The Supreme Court of Nigeria
Friday, the 6th day of July 1990
of the Court
I dismissed this appeal on the 9th day of April, 1990 and reserved the reasons for so doing to today. I now give my reasons.
was the plaintiff at the trial High Court in Ilorin and after he was non-suited
there, he appealed to the Court of Appeal, the respondent who was the
defendant also cross-appealed asking that the correct verdict of the trial
Court ought to be that of dismissal and not non-suit. The appellant’s appeal
was dismissed and the cross-appeal was allowed. The pleadings that one would
say joined the issues between the parties are very short. The statement of claim
reads as follows:
STATEMENT OF CLAIM
By a letter
from the Principal of the College acting for and on behalf of the defendant a
letter dated the 17th April, 1980 was issued to the plaintiff purportedly
terminating the plaintiffs service with the defendant, which said letter the
plaintiff hereby pleads:
was the defendant's Deputy Registrar on GL 14.
defendant's Sole Administrator's appointment had terminated on or before 15/4/80 and His
Excellency, Alhaji Adamu Atta, the Governor of Kwara State had not appointment
a new Governing Council or another Sole Administrator.
plaintiff claims as per his writ of summons, viz :
claim is for
purported termination of the plaintiff's appointment by a letter from an agent
of the defendant dated the 17th April, 1980 to the plaintiff is null and void as
the Sole Administrator's Office had terminated on or before (15/4/80) and a
Governing Council had not been set up by His Excellency the Governor of Kwara
State, Alhaji Adamu Atta and
plaintiff is entitled to his emolument until the determination of this suit and
thereafter until the plaintiff is legitimately relieved of his post and
(ii) a perpetual injunction restraining the defendant and/or its agents and/or servants from filling the post, which the plaintiff contends is not vacant.
Dated this 10th
day of June, 1982.
And against this unusually short statement of claim is a safely short
statement of defence reading as follows:
STATEMENT OF DEFENCE
SAVE AND EXCEPT as may hereinafter expressly admitted the defendant
denies each and every allegation of fact contained in the statement of claim
as if such allegations were set out seriatim and specifically traversed.
1. The defendant denies paragraphs I 2 and 3 of the statement of claim and
puts the plaintiff to the strictest proof thereof
2. In further answer to paragraphs I and 3 of the statement of claim, the
defendant avers that the plaintiff's appointment was terminated in accordance
with the Regulations Governing Conditions of Service for its senior staff and
that the plaintiff was paid 3 months salaries in lieu of notice in accordance
with the said regulations. The defendant shall rely on the said regulation at
the trial of this case.
3. The defendant further avers that the consent of either the Governing
Council or the Sole Administrator was not needed in paying the plaintiff the
said three months salaries or in terminating him since the plaintiff was not
terminated for misconduct.
4. The defendant further states that the plaintiff has since been in
gainful employment and that as at now, he is the principal and/or proprietor of
a post primary school in Offa, Kwara State, hence, he is not entitled to any
emolument from it.
5. WHEREOF the defendant prays the court to dismiss the plaintiff's case as it is frivolous. vexatious and discloses no cause of action.
Dated this 29th of April, 1983.
It is upon the meagre statement of claim traversed by statement of
defence that the appellant wanted to have his declaration that Exhibit I was
null and void and the purported termination of his appointment as Registrar of
Kwara College of Technology was of no effect. Learned trial Judge observed inter
alia as follows:
I have scrutinised all the pipers filed in this case; and upon due
reflection it seems to me that the statement of claim is so grossly inadequate
that it falls far short of the minimum practically required under Order It of
the High Court (Civil Procedure) Rules 1975. It is just too brief to be
regarded as pleadings and too deficient to he relied upon for any purpose in
this suit. It cannot be over-emphasised that evidence must be based on the
pleadings and no testimony should lie in vacuum. The plaintiff ought only to be
permitted to establish his claim against the defendant on the facts as pleaded
or borne out by the Writ of Summon and the statement of claim. I dare say that much of the facts received in
evidence in this case has no bearing or relevance to the plaintiff's pleading.
They are completely outside it as will be pointed out presently. The
Writ of Summons and the statement of claim together fail to comply with
the elementary principle of briefly describing each of the parties, neither are
there any averments relating to the appointment of the plaintiff as such.
