PAUL UHUNMWANGHO SIMEON v. COLLEGE OF EDUCATION EKIADOLOR BENIN (2014)

PAUL UHUNMWANGHO SIMEON v. COLLEGE OF EDUCATION EKIADOLOR BENIN

(2014)LCN/7370(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/B/103/2006

RATIO

PRACTICE AND PROCEDURE: AMENDMENT; WHETHER AN AMENDMENT DATES BACK TO THE DATE WHEN THE PROCESS AMENDED WAS ORIGINALLY FILED
The law is that an amendment dates back to the date when the process amended was originally filed: UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT 1085) 372 at 399; so the relief as contained in the Further Amended Statement of Claim is in law taken as the relief that was claimed ab initio. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT: DUTY OF THE COURT; WHETHER IT IS NOT THE DUTY OF THE COURT TO GRANT ANY RELIEF OUTSIDE WHAT HAD BEEN CLAIMED

The Appellant having the claimed the relief that the termination of his appointment was unlawful and wrongful because it was done by the Provost who had no power to do so, both the court and the Appellant became bound by the relief as framed as it is not the duty of the court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary law that a court is bound by the relief or reliefs sought. The generosity or charity of a court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to court knows where the shoe pinches him and therefore knows the limits of what he wants. The court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…” See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRACTICE AND PROCEDURE: CLAIM; THE MEANING OF CLAIM, WHETHER THE PLAINTIFF CANNOT PRESENT A CASE DIFFERENT FROM HIS CLAIM AND A COURT CANNOT ADJUDICATE BETWEEN PARTIES ON THE BASIS OF A CLAIM NOT FORMULATED BY THEM
In defining the meaning of ‘claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:
“A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law. ” Just as it is elementary that the plaintiff cannot present a case different from his claim, so also can a court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:
“The position of the law is clear that a court of law can only grant reliefs claimed by a party and not more. It is trite that a court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: DOCUMENTARY AND ORAL EVIDENCE; WHETHER DOCUMENTARY EVIDENCE IS USED AS A HANGER FROM WHICH TO ASSESS ORAL TESTIMONY

The law is that documentary evidence is used as a hanger from which to assess oral testimony: FASHANU vs. ADEKOYA (1974) 6 SC 83, KIMDEY vs. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT 77) 445 and HAWAD INTERNATIONAL SCHOOLS LTD vs. MIMA PROJECTS (2003) 39 WRN 57 at 69. This is so because while documentary evidence which is shown to be genuine does not lie, oral evidence may tell a lie. As the Chinese saying goes, the faintest ink is stronger than the best memory. The documentary evidence is therefore to be used as a base from which to assess the oral evidence. See UDEORAH vs. NWAKONOBI (2003) 4 NWLR (PT 811) 643 at 674H- 675B. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

PAUL UHUNMWANGHO SIMEON Appellant(s)

AND

COLLEGE OF EDUCATION EKIADOLOR BENIN Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Coram: Itua, J., sitting at the Iguobazuwa Judicial Division, in Suit No. HIGU/35/2000, which was delivered on 19th April, 2005.
The Appellant herein, who was the Plaintiff, at the lower court sued the Respondent as Defendant at the lower court challenging the termination of his appointment. The brief facts of the matter which precipitated the action show that the Appellant was offered a temporary appointment by the Respondent by a letter dated 10th September, 1996, which letter was admitted in evidence as Exhibit 3. Subsequently by another letter dated 20th November, 1996, Exhibit 4 herein, the Respondent appointed the Appellant as a Part-Time Lecturer. This appointment as a Part-Time Lecturer was later converted to Temporary Appointment by the Respondent’s letter dated 19th January, 1998. The said letter is Exhibit 5 in this matter. The Appellant’s case is that the Temporary Appointment which was expressed to be on a month-to-month basis was never renewed and therefore the Respondent treated him, no more as a temporary staff, but as a permanent staff and that he indeed acted as the Assistant Head of Department of his Department, a position that was not open to a staff on temporary appointment.
It is the Appellant’s case that the parties agreed or were deemed to have agreed that he was a full staff of the Respondent and the Respondent was obliged to formalize his appointment after his successful interview for that purpose but that the letter in that regard was never released. The Appellant therefore made the case that his appointment was wrongfully terminated.
In the Writ of Summons which was filed on the 19th day of June, 2000, the Appellant claimed the following reliefs:
1. A declaration that the purported termination of Plaintiff’s employment with the Defendant vide letter dated 21/10/99 is unlawful, wrongful, unconstitutional, null and void and of no effect whatever.
2. An order setting aside the purported termination of Plaintiff’s employment with the Defendant.
3. A declaration that the Plaintiff is still in the service of the Defendant and is therefore entitled to be re-instated to the position he held in the service of the Defendant.
4. An order re-instating the Plaintiff to the position occupied by him in the Defendant’s employment (including enjoyment of promotion as his colleagues unaffected by the said termination of employment)
5. An order of payment of arrears of salary and other emoluments from 21/10/99 till re-instatement, including payment of money in lieu of annual leave due from 1999 till re-instatement.
(See page 2 of. the Records).
Subsequently by the order of court made on 25th October, 2001, the Appellant further amended his statement of claim. In paragraph 29 of the Further Amended Statement of Claim which is at pages 23 – 29 of the Records. The Appellant claimed the following reliefs:
i. A declaration that the purported termination of Plaintiff’s employment with the Defendant vide letter dated 21/10/99 is unlawful, wrongful, null and void and of no effect whatsoever in that the termination was done by the Provost who has no power under the law to do so.
ii. An order setting aside the purported termination of Plaintiff’s employment with the Defendant.
iii. A declaration that the Plaintiff is still in the service of the Defendant and is therefore entitled to be re-instated to the position he held in the service of the Defendant.
iv. An order re-instating the Plaintiff to the position occupied by him in the Defendant’s employment (including enjoyment of promotion as his colleagues unaffected by the said termination of employment).
v. An order of payment of arrears of salary and other emoluments from 21/10/99 till re-instatement, including payment of money in lieu of annual leave due from 1999 till re-instatement.

