Petroleum Training Institute V. Mr. Iyeke Matthew & Ors (2006)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the judgment of the Federal High Court, Benin Judicial Division, in Suit No. FHC/B/CS/181/2004 delivered on 27th January, 2005.

The 1st – 26th respondents were the Plaintiffs at the lower Court, while the Appellant and the 27th Respondent were the Defendants. In an originating summons dated 7th September, 2004 but filed on 8th September, 2004 and brought pursuant to order 7 rules 1 of the Federal High Court Rules, 2000 and S.15 of the Trade Disputes Act Cap 432 LFN 1999,(sic) the 1st-26th Plaintiffs/Respondents raised the following 2 questions for determination. They are:-

1) Whether the Defendants are justified in withholding the monthly salary and allowances of the Plaintiffs since December, 2002;

2) Whether the Plaintiffs are not bonafide staff of the Defendants since February, 2003.

Upon the determination of these questions, they sought for the following reliefs namely:-

1) A declaration that the Plaintiffs were employed as staff the Defendant (sic) with effect from December 2002;

2) A declaration that the Plaintiffs are entitled to their monthly salary and allowances since December, 2002;

3) An order directing the Defendant to pay over to the Plaintiffs their monthly salary and allowances since February 2003; and

4) An order directing the Defendants whether by themselves, their agents, privies and/or servants from discriminating against the Plaintiffs in any manner whatsoever and howsoever.

The summary was supported by an affidavit of 19 paragraphs deposed to by one of the Plaintiffs. It has some copies of documents attached; in its response the 1st Defendant/Appellant filed a counter affidavit of 15 paragraphs. Further to that, the 2nd Defendant/27th Respondent replied the summons with a 25 paragraph counter-affidavit. In paragraph 3 of the counter affidavit, the 1st Defendant/Appellant averred that paragraphs 1, 2, 4, 5, 6, 9, 10, 12, 16, 17 and 19 of the affidavit in support of the summons were not true. On its own part, paragraph 3 of the counter affidavit of the 2nd Defendant/Respondent did a blanket denial of every allegation in the affidavit in support, except such that were specifically admitted. Further to its counter affidavit, the 2nd Defendant filed a motion on notice on diverse grounds seeking for an order that the suit be struck out for being incompetent and want of jurisdiction.

The lower Court exercised its discretion and consolidated the motion to strike out the summons with same for hearing. After taking all the arguments and submissions of respective learned Counsel on both the motion in the nature of a preliminary objection and the summons itself, the learned trial adjourned the matter for judgment. In a judgment dated 2/03/05, the learned trial Judge dismissed the motion of the 2nd Defendant/Respondent, considered the originating summons and granted all the reliefs sought by the Plaintiffs/Respondents.

The 1st Defendant/Appellant was dissatisfied with the judgment. It appealed to this Court initially in a notice of appeal dated 7/03/05 and predicated on 2 grounds. However, with the leave of this Court, the Appellant filed and argued 7 additional grounds of appeal. The original and additional grounds of appeal with their particulars are hereby set out thus:-

1) the learned trial Judge erred in law in entertaining and granting the reliefs of the Plaintiffs when:

i. the suit was not commenced by the process.

ii. the Plaintiffs’ originating summons did not seek the interpretation of my instrument, will or document.

iii. the affidavit filed by the parties were in conflict and remained un-reconciled by oral evidence.

iv. he failed to resolve the conflict in affidavit by oral evidence.

v. the procedure adopted at the hearing did not afford the parties a fair hearing.

2. The learned trial Judge erred in law in ordering the Plaintiffs to be paid their salaries on the basis of a purported condition of service when:

i. the condition of service was neither tendered nor admitted and marked as an exhibit in the case.

ii. the condition of service was not legally before the honorable court.

iii. By its use the Honorable Court denied the Defendants a fair hearing on matter.

GROUND 3

This trial Court erred in law when he held that the Plaintiffs are still deemed to be in the employment of the 1st Defendant/Appellant.

PARTICULARS OF ERROR

1. By paragraph 5 of their affidavit in support of their originating summons, the Plaintiffs/Respondents stated categorically that their employment was “Put on Hold”
2. The Plaintiffs subsequently attended a further interview to which there had not been a result until the date of the judgment.
3. The conclusion of the trial Court was perverse.

