NIGERIAN ACADEMY OF SCIENCE v. EKANEM& ANOR

CITATION: (2018) LPELR-46770(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON TUESDAY, 18TH DECEMBER, 2018Suit No: CA/L/405M/2010

Before Their Lordships:

UGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of AppealTOBI EBIOWEI Justice, Court of Appeal

BetweenNIGERIAN ACADEMY OF SCIENCE - Appellant(s)

And1. DR INYANG EKANEM2. UNITED BANK FOR AFRICA - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - PARTIES TO APPEAL: Designation of parties to an appeal"In CHIEF GABRIEL FOLORUNSHO OJO & ANR v CHIEF SAMUEL DADAAKINYEMI (2013) LPELR - 22139 (CA), GALINJE, JCA at Page 12, paras B-Eheld thus:...Both counsel for the Appellants and the respondent in formulatingissues for determination of this appeal referred to the parties to thisappeal as plaintiffs and defendants. Such parties are unknown to theproceedings at Court of appeal. The parties before this Court are eitherAppellant and Respondent or applicant and Respondent. Counselappearing before this Court must make it a duty to set out the partiescorrectly, or it will be taken that proper parties are not before the Court.Plaintiffs and Defendants are strange parties in appeal processes andshould not be reflected as parties before this Court. The parties on theAppellants' notice of appeal are Appellants and Respondent. Any partythat is different from the ones on the notice of appeal, is a stranger to theappeal, as such any argument on his behalf will surely go to no issue.DUZU v YUNUSA [2010] 10 NWLR (1201) 80 at 103 para H. See OJO &ANOR v AKINYEMI (2013) LPELR -22139 (CA); ISAIAH & ANOR v ASSOR &ANOR (2011) LPELR 4136(CA)."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 3-4,Paras. E-D) - read in context

2. DAMAGES - GENERAL DAMAGES: Guiding principles for the award ofgeneral damages<span style="font-size: 12px;">"In SAIHU ABDULAZIZ &amp; ANOR vHON. ATTORNEY GENERAL OF FEDERATION (2013) LPELR-22128 (CA)BADA, JCA held that: "General damages is quantifiable or calculated byrelying on what would be in the opinion of a reasonable man since generaldamages is always at large, the trial Court may also take into account themotive and conduct of the defendant where in aggravate the claimantsinjury, see GKF INVESTMENT LTD v NIGERIAN TELECOMMUNICATIONPLC[2009] 15 NWLR (PT 1164) Pg 344 TANKO v MAI-WAKA (2010) 1NWLR(PT. 1176) Pg 468 ALUMINIUM MANUFACTURING CO. NIGERIA vVOLKSWAGEN OF NIG [2010] 7 NWLR (PT 1192) Pg 97."</span>PerOBASEKI-ADEJUMO, J.C.A. (P. 12, Paras. B-E) - read in context