ALTERNATIVELY
The Plaintiff claims from the Defendant the sum of Three Million, Sixty Eight Thousand, Three Hundred and Twelve Naira (N3,068,312.00) being special and general damages for breach of contract.

A. Special damages

Arrears of shortfall in May 1999 salary (difference between HATISS 3 & 2 = N1,596.00
(2) 1998/99 Leave Transport Grant= N6,818.00
Arrears due to wrong conversion
From EUSS of 31/12/98 to HATISS 3 of 1/1/99 for the period Jan. – October 1999 = N7,060.00
Arrears due to introduced hazard
Allowance at N125 per month from
Jan. 1999 – October 1999 = N1,250.00
Arrears due to new increase in
Academic allowance from
Jan. – Oct 1999       =  N8,931.00
Arrears of three months salary
In lieu of notice at N14,217.00 per
Month which was the salary earned
as at October 1999 = N42,651.00
Sub total         =  N68,312.00
General damages for breach of
Contract     = N3,000,000.00
Total        = N3,068,312.00
The action was subjected to a full dressed plenary hearing at the lower court. The Appellant testified for himself and did not call any witness, while two witnesses testified for the Respondent. The adduction of evidence having been concluded, the parties addressed the court after which the lower court delivered the judgment, subject of this appeal. The judgment is at pages 48 – 148 of the Records.
The Appellant, being dissatisfied with the judgment appealed against the same. The original Notice of Appeal which was filed in 21st June, 2005 is at pages I49 – 152 of the Records. Upon the application of the Appellant, this court on 6th February 2007, granted the Appellant leave to amend the Notice of Appeal by filing Additional Grounds of Appeal. The Amended Notice of Appeal was deemed as properly filed and served on the said 6th day of February, 2007.
The Records of Appeal having been compiled by the lower court was transmitted on 30th March 2006. The Appellant filed his brief of argument which was amended with leave of court granted on 16th January, 2014. The Amended Appellant’s Brief of Argument is dated and filed on 13th January, 2014. Six issues were therein distilled as arising for determination as follows:
(1) Whether the trial Judge properly evaluated the evidence before it in classifying the Appellant’s appointment with the Respondent as one of mere Master/Servant and holding that the Appellant is entitled only to three months salary in lieu of notice; and whether the failure to properly evaluate the evidence did result in miscarriage of justice to the Appellant (Based on ground 5 (five) of the amended Notice and Grounds of appeal)
(2) Whether the failure of the trial court to hold that the Appellant’s appointment with the Respondent is statutory flavoured and deemed permanent and confirmed did occasion a miscarriage of justice to the Appellant in the light of abundant evidence that Appellant’s appointment with the Respondent is one governed by statute, coupled with Appellant’s subsequent elevation in his appointment to Lecturer Grade 1 (one) (in the pensionable cadre (Based on ground 1 (one) of the amended Notice and Grounds of appeal)
(3) Whether in the light of the law that once an employer has given a reason for termination of an employee’s appointment same must be satisfactorily proved before the court to sustain such termination, the trial court is right in its decision that Section 18(1) & (2) of the College of Education Edict (1988) sustains the action of the Respondent in terminating the Appellant’s appointment holding that it is of no moment that the Respondent gave reason for termination of Appellant’s appointment, which reason it could not substantiate (Based on grounds 2 (two) and 7 (seven) of the amended Notice and Grounds of appeal).
(4) Whether the Registrar or Provost of the Respondent has the statutory competence to terminate the appellant’s appointment, when neither of them was acting for the Chairman of the Governing Council who alone is vested with powers by the law establishing Respondent to terminate appointments (Based on ground 3 (three) of the amended Notice and Grounds of appeal)
(5) Whether the trial court having held that the Respondent violated Section 18(2) of the College of Education Ekiadolor Edict (1990) (Exhibit 1) in terminating the employer/employee appointment with the Respondent is not duty bound to order the reinstatement of the appellant and payment of his salaries and allowances from the date of unlawful termination of appointment till the date of reinstatement. (Based on ground 6 (six) of the amended Notice and Grounds of appeal)
(6) Whether the Appellant was given fair hearing in the termination of his appointment when he was not invited to the panels set up to investigate the allegations of inefficiency levied against him and when he was not allowed any opportunity to confront his accusers to defend himself. (Based on ground 4 (four) of the amended Notice and Grounds of appeal)
The Amended Appellant’s Brief of Argument is of 29 pages and at paragraph 4 on page 4 thereof the Appellant stated that he would strongly rely on the elaborate submissions he made in the 77 page address he filed at the lower court. The said address al pages 62 – 138 of the Records. So the Appellant’s argument in this appeal can be deduced from the 29 page Amended Appellant’s Brief of Argument and the 77 page submissions before the lower court.
The summary of the submissions of the Appellant on the issue number one distilled for determination is that the lower court did not properly evaluate the evidence before reaching its decision in the sense that the case of the Appellant was that he was not disengaged in accordance with the law and that the Provost of the Respondent College had no powers to terminate his appointment as he was a senior staff on the pensionable cadre and not a temporary staff, which issues were not treated by the lower court.
