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In The Supreme Court of Nigeria
On Friday, the 15th day of
February 2008
Before Their Lordships
S.C.
256/2002
Between
And
Judgement of the Court
Delivered by
Sunday
Akinola Akintan.
J.S.C
The appellant, Samuel
Isheno, as plaintiff, instituted this action
against the respondent as defendant at the Oleh
High Court, in Oleh,
"Wherefore the plaintiff
claims the following from the defendant:
Pleadings were filed and
exchanged and the trial took place before Ogbodu,
J. The plaintiff gave evidence in support of his claim at the trial while
the case for the defence was presented by one Peter
Enumah, s Security Manager with the defendant company.
The plaintiffs ease was that
he was employed by the respondent company in Warri
on 18th April, 1979 as an Assistant Patrolman in charge of
But the trouble that led to
his exit from the company's service and eventually to the institution of
this case arose over the theft of the respondent's two Mercedes Benz Heavy
Duty tipper Lorries with registration Nos. LA 6540 ML and
LA2878MM valued
The appellant was, however,
discharged and acquitted in a ruling on a no case submission at the close of
the prosecution's case. The appellant was remanded in prison custody for
some days before he was granted bail by the
"It is our observation that
the police failed to properly interrogate the security officers attached to
Julius Berger here at Oleh. If they had done so
more facts would have emerged so as to determine how the vehicles got out of
the yard,"
After the appellant had been
discharged and acquitted of the criminal charge preferred against him, he
reported for duty at his place of work with the respondent. He was however
prevented from resuming duty. Instead, he was issued with a notice titled
"Dismissal/Termination - Notice" (Exhibit J). The reason given in the notice
for the termination of his appointment was that the appellant's services
were no longer required on the ground of redundancy. He was however paid the
arrears of his salaries and allowances for the entire period he was away
from duty up to the time of his final discharge by the court. The respondent
also prepared the entitlements due to the appellant as an official
disengaged from the company's services on the ground of redundancy. The
appellant, however, refused to accept the amount of
The respondent's case at the
trial was presented by its only witness, Peter Enumah,
the respondent's Security Manager. The witness denied the appellant's
claims. He then went on to tell the trial court that as the arrest and trial
of the appellant lasted for a fairly long term, the appellant could not be
re-absorbed into the company because the project which the company was
engaged in at the time was near completion and that meanwhile, his place had
been filled by another person. The decision was therefore taken to pay the
appellant all his outstanding arrears of salary from the time of his arrest
right up to the time of his discharge by the trial court. The appellant was
accordingly declared as redundant along with some other staff and his
entitlement as a staff declared redundant was prepared (Exhibit K). The
appellant is, however, said to have refused to collect it.
The witness admitted, under
cross-examination, that in computing the appellant's redundancy entitlement
(as set out in Exhibit K) the appellant's transport or repatriation
allowance was not included. The man's evidence in respect of the redundancy
entitlement is as follows:
"I agree that in computing
Exhibit K his transport or repatriation allowance was not included. At this
stage, I am now in agreement that the plaintiff is entitled to the claim of
It is true that redundancy pay
in the case of plaintiff is 5 weeks pay for each year of service. It is
correct that plaintiff did put in 12 years of service. It is also quite
correct that Article 10 of Exhibit H did not specify whether or not the
redundancy payment as already referred to is that of basic salary alone or
including other payments, I do not agree that plaintiffs redundancy payment
for 12 years of completed service should be
I disagree that an employee's
retirement age with the company is 65 years. There is no scheme for
retirement with the company. It is not correct that the plaintiff was
prosecuted maliciously for an allegation as having stolen tipper
lorries."
At the conclusion of the
trial, the learned trial Judge in his reserved judgment delivered on 17th
September, 1996 found that there was no merit in the plaintiffs claim. He
accordingly dismissed the entire claim with
"Finally, I wish to point out
again that the entire action is speculative and gold digging exercise which
has been embarked upon by the plaintiff. There is no basis for instituting
this action in the first place. The whole act of the plaintiff is
provocation and sufficient to cause defendant annoyance and in view of all I
have already stated, the entire action is dismissed on ground that it lacks
merit."
The appellant was dissatisfied
with the verdict and he filed an appeal against it to the Court of Appeal
(hereinafter referred to as the court below). The parties filed their briefs
of argument in the court below and after hearing the submissions from
learned Counsel for each of the parties, the court in its lead judgment
delivered by Akaahs, JCA;
with Rowland and Ibiyeye,
JJCA concurring, dismissed the appeal.
