Abubakar Tatari Ali Polytechnic V. Charles Maina (2005)

LawGlobal-Hub Lead Judgment Report

SANUSI, J.C.A.

At the Bauchi State High Court (hereinafter called “the lower court”), the respondent as applicant filed an application dated 27/3/1998 to enforce his fundamental rights against the present appellant as respondent thereat, pursuant to Order 2 rule 1 of the Fundamental Rights (Enforcement Procedure) Rules of 1979. In the application he sought the following reliefs:

1. A declaration that the act or series of acts of the respondent’s towards or concerning or with regards to the applicant constituted a violation of the applicant’s fundamental rights.
2. An order directing the payment of N1,000,000.00 general damages for breach of the applicant’s fundamental human rights.

The facts which gave rise to the aforesaid claims are briefly summarized thus:

The respondent herein was under the employment of the appellant, herein as officer in charge of expenditure. Part of his duties includes payments of expenditures approved by the bursar and the rector of the appellant’s institution. Sometimes in May, 1997, one Alhaji Bababe Shehu who was officer in charge of medical services approached the respondent with regard to or for payment of the sum of Three thousand, eight hundred and fifty naira earlier approved by the rector as burial expenses in respect of one Audu Usman, a deceased employee of the appellant. Due to some delay in the administrative processes the said amount was paid to Alhaji Bababe Shehu as an I.O.U. by the executive officer account, one Mallam Adamu Muhammed, before the payment voucher for the amount was prepared and processed. The voucher was prepared in the name of the overseer medical services. It was alleged that the respondent later refused to pay the said amount on seeing that the payment voucher had already been signed.

On discovering this development the respondent herein was issued with a query which he replied. Subsequently, the management of the appellant constituted a committee to investigate the matter. The respondent was invited by the committee before which he explained his own case but the committee did not become satisfied by his explanation. As a corollary, the management of the appellant’s institution terminated the appointment of the respondent in accordance with its conditions of service. The respondent thereupon became disenchanted with the decision of his employer, the appellant, to terminate his appointment and he thereupon challenged the decision of his termination by applying to the lower court for the enforcement of his fundamental right to fair hearing at the lower court, alleging that he was not given fair hearing before his appointment was terminated. In a considered ruling the lower court granted all the reliefs sought in the application by the applicant/respondent herein as adumbrated hereinbefore.

Aggrieved by the decision of the lower court, the appellant appealed to this court on four grounds of appeal. The four grounds of appeal are reproduced hereunder without their particulars.

Grounds of Appeal

1. The learned trial Judge erred in law when he held that the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979, are not mandatory and that the appellant has waived his right to object to its non-compliance by taking steps in the proceedings. The learned trial Judge erred in law when he entertained

the suit under the Fundamental Rights (Enforcement Procedure) Rule, 1979 when in fact the court lacked

jurisdiction to do so.

2. The learned trial Judge erred in law in awarding the sum of N50,000.00 to the respondent on the ground that the allegation of crime leveled against the respondent was neither reported to the police nor tried by a court of law.
3. The learned trial Judge misdirected himself on the facts when he held that the respondent was dismissed vide exhibit “E”.
4. As is the practice in this court, parties filed and exchanged briefs of argument. From the aforementioned four grounds of appeal, the appellant also distilled four issues for the determination of the appeal which are:

a. Whether the learned trial Judge was right in law to have held that the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979 are not mandatory and that the appellant has waived his right to object to its non-compliance by taking steps in the proceedings?

b. Whether the learned trial Judge had jurisdiction to entertain the suit under the Fundamental Rights (Enforcement Procedure) Rules of 1979?

c. Whether the learned trial Judge was right in awarding the sum of N50,000.00 (Fifty thousand naira) only to the respondent on the ground that the allegation of crime leveled against the respondent was neither reported to the police nor tried by a court of law?

d. Whether the learned trial Judge has not misdirected himself on the facts when he held that the respondent was dismissed vide exhibit “E”?

On the other hand, the respondent’s counsel in his brief of argument formulated two issues for determination which are set out below. The said issues are as follows:

(i) Whether in view of the apparent failure of the respondent to file an affidavit of service as required by Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and the facts that the respondent’s claim is rooted to the issue of termination of the employment, the lower court had jurisdiction to entertain the matter as it did?

(ii) Was the termination of respondent’s appointment based on allegation of crime, and if yes then whether this amounts to a violation of the fundamental rights to fair hearing and entitles him to an award of damages?

