O. Ilodibia V. Nigerian Cement Company Limited (1997)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C.

The plaintiff’s claim in the High Court of Enugu Judicial Division of Anambra State contained in paragraph 27 of the Further Amended Statement of Claim is as follows:-

“(a) A declaration that the 1st defendant’s letter dated 11th March, 1980 sending the plaintiff on compulsory indefinite leave is ultra vires, wrongful, null and void and of no effect and was in breach of the principles of natural justice and of his Conditions of service.

(b) A declaration that the purported indefinite suspension of the plaintiff on half-pay as contained in the letter of 15th May, 1980 was not an act of the 2nd defendant and was in breach of the principles of natural justice and of his Conditions of Service and therefore is wrongful, illegal invalid null and void and of no effect whatsoever.

(c) A declaration that the plaintiff is still the General Manager of the 2nd defendant Company and is entitled to his full salary all benefits, allowances, privileges and emoluments attaching to his Office as General Manager.

(e) N30,000.00being special damages for expenses incurred by the plaintiff as a result of deprivation of some of his entitlements and privileges.

(f) N100,000.00 General Damages.

In the alternative N500,000.00 general and special damages for wrongful dismissal.”

The action was originally filed before the Abakaliki High Court but later transferred to Enugu for hearing before P. K. Nwokedi J (as he then was). Pleadings were filed and exchanged. With the leave of the court, they were amended and further amended.

The plaintiff gave evidence during the trial in the course of which a number of documents were put in evidence. At the conclusion of the plaintiff’s testimony, his case was closed. The defendants did not call any witness and rested their case on that of the plaintiff.

Both learned Senior Advocate, Mr. P. Umeadi and Mr. J. C. Njelita presented their final addresses for the plaintiff and the defendants respectively. At the tail end of his address Mr. Umeadi SAN, applied for and was granted leave to drop the alternative claim and limit the plaintiff’s claim to paragraph 27(c) of the Further Amended Statement of Claim.

The learned trial judge after a painstaking review of the evidence and the submissions of learned counsel on both issues on law and fact, concluded thus in his judgment:-

“The second consideration that bedevils the plaintiffs predicament is his reaction to Ex. 4, which suspended him from duty indefinitely, and on half pay. He waited for about six weeks and not hearing from defendants, he instituted this action, claiming among other reliefs. General damages for wrongful dismissal. This amounted to an acceptance of the Company’s repudiation of his contract of service by way of constructive dismissal, as above stated. The learned Senior Advocate having accepted that the relationship between the parties was one of master and servant, and having accepted in his address, that the Ex. 4 “amounts to wrongful termination of the plaintiff’s employment before his retiring age” it seems contradictory that the Court should be required to declare that the plaintiff is still in the employ of the Company.

The withdrawal of the claim for wrongful dismissal four years after the action had been filed, and after the conclusion of evidence does not in my view alter the position. The defendants must be deemed to have fought the action on the basis of the claims before the Court and all legal consequences arising therefrom. That being the case, both parties having treated the contract as at an end, the plaintiffs only recourse is to damages for wrongful dismissal.

This he cannot now do, since this arm of the action has been discontinued at the instance of his counsel. Five years have elapsed since the plaintiff was forced out of the services of the defendant. Although there is no evidence before me that his post has been taken over by someone else, yet it is too long a time to force him back on the company even if such a course were possible. The delay in hearing this case has not been occasioned by the plaintiff, but none-the-less the delay has in fact occurred.

In concluding this judgment, it is pertinent to observe that a plaintiff enters the Court’s arena for battle with his Counsel as the commander in charge of his army. His success or failure depends, by and large, on the strategies and tactics of his commanding officer. Obviously some of the amendments to the reliefs claimed by the plaintiff were made in the heat of argument and hence not carefully considered. In my opinion the relief for general damages for wrongful dismissal should not have been discontinued at the tail end of the case. This manoeuvre deprived the plaintiff of the opportunity of falling back on damages for wrongful dismissal should he fail in his claim to be reinstated in office.”

