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UMEKWE v. DOWELL SCHLUMBERGER NIG. LTD (2020)

UMEKWE v. DOWELL SCHLUMBERGER NIG. LTD

(2020)LCN/15734(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/AS/133/2009

Before Our Lordships:

UzoIfeyinwaNdukwe-Anyanwu Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola OsarugueObaseki-Adejumo Justice of the Court of Appeal

Between

OBINNA UMEKWE APPELANT(S)

And

DOWELL SCHLUMBERGER NIGERIA LTD RESPONDENT(S)

 

RATIO:

THE TERMS OF EMPLOYMENT

In Amodu V. Amode (1990) 5 NWLR (pt 150) 356, the apex Court held that “the terms of Employment was the bedrock of any case where the issue of wrongful termination of Employment calls for determination”. The terms of Employment were neither pleaded nor the fact of specific breach averredand proved. See also Nitel Plc Vs. Akwa (2006) 2 NWLR Pt 964 391 and Nigeria Gas Co. Ltd Vs Dudusola(2005) 18 NWLR (pt 957) 292. MOHAMMED AMBI-USI DANJUMA, J.C.A. 

TERMS OF THE CONTRACT OF SERVICE

In Nitel Plc V. Akwa (supra), this Court, per Sanusi, JCA, as he then was held:
“From the state of the pleadings as reproduced above, especially the ‘particular of claim’ which represented the ‘statement of claim. It is clear that the issue of termination of the plaintiff/respondent’s appointment was pleaded. However there is nowhere the plaintiff/respondent pleaded the “terms of the contract of service” between him and the defendants/appellants. This is very necessary to, as it is the bedrock of his claim before the lower Court. It is mainly through the ‘contract of service’ when pleaded that it will be shown or established to the trial Court, the nature and duration of the contract of service and the method to be adopted by either of the contracting parties when he/it chooses to opt out of same or the time as which notice to determine the contract may be given. All these important issues are nowhere pleaded in the statement of claim.”Paragraphs 12, 13 and 14 of the Appellant’s Amended statement of claim and Defence to the counter claim also alleged wrongful termination but pleaded no terms of Employment, nor specific breach. The duty imposed by law to so plead was not satisfied. MOHAMMED AMBI-USI DANJUMA, J.C.A. 

THE PROOF OF THE TERMS OF SERVICE
A general averment of the contract of service and the tender of Exhibit J, without specific pleadings and proof of any of the terms of service was fatal to the plaintiff’s case. No amount of non-delay would have made the case better and the outcome different. Not having pleaded the facts and terms, the trial judge was right in discountenancing the Exhibit J of 37 pages as it could not go on a voyage of investigation thereon to arrive at a decision. MOHAMMED AMBI-USI DANJUMA, J.C.A. 

THE CLAIM OF DAMAGES

There was indeed no perversity in the findings of the trial judge. The evidence of the Appellant relating the keloid and its development was not pleaded. The address of counsel on same does not amount to evidence and cannot be a basis for judgment; what is more, the testimony on Damages thereon is merely speculative and not based on any ascertained damages sustained and proved. A futuristic claim of Damages has no anchor, as rightly held. The Appellant had made heavy weather of unlawful termination of employment on the ground that the reason upon which it was based was found to be baseless and unjustified. MOHAMMED AMBI-USI DANJUMA, J.C.A. 

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellant, as the plaintiff in the High Court of Justice, Delta State by a writ of summons in suit Number W/193/97 taken out and contained at pages 1-2, record of Appeal had claimed inter alia thus;
The appellant was the plaintiff in the High Court of Justice, Delta State. In a writ of summons issued on the 7th day of July 1997, the appellant claimed inter-alia as follows:
i) A declaration that the letter of termination dated 6/1/97 issued by the defendant and which letter purportedly terminated the plaintiff’s employment with the defendant company is unwarranted, repugnant to the rules of natural justice, equity and good conscience and infringes on the plaintiffs constitutional rights under the Constitution and the plaintiff’s contractual rights under the terms of his employment and the company’s conditions of service manual.
ii) A declaration that the plaintiff is still in the employment of the defendant and therefore he is entitled to his salary, allowance and all other perquisites of the said employment.
​iii) An order directing the defendant to withdraw the said letter of suspension and recall the plaintiff to resume his lawful duty.
iv) An order directing the defendant to pay to the plaintiff all his salaries, allowances and entitlements which were due and owing to the plaintiff by the defendant from the 6/1/97 until the day of judgment at N74,427.60 (Seventy-four Thousand, Four Hundred and Twenty-seven naira, Sixty kobo) per month.
PARTICULARS OF DAMAGES E.T.C.
i) Salaries from January (salary difference) to June 1997 = N446,565.60
ii) Severance benefit from December 1988 to June 1997 (8 years, 7 months) = N957,181.23
iii) Education assistance for 1997 for 3 children at N10,000.00 per child per year = N30,000.00
iv) Insurance accident claim C/O Dowell Schlumberger and A.I.I.C.O. (90% of permanent total disability resulting from accident) = N2,442,020.40
v) Pension contribution made so far to be refunded up to 1995 =N119,585.00
vi)Medical expenses from February to June, 1997 =N55,740.00
vii)Transportation expenses to and from Port Harcourt Lagos (in pursuant of plaintiffs benefits)  = N 22,000.00
viii) Solicitors fees e.t.c. = N 500,000.00
ix) Estimated cost of further treatment and face surgery = N7,000,000.00
SUB-TOTAL = N11,453,507.00
x) General/aggravated/exemplary damages for pains,
sufferings, shock resulting from the accident and trauma and embarrassment suffered for unlawful termination= N50,000,000.00
GRAND TOTAL = N61,453,507.00

