Nicon Insurance Corporation V. Mr. Ayo Olowoofoyeku (2005)
LawGlobal-Hub Lead Judgment Report
I.T. MUHAMMAD, J.C.A.
This is an appeal against the Ruling and or order of the Federal High Court of Justice, FCT, Abuja, presided by Honourable Justice I. N. Auta, delivered on the 6/4/2000, in Suit No. FHC/ABU/CS/92/99.
The plaintiff filed this action against the defendant on the 8th day of June, 1999, claiming the following reliefs-
“(i) A declaration that the trial of the Plaintiff by the defendant’s Panel and its recommendation, finding the plaintiff guilty with the accompanying sanctions is unconstitutional, ultravires, illegal and therefore null and void.
(ii) A declaration that the Plaintiff is a public officer in the public service of the Federal Government of Nigeria and is therefore, subject to the general order regulating the affairs of the Civil Servants.
(iii) A declaration that the termination of the appointment of the plaintiff is unlawful and therefore null and void as same was done when the plaintiff was supposed to be on Interdiction or suspension or alternatively to (iii) above.
(iv) A declaration that the termination of the appointment of the plaintiff is unlawful as same was in violation of the civil service general order and the condition of service of the defendant.
(v) An order re-instating the plaintiff to his position in the defendant’s employment with the payment of all his salaries and entitlement since the termination up to when he is re-instated.
(vi) Alternative to (iv) above, payment of all the plaintiffs salaries and entitlements from the time his appointment with the defendant was terminated, up to retirement age in the civil service or alternatively, payment for the sum of N5m, as general damages for unlawful termination of the plaintiffs employment.”
The facts in the Printed Record of Appeal before this Court reveal that, the plaintiff was employed by the defendant in May, 1995. His appointment was confirmed six months thereafter.
In October, 1998, some Air Conditioners were kept in a room and in the morning, while checking the security lights in the premises, plaintiff discovered that the air conditioners were missing. He made a report of the theft to his manager, who directed him to make a written memo. After three weeks, the security Company HND went to the office, interrogated the plaintiff and was thereafter, arrested by the police who “tortured” and detained him for five days, before he was eventually charged to Magistrate Court Wuse, over the alleged theft.
During the pendency of the case in the Magistrate Court, the defendant set up a panel to investigate and try the people allegedly involved in the theft. At the end of the panels’ sitting, the plaintiff was found “guilty” of the theft.
Sequel to that, plaintiff was placed on suspension by the defendant despite an order of injunction not to do so from the Magistrate Court, After a plea by his counsel, the suspension placed on the plaintiff was lifted. He was recalled back but later, his appointment was terminated.
At the end of the trial at the Magistrate Court Wuse, the plaintiff was discharged. He then instituted the suit before the lower court. After settlement of pleadings, plaintiff gave evidence in person. Soon thereafter, the defendant filed an application for the dismissal of the suit for non-disclosure of cause of action and the application was accordingly dismissed by the lower court. Four grounds of appeal were set out in the Notice of Appeal filed before the lower court.
In this court, briefs of arguments including a reply brief were filed by learned Counsel for the respective parties. Four Issues were formulated by the appellant. They are as follows-
”(i) Whether the learned trial Judge was right, when he refused the appellant’s application and held that the respondent’s pleadings discloses a cause of action.
(ii) Whether the learned trial Judge was right, when he held that the plaintiff/respondent’s panel was a criminal trial and therefore, confers a cause of action as disclosed in plaintiff/respondent’s pleading.
(iii) Whether the learned trial Judge was right in law, and had exercised his discretion both judicially and judiciously, when he award the sum of N10,000.00 against the defendant/applicant in favour of the plaintiff/respondent as costs.
(Iv) Whether the learned trial judge was right in law, when he held that issues raised in the motion seeking to strike out pleadings of the plaintiff, in his view, could not be resolved by affidavit evidence except through a full trial.”
In his brief of argument, the respondent embedded a Notice of Preliminary Objection. He then formulated two issues viz-
“1. Whether the Respondent’s pleadings disclose cause of action.
- Whether from circumstances the lower court was right in the exercise of its discretion in dismissing the Motion with N10,000 cost.”
On the Notice of Preliminary Objection, same was deemed abandoned on the hearing date and was accordingly, struck out along with arguments in respect thereof.
In his submissions on issue 1, learned Counsel for the appellant referred to the NICON’s conditions of service contained in Exhibit H. Paragraphs 23, 24 of the plaintiff’s statement of claim and the evidence of PW1 were also referred to. Further, the defendant’s company is not regulated, guided and or operated within the civil service rules. Learned Counsel cited and relied on Exhibit A (Performance Agreement between the FGN, NICON Insurance and Bureau for Public Enterprises which removed the appellant from the rules, regulations and conditions prevailing in the Nigerian Civil Service. Learned Counsel argued for the appellant that the mere fact that a plaintiff is employed by a statutory body does not make his employment enjoy statutory flavour. NIGERIAN SOCIAL INSURANCE FUND MANAGEMENT BOARD v: ADEBIYI (1999) 13 NWLR Pt, 633) 16 at page 28 C-E. SALAMI V. NNN LTD (1999) 13 NWLR (Pt. 634) 315 at 331- 332 E-A referred to. Contended further is that in the absence of the civil service rules regulating he defendant’s employment, only the conditions of service of the defendant will regulate plaintiff’s employment and hence, plaintiff’s employment does not enjoy statutory flavour. The defendant complied with the conditions of service in terminating plaintiff’s employment and plaintiff’s case should have been struck out in Limine as it does not disclose any cause of action.