GROUND 4

The trial Court erred in law when he held that

“I hold that the employment of the Plaintiffs is tainted with a statutory flavor, and can only be lawfully terminated or suspended or removed etc. by very strict and religious compliance with all relevant statutory procedure which has been violated by the Defendants”

PARTICULARS OF ERROR

1. The Plaintiffs never pleaded or relied on any statutory Provisions as the basis of their relationship with the 1st Defendant.
2. The trial Court in reaching its conclusion that the employment is tainted with statutory flavor never relied on any statute or legal instrument specifying the terms and conditions of the employment of the Plaintiffs.

GROUND 6

The trial Court erred in law in reinstating the Plaintiffs into the employment of the 1st Defendant when the same was not asked for by the Respondent and thereby came to a wrong decision.

PARTICULARS OF ERROR

1. The Court cannot forced an employee on an employer
2. The Plaintiffs did not satisfy any requirement for the ordering of reinstatement.
3. The Plaintiffs never asked for the relief of reinstatement and therefore the Court acted without jurisdiction in granting a relief not asked for in the way it did against the position of the law since the action was statute barred having not been brought within three months from when the cause of action arose.

GROUND 7

The trial Court erred in law in entertaining the claim of the Plaintiffs.

PARTICULARS OF ERROR

1. The claim of Plaintiffs was statute barred for being in breach of the provisions of the Public Officers Protection Act.
2. The action of the Plaintiffs was commenced more than three (3) months/90 days after the accrual of the cause of action.

GROUND 8

The trial Court erred in entertaining the suit of the Plaintiffs when it had no jurisdiction to do so because the claim, did not disclose any cause of action or reasonable cause of action against the Defendants and/or Plaintiffs do not have the locus standi to institute the action.

PARTICULARS OF ERROR

1. The Plaintiffs did not disclose a cause of action or reasonable cause of action which endured to their benefits
2. The Plaintiff did not disclose the necessary locus standi to sustain the action:

GROUND 9

The trial court erred in law in relying on the document annexed to the supporting affidavit as the basis of claim/judgment before the lower Court.

PARTICULARS OF ERROR

1. The document annexed to the supporting affidavit as Exhibits A1 – A25, B, and C.D
2. The said documents are legally inadmissible in evidence.

In due course respective learned Counsel filed and exchanged briefs of argument. The Appellant’s brief was deemed properly filed and served on 20/05/09. The 1st – 26th respondents’ brief of arguments dated and filed on 12/06/09 while that of the 27th Respondent is dated 8/12/09 but deemed filed and served on 11/05/10. The Appellant also filed a reply brief to the brief of the 1st – 26th Respondents. It is dated and filed on 23/07/08. At the hearing of the appeal respective learned Counsel adopted and relied on their respective briefs. Before learned Counsel to the Appellant could argue the appeal, learned Counsel to the 1st – 26th Respondents drew the attention of the court to a notice of preliminary objection he filed to challenge the competence of some of the grounds of appeal and the issues formulated therefrom. Learned Counsel also pointed out that this notice of objection was duly argued in the brief of the 1st – 26th Respondents. He drew our attention to his arguments and submission at paragraphs 4.02 to 4.09 at pages 3 -7 of the brief.

In his response learned Counsel to the appellant relied on the arguments and submissions in his reply brief. For the appeal proper, learned Counsel to the Appellant urge on the court to allow same while learned Counsel to the 1st-26th Respondents urged on us to dismiss it for lacking in merit. Also very curiously, but for obvious reasons from the record learned Counsel to the 27th Respondent urged for the appeal to be allowed.

The Appellant’s brief formulated and argued the following 6 issues:-

1. Was the learned trial Judge right in determining this action by way of originating summons when it does not seek any interpretation of statue or instrument and/or documents and when the facts of the case were hotly contested by the Appellant and 27th Respondent? Ground one
2. Was the action properly constituted and/or was the action not bad for mis-joinder of parties or cause of action. Ground one.
3. Having regard to the affidavit evidence of the 1st – 25th Respondents was the action not statue barred by virtue of the provisions of the public official protection act. Ground seven
4. Was the learned trial Judge right in holding that Plaintiffs/Respondents’ employment was tainted with statutory flavour and making an order for reinstatement of 1st – 26th Respondents coupled with the order for them to be paid their salaries effective from 1st march 2003, grounds two, three, four, five and six.
5. Did the 1st – 26th Respondents prove their case in order to get judgment as granted by the Lower Court or in the alternative did Plaintiffs have any cause of action against the Appellant or ground eight the locus to institute the action?
6. Was the learned trial Judge right in replying on public documents not certified in the determination of the originating summons?

