NIGERIAN ROMANIAN WOOD & ANOR V. J. O. AKINGBULUGBE (2010)

NIGERIAN ROMANIAN WOOD & ANOR V. J. O. AKINGBULUGBE

(2010)LCN/4093(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 7th day of December, 2010

CA/B/73/2009

RATIO

WHETHER A TRIAL JUDGE IS NOT PERMITTED TO APPLY THE PRINCIPLES OF A CRIMINAL CASE IN A CIVIL CASE EVEN WHERE THE ISSUES INVOLVED ARE THE SAME; WHETHER THE FAILURE OF A DEFENDANT TO CALL EVIDENCE WILL MEAN AUTOMATIC SUCCESS FOR THE PLAINTIF

There is no law or rule of practice known to me which precludes a trial judge from relying on the principles of a criminal case in a civil case where the issues involved are the same. In Ali v. The State (supra). The Supreme Court held that when an accused rests his case on that of the prosecution, as he is entitled to under the Criminal procedure Act, it means no more than that the accused does not wish to place any fact before the court other than those which the prosecution had presented in evidence. In the same vein if a defendant in a civil suit, after filing his statement of defence decides not to lead evidence on it, what it means is that he does not want or think it is necessary to place any fact before the court, other than those presented by the plaintiff. It is quite possible in a criminal case that even if all the witnesses presented by the prosecution are believed, the ingredients of the offence charged may not be proved. In such a situation the failure of the accused to call evidence would not work against him. Also in a civil matter if the plaintiff was unable to prove his case as required by law based on the facts he presented before the court, the fact that the defendant called no evidence would not work against the defendant. In other words while the learned trial judge did not err in relying on a criminal case, with all due respect’ he completely misconceived the law in holding that the failure of the defendant to offer evidence in support of his defence raised a presumption of credibility in favour of the plaintiff in the circumstances of this case. The misconception became more confounded when the learned trial judge said at page 139 of the record of Proceedings: “it means that everything said by the plaintiff in his evidence before this court is TRUE because such evidence was not contradicted or controverted by another parallel evidence. By the same token, the submissions by Counsel to the plaintiff are to be similarly treated. And I hereby accept mutatis mutandi all the legal submissions of the plaintiff’s counsel. I also for the reasons given above reject all submissions of the defence counsel because they lack the necessary substratum to sustain them”‘ This is fallacy. What it means is that even if a legal point made by counsel for the plaintiff in his written address is not the law, the learned trial judge would accept it because the defendant abandoned his statement of defence by not calling witnesses and for the same reason would also not consider any issue raised in the defendant’s address. With all due respect to learned trial Judge, the failure of the defendant to call witnesses should not absolve the plaintiff of the burden of proving his case as required by law. All the facts he presented may be true, but if for example in a criminal case, the ingredients of the offence charged are not established, the accused would go free, notwithstanding that he did not call any witness. Similarly in a civil case, if the plaintiff fails to prove his case, he would lose, notwithstanding that the defendant called no witness. What I am trying to say is that failure of a defendant to call evidence does not mean automatic success for the plaintiff, which the impression is created by the views of the learned trial Judge. See Neka B.B.B Manufacturing Co. Ltd v. A.C.B Ltd (supra): or (2004) 2 NWLR (Pt 858) 521 @533:- “Evidence not challenged by a party that had the opportunity to do so should ordinarily be believed and awarded credibility. However, such evidence must be capable of being believed even if not challenged. In other words when the evidence is weak in content as not to assist the court or is manifestly unreasonable or is devoid of any substance as not to help to resolve the matter in issue it will be safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true, it is also true to say that the court is not in a circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case'” The point was put more succinctly in the case of A.G. Oyo State v. Fairlakes Hotels (no.2) (supra) where the supreme court held that the general rule that a trial court can accept and act on the uncontradicted oral evidence of a plaintiff applies only where the evidence adduced by the plaintiff establishes his claim against the defendant in terms of his writ. So the plaintiff still has the burden of proving his case as required by law. The burden is not discharged simply because the evidence is uncontradicted. PER CHINWE E. IYIZOBA, J.C.A.

BURDEN PLACED ON A PLAINTIFF WHO COMPLAINS THAT HIS EMPLOYMENT HAS BEEN WRONGFULLY TERMINATED

Generally, a plaintiff who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts:- 1. That he is an employee of the defendant 2. The terms and conditions of his employment 3. The way and manner and by whom he can be removed See Ujam v. I.M.T. (2007) 2 NWLR (Pt.1019) 470 @ 489. Further, the Supreme Court in the case of Ziideeh v. R.S.C.S.C. (2007) 3 NWLR (Pt.10221 554 @ 570 held that when an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the contract of employment and to prove in what manner the said terms were breached by the employer. It was held not to be the duty of the employer to prove any of these facts. See also Edet v. Chief of Air Staff [1994] 2 NWLR [Pt. 324] 41 @58 E-F. PER CHINWE E. IYIZOBA, J.C.A.

