Daniel M. Ogbaje V. Abuja Investment and Property Development Company Limited (2007)

LawGlobal-Hub Lead Judgment Report

OYESISI F. OMOLEYE, J.C.A.

This is an appeal from the judgment of U. I. Ndukwe-Anyanwu J. of the High Court of the Federal Capital Territory, Abuja sitting at Bwari delivered on 25/05/05.

The appellant as plaintiff claimed against the respondent as defendant for the following:

“(a) An order of Court directing the Defendant to reabsorb the Plaintiff and restore him to his position as General Manager (Investment).

(b) An order directing the Defendant to pay him all his salary arrears from the 1st of June, 2003 till he is reabsorbed.

(c) An order of Court directing the Defendant to restore to him all his earned promotions, leaves and leave allowances, housing allowances and all other benefits and perquisites of his office until his retirement age

pursuant to the conditions of service of the Defendant.

(d) A perpetual injunction restraining the Defendant from victimizing or further victimizing the Plaintiff or denying him of his means of livelihood and sustenance without justification.”

Pleadings were filed and exchanged by parties. The respondent denied all the claims of the appellant. At the hearing the appellant testified and tendered Exhibits “A” – “G”. The respondent called one witness and tendered two Exhibits “H” & ”J”.

The case of the appellant is that he is an employee of the respondent by the letter of appointment dated 21/02/95, Exhibit “A”. However on 10/05/2000, he was posted on the directive of the Permanent Secretary, Ministry of the Federal Capital Territory by the respondent to one of the respondent’s subsidiaries, Capital Hotels Plc as Managing Director/Chief Executive Officer. Subsequently, Capital Hotels Plc was privatized by the respondent in May, 2003, the appellant then ceased to be its Managing Director. The appellant wrote to the respondent in June, 2003 vide Exhibit “E” for his absorption into the main services of the respondent company. Till date the respondent has not reacted in any way to the letter.

The respondent’s defence on the evidence of its sole witness is that the appellant resigned his appointment with the respondent when he, the appellant accepted his posting to Capital Hotels Plc.

The learned trial Judge after due consideration of the case for both parties delivered his judgment on 25/05/05 and held that the appellant’s acceptance of the appointment to Capital Hotels Plc brought to an end his employment with the respondent company thereby proclaiming the failure of the appellant’s claims.

Aggrieved by the judgment of the trial court, the appellant brought this appeal.

At the hearing of the appeal on 30/10/06, learned counsel for the appellant, Mr. B. O. Omale adopted his brief of argument and urged the court to allow the appeal, set aside the judgment of the trial court and make an order that the appellant be restored to his position in the employment of the respondent company.

Learned counsel for the respondent, Mr. O. O. Olowolafe adopted his brief of argument. He urged the court to affirm the judgment of the trial court and dismiss the appeal with cost.

Learned counsel for the appellant identified two (2) issues for determination. They are:

“1. Whether the acceptance of a posting effected by the appellant’s superiors to a subsidiary of the respondent amounts to a resignation of his employment with the respondent pursuant to the Staff Conditions of Service.

2. Whether the appellant is not entitled to be reabsorbed into services of the respondent when its subsidiary to which he was posted was privatized by it.”

Learned counsel for the respondent formulated a sole issue as follows:

“Whether the Learned Trial Judge rightly evaluated the evidence adduced in the case and consequently made the proper findings. ”

In the determination of this appeal I prefer and adopt the issues formulated by the appellant’s counsel as I consider these to be sufficient in tackling the points involved in the cases of both parties. However, it seems to me that the two issues are contiguous, interlaced and inseparable. I shall therefore take the two issues together.

Learned counsel for the appellant submitted, that based on the facts presented-in the trial court, the learned trial Judge drew wrong inferences and came to a wrong decision by not finding in favour of the appellant in the judgment which is the subject-matter of this appeal. Learned counsel for the appellant further submitted that ordinarily and normally, an appellate court would not disturb the findings of facts by a trial court but that there is an exception to this general rule and that is that, where such findings are unsound, the appellate court will assume the same position as the trial court in the assessment of inferences to be drawn from facts proved including documentary evidence and the appellate court would then be free to form its own independent opinion. He referred to the cases of:

(1) Raymond V. Allan (1934) 2 WACA p. 52 and

(2) Nnajiofor V. Ukonu (1985) NWLR (Pt. 9) p. 686 at p. 705 – 706.

It was argued by the learned counsel for the appellant that the evidence of the appellant via its sole witness, PW1 was mainly documentary. He urged this court which he said is perfectly so entitled, to examine the positions of the parties from the perspective of those documents and draw its own inferences therefore. He referred to Exhibit “A”, the appellant’s Letter of Employment and Exhibit “F”, the respondent’s Staff Conditions of Service and argued that these are the two documents that regulate the relationship of the appellant and the respondent. He in particular referred to Article 1.3 of Exhibit “A” which states thus:

“Every member of staff shall be obliged to serve the company faithfully and diligently within and / or outside Nigeria and to obey and execute all lawful instructions issued out to him or her.”

