B.A. Morohunfola Vs Kwara State College Of Technology (1990)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
I dismissed this appeal on the 9th day of April, 1990 and reserved the reasons for so doing to today. I now give my reasons.
The appellant was the plaintiff at the trial High Court in Ilorin and after he was non-suited there, he appealed to the Court of Appeal, the respondent who was the defendant also cross appealed asking that the correct verdict of the trial court ought to be that of dismissal and not non-suit. The appellant appeal was dismissed and the cross appeal was allowed. The pleadings that one would say joined the issues between the parties are very short. The Statement of Claim reads as follows:
STATEMENT OF CLAIM
- By a letter from the Principal of the college acting for and on behalf of the defendant a letter dated the 17th April, 1980 was issued to the plaintiff purportedly terminating the plaintiff’s service with the defendant, which said letter the plaintiff hereby pleads:
- The plaintiff was the defendant’s Deputy Registrar on GL 14.
- The defendant’s sole administrator’s appointment had terminated on or before 15/4/80 and His Excellency, Alhaji Adamu Alia, the Governor of Kwara State had not appointment a new governing councilor another sole administrator.
Wherefore the plaintiff claims as per his writ of summons, viz
“The plaintiffs claim is for –
(i) a DECLARATION
(a) that the purported termination of the plaintiff’s appointment by a letter from an agent of the defendant dated the 17th April, 1980 to the plaintiff is null and void as the sole administrator’s office had terminated on or before (15/4/80) and a governing council had not been set up by His Excellency the Governor of Kwara State, Alhaji Adamu Atta and
(b) that the plaintiff is entitled to his emolument until the determination of this suit and thereafter until the plaintiff is legitimately relieved of his post and .
(ii) a perpetual injunction restraining the defendant and/or its agents and/or servants from filling the post, which the plaintiff contends is not vacant.”
Dated this 10th day of June, 1982.
(Sgd.)
J.O. Ijaodola
Plaintiff’s Solicitor.
And against this unusually short Statement of Claim is a safely short Statement of Defence reading as follows:
“STATEMENT OF DEFENCE
SAVE AND EXCEPT as may hereinafter expressly admitted the defendant denies each and every allegation of fact contained in the Statement of Claim as if such allegations were set out seriatim and specifically traversed.
- The defendant denies paragraphs 1, 2 and 3 of the Statement of Claim and puts the plaintiff to the strictest proof thereof
- In further answer to paragraphs 1 and 3 of the statement of claim, the defendant avers that the plaintiffs appointment was terminated in accordance with the regulations governing conditions of service for its senior staff and that the plaintiff was paid 3 months salaries in lieu of notice in accordance with the said regulations. The defendant shall rely on the said regulation at the trial of this case.
- The defendant further avers that the consent of either the governing councilor the sole administrator was not needed in paying the plaintiff the said three months salaries or in terminating him since the plaintiff was not terminated for misconduct.
- The defendant further states that the plaintiff has since been in gainful employment and that as at now, he is the principal and/or proprietor of a post primary school in Offa, Kwara State, hence, he is not entitled to any emolument from it.
- WHEREOF the defendant prays the court to dismiss the plaintiff’s case as it is frivolous, vexatious and discloses no cause of action.”
Dated this 29th day of April, 1983.
(Sgd.)
Wole Olanipekun
Defendant’s Solicitor.
It is upon the meagre Statement of Claim traversed by statement of defence that the appellant wanted to have his declaration that Exhihit 1 was null and void and the purported termination of his appointment as registrar of Kwara College of Technology was of no effect. Learned trial Judge observed inter alia as follows:
“I have scrutinized all the papers filed in this case; and upon due reflection it seems to me that the statement of claim is so grossly inadequate that it falls far short of the minimum practically required under order 10 of the High Court (Civil Procedure) Rules 1975. It is just too brief to be regarded as pleadings and too deficient to be relied upon for any purpose in this suit. It cannot be over-emphasized that evidence must be based on the pleadings and no testimony should lie in vacuum. The plaintiff ought only to be permitted to establish his claim against the defendant on the facts as pleaded or borne out by the writ of summons and the statement of claim. I dare say that much of the facts received in evidence in this case has no bearing or relevance to the plaintiff’s pleading. They are completely outside it as will be pointed out presently. The writ of summons and the statement of claim together fail to comply with the elementary principle of briefly describing each of the parties, neither are there any averments relating to the appointment of the plaintiff as such.
