2019) Lpelr-46402(Sc

NWOYE v. FAAN

CITATION: (2019) LPELR-46402(SC)

ON FRIDAY, 18TH JANUARY, 2019 Suit No: SC.223/2012

Before Their Lordships:

IBRAHIM TANKO MUHAMMAD Justice of the Supreme Court MARY UKAEGO PETER-ODILI Justice of the Supreme Court KUDIRAT MOTONMORI OLATOKUNBO Justice of the Supreme Court KEKERE-EKUN AMIRU SANUSI Justice of the Supreme Court EJEMBI EKO Justice of the Supreme Court

Between

SYLVESTER C. NWOYE - Appellant(s) And FEDERAL(2019) AIRPORTS AUTHORITY LPELR-46402(SC) OF NIGERIA - Respondent(s)

RATIO DECIDENDI AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Ekiti division (hereinafter referred to as "the lower Court") delivered on 20th day of January, 2012.

The appellant as plaintiff, instituted an action at the High Court of the Federal Capital Territory ("the trial Court" for short) and claimed a catalogue of reliefs against the respondent, as defendant thereat. The trial Court at the end of the hearing of the suit delivered its judgment and granted some of the reliefs claimed by the plaintiff/appellant, namely reliefs 1, 3 and 5. The defendant/respondent became disenchanted with the judgment of the trial Court and thereupon appealed to the lower Court, while the appellant/plaintiff also dissatisfied with the judgment, filed a cross appeal against the same judgment.

At the conclusion of the hearing of the said appeal and cross-appeal,(2019) the lower LPELR-46402(SC) Court struck out the appeal of the respondent based on a preliminary objection by the appellant. After striking out the appeal, the lower Court went ahead to consider the cross appeal by the appellant and

1 held that the trial Court was right in refusing to grant reliefs 2 and 4 as contained in the Amended Statement of claim dated 28th May, 2009 but filed by the appellant on 5th June, 2009. The appellant alleged that instead of the lower Court to confine itself to the judgment appealed against, it delved into alternative reliefs Nos (i) and (ii) as contained in the appellant's amended statement of claim upon which there was no appeal by either the appellant or the respondent. The Court held that the appellant was still in the service of the respondent (See page 504 of the Record) and that he is entitled to his retirement benefits. The appellant stated that he is still in service, notwithstanding the pronouncement of the Court on retirement benefits.

The appellant herein, still became dissatisfied with the judgment of the lower Court and thereupon further appealed to this Court.

As has been(2019) the practice LPELR-46402(SC) in this Court, parties filed and exchanged briefs of argument. The appellant filed his brief of argument on 25th September, 2012, which was settled by Sir JC Okafor, wherein he proposed four issues for determination of the appeal as reproduced hereunder:-

2 1. Whether the lower Court has jurisdiction to consider or determine the alternative reliefs (i) and (ii) of the Amended Statement of Claim of the Appellant when there was no appeal on the alternative reliefs (Ground 1& 5). 2. Whether the lower Court was right in law to uphold the refusal of the trial Court to grant reliefs two (2) and four (4) of the Appellant's Amended Statement of Claim or decline to grant same when both the trial Court and the lower Court have the jurisdiction to grant both reliefs (Grounds 2 & 4) 3. Whether the lower Court was right in law to hold that the Appellant is entitled to his retirement benefits when the Appellant has not been retired from the service of the Respondent. (Ground 3) 4. Whether the lower Court was right to hold in its judgment that Exhibits M, N, O, P and Q were rightly admitted in evidence by the trial Court when the said exhibits are inadmissible in law (Ground 6) (2019) LPELR-46402(SC)

Suffice it to say, that upon being served with Respondent's brief of argument, the appellant also filed Appellant's Reply Brief on 6th June, 2013 which was deemed filed on 17th November, 2014. The two briefs of argument were both

3 adopted at the hearing of the appeal on 23rd October, 2018.

On its part, the respondent filed its brief of argument on 26th November, 2012. The said respondent's brief of argument was settled by lgwe Kingsley Chima. Therein, four issues for determination were also decoded which read as follows: -

A. Whether the lower Court has jurisdiction to consider the alternative reliefs which were canvassed in the trial Court but which were not appealed against by either party. B. Whether the lower Court actually held that the Appellant is still in the employment or service of the respondent. C. Whether the lower Court can grant Relief 2 when there is no evidence before the trial Court of the present posts or positions allegedly held by his contemporaries and whether the trial Court was right to refuse(2019) to grant LPELR-46402(SC) relief 4 on recovery of premises with which the lower Court agreed. D. Whether a party has to amend his pleadings to plead secondary evidence when an original document gets lost after pleadings have been settled or just to lay the foundation of the loss and tender the secondary evidence and whether the Respondent specifically

4 pleaded the original documents in Paragraph 8 of its Statement of Defence.

The issues raised by the two learned counsel are not dissimilar, hence I will be guided by the issues raised in the Appellant's Brief of Argument.

SUBMISSIONS BY COUNSEL ON ISSUES FOR DETERMINATION ISSUE NO.1 Issue no.1 deals with whether the Court below has jurisdiction to consider the alternative reliefs when there was no appeal on same.

He argued that the appeal of the respondent who was the appellant at the Court below did not touch on the alternative reliefs and that there was no cross appeal on alternative reliefs by the appellant who was the respondent at the Court below. He argued further that the judgment of the trial(2019) Court did LPELR-46402(SC) not touch on any of the alternative reliefs contained in the appellant's Amended statement of claim. He then contended that a Court cannot grant both the principal and the alternative reliefs at the same time.

He cited the case of LAMURDE LOCAL GOVERNMENT V

ENG EUGENE KARKA & ANOR (2010)10 NWLR (pt.1203)574 at 597. He submitted further that a Court can only grant alternative relief after it might have found that it 5

(2019) LPELR-46402(SC) could not for any reason, grant the principal or main relief of claim. He argued that the Court suo moto considered and determined the alternative reliefs (i) & (II) without affording the parties opportunity of being heard. He submitted that it will amount to denial of fair hearing where Court raises an issue suo moto and ties a decision on it without giving the parties the opportunity of being heard.

