Bemil Nigeria Limited V. Marcus Emeribe & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the judgment of Honourable Justice Salisu Garba of the High Court of the Federal Capital Territory, Abuja delivered on 29th July, 2005. The High Court of the Federal Capital Territory would be simply referred to as “the lower court” hereafter.

The Respondents as Plaintiffs before the lower court commenced this action by a writ of summons against the Appellant as Defendant. The Respondents claims jointly and severally against the Appellant as set out in the Statement of Claim are for: –

1. A declaration that the termination of their appointment (sic) is unlawful.
2. A declaration that they are all entitle (sic) to payment of one month salary in lieu of notice.
3. A declaration that they are all entitle (sic) to payment of overtime for overtime work done,
4. A declaration that they are all entitled to payment of salaries for the number of days worked before they were sacked.
5. A declaration that deductions were unlawfully made from their salaries.

6, An order directing the third defendant to pay all entitlements. The breakdown of the entitlements was set out.

7. An order to refund all unlawful deductions. The unlawful deductions were itemised.
8. An order directing the defendant to pay general damages to the tune of N10,000,000,00 to all the plaintiffs for unlawful termination of appointment.

9, An order directing the defendant to pay N100,000,00 to each plaintiff as exemplary damages for unlawful termination of appointment.

10. One million Naira as cost of litigation.

The Statement of Claim filed in the action is at pages 7 – 10 of the Records.

The case set up by the Plaintiffs (now Respondents) in the process is that the Appellant is a limited liability company rendering security and other related services and is retained on a renewable contract by the United States Embassy, Abuja, The Respondents all claim to be bona fide employees of the Appellant till January, 2002. They claimed that they were severally employed by the Appellant and their appointments severally confirmed as a result of satisfactory job performance. That in January, 2002 the Appellant sacked them without notice or payment in lieu of such notice, by letters severally addressed to them. That most of them that were sacked had been in the employ of the Appellant since 1995 and had worked for more than five years and were entitled to gratuity, They also said that they worked for four public holidays for which the 3rd defendant owed them overtime payment and that the Appellant equally owed them salaries for the number of days they had worked before their sack. The Appellant was also said to have made heavy unlawful deductions from their salaries while they were in service without any evidence of tax remittances whatsoever. Deductions were also said to have been made by the Appellant from the Respondents salaries as N.S.I.T.F. contributions; and upon the death of any member of staff. Specific averments were made in relation to the 20th and 21st Respondents while some fifteen unnamed Respondents were said to be married with children and who are now all suffering due to the termination of their appointments. It was also alleged that the salaries payable to them under the contract with the US Embassy and which the Appellants collects is far above what is paid to them.

The Statement of Defence filed by the Appellant is at pages 19 – 20 of the Record. Therein the Appellant admitted the averments in paragraphs 1 – 4, 6, 13, 23 and 24 of the Statement of Claim. The averments in the admitted paragraphs relate to the following: –

1. That the Appellant is a limited liability company rendering security and other related services.
2. That the Appellant is retained on a renewable contract by the United States Embassy, Abuja to provide security and related services to the Embassy.
3. That the Respondents are Nigerian citizens and were bona fide employees of the Appellant till January, 2002.
4. That the Appellant employed the Respondents severally and their appointments confirmed severally as a result of satisfactory job performances.
5. That some of the Respondents have over the years received awards for being guards of the month, or quarter, or year, all being in recognition of good and satisfactory job performances by the US Embassy and the third defendant.
6. That the Appellant advised its Accounts Department to settle all outstanding payments such as payment in lieu of notice and outstanding overtime due to the Respondents but that this had not been paid the Respondents as at the time of filing the suit.
7. That the 20th Respondent who was sacked “due to poor job performance” was promoted from guard to senior guard in 2000 and further promoted to supervisor in 2001.
8. That the 21st Respondent was promoted from guard to senior guard in 1999 and to then supervisor in 2000 but was sacked for poor job performance.

Having admitted the averments highlighted above, the Appellant said that the services of the Respondents were dispensed with because the same was no longer required. The Respondents were also said to be entitled to two weeks notice or payment for such in lieu of notice before they can be disengaged and that the Appellant had since invited the Respondents collectively and individually to collect their entitlement which does not amount to the sum being claimed in this action. The Appellant equally attacked several paragraphs of the Statement of Claim as not disclosing any cause of action.

The lower court in its judgment delivered on 25/7/2005 having found (i) that the termination of the Respondents’ appointments to have been in breach of their letters of appointment; (ii) that unlawful deductions were made from the salaries of the Respondents; and (iii) that the Respondents are entitled to damages for the wrongful termination of their appointments; ordered as follows: –

“1. The termination of the Plaintiffs’ appointment was unlawful.

2. That the plaintiffs are entitled to one-month salary in lieu of notice which I calculate at N289,056.00,
3. That the Defendant remits all taxes and NSITF contributions deducted from the plaintiffs’ salaries to the appropriate authorities forthwith.
4. Refund the sum of N30,450,00 to the Plaintiffs as “other” deductions made in the plaintiffs (sic) salaries,
5. I order the Defendant to pay the plaintiffs the sum of N289,056,00 as general damages.
6. The sum of N100,000.00 (One hundred thousand Naira) only is paid to the Plaintiffs by the Defendants (sic) as the cost of this litigation.”

The Defendant (now Appellant) being dissatisfied with the judgment of the lower court on 1/8/2005 lodged a Notice of Appeal of the same date against the said judgment. The Notice of Appeal contains eight grounds of appeal.

The grounds of appeal shorn of their particulars read:-

1. ERROR IN LAW

The Learned Trial Judge erred in law when he did not make any finding on the competence of the action of the Plaintiffs/Respondents, an error that occasioned Injustice to the Defendant/Appellant.

2. ERROR IN LAW:

The Learned trial Judge erred in law when he awarded an amount that equaled the average monthly salary of the various Plaintiffs/Respondents in spite of the fact that the evidence led before the court revealed that the Plaintiffs were entitled to 14 days notice before their appointment could be validly terminated or salary in lieu of such notice.

