Ikemefuna C. Amadiume & Anor. V. Mrs Agnes Solomon Ibok & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A
This is an interlocutory appeal against the Ruling of Edem, J., in Suit No. HC/496/2002 delivered on 13/8/2003, wherein the court dismissed the application filed by the appellants and held that from the evidence before it, the appellants were proper parties in the suit and that the court has jurisdiction to entertain the suit before it.
The appellants are the airport manager and operations manager respectively of the Calabar Airport, Calabar, and employees of the Federal Airport Authority of Nigerian (hereinafter called FAAN). The respondents were the former principal, vice principal (academic) and (admin) respectively of FAAN Secondary School, Calabar, located within the said airport.
Following some management problem and or financial irregularity, the FAAN set up an audit committee to look into the affairs of FAAN Secondary and Primary Schools. Sequel to that, the 1st appellant issued a letter dated 15/10/02 to the respondents, placing them on compulsory leave. Unhappy with the state of affairs, the respondents instituted proceedings against the appellants before the High Court of Cross River State on 6/11/02, whereby they claimed in their statement of claim at pages 4 – 7 of the record as follows:
“Wherefore the plaintiffs claim against the defendants jointly and severally as follows:
(a) A declaration that the plaintiffs are entitled to remain in their offices as the Principal, Vice Principal (admin) and Vice Principal (Academic) of the Federal Airport Authority or Nigeria Secondary School without any harassment or molestation by the defendants or their agents.
(b) A declaration that the conduct of the defendants in disgracefully ordering the plaintiffs out of their offices aforesaid is wrongful and a wanton breach of the contract of service between the plaintiffs and the School Management Board of that School.
(c) An Order of injunction restraining the defendants by themselves, their servants or agents or howsoever from compulsory removing the plaintiffs from their respective offices as Principal, Vice Principal (Admin), Vice Principal (Academics) or in any manner preventing or continuing to prevent the plaintiffs from discharging their functions accordingly.
(d) The sum of N900,000,000.00 (Nine Million Naira) special and general damages against the defendants jointly and severally for harassment intimidation and unjustified molestation of the plaintiffs.
(e) An order of cancellation of any compulsory leave or reversal of any other action purportedly taken against the plaintiffs by the defendants.”
On being served with the claim of the respondents and before commencement of hearing of the suit, the appellants brought a motion on notice dated 20/3/2003 and filed the same day praying for an order striking out the suit on the ground of incompetence. See pages 47 – 48 of the record.
The gists of the application are two fold:
“(1) That the appellants are not the owners of the school and have no powers to own the school. They are servants to the Federal Airport Authority of Nigeria.
(2) That the compulsory leave of the respondents was an administrative act and therefore not actionable.”
The respondents in reacting to the appellants’ application filed a counter-affidavit of 19 paragraphs deposed to by the 1st respondent herself, challenging the supporting affidavit. After hearing the submissions of the counsel in the matter the court below ruled at page 86 that the defendants are not agents to any principal be it disclosed or undisclosed, named or unnamed and that the FAAN is not the principal to the appellants in the suit and in the transaction giving rise to the suit. The court below held further that the appellants not having filed a further affidavit to challenge the respondents’ counter-affidavit the averments in the counter-affidavit are unchallenged. Therefore, the suit filed by the respondents is proper and the court below has jurisdiction.
Dissatisfied with the ruling of the court below the appellants appealed to this court on 3 grounds numbered (a), (b) and (c) and filed on 18/8/03. The appellants in their brief dated 4/11/03 and filed on 11/11/03 distilled 2 issues for determination. The issues are:
“(1) whether it was right to sue the appellants in their private capacity, when the appellants performed their duties as the manager and operation manager of the Federal Airport Authority of Nigeria a disclosed principal?
(2) Was the court right to assume jurisdiction considering the facts of the compulsory leave and the termination of the appointment of the respondents?
The respondents in their brief of argument dated 27/4/04 filed on 19/5/04 also raised two issues for determination. The issues are:
“(1) Whether the learned trial Judge was right, when he held that from the uncontradicted affidavit evidence and unchallenged averments in the statement of claim filled by the respondents, the appellants were proper defendants in the suit and that the suit was competent?
