287) p. 288, relied by the Appellant’s counsel is distinguishable from the instant matter in the sense that, the Appellant herein had in the past implemented of a couple of its employees. Whereas in that case, it was held that before parties can be bound by the terms of a collective agreement, such terms must be expressly adopted either in the letter of appointment or in a subsequent communication varying the terms of employment. In the same breath, the learned counsel for the Respondent submitted alternatively that, even if Exhibit S.O. 16 is a collective agreement, the current position of the law is that there can be an implied incorporation and incorporation by reference of its terms into the contract of employment. On this postulation, he relied on the cases of:
(1) Sugal v. Ridehagh (1930) ER All Rep. 288 and
(2) A.C.B. Plc. v. Nwodike (1996) 4 NWLR
The learned counsel for the Respondent reproduced in extenso, the findings of Tobi, JCA (as he then was), in the case of: A.C.B. Plc. v. Nwodika supra at pgs. 487 – 488. paras. H – B as follows:
It is clear from the state of the case law that where a collective agreement is incorporated or embodied into the conditions or contract of services, it will be binding on the parties, otherwise, no. The case law did not indicate what method will satisfy the incorporation or embodiment theory or practices. Is it by cross reference to the conditions or contract of service on the part of service to the collective agreement? Or is it by lifting specific sentence or sentences from the conditions or contract of service to the collective agreement? Or is it by interpolation? These are some of the technical commercial details, which the case law, probably understandably did not go to. I think the important thing is for the court to read the language of the two documents with the eyes of an eagle before taking decision. In the exercise, the court will be guided by the affinity of the language which must invariably draw the required legal nexus. In the absence of clear language, the court will not be wrong in searching for the real intention of the parties, and it is whether they really intended in a case of dispute that the two documents should be read together is the court’s duty to decide the case.(Underlined is for emphasis)
In my humble but firm view. The case of: A.C.B. Plc. v. Nwodika supra does not really advance the argument of the learned counsel for the Respondent. This is because the bottom line is that, the firm position of case law is that, to create a binding contract, parties must express their agreement in a form which is sufficiently certain for the courts to enforce. See also the cases of:
(1) Orient Bank v. Bilante Inter. Ltd. (1991) 8 NWLR (Pt. 515) p. 37 and
(2) Saka v. Ijuh (2010) 4 NWLR (Pt. 1184) p. 405.
In essence, the basic requirement under established case law is that, there must be a legal nexus between the conditions of services and the term of a collective agreement. This legal nexus in my opinion is the incorporation of the relevant terms of the collective agreement into the conditions of services. In the absence of clear language of incorporation, the courts have been enjoined to search for the real intention of the parties. In the instant case as I stated above, item 11 of the collective agreement, Exhibit S.O.16B is clearly not incorporated in the conditions of services, Exhibit S.O. “8” 1 – 34. Hence, it is the duty of the trial Court to search out the intentions of the parties. Obviously, from the tone of Exhibit S.O.31 upon which the trial court based its findings and which the Respondent relied upon, it is patently stated therein that, Mr. Ben Anazia, a former employee of the Appellant, was paid his gratuity entitlement using his basic salary, housing, transport and luncheon allowances on concessional grounds only, and that the case shall not be cited as a precedent in the future. The clear meaning of this is that, Mr. Anazia’s case was an aberration rather than a precedent. Incidentally, the Respondent was the representative of the Appellant at the meeting of the Appellant with the Industrial Union Leaders where the decision was taken. I am of the opinion and I hold that, it is crystal clear that it was not the intention of the Appellant and its employees, one of which was the Respondent, in the case of a dispute, that Exhibits S.O.”8″1 – 34 and S.O. 16B be read together. The sum total is that, the Respondent is only entitled to have his terminal benefits computed on his basic salary and not on the total emolument as agitated by him in tune with the conditions of service exhibit S.O.”8″ 1-34. Consequently, issue two is also resolved in favour of the Appellant.
On the whole, having resolved the two issues formulated for determination in favour of the Appellant, I hold that this appeal is meritorious and it is hereby allowed. It is ordered that the award of Fifty Thousand Naira (N50,000) made by the trial Court as damages for anxiety and inconvenience in favour of the Respondent was wrongly made and it is hereby set aside. It is further ordered that the Respondent’s terminal benefits shall be computed based on his basic salary at the time of the termination of his employment by the appellant.
I make no order for costs.
ALI ABUBABUBAKAR BABANDI GUMEL, J.C.A: I agree
CHIOMA AGONDU NWOSU-IHEME (Ph. D) J.C.A: I read in advance the lead Judgment of my learned brother OYEBISI FOLAYEMI OMOLEYE J.C.A. I agree that there is merit in the appeal. Accordingly, the Judgment of the lower court is hereby set aside. I also make no order as to costs.
Appearances
O. Ovrawah with him M.N. Aigbe and Miss U.S. AmadiFor Appellant
AND
For Respondent