Aggrieved by the trial court’s decision, the plaintiff appealed against it to the Court of Appeal, Enugu Division. In its well considered judgment prepared and delivered by Uwaifo J. C. A., with which Katsina-Alu and Macaulay JJCA agreed, he dismissed the appeal in the following words:

“As I have pointed out, the plaintiff/appellant elected by his conduct to treat his contract of service as wrongfully repudiated by communicating his election to the defendant/respondent when he claimed damages for wrongful dismissal as one of his reliefs. The other reliefs he had claimed, were inconsistent with the relief for wrongful dismissal, made no difference to the legal consequences of the election. Thereafter he took a tragic decision to abandon the other reliefs including damages for wrongful dismissal and to insist on an order that he was still the General Manager. That was a relief the court could not entertain in the circumstances since the-election was final and binding, and the learned trial judge was right to so hold. The result was that the plaintiff/appellant had no relief to press home in his favour.

The question of non-suit cannot arise in a situation like this: See Amobi v. Texaco Africa Ltd. (1972) 3 S. C. 104; Anachuna Anyaoke v. Dr. Felix Adi (1986) 6 S. C. 75; (1986) 3 NWLR (Pt.31) 731. A non-suit is inappropriate when a plaintiff has completely failed in his case as formulated.”

It is worth mentioning at this stage that in the course of writing his judgment the learned trial judge considered the locus standi of the 1st defendant and concluded as follows:

“The very fact that he (1st defendant) did not defend does not necessarily saddle him with liability where no liability is attached to his action by the law. The action against him, being misconceived is hereby dismissed.”

Before the issues raised and canvassed in this appeal I deem it pertinent to give a resume of the facts involved and which are as hereunder stated: By a Writ of summons issued in the Abakaliki High Court of Anambra State, the plaintiff claimed various reliefs against the 1st and 2nd defendants. The case was transferred to High Court, Enugu, Anambra State for hearing by P. K. Nwokedi, J.

The plaintiff was working as a General Manager of the 2nd defendant which is a public liability Company as at 1st December, 1977, having risen to that position gradually from being a Chemical Engineer when he was first employed by the 2nd defendant in 1960. In March, 1980, the plaintiff in a letter written and addressed to him by 1st defendant, was instructed to proceed on an indefinite leave. In April, 1980 he was requested to vacate the Company’s quarters. In May, 1980 he was suspended from duty indefinitely and put on half salary. As a result of these actions taken against him, the plaintiff filed the present suit against the 1st and 2nd defendants on 1st July, 1980. He lost both in the trial court and the Court of Appeal.

The plaintiff has now further appealed to this court.

Both parties filed and exchanged briefs of argument.

In the brief filed by the plaintiff and related to his grounds of appeal, the following two issues were raised:

“(a) Was the Court of Appeal right to have dismissed the plaintiff-appellant’s appeal against the judgment of the High Court having regard to the primary issue in the case and the only relief before the High Court for determination”

(b) In the alternative to (a) above, was the Court of Appeal right in refusing to Order a non-suit in the case

The defendant also formulated 3 issues in his brief as hereunder reproduced:-

“(a) Whether the withdrawal of the reliefs sought in paragraph 27 of the further Amended Statement of Claim and the restoration of the relief in sub-paragraph (c) thereof is tantamount to an amendment of pleadings

(b) Whether the lower courts were justified in determining the fate of the appellant’s case per the sale relief in paragraph 27 (c) of the Further Amended Statement of Claim upon the footing of all the relevant issues joined and formulated by the parties on their respective pleadings and the accepted evidence adduced at the trial and counsel’s submissions thereon

I shall henceforth refer to the plaintiff and the defendant in this judgment as the appellant and the respondent respectively.

There was no appearance by the appellant or his counsel on the day the appeal came up for hearing. Since both parties have filed and exchanged briefs, the appeal was deemed argued by the appellant on the brief filed on his behalf. See Order 6 rule 8(6) of the Supreme Court Rules, 1985 and Odutola v. Kayode (1994) 2 NWLR (Pt.324) 1.