It is indeed
necessary to allege the fact of the plaintiffs appointment by the defendant, its
date, duration and conditions as well as the plaintiffs office, status or
position at the time of his appointment. None of these was pleaded or testified
to by the plaintiff'
The trial court
found no merit in the appellant's case and non-suited him. The appellant
appealed to the Court of Appeal. and the respondent also cross-appealed asking
for the case to be dismissed rather than be non-suited. The appellant's appeal
was dismissed and the cross-appeal was allowed. Against this judgment the
appellant has appealed to this court.
three grounds of appeal which can be summarised as follows:
court of Appeal was in error in holding that because of non-pleading and
tendering of the original letter of appointment, the appellant could not give
evidence of such appointment and this main plank of his case failed.
was no legitimate authority of the respondent competent to terminate the
appointment ~'f the appellant.
receiving three months salary in lieu of notice, the appointment.
This is an
unusual case. In our High courts the best method of explaining issues between
the parties before hearing is by way of pleadings. Pleadings must contain facts,
facts only, on which a party relies for his case; the facts must be material. In
the matter of pleading it is for the plaintiff to plead sufficient material facts so that the
defendant will know the case he is to face; the it is then up to
defendant to admit or traverse those
facts. If a right is pleaded, e.g. those rights under Chapter IV of the
constitution, sufficient material facts must be pleaded to point unequivocally
that those rights have been infringed. See Ransome-Kuti
v. Attorney-General of the Federation (1985) 2N.W.L.R.(P.6) 211. Thus,
facts not pleaded go to no issue; and because parties are bound by their
pleadings, evidence received on unpleaded facts must he expunged from the
v. Kelani (1985) 3
N.W.L.R. (Pt.12) 248; A-G., Anambra State v. Onuselogu (1987)4
N.W.L.R. (Pt.66) 547,548 55].
In the trial
Court all the appellant did amounted to mere general pleading with material
facts left scanty. The result is that the respondent as defendant answered
only to what was pleaded and nothing more. I do not believe heavier burden is
placed by law on the respondent as defendant in this case. For, in all matters
it is incumbent on the person who asserts to prove and if in the pleading the
plaintiff has not made clear assertion, it does not behove
the defendant to clarify more than what he has been confronted A with. Thus even
though a party is to plead facts only and not the evidence by which those facts
are to be proved, matters such as fraud, statutory exception, defence of
laches, res ipsa loquitur, are
special matters which must be specifically pleaded because they are material
facts. Odumosu V. African Continental Bank Ltd.
(1976) 11 S.C. 261 at 269; Attorney General (Anambra) v. Onuselogu Ltd.
(1987) 4 N.W.L.R
was no evidence before the trial court that the appellant was employed by the
respondent because there is nothing in the pleading of the appellant to indicate
when he was employed, what are the terms and conditions of his employment,
what are his rights and obligations. The court of trial was just confronted with
a letter of termination without more; the plaintiff's statement of claim is
too vague and lacking in particulars not only by its brevity but also by lack of
material particulars that most of the evidence led during trial actually went to
The appellant's case had vitually collapsed at the court of first
instance and the very able judgment of the Adeniyi J., was concluded with a
generous verdict of non suit. The court of Appeal rightly set aside the non-suit
by entering a verdict of dismissal. What happened in that court is that the
appellant by the inadequate pleading and offering of inadmissible evidence woefully
failed to prove his case. It was not a matter of mere technical defect in the
case; it was the failure to prove his case. The verdict in such a case is not to
non-suit, it should have been dismissed outright.
It was for the foregoing reasons that I dismissed this appeal on 9th day
of April, 1990 and awarded
Judgment delivered by
On the 9th day of April 1990, this appeal came up for hearing before this
court. After reading the briefs of argument filed by the parties and hearing
counsel at the oral hearing, I dismissed the appeal for lack of substance and
reserved my reasons for the judgment till today.
However, before now, I had the advantage of reading in advance the draft
of the reasons for judgment just delivered by my learned brother, Belgore, J.S.C.
The claim before the High Court of Kwara State filed by the
plaintiff/appellant against the defendant/respondent was for
(a) that the purported termination of plaintiff's appointment 6 by a
letter from an agent of the defendant is null and void;
(b) that the plaintiff is entitled to his emolument until the determination
of this suit and thereafter until the plaintiff is legitimately relieved of his
(ii) a perpetual injunction restraining the defendant and/or its agents
and/or servants from filling the post which the plaintiff contends is not
The statement of claim contains 5 paragraphs and the facts pleaded are
deficient in that the letter of appointment was not pleaded. Furthermore, the
letter of appointment was not referred to or given in evidence by any of
Where a plaintiff in a matter such as this fails to plead and prove the
fact of his appointment, he is not entitled to the declaration that his
appointment subsists, neither is he entitled to his emoluments until the
determination of this suit and thereafter till he is legitimately relieved of
his appointment as claimed.
