OKOMU OIL PALM LIMITED V. MR. O. J. OKPAME (2006)

OKOMU OIL PALM LIMITED V. MR. O. J. OKPAME

(2006)LCN/1950(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 25th day of April, 2006

CA/B/4/2001

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 15(1) and (2) OF THE ADMINISTRATION OF ESTATE LAW CAP 2 OF BENDEL STATE OF NIGERIA 1976

LEGAL PRACTITIONER: DUTY OF COUNSEL NOT TO MISLEAD THE COURT

The action of the counsel to the deceased in concealing the death of the deceased is condemnable as is done in the case of MOMODU & ORS. V. MOMOH & ANOTHER (1991) 2 LRCN 437 the Supreme; Court held that “It is a very serious matter and indeed sad for counsel whose bounden and inescapable duty is to assist the Court to appear to be intent in misleading the Court. This attitude of counsel which is unethical and reprehensible calls for condemnation by the Court in no uncertain terms. PER GEORGE OLADEINDE SHOREMI, J.C.A.

COMPANY LAW: WHETHER IT IS GOOD LAW THAT HAVING A CONTROLLING NUMBER OF SHARE IN A COMPANY IS NOT SYNONYMOUS WITH OWNERSHIP

There is no doubt that it is good law when the Supreme Court said that having a controlling number of share in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence See Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) at 660. In this case the Supreme Court held further: Since the appellant is a limited liability company with powers to sue and be sued in its own name and powers as a corporate body, it is illogical to contend that its operations are governed by the Civil Service Rules. The spirit of the corporate existence of companies will be negated should this state of affairs be allowed to have sway. PER GEORGE OLADEINDE SHOREMI, J.C.A.

JUSTICES

PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

Between

OKOMU OIL PALM LIMITED Appellant(s)

AND

MR. O. J. OKPAME Respondent(s)

GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment) : Briefly the facts leading to this appeal are as follows:
The Respondent was appointed by the Okomu-Udo Federal Oil Project in 1982 at that time the project was owned by Federal Government, State Government and Local Government. His appointment was originated by a letter which was tendered as Exhibit A and A1 without any objection.
By a letter dated 18/1/86 exhibit E termination letter was handed to the respondent, while he was is the police cell as a suspect in an armed robbery incident which happened at his office.
Dissatisfied with his termination, the respondent commenced an action in the then Bendel State High court sitting at Iguobazuwa claiming as follows:
(1) A declaration that the purported termination of plaintiff’s appointment with the defendant vide defendant’s letter dated 18/1/86 is unconstitutional, invalid, illegal, null and void and of no effect.
(2) A declaration that the plaintiff is entitled to the following reliefs and payment amounting to N91,562.00k with immediate effect as special damages.
(a) Arrears of salary of N650 per month from 1/12/85 – 31-12-85
(b) Salary for 11 years or 132 months at N650 per month N85,000.00k
(c) Transport Allowance at N30 per month for 11 years or 132 months N3,960.00
(d) Annual leave allowance of N96 per annum for 12 years N1,152.00
Total N91,560.00k
3(a) The plaintiff claimed also N250,000 aggravated damages for unlawful dismissal in addition to the N91,562.00k special damages claimed in paragraph 16(as above).
3(b) Particular of aggravated damages. By his unlawful dismissal eleven years before the plaintiff was due for pension under the Pensions Decree 1979 the plaintiff has lost his enhanced chance of promotion and was derived of his pre requisites and benefits of higher office in the employment of the defendant.
After the exchange of pleadings by both parties, evidence was led by the plaintiff/respondent (now referred to as Respondent) calling 2 (two) witnesses. The appellant/defendant (hereinafter referred to as Appellant) did not call any evidence but submitted a written address. The learned trial judge on 6/4/90 awarded to the plaintiff the sum of N63,050.00 out of N91,562.00 claimed by the Respondent.
The appellant being dissatisfied with the said decision appealed to this court.
The appellant filed a notice of Appeal containing only one ground of appeal and with the leave of this Court on 2nd day of April, 2001 filed three additional grounds.
The appellant submitted the following as issues for determination.
(a) Whether the judgment of the learned trial Judge is a nullity.
(b) Whether the respondent’s employment was governed by the Civil Service Regulation
(c) Whether the Respondent was entitled to damages.
The Respondent in his respondent’s brief of argument seems to have adopted the issues as formulated by the appellant.
The respondent was an Assistant Executive Officer with the appellant which was known and called Okomu/Udo Federal Oil Palm-project but now known as Okomu Oil Palm Limited. It has not been in dispute that the letters of appointment and confirmation of appointment emanated from Okomu/Udo Federal Oil Palm Project.
It is in evidence that Okomu/Udo Oil by whatever name is called, the Federal Government has 60% in the company, State government 25%. The facts were clearly stated in exhibit K. This appeal was heard on 29th March, 2006.
In my consideration of this appeal I am of the view that the issues as stipulated by the appellant and agreed to by the Respondent will be enough to dispose off the appeal.