The issues for determination formulated by the appellant appear to me to have captured all the four grounds of appeal and are more encompassing than those proposed by the respondent. They have also incorporated the two issues raised by the respondent. I therefore choose to be guided by the issues raised by the appellant in the determination of this appeal. I note that, issue No. 2 proposed by the appellant is also similar to the 2nd leg of the respondent’s issue No. 2. Both issues relate to jurisdiction. It is always the practice that issue of jurisdiction raised by a party or parties must always be thrashed out before other issues are considered. I shall therefore first of all consider that issue touching on jurisdiction before considering other issues if at all the need arises.

On this 2nd issue, it is submitted by the learned counsel for the appellant that although the respondent’s claim at the lower court was for alleged violation of fundamental rights, such claim was however extricably tied to the issue of the termination of his appointment by the appellant. He argued that the genesis of the claim under the fundamental right enforcement procedure arose from the act of termination of the respondent’s employment by the appellant. He further argued that it could not be possible to determine the alleged violation of the respondent’s fundamental right without necessarily considering whether the termination was wrongful or not. He finally submitted on this issue, that the proper procedure the respondent should have used in commencing his action at the lower court was by filing writ of summons rather than suing under Fundamental Right (Enforcement Procedure) Rules of 1979. He cited in support of these submissions the case of Egbuonu v. Borno R.T.C. (1997) 54 LRCN 2736 at 2738 Ratio 1 and 2 also reported in (1997) 12 NWLR (Pt. 531) 29. He urged this court to hold that the lower court lacked jurisdiction to entertain the applicant’s/respondent’s claim under the Fundamental Right (Enforcement Procedure) Rules of 1979.

In his reply, the learned counsel for the respondent submitted that although he conceded that it was the termination of the respondent’s appointment that gave rise to this action, the same facts also gave rise to multiple causes of action at the same time. He further argued that where that was the situation, the party aggrieved could litigate all the causes of action arising in the appropriate court. He cited the case of Egbuonu v. BRTC (supra).

There is no doubt that the reliefs sought by the respondent/applicant did not specifically include claim of wrongful termination of his appointment by the respondent (appellant herein). The applicant merely restricted his claim to breach of his fundamental right by not giving him fair hearing. It is trite law however that in order to determine whether a cause could come under the Fundamental Right (Enforcement Procedure) Rules of 1979, the proper approach is to closely examine the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon. If such facts disclose that a breach of fundamental right is the main plank, then redress may be sought through the Rules. See Sea Trucks Nigeria Ltd. v. Anigboro (2001) 2 NWLR (Pt.696) 159; (2001) 1 SC (Pt.1) 45. A close look at the reliefs claimed by the applicant/ respondent herein, clearly shows that although the genesis of such claim at the lower court flowed from or was grounded on the alleged breach or violation of fundamental right, such alleged breach was what led to the termination of his appointment by the appellant which was infact the main grouse of the applicant/respondent. It is therefore rightly tied to the issue of the termination of his appointment. That is a common ground of both counsel for the parties. Infact the learned counsel for the respondent conceded rightly in my view. (on page 5 of his brief) when he submitted that, although it is the termination of the respondent that gave rise to this action the same facts could be said to have given rise to multiple causes of action at the same time. From the facts of this instant case, the case borders principally on unlawful or wrongful termination of the respondent’s appointment by the appellant. In this situation the appropriate procedure the respondent should have taken was to commence the said action by writ of summons. See Sea Trucks Nigeria Ltd. v. Pyne (1999) 6 NWLR (Pt. 607) 514 or in the alternative, since the facts gave rise to multiple causes of action such as breach of his fundamental right and wrongful termination of his appointment, he should have brought two different actions at the same time. That is to say, one by writ of summons under the Bauchi State High Court (Civil Procedure) Rules as well as under the Fundamental Rights (Enforcement Procedure) Rules of 1979 see Egbuonu v. BRTVC (supra).

