AFRICAN CONTINENTAL BANK LTD v P.O. EWARAMI (SC.428/75) [1978] NGSC 2 (7 April 1978)


IN THE SUPREME COURT OF NIGERIA

ON SATURDAY, THE 8TH DAY OF APRIL, 1978

SUIT NO: SC.428/75

Between

AFRICAN CONTINENAL BANK LTD ………………..    Appellant

And

P. O. EWARAMI                      ……………………… Respondent

 

A. G. IRIKEFE, J.S.C. (Delivering the Leading Judgment): At the end of counsel's submissions in this appeal, we indicated there and then that it was dismissed, and promised that we would give our reasons later. This we now do. By the amended writ the respondent herein claimed against the appellants thus:

"The plaintiffs claim against the defendant is for the sum of N20,000.00 (Twenty-Thousand-Naira) being special and general damages for wrongful dismissal in that on or about the 13th November, 1973 at  Benin City within the jurisdiction of this Honourable Court, the defendant wrongfully dismissed the plaintiff from the service of the defendant company" The plaintiff also claims a declaration that the purported dismissal is wrongful, illegal and unconstitutional.

PARTICULARS OF DAMAGE

Salaries due to plaintiff for the months of July - November, 1971;

     (a) N80.00 per month...........................N400.00

    (b) Leave Bonus due Plaintiff 1972/3.........  50.00

    (c) General damages .......................N19,550.00

                                                       N20,000.00

After the proceedings had been adjourned for judgment, the respondent moved the court for an amendment of the relief sought in his statement of claim. The said amendment, although strenuously opposed by the appellants was granted on terms. In view of the above, the relief sought under paragraph 29 of the statement of claim now reads as follows:

The plaintiff avers that by reason of the said wrongful dismissal he has suffered damages. Whereof the plaintiff claims that the dismissal of the plaintiff by the defendant company is wrongful and a declaration that the plaintiff is still in the employment of the defendant company.

 

The plaintiff therefore claims N20,000 (Twenty-Thousand Naira) general damages. OR IN THE ALTERNATIVE The plaintiff claims as special damages his salary from July, 1973 to January, 1975.

 

(a) N80.00 per month...N1,440.00

(b) Leave bonus.......         50.00

    TOTAL                   N1,490.00

 

The facts found by the lower court which were not challenged as the appellants elected not to call evidence, show that the respondent was employed by the appellants on 21st March, 1964.

Thereafter, he served at various branches of the appellants banking houses and at the commencement of this suit in February, 1974, was a member of the permanent staff of the appellants in the post of" ARCHIVIST".

In 1972 the appellants sued one Chief F.S. YESUFU, a customer, in the Benin High Court in SUIT No. B/10/72. Upon the application of the said Chief YESUFU, the respondent was served with a subpoena requiring him to appear and give evidence at the Benin High Court in the pending suit on 14th June, 1973. The respondent appeared in court on the stated date, but no evidence was taken in the matter that day.

It was then adjourned to 2nd July, 1973. On 25th June, 1973 the respondent received a letter from the appellants transferring him from their RING ROAD BRANCH in BENIN-CITY, where he then worked, to their JOS BRANCH. By some strange co-incidence, the date of the respondent's resumption of duty at JOS was 2nd JULY, 1973; the same date to which the YESUFU suit in which a subpoena had been served on him had been adjourned.

A discussion between the respondent and the manager of the appellants' RING ROAD BRANCH in Benin City failed to resolve the crisis created by the conflicting demands for the respondent's presence at the Benin High Court and at JOS on the same day. It would appear that when YESUFU got wind of the respondent's impending transfer to JOS, he moved the Benin High Court for an order restraining the appellants from doing so until SUIT B/10/72 was disposed of. This order was made on 29th June, 1973 and the manager of the appellants' RING ROAD BRANCH in BENIN CITY who was present in court told the respondent that he would have to wait for another order of posting in view of the court's order. Soon after the making of the above order, the respondent took ill and was attended to by one DR. OVIASU who issued him with a sick leave certificate dated 30th June, 1973 and which was admitted at the hearing at the court below as exhibit "D".