He also referred to Article 2.7 of Exhibit “F” which provides that:

‘In order to promote human resource development- transfer of skills and know – how as well as ensure the maximum utilization of the human resources within the company and its subsidiaries, an employee may be posted seconded or transferred wherever his or her services are considered most needed and useful in the interest of the company. Such movement of staff may be necessary to among other options:

(i) Fill a vacancy caused by leave, illness or resignation.

(ii) Provide on the job training,

(iii) Carry out a special assignment.”

Learned counsel contended that it was in the exercise of the above powers of the respondent over the appellant, that the respondent by Exhibit “G” appointed the appellant as Managing Director / Chief Executive Officer of Capital Hotels Plc consequent upon Exhibit “D” in which FCDA’s appointment of the appellant was conveyed to the respondent. The respondent was directed by FCDA to give effect to the appointment. He further contended that the respondent company by proxy owns 51% shares in Capital Hotel Plc, hence, the hotel is a subsidiary of the respondent company. On this deduction, he referred to the definition of “a Subsidiary Corporation” in’ the Black’s law Dictionary Sixth Edition at page 1428 as one in which another corporation, that is, a parent corporation owns at least a majority shares, that is, ownership of more than 50% shares. The parent corporation is therefore said to be in control of the subsidiary corporation.

It was submitted by the learned counsel for the appellant that it is rather unfortunate and highly unconscionable for the respondent to say that the appellant took a fresh appointment with the hotel to serve his own interest. He pointed out that the appellant was not interviewed for the post as it was never advertised. Rather the appellant was seconded by the respondent to head the hotel. He argued that the appellant did not apply for that post or any job with the hotel. It is very clear from the provisions of Article 1.3 of Exhibit “A” and Article 2.7 of Exhibit “F” that, the respondent reserved the right to post, second or transfer any of its employees to “where his services were considered most needed and useful in the interest of the company”. This was exactly what happened when the respondent seconded the appellant to one of the respondent’s subsidiaries, that is, Capital Hotel Plc. He pointed out that, subsequently when the respondent sold its shares in the hotel which was privatized, the respondent’s refusal of the appellant’s absorption into the respondent company is wrong. He observed further that the appellant did not take up-the said appointment by choice but by obeying instructions of his superior at work. Learned counsel for the appellant referred to the Chambers English Dictionary for the definition of “secondment” as, temporary transfer to another position, hence, ”secondment” is synonymous with “transfer’: He also referred to the New Webster’s Dictionary of the English Language, International Edition, 1993, at page 784 where the word “post” is defined as, “to appoint to a particular regiment etc…” and that ‘post’ is synonymous with ‘appoint’ Drawing an analogy from the army, he submitted, that in the army, a stranger cannot be appointed to a particular regiment or commission as a captain, but an appointee must have been already enlisted in and a member of the army. In the same vein, the appellant was already in the employment of the respondent before he was appointed to head the hotel, a subsidiary of the respondent company.

It is the contention of learned counsel for the appellant that the learned trial Judge raised two issues on his own motion, that is, “suo motu” thereby making a case for the respondent without giving’ parties especially the appellant the opportunity of reacting to those issues before going ahead to consider and determine the issues in favour of the respondent. The issues are firstly, that the learned trial Judge referred to and considered of a portion of Article 2.7.1 (d) of Exhibit “F” which provides as follows:-

“Therefore, payroll deductions and company contributions relating to these benefits would be remitted to the employee’s regular employer whose responsibility it is to ensure that the various plans and schemes are maintained in good standing throughout the period of secondment.”

He came to the wrong conclusion that the appellant failed to lead evidence to establish compliance by the respondent with the requirement of secondment. Learned counsel argued that the learned trial Judge misapplied the foregoing provisions of Article 2.7.1 (b), in counsel’s opinion they relate to staff of other establishments on secondment to the respondent company and not the other way round. The learned trial Judge also raised and determined this point on his own without being claimed by parties especially the respondent. Secondly, the learned trial Judge raised and also considered on his own motion the provisions of Article 2.7.1 (a) which state that:

“Secondment to and from the company would normally be for an initial period of (2) years and an extension for another period not exceeding (2) years may be mutually agreed between the parties”

He concluded wrongly that the appellant did not give evidence as to this basic requirement of secondment either in his oral evidence or in any correspondence with the respondent company. It was further canvassed by learned counsel for the appellant that since the appellant did not apply for any secondment, he did not have a duty to comply with those provisions referred to by the learned trial Judge and that indeed the duties are those of the respondent. The appellant did not breach any of the conditions of his employment such as would go to the root of the contract of employment thereby leading to the termination of his original employment. He referred to the case of:

Smeaton Hanscomb & Co. Ltd V. Sasson Setty Sons & Co. (1953) 1 WLR 1468 at 1470.

Learned counsel for the appellant submitted that a court has no power to grant a party what it did not ask for or prosecute a party’s case. He referred on this position of the law to the case of:

Ibori V. Agbi (2004) 6 NWLR (Pt.868) p. 78 at p. 132.

He urged this court to set aside the above wrong conclusions of the learned trial Judge.

