(2018) LPELR-44116(CA)

Transcription

1 EKIYE v. FRCN CITATION: CHIDI NWAOMA UWA HAMMA AKAWU BARKA In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON TUESDAY, 6TH FEBRUARY, 2018 Suit No: CA/L/54/91 BOLOUKUROMO MOSES UGO MAURICE EZEONEBI EKIYE Before Their Lordships: Between And FEDERAL RADIO CORPORATION OF NIGERIA (FRCN) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. DAMAGES - SPECIAL DAMAGES: Meaning and nature of special damages "In the case of ARISONS TRADING & ENGINEERING CO. LTD VS. MILITARY GOVERNOR OF OGUN STATE & ORS (2009) LPELR (SC) special damages was defined by the Supreme Court, per Ogbuagu, JSC at P. 57, paras C- F thus: "Special damages have been defined as damages of the type as the law will not infer from the nature of the act, they do not flow in the ordinary course; they are exceptional in their character and therefore, they must be claimed specially and proved strictly. See, the cases of STROMS BRUKS AKTIE BOLAG VS. HUTCHISON (1905) A.C PER LORD MACHNAGHTEN; INCAR NIG. LTD & ANOR VS. MRS. M.R. ADEGBOYE (1985) NWLR (PT. 8) 454; EKENNIA VS. NKPAKARA & 2 ORS. (1997) 5 SCNJ 90; BADMUS & ANOR VS. ABEGUNDE (1999) NWLR (PT. 627) 502; (1999) 7 SCNJ 96 and THE SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA vs. CHIEF TIEBO VII (2005) 4 SCNJ 57; (2005) 3-4 SC 137." See, also OBASUYI VS. BUSINESS VENTURES (supra) and NGILARI VS. MOTHERCAT LIMITED (1999) LPELR (SC) PP , PARAS F - D, to the effect that in a claim for special damages for loss of earnings the plaintiff must specifically plead with particulars but, also lead real and credible evidence in proof thereof."per UWA, J.C.A. (Pp. 9-11, Paras. F-A) - read in context

3 2. PRACTICE AND PROCEDURE - SPECULATION: Whether Court can act on speculations " I agree with the submissions of the learned counsel to the appellant that the trial Court was wrong to have refused the award of special damages based on issues that were not certain, if the appellant had continued in the respondent's employment. The Court is to decide on questions of law based on the facts of each case, not abstract and hypothetical questions of 'ifs'. In ASANYA VS. STATE (supra) at P. 465, PARA H, the Supreme Court on the duty of the Court to act on facts established before it held that: "It is a well settled principle of the administration of justice that the Court is bound by the facts of the case established before it. Consequently, the judgment of the Court must necessarily be limited to and confined within the parameters of the facts as established." The respondent did not raise these questions of uncertainties as to what might have happened if the appellant had continued in their employment. In the case of IKENTA BEST (NIGERIA) LIMITED VS. ATTORNEY GENERAL OF RIVERS STATE (2008) LPELR (SC) the Supreme Court, per Ogbuagu, JSC in respect of whether Courts or parties are allowed to speculate held that: "... Speculation has no place in our Courts. Neither the parties nor the Court is permitted or entitled, to speculate anything." See, also, HANI AKAR ENTERPRISES LTD VS. INDO (NIG) MERCHANT BANK LTD (2010) LPELR (CA) P. 14. PARA. C, (2011) 1 NWLR (PT. 1228) P and UNITY BANK PLC VS. RAYBAM ENGINEERING LTD. (2017) LPELR (CA) P. 19. PARAS. D - F."Per UWA, J.C.A. (Pp , Paras. D-E) - read in context

4 CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Lagos State presided over by J.A. Oduneye, J. in its judgment delivered on the 23rd day of November, 1990 where the Appellant was the plaintiff, granted the appellant part of his claims before the trial Court. The appeal is in respect of part of the judgment the appellant is unhappy with. The appellant before the trial Court commenced his action by a writ of summons taken out on the 19th day of October, 1987 where he claimed against the Respondent Special and General Damages for wrongful termination of his appointment. The background facts are that the appellant joined the employment of the Respondent in 1969 as a News Assistant Trainee at the age of 26 years. He rose to be the Principal Editor of the respondent in 1979 which post he held till 1980 when he applied for study leave with pay. The application for study leave with pay was rejected but, he was granted study leave without pay. The Appellant returned to Nigeria from the United States of America (where he went to study) in 1985 and reported back to work on the 18th of November,

