RAPHAEL OGUMKA V. CORPORATE AFFAIRS COMMISSION
(2010)LCN/3616(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/A/226/05
RATIO
JURISDICTION: ESSENCE OF JURISDICTION
It is settled law that Jurisdiction is the threshold and lifewire of any determination and should be considered and determined before considering anything else, as a decision no matter how well considered will come to nothing once the Court lacks authority to try it. PER JIMI OLUKAYODE BADA, J.C.A.
JUDGMENT: TEST TO DETERMINE WHETHER A DECISION IS FINAL OR INTERLOCUTORY
The test whether a decision is final or interlocutory was settled by the Supreme Court in the case of:- Akinsanya vs. U.B.A. Limited (1986) 4 NWLR Part 35 Page 273 where the Supreme Court adopting the test set down in:- Bozon vs. Altricham U.D.C. (1903) 1 Q. B. Page 574 held the appropriate test to be applied as follows:-
“Does the Judgment or order as made finally dispose of the right of parties. If it does, then the order is a final order, if it does not, it is interlocutory.”
See also the following cases:-
– Blay & Others vs. Solomon (1947) 12 WACA Page 175;
– William Ude & Others vs. Josiah Agu & Others (1961) 1 All NLR Part 1 Page 65;
– Falola vs. U.B.A. Plc (2005) 2 NWLR Part 924 at 405. 419 and 426-7 PER JIMI OLUKAYODE BADA, J.C.A.
LABOUR LAW: WHETHER AN EMPLOYER CAN TERMINATE THE CONTRACT OF THE EMPLOYEE AT ANY TIME FOR NO REASON
it is clear that an employer can terminate the contract with his/her employees at any time for any reason or for no reason at all. But if the contract is terminated in a manner not warranted by the particular contract, the employer is liable to pay damages. This is because in ordinary contract of service of master and servant, the remedy for breach of such contract is simply payment of damages. However, except under special circumstances a Court of law in such type of contract would not order a reinstatement. See the following cases:-
– Olaniyan vs. University of Lagos (1985) 2 NWLR Part 9 Page 599;
– Shitta-Bay vs. Federal Public Service Commission (1981) 1 S.C. Page 40;
– Ewarami vs. A.C.B. Ltd (1978) 4 S.C. Page 99. PER JIMI OLUKAYODE BADA, J.C.A.
WORDS AND PHRASES: DEFINITION OF ‘UNLAWFUL’ AND ‘WRONGFUL’
Unlawful is defined in the Oxford Advanced Learner’s Dictionary as Not allowed by the law.
And in Black’s Law Dictionary Eighth Edition, ‘Unlawful’ – means Not authorised by law, illegal.
Wrongful is defined in the Oxford Advanced Learner’s Dictionary as – Not fair or legal.
And in Black’s Law Dictionary Eighth Edition, ‘wrongful’ – means among others contrary to law, unlawful, characterized by Injustice. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
RAPHAEL OGUMKA Appellant(s)
AND
CORPORATE AFFAIRS COMMISSION Respondent(s)
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court sitting at Abuja in Suit No. FHC/ABJ/CS/355/2003 which was delivered on 18/2/05.
By paragraph 17 of the Statement of Claim dated 25/7/03 and filed on 28/7/03 the Plaintiff claimed against the Defendant as follows:-
“(1) The sum of Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty-Six Naira Eight Kobo (N7,158,646.08) only being the terminal benefit of the Plaintiff calculated in accordance with the employee’s handbook which governed the employment of the Plaintiff with the Defendant
(2) Cost of this Suit”.
The Respondent filed a Statement of Defence dated 7th June, 2004 wherein it denied all the claims of the Appellant.
At the conclusion of hearing the learned trial Judge in a considered Judgment dismissed the Plaintiff/Appellant’s Claims.
The Appellant dissatisfied with the said Judgment now appealed to this Court.
The learned Counsel for the Appellant formulated two issues for determination as follows:-
“(1) Whether the trial Court was right in holding that facts relating to annual salary, leave bonus, House Rent Allowance, Transport Allowance and Medical Treatment etc of the Appellant was not pleaded when the Appellant pleaded the conditions of service of the Respondent which contained those facts.
