Wilfred Igbinovia V. University of Benin Teaching Hospital & Anor (2000)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
This appeal is from a judgment of Idahosa, J. of the Edo State High Court holden in Benin in Suit No.B/159/89 given on 26th November, 1997.
The plaintiff in the court below claimed against the defendants in his amended statement of claim the following reliefs:-
(1) A declaration that the plaintiff’s purported dismissal as a staff of the University of Benin Teaching Hospital in accordance with a letter of purported dismissal reference No. PS/2816/Vol.II/41 of 7th April, 1989, for an alleged criminal offence in which he was never charged to and tried by a Court of Law is unconstitutional, illegal, wrongful, null and void.
(2) An order of reinstatement of the plaintiff as stores officer with all its rights duties, privileges, remunerations, allowances and all other perquisites of the office with effect from 7th April, 1989.
(3) An order of perpetual injunction restraining the defendants, their servants and/or agents from preventing the plaintiff from performing any of the functions and duties of his office or interfering with the enjoyment of the rights, privileges and benefits attached to his office.
OR
The sum of N800,000 as general damages for unlawful dismissal.”
Pleadings were filed and duly exchanged. Both parties later amended their pleadings. At the trial, the appellant testified and called no witness. The respondents did not call any witness but rested their case on that of the appellant. Many exhibits were tendered with the consent of counsel at the trial. At the close of the case, learned counsel to the parties addressed the court and judgment was subsequently delivered on 26th of November, 1997. In his judgment, the learned trial Judge considered only one point urged upon him my learned counsel to the respondents, to wit, that the failure of the appellant to tender his letter of appointment is fatal to his case. The learned trial Judge was of the opinion that this point was sufficient to dispose of the entire suit and therefore declined to consider all the other points raised by the learned counsel to the parties. Dissatisfied with the judgment of the learned trial Judge, the plaintiff has appealed to this court.
The Notice of Appeal contains three grounds of appeal. It reads:-
Grounds of Appeal
“(1) The learned trial judge erred in law in holding that the failure of the plaintiff to tender his letter of employment was fatal to his case.
Particulars of Errors
(a) The parties did not join issues in their pleading on the employment of the plaintiff by the defendants.
(b) The defendants did not dispute that the plaintiff was their staff.
(c) The learned trial Judge failed to take into account the several undisputed and uncontradicted exhibits tendered in the proceeding indicating that the plaintiff was a staff of the defendants, in arriving at his decision.
(2) The learned trial Judge erred in law and on the facts in holding that the plaintiff did not prove his case to entitle him to judgment.
Particulars of Errors
(a) As the defendants led no evidence at the trial, the plaintiff’s oral evidence to the effect that he was employed by the defendants was sufficient proof of his employment.
(b) The defendant did not dispute the employment of the plaintiff by them through cross-examination. Plaintiff’s oral evidence on the issue was therefore uncontradicted.
(c) The learned trial Judge wrongly ignored the plaintiff’s oral testimony that he was employed by the defendants in arriving at his decision.
(3) The learned trial Judge erred in law in relying on the defendants amended statement of defence in arriving at his decision that the plaintiff did not prove his case to entitle him to judgment.
Particulars of Errors
(a) As the defendants led no evidence at the trial in proof of their defence, the learned trial judge was wrong to have relied on the averments in the amended statement of defence in arriving at his decision.
(b) Pleadings do not constitute evidence. The defendants having abandoned their defence, issues were not longer joined in respect of the evidence led by the plaintiff, in proof of his case.
The case of the appellant as plaintiff at the lower court was that he was wrongfully dismissed from his employment as stores officer by the 1st defendant. He was employed as a purchasing clerk by the 1st defendant on June 4th 1974 and was promoted to the position of purchasing clerk Grade II in 1976. He registered with the Institute of purchasing and supply London in 1975 with a registration No, 04395. On passing the subject of Business Economics at the Intermediate Level in 1977, appellant was sent a result slip. He said he lost the original result slip in a fire incident in his residence. The photocopy of the result slip was tendered and admitted as exh. ‘A’
Upon receipt of the result slip, the appellant notified the respondents through the Chief Stores Officer by a letter dated 29/8/77. which was acknowledged by a letter dated 6/9/77, which letter was admitted as exh, ‘B’
Appellant said that in December, 1977, he sat for and passed two subjects viz Commercial Law and Introduction to purchasing and supply, and be tendered a copy of the notification of result – the original having been burnt. The notification is exh. ‘C’.