It was therefore the contention of the learned counsel for the appellant that the decision of the learned trial Judge was in error when he ignored all the circumstances of the appellant’s case and came to the conclusion that the appellant made a choice when he took up the appointment in the hotel and that by so doing the employment of the appellant with the respondent ceased. The trial court also came to that erroneous conclusion when it observed that the appellant was not seconded, transferred or posted to the hotel as none of those three words was used in Exhibits “D” and “G”. Learned trial Judge’s treatment of the appellant’s appointment with the hotel as a fresh appointment was also done in error. He therefore urged this court to set aside these incorrect findings of the trial court.

In the construction and interpretation of the relationship of the appellant and the respondent vis-a-vis the movement of the appellant to Capital Hotels Plc, the learned counsel for the appellant also contended that the learned trial Judge did not take into consideration but completely ignored certain important portions of Article 2.7.1 of Exhibit “F”. According to him, the learned trial Judge ought to have adverted to Articles 2.7.1 @ & (d) which provide that:

“(c) When a staff member is seconded to another organization the company will maintain his/her compensation scale and progression therein throughout the period of secondment, only if such secondment was at the company’s request—

(d) As a rule, the secondment of staff does not affect the employer/employee relationship in existence prior to such secondment for this reason all secondment shall be undertaken in such manner that the employees status with respect to the following is not disputed:

i. Membership in a Pension Retirement Scheme.

ii. Gratuity entitlement.

iii. Car, Housing Loans, Advances, e. t. c.”

He opined that the combined effect of the provisions of the above quoted sub-paragraphs is that an employee’s position is never to be adversely affected by reason of his secondment to serve elsewhere outside the company and that his original position of employment ensures to him when he returns from secondment. Pursuant to those provisions, no other appointment can be made to the detriment of an employee, in this case the appellant.

Referring to Exhibit “E”, the Letter of Resignation submitted by the appellant, learned counsel for the appellant argued that the learned trial Judge made wrong assumptions which led to his erroneous conclusion that the appellant did not have the mandate to resign from Capital Hotels Plc and that if of a fact the appellant was on secondment, he ought to have carried the respondent along. Learned counsel for the appellant contended that the respondent having sold its entire shares in the hotel knew as well that the employment of the appellant with the hotel had become terminated.

That if the appellant had not resigned, the new owners of the hotel would have sacked him all the same.

Learned counsel for the appellant canvassed that Exhibit “A”, the appellant’s Letter of Employment is the document that made the appellant an employee of the respondent. Exhibit “A” guarantees the employment of the appellant until he attains the age of retirement. However, it was the respondent who on its own motion deployed him to Capital Hotels Plc which was owned by the respondent before the hotel was privatized. Counsel contended further that the employment of the appellant can only be terminated in accordance with the provisions of Chapter 12 of the Conditions of Service, Exhibit “F” in any of the following ways:

1. Termination by either party.
2. Retirement.
3. Redundancy.

The above stated conditions do not include acceptance of an assignment by the appellant in the respondent company’s subsidiary when such assignment is at the instance of the respondent. The finding therefore of the learned trial Judge that the appellant’s employment with the respondent ceased when he accepted to take up an appointment to work as MD/CEO of Capital Hotels Plc is not only wrong but amounts to the trial court making a new and a different contract for the parties, a power which the court does not possess. He referred on this point to the case of: Idoniboye-Obu V. N. N. P. C (2003) 2 NWLR (Pt. 805) p. 589 at p. 630.

It was further contended for the appellant that from the facts of the case as presented in the trial court vis-a-vis the position of the relevant laws regulating the relationship of the appellant and the respondent, it cannot be said that the appellant’s employment with the respondent has in fact been terminated. The appellant did not retire, was not retired and was not declared redundant, hence his employment with the respondent subsists. From the totality of the facts presented in the trial court, the learned trial Judge’s findings in his Judgment are clearly against the weight of evidence and unsupportable. He therefore urged this court to set them aside on the authority of:

Inwelegbu Vs.Ezeani (1999) 12NWLR (pt. 630) p. 266 at p. 278,

Consequently since the appointment of the appellant in Capital Hotels Plc was the directive of the respondent, there is an implication that at the instance of the respondent, the appellant would revert to his former position or place with the respondent at a future date. He referred to the cases of:

(1) Taduggoronno Vs. Gotom (2002) 4 NWLR (pt. 757) p. 453 at p. 491 and

(2) Shell Petroluem Develop. Coy Nig Ltd Vs. Nwaka (2003) FWLR (pt. 144) p. 506 at p. 523.

Counsel submitted that Exhibit “F” is the agreement of employment between the parties. The courts have always upheld the sanctity of agreements made by parties. Unless and until the employment of the appellant is terminated according to the terms of the conditions of service, Exhibit “F”, the employment still subsists. The appellant is therefore entitled to go back to the position he held before his appointment in the hotel. Expantiating further and in contrast with the case of termination of employment, learned counsel for the appellant submitted that the case in hand is not that of a wrongful termination of employment in which In line with the current position of the court a servant can not be forced on an unwilling master. He argued that the respondent is completely owned by the government through the FCDA, therefore both the appellant and the Managing Director of the respondent are employees of government and the appellant’s employment is not at the pleasure of the Managing Director of the respondent company.

Finally, it was urged for the appellant that this court should enforce the contract between the parties and restore the appellant to the position held by him before he left to serve the respondent in Capital Hotels Plc.