The plaintiff called two witnesses and tendered some documentary exhibits. The Defendant also tendered documentary exhibit and called four (4) witnesses.

The trial Court gave Judgment by dismissing the claims of the plaintiff in its entirety and hence this appeal anchored upon Nine (9) Grounds of Appeal dated and filed on 23-2-2006. It is contained at pages 134-138 of the Record of Appeal.

From the Grounds of Appeal, the following Issues were distilled for determination thus:
i) Whether the learned trial judge was right when he dismissed the plaintiff’s case in its entirety, when the defendant in its pleadings and evidence admitted that the appellant was entitled to some part of his claim/reliefs.
ii) Whether the protracted and inordinate delay between the trial and judgment cause the trial judge to lose the advantage of arriving at a right evaluation of the evidence before him and thereby occasioning a misdirection and/or in the alternative;
iii) Whether the trial was conducted within a reasonable time as specified in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999
iv) Whether from the totality of the evidence adduced at the trial Court, the learned trial judge was right to dismiss the claim of the plaintiff.
The Respondent on its part formulated a sole issue for determination, to wit;
“Whether having regard to the evidence on record, the learned trial judge was right in law when he dismissed the claims of the Appellant.”

It is the Appellants appeal; and it is obvious that he is so pricked by the Judgment, such that I shall consider all the Issues donated for determination, by this Appellant, notwithstanding that the solo apt Issue of the Respondent suffices.

ARGUMENTS ON THE ISSUES
On Issue number one, the Appellant refers to the Appellant’s amended statement of claim and Defence tocounter claim at pages 29 to 32 of the records and the Respondent’s 3rd amended statement of Defence and counter claim at pages 78-82 of the records and in particular to paragraphs 2.3 and 22 (d) (i) (ii) (iii) (iv) – vii and submits that the Respondent’s pleadings were evasive and insufficient in answering the points of substance adumbrated in the Plaintiff/Appellant’s statement of claim at paragraph 22(d) (i) (ii) (iii) (iv) (v) and (viii).
The cases of Lion of Africa Insurance Vs. Fisayo (1986) 4 NWLR Pt 37, 674 at 683, Ugochukwu V. Cooperative and Commerce Bank Ltd (1996) 6 NWLR Pt 456, 524 at 537.

The learned counsel also submitted that the Defendant had itself admitted in cross-examination that they had not paid the plaintiff’s terminal benefits. The learned counsel stated that by this admission through DW1 in cross-examination, those terminal benefits as listed in paragraph 22 (d) (i) – (v) and (vii) have admittedly not been paid.

That what was admitted, need not be proved. That if the trial judge had properly directed itself to the pleadings and evidence, and the specific reliefs sought in paragraph 22of the statement of claim. That the Respondent’s case supported the Appellant’s case and cannot be ignored in coming to the decision as to who is entitled to judgment
Insurance Brokers of Nigeria V. A.T.M Company Limited (1996) 8 NWLR Pt 466 316 at 329 para B-E Oduaran V. Asarah (1972) IANLR Pt 2, 137. That the issue be resolved in favour of the Appellant.

In response, it was argued that the Appellant, having pleaded that the termination of his employment was wrongful, had to lead evidence in proof of which of the terms was breached. That this was not done. That the plaintiff had a duty in a declaratory relief, to lead evidence to prove his assertion(s). Yakubu V. Alagbon& Anor (2016) LPELR (40735) C.A.

It was also contended that the principal reliefs not having been proved, the consequential reliefs were rightly refused.

The learned counsel argued further, that what was claimed were special damages, and which must be strictly pleaded and proved by the Plaintiff/Appellant. That it was not so pleaded and specifically admitted and therefore cannot be said to have been proved by any alleged admission.Nigeria ProduceMarketing Board Vs. Adewunmi (1972) ALL NLR 871 at 878. The learned counsel argued that the requirement of proof by evidence of a declaratory relief was such that even an admission will not obviate the legal necessity thereof; that the dismissal of the claims in their entirety was correct.