He cited several cases including EMEKA NWANA V FED

CAPITAL DEV. AUTHORITY (2007)11 NWLR (pt.1044)59 at p.67 ratio 12. He urged the Court to resolve this issue in favour of the appellant.

ISSUE NO.2 This issue deals with the question whether the Court below was right in law to uphold the refusal of the trial Court to grant reliefs 2 & 4 of the Amended Statement of Claim. He submitted that the trial Court ought to have equally granted reliefs 2 & 4 so as to give effect or efficacy to the reliefs which(2019) it granted. LPELR-46402(SC) He submitted that a consequential claim or relief is one giving effect to a judgment and that it is essentially the one which makes the principal order effectual and effective. He cited the case of ALH. AMINU

DANTSOHO V. ABUBAKAR MOHAMMED

6 (2003)6 NWLR (pt.817) at R489-490 parag G. He urged the Court to resolve this issue in favour of the appellant.

ISSUE NO.3 Issue no.3 deals whether the trial Court was right when it held that the appellant's employment enjoys statutory flavour and turned to hold that the appellant was retired.

He argued that the Court below having upheld the judgment of the trial Court in granting reliefs 1, 3 and 5 of the amended statement of claim in favour of the appellant, it therefore follows that the appellant's employment with the respondent still subsists and that both trial Court and the Court below have jurisdiction to grant reliefs 2 and 4 in order to give effect to relief 1. He argued that the Court below did not give any reason for upholding the decision of the trial Court for its refusal to grant reliefs 2 and 4. He submitted that the decision of the Court below upholding the decision(2019) of the trial LPELR-46402(SC) for its refusal to grant reliefs 2 and 4 is perverse and had occasioned a miscarriage of justice.

He cited the case of STATE V GODFREY AJIE (2000)11

NWLR (pt.678) 434 at 449 para C-D ratio 18. He then urged this Court to invoke

7 its powers under Section 15 of Court of Appeal Act 2004 and grant reliefs 2 and 4 of the appellant's amended statement of claim.

ISSUE NO.4 Issue no.4 essentially deals with the pronouncement that the appellant is entitled to retirement benefits when he is still in employment of the respondent. He submitted that since the trial Court and the Court below held that the appellant is still in the employment of the respondent, it is a serious error in law by holding that the appellant is entitled to his retirement benefits when the appellant has not been retired by the respondent. He argued that there was no appeal on the issue of retirement benefit and that the Court below suo moto considered and determined the alternative reliefs (i) & (ii) without affording the parties the opportunity of being heard and thereby denied the appellant fair hearing as guaranteed by Section 36(1) of the 1999 Constitution. He submitted that it is a basic and fundamental(2019) principle LPELR-46402(SC) of administration of justice that no decision can be regarded as valid unless the trial Court has heard both sides in the conflict. He cited the case of

DEDUWA V OKORODUDU (1976) 9-10 SC.329. He

8 urged the Court to resolve this issue in favour of the appellant. In another submission he argued that the Court below was wrong in law to hold that Exhibits M, N, O, P and Q were rightly admitted when the said exhibits are inadmissible in law. He argued that the letters pleaded by the respondent in paragraph 8 (i) (v) of the statement of defence were photocopies instead of original or certified true copies. He argued that a proper person through whom a document was tendered is the maker of a document. He referred to the case of LAMBERT V NIGERIA ARMY

(2006)7 NWLR (pt.980)52 and argued that the DW1 who testified on behalf of the respondent was not the maker of Exhibits M, N, O,P and Q and therefore they cannot be tendered through him. He submitted that the findings of the Court below that these exhibits were rightly admitted is perverse and has also occasioned a miscarriage of justice. He urged the Court to resolve this issue in favour of the appellant and to finally allow the appeal.

The learned(2019) counsel LPELR-46402(SC) of the respondent adopted the issues formulated by the appellant's counsel. On the issue of jurisdiction to consider alternative reliefs, he argued that the

9 lower Court has jurisdiction to consider and determine alternative relief, as the Court derives its power under Section 15 of the Court of Appeal Act 2004 (or Section 16 of the 1976 of the same Act) and under Order 4 Rule 3 & 4 of the Court of Appeal Rules, 2007. He also referred to the case of ETAJATA V OLOGBO (2007)16 NWLR

(pt.106)554 at 568 589. He argued further, that an appeal is a continuation of hearing of a case and that everything before the trial Court is before the appellate Court. He therefore submitted that it was the appellant who invited the Court below to consider the alternative reliefs as follows "in the event that the defendant being unwilling to take or retain the plaintiff as his employee, the plaintiff claims as follow…...”

He argued that the mere fact that the parties did not cross appeal on this issue is of no moment as nothing can derogate from the power of the Court below to consider the alternative reliefs in accordance with the Act and the Rule cited above.(2019) He then LPELR-46402(SC) urged the Court to discountenance all the arguments raised by the appellant in that regard. On the issue of whether the appellant was in the service of the

10 respondent, he referred to what the Court below said at page 6 of its claim (page 504 of the record) and argued that the use of words "meant" and "was" suggested that the appellant "is" no longer in the employment of the respondent. He argued that the Court below rejected reliefs 1, 3 and 5 and reliefs 2 (i) 2 (11) and under the power conferred on it by law which gave judgment which the appellant is contesting under this issue no3. He submitted further, that the decision of the Court was informed by the age-long common law dictum that the Court should not impose a worker on an unwilling employer. He cited the case of Garuba v KIC Ltd (2005)5

NWLR (para 917)160 at 180. He argued that the appellant anticipated this situation that is why he sought alternative relief which was not supported by any evidence but the Court below did what was the best to be done in the circumstance. He urged the Court to resolve this issue against the appellant.

