3PLR – NEW NIGERIA BANK PLC V. GABRIEL EGUN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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NEW NIGERIA BANK PLC

V.

GABRIEL EGUN
COURT OF APPEAL BENIN DIVISION

25TH JANUARY 2001

CA/B/210/98

3PLR/2001/240 (CA)

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

NIKI TOBI

BABA ALKALI BA’ABA

SAKA ADEYEMI IBIYEYE

 

REPRESENTATION

Pat Onegbedan, Esq – for the appellant.

K.O. Longe Esq – for the respondent.

 

MAIN ISSUES

COMMERCIAL LAW – CONTRACT – Agreement between workers association and employers association – whether enforceable by an employee against employer.

PRACTICE AND PROCEDURE – EQUITY – Principles of equity – whether can void positive terms in a contract of service.

PRACTICE AND PROCEDURE – Joinder of issues – when parties are said to have joined issues.

 

NIKI TOBI, JCA (Delivering the leading judgment):

The respondent joined the appellant the New Nigeria Bank Plc as an Accountant Grade II, senior staff, on an annual salary of £940. He rose to the rank of Area Manager on an annual salary of N36,900.00. As Area Manager, the respondent was a management staff. On the attainment of the age of 55 years, the respondent was retired from service. This was conveyed to the respondent by letter dated 30th September, 1991. That letter is exhibit “D”. The respondent wrote to the appellant that exhibit “D” was an over sight because the rules of the bank were that an employee shall retire at the age of 60 years and not 55 years. On 25th November, 1991, the appellant sent a reply to the respondent informing him that he was retired as a result of re-organisation in the bank.

Respondent sued. He sought a number of declaration and injunction to restrain the appellant from impounding the vehicle registration No. BD7645 BF which the respondent was using at the material time. In the alternative, the respondent claimed special and general damages. He also claimed a declaration that he was entitled to purchase the vehicle, monthly pension, and superannuation contribution. Respondent gave evidence and called no witness. A confidential secretary gave evidence for the appellant. After address of counsel the learned trial Judge awarded what he called retirement benefits to the respondent in the sum of N24,542.50 and general damages of N2,000.00 making a total of N26,542.50. The learned trial Judge also declared as follows:

“I hereby declare that the plaintiff is also entitled to the following claims:

“3(a) To purchase peugeot saloon car with registration No. BD 7645 BF at 10% of valuation done by a reputable automobile workshop agreeable to both parties.

(b)     Monthly pension (to be calculated on the aggregate of basic salary, plus housing, transport and luncheon allowances).

(c)     Superannuation contribution (personal/banks)

(d)     An injunction restraining the defendant, its servants, agents and privies from impounding the vehicle with registration No. BD 7645 BF contrary to the terms of employment and the practice of the defendant’s bank.”

Dissatisfied with the judgment of the learned trial Judge, both parties appealed. Briefs were filed and duly exchanged. Appellant formulated the following issues for determination.

“1.     Whether or not the award of general damages for breach of contract of employment is still known to our law?

2. Whether or not the order of the lower court that the respondent was entitled to purchase Peugeot saloon car with registration No. BD 7645 BF at 10% of valuation was not an obvious contradiction of exhibit H and his earlier observation in the judgment at page 132 lines 10-19?
3. Whether or not there was any iota of evidence during trial to justify the award of monthly pension to be calculated in the aggregate of basic salary plus housing, transport and luncheon allowances?”

Respondent formulated the following issues for determination:

“(i)     Whether the award of general damages was for breach of contract.

(ii)     Whether the defendant led evidence in support of paragraphs 19 and 20 of their statement of defence.

(iii)    Whether the defendant joined issue on the plaintiff’s claim that he was entitled to monthly pension to be calculated in the aggregate of basic salary, plus housing, transport and luncheon allowance.”

The cross-appellant in its brief formulated the following issue for determination:

“Whether the onus was on the plaintiff to prove that the car purchased by the defendant but attached to the plaintiff had not been used for at least three years.”