ISSUE 1
The appellant agreed that the judgment was delivered on the 6th day of April, 1990. At the time this judgment was delivered, the plaintiff had died. He died on 11th of January, 1990 at 9.00 a.m. I agree with the appellant that the plaintiff’s counsel was in a position to know that the plaintiff was dead. It is of note that the plaintiff’s counsel on 10/6/91 brought an application to substitute the dead plaintiff now named respondent. The appellant therefore argued that the judgment of the trial Judge delivered in a case where there was no live plaintiff is erroneous in law and therefore null and void.
The respondent counsel argued that as at the time judgment was delivered, the plaintiff had died but urged it on this court to hold that whether a cause of action survives or not there shall be no abatement by reason of death of either party between finding of issues of facts, and judgment.
The general rule at Common Law as it relates to the maxim ACTIO PERSONALIS MORITUR CUM PERSONA as raised by the appellant was that if an injury were done either to the person or to the property of another for which unliquidated damage only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was done. The rule of common law has been restated by various statutes. The maxim is of English common law origin.

The Administration of Estate Law Cap 2 Laws of the Bendel State of Nigeria 1976 Vol. 1 Section 15(1) and (2) thereof provides and I quote.
SECTION 15 (1)
“Subject to the provision of this section on the death of any person after the commencement of this Law all causes of action subsisting against or vested in him shall survive against or, as the case may be for the benefit of his estate.
Provided, that this sub-section shall not apply to cause of action for defamation or seduction or for inducing one spouse to leave or to remain apart from the other or to claims for damage on the ground of adultery.” SECTION 15 (2)
“Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person recoverable for the benefit of the estate of that shall not include any exemplary damage.”
In the instant case, the deceased claimed against the appellant arrears of salary, transport, annual leave allowance which were money due to him in his life time. The Supreme Court in the case of Eyesen v. Sanusi (1984) SCNLR page 353 deciding on S.15 of the Administration of Estate Law Cap 2 Laws of Lagos State which stipulates that on the death bf any person all cause of action subsisting against him or vested in him shall survive against or as the case may be for the benefit of his estate (save the exception mentioned therein. This provisions are in pari material with section 15 of the Administration of Estate Law Cap 2 of Bendel State applicable in Edo State.
The Supreme Court held that the case of the appellant survives him and therefore his executors could claim and benefit. In the instant case, the plaintiff/respondent prosecuted his case till judgment was reserved. The action of the counsel to the deceased in concealing the death of the deceased is condemnable as is done in the case of MOMODU & ORS. V. MOMOH & ANOTHER (1991) 2 LRCN 437 the Supreme; Court held that “It is a very serious matter and indeed sad for counsel whose bounden and inescapable duty is to assist the Court to appear to be intent in misleading the Court. This attitude of counsel which is unethical and reprehensible calls for condemnation by the Court in no uncertain terms. Be that as it may from the above consideration of the Statute and decided cases, I hold that the maxim is not applicable to the case under consideration. The substitution of the present respondent is in order and the 1st Issue is resolved in favour of the Respondent.

