Court of Appeal Judgment in PAN v. Uzokwe| Issues: Statement of Claim Signed by Unknown Person on Behalf of Counsel, Unsought Relief and Interpretation of ‘Withdrawal’

IN THE COURT OF APPEAL

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

DELIVERED ON THE 26TH OF AUGUST, 2016

BEFORE THEIR LORDSHIPS

HABEEB ADEWALE. O. ABIRU            JUSTICE, COURT OF APPEAL  

OLUDOTUN A. ADEFOPE-OKOJIE      JUSTICE, COURT OF APPEAL

AMINA AUDI WAMBAI                          JUSTICE, COURT OF APPEAL

                                                                   APPEAL NO CA/K/102/2013

BETWEEN                                                                   

Peugeot Automobile Nigeria Ltd        ………..                        Appellant

                             AND

Chief John C Uzokwe                              …………                     Respondent


JUDGMENT (DELIVERED BY HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


This appeal is against the judgment of the Kaduna State High Court in Suit No KDH/KAD/244/2004 delivered by Honorable Justice M. T. M. Aliyu on the 12th of December, 2011.

The Respondent was the plaintiff before the lower Court and it was his case that he was employed by the Appellant as the Deputy Head of the Finance Division on the 14th of December, 1979 and that by the terms of his employment, he was entitled to remain in employment until the age of sixty years unless same was validly and lawfully terminated or on ground of dismissal for gross misconduct. It was his case that his letter of appointment did not stipulate the period of notice in the case of termination, but that his employment was governed by the Retirement Scheme for the Management Staff and which provided for six months notice.

It was his case that he rose to become the General Manager, Finance and he remained in his position until the 15th of December, 2000 when a Mr. Beudet, acting on behalf of the Appellant, wrote a letter terminating his employment with effect from that day, in clear breach of his terms of employment, and ordered the security men of the Appellant to seal his office and to physically eject him from the premises of the Appellant.

It was the case of the Respondent that Mr. Beudet had no authority to single handedly terminate his employment and that he protested his termination and wrote petitions to the Minister for Industries and the President of the Senate of the Federal Republic of Nigeria and that the Senate Committee on Industries waded into the matter and that after hearing from both parties, the Senate Committee decided and directed that he should be restored to his position in the Appellant company.

It was his case that Mr. Beudet, after the Committee sitting, sought for and had a private session with the Chairman of the Senate Committee and thereafter things took a different turn and he was summoned to a meeting by the Chairman of the Committee on the 17th of March, 2001 and he was intimidated, harassed, pressured and coerced into writing a letter of retirement from his office in the Appellant company on the same day and the letter of retirement was accepted immediately by Mr. Beudet. It was his case that he subsequently caused his Solicitors to write letters denouncing the letter of retirement as involuntary and that he was not up to the age of sixty years at the time of his disengagement and was not found incompetent and neither did he commit any act of misconduct.

The Respondent commenced the action in the lower Court to challenge his termination by and his subsequent involuntary retirement from the Appellant company and he claimed the sum of N66,481,703.00 as his terminal benefits, including salary in lieu of notice, honorarium, several allowances, pension, gratuity, outstanding salaries and fringe benefits, as well as the sum of N2,362,800.00 being costs of the personal effects he kept in his office for safe keeping and which he was not allowed to retrieve before he was physically ejected from the Appellant’s premises, both totaling N70,386,454.00, less the sum of N6,602,057.00, which he said should be netted off. The Respondent also claimed that he was entitled to the Peugeot 406 Saloon Car as well as the 50KVA Berliet generator that were allocated to him by the Appellant.

In its response pleadings, the Appellant denied the case of the Respondent and it was its case that the employment of the Respondent by the Appellant was a regular master and servant relationship and was subject to disengagement either by resignation, termination, dismissal or retirement and that save as contained in the Respondent’s letter of employment, there were no separate terms or conditions of service applicable to the Respondent. It was its case that the Appellant’s Retirement Scheme for Deputy General Manager, General Manager, and above was a scheme/guide applied at the total discretion of the Managing Director of the Appellant to retiring or withdrawing staff in the cadre and was never communicated to the Respondent as forming part of his terms of employment. It was its case that the Respondent neither retired nor withdrew his services from the employment of the Appellant, but that his employment was terminated on the ground that his services were no longer required and following several interventions, the Appellant allowed the Respondent to voluntarily retire on the 17th of March, 2001, and that following the recanting of his voluntary retirement, the status quo reverted to his termination by the Appellant.      

It was the case of the Appellant, that upon the termination, the Respondent was not ejected from the premises of the Appellant and was allowed access to his office and allowed to remove all his personal belongings and effects there from and it was incorrect that the Respondent was intimidated, harassed, pressured and coerced into writing a letter of voluntary retirement by the Senate Committee Chairman or by anyone else. It was its case that following the decision of the Senate Committee on Industries that the Respondent be reinstated, its Managing Director sought a private audience with the Committee Chairman, out of respect, to inform him that the Appellant, as a private limited liability company, was not under the control of the Senate and could not be compelled to respect its decision. It was its case that the Senate Committee Chairman saw the error in their decision and informed the Respondent accordingly and pleaded with the Managing Director of the Appellant to withdraw the letter of termination of the Respondent’s employment and allow the Respondent to voluntarily retire instead and that the Respondent voluntarily worded his letter of retirement and same was accepted and he was paid his terminal benefits, less the debts due from him to the Appellant. It was its case that the Respondent was not entitled to the claim for terminal benefits and/or to that for cost for personal effects and neither was he entitled to the Peugeot 406 Saloon Car or the 50KVA Berliet generator that were allocated to him by the Appellant.

The matter proceeded to trial and in the course of which the Respondent called two witnesses and tendered several exhibits in proof of his case and the Appellant called three witnesses and also tendered several exhibits in proof of its defence. In the course of their testimonies, the first and third defence witnesses gave evidence that the Respondent was entitled to terminal benefits in the total sum of N15,373,187.50 and out of which a total deduction of N8,771,128.76 was made leaving a balance of N6,602,058.74 which was paid to the Respondent and that the bulk of the deductions made was for disallowable expenses for unauthorized trips totaling the sum of N7,372,940.76k. At the conclusion of trial and after the rendition of final written addresses, the lower Court entered judgment in favour of the Respondent. The lower Court found in the judgment that the Respondent failed to prove his entitlement to the sum of N70,386,454.00 claimed and that the Appellant failed to prove that it was entitled to deduct the sum of N7,372,940.76k from the admitted terminal benefits of the Respondent. The lower Court made the following orders in the judgment:

  1. Declare that the letter dated the 15th of December, 2000 which terminated the plaintiff’s employment is a flagrant and gross violation of the plaintiff’s terms and conditions of employment.
  1. Declare that the plaintiff after his employment was terminated is entitled to the Peugeot 406 official car and 50 KVA electric generator allocated to him on payment of 50% of their net book value.
  2. The sum of N7,372,940.76k unjustifiably deducted from the plaintiff’s entitlements in the calculation of his terminal benefits in exhibit 45 which should be paid to him by the defendant.
  3. 10% interest on the judgment sum per annum from today 12th of December, 2011 till it is liquidated shall be paid to the plaintiff by the defendant.

The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 13th of December, 2011 and containing four grounds of appeal against it. The notice of appeal was subsequently amended and the Appellant filed an amended notice of appeal dated the 28th of May, 2015 on the 1st of June, 2015 and it also contained four grounds of appeal. In arguing the appeal before this Court, the Appellant filed an amended brief of arguments dated the 1st of June, 2015 and to which the Respondent reacted by filing a brief of arguments dated the 11th of December, 2015 on the 17th of December, 2015 and the brief of arguments was deemed properly filed on the 17th of February, 2016. The Appellant filed an amended reply brief of arguments dated the 10th of May, 2016 on the 11th of May, 2016 and it was deemed properly filed on the 1st of June, 2016.

