NIGERIAN ACADEMY OF SCIENCE v. DR INYANG EKANEM & ANOR
(2018)LCN/12301(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/L/405M/2010
RATIO
CONTRACT: WHETHER TO ABIDE WITH TERMS OF EMPLOYEMENT
“It was also part of the terms of employment that upon resignation if quantified, the sums due to him would be paid. In my view he resigned and his entitlement was deliberately withheld. This amounts to a breach of the terms therein and he was therefore by law entitled to damages. In SAIHU ABDULAZIZ & ANOR v HON. ATTORNEY GENERAL OF FEDERATION (2013) LPELR-22128 (CA) BADA, JCA held that: ‘General damages is quantifiable or calculated by relying on what would be in the opinion of a reasonable man since general damages is always at large, the trial Court may also take into account the motive and conduct of the defendant where in aggravate the claimants injury, see GKF INVESTMENT LTD v NIGERIAN TELECOMMUNICATION PLC [2009] 15 NWLR (PT 1164) Pg 344 TANKO v MAI-WAKA (2010) 1 NWLR (PT. 1176) Pg 468 ALUMINIUM MANUFACTURING CO. NIGERIA v VOLKSWAGEN OF NIG [2010] 7 NWLR (PT 1192) Pg 97.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: FAILURE TO ATTEND PRE-TRIAL
“This appeal largely dwells on the effect of a pre-trial Conference under the Lagos State High Court (Civil Procedure) Rules. A pre-trial conference under Order 25 Rules 6(a) provides that: “If a party or his legal practitioner fails to attend the pretrial conference or obey a scheduling or pretrial order or is substantially unprepared to participate in good faith the judge shall (a) In the case of the plaintiff dismiss the claim (B) In the case of a defendant enter final judgment against him. Any judgment given under this rule may be set aside upon application made within 7 days of judgment or such other period as the pretrial judge may allow not exceeding the pretrial conference period” See ACCESS BANK PLC v MRS ADERONKE FOLASHADE SIJUWADE (2016) LPLER-40188(CA). Whether a pre-trial judgment such as in this appeal is not final? I have perused the records of appeal and find that the Appellant failed repeatedly to attend the scheduled dates despite service on him; hence judgment was entered against him. See pages 166 of the record.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
NIGERIAN ACADEMY OF SCIENCE Appellant(s)
AND
1. DR INYANG EKANEM
2. UNITED BANK FOR AFRICA Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an appeal flowing from the judgment of the High Court of Lagos (coram WILLIAMS, J) delivered on the 16th day of May, 2007, whereby judgment was entered for the claimant/1st Respondent per the 1st and 2nd claims endorsed on the Writ of Summons and in paragraph 12 of statement of claim in Order 25 Rule 6 (b) of Rules of Court.
The facts of the case are that the claimant/1st Respondent was offered an appointment by the defendant/Appellant as an Administrative Secretary on the 14th day of March, 1994. He resigned after many years and demanded for payment of his benefits/entitlements of N942,373.48 which was not paid, hence the suit was instituted.
The claims were granted at pre-trial stage pursuant to Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules, 2004. The Appellant was dissatisfied with the decision of learned trial judge awarding N5 Million general damages for breach of contract, against the same and filed a Notice of appeal dated 30th November, 2010.
The Appellant filed its brief of argument on 15th May, 2012 deemed 13/6/16, and reply brief on 21/3/17 deemed 14/11/18 where two issues were distilled thus:
1. Whether there was any breach of contract to justify the award of N5m general damages by the learned trial judge and the award can be sustained in view of the pleadings.
2. Whether the award of N5 Million as general damages is double compensation, excessive gratuitous and on sentiment.
1st Respondent brief was filed on 19th December, 2011, further deemed 13th June, 2016 made by Mike Umonnan of Mike Umonnan who also distilled two issues
1. Whether the 1st respondent needed to prove any breach of employment at the pretrial stage of the case to be entitled to the damages awarded.
2. Whether the judgment of the trial Court is supported by Order 25 Rule 6(a) of the High Court of Lagos (Civil procedure) Rules 2004.
2nd Respondent brief filed 16th March, 2011 deemed 13th June, 2016 by Imoh Gideon Udofia of Valour Chambers wherein he formulated:
“Whether the Appellant’s Notice of Appeal discloses any ground of appeal against the 2nd Respondent.”