As I posited above, the main complaint of the respondent is centred on wrongful termination of his appointment. The alleged breach of his fundamental right resulted in the termination of his appointment, even though he did not claim reinstatement but damages. To my mind therefore, the proper procedure he should have adopted is not through fundamental right enforcement procedure rules. See also Tukur v. The Government of Taraba State & Ors. (1997) 6 NWLR (Pt. 510) 549; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517 at 548. Thus, in the light of the above discussion, I am inclined to agree with the appellant’s counsel that the respondent/applicant was wrong by bringing the action at the lower court under the Fundamental Right (Enforcement Procedure) Rules of 1979 instead of applying for writ of summons under the Bauchi State High Court (Civil Procedure) Rules. The lower court therefore lacks jurisdiction to adjudicate on the matter. In this circumstance, the proper order to be made in the surrounding circumstance of the suit which borders on want of jurisdiction on the part of the lower court is to strike out the suit and it is hereby so struck out. The second issue is therefore resolved in favour of the appellant against the respondent herein.

At any rate, in the event that I am wrong, I will still consider the other issues raised for the determination of the appeal and determine the appeal on the merit.

Issue No: 1

On this issue, the learned appellant’s counsel queries whether the non-compliance by the applicant with the provisions of Order 2 At rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules of 1979 has rendered the entire application before the lower court incompetent. The learned appellant’s counsel submitted that such non-compliance is fatal and has therefore rendered the application incompetent and has deprived the lower court the jurisdiction to entertain and determine the application. It was argued by him, that the requirements of Order 2 rule 1(4) are so mandatory and are so important that they can not be waived. He cited case of Re Appollos Udo (1987) 4 NWLR (Pt. 63) 120 at 121. In his reaction to the above submissions by the learned appellant’s counsel, the learned counsel for the respondent submitted that although compliance with the provision of Order 2 rule 1(4) is necessary, such non-compliance would not render the entire application incompetent especially where the complainant (i.e. applicant) has waived such non-compliance. See Kudu v. Aliyu (1992) 3 NWLR (Pt. 231) 615. He also argued that the appellant/respondent also failed to establish before the lower court that such non-compliance had occasioned any miscarriage of justice on it since it had even taken steps in the proceedings. See O’dua Investment v. Talabi (1997) 10 NWLR (Pt.523)1; (1997) 7 SCNJ 600 at 657; Mil. Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675.

Perhaps it will be apt to set out below the provisions of Order 2 rule 1(4) of the Fundamental Right (Enforcement Procedure) Rules of 1979. Its provisions read thus:

Order 2 rule 1(4) states:

“1 (4) An affidavit giving the names and addresses of and the place and date of service on all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing and if any person who ought to have been served under paragraph 3Â Â as not been served, the affidavit must state the facts and the reason why service has not been effected, and the said affidavit shall be before the court or Judge on the hearing of the motion or summons.”

There is no doubt that the respondent as applicant at the lower court did not comply with the provisions of the rules reproduced hereinafter. Both counsel are agreed on that. The issue now is what is the effect of such non-compliance with the aforementioned rules in the light of the circumstance of the instant case? I am mindful of the decision in the case of Re Appollos Udo (supra) wherein it was held that non-compliance with Order 2 rule 1(4) (supra) renders the motion incompetent and deprives the court of jurisdiction to entertain the motion. The case is certainly not on all fours with the instant appeal. This is because while Udo’s case had to do with whose responsibility it was to file affidavit as required by Order 2 rule 1(4) of the Rules (supra), in the instant case the issue centers on whether failure to file the affidavit is fatal. I think the effect of failure to comply with Order 2 rule 1(4) of the Rules all depends on the circumstance and peculiarity of each given case. In the instant case, it is clear that the appellant did not raise the issue of non-compliance with the rule in question at the time the motion was filed even though it was seemingly aware for the non-compliance. It still went ahead to participate at the hearing of the application despite the non-compliance on the part of the appellant/respondent herein and did not also raise any objection. It can therefore be said to have waived such non-compliance. Now, even if the submissions of the appellant’s counsel that such non-compliance cannot be waived is correct, will such non-compliance render the application incompetent in the surrounding circumstance. I think the purpose of rules of court is to ensure the affairs of court are carried out in an orderly fashion with reasonable degree of certainty that prescribed acts have been duly complied with by the competing parties in the interest of justice. See FSB Int. Bank Ltd. v. Imano Nigeria Ltd. (2000) 11 NWLR (Pt.679) 620; (2001) 7 SC (Pt.1) 1. Since everything is centred on “the interest of justice” then such interest will certainly and surely abhor to see that our courts are dogmatically enslaved or have tied themselves to their rules even at the expense of occasioning or causing injustice. This is moreso, because the rules themselves are meant and intended to promote justice. The rules are certainly not meant or aimed at causing injustice or to be engines used to inhibit the promotion of justice. Our jurispondence is now filled up with multiplicity of decided authorities of this and apex courts showing their attitude to non-compliance with rules. For instance, in Ezegbu v. FATB Ltd. (1992) 1 NWLR (Pt. 220) 699; Niki Tobi, J.C.A. (as he then was) had this to say:

” … to me rules of court are meant to be obeyed, of course, that is why they are written. There should be no argument about that. But then, there is a “caveat”, if I may lazily call it so, and it is that their disobedience can not or better still, should not be slavish to the point that justice of the case is destroyed or thrown overboard. The greatest barometer as far as public is concerned, is whether at the end of the litigation process, justice, that very elastic and elusive expression, has been done to the parties. Therefore, if in the course of doing justice, some harm is done to the same procedural rule, which eventually hurts that rule the court should be happy that it took that line of action in pursuance of justice. This court and indeed, any other court for that matter can not myopically or blindly follow rules of procedure and fall into a mirage and get physically and mentally lost.”

See also ACB v. Haston Nig. Ltd. (1997) 8 NWLR (Pt. 515) 110; Nneji v. Chukwu & Ors. (1988) 3 NWLR (Pt. 81) 184; (1988) 1 NSCC Vol. 19 (Pt. 1)..; Anatogu v. Anatogu (1997) 9 NWLR (Pt. 519) 49; Mil. Gov., Imo State v. Nwauwa (supra).

It is plain and clear that the appellant as respondent at the lower court did not object about the non-compliance and had actively participated at the hearing of the motion. It also did not show that the non-compliance had occasioned any miscarriage of justice or caused it any prejudice. For it to now claim that the non-compliance had rendered the application incompetent even though it fully participated in the proceeding is to say the least on attempt to resort to mere technicality. Courts are always enjoined to do justice in any case that comes before them and should not be deterred by issues raised on sheer technicalities, particularly where such issues relate to procedural irregularities which are curable. See A.-G., Bendel State v. A.-G., of the Federation (1983) 1 SCNLR 239; (1981) 10 SC 1. The effect of all that I have said above is that the appellant had taken steps in the proceedings and therefore the non-compliance with the rules in this regard did not render the application incompetent in the light of the circumstance of this case. The first issue is therefore resolved against the appellant and in favour of the respondent.

Issue No.3

The 3rd issue is whether the lower court was justified in awarding N50,000.00 to the respondent on the ground that the allegation of crime leveled against him was not reported to the police. It is the submissions of learned counsel for the appellant that the respondent did not complain/or challenge the wrongful termination of his appointment but simply claimed damages for the alleged violation of his fundamental right. He submitted therefore that the lower court was wrong in awarding damages to the respondent on the ground that the allegation of misappropriation of fund was neither reported to the police for investigation nor tried by court of law. He argued that by awarding damages by the court on that ground the lower court brought extraneous matter and it had made a case for the respondent. He cited and relied on the case of Union Beverages v. Owolabi (1988) 1 NWLR (Pt. 68) 128 at 128; Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167; (1995) 28 LRCN 295 at 297 R 7. He argued further that the trial Judge was wrong to have raised such issue and award damages. He stated that the trial Judge was incompetent to raise the issue suo muto and also to have proceeded to award damages. See Pascutto v. Adecentro (Nig) Ltd. (1997) 11 NWLR (Pt.529) 467; (1997) LRCN 2627 at 2661 at 2662 R 6.

Replying, the learned counsel for the respondent submitted that the termination of the appointment of the respondent was tied to the allegation of misappropriation as shown in exhibit B. He argued that failure to arraign the respondent before any court of law or to allow him to participate in the meeting referred to in exhibit C where deliberations leading to the conclusion that his defence lacked merit and where the decision to terminate his appointment was taken, amounted to violation of his fundamental right to fair hearing. He referred to Anyebe v. Adesiyan (1997) 5 NWLR (Pt. 505) 403 at 432. The learned respondent’s counsel further submitted that by the participation of some of his principal accusers at the deliberations of the committee, the appellant became Judge in its own cause especially since the respondent was not present at the committee sittings where the decision to terminate his appointment was taken. He argued that such was gross violation of his right to fair hearing. He referred to SBN Plc. v. MPI Ent. Ltd. (1997) 3 NWLR (Pt. 492) 209.