SPECIAL DAMAGES: HOW SPECIAL DAMAGES MUST BE PLEADED

The law is that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence’ See Gonzee (Nig.) Ltd v.NERDC (2005) 13 NWLR(Pt 943)634 @ 649-650; Dumez (Nig) Ogboli (1972) 1 All NLR 241. PER CHINWE E. IYIZOBA, J.C.A.

SPECIAL DAMAGES: DUTY PLACED ON A PLAINTIFF IN AN ACTION FOR SPECIAL DAMAGES FOR WRONGFUL TERMINATION OF EMPLOYMENT

It is expected that in an action for special damages for wrongful termination of employment, the plaintiff in his statement of claim would make specific averments as to what exactly his entitlements under the contract of employment were and where possible, also plead the document embodying the entitlements. The respondent herein made no such averment in his entire 25 paragraph further amended statement of claim. But in his final paragraph 26 (the relief paragraph), he claimed in the alternative the sum of N1, 594, 122.60k as special damages; and thereafter, set out particulars of the items of special damages. To make matters worse, he did not lead oral evidence of these items of special damage. The respondent closed his evidence by urging the court to grant him all the reliefs as contained in his statement of claim. Not having given oral evidence of the items, he deprived the appellant of the opportunity to test his credibility on the truthfulness of his claims by cross-examination. The position therefore is that the items of special damages were not specifically pleaded or even if they were, they are deemed abandoned, the respondent not having led evidence on them. See Ujam v. I.M.T. (supra) pp 492-493. PER CHINWE E. IYIZOBA, J.C.A.

ADDRESS OF COUNSEL: WHETHER AN ADDRESS OF A COUNSEL CAN BE SUBSTITUTE FOR PLEADINGS

An address can never be substituted for pleadings. PER CHINWE E. IYIZOBA, J.C.A.

EFFECT OF A STATEMENT OF CLAIM SIGNED BY A LAW FIRM

…it is necessary to point out that the statement of claim in the lower court was signed by a law firm, Fola Akinrinsola and company. The position of the law now is that such statement of claim is fundamentally defective since it is neither signed by the plaintiff or a legal practitioner as the law firm is not a legal entity known to law. See Oketade v. Act, 2004: Okafor v Nweke [20071 10 NWLR (Pt.1043] 521. There are cases which suggest that the term “legal Practitioner” should be given a liberal interpretation; that where a legal practitioner gives the name under which he is registered as a business name, this can only refer and apply to the legal practitioner who so holds himself out as practicing under that business name. See Registered Trustees of Apostolic Church v. Ikindele (1967) 5NSCC 117: or (1957) 1 All NLR 110: Cole v. Martins & Anor (1968) NWLR 217 or (1968) 5 NSCC 120; Buhari v. Yabo (2006) 17 NWLR (Pt.1007) 162 @ 178H-181C. It is however not in doubt that a law firm or business name is not and can never qualify as a legal practitioner within the meaning of Section 24 Legal practitioners Act and there is no reason why counsel cannot adhere to the provisions of the Laws of the Land especially with the plethora of decided case on the issue. Lawyers are supposed to know the law and to comply with it. As stated by Oguntade JSC (Rtd) in Okafor v. Nweke (supra): “The argument that it is over adherence to technicality to annul the process improperly signed and filed…..fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with court rules” PER CHINWE E. IYIZOBA, J.C.A.

JUSTICES

NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria

CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria

M.A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

NTGERIAN ROMANIAN WOOD
INDUSTRIES LTD (NIROWI) Appellant(s)

