NIGERIAN NATIONAL PETROLEUM CORPORATION v. ISAIAH JACOBS & ORS.
(2012)LCN/5450(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of June, 2012
CA/B/63/2007
RATIO
”The trial Judge called the general damages awarded “nominal”. He must have a very dark sense of humor, one would say, Orwellian. Nominal damages means a very small or insignificant sum awarded primarily because you have won a case and not because you have really suffered any loss. For the court to call a N13.5 million damages “nominal” therefore beggars the imagination.” Per AGBO J.C.A.
APPEAL: PROLIFERATION OF ISSUES: THE ATTITUDE OF THE COURT WITH REGARD TO PROLIFERATION OF ISSUES
”Proliferation of issues has been consistently frowned at by the courts. However, it is only in Yadis Nigeria Ltd. vs. G.N.I.C. Ltd. (2007) 4 NWLR (Pt. 1055) 584 that the consequence for such proliferation seem to have crystallized. Onoghen, JSC at p. 612 had this to say:- “I have to observe that there is only one ground of appeal as is contained in the notice of cross-appeal filed on 5/10/06. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent.” Per AGBO J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
NIGERIAN NATIONAL PETROLEUM CORPORATION Appellant(s)
AND
1. ISAIAH JACOBS
2. AFOLAYAN K. RAPHAEL
3. PAUL A. EDOGBANYAN
4. MODUPE MICHAEL
5. JOHN IZEBHOR
6. MONDAY OMORUYI
7. ISAH AGUNU
8. PETER OGIEMANAGBA
9. ALFRED OREGBEMHE
10. ALBERT IRORERE
11. ELIZABETH STEPHENS Respondent(s)
RAPHAEL CHIKWE AGBO J.C.A. (Delivering the Leading Judgment): The respondents were temporary employees of the appellant. They were relieved of their employment by the appellant and each paid off with the sum of N100,000.00. Dissatisfied with the determination of their employment by the appellants they filed Suit No.FHC/B/CS/186/2004 wherein the appellants claimed in paragraph 29 of their amended statement of claim as follows:
“29. The plaintiffs claim from the defendant as follows:
(i) Declaration that the purported termination and dismissal of the plaintiffs by the defendant is wrongful, illegal, null, void and of no effect.
(ii) A declaration that the plaintiffs having put in between 8-12 years of selfless, tireless and meritorious service in the defendant’s company cannot be regarded as temporary staff but permanent staff.
(iii) An order that plaintiffs are entitled to all benefits and entitlements enjoyed by permanent staff upon the expiration of 6 months after their employment.
(iv) An order that the plaintiffs are also entitled upon termination of their employment to Pension and Gratuity and all other benefits applicable to permanent staff.
(v) The sum of N225,486,936.55 (Two hundred and Twenty-Five million, four hundred and Eighty-six thousand, Nine Hundred and Thirty-six Naira, fifty-five kobo) as shown in schedule “C” as special damages.
(vii) An order that the 2nd to 10th plaintiffs as public servants having worked and served the defendant for period exceeding (10) ten years are entitled to pension.
Pleadings were filed and exchanged. After hearing the parties and their witnesses and reading counsel’s written addresses the trial Judge adjudged as follows:
“In the final analysis, I hold that the plaintiffs have made out a very strong case which entitles them to the favourable judgment of this Honourable Court. Accordingly, I hereby make the following declarations and orders:
1. That the purported termination and dismissal of the plaintiffs by the defendant is wrongful, illegal, null and void and of no effect.
2. That the plaintiffs, having put in between 8-12 years of selfless, tireless and meritorious service in the defendant company cannot be regarded as temporary staff but permanent staff.
3. That the plaintiffs are entitled to all benefits and entitlements enjoyed by permanent staff upon the expiration of 6 months after their employment.
4. That the plaintiffs are also entitled upon termination of their employment to pension and gratuity and all other benefits applicable to permanent staff.