Respondents were notified by a letter dated 9/3/78 which was acknowledged by a memo which were admitted as exhs. ‘D’ and ‘E’ respectively. Appellant was then converted from Senior Clerical Officer Grade to Senior Storekeeper Grade. The letter to this effect is exh. ‘F’.
In 1980, Appellant said that he sat for another examination and passed two subjects viz Stores Management and Research study and he duly notified respondents who acknowledge receipt of the notification. The acknowledgement letter is exh. ‘G’. At this stage both counsel agreed to tender by consent the documents the appellant intended to rely on. These were examined by the defence counsel and consequently eighteen documents were admitted by consent as exhs. H-H17.
Continuing his testimony thereafter, the appellant said that whenever he sat for an examination and passed, he notified the respondents by sending photocopies of all his results, with a letter through the Chief Stores and Supplies Officer, and respondents would acknowledge receipt of same through the same officer with a letter. He added that at a later date, he would be called upon to present the original of the result slip which will then be compared with the photocopies he had earlier sent to respondents.
When this comparison is conducted, the officer who did the comparison will then sign at the back of the photocopy that he has visually inspected the original. Appellant added that none of the result slip he sent in were to the stores department and none had the official stamp of the stores department.
In August 1989 appellant said was summoned and informed by Professor Ebie then the Chief Medical Director of the 1st respondent that a member of staff had sent in a petition against him in which it was alleged that he had sent in a forged result to the respondents in 1984. He was not told who wrote the petition and neither was he shown the petition.
On 2/9/88, appellant received a query from the respondents, attached to which was a letter from the Institute of Purchasing and Supply. Appellant said he then requested for a copy of his letter of notification and the result slip he was alleged to have forged. While he received a copy of the said result slip he was not given a copy of his own letter allegedly notifying the respondents about the result. Inspite of this, appellant sent in a reply to the query on 12/9/88. He said further that he did not sit for any examination in 1984 and he did not send in any examination result slip in 1984.
After appellant’s reply to the query he was suspended indefinitely and placed on half pay, a panel of Inquiry was set up to examination all the results sent in by the appellant. At the inquiry, C. O. Ogiamien, Director of Administration of 1st respondent and Secretary to 2nd respondent testified against appellant in his absence. He also wrote the letter that formed the basis of the allegation of falsification of results against appellant that is, the letter of 30/12/85. Appellant said Ogiamien wrote his letter of dismissal although he was a part of the Board that decided to dismiss him.
Appellant said he appeared before the Panel and other persons testified in his absence. He named some of the person as follows:
Edward Ofodile, Edwin Mowa, D. I. Alu, Olu Edeki, S. A. Ehimeka, Mrs.
The panel submitted a report to the Chief Medical Director of the respondents but appellant said he was not given a copy of the report.
On 23/3/89, appellant said that he appeared before the Board and pleaded his innocence of the allegation, but he was later dismissed. The issue of falsification of the result was not sent to the police to investigate and neither was the appellant charged before a court. Appellant said that before the problem arose, he was the Chairman of the Non-Academic Staff Union, and because of his stance on matters with Management, the relationship between the appellant and Management, was not cordial. He said he was once arrested in 1987 for stealing respondents’ property. He said he protested but he was not prosecuted.
Appellant said he occupied a pensionable position with a retiring age of 60 years. Appellant said he wanted the court below to reinstate him and declare his dismissal null and void and he also claimed as per the statement of claim.
After cross-examination by the learned counsel for the respondents the learned counsel for the appellant then closed his case. The learned counsel for the respondents told the trial court that the respondents were resting their case all the appellant’s case.
Counsel for the parties then addressed the trial court. In his judgment, the learned trial Judge considered only one point urged upon him by the learned counsel to the respondents, to wit, that the failure or the plaintiff/appellant to tender his letter or appointment is fatal to his case. The learned trial Judge was of the opinion that this point was sufficient to dispose of the entire suit and therefore declined to consider all the other points raised by the learned counsel to the parties.
He held that there was no merit in the action of the appellant and then dismissed it with costs.
As I have said above, this appeal is against the dismissal of the plaintiff’s case by the court below.
