The West African Examinations Council V. Felix Iwarue Oshionebo (2006)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
This is an appeal against the Federal High Court sitting in Benin in suit No: FHC/B/CS/57/2/99 delivered on the 14th of June 2002. The plaintiff who won at the court below had by paragraph 35 of his further amended statement of claim filed, by the leave of court claimed against the defendant in that court, the following reliefs: –
“(1) a declaration that the Plaintiff have done 31 years of service in the establishment of the defendant, the defendant can only disengage him (the Plaintiff) by retiring him and not termination.
(2) a declaration that the plaintiff having put in 31 years of service as aforesaid before he was purportedly terminated by the defendant is entitled to gratuity, terminal leave allowance, repatriation allowances and pension as contained and provided for in the defendant’s Conditions of Service and relevant circulars, memos and laws applicable to defendant. The total terminal benefit is N1,120.078.15K.
(3) an order changing the “termination” contained in a letter No. L/P/2518 of 7th July, 1997 to retirement.
(4) an order directing the defendant to pay plaintiff gratuity, pension, terminal leave allowance and repatriation allowance.
(5) an order that the plaintiff is entitled to be paid the unpaid salaries and allowances for the period of his interdiction until he was recalled back to the service.”
Pleadings in terms of further amended statement of claim filed with the leave of court, and consequential amended statement of defence filed on 26/11/2001, were exchanged between the parties. At the hearing of the case in the court below, only the plaintiff (hereinafter referred to as the respondent) testified in proof of the averments in his pleadings. He was not cross-examined and neither did the defendant (hereinafter referred to as the appellant) call oral evidence to substantiate the averments in its consequential amended statement of defence. I pause here to say that it is now firmly established that once pleadings have been settled, and issues joined, the duty on the Court is to proceed to the trial of the issues.
If one party fails or refuses to submit the issues raised in his pleadings for trial by giving or calling evidence in their support, the trial judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party see (1) THE GOLD COAST AND ASHANTI ELECTRIC POWER DEVELOPMENT CORPORATION LTD v. THE ATTORNEY-GENERAL OF THE GOLD COAST (1937) 3 W.A.C.A. 215 and (2) IMANA v. ROBINSON (1979) 3 & 4 S.C. 1.
Indeed, refusal to lead evidence in support of an averment in the pleadings or the entire pleadings translates into or voluntary abandonment of such averments or the entire pleadings as the case may be. Again, the law is static that where a witness is not cross-examined on any issue or fact he has given evidence the testimony of such or witness is deemed to have been admitted as true subject to the principle stated in the IMANA case supra.
At the end of the trial and sequel to the taking of the addresses of Counsel, the learned trial judge, in a reserved judgment delivered on the 14th of June, 2002, entered judgment in favour of the plaintiff now the respondent in terms of the reliefs sought. In coming to that conclusion the learned trial Judge had reasoned inter alia:-
“It is pertinent to note that in this case though the defendant filed a Statement of defence, they (sic) did not call any witness, nor even cross-examined the only plaintiff witness.
The facts of this case as stated by the plaintiff are not therefore challenged nor contradicted by the defendant at all.
I therefore find that the plaintiff was an employee of the defendant since 28/3/66 when he was employed as a temporary clerk. The plaintiff, from the undisputed evidence before Court was a confirmed officer of the defendant and had so many promotion up to his last post, as the Assistant Chief Examination Officer ……
The recall of the plaintiff was unconditional as it was directed that his monthly salary should be fully reinstated. No mention was made of any act of misconduct against the plaintiff. From the records before this court, which are not challenged, the plaintiff voluntarily resigned from the service of the defendant by a letter dated 8/7/97 …
In exhibit E, the pension/gratuity handbook P. 10 provides that if a person’s appointment is terminated for reasons other than fraud or misconduct, which may amount to criminal offence, he will be entitled to the benefits arising from the defendant’s contributions on his behalf. It is therefore illegal and wrong to so terminate the appointment of the plaintiff without any benefit, since he was not removed for any criminal misconduct ….