On the issue(2019) of whether LPELR-46402(SC) the Court below can grant relief no.2 and whether the trial Court was right in refusing relief no.4, he referred to page 345 which is connected to relief no.2 for promotion etc, and page 505 of the

11 record and submitted that there was no evidence by the appellant to show where his contemporaries were as at the date of his evidence in 2009 or when the judgment was given in 2010. He argued that it will amount to granting relief not supported by any evidence. With regard to relief no.4, he referred to the judgment of the trial Court at page 345 of the record and argued that the issue being canvassed in relief no.4 is still an issue which is a subject matter in another suit pending before another Court of coordinate jurisdiction. He therefore submitted that the statement of the appellant to the effect that no reason was given in refusing relief no.4 is a total misinformation. He urged the Court to discountenance the appellant’s argument in this regard. On the issue of admission of exhibits M, N, O, P & Q, he submitted that the appellant did not challenge the authencity of these exhibits and there was no need to tender them through the makers. He referred to Section

198 (2) (2019)of the Evidence LPELR-46402(SC) Act and the case ofG. CHITEX

IND LTD V O.B.I (NIG) LTD [2005)14 NWLR Pt.945, page 392 at page 411. He urged the Court

12 to resolve this issue against the appellant and dismiss the appeal.

REPLY OF THE APPELLANT On issue no.1, the Appellant argued that the Court of Appeal Act 1976 and the Court of Appeal Rules are not applicable to this suit having been repealed. He argued further that although Section 15 of the Court of Appeal 2004 which can only be exercised based on what the trial Court has decided and on grounds of appeal before it. The same argument applies to Section 16 of the Court of Appeal Act of 1976.

On issue no.2, which deals with whether the appellant is still in service of the respondent, he submitted that the issue is incompetent as it did not arise from the grounds of appeal. He urged the Court to discountenance same.

On issue no.3, he also argued that the issue is also incompetent(2019) as it did LPELR-46402(SC) not arise from the grounds of appeal of the appellant. He equally argued that issue no.4 is also not based on any of the grounds of appeal and urged this Court to allow the appeal.

RESOLUTION OF ISSUES FOR DETERMINATION ISSUE NO.1 The first issue relates to whether the Court below has jurisdiction to consider and determine the alternative reliefs 13

(2019) LPELR-46402(SC) Nos (i) and (ii) in the Appellant's amended statement of claim when there was no appeal on the alternative reliefs. In resolving this issue I think it will not be out of place if reference is made to the judgment of the lower Court in order to appreciate the circumstance that informed the trial Court to grant the alternative reliefs as complained by the present appellant. At page 504 of the record of proceedings, the Court below had this to say: -

"The grant of reliefs 1, 3 and 5 of the Amended Statement of claim meant that the plaintiff/Cross appellant was still in the employment of the Defendant/Cross respondent. The Court below rightly in my view, refused to grant reliefs 2 and 4 for reasons stated hereunder. However the learned trial judge ought to have considered the alternative reliefs (1) and (ii) of the Amended Statement of claim to…” "The cross appellant urged us to invoke our powers under Section 15 of the Court of Appeal Act and grant him reliefs 2 and 4 in the amended statement of claim. I(2019) do not think LPELR-46402(SC) it expedient to the invitation by the cross appellant and grant him reliefs 2 and 4. However, I think the alternative reliefs (i) and (II) of

14 the amended statement of claim are worthy of my CONSIDERATION". The Supreme Court in the case of HELP (NIG) LTD vs

SILVER ANCHOR NIG LTD (2006) ALL NLR (pt.311 1833 per Mukhtar JSC (as she then was and later CJN) stated or specified at page 1855-6) the condition of granting alternative claim or relief as follows: -

"When a party makes a claim in the alternative, the belief is that he wants either the reliefs sought, in which case when he is granted any of the relief, it suffice for the purpose of satisfying his claim" See also GKF Investment Nig Ltd v NITEL PLC

(2009)15 NWLR (pt.1164) 344 - LPELR 1294 (SC). I must stress here however, that where alternative claim is made in addition to the main claim, it is only where the main claim is refused or had not been granted that the Court should consider granting the alternative claim or relief. In other words both the main and alternative claim can not be granted at the same time as, it will be improper to again (2019)grant alternative LPELR-46402(SC) claim because it would amount to double jeopardy. See Agidigbi Vs Agidigbi (1996)6

NWLR (pt.454)300. It is evident that in this instant case, the

15 alternative reliefs Nos (i) and (ii) were granted by the Court below because the main reliefs No 1 and 4 were rejected or refused by the trial Court. On the appellant's grouse that the Court below granted the alternative reliefs suo motu, I think that assertion is not correct. The lower Court granted the alternative reliefs based on the powers conferred on it by Section 15 of the Court of Appeal Act and even it was the cross-appellant’s counsel who urged or invited it to invoke the provisions of Section 15 of the Court of Appeal Act 2004 which is in pari materia with Section 16 of the Court of Appeal Act of 1976 and Order 4 Rules 3 & 4 of Court of Appeal Rules 2007 which, inter alia, gave it the power while hearing an appeal, to review, vary or amend or even make a further order or orders earlier made by the trial Court or even where it was not requested for by a party, so long as in its opinion, the justice of the case demands that.

See Onuaguluchi Vs Ndu (2001)3 SC 4. So in answer to the appellant's complaint, I must state that the grant of the alternative(2019) reliefs was LPELR-46402(SC) not made suo motu and I hold that Court below has jurisdiction to grant the alternative

16 reliefs (I) and (II) in the circumstance even though there was no appeal on them or that parties were not asked to respond before such order was made. The lower Court has jurisdiction to grant the said reliefs. The first issue is therefore resolved against the appellant.

