UNILAG v. OGUN (2021)

UNILAG v. OGUN

(2021)LCN/15797(CA)

In The Court Of Appeal

On Thursday, April 29, 2021

CA/L/395/2015

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

UNIVERSITY OF LAGOS APPELANT(S)

And

OLUREMI DAVIES OGUN RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN GRANT RELIEFS NOT CLAIMED BY PARTIES BEFORE IT

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal here is against the judgment of the National Industrial Court (the lower Court) delivered on 30/10/2014 in a dispute over the entitlement of the Respondent in respect of his engagement as a Senior lecturer in the University of Lagos (the Appellant). The facts of the case presented by the Respondent as the Plaintiff at the lower Court in brief, are as follows: The Respondent, a Senior Lecturer in Economics at the University of Ibadan decided to spend his one year sabbatical leave in the academic year 2005/2006 as a Visiting Senior Lecturer at the University of Lagos (the Appellant). He was offered an appointment by the Appellant to serve as a Visiting Senior Lecturer by a letter dated 13/2/2006 for a period of one year. He accepted the offer. At the expiration of that offer period, the appointment was extended. At the expiration of his sabbatical leave, the Respondent resumed his regular work as a Senior Lecturer at the University of Ibadan. However, he was persuaded by one Professor Tayo Fakiyesi, the Head of Department (HOD) of Economics of the Appellant to assist the Department in courses already assigned to the Respondent in an ongoing programme scheduled to end in October, 2008. The said HOD and the Respondent agreed that the Respondent should apply for the position of Associate Senior Lecturer since he had resumed work at the University of Ibadan. The Respondent applied as agreed but the response to his application by the Appellant suggested that he was considered as applying to continue work as a full time Visiting Lecturer. That was not the purpose of the Respondent’s application and he therefore rejected the fresh offer of appointment as a Visiting Lecturer and insisted that his request was for a part time lectureship position. In that case, the Respondent was advised to apply for a part-time appointment. The HOD assured the Respondent that he would approach the Vice-Chancellor of the Appellant directly with a view to ensuring that an appropriate letter appointing him as an Associate Senior Lecturer was issued to him. With that assurance, the Respondent carried out work as an academic at the Appellant, teaching and marking scripts. He spent two days each week (Wednesdays and Thursdays) working for the Appellant.

In all the 8 months he worked on the basis of the assurances given by the HOD, the Respondent was not paid by the Appellant as an Associate Senior Lecturer. Rather, all that he received, albeit belatedly, was an honorarium for teaching part-time students for 8 months on Wednesdays and Thursdays. The Respondent received a letter from the Deputy Registrar of the Appellant dated 20/5/2010 that stated that all remuneration due him had been settled and that the Appellant did not owe him. Aggrieved, the Respondent took out the action at the lower Court and claimed as follows against the Appellant:
1. Declaration that the refusal and/or failure of the Defendant to pay to the Claimant the total sum of N972,000.00 (Nine Hundred and Seventy-Two Thousand Naira only) being the salary due to him as an Associate Senior Lecturer for the period between March and October, 2008 in the Department of Economics, Faculty of Social Sciences of the Defendant is a breach of contract of employment in respect of services rendered to the Defendant at its instance.
2. Payment of N972,000.00 (Nine Hundred and Seventy-Two Thousand Naira only) being the outstanding/unpaid salary for the said 8 (eight) months period as Associate Senior Lecturer.
3. Payment of the sum of N512,000.00 (Five Hundred and Twelve Thousand Naira only) being the total cost of accommodation @ N3,000.00 per day for 2 days a week for the said 8 months.
4. Payment of the sum of N256,000.00 (Two Hundred and Fifty-Six Thousand Naira only) as transport cost for 9 months.
5. 22% interest per annum on the said salary, accommodation and transportation expenses for the said period of employment.
6. General Damages for the said breach of contract, N2,000,000.00 (Two Million Naira Only).

After hearing from both parties and considering the documents tendered before it, the lower Court found in favor of the Respondent. The Court held that the Respondent rendered services which were acknowledged by the Appellant and that the services were not rendered gratuitously. The Respondent was awarded his claim of N972,000.00. 10% interest on that judgment sum was ordered to be paid from 2008 till same is liquidated. N100,000.00 cost was awarded in favor of the Respondent.