No evidence was taken in SUIT NO. B/10/72 on 2nd JULY, 1973. It was adjourned to 9th July, 1973 and again to 10th July, 1973 when the respondent's evidence was taken. Although his evidence had been taken, no formal application was made for his discharge by the court.

The respondent thereafter stayed away from work on the strength of medical sick-leave certificates. Efforts made by him to receive his salary from the appellants' RING ROAD, BENIN-CITY BRANCH met with no success.

This was how matters stood when the respondent instructed a solicitor to write a letter dated 25th September, 1973 to the appellants.

It was in their reply dated 13th November, 1973 to the above letter that the respondent learnt for the first time that another letter dated 3rd August, 1973 had issued to him from the appellants instructing him to again proceed on transfer to Jos.

The refusal by the appellants to pay the respondent's salary had apparently been due to the view which they had formed that the respondent had been guilty of gross insubordination by refusing to proceed on transfer to Jos consequent upon the issue of their letter dated 3rd August, 1973.This much was alleged in their statement of defence.

The case at the lower court thus turned on the narrow issue as to whether the respondent had been lawfully dismissed, as indeed he could, by his employers, for insubordination, or whether a case for dismissal had not been made out in the absence of proof that he had received the letter of 3rd August, 1973 re-confirming his earlier transfer to Jos. After a most careful appraisal of the only evidence before him (since the appellants elected not to offer any evidence), the learned trial judge (OKI, J.) accepted the respondents case and relying on the claim as amended, held that: purported dismissal from the employment of the defendant company is null and void" and declared: "that he is still in the employment of the defendant company. “This appeal is against the above decision.

A number of grounds of appeal both original and additional were filed, but the appellants specifically relied on the following:

(a) The learned judge erred in law by granting a declaration that the plaintiff/respondent was still in the employment of the defendant/appellant when -(a) he had no jurisdiction so to do; and (b) the admissible evidence was not in support of the declaration.

(b) The learned judge erred in law by granting the plaintiffs application dated 3rd February, 1975 to amend the statement of claim in view of the fact that the amendment introduced new reliefs not cognizable under the claim endorsed on the writ of summons and in view of the legal objections raised in opposition to the application.

(c) The learned trial judge having accepted as proved the allegation in paragraph 9 of the amended statement of defence erred in law:

(a) In entering judgment for the plaintiff who was in breach of contract by absenting himself from duty.

(b) in holding that "the defendants ought to have given evidence to show that absence from duty in their company is regarded as a serious breach of contract of service to warrant termination of appointment," when the onus is on the plaintiff to prove that his termination or dismissal was wrongful.

(d) The learned trial judge erred in law by holding and assuming

(a) That the parties were governed by the common law "and the practice within the defendant company" when

(i) There is evidence before him that there are conditions of service governing the parties;

(ii) There is no evidence of the practice within the defendant company.

(b) That the condition of service was not in writing when there is no such evidence before the court.

(e) The learned trial judge erred in law in granting the plaintiff the declaration sought after holding that the parties were governed by the common law when declaratory judgments are unknown to the common law and/or the only remedy at common law for breach of contract of service or wrongful dismissal is the award of damages.

(f) The learned trial judge erred in law in holding that the dismissal of the plaintiff by the defendant was null and void when the defendant was competent to dismiss the plaintiff.

(g) The learned trial judge having held that "before the court, however, there was no evidence of dismissal" erred in law in entering judgment for the plaintiffs and declaring his dismissal from the employment of the defendant company null and void when the plaintiff's claim ought to have been dismissed or non-suited for failure to prove the basis of his claim - i.e. the dismissal.