The Respondent too was dissatisfied with the judgment of the lower Court and it caused to be filed a notice of cross appeal containing two grounds of appeal and dated the 11th December, 2015 on the 17th of December, 2015. This was sequel to orders granted by this Court on the 11h of December, 2015 allowing the Respondent to cross appeal. In arguing the cross appeal, the Respondent filed a brief of arguments dated the 22nd of December, 2015 on the 30th of December, 2015. The Appellant responded by filing a notice of preliminary objection dated the 21st of March, 2016 and an amended brief of arguments dated the 9th of May, 2016 on the 11th of May, 2016 and which was deemed properly filed on the 1st of June, 2016. The Respondent filed a reply brief of arguments dated the 29th of March, 2016 on the 31st of March, 2016 and another composite reply brief of arguments dated the 30th day of May, 2016 on the 1st of June, 2016.

At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments on the substantive appeal of the Appellant as their oral submissions on the appeal. On the cross appeal, Counsel to the Appellant and the Respondent argued the notice of preliminary objection to the cross appeal and they thereafter relied on and adopted the arguments contained in their respective briefs of arguments on the cross appeal.

The Appeal

This Court will commence its deliberations in this appeal from the appeal of the Appellant. Counsel to the Appellant distilled three issues for determination in the appeal of the Appellant and these were:

  1. Whether the Respondent’s amended statement of claim dated March 10, 2009 signed for and on behalf of a legal practitioner by an unknown and undisclosed person is not incompetent and robbing the trial Court of its jurisdiction.
  2. Whether the trial Court was right in awarding the Respondent the sum of N7,372,940.76k which the Respondent neither pleaded nor sought in his reliefs.
  3. Whether the trial Court was right in its interpretation of Exhibit 3 to the effect that the word “withdrawal’ in the context used in Clause 1.2 of Exhibit 3 is wide enough to accommodate the termination of a management staff.

Counsel to the Respondent accepted the issues as formulated by Counsel to the Appellant. Now, an issue for determination in an appeal is said to be a combination of facts and circumstances including the law applicable thereto which is so crucial that if it is decided one way or the other will affect the fate of the appeal.

It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501, G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392, Ali Vs Osakwe   (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155. The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court – Ugo Vs Obiekwe (1980 All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337.

The third issue for determination formulated by Counsel to the Appellant was distilled from the third ground of appeal and it challenged the lower Court’s interpretation of word “withdrawal” as used in the document titled “Retirement Scheme for Deputy General Manager, General Managers and Above” tendered as Exhibit 3 at the trial. This interpretation was one of a series of findings made by the lower Court in coming to the decision and in granting the declaration sought by the Respondent that the letter dated the 15th of December, 2000 which terminated his employment was a flagrant and gross violation of the terms and conditions of his employment. The Appellant did not appeal against the grant of the declaration by the lower Court and/or the other findings made by the lower Court which culminated in the grant of the declaration.

Thus, even if this Court were to resolve the third issue for determination in favour of the Appellant, it will not, and cannot, set aside the declaration as granted by the lower Court. The resolution of the issue cannot thus impact the outcome of the appeal. 

It is trite that a point in dispute between two or more parties which resulted into submitting the dispute to the lower Court is that which should be resubmitted in the Court of Appeal where a party is not satisfied with the outcome of the resolution in the trial Court, and which in the instant case was whether or not the employment of the Respondent was lawfully determined. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour – Ibori Vs Agbi (2004) 6 NWLR (Pt 868) 78.

An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant – Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value – Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592. The third issue for determination formulated by Counsel to the Appellant is of no value in this appeal of the Appellant and its resolution will only be an academic exercise. Courts do not embark on such ventures – Madueke Vs Madueke (2012) 4 NWLR (Pt 1289) 77, Ikenya Vs Peoples Democratic Party (2012) 12 NWLR (Pt 1315) 493.

This Court will thus decline the third issue for determination formulated by the Counsel to the Appellant and the issue for determination is hereby struck out along with the arguments canvassed thereon by the parties. This Court will consider only the first and second issues for determination as formulated by the Counsel to the Appellant and the appeal of the Appellant will be determined on the two issues for determination. The two issues for determination will be resolved seriatim.

On the first issue for determination, Counsel to the Appellant stated that after the conclusion of trial, the Respondent, by an order of Court, amended his statement of claim dated 29th of March, 2004 with an amended statement of claim dated 31st of May, 2007 and that the Respondent further amended the amended statement of claim, pursuant to an order of Court made on the 10th of March, 2009, and he filed the extant amended statement of claim dated 10th of March, 2009 relied upon by the lower Court in the judgment.

Counsel stated that the amended statement of claim of 10th of March, 2009 was signed by an undisclosed person for and on behalf of JHC Okolo SAN of JHC Okolo & Co and that the person who so signed did not state his name and his designation as a legal practitioner enrolled to practice as a barrister and solicitor in Nigeria and that this offended the provisions of sections 2(1) and 24 of the Legal Practitioners Act Cap 207 Laws of the Federation, 1990 and rendered the process invalid and incompetent and he referred to the cases of Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Peak Merchant Bank Ltd Vs NDIC (2011) 12 NWLR (Pt 1261) 253, Mobil Oil Nig Plc Vs Yusuf (2012) 9 NWLR (Pt 1304) 47 and FBN Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444.

Counsel stated that an amended statement of claim in a case dates back to the date when the pleading was originally filed and consequently becomes the integral court process that activated the jurisdiction of the trial Court and that what stood before the amendment is no longer material before the court and no longer defines the issues to be tried and the original pleading must be regarded as having been discarded and he referred to the cases of Salami Vs Oke (1987) 4 NWLR (Pt 63) 1, Jatau Vs Ahmed (2003) 4 NWLR (Pt 811) 498 and Garan Vs Olomu (2013) 11 NWLR (Pt 1365) 227.

Counsel stated that sequel to this position of the law, the extant amended statement of claim dated back to the date the original statement of claim was filed and the signing same by a person whose name and designation as a legal practitioner was not disclosed rendered it incompetent and that this was the process relied upon by the lower Court in the judgment and its incompetence thus robbed the lower Court of the jurisdiction to hear and determine this suit and he referred to the cases of Peak Merchant Bank Ltd Vs NDIC supra and SLB Consortium Ltd Vs NNPC (2011) NWLR (Pt 1252) 317.

Counsel stated that it was immaterial that the issue was not first raised and canvassed in the lower Court because being an issue of jurisdiction, it could be raised at anytime, even in the Supreme Court for the first time and he referred to the case of Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.     

In response, Counsel to the Respondent traced the history of this case and stated that the original statement of claim was dated the 29th of March, 2004 and that it was to this pleadings that the Appellant entered appearance on the 20th of July, 2004 and filed a statement of defence dated the 15th of February, 2005 and that the Respondent filed a reply to the statement of defence and this was dated the 23rd of March, 2005.

Counsel stated that the Appellant filed an amended statement of defence dated the 25th of April, 2005 and that it was on these pleadings that the trial of the matter was commenced, conducted and concluded between the 4th of October, 2004 and the 31st of March, 2007 before Honorable Justice M. T. M. Aliyu and the parties were ordered to filed their final written addresses and the case was adjourned to the 28th of May, 2007 for adoption of addresses.

Counsel stated that Honorable Justice M. T. M. Aliyu was thereafter deployed to other judicial duties and the matter was transferred to Honorable Justice A. D. Yahaya who on the 31st of May, 2007, at the instance of the Counsel to the Respondent, made an order granting leave to the Respondent to amend his statement of claim and an amended statement of claim dated the 31st of March, 2007 was filed.