(2) Whether the trial Judge was right in treating the suit as a case of wrongful termination of appointment when the Appellant made it clear that he was only asking for his terminal benefits”.
The learned Counsel for the Respondent also formulated two issues for determination as follows:-
“(1) Whether by merely pleading the condition of service without particularizing and proving under which head therein the facts of the Appellant’s case entitles him to the sum claimed, the trial Court ought to have entered Judgment in his favour.
(2) Whether the reference to ‘wrongful termination’ of appointment by the trial Court led to any miscarriage of Justice against the Appellant”.
At the hearing, learned Counsel for the Appellant referred to the Appellant’s Brief of Argument filed on 23/5/07. He also referred to the reply to the Preliminary Objection.
The learned Counsel for the Appellant adopted the Appellant’s Brief of Argument and the reply to the Preliminary Objection in urging the Court to allow the appeal.
The learned Counsel for the Respondent also referred to the Respondent’s Brief of Argument filed on 19/6/08 but deemed properly filed on 6/4/09. He adopted the said brief in urging that the appeal be dismissed.
The learned Counsel for the Respondent raised Preliminary Objection to the two grounds of appeal. He argued that Grounds 1 and 2 of the Notice of Appeal should be struck out because:-
The grounds are based on facts alone or at best mixed law and fact, and leave of this Court ought to have been sought and obtained, otherwise there is no jurisdiction to entertain it and the grounds are incompetent.
He relied on the following:-
– Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria;
– NNSC vs. ESV (1990) 11-12 S.C. Page 209;
– Ogemien vs. Momodu 11 (1983) 1 SCNLR Page 188 at 206.
He argued that a ground of appeal is said to be based on facts if the ground is one that would require questioning the evaluation of facts by the lower Court.
He relied on the case of:-
– Iwueke vs. Imo Broadcasting Corporation (2005) 10 S.C. Page 19.
He stated that the Appellant contended that having admitted the conditions of service Exhibit ‘D’, that the trial Court wrongly went outside Exhibit ‘D’ to import facts not stated in Exhibit ‘D’ in reaching its decision.
Under Ground 2, he went further that what the Appellant is challenging in that Judgment is that the Appellant’s Claim was not for wrongful termination but for the payment of his terminal benefit which has been computed in the conditions of service, Exhibit ‘D’.
Learned Counsel for the Respondent submitted further that the two grounds of appeal are clearly not of law alone and it required the prior leave of this Court otherwise they are incompetent and should be struck out.
In his reply, the learned Counsel for the Appellant referred to Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria which he said is subject to Section 241 of the said 1999 Constitution.
He contended further that the appeal is based on law and he urged this Court to strike out the Preliminary Objection of the Respondent.
It is important to treat the Respondent’s Notice of Preliminary Objection first because it is a challenge to the competence of the appeal.
It is settled law that Jurisdiction is the threshold and lifewire of any determination and should be considered and determined before considering anything else, as a decision no matter how well considered will come to nothing once the Court lacks authority to try it.
Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria states that – An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
The pertinent question at this juncture is whether or not the decision appealed against is a final decision?
The test whether a decision is final or interlocutory was settled by the Supreme Court in the case of:- Akinsanya vs. U.B.A. Limited (1986) 4 NWLR Part 35 Page 273 where the Supreme Court adopting the test set down in:- Bozon vs. Altricham U.D.C. (1903) 1 Q. B. Page 574 held the appropriate test to be applied as follows:-
“Does the Judgment or order as made finally dispose of the right of parties. If it does, then the order is a final order, if it does not, it is interlocutory.”
See also the following cases:-
– Blay & Others vs. Solomon (1947) 12 WACA Page 175;
– William Ude & Others vs. Josiah Agu & Others (1961) 1 All NLR Part 1 Page 65;
– Falola vs. U.B.A. Plc (2005) 2 NWLR Part 924 at 405. 419 and 426-7
Consequent upon the foregoing, it is my view that the decision appealed against in this case is a final decision of the trial High Court sitting at first instance and it finally determined the right of the parties before the Court.
The learned Counsel for the Respondent contended that the Notice and Grounds of appeal are incompetent because the said grounds 1 and 2 of the Notice of Appeal are based on facts alone or at best mixed law and fact and that leave of this Court ought to have been sought and obtained.
