M. O. Sekoni V. U.t.c. Nigeria Plc. (2006)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The plaintiff’s claim which eventually was considered can be found in his further amended statement of claim. The application to further amend the statement of claim, dated 5th July, 1999, was served on the defendant after the conclusion of addresses and the matter was in the process of being adjourned for judgment. The claims endorsed on the further amended statement of claim which was indeed the only application dated 5th July, 1999 are recited immediately hereunder:

“Whereof the plaintiff claims against the defendant as follows:

1. A declaration that his purported dismissal as per the defendant’s letter 30th August, 1996 is null and void.
2. N500,000.00 as damages for the pain, distress and anguish occasioned by the said letter.
3. Further and other reliefs.

Alternatively the plaintiff claims:

1. A declaration that his purported dismissal is wrongful and ineffectual to terminate his employment with the defendant/company.
2. An order that the defendant pays to the plaintiff by way of equitable verification all sums that must have accrued to him upon the attainment of 16 years of service with the defendant/company.

Further in the alternative the plaintiff claims:

1. N2.5 million as damages occasioned by the defendant’s breach of its conditions of service and/or for the pain suffering and distress occasioned thereby.

Particulars of special damages

2. Pension/gratuity at the rate of 10% of annual salary for 15 years 9 months, meal subsidy, transport and allowance rent subsidy.

It is pertinent to observe that the amended statement of claim itself was not filed and served until the defence had closed its case. The respondent has not cross-appealed against amendment of pleadings which had the effect of changing the coloration of the suit after both parties have closed their cases and the defendant had addressed the court.

By virtue of Order 26 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994, the court or a Judge in Chambers may permit either party to alter or amend his endorsement of pleadings at any stage of the proceedings. The amendment, however, must be “in such manner and on such terms as may be just.” Consequently, where the amendment may not be fair or just, it will not be granted. It is also important or required that all such amendment shall be made as may “be necessary for the purposes of determining the real questions in controversy between the parties” where an amendment is not necessary for the purpose of determining the real issue in controversy between the parties then the amendment shall not be made. For an amendment to be granted, it must not only be just but must equally be necessary for the purpose of determining the real issue or issues in controversy between the parties. I am encouraged in this view by the case Onwunalu & Ors. v. Osademe (1971) NSCC 13, 15 where Supreme Court held that amendment of pleadings is not permissible if it will work hardship and injustice on the respondent. See Bamishebi v. Nosiru Ote & Ors. (1995) 8 NWLR (Pt. 411) 1, 9 – 10. The only amendment that could be considered and granted where the matter involved is raised in the course of the trial and counsel had addressed the court on it since it will have the effect of bringing pleadings in line with what had emerged in the course of the trial as an issue between the parties: Taiwo v. Akinwunmi (1975) 1 All NLR 202, 219. In the present case, respondent had no opportunity of contesting the issue such as pain, suffering, distress or trauma arising from dismissal from service. I believe this is a point of fact and not law and cannot be foisted on the respondent without offering it the opportunity to adduce evidence to show that pain, suffering, or distress is not necessarily occasioned by dismissal from service. There are other circumstances of live which could ignite them.

Plaintiff testified in support of his claim and the defence called two witnesses in support of its defence. Learned counsel on behalf of their respective clients addressed the court. Learned trial Judge, after considering the evidence and the law, in a reserved and considered judgment, concluded as follows:

“In this case I have found that this plaintiff’s dismissal was lawful. Accordingly he is not entitled to declaratory relief. See Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512. Finally, so long as the dismissal was done in accordance with the terms of contract as I have found, the injured feelings of the plaintiff or the inconvenience he may have suffered are irrelevant. See Chukwuma case referred to above. In sum the plaintiff’s claims are refused and are hereby dismissed.

Dissatisfied or aggrieved, the plaintiff (hereinafter referred to as appellant) appealed to this court on six grounds of appeal including the omnibus ground.

Pursuant to the practice and procedure of this court, briefs of argument were filed and exchanged at the appellant’s, respondents and appellant’s reply briefs.

At the hearing of the appeal, learned senior counsel for appellant adopted and relied upon appellants and appellants reply briefs. Learned counsel for the defendant (hereinafter referred to as the respondent) adopted the respondent’s brief and placed reliance on same.

It may be apt, at this stage, to give albeit a succinct statement of facts of the case. The appellant was employed by the respondent as graduate trainee on 14th November, 1980 and raised through the ranks to the position of senior store manager which position he held until 30th August, 1996 when he received a letter from the respondent dismissing him from its service on account of stock shortage of N1,800, 000.00 from Lagos Department Store. Being unhappy with the respondent’s conduct, the appellant instituted an action at the Lagos High Court, challenging his removal. His claims were dismissed at the lower court after trial consequent upon which he filed a notice of appeal to this court.