Counsel stated that the matter resumed before Honorable Justice M. T. M. Aliyu on the 24th of November, 2008 and by which time the Respondent had changed Counsel to JHC Okolo SAN and the new Counsel brought an application seeking to withdraw the amended statement of claim dated the 31st of March, 2007 and to revert to the original statement of claim as the only statement of claim in the suit and the Counsel to the Appellant did not oppose the application and the motion was granted and the original statement of claim dated the 29th of March, 2004 was restored as the extant statement of claim.

Counsel stated that Counsel to the Appellant thereafter filed an application before the lower Court praying for the dismissal of the suit on the ground that there was no statement of claim on which the evidence led by the Respondent on record could be hinged because with the withdrawal of the amended statement of claim of 31st of March, 2007 there were no pleadings and the original pleadings had been extinguished when the leave to amend was granted.

The lower Court took arguments on the application and it dismissed same and the parties thereafter proceeded to adopted their final written addresses which had been, and were in fact, filed on the basis of the pleadings upon which trial was conducted and that no issue was raised or canvassed on the alleged amended statement of claim dated the 10th of March, 2009 in the final addresses.

Counsel stated that any reference thus made by the lower Court to the amended statement of claim dated the 10th of March, 2009 in the judgment was a mere slip and it was uncharitable for Counsel to credit the lower Court with what it did not conceive and that moreover, the law is that where a process is amended, the original process does not become otiose and the Court cannot shut its eyes against such a process as it still forms part of the processes it is entitled to look at it and he referred to the cases of Agbahomovo Vs Eduyegbe (1990) 3 NWLR (Pt 594) 170, Balonwu Vs Obi (2007) NWLR (Pt 1028) 488 and Fajimi Vs Lagos State Management Authority (2015) 2 CAR 1.

Counsel stated further that the principle of law established by the apex Court in Okafor Vs Nweke, with its subsequent variants, should not be held as an impregnable armour cast in iron for all purposes with liberty for Counsel to employ same irrespective of the stage of the proceedings in which it is raised and he referred to the provisions of Order 17 Rule 7 of the Kaduna State High Court Rules on pleading of defences and stated that the issue raised by the Appellant was tantamount to raising a statutory defence and that no such defence was pleaded by the Appellant before the lower Court and he referred to the case of Onyenweuzor Vs Opunsunju (2002) 6 NWLR (Pt 762) 72.

Counsel stated that Counsel to the Appellant cannot, and should not, be allowed to raise the issue in this appeal and he referred to the cases of Olomo Adie Vs The State (2013) 28 WRN 171 and Martins Vs Federal Administrator General (1962) 1 All NLR 120. Counsel urged this Court to resolve the issue for determination against the Appellant.

Reading through the records of appeal, it is correct as stated by Counsel to the Respondent that the original statement of claim filed in this matter was dated the 29th of March, 2004 and in response to which the Appellant filed a statement of defence dated the 15th of February, 2005 and that the Respondent filed a reply to the statement of defence and this was dated the 23rd of March, 2005.

The records show that the Appellant filed an amended statement of defence dated the 25th of April, 2005 and in response to which the Respondent filed a reply to the further amended statement of defence and it was dated the 30th of June, 2006. The records show that it was on these pleadings that the hearing in the matter was commenced, conducted and concluded between the 4th of October, 2004 and the 23rd of March, 2007 and the parties were ordered to file their final written addresses and the case was adjourned to the 28th of May, 2007 for adoption of addresses.

The records show that Counsel to the Respondent thereafter filed a motion on notice dated the 12th of May, 2007 seeking for leave to amend the statement of claim and the motion was granted by the lower Court and an amended statement of claim dated the 31st of May, 2007 was filed.

The records show that the Respondent changed Counsel to JHC Okolo SAN and the new Counsel brought an application dated the 30th of October, 2008 seeking for an order:

“Permitting the Plaintiff/Applicant to withdraw as part of the proceedings in this suit the Amended Statement of Claim filed on 31/5/07, pursuant to the orders made on application by Hon. Justice A. D. Yahaya and thereby retain the original Statement of Claim filed therein as the pleadings in the suit.”

 The records show that the Counsel to the Appellant did not oppose the application and the motion was granted by the lower Court and the original statement of claim dated the 29th of March, 2004 was restored as the extant statement of claim. The records show that Counsel to the Appellant thereafter made an oral application before the lower Court praying for the dismissal of the suit on the ground that there was no statement of claim on which the evidence led by the Respondent on record could be hinged because with the withdrawal of the amended statement of claim of 31st of May, 2007 there were no pleadings in the matter as the original pleadings which was sought to be restored had been extinguished when the leave to amend was granted.

The lower Court took arguments on the application and it dismissed same in very well considered Ruling delivered on the 10th of March, 2009 and the lower Court stated towards the tail end of the Ruling thus:

“… In the interest of justice all the plaintiff shall be required to do is to file a schedule of amendment and pay all necessary fees and generally comply with the provisions of Order 25. It is hereby so ordered and the application to dismiss the plaintiff’s suit is itself dismissed.”  

It was in apparent compliance with this directive that the Respondent filed the amended statement of claim dated the 10th of March 2009. This Court has read through the amended statement of claim and it is a word for word, line by line and paragraph by paragraph reproduction of the original statement of claim filed in the suit and dated the 29th of March, 2004 and on the strength of which the entire trial was commenced, conducted and concluded.

Counsel to the Appellant argued forcefully that the amended statement of claim dated the 10th of March, 2009 was signed for and on behalf of JHC Okolo SAN by an unknown person who did not state his name and his designation as a legal practitioner enrolled to practice as a barrister and solicitor in Nigeria and that this offended the provisions of sections 2(1) and 24 of the Legal Practitioners Act Cap 207 Laws of the Federation, 1990 and rendered the process invalid and incompetent and he referred to the case law authorities on the point.

Counsel to the Respondent did not contend or respond to this submission. It is settled law that where a party fails to respond to a point or an issue, either in the brief of argument or oral presentation, the opposing party is deemed to have admitted all that his adversary has stated – Okongwu Vs Nigeria National Petroleum Corporation (1989) 4 NWLR (Pt 115) 296, Nwankwo Vs Yar’Adua (2010) 12 NWLR (Pt 1209) 518 and International Tobacco Company Plc Vs British American Tobacco Nigeria Ltd (2013) LPELR-CA/IL/43/2012. The Court thus finds that the amended statement of claim dated 10th of March, 2009 was indeed incompetent and it is hereby struck out.

Counsel to the Appellant submitted further that the incompetence of the amended statement of claim robbed the lower Court of jurisdiction to entertain the claim as it dated back to the date of the original statement of claim and formed the integral process that activated the jurisdiction of the lower Court. Now, it is not in contest that amended pleadings dates back and takes effect from the date of the original pleadings – Jatau Vs Ahmed (2003) 4 NWLR (Pt 811) 498 and Brittania-U Nigeria Ltd Vs Seplat Petroluem Development Company Ltd (2016) LPELR-SC.338/2014.

This is, however, a legal fiction. A legal device invented for the purpose of ease of adjudication and it does not change the actual date of filing of the amended process, and does not pretend that nothing existed before the amended process was filed.

Hence, the Courts have stated repeatedly that a statement of claim or defence which has been amended with leave of court does not disappear into thin air and cease to exist and it is still part of the proceedings and can be properly looked at or referred to by the trial court – Salami Vs Oke (1987) 4 NWLR (Pt 63) 11, , Agbaisi Vs Ebikorefe (1997) 4 NWLR (Pt 502) 630, Balonwu Vs Obi (2007) NWLR (Pt 1028) 488, Anambra State Environmental Sanitation Authority Vs Ekwenem (2009) 13 NWLR (Pt 1158) 410, Uzodinma Vs Izunaso (No 2) (2011) 17 NWLR (Pt 1275) 30. In Agbahomovo Vs Eduyegbe (1990) 3 NWLR (Pt 593) 170 the Supreme Court at 186-187 H-C explained the point thus:

“Although once pleadings are duly amended by an order of Court, what stood before the amendment is no longer material before the court and no longer defines the issue to be tried before the court, that however is as far as that proposition of the law goes. It does not lay down any principle that an original pleading which has been amended by the order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out from the proceedings.”