The learned Justice said thus in the concluding paragraph of the lead
judgment:
"This appeal fails in its
entirety and it is accordingly dismissed except for the redundancy benefits
totalling
Again the appellant was still
dissatisfied with the judgment delivered by the court below and a further
appeal was filed against it to this court. The parties filed their briefs in
this court. The following three issues were formulated in the appellant's
brief as arising for determination in the appeal:
" 1
Whether the learned Justices of the Court of Appeal properly
evaluated the evidence before awarding the paltry sum of
2.
Whether the learned Justices of the Court of Appeal were right in law
in holding that the appellant was not entitled to repatriation allowance
especially when this allowance was paid automatically to staffs who suffers
redundancy in accordance with the conditions of service (Exhibit H).
3.
Whether the learned Justices of the Court of Appeal were right in law
when they admitted that the parties relationship
in this appeal were governed by Exhibit H on the one hand, but held that the
respondent had the option to either retire the appellant or declare his
position redundant, and that they were right in choosing the latter."
Three similar issues were also
formulated in the respondent's brief. I therefore do not consider it
necessary to reproduce the three similar issues.
It is the contention of the
appellant, as canvassed in Issue 1 of the appellant's brief, that the
learned Justices of the Court below did not properly evaluate the available
evidence on the record before them before awarding the sum of
On Issue 2, it is submitted
that the appellant was entitled to the repatriation allowance not as a
separate payment but as part of the computation of the appellant's
entitlement. Failure of the respondent to do this is said to be erroneous.
Finally it is submitted in the
appellant's Issue 3 that the conclusion of the two lower courts to the
effect that declaring the appellant as redundant instead of retiring him was
appropriate is said to have been reached without a proper evaluation of the
evidence led at the trial and the provisions of the conditions of service as
set out in Exhibit H. It is further argued that a situation warranting the
declaration of any employee as redundant could only arise when the employer
has ceased to or intend to stop carrying on business or where the employer
is no longer interested in the particular job being done by the employee.
None of the above situations existed in the instant case and, as such,
declaring the appellant as redundant could not arise and was totally wrong.
It is submitted in reply in
the respondent's brief on Issues 1, 2 and 3 that from the appellant's claim
and pleadings filed at the trial court, the plaintiff did not make any claim
for repatriation allowance. Issues were therefore not joined thereon. It is
also argued that there was no relief in the amended statement of claim
challenging the mode of termination of his employment. The calculation of
his redundancy benefits as shown on Exhibit K was also not challenged. What
the appellant insisted on was a continuation of his employment with the
respondent. It is then submitted that there was no reason for the Court
below to have granted the claim to the plaintiff/appellant.
The same is also said in
respect of the claim for repatriation allowance. It is argued that since
that item was not claimed or pleaded, it was wrong of the Court below to
grant such claim. The contention of the appellant has been that he ought to
have been reinstated or retired under Article 9 of Exhibit H instead of
being declared redundant under Article 10 of the same Exhibit H. It is
argued that since it was within the powers of the respondent to take the
decision to declare the appellant as redundant under Article 10 of Exhibit
H, there is no ground for the Court to tamper with that decision since the
respondent complied with the provisions of Article 10.
The main question raised in
this appeal is whether, from the facts established in this case, the
respondent could be held liable for acts of the police on the report made to
the police in respect of a crime as was in this case. The position of the
law is that an action for false imprisonment will not lie against a private
individual who merely gave information which led the police on their
initiative to arrest a suspect: See Bank of
Similarly, where, on a report
made by an appellant to the police about the theft of his goods, the
appellant was asked whether he suspected anyone, he replied that he
suspected the respondent who was consequently arrested and detained by the
police for inquiry, such expression of opinion is said to be no more than
putting the police on a trail upon which he can work instead of leaving him
in the wilderness. Giving such information to the police cannot therefore
form the basis for any action for false imprisonment or false prosecution by
the police since it would be the duty of the police, after receiving such
information, to make investigations themselves which may or may not lead to
an arrest or to any action they take on the information given to them.
Giving the police such information, therefore, cannot be said to have put
the law in motion against the respondent: See: Esther
Adefunmilayo v. Omolara
Oduntan (1958) W.R.N.L.R.