5. The sum of N225,486,936.55K (Two Hundred and Twenty-five Million, Four Hundred and Eighty-six Thousand, Nine Hundred and Thirty-six Naira and Fifty-Five kobo) being Special Damages is awarded in favour of the plaintiffs as shown in Schedule ‘C’ (of the Amended Statement of Claim).
6. General damages are assessed and fixed at a nominal Sum of N3.5 million payable to all the plaintiffs jointly and severally on an equal basis.
7. That the 2nd to 10th plaintiffs as public servants having worked and served the defendant for period exceeding 10 years are entitled to pension.
8. I make no award of costs.”
Dissatisfied with this judgment the appellant filed a notice of appeal containing only the omnibus ground. With the leave of this court the appellant on 11/3/2010 filed eight additional grounds of appeal. The grounds of appeal are set down hereunder:
“GROUNDS OF APPEAL
1. The judgment is against the weight of evidence.
2. The learned trial Judge erred in law when he failed to evaluate the evidence adduced before reaching his decisions.
3. The learned trial Judge erred in law when he failed to consider the evidence before him before finding that the plaintiffs were permanent staff and not temporary staff of the defendant.
4. The learned trial Judge erred in law when he held “I hereby answer in affirmative the two major issues raised by the plaintiffs” and yet held the “plaintiffs having put in between 8 to 12 years of selfless, tireless and meritorious service in the defendant company cannot be regarded as temporary staff but permanent staff”.
5. The learned trial Judge erred in law when he held that the only issue raised by the defendant worthy of mention at this stage is issue No. 5 as to whether the joinder of the plaintiffs together in one suit is not fatal to their case having regard to the fact that they have individual and separate contracts of employment or service with defendant.
6. The learned trial Judge erred in law when he held “I find no merit in the other 4 issues raised by the defendant in its learned counsel’s closing address”.
7. The learned trial Judge erred in law when he held that the issue of misjoinder of parties or causes of action in its pleadings is an abuse of process and ought to be struck out and that the defendant did not enter a conditional appearance which would have put the plaintiffs on enquiring.
8. The learned trial Judge erred in law when he held “the entire defence as put forward by the defendant in the trial therefore fails as lacking merit as I find a grave consistency in the application of their Internal Statutory Regulations to its employees, resulting particularly in their being contrary to natural justice, equity, good conscience, fair Play, rule of law and public policy”.
9. The learned trial Judge erred in law when he held that the plaintiffs have made out a very strong case which entitled them to the favourable judgment of the court.”
The parties exchanged briefs of argument in this court. The appellant formulated 7 issues for determination. The issues so formulated are as follows:
“1.07: The issues that arise for determination having regard to the grounds of appeal are as follows:
ISSUE 1
Whether in the absence of any evaluation of both the oral and documentary evidence particularly the appellant’s conditions of service (exhibits “D” and “E”) the learned trial Judge’s finding that the respondents were permanent and not temporary staff of the appellant was justified.
ISSUE 2
Whether having answered issue one raised by the respondents’ counsel in his address in the affirmative, the learned trial Judge was right to have held that the respondents were entitled to payment of pension and gratuity.
ISSUE 3
Whether the learned trial Judge was right when he held that all the issues except one, raised by the appellant lack merit considering the fundamentally of the said issues.
ISSUE 4
Whether a defendant who has not entered a conditional appeal or raised misjoinder in his pleadings could be held to have abused the process of court if same is raised at the close of each parties’ case.
ISSUES 5
Whether the finding of the learned trial Judge that there were grave inconsistence in the application of the internal statutory regulations of the appellants employees resulting particularly in their being contrary to natural justice, equity, good conscience, fair Play, rule of law and public policy is supported by evidence on record.
ISSUE 6
Whether having regard to the totality of the evidence adduced at the trial by the respondents the learned trial Judge was right in holding that the respondents proved their case as to entitle them to a favourable judgment.