As I said earlier in this Judgment that, the decision appealed against is a final decision of the trial High Court therefore by virtue of Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in cases of final decisions in any civil or criminal proceedings before the Federal High Court or the High Court sitting at first instance. In the instant case, the Appellant’s grounds of appeal, being grounds of appeal raised against a final decision at first instance in a civil matter even though were of fact or mixed law and fact did not require leave of the Court.
The above view is supported by a number of authorities including the following:-
– Aqua Ltd vs. Ondo State Sports Council (1988) 4 NWLR Part 91 Page 622;
– 7-Up Bottling Co. Plc vs. Abiola & Sons Bottling Co. Ltd. (2002) 2 NWLR Part 750 Page 40 at 57 – 58;
Inyang vs. Ebong (2002) 2 NWLR Part 751 Page 284 at 321;
– Etim vs. I.G.P. (2001) 11 NWLR Part 724 Page 266 or (2001) FWLR Part 21 Page 767 at 779 – 780.
In view of the foregoing, I hold that the Preliminary Objection is misconceived and it is hereby dismissed.
I shall now proceed to determine the merit of the appeal.
The issues formulated by learned Counsel on behalf of the parties are similar, however, the issues set out on behalf of the Respondent with slight modification by me are considered relevant and apt to determine this appeal.
Issue 1
Whether by merely pleading the condition of service without particularizing and proving under which head therein the facts of his case entitles him to the sum claimed, the trial Court ought to have entered Judgment in favour of the Appellant.
Learned Counsel for the Appellant referred to Exhibit ‘D’ on pages 31- 56 of the record. He said that the Appellant pleaded and relied on the documents. He relied on the case of:-
Adam vs. L.S.D.P.C. (2000) 15 NWLR Part 656 at 291 and 311.
Particular references was made to pages 17 and 18, 44 and 45, 54 and 55 of Exhibit ‘D’ which the Appellant stated showed the following:-
– Annual Salary.
– Leave Bonus.
– House Rent Allowance.
– Transport Allowance.
– Medical Allowance etc.
Learned Counsel for the Appellant submitted that, it is the duty of Court to confine itself to the interpretation of the rights of both parties as contained in the contract of employment between the parties. He relied on the case of – Angel Spinning & Dyeing Ltd. vs. Ajah (2000) 13 NWLR Part 685 Page 532 at 540.
He also stated that the learned trial Judge was convinced that the Appellant had worked with the Respondent for 12 years and that page 83 of the record of appeal where the formula for calculating terminal benefits is contained was referred to.
He went further in his submissions that the Appellant having referred to the conditions of service in his pleadings, that the contents of the condition of service is also deemed to have been pleaded. He referred to the case of:- Adams vs. LSDPC (Supra).
It was also submitted that since the Respondent failed to lead evidence in support of its pleadings, the pleading is deemed abandoned. He relied on the following cases of:
– Michael vs. Yuoso (2004) 15 NWLR Part 895 Page 111 Paragraph A-F.;
– Provost vs. Edun (2004) 2 SCNJ Page 156 at 169;
– Federal Capital Development Authority vs. Alhaji Musa Naibi (1990) All NLR Page 475 at 485;
– Alao vs. Akano (2005) 11 NWLR Part 935 Page 160 at 180.
Learned Counsel therefore urged that Judgment be entered in favour of the Appellant.
The learned Counsel for the Respondent in his response to the submissions of the learned Counsel for the Appellant submitted that the Appellant failed to discharge the onus placed on him under Section 137 of the Evidence Act to plead and prove the terminal benefits and the quantum.
He went further in his submissions that the trial Court rightly held, that material facts showing the circumstances under which the sum of N7,158,646.08K was arrived at, have not been pleaded and proved by the Appellant. He relied on the case of:-
– Iwuchukwu vs. Nwize (1994) 7 NWLR Part 357 Page 379.
In view of the fact that the issues for determination in this appeal largely relate to the pleadings filed and exchanged by the parties at the lower Court I deem it apposite to reproduce in full the Plaintiff’s Statement of Claim as well as the Defendant’s Statement of Defence. They are set out as follows:-
“Statement of Claim
1. The Plaintiff is an Applicant and resides along Etsu’s Palace Road, Karu Village, Abuja within the jurisdiction of this Honourable Court.