ISSUE NO.2 The second issue queries whether the lower Court was right in law in upholding the trial Court's refusal to grant the main reliefs No. 1 and 4 claimed in the Appellant's amended statement of claim or decline to grant them when both lower or Courts below have jurisdiction to grant both reliefs. In treating this issue which basically relates to the trial Court's refusal to grant the two reliefs, I think it will be pertinent to reproduce below, the two reliefs, starting with Relief 2, which reads as follows: -

"An order of Court compelling the defendant to accord the plaintiff his rightful position in service by promoting him to a higher position from Assistant Chief Electrical(2019) Superintendent LPELR-46402(SC) commensurate with his contemporaries in the service of the Defendant and also to pay the plaintiff the accrued arrears of salary and benefits on the said promotion."

17 To my understanding, in this relief, the plaintiff was simply asking the trial Court to, in a disguised way, promote him to a position contemporaries are holding and/or make him to benefit from the salaries and other entitlements of his supposed contemporaries then holding the rank of Assistant Electrical Superintendents. It is elementary to say that the trial Court is not the plaintiff's employer. Since his employers i.e. the defendant/respondent, had never so promoted him or grant him that relief more especially because no evidence was led before it to show that he really deserved or is entitled to that anticipated promotion or rank. Perhaps it is sequel to that, that the trial Court in refusing to grant that relief held as below: -

"This relief is like making a "tall order" promotion is a privilege granted an employee at the discretion of the employer thus the Court can not compel an employer to promote his employee..." It is my candid view therefore, that the trial Court was right in refusing to grant Relief no.2 and by extension the Court below is (2019)also correct LPELR-46402(SC) in upholding the trial Court's refusal to grant the said relief no.2.

18 Coming to Relief no.4, it also reads as follows: -

"An injunction restraining the defendant, its agents or servants from ejecting the plaintiff from the accommodation which the plaintiff legitimately occupied at Federal Airport Authority of Nigeria (FAAN) Staff Quarters, Enere Enugu known as Line B, Flat 01" It is clearly shown on pages 345 to 346 of the printed record of appeal, that Relief 4 is a subject matter pending before the Chief Judge of Enugu State High Court which is a Court of coordinate jurisdiction with the trial Court and there was even an interlocutory order made by the Hon. Chief Judge of Enugu State and the suit is still pending-on that issue before the Enugu State High Court. For that reason, the learned trial judge rightly in my view, regarded relief 4 as an abuse of Court process and he therefore, rightly refused to or refrained from granting that relief. With this situation at hand, I think it will be inconceivable to expect the Court below to grant Relief no.4 either. In the light(2019) of all that LPELR-46402(SC) I have reiterated supra on this issue, I firmly hold the view that the Court below was correct in upholding and endorsing the resolve by the trial

19 Court in not granting Reliefs 2 and 4 and it was also right in law in refusing it too. The second issue is therefore resolved against the appellant herein.

ISSUE NO.3 The question posed by the appellant on this issue is whether the lower Court was right in law when it held that the appellant is entitled to his retirement benefits when the appellant has not been retired from the service of the respondent. Looking closely at the above question raised in this issue, what should first of all be considered is whether the lower Court had actually held that the appellant was in the service of the respondent. At page 504 of the record of appeal the lower Court had this to say: -

"The grant of reliefs 3 and 5 of the Amended Statement of Claim MEANT that the plaintiff/Cross Appellant WAS still in the employment of the Defendant/Cross Respondent. The Court below, rightly in(2019) my view, LPELR-46402(SC)refused to grant reliefs 2 and 4 for reasons stated there under. However the learned trial judge ought to have considered the alternative reliefs (i) and (ii) of the amended statement of claim….” Closely considering and interpreting the above quoted

20 finding of the lower Court, leaves one in no doubt that the Court below was of the firm view that the appellant was no longer in the service or employment of the respondent. That being its stance, the lower Court approved the trial Court's resolve to refuse or to reject reliefs 3 and 5 and reliefs 2(i) and 2(ii). Having done so, it proceeded rightly in my view, to invoke the provisions of Section 15 of the Act and granted the two alternative reliefs. The approach adopted by the lower Court is, in my view, unassailable and most commendable as it is only that approach that can give efficacy to and would cushion or accommodate the complaints of the appellant. This Court is further fortified on this view, by the age-long common law principle that a Court of law can not impose a worker on an unwilling employer. See the cases ofCHUKWUMAH VS SHELL

PETROLEUM [1993) 4 NWLR [PT 289]512 at 560; GARUBA v KIC LTD [2005) 5 NWLR (pt.917) 160;

CHARLES EKEAGWU vs THE NIGERIAN ARMY & ANOR [2010)16 NWLR [pt,1220) 419. The lower Court finally concluded(2019) its judgmentLPELR-46402(SC) when it held thus: -

"In the circumstance, I hold the considered view that

21 the appellant having been compulsorily retire (sic), is entitled to be paid all his retirement benefits." Therefore, with all these findings by the lower Court as borne out in the record of appeal, it would be incorrect to say that the Court below held that the appellant was still in the service of the respondent as insinuated suggested by the appellant. The Court below is therefore right in holding that the appellant was entitled to all his retirement benefits. This issue is also resolved against the appellant.

ISSUE NO.4 On this issue the appellant queries whether the lower Court was not in error when it held in its judgment, that Exhibits M, N, O, P and Q were rightly admitted in evidence by the trial Court when those exhibits were inadmissible in law. It is worthy of note, that when the documents admitted as Exhibits M, N, O, P and Q were tendered at the trial, the appellant did not challenge the authenticity or existence of those exhibits. That being so, it would not be necessary for the respondent(2019) to tender LPELR-46402(SC) them through the maker. There is no gain saying, that this said five letters i.e. Exhibits M, N, O, P and Q were pleaded in the defendant's

22 statement of defence even though they were not tendered through the maker but through DW1. In my view, the trial Court was right in overruling the objection of the plaintiff on the ground that DW1 was not the maker or author of the said letters (i.e. exhibits) since their authenticity was not in question or challenged by the appellant and the Court below had rightly held that the appellant's complaint on their admissibility was too late. In any case, even though the said exhibits were in form of secondary evidence as the originals of the letters were not the ones tendered and admitted in evidence, that could not be a reason for the person who fails to tender the original copies to fail especially where the contents of the originals were given during oral testimonies as in this instant case.