Dissatisfied with the judgment, the Appellant filed the instant appeal on two grounds as follows:
GROUND ONE
The learned trial Judge’s decision to grant the Respondent’s salary on quantum meruit raised suo motu without hearing the parties is a denial of fair hearing and caused a miscarriage of justice.
Particulars.
1. The respondent’s relief is on breach of contract between March and October, 2008 without the relief for quantum meruit.
2. On the plethora of decisions the learned trial Judge denied the appellant opportunity to be heard on the raising of the issue of quantum meruit suo motu.
3. The learned trial Judge by granting the relief for salary on quantum meruit granted the respondent a relief not claimed.
GROUND TWO
The learned trial Judge’s grant of 10% interest per annum on the judgment sum is a denial of fair hearing and not justiciable.
Particulars
1. It is trite that Courts have the discretion to grant interest claimed but not without proof of evidence of the claim.
2. Having held in the judgment that: “It is not certain how the claimant came about demanding 22% as rate of interest”, the claim must be dismissed as the respondent failed to prove the claim.

<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Briefs of Argument were filed and exchanged in accordance with the Rules of this Court. The Appellant’s Brief of Argument settled by T.O.S. Fadahunsi, Esq. was filed on 22/5/11 but was deemed filed on 22/5/19 by an order of this Court of even date. The Respondent’s Brief of Argument was settled by Chief Iyiola Oladokun. Same was filed on 21/6/19.

Two issues were formulated by the Appellant’s learned Counsel for determination in this appeal. They are-
1. Whether it was a denial of fair hearing as entrenched in Section 36 (2) (a) of the 1999 Constitution (as amended) (Third Alteration) Act, 2010 when the learned trial Judge gave judgment for the payment of N972,000.00 salary for the Respondent as quantum meruit, an issue raised suo motu without giving the parties, especially the Appellant the opportunity to address the Court on it.
2. Whether it is a violation of the right of the Appellant in not being given the opportunity to be heard on the pre-judgment interest granted by the learned trial Judge relying on Order 21 Rule 4 of the National Industrial Court Rules 2007, having found that it is not certain how the claimant came about demanding 22% as rate of interest. If the answer to the issue is in the affirmative, whether Order 21 Rule 4 of the National Industrial Court Rules empowers the learned trial Judge to grant pre-judgment interest.

The Respondent’s learned Counsel distilled similar issues for determination but couched them as follows.
1. Whether or not payment of N972,000.00 (Nine Hundred and Seventy-Two Thousand Naira) salary as quantum meruit was an issue raised suo motu by the learned trial Judge without giving the parties the opportunity to address the Court on it.
2. Whether or not the Appellant was given the opportunity to be heard on the issue of interest before the learned trial Judge awarded interest of 10% per annum on the judgment sum in the circumstances of the case having regard to the Appellant’s withholding of the Respondent’s remuneration for 4 (four) years without justification.

I shall consider the issues as raised by the Appellant in considering this appeal. The two issues will be considered together.

In his submission, T.O.S. Fadahunsi, Esq. the Appellant’s learned Counsel reviewed the facts of the Respondent’s case as pleaded in his Statement of Claim and then posed this question: was any letter issued by the Appellant on the assurance of the then Head of Department (HOD) to the Respondent? The learned Counsel answered his poser in the negative. Referring to paragraph 14 of the Statement of Claim, it was submitted that all that the Respondent received was a mere assurance from the HOD of the Economics Department of the Appellant on an appointment of the Respondent as an Associate Senior lecturer and that such an assurance did not bind the Appellant and that the Appellant was not bound to accept the Respondent’s offer to serve as an Associate Senior Lecturer. It was submitted that there was no contract between the Appellant and the Respondent for the period between March 2008 and October, 2008 as to entitle the Respondent to claim for salary for that period. Relying on the case of OLAOPA V. O.A.U ILE-IFE (1997) 6 SCNJ 60, it was submitted that where there is no contract between the parties, a claim based on quantum meruit cannot succeed. Learned Counsel submitted that not only was there no contract between the parties, the Respondent did not plead quantum meruit as an alternative claim and therefore cannot succeed on quantum meruit. The case of OLAOPA V O.A.U (supra) was cited in support. It was further submitted that the Respondent’s discussion with the HOD and the assurance given to him by the HOD can only be described as an invitation to treat. He referred in particular to the evidence of the Respondent under cross-examination at page 229 of the Record of Appeal where he quoted him as having admitted that “there was no letter from the defendant appointing me as Associate Senior Lecturer based on the assurance of the HOD that he would sort it out with the Vice-Chancellor”.