It is indeed necessary to allege the fact of the plaintiff’s appointment by the defendant, its date, duration and conditions as well as the plaintiff’s office, status or position at the time of his appointment. None of these was pleaded or testified to by the plaintiff.”
The trial court found no merit in the appellant’s case and non-suited him. The appellant appealed to the Court of Appeal, and the respondent also cross appealed asking for the case to be dismissed rather than be non-suited. The appellant’s appeal was dismissed and the cross appeal was allowed. Against this judgment the appellant has appealed to this court.
There were three grounds of appeal which can be summarised as follows:
“(i) that the Court of Appeal was in error in holding that because of non-pleading and tendering of the original letter of appointment, the appellant could not give evidence of such appointment and this main plank of his case failed.
(ii) that there was no legitimate authority of the respondent competent to terminate the appointment of the appellant.
(iii) that by receiving three months salary in lieu of notice, the appellant was precluded from suing on the termination of this appointment.”
This is an unusual case. In our High Courts the best method of explaining issues between the parties before hearing is by way of pleadings. Pleadings must contain facts. Facts only, on which a party relies for this case; the facts must be material. In the matter of pleading it is for the plaintiff to plead sufficient material facts so that the defendant will know the case he is to face; it is then up to the defendant to admit or traverse those facts. If a right is pleaded, e.g. those right under chapter IV of the constitution, sufficient material facts must be pleaded to point unequivocally that those rights have been infringed. See Ransome-Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt.6) 211. Thus facts not pleaded go to no issue; and because parties are bound by their pleadings, evidence received on unpleaded facts must be expunged from the record, Ajide v. Keleni (1985) 3 N.W.L.R. (Pt.12) 248; A.-G., Anambra State v. Onuselogu (1987) 4 N.W.L.R. (Pt.66) 547, 548, 550.
In the trial court all the appellant did amounted to mere general pleading with material facts left scanty. The result is that the respondent as defendant answered only to what was pleaded and nothing more. I do not believe a heavier burden is placed by law on the respondent as defendant in this case. For, in all matters it is incumbent on the person who asserts to prove and if in the pleading the plaintiff has not made cear assertion, it does not behove the defendant to clarify more than what he has been confronted with. Thus even though a party is to plead facts only and not the evidence by which those facts are to be proved, matters such as fraud, statutory exception, defence of laches, res ipsa loquitur, are special matters which must be specifically pleaded because they are material facts. Odumosu v. African Continental Bank Ltd. (1976) 11 S.C. 261 at 269; Attorney General (Anambra) v. Onuselogu Ltd. (1987) 4 N.W.L.R (Pt.66) 547.
There was no evidence before the trial court that the appellant was employed by the respondent because there is nothing in the pleading of the appellant to indicate when he was employed, what are the terms and conditions of his employment, what are his rights and obligations. The court of trial was just confronted with a letter of termination without more; the plaintiff’s statement of claim is too vague and lacking in particulars not only by its brevity but also by lack of material particulars that most of the evidence led during trial actually went to no issue.
The appellant’s case had virtually collapsed at the court of first instance and the very able judgment of the Adeniyi J., was concluded with a generous verdict of non suit. The Court of Appeal rightly set aside the non-suit by entering a verdict of dismissal. What happened in that court is that the appellant by the inadequate pleading and offering of inadmissible evidence woefully failed to prove his case. It was not a matter of mere technical defect in the case, it was the failure to prove his case. The verdict in such a case is not to non-suit, it should have been dismissed outright.
It was for the foregoing reasons that I dismissed this appeal on 9th day of April, 1990 and awarded N500.00 costs against the appellant.
OBASEKI, J.S.C.: On the 9th day of April, 1990, this appeal came up for hearing before this court. After reading the briefs of argument filed by the parties and hearing counsel at the oral hearing, I dismissed the appeal for lack of substance and reserved my reasons for the judgment till today.
However, before now, I had the advantage of reading in advance the draft of the reasons for judgment just delivered by my learned brother, Belgore, J.S.C.
The claim before the High Court of Kwara State filed by the plaintiff/appellant against the defendant/respondent was for
(i) Declaration
(a) that the purported termination of plaintiff’s appointment by a letter from an agent of the defendant is null and void;
(b) that the plaintiff is entitled to his emolument until the determination of this suit and thereafter until the plaintiff is legitimately relieved of his post; and
(ii) a perpetual injunction restraining the defendant and/or its agents and/or servants from filling the post which the plaintiff contends is not vacant.