(2) Whether the letter of compulsory leave issued to the respondents by the appellants – a third party to the contract of service between the respondents and the School Management Board was sufficient to divest the trial Court of its jurisdiction to entertain the suit questioning the propriety of the letter of compulsory leave?”
The parties filed and exchanged the respective brief of arguments and at the hearing of the appeal Counsel to the parties adopted and relied on their respective briefs of argument.
On Issue 1, the appellants’ Counsel, Mr. Onyebueke, submitted that from the averments in paragraphs 6 and 7 of the respondents’ statement of claim at pages 4 and 6 of the record and the provisions Section 1, 7 and 15 of the Nigerian Airport Authority Act, the appellants are staff and agents of the FAAN therefore, whatever action they take in the course of their duty is for and on behalf of FAAN. He concluded that the respondents were wrong to have sued the appellants in their private capacity when their principal is known and the letters of compulsory leave issued to the respondents, which gave rise to the suit, must be deemed to be authored by FAAN. He referred to the case of Faith Enterprises Ltd. vs. Base Nig. Ltd. (2001) 8 NWLR (Pt.714) page 242 at 244 and Edet vs. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41 at 50.
Mr. Onyebueke submitted further that before an action can succeed the parties to it must be shown to be proper parties to whom rights and obligation arising from the cause of action attach and the issue of proper parties would affect the jurisdiction of the court. He referred to Bent Vision Cement Ltd. vs. U.A.C.N.P.D.C. Plc. (2003) 13 NWLR (Pt. 838) 594. Relying on the case of Essang vs. Aureol Plast Plc. (2003) 17 NWLR (Pt. 795) 155 at 166, Counsel submitted that an agent acting on behalf of a known and disclosed principal incurs no liability as the act of the agent is the act of the principal.
On Issue 2, Mr. Onyebueke pointed out that the cause of action of the respondents was the letter of compulsory leave served on them. They were merely suspended pending the outcome of the audit committee setup to investigate the activities of the respondents. He then submitted that a master can suspend his servant when a necessary and this cannot account to breach of the servant’s rights. He referred to Ayewa vs. University of Jos (2000) 6 NWLR (Pt. 659) 142. He concluded that the appointments of the respondents having been terminated the court lacked the jurisdiction to hear the matter of compulsory leave of the respondents.
Learned Counsel for the respondents, Mr. Alex Umoh in the respondents’ brief, submitted that the appellants are not agents of FAAN. He referred to the finding of the trial Judge at page 87 lines 9 – 14 of the record and urged the court to uphold it in view of the affidavit evidence of both parties in the proceedings. He relied on Bello vs. Ringim (1991 (7 NWLR (Pt. 206) 668 at 677 and Iwenagbor vs. Bazuaye (1999) 70 LRCN 2256 at 2260 and submitted that an appellate Court would not normally upset the finding of facts made by the trial court.
On the issue of agency Mr. Umoh submitted that a servant who seeks the benefit of an agency relationship with his principal must establish that in committing the act complained of he was never on a frolic of his own. He referred to Nirchandant vs. Pineirro (2001) FWLR (Pt. 48) 1307 at 1323, and submitted that the fact that the appellant’s are servants of FAAN does not mean that all their acts were covered by the principle of agency inherent in the master – servant relationship with FAAN.
On the termination of the appointment of the respondents, Mr. Umoh submitted that they were written after the institution of the case before the court below on 6/11/02 and therefore they are inadmissible. He relied on Ogbakon vs. The Registered Trustees & Christ Chosen Church of God and Anor. (2001) FWLR (Pt. 80) 1496 at 1502. He also referred to the averments in paragraphs 4, 5, 6, 7 and 14 of the respondents’ counter-affidavit whereby the respondents denied knowledge of Exhibits ‘A’, ‘B’ and ‘C’ at pages 53 and 54 of the record and submitted that as the appellants failed to file a further and better affidavit the averments are deemed admitted. He relied on Adekanye vs. Comptroller of Prisons (2000) FWLR (Pt. 8) 1258 at 1267.