The issues filed by the appellant have adequately covered the respondent’s three issues; I shall therefore base my judgment on the appellant’s two issues:

Issue (a) It was the contention of learned Senior Advocate that the claim for N500,000.00 general damages for wrongful dismissal was in the alternative to the other claims in paragraph 27(a), (b), (c), (d) and (e) of the Further Amended Statement of Claim and which were inconsistent with the alternative claim and therefore there was no election in law by the appellant. He submitted that with the amendment granted to him by the learned trial judge on 22nd February, 1984, the only relief being claimed by the appellant is paragraph 27(c) of the Further Amended Statement of Claim since there is no appeal against the amendment. He argued that both the Court of Appeal and the trial court were precluded by virtue of the amendment from referring to and relying on the claims which stood before the amendment and were therefore wrong in dismissing the appellant’s claim.

Learned Counsel referred to some paragraphs of his pleading as well as Exhibits 4 and 9 on this issue and concluded:-

“It is to be pointed out that despite the institution of the above Suit, the defendant respondent continued to pay to the plaintiff/appellant his salary on half pay basis up to at least the end of October, 1980: See Exhibit 6. But assuming (which is not conceded) that by including the claim for damages for wrongful dismissal in the reliefs in the case the plaintiff/appellant thereby brought his employment to an end yet he was injustice at least entitled to a limited declaration that he was the General Manager of the defendant-respondent up to the date of the institution of the above suit and that he was also entitled to his full salary, all benefits, allowances, privileges and emoluments attaching to his office as General Manager up to the date of the institution of the suit. The limited declaration indicated hereinabove is within the ambit of the sole claim or relief in the above case,”

The following cases were cited and relied on in support of the submissions above: Warner v. Sampson & Anor (1959) 1 QB 297 at 321 and 322; Col. Olu Rotimi & Ors v. Mrs. F. O. Macgregor (1974) 11 SC 133 at 152; Agbino Obioma & Ors. v. Lawrence Emeye Olomu & 0rs.(1978) 3 SC 11 and Enoch Anukwua & Ors. v. Peter Ohia & Ors. (1986) 5 NWLR (Pt. 40) 150.

Issue (b) Under this issue it was submitted that since both the trial court and the Court of Appeal made a finding in favour that the appellant was the General Manager of the respondent and that he served the respondent for 17 (seventeen) years, the two lower courts were wrong in dismissing his case instead of non-suiting him to enable him pursue the losses he had suffered within the ambit of his claim in another litigation as he had not totally failed in his present claim: Reliance in support of the submissions above was put on the following cases-Airoe Construction and Civil Engineering Company Limited v. The University of Benin (1985) 1 NWLR (Pt. 2) 287; Craig v. Craig (1966) 1 All NLR 173; Obed Okpala & Anor v. Richard Ibeme & Ors. (1989) 2 NWLR (Pt.102) 208 and David Oye Olagbemiro v. Oba Oladunni Ajagungbade III & Anor. (1990) 3 N.W.L.R. (Pt.136) 37 at 62, 63.