The statement of claim contains 5 paragraphs and the facts pleaded are deficient in that the letter of appointment was not pleaded. Furthermore, the letter of appointment was not referred to or given in evidence by any of plaintiff’s witnesses.
Where a plaintiff in a matter such as this fails to plead and prove the fact of his appointment, he is not entitled to the declaration that his appointment subsists, neither is he entitled to his emoluments until the determination of this suit and thereafter till he is legitimately relieved of his appointment as claimed.
It was for the above reasons and those set out in the reasons for judgment just delivered by my learned brother, Belgore, J.S.C., that I dismissed the appeal.
UWAIS, J.S.C.: This appeal was dismissed on the 9th day of April, 1990 with N500.00 costs awarded in favour of the respondent and we reserved our reasons for the dismissal. I now give mine.
I have had the advantage of reading in advance the reasons for judgment read by my learned brother Belgore, J.S.C. I entirely agree with the reasons.
By order 10 rule 5 of the High Court (Civil Procedure) Rules, 1975 of Kwara State applicable to this case –
“5. Every pleading shall contain a statement of all the material facts on which the party pleading relies,…..”
The appellant’s cause of action was based on contract of employment. It was absolutely essential therefore for the appellant, as plaintiff, to plead in his statement of claim the fact that there was a contract of employment between him and the respondent, as defendant. And furthermore, to spell out in the statement of claim what the terms of the contract were. If this was not done then the material facts necessary to formulate a complete cause of action had not been averred and the statement of claim was bad see Bruce v. Odhams Press Ltd. (1936) 1 All E.R. 287 at p.294 and Shell-BP Petroleum Development Co. of Nigeria Ltd. & 5 Ors. v. M.S. Onasanya, (1976) 1 All N.L.R. (Pt. 1) 425 at p.429 where this court held that where an action is founded on contract, as the present case, the plaintiff must give sufficient particulars, in his pleading to enable the contract to be identified. If this is not done, then the statement of claim has not disclosed a cause of action.
This is why no averment which is essential to success must be omitted. In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial Judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which has been breached would be admissible at the trial; and this will be fatal to the action since it will lack foundation. Shell-BP’s case (supra).
It was for these and the fuller reasons contained in the reasons for judgment read by my learned brother Belgore, J.S.C.; which I hereby adopt as mine, that I agree on the 9th day of April, 1990 that this appeal had no merit and that it should be dismissed.
KARIBI-WHYTE, J.S.C.: On the 9th April, 1990 I dismissed the appeal of the appellant. I awarded costs assessed at N500.00 to the respondent and indicated that I will give my reasons for doing so today. This I now proceed to do.
I have read the judgment of my brother Belgore, J.S.C., in this appeal. I agree with it.
The main questions of law involved in the determination of this appeal have been well settled in many earlier decisions in our courts. They are
- What are the essential facts necessary in a pleading in a claim for declaration that plaintiff’s appointment has not been validly terminated
- Whether plaintiff having failed to prove his claim, defendant is entitled to judgment
The action was fought by the defendant entirely and properly on the basis of a defective pleading and the judgments of the courts below were based on these grounds. The facts of the case are very short, simple and uncontroverted. Appellant who claimed to be the deputy registrar of the defendant on salary GL. 14 at the Kwara State College of Technology, claimed to have received a letter dated 17th April, 1980 purportedly terminating his service with the defendant. He stated in his statement of claim that on this date, the appointment of the sole administrator of the defendant had been terminated two days previously and that no new governing council had been appointed. He therefore brought this action on 4th May, 1982 claiming
(i) A declaration:
(a) that the purported termination of his appointment by an agent of the defendant in a letter dated 17/4/80, is null and void.
(b) that he is entitled to his emolument until the determination of the suit and thereafter until the legitimate termination of his appointment.
(c) perpetual injunction restraining the defendant from filling his post, whilst he remained in the defendant’s employment.
The defendant filed and served a statement of defence in which all the averments in the three paragraph statement of claim were denied. But in addition, the defendant pleaded the regulations governing the conditions of service of its senior staff which are applicable to the plaintiff. It was also pleaded that defendant terminated the appointment of plaintiff in accordance with these regulations. It was averred in the statement of defence that the consent of neither the sole administrator nor the governing council was necessary in paying the said three months salary, plaintiff having not been terminated for misconduct. Finally it was pleaded that plaintiff had since been gainfully employed.
