John Ejimadu V. Delta Freeze Ltd. & Ors (2007)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal against the decision of Daniel-Kalio (J) dated 23/3/2000 sitting in Port Harcourt Judicial Division of the High Court of Rivers State in suit No. PHC/676/98.

The appellant was the plaintiff at the lower court while the respondents were 1st – 3rd defendants. Parties will hereinafter be referred to as “appellant” and “respondents” respectively.

The appellant claimed against the respondents jointly and severally the sum of N400, 000.00 being damages for breach of contract of employment, or wrongful termination of the said employment. After pleadings were ordered and exchanged evidence of witnesses were taken. Counsel for the pat1ies addressed the court.

In his judgment the learned trial Judge dismissed the plaintiff’s claims in its entirety. Dissatisfied with the decision he now appealed to this court. The notice of appeal filed on 26/3/2001 contained general ground of appeal. On 2/12/2001 by leave of this court the appellant filed two additional grounds.

In compliance with the rules of this court parties filed and exchanged their respective brief of argument.

The appellant identified sole issue for determination, namely:

“Whether or not the learned trial Judge was right in dismissing the entire claim of the appellant having regard to the pleadings, evidence led and the approach adopted by the learned trial Judge.”

The respondents in their brief of argument adopted the sole issue formulated by the appellant.

The pat1ies are in agreement that the sole issue posed by the appellant will determine the appeal. When the argument on the appeal was taken on 22/1/2007, learned counsel for the appellant, J. H. Igbikiberesima, Esq., having adopted the appellant’s brief of argument, adopted same and urged us to allow the appeal and set aside the judgment of the trial Judge. However, my careful study of the complaint of the appellant in his brief of argument, it is clear that his main contention is that having regard to the fact of admission made by the respondents that the appellant was entitled to N5, 583 and a further statement by respondents through DW1 under cross-examination that the respondents were ready to pay the appellant the sum of N5, 500 which they owed appellant and a further statement on page 22 of the record by the same DW1 that the appellant was entitled to N5, 583, the learned trial Judge was in error to have held that the appellant did not prove his claim. It is submitted that the learned trial Judge did not consider the issues of parties as settled in the pleadings and arrived at conclusions that were perverse.

It is further submitted that the findings of the court was not in accord with the evidence before him in respect of the deductions from the appellant’s salary which the respondents failed to account for. That reliance was placed by the learned trial Judge on S.32(3) of the National Provident Fund (General Regulations). It is argued that the provision applies only where the money deducted had been paid into “the Reserved Fund” and not where as in the instant case the respondents did not pay the money into the Fund. Same is argued in respect of the claim for refund of taxes. It is contended that the averments alleging liability of the respondents on these points as well as that of mortgage and housing scheme having not been traversed the respondents were deemed to have admitted such facts and that no further proof was required from the appellant. Reliance was placed on the cases of Lewis & Peat Ltd. v. Akilzimien (1976) 7 SC 157; and Akintola v. Solano (1986)2 NWLR (Pt.24) 598, (1986) 4 SC 181-190.

Learned counsel for the respondents, S.N. Patta, Esq., referred us to the respondents’ brief of argument deemed filed with leave of this court on 4/5/2006. Having adopted same, he amplified no further. However, careful study of the respondents’ brief of argument shows that the respondents raised and presented argument on preliminary objection on ground 3 of the additional grounds of appeal which complains against the dismissal of the entire claims of the appellant.

The complaint has to do with all the 6 claims by the appellant. It is argued that the ground of appeal has fallen short of the requirement of Order 3 rule 2(3) and (4) of the Court of Appeal Rules, 2002 as the ground is not concise and distinctive but couched too wide and in general terms. Reliance was placed on the cases of Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt.795) 185, (2003) FWLR (Pt. 136) p. 823 at p.848A; and Ikem v. Ezeanya (2002) 4 NWLR (Pt.757) 245, (2002) FWLR (Pt.99) p.1088 at p.1100 E-F. It is also contended that the particulars supplied under ground 3 contain unrelated issues that were canvassed and decided upon separately by the trial court. Learned counsel for the respondent finally contended that appellant’s brief of argument contains only one issue which was distilled from the three grounds of appeal (including ground 3). It is submitted that where a competent ground of appeal is argued together with an incompetent ground of appeal, it renders that ground incompetent. He cited the cases of Kadzi Int’l Ltd. v. Kana Tannery Co. Ltd. (2003) FWLR (Pt.l84) p. 255 at 2790; and Fyney v. Sule (2002) FWLR (Pt.94) 115 at p. 133D.

First, I shall deal with the preliminary objection. The complaint of the respondents is on ground 3 of the additional ground of appeal.