I shall first deal with the 2nd Respondent’s sole issue which is a jurisdictional issue. See MADUKOLU & ORS v NKEMDILIM (1962) LPELR 24023(SC).
The 2nd Respondent contends that it is only the parties to an action that can complain about its proprietary or otherwise and the 2nd Respondent not being a party to the suit at the lower Court cannot be dragged in at the appeal stage. He relied on A. G. ANAMBRA STATE v OKEKE (2002) ALL FWLR 112; KALAGBOR v INEC (2009) ALL FWLR 483 at 1339; SANUSI v MODU [1994] 5 NWLR (PT. 374) 732. He contended that the 2nd Respondent is not a necessary party and there is no complaint against him in the Notice of Appeal and therefore the Court lacks jurisdiction and should be struck out.
The Appellant’s reply brief to the 1st Respondent did not contain submissions in response to the 2nd Respondent, therefore this Court shall examine this jurisdictional issue.
In CHIEF GABRIEL FOLORUNSHO OJO & ANR v CHIEF SAMUEL DADA AKINYEMI (2013) LPELR ? 22139 (CA), GALINJE, JCA at Page 12, paras B-E held thus:
“Both counsel for the Appellants and the respondent in formulating issues for determination of this appeal referred to the parties to this appeal as plaintiffs and defendants. Such parties are unknown to the proceedings at Court of appeal. The parties before this Court are either Appellant and Respondent or applicant and Respondent. Counsel appearing before this Court must make it a duty to set out the parties correctly, or it will be taken that proper parties are not before the Court. Plaintiffs and Defendants are strange parties in appeal processes and should not be reflected as parties before this Court. The parties on the Appellants’ notice of appeal are Appellants and Respondent. Any party that is different from the ones on the notice of appeal, is a stranger to the appeal, as such any argument on his behalf will surely go to no issue. DUZU v YUNUSA [2010] 10 NWLR (1201) 80 at 103 para H. See OJO & ANOR v AKINYEMI (2013) LPELR -22139 (CA); ISAIAH & ANOR v ASSOR & ANOR (2011) LPELR 4136(CA).
At page 1 of the record of appeal is the Writ of Summons and Statement of claim at page 3 filed on 15th March, 2006 together with the judgment at page 244 respectively have the parties as; Dr. IYANG A. EKANEM AND THE NIGERIAN ACADEMY OF SCIENCE throughout. The name of the 2nd Respondent was introduced at page 257 as GARNISHEE in an ex-parte application wherein decree nisi was granted, which was later made absolute in a Ruling on 6th December, 2009, but the 2nd Respondent’s name is missing in the enrolled order of 6th October, 2009. Again in the enrollment of order, the name of the Garnishee appeared wherein the Court refused to set aside the Garnishee order made on 18th November, 2009.
The Notice of Appeal at page 273 has the name of the 2nd Respondent but in all the grounds there is no complaint against the 2nd Respondent. The appeal is against the judgment, specifically against the award of N5Million as damages on the alleged breach of contract judgment of the Court and NOT the Garnishee order.
Following the decision of this Court and the Apex Court the 2nd Respondent is neither a necessary or nominal party and by virtue of Order 6 Rule 6 of Court of Appeal Rules, the name of the 2nd Respondent is hereby struck out, with N100,000 cost against the Appellant.
MERITS OF THE APPEAL
The Appellant submitted on his issue 1 that admission needs not be proved, that it is not in dispute that the appointment of the Respondent was not terminated, and that the reliefs sought are for breach of contract and the Respondent was awarded general damages as claimed in paragraph 12(3) which is for breach of contract of employment. Appellant relied on AIR VIA LTD v ORIENTAL AIRLINES LIMITED [2004] 9 NWLR (PT. 878) PG 298 NIGERIA AGRICULTURAL AND COPERATIVE BANK LTD v PETER ACHA GWA [2010] NWLR (PT. 1205) PG 339 Appellant submitted that the Court needed to inquire into the employment because the Respondent had a duty to prove the amount of damages.