In reply to the arguments presented in support of the appellant’s case, it was the submission of Dr. Ibik, SAN learned Senior Counsel for the respondent that the argument presented in support of Issue (a) of the appellant’s brief is ill-conceived when viewed against the true background and the pleadings in the case. He contended that abandonment or withdrawal of part of the claims or relief is not an amendment to the appellant’s pleading and that the situation is amply covered by order 47(1) of the High Court Rules of Eastern Nigeria, 1956 (Cap 61) Laws of EASTERN Nigeria, 1963, applicable in Anambra State. He said that the Court of Appeal appreciated that both the trial court and the parties grappled with the case on the footing of the issues joined in the pleadings, save that sequel to the Ruling by the trial court as regards the relief claimed in paragraph 27(a), (b), (d) and (e) and the alternative relief for general damages which were abandoned or withdrawn and struck out. The only relief or remedy asked for by the appellant was the one set out in paragraph 27(c) of the Further Amended Statement of Claim and that this relief could not be adequately and satisfactorily determined without reference to the whole case as presented by the parties. He referred to Exhibit 4 and paragraph 23 of the Further Amended Statement of Claim in which he described his indefinite suspension on half pay as “gross breach of his contract of service” followed by instituting the present suit claiming an alternative claim for N500,000 general damages and submitted that the appellant had elected to treat the contract of service at an end. He contended that whether or not the alternative claim for damages for wrongful dismissal was struck out by virtue of abandonment, the lower courts were entitled and justified to take into consideration the act of election by the appellant in arriving at the conclusion that the declaratory relief in paragraph 27(c) of the Further Amended Statement of Claim is legally unavailable and therefore the argument presented on the point by learned counsel for the appellant is misconceived and has no merit. He further submitted that the authorities relied upon by the appellant on the issue are untenable and should be disregarded.

On the issue of non-suit order, it was the submission of learned counsel for the respondent that it would only be made “if the plaintiff is debarred from the claim before the court through a technical hitch of which the adverse party ought not, in the interest of justice be allowed to take undue advantage.” He said it is not the purpose of non-suit to afford a losing party a second chance as such and therefore the submissions of the appellant on the issue are untenable and should be disregarded. He cited and relied on Anachuna Anyaoke v. Dr. Felix Adi (I 986) 6 S.C 75; (1986) 3 NWLR (Pt.31) 731 and Amobi v. Texaco Nigeria Ltd. (1972) 3 S.C 104 in support.

Learned counsel urged the appeal be dismissed for want of merit.

It was found by the trial court and confirmed by the Court of Appeal, that the appellant’s appointment as the General Manager of the respondent was terminated without proper notice. In his judgment the learned trial judge made the following findings:-

“I am satisfied that the plaintiff was the General Manager of the company and that his appointment was duly and regularly made by the Board of Directors of the defendant Company.”

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The suspension imposed by Ex. 8 was indefinite. The placing of the plaintiff on half his salary was a punitive action. Ex.4 failed to inform the plaintiff of the charges against him as required by Clause 17(1) of Ex. 8. Clause 17(1) of Ex. 8. clearly imports the rule of natural justice audi alterom partem. Failure to supply the plaintiff with particulars of his wrong doings, before commencing punitive action against him. and giving an opportunity to defend himself, offends the rule of natural justice.

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There are fundamental breaches of the plaintiff’s contract of employment. A unilateral change by the Company in the plaintiff’s salary is a breach of a fundamental term of the contract to say the least. To place the plaintiff on an indefinite suspension from his duties without compiling with Clause 17(1) of Ex. 8 as above pointed out is another fundamental breach of his contract of employment. There is no evidence before this court, that there has been an established practice within the Company. of sending employees on suspension indefinitely without reason.

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I am satisfied and find that Exhibit 4 constituted a fundamental breach of the plaintiffs contract of employment and can amount to a constructive dismissal of the plaintiff.

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It seems to me that Exhibit 4 having been adopted or approved by the Board of Directors, the act of sending the plaintiff on indefinite suspension on half pay becomes an act of the Company. Any liability arising therefrom becomes that of the principal that is the Company and not of the agent that is the first defendant.

So the narrow issues for determination in this appeal are three fold to wit:

(a) Whether, the appellant by suing the respondent in the alternative for N500,000 general damages, he had elected to treat the contract of employment at an end between him and the respondent.

(b) If the above is answered in the affirmative, whether the appellant. By his amendments of the reliefs claimed in paragraph 27 of the Further Amended Statement of Claim, there was left any relief to which the claim of N500,000 general damages could be hinged.

(c) Whether in the circumstances of the case with particular reference to the findings of the learned trial judge which was affirmed by the Court of Appeal that the appellant was wrongfully dismissed by the respondent from its employment, this is a proper case for order of non-suit.