ISSUE II
The appellant argued that the plaintiff /respondent did not prove that his employment was governed, by the Federal Civil Service Rules as he did not lead evidence to the effect that he was employed by the Federal Civil Service Commission. The plaintiff in his evidence showed that as at the time of his employment he was an employee of the Federal Government of Nigeria as the Federal Government/State Government owned the project/company. There is no doubt that it is good law when the Supreme Court said that having a controlling number of share in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence See Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) at 660. In this case the Supreme Court held further:
Since the appellant is a limited liability company with powers to sue and be sued in its own name and powers as a corporate body, it is illogical to contend that its operations are governed by the Civil Service Rules. The spirit of the corporate existence of companies will be negated should this state of affairs be allowed to have sway.
The learned trial Judge based his finding on S. 277 of the Constitution of the Federal Republic of Nigeria 1979.
Section 277(1) of the 1979 Constitution provides as follows:
“Public Service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation; and include service as …
(f) staff of any company or enterprise in which the Government of a State or its agents holds controlling shares or interest.
For the respondent to claim the benefit of this section he has to prove that the conditions of service with the appellant are governed by the Civil Service Regulations. He has the duty to show that he was employed by the Federal Civil Service Commission. Here the terms of his service was not tendered, it was therefore difficult to know the entitlement of the respondent.
ISSUE 3 has been taken care of in my consideration of Issue No.2. Since it is difficult to determine what the entitlement of the plaintiff/respondent should be, I believe justice of the case demands that the case be remitted to the Chief Judge of Edo State for assignment to a Judge to determine the entitlement. This appeal therefore succeeds in part. The case shall be remitted to the court below for the determination of the entitlements of the plaintiff/respondent in line with his conditions of service. I make no order as to cost.

PIUS OLAYIWOLA ADEREMI, J.C.A.: I agree with my learned brother, SHOREMI, JCA whose judgment I have had the privilege of a preview that this appeal is meritorious.
Since this appeal raises a fundamental principle of law the maxim: ACTIO PERSONALIS MORITUR CUM PERSONA; its interpretation and application, I feel obliged to make some contribution if only for the purpose of emphasis. Given it simple interpretation, the maxim means that; a personal right of action dies with the person. The general rule of common law, as it relates to this maxim, was that if an injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom, or by whom the wrong was done. This rule of common law has been encroached upon by various statutes but it still applies to such action as for libel, slander, false imprisonment, or other personal injury. It has been said that the maxim does not have its original traced to any Nigerian or English statute rather that it is of English common law origin. In Nigeria, the rule has been variously encroached upon by many statutes applicable to various states of the Country. In Edo State, the applicable law is Administration of Estates Law Cap 2, Laws of the Bendel State of Nigeria 1976 Volume 1 Section 15(1) and (2) thereof which relevant to this case provides:-
SECTION 15 (1):
“Subject to the provisions of this section, on the death of any person after the commencement of this Law all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate:
Provided that this sub-section shall not apply to causes of action for deformation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.” (Underlining mine for emphasis).
SECTION 15 (2)
“Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person – shall not include any exemplary damages …”
From the above provision, it is my view that the Maxim is applicable in a personal action founded on the tort of a defamation or seduction or enticement of a wife etc, it does not avail where interest accrues to the estate of the deceased.
In the instant case, the deceased/plaintiff (D.E.S. Okpame) had claimed against the defendant/appellant, inter alia, for arrears of salary, arrears of transport allowance and arrears of annual leave allowance. The above claim represents money due to the deceased in his lifetime, which, if it had been paid, would probably have been lodged in his bank account, or kept at home or even spent by him, as he liked. If the money were not spent by him, upon his death, such money would inure to the benefit of his estate.
Therefore, his right to such money must vest in his estate upon his death since it was money accruable to him and for which he was denied. To now say that upon the death of the beneficiary of money payable for work done, if on the facts, such money was payable, should now not be paid and directly or indirectly withheld the payment, should retain the sum for ever, will amount to dispensing injustice. After all, it must be remembered that justice is not a one-way traffic. It is not justice for the plaintiff alone. It is not even only a two-way traffic in the sense that it is justice for the plaintiff and the defendant alone. I think really justice is a three-way traffic in justice for the plaintiff who is crying for a redress of the wrong done to him; justice for the defendant who is crying that he should be heard and his defence considered before being ordered to pay any sum claimed against him and also before being mulcted in cost; and finally but very important, justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of that word, has been seen to have been done by the arbiter. To make a pronouncement that is capable of denying the estate of a deceased person the money he (deceased) had worked for and was entitled to is to do incalculable injustice to his (deceased) estate and of course, adversely affect the societal psyche, hence the watering down of the harsh application of the MAXIM.
It is an essential attribute of the administration of justice that justice must not only be done, it must be manifestly seen to be done. Hewart C/J stated this principle in a very lucid way when in R VS. SUSSEX JUSTICES EX PARTE MACARTHY (1924) 1 K.B. 256, he reasoned at page 259 thus:-
“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
The above dictum was quoted with approval by the Supreme Court in LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS. CHIEF GANI FAWEHINMI (1985) 7 S.C. 178; (1985) 2 NWLR (Pt.7) 300.
For all I have said supra, and more in particular for solid reasoning in the lead judgment of my learned brother, SHOREMI J.C.A. I cannot resist coming into the conclusion the maxim is not applicable to the case at hand.