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3. PRACTICE AND PROCEDURE - PRE-TRIAL CONFERENCE: Effect ofnon-compliance with the rules regulating pre-trial conference<span style="font-size: 12px;">"This appeal largely dwells on the effectof a pre-trial Conference under the Lagos State High Court (CivilProcedure) Rules. A pre-trial conference under Order 25 Rules 6(a)provides that: "If a party or his legal practitioner fails to attend the pretrialconference or obey a scheduling or pretrial order or is substantiallyunprepared to participate in good faith the judge shall (a) In the case ofthe plaintiff dismiss the claim (B) In the case of a defendant enter finaljudgment against him. Any judgment given under this rule may be setaside upon application made within 7 days of judgment or such otherperiod as the pretrial judge may allow not exceeding the pretrialconference period..." See ACCESS BANK PLC v MRS ADERONKEFOLASHADE SIJUWADE (2016) LPLER-40188(CA). Whether a pre-trialjudgment such as in this appeal is not final? I have perused the records ofappeal and find that the Appellant failed repeatedly to attend thescheduled dates despite service on him; hence judgment was enteredagainst him. See pages 166 of the record. Furthermore, the Appellantfailed to avail himself of the obligation the law placed on him when afterfiling to set aside the judgment he again abandoned same which wasstruck out. See page 171 of record. A repeated attempt to change counseland move to set aside the judgment was made by Fadahusi, Esq at page195-199 of the record but the pre-condition of paying cost before same ismade was not fulfilled hence for the second time this application wasthrown out (pages 267 - 268) and under the circumstances the judgmenttranslated to a final judgment. In SAM EGBUCHUNAM v MR MIKE AIDEYAN&amp; ORS (2012) LPELR-7996 (CA) DANJUMA, JCA stated that: "...Thereason are that the claims were not proved and more so the award wereat variance with the claims. It is my view that so long as the Court is toenter final judgment for a claimant when the Defendant fails to appear ata pretrial conference, it is that rule of Court that should be enforced, aCourt cannot recreate another procedure by converting this mandatoryprocedure to another with a view to making a case on its merit for theappellant. it is not the business of the Court to so do, as it must be evenhanded in holding the scale of justice... Both parties and the Court arebound to observe the rules of Court, see CCB (NIG) PLC v A.G. ANAMBRA[1992] 8 NWLR (PT 216) 528... The Respondent was again right when hesubmitted that the use of the word "shall" in the said Order 25 Rule 6signifies a compulsion or obligation or mandatory on the part of the judgeto take the decision of dismissal in the circumstances. See OJULG vINEC..." I adopt the above reasoning as mine in this appeal."</span>PerOBASEKI-ADEJUMO, J.C.A. (Pp. 9-11, Paras. A-C) - read in context

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

(Delivering the Leading Judgment): This is an appeal

flowing from the judgment of the High Court of Lagos

(coram WILLIAMS, J) delivered on the 16th day of May,

2007, whereby judgment was entered for the claimant/1st

Respondent per the 1st and 2nd claims endorsed on the

Writ of Summons and in paragraph 12 of statement of claim

in Order 25 Rule 6 (b) of Rules of Court.

The facts of the case are that the claimant/1st Respondent

was offered an appointment by the defendant/Appellant as

an Administrative Secretary on the 14th day of March,

1994. He resigned after many years and demanded for

payment of his benefits/entitlements of N942,373.48 which

was not paid, hence the suit was instituted.

The claims were granted at pre-trial stage pursuant to

Order 25 Rule 6 of the High Court of Lagos State (Civil

Procedure) Rules, 2004. The Appellant was dissatisfied with

the decision of learned trial judge awarding N5 Million

general damages for breach of contract, against the same

and filed a Notice of appeal dated 30th November, 2010.

The Appellant filed its brief of argument on 15th May,

2012

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deemed 13/6/16, and reply brief on 21/3/17 deemed

14/11/18 where two issues were distilled thus:

1. Whether there was any breach of contract to justify

the award of N5m general damages by the learned

trial judge and the award can be sustained in view of

the pleadings.

2. Whether the award of N5 Million as general

damages is double compensation, excessive

gratuitous and on sentiment.

1st Respondent brief was filed on 19th December, 2011,

further deemed 13th June, 2016 made by Mike Umonnan of

Mike Umonnan who also distilled two issues

1. Whether the 1st respondent needed to prove any

breach of employment at the pretrial stage of the case

to be entitled to the damages awarded.

2. Whether the judgment of the trial Court is

supported by Order 25 Rule 6(a) of the High Court of

Lagos (Civil procedure) Rules 2004.

2nd Respondent brief filed 16th March, 2011 deemed 13th

June , 2016 by Imoh Gideon Udof ia o f Va lour

Chambers wherein he formulated:

“Whether the Appellant’s Notice of Appeal discloses

any ground of appeal against the 2nd Respondent.”

I shall first deal with the 2nd Respondent’s sole issue

which

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is a jurisdictional issue. See MADUKOLU & ORS v

NKEMDILIM (1962) LPELR – 24023(SC).

The 2nd Respondent contends that it is only the parties to

an action that can complain about its proprietary or

otherwise and the 2nd Respondent not being a party to the

suit at the lower Court cannot be dragged in at the appeal

stage. He relied on A. G. ANAMBRA STATE v OKEKE

(2002) ALL FWLR 112; KALAGBOR v INEC (2009) ALL

FWLR 483 at 1339; SANUSI v MODU [1994] 5 NWLR

(PT. 374) 732. He contended that the 2nd Respondent is

not a necessary party and there is no complaint against him

in the Notice of Appeal and therefore the Court lacks

jurisdiction and should be struck out.