Appellant contended that no breach of contract was alleged to entitle the Respondent to an award of damages. He relied on NNB PLC v ALHAJA MSA ABUBAKAR & SONS [2004] 17 NWLR (PT. 901) PG 81.
The 1st Respondent on the other hand referred to ELIOCHIN v MBADIWE [1986] 1 NWLR (PT. 14) 47; TAO & SONS INDUSTRIES LTD v GOV OF OYO STATE & ANOR (2011) 17 WRN 157 and submitted that the damages was rightly granted. The 1st Respondent stated that from the provision of Order 11 Rule 1 & 5(2) of the High Court of Lagos State Civil Procedure Rules, 2004, the Respondent does not need to enter into the witness box to give evidence as the written statement on oath is regarded as his evidence before the Court. He further relied on OCEANIC BANK INT. LTD v CHITEX IND. LTD [2000] FWLR (PT. 4) 678 on the definition of breach of contract and submitted that breach of contract has been established.
ISSUE TWO
The Appellant referred to the Writ of Summons and Statement of Claim which is the details of benefit/entitlement that same was granted at pre-trial conference without the minimum proof required. He contended that the additional grant of N5 Million amounted to double compensation. He relied on NNPC v SELE [2004] 5 NWLR (PT. 866) Pg 379; BENEDICT OLUIGBO & ORS v GODFREY UMEH [2004] 6 NWLR (PT. 870) Pg 621; NNB PLC v ABUBAKAR (SUPRA).
The 1st Respondent in response submitted that by the reason of Order 25 Rule 6(a) High Court of Lagos State Civil Procedure Rules, 2004, the judgment is a final judgment. He relied on WORLD MISSION AGENCY INC v SODEINDE (2010) 12 WRN 149; AKINSANYA v UBA (2001) 42 WRN 67; AKOH v ABUN [1988] 3 NWLR (PT. 85) 698; IWUEKE v IBC (2006) 1WRN 32.
Respondent submitted that the Court was in order when she granted the claims. He relied on OLUSUOOKUN v POPOOLA & 4 ORS (2010) 5 WRN 80; THE HONDA PLACE LTD v GLOBE MOTORS HOLDINS LTD (2005) 7 SCNJ 522 AND ONYEABUCHI v INEC (2002) 29 WRN 64
In its reply brief, the Appellant submitted that new issues were raised by the Respondent in paragraphs 4-7 and 4-10 in its brief wherein he said that the suit was brought under an undefended list in Order 11 of the High Court of Lagos State Civil Procedure Rules, 2004 and that the pre-trial conference was a final judgment. He relied on POPOOLA v ADEYEMO [1992] 8 NWLR (PT. 257) 1 at Pg32, paras B-D to contend that the Appellant had filed a Statement of defence to the application of 13th March, 2006, and that the suit did not proceed to pre-trial conference as undefended action. He submitted that it was the Respondent who applied for trial on 19th September, 2006. He relied on OBARO v HASSAN [2013] NWLR (PT. 1357) Pg 425 to contend that a defense must not have been filed for summary judgment to proceed.
The Appellant referred to Order 25 Rule 6(a) of the High Court of Lagos State Civil Procedure Rules, 2004 dealing with pre-trial conference and scheduling that a judgment obtained under this order can be set aside within 7days of the judgment and therefore cannot be a final judgment. He relied on ALOR v NGENE [2007] 17 NWLR (PT. 1062) PAGE 163 at 177, paras D-E. He urged the Court to hold that pre-trial judgment is not a final decision and set aside the award of damages.
RESOLUTION
This Court shall resolve the two issues together and shall adopt the Appellant’s issues for determination whilst taking into account the Respondent’s submissions.
This appeal largely dwells on the effect of a pre-trial Conference under the Lagos State High Court (Civil Procedure) Rules. A pre-trial conference under Order 25 Rules 6(a) provides that:
“If a party or his legal practitioner fails to attend the pretrial conference or obey a scheduling or pretrial order or is substantially unprepared to participate in good faith the judge shall (a) In the case of the plaintiff dismiss the claim (B) In the case of a defendant enter final judgment against him. Any judgment given under this rule may be set aside upon application made within 7 days of judgment or such other period as the pretrial judge may allow not exceeding the pretrial conference period” See ACCESS BANK PLC v MRS ADERONKE FOLASHADE SIJUWADE (2016) LPLER-40188(CA).