3. ERROR IN LAW

The learned Trial Judge erred in law when he awarded the sum of N30,450 jointly to the Plaintiffs/Respondents as “OTHER” in the face of contradictory evidence led by the Plaintiff/Respondent (sic) in support of the issue.

4. ERROR IN LAW:

The Learned Trial Judge erred in law when he held that the Defendant should refund all unremitted taxes and NSITF deductions made from the salaries of the Plaintiffs/Respondents to the appropriate authorities.

5. ERROR IN LAW:

Same as NO.4 above but with different particulars

6 ERROR IN LAW:

The Learned Trial Judge erred in law when he held “that the plaintiffs are entitled to one-month salary in lieu of notice”.

7. ERROR IN LAW:

The Learned Trial Judge erred in law when he awarded the sum of N289,056.00 to the Plaintiffs as general damages.

8. ERROR IN LAW:

The judgment is unreasonable and can not be supported having regard to the weight of Evidence.

In accordance with the Rules of this Court, parties filed and exchanged briefs of argument. Appellant’s brief was settled by Olasoji O. Olowolafe Esq, while the Respondent’s brief was settled by James Kanyip Esq. The appeal was entertained on 23/4/2009. O.O Olowolafe learned lead counsel for the Appellant in urging this Court to allow the appeal and set aside the judgment of the lower court relied on and adopted Appellant’s brief of argument dated 29/3/06 and deemed as properly filed and served on 11/5/06.

James Kanyip learned counsel for the Respondents in urging that the appeal be dismissed relied on and adopted the Respondents’ brief of argument dated 16/10/06 filed on 18/10/06 but deemed as properly filed and served on 6/6/07.

Three Issues are formulated for the determination of the appeal in the Appellant’s brief of argument The Issues read thus: –

“1. Whether the Learned trial Judge was right by not making any pronouncement on the competence of the action of the Plaintiff/Respondent (sic), Grounds 1, 4 & 5.)

2. Whether the Learned Trial Judge gave any consideration to the principles guiding master/servant relationship and the relief for breach of such relationships. (Grounds 2, 6 & 7,)
3. Whether the Judgment of the Lower court has any correlation with the evidence led at the trial. (Grounds 2, 3, 4, 5, 6 & 8,)”

In the Respondents’ brief of argument, the Respondents’ counsel adopted the Issues for the determination of the appeal as formulated in the Appellant’s brief. The appeal therefore will necessarily be determined upon the Issues formulated by the Appellant.

APPELLANT’S ISSUE 1

Dwelling on this Issue learned lead counsel for the Appellant said that the competence of the instant action was challenged generally as abuse of the process of court and also as sheer affront and disobedience to the rules of the lower court. He stated that the competence of the action was dwelled upon in the written address he filed at the lower court and page 96 of the Records was referred to in this regard. Furthermore, learned lead counsel said he challenged the competence of some paragraphs of the Statement of Claim but that the lower court never made any pronouncement on these salient issues.

learned lead counsel for the Appellant submitted that the issue of competence of an action is so fundamental that it touches on the jurisdiction of the court. That the said issue has to be considered first once raised. The cases of Mosoba v. Abubakar (2005) 6 NWLR (Pt. 922) 460 at 470; Chrislieb Plc v. Olagbaju (2004) 4 NWLR (Pt. 863) 342 at 350; and Madukolu v. Nkemdilim (1962) 2 SCNLR 341 were cited in aid. Learned lead counsel submitted to the effect that the Issue of the competence of the instant action was properly raised even though it was raised for the first time In his written address filed before the lower court, This is because the issue as it borders on the jurisdiction of the lower court can be raised at any stage and the case of UBA Plc v. Ayinke (2000) 7 NWLR (Pt, 663) 104 was cited in aid. He further submitted that the failure of the lower court to make any pronouncement on the competence of the action is a fundamental error.

Dwelling on the competence of the instant action as it relates to the allegation of non-remittance of taxes and National Social Insurance Trust Fund contributions to the appropriate authorities, learned lead counsel for the Appellant said that it was his contention at the lower court that the Respondents were not the proper parties to maintain an action in this regard.

That an action in this regard being a criminal offence could only be maintained by the Attorney-General of the Federation or a person who has the fiat of the said Attorney-General and that Section 174 of the 1999 Constitution was commended to the lower court amongst other submissions.

He stressed that the lower court not only failed to make any pronouncement in respect of the submissions on the issue but went ahead in its judgment to order the Appellant to “remit all taxes and NSITF contributions deducted from the Plaintiffs salaries to the appropriate authorities forthwith”. Pages 97 and 30 of the Records were referred to in aid. Learned lead counsel also made the point that the “appropriate authorities” were not parties to the action and that the judgment of the lower court was thereby in favour of non-parties who did not have any claim before the said court. He submitted that the courts are not charitable organizations and do not grant to a party that which was not claimed. The case of Oginni v. IMB (1994) 3 NWLR (Pt. 330) 89 was cited in aid.

Dwelling on the Issue under consideration, Respondent’s counsel having referred copiously to the submissions of the Appellant’s counsel in his written address before the lower court, said to the effect that the competence of the instant action was challenged on the ground that the Respondents’ action called for consolidation which required the leave of the lower court pursuant to the provision of Order 36 Rule 7 of the 2004 Civil Procedure Rules of the said court. Learned counsel submitted that the reference by Appellant’s counsel to Order 36 Rule 7 of the Rules of the lower court must have been an oversight because the said rule deals with written addresses; whereas It is Order 32 Rule 7 that deals with transfer and consolidation of action. Respondents’ counsel said to the effect that consolidation of action is a procedure by which two or more actions pending in the same court are by order of court, joined and tried together. That consolidated actions though separate and distinct, are tried simultaneously in the same proceeding.