The Appellant‘s reply brief to the 1st Respondent did not

contain submissions in response to the 2nd Respondent,

therefore this Court shall examine this jurisdictional issue.

In CHIEF GABRIEL FOLORUNSHO OJO & ANR v

CHIEF SAMUEL DADA AKINYEMI (2013) LPELR –

22139 (CA), GALINJE, JCA at Page 12, paras B-E held

thus:

…Both counsel for the Appellants and the respondent

in formulating issues for determination of this appeal

referred to the parties to this appeal as

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plaintiffs and defendants. Such parties are unknown

to the proceedings at Court of appeal. The parties

before this Court are either Appellant and

Respondent or applicant and Respondent. Counsel

appearing before this Court must make it a duty to

set out the parties correctly, or it will be taken that

proper parties are not before the Court. Plaintiffs and

Defendants are strange parties in appeal processes

and should not be reflected as parties before this

Court. The parties on the Appellants' notice of appeal

are Appellants and Respondent. Any party that is

different from the ones on the notice of appeal, is a

stranger to the appeal, as such any argument on his

behalf will surely go to no issue. DUZU v YUNUSA

[2010] 10 NWLR (1201) 80 at 103 para H. See OJO &

ANOR v AKINYEMI (2013) LPELR -22139 (CA);

ISAIAH & ANOR v ASSOR & ANOR (2011) LPELR

4136(CA).

At page 1 of the record of appeal is the Writ of Summons

and Statement of claim at page 3 filed on 15th March, 2006

together with the judgment at page 244 respectively have

the parties as; Dr. IYANG A. EKANEM AND THE

NIGERIAN ACADEMY OF SCIENCE throughout. The name

of the 2nd Respondent was introduced at page 257 as

GARNISHEE in an ex-parte application wherein decree nisi

was granted, which was later made absolute in a Ruling on

6th December, 2009, but the 2nd Respondent’s name is

missing in the enrolled order of 6th October, 2009. Again in

the enrollment of order, the name of the Garnishee

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appeared

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wherein the Court refused to set aside the Garnishee order

made on 18th November, 2009.

The Notice of Appeal at page 273 has the name of the 2nd

Respondent but in all the grounds there is no complaint

against the 2nd Respondent. The appeal is against the

judgment, specifically against the award of N5Million as

damages on the alleged breach of contract judgment of the

Court and NOT the Garnishee order.

Following the decision of this Court and the Apex Court the

2nd Respondent is neither a necessary or nominal party

and by virtue of Order 6 Rule 6 of Court of Appeal Rules,

the name of the 2nd Respondent is hereby struck out, with

N100,000 cost against the Appellant.

MERITS OF THE APPEAL

The Appellant submitted on his issue 1 that admission

needs not be proved, that it is not in dispute that the

appointment of the Respondent was not terminated, and

that the reliefs sought are for breach of contract and the

Respondent was awarded general damages as claimed in

paragraph 12(3) which is for breach of contract of

employment. Appellant relied on AIR VIA LTD v

ORIENTAL AIRLINES LIMITED [2004] 9 NWLR (PT.

878) PG 298 NIGERIA AGRICULTURAL AND

COPERATIVE BANK LTD v PETER ACHA GWA [2010]

NWLR (PT. 1205) PG 339

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Appellant submitted that the Court needed to inquire into

the employment because the Respondent had a duty to

prove the amount of damages.

Appellant contended that no breach of contract was alleged

to entitle the Respondent to an award of damages. He

relied on NNB PLC v ALHAJA MSA ABUBAKAR & SONS

[2004] 17 NWLR (PT. 901) PG 81.

The 1st Respondent on the other hand referred to

ELIOCHIN v MBADIWE [1986] 1 NWLR (PT. 14) 47;

TAO & SONS INDUSTRIES LTD v GOV OF OYO STATE

& ANOR (2011) 17 WRN 157 and submitted that the

damages was rightly granted. The 1st Respondent stated

that from the provision of Order 11 Rule 1 & 5(2) of the

High Court of Lagos State Civil Procedure Rules, 2004, the

Respondent does not need to enter into the witness box to

give evidence as the written statement on oath is regarded

as his evidence before the Court. He further relied on

OCEANIC BANK INT. LTD v CHITEX IND. LTD [2000]

FWLR (PT. 4) 678 on the definition of breach of contract

and submitted that breach of contract has been

established.

