Okomu Oil Palm Limited V. Mr. O. J. Okpame (2006)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
Briefly the facts leading to this appeal are as follows:
The Respondent was appointed by the Okomu-Udo Federal Oil Project in 1982 at that time the project was owned by Federal Government, State Government and Local Government. His appointment was originated by a letter which was tendered as Exhibit A and A1 without any objection.
By a letter dated 18/1/86 exhibit E termination letter was handed to the respondent, while he was is the police cell as a suspect in an armed robbery incident which happened at his office.
Dissatisfied with his termination, the respondent commenced an action in the then Bendel State High court sitting at Iguobazuwa claiming as follows:
(1) A declaration that the purported termination of plaintiff’s appointment with the defendant vide defendant’s letter dated 18/1/86 is unconstitutional, invalid, illegal, null and void and of no effect.
(2) A declaration that the plaintiff is entitled to the following reliefs and payment amounting to N91,562.00k with immediate effect as special damages.
(a) Arrears of salary of N650 per month from 1/12/85 – 31-12-85
(b) Salary for 11 years or 132 months at N650 per month N85,000.00k
(c) Transport Allowance at N30 per month for 11 years or 132 months N3,960.00
(d) Annual leave allowance of N96 per annum for 12 years N1,152.00
Total N91,560.00k
3(a) The plaintiff claimed also N250,000 aggravated damages for unlawful dismissal in addition to the N91,562.00k special damages claimed in paragraph 16(as above).
3(b) Particular of aggravated damages. By his unlawful dismissal eleven years before the plaintiff was due for pension under the Pensions Decree 1979 the plaintiff has lost his enhanced chance of promotion and was derived of his pre requisites and benefits of higher office in the employment of the defendant.
After the exchange of pleadings by both parties, evidence was led by the plaintiff/respondent (now referred to as Respondent) calling 2 (two) witnesses. The appellant/defendant (hereinafter referred to as Appellant) did not call any evidence but submitted a written address. The learned trial judge on 6/4/90 awarded to the plaintiff the sum of N63,050.00 out of N91,562.00 claimed by the Respondent.
The appellant being dissatisfied with the said decision appealed to this court.
The appellant filed a notice of Appeal containing only one ground of appeal and with the leave of this Court on 2nd day of April, 2001 filed three additional grounds.
The appellant submitted the following as issues for determination.
(a) Whether the judgment of the learned trial Judge is a nullity.
(b) Whether the respondent’s employment was governed by the Civil Service Regulation
(c) Whether the Respondent was entitled to damages.
The Respondent in his respondent’s brief of argument seems to have adopted the issues as formulated by the appellant.
The respondent was an Assistant Executive Officer with the appellant which was known and called Okomu/Udo Federal Oil Palm-project but now known as Okomu Oil Palm Limited. It has not been in dispute that the letters of appointment and confirmation of appointment emanated from Okomu/Udo Federal Oil Palm Project.
It is in evidence that Okomu/Udo Oil by whatever name is called, the Federal Government has 60% in the company, State government 25%. The facts were clearly stated in exhibit K. This appeal was heard on 29th March, 2006.
In my consideration of this appeal I am of the view that the issues as stipulated by the appellant and agreed to by the Respondent will be enough to dispose off the appeal.
ISSUE 1
The appellant agreed that the judgment was delivered on the 6th day of April, 1990. At the time this judgment was delivered, the plaintiff had died. He died on 11th of January, 1990 at 9.00 a.m. I agree with the appellant that the plaintiff’s counsel was in a position to know that the plaintiff was dead. It is of note that the plaintiff’s counsel on 10/6/91 brought an application to substitute the dead plaintiff now named respondent. The appellant therefore argued that the judgment of the trial Judge delivered in a case where there was no live plaintiff is erroneous in law and therefore null and void.
The respondent counsel argued that as at the time judgment was delivered, the plaintiff had died but urged it on this court to hold that whether a cause of action survives or not there shall be no abatement by reason of death of either party between finding of issues of facts, and judgment.