The cross-respondent in his brief formulated the following issue for determination:

“Whether the only issue canvassed in the cross-respondent’s brief relates to any of the grounds of appeal in this appeal.”

Learned counsel for the appellant, Mr. Pat Onegbedan submitted on issue No. 1 that since the decision of the Supreme Court in Paterson Zochonis and Co. Ltd. v. Ogedengbe (1972) 3 SC 98; 1 All NLR (Pt. 1) 202, it became settled that our courts do not award general damages for breach of contract of employment. Counsel also cited Swiss-Nigeria Wood Industries Limited v. Bogo (1972) 1 All NLR (Pt. 2) 433, (1971) 1 U.I.L.R. (Pt. 3) 337 at 341; Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 at 538 and Alraine (Nigeria) Limited v. Eshiett (1977) 1 SC. 89. On issue No. 2, learned counsel submitted that the lower court erred in law for holding that the respondent was entitled to purchase the vehicle. The moral reason proffered by the learned trial Judge is contrary to the dictum of Oputa, JSC in Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 690, learned counsel contended. He also relied on Savannah Bank (Nig) Ltd. v. Salami (1996) 8 NWLR (Pt. 465) 131 at 139.

On issue No. 3, learned counsel submitted that the lower court erred in law for declaring that the respondent was entitled to monthly pension to be calculated on the aggregate of basic salary, plus housing, transport and luncheon allowances. He also submitted that monthly pension calculated on the prescribed aggregate, based on total emolument does not exist in the conditions or terms of service which governed the contractual relationship between the parties.

Exhibit B, the main collective agreement is a mere gentleman’s agreement arising from trade union pressure and has no legal force or bindingness on the appellant, learned counsel argued. He cited Nigeria Arab Bank Ltd. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450 at 469 and Union Bank of Nigeria Ltd. v. Edet (1993) 4 NWLR (Pt. 287) 288 at 298 and 299. Learned counsel pointed out that exhibit B which has no legal force and not justiciable did not also provide for the computation of pension benefits based on aggregate of that neither exhibit C nor exhibit F provided for computation of pension benefits based on total emoluments. Having failed to establish that there is any provision which entitles the respondent to compute his monthly pension based on total emoluments as he claimed, It thus became a violence to justice for the lower court to have donated arbitrary figures to the respondent on the altar of charity, learned counsel submitted. He cited Attorney-General Bendel State v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 37) 547 at 563 and Savannah Bank v. Salami (supra). In the light of the above, learned counsel submitted that the award made by the lower court on monthly pension is unwarranted and has merely opened a floodgate of unconscionable claims and needless litigations by other pensioners against the appellant. He urged the court to hold that issue No. 3 should be answered in the negative and consequently both grounds three and four argued together under the issue ought to succeed.
Learned counsel for the respondent, Mr. K.O. Longe on issue No. 1 conceded that general damages will not be awarded in an action for breach of contract as general damages are applicable to cases of tort. Learned counsel contended that the general damages was awarded on the claims based on the retirement of the respondent and not on breach of contract. He called the attention of the court to exhibits D and E. Counsel submitted that nominal damages can be awarded when circumstances are not too remote. He cited A.C.B. Ltd. v. Obmiami Brick and Stone Ltd. (1990) 5 NWLR (Pt. 149) 230; Barau v. Cubitts (Nig) Ltd. (1990) 5 NWLR (Pt. 152) 630. On issue No. 2, learned counsel submitted that the learned trial Judge misunderstood the case of the respondent. He referred the court to paragraphs 19 and 20 of the statement of defence and exhibit H. Learned counsel submitted that the condition precedent in exhibit H is that for a management staff to purchase the car attached to him, the car should have been used for at least three years and not that the said management staff should have had the car attached to him for at least three years. It means that the management staff can purchase any car attached to him even if the car had been with him for only twenty four hours, so long as the car had been in use for at least three years, learned counsel argued. It was the submission of learned counsel that if the trial Judge had construed exhibit H correctly, he would have found that the burden was on the appellant who purchased the car, put it in use, assigned it to the respondent and who asserted and tendered exhibit H, to prove that the car was not three years old. He referred the court to section 135(1) of the Evidence Act. He submitted that the evidence before the court is at variance with the pleadings, learned counsel cited the case of Emegokwe v. Okadigbo (1973) 4 SC. 113. Counsel further submitted that the appellant did not make any effort to establish the age of the car and that the learned trial Judge was right in giving judgment in favour of the respondent on the evidence before him.