On issue NO.2, the learned Counsel for the appellant submitted that the panel that investigated the matter was an administrative panel to prepare a report of finding in relation to a theft in the premises. The panel report was not used as a criterion for terminating plaintiff’s appointment. The report cannot give rise to a cause of action for the plaintiff.
Issue NO.3 challenges the exercise of the learned trial judge’s discretion that it was not judicial and judicious. The respondent’s application for costs had no basis as applicant was acting within the ambit of the law. The award of this outrageous amount of costs smarks up punishment. Learned Counsel referred to the case of BABALOLA V. BADMUS WELLINGTON (1998) 11 NWLR (Pt. 572) 167 at 177-178 H-A. The trial court did not take relevant consideration into account, such as how long it has taken to handle the application and transportation. The argument on issue No. 4 is that, the legal pleadings has nothing to do with affidavit evidence but by pleadings. The learned trial Judge ought to have considered not only the supporting affidavit to the motion, but the plaintiff’s statement of claim to see action. He ought to have also considered the statement of defence to see whether it was a complete answer to the plaintiff’s claim. He cited and relied on the case of ADESOYE V. OLAUNGI & 1 OR (1998) 12 NWLR (pt.576) 129 E-F.
Learned Counsel for the appellant urged this court to allow the appeal by setting aside the ruling of the lower court and strike out the respondent’s pleading in Limine for having not disclosed cause of action.
Learned Counsel for the respondent submitted under issue 1 that the trial by the panel set up by the appellant for theft was unconstitutional and that the verdict which found the respondent “guilty” of theft: was ultra vires, null and void. He argued further that the controversial circumstances of the alleged termination of respondent’s employment was in itself enough to confer cause of action. The panel had no power to try respondent for any criminal offence. Argued for the respondent further, is that coming to court to have the panel’s report nullified constitutes cause of action. Reference was made to the case of FEDERAL CIVIL SERVICE COMMISSION & 2 ORS. V. LAOYE (1989) All NLR 350 at 366-368.
On issue NO.2, learned Counsel for the respondent submitted that there were circumstances which gave the learned trial judge the impression that the appellant undertook to pay damages (akin to costs), should the application be found unmeritorious and frivolous. The costs awarded was not punitive and the learned trial Judge exercised his discretion to award the costs judicially and judiciously. Learned Counsel urged this court to dismiss or strike out the appeal for lack of merit.
I prefer to adopt the issues formulated by learned Counsel for the respondent as they cover all the points in the appellant’s issues.
The 1st issue is on whether the respondent’s pleadings disclosed cause of action. This issue takes care of appellant’s issues Nos. 1 and 2. A cause of action is that action which connotes every fact which is material to be proved before a competent court of law, to entitle the plaintiff to succeed, or, all those things necessary to give a right to relief in law or equity. It is the factual base or some factual situation, a combination of which makes the matter in litigation an enforceable or an actionable wrong. See: BELLO V. A-G OYO STATE (1986) 5 NWLR (Pt 45) 828, THOMAS V. OLUFOSOYE (1986) NWLR (Pt. 18) 669; IBRAHIM V. OSIM (1988) 3 NWLR (Pt. 82) 257; TUKUR V. GOVT. OF GONGOLA STATE (NO.2) (1989) 4 NWLR (Pt 117) 517. The long established criteria employed by the courts in determining the existence or non-existence of a cause of action in a suit is for the court to consider the writ of summons and the statements of claim. AREMO II v. ADEKANYE (2000) 2 NWLR (Pt. 644) 257; ELEMA v. NEPA (2000) 2 NWLR (Pt. 644) 337.
Paragraph 29 of the Statement of Claim provided the claim of the plaintiff as follows-
”29. Whereof the plaintiff pray the court for the following:
(i) Declaration that the trial of the plaintiff by the defendant’s panel and its recommendation finding the plaintiff guilty with the accompanying sanction is unconstitutional, ultra vires, illegal and therefore null and void.
(ii) A declaration that the plaintiff is a public officer in the public service of the Federal Government of Nigeria and is therefore subject to the General Order regulating the affairs of civil servants.
(iii) A declaration that the termination of the appointment of the plaintiff is unlawful and therefore null and void as same was done when the plaintiff was supposed to be on interdiction or suspension or alternatively to (iii) above.
(iv) A declaration that the termination of the appointment of the plaintiff is unlawful as same was in violation of the civil service general order and the conditions of service of the defendant.
(v) An order re-instating the plaintiff to his position in the defendant’s employment with the payment of all his salaries and entitlements since the termination up to when he is re-instated.