31; and Gbajor v.
Ogunburegui (1961)
All NLR
853.
Thus, in the instant case, the
arrest, detention and subsequent prosecution of the appellant by the police
for the theft of the respondent's stolen tipper lorries, could not form the
basis for an action for damages for false imprisonment or malicious
prosecution or defamation of character against the respondent as claimed by
the appellant even if the appellant's name was given to the police as a
person suspected. His claim in respect of those items was therefore without
any merit.
The next point to be resolved
is in respect of the claim for loss of employment and retirement benefits.
As it was agreed by both parties that their relationship is governed by
Exhibit H, the relevant provisions of that document will have to be examined
with a view to determining if there was a breach of any of the provisions of
that document.
As already set out earlier
above, the items of the appellant's claim are set out in paragraph 27 of his
statement of claim. They include claims for loss of employment and
retirement benefits. It is therefore not correct as submitted by the
respondent that he was not entitled to repatriation allowance and that since
the calculation of his redundancy allowance as set out in Exhibit K was not
challenged, it was improper for the Court below to have granted it in its
judgment. That submission is incorrect in view of the claims for loss of
employment and retirement benefit.
Article 9
of the National Joint Industrial
Council Agreement (Exhibit H) sets out the provisions relating to
termination of employment of daily rated employees and monthly rated
employees. The
part of the Article 9 relevant to the appellant are Article 9 (b) and (c)
which provide thus:
"Article 9
(b)
Monthly Rated Employees:
Employment may be terminated
upon giving one month's notice by either side or payment in lieu of such
notice
(c)
Repatriation
If an employee's service is
terminated by the company, the employee shall be repatriated, along with his
wife and a maximum of four children, to his original place of engagement at
the company's expenses."
Article 10, on the other hand,
makes provision for redundancy. The article provides as follows:
"Article 10-Redundancy
Redundancy Pay shall be given
as compensation for loss of future prospect with one employer. Redundancy
occurs when the service of a worker, having been in continuous employment of
one employer for two years or more are no longer required by that employer
due to no fault of the worker. Except those workers who are employed on a
contract for a specific job or for a specific length of time.
The following scales of
redundancy payment for the employee shall then be paid:-
2-5 years continuous
employment - 3 weeks pay for each year of service
6-10 years continuous
employment - 4 weeks pay for each year of service
11 years and above - 5 weeks
pay for each year of service."
Article 13 of the document,
Exhibit H, deals with Gratuity and Retirement Benefits. The Article reads as
follows:
"Article 13 -
Gratuity/Retirement Benefits
On attaining the age of 65 years, an
employee's appointment will automatically terminate on ground of retirement,
provided he has completed ten years of continuous service. An employee may
retire or may be retired by an employer on or after attaining the age of 50
years; provided that he has completed ten years of continuous service. The
following retirement benefit shall be paid:-
(a)
10 years of service - 4 weeks per year of service
(b)
11- 20 years of service - 5 weeks pay per year of service
(c)
21 years of service - 6 weeks pay per year of service."
It is clear from the
provisions of Article 10 relating to redundancy and Articles 13 which deals
with gratuity/retirement benefits, that the employer has discretion to
either declare an employee redundant or retire him in the appropriate case.
In the instant case, the respondent chose to declare the appellant as
redundant. But on a close look, there seems to be not much difference in the
entitlements due to an employee declared redundant and one retired. The
entitlement due to the employee who has served the company for 11-20 years,
as the appellant, would be 5 weeks pay per year of service. The complaint of
the appellant that he would prefer retirement to redundancy, therefore,
would not mean much to him financially since his entitlement would still be
5 weeks pay per years of service he put in.
Secondly, as the discretion to
make the choice is conferred on the employer, the court will not interfere
with the exercise of such discretion without any justifiable cause. No
evidence of any such justifiable cause was pleaded and adduced at the trial.
The court below is therefore right in dismissing the appeal on that point.
Finally, the question whether
the appellant was entitled to repatriation allowance after his appointment
was declared redundant needs to be resolved. This is because the provision
for repatriation appears only as paragraph C of Article 9 which is headed
"Termination of employment." No such provision is made in respect of Article
10 which deals with redundancy. But the payment of it to employees declared
redundant is admitted by the only witness that testified for the defence at
the trial. I believe that such benefit could not be denied to an official
who had served for many years as the appellant and whose employment had to
be abruptly brought to an end by means of the redundancy provision. I
therefore hold that the provision of Article 9 (c) relating to payment of
repatriation allowance is also applicable to employees declared redundant
under Article 10. I therefore hold that the word "terminated" used in
Article 9 (c) covers 'redundancy' used in Article 10.