It is not in dispute that he is a confirmed staff and his job is pensionable. The plaintiffs have (sic) not reached the retirement age of 60. From exhibit E paragraph 2.09 which is the condition of service, it provided that a person earned (sic) his gratuity with effect from the dated he assume (sic) duty.
Paragraph 10.07 of exhibit E also makes provision for an interdicted officer who has been recalled, to be granted free emolument he would have received had he not been interdicted. It therefore goes without saying that the plaintiff is entitled to the refund or payment of the balance of his salary for the 25 months that he was under interdiction.
The defendant have (sic) no power or at least the defendant did not adduce any evidence nor point of law or rule, that gave them the authority to so terminate, the appointment of a confirmed personable (sic) staff for no offence, without any benefit. In fact until when the plaintiff complained through his counsel, that they replied that he was entitle (sic) to only one-month salary in lieu of notice.
The plaintiff in his evidence in court testified to the balance of the money the defendants were owing him and what he was entitled to as his benefit.
That is his pension and gratuity. There have not been challenged nor contradicted. The witness was not cross-examined on these claims …
In conclusion, I find that the plaintiff has proved his case to the complete satisfaction of the court, against the defendant. I hereby enter judgment in favour of the plaintiff as per paragraph 35 of the Amended Statement of claim dated 17/11/2001.”
Being dissatisfied with the said judgment, the defendant appealed therefrom to this court. With the leave of court it filed an amended process dated 8th April, 2004, and filed the same date, it carries six grounds. Distilled from the said amended grounds of appeal are four issues, which, as set out in the brief of argument of the appellant, are in the following terms: –
“(1) Whether there were more issues arising from the claims of the plaintiff at the lower court than the one issue formulated by the trial judge or whether the learned trial judge was right to have formulated only one issue when it was obvious that there were more than one and whether the non-formulation and consideration of other issues occasioned a miscarriage of justice.
(2)Whether in the circumstances of this case the plaintiff retired voluntarily or was terminated by the defendant and if the plaintiff was terminated whether his termination was lawful.
(3) Whether in the circumstances of this case, the Plaintiff was entitled to judgment as per one statement of claim.
(4) Whether the evidence of the plaintiff at the lower court ought to have been treated as unchallenged and undefended.”
For his part, the respondent also raised four issues for determination and as contained in his brief of argument they are as follows: –
“(1) Whether if a learned trial Judge formulates a lone issue which properly resolves the issue in controversy without occasioning a miscarriage of justice the judgment arrive at can be vitiated.
(2) Whether the learned trial judge was right in holding that the letter of 7/7/97 received on 15/7/97 did not properly terminate, the plaintiff respondent’s appointment as the same was back-dated in view of the circumstances and state of facts given in evidence at the trial on antecedents to the receipt of the letter of termination.
(3) Whether the learned trial Judge was right in treating the evidence before him as uncontradicted, unchallenged and sufficient as to entitle the plaintiff/respondent to judgment on plaintiff’s respective reliefs.
(4) Whether it is correct to say that the judgment is against the weight of evidence having regard to the nature of the evidence before the trial court.”
When this appeal came for argument before us on the 30th of January, 2006, Mr. Olugbami, learned counsel for the appellant, referred to, adopted and relied on his client’s brief of argument deemed to have been properly filed on the 13th December, 2004, he urged that the appeal be allowed by setting the judgment of the lower court aside and remit the case for retrial in the court below before another Judge. Mr. Akhiele, of counsel for the respondent equally adopted and relied on his client’s brief of argument deemed properly filed on 21st September, 2005 and urged that the appeal be dismissed.
I have examined the issues raised by both parties and it seems to me that those identified in the brief of argument of the respondent adequately address the fundamental point arising in this appeal. I shall therefore in this judgment, be guided by those issues.
Before I go on to consider the arguments by the parties for and against allowing this appeal, I will like to state here the fundamental principles that govern master and servant relationship. It is now beyond any argument, indeed the law is on a firma terra that in a master and servant relationship, which is devoid of statutory flavour, as in the instant case going by the reliefs sought, and which is purely contractual, as in this case, the termination of the employment of an employee by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract of employment.