AND

J. O. AKINGBULUGBE Respondent(s)

CHINWE E. IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal from the judgment of
Adegbenro J. of the Ondo High Court delivered on the 14th day of April, 2008. The plaintiff in the said High court claimed against the defendant in his further amended statement of claim as follows:-
(a) “A declaration that the purported termination of the plaintiff as Acting managing director of the defendant company pursuant to the letter of termination dated the 11th day of September, 1992 is irregular, illegal, unlawful, gross violation of the provisions of the conditions of service of the defendant’s company and rules of natural
justice, null and void and of no effect whatsoever.
(b) An order reinstating the plaintiff into the employment of the defendant company as Acting Managing Director with all rights, privileges and benefits of the office
IN THE ALTERNATIVE
The plaintiff claims against the defendant the sum of one million, five hundred and ninety four thousand, one
hundred and twenty-two naira sixty kobo as special damages for wrongful termination of appointment.
PARTICULARS OF SPECIAL DAMAGES
1. Salary per annum at N33, 400.00 from Sept 1992- Dec 2002  N   K
With 10% annual increase                                           596,674. 61
2.Pension funds contributions at 15% annual salary of N18, 561.00
i. From Dec 1989 – July 1990                           1,856.   10
ii. From August 1990-August 1992 at N25, 521.38 annual Salary 7,656. 41
iii. From Sept 1992- Dec 2002 at the annual salary of N33, 400
With 10% Yearly increase                                  87,831  08
Sub total pension contributions                          97,343  59
Gratuity [1989 -2002] 13 Years                         71,011  72
Leave Allowance at 5% of annual salary with 10% annual
Salary increase from N33, 400.00                   30,947  08
5. Leave days 40 days per year commuted to cash
At 1992 -2002                                         67,829.  16
6. Food subsidy at N50 per day Sept 1992 – Dec 2002 180,000.  00
7. Transport allowance at N100 per day from Sept 1992- Dec. 2002. 360,000.00
8. Housing allowance at N4, 640.28 per annum 1992-2002  47,949.    56
9. Medical Allowance att2t/zxof annual salary 1992 -2002   77,367    00
10. Entertainment allowance at N500 per month Sept 1992 -2002. 60,000  00
11. Christmas Bonus N500 per annum from 1992 -2002    5,000   00
TOTAL                                                         1,594,122. 60
The parties filed and exchanged pleadings – further amended statement claim dated 26/6/96, further amended statement of defence dated 29/1/07 and reply to the statement of defence dated 14/3/96. The facts of the case are not in dispute. The plaintiff was a civil servant in the Ministry of works and had risen to the rank of Chief Mechanical Engineer when he left the civil service and took up employment with the defendant company as Deputy General Manager on probation for a period of one year based on a letter of employment dated 16/11/89, Exhibit A. The appointment was confirmed by a letter dated 28/11/90, Exhibit B. By another letter dated 30/7/90 Exhibit c, he was promoted to Acting Managing Director. The plaintiff’s appointment was terminated by a letter dated 11/9/92 Exhibit F. The termination was as a result of the role the plaintiff played in saving the defendant company from being sold by the Technical committee on privatization and Commercialization of Government Properties in collusion with one Olu Adegbite a Director of the company for less than N30, 000, 000. 