Union Bank of Nigeria Plc V Mr. David Dafiaga (1999)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A

This appeal is from a ruling of Omorodion, J., of the Benin City High Court in suit No. 8/116/96 delivered on the 6th of February, 1997.

On the 15th of February, 1996, the Respondent took out a writ of summons in suit No. B/116/96 against the Appellant in the High Court of Edo State, Benin City claiming:-

(a) declaration of the Honourable Court that the purported termination of his appointment vide the Appellant’s letter of 9th February, 1996 is wrong, null and void and contrary to the rules of natural justice;

(b) An order directing the Appellant to pay his due monthly salary and allowances of N13,689.50 per month from 9th February, 1996 until judgment in this action and arrears of half month salary from 14th August, 1995 to 9th February, 1996.

(c) An order that the Respondent be reinstated to his position with effect from the 9th of February, 1996 without loss of either service or seniority.

In the alternative the Respondent claimed the sum of N7 Million as special and general damages for loss of service, damage to reputation and career and the attendant hardship inflicted on him by the Appellant’s wrongful action.

Pleadings were ordered, filed and exchanged. The Respondent filed a Statement of Claim and the Appellant thereafter filed its statement of defence and the matter was subsequently set down for hearing.

The Respondent opened his case on the 15th of July, 1996 and as borne by the record he has not completed his evidence. On the said date, he testified halfway and obtained an adjournment to the 22nd of July, 1996. The Respondent then filed an application for leave to file a reply out of time. The Appellant also filed an application to amend its Statement of Defence in line with the proposed amendment as underlined in red. When the case came up on the 22nd of July, 1996 both applications were taken and granted respectively. The Respondent continued his evidence and again stopped half way. The Respondent subsequently concluded his evidence-in-Chief and cross examination of the Respondent opened on the 31st of July, 1996 and adjourned to the 14th of October, 1996 for continuation at the instance of the court below. On the said date further cross-examination of the Respondent continued before same was further adjourned to the 1st of November, 1996 at the instance of the Respondent’s counsel. On 1st November, 1996 while the Respondent was still in the witness box the Appellant filed an application for leave to further amend its Amended Statement of Defence.

The Respondent filed a counter-affidavit in opposition to the application. The application was heard and dismissed in a considered ruling delivered by the learned trial Judge on the 6th of February, 1997. It is against this ruling the Appellant has, with the leave of this court, filed this interlocutory appeal. The Notice of Appeal containing the grounds of appeal is set out at pages 93 – 95 of the record.

The grounds of Appeal with their particulars read:-

(1) The learned trial Judge erred in law when she dismissed the Appellant’s application for further amendment of the Statement of Defence when the said amendments were material to the issues in controversy and to the defence.

Particulars of Error:

(a) Part of the amendment sought by the Appellant was already in evidence the Respondent having admitted under cross examination that under the contract of service agreement either party has the right to give the other one Calendar month’s notice to determine the employment and that the Appellant has the right to pay to the Respondent one month’s salary in lieu of such notice.