In conclusion, I hold that the
appeal as it relates to the claims for damages for malicious prosecution,
defamation of character, loss of employment for 15 years and general
damages, lack merit. I accordingly dismiss the appeal as it relates to those
items of claim. I however hold that the award made by the Court below in
respect of the entitlements due to the appellant as an employee who was
declared redundant should be sustained subject to the variation that the
calculation should be reviewed upward based on 5 weeks pay for each years of
service put in by the appellant which should be 13 years since he served
more than 12 years. He should also be paid the appropriate repatriation
allowance. I make no order on costs.
Judgment delivered by
NikiTobi,
JSC
The appellant, the plaintiff
in the High Court, was an employee of the respondent/defendant. He was the
Assistant Patrolman in charge of security at the site office,
Oleh. Two of the respondent's Mercedes Benz
tipper lorries were stolen. Appellant reported
the theft to the Police. The vehicles were later recovered at
The learned trial Judge did
not grant the claim of the appellant.
He dismissed it. Ogbodu, J. described the
entire action as speculative and gold digging, provocative and sufficient to
cause the respondent annoyance. The Court of Appeal did not agree with the
learned trial Judge. That court awarded the appellant redundancy benefits in
the sum of
The appellant has come to the
Supreme Court. He is still aggrieved. In his brief of argument, the
appellant formulated three issues on the evaluation of the evidence before
the trial court in the award of the redundancy benefits; the refusal of the
court to award repatriation allowance and the use of
Exhibit H as the
legal basis of the relationship of the parties. The respondent also
formulated three issues along with same or similar lines.
It appears to me that both
parties agree that Exhibit H
governed the labour relationship between them. I entirely agree
with them. They move apart and in their different ways on the construction
or interpretation of Exhibit H
in the light of the facts of the case.
Exhibit H provides
for the payment of repatriation allowance, so too the payment of redundancy
benefits, While Article 9 provides for payment of repatriation allowance,
Article 10 provides for payment of redundancy benefits.
Let me quickly read the two
articles.
"9(b)
Employment may be terminated upon giving one month's notice by either
side or payment in lieu of such notice.
(c)
If an employee's service is terminated by the Company, the employee
shall be repatriated along with his wife and a maximum of four (4) children,
to his original place of engagement at the Company's expense.
10.
Redundancy pay shall be given as compensation for loss of future
prospect with one employer. Redundancy occurs when the service of a worker,
having been in the continuous employment of one employer for two or more
years are no longer required by that employer due to no fault of the worker,
EXCEPT those workers who are employed on a contract for a specific job or
for a specific length of time "
The Court of Appeal could not
order the payment of repatriation allowance because the appellant did not
plead it in his Amended Statement of Claim "The court said at page 140 of
the Record.
"I agree with the submission
of learned counsel for the Respondent that the Plaintiff/Appellant's claim
for Repatriation allowance was not pleaded as is not one in respect of which
issues were joined and canvassed at the lower court There was therefore no
reason for the lower court, notwithstanding the admission of Peter
Enurnah under cross-examination to hold that the
repatriation allowance should have been included when
Exhibit K was computed."
It is the law that parties are
bound by their pleadings and that matters not pleaded will go to no issue.
See Qwoade
v. Omitola (1988) 2 NWLR
(Pt. 15) 134; Ehimare v.
Emhonyon (1985) 1 NWLR (Pt 2) 177;
Oredoyin v. Arowolo
(1989) 4 NWLR (Pt. 114) 172;
Afrotec Technical Services (Nig.) Ltd, v. MIA
and Sons Ltd. (2000) 15 NWLR (Pt. 692) 730; Makinde v.
Akinwale (2000) 2 NWLR (Pt. 645)435.
The object of pleadings is to
enable the adverse party and the courts know the case before the date of
hearing. Accordingly, once the pleadings are settled, parties cannot move in
or out of them, unless by the process of amendment. If parties have the
liberty to give evidence on facts not pleaded in the pleadings, there will
not only be a state of confusion, but litigation may not be completed on
time In view of the fact that the appellant did not make any case in the
trial court for payment of repatriation allowance, the Court of Appeal
correctly refused to award same.
