WEST AFRICAN EXAMINATION COUNCIL v. MR. A.E. UMEAKUKA
(2012)LCN/5773(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of December, 2012
CA/E/115/2005
RATIO
DAMAGES: HOW ARE SPECIAL DAMAGES PROVEN
It is trite therefore that anybody making a claim in special damages must prove strictly that he is entitled to such damages. PER ABUBAKAR JEGA ABDULKADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
WEST AFRICAN EXAMINATION COUNCIL – Appellant(s)
AND
MR. A.E. UMEAKUKA – Respondent(s)
ABUBAKAR JEGA ABDULKADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Enugu Per Olatoregun, J. delivered on the 13th day of May 2003.
The facts leading to this appeal are stated thus:-
The Respondent in this appeal was a staff of the Appellant. His appointment was terminated by the Appellant by its letter dated 21st May 1997 (sic) with effect from April 1997. The Appellant sued for some of his terminal benefits which he claimed he was entitled to all contained in paragraph 12 of his Statement of Claim. The Statement of Claim is at pages 4 to 6 of the records and includes a declaration that he was entitled to payment of monthly pension, housing scheme contributions, medical allowance for 1997, N161, 910 as gratuity due and payable and 10% interest. The trial court entered judgment partly in favour of the Plaintiff/Respondent in paragraph 12 (a) to (g). Sub-paragraphs (a) and (b) are items of declaratory reliefs while sub-paragraphs (c), (d), (f) and (g) contained items of special damages.
The case of the Plaintiff at the lower court was that he was a staff of the Appellant and after sixteen years of serving the Appellant, he resigned voluntarily from the services of the Appellant. He tendered exhibit “A” which was his letter of employment, exhibit “B” which was letter of promotion, exhibit “C” which was his letter of award of annual increment. Also tendered are exhibits “D” – “F”. It was also his case that the Appellant on receipt of his resignation letter terminated his appointment without paying him his entitlements.
The case of the Appellant on the other hand was that the Respondent’s appointment was terminated on the basis of some fraudulent criminal acts which do not qualify him to the payment of pension or gratuity or to any entitlement under any law or regulation in force.
Dissatisfied with the judgment of the lower court, the Appellant appealed to this Court vide its Notice of Appeal dated 20th day of August, 2003 and filed on 21st day of August, 2003 containing three grounds of appeal.
The appeal was entertained on the 3/10/2012. In accordance with the Rules of this Court, the parties filed and exchanged Briefs of Argument. Counsel to the Appellant Mrs. D.I. Uwakwe informed the Court that the Appellant’s brief of argument is dated and filed on the 28/6/05 that they also filed a Reply Brief dated 27/11/08 and filed on 28/11/08. Counsel adopts the two briefs of argument and urged the Court to allow the appeal and set aside the judgment of the lower court. Counsel to the Respondent Mr. P.C. Udeorah states that the Respondent’s brief of argument is dated 10/3/08 and deemed filed on 12/11/08. Counsel adopts the brief and urged the Court to dismiss the appeal and uphold the judgment of the lower court.
Learned counsel to the Appellant formulated three issues for determination in this appeal, the issues are stated thus:-
1. Whether from the evidence adduced and findings of the trial court the Plaintiff/Respondent was entitled as held by the court to payment of his gratuity.
2. Whether from the evidence adduced and the findings of the trial court the Plaintiff/Respondent was entitled to as held by the court to payment of pension based on the pensionable scheme of the Defendants/Appellants.
3. Whether from the evidence adduced and the findings of the trial court the Plaintiff/Respondent was entitled to arrears of monthly pension calculable from May 1997.
The Respondent formulated a lone issue for determination and the issue is stated as follows:-
“Whether the Plaintiff/Respondent has made out a case for the declaratory reliefs which he sought and which was awarded in his favour by the lower court.”
I have considered the totality of the Appellant’s appeal and I am of the view that the issue as formulated by the Respondent clearly captured the essence of this appeal; accordingly it would be adopted in the determination of this appeal.