It is to be borne in mind that both the appellant and the respondent agreed that the relationship between the appellant and the respondent was one of master and servant and therefore governed by the common law rule. Under the common law, a master posssess the right to dismiss his servant from his employment with or without notice. Where the dismissal is in accordance with the terms of the contract, the servant has no complaint. Where it is in breach of the terms of the contract the servant may consider the contract at an end and seek or sue for redress. And where there has been a purported termination of contract of service, as in this case, a declaration that the contract of service is subsisting will rarely be made. See Francis v. Municipal Councillors of Kuala Lumpur (1962) 1 WLR 1411 particularly at 1417: (1962) 3 All ER 633 where it was held:-

“When there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the Courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court.”

on the footing of the issues joined in the pleadings, save that sequel to the Ruling by the trial court as regards the relief claimed in paragraph 27(a), (b), (d) and (e) and the alternative relief for general damages which were abandoned or withdrawn and struck out. The only relief or remedy asked for by the appellant was the one set out in paragraph 27(c) of the Further Amended Statement of Claim and that this relief could not be adequately and satisfactorily determined without reference to the whole case as presented by the parties. He referred to Exhibit 4 and paragraph 23 of the Further Amended Statement of Claim in which he described his indefinite suspension on half pay as “gross breach of his contract of service” followed by instituting the present suit claiming an alternative claim for N500,000 general damages and submitted that the appellant had elected to treat the contract of service at an end. He contended that whether or not the alternative claim for damages for wrongful dismissal was struck out by virtue of abandonment, the lower courts were entitled and justified to take into consideration the act of election by the appellant in arriving at the conclusion that the declaratory relief in paragraph 27(c) of the Further Amended Statement of Claim is legally unavailable and therefore the argument presented on the point by learned counsel for the appellant is misconceived and has no merit. He further submitted that the authorities relied upon by the appellant on the issue are untenable and should be disregarded.

On the issue of non-suit order, it was the submission of learned counsel for the respondent that it would only be made if the plaintiff is debarred from the claim before the court through a technical hitch of which the adverse party ought not, in the interest of justice be allowed to take undue advantage.” He said it is not the purpose of non-suit to afford a losing party a second chance as such and therefore the submissions of the appellant on the issue are untenable and should be disregarded. He cited and relied on Anachuna Anyaoke v. Dr. Felix Adi (1986) 6 S. C 75; (1986) 3 NWLR (Pt.31) 731 and Amobi v. Texaco Nigeria Ltd. (1972) 3 S.C 104 in support.

Learned counsel urged the appeal be dismissed for want of merit.

“I am satisfied that the plaintiff was the General Manager of the company and that his appointment was duly and regularly made by the Board of Directors of the defendant Company.”

The suspension imposed by Ex. 8 was indefinite. The placing of the plaintiff on half his salary was a punitive action. Ex.4 failed to inform the plaintiff of the charges against him as required by Clause 17(i) of Ex. 8. Clause 17(1) of Ex. 8, clearly imports the rule of natural justice audi alteram partem. Failure to supply the plaintiff with particulars of his wrong doings, before commencing punitive action against him. and giving an opportunity to defend himself offends the rule of natural justice.

There are fundamental breaches of the plaintiff’s contract of employment. A unilateral change by the Company in the plaintiff’s salary is a breach of a fundamental term of the contract to say the least. To place the plaintiff on an indefinite suspension from his duties without compiling with Clause 17(1) of Ex. 8 as above pointed out is another Fundamental breach of his contract of employment There is no evidence before this court, that there has been an established practice within the Company of sending employees on suspension indefinitely without reason.

I am satisfied and find that Exhibit 4 constituted a Fundamental breach of the plaintiff’s contract of employment and can amount to a constructive dismissal of the plaintiff.

So the narrow issues for determination in this appeal are three fold to wit:-

(a) Whether, the appellant by suing the respondent in the alternative for N500,000 general damages, he had elected to treat the contract of employment at an end between him and the respondent.