It was also argued that in the absence of the document of the contract of employment, the claim remained unproved. Nigerian Army Council & Anor Vs. Lt Col. Michael IreyuwaErhabor (Rtd) (2018) LPELR-44958CA.

RESOLUTION
The Plaintiff/Appellant’s pleadings in its relevant portions as relied upon by the Plaintiff/Appellant in this appeal, never averred the terms of the contract of service nor the breach of any specific term thereof. As the Respondent rightly submitted, the absence of any such averment and proof would be fatal to the claimant’s case.
In Amodu V. Amode (1990) 5 NWLR (pt 150) 356, the apex Court held that “the terms of Employment was the bedrock of any case where the issue of wrongful termination of Employment calls for determination”. The terms of Employment were neither pleaded nor the fact of specific breach averredand proved. See also Nitel Plc Vs. Akwa (2006) 2 NWLR Pt 964 391 and Nigeria Gas Co. Ltd Vs Dudusola(2005) 18 NWLR (pt 957) 292.
In Nitel Plc V. Akwa (supra), this Court, per Sanusi, JCA, as he then was held:
“From the state of the pleadings as reproduced above, especially the ‘particular of claim’ which represented the ‘statement of claim. It is clear that the issue of termination of the plaintiff/respondent’s appointment was pleaded. However there is nowhere the plaintiff/respondent pleaded the “terms of the contract of service” between him and the defendants/appellants. This is very necessary to, as it is the bedrock of his claim before the lower Court. It is mainly through the ‘contract of service’ when pleaded that it will be shown or established to the trial Court, the nature and duration of the contract of service and the method to be adopted by either of the contracting parties when he/it chooses to opt out of same or the time as which notice to determine the contract may be given. All these important issues are nowhere pleaded in the statement of claim.”Paragraphs 12, 13 and 14 of the Appellant’s Amended statement of claim and Defence to the counter claim also alleged wrongful termination but pleaded no terms of Employment, nor specific breach. The duty imposed by law to so plead was not satisfied.

The dismissal of the claim inspite the seemingly admission per the evidence was right. It must be appreciated that the portion of the respondent’s DW1 evidence that the plaintiff/Appellant’s terminal benefits had not been paid was not an admission as there was no such pleadings in any case, by the Appellant or the respondent in that respect. It went to no issue. All the appellant has, is a prayer or relief in paragraph 22 (1) (d) of his statement of claim and this though, part of the pleadings had not been proved at the trial Court, as it was a relief thereat sought and did not pleadings of facts.

The statement as to non-payment of terminal benefits does not constitute a justification for the claim or a statement that liability had been admitted warranting the payment. A denial of liability is the more reason for the non-payment of the terminal benefits. There was no admission in part of any claims. Issue one(1) is resolved against the Appellant.

ISSUE 2
Whether, the protracted and in-ordinate delay between the trial and judgment caused the trial judge to lose the advantage of arriving at a right evaluation of the evidence before her and thereby occasioning a misdirection and/or non direction on the part of the learned trial judge/and/or in the alternative.

Before I proceed into the treatment of this issue, I must state that the issue is so in-elegantly and verbosely crafted such that the meaning is almost lost. I decipher, however, from the body of the submission thereon that the issue simply asks the question whether or not there was no miscarriage of justice occasioned by a prolonged delay in the hearing and determination of this case at the trial Court.

It was submitted that there was such, undue delay in the hearing and conclusion of the case such that the trial judge had lost touch with the evidence at the trial. That a reference to the Exhibit J (the condition of service) at the hearing and also the reason for termination of the employment said to be on account of an accident (which trial thereon had been terminated) go to show that the judge had lost touch and this had occasioned injustice.
Akpor Vs. Iguoriguo (1978) 2 SC 115, Ekeri&Ors Vs. Kimisede & Ors (1976) NMLR 194 relied on. It was contended that the Defendant had admitted paragraph 22 (d) i – vii of the reliefs sought and judgment ought to have been entered for the plaintiff on those claims as, what was admitted needed no proof. Agbanelo V. U.B.N Limited (2000) 7 NWLR Pt 666, 534 at 556.

That a review of the evidence led did not justify the decision entered. That contrary to the views of the Court, the pleadings of the Appellants on the wrongful termination of the employment was validly eroded by the findings thereon relying on Exhibit J the contract document of 37 pages.

The Respondent argued that there was ample appreciation of the evidence led, such that the delay did not occasion any miscarriage of justice as the right decision was arrived at.