Citing the case of FIRST BANK OF NIGERIA PLC V. ALEXANDRA N. OZOKWERE (2014) 3 NWLR (Part 1395) 439 at 458, it was submitted that the Respondent did not plead the equitable remedy of quantum meruit as an alternative claim but that the lower Court raised it sou motu. Submitting further and relying on the case of OLAOPA V. O.A.U. (supra), it was contended that a claim on quantum meruit cannot arise where there is an existing contract for the payment of an agreed sum and therefore, if there was an agreed sum of N972,000 due to the Respondent, quantum meruit was not applicable. The lower Court it was contended, was wrong to have raised the remedy of quantum meruit sou motu without inviting the parties to address it before it gave judgment. By so doing, the lower Court, it was submitted, denied the Appellant fair hearing.

On issue 2, the Appellant’s learned Counsel reiterated his submission that the Respondent was not under the employment of the Appellant between March, 2008 and October, 2008, the Respondent having rejected the Appellant’s offer of a part-time appointment. Further, the Respondent it was submitted, failed to prove his claim of interest having failed to prove his main claim. The lower Court in its judgment at page 242 of the Record, it was submitted, held inter-Alia that it was not certain how the Respondent came about his demand of 22% interest rate. Having so held, the lower Court, it was contended, should have dismissed the claim of interest and ought not to have awarded the Respondent interest at 10% per annum from October, 2008 till the judgment sum is liquidated. In awarding the interest of 10% per annum from October 2008, the lower Court, it was submitted, relied on Order 21 Rule 4 of the National Industrial Court of Nigeria, 2007 Rules which provision is in pari materia with Order 39 Rule 7 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004. Relying on the case of IGNOBIS HOTELS LTD V. BENIC ELECT LTD (2015) 1 NWLR (Part 1441) p. 504 at 532, it was submitted that interest under the Rules is interest on the judgment sum and therefore can only take effect after adjudication and that it would be a contradiction in terms to order such interest from the date of accrual of cause of action.

Referring to the pleading of the Respondent at paragraph 32 of the Statement of Claim at p.6 (sic) of the Record of Appeal [it is at p. 125 of the Record of Appeal] it was submitted that the Respondent claimed that he is entitled to interest at the rate of 22% per annum until judgment and that the pre-judgment interest claimed was not proved. Relying on the case of MTN (NIG) COMMUNICATION LTD V WIG T. & INV. LTD (2013) 4 NWLR (Part 1344) p.276 at p. 299, it was submitted that entitlement to a pre-judgment interest must be proved.

In his argument in response, Chief Iyiola Oladokun for the Respondent, submitted that ground 1 in the grounds of appeal is incompetent as from the Record of Appeal, it is not true that the learned trial Judge suo motu raised the issue of a quantum meruit payment. That issue it was argued, was raised by the Respondent in his final address thereby affording the Appellant the opportunity to address same, which opportunity the Appellant did not make use of. To buttress the fact that the Respondent raised the issue of quantum meruit at the lower Court, we were referred to page 181 and 182 of the Record of Appeal. While accepting that the principle of fair hearing is fundamental and goes to the root of the question of whether justice was done, the test of whether there has been a denial of fair hearing, it was submitted, is an objective one, citing the case of ORUGBO V. UNA (2002) 16 NWLR (Part 792) p.175. The Appellant it was further submitted, cannot complain that it was denied fair hearing, having regards to the facts contained in the Record of Appeal since the Appellant was given the opportunity to present its position.

The Respondent’s learned Counsel submitted that it is not true that the lower Court based its judgment on the claim for the sum of N972,000.00 solely on quantum meruit. The lower Court, learned Counsel submitted, based its judgment on the copious evidence of the Respondent which the Appellant neither challenged nor controverted. We were referred to the judgment of the lower Court at page 241 of the Record of Appeal. Recalling the case of the Respondent at the lower Court, the Respondent’s learned Counsel contended that it is not in dispute that the Respondent applied for the part-time post of Associate Senior Lecturer and that the Respondent taught the students of the Appellant as an Associate Senior Lecturer between March and October, 2008 and also conducted an examination of the Appellant’s students at the end of their class work after which he graded the students and submitted their score sheets. In view of these undisputed facts, we were urged not to do technical Justice but do substantial Justice as not to perpetrate injustice. We were urged not to rely on the case of OLAOPA V. OAU (supra) cited by the Appellant’s learned Counsel as in this case the lower Court found that there was an implied contract, albeit unwritten, for service actually rendered to the Appellant by the Respondent. We were urged that it will not be justice to deny the Respondent his remuneration for work actually performed by him for a period of 8 months only because the Appellant did not write a letter appointing him as an Associate Senior Lecturer. We were further urged that technicality should not dethrone justice. The case of DUKE V. AKPABUYO (2005) LPELR-963 (SC) was cited in support.