00 when the company had earlier been valued for N700, 00, 000.00. He was able to do this by getting the company lawyer to file a suit on behalf of the company at the Federal High Court opposing the sale. Before the termination of the plaintiff’s appointment, the Board of the defendant company had by a letter dated 7/9/92, Exhibit E invited him to appear before the Board on 11/9/92 to explain the unilateral legal actions. On the same day he appeared before the board, he was given the letter terminating his appointment. The plaintiff being aggrieved by this filed a suit at the Ondo High Court claiming as set out above. At the trial, the plaintiff testified on oath and called no other witness. Although it filed a defence, the defendant called no witness, opting to rely on the plaintiff’s case. By order of the court, both counsel filed written addresses which were duly adopted. The Learned trial Judge entered judgment for the plaintiff in terms of his alternative claim awarding him the sum of N1, 783,284.10k special damages for wrongful termination of his appointment. The defendant company, now appellant being dissatisfied with the judgment appealed to this court filing a notice of appeal with four grounds. It is needless to reproduce the grounds of appeal with their particulars. In compliance with the rules and practice of this court’ the parties filed and exchanged briefs of argument.
The appellant in his brief formulated three issues for determination in this appeal.
They are:-
a. Whether or not the trial court rightly applied the principle of law in a criminal case N. M. Ali & one or v. The
State 119881 1SCMLR 1 @ 10 in deciding the issue of employment in the appellant’s case
b. whether or not the plaintiff’s employment was lawfully terminated by the letter dated 11th of September 1992, Exhibit ‘F’
c. whether or not the plaintiff proved his entitlement to damages from the facts and evidence placed before the
trial court.
The plaintiff, now respondent in his own brief also formulated three issues for determination, though couched in slightly different language are basically same as those of the appellant set out above. I shall consider the three issues seriatim.
Issue no (a), whether the principle in Ali v. State as applied by the trial court is proper.
The complaint of the appellant on this issue is that the respondent’s claims bordered on declaratory reliefs and special damages which must be averred and strictly proved; that the trial court came to a wrong conclusion when
it held that the principles in the criminal case of Ali v. the State applied to this civil suit. Counsel further submitted that the trial court was wrong when it held that the failure of the defendant to offer evidence in support of its defence raised a presumption of credibility in favour of the plaintiff. On the contrary Counsel contended, notwithstanding the fact that the defendant opted not to call evidence, the plaintiff still bore the burden of placing before the trial court convincing evidence that he is entitled to judgment as claimed. Where the plaintiff adduced evidence which the defendant considered weak and of no substance, it was needless to call evidence in rebuttal. The trial court cannot interpret the decision of the defendant not to call evidence as raising a presumption of credibility in favour of the plaintiff. Counsel referred to the cases of A.G. Oyo State v. Fairlakes Hotels Ltd No 2 (1989) 5 NWLR (Pt.121) 255 @259-280 Neka B.B.B. Manufacturing Co. Ltd v. A.C.B. Ltd (2004) All FWL(Pt.19811175 @1179 ratio 5.
In reply learned counsel for the respondent submitted that the general principle of law laid down by the Supreme Court in the case of Ifeta v. S.P.D.C. that where a defendant does not give evidence in support of his pleading,
he is deemed to have accepted and rested his case on the facts adduced by the plaintiff applies in both civil and criminal cases. The learned trial judge cannot therefore be faulted for relying on the criminal case of Ali v. The
State (supra) even though neither counsel called his attention to it. Counsel further cited the cases of Ojukwu v. Obasanio (2003) 197 @ 198 &199 and submitted that in such a situation, the defendant is bound by the evidence called by the plaintiff in support of the plaintiffs case. Learned counsel urged us to hold that the trial court rightly relied on and applied the principle in Ali v. The State (supra); and to resolve this issue in favour of the respondent.