It was for the above reasons and those set out in the Reasons for Judgment
just delivered by my learned brother, Belgore, J.S.C., that I dismissed the
Judgment delivered by
This appeal was dismissed on the 9th day of April 1990 with
I have had the advantage of reading in advance the reasons for judgment
read by my learned brother Belgore, J.S.C. I entirely agree with the reasons.
By Order 10 rule 5 of the High Court (Civil Procedure) Rules, 1975 of
Kwara State applicable to this case –
5. Every pleading shall contain a statement of all the material facts on which the party pleading relies…
The appellant's cause of action was based on contract of employment. It
was absolutely essential therefore for the appellant, as plaintiff, to plead in
his statement of claim the fact that there was a contract of employment between
him and the respondent, as defendant. And furthermore, to spell out in the
statement of claim what the terms of the contract were. If this was not done
then the material facts necessary to formulate a complete cause of action had
not been averred and the statement of claim was bad - see Bruce v. Odhams Press
Ltd. (1936)1 All E.R. 287 at p.294 and Shell-BP Petroleum Development Co. of
Nigeria Ltd. & S Ors. v. M.S. Onasanya, (1976)1 All N.L.R. (Pt.1) 425 at p.429 where this court held that where an action is
founded on contract, as the present case, the plaintiff must give sufficient
particulars, in his pleading to enable the contract to be identified. If this is
not done, then the statement of claim has not disclosed a cause of action.
This is why no averment which is essential to success must be omitted. In
an action for wrongful dismissal it is necessary, therefore, to plead the
contract of employment, which is the foundation of the action, and not to leave
the fact of the existence of the contract and its terms to speculation by the
defendant and the trial Judge. Without the contract and its particulars being
pleaded by the plaintiff no evidence of the terms of the contract which has been
breached would be admissible at the trial; and this will be fatal to the action
since it will lack foundation. Shell-B P's case (supra).
It was for these and the fuller reasons contained in the reasons for judgment
read by my learned brother Belgore, J.S.C.; which I hereby adopt as mine, that I
agree on the 9th day of April, 1990 that this appeal had no merit and that it
should be dismissed.
Judgment delivered by
On the 9'h
April, 19901 dismissed the appeal of the appellant. I awarded costs assessed at
I have read the
judgment of my brother Belgore, J.S.C., in this appeal. I agree with it.
questions of law involved in the determination of this appeal B
have been well settled in
many earlier decisions in our courts. They are
What are the
essential facts necessary in a pleading in a claim for declaration that
plaintiffs appointment has not been validly terminated?
plaintiff having failed to prove his claim, defendant is entitled to judgment?
The action was
fought by the defendant entirely and properly on the basis of a defective
pleading and the judgments of the courts below were based on these grounds. The
facts of the case are very short, simple and uncontroverted. Appellant who
claimed to be the Deputy Registrar of the defendant on salary GL. 14 at the
Kwara State College of Technology, to have received a letter dated 17th April,
1980 purportedly terminating his service with the defendant. He stated in his
statement of claim that on this date, the appointment of the Sole Administrator
of the defendant had been terminated two days previously and that no new
Governing Council had been appointed. He therefore brought this action on 4th
May, 1982 claiming
purported termination of his appointment by an agent of the defendant in a
letter dated 17/4/80, is null and void.
that he is
entitled to his emolument until the determination of the suit and thereafter
until the legitimate termination of his appointment.
injunction restraining the defendant from filling his post, whilst he remained
in the defendant's employment.
filed and served a statement of defence in which all the averments in the
three-paragraph statement of claim were denied. But in addition, the defendant
pleaded the Regulations Governing the Conditions of Service of its senior staff
which are applicable to the plaintiff. It was all pleaded that defendant
terminated the appointment of plaintiff in accordance with these Regulations. It
was averred in the statement of defence that the consent of neither the sole
Administrator nor the Governing Council was necessary in paying the said three
months salary, plaintiff having been terminated for misconduct. Finally it was
pleaded that plaintiff since been gainfully employed.
In his evidence
in chief at the hearing of the case appellant tendered letter dated 17/4/80
purporting to have terminated his appointment stated and that the letter was
written by a Dr. Amode, the Principal of the defendant College. It was admitted
in evidence and marked "Exh.1". Although the Regulation governing conditions
of service was not pleaded by the plaintiff he gave evidence of it and tendered
it and it was admitted in evidence and marked Exh.2. Page 8 of "Exh.2". which
relates to Resignation and Termination of Appointment, was tendered, admitted
in evidence and marked ':Exh.2A." In
line with his pleading, plaintiff stated that at the tune of the termination of
his appointment there was neither a Governing Council, nor a Sole Administrator,
the appointment of the Sole Administrator having been terminated on 15/4/80.