See Abubakar Vs Waziri(2008)14 NWLR (pt.1108)007. Therefore, since there was no challenge on the authenticity of the five exhibits by the appellant, the trial Court was right in overruling the objection by the appellant on their admissibility. Similarly, the Court below was not in error when it endorsed(2019) the LPELR-46402(SC) admission of Exhibits M, N, O, P and

23 Q in evidence by the trial Court. This last issue is hereby also resolved in favour of the respondent against the appellant.

Thus, having resolved all the four issues raised by the appellant against him, it is my judgment that this appeal is devoid of any merit. It therefore fails for want of merit. It is hereby accordingly dismissed. I make no order as to costs, so each party should bear his/its own costs.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading before now, the judgment just delivered by my learned brother, Sanusi, JSC. I agree with his reasoning and conclusion for dismissing the appeal which lacks merit. I too, dismiss the appeal. I abide by all consequential orders made in the lead judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Amiru Sanusi JSC in the reasonings leading to(2019) the judgment LPELR-46402(SC) he just delivered and to underscore my support, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Ado-Ekiti Division or Court below or lower Court, Coram: Sotonye Denton-West, Chidi Nwaoma Uwa and Tom

24 Shaibu Yakubu which decision was delivered on the 20th day of January, 2012 in which it struck out the appeal of the appellant,

The background facts are well set out in the leading judgment and I shall not repeat them save for referring to any part where the occasion calls for it.

At the hearing on the 23rd October, 2018 learned counsel for the appellant, J. C. Okafor Esq, adopted the brief of argument filed on 25/9/2012 and a reply brief filed on 6/6/2013 and deemed filed on 17/11/14. In the brief were distilled four issues which are thus: -

1) Whether the lower Court has the jurisdiction to consider or determine the alternative reliefs (i) (ii) of the Amended Statement of Claim of the appellant when there was no appeal on the alternative reliefs. (Grounds 1 and 5). 2) Whether the lower Court was right in law to uphold the refusal(2019) of the LPELR-46402(SC)trial Court to grant reliefs two (2) and four (4) of the appellant's amended statement of claim or decline to grant same when both the trial Court and the lower Court have the jurisdiction to grant both reliefs. (Grounds 2 and 4). 3) Whether the lower Court was right in law to hold that the appellant is entitled to his retirement

25 benefits when the appellant has not been retired from the service of the respondent (Ground 3). 4) Whether the lower Court was right to hold in its judgment that Exhibits M, N, O, P, and Q were rightly admitted in evidence by the trial Court when the said exhibits are inadmissible in law.

Learned counsel for the respondent, Igwe Kingsley Chime adopted the brief of argument filed on 26/11/2012 and in it formulated four issues as follows:-

1. Whether the lower Court has the jurisdiction to consider the alternative reliefs which were canvassed in the trial Court but which were not appealed against by either party. 2. Whether the lower Court actually held that the appellant is still in the employment or service of the respondent. 3. Whether the lower Court can grant relief 2 when there is no evidence before the trial Court of the present(2019) posts or LPELR-46402(SC) positions allegedly held by his contemporaries and whether the trial Court was right to refuse to grant relief 4 on recovery of premises with which the lower Court agreed. 4. Whether a party has to amend his pleadings to plead secondary evidence when an original document gets

26 lost after pleadings have been settled or just to lay the foundation of the loss and tender the secondary evidence and whether the respondent specifically pleaded the original documents in paragraph 8 of its Statement of Defence.

I shall make use of the issues as distilled by the appellant for ease of reference and convenience.

ISSUES 1 AND 2: 1. Whether the Lower Court has jurisdiction to consider or determine the alternative reliefs (i) and (ii) of the Amended Statement of Claim of the appellant when there was no appeal on the alternative reliefs. 2. Whether the Lower Court was right in law to uphold the refusal of the trial Court to grant reliefs two (2) and four (4) of the appellant's amended statement of claim or decline to grant same when both the trial Court and the lower Court have the jurisdiction(2019) to grant LPELR-46402(SC) both reliefs. Learned counsel for the appellant submitted that the trial Court by considering and granting some of the main reliefs has, by implication deemed it unnecessary to consider or grant the alternative reliefs since the trial Court cannot in the same suit, grant both the main reliefs and alternative reliefs

27 at the same time. He cited William Agidigbi v Danaha

Agidigbi & 2 Ors (1996) 6 NWLR (Pt.454) 313.

That a Court cannot grant both the principal relief and the alternative relief because the party has not asked for both and a Court has no power to grant to a party what it has not asked for. He referred toLamunde Local

Government v Engr. Eugene Karka & Anor (2010) 10 NWLR (Pt.1203) 574 at 597 etc.

That in the case at hand the lower Court suo motu considered and determined the alternative reliefs (i) and (ii) of the Amended Statement of Claim of the appellant even when there was no appeal on the alternative reliefs and thereby denied the appellant of his right to fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as the parties were not given an opportunity to address the Court on the new issue raised. He citedEmeka Nwana v

Federal(2019) Capital DevelopmentLPELR-46402(SC) Authority (2007) 11 NWLR (Pt.1044) 59 at 67; Shitta-Bey v. FSC (1981) 1 SC 40; Saude v Abdullahi (1989) 4 NWLR (Pt.116) 387 etc.