2. The Defendant is a statutory body created by Decree No. 1 of 1990 with Headquarters at Area II Garki, Abuja within the jurisdiction of this Honourable Court.
3. The Plaintiff avers that the Defendant employed him provisionally on 28th day of June, 1991 and was confirmed on 16th December, 1992. The Plaintiff will rely on the letter of provisional appointment and the confirmation letter at the hearing of this Suit and hereby pleads them.
4. The Plaintiff avers that as a result of his discharging his duties creditably, he was promoted on 26th February, 2001 with notional effect from 1st January, 2000. The Plaintiff hereby pleads the said letter of promotion.
5. The Plaintiff avers that he was queried for touting on 18th July, 2002 an allegation, which he categorically denied in his answer to the query. The Plaintiff pleads the query and hereby gives the Defendant NOTICE TO PRODUCE his answer to the query at the hearing of this Suit.
6. The Plaintiff avers that he was directed to appear before a 3-Man Committee set up by the Defendant to investigate the allegations contained in the query.
7. The Plaintiff further avers that on 1st August, 2002 he appeared before the Committee and up till date the Committee has not made its findings known to either the Plaintiff or the Defendant.
8 The Plaintiff avers that while he was awaiting the report of the Committee he was on 30th January, 2003 issued with a letter terminating his appointment with the Defendant on the grounds that his services are no longer required. The Plaintiff pleads the purported termination letter and will rely on same during the trial of the Suit.
9. The Plaintiff avers that his Solicitors wrote to the Defendant on February 2003 complaining about the way and manner his appointment was unlawfully terminated. The Plaintiff hereby gives the Defendant NOTICE TO PRODUCE the said letter at the hearing of this Suit.
10. The Plaintiff avers that he unequivocally demanded for his terminal benefits being the sum of Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty Six Naira, Eight Kobo (N7,158,646.08K) only from the Defendant in accordance with the conditions of service which governed his employment with the Defendant. The Plaintiff relies on the conditions of service handbook and hereby pleads same.
11. The Plaintiff further avers that his Solicitors on 16th April, 2003 wrote a reminder to the Defendant reminding the Defendant that the Plaintiff’s terminal benefit is still unpaid. The Plaintiff hereby gives the Defendant NOTICE TO PRODUCE the said letter at the hearing of this Suit.
12. On 29th April, 2003, the Defendant wrote to the Solicitors of the Plaintiff claiming that the terminal benefits of the Defendant is the sum of Three Hundred and Fifty Two Thousand, Seven Hundred and Ninety Six Naira, Sixty Kobo (N352,796.60K) only. The Plaintiff will rely on the said letter at the trial of this Suit and hereby pleads the said letter.
13. The Plaintiff avers that his Solicitors on the 9th May, 2003 replied the Defendant stating that his actual terminal benefit is the sum of Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty Six Naira, Eight Kobo (N7,158,646,08K) only. The Plaintiff will at the hearing of this Suit rely on the said letter and hereby gives the Defendant NOTICE TO PRODUCE the said letter at the hearing of this Suit.
14. The Plaintiff avers that till date, the Defendants has not replied to the said letter or done anything to redress the anomaly complained of by the Plaintiff.
15. The Plaintiff avers that his true terminal benefit is the sum of Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty Six Naira, Eight Kobo (N7,158,646,08K) only and not the sum of Three Hundred and Fifty-Two Thousand Seven Hundred and Ninety-Six Naira Sixty Kobo (N352,796.60) only as is being claimed by the Plaintiff.
16. The Plaintiff avers that failure of the Defendant to pay him his terminal benefits has caused him severe hardship and dislocation in his family relationship as he is now unable to pay his House Rent and Children’s School Fees and other auxiliary family duties.
17. WHEREOF the Plaintiff claims against the Defendants as follows:-
1. The sum of Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty Six Naira Eight Kobo (N7,158,646.08) only being the terminal benefit of Plaintiff calculated in accordance with the employee’s handbook which governed the employment of the Plaintiff with the Defendant.