Under cross-examination by learned counsel to the defendant, plaintiff admitted
he could on resignation pay the defendant salary for three months referred to
in "Exh. 1, "and
that defendant paid into his Bank Acounts his salary for three months. He
admitted that his salary was always paid into his Bank Account. Plaintiff
admitted that he was the Rector of a new school he named "Pegning Centre of
Continuing Education" founded by him. He admitted he could not have
established the school if his appointment with the defendant had not been
terminated. This was all the evidence in the case.
to the defendants rested his defence on the case of the plaintiffs, closed his
case and opted to address the court. Before the address of counsel the trial
Judge exercising powers under section 222 of the Evidence Law recalled the
Plaintiff suo motuto explain the
meaning of Grade Level 14 in his statement of claim. Plaintiff then having been
reminded that he was still on oath gave the evidence.
address, and before judgment the trial Judge exercising powers invited counsel
for the parties to address him on whether or not this was a proper case for a
non-suit. Counsel addressed the court at length, neither accepting that this was
a proper case for a non-suit.
In his judgment
wherein the learned trial Judge non-suited the parties, he found that "the
statement of claim is so grossly inadequate that it falls far short of the
minimum practically required under Order 10 of the High Court (Civil Procedure)
Rules 1975. It is just too brief to be regarded as
pleading and too deficient to
upon for any purpose in this suit.
(Italics is mine
trial Judge observed that much of the evidence in the case was not covered by
the pleadings and were completely outside it. He then went on to point out that
although it was necessary in the pleading to allege the fact of plaintiff's
appointment by the defendant, its date, duration and conditions, as well as the
plaintiff's office status or position, at the time of his appointment. He
observed that there were no such averments in the statement of claim. The
plaintiff in his oral testimony did not
refer to them. He also observed that there was no averment in the statement of
claim that the plaintiff could only be appointed or dismissed by the defendant,
the Council or the Sole Administrator. The learned trial Judge however expunged
from the records "Exhibits 2 and 2A" dealing
with the regulations governing Senior Staff and particularly appointments and
termination thereof, on the grounds that they are inadmissible having not been
pleaded by the plaintiff. He then came to the following conclusion:
With the above two exhibits discountenanced, the substratum of the plaintiff's case is shaken; and it ought to collapse since there are no more facts on which his case can be grounded in the absence of these exhibits before the legal authorities relied upon, particularly the case of Skenconsult Nigeria Ltd. & Anor. v. D. S. Ukey (1981)1 S.C.6 at p.9.
Learned trial Judge recognised the failure of the plaintiff to allege and
prove any contract of service or agreement between him and the defendant or any
letter of appointment, which should constitute the-foundation of his case
without proof of which he must fail. He observed that even if Exhibits 2 B and 2A were to be admitted, plaintiff would still have failed in his
claim because of his failure to establish any contract of service which would
enable him to challenge the validity of Exh.1,
i.e. the letter of termination of his appointment.
After finding as above stated, the learned trial Judge held that
"the interest of justice is better served by non-suiting the plaintiff in
the peculiar circumstances of the case." In his view…..considering the case as a whole, that the plaintiff has not failed
intoto in the proof of his case. At the same time, it appears unconscionable to
allow the defendant to take advantage of the technicalities and obtain
judgment. (italics mine).
Both parties appealed against the judgment of the learned trial Judge.
The court of Appeal dismissed the appeal of the plaintiff/appellant and allowed
the appeal of the defendant.
On appeal, plaintiff/appellant in ground 2 challenged the criticisms of
the trial Judge of his pleadings and evidence at the trial, and in ground 3 the
expunging of the Exhibits 2 and 2A from the records. Ground 1 is the general
On his part the defendant/appellant, filed four grounds of appeal. E Ground 1 challenged the non-suit on the ground that the action ought to
have been dismissed intoto. Ground 2 which is identical with plaintiff's ground
3 was an appeal against the expunging of Exhibits 2 and 2A. Ground 3 challenged
the finding of the trial Judge that the payment of three month's salary into
plaintiff's account was not proper. Ground 4 challenged the trial judge's
expunging of the evidence that plaintiff was the Rector of Regnem Centre of
Continuing Education as wrong in law.
Considering together the plaintiffs ground 3 and the defendant's ground
2, the Court of Appeal agreed that the learned trial Judge was wrong to have
expunged "Exhibits 2 and 2A."