In his evidence in chief at the hearing of the case appellant tendered the letter dated 17/4/80 purporting to have terminated his appointment and stated that the letter was written by a Dr. Amode, the principal of the defendant college. It was admitted in evidence and marked “Exh.1”. Although the regulation governing conditions of service was not pleaded by the plaintiff, he gave evidence of it and tendered it and it was admitted in evidence and marked Exh.2. Page 8 of “Exh.2”. which relates to resignation and termination of appointment, was tendered, admitted in evidence and marked “Exh.2A.” In line with his pleading, plaintiff stated that at the time of the termination of his appointment there was neither a governing council, nor a sole administrator, the appointment of the sole administrator having been terminated on 15/4/80. Under cross-examination by learned counsel to the defendant, plaintiff admitted he could on resignation pay the defendant salary for three months referred to in “Exh.1,” and that defendant paid into his bank accounts his salary for three months. He admitted that his salary was always paid into his bank account. Plaintiff admitted that he was the rector of a new school he named “Pegning Centre of Continuing Education” founded by him. He admitted he could not have established the school if his appointment with the defendant had not been terminated. This was all the evidence in the case.
Learned counsel to the defendants rested his defence on the case of the plaintiff, closed his case and opted to address the court. Before the address of counsel the trial Judge exercising powers under section 222 of the Evidence Law recalled the plaintiff suo motu to explain the meaning of Grade Level 14 in his statement of claim. Plaintiff then having been reminded that he was still on oath gave the evidence.
After the address, and before judgment the trial Judge exercising powers invited counsel for the parties to address him on whether or not this was a proper case for a non-suit. Counsel addressed the court at length, neither accepting that this was a proper case for a non-suit.
In his judgment wherein the learned trial Judge non-suited the parties, he found that “the statement of claim is so grossly inadequate that it falls far short of the minimum practically required under order 10 of the High Court (Civil Procedure) Rules 1975. It is just too brief to be regarded as pleading and too deficient to be relied upon for any purpose in this suit.” (Italics is mine for emphasis).
The learned trial Judge observed that much of the evidence in the case was not covered by the pleadings and were completely outside it. He then went on to point out that although it was necessary in the pleading to allege the fact of plaintiffs appointment by the defendant, its date, duration and conditions, as well as the plaintiff’s office status or position, at the time of his appointment. He observed that there were no such averments in the statement of claim. The plaintiff in his oral testimony did not refer to them. He also observed that there was no averment in the statement of claim that the plaintiff could only be appointed or dismissed by the defendant, the council or the sole administrator. The learned trial Judge however expunged from the records “Exhibits 2 and 2A” dealing with the regulations governing senior staff and particularly appointments and termination thereof, on the grounds that they are inadmissible having not been pleaded by the plaintiff. He then came to the following conclusion:
“With the above two exhibits discountenanced, the substratum of the plaintiff’s case is shaken; and it ought to collapse since there are no more facts on which his case can be grounded in the absence of these exhibits before the legal authorities relied upon, particularly the case of Skenconsult Nigeria Ltd. & Anor. v. D.S. Ukey (1981) 1 S.C.6 at p.9.”
Learned trial Judge recognised the failure of the plaintiff to allege and prove any contract of service or agreement between him and the defendant or any letter of appointment, which should constitute the foundation of his case without proof of which he must fail. He observed that even if Exhibits 2 and 2A were to be admitted, plaintiff would still have failed in his claim because of his failure to establish any contract of service which would enable him to challenge the validity of Exh.1, i.e. the letter of termination of his appointment.
After finding as above stated, the learned trial Judge held that “the interest of justice is better served by non-suiting the plaintiff in the peculiar circumstances of the case.” In his view, “……considering the case as a whole, that the plaintiff has not failed in toto in the proof of his case. At the same time, it appears unconscionable to allow the defendant to take advantage of the technicalities and obtain judgment.” (italics mine).
Both parties appealed against the judgment of the learned trial Judge. The Court of Appeal dismissed the appeal of the plaintiff/appellant and allowed the appeal of the defendant.
On appeal, plaintiff/appellant in ground 2 challenged the criticisms of the trial Judge of his pleadings and evidence at the trial, and in ground 3 the expunging of the Exhibits 2 and 2A from the records. Ground 1 is the general ground.
On his part the defendant/appellant, filed four grounds of appeal. Ground 1 challenged the non-suit on the ground that the action ought to have been dismissed in toto.