On the second issue, the Respondent’s learned Counsel considered the relief of interest rate claimed by the Respondent from the standpoint of fair hearing. It was submitted that the Respondent claimed the interest rate and led evidence in support of the claim but that the Appellant did not respond to the Appellant’s pleadings in that regard and also did not respond to the evidence led in support and the Appellant’s submission thereon and therefore cannot complain of having been denied fair hearing. Learned Counsel cited a number of cases on the concept of fair hearing and urged us to resolve issue 2 in the Respondent’s favor.

Now, from the facts of this case, it is not in dispute that the Respondent went on a sabbatical leave to the University of Lagos (the Appellant) as a Visiting Senior Lecturer and that his work as a Visiting Senior Lecturer terminated with his return to the University of Ibadan at the end of the sabbatical leave period. It is also not in doubt that the Respondent had discussions with the HOD of the Economics Department of the Appellant about working as an Associate Senior Lecturer and that based on the assurances given by the HOD, worked for 8 months in the Appellant University as an Associate Senior Lecturer. There is no doubt too that the Respondent was never issued with a letter appointing him as an Associate Senior lecturer. He admitted so under cross-examination when he stated that he applied for the post of an Associate Senior Lecturer but that the Appellant replied “with an extension for another 6 months as a Visiting Lecturer”. He also categorically said under cross-examination, thus: “There was no letter from the Defendant appointing me as Associate Senior Lecturer”. He further said, still under cross-examination, “I continued to work as Associate Senior Lecturer based on the assurance of the HOD that he would sort it out with the Vice-Chancellor of the Defendant”. See at page 229 of the Record of Appeal. It is therefore clear that the service of the Respondent as an Associate Senior Lecturer was not based on any contract whether express or implied between him and the Appellant but was based on a mere assurance of the HOD that he would sort out things with the Vice-Chancellor of the Appellant.

The facts of this case can be compared and contrasted with the facts in the case of OLAOPA V. OAU, ILE-IFE also reported in (1997) LPELR-2571 (SC), where the plaintiff claimed the sum of N159,87.00 as professional fees and expenses in respect of a contract entered into with the defendant for the design of a proposed Commercial Complex for the University of Ife in 1978. The defendant refused to pay for the job. After hearing the parties, the trial Court found that there was no formal contract between the parties. However, in spite of that finding, the trial Court held that the Plaintiff was entitled to a claim on quantum meruit in the sum of N15,000 in respect of the sketch drawings made by him. Both the plaintiff and the defendant were dissatisfied with the judgment and filed an appeal and cross-appeal respectively. The plaintiff’s main appeal was dismissed by the Court of Appeal while the cross-appeal on the issue of the award of quantum meruit was allowed. On further appeal to the Supreme Court, the Supreme Court affirmed the judgment of the Court of Appeal. In arriving at its decision, the Supreme Court found that all that happened between the parties was no more than an invitation to treat. The Court also held that the basis for a claim for payment on quantum meruit is a contract and that where there is no contract between the parties, a claim on quantum meruit cannot succeed. The Supreme Court per Wali, J.S.C. who delivered the leading judgment, stated that in all cases considered on the subject of quantum meruit, there was either a specific claim on quantum meruit or quantum meruit was specifically claimed in the alternative. The Court repeated the position of the Courts in several decisions that a Court is not a Father Christmas to give to a party a relief not claimed by it.

