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In The Supreme Court of Nigeria

On Friday , the 18th day of May, 1990

Suit No 190/1989

 

Before Their Lordships

 

Andrews Otutu  Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modigbo Alfa Belgore

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

  

Between

 

Federal Capital Development Authority

.......

Appellant

 

And

 

Alhaji Musa Naibi

.......

Respondent

 

 

Judgement of the Court

Delivered by

Augustine Nnamani.  J.S.C

 

In this suit which originated in the High court of the Federal capital Territory, ABUJA, the respondent as plaintiff sued the appellant as defendant claiming the following reliefs:

 

(i)     A declaration that the purported termination of his appointment as a Principal Quantity Surveyor with the defendant vide letter reference No. Pc.187190 dated 25th day of March, 1986 is null and void.

 

(ii)    A declaration that as a public office holder he is entitled to remain in the defendant's employment until he attains the statutory retirement age of 60 years.

 

(iii)   A declaration that he is still an officer of Federal capital Develop­ment Authority Abuja and is entitled to his salaries as Principal Quantity Surveyor, all the allowances and privileges attached to it from 25th day of March, 1987 until he attains the age of 60 years.

(iv)   An order that he be paid all salaries and allowances as Principal Quantity Surveyor until he attains the retirement age of 60 years in lump sum as damages, subject to payment of court fees.

 

Pleadings were ordered, filed and exchanged. After a trial in which the respondent gave evidence but the appellant offered no evidence, Onejeme, J. gave judgment in favour of the respondent and granted him all his reliefs. The appellant appealed to the Court of Appeal which dismissed its appeal although it amended the reliefs which had been granted by the High Court.

 

The appellant then appealed to this court.

 

The facts of this case are short and are really not in dispute. On 23rd July, 1979, the appellant herein appointed the respondent a Quantity Surveyor vide a letter of appointment of that date which letter was tendered in these proceedings as Exhibit 1. The terms and conditions of the appointment were stipulated in Exhibit 1 particularly paragraph 5 therein. The respondent accepted the said appointment on these terms and conditions. He was subsequently promoted by the appellant to Principal Quantity Surveyor. Following some accusations of fraud to which I shall make reference later, the respondent's appointment was terminated by a letter reference No. PC. I 87/90 dated 25th March, 1986. The respondent was by the said letter given a month's salary in lieu of notice in accordance with paragraph 5 of the contract of service referred to earlier. That letter was tendered in the proceedings as Exhibit 3. It is also pertinent for purposes of this judgment to refer to Exhibits 5 and 6, being letters written to the appellant by the Public Complaints Commission and its reply thereto. I shall deal with these two letters later on.

 

It is equally essential to set down some paragraphs of the parties pleadings to underline the matters which were before the trial court. In paragraphs 3, 4, 5, 6, 8, 9 and 10 the respondent averred as follows:-

 

(3)    By a letter No. PF.1233/6 dated the 23rd day of July 1979 the defendant agreed to employ the plaintiff who accepted to serve the defendant as a Quantity Surveyor. The plaintiff pleads his letter of appointment and shall at the trial rely on the said letter.

 

(4)    Plaintiff avers that by another letter FCDA/55/S.5/SSP/14/5 the defendant promoted the plaintiff to the post of a Principal Quantity Surveyor effective from the 1st day of February 1985. Plaintiff pleads the said letter dated 6/2/85 and shall at the trial rely on it.

(5)    Plaintiff contends that by his agreement with the defendant his em­ployment was governed by the Civil Service Rules, the Pensions Act and the 1979 Constitution of Nigeria.

 

(6)    On breach of the said agreement, the defendant by a letter PC. 187/90 and dated 25/3/86, wrongfully determined the said agreement and terminated plaintiff from his employment. Plaintiff shall at the trial rely on the said letter.

 

(8)    Consequent to the facts in paragraph 7 above plaintiff avers that the defendant sent a reply to the Chief Complaints Commissioner by a letter No. PC. 187/99 dated 9/5/86 alleging some criminalities against the plaintiff. Plaintiff shall at the trial rely on the said letter and hereby give defendant notice to produce the said letter.

