National Electric Power Authority v. Alhaji Nurudeen Akinola Lawal & Ors.(1976)

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IDIGBE, J.S.C. 

Although this matter has come up before us as a single appeal, there are, in fact, two separate appeals involved and, for convenience, we shall refer to them as (a) the Principal appeal and (b) the Subordinate appeal.

The Subordinate appeal is from the Ruling of the learned trial judge, dated 19th February, 1973, dismissing the appellants’ interlocutory application, pursuant to the provisions of Order 28, rule 1 of the former Supreme Court (Civil Procedure Rules) (hereafter referred to as “the old S.C.R.”) – contained in Vol. 10 of the 1948 edition of the Laws of Nigeria applicable, in February 1973, in the High Court of Lagos State – for dismissal of the respondent’s “action on the ground that even if the allegations of the plaintiff (i.e. respondent) were admitted or established, yet the plaintiff would not be entitled to any decree against the defendants”.

The question raised by the Principal appeal, which is from the final decision of the learned trial judge in the action which proceeded in spite of the interlocutory appeal from the interlocutory order (i.e. the Ruling) aforesaid, is whether the order of the court of trial by which the claim of the respondent was “non-suited” should be allowed to stand.

The facts which form the background to these “appeals” are as follows: The respondent (as plaintiff), in the High Court of Lagos State, on the 20th day of September, 1972, filed the present suit by which he claims from the appellants and 2nd defendant, Jointly and severally, the sum of 86,812:0:0pounds (i.e. N173,624.00) as special and general damages “for wrongful termination of plaintiff’s appointment as Chief Accountant”. After pleadings were ordered and delivered by the respondent, the appellants and 2nd defendant brought an application by motion on notice, pursuant to the provisions of Order 28, rule 1 of the old S.C.R., for and order of the court dismissing the respondent’s (i.e. plaintiff’s) action “on the ground that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree” on the following grounds:

“(1) That the writ of summons and statement of claim fail to disclose that the defendants are liable jointly for damages claimed.

(2) As the 2nd defendant had ceased to exist in law, no decree can be made against the said defendant.

(3) The liability of the 2nd defendant for alleged ‘wrongful termination of the plaintiff’s appointment as Chief Accountant’ does not vest in the first defendant and accordingly that defendant is not liable for  the relief claimed on the writ of summons.

(4) The statement of claim discloses no cause of action against the 1st defendant (sic) the relief sought in the action particularly (among other reasons) as there was no contract of service binding between  the plaintiff on the one part and the 1st defendant on the other.”

The learned trial judge dismissed the above application but later granted the defendants’ application for leave to appeal against the said interlocutory order (i.e. the Ruling aforesaid). Hearing of the suit later proceeded, the appeal lodged from the said interlocutory order notwithstanding. In the penultimate section of his judgment, the learned trial judge held that the respondent’s case as formulated against the first defendant must fail and, having earlier on dismissed the respondent’s action against the second defendant on the ground that it was incompetent, invited counsel for the parties to address him on the issue of a “non-suit”, and finally held that in the circumstances of the case the proper order to be made was one of non-suit. The order for non-suit was accordingly made. This appeal is, therefore, by the 1st defendant (the National Electric Power Authority), the action against the 2nd defendant (Electricity Corporation of Nigeria which ceased to exist in 1972) having been dismissed as incompetent.

We pause, to set out the salient points raised in the pleadings delivered by parties. The materials paragraphs in the statement of claim are 1, 3, 4, 5, 8, 9, to, 13, 20 and 21 and they read:

“(1) By an agreement between the plaintiff and the 2nd defendants, it was agreed that the 2nd defendants should employ the plaintiff as Chief Accountant in the 1st defendant’s service on a salary plus allowance.

(3) The 2nd defendants had caused the plaintiff to recieve series of courses and training locally and overseas.

(4) In consequence of the matters referred to in paragraphs 1, 2 and 3………the plaintiff had settled down on the job in anticipation of a career with the 2nd defendants.