West African Examinations Board V. Frederick O. Ikezahu (1994)

LawGlobal-Hub Lead Judgment Report

JUSTIN THOMPSON AKPABIO, J.C.A. 

This is an appeal against a Judgment of former High Court of Bendel State (but now Edo State) sitting at Benin City, in suit No.B/343/87, delivered on 20th July, 1989, in which Joan Aiwerioghene, J. entered Judgment in favour of Plaintiff, by declaring that the Plaintiff was still an employee of the defendant, and so entitled to his salary and other entitlements as from January, 1986, and also Ordered that he be re-absorbed and put back in his previous position as Senior Clerical Officer in the defendant’s establishment with N150.00 costs in favour of Plaintiff.

At the Court below, the present Respondent (who was then the Plaintiff) sued the Appellant (who was then the Defendant) claiming as follows:-
“The plaintiff seeks from court the following reliefs against the defendant.
1. A declaration that Plaintiff is still in the employment of the Defendant.
2. A declaration that Plaintiff is entitled to his wages, benefits and privileges as from January 1986 till Judgment is delivered.
3. An order re-instating him in his previous position as Senior Clerical Officer in the Defendant’s establishment.”

The evidence in support of Plaintiff’s Claim was briefly that sometime in, 1981, the Plaintiff who worked as a Senior Clerical Officer, under the employment of the defendant, a public statutory corporation, set up by statute, applied to the defendant for study leave with pay, to enable him undertake a course of study in the U.S.A. But by letter Ref. No. L/P/2760 of 22nd of October, 1951, he was granted study leave without pay for a period of three years with effect from 12th January, 1982. The Plaintiff duly travelled to the United States of America and studied Agriculture in Alabama Agricultural and Mechanical University where he obtained a B. Sc (Bachelor of Science) Degree in 1984, and returned to this country in January, 1985. On the Plaintiff’s return, he presented himself to the Defendant’s Benin Office to resume duty, but was referred to the Senior Deputy Registrar in Lagos. Plaintiff wrote to the Senior Deputy Registrar, Lagos through their Zonal Co-ordinator in Benin, and was later advised by letter Ref. No. L/P/2766 dated 21st January, 1985, to proceed on the National Youth Service Corp Scheme, and to apply again on completion of the Scheme for re-absorption. Plaintiff then went and served the N.Y.S.C. Scheme as advised by the defendant.

On completion of the N.Y.S.C. Scheme in January, 1986, the Plaintiff reported back to the Defendant for re-absorption. But Plaintiff was not re-absorbed, in spite of numerous personal visits and letters written by him to the Defendant to absorb him. All he got was verbal promises by officials of Defendant that his case will be looked into. After protracted and fruitless waiting, Plaintiff had to engage a Solicitor to write the Defendant’s for him. In spite of the Solicitor’s letter, the Plaintiff was still not re-absorbed by the Defendant. And so this action was instituted. Plaintiff further averred that since January, 1986, when he presented himself for re-absorption, the defendant had been employing several other persons as Clerical Officers, to his knowledge. The plaintiff averred that he was a public employee whose appointment was permanent and pensionable. The appointment of the Plaintiff by the defendant has never been terminated. Plaintiff further stated that the time he proceeded on study leave his monthly salary was N183.00 or N2,196.00 per annum.

In their defence, the defendant did not deny any of the above averments, but stated that the absorption of the Plaintiff was subject to availability of vacancy in the appropriate cadre at, the time of his return. Unfortunately all the vacancies in the Senior Clerical Officer cadre had been filled by the time plaintiff returned. Steps were however, being taken to re-absorb the Plaintiff when he rushed to court to institute this action. It was also contended on behalf of the defendant, both by way of preliminary objection and during final address, that the pleadings of the Plaintiff did not disclose a reasonable cause of action, as the Plaintiff himself had stated in paragraph 21 of his statement of claim that his appointment has not been terminated. Only persons whose appointments have been wrongly terminated could sue for re-instatement. He therefore urged the court to dismiss the Plaintiff’s claim as premature. When this question was raised by way of a preliminary objection the learned trial Judge overruled the objection, and held that a cause of action was disclosed. But the learned counsel for defendant still raised it again in his final address.

At the end of the day, the learned trial Judge came out with a considered Judgment in which she held once more that even though Plaintiff’s appointment had not been terminated, he was entitled in the special circumstances of this case to bring a declaratory action for his position with the defendant to be made clear. She therefore entered Judgment for the Plaintiff, and made for him all the declarations he claimed for with N150.00 costs in his favour.

The defendant being dissatisfied with that Judgment appealed to this court on three grounds, which were later amended on application dated 25/2/91. Still later, another application dated 24th June, 1991 was brought to amend the 2nd ground of appeal only.