Contrariwise and in reply, the learned counsel for the respondent submitted that the appellant’s appeal touches on findings of fact of the trial court. He argued that the position of the law is that the evaluation of evidence and making findings on same is the duty of the trial court and an appellate court will only interfere with such findings if they are shown to be perverse and led to a miscarriage of justice as a result of failure to see and hear witnesses or when wrong inferences are drawn from facts by a trial court. He referred to the cases of:

(1) Adeye Vs. Adesanya (2001) 6 NWLR (Pt. 908) p. 1;

(2) Atungwu Vs. Ochekwu (2004) 6 NWLR (Pt. 901) p. 18 at p. 42 and

(3) Ebba Vs. Ogbodo 0984) 1 SCNLR p. 372.

He submitted further that an appeal is only a judicial examination of the conduct of trial in the lower court and not an avenue for re-hearing or the continuation of the original trial. He referred on this point to the case of:

Jatau Vs. Danladi (1995) 8 NWLR (Pt. 415) p. 592.

He opined that this court as is being called upon to do by the appellant has no power to re-evaluate the evidence led before the trial court and substitute the findings with its own.

It was further argued by learned counsel for the respondent that the issues raised by the appellant in the appeal are based on a gross misconception of the facts of the case as laid before the trial court. He referred to Exhibit “H”, the letter of Appointment of the appellant and Exhibit “J”, the Terms of Employment forwarded to the appellant in respect of his appointment in Capital Hotels. Both Exhibits were admitted in evidence without any objection from the appellant. Hence, the learned trial Judge’s proper conclusion that the appellant made a choice by taking up the new appointment offered him in Capital Hotels.

Continuing, learned counsel for the respondent contended that the appellant’s claim that posting, transfer and or secondment can be done by the respondent at anytime is a misconception. He canvassed that the correct position is stated in the evidence of Pw1 during trial that issues relating to appointment in the respondent company are done in writing and that the appellant in this regard could not furnish or tender the documents conveying his transfer, secondment or posting to Capital Hotels. The submissions of learned counsel for the appellant in this regard can therefore not take the place of evidence no matter how ingeniously presented by him. On this position of the law, he referred to the case of:

Anthony V. Government of Lagos State (2003) 10 NWLR (Pt. 828) p. 288 at p. 302.

Learned counsel for the respondent canvassed that the issues of Capital Hotels being a subsidiary of the respondent and the meanings of the word, “transferred”, ”secondment” and “posted” did not come up during trial. Therefore arguments in their regard can only be entertained in the appeal only if leave of this court had been sought and obtained by the appellant. The appellant did not obtain the required leave hence arguments in respect thereof do not relate to any of the issues formulated. The issues are therefore incompetent and should be disregarded. He referred to the case of:-

A. – G., Oyo State V. Fairlakes Hotels Ltd (1988) 5 NWLR (pt. 92) p. 1

He contended, that if indeed the appellant, was being posted, transferred or seconded to Capital Hotels, it would have been so clearly stated in Exhibits “D”, “G” & “H”. These Exhibits are so explicit in this regard as they refer to appointment and nothing more. The appellant also failed at trial to lead evidence as to how and when he was seconded, posted or transferred. The position of the law is that where a party fails to call evidence in support of his case or in rebuttal of the case of the opposite party, the trial court is entitled to resolve the matter against that party. He relied on the case of:

Agbi Vs. Ogbeh (2005) 8 NWLR (Pt. 926) p. 40 at p. 115

He urged this court in the result not to disturb the findings of the trial court.

Learned counsel for the respondent further submitted that all contracts including contract of employment can always be frustrated. He contended that the fact that the appellant took up another appointment without resigning his initial appointment is an act which operates as a frustrating factor on the employment he previously held with the respondent. What is more, it was shown from the evidence adduced at trial that the appellant had abandoned his position as the General Manager of the respondent. In his opinion no notice is required to be given to the appellant before the termination of a contract which has been effectively abandoned by him. On this point reference was made to the case of:

Adecentro (Nig.) Ltd V. Council of Obafemi Awolowo University (2005) 15 NWLR (Pt. 948) p. 290 at p. 312 & 314.

On the whole learned counsel for the respondent argued that the appellant’s appeal is not complaining of or faulting- the inferences drawn from admitted facts at trial but preposterous assumptions and intentions appropriated to the learned trial Judge. He therefore urged this court to find that the trial court rightly evaluated the evidence adduced before it, drew the proper inferences and reached sound conclusions.

The fulcrums of this appeal are hinged on the twin issues identified by the appellant, that is, whether the acceptance of an appointment by the appellant in Capital Hotels Plc amounted to a resignation of his original employment in the respondent company when the appointment was effected by the respondent. Secondly, whether upon the sale of the respondent’s entire shares in Capital Hotels, the appellant should not be taken back into the respondent company. However, I am of the opinion that the foundation upon which these fulcrums rest is, the intendment of the movement to or appointment of the appellant in Capital Hotels Plc. In order to properly resolve the issues involved in this appeal, it is germane to establish the relationship that existed between the parties before, when and after the appellant became the Managing Director/Chief Executive Officer of Capital Hotels Plc. Put in another way, whether that appointment meant a complete disengagement of the appellant from the employment of the respondent. In doing this, the instrument of the appointment of the appellant to capital Hotels must be scrutinized. This document is Exhibit “H”.