It was held that the exhibits were admissible although tendered by the
plaintiff who did not plead them. The court declared,
In effect when a matter is made an issue by either party the opponent is entitled to lead evidence on the point. Indeed the defendant rested its case on that of the plaintiff because the plaintiff had tendered Exhibits 2 and 2A and admitted under cross-examination facts canvassed in the statement of defence. The learned trial Judge was therefore palpably wrong to have expunged Exhibits 2 and 2A from the records.
I entirely endorse this dictum as a correct statement of the law.
With respect to defendant's ground 4, the court of Appeal, held that
although plaintiff did not plead that he was Rector of Regnem Centre for Continuing
Education, the trial Judge was wrong to have expunged that evidence led at the
trial because the defendant pleaded it in paragraph 4 of the statement of
defence and plaintiff admitted the fact under cross-examination. Accordingly
ground 4 of the defendant ground of appeal succeeds, plaintiffs ground 2 raised
the question of the sufficiency of his pleading in relation to his claim. In
determining this ground the Court of Appeal observed that the substantive law
relating to the plaintiff's case is that of contract of service and that when a
party complains of a wrongful dismissal or that the termination of his
appointment is null and void, he is saying in effect that there is a breach of
contract of service.
Court of Appeal observed that the statement of claim is devoid of necessary
material facts, and that there is nothing to guide the court as to whether the
contract would have lawfully terminated before judgment to warrant the court
ordering a perpetual injunction restraining the defendant from filling the
vacant post. Accordingly, the contract of service or letter of appointment ought
to have been pleaded and evidence led in support. The argument of Mr. Ijaodola
for the plaintiff/appellant that it was not necessary to plead the letter of
appointment on the ground that it was not material to the claim, was rejected.
The court considered the contract of service as material, and accepted the
submission of Mr. Olanipekun for the defendant that the failure of the plaintiff
to plead and tender his contract of service amounts to an admission, going by
section 148(d) of the Evidence Act, that the issuance of Exhibit 1 was proper.
On this, the Court of Appeal dismissed the appeal of the plaintiff.
Now turning to the question of non-suit which was ground 1 of the grounds
of appeal of the defendant, the court referred to the error of the trial Judge
in expunging Exhibits 2 and 2A and rejecting the evidence of the plaintiff that
he is the Rector of an Educational Institution. The Court of Appeal also
considered and rejected the finding that the payment of three months salary into
plaintiff's account was improper. The court of Appeal held that by implication
the acceptance of the three month's salary without objection was an acceptance
of the termination of his appointment. The court of Appeal then came to the
There is no doubt that if the learned trial Judge had not wrongly expunged Exhibits 2 and 2A and rejected the evidence that the plaintiff had established a college and had not erroneously held that the three months salary in lieu of notice was not paid in the proper way, he would have come to the irresistible conclusion that the plaintiff had accepted the termination of his appointment and would have dismissed the suit. This settles this appeal.
I entirely agree. Thus the Appeal of the defendant against the non-suit
by the trial Judge was allowed. The judgment of the trial Judge was set aside.
An order of dismissal of the suit of the plaintiff was entered.
Plaintiff has further appealed to this court. He relied on three grounds
of appeal. The grounds excluding particulars are as follows –
1. The learned Justices of the Court of Appeal erred and misdirected
themselves in law in holding that the non-pleading and non-tendering of the
letter of appointment of the plaintiff/appellant was fatal to the
2. The learned Justices of the Court of Appeal erred and misdirected
themselves in law in dismissing the plaintiff/appellant's case when it was clear
that there was no legitimate authority which could terminate the
3. The learned Justices. of the court of Appeal erred and misdirected
themselves in law in holding that the receiving of three month's salary in
lieu of notice was fatal to the plaintiff/appellant's case.
Learned counsel filed and served their briefs of argument in this appeal.
They relied on their briefs in oral argument before us. I have found the brief
filed by counsel to the appellant far from being useful. The formulation of the
issues for determination does not relate properly to the grounds of appeal. It
is more disturbing in the fact that the argument in the brief of argument are so
skeletal and concise that the real argument are lost in the obscurity of the
terseness. However, I set out hereunder the four issues for determination as
formulated by learned counsel to the appellant.
(i) is it in every contract of service case that the plaintiff must
plead and tender his letter of appointment?
(ii) in the case in hand was the letter of appointment of the plaintiff/appellant a material fact which must be pleaded
before he can be entitled to the declaration he sought from the trial Court?
in the case in
hand whose duty it is to show that the plaintiffs appointment was terminated
in accordance with the terms of his employment?
