John Ejimadu V. Delta Freeze Ltd. & Ors (2007)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal against the decision of Daniel-Kalio (J) dated 23/3/2000 sitting in Port Harcourt Judicial Division of the High Court of Rivers State in suit No. PHC/676/98.
The appellant was the plaintiff at the lower court while the respondents were 1st – 3rd defendants. Parties will hereinafter be referred to as “appellant” and “respondents” respectively.
The appellant claimed against the respondents jointly and severally the sum of N400, 000.00 being damages for breach of contract of employment, or wrongful termination of the said employment. After pleadings were ordered and exchanged evidence of witnesses were taken. Counsel for the pat1ies addressed the court.
In his judgment the learned trial Judge dismissed the plaintiff’s claims in its entirety. Dissatisfied with the decision he now appealed to this court. The notice of appeal filed on 26/3/2001 contained general ground of appeal. On 2/12/2001 by leave of this court the appellant filed two additional grounds.
In compliance with the rules of this court parties filed and exchanged their respective brief of argument.
The appellant identified sole issue for determination, namely:
“Whether or not the learned trial Judge was right in dismissing the entire claim of the appellant having regard to the pleadings, evidence led and the approach adopted by the learned trial Judge.”
The respondents in their brief of argument adopted the sole issue formulated by the appellant.
The pat1ies are in agreement that the sole issue posed by the appellant will determine the appeal. When the argument on the appeal was taken on 22/1/2007, learned counsel for the appellant, J. H. Igbikiberesima, Esq., having adopted the appellant’s brief of argument, adopted same and urged us to allow the appeal and set aside the judgment of the trial Judge. However, my careful study of the complaint of the appellant in his brief of argument, it is clear that his main contention is that having regard to the fact of admission made by the respondents that the appellant was entitled to N5, 583 and a further statement by respondents through DW1 under cross-examination that the respondents were ready to pay the appellant the sum of N5, 500 which they owed appellant and a further statement on page 22 of the record by the same DW1 that the appellant was entitled to N5, 583, the learned trial Judge was in error to have held that the appellant did not prove his claim. It is submitted that the learned trial Judge did not consider the issues of parties as settled in the pleadings and arrived at conclusions that were perverse.
It is further submitted that the findings of the court was not in accord with the evidence before him in respect of the deductions from the appellant’s salary which the respondents failed to account for. That reliance was placed by the learned trial Judge on S.32(3) of the National Provident Fund (General Regulations). It is argued that the provision applies only where the money deducted had been paid into “the Reserved Fund” and not where as in the instant case the respondents did not pay the money into the Fund. Same is argued in respect of the claim for refund of taxes. It is contended that the averments alleging liability of the respondents on these points as well as that of mortgage and housing scheme having not been traversed the respondents were deemed to have admitted such facts and that no further proof was required from the appellant. Reliance was placed on the cases of Lewis & Peat Ltd. v. Akilzimien (1976) 7 SC 157; and Akintola v. Solano (1986)2 NWLR (Pt.24) 598, (1986) 4 SC 181-190.
Learned counsel for the respondents, S.N. Patta, Esq., referred us to the respondents’ brief of argument deemed filed with leave of this court on 4/5/2006. Having adopted same, he amplified no further. However, careful study of the respondents’ brief of argument shows that the respondents raised and presented argument on preliminary objection on ground 3 of the additional grounds of appeal which complains against the dismissal of the entire claims of the appellant.
The complaint has to do with all the 6 claims by the appellant. It is argued that the ground of appeal has fallen short of the requirement of Order 3 rule 2(3) and (4) of the Court of Appeal Rules, 2002 as the ground is not concise and distinctive but couched too wide and in general terms. Reliance was placed on the cases of Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt.795) 185, (2003) FWLR (Pt. 136) p. 823 at p.848A; and Ikem v. Ezeanya (2002) 4 NWLR (Pt.757) 245, (2002) FWLR (Pt.99) p.1088 at p.1100 E-F. It is also contended that the particulars supplied under ground 3 contain unrelated issues that were canvassed and decided upon separately by the trial court. Learned counsel for the respondent finally contended that appellant’s brief of argument contains only one issue which was distilled from the three grounds of appeal (including ground 3). It is submitted that where a competent ground of appeal is argued together with an incompetent ground of appeal, it renders that ground incompetent. He cited the cases of Kadzi Int’l Ltd. v. Kana Tannery Co. Ltd. (2003) FWLR (Pt.l84) p. 255 at 2790; and Fyney v. Sule (2002) FWLR (Pt.94) 115 at p. 133D.
