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 ……