Ground nine

On his own part learned counsel to the 1st – 26th Respondents, after exhaustively arguing the preliminary objection, formulated the following 5 issues for the determination of this appeal. They are:-

1. Whether the 1st – 26th Respondents’ action was properly constituted at the lower court (grounds 1 and 8.)
2. Whether the 1st – 26th Respondents’ action was statute barred by virtue of the Public Officers Protection Act (Ground 7)
3. Whether the employment of the 1-26th Respondents enjoy statutory flavor as held by the lower Court (Ground 5)
4. Whether the learned trial Judge was right in relying on the Exhibits attached to the Originating Summons (Ground 9)
5. Whether the learned trial Judge was right when he held that the 1st – 26th Respondents are deemed to be in the employment of the Defendant/27th Respondent and that they are entitled to their salaries from March 1, 2003 (Grounds 2, 3, 4 and 5.)

Also, learned Counsel to the 27th Respondent adopted 4 of the 6 issues formulated on behalf of the Appellant. They are:-

1. Whether the action of the 1st – 25th Respondents was competent before the trial Court on the Ground of:

i. Misjoinder of parties; and

ii. Not being initiated by due process or proper procedure (Issue no.2 of Appellant)

2. Whether the action of the 1st – 20th Respondents before the lower Court was not statute barred in view of the provisions of the public officers protection Act. (Issue no.3 of Appellant)
3. Whether the trial Court was right in holding that the employment of the 1st – 26th Respondents is tainted with statutory flavour.
4. Whether the trial Court was right in ordering that the 1st – 25th Respondents be reinstated-into the employment of the Appellant even when no such relief was asked for at the Court, below.

At the hearing of the appeal before us, respective learned Counsel identified, adopted and relied on their briefs of argument. Just before that, learned Counsel Mr. Falana for the 1st-26th Respondents drew the attention of the Court to a notice of preliminary objection dated and filed on 12th June, 2009 on behalf of the 1st-26th Respondents. It was brought pursuant to Order 10 rule 1 of the Court of Appeal Rules 2007. It seeks to challenge the competence of issues one and two in the Appellant’s brief of argument and grounds 2 and 4 of the grounds of appeal.

The grounds for the objection are:-

(1) Issues one and two in the Appellant’s brief of argument are incompetent as they were distilled from ground one of the notice of appeal; and

(2) Ground Two in the Appellant’s notice of appeal and ground four in the Appellants additional grounds of appeal are incompetent as they are the same in every material particular.

Also, learned Counsel drew our attention to pages 3 to 7 of his brief of argument wherein the grounds of the preliminary objection were argued. He urged the Court to uphold the objection and dismiss the appeal.

On his own part learned Counsel to the Appellant, Chief Akpomudje SAN referred to his reply brief and urged on us to dismiss the notice of objection and proceed to determine this appeal on its merit.

In arguing the notice of objection, learned Counsel began by reproducing issues one and two and then grounds 2 and 4. Further to this, learned Counsel explained that it is trite that in the formulation of issues for determination, a number of grounds of appeal could, where appropriate, be covered by a single issue for determination. Upon this explanation, learned Counsel pointed out that, it is not permissible to split a ground of appeal into a number of issues. He referred to the case of ATT. GEN. BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 645 and also quoted extensively from the case of UGO V. OBIEKWE & ANOR (1989) 1 NWLR (PT. 99) 566 as per NNAEMEKA-AGU JSC at 580.

Upon these, learned Counsel submitted that the Appellant’s issues 1 and 2 remain incompetent to the extent of both having been distilled from ground one. He referred to the case of MADUMERE V. OKAFOR (1995) 4 NWLR (PT.445) 637 and urged the Court to discountenance and strike out issues one and two.

According to Mr. Falana of Counsel, a cursory look at grounds 2 and 4 will show that they are repetitive, prolix and so full of duplications. He then referred to the decision of this Court in ANNIE V. Chief UGAGBE (1995) 6 NWLR (PT.402) 425 where it was stated that a ground of appeal must be succinctly couched and specifically described that the other side will know the exact complaint against the judgment while avoiding repetition, narration or arguments. Against this background, Learned Counsel argued that grounds 2 and 4 are faulty and to that extent all the issues formulated out of them and the arguments on them remain incompetent and liable to being discountenanced and struck out. In consequence of this, he urged this court to discountenance grounds 2 and 4 as well as the issues formulated out of them together with arguments on them as contained at pages 15-18 of the Appellant’s brief of argument.