Learned counsel said that the essence of consolidation is the joinder of two or more actions for trial in one single proceeding and in aid of this, reference was made to the book titled Civil Procedure in Nigeria by Fidelis Nwadialo, SAN at page 485; as well as Order 3 Rule 4; and Order 4 Rule 5 of the 1990 Rules of the lower court for similar provisions. Learned counsel said that the Respondents did not file separate actions that warranted consolidation. The point was made that consolidation contemplates and provides for joinder of actions and not claims. That where as in the instant action, the claims of the Respondents are the same, leave to consolidate the claims was not necessary as no rule of court provided for this. He submitted that Appellant’s counsel misconceived the modus operandi of consolidation and wrongly argued the same in the Appellant’s brief of argument.

Learned counsel for the Respondents also submitted that consolidation is only a procedural requirement and not a requirement of substantive law which does not affect the competence of the action and jurisdiction of the lower court to hear the same. In the premises he submitted to the effect that the instant action has not been rendered incompetent assuming (without so conceding) that the Respondents’ action called for consolidation. The case of Ndayako v. Jikantoro (2004) 28 WRN 1 at 31 was cited In respect of the distinction between jurisdiction as a matter of procedure and as a matter of substantive law, Learned counsel submitted to the effect that Appellant’s counsel having participated fully in the entire proceedings without objection, he has thereby waived whatever irregularity, if any, occasioned by non-consolidation and Order 2 of the Rules of the lower court was cited in aid.

Furthermore, learned counsel submitted that the Appellant having not suffered injustice by the non-consolidation but rather glaringly consented to the wrong procedure, he cannot now complain on appeal that the instant action was commenced by an irregular procedure. The cases of Nasco Management Services Ltd v, B.N. Amaku Transport Ltd (1991) 1 NWLR (Pt.588) 576 at 88(sic); Ibeanu v, Ogbeide (1994)7 NWLR (pt.359) 697 at 76 (sic); and Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 were cited in aid.

Dwelling on the issue of non-remittance of taxes and other deductions from the Respondents’ salaries, learned counsel submitted that nowhere in the Statement of Claim and in the evidence adduced by the Respondents was it averred or said that the Appellant committed crime for the non-remittance of taxes and deductions from their salaries. That all they sought from the lower court was a pronouncement declaring the deductions unlawful and an order that the Appellant refund the deductions 10them, That no crime was alleged and the case of Ndoma-Egba v, African Continental Bank Plc (2005) 131 LRCN 2282 at 2307 and 2309 was cited in aid. Learned counsel also submitted that a cause of action can give rise to both civil and criminal liabilities at the same time and that the fact that a cause of action has criminal flavour or ingredient does not mean that Section 174 of the 1999 Constitution must be invoked as submitted by Appellant’s counsel. Learned counsel said that though the Respondents sought for an order of refund the deductions declared unlawful to them, the lower court in its wisdom granted an order that the Appellant should remit an taxes and NSITF contributions to the appropriate authorities forthwith, Respondent’s counsel in the circumstances submitted that the submission of Appellant’s counsel on the issue could only be tenable if the lower court had granted the claim of the Respondents as asked for.

The Issue under consideration is whether the learned trial Judge was right by not making any pronouncement on the competence of the action of the Plaintiffs (now Respondents). it is obvious from the submissions of learned lead counsel for the Appellant on this Issue that the competence of the instant action as a whole was not only generally challenged, but also that the competence of the aspect of the Respondents’ case relating to non remittance of taxes and other deductions was specifically challenged. Issue 1 under consideration is said to have been distilled from grounds 1, 4 & 5 of the grounds of appeal.

Given the nature of Issue 1, I consider it most appropriate or prudent to find out whether or not the competence of the instant action was challenged by the Appellant in the first place. For this purpose the Statement of Defence at pages 19-20 calls for scrutiny. There are averments in the Statement of Defence which in my view glaringly put the competence of the instant action in issue. The paragraphs in question are reproduced hereunder:-

Paragraph 8: The Defendant states in respect of paragraphs 15 – 19 that the Plaintiffs (sic) claim (sic) therein are incompetent, abusive of court process and have not disclosed a reasonable cause of action,

Paragraph 10: The Defendant further avers that paragraphs 20 and 21 of the Statement of Claim are incompetent, abusive of court process frivolous, malicious and have not disclosed a reasonable cause of action.

Paragraph 11: The defendant states in reply to paragraph 22 of the Statement of Claim that she is not aware of such allowances as it applies to her or to the contract between her and each of the Plaintiffs. Consequently, the Defendant contends that the claim is frivolous, malicious, abusive of court process and has disclosed no reasonable cause of action.

Paragraph 12: The defendant states that paragraphs 23 and 24 of the Plaintiffs’ Statement of Claim have no bearing to this suit.

Paragraph 13: The Defendant states that paragraph 27 of the Plaintiffs’ Statement of Claim is incompetent, abusive of court process and discloses no reasonable cause of action.

Paragraph 14: The defendant finally states that the totality of the Plaintiffs’ claims as summed up in paragraph 28 of the Statement of Claim is incompetent, abusive of court process, discloses no reasonable cause of action, frivolous, vexatious, speculative and unreasonable calculation to make pecuniary gains.

I am of the considered view that aside from the averments in paragraphs 8, 10, 11, 12 and 13; the Appellant unequivocally or clearly and sufficiently too, challenged the competence of the instant action given the averment in paragraph 14 of the Statement of Claim. This is because I do not see how it can be otherwise argued that a challenge to the competence of the claims/reliefs which are claimed in a suit is not a challenge to the suit itself.

After all the claims in a suit are predicated on the facts set out in the pleading.

Or to put this in another manner, facts as presented in the pleading are what the claims in the suit are anchored on. See also the case of ABDULHAMID V. AKAR (2006) All FWLR (Pt. 321) 1191 which decides amongst others to the effect that the competence of an action can be determined solely from the reliefs claimed.