ISSUE 7
Whether the learned trial Judge’s award of general damages of N13.5 million to the respondents is justified having regard to the circumstances of the case.”
The respondent on the other hand distilled 5 issues for determination to wit:
(1) Whether the alleged misjoinder of parties and causes of action by the respondents in this suit in all the circumstances of this case is fatal to the respondent’s case. (grounds 5 and 7 of the Amended Grounds of Appeal).
(2) Whether there is evidence in the record to justify the finding of the lower court that the respondents were permanent staff of the appellant and therefore entitled to terminal benefits of permanent staffs Grounds 1, 2, 3, 4 and 9 of the Amended Notice and Grounds of Appeal.
(3) Whether the learned trial Judge addressed/considered all relevant issues properly raised and arising for determination in this suit.
Ground 6.
(4) Whether there was evidence to justify the finding of the lower court that there were grave inconsistencies in the application of the internal statutory regulations of the appellants employees resulting particularly in their being contrary to natural justice equity, good conscience, fair Play, rule of law and public policy. Ground 8.
(5) Whether the award of general damages to the respondent for the breach of their contract was excessive in all the circumstances of this case.
Ground 10.”
The respondents raised preliminary objections to this appeal on two grounds:-
“TAKE NOTICE that the respondents herein intends at hearing of this appeal to rely upon the following preliminary objection: That two issues can not be formulated from one ground of appeal AND TAKE NOTICE that the ground of the said objection is as follows:
1. Issues I and 2 in the Appellants Brief of Argument were formulated from Ground 4 of the Appellants Amended Notice and Grounds of Appeal which renders the issues incompetent.
2. Grounds 8 of the Amended Notice and Grounds of Appeal and the issue 5 formulated therefrom in the Appellants Brief of Argument is incompetent as it did not attack the ratio decidendi of the judgment of the lower court.”
The appellant in its answer contained in its reply brief contended that stating in the appellant’s brief that issues 1 and 2 were formulated from ground 4 of the grounds of appeal was a mistake as one of the issues was infact distilled from grounds 2 and 3 of the grounds of appeal while issue 6 was distilled from ground 4 of the grounds of appeal, But the appellant took no steps to amend its brief of argument. One would have expected the appellant through counsel, upon its attention being drawn to the multiplication of issues for determination to take steps to rectify this anomaly. Having not done so, averring that the multiplication was a mistake does not in any way help the appellant. Proliferation of issues has been consistently frowned at by the courts. However, it is only in Yadis Nigeria Ltd. vs. G.N.I.C. Ltd. (2007) 4 NWLR (Pt. 1055) 584 that the consequence for such proliferation seem to have crystallized. Onoghen, JSC at p. 612 had this to say:-
“I have to observe that there is only one ground of appeal as is contained in the notice of cross-appeal filed on 5/10/06. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent.”
Flowing from the above judgment, the formulation of two issues from ground 4 of the grounds of appeal render the two issues incompetent. The effect is that grounds 2, 3 and 4 of the grounds of appeal are deemed to have been abandoned, no issue having been distilled from them.
The preliminary objection relating to ground 8 of the grounds of appeal and issue 5 distilled therefrom is without merit. Ground 8 of the grounds of appeal from which was distilled issue 5 by the appellant is at the core of the trial court’s decision and therefore proper before this court.
I shall first of all consider appellant’s issue 4 before going to other issues arising from the grounds of appeal. The said issue reads thus –
“Whether a defendant who has not entered a conditional appearance or raised misjoinder in his pleadings could be held to have abused the process of court if same is raised at the close of each parties case.”