To add more substance, learned Counsel pointed out further, that ground 2 and 4, apart from being repetitive, lack precision and specificity. He then referred to AMADI V. ORISAKWE (1997) 7 NWLR (PT. 511) 151 and ATUYEYE & ORS V. ASHAMU (1987) NWLR (PT. 49) 267 and further urged this Court to strike out the grounds and the issues raised out of them. He also prayed that the notice of objection be upheld.

Chief Akpomudje SAN, also reproduced the alleged offending grounds of appeal, their particulars and issues formulated out of them and tried to explain why he had to do as he did. He added that while it may be undesirable to formulate two issues from one ground of appeal, a Court should not overlook such issues, because this is a rule of practice and not law.

With respect to grounds 2 and 4, learned Counsel explained that while ground 2 complains about the lower Court using uncertified public documents, ordinarily inadmissible in law, to arrive at its decision, ground 4 complained and attacked the order of the lower Court for the 1st-26th Respondents to be paid salaries when they did no work for the Appellant. Upon this explanation learned Counsel Chief Akpomudje SAN, maintained that grounds 2 and 4 are distinct and separate and not repetitive at all. In a further explanation learned Counsel pointed out that 2 separate issues were formulated out of the 2 grounds and since, learned Counsel Mr. Falana, did not complain about the issues being repetitive, all his attacks must be discountenanced for being devoid of any merit.

According to the learned SAN, even if it was to be conceded that grounds 2 and 4 were repetitive, it would still be open to the Court to, in the interest of substantial justice, treat them as one and proceed to take the appeal out of the issue deemed to have been properly formulated out of either of them. He referred to JAWANDO V. BAKARE (2005) ALL FWLR (PT. 332) 1590 and urged this Court to dismiss the preliminary objection and proceed to decide this appeal on its merit.

I have carefully considered the grounds of the preliminary objection and the arguments and submissions of learned Counsel Mr. Falana and Chief Akpomudje SAN together with some of the decided cases they called in support. From a cursory look at issues one and two and also taken on their face value, it would be seen that they were formulated out of ground one. It is settled and well defined that no more than one issue can be distilled or formulated out of a single ground of appeal. While a single issue can be formulated out of several grounds of appeal, it is patently undesirable to split a ground of appeal to allow for more than a single issue to arise therefrom. The idea here is to avoid proliferation of issues for determination in an appeal.

Even though, learned Counsel Chief Akpomudje SAN appeared to have conceded that it was undesirable for ground one, in the circumstance of this appeal, to give birth to issues one and two, he sought to take refuge in the fact that the issues in this appeal are less than the grounds of appeal, thereby not being guilty of prolixity or proliferation of issues. I would still not allow 2 issues to be formulated from a single ground of appeal even if it had not engendered any prolixity or proliferation of issues. In the circumstance of this appeal, ground one of the preliminary objection must be upheld. Therefore issues one and two distilled out of ground one of the grounds of appeal is hereby struck out for being incompetent. All the submissions and arguments canvassed on issues 1 and 2 are hereby discountenance.

With respect to the 2nd leg of the preliminary objection which complained of repetitiveness and duplication against grounds 2 and 4, I wish to remark and draw attention to the fact that issue 4 of the issues formulated on behalf of the Appellant arose from grounds 2, 3, 4, 5, and 6. It must be understood that the principle governing formulation of issues is that a number of grounds could, where appropriate, be formulated into a single composite issue but it would not be allowed for a ground of appeal to give birth to more than a single issue. See LABIYI V. ANRETIOLA (1992) 8 NWLR (PT. 258) 139. It is to be noted that while grounds 2 and 4 were a complaint about the order of the lower Court for the payment of arrears of salaries, there does not appear to be anything more than just that as to disqualify them from being valid and competent grounds of appeal. To the extent that grounds 2 and 4 amongst others had crystallized into issue 4 for determination, I do not see any substance in the 2nd leg of the notice of objection and it is hereby dismissed for lacking in merit. I would then proceed to consider the remaining outstanding issues in this appeal.

Issues 3 and 5 in the Appellant’s brief raised a jurisdictional question, and having regards to the facts and circumstances of this appeal, I am of the view that they are linked with one another, I would therefore, to that extent, take them together.