5 There was no communication to him while abroad that his services would no longer be needed. He served as a National Youth Service Corps (NYSC) Member with the Respondent. Upon the completion of his NYSC, he applied for re-absorption but, his application was turned down. He later got a letter from the Respondent placing him on temporary appointment. He was allowed to continue his work on his salary as Editor with all the fringe benefits as a Permanent Staff. The Appellant gave evidence that the temporary appointment was later terminated. The appellant claimed special damages, which is the salary of a Grade Level 10 officer from January, 1987 to August 2003 and all the fringe benefits attached thereto. He also sought for gratuity till the age of 60, loss of pensions and general damages assessed at N30, The appellant's witness testified that in January, 1988 that there were circulars on salary and fringe benefits for officers in the Public Service tendered as Exhibits "M", "N", "O" and "P" without objection, pages of the printed records. On the part of the Respondent, there was evidence adduced that the Appellant upon his return 2

6 from study leave did not apply for temporary appointment but re-absorption into the Respondent's employment. It was also confirmed that the appellant went to the United States of America to study Public Communication a relevant course to the work of the Respondent. The Appellant was a pensionable and permanent staff of the Respondent up till the time the appellant went on study leave. It was confirmed that the appellant did not accept the two weeks salary offered to him. Further, that all civil servants including the Respondent's staff were entitled to enjoy the improved salary in Exhibits "M", "N" and "O". At the conclusion of the trial, the learned trial judge found in favour of the Appellant and held as follows: (1) "The re-absorption of the plaintiff should be automatic and could therefore not be subject to a rejection. (2) The plaintiff is entitled to his salary and allowances upon to the date the judgment is delivered and that (3) That plaintiff is also entitled to his pension and gratuity." See, pages of the printed records. The learned trial judge did not enter judgment in favour of the Appellant for Special 3

7 Damages in respect of what the appellant would have earned if the contract of employment had lasted the full course which is until the appellant turned sixty (60) years of age by which time the Appellant would retire. It is the non-grant of the Special Damages that gave rise to the appeal. The Appellant identified the following two (2) issues for the determination of the appeal thus: 1. "Whether the Appellant sufficiently pleaded and specifically proved by credible evidence the special damages which he claimed and which were not awarded to him by the lower Court. 2. Whether the learned trial judge was wrong in refusing to award special damages to the Plaintiff/Appellant as per his Writ of Summons/Statement of Claim even though same was proved by him." The Respondent on its part distilled a sole issue for the determination of the appeal thus: "Whether from the facts and circumstances of this case, the appellant is entitled to special damages as per his writ of summons and amended statement of claim dated 14th June, 1988." (Grounds 1 and 2) In arguing his first issue, the learned counsel to the appellant Adebowale Kamoru Esq. relied on 4

8 his further amended brief of argument filed on 7/3/17 but, deemed filed and served on 13/3/17, adopted same as his argument in urging us to allow the appeal. The particulars of the Special Damages claimed by the appellant in his Amended Statement of Claim were itemized as follows: PARTICULARS OF DAMAGES 1. "SALARY (a) GL. 10 Step N Per Month = N6, (b) GL. 10 Step 4-151/1/88-31/12/99 12 years N8, 232 x , 382 = N141, (c) GL. 10 Step 15 1/1/ /12/ N15,382 per year =N46, (d) GL. 10 Step 15 1/1/ /8/ Months 17 N1, Per Month =N9, LEAVE TRANSPORT GRANT (a) N = (b) : 16 N300 Per Year =4, RENT SUPLEMENT (a) N55 Per Month =660,00 (b) 20 0/ of Salary (1,(b) - (d) Above i.e. N197, x20 =39, TRANSPORT ALLOWANCE (a) N45 Per Month = (b) January, 1988-August, 2003, i.e. 15 years, 8 Months or Per Month =21, GRATUITY FOR 34 YEARS SERVICE 5