Learned counsel contended that since the evidence on the vehicle was not contradicted, and the fact the appellant did not lead evidence in support of exhibit H, this court should resolve the issue in favour of the respondent as the appellant abandoned its pleadings on the issue. He referred the court to Ude v. Osuji (1990) 5 NWLR (Pt. 151) 488. Learned counsel submitted that the trial Judge erred in law when he placed the burden on the respondent to prove when the car was bought. He argued that in spite of the error, the learned trial Judge was right to order that the respondent purchased the car at 10% value. On issue No. 3 learned counsel referred the court to paragraph 15 of the statement of defence and submitted that the pleadings are inadequate as not being in line with the provisions of order 25 rule 4 of the Bendel State High Court (Civil Procedure) Rules of 1988. He relied on Ihezukwu v. University of Jos (1990) 4 NWLR (Pt. 146) 598; Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802 at 827 and Lewis and Peat v. Akhimien (1976) 1 All NLR (Pt. 1) 460 at 465.

Learned counsel for the cross-appellant, Mr. K.O. Longe, submitted on the only issue for determination that the learned trial Judge was in error when he held that the appellant pleaded in paragraphs 19 and 20 of the statement of defence that the car was assigned to the respondent for less than three years by 1991 when he was retired and that the respondent failed to prove waiver of the conditions precedent.
Referring the court to paragraph 4 exhibit H, paragraphs 19 and 20 of the statement of defence and the evidence of the only witness for the appellant, learned counsel submitted that the evidence led by the appellant on the right of the respondent to purchase the car is at variance with the pleadings and goes to no issues. He relied on Emegokwue v. Okadigbo (1973) 4 SC. 113 at 117 and Woluchem v. Gudi (1981) 5 SC. 291 at 320. Recalling the testimony of the respondent at page 92, lines 12-14 of the record, learned counsel submitted that the evidence of the respondent remains unchanged. Learned counsel repeated his earlier submission that the burden of proof of the contents of exhibit H was on the appellant. He once again referred to section 135 of the Evidence Act.

Learned counsel for the cross-respondent, Mr. Pat Onegbedan, in the cross- respondent’s brief submitted on the only issue for determination that ground two of the main appeal sufficiently covers the issue of the purchase of the car and that the cross-appeal is a mere duplicity. It was also the submission of learned counsel that since the cross-appellant did not discharge the onus of proof that he met the condition precedent to the purchase of the car no burden to establish any further proof shifted to the cross-respondent. He relied on Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC. 79 at 84 and Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 265. Since the cross-appellant seeks to retain the judgment as it relates to the purchase but merely seeks to vary the reasoning of the Judge, the proper procedure is not a cross-appeal but a respondent’s notice, learned counsel submitted. It is not the practice under our rules of court for a victor to appeal against his victory, counsel argued. His role is to defend his victory to appeal against his victory, however patently perverse, until validly set aside on appeal at the instance of the loser, learned counsel submitted. Counsel relied on Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 1 at 20; Eze v. Obiefina (1995) 6 NWLR (Pt. 404) 639 at 649 and Akaose v. Nwosu (1997) 1 NWLR (Pt. 482) 478 at 503. He urged the court to allow the appeal.