Whether a pre-trial judgment such as in this appeal is not final? I have perused the records of appeal and find that the Appellant failed repeatedly to attend the scheduled dates despite service on him; hence judgment was entered against him. See pages 166 of the record.
Furthermore, the Appellant failed to avail himself of the obligation the law placed on him when after filing to set aside the judgment he again abandoned same which was struck out. See page 171 of record.
A repeated attempt to change counsel and move to set aside the judgment was made by Fadahusi, Esq at page 195-199 of the record but the pre-condition of paying cost before same is made was not fulfilled hence for the second time this application was thrown out (pages 267 – 268) and under the circumstances the judgment translated to a final judgment.
In SAM EGBUCHUNAM v MR MIKE AIDEYAN & ORS (2012) LPELR-7996 (CA) DANJUMA, JCA stated that:
“…The reason are that the claims were not proved and more so the award were at variance with the claims. It is my view that so long as the Court is to enter final judgment for a claimant when the Defendant fails to appear at a pretrial conference, it is that rule of Court that should be enforced, a Court cannot recreate another procedure by converting this mandatory procedure to another with a view to making a case on its merit for the appellant. it is not the business of the Court to so do, as it must be even handed in holding the scale of justice? Both parties and the Court are bound to observe the rules of Court, see CCB (NIG) PLC v A.G. ANAMBRA [1992] 8NWLR (PT 216) 528”
The Respondent was again right when he submitted that the use of the word ‘shall in the said Order 25 Rule 6 signifies a compulsion or obligation or mandatory on the part of the judge to take the decision of dismissal in the circumstances. See OJULG v INEC…’ I adopt the above reasoning as mine in this appeal.
Now the issue of the award of damages shall be addressed.
The Respondent had stated that he was entitled to this sum since his retirement. The Appellant filed a defense but failed to attend the defense of the case despite several letters to him and hearing notices. He chose to hold the hand of the Court up, in spite of the purpose of a pre-trial conference. The lower Court found that this payment was due since September, 2003 but the Appellant kept mute thereby frustrating the efforts of the Respondent. It was also part of the terms of employment that upon resignation if quantified, the sums due to him would be paid. In my view he resigned and his entitlement was deliberately withheld. This amounts to a breach of the terms therein and he was therefore by law entitled to damages.
In SAIHU ABDULAZIZ & ANOR v HON. ATTORNEY GENERAL OF FEDERATION (2013) LPELR-22128 (CA) BADA, JCA held that:
“General damages is quantifiable or calculated by relying on what would be in the opinion of a reasonable man since general damages is always at large, the trial Court may also take into account the motive and conduct of the defendant where in aggravate the claimants injury, see GKF INVESTMENT LTD v NIGERIAN TELECOMMUNICATION PLC [2009] 15 NWLR (PT 1164) Pg 344 TANKO v MAI-WAKA (2010) 1 NWLR (PT. 1176) Pg 468 ALUMINIUM MANUFACTURING CO. NIGERIA v VOLKSWAGEN OF NIG [2010] 7 NWLR (PT 1192) Pg 97.”
Therefore having gone through frontloaded documents, pleadings and the conduct of the Appellant, the pre-trial judge was bound to enter judgment and award the general damages flowing from the deliberate and unjustifiable withholding of the Respondent?s entitlements for over 3 years.
Furthermore, the wordings of Order 25 of the High Court of Lagos State Civil Procedure Rules, 2004 brooks no evidence viva voce. All that was needed was present for the Court to evaluate.
Therefore this Court cannot upturn what the Appellant brought upon himself.
This appeal therefore fails and it is accordingly dismissed. The judgment of the lower Court coram WILLIAMS, J delivered on 16th May, 2007 is accordingly affirmed. Costs of N200,000 is awarded in favour of the Respondent.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and I do not desire to add to, the reasoning and conclusion in the leading judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, which I was privileged to read in draft.
For the same reason therein contained, I equally join in dismissing the appeal. I abide by the order as to costs.
TOBI EBIOWEI, J.C.A.: I agree.
Appearances:
T.O.S. Fadahunsi with him, Abiola OlowoFor Appellant(s)
Respondent not represented
For Respondent(s)