First, I shall deal with the preliminary objection. The complaint of the respondents is on ground 3 of the additional ground of appeal.
It is couched thus:
“The learned trial Judge erred in law in dismissing the entire claims of the plaintiff.”
By his notice of appeal on one ground filed on 29/3/2000 the appellant challenged the decision of the lower court in this matter.
Upon receipt of the record of appeal he found it necessary to file and argue additional grounds of appeal which are consecutively numbered 2 and 3. The complaint against the third ground here is that it is vague and not concise. I do not think so. The ground has to do with all the six claims. The claims are as follows: (1) refund of deductions for the National Provident Fund, (2) refund of deduction for Housing/Mortgage Scheme, (3) income tax refund, (4) Arrears of salary, (5) overtime payment and (6) payment of salary and allowances in lieu of one month notice.
Ground 3 is a complaint against all the conclusions of the trial Judge in the case. I am not unaware of Order 3 rules 2(4) of the Court of Appeal Rules, 2002. Indeed, no ground of appeal which is vague in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence.
In the instant case, the appellant’s ground of appeal in which he complained that the trial court erred in law in dismissing his entire claim as related to the particulars, to my mind, is valid and proper. See Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2002) 2 NWLR (Pt.750) 1.
The main purpose of the rules of the Court of Appeal relating to the formulation of grounds of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. To my mind this ground satisfies this purpose.
It cannot be struck out. Appeals are never won on the numbers of grounds of appeal and the issues formulated therefrom, but on the quality of the ground of appeal and the issue so raised therefrom.
The sole issue for consideration distilled from the grounds is competent and cannot be struck out.
Now to the main issue in the appeal.
However, let me quickly recapitulate the facts of the matter that led to the termination of the employment of the appellant. The appellant was employed on four separate occasions by the 1st and 2nd respondents under a master and servant relationship, as an Electrical Technician. The various employments spanned these periods: First 19th September 1977 to 18th October 1985; Second occasion, 1st January 1986 – October 1990; Third occasion 1st October 1991 – 27th May 1996; Fourth engagement from 15th October 1996 – 15th May 1997. On each occasion, the appellant was duly given a fresh letter of employment.
It was during the fourth hand last employment that the appellant’s employment was terminated by the 1st respondent on 15/5/1997 with an offer to pay him one month salary in lieu of notice of termination of employment, together with leave bonus all of which amounted to N5, 583.66k (Five thousand, five hundred and eighty three naira sixty-six Kobo). This offer was rejected by the appellant and he sued the respondents in the High Court where it was contended that he was entitled to various claims as pleaded in paragraphs 6, 7, 8, 9, 10, 11 and 13 of his statement of claim dated 19/5/98. The learned trial Judge struck out the 3rd defendant when the appellant did not make any attempt to make out any claim against him.
The appellant in his brief of argument complained basically against the three aspects of the judgment of the trial court. The respondents have argued these complaints in the respondents’ brief of argument and addressed them seriatim.
First, the question of whether the appellant is entitled to N5, 583.66. Respondents conceded paragraph 5 of their statement of defence admits of the fact in paragraph 6 of the appellant’s statement of claim that the appellant is entitled to that sum. This was communicated to him vide a letter referenced GPD/DPL/TA/97/01 of 6/5/97. Respondents denied the allegation that they refused to pay this entitlement to the appellant; rather it was the appellant who refused to collect the entitlement on the belief that he was entitled to a greater sum. I agree with the learned counsel for the respondents that the burden was on the appellant to prove that he approached the respondents to collect his entitlement after the offer in the said letter referenced and he was not given.