It must, however, be always remembered the parties are bound by the terms of their contract voluntarily entered into. Once there is a compliance with the terms of the contract of employment, the termination can never be said to be wrongful. However, where there is a written provision for terminating the contract of employment, and there is breach of that written provision what the employee would be entitled to would be the salary for the period of notice to terminate his employment. See W.N.D.C. VS. ABIMBOLA (1966) 4 N.S.C.C. 172; (1966) 1 ALL NLR 159. Therefore, an employee who complains that he was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of the employer who is a defendant to an action brought by the employer to prove any such breach – this principle finds support in a long line of judicial authorities the likes of (1) AMODU VS. AMODE (1990) 5 NWLR (PT.150) 356, (2) IWUCHUKWU VS. NWIZU (1994) 7 NWLR (PT.357) 379 (3) KATTO VS. C.B.N. (1999) 6 NWLR (PT.607) 390 and (4) IBAMA VS. S.P.D.C. (2005) VOL 132 LRCN 2585; (2005) 17 NWLR (Pt.954) 364.
That the respondent was an employee of the appellant (his employer) and that he rose through the ranks is not in dispute that he was suspended from work and placed on half salary and later recalled after he had been exonerated admits of no argument. In fact he resumed as Assistant Chief Examinations Officer (Accounts) with the defendant. The bone of contention is, whether the plaintiff/respondent’s letter of 8th July, 1997 per which he said he gave the mandatory three months notice of his intention to voluntarily retire from service which he claimed, he served on the appropriate officer of the defendant/appellant and who acknowledge the receipt of the original by orders the respondent’s copy on that day would suffice in putting an end to his employment at against the letter of the defendant/appellant dated 7th July, 1997 ref No.LP/2318 served on the respondent/plaintiff notifying him of the termination of his (respondent/plaintiff) employment with his employer which letter he said was served on him on the 15th of July, 1997. I here pause to discuss the law relating to notice of resignation, the law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. Tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See (1) Benson v. Onitiri (1960) 5 ES.C. 69, (2) Osu v. PA.N. Ltd. (2001) 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State & Ors. (2001) 13 NWLR (Pt.731) 517. The respondent/plaintiff said he voluntarily sent in his letter of retirement dated 8th July, 1997 and the receipt of same was acknowledged by the secretary of the Zonal Co-ordinator by putting on his own copy of the letter staying “received” on the same date. The letter of voluntarily retirement dated 8th July, 1997 and tendered as exhibit “K” reads: –
“The Senior Deputy Registrar (ARG)
West African Examination Council Yaba, Lagos.
Through:
The Deputy Registrar /ZC
West African Examination Council,
Benin City
Dear Madam,
VOLUNTARY RETIREMENT FROM THE SERVICE OF THE COUNCIL
I wish to retire voluntary (sic) from the services of the Council and hereby give the mandatory three months notice. I joined the Council on the 28th March, 1966 as a temporary clerk.
This voluntary retirement from the service has become necessary in view of the recent development in my community. My father died on the 15th of November 1995 and as the most senior son representing my late father in the family quarter, I am now a member representing my family quarter in the Jatto/Uzurri elders Council since the exit of my father, in view of the time requirement/engagement in the village, I have no alternative than to disengage from service.
I hereby thank the council for the opportunity given to me to serve in the council for the past years.
Yours faithfully
(SGD)
F.I. OSHIONEBO.”
This piece of evidence, as I have pointed out supra, was never contradicted or challenged whatsoever; indeed, the respondent/plaintiff was never cross-examined nor was evidence led by the appellant/defendant in proof of the averments in its pleadings. The court below was therefore right in believing the uncontradicted evidence that the respondent/plaintiff voluntarily retired from the service of his employer by his letter, which was tendered as exhibit K.
What now remains is the issue of the entitlement of the respondent/plaintiff. In assessing the respondent/plaintiffs entitlements the learned trial Judge had reasoned:-
“It is therefore illegal and wrong to so terminate the appointment of the plaintiff without any benefit since he was not removed from any criminal conduct. It is also not in dispute that the plaintiff put in 31 years 7 months service with the defendant. It is not in dispute that he is a confirmed staff and his job in pensionable.