It is the common ground between the two learned counsel for the parties that it was the event of the termination of appointment of respondent that gave rise to this action.

Before I closely consider this issue, I think it will be pertinent to refer to the record of proceedings of the lower court so as to appreciate what led it to award the damages of N50,000.00 complained of by the appellant. The lower court in its judgment stated thus on page 26 of its record:-

“When a person is accused of a crime, once the hearing body is anything less, then a judicial body vested with criminal jurisdiction and administrative body lacks jurisdiction and competence to the issue (sic). For such body is not a court. Only a court vested with criminal jurisdiction is competent to determine such issue. See also Denloye v. M.D.P.D.C.(1968) All NLR 366.”

I am satisfied from the material before me that the issue of criminal misappropriation leveled against the applicant was neither investigated by the police nor tried by a competent court or tribunal before the applicant was dismissed. This application therefore succeeds. Accordingly, I hereby make the following orders … ”

This issue can only be adequately treated if it is broken into three sub-issues, namely:

a. whether there was actually any breach of the respondent’s fundamental right of fair hearing, whether it is a condition precedent for the appellant’s case to be investigated by the police and tried by a court of law before his appointment could be terminated?; and

b. whether the lower court was justified in awarding the damages in question?

In considering the first sub-issue mentioned above, it will be apposite to refer to the affidavit evidence relied on by both parties at the hearing of the application. The relevant averments in the affidavit supporting the motion are reproduced below, where the respondent averred:

Paragraphs

18. That on the 24th June, 1997 the Bursar invited myself, the CEO and Alhaji Bababe, I narrated all that happened to the Bursar and therefore we were all asked to go.
19. That nothing was then heard of on the transaction until the 20th July, 1997, when I was invited to appear before the Executive Committee which was holding a meeting with all the members in attendance including the Chief Accounts and Alhaji Bababe Shehu.
20. That the Rector then confronted me with the allegation of an unredeemed note which he said had reached his office. I narrated the entire transaction to the Executive Committee, after which I was asked to go. The meeting continued after my exit with both CEO and Alhaji Bababe Shehu in attendance after which it was decided that I be served with query.
21. I was served with a query dated 31/7/97. Annexed and marked exhibit B is a copy of the query.
22. That I replied to the said query stating the position of the transaction. Annexed hereto and marked as exhibit C is a copy of my reply to the query.
23. That on the 6th June, 1997 I was handed a suspension letter. Annexed hereto and marked as exhibit D is a copy of the said suspension letter.
24. That on 6th August, 1997, I handed over to my cashier, Isa Baba in line with the suspension letter.
25. That on 11th August, 1997, the respondent purportedly terminated my appointment. Annexed herewith and marked as exhibit E is the letter of terminated (sic) served on me by the respondent. (Italics supplied by me).

The appellant herein in his response denied some of the above averments of the applicant/respondent in its counter affidavit where he stated, inter alia:

Counter-affidavit

Paragraphs

“4. That it is not true that the said Alhaji Bababe Shehu and Mallam Adamu Moh’ d were part of the meeting in which the applicant was invited to appear before the Executive Committee.

5. That it is not true that the applicant’s right to fair hearing has been violated by the respondent. 6. That the applicant has been given fair hearing in the matters.

It is noted by me, that the applicant i.e. respondent herein did not file any further-affidavit countering what the respondent i.e. appellant herein denied in its counter-affidavit set out above. Perhaps that might be the reason why the lower court held, rightly in my view as follows in its judgment:

“There is nothing before me, besides the averments in the affidavit to guide me to reach a conclusion that these two people Alhaji Adamu Moh’d (CEO) and Alhaji Bababe Shehu were members of the Management or Executive Committee as alleged by the applicant. This is a serious assertion which required calm proof and not just speculation. I am therefore unable to hold based on the materials before me, that both Alhaji Adamu Moh’d (CEO) and Alhaji Bababe Shehu were members of the Committee and took part or got in the proceedings that had to lead to the eventual termination of the applicant.”

