Sylvester C. Nwoye V. Federal Airports Authority Of Nigeria (2019)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Ekiti division (hereinafter referred to as “the lower Court”) delivered on 20th day of January, 2012.

The appellant as plaintiff, instituted an action at the High Court of the Federal Capital Territory (“the trial Court” for short) and claimed a catalogue of reliefs against the respondent, as defendant thereat. The trial Court at the end of the hearing of the suit delivered its judgment and granted some of the reliefs claimed by the plaintiff/appellant, namely reliefs 1, 3 and 5. The defendant/respondent became disenchanted with the judgment of the trial Court and thereupon appealed to the lower Court, while the appellant/plaintiff also dissatisfied with the judgment, filed a cross appeal against the same judgment.

At the conclusion of the hearing of the said appeal and cross-appeal, the lower Court struck out the appeal of the respondent based on a preliminary objection by the appellant. After striking out the appeal, the lower Court went ahead to consider the cross appeal by the appellant and

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held that the trial Court was right in refusing to grant reliefs 2 and 4 as contained in the Amended Statement of claim dated 28th May, 2009 but filed by the appellant on 5th June, 2009. The appellant alleged that instead of the lower Court to confine itself to the judgment appealed against, it delved into alternative reliefs Nos (i) and (ii) as contained in the appellant’s amended statement of claim upon which there was no appeal by either the appellant or the respondent. The Court held that the appellant was still in the service of the respondent (See page 504 of the Record) and that he is entitled to his retirement benefits. The appellant stated that he is still in service, notwithstanding the pronouncement of the Court on retirement benefits.

The appellant herein, still became dissatisfied with the judgment of the lower Court and thereupon further appealed to this Court.

As has been the practice in this Court, parties filed and exchanged briefs of argument. The appellant filed his brief of argument on 25th September, 2012, which was settled by Sir JC Okafor, wherein he proposed four issues for determination of the appeal as reproduced hereunder:-

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Whether the lower Court has jurisdiction to consider or determine the alternative reliefs (i) and (ii) of the Amended Statement of Claim of the Appellant when there was no appeal on the alternative reliefs (Ground 1& 5).

2. Whether the lower Court was right in law to uphold the refusal of the trial Court to grant reliefs two (2) and four (4) of the Appellant’s Amended Statement of Claim or decline to grant same when both the trial Court and the lower Court have the jurisdiction to grant both reliefs (Grounds 2 & 4)
3. Whether the lower Court was right in law to hold that the Appellant is entitled to his retirement benefits when the Appellant has not been retired from the service of the Respondent. (Ground 3)
4. Whether the lower Court was right to hold in its judgment that Exhibits M, N, O, P and Q were rightly admitted in evidence by the trial Court when the said exhibits are inadmissible in law (Ground 6)Suffice it to say, that upon being served with Respondent’s brief of argument, the appellant also filed Appellant’s Reply Brief on 6th June, 2013 which was deemed filed on 17th November, 2014. The two briefs of argument were both

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adopted at the hearing of the appeal on 23rd October, 2018.

On its part, the respondent filed its brief of argument on 26th November, 2012. The said respondent’s brief of argument was settled by lgwe Kingsley Chima. Therein, four issues for determination were also decoded which read as follows: –

A. Whether the lower Court has jurisdiction to consider the alternative reliefs which were canvassed in the trial Court but which were not appealed against by either party.

B. Whether the lower Court actually held that the Appellant is still in the employment or service of the respondent.

C. Whether the lower Court can grant Relief 2 when there is no evidence before the trial Court of the present posts or positions allegedly held by his contemporaries and whether the trial Court was right to refuse to grant relief 4 on recovery of premises with which the lower Court agreed.

D. Whether a party has to amend his pleadings to plead secondary evidence when an original document gets lost after pleadings have been settled or just to lay the foundation of the loss and tender the secondary evidence and whether the Respondent specifically

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pleaded the original documents in Paragraph 8 of its Statement of Defence.

The issues raised by the two learned counsel are not dissimilar, hence I will be guided by the issues raised in the Appellant’s Brief of Argument.

SUBMISSIONS BY COUNSEL ON ISSUES FOR DETERMINATION

ISSUE NO.1

Issue no.1 deals with whether the Court below has jurisdiction to consider the alternative reliefs when there was no appeal on same.

He argued that the appeal of the respondent who was the appellant at the Court below did not touch on the alternative reliefs and that there was no cross appeal on alternative reliefs by the appellant who was the respondent at the Court below. He argued further that the judgment of the trial Court did not touch on any of the alternative reliefs contained in the appellant’s Amended statement of claim. He then contended that a Court cannot grant both the principal and the alternative reliefs at the same time.