On Issue 2, the respondents contended that a right to enforce a contract is a right in personam and a stranger cannot enforce a contract. They relied on A-G Federation vs. A.I.C. Ltd (2000) FWLR (Pt. 26) 1744 at 1762 – 1763. Mr. Umoh pointed out that in paragraphs 19, 20, 21, 22, 23, 24 and 27 of the statement of claim and paragraphs 8 and 9 of their counter-affidavit, the respondents had averred that FAAN is not the owner of the school in question and it is not their employer and that they are responsible to the School Management Board of the school. He argued that the above averments were not controverted by the appellants therefore they must be admitted and acted upon by the court as was the case in Ogoejofo vs. Ogoejofo (2001) FWLR (Pt. 63) 141 at 144. He then concluded that the appellants and FAAN are not a party to contract of service between the respondents and the School Management Board of the school. So, the question of a master suspending a servant does not arise in the instant case on appeal and the case of Ayewa vs. University of Jos (supra) does not apply to this case.
I have examined, considered and reflected on the issues for determination formulated by the parties in this instant appeal and I am satisfied that though differently worded, they are essentially the same in their meaning, nature and effect. I shall therefore adopt the issues for determination formulated by the appellants in their brief of argument in this appeal.
On Issue 1, it is important to note that for a court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach.
The question of proper parties is a very important issue which would affect the jurisdiction of the court as it goes to the foundation of the suit and it can be raised in limine. The appellants were correct when they applied to the court below for the striking out of the suit at the court below and it was proper and well taken. See Bent Vision Cent. Ltd. vs UACNP (supra), Ikene vs. Anakwe (2000) 8 NWLR (Pt. 669) 484 at 492 and Peenok Ltd. vs. Hotel Presidential (1983) 4 NCLR 122. Ehidomhem vs. Musa (2000) 8 NWLR (Pt. 669) 540.
The issue of jurisdiction being fundamental can be raised at any stage of a proceeding even in the Supreme Court for the first time. See Salati vs. Shehu (1986) 7 NWLR (Pt. 15) 198.
Where the proper parties are not before the court then the court lacks jurisdiction to hear the suit. Where a court purports to exercise jurisdiction which it does not have the proceedings before it and its judgment will amount to a nullity no matter how well decided. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341: Sode VS. AG Federal (1986) 2 NWLR (Pt. 24) page 568. When the court has no jurisdiction it is futile to go into the merits of the case. See Maidawa v. Husaini (2000) 6 NWLR (Pt.662) 698.
To begin with, the respondent in their averments in paragraphs 6, 7 and 9 of the statement of claim admitted unequivocally that the appellants are the Airport Manager and Operations Manager respectively of FAAN.
Because of the importance and significance of the aforesaid paragraphs it is necessary that I reproduce them below.
“6. The 1st defendant is the present Airport Manager of the Calabar International Airport Calabar and it is within the premises of the said International Airport that the school is located.
- The 2nd defendant is an employee of the Federal Airport Authority of Nigeria – a Federal Government parastatals. The 2nd dependant is currently the Operations Manager of the Calabar International Airport.
9 Suddenly, when the 1st defendant assumed office as the new Airport Manager of the Calabar International Airport, he immediately complained of the ethnic make up of the staff strengths of the school as being dominantly made up of people of Cross River and Akwa Ibom States origin. He vowed to change that.”
Facts which have been admitted in a pleading need no further proof by virtue of Section 75 of the Evidence Act. See Solana vs. Olusanya (1975) 6 SC 55; Maduabachukwu vs. Umunakwa (1990) 2 NWLR (Pt. 134) 598 and Daniel vs. Iroreri (1985) 1 NWLR (Pt. 3) 541. Ibanga vs. Usanga (1982) 5 SC 103 and Akpapuna vs. Nzeka (1983) 2 SCNL 121. It is therefore, clear and undeniable that the appellants are staff nd servants of FAAN at Calabar.
The respondents claim at the court below originated from the letters of compulsory leave which were authored by the 1st appellant, who signed as the Airport Manager. The first paragraph of the letter of compulsory leave at pages 16, 17 and 18 of the record is very instructive and it read as follows:
“You are already aware that the management of FAAN, Calabar Airport has set up an Audit Committee to look into the affairs of FAAN Secondary and Primary Schools….”