In his submissions in respect of the issue before the court for determination counsel to the Appellant submits that they entirely agree with the learned trial judge when he asserted that all the Plaintiff’s specific head of claim falls under special damages, counsel also agrees entirely with the trial judge that special damages must be strictly proved. Counsel argues that the trial court in its judgment found as a fact that the Plaintiff/Respondent had woefully failed to establish or prove his claim of gratuity, that having found that the Plaintiff/Respondent failed woefully to prove this item of special damage the court ought to dismiss same counsel referred to –
ADEDEJI AND SONS MOTORS NIG. LTD. V. CHIEF ROBERT OGBOZE IMEH (1996) 8 NWLR (PT.405) 240 at 247; WARNER AND WARNER INTERNATIONAL ASSOCIATES NIG. LTD. V. FEDERAL HOUSING AUTHORITY (1993) 7 SCNJ (PT.1) 1 at 30; BADMUS AND ANOR. V. ABEGUNDE (1999) 7 SC (PT. 1) 78 at 81.
Counsel further submits that the trial court erred in law in holding that on the totality of evidence adduced that the Plaintiff/Respondent was entitled to payment of pension based on the pensionable scheme of the Defendant/Appellant at the rate to be calculated by the Defendant.
Counsel argues that the court had earlier found that the Plaintiff fixed his annual pension at N45,335 and that Exhibit “F” which shows the table of benefit based on percentage at 32% for a service of 16 years and no explanation was proffered by the Plaintiff for the discrepancy or why he chose to calculate at 42%. That the court after finding that the Plaintiff did not prove this item of special damage still held that he was entitled to same. That the Plaintiff did not even lead evidence as to the contents of Exhibit F he simply tendered same and said he was relying on the contents without referring the court to the provisions and the court suo motu did the search and dug up the provisions. Counsel submits that the court ought to have dismissed this head of claim reference made to ADEDEJI & SONS MOTORS NIG. LTD. V. CHIEF ROBERT OGBOZE IMEH (supra).
Further counsel contends that the trial court erred in holding that the Plaintiff was entitled to arrears of monthly pension calculable from May 1997 in that the court had earlier found that for the Plaintiff to succeed in this head of claim he ought to have established that as at May 1997 he had attained the age of 45 years as required by Exhibit “F” that this he failed to do and did not even give evidence on the specific contents of Exhibit “F”. That the proper order for the Court to have made here was an order for dismissal of this item of claim.
Finally counsel urged the court to allow the appeal and the Respondent case be dismissed in its entirety because the Plaintiff/Respondent failed to prove strictly all his items of claim which fall into the realm of special damages.
In his response to the submissions of the Appellant, learned counsel to the Respondent submits that the Respondent filed his statement of claim on 27/11/2001, that at paragraphs 1, 2 and 3 of the said statement of claim he claimed to be an employee of the defendant under the pensionable scheme of the defendant and which employment was duly ratified by the Defendant/Appellant in her statement of defence paragraph 1. That the Plaintiff/Respondent went further to prove his case, he gave evidence and tendered documents in proof of his case. At paragraph 12 of the statement of claim he prayed for two declaratory reliefs as contained in reliefs (a) & (b) and other reliefs as contained in prayers (c) – (g).
Further counsel contends that the Plaintiff/Respondent led evidence to show that he was an employee of the
Defendant/Appellant. He tendered his letter of employment i.e. exhibit “A”, he tendered exhibit “B” which was his letter of promotion in the services of the Defendant/Appellant. He also tendered exhibit “C” which was his basic annual salary as at 1st of April, 1997. That the Plaintiff at the lower court gave evidence to show that he served the Defendant/Appellant for 16 years after which he voluntarily resigned. He tendered and relied on exhibit “F” which was the gratuity/pensions scheme book of the Defendants regulating the payment of pension and gratuity to staff on retirement or termination of service. Exhibit “E” was tendered by the Plaintiff showing that the Defendant/ Appellant terminated his appointment. Exhibit “D” is the letter of the plaintiff resigning voluntarily from the service of the Defendant/Appellant. Counsel to the Respondent submits that this evidence of the Plaintiff could not be shaken by the Defendant it stood unchallenged.