Learned counsel Mr. K.O. Longe in his reply brief submitted that the issue for determination in an appeal should relate to the grounds of appeal and that it is inappropriate to introduce in the brief issues not covered by the grounds of appeal. He relied on Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 and Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523. Learned counsel submitted that the issue raised in the cross-respondent’s brief does not relate to any ground of appeal and should be discountenanced. Learned counsel argued that when one wants to set aside a finding which is crucial and fundamental to a case, the proper thing to do is to appeal. He relied on Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; AFRICAN CONTINENTAL SEA WAYS LIMITED v. NIGERIAN DREDGING ROADS (1977) 5 SC. 235 at 247 and College of Education, Warri v. Odede (1999) 1 NWLR (Pt. 586) 253. Counsel submitted that where a respondent wishes to contend a different issue from one raised by the appellant’s appeal, the proper thing to do is to cross-appeal. He relied on Western Steel v. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617. Learned counsel further submitted that a respondent’s notice is not appropriate in this case as the complaint of the cross-appellant touches on a crucial finding of the court below that the onus was on the appellant to establish the age of a car purchased for his use by the appellant.

Let me take the reply brief which contains an issue for determination. In Essien and Others v. The Commissioner of Police (1996) 5 NWLR (Pt. 449) 489, counsel for the appellant formulated two new issues in what he called appellant’s reply brief. I said:

“The so-called appellant’s reply brief contains two issues for determination, distinct and different from the only large issue contained in the appellant’s brief. A reply brief, as the name implies, must be a reply to the respondent’s brief. It must deal with all new points arising from the respondent’s brief. This is the language of order 6 rule 5 of the Court of Appeal Rules 1981 as amended. A reply brief is not a forum for introducing or advancing fresh point or points of argument. That will be tantamount to reopening the appeal from the side of the appellant… A reply brief must not contain issue or issues for determination. … If a reply brief contains issue or issues for determination then, it has acquired an independent character. It is no more a reply brief but something else.”

See also Onuaguluchi v. Ndu and others (2000) 11 NWLR (Pt. 679) 519. Although the reply brief contains an issue for determination, I shall discountenance only the issue formulated and make use of it in the interest of justice. I say so because apart from the so-called issue, the reply brief qualifies as one. It is a reply to the fresh or new points raised in cross-respondent’s brief.

Learned counsel for the appellant submitted that the remedy available to the respondent was to file a respondent’s notice and not a cross-appeal. A respondent’s notice proceeding is based on the premise that the person giving it has won in the court below and the lower is appealing. It is a procedure that follows an appeal. A respondent’s notice is intended to facilitate a complaint by a successful party against a judgment of the court below given in his favour and who seeks to support that judgment, if the party who lost appeals. See Chief Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 1. A person who files a respondent’s notice is a person who is not so dissatisfied with the judgment of the lower court as to appeal against it. He accepts the judgment, but through a respondent’s notice, desires that it be varied or that it be affirmed on other grounds. See Anyaduba and another v. Nigerian Renowned Trading Co. Ltd. (1990) 1 NWLR (Pt. 127) 397.

The invocation of order 3 rule 14(2) of the Court of Appeal Rules postulates that the judgment is correct but that the reasons for the judgment are based on wrong premise when there is enough evidence on the record which can sustain the judgment on grounds other than those relied upon by the trial court. It postulates the correctness of the judgment notwithstanding the grounds of appeal by the appellant to set it aside. See American Cynamid Company v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt. 171) 15. A respondent’s notice seeks a variation of or retention of the judgment of the court below. It does not, and cannot ask that the judgment in question be set aside. Therefore, if a respondent seeks a complete reversal of the decision of the lower court, what he has to do is to file a cross-appeal and not a respondent’s notice. See Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409. A respondent’s notice pursuant to order 3 rule 14(2) of the Court of Appeal Rules posits that the respondent is satisfied with the judgment or decision as a whole and intends to retain it in its entirety. A respondent cannot come by way of respondent’s notice where he intends (a) to dispute the jurisdiction of the court; (b) to contest the competency of the entire proceedings; (c) to maintain the absence of a fundamental prerequisite. See Williams v. Daily Times of Nigeria Ltd. (supra). See also Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517; Galadima v. Tambai (1994) 8 NWLR (Pt. 365) 747. A party seeking to set aside a finding, which is crucial and fundamental to a case, can only do so through a substantive cross-appeal and not by a respondent’s notice. See Adeleye and Anor. v. Awotoye (1990) 7 NWLR (Pt. 162) 337. The only issue raised in the cross-appellant’s brief is “whether the onus was on the plaintiff to prove that the car purchased by the defendant but attached to the plaintiff had not been used for at least three years.” Learned counsel submitted that the onus of proof was on the appellant and not on the respondent. He did not contest the decision of the learned trial Judge on this appeal. Could the respondent not have come by way of a respondent’s brief in the circumstances? I think he ought to have invoked order 3 rule 14(2) of the Court of Appeal Rules in view of the fact that he agrees entirely with the order of the learned trial Judge on the issue that he should retain the vehicle. All he was attacking was the reason for the order and he ought to have done so by way of a respondent’s notice. This is because where a party agrees with the judgment but seeks to vary the reason he must come by way of respondent’s notice. The cross appeal is hereby dismissed.