There is still one aspect. It
is the evidence procured under cross-examination. The cliché or aphorism
that the sky is the limit of cross-examination is not good law. This is not
because, (to put it lightly) the lawyer is not an
astronomist or astronomer, but because there is no such law. The
discipline of law is one which is characterized by limitations here and
there and cross-examination cannot occupy such a tall and enviable place in
our law of procedure. And here I should say that relevancy is a limitation
in all the three types of examination, including cross-examination. After
all, relevancy is the cynosure or heart beat of the Law of Evidence. See
sections 6, 7 and 8 of the Evidence
Act, 1990.
Terms and conditions of
service, in a labour agreement, are concise and precise and so stated in the
agreement. A court of law will therefore not find it difficult to grant a
relief based on the labour agreement, if the plaintiff pleads it. I have
searched to no avail the relief of repatriation allowance.
Learned counsel for the
appellant submitted that the Court of Appeal did not properly evaluate the
available evidence on the Record before it in awarding the sum of
"It is true that redundancy
pay in the case of plaintiff is 5 weeks pay for each year of service. It is
correct that plaintiff did not put in 12 years of service. It is also quite
correct that Article 10 of Exhibit
H did not specify whether
or not the redundancy payment as already referred to is that basic salary
alone or including other payments. I do not agree the plaintiff's redundancy
payment for 12 years of completed service should be
In its judgment, the Court of
Appeal said at pages 141 and 142 of the Record:
"The following scale of
Redundancy payment for the employees shall be paid: 2-5 years continuous
employment - 3 weeks pay for each year of service. 6-10 years
continuous employment - 4 weeks pay for each year of service, 11 years and
above of service. Exhibit J
shows that the Appellant was relieved of his appointment due to
Redundancy. The computation of the Appellant's redundancy benefits in
Exhibit K shows that
he was paid ex-gratia basic salary and salary in lieu of notice, leave
working allowance and the redundancy pay all totalling
What else did the appellant
want the Court of Appeal to do by way of evaluation of the evidence? The
court considered Exhibits H, J
and K. The
Court of Appeal did not rake up the redundancy benefit of
In Issue No 3, counsel
quarrels with the conclusion of the Court of Appeal that "by the terms of
the contract, the Respondent had an option to either retire the Appellant or
declare his post redundant and it chose the latter option." Learned counsel
submitted that as the option of declaring appellant redundant was punitive
and malicious and designed to cause hardship on him it was not available to
the respondent.
If the appellant does not
agree with the Court of Appeal on the choice between retirement and a
declaration of redundancy, should I take him to mean or say that the two
acts can happen simultaneously? That will be an
impossibility in labour relations. Unless a labour agreement
specifically provides for which of the two should happen first, an employer
of labour is at liberty to invoke any at his pleasure with the corresponding
attendant benefits accrued to the employee. And that is what the Court of
Appeal did. Although the appellant is not with the Court of Appeal, I am
entirely with the Court. No employee is entitled to both retirement and
redundancy benefits. That cannot be the legal position.
In the light of the above and
the more detailed reasons given by my learned brother,
Akintan, JSC, I dismiss the appeal I
award
Judgment delivered by
Walter Samuel
Nkanu Onnoghen.
JSC
This is an appeal against the
judgment of the Court of Appeal Holden at Benin City in appeal No
CA/B/122/98 delivered on the 14th day of January, 2002 in which
the court dismissed the appeal of the appellant against the judgment of the
Delta State High Court Holden at Oleh in suit No
HOC/11 792 dismissing the suit of the appellant, then plaintiff. By
paragraph 27 of the Amended Statement of Claim, the appellant as plaintiff
claimed against the respondent, then defendant as follows:-
"27.
Wherefore the plaintiff claims the following from the defendant:
Particulars of Special Damages
The facts of the case, as can
be gathered from the record are that in 1990/91, the respondent was engaged
in the construction of the Uzere Road project
and maintained a site office at Oleh town, Delta
State in which the appellant worked as Assistant Patrolman in charge of
security. Two of the respondent's Mercedes Benz tipper lorries with
registration Numbers LA 6540 ML and LA 2678 ML were stolen from the
respondent's said site office which theft was reported to the police by the
appellant. The lorries were eventually recovered
at
On 4/2/91 after the
appellant's return from Ibadan to Oleh, he was
arrested by the police as a suspect in connection with the theft of the
lorries and was detained and charged along with others including Jonathan
Ekah to the Isoko
Area Customary Court, Oleh. The appellant was
however discharged by that court on
a no case submission. He
was subsequently paid his arrears of salaries from January - October, 1991
after which the respondent declared him redundant and prepared his
redundancy benefits which appellant refused to sign for and collect.