I now come to the issue of whether the deceased’s employment was governed by the Civil Service Regulations. In paragraph 1 of his amended statement of claim the plaintiff/respondent did aver that he was an employee of the defendant/appellant, a limited liability company. In the evaluation of the evidence led before him, the learned trial Judge found that the plaintiff/respondent was the employee of the defendant/appellant. There is no scintilla of evidence that the plaintiff/respondent was employed by the Federal Civil Service Commission. The question whether the Federal Government held the controlling shares in the defendant/appellant, company would not make the servants. As was held in the case of OKOMU OIL PALM CO. LTD VS. ISERHIENRHIEN (2001) 6 NWLR (PT.710) 660 cited by both parties, the Supreme Court per the judgment of ONU J.S.C. said at page 686 thus:-
“Besides having a controlling numbers of shares in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having it own separate legal existence.”
It is the conditions of service set out by the defendant/appellant that must regulate the master/servant relationship between the respondent and the appellant and not the Federal Republic of Nigeria Civil Service Rules as revised up to the 1st of April 1974. Since the Terms of the Service were not tendered, it is difficult to determine what the entitlement of the plaintiff/respondent should be, I would also think that the justice of this case would find expression in remitting the case to the Chief Judge of Edo state of Nigeria for re-assignment to a judge for the determination of the plaintiff/respondent’s entitlement under the conditions of service between him and the defendant/appellant. Suffice it to say that leg (2) of the reliefs sought cannot be sustained as no court makes a practice of imposing all employee on an employer.
I also agree that this appeal succeeds in part. The case should be remitted to the court below for the determination of the entitlement of the plaintiff/respondent in line with the Conditions of service.