He cited the case of LAMURDE LOCAL GOVERNMENT V ENG EUGENE KARKA & ANOR (2010)10 NWLR (pt.1203)574 at 597. He submitted further that a Court can only grant alternative relief after it might have found that it

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could not for any reason, grant the principal or main relief of claim. He argued that the Court suo moto considered and determined the alternative reliefs (i) & (II) without affording the parties opportunity of being heard. He submitted that it will amount to denial of fair hearing where Court raises an issue suo moto and ties a decision on it without giving the parties the opportunity of being heard.

He cited several cases including EMEKA NWANA V FED CAPITAL DEV. AUTHORITY (2007)11 NWLR (pt.1044)59 at p.67 ratio 12. He urged the Court to resolve this issue in favour of the appellant.

ISSUE NO.2

This issue deals with the question whether the Court below was right in law to uphold the refusal of the trial Court to grant reliefs 2 & 4 of the Amended Statement of Claim. He submitted that the trial Court ought to have equally granted reliefs 2 & 4 so as to give effect or efficacy to the reliefs which it granted. He submitted that a consequential claim or relief is one giving effect to a judgment and that it is essentially the one which makes the principal order effectual and effective. He cited the case of ALH. AMINU DANTSOHO V. ABUBAKAR MOHAMMED

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(2003)6 NWLR (pt.817) at R489-490 parag G. He urged the Court to resolve this issue in favour of the appellant.

ISSUE NO.3

Issue no.3 deals whether the trial Court was right when it held that the appellant’s employment enjoys statutory flavour and turned to hold that the appellant was retired.

He argued that the Court below having upheld the judgment of the trial Court in granting reliefs 1, 3 and 5 of the amended statement of claim in favour of the appellant, it therefore follows that the appellant’s employment with the respondent still subsists and that both trial Court and the Court below have jurisdiction to grant reliefs 2 and 4 in order to give effect to relief 1. He argued that the Court below did not give any reason for upholding the decision of the trial Court for its refusal to grant reliefs 2 and 4. He submitted that the decision of the Court below upholding the decision of the trial for its refusal to grant reliefs 2 and 4 is perverse and had occasioned a miscarriage of justice. He cited the case of STATE V GODFREY AJIE (2000)11 NWLR (pt.678) 434 at 449 para C-D ratio 18. He then urged this Court to invoke

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its powers under Section 15 of Court of Appeal Act 2004 and grant reliefs 2 and 4 of the appellant’s amended statement of claim.

ISSUE NO.4

Issue no.4 essentially deals with the pronouncement that the appellant is entitled to retirement benefits when he is still in employment of the respondent. He submitted that since the trial Court and the Court below held that the appellant is still in the employment of the respondent, it is a serious error in law by holding that the appellant is entitled to his retirement benefits when the appellant has not been retired by the respondent. He argued that there was no appeal on the issue of retirement benefit and that the Court below suo moto considered and determined the alternative reliefs (i) & (ii) without affording the parties the opportunity of being heard and thereby denied the appellant fair hearing as guaranteed by Section 36(1) of the 1999 Constitution. He submitted that it is a basic and fundamental principle of administration of justice that no decision can be regarded as valid unless the trial Court has heard both sides in the conflict. He cited the case of DEDUWA V OKORODUDU (1976) 9-10 SC.329. He

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urged the Court to resolve this issue in favour of the appellant. In another submission he argued that the Court below was wrong in law to hold that Exhibits M, N, O, P and Q were rightly admitted when the said exhibits are inadmissible in law. He argued that the letters pleaded by the respondent in paragraph 8 (i) (v) of the statement of defence were photocopies instead of original or certified true copies. He argued that a proper person through whom a document was tendered is the maker of a document. He referred to the case of LAMBERT V NIGERIA ARMY (2006)7 NWLR (pt.980)52 and argued that the DW1 who testified on behalf of the respondent was not the maker of Exhibits M, N, O,P and Q and therefore they cannot be tendered through him. He submitted that the findings of the Court below that these exhibits were rightly admitted is perverse and has also occasioned a miscarriage of justice.

He urged the Court to resolve this issue in favour of the appellant and to finally allow the appeal.