The contention on issue number two is on the alleged failure by the lower court to find that the employment relationship between the parties was one with statutory flavour and not a mere master and servant relationship. The Appellant went to town on pages 7 – 18 of the Amended Appellants Brief of Argument to regurgitate the incidents of employment with statutory flavour, its implication, creation and/or deemed creation. It was then posited in paragraph 4.2.16 on page 13 that he had satisfied the condition for a permanent appointment but was yet to be issued the letter of confirmation before the unlawful termination and therefore the lower court ought to have held that his appointment is deemed confirmed.
Issue number three deals with whether an employer needs to give reason for the termination of the employee’s appointment. It was submitted that the employer is not obliged to give reason for the termination but that where a reason is given the employer must justify the reason. It was then contended that since the Respondent had given the reason of re-organisation as the basis for the termination of Appellant’s appointment, the lower court ought to have examined the reason to see if it was justified.
The Appellant’s argument on issue number four is whether the Registrar or Provost of the Respondent has the statutory competence to terminate the Appellant’s appointment. The Appellant maintained that his letter of termination, Exhibit 9, was issued by the Provost through the Registrar, both of whom had no such powers under Section 18(2) of the College of Education Ekiadolor Edict, 1988. Relying on the case of BAMGBOYE vs. UNILORIN (1991) 4 NWLR (PT 207) 1 at ratio 32 on page 9, it was submitted that any act done by the Registrar as an agent of the Council of the Respondent and done without the direction of the Council was void. The maxim delegatus non potest delegare was referred to and it was submitted that signing the letter without any mention of the Governing Council was unlawful. The Appellant insisted that the Governing Council of the Respondent never sat and decided to terminate his appointment.
The contention on issue number five is on the failure by the lower court to order his reinstatement and payment of all his outstanding salaries and allowances from the date of the unlawful termination of his appointment. The Appellant submitted that the unlawful termination of his appointment cannot be cured by the subsequent payment of his three months’ salary in lieu of notice, especially when the letter of termination was not signed by the Chairman of the Governing Council of the Respondent College.
Issue number six complains about the failure to give the Appellant fair hearing when he was not invited to the panels set up to investigate allegations levelled against him and when he was not afforded the opportunity to confront his accusers. It was contended that the lower court ought to have found it imperative that the Appellant is accorded fair hearing before a decision that will adversely affect him is taken by the Respondent and that the effect of the failure to accord him a hearing is that the termination will be set aside. The cases of BABA vs. NCATC (1991) LRCN 1234 at 1238 and OLANIYAN v. UNILAG (1985) 2 NWLR (PT.9) 599 ratio 8 at page 603 among others were referred to.
The Respondents’ Brief of Argument is dated 13th January, 2010 but filed on 14th January 2010. The Respondent formulated three issues for determination as follows:
(1) Whether the trial court was right in holding that the relationship between the Appellant and the Respondent was contractual, merely that of master and servant and therefore not statutorily protected, having regards to the finding that Exhibits 1, 2 and 8 govern the contract of employment between the parties.
(2) Assuming but not conceding that the Court of Appeal holds that the Appellant’s employment is statutorily provided for, was it terminated lawfully in accordance with the provisions provided for in the relevant statute creating the Respondent?
(3) If the answer to issue 2 is answered in the affirmative. Whether the Appellant is entitled to reinstatement as a lecturer in the employment of the Respondent.
The Respondent’s submission on its issue number one is that the lower court carefully evaluated the evidence and came to the rightful conclusion that the contract between the parties was contractual, merely that of master and servant. It was argued that the Governing Council of the Respondent under Section 18(2) of the College of Education Ekiadolor Edict could determine the appointment of any member of staff whose services were no longer required. The Respondent maintained that the Appellant’s employment did not have statutory flavour and that the conditions of service which would give statutory flavour to a contract of service was not a matter of inference. The case of IDONIBOYE-OBU vs. NNPC (2003) 4 MJSC 131 at 143G was relied upon. It was further contended that the conditions of service of staff of the Respondent, Exhibit 2, was not a subsidiary legislation of the College of Education Ekiadolor Edict, Exhibit 1, and that there was no nexus between Exhibit 1 and the said Exhibit 2. The concurring judgment of Tobi, JSC in IDONIBOYE-OBU vs. NNPC (supra) on how the nexus is to be created between conditions of service and the enabling statute was referred to. It was then posited that Exhibit 2 does not contain any provision suggesting that it derives its authority from any statute. The Respondent then concluded by asserting that it was not the law that any officer employed by a statutory body enjoys appointment with a statutory flavour since the character of an appointment and status of the employee is determined by the legal character and contract of the employee, such that where the appointment is determinable by the agreement of the parties simpliciter, there is no question of the contract having a statutory flavour. The case of FAKUADE vs. OAUTHMB (1993) 5 NWLR (PT 291) 47 at 50 ratio 3 was cited in support.