In any event, given the submissions of Respondents’ counsel in the Respondents’ brief of argument, I definitely do not understand him as disputing the fact that learned lead counsel for the Appellant did challenge the competence of the instant suit in the Statement of Defence and/or in the written address before the lower court. All that Respondents’ counsel has argued is to the effect (i) that the basis for challenging the competence of the instant action to wit: “consolidation” does not and indeed cannot avail the Appellant and/or that Appellant counsel cannot challenge the competence of the action at the stage he did, or at all, having partaken or participated in the proceedings without objection to the procedural issue of consolidation. This is particularly so as no injustice has been occasioned the Appellant.

Respondents’ counsel definitely never argued that the lower court pronounced on the issue of the competence of the action in its judgment. I have myself painstakingly scrutinised the judgment of the lower court which is at pages 126 – 131 of the Records and I cannot but say that it Is indisputable therefrom that the lower court never averted its mind to the challenge to the competence of the instant action, talk less of making a pronouncement on the issue.

The law would appear to be settled that the competence of a court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined; and indeed that though the words ‘competence’ and ‘jurisdiction’ are often used as if they mean one and the same thing, they actually do not. It must therefore be appreciated that though there is the tendency to equate “jurisdiction of a court” with its “competence” as if the two mean one and the same thing, the authorities have clearly brought out the point that the “competence” of a court is the hand maiden of the “court’s jurisdiction” and that a court must have both “jurisdiction” and “competence” to be properly seised of a cause or matter, A court is said to be “competent” where (i) it is properly constituted with respect to the number and qualification of its members; (ii) the subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction: (iii) the action is initiated by due process of law; and (iv) any condition precedent to the exercise of jurisdiction has been fulfilled, See the cases of COTECNA INTERNATIONAL LIMITED v. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (pt.315) 26 at 43; MADUKOLU v. NKEMDILIUM (1962) 2 NSCC 374 at 379-380; and IBEANU V. OGBEIDE (1994) 7 NWLR (Pt. 359) 697 at 709.

Another case which I find most instructive on the issue of competence vis-Ã -vis jurisdiction is that of MOBIL PRODUCING NIGERIA UNLIMITED v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS. (2003) FWLR. (Pt.137) 1029. In the said case, the Supreme Court per Ayoola, JSC: (who delivered the lead judgment) dwelling on “jurisdiction” stated to the following effect, that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts leads to error, His Lordship then fashioned out the following guidelines:-

(i) Where on the face of the proceedings a superior court is competent, incompetence should not be presumed;

(ii) Where on the face of the proceedings, the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;

(iii) Where the competence of the court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the court should regard such incompetence as arising ex facie;

(iv) When the competence of the court is affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the court should be tried first before the court makes a pronouncement on its own competence;

(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue in his statement of defence in proceedings commenced by writ of summons or by affidavit in cases commenced by originating summons;

(vi) A judgment given in proceedings which appear ex facie regular is valid.

Given the fundamental nature of jurisdiction/competence of the court on its adjudicatory powers, the appellate courts have consistently declared that not only can the issue of jurisdiction/competence be raised at any stage of the proceedings and in any manner (i.e. informally) but also that the said issue can be raised for the first time on appeal. See ZENITH PLASTICS INDUSTRY LTD V. SAMOTECH LTD (2008) All FWLR (Pt. 427) 176 at 193: and CHIEF EMMANUEL NWUDE V. CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION (2005) All FWLR (Pt. 276) 740 at 756.

Given all that has been said before now, I am of the considered view that the lower court conspicuously erred in law by failing to dwell on the issue of the competence of the instant action which I have earlier found the Appellant to have raised unequivocally or glaringly and sufficiently too, given the averments in paragraphs 8,10,11,12,13 and particularly paragraph 14 of the Statement of Defence.

The submissions of Respondents’ counsel in response to those of Appellant’s counsel concerning the competence of the instant action have been earlier highlighted. I have pondered upon the submissions particularly those to the effect that the competence of the instant action cannot be successful challenged on the basis of non-consolidation of the Respondents’ claims. I am of the settled view that Respondents’ counsel has clearly misconceived the submission of Appellant’s counsel hinged on non-consolidation.

In the Appellant’s written address at page 96 of the Records, the point was made that the Respondents’ have different contracts of employment with the Appellant and that their appointments were terminated for different reasons and on different days. It is in the light of these facts that it was submitted that the Respondents’ action amounted to a consolidation of claims without the leave of court.

Appellant’s counsel in my view has definitely and aptly too, captured the essence of the case and claims of the Respondents when he submitted to the effect that they have different contracts of employment with the Appellant and that the Respondents appointment were terminated for different reasons and on different days, The Statement of Claim undoubtedly shows these to be the case, The situation in this case therefore is that the twenty-one Respondents who jointly instituted the instant action and who all were at various times and with various letters of appointment employed by the Appellant as security guards of different grades or categories, are by their claims severally and jointly, challenging the termination of their respective appointments and claiming other reliefs which they consider as flowing from the unlawful termination of their appointment including general and exemplary damages. I have earlier stated that I have pondered on the submissions of the Appellant’s counsel in relation to non-consolidation of the instant action. What I understand the submissions to amount to against the backdrop of the case set up in the Statement of Claim, is that the Respondents cannot jointly bring the instant action and have their different causes of action tried together without consolidating the same. In other words, that the Respondents, given their respective causes of action, ought to have instituted separate actions based on each Respondent’s contract of employment/appointment. And that it is only upon the consolidation of the said separate actions/claims that the Respondents actions can properly be tried together. I am in no doubt that the learned counsel for the Appellants is eminently right, when his submissions are appreciated in this vein. In this regard, , consider the case of BOSSA & ORS V. JULIUS BERGER PLC (2005) All FWLR (Pt. 290) 1503 at 1518 as bringing out most graphically why persons should sue on the basis of their respective contracts of employment. In the case under reference, this Court, per Abba Aji, JCA; at page 1518 said:-

“In the realm of master and servant relationship, although ten or more persons are given employment the same day under the same conditions of service, the contract of employment is personal or domestic to each of the persons. In the event of breach, the persons do not have a collective right to sue or be represented in the suit. See CCB (Nig.) Plc v. Rose (1998)4 NWLR (Pt.544) 37;

Applying the above decision, it is therefore clear that the instant action is without doubt incompetent having not been properly constituted as regards the plaintiffs therein.