That takes me to Issue No. 1 in the appellant’s brief and it is whether or not “the award of general damages for breach of contract of employment is still known to our laws”. The related issue in the respondent’s brief is also issue No. 1 and it is whether the award of general damages was for breach of contract.

Both counsel agree that general damages cannot be awarded for breach of contract of employment. See Paterson Zochonis and Co. Ltd. v. Ogedengbe (1972) 3 SC 98; Swiss-Nigeria Wood Industries Limited v. Bogo (1971) 1 UILR (Pt. 3) 337; Alraine (Nig.) Ltd. v. Eshiett (1977) 1 SC 89; Chukwumah v. ShellPetroleum (1993) 4 NWLR (Pt. 289) 512; Barau v. Cubitts (Nig.) Ltd. (1990) 5 NWLR (Pt. 152) 630, 1 shall not go into that aspect. Let me only go into the area of disagreement. While learned counsel for the appellant submitted that the award was on breach of contract, learned counsel for the respondent submitted that the award was not on breach of contract. The learned trial Judge said at page 137 of the record:

“……it seems to me that I have no option but to dismiss claims 1 and 2. Alternative claim IG -1H and IM-IP. I allow claim 3A to 3C and claim 4. The sum of N2,000 is awarded as general damages in addition to the claim for special damages in respect of claim IA- IF and 1C.”

Claims 3A to 3C and 4 read:

“3(a) To purchase peugeot saloon car with registration No. BD 7645 BF at 10% of valuation done by a reputable automobile workshop agreeable to both parties.

(b)     Monthly Pension (To be calculated on the aggregate of basic salary, plus housing, transport and luncheon allowances).

(c)     Superannuation contribution (personal/bank).

4. An injunction restraining the defendant, its servants, agents and privies from impounding the vehicle with registration No. BD7645 BF contrary to the terms, conditions of any employment and the practice of the defendant’s bank.”

It is clear to me that the above claims do not directly affect the contract of employment and therefore the learned trial Judge did not award general damages of N2,000.00 for breach of contract. All the claims had to do with retirement entitlements and not breach of contract of employment.

Dealing with the issue of breach of contract, the learned trial Judge said at pages 130 and 133:

“I am satisfied that the plaintiff was retired on the basis of age. Accordingly, I hold that the plaintiff was retired when he attained the retirement age of 55 years. … The court is satisfied that the plaintiff was properly retired on the basis of age.”

I entirely agree with the learned trial Judge and so he could not have awarded damages for breach of contract of employment. He did not and so issue No. 1 of the appellant’s brief fails.