The Respondent’s second issue is on whether the Appellant’s appointment was properly terminated. It was argued that the termination was in line with the stipulation of Exhibits I and 2. It was submitted that the Respondent’s witnesses attested that the termination of the Appellant’s appointment was the act of the Respondent’s Governing Council and that the Provost of the Respondent was directed to implement the decision under Section 8(1)(d) of the College of Education, Ekiadolor Edict and that the Provost can use any officer he duly assigns to implement the directive. It was posited that the Provost and Registrar were agents of a disclosed principal and that their action binds their principal. The case of OPUO vs. NNPC (2001) 14 NWLR (PT 734) 552 at 556 – 557 ratios 1 – 5 was referred to. The Respondent maintained that Appellant’s employment was not terminated on the basis of any misconduct but simply on the ground that his service was no longer required.
The Respondent’s issue number three flows from a resolution of issue number two and it is submitted that where issue number two is resolved against the Appellant, then the Appellant cannot be entitled to an order of reinstatement. The Respondent maintained that all the Appellant will be entitled to are his outstanding emolument and terminal benefits which he would have received during the period of notice as rightly awarded by the lower court.
The Appellant filed a Reply Brief in answer to the submissions in the Respondent’s Brief of Argument. The Appellant’s Reply Brief is dated 21st April 2008 but filed on 23rd April 2008. In the said Reply Brief which was settled by the Appellant personally, it was submitted that the dictum of Tobi, JSC in the IDONIBOYE-OBU case (supra) relied upon by the Respondent was not applicable wholly in other different cases and that the Respondent’s Staff Conditions of Service, Exhibit 2, had the same force of law as Exhibit 1, the College of Education, Ekiadolor Edict.
The Appellant further submitted that the Respondent like all other public higher institutions which are established by statute have Staff Regulations made by their Governing Councils pursuant to their enabling laws; and that it is usually the circumstances of facts leading to the termination of the appointment that must be considered along with the section of the statute or paragraph of the Regulation applied in order to determine whether the confirmed appointment has statutory flavour or not.
In conclusion, the Appellant stated that the Respondent’s Senior Staff Regulation, Exhibit 2, was made by the Governing Council pursuant to the power vested on it by Sections 14 – 21 of the College of Education Ekiadolor, Edict, Exhibit 1 herein, and that this being so it was a subsidiary legislation and administrative law of the Respondent, having the force of law and the same status as Exhibit 1.
At the hearing of the appeal, O. M. Obayuwana, Esq., learned Counsel for the Appellant adopted the submissions in the Appellant’s Briefs and he urged the court to allow the appeal. In the same vein, E. A. Eke, Esq., of Counsel who appeared for the Respondent adopted the submissions in the Respondent’s Brief of Argument, which was settled by H. E. Uwaifo, Esq., and he urged the court to dismiss the appeal.
I have insightfully considered the Records of Appeal and the briefs of argument filed by learned counsel on both sides of the divide. The judgment of the lower court which is at pages 48 – 148 of the Records can be segmented into four parts. Pages 48 – 57 deals with the Review of facts and evidence by the lower court; pages 57 – 62 is a reproduction of the written final address of the Respondent’s counsel before the lower court and pages 62 – 138 is a reproduction of the written final address of the Appellant’s counsel before the lower court. Finally pages 138 – 148 of the judgment deals with the evaluation of evidence, findings and verdict of the lower court.
Notwithstanding the verbose treatise filed by the Appellant both as written final address before the lower court and as brief of argument before this court, the bone of contention in this matter based on the reliefs claimed is simple, narrow and straightforward. The Appellant merely succeeded in obfuscating issues when it failed to advert his mind to the reliefs he had claimed. It is this obfuscatory tendency that made the Appellant spill so much ink on regurgitating the incidents of an employment with statutory flavour when in the strict sense based on the reliefs claimed, it was absolutely unnecessary. In fact the conduct of the matter and presentation of the argument and submissions by the Appellant can be likened to the vaudeville theatrical genre of variety entertainment which was especially popular in the United States and Canada from the early 1880’s until the early 1930s. The typical vaudeville performance which is carried out by performers referred to as vaudevillians, of which the Appellant herein seems to strive to be one, is made up of a series of separate unrelated acts grouped together on a common bill. The absurdity of such a performance which would normally include, singers, dancers, comedians, magicians, acrobats etc in an unrelated performance can be likened to the presentation of his case by the Appellant as he has completely lost the plot as it relates to the reliefs he claimed.
I have already set out the reliefs claimed both original and as amended.
The law is that the claim endorsed on the statement of claim, a fortiori, an amended statement of claim supersedes the claim on the writ of summons. See OTU vs. ACB (2008) 3 NWLR (PT 1073) 179 at 210, EZENWA vs. OKO (2008) 3 NWLR (PT 1075) 610 at 627A – C and EYA vs. OLAPADE (2011) LPELR (1184) 1 at 11.

