Mr. Sinclair A. Jambo V. The Governor Of Rivers State & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
SAULAWA, J.C.A.
This is an appeal against the decision of the Rivers State High Court, Port Harcourt Judicial Division, coram E. N. T. Ebete, J.; dated 30/4/2004. The appellant was a civil servant whose last place of work was the Establishment, Training and Pensions Bureau, Rivers State. He was however compulsorily retired from service with effect from 30/12/99. On 24/02/2000, the appellant filed a writ of summons registered as PHC/375/2000 in the trial court against the respondents seeking the following reliefs:
Endorsement of claim
I. That the plaintiff is still entitled to the occupation of his official residential quarters until the full payment of his retirement benefits.
- A declaration that the plaintiff is entitled to the full payment of his salaries for the months of December 1999, January 2000.
- An order of perpetual injunction restraining the defendants, their agents and servants and whosoever acting for or on behalf of the defendants from ejecting the plaintiff from his official quarters No. 18 Omoku Street, D/Line, Port Harcourt pending the full payment of the plaintiff’s retirement benefits.
Its instructive that in addition to the writ of summons alluded to above, the appellant had also filed in the trial court a motion on notice on 24/02/2000 seeking the following relief:
- An order of interlocutory injunction restraining the defendants, their servants or agents or whosoever acting for or on behalf of the defendants from ejecting or evicting the plaintiff from his official quarters No. 18 Omoku Street, D/Line, Port Harcourt pending the determination of this suit.
In response to the motion on notice in question, the respondents filed in the trial court a 17 paragraphed affidavit to the effect, inter alia, thus:
(10) That it is of a general knowledge to every civil servant that they are only entitled to 3 months to remain in any official quarters after retirement.
(11) That the effective date of retirement of the plaintiff/applicant being the 26/11/99, he is expected as a matter of practice to leave by latest on the 28th February, 2001, as was indicated to him in exhibit C (Final quit notice).
(12) That the plaintiff/applicant has now overstayed by over one year even after being given the normal 3 months notice which expired since.
(13) That the plaintiff/applicant is not making any effort to vacate the official quarters even though most of his counterparts have vacated theirs having processed their forms and already paid their gratuities.
(14) That the essence of this application is merely to hold the Government of Rivers State to ransom; with the aim of depriving other legitimate serving civil servant in the face of the current acute accommodation problems in the State.
As it would appear at pages 25 – 26 of the records of appeal, the motion for the interlocutory injunction in question was moved by the appellant’s counsel on 10/01/03. However, when the motion later came up on 21/4/04 for reply, the learned trial Judge ordered thus:
“Motion is adjourned to 30/4/2004 for the court to find out whether the cause of this action still exists.”
On the said 30/4/04, the two learned counsel addressed the court on the vexed issue of cause of action. Consequently, the learned trial Judge ruled thus:
Court: The claim of the plaintiff is that he is entitled to the occupation of the government residential quarters because he has not been paid his retirement benefit. This is why he has come to court urging the court to restrain the defendants from ejecting him from his official quarters at No. 18 Omoku Street, D/Line, Port Harcourt pending the full payment of his retirement benefits. The defendants have now reacted by saying that the plaintiffs has been paid his entitlement benefit so there is no more basis upon which his claim can stand.
Exhibit A annexed to the defendants’ claim counter-affidavit is a schedule of payment of retirement benefits. The plaintiff is No. 55 on the schedule which shows that he has been paid his retirement benefit which is why he came to court. The plaintiff has filed a further better counter-affidavit that he is asking for 10% interest of the sum of N672,800.00 which is what he was due as his retirement benefit and what he received. This is the first time that I am hearing that retirement benefit of any retired worker attracts 10% interest. This aspect of the claim of the plaintiff is not contained in his original claim. He has received his retirement benefit and so this claim can no longer stand.
Accordingly, this suit is hereby dismissed.
Thus, not unnaturally, being dissatisfied with the above ruling of the court below, the appellant has filed this appeal which is predicated on two grounds of appeal.
