FACTS

The Appellant was an employee of the Respondent, before he was retired by the Respondent at the age of 52 years in 1994. Aggrieved, the Appellant instituted an action against the Respondent at the Federal High Court, Enugu Judicial Division, seeking a declaration that his purported compulsory retirement from the services of the Respondent is null and void.

It was his case that his employment with the Respondent was pensionable, and with statutory flavour; and by the conditions of service applicable to the pensionable staff of the Respondent, he was entitled to continue in the Respondent’s pensionable employment up to the age of 60 years. He also sought a declaration that he continues to be in the employment of the Respondent, as well as an injunction restraining the Respondent from interfering with his employment prejudicially. He sought in the alternative, an order directing the Respondent to pay him the sum of N10,000,000 (Ten Million Naira) as damages for the unexpired period of service, up until when he should have been due for retirement.

The Respondent did not file any defence to the claim; hence, the action was determined on the basis of the case presented by the Appellant, who gave both oral and documentary evidence.

The trial court delivered judgement in favour of the Appellant, and nullified his retirement by the Respondent. The trial court also awarded general damages in the sum of N2,000,000.00 (Two Million Naira) in favour of the Appellant.

Dissatisfied, the Appellant filed an appeal at the Court of Appeal. The Court of Appeal allowed the appeal, and set aside the judgement of the trial court on the basis that the Appellant did not prove that he was an employee of the Respondent, or that his employment was one with statutory flavour, having not pleaded or tendered his letter of employment which embodies the terms of his employment with the Respondent. Aggrieved with the outcome of the appeal, the Appellant appealed to the Supreme Court.

Issues for Determination

In resolving the appeal, the Supreme Court considered the following issues as being central to the appeal:

1. Whether the Court of Appeal was right in its finding that the Appellant did not plead facts or adduce satisfactory evidence before the trial court to prove that he was a pensionable employee of the Respondent, and that the employment was one with statutory flavour. 2. Whether the Court of Appeal was right when it held that the Appellant did not place enough material before the trial court, upon which the award of N2,000,000.00 as damages could be sustained.

Arguments

On the first issue, counsel for the Appellant argued that since the Respondent did not file any defence or join issues with him on his averments that he was a pensionable staff whose employment is with statutory flavour, there was no need for the letter of employment to be tendered in evidence based on the principle that what is deemed admitted needs no further proof. Responding, counsel argued on behalf of the Respondent that the Appellant’s letter of appointment containing the terms of his employment was a very important document that ought to have been tendered by the Appellant, and owing to the Appellant’s failure to tender same to show the terms and conditions of the contract between him and the Respondent, he had failed to prove his case as required by law. Arguing the second issue, counsel for the Appellant relied on the authority of IGBE v GOVERNOR OF BENDEL STATE (1983) 1 SCNLR 73, and contended that the Appellant was entitled to the award of general damages which does not require to be specifically pleaded and proved. He submitted that the lower court was wrong, to have set aside the award by the trial court. Conversely, counsel for the Respondent submitted that general damages is not recognised under contracts of employment. Thus, since the Appellant did not prove his claim, the award of damages did not arise, and the Court of Appeal was therefore, right to have set aside the erroneous award by the trial court. He relied on I.D.C. NIGERIA LIMITED v AJIJALA (1976) All NLR (Pt. 117) 131.

Court’s Judgement and Rationale

Deciding the first issue, the court held that the very foundation of an action by an employee against an employer for alleged wrongful or unlawful determination or termination of his employment is his letter of appointment or employment, which contains the terms and conditions that form the basis of the employment and the contract or agreement between the parties. The success or failure of the action is entirely dependent on the terms and conditions agreed to by the parties in their contract of employment, as evidenced by the letter of employment. The court referred to IDEH v UNIVERSITY OF ILORIN (1994) 3 NWLR (Pt. 330) 1.

Regarding the argument about the status of the Appellant’s employment in the statutory corporation established by law, the court held that the law remains that the status of an employment is determined by recourse to the contents of the letter of employment or appointment. This is because the mere fact that the employer is a corporation or institution established or created by a statute, does not ipso facto make all its employments or appointments clothed with statutory flavour. It is not enough to merely prove that the employer is a creation of statute, there must be proof that the employment is directly governed or regulated by a statute.

The legal burden and duty was on the Appellant who approached the trial court with the allegation of wrongful determination of his employment by the Respondent, to show by the terms and conditions of his contract of employment with the Respondent. And that the category of his appointment or employment was one which was provided for and protected by the provisions of the law establishing the Respondent, before it can reasonably be said to be clothed with, to enjoy and carry, statutory flavour. The court cited WAEC v OSHIONEBO (2006) 12 NWLR (Pt. 994) 258. In the instant case, the Appellant did not place any evidence of the terms and conditions of his employment with the Respondent before the trial court, in order for the nature, status or category of the employment to be determined as required by law. Until the terms and conditions of the agreement are placed before the trial court, the Appellant’s claim for wrongful termination of the Appellant’s employment by way of retirement with immediate effect, cannot be reasonably determined with any certainty, even on the balance of probabilities.

Their Lordships held further that while it is trite law that what is admitted need not be proved, claims that are declaratory in nature are never granted solely upon admission by the adverse party. Declarations as to title or legal right are not granted merely on the basis of admission by the adverse party alone, but proof by way of satisfactory, credible and sufficient evidence showing the entitlement of the Claimant to the declarations or reliefs is necessary. The court relied on OKOYE & ORS v NWANKWO (2014) 15 NWLR (Pt. 1429) 93. It was the duty of the Appellant who sought declaratory reliefs from the trial court, to adduce and place before the court, credible and sufficient evidence that would reasonably establish that he is indeed, entitled to the grant of the reliefs. He must rely and succeed on the strength of his own case, and not on the absence of a defence or presumed admission by the Respondent.

In determining the second issue, the court held that in claims for breach of contract, either ordinary or for employment, award of damages depends on the terms and conditions of such contract, and the quantum assessed on the basis of the evidence of the facts and circumstances giving rise to the breach of the agreement between the contracting parties. More so, by the authorities of OGBAJI v AREWA TEXTILES PLC (2000) 11 NWLR (Pt. 678) 332 and SHENA SECURITY CO. LTD v AFROPAK NIG. LTD (2008) 4 – 5 SC (Pt. II) 117, general damages are not usually awarded for wrongful termination of employment. More importantly, with the Appellant’s failure to prove the claim for wrongful or unlawful termination of his employment, the issue of the type or quantum of damages which the Appellant was entitled to, did not arise.

Appeal Dismissed.

Representation

Onyechi Araka Esq. with B.I. Oluwade, Esq.; Harold Ekwerekwu, Esq.; Rita Ihikew, Esq. and R.C. Nwogbu, Es. for the Appellant. Fidelis Mbadugha Esq. with F. James Nwanyanwu Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)