If the lower court had given the challenge to the competence of the instant action any consideration in its judgment and the learned trial Judge had also averted his mind to the decision of this Court cited above, he would have had no difficulty in holding that the instant action is indeed incompetent as it had not been properly constituted thereby striking it out for lack of jurisdiction on the part of the court to adjudicate over the incompetent action. See OFIA & ORS V. EJEM & ORS (2006) All FWLR (pt.324) 1816; and MOZIE V. MBAMALU (2006) All FWLR (Pt. 341) 1200.

What the Respondents ought to have done given the nature of their case or respective causes of action, was for each one to have instituted a separate action based on his/her own letter/contract of employment. If they wanted the several or many cases so filed tried in one proceeding, then they should have applied that the said cases be consolidated. In the alternative, the Respondents having filed separate cases; nothing stopped them and the Appellant upon agreement in that regard from electing to prosecute only one of such cases and for the other actions to abide the result of the one that was tried,

Respondents’ counsel it is to be noted also submitted amongst others that the Appellant having participated in the trial of the instant action cannot raise the issue of its competence on appeal as whatever irregularity that was in the case at its commencement must be now deemed waived. In this regard reliance was placed on the position of the law that procedural competence can be waived and was indeed waived in the instance action by the Appellant. The submission in this regard in my humble view overlooks the fundamentally of the issue of competence of an action and that it is intertwined with that of jurisdiction. I consider it appropriate to refer again to the case of MOBIL PRODUCING NIGERIA UNLIMITED V LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS (supra) to bring out the point.

The case makes it clear (i) that even if the issue is not raised by the parties, the court should on its own note its incompetence and decline to exercise jurisdiction where the court’s incompetence is apparent on the face of the proceedings. This is because if the court does not, the question of its incompetence can be raised at any stage of the proceedings as the fact of its incompetence will always remain on the face of the proceedings; and (ii) that where the competence of the court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the court should regard such incompetence as arising ex facie.

It was therefore not too late for the Appellant’s counsel to have challenged the competence of the instant suit at the address stage at the lower court as the issue did not involve the ascertainment of fact. It glaringly involved the consideration of the Respondents’ case as presented in their pleading. In other words, the incompetence of the instant action due to its improper constitution, having arisen ex-facie, cannot be waived and can be raised at any time; even on appeal.

The other issue on incompetence raised by Appellant’s counsel in relation to the Respondents’ case relates specifically to the allegations of non-remittance of taxes and National Social Insurance Trust Fund contributions to the appropriate authorities. In relation to the issue, the lower court in its judgment at pages 126 – of the Records, said thus: –

“The 2nd issue is whether there was unlawful deduction from the salaries of the plaintiffs by the Defendants (sic). It was the contention of the plaintiffs that the Defendant used to deduct some amount from their salaries as taxes, NSITF and other deductions without given (sic) them tax clearance and membership card of NSITF, These allegations were neither challenge (sic) or (sic) contradicted by the Defendant and they are deemed admitted.”

Having slated as quoted above, the learned trial Judge simply proceeded to hold, in relation to the issue, thus: –

“3. That the Defendant shall remit all taxes and NSITF contributions deducted from the plaintiff’s salaries to the appropriate authorities forthwith.”

The submissions of both learned counsel to the parties on this issue have earlier been highlighted in this judgment. The contention of Appellant’s counsel before the lower court was that the Respondents are not the proper parties to maintain an action for non-remittance of taxes and NSITF contributions. Dwelling on tax deductions, Appellant’s counsel relied on Section 27 of the Personal Income Tax (Employment) Regulations as vesting in the “Federal Inland Revenue Board” only, the power to maintain an action for the recovery of tax collected from employees by employers that failed to remit the same. In respect of NSITF contributions, Appellant’s counsel cited Section 20 (2) of Act No. 73 of 1993 as making the non-remittance of deductions a criminal offence. The lower court having regard to the portions of its judgment quoted above, definitely made no pronouncement on the challenge to the competence of the aspect of the Respondents’ case dealing with non-remittance of taxes and NSITF contributions deducted from the Respondents’ salaries.

It is not the case of the Respondents, in the Statement of Claim, that they are not liable to pay taxes, or contribute to the NSITF given the nature of their respective employments. Given this fact, how then can it be argued that the aspect of the Respondents’ case claiming for the refund to them of the taxes paid and contributions to the NSITF is competent? Surely, those who can complain about the non-remittance of taxes and NSITF contributions deducted from the Respondents’ salaries are the appropriate authorities to whom the deduction should have been remitted. These appropriate authorities are the ones who also can recover the deductions. It is not the case of the Respondents on their pleading that they are claiming for the refund of the deductions on behalf of the appropriate authorities to whom the same should have been prayed. Given all these, I am of the considered view that the case of the Respondents for the refund to them of the deductions in question was shown to be manifestly incompetent by their own pleading and that the lower court should have found this aspect of the Respondents’ case incompetent, had the learned trial Judge considered the issue of the incompetence of the claim of the Respondents in that regard. Indeed the incompetence of the Respondents’ claim in relation to the refund of the deductions in question to them is underscored by the order of the lower court that the Appellant “remits all taxes and NSITF contributions deducted from the plaintiffs salaries to the appropriate authorities forthwith” after he had found that this aspect of the Respondents’ case was not contradicted by the Appellants and thereby deemed admitted. The order of the lower court in this regard simply shows that the uncontroverted facts of the Respondents’ case do not entitle them to the relief of refund of the deductions. This is no different from what a consideration of the averments in the Statement of Claim, for the purpose of determining the competence of the said claim, would have revealed. Had the learned trial Judge considered the issue of the incompetence of the Respondents’ claim for the refund of taxes and NSITF contributions to the Respondents as he was duty bound, he ought to have found the same incompetent as contended by Appellant’ counsel and should have struck out the said claim accordingly. It was not within his province to have made an order in favour of “appropriate authorities” who were not parties in the action and whose identities were not stated in any event.