Similarly, this Court in Attorney General, Edo State Vs Jessica Trading Co Ltd (1999) 5 NWLR (Pt 604) 500 at 513 said:

“However, because a pleading has been amended does not mean that it is expunged or struck out and the court can rightly refer to it though it cannot consider it as the basis of the claim or defence in the action. Thus, pleading amended does not cease to be part of the record.”      

The original pleadings will only cease to exist where it is withdrawn and is accordingly struck out – Yahaya Vs Chukwura (2002) 3 NWLR (Pt 753) 20 and Adebayo-Adegbola Vs Idowu (2013) LPELR-CA/I/128/2011. Dovetailing from this position of the law is the principle that where a party seeks for and obtains leave of court to amend his pleadings, but fails to file the amended process within the time allotted by the Court or by the Rules of Court or files an amended process different from the one in respect of which leave was granted, the amended process will be struck out and a trial Court is obligated to continue to adjudicate the matter on the original pleadings – Amam (Nigeria) Ltd Vs Leventis Motors Ltd (1990) 5 NWLR (Pt 151) 458, Oil Minerals Producing Areas Development Commission Vs Icer Nigeria Ltd (2001) 7 NWLR (Pt 712) 327, Yahaya Vs Chukwura (2002) 3 NWLR (Pt 753) 20, Union Bank of Nigeria Plc Vs Nwuche (2007) All FWLR (Pt 383) 179, Motoh Vs Motoh (2011) 16 NWLR (Pt 1274) 474.

In the instant case, the jurisdiction of the lower Court to hear and determine the matter was ignited by the original statement of claim dated the 29th of March, 2004, which was subsequently superseded by the amended statement of claim dated the 10th of March, 2009. With the failure of the amended statement of claim, the natural course of events is that matters return to as they were before the amendment; back to the original statement of claim, which had not been withdrawn and/or struck out and still formed part of records of the lower Court.

This was exactly what the Respondent prayed the lower Court for on its motion dated the 30th of October, 2008 and which prayer was granted on the 24th of November, 2008. And since the original statement of claim invested the lower Court with jurisdiction, the jurisdiction cannot be lost because the amended statement of claim is struck out as incompetent. The incompetence of the amended statement of claim of 10th of March, 2009 did not thus rob the lower Court of the jurisdiction to hear and determine the matter.

Counsel also argued that the lower Court referred to the amended statement of claim dated the 10th of March, 2009 in the judgment, instead of staying with the original statement of claim, and that as such the judgment having been predicated on an incompetent statement of claim was a nullity and cannot be allowed to stand.

It is incontestable as a legal principle that a trial, as well as the judgment arising there from, which is predicated on an incompetent statement of claim cannot be allowed to stand. However, it is settled in our jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case. This point was succinctly made by the Supreme Court in Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506 at 538A when the Court stated that:   

“Isolated and general principles of law cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case.”

The point was reiterated by the Supreme Court in Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55 where Rhodes-Vivour, JSC stated at page 96 thus:

“Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow courts to apply the ratio of a case across the board and with little regard to the facts of the case before them.”

In the instant case, the entire trial before the lower Court was commenced, conducted and concluded on the 23rd of Mach, 2007 on the original statement of claim dated the 29th of March, 2004, and not on the amended statement of claim. The issues formulated and submissions contained in the final written addresses of the parties were predicated on the original statement of claim, and not on the amended statement of claim.

No part of the proceedings was predicted on the amended statement of claim. It is correct that the lower Court did make reference to the amended statement of claim in the judgment and that this was an error, but it is settled law that it is not every error committed by a lower Court that would result in its decision being set aside on appeal. For an error to be worthy of having that effect, it must be relevant to the issues in contention between the parties and be substantial as to lead to a miscarriage of justice – First Bank of Nigeria Plc Vs Ozokwere (2014) 3 NWLR (Pt 1395) 439, Azabada Vs State (2014) 12 NWLR (Pt 1420) 40.

A miscarriage of justice refers to a grossly unfair outcome in judicial proceedings; a departure from the rules which permeate all judicial procedure as to make that which happened not, in the proper sense of the word, judicial procedure at all – Nnajiofor Vs Ukonu (1986) 4 NWLR (Pt 36) 505 and Adeyemi Vs State (2014) 13 NWLR (Pt 1423) 132.

As stated earlier, the amended statement of claim was a word for word, line by line and paragraph by paragraph reproduction of the contents of the original statement of claim. Nothing new was included in the amended statement of claim.

Thus, the reference made by the lower Court to the amended statement of claim did not change or in any way affect the relevant issues in contention between the parties and neither did it change one jot of the facts upon which the parties predicated their respective cases and/or submissions before the lower Court. The Appellant has not contended that it suffered any iota of injustice by the reference made by the lower Court to the amended statement of claim in the judgment.

The judgment was predicated on the same facts and issues in respect of which the parties contested matters before the lower Court in the original statement of claim. The reference made by the lower Court to the amended statement of claim in the judgment cannot thus constitute a worthy basis for this Court to tamper with the judgment.

It is essential that we all, as lawyers, Judges, Justices and stakeholders in the administration of justice sector, must constantly take very great care, in the daily pursuits of our tasks in the course of administering justice, not to elevate the adherence to the technical aspects of justice beyond the realm of common sense. Almost all human beings are imbued by God with a discerning mind as to what is right and wrong, good and bad and it is called common sense or logic.

It has manifested as different concepts in the administration of justice system, doctrines such as doing substantial justice, reasonable man in the law of law torts, proof beyond reasonable doubt in criminal litigation, balance of probabilities in civil litigation, the reasonable bystander or observer in fundamental rights applications, etc are all products of common sense.

Where arguments or submissions made by Counsel push or convince a Court to give a decision that cannot be supported by simple logic or common sense, it desecrates the entire judicial process and turns it into the butt of jokes in beer parlour discussions. Examples are abound today.

In the instant case, it was not in contest that the trial in the lower Court was commenced, conducted and concluded on the basis of a competent original statement of claim and that the issues formulated and arguments proffered in final written addresses of Counsel were based on this same statement of claim.

The judgment of the lower Court resolved the issues that arose from, and it was based on the very facts pleaded in this original statement of claim. Counsel to the Appellant has urged this Court in his arguments on this issue for determination to truncate the entire trial process and judgment spanning over seven years because of an incompetent superfluous amended statement of claim that was filed because of the exuberance of the erstwhile Counsel of the Respondent and the rather belligerent attitude of Counsel to the Appellant before the lower Court.

And this was not because the amended statement of claim affected the trial or judgment in anyway, but simply because the lower Court made mention of it in the judgment. This Court fails to see the logic and the common sense in the arguments and hereby rejects same. The first issue for determination is resolved against the Appellant.              

On the second issue for determination, whether the trial Court was right in awarding the Respondent the sum of N7,372,940.76k, Counsel to the Appellant stated that the lower Court erred in law in making the award termed deducted disallowable Abuja trips expense as it was neither pleaded, sought nor claimed as a relief. Counsel reproduced the reliefs sought by the Respondent before the lower Court and stated that nowhere therein did the Respondent claim for the sum of N7,372,940.76k or the refund of deducted disallowable Abuja trips expense incurred by him and that the issue of the sum only arose in the course of the cross-examination of the defence witnesses.

Counsel stated that in addition, the lower Court refused the only monetary claim of the Respondent in the sum of N70,386,454.00 on the ground that it was unproven and incapable of calculation and that one then wonders from where and on what in the Respondent’s pleadings did the lower Court base the award of the sum of N7,372,940.76k termed deducted disallowable Abuja trips expense incurred by the Respondent.

