Parties are bound by terms of their contractual agreement (1)

IN THE COURT OF APPEAL OF NIGERIA

IN THE  LAGOS JUDICIAL DIVISION   

HOLDEN AT LAGOS

ON WEDNESDAY THE 4TH DAY OF FEBRUARY, 2015

BEFORE THEIR LORDSHIPS:

U. I. NDUKWE-ANYANWUU                 JUSTICE, COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI     JUSTICE, COURT OF APPEAL

ABIMBOLA ASARUGUE

 OBASEKI-ADEJUMO                                JUSTICE, COURT OF APPEAL 

CA/L/563/2010

                                                     BETWEEN

AL-BISHAK  —————-           APPELLANT

                                               AND

NATIONAL PRODUCTIVITY CENTRE                

MINISTER OF LABOUR AND PRODUCTIVITY   RESPONDENT

On the premise and given the established principle of law that parties are bound by the terms of their contractual agreement which courts are also enjoined to give effect to. It follows that Exhibit P1 which is the contract of employment between the Appellant and the 1st Respondent must be followed to the letter except there is proof of illegality or fraud. So held the Court of Appeal, Holden at Lagos in a unanimous leading judgment delivered by his lordship, Samuel Chukwudumebi Oseji (JCA) his learned brothers U. I. Ndukwe-Anyanwuu  and Abimbola Asarugue Obaseki-Adejumo (JJCA), concurring while allowing the Appellant’s appeal in part.

The Appellant was represented by Abubakar Shamsudeen while Chris Okeke for the 1st Respondent and Charles Edeki for the 2nd Respondent.

The facts are as contained in the body of the judgment.

    The Appellant herein had as Plaintiff in the lower court commenced this suit but way of originating summons against the two defendants (now 1st and 2nd Respondents). The said originating summons and the Affidavit in Support are dated 25-6-1996.

    This was substituted with an amended writ of summons and statement of claim dated 18/7/2005 wherein the Appellant as plaintiff sought the   following reliefs against the defendants (now respondents) jointly and severally:

    Whereof the plaintiff claims against the Defendants jointly and severally the following:

A declaration that the letter of the 1st Defendant Ref no: ML/NPC/Aa/478/C/1/273 and dated 27th May, 1996 purporting to terminate the plaintiff’s employment is null and void as the said letter is contrary to the provisions of the Federal Government Civil Service Rules, particularly Rules 04104, 04107, and 04201;

A declaration that the purported termination of the plaintiff’s employment at the National Productivity Centre is unlawful, invalid and unconstitutional as the plaintiff was not given a fair hearing as required by the Federal Government Civil Service Rules;

A declaration that the plaintiff is still an Assistant Director (Information Services and Publications) in the employment of the National Productivity centre and consequently entitled to the normal salaries entitlement and benefits attaching to that office from 27th May, 1996 up till the date of judgment;

A declaration that the plaintiff is entitled to the possession and the continued use and occupation of his official quarters situate at flat 8, LSDPC Executive/Shopping Complex, Gbaja Street, Surulere, Lagos his purported termination being null and void as it is contrary to the Civil Service Rules and the Rules of natural justice;

A consequent declaration that the defendants by themselves and/or their servants or agents or acting in any manner whatsoever are not entitled to forcibly or illegally eject the plaintiff from the premises at flat 8, LSDPC Executive/Shopping Complex, Gbaja Street, Surulere, Lagos.

An order compelling the defendants to pay the plaintiff all his arrears of salaries and or emoluments from the time of his purported dismissal up till date of judgment;

Cost of litigation at N500, 00.00 (Five Hundred Thousand Naira) Only.

    In a nutshell, the fasts leading to the institution of the action was that the appellant was employed on probation by the 1st respondent as an Assistant Director Grade level 15 vide a letter of appointment dated 2-9-91. The said letter contain the terms of the employment. However, the said appointment was terminated by a letter dated 27-5-1996 on a number of grounds which includes acts of misconduct, insubordination, poor track-record of quarreling with all grade of colleagues at work. Upon receipt of the said letter of termination the appellant wrote a petition to the 2nd Respondent and the secretary to the Government of the federation and Head of service and having received on reprieve he brought this action.

    At the hearing the appellant was the sole witness while the 1st Respondent called one witness in defence. The 2nd Respondent did not call any witness to give evidence in support of its pleadings but only relied on the evidence of the 1st Respondent.

At the conclusion of hearing, written addresses were ordered, filed and serve by the parties who adopted same on the 2-12-2009. 

    In judgment delivered by Lambo Akanbi J. of the Federal High Court, Lagos Division on 27-1-2010, the appellant’s claim was held to succeed only to the extent that his appointment was wrongly terminated and as such entitled to damages assessed as one month salary in lieu of notice while the claim against the 2nd Respondent was dismissed for disclosing no cause of action against it.

Being aggrieved with the said judgment, the appellant filed a Notice of Appeal date 26-4-2010 and it has seven grounds appeal.

Whether having found by the learned trial judge that the parties intended or desired that their relationship be governed by the Federation Service (sic) Rules, 

the learned trial judge was right in not giving credence to the intention of the parties before it and if the reliance on the case of Okomu Oil Palm Co. Vs lserehienrhien (2001) 6 NWLR (Pt. 710) 660 by the learned trial judge was appropriate in the circumstance of this appeal?

 Whether there is sufficient evidence before the learned trial judge that the employment relationship between the appellant and the 1st Respondent is regulated by the provisions of the employment of the appellant with statutory flavour and if the learned trial judge was right to have held otherwise.