(b) If the above is answered in the affirmative, whether the appellant, by his amendments of the reliefs claimed in paragraph 27 of the Further Amended Statement of Claim, there was left any relief to which the claim of N500,000 general damages could be hinged.

The learned trial judge had rightly made a finding that the indefinite suspension of the appellant from duty as per Exhibit 4 by the respondent amounted to constructive dismissal from service. This was affirmed by the Court of Appeal where Uwaifo J. C. A. in the leading judgment stated:

“If therefore, suspension was irregularly done, as it seems in the present case, there being no reason, given to show it was a step in disciplinary proceedings, and the plaintiff/appellant was given no hearing before he was put on half pay, then, he was entitled to acquiesce in it, or seek to have the suspension set aside, or take such steps to show that he was not prepared to regard the contract as still subsisting,”

Although the appellant originally sought for declarations (a), (b) and (c) in paragraph 27 of the Further Amended Statements of Claim with claims for special damages and general damages in (d) and (e) respectively and an alternative claim of N500,000 general damages for wrongful dismissal. in my view his proper remedy would be in the alternative claim, since both parties accepted that the relationship between the appellant and respondent is one of master and servant.

The learned trial judge correctly stated the law as follows:-

“If the plaintiffs are generally well advised as to what the law is on quantum of damages in cases of wrongful dismissal, the courts may be saved from several fanciful claim for wrongful dismissal in cases involving master and servant.

Where the master has purported to dismiss the servant, even though not in accordance with the laid down procedure in the contract, the servant cannot treat the contract as still subsisting but must proceed as if he has been wrongfully dismissed. A wrongful dismissal in complete disregard of the terms of the contract of service is obviously a repudiation by the master and the servant’s remedy is an action in damages only. See Vidyodaya University Council v. Silva (1965) 1 WLR 77 at 90. Whether any particular breach by a party to the contract amounts to a repudiation of such contract is a question depending entirely upon the particular facts and circumstances of the breach and of the conduct of the party. See Freeth v. Burr (1874) 9 CP. Unfortunately for the appellant in this case his case was muddled up by his counsel in conducting the case. While learned Senior Advocate was making his final address in support of the case he presented for the appellant, the learned trial judge put the following questions to him and to which he replied:

“Court to Counsel – Are all these based on general or special damages and if the later where are they pleaded They do not seem to come within the original claim.

Umeadi – We are going on the alternative claim. What we are saying is that what is due 10 the servant by virtue of his contract of service should ensure (sic) to him. The issue is not damages or wages, this distinction is immaterial. We drop all the reliefs in 29(a), (b), (c), (d) and (e). We are basing our case on the alternative claim.

Counsel continues his argument – Refers to Maine & Macgregor 12th Edition paragraphs 608 and 609 at pages 522 to 523. I do not intend to put the issue of the plaintiff wrong until he has attained the age of 60 years. This may sound speculative. I urge the court to give judgment for the plaintiff.

Court to Mr. Umeadi:- If you are suing for wrongful dismissal it implies that you yourself have put an end to the contract of service. Assuming that you were wrongfully dismissed, you could be entitled to damages up to the time of your action. How then can the court award you damages up to the date of judgment

Umead; – I refer to paragraph 27(c) of the further amended statement of claim. I wish to make an amendment under order 34 of the H.C.R. We want to restore paragraph 27(c) of the amended statement of claim i.e. debito justitia. We now wish to drop the alternative claim. We are now claiming under 27(c) a sum of N186,610.00 as representing what we should get under paragraph 27(c) of the further amended statement of claim.

Njelita – This application is a new development. It arises from counsel’s address. We oppose the application. It is belated and goes to the root of the subject matter of the action. The counsel can not approbate and reprobate as he likes. When a claim is dropped it is deemed to have been dropped and deemed struck out. To revive it is prejudicial to our case.

Umeadi – I concede that the error is on our side. But I rely on Order 34 of the H. C. R. The defence is not prejudiced in any way because the evidence has not been altered. I urge the court to exercise its discretion to allow the amendment as debito justitia.