ISSUE TWO

The Appellant referred to the Writ of Summons and

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S t a t e m e n t o f C l a i m w h i c h i s t h e d e t a i l s o f

benefit/entitlement that same was granted at pre-trial

conference without the minimum proof required. He

contended that the additional grant of N5 Million amounted

to double compensation. He relied on NNPC v SELE

[2004] 5 NWLR (PT. 866) Pg 379; BENEDICT

OLUIGBO & ORS v GODFREY UMEH [2004] 6 NWLR

(PT. 870) Pg 621; NNB PLC v ABUBAKAR (SUPRA).

The 1st Respondent in response submitted that by the

reason of Order 25 Rule 6(a) High Court of Lagos State

Civil Procedure Rules, 2004, the judgment is a final

judgment. He relied on WORLD MISSION AGENCY INC

v SODEINDE (2010) 12 WRN 149; AKINSANYA v UBA

(2001) 42 WRN 67; AKOH v ABUN [1988] 3 NWLR

(PT. 85) 698; IWUEKE v IBC (2006) 1WRN 32.

Respondent submitted that the Court was in order when

she granted the claims. He relied on OLUSUOOKUN v

POPOOLA & 4 ORS (2010) 5 WRN 80; THE HONDA

PLACE LTD v GLOBE MOTORS HOLDINS LTD (2005)

7 SCNJ 522 AND ONYEABUCHI v INEC (2002) 29

WRN 64

In its reply brief, the Appellant submitted that new issues

were raised by the Respondent in paragraphs 4-7 and 4-10

in its brief wherein he said that the suit was brought under

an

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undefended list in Order 11 of the High Court of Lagos

State Civil Procedure Rules, 2004 and that the pre-trial

conference was a final judgment. He relied on POPOOLA v

ADEYEMO [1992] 8 NWLR (PT. 257) 1 at Pg32, paras

B-D to contend that the Appellant had filed a Statement of

defence to the application of 13th March, 2006, and that

the suit did not proceed to pre-trial conference as

undefended action. He submitted that it was the

Respondent who applied for trial on 19th September, 2006.

He relied on OBARO v HASSAN [2013] NWLR (PT.

1357) Pg 425 to contend that a defense must not have

been filed for summary judgment to proceed.

The Appellant referred to Order 25 Rule 6(a) of the High

Court of Lagos State Civil Procedure Rules, 2004 dealing

with pre-trial conference and scheduling that a judgment

obtained under this order can be set aside within 7days of

the judgment and therefore cannot be a final judgment. He

relied on ALOR v NGENE [2007] 17 NWLR (PT. 1062)

PAGE 163 at 177, paras D-E. He urged the Court to hold

that pre-trial judgment is not a final decision and set aside

the award of damages.

RESOLUTION

This Court shall resolve the two issues together and shall

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adopt the Appellant’s issues for determination whilst taking

into account the Respondent’s submissions.

This appeal largely dwells on the effect of a pre-trial

Conference under the Lagos State High Court (Civil

Procedure) Rules. A pre-trial conference under Order 25

Rules 6(a) provides that:

“If a party or his legal practitioner fails to attend the

pretrial conference or obey a scheduling or pretrial

order or is substantially unprepared to participate in

good faith the judge shall (a) In the case of the

plaintiff dismiss the claim (B) In the case of a

defendant enter final judgment against him. Any

judgment given under this rule may be set aside upon

application made within 7 days of judgment or such

other period as the pretrial judge may allow not

exceeding the pretrial conference period…" See

ACCESS BANK PLC v MRS ADERONKE FOLASHADE

SIJUWADE (2016) LPLER-40188(CA).

Whether a pre-trial judgment such as in this appeal is not

final? I have perused the records of appeal and find that the

Appellant failed repeatedly to attend the scheduled dates

despite service on him; hence judgment was entered

against him. See pages 166 of the record.