In such a situation the failure of the accused to call evidence would not work against him. Also in a civil matter if the plaintiff was unable to prove his case as required by law based on the facts he presented before the court, the fact that the defendant called no evidence would not work against the defendant. In other words while the learned trial judge did not err in relying on a criminal case, with all due respect’ he completely misconceived the law in holding that the failure of the defendant to offer evidence in support of his defence raised a presumption of credibility in favour of the plaintiff in the circumstances of this case. The misconception became more confounded when the learned trial judge said at page 139 of the record of Proceedings:
“it means that everything said by the plaintiff in his evidence before this court is TRUE because such evidence was not contradicted or controverted by another parallel evidence. By the same token, the submissions by Counsel to the plaintiff are to be similarly treated. And I hereby accept mutatis mutandi all the legal submissions of the
plaintiff’s counsel. I also for the reasons given above reject all submissions of the defence counsel because they
lack the necessary substratum to sustain them”‘
This is fallacy. What it means is that even if a legal point made by counsel for the plaintiff in his written address is not the law, the learned trial judge would accept it because the defendant abandoned his statement of defence
by not calling witnesses and for the same reason would also not consider any issue raised in the defendant’s address. With all due respect to learned trial Judge, the failure of the defendant to call witnesses should not absolve the plaintiff of the burden of proving his case as required by law. All the facts he presented may be true, but if for example in a criminal case, the ingredients of the offence charged are not established, the accused would go free, notwithstanding that he did not call any witness. Similarly in a civil case, if the plaintiff fails to prove his case, he would lose, notwithstanding that the defendant called no witness. What I am trying to say is that failure of a defendant to call evidence does not mean automatic success
for the plaintiff, which the impression is created by the views of the learned trial Judge. See Neka B.B.B Manufacturing Co. Ltd v. A.C.B Ltd (supra): or (2004) 2 NWLR (Pt 858) 521 @533:-
“Evidence not challenged by a party that had the opportunity to do so should ordinarily be believed and awarded credibility. However, such evidence must be capable of being believed even if not challenged. In other words when the evidence is weak in content as not to assist the court or is manifestly unreasonable or is devoid of any substance as not to help to resolve the matter in issue it will be safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true, it is also true to say that the court is not in a circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case'”
The point was put more succinctly in the case of A.G. Oyo State v. Fairlakes Hotels (no.2) (supra) where the supreme court held that the general rule that a trial court can accept and act on the uncontradicted oral evidence of a plaintiff applies only where the evidence adduced by the plaintiff establishes his claim against the defendant in terms of his writ. So the plaintiff still has the burden of proving his case as required by law. The burden is not discharged simply because the evidence is uncontradicted.
My view on issue (a) is that there is no rule of law or practice that precluded the learned trial judge from applying the principles in the criminal case of Ali v. The State in this civil suit but with the plethora of civil cases on the
point, I do not understand the rationale for preferring the criminal case. The principle itself was however wrongly applied. The issue is resolved against the respondent and in favour of the appellant.
lssue (b): Whether or not the plaintiff’s employment was lawfully terminated by the letter dated 11th September, 1992, Exhibit ‘F’
The contention of the appellant here is that the respondent bore the burden of placing before the trial court the terms of the contract of employment and in proving the precise manner in which the terms were breached. This, Counsel argued, respondent failed to do. Counsel submitted that the contract of employment between the
appellant and the respondent was that of master and servant without any statutory flavour and was properly terminated as stipulated in Exhibit A, the letter of appointment.
In reply, learned counsel for the respondent submitted that in establishing the wrongful termination of his employment, the respondent tendered Exhibit A containing the terms and conditions of his appointment’ counsel argued that Exhibit A expressly provides that during the period of the appointment, either party may terminate the employment by giving three months notice or paying three months salary in lieu of notice. Counsel further submitted that the burden of proving that the termination was in compliance with Exhibit A shifted to the appellant, the respondent having given unchallenged and uncontroverted evidence that the letter of termination was given to him on the same date he was invited by the board of the appellant to explain his involvement in the court cases without compliance with the express provisions of Exhibit A.
Generally, a plaintiff who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts:-
1. That he is an employee of the defendant
2. The terms and conditions of his employment
3. The way and manner and by whom he can be removed See Ujam v. I.M.T. (2007) 2 NWLR (Pt.1019) 470 @ 489. Further, the Supreme Court in the case of Ziideeh v. R.S.C.S.C. (2007) 3 NWLR (Pt.10221 554 @ 570 held that when an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the contract of employment and to prove in what manner the said terms were breached by the employer. It was held not to be the duty of the employer to prove any of these facts. See also Edet v. Chief of Air Staff [1994] 2 NWLR [Pt. 324] 41 @58 E-F. I therefore reject the submission of counsel for the respondent that the burden shifted to the appellant to prove that the termination of the employment was in compliance with Exhibit A. The burden is on the respondent and remains on him throughout the case. He went to the trial court to ask for certain declarations and damages for wrongful termination of his employment, he surely bears the burden of proving the wrongful termination, not the appellant. I shall now look at the evidence led by the respondent to see how far he succeeded in proving all the material facts he is expected to prove. In paragraph 1 of his further amended statement of claim the respondent averred that he had been in the employment of the defendant for over three years by virtue of a letter of appointment dated 16/11/89. Beginning from page 108, line 35 of the records, the respondent testified as follows:
“I know the defendant company i.e. NIROWI Nigeria Limited. I was employed under and by virtue of a letter of appointment dated 16th November, 1989.”
Although the appellant did not eventually call any witness, in paragraph 4 of his further amended statement of defence he admitted that the respondent was employed by the company in 1989. The parties are in agreement that the respondent was an employee of the appellant. The fact is also supported by the various exhibits tendered. The learned trial judge is right in his finding on this issue: page 137. Next is the terms and conditions of the employment. The learned trial judge stated as one of his findings of fact that Exhibit ‘C’ contains the conditions of service under which the plaintiff was employed by the defendant company: item (IV) page 138 records of proceedings. I have carefully looked through the evidence of the respondent during the hearing from paragraph 30 pages 108 – paragraph 10 pages 114. There is no where the respondent made reference to his conditions of service. He never referred to Exhibit “C” as the conditions of service. He referred to it as letter of promotion to the rank of Managing Director. It may be necessary to reproduce the letter. It reads:
NIGERIAN – ROMANIAN WOOD INDUSTRIES LTD (NIROWI)
AKURE ROAD
P.O. BOX 1L7
ONDO
Engr J.O. Akingbulugbe
Admin. Department,
NIROWI, Ltd
Ondo

