M. O. Sekoni V. U.t.c. Nigeria Plc. (2006)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
The plaintiff’s claim which eventually was considered can be found in his further amended statement of claim. The application to further amend the statement of claim, dated 5th July, 1999, was served on the defendant after the conclusion of addresses and the matter was in the process of being adjourned for judgment. The claims endorsed on the further amended statement of claim which was indeed the only application dated 5th July, 1999 are recited immediately hereunder:
“Whereof the plaintiff claims against the defendant as follows:
- A declaration that his purported dismissal as per the defendant’s letter 30th August, 1996 is null and void.
- N500,000.00 as damages for the pain, distress and anguish occasioned by the said letter.
- Further and other reliefs.
Alternatively the plaintiff claims:
- A declaration that his purported dismissal is wrongful and ineffectual to terminate his employment with the defendant/company.
- An order that the defendant pays to the plaintiff by way of equitable verification all sums that must have accrued to him upon the attainment of 16 years of service with the defendant/company.
Further in the alternative the plaintiff claims:
- N2.5 million as damages occasioned by the defendant’s breach of its conditions of service and/or for the pain suffering and distress occasioned thereby.
Particulars of special damages
- Pension/gratuity at the rate of 10% of annual salary for 15 years 9 months, meal subsidy, transport and allowance rent subsidy.
It is pertinent to observe that the amended statement of claim itself was not filed and served until the defence had closed its case. The respondent has not cross-appealed against amendment of pleadings which had the effect of changing the coloration of the suit after both parties have closed their cases and the defendant had addressed the court.
By virtue of Order 26 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994, the court or a Judge in Chambers may permit either party to alter or amend his endorsement of pleadings at any stage of the proceedings. The amendment, however, must be “in such manner and on such terms as may be just.” Consequently, where the amendment may not be fair or just, it will not be granted. It is also important or required that all such amendment shall be made as may “be necessary for the purposes of determining the real questions in controversy between the parties” where an amendment is not necessary for the purpose of determining the real issue in controversy between the parties then the amendment shall not be made. For an amendment to be granted, it must not only be just but must equally be necessary for the purpose of determining the real issue or issues in controversy between the parties. I am encouraged in this view by the case Onwunalu & Ors. v. Osademe (1971) NSCC 13, 15 where Supreme Court held that amendment of pleadings is not permissible if it will work hardship and injustice on the respondent. See Bamishebi v. Nosiru Ote & Ors. (1995) 8 NWLR (Pt. 411) 1, 9 – 10. The only amendment that could be considered and granted where the matter involved is raised in the course of the trial and counsel had addressed the court on it since it will have the effect of bringing pleadings in line with what had emerged in the course of the trial as an issue between the parties: Taiwo v. Akinwunmi (1975) 1 All NLR 202, 219. In the present case, respondent had no opportunity of contesting the issue such as pain, suffering, distress or trauma arising from dismissal from service. I believe this is a point of fact and not law and cannot be foisted on the respondent without offering it the opportunity to adduce evidence to show that pain, suffering, or distress is not necessarily occasioned by dismissal from service. There are other circumstances of live which could ignite them.
Plaintiff testified in support of his claim and the defence called two witnesses in support of its defence. Learned counsel on behalf of their respective clients addressed the court. Learned trial Judge, after considering the evidence and the law, in a reserved and considered judgment, concluded as follows:
“In this case I have found that this plaintiff’s dismissal was lawful. Accordingly he is not entitled to declaratory relief. See Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512. Finally, so long as the dismissal was done in accordance with the terms of contract as I have found, the injured feelings of the plaintiff or the inconvenience he may have suffered are irrelevant. See Chukwuma case referred to above. In sum the plaintiff’s claims are refused and are hereby dismissed.
Dissatisfied or aggrieved, the plaintiff (hereinafter referred to as appellant) appealed to this court on six grounds of appeal including the omnibus ground.
Pursuant to the practice and procedure of this court, briefs of argument were filed and exchanged at the appellant’s, respondents and appellant’s reply briefs.