However, before proceeding to the examination of Exhibit “H”, it is apposite to make it clear that this document can not be viewed in isolation and outside the ambits of the original relationship of both parties. Put differently, Exhibit “H” must be interpreted in line and tune with the contractual obligations of the parties one to another prior to the operation of that document. This becomes imperative because it is not in dispute that there was a contractual relationship, that is, that of employment between the appellant and the respondent before the appellant’s appointment in Capital Hotels. The resolution of this matter can not therefore be limited to Exhibits “H” and ”J”, only. Exhibits “H” & “J” are the Letter appointing the appellant to Capital Hotel and the Terms and Conditions of the Employment respectively. Exhibit “A”, the first and original Letter of Offer of Appointment issued to the appellant by the respondent must therefore be considered and looked into as well in the resolution of all the issues involved in the appeal. Indeed it is from Exhibit “A” that the subsequent Letter of Appointment, Exhibit “H” flowed. Put differently, Exhibit “A” is the stem, the channel for conveying Exhibit “H” to the appellant.

The position of the law generally is that it is the primary duty of a trial court to evaluate evidence and ascribe probative value to same. This is because it is the trial court that has the opportunity and privilege of seeing, hearing and assessing witnesses called in the proof and establishment of the issues brought before it. Therefore where the credibility of witnesses based on their demeanor is in issue and the evaluation of evidence has been done in accordance with all laid down principles of law, the trial court’s findings would not be disturbed by an appellate court. However, where it is shown that the findings and conclusions of a trial court could not properly follow from the evidence before it, such findings and conclusions will be held to be perverse and will be upturned for that reason by an appellate court. It is settled law that an appellate court is in as good a position to evaluate evidence as a trial court, come to different findings and substitute such findings for those of the trial court accordingly. See the cases of:

(1) Ngillari V. N. I. C. O. N (1998) 8 NWLR (Pt. 560) p.1 at p.20;

(2) Egesimba V. Onuzuruike (2002) 15 NWLR (pt. 791) p. 466 at p. 508;

(3) Julius Berger (Nig.) Plc. V. Nwagwu (2006) 12 NWLR (pt. 995) p. 518 at p. 537 and

(4) Joe Golday Co. Ltd V. C D. B. Plc. (2003) 5 NWLR (Pt. 814) p. 586 at 608.

The appellant is calling into question the evaluation of the evidence adduced before the trial court in this case. What is being attacked is however not the credibility of the sole witness for the respondent but the interpretation and determination of the documentary evidence adduced by the parties. I am quite aware in line with the elementary rule of law as stated above that I am not to lightly esteem, toy or play with the findings of the trial court in this matter. I am also however not unaware of the exception to the said rule that, in appropriate cases where there is a valid reason, an appellate court has the responsibility to interfere with the findings of a trial Judge. In the interest of justice it is apposite to consider the grouse of the appellant in this regard. This is desirable in order to appropriately determine whether or not there is in fact any valid legal basis to interfere with the findings and conclusions of the trial court.

I shall now proceed to examine Exhibit “A”, the Letter of Offer of Appointment dated 21/02/1995. The appellant accepted the offer vide Exhibit “B”. Paragraphs 1 & 2 of Exhibit “A” refer to the Staff Conditions of Service of the respondent company, Exhibit “F” stating that “Inter alia” the appellant’s appointment is subject to those conditions. Consequent upon the confirmation of the appellant’s appointment by the respondent vide Exhibit “C”, the appellant became a full fledge staff of the respondent. See the definition of “Staff” in paragraph 1. 2. g. of Exhibit “F” as follows:

”1 2. —

g. “Staff” means all confirmed and unconfirmed staff of the Company excluding daily paid staff”

However, by Exhibit “D”, the Permanent Secretary, Ministry of FCT, informed the Managing Director of the respondent company of the acquisition of the majority of the shares in Capital Hotels Plc by the Federal Capital Development Authority through the respondent and also of the appointment of the appellant as the Managing Director/Chief Executive Officer of Capital Hotels. This decision was given effect to by the issuance of Exhibits “H” and “J” Letter of Appointment as MD/CEO of Capital Hotels and the Terms and Conditions of Employment in that regard to the appellant.

The question to ask and indeed the ”gravamen” of this appeal is, what then was the effect of the appointment of the appellant as the MD/CEO of Capital Hotels on his existing employment in the respondent company? Ordinarily, in line with the Conditions of Service Exhibit “F”, the employment of a staff of the respondent company ceases of he:

(a) resigns his appointment as appropriate;

(b) retires upon the attainment of the age of 60 years or 35 years of service, whichever comes first;

(c) is declared redundant and

(d) is invalidated out of service.