In conclusion on Issue 1, the said Issue is accordingly resolved in favour of the Appellant.

ISSUE 2

This Issue questions the consideration by the learned trial Judge of the guiding principles in relation to master/servant relationship vis-a-vis the reliefs for the breach of such relationship.

Dwelling on the Issue, learned lead counsel for the Appellant stated to the effect that the learned trial Judge relying on the case of Evans Bros. Nig, Ltd v. Falaiye (2003) 13 NWLR (Pt. 838) 564, was wrong in awarding each of the Respondents one month salary in lieu of notice, He said the learned trial Judge was wrong in this regard because he did not avert his mind to or take cognisance of other authorities commended to him on how to assess damages in an action for the breach of a contract of employment. The award of one month salary in lieu of notice which the learned trial Judge calculated to be N289,056.00 despite the fact that PW V testified that “it is true that we are supposed to be given 14 days notice but we were not given” was attacked by Appellant’s counsel. The case of Olaniyan v, University of Lagos (1985) 2 NWLR (Pt.9) 599 was cited as stating the position of the law on the assessment of damages arising from the breach of a contract of employment. The authority was said to have been commended to the learned trial Judge but was discountenanced by him.

Respondents’ counsel conceded to the ratio in the Olaniyan case, but said that the case was inapplicable to the Respondents’ case as they worked for more than the 14 days period of notice for the determination of their employments as provided in their letters of appointment. He submitted that as it was clear from the evidence of PWs 4 and 5 that the Respondents worked for more than 14 days and thus earned their salaries for the period as of right, they were therefore equally entitled to another 14 days salary in lieu of notice. Learned counsel submitted that this entitled the Respondents to a month’s salary. Furthermore, he said that the Olaniyan case would have been applicable to the instant case if the Appellant had paid the Respondents their two weeks salaries before the notice of sack.

The only inkling the Respondents gave in respect of the period of notice to which they are entitled for the determination of their respective employments can be found in paragraph 16 of the Statement of Claim. In this regard, the Respondents disclosed the period of notice as one month. The Respondents never pleaded the salary being earned by each of them at the time their respective employments were terminated. Even if all of them were, at the time of the termination of their different employments, earning the same salaries, the salary being earned by each of them or all of them was not pleaded. Yet, the monetary entitlement of the Respondents tabulated on the basis of one month salary in lieu of notice and calculated to be in the sum of N289,056.00 is being claimed by them, This is the very sum the lower court awarded them in its judgment.

In the Statement of Defence, the Appellant specifically averred in paragraph 5 that each of the Respondents was entitled to two weeks’ notice to bring their employments to an end or payment for that period in lieu of notice. It is thus clear from the state of the pleadings that parties were not ad idem on the period of notice required for the termination of the various employments of the Respondents.

Five out of the twenty-one Respondents who jointly instituted the instant case, gave evidence at the hearing. Under examination-in-chief, none of them testified as to the period of notice to which they are entitled to terminate their respective employments, Appellant’s counsel under cross-examination however elicited evidence from PW V confirming that the period of notice to which the Respondents are entitled for the termination of their respective appointments is 14 days.

The Appellant did not call any evidence at the hearing of the instant case. It rested its case on that of the Respondents, The case of the Respondents to the effect that they are entitled to one month’s notice for the termination of their respective appointments has definitely collapsed given the evidence elicited from PW V confirming the Appellant’s case that it is 14 days notice that is required in this respect. This is because the Appellant having successfully challenged by cross-examination the aspect of the Respondents’ case as to their entitlement to one month’s notice for the termination of their respective appointments, has thereby discredited the same and rendered any evidence led by the Respondents on the notice they are entitled to, without weight. See OFOLETE V. THE STATE (2000) 12 NWLR (PT. 681) 415.

I am aware that in the Respondents’ brief of argument, it was stated to the effect that the Respondents are entitled to 14 days notice for the termination of their respective appointments pursuant to their letters of appointment.

Respondents’ counsel however argued that the Respondents are entitled to one month notice for the termination of their appointments because they had worked for more than 14 days before they were sacked, I must say that aside from the fact that there is no averment in this regard in the Statement of Claim, the stance of Respondents’ counsel as argued is definitely untenable in law. This is because the position of the law concerning documentary evidence is that it cannot be varied by oral evidence. See BUNGE V. GOVERNOR OF RIVERS STATE (2006) All FWLR (pt. 325) 1.

The Respondents cannot be heard to say that they are entitled to one month notice for the termination of their respective employments if as stated by their counsel, what they are entitled to, pursuant to their respective letters of appointment is 14 days. See DALEX NIG. LTD OMPADEC (2007) 2 SC 305.

I must, however, say that I do not see where it is provided in any of the letters of appointment tendered at trial that the Respondents are entitled to 14 days notice for the termination of their employment.

The law is clear on the point that a party to a case can properly elicit evidence in support of his case through cross-examination of his adversary’s witnesses. See ISAAC GAJI & ORS V. EMMANUEL D. PAYE (2003) FWLR (Pt. 163)-1.

It is therefore glaring that no credible evidence was adduced and placed before the lower court by the Respondents in relation to the aspect of their case that they are entitled to one month’s notice before their appointments can be terminated and a fortiori, one month salary in lieu of such notice. On the other hand, the Appellant, given the evidence .elicited from PW V that the Respondents are entitled to 14 days for this purpose clearly placed credible evidence before the lower court in support of its case in this regard.

The law is settled as to the damages to award an employee whose contract of employment is terminated in breach, The law is that in a claim for wrongful termination/dismissal, the measure of damages is, prima facie, the amount the affected employee would have earned had the appointment continued according to contract. Where, however, the employer on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the affected employee over the period of notice, bearing in mind that it is the duty of the affected employee to minimize the damages which he sustains as a result of the wrongful dismissal. See IFETA V. SPDC OF NIGERIA LTD (2006) All FWLR (Pt. 314) 305 in which the Supreme Court adhered to its numerous previous decisions on the award of damages for wrongful dismissal.