That takes me to issue No. 2 in the appellant’s brief. That is also issue No. 2 in the respondent’s brief. It is in respect of the car. On the issue of the car, the learned trial Judge said at page 134:

“It is my firm view that the condition precedent created is that the car must have been used for at least three years. I think the condition precedent will be implied in the plaintiff pleading and therefore it need not be alleged that he had the car in his possession for at least three years. It is for the defendant if he contends that there was a condition precedent and that it has not been duly performed to state specifically what the condition was and to plead its non-performance otherwise its due performance will be presumed. But when a condition precedent is properly pleaded, the burden of proving its due performance or the waiver of its due performance still rests on the plaintiff. In the case in hand the defendant pleaded in paragraphs 19 and 20 that the car was assigned to the plaintiff for less than three waiver of the condition precedent. The plaintiff has also failed to prove that he had been in possession of the car since his retirement in 1991 till now by the grace of the court .”

At pages 135 and 136, the learned trial Judge said:

“This court is both the court of law and equity. The record of this court also reveals that the plaintiff has been in possession of the new car from 1990 till date, a period of five years…..The plaintiff has been using his car for the past 5 years and I think it would be equitable to permit the plaintiff to purchase the car he has been using for the past 5 years, particularly when it is observed that he served the defendant for 20 years meritoriously…. From the foregoing, I think that the plaintiff is entitled to purchase peugeot saloon car with registration No. BD 7645 BF at 10% of valuation done by a reputable automobile workshop agreeable to both parties.”

Burden of proof has two distinct and frequently confusing meanings. It means (a) the burden of proof as a matter of law and pleadings; the burden as it has been called of establishing a case either by preponderance of evidence or beyond reasonable doubt; and (b) the burden of proof in the sense of introducing evidence. As regards the first meaning attached to the term “burden of proof’ this rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstance whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. A negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him.

While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly more as a scale of evidence or the other preponderates. In this sense the onus probandi rests upon the parties who would fail if no evidence at all or no more evidence is gone into upon the party asserting the affirmative of the issue and it rests after evidence is gone into upon the party against whom the tribunal at the time the question arises would give judgment if no further evidence were adduced. See Elemo and Others v. Omolade and Ors.(1968) NMLR 359. See also Rempona 4 v. Frempong II (1953) 4 WACA 13; Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt. 5) 116; Board of Custom & Excise v. Barau (1982) 10 SC 48; Odulaja v. Haddad (1973) 11 SC 357; N.M.S.L. v. Afolabi (1978) 2 SC 79; Osawaru v. Ezeiruka (1978) 6-7 SC.135; Atane v. Amu (1974) 10 SC. 237; George v. U.B.A (1972) 8-9 SC 264; Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214; Akinfosile v. Ijose (1960) 5 FSC 192. A plaintiff has the onus of proving his case and that where he fails to prove the appropriate finding relevant to the reliefs he had sought he must fail. See Fashanu v. Adekoya (1974) 6 SC 83. See also Odiete v. Okotie (1972) 6 SC 83; Are v. Adisa (1967) 1 All NLR 148; Wilson v. Attorney-General of Bendel State and ors. (1985) 1 NWLR (Pt. 4) 572. In the instant case, the first burden was on the respondent who pleaded in paragraphs 23 and 24 of his amended statement of claim that he was entitled to purchase the car. It is only then the evidential burden should have shifted to the appellant, vide paragraphs 19 and 20 of the statement of defence. The learned trial Judge was clearly right in his evaluation of the evidence on the specific issue of burden of proof and I cannot see my way clear in interfering with his findings.

On the decision of the learned trial Judge that the respondent should purchase the car, I do not, with the greatest respect, agree with him. He has introduced morality in a matter governed by strict law and legalism. After arriving at the conclusion that the respondent did not satisfy the condition precedent for the purchase of the car, the learned trial Judge had no alternative than to decide in favour of the appellant. Rather than doing just that, he introduced equity in a matter which has nothing to do with equity. Courts of law can only introduce equitable principles where there is need to do so but certainly not where there is a positive agreement, as in the instant case. The principles of equity cannot void positive terms in a contract of service. I want to examine exhibit H. The relevant portion of the exhibit reads:

“The Board decided that staff with attached cars would, on retiring from the services of the bank have the option to purchase such cars at 10% of valuation done by a reputable automobile workshop. This would also be subject to the fact that such cars must have been used for a period of not less than three years.”