In order to conduce for the utmost pellucidity, I will reproduce the relief claimed in the writ of summons; and it is as follows:
1. A declaration that the purported termination of Plaintiff’s employment with the Defendant vide letter dated 21/10/99 is unlawful, unconstitutional, null and void and of no effect whatsoever.
2. An order setting aside the purported termination of Plaintiff’s employment with the Defendant.
3. A declaration that the Plaintiff is still in the service of the Defendant and is therefore entitled to be re-instated to the position he held in the service of the Defendant.
4. An order re-instating the Plaintiff to the position occupied by him in the Defendant’s employment (including enjoyment of promotion as his colleagues unaffected by the said termination of employment)
5. An order of payment of arrears of salary and other emoluments from 21/10/99 till re-instatement, including payment of money in lieu of annual leave due from 1999 till re-instatement.
By the above reliefs as claimed, the Appellant had the carte blanche to proceed ex cathedra to establish in all manner how the termination of his employment was unlawful, wrongful, unconstitutional, null and void and of no effect whatsoever. This relief it needs to be pointed out is the principal relief claimed and all the other reliefs claimed are like leeches, as their success is dependent on the success of the principal relief claimed. The Appellant then amended the principal relief he was claiming in the Further Amended Statement of Claim. For clarity I will once again reproduce paragraph 29(i) of the Further Amended Statement of Claim wherein the following relief is claimed:
“(i) A declaration that the purported termination of Plaintiff’s employment with the Defendant vide letter dated 21/10/99 is unlawful wrongful, null and void and of no effect whatsoever in that the termination was done by the Provost who has no power under the law to do so.” (Emphasis supplied).
By the amendment to this relief, particularly the portion highlighted, the Appellant streamlined the grounds on which he sought a declaration that the termination of his employment was unlawful, wrongful, null and void and of no effect whatsoever to be because “the termination was done by the Provost who has no power under the law to do so.” The issues and reliefs which a court could grant thus became circumscribed by whether the termination was done by the Provost as claimed.
The law is that an amendment dates back to the date when the process amended was originally filed: UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT 1085) 372 at 399; so the relief as contained in the Further Amended Statement of Claim is in law taken as the relief that was claimed ab initio.