So the grounds of appeal in their final form excluding their particulars read as follows:-
“1. The decision is against the weight of evidence
2. The learned trial Judge erred in law by giving judgment to the Plaintiff when he (the Plaintiff) did not discharge the onus placed on him by sections 134, 136 and 138 of the Evidence Act.

The learned trial Judge erred in law by granting all the reliefs claimed by the plaintiff when he (plaintiff) has no cause of action against the defendant.

Also two briefs of arguments were filed on behalf of the Appellant in this case. The first dated 25th February, 1991, was filed by R. O. Ogbodu Esq., the learned counsel who had handled this case for the Appellant at the trial court. But a Second brief dated and filed on 15th July, 1991, was later filed by a different Solicitor by name E. F. Aiyudubie Esq. It is reasonable to assume that this later brief superseded the earlier one, and so shall be used for the determination of this appeal. In this later Brief three issues for determination were filed as follows: for the defendant will hereinafter be referred to as the Appellant.
“(A) Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the court.
(b) Whether the failure of the Plaintiff to plead contract of service stipulating the terms and or conditions of appointment is detrimental to all or any of the reliefs sought by him?
(c) Whether the decision is in line with evidence led at trial?

On the other hand the Plaintiff who will hereinafter be referred to as the Respondent formulated only one issue which reads as follows:-
“Whether or not, there was any error, and/or, misdirection in the trial which has resulted in a miscarriage of justice.

It will be seen from the above formulations on behalf of both parties that the question whether there was or was no cause of action disclosed by the Respondent’s pleadings, was not touched. However in actual argument of the appeal itself learned counsel for the Appellant, purporting to argue all the issues together involuntarily strayed to the question whether there was or was no cause of action. He submitted that even based on Respondent’s own showing, especially the averment in paragraph 21 of his statement of claim that his appointment was not terminated, and that he was still in the service of the Appellant, there was no cause of action disclosed by the Respondent in the suit. The definition of “Cause of action” contained in some decided cases as “all those things necessary to give a right of action, whether they are to be done by the Plaintiff or a third person” was then referred to. The cases cited included: Harnaman v. Smith (1855) 10 Exch. 659 at 666; Cook v. Gill (1873) L.R.B.C.P. 107 at 116; and Thomas v. Olufosoye (1986) 1 N.W.L.R. (Part 18) 669 at 682.

The point was also canvassed that Respondent failed to tender the document, if any that governed his condition of service with the Appellant, with particular reference to the grant of leave without pay, in order to see whether re-absorption was automatic or subject to the availability of vacancies. It was also pointed out that Respondent had pleaded in paragraph 19 of his statement of claim that he was a public employee whose appointment was permanent and pensionable, but no evidence was led to prove this averment. The provisions of Sections 135 & 136 of Evidence Act were quoted and relied upon.

In view of the above lapses it was submitted that the learned trial Judge was in error when she entered judgment for Respondent, and granted him all the reliefs he claimed. The court was therefore urged to allow this appeal.

In reply to the above, it was submitted on behalf of the Respondent that the trial court correctly directed itself as to the onus of proof in this matter. It was pointed out that at the close of pleadings Appellant admitted all material facts pleaded by the Respondent either specifically or by implication. Facts admitted need not be proved as provided for by section 74 of the Evidence Act.

It was also further submitted that the Appellant could not rely on the case of Amodu v. Amode. (1990) 5 NWLR (Pt. 150) 356, as that case talked of “onus of proof when issues are joined”. In the instant case issues were not joined on terms of contract between the Plaintiff and the Defendant, nor were issues joined as to conditions regulating grant of study leave without pay. It was submitted that a party was only bound to lead evidence on issues joined as laid down in A.C.B. v. Egbunike (1988) 4 NWLR (Pt. 88) 350 at 365. So, the failure to plead and tender the contract of service in this matter was not detrimental to Respondent’s case.

It was also pointed out that this particular line of argument was never raised at the lower court, but was being canvassed in this court for the first time.

Finally, it was submitted that there was no error or misdirection on the part of the trial court which has resulted in a miscarriage of justice. The court was therefore urged to dismiss this appeal for want of merit and lack of substance.
I have carefully considered all the argument canvassed above by learned counsel on both sides, but before proceeding to resolve them, I feel bound to point out two irregularities which, if they had been pointed out in good time, could have resulted in this appeal being struck out.

The first is that under our present law on brief writing, all issues formulated for determination must arise from the grounds of appeal filed. Conversely, a ground of appeal filed, which is not made the subject of an issue is deemed to have been abandoned. (See the Cases of:-
1. Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157)
2. Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608 at 620 – 621.
3. Emegokwe v. Okadigbo (1973) 4 SC 113.

