E.A. Garuba V. Kwara Investment Company Ltd. & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The appellant (hereinafter referred to as the plaintiff) commenced his suit against the respondents (hereinafter referred to as the defendants) at the Omuaran High Court of Kwara State. In paragraph 7 of his statement of claim the plaintiff expressed the reliefs which he sought by his action in these words:

“7. Wherefore the plaintiff claims against the defendants both jointly and/or severally or in the alternative:

(i) a declaration that the dismissal order is null and void;

(ii) a declaration that the 2nd defendant ought to have reversed the dismissal order;

(iii) an order reinstating the plaintiff into 2nd defendant’s service or that of the Kwara State Government as represented by the 3rd defendant; and

(iv) an order directing the 2nd and/or 3rd defendant to cause to be paid jointly and/or severally all the outstanding entitlements of the plaintiff.”

The plaintiff filed a statement of claim. However, only the 2nd defendant filed a statement of defence. Only the plaintiff testified in support of his case whilst the 2nd defendant called one witness.

On 13/10/94, the trial Judge, Ajayi, J. found only the 2nd defendant liable and ordered that it should pay to the plaintiff “all his benefits and entitlements since his dismissal on 25/4/84.”

The 2nd defendant was dissatisfied with the judgment. It brought an appeal against it at the Ilorin Division of the Court of Appeal (hereinafter called ‘the court below’). The court below in its judgment on 29/3/2000 allowed the appeal and set aside the judgment of the trial court. The plaintiff has brought this further appeal before this court. In his appellant’s brief, the issues identified as arising for determination in the appeal are:

“1. Whether the court below was right on the view it took of exhibit 8 tendered before the trial court and whether the 1st respondent will not by virtue of section 72 of Companies and Allied Matters Act, 1990 inherit the liability including a wrongly dismissed staff like the appellant.

2. Whether the court below was right by its failure to construe Clause 24 of exhibit 6 to hold that the appellant’s dismissal was null and void and to have tampered with the right decision of the trial court in that regard.
3. Whether the court below having held that the dismissal of the appellant was wrongful was right to have refused to invoke the provisions of section 16 of the Court of Appeal Act to make appropriate order to give effect to the wrongfulness of the appellant’s dismissal as held by it.”

The 1st respondent in its brief took objection to the appellant’s first and fourth grounds of appeal. It then formulated three alternative issues for determination in the appeal. As the issues so formulated fall within the ambit of the appellant’s issues, it is unnecessary to set them out here. The 2nd and 3rd respondents filed a joint brief wherein they raised a preliminary objection to grounds 1,2,3 and 4 of the appellant’s amended grounds of appeal. Alternatively, the 2nd and 3rd respondents responded to issues as formulated and argued by the appellant in his brief.

It is apparent from the records of this court that the appellant on 21/3/2002 filed an application seeking the leave of this court to file his amended grounds of appeal. Leave was granted to him on 16/10/2002. The preliminary objection of the 2nd and 3rd respondents to appellant’s four amended grounds of appeal which is to the effect that the appellant did not seek nor obtain leave to raise those grounds must be discountenanced and struck out. I therefore, strike out the preliminary objection by 2nd and 3rd respondents. This leaves surviving the preliminary objection by the 1st respondent.

In its preliminary objection against the 1st ground of appeal, the 1st respondent has contended that the 1st ground alleges at the same time that there was an error of law and also a misdirection. It was contended that the same ground could not complain of an error of law and also a misdirection. Counsel relies on Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 at 169 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744. The appellant did not react to the preliminary objection.