In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary law that a court is bound by the relief or reliefs sought. The generosity or charity of a court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to court knows where the shoe pinches him and therefore knows the limits of what he wants. The court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92.

The Appellant who wears the shoes identified precisely where it pinches and he consequently amended his relief in that regard. It was no longer the business of any court to consider whether sufficient or no notice was given or if the employment was one with statutory flavour. As circumscribed by the relief claimed, it was strictly whether the termination of the Appellant’s appointment by the Provost who had no power under the law to do so was unlawful, wrongful, null and void and of no effect whatsoever.
In defining the meaning of ‘claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:
“A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law. ”

Just as it is elementary that the plaintiff cannot present a case different from his claim, so also can a court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:
“The position of the law is clear that a court of law can only grant reliefs claimed by a party and not more. It is trite that a court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.”

In the entire circumstances, I will not join in the Appellant’s vaudeville show. The relevant and critical issue for determination arising from the relief claimed is the Appellant’s issue number four, id est:
Whether the Registrar or Provost of the Respondent has the statutory competence to terminate the appellants appointment, when neither of them was acting for the Chairman of the Governing Council who alone is vested with powers by the law establishing Respondent to terminate appointments.
This issue can be taken with the Appellant’s issue number one in so far as it relates to evaluation of the evidence on whether the Provost terminated the Appellant’s appointment.
It is pertinent to underscore that from the relief claimed, the issue is not whether the proper procedure was followed in the termination of the Appellant’s appointment, but in fact, it is whether the Appellant’s appointment was terminated by the Provost as borne out by the Principal relief claimed. The Appellant averred in paragraphs 17 and 28 of the Further Amended Statement of Claim that it was one Professor Raymond Elaho, the Provost of the Respondent College and not the Governing Council of the Respondent that unilaterally terminated his appointment.

In UBN LTD vs. OGBOH (1995) LPELR (3387) 1 at 24, Belgore, JSC (as he then was) stated as follows on the consequences of pleadings:
“A party is only bound by what he pleads and that pleadings is his case, nothing more, nothing less. A party should be given only the relief he claims and what must be reasonably antecedent to it.”

The Appellant argues that the letter terminating his appointment, Exhibit 2 was issued by the Provost through the Registrar and that none of them had such powers under Section 18(2) of the College of Education Ekiadolor Edict, Exhibit 1, in the case. Relying on the maxim delegatus non potest delegare it was submitted that signing the letter without any mention of the Governing Council was unlawful and that the Chairman of the Governing Council should have personally signed the letter.
Replicando, the Respondent submitted that the Respondent’s witnesses attested that the decision to terminate the Appellant’s appointment was that of the Respondent’s Governing Council and that by Section 8(1)(d) of the College of Education Ekiadolor Edict, it was the responsibility of the Provost, who can use any officer he duly assigns, to implement the decisions of the Council; and that being agents of a disclosed principal, their action will bind the principal.
Now, it cannot be disputed that the letter terminating the Appellant’s appointment was signed by the Registrar for the Provost. This much is apparent on the face of. Exhibit 2, the termination letter. In the pleadings filed, the parties joined issues on whether it was the Provost or the Governing Council that terminated the Appellant’s appointment. In his testimony on page 38 of the Records, the Appellant stated that it was the Governing Council that has power to terminate his appointment under Exhibits 1 and 2, but that by Exhibit 9, the letter of termination, the Provost terminated his appointment. The Appellant maintained in his testimony under cross examination on page 39 of the Records that the Provost has no power to terminate his appointment.
The DW1 called by the Respondent testified as to the meetings of the Governing Council of the Respondent on the issue of staffing and that the decisions of the Governing Council in that regard were implemented by the Respondent. The witness stated that the Appellant was a temporary staff whose services can be dispensed with without reference to the Governing Council, but that the Governing Council tried to be humane by going into the case of the Appellant. The witness tendered the minutes of meeting and records of the Governing Council and the same were admitted in evidence as Exhibits 12, 13, 14 and 15.
Now, Section 18(2) of the College of Education Ekiadolor Edict, gives the Governing Council the power to terminate the appointment of any member of staff if in the opinion of the Council his services are no longer required. By Exhibit 2, the letter of termination, the Appellant’s appointment was terminated because his services were no longer required. The Appellant however argues that neither the Provost nor the Registrar who signed the letter has the power to terminate his appointment. The testimonial evidence of the parties is disparate with regards to whether the Governing Council terminated the Appellant’s appointment.

Exhibits 12, 13, 14 and 15 which are proceedings of the Governing Council and Committees set up by the Council conclusively show that the decision to terminate the Appellant’s appointment was taken by the Governing Council of the Respondent. The testimonial evidence of the Respondent’s witness (DW1) in this regard is therefore to be preferred to the ipse dixit of the Appellant that it was the Provost of the Respondent College that unilaterally terminated his appointment. Nevertheless, does the fact that the termination letter was signed by the Registrar, for the Provost, make the letter communicating the termination ineffectual?
It is instructive that the termination letter, Exhibit 2, opens with the words, “I am directed” thus showing that the writer of the letter was merely implementing the directives that he was given. In this instance, the writer being the Provost, as the Registrar merely signed the letter on behalf of the Provost.
The Appellant contended, relying on the maxim delegatus non potest delegare, that to be effective the letter of termination should be signed by the Chairman of the Governing Council. I have already established and accepted in this judgment that the decision to terminate the Appellant’s appointment was a decision of the Governing Council. By Section 8(2) of the College of Education Ekiadolor Edict, the Provost shall execute the decisions of the Council. So under the law there was an obligation on the Provost to execute the decision of the Council to terminate the appointment of the Appellant. The Office of the Registrar of the Respondent College is established by Section 11 of the College of Education Ekiadolor Edict and by Section 11(2) and (3) of the Edict, the Registrar is the Secretary of the Council and shall perform such other functions as may be assigned to him by the Provost. So it would be within the provisions of the law if in executing the decision of the Council under Section 8(2), the Provost assigns to the Registrar, who is the Secretary of the Council, the responsibility under Section 11(3) of the law to write the letter conveying the decision of the Council to terminate the appointment of the Appellant.