 

(9)    Plaintiff contends that he was never committed any criminal offence, but that sometime in 1985 the defendant maliciously caused plaintiff to be prosecuted at the Chief Magistrates Court, Abuja.

 

The relevant averments of the defendant/appellant in its statement of defence were as follows:-

(2)     The defendant admits paragraphs 1, 2, 3 and 4 of the plaintiff's statement of claim.

 

(3)    The defendant denies paragraphs 5 and 6 of the statement of claim and puts the plaintiff to the strictest proof of their contents thereof.

 

(4)    The defendant admits paragraphs 7 and 8 of the statement of claim.

 

(5)    The defendant denies paragraphs 9 of the statement of claim .

 

(10)  The defendant says that the termination is in line with Decree No. 17 of 1984 and will rely on the said Decree and relevant approval of the authority.

 

These were clearly the matters on which the parties joined issue at the trial court. I propose to deal later with the issue of the abandonment of the pleadings as it formed an important contention in the appeal in this court.

 

In her judgment to which reference was made earlier, first, Onejeme, J. by a combination of Sections 274(1)(a) and 277 of the 1979 Constitution of Nigeria and Decree No.6 of 1976 which set up the Federal Capital Develop­ment Authority, held that the respondent is a public officer. This much was not disputed by the appellant before this court. Replying to the respondent's counsel's submission that since the Civil Service Rules applied to the respondent, he should have been heard before being removed, the learned trial Judge held as follows referring to Exhibit 1:-

 

By paragraph 5 (i.e. of Exhibit 1) it is clearly stated that each party has a right to terminate the contract at any time either by giving a month's notice in writing or payment of one month's salary in lieu of notice unless the plaintiff is dismissed. There is nothing on the face of paragraph 5 Exhibit 1 which implies that before the employer exercises such right he must show cause that is, by first informing the employee and then afford him an opportunity to make representation. To do so would amount to introducing extraneous matter into a simple worded agreement willingly entered into by the parties which they never intended to be bound by. It is not the duty of the court to enter into agreement for parties in a suit but to interpret that which they present before it in a simple clear language. It is my view that where a special procedure has been laid down for the removal of a public officer the employer must adhere strictly to the laid down rules in removing the officer.

After quoting with approval the views of Wheeler, C.J., in Oguike V. Nigerian Steel Development Authority (1976) N.N.L.R. 123, she concluded,

 

For that reason, I hold that the plaintiff's employment could be ter­minated by one month's notice in writing or payment of a month's salary in lieu of notice without first being given opportunity to be heard. This does not breach the principles of natural justice for this is the procedure laid down in his conditions of employment for his removal.

 

It is clear that Onejeme, J., based her judgment on the Public Officers (Special Provisions) Decree No. 17 of 1984. After referring to Sections 4(1 )(b), 4(2)(i) annd (ii), and 1(1 )(d)(i) of the Decree and the letter Exhibit 3 signed by one E.B. Olumuji, for Permanent Secretary, she held as follows:-

 

"It is my view that Exhibit 3 was written in utter contravention of the specific provision of Decree No. 17 of 1984 Section 1(1 )(d)( 1) which vests such power of removal from office of a public officer on the Head of the Federal Government and by virtue of Section 1(d) Decree No.12 1985 the Head of the Federal Military Government delegated such power to the Minister of the Federal Capital Territory .

 

In the absence of any such proof I declare the issuance of Exhibit 3 by Olumuji ultra vires the power of the maker. It is therefore null and void and of no effect. "

 

The Court of Appeal also obviously based its decision on Decree No.17 of 1984. Ogundere, J.C.A., who wrote the lead judgment of the court concluded as follows:-  

The case of Wilson V. Attorney-General of Bendel State and Ors cited above has shown that the exercise of the powers under Decree No. 17 of 1984 can only be legitimately done by the appropriate authority. Once the act is done by the appropriate authority, it cannot be challenged in any court of law. An act done by the illegitimate authority is not an act done under the Decree. The Minister is the appropriate authority to whom the power of the President has been delegated.

 

That is why the letter Exhibit 3 is void, whether or not if mentioned any of the Decrees aforesaid, save No 13 of 1984.