Issue 3 was distilled out of ground 7 while issue 5 came out of ground 8. In arguing issue 3 learned Counsel started with an explanation that even though the issue of limitation of time was not canvassed at the lower Court all the materials necessary for the court to take a decision on it are completely before this Court in the record of appeal. Learned Counsel then explained that the law is now well settled that this Court has jurisdiction to hear any matter before it as a Court of 1st instance and can indeed place itself in the position of the trial Court as long as the evidence upon which to prove the matter is before this Court. He referred, to Sections 15 and 16 of the Court of Appeal Act, 2002 and the cases of FAGBOLA V. KACCIMA (2006) 5 NWLR (PT-977) 433, MUSA v. YUSUF (2005) 6 NWLR (PT.977) 543, C.G.G. (Nig) LTD v. AMAEWHULE (2006) 3 NWLR (PT.967) 282.

After having laid this foundation, learned Counsel referred to paragraphs 4, 5, 6, 7, and 8 of the affidavit in support of the originating summons. He reproduced them and focused on them and characterized them as the main grievance of the 1st-26th Respondents. According to learned Counsel Chief Akpomudje SAN after the other events that followed, such as the allegation that the appointments of the 1st-26th Respondents were put on hold, there may have been a reason for them to attempt to come to Court. Also, according to learned Counsel all the relevant events took place in 2003 but no action was filed until 8th September, 2004.

Against this background, learned Counsel referred to S. 2 (a) of the Public Officers Protection Act and while focusing on the Appellant and the 27th Respondent, as Public Officers within the meaning of the section, submitted that this action ought to have been brought within 90 days from the date of the accrual of the cause of action. Chief Akpomudje SAN explained that the last activity of the Appellant and the 27th Respondent that could have led to this action took place in March 2003, when the 1st-26th respondents were told to stay away until further notice. Upon this Counsel submitted this action had become statute-barred at the date it was filed on 8/09/2004. He referred to the cases of EGBE V. ADEFARASIN (1985) 1 NWLR (PT. 3) 549 and IBRAHIM V. JSC & ORS (2002) FWLR (PT. 120) 1743 where it was held that where an action is not commenced within the requisite period it remains statute-barred and cannot be revived.

In the opinion of learned counsel everything about the suit before the lower court was purely documentary. Learned counsel submitted that the declaration of trade dispute cannot change the fact that the action had become statute-barred, the period of negotiations notwithstanding. He referred to ARMTI v. BAYERE (2003) FWIR (PT. 155) 649, OFFOBOCHE V. OGOJA LOCAL GOVE. (2001) FWIR (PT. 68) 1051, EBOIGBE v. N.N.P.C. and urged this Court to hold that this action was out of time when it was commenced. He also urged that this issue be resolved against the 1st-26th Respondents in favour of the Appellant.

In his response, learned Counsel Mr. Falana for the 1st-26th Respondents argued the issue of limitation of time as his issue 2 at pages 13 to 16 of his brief. In his opening submission, learned Counsel suggested that S. 2(a) (supra) does not apply to the facts and circumstances of this case because the Appellant did not terminate the appointments of the 1st-26th Respondents until after 26/01/2006. In trying to clarify the situation, learned Counsel submitted that the 1st-26th Respondents were still in the employment of the Appellant since they had not been given letters of termination or dismissal before the institution of the action at the lower court.

In a further effort learned Counsel explained that since the case of the 1st-26th Respondents pertain to a contract of employment S. 2 (a) (supra) does not apply. Learned counsel sought to rely on the case of FGN v. ZEBRA ENERGY LTD (2003) 3 WRN 1 and CBN v. ADEDEJI (2005) 26 WRN 1 and quoted extensively from the judgments of this court therein. He urged this court to hold that this case does not fall within the scope of S. 2(a).

Learned Counsel to the 27th Respondent responded to this issue of limitation of time in his issue 2 argued at pages 10 to 13 of his brief of argument. After explaining some of facts and circumstances of this matter, learned Counsel at parag. 4.10 sought to adopt and fully associate him with the arguments and submissions made on behalf of the Appellant. He finally submitted that this action was caught by limitation of time and therefore the lower court lacked the jurisdiction and competence to entertain it. He urged this Court to resolve this issue in favour of the Appellant.