(iv) could the receipt of 3 month's salary legalise the null termination.
Although there are
four issues as against three grounds of appeal, none of
the issues relates to ground 2. It is also not clear to what the third issue
The first and second issues can be taken together in relation to the first
ground of appeal.
I prefer the formulation of the issues by learned counsel to the
respondents whose three issues are as follows –
2.1. Whether the plaintiffs claim as tersely adumbrated in the
statement of claim is sufficient to ground any judgment or relief in his
favour, particularly the type of reliefs claimed by him in his statement of
claim at page 3 lines 19-30, or,
2.2. Whether it is necessary in this type of case for the plaintiff to
tender his letter of appointment by the defendant.
2.3. Whether the payment of 3 month's salaries to the plaintiff by the defendant was in accordance with the Regulations Governing the conditions of service of the plaintiff with the defendant.
Even in respect of respondent's formulation of the issues for
determination, I do not think issue 2.3, formulated to meet the issue raised by
ground 3 the grounds of appeal has accentuated and sufficiently identified the
involved in that ground. The issue in that ground is whether the acceptance by
the plaintiff of three months' salary in lieu of notice by implication, is an
acceptance of his termination of appointment by the defendant.
It is not whether the payment of 3 months' salary is in compliance with
the regulations governing conditions of service. That is another
consideration. Thus issue 2.3 is hereby so formulated. I shall in this judgment
adopt the formulation of the issues by counsel to the respondent as modified by
It is convenient to consider issues 2.1, and 2.2. together because they
raise the same problems and are governed by the same law. Concisely stated, they
both involve the issue of pleading which is fundamental to the establishment of
a claim before the court. Learned counsel to the appellant has in his argument
both in the court below and before us maintained that the action before the
court is not one in respect of breach of terms and conditions of service. It
is also not an action in wrongful termination. It is what he called a null
termination. He has therefore argued because the termination of the
appointment of plaintiff is not a fact in issue between the parties, the terms
and conditions of service, the letter of appointment are irrelevant, and not
material to the action. It is therefore not necessary to plead them, give
evidence or tender them at the trial. Counsel submitted that there is no dispute
that appellant was given 3 months notice by the appropriate authority. He
submitted that the only issue between the parties is whether there was a
legitimate authority authorising the letter of termination of appointment of the
appellant. There was evidence that there was no Governing Council or Sole
Administrator to authorise the writing of the letter.
There seems to be a fundamental misconception about the real nature of
the action before the court and the purpose of pleadings. Learned counsel would
seem to have ignored the fact that paragraph 1 of the statement of defence
denied all his averments and put him to strict proof of all of them. Thus issues
were joined in respect of all these averments, and the onus to prove them is on
It is pertinent to refer to what counsel to the appellant refers to as
plaintiffs cause of action. He calls it "null
termination." Whatever that may mean to counsel, he was seeking a
declaration that he is still in the employment of the defendant College of
Technology, and that the letter of termination of appointment dated 17/4/80 did
not have the legal effect intended because there was no Governing Council or
Sole Administrator to authorise the writing of such letter. In other words,
counsel is contending that plaintiff is an employee of the defendant, and
implies that he has a letter of appointment to that effect, and that his
appointment can only be terminated by the Governing Council or the Sole
administrator on the exercise of powers conferred on any other person on their
or his behalf. Thus his contention is that since his appointment with the
defendant has not been validly determined by the invalid exercise of the
powers of the relevant authority, it should be declared that he is still an
employee of the defendant. Accordingly, the defendant should be restrained by
injunction from filling his post which the purported invalid termination of
appointment had rendered apparently vacant.
The question therefore is whether there is any averment in his
(a) He is an employee of the defendant
(b) How was he appointed and what are the terms and conditions of his
(c) Who can appoint him and who can remove him;
(d) What are the circumstances under which his appointment can be
(e) That his appointment can only be terminated by the Governing Council
or Sole Administrator of the defendant college.
Those are the material facts required to be pleaded where plaintiff is
seeking a declaration that the termination of his appointment is a nullity.
All counsel to the appellant did in this case in his statement of claim
was to allege that there was no authority for the exercise of the power to
his appointment. There was no averment in his statement of claim to show that he
held an appointment with the defendant, the terms and conditions of that
appointment, and the circumstances under which his appointment can be
determined by the defendant or any person delegated to do so. I agree with Mr.