Its instructive that parties have filed and adopted their respective briefs of argument. On the part of the appellant, two issues have so far been formulated in the brief thereof thus:
(1) Whether the learned trial Judge was right when he held that “this aspect of the claim of the plaintiff is not contained in his original claim, he has received his retirement benefit and so his claim can no longer stand.” (This issue is distilled from ground 1 (one) of the grounds of appeal).
(2) Whether the learned trial Judge was right to have abandoned delivering ruling on the application for interlocutory injunction and deciding to terminate the case of the appellant before him even though there exist no application to that effect. (This issue is distilled from ground 2 (two) of the grounds of appeal).
On the other hand, the respondents have equally identified two issues in the brief thereof thus:
“(1) Whether the learned trial Judge was right to hold that the plaintiff having been paid his full retirement benefits (excluding interest) the claim before the court can no longer stand.
(2) Whether the learned trial Judge has the power to terminate the case of the plaintiff/appellant based on the circumstances in which he did it. (This issue is distilled from ground (2) two of the grounds of appeal).
On issue No. 1 it was submitted by the appellant’s learned counsel, that relief 2 of the statement of claim of appellant includes claim for an interest at the rate of 10%. Thus, the learned trial Judge was wrong in holding that no such claim on interest was contained in the original claim. It was further contended that, the statement of the appellant, in law, supercedes the writ of summons. See Eya v. Qudus (2001) 15 NWLR (Pt. 737) 587 at 596; 600 – 601 paragraph B.
The appellant further contended that interest may be claimed as of right where it’s contemplated by agreement between parties or under a mercantile custom or under a principle of equity. That, where interest is claimed as of right, the proper practice is to plead facts showing such an entitlement in the statement of claim. See Jos Steel Rolling Co. Ltd. v. Bernestieli (Nig.) Ltd. (1995) 8 NWLR (Pt. 412) 201: Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt. 347) 667. The court is thus urged to resolve issue No. I in favour of the appellant and allow the appeal.
On issue No.2, it was submitted that the learned trial Judge was wrong to have abandoned delivering ruling on the interlocutory injunction pending before the court and [thereby] terminating the appellant’s case even though there was no application to that effect. That, it is the law that a court can not grant an order not applied for by the parties. See Fasikun v. Oluronke II (1999) 2 NWLR (Pt. 589) v. Ekpenyong v. Nyong (1975) 2 SC 71: Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257; Abbas v. Solomon (2001) 7 MJSC 149 at 155, (2001) 15 NWLR (Pt. 735) 144; and Ochonma v. Unosi (1965) NMLR 321 at 323. The court was urged to also resolve issue No.2 in the appellant’s favour and thus allow the appeal.
On their own part, the respondents’ learned counsel had submitted that a respondent has a primary duty to support the judgment appealed against by showing that the appellant’s contention as to the part of error is without merit.
See NEPA v. Savage (2001) 9 NWLR (Pt. 717) 230; Osazuwa v. Isibor (2004) FWLR (Pt. 194) 387; (2004) 3 NWLR (Pt. 859) 16.
On issue No.1, it was submitted, inter alia, that the 1st and 2nd prayers of the appellants boil down to the same issue i.e. asking the trial court to protect his official residence until his full retirement benefits have been paid thereto by the respondents. That, once the 2nd prayer i.e. regarding payment of gratuity is [granted] paid by the respondents, “then the 1st and 3rd prayers collapse like a pile of cards.
It was thus argued that there is no more cause of action to be tried by the court below, even though the interest was claimed. The claim therefore ceases to stand. See Mcfoy v. UAC Ltd. (1961) 3 WLR 1405 at 1409; (1962) AC 152 to the effect that-
“You can not put something on nothing and expect it to stand. Per Lord Denning, MR.
It was further contended that the trial court was right in taking judicial notice of the fact that it is not in all claims that a plaintiff is entitled to interest. See Kano ile Printers Plc v. Tukur (1999) 2 NWLR (Pt. 589) 78.
Contending further that retirement gratuity for a civil servant can not attract interest and that the appellant had used the machinery of law to restrain the respondents from ejecting him out of his residential quarters for a period of four years. See Badejo v. Fed. Minister of Education (1996) 8 NWLR (Pt. 464) 15: A-G., Bendel v. A-G, Federation (1982).3 NCLR 1: (1981) 10 SC 59.