From the averments of the applicant/respondent (herein) he was invited to present his defence and was later given query letter which he replied to stating his defence. I do not at all share the view expressed by the learned counsel for the respondent that his client must remain or be present throughout the deliberations of the committee. All that is required, is for the committee to write him and confront him with the allegation or accusation made against him for him to admit or deny. He was given chance to do so. He therefore needs not be allowed to remain around at the deliberations of the Committee where his fate was being determined. I therefore do not agree with the submissions that he was not given fair hearing. It needs to be stated here that the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. Rather, it is whether a party who is entitled to be heard before deciding, had in fact actually been given the opportunity of being heard. See SBN Plc v. MPI Ent. Ltd. (supra). See also General Oil Ltd. v. Ogunyade (1997) 4 NWLR (Pt. 501) 613; Isamade v. Okei (1998) 2 NWLR (Pt. 538) 455; Adamu v. Sadi (1997) 5 NWLR (Pt. 504) 205; Orugbo v. Una (1997) 8 NWLR (Pt. 516) 255. I am therefore of the view, and in the light of authorities cited above that the applicant/respondent was given fair hearing.

Coming to the second sub-issue, it is noted by me that the lower court heavily relied on the fact that the respondent’s case was not referred to the police for investigation when it suo muto raised such issue. It would appear to me that it was trying to make a case for the respondent which he did not himself try to make for himself. It tried to make a case different from the one he presented before it. It is trite law that trial courts must always confine themselves to the issues raised by the parties before them. See Union Beverages v. Owolabi (supra); Olatunji v. Adisa (supra). A trial court lacks the authority to raise issue suo muto and make pronouncement on it without affording adequate opportunity to the parties or their counsel to address it on such issue it raised. See Pascutto v. Adecentro (supra).

Now, even if the court was right in raising the issue, and since such issue centred on the termination of the respondent’s appointment by the appellant, is it a precondition that before an employer terminates appointment of an employee on grounds of allegation of crime, such employee or servant must be tried by a court of law and convicted? I did not think so. In saying so, I rely in the case of Yusuf v. Union Bank of Nig. Ltd. (1996) 6 SCNJ 203 at 214; (1996) 6 NWLR (Pt.457) 632 where the Supreme Court per Wali, J.S.C. said as below at page 214.

“It is not necessary nor is it a requirement under section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.”

It is my view, that rule of natural justice and fair hearing simply requires that an employee so accused is given adequate notice of the allegation leveled against him to enable him make presentation of his defence. Trial by a court of law is of no moment and is not the requirement of the law. See Arinze v. First Bank of Nigeria Ltd. (2000) 1 NWLR (Pt. 639) 78. The lower court was therefore wrong in holding that trial of an employee accused of committing an act which is pregnant with criminality must be tried in a court of law or that failure to so try him in a court of law amounts to breach or violation of his fundamental right to fair hearing.

The third and last sub-issue has to do with the award of damages by the lower court in the circumstance. I said earlier that there had not been any violation of the respondent’s fundamental right to fair hearing. I also stated hereinbefore that trial or conviction by a court of law is neither a precondition before an employee’s appointment is terminated by his employer nor does the failure to try such an employee before a court of law amount to breach or violation of his fundamental right. Now since the lower court based its ground awarding the damages of N50,000.00 on either or both of those grounds, there is no-how such award can be justifiable or legal. In the result, I therefore resolve the third issue in favour of the appellant.

Issue No.4

This issue queries whether the lower court has not misdirected itself on the facts when it held that the respondent was dismissed by his employers, the appellant. I am of the view that this issue does not deserve much dissipation and evaporation of energy. In the affidavit evidence filed and relied on by the parties only issue of termination of appointment of the respondent featured and was canvassed and not dismissal his appointment by the appellant. The latter merely terminated his appointment and did not or had never dismissed him. These are two distinct issues. The lower court throughout in its judgment pronounced on dismissal. Where it got that still remains very unclear to me. A court is not allowed to make a case for a party (see Pascutton v. Adecentro) or grant a relief not claimed by a party (see Oladunjoye v. Akinterinwa (2000) 6 NWLR (Pt.659) 92; (2000) 4 SC (Pt. 1) 19. The lower court was therefore wrong in holding that the respondent was dismissed. The issue is thus answered in favour of the appellant. All the issues but one have been resolved in favour of the appellant. Even the 1st issue which was resolved against the appellant could not change the entire result or affect the result of the appeal adversely.

In the whole, I am of the view that, the appeal is meritorious. It succeeds and is accordingly allowed by me. The decision of the trial court/lower court is hereby set aside and the action is struck out. The damages awarded by the trial court if it had been paid to the respondent by the appellant should be refunded to it. There is no order as to costs.

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Other Citations: (2005)LCN/1696(CA)