2. Cost of this Suit.”
“Statement of Defence
1. The Defendant admits paragraphs 1 and 2 of the Statement of Claim.
2. The Defendant with respect to paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Statement of Claim states that the Plaintiff was employed by the Defendant on the 4th day of July, 1992 as a Security Assistant, Grade 3, having been so confirmed.
3. The Defendant further states that sometimes in July 2002, he was queried for a serious misconduct and after thorough investigation, his appointment with the Defendant was duly terminated with effect from 30th January, 2003.
4. With respect to paragraphs 10, 11, 12, 13, 14, and 15 of the Statement of Claim, the Defendants states that even though the Plaintiff’s Solicitors by various letters demanded the sum of N7,158,646.08 (Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty Six Naira Eight Kobo) only from the Defendant and even though the Defendant admitted in error the sum of N352,796.60K (Three Hundred and Fifty Two Thousand, Seven Hundred and Ninety Six Naira, Sixty Kobo) as the Plaintiff’s entitlement at termination, the Defendant deny this sum or any sum at all and puts the Plaintiff to the strictest proof.
5. The Defendant aver that the Plaintiff is not entitled to the said sum or any sum at all and will contend at the trial of this suit that there is no basis for any further monetary entitlement for the Plaintiff after his services have been duly terminated by the Defendant and further states that consequently, the Defendant owes no further duty to the Plaintiff or his Dependants if any, in further reply to paragraph 16 of the claim.
6. The Defendant therefore denies the Plaintiff’s Claim in its entirety and will urge the Court to dismiss the Claim, as it is misconceived, illegal and an abuse of the process of Court.
7. In the circumstance, the Defendant urges the Court to dismiss the claim of the Plaintiff in its entirety.”
At the hearing before the lower Court the Plaintiff testified as the only witness. The Defendant did not testify but rested its case on that of the Plaintiff.
The Plaintiff tendered in evidence the letter of offer of provisional employment dated 28/6/91. It was admitted as Exhibit ‘A’.
The said letter contained a clause that “At anytime unless you are dismissed, you may terminate your engagement by a month’s salary in lieu of such notice. The Commission may also at anytime terminate your appointment by a month’s notice or the payment of a month’s salary in lieu of such notice.”
The Plaintiff was placed on Grade level 4 with a salary of N3.504.00.
On 26/2/2001 he was promoted to take effect from 1/1/2001. And he moved to CAC Salary Scale 5 Step 2. The letter was marked as Exhibit ‘C’.
The conditions of services was also tendered in evidence and it was marked as Exhibit ‘D’. The Plaintiff/Appellant was also queried on 18/7/02 for touting which he denied. The query was admitted in evidence and marked as Exhibit ‘E’.
Finally, on 30/11/03 his appointment was terminated. The letter terminating his appointment was also tendered in evidence and marked as Exhibit ‘F’.
From the state of pleadings reproduced above and the Exhibits tendered before the trial Court, it is clear that the main issue in this case arose from the termination of appointment of the Plaintiff/Appellant.
It is trite law, that when an employee complains of unlawful termination of employment by his employer, he has the onus to prove the unlawful termination of the said employment by:
(a) Placing before the Court the terms and conditions of the contract of Employment, and
(b) Proving in what manner the said terms were breached by the employer.
See – Angel Spinning & Dyeing Ltd vs. Ajah (2000) 13 NWLR Part 685 Page 532.
In the instant case, the Plaintiff/Appellant is asking for terminal benefit and in my view it is necessary for him to plead the terms and conditions of the contract of service and go further to establish through evidence how the terms and conditions were breached by the Respondent.
See – Amodu vs. Amode (1990) 5 NWLR Part 150 Page 356.
The Plaintiff tendered Exhibit ‘D’ i.e. the Conditions of Service of the Defendant under which his appointment was terminated. And in paragraph 11.02(a) of the said Exhibit ‘D’ it was stated that:-
“where the services of a staff is no longer required, the Commission may terminate his/her appointment by giving one month’s notice or one month’s salary in lieu or in the case of staff on CAC 10 and above 3 months notice or 3 months’ salary in lieu of notice.”