Counsel thereafter referred to several case law authorities on the principle that a Court cannot grant a party a relief that was not specifically claimed and these included the cases of Simton Nig Ltd Vs Pamil Industries Ltd (2001) 8 NWLR (Pt 714) 49, Ezeonwu Vs Onyechi (1996) 3 NWLR (Pt 438) 499, amongst others.  

Counsel stated that the lower Court, having refused the only monetary claim of the Respondent in the sum of N70,386,454.00 on the ground that it was unproven and incapable of calculation, cannot turn round to award the unpleaded and unsought for relief of N7,372,940.76k termed deducted disallowable Abuja trips expense incurred by the Respondent and he referred to the case of Chief Registrar High Court of Lagos State Vs Vamos Navigation Ltd (1976) 1 SC 33. Counsel stated that the issue of N7,372,940.76k being deducted disallowable Abuja trips expense incurred by the Respondent arose in the course of the cross-examination of the defence witnesses and that it was settled law that evidence elicited under cross-examination goes no issue if not pleaded by the party seeking to use it and he referred to the cases of Ezenwa Vs Katsina State Health Services Management Board (2011) 9 NWLR (Pt 1251) 89, Ojoh Vs Kamalu (2008) 18 NWLR (Pt 958) 523, amongst others. Counsel urged this Court to resolve the issue for determination in favour of the Appellant and to set aside the award of the sum of N7,372,940.76k made by the lower Court in favour of the Respondent.

In response, Counsel to the Respondent stated that part of the claims of the Respondent before the lower Court were that he was entitled to his salaries and other entitlements of the office of General Manager, Finance and that his entitlements were the composite sum of N70,386,454.00 including fringe benefits and that the response of the Appellant in its pleadings was that it paid the Respondent all his entitlements due to him less his outstandings at the point of his disengagement. Counsel stated that in the course of his testimony before the lower Court, the first defence witness testified that the terminal benefits of the Respondent was the sum of N15,373,187.50 and out of which a total deduction of N8,771,128.76 was made, including deductions for unauthorized travel expenses and the lower Court found in the judgment that the sum deducted from entitlements of the Respondent as unauthorized travel expenses was N7,372,940.76k and that the Appellant failed to lead evidence to justify the deduction and it then awarded the sum in favour of the Respondent. Counsel stated that the assertion of Counsel to the Appellant that there was absence of pleadings on the amount of N7,372,940.76k awarded was incorrect because the issue of deductions from the entitlements of the Respondent was pleaded by the Appellant and the Appellant was thus obligated to lead evidence in prove and justify the deduction and that it is trite law that a plaintiff can lead evidence on points raised the pleadings of a defendant and he referred to the case of Bamgboye Vs Olanrewaju (1991) 4 NWLR (Pt 183) 132.

Counsel stated that the parties joined issues on the amount due to the Respondent as his entitlements on his disengagement and that the parties were at liberty to lead evidence on the issue joined and the lower Court had an obligation to resolve the issue from the evaluation of the evidence led by the parties and that this was exactly what the lower Court did in coming to the conclusion that the Respondent was entitled to the sum of N7,372,940.76k. Counsel stated that what the lower Court did in the circumstances was proper and he referred to the unreported decision of this Court in Appeal No CA/K/134/2011 – Enertech Engr. Ltd Vs Alpha Praxis Nigeria Ltd delivered on the 28th of February, 2014. Counsel urged this Court to resolve the issue for determination against the Appellant.

The resolution of this issue for determination must depend on the case made out and presented by the parties for adjudication before the lower Court. It is elementary that the starting point of the consideration of the case of the parties before the lower Court must be their pleadings. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be.

They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.

Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters.

When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538.

In the instant case, the Respondent claimed before the lower Court the sum of N66,481,703.00 as his terminal benefits, including salary in lieu of notice, honorarium, several allowance, pension, gratuity, outstanding salaries and fringe benefits, as well as the sum of N2,362,800.00 being costs of the personal effects he kept in his office for safe keeping and which he was not allowed to retrieve before he was physically ejected from the Appellant’s premises, both totaling N70,386,454.00, less the sum of N6,602,057.00, which he said should netted off.

The Appellant in response admitted that the Respondent was indeed entitled to terminal benefits, but not in the sum claimed and that the Respondent had been paid all the entitlements due to him less his outstandings at the point of his disengagement. Thus, the issue before the lower Court was not whether or not the Respondent was entitled to terminal benefits; it was on the quantum of the terminal benefits that the Respondent was entitled to.

Now, the term “onus or burden of proof” has two distinct and frequently confusing meanings. It means (a) the burden of proof as a matter of law and pleadings; it is the burden of establishing a case either by preponderance of evidence or beyond reasonable doubt; and (b) the burden of proof in the sense of introducing evidence.

As regards the first meaning attached to the term burden of proof, this rests upon the party whether claimant or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstance whatever.

The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly more as one scale of evidence or the other preponderates. In this sense, the onus probandi rests upon the parties who would fail if no evidence at all or no more evidence as the case may be were given on either side.

It rests before evidence is gone into upon the party asserting the affirmative of the issue and it rests after evidence is gone into upon the party against whom the court at the time the question arises would  give judgment if no further evidence were adduced – Elemo Vs Omolade (1968) NMLR 359, George Vs United Bank of Africa (1972) 8-9 SC 264, Atane Vs Amu (1974) 10 SC 237, Osawaru Vs Ezeiruka (1978) 6-7 SC 135, Arase Vs Arase (1981) 5 SC 33, Akaniwon Vs Nsirim (1997) 9 NWLR (Pt 520) Ogwule Ankpa Agatu Cooperative Group Farming Society Vs Nigerian Agricultural & Cooperative Bank Ltd (1999) 2 NWLR (Pt 590) 234, Ezemba Vs Ibeneme (2004) 14 NWLR (Pt 894) 617, Henshaw Vs Effanga (2009) 11 NWLR (Pt 1151) 65, Ishola Vs Folorunsho (2010) 13 NWLR (Pt 1210) 169.  

Applying these principles to the state of the facts before the lower Court, it meant that the Respondent had the onus of proving that he was entitled to the sum of N66,481,703.00 claimed as his terminal benefits as well as the sum of N2,362,800.00 being costs of the personal effects, both totaling N70,386,454.00, less the sum of N6,602,057.00 paid by the Appellant. And that the Appellant had the onus of proving that the sum of N6,602,057.00 paid was all that the Respondent was entitled to on his disengagement. T

he Respondent called witnesses in proof of his assertions and the Appellant also called witnesses in proof of its assertion. The first and third defence witnesses gave evidence that the calculated entitlements of the Respondent was actually the sum of N15,373,187.50 and out of which a total deduction of N8,771,128.76 was made leaving a balance of N6,602,058.74 which was paid to the Respondent and that the bulk of the deductions made was for disallowable expenses for unauthorized trips totaling the sum of N7,372,940.76k. The Appellant tendered its calculations as Exhibits 43 and 45.