Instead, appellant proceeded to institute an action at the High Court of
Delta State, Holden at Oleh claiming damages for
his arrest and alleged malicious prosecution at the instance of the
respondent. The appellant testified at the trial while the respondent called
one witness who testified on its behalf. The following exhibits were
tendered and admitted in evidence, viz exhibits
"I", "J" and "K" at the end of which trial the learned trial judge dismissed
the suit of the appellant describing same as being speculative and held that
the appellant was only entitled to the sum of
The issues for determination,
as identified by the learned counsel for the appellant in the appellant's
brief of argument filed on 2/4/03 by Greg I. Uloko
Esq are as follows:-
" 1
Whether the learned Justices of the Court of Appeal properly
evaluated the evidence before awarding the paltry sum of
2.
Whether the learned Justices of the Court of Appeal were right in law
in holding that the appellant was not entitled to repatriation allowance
especially when this allowance was paid automatically to staffs who suffers
redundancy in accordance with the conditions of service (Exhibit H).
3.
Whether the learned Justices of the Court of Appeal were right in law
when they admitted that the parties relationship
in this appeal were governed by Exhibit H on the one hand, but held that the
respondent had the option to either retire the appellant or declare his
position redundant, and that they were right in choosing the latter."
On the other hand, the learned
counsel for the respondent, Abumere A.
Osara Esq, in the
respondent's brief of argument filed on 7/1/04 identified the following
three issues for determination:
(1)
Whether the Court of Appeal was right in holding that the appellant
is entitled to redundancy benefits amounting to
(2)
Whether on the state of the pleadings the Court of Appeal was right
in holding that the appellant was not entitled to reparation allowance.
(3)
Whether having regard to the conditions of service Exhibit
"H"
the respondent as the employer
could choose the mode or method by which to dispense with the services of
its employee the appellant."
It is very clear that the
issues as identified by both counsel are the same in substance though issues
1 and 2 can conveniently be taken together as they deal, in essence with the
weight of evidence adduced in the case based on the pleadings of the
parties.
It is the submission of
learned Counsel for the appellant that the lower court was in error when it
failed to properly evaluate the available evidence on record before awarding
the sum of
On his part, learned Counsel
for the respondent submitted that the appellant never pleaded any claim for
reparation allowance and that the mode of termination of the employment was
not challenged by the appellant in his pleadings neither did he contest the
calculation of his redundancy benefits as contained in exhibit "K"; that the
appellant's case was based on the continuation of his employment as he sued
for breach of profit which he would have earned if the employment had
continued; that parties are bound by their pleadings and that evidence given
outside the pleadings ground to no issue; that there was no claim for
repatriation allowance and as such no issue was joined on same by the
parties and that the lower court was therefore right in not awarding same,
the admission of the witness for the respondent under cross examination
notwithstanding; that evidence extracted under cross examination but not
pleaded goes to no issue; that since appellant was declared redundant under
Article 10 and not retired under Article 9 of exhibit H, appellant was only
entitled to the payment of redundancy benefits, not retirement benefits;
that the payment of repatriation benefits exists under Article 9 only; that
there is no evidence by the appellant that his employment was terminated
under article 9; that parties are bound by the terms and conditions of their
contract of employment and that exhibit H provides for four modes of
dispensing with the services of an employee under articles 9, 10, 13 and 23
and that the option of dispensing with the services of the appellant under
redundancy was validly exercised by the respondent and that the court can
only inquire into whether the respondent in dispensing with the services of
the appellant complied with the conditions of service relevant or relating
to the chosen mode of dispensing of his services as contained in exhibit H;
that in the instant case, the respondent duly complied with the requirements
of exhibit H and urged the court to resolve the issues against the appellant
and dismiss the appeal.