This issue arose from the trial court’s refusal to avoid the suit on grounds of misjoinder. He gave three reasons for his failure to refuse to avoid the suit on grounds of misjoinder of parties and causes of action. These reasons were that (1) raising the issue of misjoinder at that stage constituted an abuse of process; (2) misjoinder of parties or causes of action is not fatal to the suit; (3)The defendant did not enter a conditional appearance. The appellant has challenged the conclusion that raising the issue of misjoinder constituted an abuse of process and that the defendant did not enter a conditional appearance but kept quiet on the fact that a misjoinder is not fatal to the suit. Having not challenged that, the avoidance of the challenge to the suit on grounds of misjoinder stands. Issue 4 and ground 7 from which it was distilled therefore constitute an academic exercise which is not a forte of the courts. Ground 7 fails and it is hereby dismissed.
Appellant’s issue 3 derived from grounds 5 and 6 of the grounds of appeal read thus:-
“Whether the learned trial Judge was right when he held that all issues except one raised by the appellant lack merit considering the fundamentality of the said issues.”
Along the same line the respondents’ issue 3 reads thus:-
“Whether the learned trial Judge addressed/considered all relevant issues properly raised and arising for determination in this suit.”
In its written address before the court below, the appellant, taking into consideration the pleadings, evidence and the law relating to the dispute before the trial court raised the following five issues for determination to wit:-
“ISSUES
1. Whether the status of the plaintiffs as temporary staff or employees of the defendant changed to permanent staff simply because their employment exceeded 6 months.
2. Whether, if question 1 above is answered in the negative, the plaintiffs are entitled to the terminal benefits such as gratuity and pension which are exclusively reserved for confirmed permanent staff of the defendant.
3. Whether in law, the defendant’s termination of the plaintiffs’ employment can be said to be wrongful, illegal, null and void and of no effect whatsoever and
4. Whether the plaintiffs were public servants in the sense of implying civil servants as to entitle them to the benefits thereof.
5. Whether the joinder of the plaintiffs together in one suit is not fatal to the case having regard to the fact that they have individual and separate contract of employment with the defendant.
To determine this issue it is pertinent that I look at how the trial court dealt with these issues. This can be found at pages 190 to 191 of the record of appeal where the trial Judge stated thus:-
“I have thoroughly examined all the processes filed by the parties evaluated the evidence of PW1, PW2 and DW1 as well as considered the detailed submission of both learned counsel and all the authorities cited by them, I hereby answer in affirmative the two major issues raised by the plaintiffs counsel, namely:
1. Whether having served the defendants for a period exceeding 6 months contrary to the Contract of Service and Conditions of Service as contained in the Defendants Hardbook (Exhibits ‘D’ & ‘E’), can the plaintiffs be regarded as temporary staff and not permanent/pensionable staff?
2. Whether the plaintiffs as at the time their employments were terminated were public servants as to entitle them to the benefits accruable to public servants upon termination of employment. Having answered the 2 questions in the affirmative, it follows automatically that they are entitled to all their terminal benefits as permanent staff, which includes pension and gratuity.
The only issue raised by the defendant worthy of mention at this stage is issue No.5 as to:
Whether the joinder of the plaintiffs together in one Suit is not fatal to their case having regard to the fact that they have individual and separate contracts of employment of service -with the defendant.”