The lower Court had a duty to evaluate the evidence led by the parties in proof of their different assertions of facts and in doing so, it found that the Respondent did not lead credible evidence to prove its assertions of entitlement to the to the sum of N66,481,703.00 claimed as his terminal benefits as well as the sum of N2,362,800.00 being costs of the personal effects. With regard to the assertion of the Appellant, the lower Court stated, in the judgment, thus:

“It is the evidence in this case that the defendant computed the terminal benefits of the plaintiff in the total sum of N15,373,187.50 and out of which the plaintiff was paid the sum N6,602,058.74 and the balance was deducted by the defendant as debts incurred by the plaintiff during his employment. … The deductions of the sum of N8,771,128.67 as explained in the exhibits and by DW1-DW3 are in relation to alleged unauthorised trips of the plaintiff to Abuja between 1999 and 2000, the market value of the defendant’s generator in plaintiff’s residence, unsettled cash advances, cost of opening safes and replacing safes keys, etc. It is the defendant who made the computation in exhibit 45 and in my view the defendant has the onus to justify the deductions made therein. The evidence with regards to the deductions in exhibits 43 and 45 except those in relation to unauthorized trips to Abuja were not challenged by the plaintiff. The sum of N7,372,940.76k was deducted by the defendant as disallowable Abuja trips expenses incurred by the plaintiff. At pages 6-8 of exhibit 45 were listed about 150 advances of sums of money to the plaintiff between 1999-2000. According to DW1 more than 60 of those advances were never retired by the plaintiff. Yet, the DW1 informed this court during cross examination that the practice in the defendant company is that if 3 touring advances are not retired, approval for another touring advance is not given. If that is true how was it possible for the plaintiff to secure approvals for touring advances when he had not retired more than 50 advances. Furthermore, DW3 the defendant’s AGM Finance stated under cross examination that he could not produce queries issued to plaintiff on the touring advances. In my opinion, the defendant has failed to justify the deduction of the said touring advances in the sum of N7,372,940.76k.”

It was on these findings that the lower Court awarded the Respondent the sum of N7,372,940.76k unjustifiably deducted from his entitlements in the calculation of his terminal benefits which should have been paid to him. The lower Court did not award the Respondent the said sum of N7,372,940.76k as a refund of deducted disallowable Abuja trips expense incurred by the Respondent, as sarcastically suggested by Counsel to the Appellant.

Counsel to the Appellant did not challenge in this appeal the findings made by the lower Court in the above excerpt of judgment that the Appellant had the onus of justifying the deductions it made from the calculated entitlements of the Respondent and that the Appellant failed to justify the deduction of N7,372,940.76k as disallowable Abuja trips expenses incurred by the Respondent. These findings are thus unassailable – Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503. It is elementary that where a person claims for a sum of money, but the evidence reveals his entitlement to a lower sum than the sum claimed, a trial Court should award him the lesser sum claimed – Ekpeyong Vs Nyong (1975) 2 SC 71, Nigerian Telecommunication Ltd Vs Ikpi (2007) 8 NWLR (Pt 1035) 96.

The entire arguments of Counsel to the Appellant that the lower Court erred in granting the sum of N7,372,940.76k as having been unpleaded and unsought for are thus baseless. This issue for determination is also resolved against the Appellant.

This concludes deliberations on the appeal of the Appellant. This Court finds that the appeal is totally devoid of merit and it is liable to be dismissed.

The Cross Appeal

This takes us to the cross appeal of the Respondent. As stated earlier, Counsel to the Appellant filed a notice of preliminary objection to the hearing of the cross appeal and the parties argued same in their respective briefs of arguments. The crux of the preliminary objection is the competence or incompetence of the amended statement of claim dated the 10th of March, 2009 filed by the Respondent before the lower Court on the ground that it was signed by an unnamed and undisclosed person and that this necessarily affected the competence of the action of the Respondent in the lower Court and from which the cross appeal arose.

This issue has been dealt with by this Court under the first issue for determination in the appeal of the Appellant. The issue was resolved against the Appellant and it is hereby again resolved against the Appellant and it is found that the notice of preliminary objection is unmeritorious and same is hereby dismissed.            

Counsel to the Respondent distilled one issue for determination on the cross appeal and it is:

Whether on the pleadings and evidence canvassed at the hearing, the Respondent ought not to be granted the full measure of the terminal benefits due to him on the wrongful termination of his employment.

In arguing the issue for determination, Counsel to the Respondent referred to the pleadings of the Respondent on the claim for terminal benefits and the averments of the Appellant in response thereto and stated that while the items of the claim for terminal benefits were specific, the response of the Appellant was a mere general denial putting the Respondent to the strictest proof of the claim and that this did not amount to sufficient traverse to put the items of claim in issue and he referred to the cases of Essien Vs Effanga (2012) 40 WRN 133, Sketch Vs Ajagbemokeferi (1989) 1 NWLR (Pt 100) 678, amongst others.

Counsel stated that this amounted to an admission and that as such the items of claim required no further proof and the lower Court ought to have found for the Respondent on the claim without further ado and he referred to the provisions of section 123 of the Evidence Act, Order 19 Rules 3(1) & (2) and 4(1) of the High Court of Kaduna State Civil Procedure Rules and the case of UBA Plc Vs Chimaeze (2006) 36 WRN 60.

Counsel thereafter proceeded to the evidence led by the parties and he traversed through the testimonies of the Respondent, as the first plaintiff witness, and of the first and second defence witnesses and stated that all the three gave evidence in the course of their testimonies that the salary of the Respondent as at time of his termination was N46,123.00.

Counsel stated that the lower Court found in the judgment that the employment of the Respondent was governed by the terms of the document titled “Retirement Scheme for Deputy General Manager, General Managers and Above” tendered as Exhibit 3 at the trial and that the employment was wrongly determined by the Appellant but it failed to award the Respondent the terminal benefits as provided for in Exhibit 3 because, according to the lower Court, the determination of the amount of retirement benefits the Respondent was entitled to depended on the salary he earned at the time of disengagement of his employment and that the Respondent pleaded and led evidence on the sum N64,180.00 as the last salary he earned, and not the sum of N46,123.00 revealed by the evidence and that this failure to plead the actual last salary earned did not give it any basis for computing the terminal benefits.

Counsel stated that the lower Court was in error in coming to this conclusion and should have used the sum of N46,123.00 revealed in the evidence of the parties to calculate the terminate benefits of the Respondent, notwithstanding that the Respondent pleaded and led evidence on the N64,180.00 as it is trite that even where a party in a proceeding fails to prove his claim as pleaded but successfully proves a lesser sum, the trial Court has a duty to grant him that much he has established and he referred to the cases of Fabunmi Vs Agbe (1985) 1 NWLR (Pt 2) 299, Elochin (Nigeria) Ltd Vs Mbadiwe (1986) 1 NWLR (Pt 14) 47, amongst others.

Counsel stated that the failure of the lower Court to calculate the terminal benefits of the Respondent on the basis of the last salary of N46,123.00 amounted to a miscarriage of justice and he urged this Court to intervene and redress the situation by awarding the Respondent the terminal benefits calculated on the basis of the last salary of N46,123.00 and using the parameters in Exhibit 3.

Counsel carried out the calculations in his brief of arguments and it came to the sum of N45,280,723.00, less the sum of N6,602,057.00 paid by the Appellant, leaving a balance of N38,678,656.00, together with interest at the rate 10% from the date of judgment in December 2011 and that the total sum as at December, 2015 was N42,462,262.70. Counsel urged this Court to award this sum to the Respondent as his terminal benefits.

In his response, Counsel to the Appellant stated that the Respondent predicated his claim in the pleadings for the sum of N66,481,703.00 as his terminal benefits, including salary in lieu of notice, honorarium, several allowance, pension, gratuity, outstanding salaries and fringe benefits on a monthly salary of N64,180.00 and that nowhere in the entire pleadings did he plead the sum of N46,123.00 as his monthly salary at time of his termination and as the basis for the calculation of his terminal benefits.

Counsel stated that the absence of a strict pleading of the accurate and last salary earned by the Respondent which must be strictly proved and tally with the evidence led in open Court, the lower Court was bound to refuse the claim of the Respondent and he referred to the case of Dabo Vs Abdullahi (2005) 7 NWLR (Pt 923) 181. Counsel stated that it was irrelevant that there was evidence on record that the last salary of the Respondent at the time of his termination was N46,123.00 as such evidence went to no issue for being evidence led on a fact not pleaded and there was no evidence to sustain the actual salary pleaded by the Respondent as his last salary.