That the decision of the lower Court to consider the alternative reliefs (i) and (ii) of the Amended

28 Statement of Claim when there was no appeal on them occasioned a miscarriage of justice on the appellant. He relied on Oguntayo v Adelaja & Ors (2009) 15 NWLR

(Pt.1163) 150 at 156.

For the appellant, it was submitted that the lower Court was wrong when it declined to exercise its powers under Section 15 of the Court of Appeal Act to grant reliefs 2 and 4 of the Amended Statement of Claim in favour of the appellant and the Court below. Having failed in that regard, it behoves the Supreme Court to step in and do the needful within the enormous powers available to it. He cited

Dingyadi & Anor v INEC & Ors (NO.2) (2011) NWLR (Pt.1224) 154 at 197.

For the respondent it was contended that the Court below has the jurisdiction and power to consider and determine the alternative reliefs (i) and (ii), as it did in the judgment the subject matter of this appeal within the powers available(2019) to it under LPELR-46402(SC)Section 15 of the Court of Appeal Act 2004 or Section 16 of the 1976 Act and Order 4, Rules 3 and 4 of the Court of Appeal Rules 2007.

That the lower Court was right to uphold the decision of the trial Court refusing to grant relief number 2 on the

29 ground of lack of evidence and its refusal to grant relief 4 because it would amount to abuse of process and also for lack of jurisdiction.

That the lower Court did not introduce the alternative reliefs 2 (i) and 2 (ii) suo motu as argued by the appellant but rather the two alternative reliefs were actually introduced by the appellant in the Amended Statement of Claim which two alternative reliefs were before the trial Court and therefore before the lower Court. Many judicial authorities were cited.

In a nutshell, the appellant is of the view that the refusal of the trial Court to grant reliefs two (2) and four (4) of the Appellant's Amended Statement of Claim which was upheld by the Court below has occasioned a serious miscarriage of justice on the appellant. On the other hand, the stance of the respondent is that the Court below relying on the power granted to it by Section 15 of the(2019) Court of Appeal LPELR-46402(SC) 2004 impari materia with Section 16 of the Court of Appeal Act 1976 the lower Court ordered that the appellant should be paid his retiring benefits as at 1999 in accordance with the prevailing conditions of service.

30 I shall quote the said Section 16 of the Court of Appeal Act, 1976 which provides as follows: -

"The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court, below to inquire into or certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal in the first instance and may re-hear the case in whole or in part or may remit it to the Court below for purpose of such re-hearing or may give such other directive as to the manner in which the Court below shall deal(2019) with theLPELR-46402(SC) case in accordance with the powers that Court, or in the case of an appeal from the Court below in that Court's appellate jurisdiction order the case to be reheard by the Court of competent jurisdiction".

31 Also related is Order 4, Rules 3 and 4 of the Court of Appeal Rules 2007 which provides thus: -

"(3) The Court shall have power to draw inference of fact and to give any judgment and make any order which ought to have been given or made and to make such further or other order as the case may require, including any order as to costs. (4) The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or respondents notice has been given in respect of any particular part of the decision of the Court below, or any party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties". The Supreme(2019) Court LPELR-46402(SC) in the case ofEtajata v Ologbo

(2007) 16 NWLR (Pt.1051) 554 at P.558-589 held per Muhammed JSC.

"Now looking at the circumstances of the case as a whole and considering the Court of Appeal

32 Act 1976 and Order 3, Rule 23 of the Court of Appeal Rules (as amended), it is not a novelty for the Court of Appeal to revisit any decision/order in the course of its consideration of an appeal before it, to review, vary or amend or even make a further order or orders earlier made by the trial Court, even where not requested for by a party, so long as in its opinion, the justice of case demands for that". In an earlier Supreme Court judgment in the case of

Onuaguluchi v Ndu (2001) 3 SC page 48 at 54, Uwaifo JSC stated as follows: -

"In the present Ruling I do not consider it necessary to comment on the respective reliefs sought before the Court of Appeal other than to say thatOrder 3, Rule 23 of the Court of Appeal Rules giving that Court the liberty to give appropriate reliefs on hearing an appeal and will not therefore be bound by the reliefs sought in the Notice of Appeal..." In this instance the Court of Appeal had held this: -

"The grant(2019) of reliefs LPELR-46402(SC) 1, 3 and 5 of the Amended Statement of Claim meant that the plaintiff/cross appellant was still in the employment of the defendant/cross respondent. The Court below, rightly

33 in my view, refused to grant reliefs 2 and 4 for reasons stated thereunder. However, the learned trial judge ought to have considered the alternative reliefs (I) and (II) of the Amended Statement of Claim, to …" (and the Court reproduced the alternative reliefs and proceeded as follows) "The cross-appellant urged us to invoke our powers under Section 15 of the Court of Appeal Act and grant him reliefs 2 and 4 of the Amended Statement of Claim, I do not think it is expedient to accede to the invitation by the cross- appellant and grant him reliefs 2 and 4. However, I think the alternative reliefs (i) and (ii) of the amended statement of claim are worthy of my CONSIDERATION". May I humbly posit that contrary to the assertion of the appellant at the bottom of page 9 of his Brief that consequently, the Court below stated further as follows: -

"However, how did the cross-appellant arrive at the sum of N30,000,000.00 (Thirty Million Naira) being his retirement(2019) benefits. LPELR-46402(SC) There is no evidence to that effect". The Court of Appeal in rejecting the Relief (ii) stated thus: -

"In the circumstances of this case, I think it is

34 inequitable to grant the alternative relief (ii) of the Amended Statement of Claim for general damages. The same is accordingly refused …. The plaintiff/cross-appellant is entitled to his rightful retirement benefits, in accordance with his condition of service as provided for in Exhibit L and he shall be so paid, by the defendant/cross respondent". The appellant's stand is that in applying Section 16 of the 1976, Court of Appeal Act that the Court below acted suo motu without inviting an address from the parties on the point before relying on that Section to consider the alternative reliefs and deciding on them rejecting some and granting others. This posture I must say is to change the narrative as going into the record, it was really the appellant who brought the alternative reliefs into focus by placing them in the Amended Statement of Claim and an appeal being a rehearing, the Court of Appeal was at liberty to give consideration to them being what that Court felt the trial Court ought to have done and failing to do so, the Court(2019) below within LPELR-46402(SC) the power so entrusted under Section 16 of the Court of Appeal Act had to step in and rectify the anomaly in