The above clearly reveal that the, said letters were written in the 1st appellant official capacity as the Airport Manager.
A court is at liberty to use any relevant process in the court’s file in forming its opinion on the contention of both parties. See Okafor vs. Okafor (2000) FWLR (Pt. 1) 17 and 19. In the record of proceedings produce before this court, I observed that respondents when they filed their suit also filed a motion – ex parte and a motion on notice, both dated 6/11/02. See pages 8 – 45 of the record. Sequel to the motions the court below made an order dated 11/11/2002. The enrolled order is at page 46 of the record. I observed that the 1st respondent, Mrs. Agnes Solomon Ibok deposed to the affidavit in the motions and she attached Exhibits A-J to the supporting affidavits. Exhibit A is an article from the School Management Board and it reads as follows:
ARTICLE 2: SCHOOL MANAGEMENT BOARD
i. In compliance with the relevant labour law and for the smooth and proper running/management of the Federal Airport Authority of Nigeria Secondary School, Calabar, it is I hereby established THE SCHOOL MANAGEMENT BOARD in the school (hereinafter referred to as “THE SCHOOL MANAGEMENT BOARD”).
ii. The board shall consists of:
a. The Airport Manager Chairman
b. The School Principal Member
c. The Chairman of the School PTD Member
d. A Representative of Junior Staff Union Member
e. A Representative of the Senior Staff Union Member
f. The Head Teacher of the Primary School
g. And two other members as shall be appointed by the Board from time to time
The secretary of the Board may be appointed by the Board.”
It is glaringly and abundantly clear that the Airport Manager is the Chairman of the School Management Board of the FAAN Secondary School, Calabar. The 1st respondent in her supporting affidavit attached Exhibits and J1, which are letters of confirmation of her appointment and that of Mr. Effiom Effiong Effiom. The letters were duly written on FAAN letter headed paper and they were duly signed as follows:
“Ekanem (Secretary FAAN School Management Board) for Airport Manager.”
Similarly, the letter of confirmation of appointment of the 2nd respondent, Mr. Sunday Etuk, which is Exhibit 1 at page 24 of the record was signed by the Chairman of the School Management Board, who is the Airport Manager. See further pages 41, 43 and 145 of the record, where the same exhibits were attached and referred to. All the above documents were duly written on FAAN letter headed paper and signed for the Airport Manager and they speak loudly for themselves. It is therefore clear to me that the appellants are servants and agents of FAAN and more importantly, the 1st appellant has an important role to play for and on behalf of FAAN in the management of FAAN Secondary School.
Bearing this in mind, the finding of the trial Judge at page 85 lines 20 – 23 of the record is unfounded and unsupportable.
The learned trial Judge said:
“All the letters are signed by I. C. Amadiume. Below his name is written; AIRPORT MANAGER. Note, he is not signing on behalf of the Federal Airport Authority of Nigeria.”
That is completely ridiculous, erroneous and uncalled for. The fact that the 1st appellant is the Airport Manager and Chairman of the School Management Board of FAAN Secondary School is certainly enough to show that he is a servant and agent of FAAN and that he was acting in his official capacity. Moreover, Section 7 of the Nigeria Airport Authority Act Cap 292 Laws of the Federation of Nigeria provides:
“The Authority may appoint such number of officers as it thinks necessary to be designated as Airport Managers, who shall be responsible for assisting the General Manager in the Management and control of such Airport or Airports as the Authority may from time to time determine.”
Furthermore in Anyaorah vs. Anyaorah (2001) 7 NWLR (Pt 711) 158 at 180 the court when considering who is an agent stated that:
”The term “agent” includes any person who acts for another in the capacity of deputy, steward, rent collector or any other agent or trustee.”
See also Godwin vs. The Christ Apostolic Church (1998) 14 NWLR (Pt. 584) 162.