Counsel stated that the claim of the Respondent for terminal benefits was a species of special damages which must be satisfactorily pleaded and specifically proved and he referred to the cases of Institute of Health Ahmadu Bello University Hospital Management Board Vs Anyip (2011) 12 NWLR (Pt 1260) 1 and Alhassan Vs Ahmadu Bello University Zaria (2011) 11 NWLR (Pt 1259) 417.

Counsel stated that it was not correct that the Respondent, at any time in the course of his testimony, gave evidence that his salary at the time of his termination was N46,123.00 and that what the Respondent said was that his salary at the time of his termination was N47,437.00 and that it was the defence witnesses who stated under cross examination that the last salary of the Respondent was N46,123.00 and this evidence was not open to the Respondent to rely on as it was not pleaded by either of the parties and he referred to the cases of Ezenwa Vs Katsina State Health Services Management Board (2011) 9 NWLR (Pt 1251) 89, Ojoh Vs Kamalu (2008) 18 NWLR (Pt 958) 523, amongst others.

Counsel stated that the lower Court had before it two contradictory pieces of evidence on the last salary of the Respondent, the sum of N47,437.00 from the Respondent and N46,123.00 from the defence witnesses and that neither of these sums was pleaded by the Respondent. Counsel stated that the reliance placed on section 123 of the Evidence Act by the Counsel to the Respondent was inapposite in the circumstances of this case as there was no agreement by the Appellant to admit any fact at the hearing and that this was not a case of the Respondent proving a lesser amount than the sum claimed, but one of not leading credible evidence to prove his claims.

Counsel stated further that the calculations contained in the Respondent’s brief of argument on the cross appeal was nothing but an attempt by the Counsel to the Respondent to adduce pleading and evidence that not before the Court through the brief of arguments and that the law is that an address of Counsel, no matter how good, cannot substitute for pleadings and/or admissible evidence before the Court and he referred to the cases of ANPP Vs Usman (2008) 12 NWLR (Pt 1100) 1 and Citizen International Bank Ltd Vs SCOA Nig. Ltd (2006) 18 NWLR (Pt 1011) 332. Counsel urged this Court to resolve the issue for determination on the cross appeal in favour of the Appellant and to dismiss the cross appeal accordingly. 

This cross appeal was against the refusal of the claim of the Respondent for terminal benefits. In refusing the claim, the lower Court stated in the judgment thus:

“Apart from the fact that the plaintiff is entitled, by virtue of clause 1.2 of Exhibit 3, to 6 months salary in lieu of notice, Exhibit 3 also stipulates for the benefit of the Deputy General Manager, General Manager or equivalent and above who had served the company for 5 or more years and for at least 4 years as Deputy General Manager, General Manager or equivalent and above retirement benefits which include Pension/Provident Fund, Gratuity, Honorarium, Retirement Settlement, option to purchase staff car and Residential Electric Generator. It is important to note that both the pension, gratuity, honorarium and retirement settlement provisions in exhibit 3 can only be calculated on the basis of the basic monthly or annual salary of the Management staff retiring or withdrawing his employment with the defendant. In other words, the determination of the amount of retirement benefits the servant is entitled to depends on the salary he earned at the time of disengagement of his employment.

… I have carefully gone through the Amended Statement of Claim of the plaintiff and nowhere in the more than 35 paragraphed document was the salary of the plaintiff specifically pleaded. … I also perused the defendant’s Further Amended Statement of Defence and the plaintiff’s Reply to Further Statement of Defence and the last salary earned by the plaintiff was not pleaded in these two pleadings. I entirely agree with the submission of the defendant Counsel in the Reply address on points of law that the salary of the plaintiff can only be deduced by dividing into 6 portions the sum of N385,080.00 pleaded in paragraph 31(i) of the Amended Statement of Claim reproduced above. The amount arrived at when the said sum of N385,080.00 is divided by six is N64,180.00 which is the amount the plaintiff in his evidence in chief claimed to be his monthly salary and on the basis of which he calculated his 6 months salary in lieu of notice.

… From the plaintiff’s evidence … the following issues are clear:

  1. The plaintiff calculated his entitlements not based on the last salary he earned before his contract was terminated but on 10% annual increment he projected he would have earned from January 2001.
  2. The last months salary he earned before his contract was terminated is N46,123.00 and not N64,180.00 which he pleaded and led evidence on.

Exhibit 3 the Retirement Scheme on the basis of which the plaintiff is asking for damages was not premised on what salary the Deputy General Manager or General Manager who employment was terminated would earn if his employment was not terminated but on what it referred to as the ‘present salary’ which means the last salary earned before the termination of employment … It is important to note that the plaintiff did not plead N46,123.00 as the salary he earned at the time his contract of employment was terminated by the defendant. What he pleaded as his salary was N64,180.00 which turned out to be an estimation or projection of the salary the plaintiff would have earned if his employment was not terminated on the 15th of December, 2000. It is my humble view that the plaintiff’s last salary is a material fact that must be pleaded. The entitlement of the plaintiff in Clauses 1.2, 2, 3, 4 and 5 of exhibit 3 can only be computed on the basis of the plaintiff’s last salary and that makes his last salary a material fact that should be pleaded. … The failure to plead the last salary the plaintiff earned before his employment was terminated leaves this Court without the scale with which to weigh what would amount to six months salary and other benefits the plaintiff is entitled to from the breach of his contract of employment by the defendant. I agree that the computation of the plaintiff’s entitlements based on the amount of N46,123.00 in the plaintiff’s final written address is an attempt to substitute the evidence in this case. … I hold that although the plaintiff is entitled to damages for the breach of Clauses 1.2, 2, 3, 4 and 5 of exhibit 3, the failure to plead his last month’s salary before his employment was terminated leaves me with no fraction to compute the damages that accrues to him.”

It is not in contest that the claim of the Respondent for the sum of N66,481,703.00 as his terminal benefits, including salary in lieu of notice, honorarium, several allowance, pension, gratuity, outstanding salaries and fringe benefits is a claim in the nature of special damages. This point was made by the Supreme Court in Obasuyi Vs Business Ventures Ltd (2000) 5 NWLR (Pt 658) 668 where Iguh, JSC, stated that where the precise amount of a particular item of claim is known or has become manifest before trial, either because it has already occurred and has thus become crystallized or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damage and strictly proved.  

It is axiomatic in our jurisprudence that a claim in the nature of special damages must be specifically pleaded with particulars and strictly proved – Agi Vs Access Bank Plc (2014) 9 NWLR (Pt 1411) 121, Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt 1411) 166, British Airways Vs Atoyebi (2014) 13 NWLR (Pt 1424) 253. It is trite that when the law requires that particulars must be supplied in a claim in the nature of special damages, it depends on the nature and facts of each case. A clear inference of what is required can be drawn from the dictum of Cotton, LJ, in the English case of Phillips Vs Phillips (1878-79) 4 QBD 127 where he put the essence of the rule regarding particulars thus:

“ … in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes to trial. The requirement to plead particulars of special damage is usually predicated on the question of fairness to the defendant.”

These principles were re-echoed by the Supreme Court in Attorney General of Oyo State Vs Fairlakes Hotels Ltd (1989) 5 NWLR (Pt 121) 255 where Agbaje, JSC stated that the requirement to plead particulars of special damages is to “obviate any surprise to the opposite party who may not be aware of the details and circumstances from which the special damages have arisen or the basis upon which they have been calculated or arrived at by the plaintiff who claims them based on his own precise calculation.”

Thus, the starting point for a trial court entertaining a claim in the nature of special damages is to examine the pleadings of the claimant to see if there be sufficient facts available to the defendant that would enable him meet the claim which the claimant is making against him – Royal Exchange Assurance (Nig) Plc Vs Anumnu (2003) 6 NWLR (Pt 815) 52.  