35 the interest of substantial justice and ensure a party got what he was entitled to. See Etajata v Ologbo (2007) 16

NWLR (Pt.1061) 554 at 588-589; Onuaguluchi v Ndu (2001) 7 NWLR (Pt.712) 309 at 313; FATB v Ezegbu (1993) 6 NWLR. (Pt.297) 1 at 15. Furthermore, I agree with learned counsel for the respondent that the decision of the lower Court was informed to grant retirement benefits to the appellant in keeping with the common law principle that the Court should not impose a worker on an unwilling employer. It is in maintaining the balance between the right of an aggrieved disengaged employee who ought to be heard and who has established certain rights as against the right of the employer who cannot be forced to keep an employee that employer wants off its employment that the option open to the Court as arbiter is to recognize that the employment has come to an end but the employee has to be treated as though retiring and granted retirement benefits in line with the conditions of service which in this instance is Exhibit(2019) L. It must LPELR-46402(SC)not be lost sight of that such benefits have to be claimed properly against the employer so that the Court does not run foul of

36 the principle that the Court does not grant what a party has not asked for. See Garuba v K.LC. Ltd (2005) 5 NWLR

(Pt.917) 150 at 180; Charles Ekeagwu v The Nigerian Army & Anor (2010) 16 NWLR (Pt.1220) 419per Onnoghen JSC (as he then was) stated thus: -

"In the circumstance, I hold the considered view that the appellant having been compulsorily retired, is entitled to be paid all his retirement benefit". From all that is before the Court as borne out of the record, the Court of Appeal was correct in its evaluation of what was placed in the Court of trial and came to the right conclusion in its review of the earlier trial decision. I see no basis to upset what the Court below did and in line with the better reasoning in the lead judgment I am of the humble view that the appeal lacks merit and is dismissed. I abide by the consequential orders made. Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE- EKUN, J.S.C.:(2019) The appellantLPELR-46402(SC) herein, who was a staff of the Federal Airports Authority of Nigeria (FAAN), joined the services of the Authority on 5th May 1980 as an Assistant Technical Officer on grade level 06.

37 The appointment was confirmed and he rose through the ranks up to Grade Level 13 and the position of Assistant Chief Electrical Superintendent (ACES) in the cadre of senior staff as at 1999. As part of the perks of office as a senior member of staff, he was allocated official accommodation in the Respondent's staff quarters. According to him, for no justifiable reason, the respondent began to withhold his salaries and emoluments and prevented him from carrying out his official assignments. When he made a demand for his salaries and emoluments to be paid, the respondent threatened to evict him from his official accommodation. This led to the institution of this suit before the High Court of Enugu State wherein he sought and was granted an order of interlocutory injunction restraining the respondent from evicting him.

He filed the suit that gave rise to this appeal at the Federal High Court Enugu i.e. Suit No.FHC/EN/CS/3/2005:

Syvester C. Nwoye Vs Federal Airports Authority of Nigeria,(2019) seeking to enforceLPELR-46402(SC) the payment of his salaries and emoluments.

In his amended statement of claim, he sought 5 main reliefs and two alternative reliefs as follows:

38 1. A declaration that the Plaintiff has been an employee in the service of Federal Airports Authority of Nigeria since 1980 and is still in the service of Federal Airports Authority of Nigeria, and therefore, entitled to the rights, benefits and privileges including salaries promotions and provision of accommodation attached to his post as Assistant Chief Electrical Superintendent or any other higher capacity. 2. An order of Court compelling the Defendant to accord the Plaintiff his rightful position in service by promoting him to a higher position from Assistant Chief Electrical Superintendent commensurate with his contemporaries in the service of the Defendant and also pay the Plaintiff the accrued arrears of salary and benefits on the said promotions, 3. An injunction restraining the Defendant, its agents or servants from, in any manner whatsoever, directly or indirectly, prevent the Plaintiff from his duty as Assistant(2019) Chief Electrical LPELR-46402(SC) Superintendent or in any other higher capacity in the Federal Airports Authority of Nigeria. 4. An injunction restraining the Defendant, its agents or servants from ejecting the Plaintiff from the

39 accommodation which the Plaintiff legitimately occupies at Federal Airports Authority of Nigeria (FAAN) Staff Quarters, Emene, Enugu known as line B, flat 01. 5. The sum of N7,241,451.42 (Seven Million Two Hundred and Forty One Thousand Four Hundred and Fifty One Naira Forty Two Kobo) being unpaid Arrears of salaries, annual leave allowances. Christmas Bonus, Furniture Grant and other entitlements from January 1999 - May 2009 which are due and accruing to the Plaintiff but which the Defendant unjustly and wrongly withheld despite repeated demands and from June 2009 until judgment is delivered.

In the Alternative/ the Plaintiff claims as follows:

1. The sum of N7, 241,451.42 (Seven Million Two Hundred and Forty-One Thousand four Hundred and Fifty-One Naira Forty-Two Kobo) being unpaid Arrears of salaries, annual leave allowances. Christmas(2019) Bonuses, LPELR-46402(SC) furniture grant and other entitlements January 1999 - May 2009 which are due and accruing to the Plaintiff but which the Defendant unjustly and wrongly withheld despite repeated demands and from June 2009 until judgment is delivered,

In the event of the Defendant being unwilling to take or regard the Plaintiff asits employee; the Plaintiff then claims: 40

(2019) LPELR-46402(SC) (i) The sum of N30,000,000 (Thirty Million Naira) being his retirement benefits as a senior staff of 25 years in the Defendant who put in over service and was on grade level 13 as at January, 1999. (ii) The sum of N50,000,000 (Fifty Million Naira) general damages for severe mental and emotional agony, living below poverty level while suffering the Plaintiff's deprivation and inconvenience as a result of joblessness, cause (sic) by the Defendant's unwillingness to retain the Plaintiff in its employment.