The legal maxim delegatus non potest delegare belongs in the realm of constitutional or administrative law, but it may also arise in the con of the law of agency. This hackneyed maxim, which means ‘a delegate may not sub-delegate powers or functions delegated to him except expressly authorized to do so’, is often invoked in constitutional or administrative law to declare invalid the exercise of power or the discharge of functions by persons other than those to whom the powers or functions have been entrusted. Therefore, by the application of the maxim, where powers or functions are delegated or entrusted to a government functionary, he may not sub-delegate such powers or functions unless he is expressly authorized to do so. This is the general rule. See OKORO vs. DELTA STEEL CO. LTD (1990) 2 NWLR (PT 130) 87.

However, it has been held that a government functionary may normally act through departmental officials without infringing the maxim. Thus, where functions entrusted or delegated to a functionary are performed by an official employed in the department headed by that government. There is in law no functionary delegation or sub-delegation because constitutionally, the act or decision of the official is that of the functionary. This is known as the Carltona Principle enunciated in the case of CARLTONA LIMITED vs. WORKS COMMISSIONERS (1943) 2 ALL ER 560. See also Halsbury’s Laws of England (4th Edn.), Vol. 8(2), page 242, paragraph 365 and Bowstead & Reynolds on Agency (17th Edn.) page 139, paragraph 5-006.
In CARLTONA LIMITED vs. WORKS COMMISSIONERS (supra), the argument relating to sub-delegation of statutory powers which came before the English Court of Appeal was that the person who had the power to act for or on behalf of the Commissioners of Works under the relevant statute was the First Commissioner, but that the person who in fact acted for the First Commissioner was the Assistant Secretary. In discountenancing the argument that the Commissioners of Works (as a body) did not take the matter into consideration or that the First Commissioner (being the delegate of the Commissioners of Works) did not personally direct his mind to the matter, Lord Greene, MR had this to say at page 563 of the Report:
In the administration of government in this country, the functions which are given to ministers… are functions so multifarious that no minister could personally attend to them…The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the {minister’s} department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before the Parliament for anything that his officials have done under his authority…
As in CARLTONA LIMITED v. WORKS COMMISSIONERS (supra), so is it here. Nearer home, the Supreme Court (per Nnaemeka-Agu, JSC of blessed memory) in the case of NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT 135) 688 at 718 – 719 H-B (quoting from Administrative Law by Wade, 3rd Edition, page 67) stated as follows:
Although the Courts are strict in requiring that statutory power shall be exercised by persons on whom it is conferred and by no one else, they make liberal allowance for the working of the official hierarchy at least so far as it operates within the sphere of responsibility……. This is embodied in the Latin maxim: qui facit per alium facit per se i.e. he who does an act through another is deemed in law to do it himself.

In the light of the provisions of the College of Education Ekiadolor Edict, it is of no moment that Exhibit 2, the letter of termination was signed by the Registrar on behalf of the Provost. It did not in any way affect the efficacy of the said letter which was to convey the decision of the Governing Council that the services of the Appellant were no longer required. Furthermore, in NNPC vs. TRINITY MILLS INS. BROKERS (2002) LPELR (7142) 1 at 14, this court per Aderemi, JCA (as he then was) stated:
“Generally, a delegated power cannot be delegated. The Latin maxim is DELEGATA POTESTAS NON POTEST DELEGARL This principle or rule applies wherever the authority involves a trust or discretion in the agent for the exercise of which he is selected. But it does not apply where it involves no matter of exercise of discretion; and it is immaterial whether the act is to be done by one person or the other.”
In the instant case there was absolutely no matter of exercise of discretion involved in the person who conveyed the decision of the Governing Council of the Respondent to terminate the Appellant’s appointment. The person that signed the letter is immaterial since from the documentary and testimonial evidence it was the Governing Council that took the decision to terminate the Appellant’s appointment.

In as much as the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial court, an appellate court will interfere where as in the instant case the trial court fails to evaluate the evidence at all, provided that the exercise will not involve the credibility and veracity of the witnesses. See MAINAGGE vs. GWAMMA (2004) 14 NWLR (PT 893) 323 and OKONKWO vs. OKONKWO (2010) LPELR (9357) 1 at 38.