I have earlier stated in this judgment that the Respondents who premised their claim for N289,056,00 for salaries in lieu of notice, on the fact that they are entitled to one month’s notice for the termination of their respective employments led no credible evidence in the proof of the fact that they are indeed entitled to that period of notice, That on the contrary, the period of notice they are entitled to for the termination of their employments is 14 days as pleaded by the Appellant and evidence in support of which was elicited from PW V under cross-examination by Appellant’s counsel. Accordingly, the Respondents in the circumstances cannot be said to have proved their entitlement to the award of N289,056.00 as being what is due to them in lieu of notice and which was calculated on the basis that their appointments was determinable by one month’s notice. Indeed the point has to be made that the parameter applied by the lower court in calculating the award due to the Respondents in lieu of notice is glaringly shrouded in mystery. This is because the Respondents who held different appointments never pleaded the salary of each of them at the time their employments were terminated, How then did the lower court determine the monthly salary of each Respondent that it used in its calculation to arrive at the sum of N289,056.00.

From all that has been said, I do not find the Respondents to have proved their entitlement to one month’s notice and a fortiori salary of one month in lieu of such a notice. Accordingly the award made by the lower court based on the fact that the Respondents are entitled to one month’s salary in lieu of notice cannot stand. It lacks evidential basis and is at variance with the principle governing the award of damages for the breach of contract of employment. The award of the sum of N289,056,00 is therefore liable to be set aside.

ISSUE 3

This Issue questions the correctness of the judgment of the lower court vis-a-vis the evidence led at the trial.

Dwelling on the Issue, Appellant’s counsel in the main submitted that the learned trial Judge in assessing the evidence before him reached wrong conclusions and thereby gave a perverse judgment. Appellant’s counsel catalogued the aspects of the judgment that he considered to be wrong having regard to the evidence before the lower court, These are: (i) award of the sum of N289,056.00 to the Respondents; (ii) the order that all taxes and NSIFT contributions deducted from the plaintiffs’ salaries be remitted to the appropriate authorities: and (iii) the order that the Appellant should refund the sum of N30,450.00 to the Respondents being “other” deductions made from their salaries.

Appellant’s counsel submitted in the main that the evidence adduced in support of the findings was effectively challenged under cross-examination, Respondents’ counsel in the main submitted that the Appellant was bound by the evidence adduced by the Respondents as the Appellant rested its case on that of the Respondents. The case of Toriola v. Williams (1982) 4 SC 27 was cited in aid. Furthermore, he submitted that as the case of the Respondents was not demolished by cross-examination, the findings of the lower court cannot be termed as perverse and cannot be disturbed by this Court, The cases of Agbi v. Ogbe (2004) 116 LRCN 3372 at 3408 – 3409; and Ezeniba v. Iheneme (2004) LRCN 5163 at 5195 were cited in aid.

It is settled law that the burden of proving a particular fact is on the party who seeks to rely on it and who will fail if evidence in that regard is not adduced. See Sections 136 and 137 of the Evidence Act. Also see AKINYELE V, AFRIBANK PLC (2006) All FWLR (Pt. 305) 722. It is thus not a truism that a plaintiff must be entitled to judgment because the defendant did not adduce any evidence at the trial of a case, Similarly, a defendant who called no evidence at trial may still succeed in the action if he could demolish the case of the plaintiff under cross-examination, such that what is left of the totality of the evidence led by the plaintiff after cross-examination will not be worth acting upon by the trial court in favour of the plaintiff. See MECL LTD V. AGILITY AND BROTHERS ENTERPRISES NIG. LTD (2006) All FWLR (Pt. 298) 1289.

It is also settled law that averments in pleadings do not constitute evidence and that a court can only act on unchallenged and uncontroverted evidence that is relevant, admissible and credible. See DUROSARO v. AYORINDE (2005) All FWLR (pt.260) 167.

The three issues which the lower court set out for determination in its judgment, in the light of the contention of the parties are: (i) whether the appointments of the Respondents were wrongfully terminated by the Appellant; (ii) whether unlawful deductions were made by the Appellant from the salaries of the Respondents; and (iii) whether the Respondents are entitled to damages. The learned trial Judge found in favour of the Respondents in respect of all the three issues. In respect of the first of the issues, the learned trial Judge at page 129 of the Records said thus: –

“….From the evidence before the court all the plaintiffs appointment were confirmed by the Defendant and by paragraph 4 of their letter of appointment they are entitled to 14 days notice before their appointment can be terminated and it is established before the court that no notice was given to the plaintiffs before their appointment was terminated. To my mind this is a breach of contract of appointment.”

I have earlier said that the Respondents, having regard to paragraph 16 of the Statement of Claim, predicated their claim for salaries in lieu of notice on the fact that they are entitled to one month’s notice for the termination of their respective appointments. The Appellant did not deny terminating the appointments of the Respondents in breach of the period of notice to which they are entitled. It is however the case of the Appellant that the Respondents are entitled to 14 days notice or payment for such, in lieu of notice. The Appellant went further to say that the Plaintiffs’ entitlement does not amount to the sum claimed in paragraph 16 of the Statement of Claim. Surely, it cannot be said that the Appellant did not controvert the fact that the Respondents are entitled to one month’s notice or payment for such in lieu of notice for the termination of their appointments. I have before now said that the Respondents did not adduce any credible evidence in respect of their entitlement to the period of notice they relied on. This is as a result of the confirmation elicited from PW V that the period required for the termination of their respective appointments is 14 days, This goes to lend credence to the case of the Appellant and renders that of the Respondents as to their entitlement to one month’s notice, without weight. The learned trial Judge found to the effect that the Respondents are entitled to 14 days notice for the termination of their appointments. In this regard he relied on paragraph 4 of the letters of appointment of the Respondents, I cannot but note that what is stated in the said paragraph is “You are entitled to 14 days leave period after a year of service with the Company.” I simply do not see how this can properly form the basis of the holding or finding that the Respondents are entitled to 14 days notice for the termination of their appointments. In any event, if this is a right basis for the finding, what I find curious is the order the learned trial Judge consequently made, to wit: “that the plaintiffs are entitled to one-month salary in lieu of notice which I calculated at N289,056.00”.