 

In his own concurring judgment Okay Achike, J.C.A., after referring to the pleadings of the appellant said,

 

The appellant must indicate clearly his modus operandi for he cannot approbate to be exercising his powers of dismissal under Decree No.17, and subsequently, at its whims and caprices reprobate this assertion and fall back on the contract of employment. In civil litigations, particularly where the parties set out their claim and defence in their pleadings, it is a premier rule of pleadings that the parties are bound by their pleadings. It seems to me, therefore that Mr. Olagumorisa learned respondent's counsel was right in his submission that the appellant having clearly indicated that it terminated respondent's employment operating under Decree No.17 of 1984, then any consequent reference that it acted under the terms of Exhibit 3 must be discountenanced by this court.

 

I have set down these passages at such length because I shall have course to return to them in this judgment. Meanwhile let me deal with the proceed­ings before this court.

 

For purposes of the appeal in this court, both learned counsel filed briefs of argument. The appellant's brief and reply brief of argument were related to the grounds of appeal filed which, however, I do not propose to set down in full. I may refer to some of them in this judgment.

 

In his own brief of argument, the appellant identified 3 issues for deter­mination. These are:-

(1)   Whether, having regard to the contract of employment, Exhibit I, was the termination of the respondent's appointment vide Exhibit 3 null and void.

(2)    Whether it is proper for the Court of Appeal to raise an issue suo motu and determine same, when such an issue was neither raised nor canvassed by the parties before the court.

(3)    Whether having regard to Exhibits 1 and 3, the Orders of Court of Appeal reinstating the respondent to his office with payment of all arrears of his emoluments from the date his appointment was terminated were just and proper in the circumstances.

 

The respondent in his own brief of argument also identified three issues for determination. The first issue was:-

 

(1)    Whether the respondent being a public officer, holding a permanent and pensionable appointment with legal status can be terminated in breach of the Civil Service Rules which governs his appointment, by merely giving him (respondent) one month notice by virtue of Exhibit I?

 

With respect, this issue cannot arise in this appeal. Nothing about Civil Service Rules arose in the judgment of the Court of Appeal and the respon­dent has not cross-appealed. Indeed, and I shall deal with this aspect of this case later, when the learned trial Judge rules out the Civil Service Rules and held that the appellant's appointment could be terminated pursuant to Exhibit 1 without hearing him, the respondent did not appeal to the Court of Appeal. The second issue, according to the respondent, was

 

Whether the appellant duly complied with the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 and Federal Capital Territory (Delegation of powers) Decree No.12 of 1985 in terminating the respondent's appointment vide Exhibit 3.

 

The issue will surely arise but not as framed by the respondent. The issue which really arises is whether the appointment of the respondent was termin­ated under Decree No. 17 of 1984 or under his contract of appointment Exhibit 1.1 would therefore accept the issues as formulated by the appellant except that issue two does not really directly arise. If Decree No.17 was applicable, then it can hardly be argued that the Court of Appeal would be wrong in considering Decree No. 13 of 1984 which would have ousted its jurisdiction. Besides, the comments on Decree No. 13 of 1984 in the judgment of Ogundere, J.C.A., are obiter for they do not form part of the ratio decidendi of that case.

 

Both in oral argument and his brief of argument, Mr. Ajala, learned counsel to the appellant submitted that the respondent's appointment was terminated in accordance with his contract of employment Exhibit I. As to the appellant's plea in paragraph 10 of the statement of defence on Decree No. 17 of 1984, he contended that it was abandoned as the appellant neither gave evidence nor addressed on it. He referred to the cases of Patrick Abusomwan V. Mercanule Bank of Nigeria Ltd. (1987) 6 S.C. 303 at pages 330 lines 20-30 and 331 lines 1-5 or (1987) 3 N.W.L.R. (Pt. 60)196; Oyelakin Balogun V. Busari Amubikanhun (1985) 3 N.W.L.R. (Pt. 11) 27 at 29; Chief Akin Omoboriowo and Anor V. Chief Michael Adekunle Ajasin (1984)1 S.C. 206, 216 lines l0-24; [1984] 1 SCNLR 108.