Dear Sir,
I am happy to inform you that the Board at its 78th meeting held on 26th and 27th July, 1990 at the Boardroom, has approved your appointment as Acting Managing Director with effect from 1st of August, 1990.
You are also to be paid the difference between your present salary and the initial of the next salary Grade in line with the senior staff approved conditions of service section 8.4(a) as acting allowance’
Please accept our hearty congratulations’
Yours faithfully,

Hon. Justice O. Odumosi
Cc: Ag. Chief Accountant,
“Ag. Company Secretary
“2 Internal Auditor

It is clear from the above that the letter is a letter of promotion. Even though it referred to Senior Staff approved Conditions of service, no such document was tendered in evidence. It seems reasonable therefore to conclude that the only document that specifically contained conditions of service is the letter of appointment Exhibit ‘A’ tendered in evidence by the respondent. The second to last paragraph reads:
“During the period of appointment, your appointment may be terminated by either side by giving three months notice or three months salary in lieu of notice”
Surprisingly, the learned trial judge made no reference whatever to this Exhibit A in his judgment despite the fact that learned counsel for the appellant made sound submissions on same which submissions the judge beautifully summarized in his judgment: page 135 of the records. This underscores the grievous error the learned trial judge fell into by rejecting all the submissions of the defence counsel because of their failure to call evidence. Failure to call evidence meant the appellant chose to rely on the evidence called by the respondent. He therefore had the right to address the court on such evidence and on points of law. In his submissions on issue no. (b), Learned counsel for the respondent finally rightly submitted that Exhibit A tendered by the respondent contained the conditions of service and that the employment can be terminated by either party giving three months notice or paying three months salary in lieu of notice. But, with all due respect, respondent’s counsel got it all wrong when he submitted as follows:
“The testimony of the respondent remained unchanged and uncontroverted to the effect that his letter of termination was given to him on the same date on his way out of the meeting to which he was invited by the Board of the Appellant to explain his involvement in the court injunction restraining the sale of the company, without compliance with the express provisions of Exhibit A’
Throughout the trial no contrary evidence was placed before the court to show that the Appellant complied with the terms and conditions as provided in exhibit A i.e. the service of 3 months notice or payment of 3 months salary in lieu of notice.
We submit most humbly that the Appellant is duty bound to comply with the provisions of Exhibit A for the proper determination of the appointment of the Respondent, and having failed to give the Respondent 3 months notice or 3 months salary in lieu of notice as expressly stipulated in Exhibit A, the termination is wrongful.”

The absurdity of this submission becomes glaring in the face of the contents of the letter of termination of the employment, Exhibit ‘F’ tendered in evidence by the respondent. The exhibit needs to be fully reproduced:-
“NOTICE OF TERMINATION OF EMPLOYMENT
I am directed to inform you that the Board of Directors of Nigerian-Romanian Wood Industries Limited (NIROWI) at its meeting held on 11th September, 1992 decided to terminate your employment with this Company with effect from today, the 11th September, 1992 in accordance with your letter of appointment dated 16th November, 1989 and the Senior Staff conditions of service which governs the contract of employment of confirmed staff of the Company.
The Company had therefore decided to pay you three months salary in lieu of three months of notice.
By a copy of this letter, the account Department is hereby advised to pay your terminal entitlements based on:
(i)Your unexpired leave of forty-three days: vide our letter Ref. No. NRW/PF/3759/42 of 30th July, 1992;
(ii) Thirty-three days outstanding leave; for 1989 and 1992
(iii) Own’s pension contribution as stipulated in the senior staff conditions of service of the Company;
(iv) Three months salary in lieu of notice;
(v) Other entitlements if any;
(vi) (i)- (v) above less your indebtedness to the Company (if any).
Please hand over all company’s properties in your possession to the Board chairman immediately’
We wish you success in your future Endeavour’s’
Yours faithfully,