It is submitted that the case of the Defendant/Appellant as it were was that the Plaintiff’s appointment was terminated based on malpractices or fraudulent acts and that being the case, such termination on that ground can only earn the ex-employee a month’s salary in lieu of notice. That from the totality of the evidence and exhibits before court, it was admitted between the parties that first the Plaintiff was an employee of the Defendant, second, Plaintiff served the defendant for 16 years. Third, the Plaintiff’s appointment was terminated. Fourth, the Plaintiff’s basic annual salary as at the time his appointment was terminated was as contained in exhibit “C”. Fifth exhibit “F” regulate the gratuity/pension payable to any staff on retirement or termination of appointment. That these facts as listed are not in contention, and in fact were admitted by the parties, but the Defendant/Appellant’s main grouse was that owing to the circumstances surrounding the Plaintiff exit, he was not entitled to payment of any benefit under exhibit “F”.
Counsel to the Respondent contends the question that revolves round the issue is whether the Defendant/ Appellant proved that the Plaintiff was not entitled to payment to any benefit under exhibit “F”.
It is submitted that both from the judgment of the lower court and evidence before the court the Defendant has woefully failed to prove. That the Defendant/Appellant’s single witness testified to state that the Plaintiff/Respondent was found guilty or rather, that a case of various examination malpractices were made against the plaintiff.
Under cross-examination however, it was obvious that no such case was made out against the Plaintiff/Respondent that this is because no such case was ever reported to the police and no criminal charges were ever leveled against the Plaintiff/Respondent. Neither was the Plaintiff convicted by any competent Court or Tribunal anywhere. That this equally was the finding of the lower court. Further counsel argued that exhibit “E” terminated the appointment of the Plaintiff, yet a close perusal of exhibit “E” said nothing concerning malpractices which the Defendant/Appellant alleged was the ground upon which the appointment of the Plaintiff was terminated.
It only said that the plaintiff/Respondent’s appointment has been terminated and that he was entitled to one month’s salary in lieu of notice amongst other things. That from the foregoing, since the Defendant/Appellant has failed to prove that the plaintiff was not entitled to payment of his entitlement, what was left before the court was the issue of reliefs sought by the Plaintiff vis-a-vis exhibit “F”.
Counsel to the Respondent argues that the Appellant has missed the issue as contained in the judgment of the lower court. That the Plaintiff according to his statement of claim had sought for some declaratory reliefs and other reliefs which the lower court had rightly classified as coming under heads of special damages. The lower court after examination of the case put forward by both parties held that from the evidence before it, the plaintiff has established his right to entitle him to the declarations he sought but has failed to establish the special damages he sought and accordingly dismissed those heads of special damages since there was no evidence to sustain same.
Counsel to the Respondent submits that the Defendant/Appellant confused the award made in respect of declaratory relief which was found proved and special reliefs which were found unproved. That these two reliefs are distinct and can be differentiated from each other. Special damages are those losses which the law requires must be proved strictly, such proof must consist of evidence of particular losses which are exactly known or accurately measured before the trial. That it is trite therefore that anybody making a claim of special damages must prove strictly that he is entitled to such damages. Reference made to EDON v. PROVOST LOCOED (1993) 13 NWLR (PT.580) 52.
In respect of Declaratory reliefs counsel for the Respondent submits that it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence that he is so entitled reference made to VINCENT BELLO V. MAGNUS IWEKA (1981) 1 SC 101 AT 102, ADEMOLA V. 7Up BOTTLING CO. PLC (2004) ALL FWLR (PT.239) 985 – 986.
Finally counsel submits that all the argument proffered by the counsel to the Appellant and authorities cited thereto are inapplicable to this case since they deal only with the proof of special damages which the learned trial judge had held the Plaintiff had not proved and accordingly dismissed same. Counsel urged the Court to dismiss this appeal with substantial cost and uphold the judgment of the lower court.
In reply on points of law counsel to the Appellant submits that the Respondent did not make out a case for the declaratory relief which he sought and were awarded in his favour by the lower court, further counsel argues that declaratory reliefs are not awarded in vacuum they are based on facts and other findings of the Court, that they are not supposed to be based on unproven facts and contradictions, if the Respondent has not proved that he is entitled to any relief then he is not entitled to a declaration. Counsel referred to a portion of the judgment at page 10 of the judgment which he alleged is not only contradictory but vague and urged us to hold that the lower court had no basis for granting declaratory reliefs on a failed and unproven claim for damages.
The sole issue for determination is whether the Plaintiff/Respondent has made out a case for the declaratory reliefs which he sought and which were awarded in his favour.