(h) The learned trial judge erred in law in ordering a declaration not asked for when he decreed - "that he (plaintiff) is still in the employment of the defendant company"

Learned counsel representing the appellants relying on the above grounds argued that the decision arrived at by the court of trial could not be supported by the evidence. He further argued that the trial court having held that the parties were governed by the common law, erred in granting the declaration sought, since, according to counsel, declaratory judgments were unknown to the common law and the only remedy available to a servant against his master for wrongful dismissal was an action for damages. The effect of the order made in these proceedings, learned counsel argued, was to compel the appellants to retain the services of the respondent; whereas at common law, a master could not be so compelled.

     Counsel was however prepared to concede that, where the employment was statutory, one had to look at the statute itself in order to determine what the rights of the parties are, in which case, a declaratory order in the form of an injunction could issue in an appropriate case to preserve such rights. Learned counsel was also critical of the amendment made to the statement of claim after the hearing had been adjourned for judgment. For the respondent, it was submitted that the order made by the lower court was appropriate having regard to the circumstances of this case.

We note that after the trial court had granted the amendment of the respondent's statement of claim in spite of objection, learned counsel representing the appellants asked for a short adjournment to enable him decide on what steps to take.

At the next hearing, counsel intimated to the court that he no longer desired to re-open the cross-examination of the respondent but would rather like to expand upon the address he had earlier made before the amendment. The record shows that this concession was granted to counsel.

The amendment made being one merely to bring the pleadings into line with evidence already given was clearly within the competence of the learned trial judge. Such an amendment to the pleadings would supersede the claim on the writ. See UDECHUKWU v. OKWUKA 1 F. S. C. pg.70.

It is accordingly our view that the complaint lacks substance.

By virtue of Order 35 Rule 10 of the High Court (Civil Procedure) Rules (1953) of the defunct Western Region of Nigeria, which rules were applicable in the similarly defunct Mid- Western State of Nigeria during the entire course of the proceedings now on appeal, the High Court of the  latter State could have recourse to the rules for the time being in force in the High Court of Justice in England.

The said rule reads - "Where no provision is made by these rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall so far as they can be conveniently applied, be in force in the court: provided that no practice which is inconsistent with these rules shall be applied"

 

Order 15 Rule 16 (Supreme Court Practice) 1976 provides that -

"Non-action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be.

As we had stated earlier on in this judgement, the appellants elected not to call evidence. At the end of the hearing therefore, the lower court had before it only the evidence of the respondent which itself was based on his amended pleadings. There was no material before the court from which it could hold that the respondent had been insubordinate by failing to proceed on transfer to JOS pursuant to a letter of 3rd August, 1973 from the appellants directing that he should do so.

We take the view that the onus of establishing the existence and service of this letter was on the appellants and that they had failed to do so.

Given the above state of affairs, we are satisfied that the learned trial judge had an unfettered judicial discretion to make the order the subject of this appeal.

In HANSON v RADCLIFFE U.D.C. -19222 CHANCERY -p.490 at 1507 - Lord STERNDALE - M.R. had this to say on declaratory judgments:

The power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; and I might say only limited  by its own discretion.

The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide" .

Some years before the above decision, BANKES L. J. when considering the scope of this rule was no less emphatic when he said

"There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as  possible."

See - GUARANTY TRUST COY OF NEW YORK Vs. HANNA Y & COY 915 - 8 K B. p.556 at p.572. See also -IBENEWEKA v. EGBUNA 1964 1. W. L. R. 219.

The order made by the learned judge, was one, which in our view, he could make having regard to the evidence before him.

As the lower court did not rule that a case for unlawful dismissal had been made out, we would refrain from expressing an opinion on whether at common law only an action for damages would lie.

We were in no doubt that this appeal lacked merit and dismissed it. For the avoidance of doubt, we hold that the learned trial judge was right in deciding as he did, and that the respondent must be deemed to have been still in the employment of the appellants and thus entitled to his normal salaries and/or benefits until 13th December, 1977 when we dismissed this appeal and reserved our reasons till a later date. Costs of N153.00 are awarded against the appellants.

And the foregoing shall be the judgment of the Court.

Appearances      

G. O. Giwa-Amu               For the Appelants

      

Dr. Mudiaga Odje            For the Respondents

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