The learned counsel of the respondent adopted the issues formulated by the appellant’s counsel. On the issue of jurisdiction to consider alternative reliefs, he argued that the

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lower Court has jurisdiction to consider and determine alternative relief, as the Court derives its power under Section 15 of the Court of Appeal Act 2004 (or Section 16 of the 1976 of the same Act) and under Order 4 Rule 3 & 4 of the Court of Appeal Rules, 2007. He also referred to the case of ETAJATA V OLOGBO (2007)16 NWLR (pt.106)554 at 568 589. He argued further, that an appeal is a continuation of hearing of a case and that everything before the trial Court is before the appellate Court. He therefore submitted that it was the appellant who invited the Court below to consider the alternative reliefs as follows “in the event that the defendant being unwilling to take or retain the plaintiff as his employee, the plaintiff claims as follow…

He argued that the mere fact that the parties did not cross appeal on this issue is of no moment as nothing can derogate from the power of the Court below to consider the alternative reliefs in accordance with the Act and the Rule cited above. He then urged the Court to discountenance all the arguments raised by the appellant in that regard. On the issue of whether the appellant was in the service of the

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respondent, he referred to what the Court below said at page 6 of its claim (page 504 of the record) and argued that the use of words “meant” and “was” suggested that the appellant “is” no longer in the employment of the respondent. He argued that the Court below rejected reliefs 1, 3 and 5 and reliefs 2 (i) 2 (11) and under the power conferred on it by law which gave judgment which the appellant is contesting under this issue no3. He submitted further, that the decision of the Court was informed by the age-long common law dictum that the Court should not impose a worker on an unwilling employer. He cited the case of Garuba v KIC Ltd (2005)5 NWLR (para 917)160 at 180. He argued that the appellant anticipated this situation that is why he sought alternative relief which was not supported by any evidence but the Court below did what was the best to be done in the circumstance. He urged the Court to resolve this issue against the appellant.

On the issue of whether the Court below can grant relief no.2 and whether the trial Court was right in refusing relief no.4, he referred to page 345 which is connected to relief no.2 for promotion etc, and page 505 of the

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record and submitted that there was no evidence by the appellant to show where his contemporaries were as at the date of his evidence in 2009 or when the judgment was given in 2010.

He argued that it will amount to granting relief not supported by any evidence. With regard to relief no.4, he referred to the judgment of the trial Court at page 345 of the record and argued that the issue being canvassed in relief no.4 is still an issue which is a subject matter in another suit pending before another Court of coordinate jurisdiction.

He therefore submitted that the statement of the appellant to the effect that no reason was given in refusing relief no.4 is a total misinformation. He urged the Court to discountenance the appellants argument in this regard. On the issue of admission of exhibits M, N, O, P & Q, he submitted that the appellant did not challenge the authencity of these exhibits and there was no need to tender them through the makers. He referred to Section 198 (2) of the Evidence Act and the case of G. CHITEX IND LTD V O.B.I (NIG) LTD [2005)14 NWLR Pt.945, page 392 at page 411. He urged the Court

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to resolve this issue against the appellant and dismiss the appeal.

REPLY OF THE APPELLANT

On issue no.1, the Appellant argued that the Court of Appeal Act 1976 and the Court of Appeal Rules are not applicable to this suit having been repealed. He argued further that although Section 15 of the Court of Appeal 2004 which can only be exercised based on what the trial Court has decided and on grounds of appeal before it. The same argument applies to Section 16 of the Court of Appeal Act of 1976.

On issue no.2, which deals with whether the appellant is still in service of the respondent, he submitted that the issue is incompetent as it did not arise from the grounds of appeal. He urged the Court to discountenance same.

On issue no.3, he also argued that the issue is also incompetent as it did not arise from the grounds of appeal of the appellant. He equally argued that issue no.4 is also not based on any of the grounds of appeal and urged this Court to allow the appeal.

RESOLUTION OF ISSUES FOR DETERMINATION

ISSUE NO.1

The first issue relates to whether the Court below has jurisdiction to consider and determine the alternative reliefs

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Nos (i) and (ii) in the Appellant’s amended statement of claim when there was no appeal on the alternative reliefs. In resolving this issue I think it will not be out of place if reference is made to the judgment of the lower Court in order to appreciate the circumstance that informed the trial Court to grant the alternative reliefs as complained by the present appellant. At page 504 of the record of proceedings, the Court below had this to say: –

“The grant of reliefs 1, 3 and 5 of the Amended Statement of claim meant that the plaintiff/Cross appellant was still in the employment of the Defendant/Cross respondent. The Court below rightly in my view, refused to grant reliefs 2 and 4 for reasons stated hereunder. However the learned trial judge ought to have considered the alternative reliefs (1) and (ii) of the Amended Statement of claim to

“The cross appellant urged us to invoke our powers under Section 15 of the Court of Appeal Act and grant him reliefs 2 and 4 in the amended statement of claim. I do not think it expedient to the invitation by the cross appellant and grant him reliefs 2 and 4. However, I think the alternative reliefs (i) and (II) of

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the amended statement of claim are worthy of my CONSIDERATION”.