From the above provision, it is clear that the 1st appellant being the Airport Manager is responsible for assisting the General Manager in the Management and control of the Airport. It is therefore unnecessary for the 1st appellant, having signed the letters in question as Airport Manager, to state that he is acting on behalf of FAAN. Whatever action the 1st appellant has taken in the course of his duty as Airport Manager, he did so for and on behalf of FAAN. Therefore, he is undoubtedly the agent to FAAN. There is no evidence that FAAN has disowned the 1st appellant as its servant or agent. As it is clear that the appellants are servants and agents of FAAN and FAAN is a disclosed principal, they incur no liability at all. In Faith Enterprises Ltd. vs. BASF (Nig.) Ltd. (supra) it was held at page 244 that:
“The state of mind and acts of the Managing Director of a company are all regarded as those of the company – A legal fiction that only exist in the eyes of the law. In the instant case, Exhibit B which was authored by the Managing Director of the appellant is the act of the appellant.”
See further Boltan (Nig.) Co. Ltd. vs. Graham & Sons Ltd. (1956) All E. R. 624. Also in Essang vs. Aureol Plast Ltd. (supra) at page 166 it was held that:
“An agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. It was the principal who did or omitted to do what the agent did or omitted to do. The common law rule is expressed in the latin maxim thus:- “Qui Facit peralum facit per se ip sam Facere vindepur.” Which means, he who does an act through another is deemed in law to do it himself.”
It flows from the above cases that the state of mind and acts of the appellants as Airport Manager and Operations Manager respectively are those of FAAN their employer. The letters of compulsory leave duly authored by the 1st appellant as the Airport Manager was in fact authored by FAAN. I cannot see the difficulty of the trial Judge in arriving at this simple and logical conclusion which accords with common sense. Where the principal of an agent is known or disclosed, the proper party to sue or be sued for anything done or omitted to be done by the agent is the principal. The action against the appellants in their private capacity where their principal FAAN is known and disclosed is incompetent. The court below ought to have struck out the suit. See Niger Progress Ltd. vs. NEL Corporation (1989) 3 NWLR (Pt. 107) 68 and Leventis Tech. Ltd vs. Petrojessica Ent. Ltd. (1992) 2 NWLR (Pt. 234) 459.
The respondent relying on the case of Mirchandant vs. Pinheiro (supra) submitted that a servant, who I seeks the benefit of an agency relationship with his principal must establish that he is not on frolic of his own. They were also of the view that the appellants failed to prove on oath that the act of forcing the respondents on compulsory leave was done in the course of the appellants official duties as agents or servants of FAAN. My answer to that submission is simple. The fact that the appellants are staff and servant of FAAN makes them agents of FAAN. The fact that the letters of compulsory leave were duly authored and signed by the 1st appellant as the Airport Manager on FAAN letter headed paper is sufficient evidence that he was acting in his official capacity. The fact that the 1st appellant is the Chairman of the School Management Board is sufficient evidence that he was acting in his official capacity. The fact that Section 7 of the Nigeria Airport Authority Act Cap 292 empowered the 1st appellant to assist the General Manager of FAAN in the Management and control of the Airport is sufficient evidence that he was acting in his official capacity. Whether the acts of the appellants were ordered by FAAN or not or that as agents of FAAN they did what FAAN asked them to do or whether their acts were in accordance with the directives of FAAN is another matter entirely. It does not lie in the mouth of the respondents to question the act of the appellants in the circumstances. In my view it is for FAAN to say whether or not the appellants acted in accordance with its directives. Certainly it is not in the province of the respondents to say so when they are not FAAN or the employers of the appellants. The learned trial Judge fell into grave error when he concluded that the appellants were not the agents of FAAN, without hearing any evidence from FAAN.
I observed that the respondents at Page 3 of their brief stated that the court below granted an amendment to the writ of summons and the statement of claim filed to reflect the status of the appellants to wit:
“(1) Mr. Ikemefuna Amadiume (Airport Manager, Calabar International Airport, Calabar)
(2) Mr. Anthony M. Alumono (Operation Manager, Calabar International Airport, Calabar).”