Ground 2 which is identical with plaintiff’s ground 3 was an appeal against the expunging of Exhibits 2 and 2A. Ground 3 challenged the finding of the trial Judge that the payment of three month’s salary into plaintiff’s account was not proper.
Ground 4 challenged the trial judge’s expunging of the evidence that plaintiff was the rector of Regnem Centre of Continuing Education as wrong in law.
Considering together the plaintiff’s ground 3 and the defendant’s ground 2, the Court of Appeal agreed that the learned trial Judge was wrong to have expunged “Exhibits 2 and 2A.” It was held that the exhibits were admissible although tendered by the plaintiff who did not plead them. The court declared.
“In effect when a matter is made an issue by either party the opponent is entitled to lead evidence on the point. Indeed the defendant rested its case on that of the plaintiff because the plaintiff had tendered Exhibits 2 and 2A and admitted under cross-examination facts canvassed in the statement of defence. The learned trial Judge was therefore palpably wrong to have expunged Exhibits 2 and 2A from the records.”
I entirely endorse this dictum as a correct statement of the law.
With respect to defendant’s ground 4, the Court of Appeal, held that although plaintiff did not plead that he was rector of Regnem Centre for Continuing Education, the trial Judge was wrong to have expunged that evidence led at the trial because the defendant pleaded it in paragraph 4 of the statement of defence and plaintiff admitted the fact under cross-examination. Accordingly ground 4 of the defendant ground of appeal succeeds, plaintiff’s ground 2 raised the question of the sufficiency of his pleading in relation to his claim. In determining this ground the Court of Appeal observed that the substantive law relating to the plaintiff’s case is that of contract of service and that when a party complains of a wrongful dismissal or that the termination of his appointment is null and void, he is saying in effect that there is a breach of contract of service.
The Court of Appeal observed that the statement of claim is devoid of necessary material facts, and that there is nothing to guide the court as to whether the contract would have lawfully terminated before judgment to warrant the court ordering a perpetual injunction restraining the defendant from filling the vacant post. Accordingly, the contract of service or letter of appointment ought to have been pleaded and evidence led in support. The argument of Mr. Ijaodola for the plaintiff/appellant that it was not necessary to plead the letter of appointment on the ground that it was not material to the claim, was rejected. The court considered the contract of service as material, and accepted the submission of Mr. Olanipekun for the defendant that the failure of the plaintiff to plead and tender his contract of service amounts to an admission, going by section 148(d) of the Evidence Act, that the issuance of Exhibit 1 was proper.
On this, the Court of Appeal dismissed the appeal of the plaintiff.
Now turning to the question of non-suit which was ground 1 of the grounds of appeal of the defendant, the court referred to the error of the trial Judge in expunging Exhibits 2 and 2A and rejecting the evidence of the plaintiff that he is the rector of an Educational Institution. The Court of Appeal also considered and rejected the finding that the payment of three months salary into plaintiffs account was improper. The Court of Appeal held that by implication the acceptance of the three month’s salary without objection was an acceptance of the termination of his appointment.
The Court of Appeal then came to the conclusion
“There is no doubt that if the learned trial Judge had not wrongly expunged Exhibits 2 and 2A and rejected the evidence that the plaintiff had established a college and had not erroneously held that the three months salary in lieu of notice was not paid in the proper way, he would have come to the irresistible conclusion that the plaintiff had accepted the termination of his appointment and would have dismissed the suit. This settles this appeal.”
I entirely agree. Thus the appeal of the defendant against the non-suit by the trial Judge was allowed. The judgment of the trial Judge was set aside. An order of dismissal of the suit of the plaintiff was entered.
Plaintiff has further appealed to this court. He relied on three grounds of appeal. The grounds excluding particulars are as follows –
“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in holding that the non-pleading and non-tendering of the letter of appointment of the plaintiff/appellant was fatal to the plaintiff/appellant case.
“2. The learned Justices of the Court of Appeal erred and misdirected themselves in law in dismissing the plaintiff/appellant’s case when it was clear that there was no legitimate authority which could terminate the plaintiff/appellant’s employment.
“3. The learned Justices of the Court of Appeal erred and misdirected themselves in law in holding that the receiving of three month’s salary in lieu of notice was fatal to the plaintiff/appellant case.”