See the provisions of Chapter Twelve, paragraphs 12.2; 12.3; 12. 4. and 12. 5 of Exhibit “F”. The appointment of a staff may also be terminated on grounds of any misconduct under the provisions of Chapter Eleven, paragraph 11. 5 also of Exhibit “F”. As earlier on observed, at the time the appellant was appointed to Capital Hotels, he was a staff of the respondent company. As no evidence was adduced to establish that the appellant had been caught by any of the above conditions so as to make him cease to be a member of staff of the respondent company, he remains a staff of the respondent even after his appointment in Capital Hotels. I tend to be at one with the appellant’s counsel’s submission, which was subtly admitted by the respondent’s counsel that, the respondent company owns Capital Hotels being the majority shareholder of the hotel. This submission in my humble opinion is well founded. Indeed, the respondent’s counsel actually submitted that the respondent only used its majority shareholding in the hotel to secure a better employment for the appellant. In which case, it is safe to conclude that the appointment was effected and facilitated by the respondent.

In assessing and resolving Exhibits “F”, “H” & “J” on the issue of the status of the appellant on the taking up of the appointment in Capital Hotels, the learned trial Judge held that:

“The Plaintiff had made a choice by taking up the new appointment offered by the Capital Hotels Plc. That choice means that he swims or sinks with his new employer.

The court has found as fact (sic) that the plaintiff took up a new appointment when he accepted to work as Managing Director/Chief Executive Officer of Capital Hotels Plc. —”

I have perused the record of proceedings and I fail to see therein where evidence was adduced by the respondent to establish that the appellant ever approached it to ask for the alleged new appointment in Capital Hotels. There is nothing to show that the respondent was indeed under a duty to secure the alleged ”better employment” for the appellant. I also can not find anywhere on the printed record of proceedings where during trial, it was actually established that the appellant’s appointment with the Hotel was a fresh one. The learned trial Judge’s finding under reference is less that correct. I must say with due respect to the learned trial Judge that this finding represents no more than a surmise and opinion geared and calculated to formulate a contractual relationship for the appellant and the Capital Hotels Plc. It is apparent from the evidence before the trial court that the respondent did not establish that the appellant ever had or made a choice in taking up the appointment in the Capital Hotels. No offer was really made to him, take for example as was done to him vide Exhibit “A”, his original letter of Offer of Appointment from the respondent. So also, there was no formal acceptance by him in writing as he did in response to Exhibit “A” vide Exhibit “B”. It was not articulated and spelt out in Exhibits “H” &”J” that the appellant was by that appointment taking up a brand new employment with the hotel outside his scope of duty and employment in the respondent company. The learned trial Judge was clearly in error in the result by creating or manufacturing a relationship for the parties even if in appearance that is a reasonable conclusion. The court is not a Father Christmas or a donor agency that can be swayed by compassion to do charity. It is certainly not the duty of the court to supply any missing link or bridge any yawning gap in the case put forward by parties no matter how well it may seem desirable so to do. It is trite law that the court should not grant a relief that was not asked for, contemplated or claimed by a party to an action. See the cases of:

(1) Akpoku Vs. Ilombu (1998) 8 NWLR (Pt. 561) p. 283 at p. 290;

(2) Ekpanya Vs. Akpan (1989) 2 NWLR (pt. 101) p. 86;

(3) Sanni Vs. Ademiluyi (2003) 3 NWLR (pt. 807) p. 381 p. 395 – 396 and

(4) Julius Berger (Nig.) Plc. Vs. Nwagwu (2006) 12 NWLR (Pt. 995) p. 518 at p. 544.

The essence of pleadings in claims and counter-claims of parties in litigations is to define the issues between the parties throughout the journey of the proceedings from commencement right down to the conclusion even on appeal if the journey includes an appeal. A party must therefore be consistent in stating his case and consistent in proving it. He will not be permitted to take one stance in his pleadings and then turn aside from these during trial. This is because justice is not a game of ludo dependent on chance or a hide and seek game. This was the pronouncement by the Supreme Court in the cases of:

(1) Chief Sergent C.Awuse V. Dr. Peter Odili & 3 Ors (2003) 18 NWLR (Pt. 851) p. 116 at p. 161;

(2) Green Finger Agro-Ind Ltd V.M. Yusufu (2003) 12 NWLR (pt. 835) p. 488 at p. 507 and

(3) Eronini V. Ihenko (1989) 2 NWLR (Pt.101) p. 46.

The business of Court in administering Justice is a serious one. It is aimed always at discovering the truth, human imperfection notwithstanding. Parties are therefore bound by their pleadings.

Consequently, evidence not pleaded cannot and should not be allowed at the trial of a suit either at the instance of parties or the court itself. Evidence not pleaded but adverted to and founded upon goes to no issue, it is not worthy of consideration at all. Where such evidence is inadvertently admitted and founded upon at trial, the appellate court will not attach any weight to or act upon it. See the cases of:

(1) F A. T B. Ltd V. Partnership Inv. Co, Ltd (2003) 18 NWLR (pt. 851) p. 35 at p. 46.

(2) John Vs. Blakk (2001)10 NWLR (pt. 721) p. 360 at p. 386.

Findings in relation thereto will also be regarded as erroneous. There is nothing sacrosanct about the word “erroneous” It simply means incorrect or mistaken. See the case of:

Awuse Vs. Odili Supra at p. 179 para. G.

From my above reasoning, it is my humble view that the appointment of the appellant as MD & CEO of the Capital Hotels was not a new employment “strictissimi juris” and ”sensus honesto”. Rather it was an extension and in configuration of his original employment in the respondent company, the respondent being the major owner of Capital Hotels.