D. Ehinloju
Board Chairman

It is obvious from Exhibit ‘F” reproduced above that the appellant complied fully with the conditions of service as stipulated in Exhibit A and the Senior staff conditions of service of the company which the respondent did not tender’ The respondent was given three months salary in lieu of notice.
The respondent claimed that he was not given fair hearing before the termination of his appointment and canvassed various reasons why his appointment was terminated. I totally agree with counsel for the appellant that the respondent was given fair hearing. Exhibit E is the query issued to the respondent asking him to explain before the Board of Directors the reasons for his unilateral action against the technical committee on privatization and commercialization and why he prevented the Extra Ordinary Shareholders meeting for 14th April, 1992 from holding. Exhibit E, the query is dated 7/9/92.The respondents was given adequate notice of the allegation against him. The respondent further claimed that it was his opposition to the sale of the company at the low price of N30 million that gave rise to the termination of his appointment. It may well be so. The point however is that the respondent’s relationship with the company is that of master and servant. His employment has no statutory flavour at all but is subject only to his terms of employment as shown in Exhibit A. At common law, a master is entitled to dismiss his servant from his employment for good or bad reason or for no reason at all. Exhibit A gave the employer, the appellant and the employee, the respondent the right to terminate the appointment by giving three months notice or three months salary in lieu.
Neither needs give any reason for term three months salary in lieu of notice. Exhibit F did not give any reason for the termination of the respondent’s appointment. By the conditions of service, Exhibit A no reason need be given. “The law is that where a contract has been properly terminated, intention and motive become irrelevant, Nfor v. Ashaka Cement Co. Ltd (1994) 1 NWLR (Pt.319) 222 @ 233; Taiwo v. Kingsley Stores Ltd 19 NLR 123; Olatunbosun v. Niser Council (1988) 3 NWLR (Pt. 80) 25.
The Learned trial judge with all due respect failed to advert his mind to these well established principles of law when he made the following observation:-
“But in the instant case, no evidence of misconduct has been led against the plaintiff by the defendant company. I am therefore left with the impression that, apart from denying the plaintiff fair hearing, the Board of Directors of the company have actually wandered precariously away from the charted course and trite rule of evidence, seized the hazardous mantle of the accuser, put on the unenviable toga of the prosecutor, empanelled itself as the sole president of the enterprise, and handed down an obnoxious decision that has no base in law, neither in justice nor in reason.
The decision thus arrived at is utterly capricious and whimsical.”
That was rather devastating but unfounded either in law or on the facts as presented. I hold that the respondent’s employment was lawfully terminated by the letter dated 11/9/92, Exhibit F. This issue is resolved in favour of the appellant.
Issue no. (C), whether or not the respondent proved his entitlement to damages The contention of the appellant here is that the respondent led no evidence to prove the special damages awarded by the trial court contrary to the law that items of special damage must be strictly proved. Counsel argued that the learned trial judge erred in law when he held that the prayer of the respondent urging him to grant his claims has alluded to the evidence required. Counsel further argued that by Exhibit H, (the appellant company’s pension Scheme registration form duly executed by the respondent), the respondent was not entitled to receive all his entitlement under the scheme having spent less than 36 months in the Company.
In reply, learned Counsel for the respondent submitted that the word “strict proof” does not mean proof beyond all doubt’ Counsel argued that the burden on the respondent to establish his entitlement to the special damages is minimal proof in view of his unchallenged testimony, counsel finally submitted that the learned trial Judge was right in his observation that “apart from putting the specific or special items on paper, there was copious allusion to them in the course of the trial, and that the plaintiff concluded his evidence by urging the court to grant him the reliefs as contained or stated in his claim'”
The law is that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence’ See Gonzee (Nig.) Ltd v.NERDC (2005) 13 NWLR(Pt 943)634 @ 649-650; Dumez (Nig) Ogboli (1972) 1 All NLR 241.
It is expected that in an action for special damages for wrongful termination of employment, the plaintiff in his statement of claim would make specific averments as to what exactly his entitlements under the contract of employment were and where possible, also plead the document embodying the entitlements. The respondent herein made no such averment in his entire 25 paragraph further amended statement of claim. But in his final paragraph 26 (the relief paragraph), he claimed in the alternative the sum of N1, 594, 122.60k as special damages; and thereafter, set out particulars of the items of special damages. To make matters worse, he did not lead oral evidence of these items of special damage. The respondent closed his evidence by urging the court to grant him all the reliefs as contained in his statement of claim. Not having given oral evidence of the items, he deprived the appellant of the opportunity to test his credibility on the truthfulness of his claims by cross-examination. The position therefore is that the items of special damages were not specifically pleaded or even if they were, they are deemed abandoned, the respondent not having led evidence on them. See Ujam v. I.M.T. (supra) pp 492-493. No wonder the appellant decided there was no need to call evidence as the respondent had failed to prove his case. The trial judge erred and did not advert his mind to the principle of law regarding proof of special damages when he concluded that “apart from putting the specific or special items on paper, there was copious allusion to them in the course of the trial” I have read carefully the evidence of the respondent and his cross-examination at pages 108 – 114 of the records of proceedings, I did not see the “copious allusions” anywhere. Furthermore, the amount claimed in the further amended statement of claim is the sum of 1, 594,122.60k. I do not know how the learned trial Judge came by the figure of N1, 783,284.10 awarded the respondent in his judgment. In his judgment at page 127 of the record of proceedings, the learned trial judge observed as follows:
“However Mr. Wale Omotosho slightly amended the claim to read N1, 783,284.10k as the new special damages” I have painstakingly scrutinized the record of proceedings to find out how and when the amendment was effected. I saw nothing in the records to that effect. The figure featured in the respondent/plaintiff’s written address in the lower court. An address can never be substituted for pleadings. The figure pleaded in the further amended statement of claim is N1, 594,122.60k, and not N1, 783,284.10K.
I have already held that the respondent’s employment was lawfully terminated. He is therefore not entitled to any damages. Even if the termination was held to be wrongful, the respondent would be entitled to just his three months salary in lieu of notice and any other accrued benefit under his contract of employment and conditions of service of senior staff of the company as alluded to in his letter of appointment as Ag. Managing Director, Exhibit C. See Ifeta v. pages 519-620.
Before I conclude this judgment it is necessary to point out that the statement of claim in the lower court was signed by a law firm, Fola Akinrinsola and company. The position of the law now is that such statement of claim is fundamentally defective since it is neither signed by the plaintiff or a legal practitioner as the law firm is not a legal entity known to law. See Oketade v. Act, 2004: Okafor v Nweke [20071 10 NWLR (Pt.1043] 521.