Learned counsel filed and served their briefs of argument in this appeal. They relied on their briefs in oral argument before us. I have found the brief filed by counsel to the appellant far from being useful. The formulation of the issues for determination does not relate properly to the grounds of appeal. It is more disturbing in the fact that the argument in the brief of argument are so skeletal and concise that the real argument are lost in the obscurity of the terseness. However, I set out hereunder the four issues for determination as formulated by learned counsel to the appellant.
“(i) is it in every contract of service case that the plaintiff must plead and tender his letter of appointment
(ii) in the case in hand was the letter of appointment of the plaintiff/appellant a material fact which must be pleaded before he can be entitled to the declaration he sought from the trial court
(iii) in the case in hand whose duty it is to show that the plaintiff’s appointment was terminated in accordance with the terms of his employment
(iv) could the receipt of 3 months salary legalise the null termination,”
Although there are four issues as against three grounds of appeal, none of the issues relates to ground 2. It is also not clear to what the third issue relates. The first and second issues can be taken together in relation to the first ground of appeal.
I prefer the formulation of the issues by learned counsel to the respondent whose three issues are as follows –
“2.1. Whether the plaintiff’s claim as tersely adumbrated in the statement of claim is sufficient to ground any judgment or relief in his favour, particularly the type of reliefs claimed by him in his statement of claim at page 3 lines 19-30, or,
2.2. Whether it is necessary in this type of case for the plaintiff to tender his Letter of Appointment by the defendant.
2.3. Whether the payment of 3 months salaries to the plaintiff by the defendant was in accordance with the regulations governing the conditions of service of the plaintiff with the defendant.”
Even in respect of respondent’s formulation of the issues for determination, I do not think issue 2.3, formulated to meet the issue raised by ground 3 of the grounds of appeal has accentuated and sufficiently identified the issues involved in that ground. The issue in that ground is whether the acceptance by the plaintiff of three months salary in lieu of notice by implication, is an acceptance of his termination of appointment by the defendant. It is not whether the payment of 3 months salary is in compliance with the regulations governing conditions of service. That is another consideration. Thus issue 2.3 is hereby so formulated. I shall in this judgment adopt the formulation of the issues by counsel to the respondent as modified by me.
It is convenient to consider issues 2.1, and 2.2. together because they raise the same problems and are governed by the same law. Concisely stated, they both involve the issue of pleading which is fundamental to the establishment of a claim before the court. Learned counsel to the appellant has in his argument both in the court below and before us maintained that the action before the court is not one in respect of breach of terms and conditions of service.
It is also not an action in wrongful termination. It is what he called a null termination. He has therefore argued because the termination of the appointment of plaintiff is not a fact in issue between the parties, the terms and conditions of service, the letter of appointment are irrelevant, and not material to the action. It is therefore not necessary to plead them, give evidence or tender them at the trial. Counsel submitted that there is no dispute that appellant was given 3 months notice by the appropriate authority.
He submitted that the only issue between the parties is whether there was a legitimate authority authorising the letter of termination of appoint ment of the appellant. There was evidence that there was no governing councilor, sole administrator to authorise the writing of the letter.
There seems to be a fundamental misconception about the real nature of the action before the court and the purpose of pleadings. Learned counsel would seem to have ignored the fact that paragraph 1 of the statement of defence denied all his averments and put him to strict proof of all of them. Thus issues were joined in respect of all these averments, and the onus to prove them is on the plaintiff.
It is pertinent to refer to what counsel to the appellant refers to as plaintiff’s cause of action. He calls it “null termination.” Whatever that may mean to counsel, he was seeking a declaration that he is still in the employment of the defendant College of Technology, and that the letter of termination of appointment dated 17/4/80 did not have the legal effect intended because there was no governing councilor, sole administrator to authorise the writing of such letter. In other words, counsel is contending that plaintiff is an employee of the defendant, and implies that he has a letter of appointment to that effect, and that his appointment can only be terminated by the governing councilor the sole administrator on the exercise of powers conferred on any other person on their or his behalf.
Thus his contention is that since his appointment with the defendant has not been validly determined by the invalid exercise of the powers of the relevant authority, it should be declared that he is still an employee of the defendant. Accordingly, the defendant should be restrained by injunction from filling his post which the purported invalid termination of appointment had rendered apparently vacant.
The question therefore is whether there is any averment in his statement of claim that
(a) He is an employee of the defendant.