Both parties filed their respective briefs of argument which they adopted at the hearing of this appeal. The appellant in his brief of argument formulated two issues for determination in this appeal which read as follows:-
“1. Having regard to the pleadings and the uncontradicted evidence or the plaintiff/appellant in this case, was the appointment of the plaintiff/appellant by the respondents an issue between the parties such as to render the non-tendering of his letter of appointment at the trial, if any fatal to the case?”
- Did the plaintiff/appellant establish his case before the trial Judge to entitle him to judgment?”
The respondents in their joint brief raised only one issue or determination.
It reads:-
“(a) Whether the learned trial Judge was right when he held then the plaintiff (appellant) has failed to prove an essential element of his claim by not tendering his letter of appointment?”
The appellant also filed a reply brief which is a response to the preliminary objection raised in the respondent’s brief. They reply brief is confined to the preliminary objection only and does not seek to challenge the argument in the respondent’s brief”.
At page 2 of the respondent’s brief, the respondents raised a preliminary objection to the competence of grounds 2 and 3 of the grounds of appeal filed by the appellant at pages 87-88 of the record of proceedings and this court is urged to strike them out on the following grounds:-
“(a) Ground 2 of the grounds of appeal alleges error in law and on fact which is against the provisions of order 3 Rule 2(3) of the Court of Appeal Rules 1981.”
It was submitted for the respondents that any ground of appeal that complains of error in law and on fact is incompetent under order 3 rule 2(3) of the Court of Appeal Rules 1981, and as such, the Court of Appeal has power to declare it incompetent and issues formulated from such an incompetent ground will therefore be discountenanced. Reference was made to the case of Ikyaawan v. Ajivah (1997) 4 NWLR (Pt.499) 365 at 378.
Secondly, it was submitted that the learned trial Judge did not say in his judgment that the appellant did not prove his case to entitle him to judgment. Therefore, the appellant cannot appeal against what was not contained in the judgment as this will be contrary to law. It was contended that in law, a ground of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590.
It was argued that nothing was determined by the court capable of being regarded as a judgment, decree, order, conviction, sentence or even recommendation of that court as envisaged by section 277(1) of the 1979 Constitution which is capable of being appealed against. It was said also that the appellant having stated in his introduction as contained in his brief that the learned trial Judge considered only one point to wit; failure of the appellant to tender his letter of appointment, cannot now turn round to appeal against what was not said or considered by the learned trial Judge. Reliance was placed on the following cases:-
Awoniyi v. Buremoh (1996) 4 NWLR (Pt. 443) 419 at 433-434 Int. Equitable Ass. Ltd v. Okehie (1999) 5 NWLR (Pt.604) 620 at 629. It was urged therefore, that ground 2 of the appellant’s grounds of appeal should be struck out.
As for ground 3 of the appellant’s grounds of appeal, it was stated that the learned trial Judge did not rely on the defendant’s Amended Statement of defence in arriving at his decision that the plaintiff did not prove his case to entitle him to judgment. Therefore, the appellant cannot appeal against whom was not decided by the learned trial Judge as this also, will be contrary to the provisions of section 277(1) of the 1979 Constitution as amended.
It was submitted that if the respondent’s objections above are upheld, then only ground 1 and issue No.1 will be left.
In the appellant’s reply brief which is a response to the preliminary objection only. It was submitted for the appellant that the objection is misconceived. It was stated that order 3 Rule 2(3) of the Court of Appeal Rules does not support the contention. It was contended that there is no law or Rule of Court which renders incompletion a ground of appeal alleging an error in law and fact.
Again, it was submitted that ground 2 or the grounds of appeal is attacking the pronouncement or the learned trial Judge that the appellant has not met the minimal requirement needed to prove his case, where the defendant did not lead any evidence, as he failed to prove an essential element of his claim. It is the contention of the appellant that the submission in the respondent’s brief to the effect that ground 2 of the grounds of appeal is not based on the decision of the lower court is incorrect.
It was also submitted for the appellant that ground 3 attacks the use which the learned trial Judge made of the amended statement of defence. It complains that since the defendants did not lead any evidence at the trial, it had abandoned its defence and issues were no longer joined in respect of the evidence led by the plaintiff. It was argued that the appointment of the appellant was not put in issue and therefore ground three is based on the decision of the lower court and it is therefore valid.