The lower court was sucked in by the vaudeville performance of the Appellant consequent upon which it did not evaluate the evidence with regard to the principal relief claimed, id est, whether it was the Provost of the Respondent College that terminated the Appellant’s appointment. Having evaluated the evidence, I have arrived at the conclusion that the evidence on Record establishes that the Appellant’s appointment, as conveyed to him by virtue of the provisions of the College of Education Ekiadolor Edict, was terminated by the Governing Council of the College. Accordingly the issue will be resolved against the Appellant.
Let me restate that the relief claimed in paragraph 29(i) of the Further Amended Statement of Claim is the principal relief claimed by the Appellant. All the other reliefs claimed are parasitic and their grant depends on the Appellant succeeding in the principal relief. Since I have resolved the paramount and live issue in this appeal against the Appellant, the necessary implication is that all the other reliefs which are like leeches would equally fall through. The legal principle being sublato principali tollitur adiunctum (co. Litt. 389) (the principal being taken away, the adjunct is also taken away) See ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269.
Since the Appellant restricted his claim to the termination of his appointment being unlawful because the termination was done by the Provost, which I have held is not established by the evidence, the lower court ought not to have awarded any damages to the Appellant since the reliefs were circumscribed by paragraph 29(i) of the Further Amended Statement of Claim. However in the absence of any cross appeal, this court cannot interfere with the award so made by the lower court.

CONCLUSION
The postulations in the Appellants brief of argument on the other issues for determination in so far as they do not impact on the principal relief claimed are merely of academic interest. Whether the Appellant’s employment has statutory flavour (issue number two), whether the Respondent was bound to justify the reason given for the termination of the Appellant’s employment (issue number three), whether the lower court should have ordered the reinstatement of the Appellant (issue number five) and whether the Appellant was given fair hearing before his appointment was terminated (issue number six) would not in any way lead to a grant of the principal relief claimed which at the risk of prolixity, I restate is that the termination was unlawful, wrongful, null and void and of no effect whatsoever because the termination was done by the Provost of the Respondent College. The courts do not deal with hypothetical or academic issues directed at demonstrating academic dexterity or excellence. The courts are established to deal with matters in difference between the parties based on the reliefs claimed. See CBN vs. AMAO (2010) LPELR (838) 1 at 12 – 13 and OKOTIE-EBOH vs. MANAGER (2004) LPELR (2502) 1 at 35. The law remains that the court is bound by the reliefs claimed and even if the evidence established the other issues complained about by the Appellant, the court remains hamstrung and cannot grant any reliefs premised thereon, not being subject of the principal relief claimed. See OKOBIA vs. AJANYA (1998) 6 NWLR (PT 554) 348 or (1998) LPELR (2454) 1 at 26.
In a summation, this appeal is devoid of merit, the same fails and it is hereby dismissed. The parties are to bear their respective costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I completely agree with the indepth and erudite reasoning and conclusions in respect of the contentious issues in this appeal. I have nothing useful to add. I also dismiss the appeal as lacking in merit and abide by the order as to costs in the lead judgment.

PHILOMENA MBUA EKPE, J.C.A.: I was obliged in advance a copy of the very comprehensive judgment just delivered by my learned brothers U.A. Ogakwu JCA. For the reasons advanced in the lead judgment I agree that there is no scintilla of merit this appeal at all.
The gravamen of the case before the lower court is that the appellant was offered a temporary appointment by the respondent as a part time lecturer and from all the facts adduced at the court below that position was never altered until the appellant was finally relieved of his appointment. The appellant’s grouse now is that having been saddled with various responsibilities performed by permanent staff, he ought not to have been relieved of his appointment and treated as a temporary staff.
The term temporary appointment means the employee will be placed on probation until his employer is satisfied with his conduct to be given a permanent appointment.

The sole purpose of putting an employee on probation or giving him a temporary appointment is to give the employer an assurance that the employee is a fit or proper person to be placed on permanent appointment. It is note worthy that probationary period is a period of observation by any employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot with any justification complain. See: IHEZUKWU V. UNIVERSITY OF JOS & ORS. (1990) 7 SC (PT. 1) 18.

The essence of a probationary appointment is that the employer retains the right not to confirm the appointment until after a specific period. That to my mind applies in this case where the employer did not think it fit to confirm the employment of the appellant until the said appointment was terminated.

Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. As long as he acts within the terms of his employment, the terms of his employment or motive for doing so is irrelevant. A servant as in this case, who complains that his employment has been wrongfully terminated must found his claim on the contract of service and show what manner the wrong was done. It therefore is not the duty of the employer as defendant to prove that the termination was not wrongful. See: IDONIBOYE-OBU V. NNPC (2003) 2 NWLR (PT. 805) NWLR
(PT. 805) 589.

In the case before us, the appointment of the appellant was terminated by reason of the fact that his services were no longer required. From the case aforementioned the respondent was not obliged to give reasons for the relief of the appellant’s appointment. For the above reason and the fuller reasons exhaustively adumbrated in the lead judgment, I too am of the ardent view that this appeal has no iota of merit and I dismiss it accordingly. The judgment of the lower court delivered by ITUA J. on the 19th day of April 2005 is hereby affirmed.
I abide by his Lordship’s order as to costs.

Appearances

O. M. Obayuwana, Esq. (with E.M. Ehidiamen, Esq.)For Appellant

AND

E. A. Eke, Esq. (holding the brief of H. E. Uwaifo, Esq.)For Respondent