In the instant case, the Respondent pleaded in paragraph 31 of his statement of claim that he was, on retirement, entitled to the following benefits:

  1. 6 months Salary in lieu of notice              N   385,080.00
  2. Honorarium                                            N 3,850,800.00
  3. Severance Allowance                               N 3,080,640.00
  4. CPF (Pensions/Provident Fund)             N 4,130,000.00
  5. Emoluments: Jan 2001-August 2003

Jan to Dec 2001    =       N6,097,956.00

Jan to Dec 2002    =       N6,707,760.00

Jan to Aug 2003    =       N4,941,344.00

Total                     =       N17,747.060.00

                                                          N17,747,060.00

  • Gratuity                       N37,060,080.00
  • Fringe Benefits Dec 15th to 31st 2000        N228,043.00

Sub Total                                                         N66,481,703.00

The Respondent did not plead the salary base which he used in arriving at the above calculations. The Respondent did not challenge in this cross appeal the findings made by the lower Court in the above excerpt of judgment (i) that the claim for terminal benefits was predicated on the provisions of the document tendered as Exhibit 3 and that the pension, gratuity, honorarium and retirement settlement provisions in Exhibit 3 can only be calculated on the basis of the basic monthly or annual salary of the Management staff retiring or withdrawing his employment with the defendant; (ii) that nowhere in the pleadings of either the Respondent or of the Appellant was the last salary earned by the Respondent at time of his disengagement pleaded; and (iii) that the last salary earned by the Respondent at time of his disengagement was a material fact that must be pleaded. These findings are thus unassailable and are binding on the Respondent – Opara Vs Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt 1002) 342, Nwaogu Vs Atuma (2013) 11 NWLR (Pt 1364) 117. Now, a material fact is defined as a fact that is essential to a case and without which a case cannot be supported – West African Portland Cement Ltd Vs Adeyeri (2003) 12 NWLR (Pt 835) 517, Odimegwu-Ojukwu Vs Yar’Adua (2008) 4 NWLR (Pt 1078) 435.

Thus, by not challenging the finding of the lower Court that he did not plead a material fact, the Respondent accepted that he did not specifically plead sufficient facts to sustain his claim for terminal benefits.

On prove of a claim in the nature of special damages, the law is that the party claiming must establish his entitlement to the claim by credible evidence of such character that would suggest he is entitled to it – Agi Vs Access Bank Plc supra, Union Bank of Nigeria Plc Vs Chimaeze supra. In Neka BBB Manufacturing Co Ltd Vs African Continental Bank Ltd (2004) 2 NWLR (Pt 858) 521 at 540-541, the Supreme Court explained this statement thus:

“It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the court concrete evidence demonstrating in no uncertain terms easily cognizable the loss or damages he has suffered so that the opposing party and the court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fractions.”

Reading through the entire testimony of the Respondent as the first plaintiff witness, his evidence was that his salary at the time of his termination was N47,437.00 and he only mentioned the sum of N46,123.00 in passing as his salary as at June, 2000 and not as his salary at the time of his disengagement. It was the defence witnesses that gave evidence under cross examination that the salary of the Respondent at the time of his termination was N46,123.00.

It is settled law that evidence elicited from cross examination of a defence witness will only form part of the evidence produced by the plaintiff and can be relied on in proof of facts in dispute between the parties where the evidence is in line with the facts pleaded by the plaintiff – Adeosun Vs Governor, Ekiti State (2012) 4 NWLR (Pt 1291) 581. Where it is not in line with the facts pleaded by the plaintiff, it is inadmissible – Dina Vs New Nigerian Newspaper Ltd (1986) 2 NWLR (Pt 22) 353, Aguocha Vs Aguocha (1986) 4 NWLR (Pt 37) 566 and Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172. The evidence of N46,123.00 as the last salary of the Respondent elicited from the defence witnesses was thus not available to the lower Court to rely on in the circumstances of this case.   

Again, the calculations of the terminal benefits pleaded and led in evidence by the Respondent was based on a monthly salary of N64,180.00. Thus, even if the evidence of N46,123.00 being the last salary of the Respondent was available to the lower Court to use, it still would not have helped the case of the Respondent as there was no pleading or evidence led on what the terminal benefits would have been if calculated on the basis of the N46,123.00 monthly salary.

It is not expected of the lower Court to have embarked on such a calculation of the terminal benefits in the recess of its chambers. It is not the function of a trial Judge by his own exercise and ingenuity to supply evidence or carry out the mathematics of arriving at an answer which only evidence tested by cross examination could supply – Ikenye Vs Ofune (1985) 2 NWLR (Pt 5) 1, African Continental Bank Plc Vs Ndoma-Egba (2000) 8 NWLR (Pt 669) 389. This is because a Judge is not an investigator but an adjudicator and it is not its duty to investigate documents within the hallowed rooms of its chambers. In Onibudo Vs Akinbu (1982) All NLR 207, the Supreme Court made the point thus:

“It needs to be emphasized that the duty of a Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in court. It is not the duty of a Court to do cloistered justice by making an inquiry into the case outside court even if such inquiry is limited to examination of documents which were in evidence, when the documents had not been examined in court and their examination out of court disclosed matters that had not been brought out and exposed to test in court and were not such matters that, at least, must have been noticed in Court.”

This position of the law has been restated in several others cases, such as Jalingo Vs Nyame (1992) 3 NWLR (Pt 231) 538, Ugochukwu Vs Cooperative Bank (1996) 7 SCNJ 22, Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 552, Ilorin Vs Tella (2007) All FWLR (Pt 393) 122 and Omisore Vs Aregbesola (2015) LPELR- SC.204/2015. The calculations embarked upon by Counsel to the Respondent in his brief of arguments cannot equate to pleaded facts and/or credible evidence – Ayorinde Vs Sogunro (2012) 11 NWLR (Pt 1312) 460, BFI Group Corporation Vs Bureau for Public Enterprises (2012) 18 NWLR (Pt 1332) 209.

While it is not in contest that a trial Court is empowered to grant less than the sum claimed as special damages, as contended by Counsel to the Respondent, it is, however, essential to understand that the lesser sum to be granted must have its foundation in the pleadings and in the evidence led by the parties and it cannot be predicated on conjecture or speculation.

The law is that assessment of damages must be based on the pleadings and evidence adduced and where there is no evidence to support a claim for damages the claim should be dismissed – IMNL Vs Nwachukwu (2004) 13 NWLR (Pt 891) 543, Oke Vs Kaja (2014) 3 NWLR (Pt 1394) 374, First Bank of Nigeria Plc Vs Banjo (2015) 5 NWLR (Pt 1452) 253, Chevron (Nig) Ltd Vs Omoregha (2015) 16 NWLR (Pt 1485) 336. The Respondent failed to specifically plead and to strictly prove his claim for the sum of N66,481,703.00 or of any sum at all as his terminal benefits, beyond the sum admitted by the Appellant. The claim must thus fail. The lower Court was on very firm ground when it refused the claim of the Respondent for terminal benefits. The cross appeal fails and it is liable to be dismissed.

Conclusion

In conclusion, this Court finds no merit either in the appeal of the Appellant or in the cross appeal of the Respondent and they are both hereby dismissed. The judgment of the High Court of Kaduna State in Suit No KDH/KAD/244/2004 delivered by Honorable Justice M. T. M. Aliyu on the 12th of December, 2011 is affirmed in its entirety. The parties shall bear their respective costs in this appeal. These shall be the orders of this Court.


HABEEB ADEWALE OLUMUYIWA ABIRU

JUSTICE, COURT OF APPEAL

K. I. K. Ijomah with L. J. Lagan                                                for the Appellant

J. H. C. Okolo SAN with Victor Agwunzi &

R. N. Okonkwo                                                               for the first Respondent

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