It was submitted for the appellant that issue No.2 in the appellant’s brief is covered by ground 2 of the grounds of Appeal. It was contended that issue No.2 is valid and can be entertained either order ground No.2 or under section 16 of the court of Appeal Act.
It was submitted for the appellant that issue No.2 in the appellant’s brief is covered by ground 2 of the grounds of Appeal. It was contended that issue No.2 or under section 16 of the Court of Appeal Act.
I have examined carefully the grounds of appeal of the appellant. They are three in number. Ground 2 without its particulars is as follows:-
“(2) The learned trial Judge erred in law and on the facts in holding that the plaintiff did not prove his case to entitle him to judgment”.
It is patently clear that ground two of the grounds of appeal is in breach of the provisions of Order 3 Rule 2(2) of the Court of Appeal, Rules 1981. Order 3 Rule 2(2) reads:
“(2) If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated”.
I am of the view that the correct interpretation in practice, of order 3 rule 2(2) of the Court of Appeal Rules 1981 is, that a ground of appeal which alleges both misdirection and error in law, or indeed, error in law and on fact, is an incompetent ground of appeal it is incurably bad and should be struck out. See First Bank of Nigeria Ltd. v. Moses Onyema Njoku (1995) 3 NWLR (Pt. 384) 457; Nwadike v. Cletus Ibekwe & Ors (1987) 4 NWLR (Pt. 67) 718 at 744; Loke v. Inspector General of Police & Anor (1997) 11 NWLR (Pt. 527) 57. As ground (2) in the Notice of Appeal is incompetent, that ground is struck out by me. See Bernard Ikyaawan v. Aji Ajivah (1997) 4 NWLR (Pt.499) 365 at 378; Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285; Anadi v. Okoli (1977) 7 SC. 57. Issue No. (2) in the appellant’s brief is as follows:
“(2) Did the plaintiff/appellant establish his case before the trial Judge to entitle him to judgment?”
I have no iota of doubt in my mind that issue No (2) in appellant’s brief reproduced above was formulated from ground (1) of the grounds of appeal. Since ground (2) of the grounds of appeal is incompetent, it goes without saying that issue No (2) formulated from it by the appellant is also incompetent and should be struck out. I therefore strike it out. See Ikyaanwan v. Ajivah (supra)
As for ground 3 of the appellant’s grounds of appeal, the learned trial Judge did not say in his judgment that he relied on the defendant’s amended statement of defence in arriving at his decision that the plaintiff/appellant did not prove his case to entitle him to judgment. I have read carefully the judgment of the lower court and nothing of the sort is contained therein. Therefore, the appellant cannot appeal against what was not decided by the learned trial Judge as this will be contrary to section 277(1) of the 1979 Constitution as amended. The 1979 Constitution was applicable at the time of the trial of this case at the court below. It should be noted that S.277(1) of the 1979 Constitution is in pari material with s.318(1) of the 1999 Constitution. S.227(1) defines ‘decision’ it means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”Ground 3 of the grounds of appeal reads:-
“The learned trial Judge erred in law in relying on the defendant’s amended statement of defence in arriving at his decision that the plaintiff did not prove his case to entitle him to judgment.”
Ground 3 of the grounds of appeal is therefore contrary to the express provisions of S.277(1) of the 1979 Constitution as amended. Therefore, the appellant cannot appeal against what was not decided by the learned trial Judge. For this reason, ground 3 of the grounds of appeal is struck out as it does not arise from the decision of the trial court. Issue No.2 distilled from it in the appellant’s brief is also struck out. Having said that, I have no doubt in my mind that the respondent’s objections have merit and I uphold them. That being so, only ground (1) of the grounds of appeal and issue No.(1) distilled from it will be left for my consideration in this appeal. The grounds of appeal are reproduced above, so also is issue No.(1) in the appellant’s brief.
Issue No.(a) in the respondent’s brief also reproduced above is one and the same thing as issue (1) in the appellant’s brief.
It was submitted for the appellant that in paragraph two of the amended statement of defence, the respondents denied generally severally paragraphs contained in the amended statement of claim including paragraph 1. It is the contention of the appellant that a general denial in a statement of defence of averment contained in a statement of claim is insufficient denial. Reference was made to Lewis & Peat (NR1) v. Akhimien (1976) 1 All NLR 460 and Akintola v. Solano All NLR 395 at 421 (1986) 2 NWLR (Pt.24) 598.