On the issue of overtime it is in paragraph 8 of the respondents’ statement of defence issues were joined with the claim of the appellant. Appellant’s contention is that DW1’s testimony to the effect that nobody works overtime in the respondents’ company is contrary to their pleading and therefore should be discountenanced.
In paragraph 8 of the statement of defence, respondents expressly deny that the appellant was entitled to overtime payment. Part of paragraph 8 of the statement of defence reads:
” … In the same way plaintiff is also not entitled to any overtime payments as alleged in paragraph II of statement of claim. This is because plaintiff was employed to work seven days in a week but he took two days off in every week working only for 5 days. The two days off offset the overtime period (if any) and therefore cannot be paid. Plaintiff is well aware of this arrangement and the 694 hours and 806 hours overtime are purely his own imagination and calculations.”
Learned counsel for the respondents explained the difference between the pleading and evidence of a witness in court. That is the law. I will explain further. In the instant case whereas the respondents’ pleading was confined to the question of overtime as it relates to the parties only, the evidence of DW1 extended it to all employees of the respondents. Evidence of DW1 is substantially in harmony with paragraph 8 of statement of defence in that it made it clear that the appellant did not work overtime and is not entitled to overtime payment. The law here is clear. Evidence of witness need not tally with pleadings with mathematical exactitude. Where evidence contradicts or cannot stand in the light of pleadings, it can therefore be said to be at variance with pleadings. Evidence of DW1 is not contrary to the pleading of the respondents. The respondents have properly joined issues with the appellant on the issue of overtime.It was for him to prove not only that he was entitled to overtime payment but also the amount due him as overtime payment as he claimed. I agree with the trial court that he failed to do so.
On the issue bordering on the National Provident Fund, it is the respondents’ position that arguments proffered by appellant goes to no issue as they do not form part of the appeal. This argument is based on the fact that appellant’s sole ground of appeal is that the trial court’s evidence is against the weight of evidence. That by this ground the appellant is inviting this court to determine on what ground of fact the judgment appealed against could be supported.
Learned counsel for the respondents, with due respect, has forgotten that the appellant sought and obtained leave of this court to argue two additional grounds of appeal. I have ruled that ground 3 from which the sole issue was distilled for the determination of this appeal is competent. It is this ground that has to do with six claims of the appellant of which the issue of his contribution to the National Provident Fund (NPF) was one.
The learned trial Judge decided on it. Learned counsel for the respondents has contended that the appellant is not entitled to a refund of the contribution to the National Provident Fund as well as the claim for a refund of money deducted as taxes. It is submitted by the learned counsel for the appellant that the money having not been paid over to the appropriate government agency, the appellant is entitled to seek a refund of such money. Reliance was placed by the learned trial Judge on S.32(3) of the National Provident Fund (General Regulations); a subsidiary legislation made pursuant to S.44 of the Principal Act which states thus:
“Any amount which has been transferred to the Reserve Fund shall be paid to any person who can show a legal title thereto within a period of five years from the time of its transfer to the Reserve Fund, provided he gives such indemnity to the Fund as the Director may require.”
It is clear from the above provision that it is only a person with a legal title to a contribution to the Fund who can claim it. The refund envisaged is to be claimed from the Fund and not from the employer as the appellant has done in this case. Having pleaded his entitlement to a refund of his contribution to the Fund, it is for him to show that his salary was deducted by the respondents for the purpose of the Fund. He is expected to tender his salary payment slips or produce similar evidence to show that he indeed contributed to the National Provident Fund Scheme. Appellant offered no such evidence. He merely claims that he is entitled to a refund of N2, 398.70. He could not establish how he arrived at the figure. The learned trial judge was right in not awarding him that sum. From the totality of evidence before the trial court, the learned trial Judge was not right in dismissing all the claims put forward by the appellant. The question of whether the appellant is entitled to N5, 583.66 as salary in lieu of notice is not disputed by the respondents. In fact the respondents conceded and admitted in paragraph 5 of their statement of defence that the appellant is entitled to that sum.
On the whole, I do find that this appeal partly succeeds. It is ordered that the appellant be paid the sum of N5, 583.66 being his entitlement of salary in lieu of notice. No order is made as to costs.
Other Citations: (2007)LCN/2590(CA)