I wish to proceed further to consider the submissions of respective learned Counsel on issue 5 before I come to this issue because the necessary facts to be considered in my humble view, to arrive at a decision are inextricably tied together.

In his opening argument on issue 5, learned Counsel focused on key facts in this matter. He then underscored them to include the issuance of letters of appointment to the 1st-26th Respondents which they accepted and resumed work but were told that the appointment had been put on hold until further notice and/or subject to a further interview. After having laid the factual foundation or basis for this matter, learned Counsel Chief Akpomudje SAN, considered the reliefs against the established facts and urged this Court to hold that the reliefs sought before the lower court were not capable of being granted because they were not predicated upon a reasonable cause of action. Adding further, learned Counsel explained that before a plaintiff can approach the court for the determination of any question there must have been a cause of action that had accrued to his advantage and where a cause of action has not fully matured any action filed in court is incompetent and ought to be discountenanced by the court. He referred to some decided cases to support this explanation. They are: – AKINOLA V. SOLANO (1985) 1 NSCC 504, BILWADAMS CONST. CO. NIG. LTD v. DRAGMIR (2002) FWLR (PT. 109) 1630 and THOMAS v. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669 etc.

On the related issue of locus standi, the learned SAN referred to the case of IKEJA HOTELS plc. v. L. S. B. I. R. (2005) ALL FWLR (pr. 279) 1260 where this Court decided that to possess a locus standi a party must disclose a benefit or an interest in a subject matter and must also further show an infringement of that interest. He urged this Court to hold that there was no infringement of any subject matter to confer the requisite locus standi on the 1st-26th Respondents to commence the action at the lower court. He also further urged this court to hold that the suit of the 1st-26th Respondents lacked competence and the Court ought not to have so entertained it. He prayed that this issue be resolved in favour of the Appellant.

Learned Counsel to the 1st-26th Respondents replied on the issue on reasonableness of cause of action and locus standi of the 1st-26th Respondents to accordingly commence their suit under his arguments and submissions on issue one. According to learned Counsel Mr. Falana since the Appellant had conceded that it had put the employment of the 1st-25th Respondents “on hold” it would remain a misconception for the Appellant to now turn around to contend that no legal rights or obligations of the parties had arisen for determination in the circumstance of this matter.

On the locus standi of the 1st-26th Respondents, learned counsel put it in proper perspective when he explained that there must be a cause of action before a person can have an enforceable right. The person in whom this enforceable right is vested as his personal right would be the person that has the requisite locus standi to sue. According to learned Counsel, in determining whether there is a reasonable cause of action and locus standi in a matter, the court must confine itself to the statement of claim and not any objections, denials or defence placed by the defendant. He relied on UBA V. UKACHUWU (2004) 10 NWLR (PT. 881) 224.

Against this background, learned Counsel submitted that the reliefs claimed by the 1st-26th Respondents disclosed reasonable cause of action and urged this Court to hold that from all the available materials placed before the lower Court it was right to conclude that the Appellant had a contract with the 1st-26th Respondents.

Learned Counsel to the 27th respondent did not offer any arguments or submission on the issue of reasonableness of cause of action and the locus standi to commence this action.

In resolving these issues, I consider the averments in paragraphs 5, 6, 7, and 18 of the affidavit in support of the originating summons as relevant and helpful. For purposes of clarity, I hereby set out these said paragraphs thus:-

5. That the Plaintiff’s accepted the Offer of Appointment and reported for duty in December 2002 after the necessary formalities.
6. That to their utter dismay the Plaintiffs were invited to appear before a committee following the decision of the Defendants to put their employment “on hold”. Attached herewith and marked Exhibit “B” is a photocopy of the letter.
7. That at the interview the Plaintiffs were told to stay away from duty until further notice.
8. That the Plaintiffs have not been accused of violating any of the terms of their contract of employment.

From an aggregation of the facts and the entire circumstances of this case it appears to me that as at the date of filing this action the complaint of the 1st-25th Respondents against the Appellant was that their appointment as staff of the Appellant had been put on hold until further notice. Simply put, the employment of the 1st-26th Respondents was postponed or put off. Further to this, whatever was postponed or put off must necessarily also had been delayed.

A cause of action involves and means:-

(a) a cause of complaints;

(b) a civil right or obligation for determination by a Court of law; and

(c) a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine.