There are cases which suggest that the term “legal Practitioner” should be given a liberal interpretation; that where a legal practitioner gives the name under which he is registered as a business name, this can only refer and apply to the legal practitioner who so holds himself out as practicing under that business name. See Registered Trustees of Apostolic Church v. Ikindele (1967) 5NSCC 117: or (1957) 1 All NLR 110: Cole v. Martins & Anor (1968) NWLR 217 or (1968) 5 NSCC 120; Buhari v. Yabo (2006) 17 NWLR (Pt.1007) 162 @ 178H-181C.
It is however not in doubt that a law firm or business name is not and can never qualify as a legal practitioner within the meaning of Section 24 Legal practitioners Act and there is no reason why counsel cannot adhere to the provisions of the Laws of the Land especially with the plethora of decided case on the issue. Lawyers are supposed to know the law and to comply with it. As stated by Oguntade JSC (Rtd) in Okafor v. Nweke (supra):
“The argument that it is over adherence to technicality to annul the process improperly signed and filed…..fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with court rules”
I am however hard put to accept that if this appeal was misconceived and liable to be dismissed, it would have been saved by the fact that the statement of claim was not signed by a legal practitioner. In most of the decided cases I came across, the slip occurred at the stage of filing processes in the appeal court and objection was taken timeously by the opponent. In this appeal, the issue was not raised by any of the parties; I would rather leave it alone since the parties were not given the opportunity to address us on it. In the final conclusion, this appeal succeeds. It is allowed. The judgment of Adegbenro J. delivered on the 14th day of April, 2003 is set aside. The respondent’s case in the lower court is dismissed, the respondent having failed to prove his case as required by law. I make no order as to cost.

NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead Judgment just delivered by my learned brother Iyizoba, JCA. The sound reasoning in the Judge notwithstanding I am constrained to say, with profound respect, that it is a fruitless venture. The statement of claim in the suit from the appeal emanated was signed by a law firm – “Fola Akinrinsola and Company.” while a process in a suit may be signed by a party to the suit or counsel representing this party a company or even a law firm is not competent to sign such process. It is doubtful if a firm can sign a Court process in a case in which it is a party. A firm is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act. Any process filed in Court bearing the signature of firm is incompetent and liable to be struck out. See First Bank Plc. v. Maiwada (2003) F WCR (pt.151) 2001 at 2003 NNB Plc v. Dencing Ltd. (2005) 4 NWLR (pt.916) 549 CA; Okafor v. Nweke (2002) 3 SC (Pt.11)55.
It follows that all processes subsequent to, and based on, the statement of claim, including the purported amended statement of claim are incompetent.
Further more it is trite law that the statement of claim when filed supercedes the writs of summons. See Udechukwu v. Okwuka (1956) IFSC 20 Cargill v. Bower (1878)10 CH.D 502 Nta & Ors v. Anigbo & Anr. (1972)1 ALL NLR (Pt.2) 74, (1972)16 Sc 190.
In my humble view an appellate Court has a duty not only to examine the processes in the appeal but also to examine the records of the Court below from which the appeal is brought to ensure that both the Lower Court and the Appellate Court have jurisdiction in the matter. In the instant case the Court below had no jurisdiction to determine the case and ipso facto this Court lacks jurisdiction to hear and determine the appeal on the merit.
The defect in the proceedings in the Court below is an issue of law and not fact and I see no reason to invite Counsel to address the issue in the peculiar circumstances.
The proceeding in the Court below is a nullity and this Court has no jurisdiction to determine the merit of appeal based on the void proceedings. It is my order that both the suit in the Court below and the appeal that arose from it be struck out as incompetent. Each party shall hear its costs. Appeal struck out.

MOORE A.A.M ADUMEIN, J.C.A.: I agree with my learned brother, Nwali Sylvester Ngwuta, JCA, that under the circumstances of this case, as succinctly set out by him, the respondent’s case in the lower court ought to have been struck out and the same is hereby struck out.
Accordingly, I hereby strike out this appeal. I also make no order as to costs.

Appearances

PIUS OLU DAODU ESQ.For Appellant

AND

F. OMOTOSHO ESQ. with T. OLUYIDE ESQFor Respondent