It was argued that the general denial of paragraph one of the amended statement of claim contained in paragraph two of the amended statement of defence is insufficient to amount to a joinder of issue relating to the employment of the appellant by the respondents.
It was submitted that having regard to the pleading in this case, the appointment or non-appointment of the appellant by the respondents was never an issue between the parties in this case. It was therefore contended that the learned trial Judge was wrong in his holding that “the fact of the appointment of the plaintiff was put in issue.” Reference was made to the case of Ogida v. Oliha (1986) All NLR (reprint) page 303 at 315, (1986) 1 NWLR (Pt.19) 789.
It is the case of the appellant that at the trial before the lower court, only the appellant testified. The respondents did not lead any evidence in proof of their defence and therefore the appellant’s evidence was therefore uncontradicted. It was submitted that where a defendant called no evidence in a case, the proof required of a plaintiff is minimal. Reliance was placed on the case of Balogun v. U.B.A. Ltd. (1992) 6 (Pt.247) 336 at 351 to 352. It is the contention of the appellant that the learned trial Judge decided this case on technicality and not on the substance of the matter. Reference was made to the case of Okonjo v. Dr. Odje (1985) 10 S.C. 267.
For the respondents, it was submitted that the action of the plaintiff/appellant was for a declaration. His claims as finally endorsed in paragraph 40 of the amended statement of claim is at page 40 of the record of proceedings.
It was contended that in law, the court does not make declaration of right either on admission or in default or defence. Reference was made to the case of Vincent I. Bello v. Magnus A. Eweka 1981) 1 S.C. 101 at 103 -104. It was submitted that in this case the onus was on the appellant to satisfy the court that he was entitled to the declaration sought him. This he failed to do. It was conceded that where a defendant called no evidence in a case, the proof required or a plaintiff is minimal. Reference was made to the case of Balogun v. U.B.A. Ltd (1992) 6 NWLR (Pt.247) 336 at 344-345. It was submitted that in any event to declaratory actions but to other civil cases.
It is the contention of the respondents that the onus placed by law on the appellant was never discharged, and on that basis his action was rightly dismissed by the learned trial Judge.
I would like to start with the pleadings of the parties on the appointment employment or the appellant.
In his amended statement of claim, the appellant pleaded in relation to his appointment by the respondents as follows:-
“(1) The plaintiff was employed as a purchasing Clerk by the first defendant on June 4th 1974 and was promoted to the position of Purchasing Clerk Grade II in 1976.”
In their amended joint statement of defence, the respondents pleaded as follows: in response to the above averment contained in the amended statement of claim:-
“(1) The defendants admit the averments in paragraph 2, 3, 5, 8, 10, 13, 16, 17, 19, 22, 23 and 30 of the amended statement of claim.
(2) The defendants vehemently deny the averments contained in paragraphs 1, 4, 7, 9, 11, 12, 14, 15, 18, 20, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 36, 37, 38, 39 and 40 or of the amended statement of claim and would at the trial require strictest proof of the said averments.
(3) Further to the denial or paragraph 1 of the amended statement of claim, the defendants aver that the plaintiff was not employed as a purchasing clerk but as a clerk Grade III. Plaintiff’s letter of appointment shall be relied upon at the trial. Notice is hereby given to the plaintiff to produce the original letter of appointment at the trial.”
After a hard look at paragraphs 1 to 3 of the joint statement of defence reproduced above. I do not agree with the appellant that they amount general denial. In paragraph (1) of the amended statement of claim, the appellant averred that he was employed by the first defendant as a Purchasing Clerk on June 4th 1974 and was promoted to the position of Purchasing Clerk Grade II in 1976. Inter alia, the defendants in their amended statement of defence vehemently denied the averment contained in paragraph 1 of the amended statement of claim and went further in paragraph 3 to specifically deny the averment contained in paragraph 1 of the amended statement of claim to the effect that the appellant was not employed as a Purchasing Clerk by the 1st defendant but was employed as a clerk Grade III.
From the above pleadings, it goes without saying that the defendants joined issue with the appellant as to the rank or status to which he was employed when he joined the services of the 1st defendant. It is therefore a matter of common sense that it is the appellant’s letter of appointment that would resolve whether or not he was appointed in 1974 as a Purchasing Clerk or as a clerk Grade III. The fact of the status of the appointment in 1974 is especially within the knowledge of the appellant and the burden of proving that fact is upon him. See section 142 of the evidence Act, Cap 112 of the laws of the Federation of Nigeria 1990.