In the instant case, the question whether Respondent’s pleadings at the court below disclosed any cause of action or not was made a ground of appeal in the Notice and grounds of appeal dated 25/2/91 filed for Appellants by H. O. Ogbodu Esq. But in the brief of arguments subsequently filed for the Appellant on 15/7/91 by E. F. Aiyudubie, there was no issue formulated which complained about absence of Cause of action on the part of Respondent. Yet the learned counsel for the Appellant had spent the best part of his brief arguing about that issue. Such argument should have been ignored, as it went to no issue.

The second observation is that it is trite law that where a point was not raised in the trial court, it will not, without leave, be allowed to be raised for the first time on appeal. (See Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271, and Alade v. Alemulake (1988) 1 NWLR (Pt. 69) 207 at 218.)

In the instant case, the 2nd question:-
“Whether the failure of the Plaintiff to plead contract of service stipulating the terms and conditions of appointment is detrimental to all or any of the reliefs sought by him.”
was never raised at the trial court. So also was the first issue on the onus of proof. Yet these two questions were raised and canvassed in this court without prior approval having been sought or obtained, without any objection by the learned counsel for Respondent. The matter was only pointed out at the tail end of Respondent’s brief under “CONCLUSION” at p.8 of the said brief. I should point out that failure to have obtained leave, or taken any step, which is a condition precedent, goes to the competence of the appeal, which renders the appeal liable to be struck out, if the matter had been raised earlier as a “Preliminary objection”. (Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 295). I am also conscious of the numerous decisions of the Supreme Court to the effect that:
“An Appeal Court has a duty to determine appeals on their merits and not on mere technicality.”
(See the cases of Dr. Okonjo v. Dr. Odje & Others (1985) 10 S.C. 267, Obadiaru v. Uyigue & Anor. (1986) 3 SC 39 and many other)
In view of the foregoing, although I felt compelled to point out the above irregularities, at least for future guidance, I shall never the less proceed to consider this appeal on its merits.

The facts of this case were not in dispute, because even the Appellants themselves admitted that the Respondent was granted “study Leave without Pay”, as per their letter of 22nd October, 1981 (Exhibit ‘C’). It was also not disputed that Respondent complied strictly with the terms of the said letter, in that he returned to this country, promptly immediately after the expiration of the said three years, and reported timeously to the Appellant, to resume duty. It was not also disputed that it was the Appellant who directed Respondent to go and undertake his N.Y.S.C. Service before coming back to resume, and he went and did so, and finally reported again to Appellant in January, 1986 for resumption of duty. The only point of controversy is whether the Appellant was justified in refusing or failing to re-absorb Respondent at that point in time on the ground that they had no vacancy in the Cadre of Senior Clerical Officers. Contrary to the submission of the learned counsel for the Appellant, the onus was on the Appellant to prove to the court that such a ground was a tenable ground for failing to re-absorb the Respondent. The Respondent in the course of his evidence tendered the letter Exhibit ‘C’ which granted him study leave without pay, and that letter contained no stipulation that Respondent’s re-absorption, on completion of his studies would be “subject to availability of vacancy” Our law is that “He who asserts must prove” (See S.134 of Evidence Act.) Since it was the appellant that was pleading and relying on non-availability of vacancy, the onus was on him to have produced some documents such as the condition of service, or some Circular to show that re-absorption after completion of “Study Leave without Pay” was not automatic, but “subject to availability of necessary vacancy.” This, I regret to say the appellant failed to do. True enough there was an averment at paragraph 5 of Appellant’s Statement of Defence to the following effect:-
“5. In further answer to paragraph 20 of the Statement of claim, the defendant will contend at the trial that it is subject to the Civil Service Rules and Regulations of the Federal Republic of Nigeria and will further contend that there was a circular from the Federal Ministry of Establishment to the effect that staffs granted study leave without pay could only be re-absorbed if and when there Is available vacancies and funds. The said circular will be relied upon at the trial.”
Yet, at the trial no such circular was ever produced nor tendered. The inference therefore is that such a circular either did not exist, or that even if it existed, its contents would be unfavourable to the Appellant who withheld it. (See S. 148(d) of Evidence Act). In effect therefore I hold that there was “no tenable reason given for the Appellant failing to re-absorb the Respondent after completion of his 3 years study leave without pay. I must also emphasize that the question of availability of vacancy could only arise in the case of a fresh applicant or where a servant had resigned his appointment, and later sought re-engagement. But where he was granted study leave, with, or without pay, there could be no question of availability of vacancy as he was already in service. It was most scandalous therefore, for a Federal Government Agency to award study leave to one of its servants, based on his good reports, and then and turned round to complain of lack of vacancy.