At the hearing of the appeal, learned senior counsel for appellant adopted and relied upon appellants and appellants reply briefs. Learned counsel for the defendant (hereinafter referred to as the respondent) adopted the respondent’s brief and placed reliance on same.
It may be apt, at this stage, to give albeit a succinct statement of facts of the case. The appellant was employed by the respondent as graduate trainee on 14th November, 1980 and raised through the ranks to the position of senior store manager which position he held until 30th August, 1996 when he received a letter from the respondent dismissing him from its service on account of stock shortage of N1,800, 000.00 from Lagos Department Store. Being unhappy with the respondent’s conduct, the appellant instituted an action at the Lagos High Court, challenging his removal. His claims were dismissed at the lower court after trial consequent upon which he filed a notice of appeal to this court.
The appellant, in his brief, identified 2 issues as calling for determination in this appeal. The two formulations are recited immediately hereunder:
“1. Whether the defendant acted in breach of its conditions of service on dismissing the plaintiff summarily from its employment.
- In the event of a finding that the defendant acted in breach of the conditions of service, whether the plaintiff is entitled to the reliefs claimed.”
The respondent, in its brief, formulated the following two issues as calling for determination:
“1. Whether the respondent was right in holding the appellant responsible for the stock shortage and thereby dismissing him summarily.
- Whether the lower court could grant the declaratory relief and damages sought in this case having regard to the evidence before the court.”
None of the parties particularly appellant related any of the two issues framed in his, or its briefs to the six grounds of appeal filed along with the notice of appeal contrary to the express provisions or order 6 rule 3(1) of the Court of Appeal Rules No.2 of 2004. Order 6 rule 3(1) provides as follows:
“1. The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal. (Italics mine)
The purpose of this requirement is that, when an issue is resolved, the court will be able to determine whether the ground or grounds of appeal related to such an issue succeeds or fails depending which way it is resolved. It is the aggregate of success or failure of the ground or grounds of appeal that determines whether an appeal will be allowed fully or partially or dismissed in its entirety. It follows therefore that an issue must be supported by or derived from, at least, a ground of appeal, otherwise it will be incompetent or disregarded by the Court of Appeal in the determination of the appeal. It is not permissible to canvass and tender argument on issues having no bearing with any of the grounds of appeal: See Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391, 423 where the Supreme Court stated:
“It is well settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out”
And in Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501, 533 it was stated thus:
“… Each party to an appeal, the appellant or the respondent, is entitled to formulate what are in his opinion the issues for determination, but the issues must arise from and relate to the grounds of appeal filed.”
See also Republic Bank (Nig.) Ltd. v. Central Bank of Nigeria (1998) 13 NWLR (Pt. 581) 306 and Ajejewa v. Egbeyemi (1955) WRNLR 51.Where all the issues as in the instant appeal are not related to the grounds of appeal, it would be taken that all the grounds have been abandoned and they will be dismissed. The appeal will also be dismissed: See Josiah Cornelius Ltd. v. Ezenwa (1996) 4 NWLR (Pt.443) 391, (1996) 37 LRCN 618; Danfuani v. Shekari (1996) 2 NWLR (Pt. 433) 723; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.
Furthermore, the appellant, having formally framed two issues for determination, as set out above, abandoned them and went ahead to argue the appeal under three separate headings, contrary to the hallowed principle that it is the issues that are argued and not the grounds of appeal. But in the instant case, neither issues nor grounds of appeal were argued. The divisions under which the appeal was argued are (a) breach of condition of service (b) entitlement to the reliefs claimed (c) damages to include damages for mental distress, pain and suffering. The practice or procedure adopted by the learned senior counsel is novel. It is rather strange. Neither the current procedure whereby counsel are required, in their respective briefs, to canvass and tender argument in support of issues deriving from grounds of appeal nor erstwhile practice of arguing the grounds of appeal is followed. It is not permissible to canvass and tender argument by tripling the two issues. Having divided into three, the alleged two issues formulated and canvassed them separately it is not possible to consider the appeal properly and fairly. Indeed it is not the business of the court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the appellant’s brief of argument. See generally Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372, 389; Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; (1987) 12 SC 14. I am unable to apportion the three segments into which the arguments have been truncated to the two issues framed by the appellant without violence to the argument. Assuming it could be done, without so deciding, any attempt to separate them clearly would necessitate the court stepping into the arena on the side of the appellant. There is no gain saying that the dust rising therefrom would becloud the vision of the court.