Court to Umeadi: Do you concede that if I disallow this amendment that there is no claim before the court since you have now abandoned the alternative claim.

Umeadi – I concede that and hence I have asked the court to exercise its discretion ex debito justitia.” (sic)

In a considered Ruling delivered by the learned trial judge, the application by learned counsel to amend paragraph 27 of the Further Amended Statement of Claim was granted and was accordingly amended as follows:

“The plaintiff is hereby granted leave to restore the relief sought for in paragraph 27(c) of the Amended Statement of Claim. Leave is hereby granted to the plaintiff to discontinue or withdraw all the other reliefs set out in paragraph 27 of the amended statement of claim. To tidy matters up, the reliefs outlined in paragraph 27 subparagraphs (a), (b), (d) and (e) of the amended statement of claim are hereby struck out. The alternative claim for special and general damages for wrongful dismissal is also struck out.

What is therefore left before this court is the solitary relief outlined in paragraph 27, sub-paragraph (c) of the amended statement of claim.”

Before this amendment, the appellant by his answer to a question put to him when he was being cross-examined to wit;

“Q. You are not entitled to N500,000 as general damages because you have not been dismissed

A. I do not agree with your suggestion.”

and the statement by his counsel that “We claim only N500,000 as general damages” was a clear indication that the appellant had elected to treat the contract of service between him and the respondent at an end. The learned trial judge found as follows:-

“an employer, who purports to exercise a right of suspension, not provided in the contract of service, can be guilty of repudiating the contract. If the employee elects to accept, the repudiation, the employer’s action may amount to a dismissal. It appears to me by this suit the plaintiff had accepted the repudiation which effectively determines the contract.”

This finding was affirmed by the Court of Appeal in its judgment wherein it stated:-

I think also that the necessary conclusion justifying the view in the present case that there had been election by the plaintiff to treat the employment as wrongfully terminated – by repudiation on the part of the defendant/respondent owing the fragrant disregard of the conditions of service – can be drawn from the following passage in Gorse v. Durham County Council (1971) 2 All ER. 666 at 671 in which Cusack J said:

“The contracts into which the plaintiffs had entered were contracts of employment to which the general rule of master and servant applied. If an employee by wilful disobedience to a lawful and reasonable order shows a determination to disregard an essential term of his contract then this may amount to a repudiation of the contract entitling the employer to elect to treat the contract as at an end. On the other hand, the employer may elect, if he so desires, to treat the contract as continuing and to take action, if necessary in respect of a breach of that contract. The type of conduct which can amount to repudiation must necessarily depend on the circumstances of each individual case. It is a matter of fact and matter of degree. It must be related to the situation at the time and the particular situation of those personalities involved.”

I entirely agree with this view and have no reservation that it applies too in the converse, where it is the employer who has done an act which the employee regards as amounting to a breach and the employee decides to treat the contract as at an end.”

Where a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him. See Akhiwu v. Principal Lotteries Officer. Mid-West State (1972) 1 All NLR (Pt.1) 229.

The procedure adopted by learned counsel is covered by the second arm of Order 47 rule 1 of the Eastern Nigeria High Court Rules, (Cap 61) Laws of Eastern Nigeria, 1963, Vol. IV, applicable in Anambra State, which provides:

“If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of the claim, or if a defendant desires to discontinue his counter-claim. or withdraw any part thereof such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent

suit and otherwise as the Court may seem just.”

Learned counsel for the appellant made the application to abandon all the reliefs in paragraph 27 of the Further Amended Statement of Claim except sub-paragraph (c) of paragraph 27.

This sub-paragraph reads:-

“A declaration that the plaintiff is still the General Manager of the 2nd defendant Company and is entitled to his full salary, all benefits allowances, privileges and emoluments attaching to his office as General Manager.”