 

For his own part, Mr. Tunyan, learned counsel to the respondent, sub­mitted that Exhibit 1 expressly incorporated other rules and regulations. Exhibits 5 and 6, he said, made it clear that the other regulations referred to included the Civil Service Rules. He further argued that the appellant's case that the respondent's appointment was terminated pursuant to Exhibit 1 was not pleaded. On paragraph 10 of the Statement of Defence and Decree No. 17 of 1984, he submitted that there was no abandonment. He contended that as the respondent addressed extensively on this issue in the trial court, counsel to the appellant in the High Court ought to have replied but she did not do so. He argued that paragraph 10 raised issue of law and can't be abandoned just because evidence was not called.

 

Having thus set down the issues between the parties, their various contentions on them as well as how the two lower courts resolved them, I wish to start by dealing with the areas that are really not in dispute between the parties. It is not in dispute that the appellant, pursuant to its powers under Decree No.6 of 1976, appointed the respondent a Quantity Surveyor. The contract of appointment is Exhibit 1 and it was in these terms:-"I am directed to refer to your application dated 20/7[79 and have the pleasure in offering you appointment as a Quantity Surveyor in the F.C.D.A. on the terms and conditions laid down in this letter and subject to the Authority's conditions of service and such other regulations and instructions as may be adopted by the Authority from time to time. .

 

(5)       At any time unless you are dismissed, you may terminate your en­gagement by a month's notice in writing or with the consent in writing of the Executive Secretary by the payment of a month's salary in lieu of notice. The Authority may also at any time terminate your appointment by a month's salary in lieu of notice."

 

After the respondent complained to the Public Complaint's Commission, a letter Exhibit 5 was written to the appellant. Its reply Exhibit 6 is instruc­tive and I wish to set it down too.

 

I am directed to acknowledge the receipt of your letter Ref. HO/FC/ C34/86/10 dated 28/4/86 on the above subject and to supply the following information concerning the termination of Alhaji Naibi's appointment. Sometime in 1985, the Authority discovered a syndicate comprising Alhaji Naibi, 3 other personnel of F.C.D.A. and some dubious businessmen who were later found to have been arrested by the police and apparently charged to court for prosecution for fraud and theft. Consequently, decision was taken by the Management that the appointment of all the officers concerned namely Messrs Chuks Chiazor, Alhassan Dantani and Livinus Elibe including Aihaji Naibi be terminated because their services were no longer required. This decision has since been effected. You may wish to note that notwithstanding the fact, therefore, that Alhaji Naibi was charged to court for a criminal offence which is a serious misconduct for which he could as well as have been dismissed under Civil Service Rules 04107, the Auth­ority was just no longer interested in his services. His appointment was therefore terminated with one month salary in lieu of notice, in accordance with paragraph 5 of his letter of offer of appointment ……

 

It is also common ground that the respondent is a public officer.

 

Now it is necessary to consider whether Decree No. 17 of 1984 on which both lower courts decided this matter is applicable. This is the subject of ground 1 of the appellant's grounds of appeal to this court and arises from the 1st issue for determination as formulated by the appellant. I need to add straight away that as the appellant did not give evidence in the trial court there was nothing to show that Mr. Olumuji who signed Exhibit 3 was the appropriate authority. It follows that if Decree No. 17 of 1984 was applic­able that letter would definitely be null and void. See Wilson v Attorney-General of Bendel State (Supra). The question though is whether that Decree applies. To resolve this, one has to look at the pleadings. As stated earlier, in paragraph 10 of the Statement of defence, the appellant averred that it acted in line with Decree No.17 of 1984. In its brief of argument, and in oral argument before this court, the appellant, as stated earlier, contended that it abandoned that pleading for it neither led evidence to support it nor did it address on it. This was hotly contested by the respondent who contended that that averment could not be abandoned as it was an averment in law. Regrettably the Court of Appeal did not deal squarely with this matter although the question of applicability of Decree No. 17 of 1984 was raised in grounds 1 and 2 of appeal before it. Ogundere, J.C.A., in my view assumed in his judgment that the Decree was applicable. It was Okay Achike, J.C.A., who referred to the pleadings and from the passage of his judgment set down earlier, it must be assumed that he thought Decree 17 of 1984 was applicable. The whole argument of the pleadings and the question of abandonment was actually taken before the learned trial Judge. One thought she agreed with the appellant for in her judgment she said,