The general rule at Common Law as it relates to the maxim ACTIO PERSONALIS MORITUR CUM PERSONA as raised by the appellant was that if an injury were done either to the person or to the property of another for which unliquidated damage only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was done. The rule of common law has been restated by various statutes. The maxim is of English common law origin.
The Administration of Estate Law Cap 2 Laws of the Bendel State of Nigeria 1976 Vol. 1 Section 15(1) and (2) thereof provides and I quote.
SECTION 15 (1)
“Subject to the provision of this section on the death of any person after the commencement of this Law all causes of action subsisting against or vested in him shall survive against or, as the case may be for the benefit of his estate.
Provided, that this sub-section shall not apply to cause of action for defamation or seduction or for inducing one spouse to leave or to remain apart from the other or to claims for damage on the ground of adultery.” SECTION 15 (2)
“Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person recoverable for the benefit of the estate of that shall not include any exemplary damage.”
In the instant case, the deceased claimed against the appellant arrears of salary, transport, annual leave allowance which were money due to him in his life time. The Supreme Court in the case of Eyesen v. Sanusi (1984) SCNLR page 353 deciding on S.15 of the Administration of Estate Law Cap 2 Laws of Lagos State which stipulates that on the death bf any person all cause of action subsisting against him or vested in him shall survive against or as the case may be for the benefit of his estate (save the exception mentioned therein. This provisions are in pari material with section 15 of the Administration of Estate Law Cap 2 of Bendel State applicable in Edo State.
The Supreme Court held that the case of the appellant survives him and therefore his executors could claim and benefit. In the instant case, the plaintiff/respondent prosecuted his case till judgment was reserved. The action of the counsel to the deceased in concealing the death of the deceased is condemnable as is done in the case of MOMODU & ORS. V. MOMOH & ANOTHER (1991) 2 LRCN 437 the Supreme; Court held that “It is a very serious matter and indeed sad for counsel whose bounden and inescapable duty is to assist the Court to appear to be intent in misleading the Court. This attitude of counsel which is unethical and reprehensible calls for condemnation by the Court in no uncertain terms. Be that as it may from the above consideration of the Statute and decided cases, I hold that the maxim is not applicable to the case under consideration. The substitution of the present respondent is in order and the 1st Issue is resolved in favour of the Respondent.
ISSUE II
The appellant argued that the plaintiff /respondent did not prove that his employment was governed, by the Federal Civil Service Rules as he did not lead evidence to the effect that he was employed by the Federal Civil Service Commission. The plaintiff in his evidence showed that as at the time of his employment he was an employee of the Federal Government of Nigeria as the Federal Government/State Government owned the project/company. There is no doubt that it is good law when the Supreme Court said that having a controlling number of share in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence See Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) at 660. In this case the Supreme Court held further:
Since the appellant is a limited liability company with powers to sue and be sued in its own name and powers as a corporate body, it is illogical to contend that its operations are governed by the Civil Service Rules. The spirit of the corporate existence of companies will be negated should this state of affairs be allowed to have sway.
The learned trial Judge based his finding on S. 277 of the Constitution of the Federal Republic of Nigeria 1979.
Section 277(1) of the 1979 Constitution provides as follows:
“Public Service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation; and include service as …
(f) staff of any company or enterprise in which the Government of a State or its agents holds controlling shares or interest.
For the respondent to claim the benefit of this section he has to prove that the conditions of service with the appellant are governed by the Civil Service Regulations. He has the duty to show that he was employed by the Federal Civil Service Commission. Here the terms of his service was not tendered, it was therefore difficult to know the entitlement of the respondent.
ISSUE 3 has been taken care of in my consideration of Issue No.2. Since it is difficult to determine what the entitlement of the plaintiff/respondent should be, I believe justice of the case demands that the case be remitted to the Chief Judge of Edo State for assignment to a Judge to determine the entitlement. This appeal therefore succeeds in part. The case shall be remitted to the court below for the determination of the entitlements of the plaintiff/respondent in line with his conditions of service.
I make no order as to cost.
Other Citations: (2006)LCN/1950(CA)