The facts of the case on appeal here in my humble view are not even on equal footing as the facts in OLAOPA V. OAU, ILE-IFE (supra) in that the Respondent here had no approval whatsoever, of the Appellant, to render service as an Associate Senior Lecturer for which he felt entitled to payment. The Appellant never expressed an intention to retain the services of the Respondent as an Associate Senior Lecturer. In response to the Respondent’s letter dated 31/1/2008 seeking to be appointed as an Associate Senior Lecturer (See at page 62 of the Record of Appeal), the Appellant in its letter to the Respondent dated 17/3/2008 was very clear about the type of appointment it was offering the Respondent. The Appellant in the said letter informed the Respondent that: “the Vice-Chancellor on behalf of the Appointments and Promotions Board has approved that your visiting appointment as Senior Lecturer in the Department of Economics, Faculty of Social Sciences which expires on 29th February, 2008 is extended for six (6) months with effect from 1st March, 2008 to 31 August, 2008” (See at page. 63 of the Record of Appeal). Clearly therefore, the Appellant offered the Respondent an appointment as a Visiting Senior Lecturer and not as an Associate Senior Lecturer. Consequently, the lower Court was wrong to have awarded the Respondent the sum of N972,000.00 on the basis that the Respondent rendered services to the Appellant as an Associate Senior Lecturer. It cannot be the law that one can simply render an unsolicited service; under no contract, express or implied, and expect to be paid. The lower Court was wrong when it held at p.241 of the Record of Appeal thus:
“in the instant case, I find that the Claimant rendered services which were acknowledged to the Defendant, that the services were not rendered gratuitously, that the Claimant was not remunerated for the said services despite repeated demands and that the non-payment of the due remuneration amounts to a wrongdoing against the claimant”.

I dare say that if there was any wrongdoing, it was not on the part of the Appellant since the Appellant made its position plain to the Respondent in its letter dated 17/3/2008 that the appointment offered to the Respondent was one of a visiting Senior lecturer. There was no glimmer of hope in that letter that the appointment being offered was one of an Associate Senior Lecturer. The Respondent having not accepted the offer of appointment as a Visiting Senior Lecturer offered to him by the Appellant, ought not to have rendered services as an Associate Senior Lecturer on a mere assurance of the HOD. It was most presumptive of him to have done so. If there was wrongdoing therefore, same was done by the Respondent who in his own reckoning, had an appointment as an Associate Senior Lecturer and expected to be paid for services in that capacity. The maxim nemo ex suo delicto meliorem suam conditionem- no one can improve his position by his own wrongdoing- applies here.

Learned Counsel for the Appellant argued that the issue of quantum meruit was raised suo motu by the lower Court without the parties being heard on it. I agree. The law is that while a Court has the jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve it suo motu. The parties must be given the opportunity to react to the issue before the Court takes a decision on it. See OKONKWO V. COOPERATIVE & COMMERCE BANK (NIG) PLC & ORS (2003) LPELR-2484 (SC) 51-52.

That apart, the Court is not Father Christmas to grant to a party that which that party has not asked for. All that the Respondent claimed as can be seen from the Statement of Facts, is the sum of N972,000.00 for breach of contract of employment in respect of services rendered to the Appellant at the Appellant’s instance. The Respondent neither claimed the money as quantum meruit nor did he claim that amount as an alternative claim on the basis of quantum meruit. The issue of quantum meruit having not been raised in the pleadings in the statement of facts, was not before the lower Court to decide. In the case of Akapo v. Hakeem-Habeeb & Ors (1992) 7 SCMLR part 1 p. 120 at 151, the Supreme Court stated that the Court has no jurisdiction to consider a relief not claimed by either parties and therefore cannot make a valid order in respect of such relief. Consequently, the lower Court had no business in awarding the Respondent the sum of N972,000.00 on the basis of quantum meruit when the Respondent made no claim on the basis of quantum meruit before that Court.

With regard to the award of interest at the rate of 10% per annum on the judgment sum from October, 2008 till same is fully liquidated, it goes without saying that the claim is an ancillary one, being one that is dependent on the successful award of a judgment sum. Where there is no judgment sum to speak of, an award of interest on the judgment sum cannot arise. Having found that the lower Court was wrong to have given judgment in the amount claimed, it will be a mere academic exercise to delve into the issue of the award of interest on the judgment sum.

All said, the appeal has merit and is therefore allowed. The judgment of the lower Court is set aside. Both parties shall bear their respective costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have had the honour to read in draft the robust judgment prepared by my learned brother Obietonbara Owupele Daniel-Kalio, J.C.A., with which I agree with nothing extra to add.

ABUBAKAR SADIQ UMAR, J.C.A.: I read before now the draft judgment of my learned brother, OBIETONBARA O. DANIEL-KALIO. I entirely agree with his reasoning and conclusion contained therein. For the reasons stated in the lead judgment, I allowed the appeal, and abide by the consequential order threat.