Another very important issue founded upon by the learned trial Judge is that of whether by the taking of the appointment in Capital Hotels, the appellant can be said to have been transferred or posted or seconded thereto by the respondent. It is quite interesting that even though this point was canvassed and submitted upon extensively by learned counsel for both parties in their respective written addresses and founded upon by the trial court, the point was never an issue either in the endorsement on the writ of summons, or pleaded in the statement of claim and the reply of the appellant to the defence of the respondent. Since the letter of appointment, Exhibit “H” does not state that the appellant was posted or transferred or seconded to the Capital Hotels, these words can not be rightly imported into those documents. Hence, the Conditions of Service Exhibit “J” relating thereto can not also by extension become applicable to the appellant. It is not in dispute and I hold that from the contents of Exhibits “D” and “G” that, the appointment of the appellant in the Capital Hotels arose our of the administrative powers/decision of the respondent.

In lines 1 – 2 of the last paragraph at p. 48 of the record of proceedings, the learned trial Judge had this to say in his consideration and determination of the case of the parties;

” The primary question is whether the plaintiff was on secondment to Capital Hotels Plc—. ”

With due respect to the learned trial Judge, this was an improper premise, because no such relief was in fact sought. I must however point out that the learned trial Judge rightly founded on this issue backed by the legal authorities cited by him that indeed the court has no jurisdiction to go outside the four walls of the contract entered into by parties. This is the settled position of the law in this regard. The word “Secondment” is not contained in the letter and conditions of the appellant’s employment in capital hotels, hence this can not be imported into those documents by the court. Hence, the learned trial Judge ought not to have acted and founded at all on this point as it goes to no issue not having been pleaded. See the cases of:

(1) N B. Plc. Vs Adetoun Oladeji (Nig. J Ltd. (2002) 15NWLR (Pt. 791) p. 589;

(2) Akpoku Vs. Ilombu Supra,

(3) Ekpanya Vs. Akpan Supra and

(4) Awuse Vs. Odili Supra.

I do not consider it needful or a worthwhile cause adverting further to the other submissions made by counsel in respect of this issue of secondment having found that it was not pleaded and claimed. To do so will amount to an exercise in futility and intellectual academics. It is trite that the court does not enter into a discussion of academic or hypothetical issues. See the cases of:-

(1) yil V. Ngumar (1998) 8 NWLR (Pt. 560) p.125 at p. 140;

(2) Okulate V. Awosanya (2000) 2 NWLR (Pt. 646) p. 530;

(3) A. – G., Fed V. ANPP (2003)18 NWLR (Pt. 851) p. 182 at p. 210 and

(4) Schroder & Co. V. Major & Co. (Nig.) Ltd (1989) 2 NWLR (Pt.101) p.1.

Another important finding of the learned trial Judge is that the appointment of the appellant in Capital Hotels was a consensus of the parties which did not either require the respondent company terminating the appellant or the appellant resigning his post. This again amounts to the learned trial Judge making a case for the parties. The law does not allow this. Indeed, that type of relationship is not only unknown to law but it is equally unknown to usual and decent practice. It will lead to chaos and a state of confusion if two parties bound by contractual obligations can by consensus agree or presume that one party need not inform the other of his intention to bring to an end the existing relationship between them, Contractual relationships do not just become extinguished or fizzle but into oblivion or eternity.

The word ”contract” presupposes an agreement between two or more parties creating obligations that are enforceable, recognizable at law and therefore binding on all the parties. The obligations created are those in relation to the right or rights ‘in personam” with corresponding duties, accompanying powers, privileges and immunities.

It is settled law that characteristically a contract of employment can either be found on statute or based on common law principles. See the cases of:

(1) Julius Berger (Nig) Plc. V. Nwagwu Supra at p. 543 and

(2) N R.C V. Umera (2006) 17 NWLR (Pt.1008) p. 265.

In an employment founded on statute like the one under consideration, neither the employer nor the employee can determine the contract at will. There is a procedure laid down in the conditions of appointment which are precedent to determination by either party. Failure to adhere to the procedure will render such determination ineffectual, ineffective, null and void.

In interpreting the relationship of parties to a written agreement, Courts have been enjoined to confine themselves to the plain words which are derivable from the rights and obligations of parties under such agreement. See the cases of:

(1) Gov. Ekiti State vs.Ojo (2006) 17 NWLR (Pt. 1007) p. 95 at p. 120 and

(2) Abalogu V. S. P. D. C Ltd (2003) 13 NWLR (Pt. 837) p. 308.

The appellant’s employment with the respondent company not having been duly or properly determined in accordance with the relevant provisions of the Staff Conditions of Service, Exhibit “F”, the findings of the learned trial Judge with the utmost respect to him, that the respondent or the appellant need not determine the contract duly executed by them consciously and expressly so to speak is perverse. The resignation of the appellant not withstanding, it can safely be concluded that it was crystal clear that his services in the Hotel have become extinct since all the shares of the respondent company in the hotel have been completely sold out. As a matter of fact, it would appear that the appellant’s resignation was at the instance of the new management of the hotel. See paragraph 2 of Exhibit “E”. The respondent no longer had a stake in the hotel and there was no basis for the appellant’s continued stay there. As a matter of fact, Exhibit “E” is a letter intimating the respondent of his return to the respondent company, the place of his primary assignment. The respondent was quite aware having relinquished all its shares in Capital Hotels, that the hotel had been taken over by another management which was not under any obligation to and did not as a matter of fact retain the services of the appellant. To my mind, this case arose out of either a genuine or deliberate misconception of the appellant’s rights under his contract of employment with the respondent company.