UWANI MUSA ABBA AJI, J.C.A.: The plaintiff, hereinafter simply referred to as the respondent instituted this action at the lower court against the defendant now appellant claiming inter alia a declaration that his contract of appointment with the appellant was unlawfully terminated. He demanded for reinstatement and arrears of salary.
Pleadings were duly filed and delivered and the case proceeded to trial. After a careful review of evidence adduced at the trial, in a considered judgment delivered on the 6th/4/90, the learned trial Judge gave judgment for the respondent. It is against the said judgment that the appellant appealed to this court. The first issue that arose for determination was whether the judgment was not a nullity having being delivered without a live plaintiff. It is on this issue that I would like to add a word of my own for emphasis only.
The Appellant contended on this issue that the judgment in the case was delivered on the 6th day of April, 1990 while the plaintiff died on the 11th January, 1990 and submitted that the judgment delivered on the 6th/4/90 after the death of the plaintiff is erroneous and therefore null and void. There was an alternative submission should the court hold otherwise to the effect that the cause of action did not survive the plaintiff as the plaintiff s claim is a personal right in contract which the plaintiff wanted the lower court to interpret. It is his view that the present respondent cannot claim the benefit of a personal contract of which he was never a party. He cited and relied on the case of ATTORNEY-GENERAL OF THE FEDERATION VS. A.I.C. LTD (2000) 79 LRCN 1872 AT 1887 and submitted that the law is quite settled on this issue. Actio personalis moritur cum persona. He also relied on the following cases; NZOM VS. JINADU (1987) 2 SC 205 AT 210; (1987)1 NWLR (Pt.51) 533; OYEYEMI VS. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 8 LRCN 517 AT 527; (1992) 2 NWLR (Pt.226) 661 and MOMODU VS. MOMOH (1991) 2 LRCN 457 AT 466; (1991) 1 NWLR (Pt.169) 608.
The respondent conceded the fact that the plaintiff died before judgment was delivered in the court below but argued that the position of the law is that, whether the cause of action survives or not, there shall be no abatement by reason of death of either party between the finding of issues of fact and judgment. That judgment may in such case be entered notwithstanding the death. He referred to Order 14 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1984 as applicable to Edo State by virtue of Order 4 thereof. He also referred to Order 15 Rule 7(7) of the Supreme Court Practice 1985. He urged us to hold that the cause of action in this matter survived the death of the plaintiff and that judgment or benefit therein is accruable to his estate. To determine whether the judgment is null and void one must first of all determine whether the action survives the plaintiff or not. The plaintiff’s claim before the lower court as per paragraph 16 of his amended statement of claim is as follows:-
“16(1) A declaration that the purported termination of the plaintiff’s appointment with the defendant vide
defendant’s letter dated 18/1/86 is unconstitutional, invalid, illegal, null and of not effect.
(2) A declaration that the plaintiff is entitled to the following reliefs and payments amounting to N91,562.00k with immediate effect, as special damages:
(a) Arrears of salary of N650 per messem from 1/12/85 – 31/12/85       N650.00
(b) Salary for 11 years of 132 months = N650 per messem               N85,800.00
(c) Transport Allowance of N30 per month for 11 years of 132 months    N3,960.00
(d) Annual Leave allowance of N96 per annum for 12 years       N1,152.00
N91,562.00
3(a) The Plaintiff claims also N250,000 aggravated damages for unlawful dismissal in addition to the N91,562 special damages claimed in paragraph 16(2) above.
3(b) Particulars of Aggravated Damages
By his unlawful dismissal eleven years before the plaintiff was due for pension under the pensions Decree 1979, the plaintiff has lost his enhanced chances of promotion and was deprived of his perquisites and benefits of higher office in the employment of the Defendant.”
The claim as reproduced above is clearly a claim arising out from contract of employment. In such circumstances therefore, would the action die with the plaintiff as contended by the appellant or survive him as argued by the respondent. In other words, would the English Common Law maxim, Actio Personalis moritur cum persona apply in the present circumstances of this case. In English law, the maxim literally means that “a personal right of action dies with the person.” The maxim properly relates only to the extinction of liability on death, and sometimes misused in connection with the rule that death does not give rise to liability in tort. The maxim has now been benefit of much of its importance in England by the Law Reform (Miscellaneous Provisions) Act 1934 Section 1 and by Section 15 of the Administration of Estates Law Cap 2 of the laws of Bendel State of Nigeria 1976 as applicable to Edo State. Section 15 of the Administration of Estate Law provides:-
“Section 15(1) Subject to the provision of this Section, on the death of any person after the commencement of this Law, all causes action subsisting against or rested in him shall survive against or, as the case may be, for the benefit of his estate:
Provided that this sub section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or claim for damages on the ground of adultery.
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person recoverable for the benefit of that estate shall not include any exemplary damage.
(3) No proceedings shall be maintained in respect of a cause of action in tort which by virtue of this section has survived against the estate of the deceased person unless either,
(a) Proceeding against him in respect of that cause of action were pending at the date of his death;
(b) The cause of action arose not earlier than three years before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation.”

In the light of the state of the law, both under the common law and under the statute law on survival of causes of action, can it be said that the claim before the court in the present action died with the plaintiff. It is not in dispute that the plaintiff’s claim before the lower court is a claim arising from a contract of service. Section 15 of the Administration of Estates law ensures and protects the survival of the proceedings. Thus, the maxim Actio personalis moritur cum persona applies only in respect of personal action founded on the tort of defamation, seduction or enticement of a wife etc. It does not apply where the subject matter of the suit is an interest which accrues to the estate of the deceased see WANIKO VS. ADE-JOHN (1999) 8 NWLR (PT. 619) 401.

Although the plaintiff died in the instant appeal before judgment was delivered by the lower court, the action survives him for or against his estate. The plaintiff’s claim does not fall within the exceptions created by the proviso to Section 15(1) of the Administration of Estates Law and I so hold. This therefore brings me to the next issue whether the judgment delivered after the death of the plaintiff is erroneous and null and void. The answer is clearly in the negative based on the statement of the Law as stated above. In the circumstances therefore the English Common Law maxim, Actio Personalis moritur cum persona does not apply in the present circumstances of this case. See EYASAN VS. SANUSI (1984) 4 SC 115.
For this and the fuller reasons in the lead judgment of my learned brother G.O. Shoremi, JCA, I also allow the appeal in part. I also abide by the consequential orders made in the lead judgment.

Appearances

Chief Charles Adogah (with him, Benedicta Oboh [Miss])For Appellant

AND

Mr. Clement Dike (with him, C. B. Okonkwo [Miss])For Respondent