Relying on (i) Alhaji Onibudo & Ors. v. Akibu (1982) 7 SC 60 and (ii) Ulozor v. Ahmadu (2002) FWLR (Pt. 163) 132, it was contented that the trial court was right in holding that the cause of action having ceased to exist, the claim can not stand; it must be struck out.
However, it’s conceded that a statement of claim does indeed supercede a writ of summons. Nonetheless, the respondents argued that no agreement was entered between the parties to the effect that, should the respondents cause any delay in payment of the gratuity, they would be obliged to pay interest to the appellant. Secondly, that an employment in the civil service can not be related to mercantile issue. That, the appellant did not pay rents for the four years he stayed in the Government Official Quarters after the payment of his gratuity unlike his 65 other retired colleagues that left quietly. That, the maxim: “He who comes to equity must come with clean hands,” applies in the instant case. The court is thus urged to resolve this issue in favour of the respondents.
On issue No.2, it was submitted that the circumstances surrounding the case had afforded the learned trial Judge to exercise the court’s power of summary process. See Badejo v. Federal Minister of Education (supra).
It was further contended that the trial court was right to have dismissed the action upon discovering that the cause of action ceased to exist. See Ulozor v. Ahmadu (supra); A.-G., Federation v. A.-G., Abia State (2001) FWLR (Pt. 64); (2002) 11 NWLR (Pt. 725) 690; Alhaji Onibudo & Ors. v. Akubu (supra). It was also argued that contrary to the appellant’s allegation, it was the respondents’ counsel who made an oral application that the interlocutory application be dismissed on the ground that the appellant had been paid his retirement benefit. The trial court thus-
“Exercised its power of summary process and accordingly dismissed the case.”
The court is thus urged to also resolve issue No.2 in favour of the respondents and accordingly dismiss the appeal.
I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel and the various illuminative authorities referred to in the respective briefs of argument thereof and vis-a-vis the record of appeal.
It’s trite that the court has the discretion either to adopt the issues formulated by parties in the respective briefs of argument thereof or formulate such issues that it deems consistent with the grounds of appeal filed by the appellant. It’s however pertinent that the formulation of issues must essentially be consistent with the grounds of appeal filed. This is so, because the whole essence of formulating issues in brief of argument is to project clearly and concisely the substance of the complaint in the grounds of appeal requiring resolution. See Otuo v. Nteogwuile (1996) 4 NWLR (Pt.440) 56; Ebo v. NTA (1996) 4 NWLR (Pt. 442) 314; Incar (Nig.) Plc v. Bolex Enterprises (Nig.) Ltd. (1996) 6 NWLR (Pt. 454) 318; Ekunola v. CBN (2006) 14 NWLR (Pt. 1000) 292 at 319 – 320. I have deemed it expedient to adopt the two issues formulated by the appellant in the brief thereof, which I consider to be not only concise but also predicated on the grounds of appeal. There is also no doubt that the two issues formulated by both parties are not mutually exclusive.
On issue No. 1, I have accorded an ample albeit very critical consideration upon the ruling of the learned trial Judge at page 29 of the record and vis-a-vis the writ of summons and statement of claim at pages 1 – 2 and 3 – 5 of the record. I have alluded above to the reliefs sought as contained in the writ of summons. Relief 3 of the endorsement of claim to the writ of summons reads thus:
- An order of perpetual injunction restraining the defendants, their agents and servants from ejecting the plaintiff from his official quarters No. 18 Omoku Street, D/Line, Port Harcourt pending the full payment of the plaintiffs retirement Benefits.
There is no doubt the above relief does not contain any claim regarding 10% interest to which the appellant was allegedly entitled. However, the statement of claim, especially relief 2 thereof, has clearly contained a prayer for the payment of interest. The said relief 2 of the statement of claim is to the following effect:
2) An order directing the defendants especially the 1st and 4th defendants to immediately pay the retirement benefits amounts to the plaintiff which is the sum of N672,808.80k (Six hundred and seventy two thousand, eight hundred and eight Naira, eighty kobo) which has become due since 26/11/99 and interest on the said sum at the rate of 10% until the judgment sum is liquidated.