Suffice it to say that this order made by the learned trial Judge definitely neither flows, nor has any basis in the finding that he made, Furthermore, as the Respondents themselves adduced no credible evidence to establish the fact that they are entitled to one month’s notice for the determination of their appointments, the order of the learned trial Judge cannot be anchored on any such non-existent evidence. The award is therefore glaringly perverse and is liable to be set aside.

The learned trial Judge equally ordered the Appellant to pay the Plaintiffs the sum of N289,056,00 as general damages. This order definitely has no basis in law. The case of IFETA V. SPDC OF NIGERIA LTD (supra) is clear in respect of damages in actions for breach of contract of employment. Surely, a sum claimed as general damages cannot be an entitlement of the Respondents flowing from their employments. The award of general damages therefore is perverse, liable to be set aside.

The order made by the learned trial Judge that the taxes and NSITF contributions deducted from the salaries of the Respondents be remitted to appropriate authorities forthwith, has earlier been considered in this judgment. Suffice it to say that as the trial Judge apparently found that the uncontradicted evidence adduced by the Respondents did not warrant granting them the claim in respect of the taxes and NSITF contributions, what he ought to have done was to have dismissed the said relief. It was not within his province to have made an order in favour of “appropriate authorities” who were not parties in the action and whose identities were not stated in any event. The order is therefore perverse to the extent that it is at variance with the claims before the lower court.

The lower court ordered the refund of N30,450 “other charges” to the Respondents, This sum was claimed in paragraph 17(c) of the Statement of Claim. The averment in support of the claim appears to be in paragraph 21 of the Statement of Claim. The Appellant denied paragraph 21 in the Statement of Defence. See paragraph 3 thereof and in paragraph 10 also averred that paragraphs 20 and 21 of the Statement of Claim are incompetent, abusive of the process of court, frivolous, malicious and have not disclosed a reasonable cause of action. The “other charges” were said to have been deducted from the salaries of the Respondents. As already slated, only five

of the Respondents gave evidence at the hearing of this action jointly instituted by 21 persons in respect of the termination of their different appointments with the Appellant. The action was not instituted in a representative capacity. It has not been suggested that the five Respondents who testified, did so for themselves and on behalf of the other sixteen, Not all the letters of appointment of the Respondents, pay slips and termination letters were tendered at the trial. PW1, under examination-in-chief, testified that N30,450,00 was deducted from his salaries as other charges; PW 2 testified that over N30,000,00was deducted from his own salaries; PW3 gave the sum as it relates to him as N30,000,00; PW4 did not testify about the claim; and PW 5 referred the court to the Statement of Claim in order to know the sum deducted from her salaries in respect of the claim. The pertinent question (even without considering the evidence of these witnesses under cross-examination) is whether any credible evidence was ever adduced by the Respondents in support of the said claim? The clear answer is that there is no credible evidence adduced by the Respondents in this regard. It is to be noted that the averment in paragraph 21 of the Statement of Claim upon which the claim for “other deductions” was predicated disclosed the exact amount deducted from the salaries of each Respondent to be N1,450,00. This being the case, the evidence adduced by or through the Respondents that testified goes to no issue, inasmuch as the same is at variance with the averment in paragraph 21 of the Statement of Claim.

Definitely, it cannot be argued that evidence which goes to no issue is credible. Accordingly, the order for the refund of N30,450,00 to the Respondents by the Appellant is glaringly perverse as it is not based on any credible evidence.

From all that has been said and which is to the effect that orders 2, 3, 4 and 5 are perverse, all the said orders are accordingly liable to be set aside.

Issue 3 therefore must be and is accordingly resolved in favour of the Appellant.

The Appellant has prayed that this Court should set aside the judgment of the lower court. I do not think the success of Issues 2 and 3 of the Issues for determination in this appeal can properly result in the selling aside of the whole of the judgment of the lower court. This is so because the Appellant never appealed against the order of the lower court that the termination of the Plaintiffs’ appointments was unlawful. However the order awarding the Plaintiffs/Respondents the sum of N100,000,00 as costs of the action must necessary fizzle into nothingness given the substantial success of the appeal. Accordingly, given the resolution of Issues 2 and 3 of the Issues for the determination of the appeal in favour of the Appellant what need be set aside are the following Orders made by the lower court: –

“1. That the plaintiffs are entitled to one-month salary in lieu of notice which I calculated at N289,056,00.

2. That the Defendant remits all taxes and NSITF contributions deducted from the plaintiffs’ salaries to the appropriate authorities forthwith,
3. Refund of the sum of N30,450,00 to the Plaintiffs as “other” deductions made in the plaintiff’s (sic) salaries.
4. I order the Defendant to pay the plaintiffs the sum of N289, 056,00 as general damages.
5. The sum of N100, 000.00 (One hundred thousand Naira) only is paid to the Plaintiffs by the Defendants (sic) as the cost of this litigation.”

This is however not to say that the judgment of the lower court will not be set aside. This is because in resolving Issue 1 for determination of the appeal in favour of the Appellant, I held that the instant action is incompetent having not been properly constituted as regards the plaintiffs therein. Given this holding, the order I am enjoined by law to make is one striking out the instant action and not one touching on the merits. Accordingly, the judgment of the lower court delivered on 25/7/2005 is hereby set aside and an order striking out the action for being incompetent is substituted therefor.

Costs in the sum of N50, 000.00 is awarded in favour of the Appellant and against the Respondents jointly and severally.

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Other Citations: (2009)LCN/3390(CA)