The plaintiffs have (sic) not also reached the retirement age of 60. From exhibit E paragraph 2.09 which is the condition of service, it provided that a person earned his gratuity with effect from the date he assume (sic) duty.
Paragraph 10.67 of exhibit E, also makes provision for an interdicted officer, who has been recalled, to be granted free emolument he would have resolved had he not been interdicted. It therefore goes without saying that the plaintiff is entitled to the refund or payment of the balance of his salary for the 25 months that he was under interdiction ….
The plaintiff in his evidence in court testified to the balance of the money the defendant were (sic) owing him, and what he was entitled to as his benefit. That is his pension and gratuity. These have not been challenged nor contradicted. The witness was not cross-examined on these claims. In fact the defendant did not put in any fight in his case. It is just like an undefended case without any contest.
In conclusion, I find that the plaintiff has proved his case to the complete satisfaction of the court against the defendant. I hereby enter judgment in favour of the plaintiff as per paragraph 35 of the amended statement of claim dated 17/11/2001”
The law regulating the relationship between an employer and an employee is very well settled.
First and foremost, no court, generally, can force an employer to retain the services of his employee. See UBN PLC VS. OGBOH (1995) 2 NWLR (Pt.380) 647. Where there is a written contract of employment between a master and a servant, the court is under a duty to determine the rights of the parties under the contract. See UBN Plc supra.
Exhibit E – the written condition of service – is the determinant I have earlier said, that the respondent/plaintiff voluntarily withdraw from the service; so he would not came under paragraph 10 of Exhibit E captioned discipline which stipulated the condition under which an employee could be dismissed or have appointment terminated.
In leg (a) of his claims, the plaintiff sought:-
“a declaration that the plaintiff having done 31 years of service in the establishment of the defendant, the defendant can only disengage him (the plaintiff) by retiring him and not termination. ”
A declaratory action is an invitation to the court to make a pronouncement as to the state of the law with regard to a particular circumstance or situation. Indeed, a declaratory order merely declares the rights of the parties and is dormant beyond that it has no force of execution. To grant the relief sought in leg (a) will not be in consonance with the tenor or exhibit E – the condition service. On leg (b) which sounds as special damages; evidence was led on the items; but since he was not cross-examined for the purpose of demolishing his case and the defendant/appellant not having called evidence in proof of the averments in its pleadings; the proof required from the respondent/plaintiff is one that is minimal in nature; relief (b) is therefore meritorious. The third leg of the claims styled leg (c) is non sequitur having regard to the fact that the appellant/defendant did not lead evidence in proof of the averment of termination. Leg (d) is a duplication of leg (c); the law is not in favour of double compensation.
Therefore, that leg ought not to be granted. From all I have been saying, leg (e) has merit.
In conclusion, the appeal is lacking in merit in substance; however, from the evidence before the court below, the respondent/plaintiff is not entitled to all the reliefs sought in paragraph 35 of his amended pleadings. Judgment is consequently entered in favour of the respondent/plaintiff in the following terms:
“(1) The respondent/plaintiff is entitled to gratuity, terminal leave allowance, repatriation allowances and pension as contained and provided for in the appellant/defendant’s condition of service and relevant circulars, memos and laws applicable to the total terminal benefit being N1,120,078. 15k (One million one hundred and twenty thousand seventy-eight naira fifteen kobo) only.
(2) If the unpaid salaries and allowances for the period of the interdiction of the respondent/plaintiff until he was recalled back to service are not subsumed in (1) supra, then same shall be paid to him by the appellant/defendant.
Leg (a) of claims is hereby dismissed for the reason I have stated supra. Leg (c) is non sequitur and it is equally dismissed while Leg (d) is a duplication of what was claimed in leg (b); for that reason, it is also hereby dismissed.
The respondent is entitled to the cost of this appeal which is assessed at N5,000.00 (Five Thousand Naira) in his favour but against the appellant.
Other Citations: (2006)LCN/1921(CA)