9 @ N15,382 X 2.90 =44, PENSION for minimum of 5 years N15,382 x 68 x 5=52, MEAL SUBSIDY: N1.00 Per working day = 4, Total SPECIAL DAMAGES = N372, GENERAL DAMAGES = N30, N402,848.49" With proof of special Damages, it was submitted that in a claim for loss of earnings the plaintiff must prove and lead evidence in strict proof thereof which would be useful for evaluation and assessment. See, SHELL PETROLEUM DEVELOPMENT COMPANY (NIGERIA) LIMITED VS. HRH CHIEF G.B.A. TIEBO VII & 4 ORS (1996) 4 NWLR PT. 445 PG. 657 at 661 and WARNER & WARNER INTERNATIONAL VS. FEDERAL HOUSING AUTHORITY (1993) 6 NWLR (PT. 298) 148 PARA. 680 amongst others. It was submitted that by the appellant's pleadings, evidence adduced at the trial and the evidence of the PW2 the appellant satisfied the requirements of proof of Special Damages. See, OBASUYI VS. BUSINESS VENTURES LTD (2000) 5 NWLR (PT. 658) PAGE 673 at 697, PARAS.G-H. We were urged to resolve this issue in favour of the appellant. Under the appellant's second issue, it was submitted that the trial Court was right to have held

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11 that the Appellant's employment with the Respondent was unlawfully terminated but, wrong to have failed to award special damages as claimed by the Appellant. It was submitted that the trial Court was wrong to have gone into a voyage of speculations as to uncertainties as to whether the appellant would have been retired before the age of sixty (60) on attaining the age of forty five (45). It was argued that what might have happened in the future was not part of the Respondent's defence at the trial Court. It was argued that the Court's decision should be limited to what was argued before it. See, ASANYA VS. STATE (1991) 3 NWLR (PT. 180) PAGE 422 at 436. It was the contention of the appellant that the trial Court ought to have awarded the special damages claimed by the appellant which was the estimated income for the entire period of employment till retirement, moreso where the trial Court found that the appellant's employment was wrongfully terminated, therefore he was entitled to his salary and entitlements for the period for which he should have been retained in the respondent's employment. See, FEDERAL COLLEGE OF EDUCATION VS. ANYANWU (1997) 4 NWLR (PT. 501) 7

12 PAGE 533 at 540 and BALOGUN VS. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66. It was concluded that the trial Court's finding of facts leading to the award of special damages in part was unassailable but, was wrong not to have awarded the full special damages claimed by the Appellant having found that the appellant's employment was unlawfully terminated. We were urged to allow the appeal. The learned counsel to the respondent, N.J. Inyang Esq. relied on and adopted as his argument in his brief of argument filed on 23/2/17 but, deemed filed on 13/3/17 in urging us to dismiss the appeal. It was submitted that special damages must be pleaded and proved. See, DANIEL HOLDINGS LTD. VS. U.B.A. PLC (2005) 13 NWLR (PT. 943) at PAGE 548, PARAGRAPHS G - H. It was argued that the appellant pleaded special damages but, failed to prove same. It was submitted that the Court would refuse to grant an unreasonable exaggerated and oppressive claim for damages, and that it is an implicit consideration that would always guide a Court in the grant of damages claimed or awarded. Further, that special damages must be direct and not speculative. It was submitted that the claim sky 8

13 rocketed from N187, to N372, therefore leaving a doubt as to the true state of things assuming without conceding that the appellant is entitled to the award of damages, reliance was placed on the case of U.B.N. vs. AJABULE (2011) 18 NWLR (PT. 1278) PAGE 152 at PAGE 174, PARAGRAPH E. It was re-argued that the appellant particularized his claims but, failed to strictly prove same at the trial. The claims were said to be speculative. We were urged to hold that the appellant did not prove his claim in his Amended Statement of claim in the manner and standard required by law for the proof of damages. I have examined the issues distilled by the parties and would utilize the sole issue distilled by the respondent in determining the appeal, as it encompasses the two issues identified by the appellant, that is: whether from the facts and circumstances of this case, the Appellant is entitled to special damages as per his writ of summons and amended statement of claim dated 14th June, The parties agreed on the meaning of special damages. In the case of ARISONS TRADING & ENGINEERING CO. LTD VS. MILITARY GOVERNOR OF OGUN STATE & ORS (2009) LPELR 9