Olanipekun for the respondents and the Court of Appeal that these are essential
particulars of appellant's pleading without which the plaintiff's claim cannot
It has often been stated and well settled that the main function of pleadings
is to ascertain with as much certainty as possible the various matters actually
in dispute between the parties and to isolate those in which there is agreement
- See Oduka & Ors. v. Kasuma & Anor.
(1968) N.M.L.R. 28 at 31. Hence, a pleading is expected to be sufficient,
comprehensive and accurate as to the cause of action - See James V. Mid Motors
Nigeria Co. Ltd. (1978) 11 & 12 S.C. 31 at 63. It is well settled that a
party is not entitled to lead evidence in respect of matters not pleaded - See
Ajoke V. Yesufu Oba & Anor. (1962)1 All NLR. 73. He can therefore not depart
from his pleadings and is confined to lead evidence in respect of matters
pleaded - See Ogiamien V. Ogiamien (1967)
N.M.L.R. 245, NIPC Ltd. V.
Thompson Organisation Lid. & Ors. (1969)
N.M.L.R. 99. Any evidence which is not supported by the pleadings go to no
issue. - See George V. Dominion Flour Mills Ltd. (1963)1 All NLR. 71. But a party can lead evidence in support
of matters in his opponents pleading - See Adenuga v. Lagos Town Council
(1950)13 W.A.C.A. 125.
Examination of the statement of claim of the appellant discloses obvious
omissions in material particulars. I have already pointed them out in this
judgment. Learned counsel has argued that the proper authority which can
authorise the termination of appellant's appointment was not in existence. This
was not the pleading. Paragraph 3 of the statement of claim merely pleaded that
"the defendant's Sole Administrator's appointment had terminated on or
before 15/4/80 and His Excellency, AIhaji Adamu Atta, the Governor of Kwara
State had not appointed a new Governing Council or another Sole
Administrator." This is patently inadequate and does not contain
particulars as to the terms, conditions and circumstances of the exercise of the
authority to terminate the appointment of the appellant. In the absence of any
averment in the statement of claim that appellant was appointed by the Governing
Council or the Sole Administrator of the defendant, it is not easy to appreciate
the merit of the contention that they can or cannot terminate his appointment.
It was the submission of learned counsel to the appellant that since the
termination of the appellant's employment with the defendant was a nullity, as
he claims, his letter of appointment by the defendant is not a material fact to
be pleaded; neither is it necessary to tender it. It was submitted further that
there was no dispute, and in fact the parties are agreed that appellant was duly
appointed to his post and that he was entitled to be given 3 months notice of
termination of appointment or salary in lieu of such notice. Learned counsel
finally submitted that whether there is a valid termination of appointment is
one of law. It can never be found in appellant's letter of appointment or
conditions of service.
It seems clear to me that appellant has brought this action for the purpose
of ascertaining and determining his rights to remain an employee of the
defendant. The point of law which falls for determination is whether his
contract of service with the defendant College of Technology has been
with by someone who has no authority to do so. In the circumstance it is
difficult to conceive how the determination whether appellant is an employee of
the defendant College of Technology and therefore holds its letter of
appointment will not arise. If be is an employee how did he come to be, by a
contract of employment or oral agreement? Are there any rules governing his
employment? If any, what is the nature of the contract, permanent
establishment or temporary? Whether they contain conditions for his termination.
It is certainly not correct to argue as counsel to the appellant has done that
the fact that appellant is in the employment of the defendant was not in
dispute. Similarly not correct is the contention that it is not in dispute
that appellant is entitled on termination of appointment to be given three
months' salary in lieu of notice.
The law is The law is that
only proof of admitted facts are dispensed with. And this only when parties
formally agreed about a particular matter either in their pleadings or
otherwise. - See Okparaeke of Ndiakaerne & Ors. v. Egbuonu & Ors. (1941) 7 W.A.C.A. 53. In the instant case the facts claimed to
have been admitted were not pleaded. There was no basis therefore for assuming
that they have been admitted.
The aim of the declaration being to ascertain and determine the right of F appellant to remain an employee of the defendant, the
letter of appointment of appellant is a sine qua non of his pleading. The declaration sought cannot be granted in
vacuo. It must be granted in
relation to his employment. There can be no termination unless the appointment
terminated was an appointment by the person or authority terminating. The
letter of appointment is undoubtedly the creator of the right sought to be
declared. - See Vine V. National Dock Labour Board (1957) A.C. 488; Ewarami v.
A.C.B. Ltd. (1978) 4.S.C. 99. It is not irrelevant to the declaration sought as
submitted by learned counsel to the appellant. It is crucial and indispensable.