I have carefully examined the court record, but I cannot find any such amendment. I have also not seen the amended writ or amended statement of claim. However, the purported amendment, if at all there was, cannot alter the legal position of the appellants and it is of no assistance to the case of the respondents. The issue here is that the appellants are agents of FAAN and therefore they incur no liability. There they are not the proper defendants to be sued.
Secondly, there is a presumption that the record of proceedings of the court is correct until the contrary is proved. Therefore, the respondents who in effect have challenged the correctness of the record ought to have sworn to an affidavit setting out the facts or parts of the proceedings omitted or wrongly stated in the record. See Nwankwo vs. Abazie (2003) 12 NWLR (Pt.834) 281 at 421: Ehikioya vs. COP (1992) 4 NWLR (Pt. 233) 57. Moreover, the respondents were served with record of proceedings of the court below before they filed their brief. Apparently, they took no step to challenge the record then and neither did they ask for leave to file additional documents to form part of the record. It was therefore wrong for the respondents to raised that issue in their brief. I will therefore discountenance the issue.
From the foregoing, I conclude that the appellants are agents of FAAN and it is crystal clear that they performed their duties in their official capacity on behalf of FAAN who is their disclosed principal. I therefore answer the question in issue 1 in the negative. That is to say, it was wrong for the respondents to sue the appellants in their private capacity when their principal is known and disclosed. I therefore resolve Issue 1 in favour of the appellants and against the respondents.
On Issue 2, the question is whether the court was right to assume jurisdiction considering the facts that the respondents were sent on compulsory leave and later their appointment was terminated. The main thrust of the appellants argument is that the court lacked jurisdiction to hear a case of the compulsory leave of the respondents as a cause of action when the appointment of the respondents have been terminated. In fairness to the respondents, the present case now on appeal was filed on 6/11/02, whereas the appointments of the respondents were terminated on the 22/11/02 during the pendency of their suit. See pages 49 – 55 of the record. This in effect means that the letters of termination of appointment are caught squarely by the provisions of Section 91 (3) of the Evidence Act which provides:
“Nothing in this Section shall render admission as evidence of statement made by a person interested at a time when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
From the above and following the case Ogbahon vs. The Registered Trustees of Christ Chosen Church of God & Anor (supra), I am in agreement with the submission of the respondents that the letters of termination having been issued on 22/11/02 during the pendency of the suit must be discountenanced. The letter of termination has completely changed the complexion of the suit before the court below. If that is allowed the respondents would be forced to commence their suit de novo as they cannot continue with a cause of action based on compulsory leave when the appellants have gone one step ahead of them to terminate their appointments. This is wrong. The appellant ought to have waited for the outcome of the suit filed by the respondents before terminating their appointment. Obviously, it makes no sense for the respondent to continue with the claim for cancellation of the compulsory leave imposed on them when as a matter of fact their appointments have been terminated. However, the above findings have not brought any dramatic or radical change to the fortunes of this appeal. The claim of the respondents in the statement of claim at pages 4 – 7 of the record is predicated on their been sent on compulsory leave and they are bound by their pleadings. The respondents relied on AG Federation vs. A/C Ltd. (2000) FWLR (Pt. 26) 1744 at 1762 where the Supreme Court held that:
“A right to enquire a contract is a right in personam that a stranger cannot enquire into a contract.”
In the first place the respondents did not plead any contract of service. All that they pleaded in paragraph 20 of their statement of claim is that their relationship with the School Management Board of FAAN school is governed principally by the School Manual and condition of service of the school. In view of my findings under Issue 1, the submission of the respondents is misconceived, grossly speculative and irrelevant.
As was rightly pointed out by the respondents, it is the claim of a plaintiff that determines the jurisdiction of the court which entertains the claim. In Abacha vs. Fawehinmi (2000) FWLR (Pt. 4) 533 at 557 it was held that:
“The jurisdiction of a court to adjudicate in a matter is determined by the facts placed before it and more importantly, by the phraseology of the plaintiff’s claim.”
Also in AG Anambra State vs. AG Federation (1993) 6 NWLR (Pt. 302) 692 at 742 the Supreme Court held that:
“It is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court.”