 

It is trite law that where a party fails to lead evidence in support of the averments in his pleading such averments are deemed to be (sic) have been abandoned. See Ojikutu V Fella 14 W.A.C.A. 628 and Balogun V Amubikanhun (1985) 3 N.W.L.R. (Pt. 11) 27, 29. In the instant case the defendant is deemed to have rested its case on the facts of the plaintiff's case. In effect there is no real dispute about the facts.

 

In the light of this finding on abandonment I find it difficult to see how the learned trial Judge went on Decree No. 17 of 1984 although the respondent was clearly a public officer. The respondent did not plead this statute nor was it his case that he was removed under Exhibit 1, a position which the learned trial Judge rejected. I think the fairest gloss one can put on the learned trial Judge's judgment is that she held both applicable. It would seem that in her view the respondent could be properly removed under Exhibit I but that the letter Exhibit 3 pursuant to Decree No. 17 of 1984 ought to have been signed by the Minister. She therefore held Exhibit 3 null and void.

 

I think it is necessary to refer to some well settled and now trite principles of pleadings in order to resolve this matter. Pleadings cannot constitute evidence and a defendant who does not give evidence in support off his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse. See Hutchful V Biney (1971)1 All N.L.R. 268; U.D.C. V Ladipo (1971)1 All N.L.R. 102; J.O.O. Imana vRobinson (1979) 3-4 S.C.l, 9-10. It is also settled that in some cases, such as cases of demurrer, the defendant need not lead any evidence. He is in such a case taken to accept all the facts as established by the plaintiff but perhaps relies on some point of law. See Fadare V Attorney-General of Oyo (1982) 4 S.C. 1. Where a defendant relies on a special defence it is trite that such defence has to be specifically pleaded. I need to mention that it cannot be said that paragraph 10 of the appellant's statement of defence was a special defence. As the learned trial Judge rightly held, if the defendant does not give evidence in support of his pleadings the averments therein are taken as having been abandoned for they stand as no more than mere averments which have not been supported. Ojikutu (Supra), Oyelakin V Balogun (Supra), Patrick Abusomwan V Mercantile Bank of Nigeria Ltd. (1987) 6 S.C.303, I lines 20-30 and 331 lines 1-5; (1987) 3 N.W.L.R. (Pt. 60)196.

 

The respondent made the submission that there can be no abandonment as what was pleaded in paragraph 10 of the statement of defence was law. It is trite that one is not to plead law but the facts on which the law can be based. The appellant in paragraph 10 pleaded a statute as they had to do if they wished to rely on it (See Oline V Obodo (1958) 3 F.S.C. 84; [1958] SCNLR 298). In my view such a statute can only survive where the defendant did not give evidence if it is one which required no further evidence. This is what usually happens in the case of a demurrer. Here this was not a demurrer, and if the appellant was really relying on Decree No.17 of 1984, it would have had to give evidence at least to establish the actual status of Olumuji to determine whether he was the appropriate authority. In Ojukutu Supra, the plea was res  judicata. It was held abandoned because no evidence was led to show the previous suits on which reliance was placed for the special plea. If one pleaded the statute of limitations for instance, one is likely to be taken to have abandoned such an averment if no evidence is led as to the date the cause of action arose and the date the action was instituted.

 

I hold therefore that paragraph 10 of the statement of defence having been abandoned~ the Decree No. 17 of 1984 was not applicable. It was not pleaded by the respondent and it was not part of his case. The trial court and the Court of Appeal ought not to have made a case for the respondent which it did not make himself. If paragraph 10 is abandoned, the fact that it is agreed the respondent is a public officer will not justify the court in taking up Decree No. 17 of 1984 if neither side has pleaded it or is relying on it. I am of the view therefore that both lower courts were in error in relying on Decree No.17 of 1984 in declaring Exhibit 3 null and void. In a part of his judgment Ogundere, J.C.A., had said,

 

In Exhibit 3, the letter of termination of the respondent's appointment no mention was made of Decree No.17 of 1984; the letter was based on the contract of employment. The act of termination of the respondent's appointment was not done or purported to be done under any Decree.