It’s a well established general principle of law that interest is payable where there is an express agreement to pay interest or where such an agreement can be implied from the course or circumstances surrounding the dealings between the parties or from the nature of transaction or custom or usage of the trade or profession concerned. See Enahoro v. IBWA Ltd. (1971) 1 NCLR 180; Jos Steel Rolling Co. Ltd. v. Bernestieli (Nig.) Ltd. (supra) at 208.
A claim for interest can arise in one of two ways:
(i) Where interest is claimed as of right, especially where its contemplated by agreement between the parties or under mercantile custom or under a principle of equity such as a breach of fiduciary relationship. The proper practice in this case is to claim entitlement thereto on the writ and plead facts to that effect in the statement of claim.
See Ekwunife v. Wayne (West Africa) Ltd. (1989) 5 NWLR (Pt. 122) 422; Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt. 347) 667; Jos S.R. Co. Ltd. v. Bemestieli (Nig.) Ltd. (supra) 208 – 209 paragraphs H – B.
In the instant case, although, as alluded to above, the claim for interest was not reflected on the face of the writ of summons, prayer No.2 of the statement of claim has expressly contained a claim for –
“Interest on the said sum at the rate of 10% until judgment is delivered and thereafter at the rate of 10% until the judgment sum is liquidated.”
It’s instructive that the latter claim in the statement of claim alluded to above supercedes the earlier one contained in the writ of summons’ in question.
This is so, because it’s a fundamental and trite principle of law that the claims set out in the statement of claim supercede the particulars of claim in the writ of summons. Thus, where a claim is made in a writ of summons but [which] is not reflected as a claim in the subsequent statement of claim, such claim earlier claimed is deemed as having been abandoned. However, an additional claim made in a statement of claim but [which was] not made in the writ of summons is deemed valid. See Eya v. Qudus (supra); Lahan v. Lajoyetan (1972) 6 SC 190; Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) 671; Opigo v. Yukwe (1997) 6 NWLR (Pt. 509) 428, respectively.
In the instant case, as alluded to above, the appellant has included the claim for the 10% interest in the statement of claim. In the circumstance, the claim for whatever, its worth, is deemed in law to be valid. See Himma Merchants Ltd. v. Aliyu (supra). Thus, there is no doubt that the learned trial Judge has erred in law when he held that the claim for a 10% interest was not contained in the original claim of the appellant. The writ of summons and the statement of claim were filed on 24/02/00 and 06/12/02, respectively. From the 06/12/02 when the statement of claim was filed to 30/4/04 when the ruling was delivered, no effort was made by the respondents to file their statements of defence. By virtue of paragraphs 5 and 6 of the “further counter-affidavit” of the respondents dated and filed on 20/4/04, the appellant was paid his retirement benefit totaling to the sum of N672,808.80 in question only on 20/01/2004 or thereabout. That’s over three years after he was retired from service.
It’s a trite principle of law that even if the appellant had not claimed interest on the face of the writ of summons, the trial court has a duty to award interest where facts pleaded in the statement of claim and evidence adduced clearly establish entitlement thereto. Thus, adjudication on the plaintiff’s right to interest is like any other issue in the case based on the evidence placed before the court. It is only when evidence is called at the trial in such a case that the interest claimed, the proper rate thereof, and the accrued date will be established. See Ekwunife v. Wayne (supra) 422 at 445; Akangbe v. W.A.P.I. Co. Ltd. (1975) 1 NMLR 215 at 218; Himma Merchants Ltd. v. Aliyu (supra) at 677.
It’s pertinent to emphasize that it is sufficient for a court to hold that a cause of action is reasonable once the statement of claim in a case discloses some cause of action or some questions fit to be decided by a Judge notwithstanding that the case is apparently weak or not likely to succeed at all. Thus, the fact that the cause of action is weak or unlikely to succeed is no ground to strike out or dismiss the case. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122; Green v. Green (1987) 3 NWLR (Pt. 61) 480; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; A-G., Fed. v. A-G., Abia State (supra) at 254.