Added to the above, a cause of action involves a factual situation which enables one person to obtain a remedy from another in Court with respect to injury. So it consists of every fact which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to judgment. In addition to this decision of the Supreme court in

THOMAS V. OLUFOSOYE (Supra) a reasonable cause of action is taken to mean a cause of action with a real chance of success if only the allegations in the statement of claim are considered. In the circumstances of this matter, the relevant statement of claim is the affidavit in support of the originating summons. See also OSHOBOJA V. AMUDA (1992) 6 NWLR (PT. 250) 690.

It has been the contention of the 1st-26th Respondents, that it has not been shown that the terms of the contract of employment allow the Appellant to put the employment “on hold.” At paragraph 7.02 pages 11 of the brief of arguments of the 1st-26th Respondents learned Counsel Mr. Falana argued thus:-

“… it has not been shown that the terms of contract of employment allow the Defendant/Appellant to put the employment “on hold” we submit that the cause of action arose when the Defendant/Appellant unilaterally and illegally put the employment of the 1st-26th Respondents “on hold” vide Exh B.”

As has been alluded here in above putting something “on hold” infers a postponement or delay of action concerning thereto. An event is also said to have been postponed, in my view, when an arrangement is made for it to take place at a later date or time. When something is put on hold it does not mean that it has altogether been cancelled but there is some degree of certainty that it would definitely take place at a later date. Learned counsel to the Appellant had conceded that the Appellant did not dismiss or terminate the employment of the 1st-26th Respondents at the date they went to court. I think there is some substance in this argument of Mr. Falana that was conceded as an established fact.

It is so trite that a contract service is the bedrock and foundation an employee must found his case. It has also been settled in a number of decided cases of the Supreme Court, that it is not the duty of the employer who is a Defendant to an action brought by an employee to prove any breach of contract of employment. Where there is a written contract of service, the Court will not look into any matter outside the terms stipulated and agreed therein between the parties in determining the respective rights and obligations of the parties. See KATTO V. CBN (1999) 6 NWLR (PT.670) 390 and FAKUADE v. O.A.U.T.H.M.B. (1993) 5 NWLR (PT. 291) 47 etc.

There is no doubt that the letters of employment of the 1st-26th Respondents had incorporated some terms and conditions governing their rights and obligations and the appellant. It is also beyond doubt that none of the paragraphs of the affidavit in support of the summons in any manner howsoever made reference to any particular clause in the said contract of service as to disentitle the Appellant from doing whatever it did in its relationship with the 1st-26th Respondent.

It is my firm view that the “putting on hold” of the employment of the 1st-25th Respondents does not in the circumstance mean more than postponing or delaying same. Also, to the extent that no termination of employment or dismissal had been shown to have happened. I do not think that there was any reasonable cause of action to warrant the commencement of this action. Also, a contract of service being put “on hold” until further notice cannot be said to have conferred any cause of action, particularly where a court seized of a matter has not been availed the full terms of the contract governing the rights and obligations of the parties thereto. Courts have always prevailed upon themselves to resist the temptation of making contracts for parties but to only be concerned with the enforceable contract parties had entered for themselves. There is therefore no reasonable cause of action in this matter. Issue no. 5 in the Appellant’s brief is therefore resolved in favour of the Appellant. Having thus resolved issue no. 5, and to the extent that the contract of service being put on hold does not mean more than that it is delayed or postponed to a future date, I do not think there is enough material to decide whether this action is caught by limitation of time or not. In the absence of a reasonable cause of action no decision on issue 3 would be necessary. It would also not be necessary to consider and determine issues 4 and 6 in the Appellant’s brief of argument.

This appeal is meritorious and it is hereby allowed. The judgment of the Federal High court in suit No. FHC/B/CS/181/2004 delivered on 2nd March 2005 per Nwokorie, J. is hereby set aside. Suit No. FHC/B/CS/181/2004 is hereby struck out for having disclosed no reasonable cause of action. I make no order for costs.

This appeal was heard on 30th November, 2010. Judgment is delivered today about 4 days outside the period prescribed under S. 294(1) of the 1999 Constitution of the Federal Republic of Nigeria. This delay was caused by a mix-up at the registry with respect to the appropriate timing for the issuance of hearing notice and a communication gap engendered by my recent transfer to the newly established Makurdi Division of this court from where I came to deliver this judgment today. Be it as it may, we are fully satisfied that this delay did not occasion any miscarriage of justice or prejudice on any of the parties.

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Other Citations: (2006)LCN/2120(CA)