I now come to the remaining question, namely whether the writ of summons and the Statement of claim of the Respondent disclosed a cause of action. As already pointed out above, although there was a ground of appeal to this effect, nevertheless the said ground was inferentially abandoned when no issue for determination was formulated to cover it. However, the matter having been allowed to be argued and responded to without any objection, this court has no alternative but to pronounce on it as follows:-
This question was raised and canvassed as a Preliminary Question of law before the learned trial Judge at the court below, and she held that a “cause of action” was disclosed, based on the definition of “cause of action given by Diplock, L.J. in Letank v. Cooper (1965) Q.B. 222 at 242 as:
“The existence of a factual situation which entitles one person to obtain from the court a remedy against another person.”
This definition was later adopted and followed in this country in many decided cases by both the court of Appeal and the Supreme Court: See e.g.
1. Fadare v. A.G. Oyo State (1982) 4 S.C. 1 at 6 -7;
2. Thomas v. Olufowose (1986) 1 NWLR (Pt. 18) 669 at 682
3. Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
4. Ogunleye v. Jegede (1991) 6 NWLR (Pt. 199) 611.

From the above definition, it appears to me to be a misconception for the learned counsel for appellant to argue that unless and until the Respondent has been formally dismissed or his appointment terminated, he cannot come to court to sue about anything. The truth is that, as in other branches of the law of contract, any breach or threatened breach of any term of the contract between the parties is actionable in court at the suit of the person wronged. So, a land Lord can maintain an action for arrears of rent against a tenant who fails to pay his rents as and when due, even though the relationship of landlord and tenant still subsists between them. So, in the same way, I am of the considered view that nothing prevents a servant from suing his master for arrears of salaries, or a declaration in respect of same, even though the relationship of master and servant still subsists between them. It is also actionable if a master wrongfully prevents a servant from working to earn his salary or profit, as in the instant case. See the case of Ijebu Ode Local Government v. Adedeji Balogun & Co. Ltd (1991) 1 NWLR (Pt. 166) 136 where an employer had unilaterally terminated a contract for building a market, it was held by the Supreme Court that the servant or contractor was entitled to be paid the profit which he could have earned (to wit: 1/3 of the contract price) if he had been allowed to execute the contract to the end. (Swiss-Nigerian Wood Lin Ind. Ltd. v. Bogo (1971) U.I.L.R. 337 referred to).

Also in the recent case of Obo v. Comm. of Education, Bendel State (1993) 2 NWLR (Pt. 273) 46; the Appellant who was granted 2 years study leave without pay in 1976 to study Physical Education in the U.S.A. Overstayed his study leave by eight years. On his return to this Country in 1986, his appointment was terminated for grossly overstaying his leave. He was also ordered to refund the sum of N22,739.49, erroneously paid into his account. On appeal to this court, we held that the appointment of Appellant was rightly terminated as he had grossly overstayed his leave without pay. In the Civil Service absence from duty without leave was a serious offence punishable by dismissal or termination of appointment. Appellant was also ordered to refund the amount of over payment, as money not worked for.

From the above facts, it will be seen that the present case is almost the exact opposite of Obo’ s case. We believe that “what is good for the goose is also good for gander”. If we held that it was a breach of appellant’s duty under his contract (of Master and Servant) with his employer, for him to overstay his study leave without pay, we must equally condemn in no uncertain terms the present Appellants failure to reabsorb Respondent back to his Job, after his return from his study leave within the prescribed time. We are of the firm view that it is an actionable wrong for appellant to wrongfully refuse to allow Respondent to work and earn his income or profit after he returned from his study leave. This appeal therefore fails and is hereby dismissed.

We shall however go a little further than what was done by the learned trial Judge, by granting not only the Declarations sought by Respondent, but also by making “consequential Orders” that arise from the Declarations.
The following Declarations and Orders are therefore hereby made in favour of the Respondent.
(a) That the Plaintiff/Respondent is still an employee of Defendant/Appellant, (West African Examinations Council);
(b) (i) That Plaintiff/Respondent is entitled to his salary and other entitlements as from January, 1986 when he presented himself for re-absorption.
(ii) It is hereby ordered that the said arrears of salaries which was at the rate of N183.00 per month, at the time he proceeded on study leave in January, 1982, be paid to him within one month from the date of this Judgment.
It is hereby ordered that Plaintiff/Respondent shall be re-absorbed and put in his previous position as a Senior Clerical Officer, in the Defendant/Appellant’s establishment forthwith, i.e. with effect from the date of this Judgment.
Costs of this appeal is assessed at N1,000.00 (One Thousand Naira) in favour of Respondent, against the Appellant.

Other Citations: (1994)LCN/0172(CA)