(b) How was he appointed and what are the terms and conditions of his appointment;
(c) Who can appoint him and who can remove him;
(d) What are the circumstances under which his appointment can be determined
(e) That his appointment can only be terminated by the governing councilor sole administrator of the defendant college.
Those are the material facts required to be pleaded where plaintiff is seeking a declaration that the termination of his appointment is a nullity.
All counsel to the appellant did in this case in his statement of claim was to allege that there was no authority for the exercise of the power to terminate his appointment. There was no averment in his statement of claim to show that he held an appointment with the defendant, the terms and conditions of that appointment, and the circumstances under which his appointment can be determined by the defendant or any person delegated to do so. I agree with Mr. Olanipekun for the respondents and the Court of Appeal that these are essential particulars of appellant’s pleading without which the plaintiff’s claim cannot be sustained.
It has often been stated and well settled that the main function of pleadings is to ascertain with as much certainty as possible the various matters actually in dispute between the parties and to isolate those in which there is agreement . See Oduka & Ors. v. Kasumu & Anor. (1968) N.M.L.R. 28 at 31. Hence, a pleading is expected to be sufficient, comprehensive and accurate. As to the cause of action see James v. Mid Motors Nigeria Co. Ltd. (1978) 11 & 12 S.C. 31 at 63. It is well settled that a party is not entitled to lead evidence in respect of matters not pleaded see Ajoke v. Yesufu & Anor. (1962) 1 All NLR. 73.
He can therefore not depart from his pleadings and is confined to lead evidence in respect of matters pleaded see Ogiamien v. Ogiamien (1967) N.M.L.R. 245, NIPC Ltd. v. Thompson Organisation Ltd. & Ors. (1969) N.M.L.R. 99. Any evidence which is not supported by the pleadings go to no issue. see George v. Dominion Flour Mills Ltd. (1963) 1 All NLR. 71. But a party can lead evidence in support of matters in his opponents pleading see Adenuga v. Lagos Town Council (1950) 13 W.A.C.A. 125.
Examination of the statement of claim of the appellant discloses obvious omissions in material particulars. I have already pointed them out in this judgment. Learned counsel has argued that the proper authority which can authorise the termination of appellant’s appointment was not in existence.
This was not the pleading. Paragraph 3 of the statement of claim merely pleaded that “the defendant’s sole administrator’s appointment had terminated on or before 15/4/80 and His Excellency, Alhaji Adamu Atta, the Governor of Kwara State had not appointed a new governing councilor another sole administrator.”
This is patently inadequate and does not contain particulars as to the terms, conditions and circumstances of the exercise of the authority to terminate the appointment of the appellant. In the absence of any averment in the statement of claim that appellant was appointed by the governing councilor the sole administrator of the defendant, it is not easy to appreciate the merit of the contention that they can or cannot terminate his appointment. It was the submission of learned counsel to the appellant that since the termination of the appellant’s employment with the defendant was a nullity, as he claims, his letter of appointment by the defendant is not a material fact to be pleaded; neither is it necessary to tender it. It was submitted further that there was no dispute, and in fact the parties are agreed that appellant was duly appointed to his post and that he was entitled to be given 3 months notice of termination of appointment or salary in lieu of such notice.
Learned counsel finally submitted that whether there is a valid termination of appointment is one of law. It can never be found in appellant’s letter of appointment or conditions of service.
It seems clear to me that appellant has brought this action for the purpose of ascertaining and determining his rights to remain an employee of the defendant. The point of law which falls for determination is whether his contract of service with the defendant College of Technology has been interfered with by someone who has no authority to do so. In the circumstance it is difficult to conceive how the determination whether appellant is an employee of the defendant College of Technology and therefore holds its letter of appointment will not arise.
If he is an employee how did he come to be, by a contract of employment or oral agreement Are there any rules governing his employment If any, what is the nature of the contract, permanent establishment or temporary Whether they contain conditions for his termination. It is certainly not correct to argue as counsel to the appellant has done that the fact that appellant is in the employment of the defendant was not in dispute. Similarly not correct is the contention that it is not in dispute that appellant is entitled on termination of appointment to be given three months salary in lieu of notice.
The law is that only proof of admitted facts are dispensed with. And this is only when parties formally agreed about a particular matter either in their pleadings or otherwise. see Okparaeke of Ndiakaeme & Ors. v. Egbuonu & Ors. (1941) 7 W.A.C.A. 53. In the instant case the facts claimed to have been admitted were not pleaded. There was no basis therefore for assuming that they have been admitted.