The Supreme Court in the case of HELP (NIG) LTD vs SILVER ANCHOR NIG LTD (2006) ALL NLR (pt.311 1833 per Mukhtar JSC (as she then was and later CJN) stated or specified at page 1855-6) the condition of granting alternative claim or relief as follows: –

“When a party makes a claim in the alternative, the belief is that he wants either the reliefs sought, in which case when he is granted any of the relief, it suffice for the purpose of satisfying his claim”

See also GKF Investment Nig Ltd v NITEL PLC (2009)15 NWLR (pt.1164) 344 – LPELR 1294 (SC).

I must stress here however, that where alternative claim is made in addition to the main claim, it is only where the main claim is refused or had not been granted that the Court should consider granting the alternative claim or relief. In other words both the main and alternative claim can not be granted at the same time as, it will be improper to again grant alternative claim because it would amount to double jeopardy. See Agidigbi Vs Agidigbi (1996)6 NWLR (pt.454)300. It is evident that in this instant case, the

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alternative reliefs Nos (i) and (ii) were granted by the Court below because the main reliefs No 1 and 4 were rejected or refused by the trial Court.

On the appellant’s grouse that the Court below granted the alternative reliefs suo motu, I think that assertion is not correct. The lower Court granted the alternative reliefs based on the powers conferred on it by Section 15 of the Court of Appeal Act and even it was the cross-appellants counsel who urged or invited it to invoke the provisions of Section 15 of the Court of Appeal Act 2004 which is in pari materia with Section 16 of the Court of Appeal Act of 1976 and Order 4 Rules 3 & 4 of Court of Appeal Rules 2007 which, inter alia, gave it the power while hearing an appeal, to review, vary or amend or even make a further order or orders earlier made by the trial Court or even where it was not requested for by a party, so long as in its opinion, the justice of the case demands that.

See Onuaguluchi Vs Ndu (2001)3 SC 4. So in answer to the appellant’s complaint, I must state that the grant of the alternative reliefs was not made suo motu and I hold that Court below has jurisdiction to grant the alternative

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reliefs (I) and (II) in the circumstance even though there was no appeal on them or that parties were not asked to respond before such order was made. The lower Court has jurisdiction to grant the said reliefs. The first issue is therefore resolved against the appellant.

ISSUE NO.2

The second issue queries whether the lower Court was right in law in upholding the trial Court’s refusal to grant the main reliefs No. 1 and 4 claimed in the Appellant’s amended statement of claim or decline to grant them when both lower or Courts below have jurisdiction to grant both reliefs. In treating this issue which basically relates to the trial Court’s refusal to grant the two reliefs, I think it will be pertinent to reproduce below, the two reliefs, starting with Relief 2, which reads as follows: –

“An order of Court compelling the defendant to accord the plaintiff his rightful position in service by promoting him to a higher position from Assistant Chief Electrical Superintendent commensurate with his contemporaries in the service of the Defendant and also to pay the plaintiff the accrued arrears of salary and benefits on the said promotion.”

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To my understanding, in this relief, the plaintiff was simply asking the trial Court to, in a disguised way, promote him to a position contemporaries are holding and/or make him to benefit from the salaries and other entitlements of his supposed contemporaries then holding the rank of Assistant Electrical Superintendents. It is elementary to say that the trial Court is not the plaintiff’s employer. Since his employers i.e. the defendant/respondent, had never so promoted him or grant him that relief more especially because no evidence was led before it to show that he really deserved or is entitled to that anticipated promotion or rank. Perhaps it is sequel to that, that the trial Court in refusing to grant that relief held as below: –

“This relief is like making a “tall order” promotion is a privilege granted an employee at the discretion of the employer thus the Court can not compel an employer to promote his employee…”

It is my candid view therefore, that the trial Court was right in refusing to grant Relief no.2 and by extension the Court below is also correct in upholding the trial Court’s refusal to grant the said relief no.2.

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Coming to Relief no.4, it also reads as follows: –

“An injunction restraining the defendant, its agents or servants from ejecting the plaintiff from the accommodation which the plaintiff legitimately occupied at Federal Airport Authority of Nigeria (FAAN) Staff Quarters, Enere Enugu known as Line B, Flat 01”

It is clearly shown on pages 345 to 346 of the printed record of appeal, that Relief 4 is a subject matter pending before the Chief Judge of Enugu State High Court which is a Court of coordinate jurisdiction with the trial Court and there was even an interlocutory order made by the Hon. Chief Judge of Enugu State and the suit is still pending-on that issue before the Enugu State High Court. For that reason, the learned trial judge rightly in my view, regarded relief 4 as an abuse of Court process and he therefore, rightly refused to or refrained from granting that relief. With this situation at hand, I think it will be inconceivable to expect the Court below to grant Relief no.4 either.