I must say that in law the court does not make declaration of right either on admission or in default of defence. It is true as was contended before us by the appellant in his brief that the rules of court and evidence relieve a party of the need to prove what is admitted but where the court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337; Akinola & Ors v. Oluwo & 2 Ors (1962) WNLR 135 at 134, (1062) 1 SCNLR 352; Vincent I. Bello v. Magnus A. Eweka (1981) 1 SC. 101 at 103-104.
I hold the view therefore, that whether or not the respondents admitted the claim of the appellant is of no moment. This is because the Supreme Court has set out in the case of B. A. Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506 at 525 – 527, what a plaintiff in a declaratory action that the termination of his appointment is a nullity must plead and prove as material facts. These are:
- He is an employee of defendant.
- How was he appointed and what are terms and conditions of his appointment.
- Who can appoint him and who can remove him?
- What are the circumstances under which his appointment can be determined.
In the case in hand, it was the duty of the appellant as plaintiff to plead in his statement of claim fact which establish the requirement of the law and upon which the court could rely on in finding in his favour. If this was not done, then the statement of claim has not disclosed a cause of action. It is manifest from the record and all the exhibits tendered in this case that the appellant did not tender his letter of appointment at the trial court. Where therefore, as in the present case, a material averment, that is the letter of employment of the appellant which ought to have been pleaded and established at the trial as one of the conditions precedent to the grant of any relief under the master and servant law as postulated by the Supreme Court in the case of Morohunfola v. Kwara Tech. (supra) was not pleaded, the plain duty of the court was either to strike out or dismiss the action. See Akintola v. Solano (1986) 2 NWLR (Pt.24) 598 at 623; Williams v. Williams (1995) 2 NWLR (Pt.375) 1 at 24.
In part of his judgment the learned trial Judge had this to say at page 69 lines 18-33 of the record:-
“It is clear to me and I agree with learned counsel for the defendants that the failure of the plaintiff to tender his letter of appointment is fatal to his case. In my view the above point is enough to dispose of this suit. So many other issues were raised in this suit, but I consider them to be of academic value only in view of the radical effect of the absence of the letter of appointment. As the Supreme Court, said in Balogun v. U.B.A. Ltd. supra in some cases, a defendant who offers no evidence could still have judgment in his favour if plaintiff is unable to prove an essential element of his claim. This is one of such instances. Thus, even if all the other issues are resolved in favour of the plaintiff; he will not get judgment because of the absence of his letter of appointment. He has not met with the minimal requirement needed to prove his case, where the defendant did not lead any evidence, as he failed to prove an essential element or his claim.”
The above passage from the judgment of the learned trial Judge cannot be faulted from the facts and circumstances of this case as home by the record. In the instant case, the appellant has made heavy weather from the fact that the defendants did not offer any evidence in defence. In the case of Balogun v. U.B.A. Ltd. (1992) 6 NWLR (Pt. 247) 336, the Supreme Court held inter alia that in some cases, a defendant who offers no evidence could still have judgment in his favour if plaintiff is unable to prove an essential element of his claim. It is my strong view that it is an essential element of the case for the appellant to tender his letter of appointment at the trial court. This he failed to do. The learned trial Judge was therefore not in error when he held in part of his judgment that the failure of the plaintiff to tender his letter of appointment is fatal to his case. See also the case of Dr. F.O.A. Okhomina v. Psychiatric Hospital Management Board (1997) 2 NWLR (Pt. 485) 75. In that case, no letter of appointment was tendered, during the hearing and the suit was dismissed.
For the purpose of completeness, I would like to add that it is not whether or not the appointment or non-appointment of the appellant by the respondents was an issue between the parties, but whether the appellant was able to plead and prove an essential material element of his case to entitle him to a declaration which he sought at the lower court. Therefore, whether or not the appointment of the appellant by the respondents was not an issue between the parties, it was necessary for the appellant to tender his letter of appointment at the trial and failure to do so was fatal to his case as rightly held by the learned trial Judge in his judgment.
In the light of the foregoing, this appeal must fail and I accordingly dismiss it. The judgment of the lower court is affirmed. The respondents are entitled to costs assessed at N2,000.00.
Other Citations: (2000)LCN/0721(CA)