The aim of the declaration being to ascertain and determine the right of appellant to remain an employee of the defendant, the letter of appointment of appellant is a sine qua non of his pleading. The declaration sought cannot be granted in vacuo. It must be granted in relation to his employment. There can be no termination unless the appointment terminated was an appointment by the person or authority terminating. The letter of appointment is undoubtedly the creator of the right sought to be declared. see Vine v. National Dock Labour Board (1957) A.C. 488; Ewarami v. A.C.B. Ltd. (1978) 4.S.C. 99. It is not irrelevant to the declaration sought as submitted by learned counsel to the appellant.
It is crucial and indispensable. Appellant has asked for a perpetual injunction restraining the defendant from filling the post without establishing that he was formally appointed to that post. I do not think he is entitled to the injunction sought having not established that he has a legal right to the post. It is a fundamental rule that the court will only grant an injunction only to support a legal right. Where the plaintiff has no legal right recognised by the courts, there is no power to grant, an injunction.
Plaintiff seeking an injunction must prove that his legal right has been infringed. It seems to me in the instant case unarguable that appellant has not established that he has any legal right to the employment from which he was terminated. He is therefore not entitled to the injunction see Montgomery v. Montgomery (1965) p.46. (See 1 (1979) Rules of Supreme Court of England at 470).
I now turn to the third issue, that is, the implication of appellant’s acceptance of the three months salary in lieu of notice on his termination of appointment, learned counsel to the appellant has argued that the acceptance of the three months salary had no “legalising effect on the null termination of the plaintiff’s appointment.” He relied on the cases of Skenconsult Nig. Ltd. & Anor. v. C.S. Ukey (1981) 1 S.C.6 and Macfoy v. U.A.C. Ltd. (1962) A.C. 152 to the submission that “a null act is void and cannot be built upon.” In other words the act of the defendant terminating appellant’s appointment is a void act which could not be built upon by the acceptance of the three months salary.
It seems to me learned counsel to the appellant has misunderstood the true legal position. His contention is premised and predicated on the argument of a vacancy in the governing council of the defendant or the appointment of a sole administrator. In addition to the fact that the positions and powers of these institutions and person were not pleaded, appellant who had the onus of proving that the office is vacant has failed to discharge the burden by failing to lead the evidence. The presumption of continuance operates in favour of the appointees continuing. see Benson v. Onitiri (1960) 5 FSC. 69; [1960] SCNLR 177; S.149 (2) of the Evidence Act. The presumption of regularity of public acts operate in favour of the defendant that the letter Exh.1 was written on the direction of a competent body. No evidence to the contrary has been shown see S.149(c).
Learned counsel to the respondents submitted quite rightly that it was averred in paragraph 2 of the defendant’s statement of defence, that appellant’s appointment was properly and validly terminated in accordance with the provisions of the regulations governing conditions of service of its senior staff. This regulation was tendered, admitted and marked Exhibit 2. Exh.2A, i.e. page 3 of Exh.2, prescribed the conditions for termination of appointment for conduct other than misconduct. It provides for the giving of three months notice, or three months salary in lieu of such notice. The provision applies to senior staff leaving the employment of the defendant.
This evidence was part of the case of the appellant. He admitted he was paid three months salary in lieu of notice as provided in Exh.2A. Thus conceding for the purposes of this argument that appellant has a contract of employment with the defendant, that contract was validly and properly determined by appellant’s acceptance of its determination, i.e. the acceptance of the three months salary paid to him in lieu of notice. See Dr. O. Ajolore v. Kwara State College of Technology (1986) 2 S.C. 374.
If appellant had rejected the three months salary in lieu of notice, the unilateral repudiation of his contract of service with the defendant by the appellant would not have operated to determine the contract. See Olaniyan & Ors. v. University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599 at p.683. His conduct rendered the determination mutual.
There is no doubt that in this case appellant did not in his statement of claim plead the material facts required for a declaration that his contract of service with the defendant has not been validly determined. Having failed to plead the material facts, appellant is not entitled to judgment. On the pleadings in this case the appointment of appellant was validly determined in accordance with the regulations governing his appointment. All the claims of appellant totally fail.
I am therefore satisfied on the reasons given herein that the Court of Appeal was right in dismissing the appeal of the appellant. The action ought not to have been brought in the first instance. These are my reasons for dismissing this appeal on the 9th April, 1990.
Other Citation: (1990) LCN/2413(SC)