In paragraphs 19 – 24 and 27 of the statement of claim at pages 4 – 6 of the record averred that they are responsible to the School Management Board of the School. The 1st appellant is the Airport Manager and by virtue of that he is also the Chairman of the School Management Board therefore, there is a master-servant relationship in existence between the appellants and it is not in dispute that the appellants sent the respondents on compulsory leave pending the outcome of the report of the audit committee set up by FAAN. For the purposes of clarity and ease of reference, I find it necessary to reproduce one of the letters of compulsory leave. I now reproduce the letter sent to the 1st respondent marked as Exhibit B at pg. 16 of the Record. It reads;
“FAAN Ref. No. FAAN/33/401.112/VOL.2
Federal Airports Authority of Nigeria
Calabar Airport, P.M.B. 1348, Calabar October 15, 2002
087 – 220793, 220794
Mrs. A. S. Ibok
Principal- FAAN Secondary School,
Calabar – Airport, Calabar.
Madam,
LETTER OF COMPULSORY LEAVE
You are already aware that the Management of FAAN, Calabar Airport has set up an Audit Committee to look into the affairs of FAAN Secondary and Primary Schools.
In view of the foregoing therefore, you are hereby placed on compulsory leave until further notice.
You are to handover all the schools properties and documents in your possession to the Acting Principal immediately.
Furthermore, you are to leave your contact address, should you be required for more details and information.
Please ensure strict compliance.
Sgd.
I.C. AMADIUME
Airport Manager.”
The same letters were issued and serve on the 2nd and 3rd respondents respectively.
It is well settled law that a master can suspend his servant when necessary. An employer can suspend his employees when necessary. That cannot amount to the breach of the servant’s or employees’ right. See: Ayewa vs. University of Jos (supra). At page 144 Uwaifor, JSC, had this to say:
“The main issue in this mattes is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower Court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights.
In this instant case on appeal, it is clear that the essence of placing a servant on a compulsory leave, which is the same thing as a suspension from duty, is to enable the master to investigate the servant. This was clearly stated in the letter reproduced above. In the appropriate situation, a servant sent on compulsory leave may be recalled. It follows therefore that the fact that the respondents were served with letters of compulsory leave is not a breach of their fundamental right or common law right as the case may be. Therefore, the suit is incompetent and it deprived the court below the jurisdiction to adjudicate over the matter.
I, therefore, answer the question in Issue 2 in the negative. That is the court below was wrong to assume jurisdiction considering the facts of the compulsory leave of the respondents. I observed that the respondents and the court below relied on the counter-affidavit deposed by the 1st respondent. See pages 57-60. It is my view that the appellants filed the application for striking out the suit passed on the averments of the respondents in their statement of claim at pages 4 – 7 of the record. That means that the appellant must have admitted the averments to be true. In such circumstances it is only the statements of claim that should be considered. See Boothia Maritime Inc & 2 Ors vs. Fareast Mercantile Co Ltd. (2001) 4 SCNJ 178.
Furthermore, the averments in the respondents’ counter-affidavit are at variance with the averments their statement of claim and all their averments in their earlier affidavits and the exhibits attached thereto at pages 10 -45 of the record. So the averments in the counter-affidavit are unhelpful to the respondents and the trial Judge was in error to have relied on them and use them in his ruling. Moreover, parties are bound by their pleadings and would not be allowed to stray out of them. See Lawal vs. Oke (2001) 7 NWLR (Pt. 711) 88 at 109; Onyero vs. Nwadike (1996) 9 1 NWLR (Pt. 47) 231.
Having carefully considered all the points in Issue 2, I answer the question posed therein in the negative. That is to say, the court below was wrong to assume jurisdiction in view of the fact that the respondents were, according to their statement of claim only sent on compulsory leave. I therefore resolve Issue 2 in favour of the appellants and against the respondents. This appeal is meritorious and it therefore deserves to be allowed.
Accordingly, I allow the appeal. The Ruling of Hon. Justice M. Edem of the High Court of Cross River State in Suit No. HC/496/2002 delivered on 13/8/2003 is hereby set aside. I also strike out Suit No. HC/496/2002 filed by the respondents in the court below for want of competence.
I make no order as to costs.
Other Citations: (2005)LCN/1783(CA)