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Furthermore, the Appellant failed to avail himself of the

obligation the law placed on him when after filing to set

aside the judgment he again abandoned same which was

struck out. See page 171 of record.

A repeated attempt to change counsel and move to set

aside the judgment was made by Fadahusi, Esq at page

195-199 of the record but the pre-condition of paying cost

before same is made was not fulfilled hence for the second

time this application was thrown out (pages 267 – 268) and

under the circumstances the judgment translated to a final

judgment.

In SAM EGBUCHUNAM v MR MIKE AIDEYAN & ORS

(2012) LPELR-7996 (CA) DANJUMA, JCA stated that:

“...The reason are that the claims were not proved

and more so the award were at variance with the

claims. It is my view that so long as the Court is to

enter final judgment for a claimant when the

Defendant fails to appear at a pretrial conference, it

is that rule of Court that should be enforced, a Court

cannot recreate another procedure by converting this

mandatory procedure to another with a view to

making a case on its merit for the appellant. it is not

the business

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of the Court to so do, as it must be even handed in

holding the scale of justice… Both parties and the

Court are bound to observe the rules of Court, see

CCB (NIG) PLC v A.G. ANAMBRA [1992] 8NWLR (PT

216) 528…

The Respondent was again right when he submitted

that the use of the word “shall’’ in the said Order 25

Rule 6 signifies a compulsion or obligation or

mandatory on the part of the judge to take the

decision of dismissal in the circumstances. See

OJULG v INEC...” I adopt the above reasoning as mine in

this appeal.

Now the issue of the award of damages shall be addressed.

The Respondent had stated that he was entitled to this sum

since his retirement. The Appellant filed a defense but

failed to attend the defense of the case despite several

letters to him and hearing notices. He chose to hold the

hand of the Court up, in spite of the purpose of a pre-trial

conference. The lower Court found that this payment was

due since September, 2003 but the Appellant kept mute

thereby frustrating the efforts of the Respondent. It was

also part of the terms of employment that upon resignation

if

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quantified, the sums due to him would be paid. In my view

he resigned and his entitlement was deliberately withheld.

This amounts to a breach of the terms therein and he was

therefore by law entitled to damages.

In SAIHU ABDULAZIZ & ANOR v HON. ATTORNEY

GENERAL OF FEDERATION (2013) LPELR-22128 (CA)

BADA, JCA held that:

“General damages is quantifiable or calculated by

relying on what would be in the opinion of a

reasonable man since general damages is always at

large, the trial Court may also take into account the

motive and conduct of the defendant where in

aggravate the c la imants in jury , see GKF

I N V E S T M E N T L T D v N I G E R I A N

TELECOMMUNICATION PLC [2009] 15 NWLR (PT

1164) Pg 344 TANKO v MAI-WAKA (2010) 1 NWLR

(PT. 1176) Pg 468 ALUMINIUM MANUFACTURING

CO. NIGERIA v VOLKSWAGEN OF NIG [2010] 7

NWLR (PT 1192) Pg 97.”

Therefore having gone through frontloaded documents,

pleadings and the conduct of the Appellant, the pre-trial

judge was bound to enter judgment and award the general

damages flowing from the deliberate and unjustifiable

withholding of the Respondent’s entitlements for over 3

years.

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Furthermore, the wordings of Order 25 of the High Court

of Lagos State Civil Procedure Rules, 2004 brooks no

evidence viva voce. All that was needed was present for the

Court to evaluate.

Therefore this Court cannot upturn what the Appellant

brought upon himself.

This appeal therefore fails and it is accordingly dismissed.

The judgment of the lower Court coram WILLIAMS, J

delivered on 16th May, 2007 is accordingly affirmed. Costs

of N200,000 is awarded in favour of the Respondent.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely

agree with, and I do not desire to add to, the reasoning and

conclusion in the leading judgment of my learned brother,

Abimbola Osarugue Obaseki-Adejumo, JCA, which I was

privileged to read in draft.

For the same reason therein contained, I equally join in

dismissing the appeal. I abide by the order as to costs.

TOBI EBIOWEI, J.C.A.: I agree.

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Appearances:

T.O.S. Fadahunsi with him, Abiola Olowo ForAppellant(s)

Respondent not representedFor Respondent(s)

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