In the light of the issues raised in the pleadings of the parties before him and the law relating thereto, the trial Judge clearly dealt with the issues raised by the appellant in a most cavalier manner. The appellant is a creation of statute. But that does not automatically confer on its contract of employment with its employees a statutory flavour. It was not pleaded anywhere that the statute creating the appellant made applicable to its employees the Civil Service Rules of the Federation or any State. Rather the suit was founded on the breach by the appellant of a term in their contract of employment contained in a handbook which term states that the respondent’s temporary employment would last for a period not exceeding 6 months. The respondents’ employment therefore did not have statutory flavour but a simple master-servant relationship. Suits for wrongful dismissal are founded on the terms of the contract for employment which terms must be pleaded and proved by the claimant. See Olanleye v. Afro-continental Nigeria Ltd. (1996) 7 NWLR (pt. 458) 29; Amodu vs. Amodu (1990) 5 NWLR (Pt. 150) 356; British Airways vs. Makanjuola (1993) 8 NWLR (Pt.311) 276. In considering the liability or otherwise of the parties under the contract, a court of law will not venture beyond the confines of the contract in search of greener conditions to favour one of the parties. The court must instead construe the terms to bring out the clear intention of the parties and nothing more, since by entering into the contract the parties are taken to have agreed to be bound by its terms. See British Airways vs. Makanjuola supra. The respondents as plaintiffs first claimed on the breach of a term of contract contained in the hand book and then sought reliefs pursuant to rules affecting public servants which specific rules were not referred to. In any case there is no set of rules rating to every public servant. To worsen matters the respondents led evidence to show that they were not even aware of the handbook until their appointments were terminated. In other words, if the trial court believed their story, they were not ad idem with the appellant on the terms contained in the handbook. Can it therefore be said that the respondents established before the trial court the terms of their contract of employment and their entitlement to the prayers contained in their pleadings? The trial Judge concluded on this issue thus –
“I find no merit in the other 4 issues raised by the defendant in its learned counsel’s closing address. The entire defence put forward by the defendant in this trial therefore fails as lacking merit as I find a grave inconsistency in their application of their internal statutory Regulations to its employees, resulting particularly in their being contrary and repugnant to natural justice, equity, good conscience, fair Play’ rule of law and public policy.”
This is clearly perverse. The trial court went completely outside the confines of the terms of the contract contained in the handbook in search of greener conditions in favour of the respondents. The highest that can be said of the appellant allowing the respondents to serve for more than six months is that the appellant had waived that term of the contract of service. The trial court deliberately ignore salient issues raised by the appellant in the determining the suit. Appellant’s grounds 5 and 6 succeeds.
From the analysis above, appellants issues 5 and 6 distilled from grounds 8 and 9 of the grounds of appeal also succeed. The respondents not having established the terms of their contracts of employment with the appellant and the breach thereof could not have been entitled to any of their prayers.
Issue 7 is “Whether the learned trial Judge’s award of general damages of 13.5 million to the respondents is justified having regard to the circumstances of the case.”
The trial Judge called the general damages awarded “nominal”. He must have a very dark sense of humor, one would say, Orwellian. Nominal damages means a very small or insignificant sum awarded primarily because you have won a case and not because you have really suffered any loss. For the court to call a N13.5 million damages “nominal” therefore beggars the imagination.This sum is outrageous bearing in mind that the damages for wrongful dismissal is either the sum the plaintiff would have earned or the value of one or three months salary in lieu of notice depending on the circumstance. In the instant case the trial court had awarded all the sums of money the respondents had claimed they were entitled to i.e. N225,486,936.55K and pension and gratuity. It is to be noted also that the respondents’ case at the trial court were several as each plaintiff made a distinct case. They could therefore not have been awarded damages ‘Jointly”. How will they share it? In the circumstance of this case the respondents were not entitled to the general damages awarded.
This appeal succeeds and it is hereby allowed. The judgment at the trial court is hereby vacated and in its place is entered a verdict of dismissal. There shall be no order as to costs.
GEORGE OLADEINDE SHOREMI, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Raphael Chikwe Agbo JCA, I agree with his reasoning I also agree that the appeal is meritorious and it is allowed.
The judgment of the trial court is vacated and in its place I enter a verdict of dismissal. No order as to cost.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I had the privilege of reading in advance the exhaustive judgment of my learned brother, R.C. AGBO JCA.
I agree with the said judgment just pronounced and that the respondents were not entitled to the general damages awarded by the court below. It is for this reason and other reasons more elaborately made in the lead judgment that I too hold that this appeal has merit and should be allowed. Accordingly, I allow the appeal and abide by the order as to costs.
Appearances
E. F. OsifoFor Appellant
AND
S. O. Nwoke for Chris AghojaFor Respondent