The claim of the Respondent is contained in paragraph 12 at page 5 of the printed record, it reads thus:-
12 – By reasons of matters aforesaid, the plaintiff has suffered loss and damages.
WHEREFORE the Plaintiff claims against the Defendant as follows:-
(a) DECLARATION that the Plaintiff is entitled to payment of gratuity, upon withdrawal of service as per his notification of retirement/withdrawal from service of 28/4/97 or Defendant’s notification of retirement/withdrawal of 21/5/97 or termination of employment of 29/4/97.
(b) DECLARATION that the Plaintiff is entitled to payment of pension under the pensionable scheme of the Defendant.
(c) PAYMENT OF ARREARS of monthly pension calculable from May 1997.
(d) PAYMENT of housing scheme contribution of the Plaintiff.
(e) PAYMENT of medical allowance for 1997.
(f) PAYMENT of gratuity N161, 910 due and payable to the Plaintiff.
(g) 10% (Ten per centum) interest payable on gratuity and pension due from May 1997 till delivery of judgment.
The Plaintiff/Respondent had sought two declaratory reliefs in his statement of claim. In proof of this he led evidence and tendered exhibit “A” which was his letter of appointment, he tendered exhibit “B” which was his letter of promotion in the employment of the Defendant. He tendered exhibit “C” which was award of annual increment. He tendered exhibit “E” which was the letter written by the Defendant terminating his employment and he also tendered exhibit “F” which was the gratuity and pensions scheme of the Defendant. From the foregoing it is not in doubt that the Plaintiff/Respondent was a staff of the Defendant/Appellant who had put in 16 years of service. These pieces of evidence goes to establish the right of Plaintiff/Respondent to entitle him to the declarations he sought which the lower court in its judgment rightly found for him.
In the instant appeal the Plaintiff/Respondent apart from the declaratory reliefs he sought also for special reliefs which were found unproved, he sought amongst others for payment of gratuity N161, 910.00, the declaratory reliefs and the special reliefs are distinct and can be differentiated from each other. The relief of payment of gratuity of N161, 910.00 falls within the category of special damages which the law, requires must be proved strictly.
Such proof must consist of evidence of particular losses which are exactly known or accurately measured before the trial. It is trite therefore that anybody making a claim in special damages must prove strictly that he is entitled to such damages.
In applying this principle to this case, the lower court after examining the evidence before it held that with respect to those items of special damages which the Plaintiff/Respondent had sought in paragraph 12 of his statement of claim at page 6 of the printed record paragraph 12 (C), (D), (F) and (G) that the Plaintiff/Respondent had failed to prove them specially as required by law.
Learned counsel to the Appellant glaringly misconceived the law and the judgment of the lower court when he lumped the issue of declaratory reliefs and special reliefs as one and the same when these two reliefs are distinct and can be differentiated from each other as rightly done by the lower court.
In the appeal at hand I have no iota of doubt that the Plaintiff/Respondent has placed before the Court cogent evident to entitle him to the declaratory reliefs which the trial court rightly granted him, I also find merit in the holding of the trial court that the pension of the Plaintiff/Respondent is to be calculated based on the pensionable scheme of the Defendant/Appellant at the rate to be calculated by the Appellant. I therefore resolve the only issue for determination in favour of the Respondent against the Appellant.
In the result, I find the appeal devoid of any merit and is accordingly dismissed. The judgment of Olatoregun J. sitting at the Federal High Court, Enugu Judicial Division in Suit No. FHC/EN/CS/420/2001 delivered on 13th May 2003 is hereby affirmed. Costs of N30, 000.00 are awarded in favour of the Respondent against the Appellant.
JOHN INYANG OKORO, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother, Abubakar Jega Abdulkadir, JCA just delivered and I agree with him that this appeal lacks merit and ought to be dismissed. My learned brother has exhaustively dealt with all the salient issues submitted for the determination of this appeal and I adopt both his reasoning and conclusion as mine. I also dismiss this appeal. I subscribe to the order as to costs made in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA gave me the opportunity of reading before now the judgment just delivered. I agree that the appeal is lacking in substance and I dismiss it accordingly. I adopt the award of N30,000.00 costs in favour of the respondent.
Appearances
Mrs. D.I. UwakweFor Appellant
AND
Mr. P.C. UdeorahFor Respondent