I have carefully gone through
the pleadings of the parties and the evidence called/produced by the parties
as contained in the record with special reference to the reliefs claimed by
the appellant, and it is very clear that the appellant never pleaded or
claimed for repatriation allowance as a result of which no issue was joined
by the parties thereto. It is also clear from the record that the appellant
never contested the mode of the bringing to an end his employment with the
respondent which was by way of redundancy; in short, what I am trying to say
is that the appellant did not challenge the redundancy by contesting that
the respondent ought to have terminated his appointment by way of retirement
instead of redundancy. There is also the fact that the appellant never
contested the calculation of his redundancy benefits rather the appellant,
by his claim before the court is insisting on a continuation of the
relationship of employer/employee and by suing for what he would have earned
in the fifteen years to his retirement etc, he was suing for breach of
profit for the period in issue. I am of the considered view that the
appellant having not pleaded repatriation allowance nor testified to that
effect, no issue was joined between the parties thereto and as such the
lower courts were right in not making any award in that respect as it is
settled law that the court is not father Christmas and that parties and the
court are bound by the pleadings and that evidence of facts not pleaded
ground to no issue. It therefore does not matter that the witness for the
respondent, Peter Enumah admitted that the
appellant was entitled to an award of repatriation under cross examination
as the fact was never pleaded neither did the appellant subsequently amend
his pleading to include same; that fact therefore grounds to no issue and
the lower court was right in ignoring same - see
Woluchem
v. Gudi (1981) 5 S.C
291; Salaudeen v. Mammon (2000) 14 NWLR (pt.
686) 63; Slee Transport Ltd v.
Oluwasegun (1973) ECLR
(vol.3)( pt 11) 1176.
It is also not in dispute that
the appellant did not, in his pleadings, challenge the mode of termination
of his employment and there was no relief challenging the calculation of
appellant's benefits so the trial court never decided the issue as to
whether appellant ought to have been retired, not declared redundant. That
being the case it is settled law that for the appellant to competently raise
the matter on appeal, he needs the leave of either the trial court or the
Court of Appeal or even of this Court, which leave from the record was
neither sought nor granted by any court. This Court is therefore not
competent to inquire under the circumstances, into the propriety or
otherwise of the termination of the employment of the appellant.
That apart, it is settled law
that parties to an agreement or contract are bound by the terms and
conditions of the contract they signed, in this case, exhibit H and cannot
operate outside its terms and conditions. It is not disputed that the
relationship between the parties in this case is one of master and servant
and as such an employer who hires an employee under the common law has the
corresponding right to fire him at anytime even without assigning any reason
for so doing. He must, however fire him within the four walls of the
contract between them. Where the employer fires an employee in compliance
with the terms and conditions of their contract of employment there is
nothing the court can do as such termination is valid in the eyes of the
law. It is only where the employer, in terminating or dispensing with the
services of an employee does so without due regard to the terms and
conditions of the contract of employment between the parties that problems
arise as such a termination is usually not tolerated by the courts and are,
without hesitation usually declared wrongful and appropriate measure of
damages awarded to the plaintiff.
In the instant case, it is
clear that though the respondent has the right to bring the relationship of
master and servant to an end in either of four modes such as by
termination, retirement, redundancy and summary dismissal, the respondent
chose to do so under redundancy and duly calculated the redundancy benefits
of the appellant but he refused to sign for and collect same choosing rather
to go gold digging.
In short, other than the
conclusion with respect to the issue of payment of repatriation which
I hold a contrary view as stated herein, I agree with the reasoning and
conclusion of my learned brother Akintan,
JSC that the appeal is without merit and ought
to be dismissed. I therefore order accordingly and abide by the order as to
costs contained in the said lead judgment.
Appeal dismissed.
Judgment delivered by
Francis
Fedode Tabat
I had a preview of the leading
judgment prepared by my learned brother Akintan
JSC. The claim as set out in paragraph 27 of the
Amended Statement of Claim is reproduced in the leading judgment. The facts
leading to the institution of the action and the evidence at the trial were
very ably recapitulated in the leading judgment. I agree entirely with the
reasoning and conclusion that the appeal with respect to the claims for
damages for malicious prosecution, defamation of character, loss of
employment for 15 years and general damages lack substance and are
accordingly also dismissed by me. I also adopt as mine the award in the
leading judgment about the Appellant's entitlement as an employee declared
redundant by the employer, the Respondent. I also by make no orders as to
costs.
Judgment delivered by
Ibrahim
Tanko Muhammad
My learned brother, |