West African Examinations Board V. Frederick O. Ikezahu (1994)

LawGlobal-Hub Lead Judgment Report

JUSTIN THOMPSON AKPABIO, J.C.A. 

This is an appeal against a Judgment of former High Court of Bendel State (but now Edo State) sitting at Benin City, in suit No.B/343/87, delivered on 20th July, 1989, in which Joan Aiwerioghene, J. entered Judgment in favour of Plaintiff, by declaring that the Plaintiff was still an employee of the defendant, and so entitled to his salary and other entitlements as from January, 1986, and also Ordered that he be re-absorbed and put back in his previous position as Senior Clerical Officer in the defendant’s establishment with N150.00 costs in favour of Plaintiff.

At the Court below, the present Respondent (who was then the Plaintiff) sued the Appellant (who was then the Defendant) claiming as follows:-
“The plaintiff seeks from court the following reliefs against the defendant.
1. A declaration that Plaintiff is still in the employment of the Defendant.
2. A declaration that Plaintiff is entitled to his wages, benefits and privileges as from January 1986 till Judgment is delivered.
3. An order re-instating him in his previous position as Senior Clerical Officer in the Defendant’s establishment.”

The evidence in support of Plaintiff’s Claim was briefly that sometime in, 1981, the Plaintiff who worked as a Senior Clerical Officer, under the employment of the defendant, a public statutory corporation, set up by statute, applied to the defendant for study leave with pay, to enable him undertake a course of study in the U.S.A. But by letter Ref. No. L/P/2760 of 22nd of October, 1951, he was granted study leave without pay for a period of three years with effect from 12th January, 1982. The Plaintiff duly travelled to the United States of America and studied Agriculture in Alabama Agricultural and Mechanical University where he obtained a B. Sc (Bachelor of Science) Degree in 1984, and returned to this country in January, 1985. On the Plaintiff’s return, he presented himself to the Defendant’s Benin Office to resume duty, but was referred to the Senior Deputy Registrar in Lagos. Plaintiff wrote to the Senior Deputy Registrar, Lagos through their Zonal Co-ordinator in Benin, and was later advised by letter Ref. No. L/P/2766 dated 21st January, 1985, to proceed on the National Youth Service Corp Scheme, and to apply again on completion of the Scheme for re-absorption. Plaintiff then went and served the N.Y.S.C. Scheme as advised by the defendant.

On completion of the N.Y.S.C. Scheme in January, 1986, the Plaintiff reported back to the Defendant for re-absorption. But Plaintiff was not re-absorbed, in spite of numerous personal visits and letters written by him to the Defendant to absorb him. All he got was verbal promises by officials of Defendant that his case will be looked into. After protracted and fruitless waiting, Plaintiff had to engage a Solicitor to write the Defendant’s for him. In spite of the Solicitor’s letter, the Plaintiff was still not re-absorbed by the Defendant. And so this action was instituted. Plaintiff further averred that since January, 1986, when he presented himself for re-absorption, the defendant had been employing several other persons as Clerical Officers, to his knowledge. The plaintiff averred that he was a public employee whose appointment was permanent and pensionable. The appointment of the Plaintiff by the defendant has never been terminated. Plaintiff further stated that the time he proceeded on study leave his monthly salary was N183.00 or N2,196.00 per annum.

In their defence, the defendant did not deny any of the above averments, but stated that the absorption of the Plaintiff was subject to availability of vacancy in the appropriate cadre at, the time of his return. Unfortunately all the vacancies in the Senior Clerical Officer cadre had been filled by the time plaintiff returned. Steps were however, being taken to re-absorb the Plaintiff when he rushed to court to institute this action. It was also contended on behalf of the defendant, both by way of preliminary objection and during final address, that the pleadings of the Plaintiff did not disclose a reasonable cause of action, as the Plaintiff himself had stated in paragraph 21 of his statement of claim that his appointment has not been terminated. Only persons whose appointments have been wrongly terminated could sue for re-instatement. He therefore urged the court to dismiss the Plaintiff’s claim as premature. When this question was raised by way of a preliminary objection the learned trial Judge overruled the objection, and held that a cause of action was disclosed. But the learned counsel for defendant still raised it again in his final address.

At the end of the day, the learned trial Judge came out with a considered Judgment in which she held once more that even though Plaintiff’s appointment had not been terminated, he was entitled in the special circumstances of this case to bring a declaratory action for his position with the defendant to be made clear. She therefore entered Judgment for the Plaintiff, and made for him all the declarations he claimed for with N150.00 costs in his favour.

The defendant being dissatisfied with that Judgment appealed to this court on three grounds, which were later amended on application dated 25/2/91. Still later, another application dated 24th June, 1991 was brought to amend the 2nd ground of appeal only.

So the grounds of appeal in their final form excluding their particulars read as follows:-
“1. The decision is against the weight of evidence
2. The learned trial Judge erred in law by giving judgment to the Plaintiff when he (the Plaintiff) did not discharge the onus placed on him by sections 134, 136 and 138 of the Evidence Act.

The learned trial Judge erred in law by granting all the reliefs claimed by the plaintiff when he (plaintiff) has no cause of action against the defendant.

Also two briefs of arguments were filed on behalf of the Appellant in this case. The first dated 25th February, 1991, was filed by R. O. Ogbodu Esq., the learned counsel who had handled this case for the Appellant at the trial court. But a Second brief dated and filed on 15th July, 1991, was later filed by a different Solicitor by name E. F. Aiyudubie Esq. It is reasonable to assume that this later brief superseded the earlier one, and so shall be used for the determination of this appeal. In this later Brief three issues for determination were filed as follows: for the defendant will hereinafter be referred to as the Appellant.
“(A) Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the court.
(b) Whether the failure of the Plaintiff to plead contract of service stipulating the terms and or conditions of appointment is detrimental to all or any of the reliefs sought by him?
(c) Whether the decision is in line with evidence led at trial?

On the other hand the Plaintiff who will hereinafter be referred to as the Respondent formulated only one issue which reads as follows:-
“Whether or not, there was any error, and/or, misdirection in the trial which has resulted in a miscarriage of justice.

It will be seen from the above formulations on behalf of both parties that the question whether there was or was no cause of action disclosed by the Respondent’s pleadings, was not touched. However in actual argument of the appeal itself learned counsel for the Appellant, purporting to argue all the issues together involuntarily strayed to the question whether there was or was no cause of action. He submitted that even based on Respondent’s own showing, especially the averment in paragraph 21 of his statement of claim that his appointment was not terminated, and that he was still in the service of the Appellant, there was no cause of action disclosed by the Respondent in the suit. The definition of “Cause of action” contained in some decided cases as “all those things necessary to give a right of action, whether they are to be done by the Plaintiff or a third person” was then referred to. The cases cited included: Harnaman v. Smith (1855) 10 Exch. 659 at 666; Cook v. Gill (1873) L.R.B.C.P. 107 at 116; and Thomas v. Olufosoye (1986) 1 N.W.L.R. (Part 18) 669 at 682.

The point was also canvassed that Respondent failed to tender the document, if any that governed his condition of service with the Appellant, with particular reference to the grant of leave without pay, in order to see whether re-absorption was automatic or subject to the availability of vacancies. It was also pointed out that Respondent had pleaded in paragraph 19 of his statement of claim that he was a public employee whose appointment was permanent and pensionable, but no evidence was led to prove this averment. The provisions of Sections 135 & 136 of Evidence Act were quoted and relied upon.