 

How then, one may ask respectfully did Decree 17 of 1984 later come in?

 

All I have said is enough for me to allow this appeal and set aside the judgments of the High Court and the Court of Appeal. Before I am done, however, I would like to observe that the case of the respondent was always that he had pleaded and proved that he was a public officer and that notwith­standing and quite apart from Exhibit 1, the Civil Service Rules, Pensions Act, the 1979 Constitution and the Decree noted governed his terms of employment. I have just held that the Decree was not applicable but the Civil Service Rules, Pensions Act at least apply to him. Indeed the re­spondent pleaded and established this and the appellant is bound by those facts. I am, therefore, unable to agree with the learned trial Judge that an officer on pensionable appointment against whom allegations of serious misconduct (fraud) had been alleged as in Exhibit 6 can just be removed with a month's salary in lieu of notice without being heard. It always has to be remembered as this court said unequivocally in Shitta-Bey V. The Federal Public Service Commission (1981)1 S.C.40, 69 that;

a public servant in the established pensionable cadre of the Federal Public Service has a legal status and ex hypothesi a right to remain in Service until properly removed in accordance with the Civil Service Rules applicable to him …..

 

See also Olaiyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599. If the issue had arisen, I would have had no difficulty in holding that in the circumstances of this case, the respondent would not have been properly removed under Exhibit I without hearing him.

 

The appeal succeeds and it is allowed. The judgments of the High Court and the Court of Appeal are set aside and the respondent's claim is dismissed. I award N200 costs to the appellant in the High Court, N300 in the Court of Appeal and N500 in this court.

 

Judgement Delivered by

Obaseki. J.S.C

 

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Nnamani, J.S.C., and I entirely agree with his reasoning and conclusions. I agree with him that the appeal succeeds and must be allowed. I adopt his opinions as my own and hereby set aside the decisions of the Court of Appeal and the High Court. I would and I hereby also dismiss the plaintiff's/respondent's claims with costs in the High Court fixed at N200.00; costs in the Court of Appeal fixed at N300.00 and costs in this Court fixed at N500.00.

 

Judgement Delivered by

Karibi-Whyte. J.S.C.  

I agree that the appeal of the appellant should be allowed. It is an elementary but fundamental principle of our administration of justice that the Court can’t decide a matter on a point of law or fact not relied upon by a party. In other words, Court should not make a case for a party which the party did not himself make Ochonma v. Unosi (1965) N.M.L.R. 321.

 

It was clear in this appeal that Decree No.17 of 1984 was abandoned by the Appellant. The Courts below were therefore in error to have relied on it, thereby declaring Exhibit 3 the letter of termination of the respondent null and void. The ground on which the Courts below decided the appeal being erron­eous in law, the appeal must be allowed and the decisions must be set aside.

 

The appeal succeeds and it is allowed. The judgments of the Court of Appeal and the High Court are set aside. The respondent's claim is dismissed.

 

Costs in this appeal to the appellant are assessed at N200.00 in the High Court and N300.O0 in the Court of Appeal, and N500.00 in this Court respectively.

 

Judgement Delivered by

Belgore. J.S.C.  

I read in advance the judgment of my learned brother, Nnamani, J.S.C., and I am in complete agreement with his reasoning and conclusion. I, for the same reasons advanced in the judgment, allow this appeal and set aside the decision of Court of Appeal. I also award N300.00 as costs in the High Court, N300.00 in the Court of Appeal, and N500.00 as costs of this appeal, all against the respondent.

 

Judgement Delivered by

Wali. J.S.C

I had the privilege of a preview of the Judgment of my learned brother, Nnamani, J.S.C., which was just read. My Lord has exhaustively dealt with the issues raised in this appeal and I am in complete agreement with his reasoning and conclusion. I adopt those reasons as mine for allowing this appeal.

 

I abide by the consequential orders contained in the lead judgment.

 

 Counsel

 

J. A. T. Ajala

 

For the Appellant

Marina Tunyan

 

For the Respondent