In the absence of specific stipulations, the appellant can not be deprived of his rights and privileges as a staff of the respondent company. The presumption that his employment became determined by accepting an appointment to serve in Capital Hotels is not a condition which the parties or any right thinking person must have contemplated. The respondent should not be allowed to abandon the appellant and leave him in the cold, this is unconscionable and will cause great deal of injustice to the appellant. The appointment of the appellant cannot be terminated by a mere presumption but only for misconduct or other specified reasons in line with the provisions of the respondent’s Staff Conditions of Service, Exhibit “F”.

In my humble view, this case is not that of and it is therefore distinguishable from the usual straight forward wrongful termination of a contract of employment. No evidence was led in the trial court to establish that the employment of the appellant was either determined by him or his employer, the respondent. One of the hallmarks of a determined employment is the payment of terminal benefits by the employer and the acceptance of same by the employee after the employment is brought to an end. See the case of:

Julius Berger (Nig) Plc. V. Nwagwu Supra at p. 540.

There could be no doubt that the learned trial Judge had no justification to make the findings that when the appellant:

“— accepted to work as Managing Director/Chief Executive Officer of Capital Hotels Plc. His employment with the Defendant Company ceased when he took up the appointment with Capital Hotels Plc.”

The appellant’s employment, including the procedure for terminating his appointment is regulated by the terms and conditions of Exhibit “F”, the respondent’s Staff Conditions of Service. Consequently, the justice of this case demands that the termination of the appellant’s’ employment must be in accordance with those terms and conditions contained in Exhibit “F” in consonance with the rules of natural justice. What is more, where as in this case, an employee by virtue of Exhibit “A” is qualified by his appointment to a permanent and pensionable position, the employee is not in a servant and master relationship with the employer. The employment can not be determined at the will of parties but in accordance with the terms and obligations of the conditions of the employment.

See the case of:

Abdul-Raheem V. Oloruntoba – Oju (2006) 15 NWLR (Pt. 1003) p. 581 at p. 652 in the Dissenting Opinion of Ogunwumiju J. C. A.

As earlier on in this judgment pronounced, it can not be the contemplation of parties that their relationship would become extinguished or fizzle out by reason of the appellant’s appointment in Capital Hotels Plc or by any reason other than in accordance with the procedure agreed and subscribed to by them in the Staff Conditions of Service. They are bound by those Conditions of Service. Either party cannot waive or resile from the conditions by merely wishing them away or shoving them away by a wave of the back hand. See the case of:

N R. C V. Umero Supra at pgs, 277 – 278.

The only way there can be a waiver is by subscribing again to another written contract with new set of conditions and terms.

See the case of:

Prof S. O Abulraheem & 3 Ors. V. Prof B. J Olufeogba & 43 Ors. (2006) 17 NWLR (Pt. 1008) p. 280 at p. 325.

From the foregoing and as quite rightly pointed out by learned counsel for the appellant, with the improper evaluation of the evidence by the trial court, the concormitant findings are perverse.

This is a proper case for this court to disturb and interfere with the findings of fact. The learned trial Judge clearly erred in the assessment of the documentary evidence adduced before him and thereby came to a mistaken conclusion.

Having found that the employment of the appellant in the respondent company subsists, the effect and implication of this is that the appellant should automatically be reabsorbed into the respondent company. It is obvious that the appellant’s employment has been disrupted since 2003 by the action or inaction of the respondent. The action or inaction of the respondent is definitely illegal and unlawful. It calls for a redress, the appellant having been adversely affected by the irregular conduct of the respondent. The redress of course is none other than that the appellant be restored to his employment in the respondent company, with the payment of his salaries and fringe benefits for the period he has been out of job in full. There is no shred of evidence that he has been gainfully employed elsewhere since he was eased out of Capital Hotels in May, 2003. As earlier on established, the appellant’s resignation from Capital Hotels will and can not constitute a bar to the declaration that, the disruption of his employment is irregular, illegal and unlawful especially since there is no proof that he has voluntarily retired from the respondent company.

It is my humble view and I hold that the employment of the appellant in the respondent’s company remains valid and subsisting. He is entitled to be reabsorbed back by the respondent. It is hereby declared that the appellant is entitled to all his claims as per his writ of summons and statement of claim accordingly.

I hold that the appeal has merit. It is therefore allowed. The judgment of the trial court, High Court of the federal Capital Territory, Holden at Abuja per U. I. Ndukwe-Anyanwu J. (as he then was) delivered on 25/05/05 declaring as a failure the claims of the appellant is hereby set aside. I make no order on costs.

Pronouncement: (Section 249 (2) of the Constitution): Hon. Justice I. T. Muhammad who participated in the appeal before his elevation to the Supreme Court bench agreed at a conference that the appeal be allowed.

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Other Citations: (2007)LCN/2193(CA)