The learned trial judge after reviewing the evidence arrived at the correct conclusion that the appellant fought the case on the basis that the relationship between him and the respondent was that of master and servant and that the appellant had elected to pursue his remedy for wrongful dismissal. It would therefore be inconsistent for the appellant to seek for a declaration for reinstatement. The abandonment of the alternative relief for the award of general damages by the appellant’s counsel put an end to his case. As rightly pointed out by both the trial court and the Court of Appeal learned counsel was in serious error to abandon the relief for the award of general damages in a case of a wrongful dismissal by the respondent of the appellant where the relationship was that of master and servant. The trial court could not make any award for the appellant as there was no appropriate relief claimed under which the award-could be made. See Isamotu Otanioku v. Lawal Mustafa Alli (1977) 11 – 12 SC 9 at 13 where this court held that where no relief is claimed in the statement of claim, neither the trial court nor the appellate court can grant it.

The appellant claimed that the Court of Appeal was wrong to refuse to make an order of non-suit in place of that of an out right dismissal by the High Court, having regard to the evidence and the circumstances in this case.

The learned trial judge in his judgment concluded:-

“Much as one would sympathise with the plaintiff in his plight and the shabby treatment meted to him, this is a Court of law, where judgments are delivered on the facts before the Court and the law applicable to the said facts. In the final analysis, I find myself unable to grant the declaration sought by the plaintiff. This suit is hereby dismissed.”

The Court of Appeal, after reviewing the arguments advanced for the order of non suit, concluded thus:-

“The question of non-suit cannot arise in a situation like this: See Amabi v. Texaco Africa Ltd (1972) 3 S. C. 104; Anachuna Anyaake v. Dr. Felix Adi (1986) 6 S. C. 75; (1986) 3 NWLR (Pt.31) 731. A non-suit is inappropriate when a plaintiff has completely failed in his case as formulated. If at the close of the case there is nothing that has saved or can save any aspect of the relief or reliefs for a plaintiff, which he can better pursue in a subsequent attempt in the interest of justice, a non-suit will not be ordered. The action must be dismissed. In this particular case even if there had been grounds for ordering a non-suit, to do so would be of no use because the plaintiff could never get round the disability created by the Limitation of Action.”

I entirely subscribe to the above conclusion.

Where a party had failed to claim a relief relevant to his case in his pleadings, the Court of Appeal would not substitute an order of non-suit for that of dismissal to enable him have a second bite at the Cherry. See Anyaoke v. Adi (1986) 3 NWLR (Pt.31); (1986) 6 SC 75 and Amobi v. Texaco Nig. Ltd. (1972) 3 SC 104 Enang & Anor. v. Ekanem & Or5.(1962) 2 SCNLR 283; (1962) 1 All NLR 530. The facts involved in the cases cited by the appellant to buttress his arguments for the order of non-suit are completely not similar to the facts in the present case and these authorities are not therefore apposite.

I see no reason to interfere with the concurrent findings of facts reached by the trial court and affirmed by the Court of Appeal in this case. See Ukpe Ibodo & Ors. v. Enarofia & Ors. (1980) 5-7 SC 42; Kale v. Coker (1982) 12 SC 252 and Akeredolu v. Akinremi (No.3) (1989) 3 NWLR (Pt. 108) 164.

The appeal fails and it is dismissed. The judgments of the lower court and the court below are further affirmed with N1,000.00 costs to the respondent.

M. L. UWAIS, C.J.N.: I have had the opportunity of reading in draft the judgment read by my learned brother Wali, J. S. C. I agree that the appeal lacks merit’:”

The Appellant’s case could not succeed in the High Court since he failed to prove what was left of his claim after amendment. To order a non-suit would have amounted to granting to the Appellant another chance to improve his case. This is what the authorities on the point are against.

I hereby dismiss the appeal with N1,000.00 costs to the Respondent.

SC.9/1991

LAWGLOBALHUB

O. Ilodibia V. Nigerian Cement Company Limited (1997) LLJR-SC

O. Ilodibia V. Nigerian Cement Company Limited (1997)

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