RESOLUTION
A general averment of the contract of service and the tender of Exhibit J, without specific pleadings and proof of any of the terms of service was fatal to the plaintiff’s case. No amount of non-delay would have made the case better and the outcome different. Not having pleaded the facts and terms, the trial judge was right in discountenancing the Exhibit J of 37 pages as it could not go on a voyage of investigation thereon to arrive at a decision.
Issue 2 is resolved against the Appellant.

iii) Whether the trial was conducted within a reasonable time as specified in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.

In this issue, it was argued that there was a protracted period of delay in the hearing and delivery of judgment. That the judge lost touch with the facts/evidence. The Respondent argued to the contrary and submitted also that the decision was a product of the apt appreciation of the facts, and evidence led.

RESOLUTION
It took a short spell from commencement to the close of the hearing of the case. No doubt, adjournment was granted and the judgment was delivered beyond 3 months from the date of the conclusion of evidence. I dare say that I do not see where miscarriage of justice has been occasioned by the delay.

Appellant was not prejudiced. This issue, which is similar to issue 2 is resolved against the Appellant.

ISSUE IV
Whether from the totality of the evidence adduced at the trial Court, the learned trial judge was right to dismiss the claim of the plaintiff.

The Appellant argued amongst other grounds, that the trial judge’s decision was perverse as the claim for damages for surgery and/or further treatment of the keloid growth on the face and neck as a result of treatment after the accident was mistaken for that in respect of treatment administered and paid for. Counsel relies on Ebba Vs. Ogodo (1984) 4SC, page 84, Lawal Vs. Dawodu& Anor (1972) ANLR 707 at 722 to argue that though the evaluation of evidence and the ascription of probative value thereto was the prerogative of the trial judge who saw and heard the witnesses testify and an appellate Court should set same aside if found to be perverse; contends that the findings on the claims on damages was perverse. Respondent argued per contra.

RESOLUTION
There was indeed no perversity in the findings of the trial judge. The evidence of the Appellant relating the keloid and its development was not pleaded. The address of counsel on same does not amount to evidence and cannot be a basis for judgment; what is more, the testimony on Damages thereon is merely speculative and not based on any ascertained damages sustained and proved. A futuristic claim of Damages has no anchor, as rightly held. The Appellant had made heavy weather of unlawful termination of employment on the ground that the reason upon which it was based was found to be baseless and unjustified.

I agree with the Respondent that the fact that the ground for the termination is found to be false does not render the termination unlawful. See Arinze Vs. First Bank of Nigeria Ltd (2004) 12 NWLR Pt 888, 663. Federal Civil Service Commission Vs. Laoye (1989) 2 NWLR (pt 106) 652; Yusuf V. Union Bank of Nig. Ltd (1996) 6 NWLR (pt 457) 632.

This is so, in cases of termination based on the allegation of the commission of a crime, as in the instant case on alleged Dangerous Driving and automobile homicide.

There was ample opportunity for the Appellant to be heard and he was heard. Investigation was conducted and Exhibits H and T are in point as communications between the parties.

On the whole, the respondent is right in arguing that the Appellant was not entitled to any of the reliefs sought because, on Relief One – seeking for a declaration that …’ the Courts lack the powers to declare as null and void the termination of a contract of employment and to hold that the contract subsists because an act was done in breach of the terms of the contract. A Court has no power to impose a willing employee on an unwilling Employer.

On the reliefs ‘B’ and ‘C’ for reinstatement, I agree with the Respondent that this can only be done for an employment with statutory flavor. All that an employee wrongfully terminated is entitled to is damages and not reinstatement as sought. See Kabelmetal Nig. Ltd V. Ativie (2002) (pt 775) 10 NWLR, 250 AT 269 Sanusi, JCA.

Indeed the entirety of the damages claimed had not be established as arising from any breach of contract of employment. The Respondent has unanswerably answered that damages can only be a measure of earnings that would have occurred over the period of appropriate and valid notice of termination that was not given.

A claim for Damages on account of alleged pains, sufferings, shock resulting from accident as claimed was preposterous as Respondent did not cause the accident and could not be liable in damages for same.

On the whole, Issue 4 is resolved against the Appellant.
Having resolved all the 4 issues raised by the Appellant against him, it is crystal clear that the appeal has no merit, it fails and is dismissed.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother M. A. DANJUMA JCA. I agree with his reasoning and final conclusions. This appeal is unmeritorious. It is dismissed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of M. A. DANJUMA, JCA and I agree with the reasoning and conclusions contained therein. I have nothing to add as the judgment has covered the field.
I too dismiss the appeal and I agree with the orders made.

Appearances:

Chief V. E. Otomiewo Esq.For Appellant(s)

Uzoma H. Azikiwe Esq.For Respondent(s)