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2019) Lpelr-46402(Sc

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2019) Lpelr-46402(Sc NWOYE v. FAAN CITATION: (2019) LPELR-46402(SC) In the Supreme Court of Nigeria 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.
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