In the instant case, its rather obvious that the learned tri al Judge was in error when he prematurely and most unjustifiably dismissed the case of the appellant. My answer to issue No.1 is thus no doubt in the negative. And I so hold.
On Issue No.2:
This second issue deals with the question of whether the learned trial Judge was right to have abandoned delivering ruling on the application for interlocutory injunction and deciding to dismiss the appellant’s case in the absence of any application to that effect. I think my answer to the vexed issue is without much ado, in the negative for some obvious reasons.
As alluded to above, when the motion for the interlocutory injunction last came up on 21/4/04, for reply by the respondents’ learned counsel, the learned trial Judge ordered thus-
“Motion is adjourned to 30/4/2004, for the court to find out whether the cause of this action still exists.”
It’s instructive that on the said 30/4/2004, the learned trial Judge, as alluded to above, came to the conclusions, inter alia, that –
This is the first time that I am hearing that retirement benefit of any retired worker attracts 10% interest. This aspect of the claim of the plaintiff is not contained in his original claim. He has received his retirement benefit and so this claim can no longer stand.
What happens to the application for interlocutory injunction which was adjourned previously to 21/4/04 for reply by the respondents’ learned counsel? That’s left to everybody’s guess, I suppose.
It’s not in doubt that the court has a discretionary power to at any stage of a proceeding before it strike out or dismiss the action on the ground that it discloses no reasonable cause of action. The discretionary power is aimed at compelling parties to comply with the rules of pleadings and practice of the court relating thereto. This power may be exercised by what is known as “summary process.”
However, it must be reiterated that such a discretionary, albeit coercive, power by summary process to terminate proceedings without a trial must be exercised with the greatest caution and circumspection. See Dyson v. Attorney-General (1911) 1 KB 410 at 419. Per Fletcher Moulton, LJ thus –
” … It is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad. Badejo v. Fed. Min. of Education (supra) at 47 per Gnu, JSC.
Granted, as alluded to above, that the trial court has a discretionary power to so strike out or dismiss the case by summary process. However, like every discretionary power, it must be seen to have been exercised not only judicially but also judiciously. In the present case, the learned trial Judge, in my view did not exercise the discretionary power thereof in accordance with the above well cherished principles. The exercise of such discretionary power must not in any way be allowed to inhibit the parties’ rights to fair hearing.
The trial Judge’s failure to proceed with the hearing of the respondents’ learned counsel’s reply and deliver a ruling upon the application for interlocutory injunction has no doubt amounted to a breach of the appellant’s right to fair hearing. See section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It’s pertinent that the well cherished doctrine of fair hearing as provided under the said section 36(1) of the 1999 Constitution, is not merely a technical principle. It’s rather a rule of substance. See Bamaiyi v. The State (2001) FWLR (Pt. 46) 956 at 974 paragraphs D- F, (2001) 8 NWLR (Pt. 715) 270; Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201, respectively.
Thus, my answer to issue No.2 is most undoubtedly in the negative. And I so hold.
Hence, in the light of the above postulations, I have come to the most inevitable conclusion that this appeal has merit and [it] ought to thus be allowed. The reliefs contained at the foot of the appellant’s grounds of appeal (at page 31 of the record) are to the following effect:
Reliefs sought from the Court of Appeal
- To allow the appeal and set aside the order of the lower court by Hon. Justice Ebete, who struck out the case.
- An order directing that another Judge of the High Court of Rivers State should continue the case.
I think the reliefs alluded to above are quite appropriate in the circumstance. Thus, I have no hesitation whatsoever in granting same. See Fasikun v. Oluronke II (supra) at 28 paragraphs D – E.
Consequently, having satisfied myself that this appeal is meritorious, I hereby without any further hesitation allow same. The order of the trial court dated 30/4/2004 striking out the appellant’s case, No. PHC/375/2000, is hereby set aside.
An order is hereby made remitting the said case back to the High Court of Rivers State, Port Harcourt, for the Chief Judge to reassign same to another Judge for trial.
I make no order as to costs.
Other Citations: (2007)LCN/2327(CA)