It would probably have been a different kettle of fish if the respondent had followed the appellant’s approach. But he did not. He impliedly rejected the unorthodox procedure or practice the appellant adopted or carved for himself. The respondent’s argument was solely in support of its two formulations of issues. The problem thus created for the court now is to ascertain which of the respondent’s issue is designed to meet appellant’s apparent three issues. Undoubtedly, any effort on the part of the court to shift appellant’s argument to meet respondent’s two issues will lead to overburdening the court with assignment which is not its own. Unnecessarily saddling the court with the duty of apportioning appellant’s argument to meet the respondent’s two issues might result in injustice. Respondent might be prejudiced. It is a no win situation. If the appellant succeeds, respondent justifiably will attribute it to the court’s intervention. On the other hand, if the appellant fails he could blame the court for tinkering with his brief. The court would not be competent to do so.
This is not an example of a bad brief which could be tolerated. Rather it is a typical example of an incompetent brief. There are issues; indeed two of them framed which are not related to any of the six grounds of appeal. The issues were not canvassed and argument tendered in support of them, rather arguments were canvassed in support of some nebulous arrangement. The approach adopted by learned senior counsel is strange to the practice and procedure of this court. I labour in vain to find a provision of the Court of Appeal Rules or any other principle of practice upon which to predicate the method adopted by the appellant. The brief has not been prepared in accordance with the provisions of Order 6 rule 3. This detect cannot be considered as a mere technicality. This court, like any other court, is enjoined to do substantial justice and to avoid technicalities but the court is bound by statute, both substantive and subsidiary, if the statute lays down a procedure, the court is bound to enforce its compliance: Awoniyi v. Eletu (1963) 2 All NLR 99. It is settled that rules of court are made to be obeyed. The learned senior counsel has acted more in breach than in compliance. The consequence is that the court which is required to do justice according to law, cannot use a brief which is in breach of rules of court. It is not in the interest of justice to do so. It will not be in the interest of justice to sustain appellant’s brief because one will be acting arbitrarily or contrary to the rules. Whatever the court does must be in accordance with the law and must have taken into account the interest of the parties and the court. See Willoughby v. Intercontinental Merchant Bank Nigeria Limited (1987) 1 NWLR (Pt.48) 105, (1987) 1 SCNJ 46. A court must be bound to rules made under the law of the realm. To ignore the rules and leave attainment of justice to the discretion, caprices or idiosyncrasy of individual Judges could lead to tyranny and injustice which may end in chaos but clearly not in the interest of justice according to the law.
Consequently, I strike out the appellant’s brief on account that the two issues identified for determination therein are not shown to have derived from any of the six grounds of appeal carried in the I notice of appeal. In addition, the appeal was argued, not on the issues formulated, but in a manner akin to essay or paper writing. See also Ezemba v. S. O. Ibeneme (trading under the name and style Solde Engineering Works Nigeria Ltd.) (2004) 14 NWLR (Pt.894) 617. The appellant in that case formulated two issues. He canvassed one of the issues, thereafter; he proceeded to argue the remaining grounds of appeal. The Supreme Court considered the only issue canvassed and refused to consider the grounds of appeal in respect of which argument were proffered and tendered. It is therefore trite that where argument is not presented in the support of issues deriving from a competent ground of appeal such argument could be ignored and the appeal dismissed. The brief, having been struck out for incompetence, there is nothing left on which to hear or consider and determine the appeal. Therefore, the appeal is dismissed for want of prosecution.
The appeal, having been dismissed, the decision of the learned trial Judge is affirmed.
I make order as to costs which are assessed at N10, 000.00 in favour of the respondent and against the appellant.
Other Citations: (2006)LCN/1872(CA)