Whether in view of the pleadings and the evidence before the court, in the learned trial judge was correct in dismissing the appellant’s action against the 2nd Defendant on the ground as found by the  learned trial judge, that no reasonable cause of action was disclosed against the 2nd Defendant.

Whether having found that the termination of the appointment of the Appellant was wrongful, the learned trial judge was correct in law to have awarded damages of one month’s salary in favour of the Appellant and if the learned trial judge is entitled to consider the provisions of section 16 of the National Productivity Act No. 7 of 1987 which is in pari materia with section 16 of the National Productivity Act CAP N70 LFN, 2004 in the award of damages payable to the Appellant.

In the 1st Respondent’s brief of argument one issue was distilled for determination, to wit: Whether the Appellant’s employment was governed by Exhibit P1 and thereof properly terminated by the 1st Respondent?

Two issues were formulated for determination in the 2nd Respondent’s brief of argument as follows:

As a third party to the contract of employment, whether a legally enforceable relief has been sought against the 2nd Respondent?

Whether at all materials times relevant to this suit the 2nd Respondent acted within the powers allowed by statute creating the 1st Respondent?

    As earlier indicated the appellant filed a Notice of Preliminary Objection challenging the sole issue raised in the 1st Respondent’s brief on the ground that it is not derived from any of the grounds of appeals filed by the appellant.

    The 1st Respondent’s brief was filed on the 28/12/2012 and it has a sole issue for determination which reads thus: Whether the Appellant’s employment was governed by Exhibit P1 and thereof properly terminated by the 1st Respondent? (All the grounds of Appeal).

    I however look askance at the approach adopted by the appellant in challenging the said issue on the basis that it is not derived from any of the grounds of appeal. To my mind, coming by way of a preliminary objection is out of place, given that the 1st Respondent having filed and served its brief of argument will have no other opportunity to respond or react to the said Notice of Preliminary Objection, moreso that the Appellant’s challenge is contained in his reply to the 1st Respondent’s brief of argument. This no doubt will create a room for complaint against the 1st Respondent’s right to fair hearing. It is my humble view that the proper approach would have been to simply raise it as a point in the Appellant’s reply brief and leave it to the court to investigate and decide whether or not the issue in question was derived from any of the grounds of appeal.

    An issue for determination in an appeal should be based on a ground or grounds of appeal. Where an issue does not have direct bearing with any of the grounds of appeal, it will be discountenanced. See Emenike v PDP (2012) NWLR (Pt. 1215) 556; LIASU vs Salau Supra and Akere v Governor of Oyo State (20120 12 NWLR (pt. 314) 240.

    In the instant case, I have carefully perused the seven grounds of appeal in the Appellant’s Notice of Appeal at page 478 to 483 of the Record vis a vis the sole issue raised in the 1st Respondent’s brief of argument and I cannot but disagree with the contention of the Appellant that it is not derived from any of the seven grounds of appeal.  Find that the said issue encapsulates grounds of appeal. What is more, grounds 1-4 of the Appellants grounds of appeal. What is more, grounds 1 to 5 and 7 were not grounds couched by the appellant himself but quotations from various portions of the judgment of the lower court for which the appellant felt the learned trial judge erred in law to have so held. To my mind therefore the 1st Respondent is on firm grounds with the sole issue raised for determination in its brief of argument having been found to have derived from grounds 1 to 4 of the Appellants’ Notice of Appeal.

    Interestingly, the appellant also in his reply to the 2nd Respondent’s brief complained that the two issues raised in the said 2nd Respondent’s brief did not flow from the appellant’s grounds of appeal.

I will now address the appellant’s complain with regard to the competence of the two issues formulated for determination in the 2nd Respondent’s brief.

    This time around the Appellant adopted the right approach by raising the point in his reply to the 2nd Respondent’s brief, rather than by way of Notice preliminary Objection as was done in the case of the 1st Respondent.

    Incidentally, the 2nd respondent did not specify any of the grounds of appeal where the two issues so formulated are derived from. The Supreme Court has most times reiterated the need to indicate the ground or grounds of appeal from which an issue for determination is derived. See NIGERIAN PORTS PLC VS. B.P. PTE. LTD (2012) 18 NWLR (PT. 1333) 44 AT 480 nonetheless after comparing the two issues in the grounds of appeal, I am of the firm of view that the two issues as raised in the 2nd Respondent’s brief of argument are not derived from the appellant’s grounds of appeal.

In the consideration of this appeal I am minded however to adopt the four issues formulated for determination in the appellant’s brief of argument.

ISSUE 1

    Dwelling on this issue, learned counsel for the Appellant referred to a portion of the judgment of the lower court at page 474 of the Record to submit that in the absence of illegality it is duty of the court to give effect to the intention of the parties evidenced from any contractual relationship vide NWOBI VS ANUKAM (2000) FWLR (PT.18) 323 AT 336 AND TOTAL (NIG0 PLC VS MORKAH 92003) FWLR (PT.1480 1343 AT 1362.

    He added that having found correctly that the intention of the appellant and the Respondent was that their relationship was intended to be regulated by the Federal Civil Service Rules, the lower Court erred in not giving effect to its findings by wrongly relying on the case of OKOMU OIL PALM CO. LTD VS ISERHIENRHIEN (2001) 6 NWLR (PT.710) 660 AT 874 because the facts in OKOMU’S case are different from the facts of the instant case and therefore inapplicable to the facts and circumstances of the case.