By the above provisions, it is clear that an employer can terminate the contract with his/her employees at any time for any reason or for no reason at all. But if the contract is terminated in a manner not warranted by the particular contract, the employer is liable to pay damages. This is because in ordinary contract of service of master and servant, the remedy for breach of such contract is simply payment of damages. However, except under special circumstances a Court of law in such type of contract would not order a reinstatement. See the following cases:-
– Olaniyan vs. University of Lagos (1985) 2 NWLR Part 9 Page 599;
– Shitta-Bay vs. Federal Public Service Commission (1981) 1 S.C. Page 40;
– Ewarami vs. A.C.B. Ltd (1978) 4 S.C. Page 99.
Furthermore, under paragraph 11.10 of the said Exhibit ‘D’ titled Benefits on Leaving Service it provides thus:-
(a) If a staff is dismissed or resigns in order to avoid dismissal, he/she shall not be entitled to the benefits or any part thereof;
(b) …
(c) …
(d) The payment of gratuity/pension benefits shall be in accordance with the following schedule:-
Completed Years of Service Less than 3 years
Completed Years of Service Proportion of Staff Benefits to Staff
Less than 3 years Nil
3 years but less than 4 years 50%
4 years but less than 5 years 70%
5 years but less than 6 years 100%
6 years but less than 7 years 120%
7 years but less than 8 years 150%
8 years but less than 9 years 170%
9 years but less than 10 years 200%
10 years but less than 15 years 225%
15 years and above 250%
In this case, as I stated earlier in this Judgment, the Plaintiff/Appellant tendered Exhibit ‘D’ in evidence but he has failed to establish through evidence how Exhibit ‘D’ i.e. the condition of service were breached by the Respondent.
As observed by the learned trial Judge, even though the Plaintiff/Appellant claimed to be entitled to 225% of proportion of the benefit to staff throughout the length and breadth of the pleadings and evidence before the lower Court there was no evidence of how the Plaintiff/Appellant arrived at N7158,646.08 (Seven Million One Hundred and Fifty Eight Thousand Six Hundred and Forty-Six Naira Eight Kobo) which he claimed as terminal benefit. And as rightly observed by the learned trial Judge the Plaintiff/Appellant has failed to plead and prove the following material facts:-
(a) His present annual salary
(b) Leave bonus
(c) House rent allowance
(d) Transport allowance
(e) Medical allowance etc.
The learned Counsel for the Appellant submitted that having referred to the conditions of service in his pleadings, the contents of the condition of service is also deemed to have been pleaded.
I do not agree with the view of the learned Counsel for the Appellant because in my own view, reference in a pleaded document to another document not pleaded is not the same as pleading that other document and it is not open to the Court to act on such unpleaded document. In other words, reference in a document to another document not pleaded does not render the latter document pleaded. In the instant case the Appellant failed to plead the manner in which he arrived at the sum claimed for example, what was the Appellant’s current salary as at the time his appointment was terminated? What was the amount he was entitled to as Leave Bonus? And what was he entitled to as house rent allowance?
See – Oyediran vs. Alebiosu (1992) 6 NWLR Part 249 Page 550.
The facts relied upon for bringing a particular transaction within the ambit of a particular statute must be specifically pleaded. Such facts or allegations which are the essence of the cause of action must be pleaded in the Plaintiffs Statement of Claim. Thus, when a party relies on the provisions of a statute or rules or contract as giving rise to his cause of action the law expects him to state the facts, which show what elements or rights in the provisions or rules apply to him. In other words, if a Plaintiffs cause of action or his title to sue depends on a statute, he must also prove them. Those facts must be alleged which must amount to a cause of action.
See the case of:- Lion of Africa Insurance Co. Ltd vs. Anwoha (1972) 1 All NLR Part 2 Page 32.
In view of the foregoing, it is my view that the Appellant could not be deemed to have pleaded the documents referred to in the Conditions of Service i.e. Exhibit ‘D’ .
This issue is resolved in favour of the Respondent and against the Appellant.
Issue 2
Whether the reference to ‘wrongful termination’ of appointment by the trial Court led to any miscarriage of Justice against the Appellant.
Counsel for the Appellant referred to his claim before the lower Court and submitted that the Appellant’s Claim is not for wrongful termination of employment but for payment of terminal benefit.
It was also contended on behalf of the Appellant that since the evidence of the Appellant at the trial was not challenged that he is entitled to Judgment. He relied on the case of:- Nweke vs. Udoh (2001) 15 NWLR Part 706 Page 445.