14 - 554 (SC) special damages was defined by the Supreme Court, per Ogbuagu, JSC at P. 57, paras C- F thus: "Special damages have been defined as damages of the type as the law will not infer from the nature of the act, they do not flow in the ordinary course; they are exceptional in their character and therefore, they must be claimed specially and proved strictly. See, the cases of STROMS BRUKS AKTIE BOLAG VS. HUTCHISON (1905) A.C PER LORD MACHNAGHTEN; INCAR NIG. LTD & ANOR VS. MRS. M.R. ADEGBOYE (1985) NWLR (PT. 8) 454; EKENNIA VS. NKPAKARA & 2 ORS. (1997) 5 SCNJ 90; BADMUS & ANOR VS. ABEGUNDE (1999) NWLR (PT. 627) 502; (1999) 7 SCNJ 96 and THE SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA vs. CHIEF TIEBO VII (2005) 4 SCNJ 57; (2005) 3-4 SC 137." See, also OBASUYI VS. BUSINESS VENTURES (supra) and NGILARI VS. MOTHERCAT LIMITED (1999) LPELR (SC) PP , PARAS F - D, to the effect that in a claim for special damages for loss of earnings the plaintiff must specifically plead with particulars but, also lead real and 10

15 credible evidence in proof thereof. In paragraph 5 of the Appellant's amended statement of claim, he pleaded as follows: 5. "Plaintiff's application for study leave with pay was rejected but he was granted study leave without pay which "ensures Continuity of service for pension purposes" Vide Defendant's Letter CP: 4795/54 dated 21/8/80." The particulars of the damages were pleaded covering general and special damages in paragraph 14 of the amended statement of claim, pages of the printed records of appeal. In the oral evidence of the appellant, he gave detailed evidence of the relationship between him and the respondent, his former employer before and after his study leave without pay which was approved by the respondent. The PW2 also tendered evidence as to the salary of officers in public service. The respondent challenged the appellant s claim. At the close of the trial, the learned trial judge after evaluating the evidence before the trial court, made its findings. I will hereunder reproduce parts of the findings of the trial court at pages of the printed records thus: "It is not in dispute that when the 11

16 plaintiff came back from USA he did his NYSC with the defendant who was paying the plaintiff his normal salary instead of the NYSC allowance. This salary was being taxed and the plaintiff was paid other fringe benefits as he used to get before he went on study leave. It is important to determine and settle Exhibit 'G' and 'I' which are the two letters of re absorption written by the plaintiff. There is nothing before the Court to show that Exhibit 'T' which contains the condition for re-absorption was ever received by the plaintiff. In fact the plaintiff never signed the acknowledgment form at the bottom of Exhibit 'T' As I have stated earlier, the plaintiff did sign (sic) the acknowledgment form in Exhibit 'T' and this coupled with the fact that there is no evidence that Exhibit 'T' was posted or received by the plaintiff, I have no hesitation in holding that the condition for re-absorption contained in Exhibit 'T' did not apply to the plaintiff. I also hold that the plaintiff was not aware of the re-absorption condition but wrote Exhibit 'G' and 'I' to put his name back on the defendant's pay roll. I also hold that the reabsorption of the 12

17 plaintiff should be automatic and could therefore not be subject to a rejection." Further, at page 94 of the printed records, the learned trial judge continued: "It is clear from the above that both Exhibit 'J' and 'K1' could not be regarded as letters of termination in that both did not give the statutory one month's notice or one month's salary in lieu of notice. In fact, Exhibit 'J' and 'K1' are rejection letters of the application of the plaintiff for reabsorption. I have held earlier that re-absorption of the plaintiff should be automatic and is not subject to any rejection. This means that Exhibits 'J' and 'K1' are not valid and as such they do not affect the right or fate of the plaintiff. Perhaps, I should state that Exhibit 'K' which is the letter offering the plaintiff a temporary appointment is also not valid in that you cannot offer a temporary appointment to a confirmed and pensionable staff like the plaintiff in this case. I therefore hold that the defendant corporation in writing Exhibits 'J' and 'K1" wrongfully terminated the appointment of the plaintiff." The appellant had sought special and general damages for wrongful 13