At the conclusion of the trial, the learned trial Judge granted reliefs 1, 3 and 5 and refused reliefs 2 and 4. The respondent appealed against the decision to the Court of Appeal, Ado-Ekiti Division. The appellant was also dissatisfied with the failure of the learned trial Judge to grant reliefs 2 and 4 and filed a cross appeal.

A preliminary(2019) objection LPELR-46402(SC) was raised in respect of respondent's appeal. The lower Court found the objection to have been well founded and struck out the respondent's appeal. Thereafter the Court considered the appellant's cross-appeal.

41 It held that the learned trial Judge was right not to have granted reliefs 2 and 4 and declined to invoke its powers under Section 15 of the Court of Appeal Act to grant the said reliefs. It however granted relief (I) of the alternative reliefs.

It is the appellant's contention in this appeal, inter alia, that the lower Court had no jurisdiction to consider or determine the alternative reliefs because there was no appeal arising from the reliefs. It was contended that the Court raised the issue of the alternative reliefs suo motu and therefore denied him his right to fair hearing. It was argued that the lower Court made a finding that the appellants was still in the respondent's employment and that if that was the case, his reliefs 2 and 4 ought to have been granted. I have had the benefit of reading in draft the judgment of my learned brother, AMIRU SANUSI, JSC just delivered. I agree with the reasoning and conclusion therein. As highlighted(2019) in theLPELR-46402(SC) lead judgment,Section 15 of the Court of Appeal Act 2007, grants the Court of Appeal general powers which it may exercise in order to resolve all the matters in issue before it, as if it were the Court of first instance.

42 Such powers include the granting or orders which the trial Court has the jurisdiction to grant. The exercise of the power must be done strictly in relation to the particular issues thrown up by the notice of appeal. See: Inakoju Vs

Adeleke (2006) 4 NWLR (Pt.1025)423; Dapianlong Vs Dariye (2007) 8 NWLR (Pt. 1036) 332. In the instant case the appellant's grouse is that his reliefs 2 and 4 ought to have been granted. In prayer 2, reproduced earlier, the appellant's sought an order compelling the respondent to promote him to a higher position commensurate with his contemporaries still in service and to pay him the accrued arrears of salary and benefits in respect of the said promotion. There is no doubt that relief 2 could only be considered if it were determined that the appellant is still an employee of the respondent. Recognizing that there is a possibility that relief 2 would not be granted, he had an alternative relief, to ensure that he did not leave the Court empty-handed. In other words, he was "hedging his bets." The alternative reliefs (i) and (ii) are prefaced(2019) with the LPELR-46402(SC) following statement:

"In the event of the Defendant being unwilling to take

43 or regard the Plaintiff as its employee, the plaintiff then claims….” The two alternative reliefs have been set out earlier. An alternative relief arises in an either/or" situation. If the main relief is granted, there would be no need to consider the alternative relief. If the main relief is refused, the Court would be obliged to consider whether the claimant is entitled to any of the alternative reliefs. The alternative reliefs are part and parcel of the claim but would only be considered where the main claim has been considered and refused. See Newbreed Organization Ltd. Vs

Erhomosele (2006) 5 NWLR (Pt.974) 499; Mercantile Bank of Nigeria Ltd. Vs Adalma Tanker Bunkering Services Ltd. (1990) 5 NWLR (Pt. 153) 747; NNPC Vs Clifco Nig. Ltd. (2011) 10 NWLR (Pt.1255) 209. It is therefore incorrect to assert, as the appellant did under issue 1, that the lower Court raised the issue of the alternative reliefs suo motu or without hearing the parties. Since the alternative reliefs were part of his case ab initio, and he could(2019) not know LPELR-46402(SC) at the trial stage which of his reliefs would be granted, it must be presumed that he had placed

44 before the Court all the relevant material that would entitle him to his main reliefs or the alternative reliefs. The lower Court cannot be faulted for looking into the alternative reliefs. Indeed, the alternative relief (i) though modified, was granted in his favour. He has no cause to complain.

I also agree entirely with my learned brother that the lower Court was right when it upheld the refusal of reliefs 2 and 4 by the trial Court. Promotion from one level or position in an organization to another is not a right but a privilege, which is earned. An employer cannot be compelled to promote its employee no matter the good opinion the employee might have of himself

With regard to the appellant's third issue, it would not be correct, as contended, that the lower Court found that his employment had statutory favour. The fact that the Court affirmed the grant of reliefs 1,3 and 5 and thereby agreed that the appellant is entitled to his rights, benefits and privileges,(2019) cannot be LPELR-46402(SC) interpreted to mean that the Court made a finding that his employment enjoyed statutory favour.

The appellant has not suffered any miscarriage of justice

45 from the affirmation by the lower Court of reliefs 1, 3 and 5 granted by the trial Court.

On the whole, I agree with my learned brother that this appeal is devoid of merit. I dismiss it and abide by the consequential orders made in the lead judgment.

EJEMBI EKO, J.S.C.: I had a preview of the judgment just delivered in this appeal by my learned brother, AMIRU SANUSI, JSC. The analyses and the resolutions of the issues canvassed in the appeal represent and accord with my views of the said issues.

I do not think it is still necessary to engage in any further boring repetition. Accordingly, I hereby adopt the judgment including all the orders made therein.

(2019) LPELR-46402(SC)

46 Appearances:

J.C. Okafor For Appellant(s)

Igwe Kingsley Chima For Respondent(s)

(2019) LPELR-46402(SC)