The learned Counsel for the Appellant finally urged that the appeal be allowed.
The learned Counsel for the Respondent contended that the Appellant obliquely complained that his appointment was wrongfully terminated. He referred to paragraph 9 of the Statement of Claim at page 5 of the Record of Appeal.
He therefore submitted that reference to ‘wrongful termination’ did not in any way detract the reasoning in the Judgment of the lower Court and that there has been no miscarriage of Justice. Learned Counsel for the Respondent therefore urged that this issue be answered in the negative.
In this case, paragraph 9 of the Plaintiff’s Claim before the lower Court reads:-
“The Plaintiff avers that his Solicitors wrote to the Defendant on 2nd February, 2003 complaining about the way and manner his appointment was unlawfully terminated. The Plaintiff gives the Defendants Notice to produce the said letter at the hearing of this Suit”. underlining mine.
It is sad that the Appellant is trying to play on words, because when the whole content of the Statement of Claim is read together, it is clear that what the Appellant is complaining about is that as a result of the unlawful termination of his appointment he is entitled to terminal benefit.
Unlawful is defined in the Oxford Advanced Learner’s Dictionary as Not allowed by the law.
And in Black’s Law Dictionary Eighth Edition, ‘Unlawful’ – means Not authorised by law, illegal.
Wrongful is defined in the Oxford Advanced Learner’s Dictionary as – Not fair or legal.
And in Black’s Law Dictionary Eighth Edition, ‘wrongful’ – means among others contrary to law, unlawful, characterized by Injustice.
It was in relation to the unlawful termination that the issue of the terminal benefits arose. But the Appellant failed to plead facts which would have justified the sum claimed. It was in that con that the learned trial Judge made reference to ‘wrongful termination’ and the absence of pleaded and proved facts which show the circumstances under which the sum of N7,158,646.08K (Seven Million, One Hundred and Fifty Eight Thousand, Six Hundred and Forty-Six Naira Eight Kobo) was arrived at.
Therefore, unlawful termination used in paragraph 9 of the Statement of Claim and wrongful termination used by the learned trial Judge means one and the same thing, and this did not in any way detract the reasoning in the Judgment of the trial Court and there has been no miscarriage of Justice.
The Appellant also contended that since the Respondent did not give evidence at the lower Court, it means the evidence of the Appellant at the lower Court was not challenged.
Even though the evidence of the Appellant was not challenged, the trial Court is still expected to examine whether or not such evidence was sufficient to establish the case of the Appellant. It is not in every case in which the evidence called in support of the Plaintiff is unchallenged, that Judgment must be given in favour of the Plaintiff. On the contrary, it is possible that the evidence called in support of the Plaintiff’s case even if unchallenged, may still be insufficient to sustain the Plaintiff’s Claims in that it may be weak and/or so discredited under cross-examination that it may be unnecessary for the Defendant to testify.
In the instant case the pleading and evidence proffered by the Appellant could not sustain the claim of the Appellant, in the circumstance that argument cannot be of any assistance to the Appellant under this situation.
See the following cases:-
– MIN Ltd vs. MFKWA Ltd (2005) 10 NWLR Part 934 Page 645 at 659 (c);
– Ejefor vs Okeke (2000) 7 NWLR Part 665 Page 363 at 381 (e);
– Alhaji Garba G. Haruna vs. J.P. Salau (1998) 7 NWLR Part 559 at 659.
In view of the foregoing, this issue is also resolved in favour of the Respondent and against the Appellant.
I have carefully considered the finding of the learned trial Judge in this appeal and I have no reason to intervene with the decision.
In the final analysis, it is my view that the appeal is without substance and it is hereby dismissed with costs assessed at N50,000.00 (Fifty Thousand Naira) in favour of the Respondent against the Appellant.
ABDU ABOK, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Jimi Olukayode Bada, J.C.A. I agree with him that this Appeal is without substance and is hereby dismissed accordingly. I also abide by the consequential Order made therein as to costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
Appearances
TONY OGBULAFOR;
GENEVEVE OWUNWAFor Appellant
AND
CHIEF F. O. OFFIA;
N. C. MONCHIEFor Respondent