Appellant has asked for a perpetual injunction restraining the defendant from
filling the post without establishing that he was formally appointed to that
post. I do not think he is entitled to the injunction sought having not
established that he has a legal right to the post. It is a fundamental rule that
the court will only grant an injunction only to support a legal right. Where the
plaintiff has no legal right recognised by the courts, there is no power to
grant an injunction. Plaintiff seeking an injunction must prove that his legal
right has been infringed. It seems to me in the instant case unarguable that
appellant has not established that he has any legal right to the employment from
which he A was terminated. He is therefore not entitled to the injunction - See
Montgomery v. Montgomery (1965) p.46. (See 1(1979) Rules of Supreme Court of
England at 470).
I now turn to the third issue, that is, the implication of appellant's acceptance
of the three months' salary in hue of notice on his termination of appointment,
learned counsel to the appellant has argued that the acceptance of the three
months' salary had no “legalising effect on the null termination of the
plaintiff's appointment." He relied on the cases of Skenconsult Nig. Ltd.
&Anor. V. G.S. Ukey(1981) 1 S.C.6
and Macfoy v. U.A.C. Ltd. (1962)
A.C. 152 to the submission that
“a null act is void and cannot be built upon." In other words the act of
the defendant terminating appellant's appointment is a void act which could
not be built upon by the acceptance of the three months' salary.
It seems to me learned counsel to the appellant has misunderstood the
true legal position. His contention is premised and predicated on the argument
of a vacancy in the Governing Council of the defendant or the appointment of a
Sole Administrator. In addition to the fact that the positions and powers of
these institutions and person were not pleaded, appellant who had the onus of
proving that the office is vacant has failed to discharge the burden by failing
to lead the evidence. The presumption of continuance operates in favour of the
appointees continuing. - See Benson v. Onitiri (1960) 5 FSC. 69;  SCNLR 177; S. 149 (2) of the Evidence
Act. The presumption of regularity of public acts operates in favour of the
defendant that the letter Exh.1 was written on the direction of a competent
body. No evidence to the contrary has been shown - See S.149(c).
Learned counsel to the respondents submitted quite rightly that it was
averred in paragraph 2 of the defendant's statement of defence, that appellant's
appointment was properly and validly terminated in accordance with the
provisions of the regulations Governing Conditions of Service of its Senior
Staff. This Regulation was tendered, admitted and marked Exhibit 2. F Exh.2A, i.e. page 3 of Exh.2, prescribed the conditions for termination
of appointment for conduct other than misconduct. It provides for the giving of
three months notice, or three months' salary in lieu of such notice. The provision
applies to Senior Staff leaving the employment of the defendant. This evidence
was part of the case of the appellant. He admitted he was paid three months'
salary in lieu of notice as provided in Exh.2A. Thus conceding for the purpose
of this argument that appellant has a contract of employment with the defendant,
that contract was validly and properly determined by appellant's acceptance of
its determination, i.e. the acceptance of the three months salary paid to him in
lieu of notice. - See Dr. 0. Ajolore v. Kwara State College of Technology
(1986) 2 S.C. 374. If appellant had rejected the three months' salary in
lieu of notice, the unilateral repudiation of his contract of service with the
defendant by the appellant would not have operated to determine the contract -
See Olaniyan & Ors. v. University of Lagos (1985) 2 N. W. L. R. (Pt.9) 599
at p.683. His conduct rendered the determination mutual.
There is no doubt that in this case appellant did not in his statement of
claim plead the material facts required for a declaration that his contract of service with the defendant
has not been validly determined. Having failed to plead the material facts,
appellant is not entitled to judgment. On the pleadings in this case the
appointment of appellant was validly determined in accordance with the
regulations governing his appointment. All the claims of appellant totally fail.
I am therefore satisfied on the reasons given herein that the court of Appeal
was right in dismissing the appeal of the appellant. The action ought not to
have been brought in the first instance. These are my reasons for dismissing
this appeal on the 9th April, 1990.
Judgment delivered by
On the 9th of April, 1990, I dismissed this appeal
and postponed my reasons for my judgment till to-day.
Having had a preview of the reasons for judgment just delivered by my
learned brother, Belgore J S.C., I entirely agree with him. There is very little
I can usefully add.
All I need to say is that it is a case which is dismally devoid of merit
and the plaintiff's pleading in the statement of claim offended all the rules.
In the end it failed to plead a complete cause of action.
For the above reasons and the fuller reasons contained in the reasons for
judgment given by my learned brother, Belgore, J.S.C., I dismissed the appeal
summarily. I have now given my reasons for so doing.