In the light of all that I have reiterated supra on this issue, I firmly hold the view that the Court below was correct in upholding and endorsing the resolve by the trial

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Court in not granting Reliefs 2 and 4 and it was also right in law in refusing it too. The second issue is therefore resolved against the appellant herein.

ISSUE NO.3

The question posed by the appellant on this issue is whether the lower Court was right in law when it held that the appellant is entitled to his retirement benefits when the appellant has not been retired from the service of the respondent.

Looking closely at the above question raised in this issue, what should first of all be considered is whether the lower Court had actually held that the appellant was in the service of the respondent. At page 504 of the record of appeal the lower Court had this to say: –

“The grant of reliefs 3 and 5 of the Amended Statement of Claim MEANT that the plaintiff/Cross Appellant WAS still in the employment of the Defendant/Cross Respondent. The Court below, rightly in my view, refused to grant reliefs 2 and 4 for reasons stated there under. However the learned trial judge ought to have considered the alternative reliefs (i) and (ii) of the amended statement of claim.

Closely considering and interpreting the above quoted

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finding of the lower Court, leaves one in no doubt that the Court below was of the firm view that the appellant was no longer in the service or employment of the respondent. That being its stance, the lower Court approved the trial Court’s resolve to refuse or to reject reliefs 3 and 5 and reliefs 2(i) and 2(ii). Having done so, it proceeded rightly in my view, to invoke the provisions of Section 15 of the Act and granted the two alternative reliefs. The approach adopted by the lower Court is, in my view, unassailable and most commendable as it is only that approach that can give efficacy to and would cushion or accommodate the complaints of the appellant. This Court is further fortified on this view, by the age-long common law principle that a Court of law can not impose a worker on an unwilling employer. See the cases of CHUKWUMAH VS SHELL PETROLEUM [1993) 4 NWLR [PT 289]512 at 560; GARUBA v KIC LTD [2005) 5 NWLR (pt.917) 160; CHARLES EKEAGWU vs THE NIGERIAN ARMY & ANOR [2010)16 NWLR [pt,1220) 419. The lower Court finally concluded its judgment when it held thus: –

“In the circumstance, I hold the considered view that

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the appellant having been compulsorily retire (sic), is entitled to be paid all his retirement benefits.”

Therefore, with all these findings by the lower Court as borne out in the record of appeal, it would be incorrect to say that the Court below held that the appellant was still in the service of the respondent as insinuated suggested by the appellant. The Court below is therefore right in holding that the appellant was entitled to all his retirement benefits. This issue is also resolved against the appellant.

ISSUE NO.4

On this issue the appellant queries whether the lower Court was not in error when it held in its judgment, that Exhibits M, N, O, P and Q were rightly admitted in evidence by the trial Court when those exhibits were inadmissible in law.

It is worthy of note, that when the documents admitted as Exhibits M, N, O, P and Q were tendered at the trial, the appellant did not challenge the authenticity or existence of those exhibits. That being so, it would not be necessary for the respondent to tender them through the maker.

There is no gain saying, that this said five letters i.e. Exhibits M, N, O, P and Q were pleaded in the defendant’s

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statement of defence even though they were not tendered through the maker but through DW1. In my view, the trial Court was right in overruling the objection of the plaintiff on the ground that DW1 was not the maker or author of the said letters (i.e. exhibits) since their authenticity was not in question or challenged by the appellant and the Court below had rightly held that the appellant’s complaint on their admissibility was too late. In any case, even though the said exhibits were in form of secondary evidence as the originals of the letters were not the ones tendered and admitted in evidence, that could not be a reason for the person who fails to tender the original copies to fail especially where the contents of the originals were given during oral testimonies as in this instant case.

See Abubakar Vs Waziri(2008)14 NWLR (pt.1108)007.

Therefore, since there was no challenge on the authenticity of the five exhibits by the appellant, the trial Court was right in overruling the objection by the appellant on their admissibility. Similarly, the Court below was not in error when it endorsed the admission of Exhibits M, N, O, P and

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Q in evidence by the trial Court. This last issue is hereby also resolved in favour of the respondent against the appellant.

Thus, having resolved all the four issues raised by the appellant against him, it is my judgment that this appeal is devoid of any merit. It therefore fails for want of merit. It is hereby accordingly dismissed. I make no order as to costs, so each party should bear his/its own costs.

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SC.223/2012