Samuel Ifemena Mbachu V. Anambra-imo River Basin Development Authority, Owerri (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal against the decision of the Court of Appeal, Port-Harcourt Division (hereinafter called “the court below”) delivered on 7th July, 1992 dismissing the appeal to it by the appellant against the judgment of the High Court of Imo State, sitting at Owerri delivered on 28th March, 1983 by Oyudo, J.

On 9th July, 1977, the respondent, inserted/published in the Daily Times Newspaper – exhibit “B”, an advertisement calling on interested persons, to apply for some vacant positions in its establishment. One of the vacant positions, was the post of the Secretary which according to the advertisement, came under the Department of Administration and Finance. In the said advertisement, it was stated that the duties of the Secretary, included, administrative, legal and secretarial services and attending Board Meetings. The post attracted a salary of Grade Level 13. The appellant, who at the time, was in the employment of the State Ministry of Justice and later became an Acting Senior State Counsel when he was posted to the Anambra State School Management Board, applied for the post of Secretary. After attending an interview in the respondent authority, he was offered appointment vide exhibit “A” as secretary with effect from the date he assumed duty. Exhibit “A”, spelt out, the terms and conditions of employment. After assuming duty on 17th October, 1977, the appellant, formally accepted the offer of employment in writing in a document dated 19th October, 1977 – exhibit “D” and therein gave an undertaking in these terms:

” … and I agree to perform any duties in the authority which the General manager may require me to perform”.

The performance of the appellant in the assignments given to him, were not satisfactory to the respondent and as a result, the General Manager, in his letter exhibit “R” dated 4th July, 1978, called the appellant’s attention to his lapses and in fact, advised him to improve. By exhibit “P”, the appellant was warned to show marked improvement in the performance of his duties. It is noted that the General Manager made a number of re-adjustments in the schedule of duties which apparently, the appellant, did not like. While the appellant was still in the employment of the respondent as secretary, he commenced an action claiming therein, two (2) declarations, injunction and N50,000.00 special and general damages in the said High Court.

Pleadings were ordered, filed and exchanged. Both parties, with the leave of the trial court, amended their respective pleadings. At the conclusion of hearing and addresses by the learned counsel for the parties, the learned trial Judge, in a meticulous, painstaking and well considered judgment, dismissed all the claims of the appellant.

Dissatisfied with the said judgment, the appellant appealed to the court below which unanimously, dismissed the appeal hence the instant appeal to this court. There are eleven (11) grounds of appeal. In accordance with the rules of this court, the parties have filed and exchanged their respective brief of argument. The appellant also filed a reply brief.

The appellant has formulated six (6) issues for determination.

They read as follows:

Issues for determination by the Supreme Court

1. On interpretation of exhibits A, B, C & D what obligations were offered to the appellant and what obligations were accepted by him upon assumption of office.
2. At what level of responsibility was appellant appointed to carry out his obligations under the contract.
3. Whether the respondent’s decision of the 11th January, 1978 together with its implementations

which removed the appellant as Head of Administration Department, stripped the appellant of all his administrative duties, abolished the office of the secretary making it non-existent in the subsequent decree establishing the authority, reducing his work to mere secretarial duties thereby placing him on a lower staff cadre namely secretarial staff cadre amounted to breach of contract of service between the appellant and the respondent.

4. Granted that exhibit M was issued in order to effect reorganization in the authority acting under the provisions of the Decree creating the authority, is it not a breach of contract when the respondent refused to redeploy the appellant and further refused to retire the appellant under the provisions of S. 7 of the Pensions Act, 1979.
5. Whether the appellant is entitled to rely on his amended pleading duly granted by the trial court

in regard to the conduct of the respondent authority in throwing the appellant out of office with aid of police and stopping of his salaries though acts that took place after the filing of the suit, in proving respondent’s breach of contract of service.

6. Whether the appellant is entitled to have the damages awarded by Court of Appeal revised upwards”

The respondent, on its part, has formulated two issues for determination, namely,

“(a) Whether the respondent was in breach of its contract of service with the appellant.