18 termination of his appointment which the learned trial judge has held to be invalid. Also, that a temporary appointment cannot be offered to a pensionable staff like the appellant and that the termination of the appellant's appointment was wrong and gave his reasons for arriving at its findings. It is noteworthy that there is no appeal by the respondent against these findings of the trial Court. The trial Court in conclusion at page 97 of the printed records held thus: "I therefore hold that the plaintiff is entitled to his salary and allowances up to the time of judgment. As stated above, I have held that the plaintiff is also entitled to Pension and gratuity. The plaintiff is therefore entitled to his salary and allowances up to the date the judgment is delivered. He is also entitled to his pension and gratuity." The learned trial judge held that the appellant's termination of appointment was invalid and that his restatement after the study leave without pay should be automatic and was not subject to any rejection. Also, that the appellant was entitled to his salaries, allowances up till the date of the judgment of the trial Court, entitled to 14

19 his pension and gratuity. It is the aspect of limiting the entitlement to the date the judgment of the trial Court is delivered that is the crux of the appeal. The reasons the trial Court gave were that there was no guarantee that the appellant would have worked till the age of sixty (60) years which is the retirement age; that the plaintiff's appointment could have been terminated, the respondent could have retired the appellant after the appellant attains forty five (45) years of age before the age of sixty (60) and that the appellant qualified for pension having worked for more than fifteen (15) years for the respondent, In my view, these reasons are speculative. I agree with the submissions of the learned counsel to the appellant that the trial Court was wrong to have refused the award of special damages based on issues that were not certain, if the appellant had continued in the respondent's employment. The Court is to decide on questions of law based on the facts of each case, not abstract and hypothetical questions of 'ifs'. In ASANYA VS. STATE (supra) at P. 465, PARA H, the Supreme Court on the duty of the Court to act on facts established before it 15

20 held that: "It is a well settled principle of the administration of justice that the Court is bound by the facts of the case established before it. Consequently, the judgment of the Court must necessarily be limited to and confined within the parameters of the facts as established." The respondent did not raise these questions of uncertainties as to what might have happened if the appellant had continued in their employment. In the case of IKENTA BEST (NIGERIA) LIMITED VS. ATTORNEY GENERAL OF RIVERS STATE (2008) LPELR (SC) the Supreme Court, per Ogbuagu, JSC in respect of whether Courts or parties are allowed to speculate held that: "... Speculation has no place in our Courts. Neither the parties nor the Court is permitted or entitled, to speculate anything." See, also, HANI AKAR ENTERPRISES LTD VS. INDO (NIG) MERCHANT BANK LTD (2010) LPELR (CA) P. 14. PARA. C, (2011) 1 NWLR (PT. 1228) P and UNITY BANK PLC VS. RAYBAM ENGINEERING LTD. (2017) LPELR (CA) P. 19. PARAS. D - F. The learned counsel to the respondent was of the view that the amount claimed was unreasonable, speculative, exaggerated and 16

21 oppressive. I am of a contrary view, considering the amount claimed and the depreciation of our currency between then and now. Even if the special damages had been awarded by the trial Court, there is nothing on record to show that the amount claimed as damages was exaggerated or inflated thus making it unreasonable. The respondent did not also make out or prove that the amount was unreasonable, exaggerated and oppressive. The appellant pleaded the particulars of the damages claimed, which was not faulted by the respondent. The appellant gave details of his computation as to how he arrived at the amount claimed as special damages, which he pleaded and supported by evidence which was not faulted, that is: his salary at G.L. 10 from January, 1987 to August, 2003 with all the fringe benefits attached as well as his gratuity till the age of 60 years when he would have retired and pension, with general damages of N30, (Thirty Thousand Naira). From the findings and opinion of the trial Court to the effect that the Appellant's employment was wrongfully terminated leading to the award of damages in part, I hold that the appellant is entitled to his 17

22 salary and entitlements for the entire period he should have been retained in the respondent's employment, that is all that he should have earned till retirement at the age of sixty (60) years. The appellant is entitled to the full award of special and general damages. In the final analysis, I allow the appeal and grant in full the special and general damages as per the appellant's claim. I award costs of N50, (Fifty Thousand Naira) to the Appellant. HAMMA AKAWU BARKA, J.C.A.: I AGREE. BOLOUKUROMO MOSES UGO, J.C.A.: I agree. 18

23 Appearances: Adebowale Kamoru Esq. with him, Mariam Pedro Esq. For Appellant(s) N.J. Inyang Esq. For Respondent(s)