(vi) Alternatively to (iv) above, payment of all the plaintiffs salaries and entitlements from the time his appointment with the defendant was terminated up to retirement age in the civil service or ALTERNATIVELY, payment for the sum of N5m to the Plaintiff by the Defendant being general damages for unlawful termination of the plaintiffs employment”
After the commencement of trial with the plaintiff testifying as PW1, the appellant filed a motion for the striking out of the respondent’s pleadings for non-disclosure of cause of action. The learned trial judge gave his ruling in the following terms;
“Court: I have gone through the submissions of both counsels and I find that the pleadings disclosed a cause of action. The plaintiff is challenging his trial by a Panel on an allegation of a criminal offence, that he was not given fair hearing before his job was terminated based on the report of the Panel. This is a cause of action. There are other issues which I believe cannot be decided base on affidavit evidence. I therefore find that the application has no merit. The case will be heard on its merit.”
I am in full agreement with the finding and conclusion of the learned trial Judge on that application and I have no reason to tamper with it. It is worthy of note that amongst the salient rules which distinguish a claim which discloses cause of action from the one that does not are that where a statement of claim discloses some reasonable cause of action on the facts alleged in it is where the claim has some chances of success and once it raises some issues of law or fact calling for determination by the court, it cannot be stuck out. See: DRUMMOND JACKSON v. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688; WENLOCK V. MELONY (1965) 1 WLR 128. For a statement of claim to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be unsustainable or unarguable or it is incontestably bad. see: TIKA-TORE PRESS LTD. v. UMAR (1968) 2 All 107; NAGLE V. FEIDEN (1966) 2 Q.B. 633 at page 651.
It should be noted as well that when considering the disclosure of cause of action, it is irrelevant to consider the weakness of the plaintiffs claim. What is always important is to examine the averments in the pleadings and see if they disclose cause of action or raise some questions fit to be decided by a Judge. see: OGUNSANYA V. DADA (1992) 4 SCNJ 162 at 169; YUSUF V. AKINDIPE (2000) 8 NWLR (Pt. 669) 376. There is nothing more grievous than a plaintiff or an appellant challenging the manner in which he was tried by a court or a tribunal. The respondent was challenging the trial conducted against him by the panel constituted by the appellant, on a matter which was purely criminal. This alone must in my view, constitute a cause for which a full trial by a court of competent criminal jurisdiction must be conducted. The constitution of the Federal Republic of Nigeria has provided, under its chapter of Fundamental Rights as follows-
”36 (4) Whenever any person is charged with a Criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”
Paragraphs 10 – 13 of the Respondent’s Statement of Claim made the following averments-
“10. After the plaintiff was arrested by the Police, the defendant set up panel to investigate the alleged theft and to make necessary recommendation to the defendant as to the culpability of the plaintiff and Mr. Chonkea in the theft of the A/Cs.
- The said Panel called witnesses and at the end the panel found the plaintiff guilty of the theft and made its recommendations accordingly. The panel’s report is hereby pleaded. Notice is hereby given to the defendant to produce the original of the panel’s report at the trial of this suit.
- Being aware of the negative effect the panel’s report would have on the plaintiffs employment with the defendant, coupled with the fad that the case was with the police and court, the plaintiff approached his counsel about the panel’s report. The solicitor informed the plaintiff about the illegality of the defendant’s action and promised to see redress for the plaintiff.
- The plaintiff’s solicitor wrote the defendant about the illegality of their setting up a panel to try the plaintiff for the alleged crime of theft and urged the defendant to set aside the panel’s recommendations as they affect the plaintiff. The solicitor’s letter of 1st April 1999 is hereby pleaded and its acknowledgement and notice is hereby given to the defendant to produce the original at the trial.”
There is certainly need for a full trial of the case by a competent court of law. I therefore resolve this issue in favour of plaintiff/respondent.
The second issue is on costs awarded by the learned trial judge in favour of the plaintiff/respondent against the defendant/appellant. Grant of costs in a civil trial by a Judge is purely discretion. The settled law is that where a trial judge exercises his discretion judicially and judiciously, the appeal court has no business to question such exercise of discretion. See: SARAKI V. KOTOYE (1990) 4 NWLR (pt, 143) 144 AT PAGE 151; Per Obaseki JSC; ROYAL EXCHANGE ASSURANCE (NIG.) LTD v. ASWANI ILES LTD (1992) 3 NWLR (Pt. 2278) 1 at page 5. It is not also the role of the appeal court to ask the learned trial Judge, the reasons why he exercised his discretion the way he did. See: IGBOANUGO V. STATE (1992) 2 NWLR (Pt. 281) 784 at page 789.
Secondly, although none of the counsel for the respective parties raised the issue of appeal on matters relating to costs only, I feel obliged to draw attention that the law is well settled by Section 241 (2) (c) of the 1999 Constitution that where no leave of the trial court or of this court is sought and obtained, no right of appeal is conferred on a party on matters of costs only.
This issue is also resolved in favour of the respondent.
In the final analysis, I find no merit in this appeal and it is hereby dismissed. The respondent is entitled to N10,000.00 costs from the appellant.
Other Citations: (2005)LCN/1692(CA)