Learned counsel for the respondent submitted that the employee need not use the car for three years. With respect, I do not agree with him. It is the clear intendment of exhibit H that the employee must use the car for a period of not less than three years to enable him purchase the car. There is evidence that at the time the respondent was retired he had not used the car for three years. Accordingly he is not entitled to purchase it. The learned trial Judge was in error in holding that he was entitled to purchase the vehicle. The third issue of the appellant is on monthly pension plus housing, transport and luncheon allowances. That is also the third issue in the respondent’s brief. The respondent in paragraph 19 of the amended statement of claim stated his entitlements in twenty sub-paragraphs. In paragraph 15 of the statement of defence, the appellant as defendant averred:

“The defendant shall contend at the trial of this suit that the plaintiff is not entitled to the various sum of money pleaded in paragraph 19 and the defendant puts him to the strict proof of same.”

Learned counsel for the respondent submitted that the above is inadequate and not in line with order 25 rule 4 of the Bendel State High Court (Civil Procedure) Rules 1988. The rule reads:

“The facts shall be alleged positively, precisely and distinctly and as briefly as is consistent with a clear statement.”

There cannot be a more positive, precise, distinct and brief statement than paragraph 15 of the appellant’s statement of defence. The paragraph has clearly attacked the entitlements enumerated at paragraph 19 of the amended statement of claim. Learned counsel for the respondent cited the case of Ehimare v. Emohonyon (1985) 1 NWLR (Pt. 2) 177 at 183 where Oputa, JSC said:

“When parties to an action have answered one another’s pleading in such a manner that they have arrived at some material point or fact, affirmed on one side and denied on the other parties are said to be “at issue”; they have joined issues and the question thus raised is called the issue.”

In my humble view by paragraph 15 of the statement of defence, the appellant joined issues with the respondent on the entitlements enumerated in paragraph 19 of the amended statement of claim.

I shall now go into the submissions of learned counsel for the appellant which learned counsel for the respondent did not seem to have replied, as he concerned himself with a technicality which he failed. That takes me to the exhibits. Exhibit A is the offer of appointment to the respondent. It has nothing to do with the claim in paragraph 19 of the amended statement of claim. Exhibit B is the conditions of senior staff employment with the New Nigeria Bank Limited. Learned counsel for the appellant submitted that exhibit B which is the main collective agreement is a mere gentleman’s agreement which is not binding on the parties. In Nigeria-Arab Bank Ltd. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450, Ndoma-Egba JCA said:

“Exhibit G, the collective agreement of association of banks, insurance and allied institutions, etcetera is, at best a gentleman’s agreement; an extra judicial document totally devoid of sanctions. It is a product of trade unionist’s pressure? There is no evidence that the appellant as an employer of labour subscribed to the foregoing (referring to exhibit G). Even if exhibit G had the quality and force of law as they say “properly so called”, that is, it was brought about by known process of law-making, then the provision of article 4(II) that an employee may be summarily dismissed for wilful disobedience of lawful order or serious negligence is noticeable. However the terms and condition upon which the respondent accepted the employment offered by the appellants are contained in exhibit A, letter of appointment.”

In Union Bank of Nigeria Ltd. and anor. v. Edet (1993) 4 NWLR (Pt. 287) 288 the Enugu Division of the Court of Appeal held that the failure to act in strict compliance with a collective labour agreement is not justiciable. Its enforcement lies in negotiation between the union and the employer, and ultimately, in a strike action should the need arise and it be appropriate. Uwaifo, JCA (as he then was) said at page 298:

“It seems to me from these two clauses, particularly the portions emphasized, and the general tenor of the collective agreement, that it was never intended that the agreement should create any legally enforceable contractual obligation by individual employees. No individual employee can claim to be a party to that agreement. In other words, no privity of contract arises between an individual employee and his employer by virtue of that agreement. It appears that whenever an employer ignores or breaches a term of that agreement, resort could only be had, if at all, to negotiation between the union and the employer, and ultimately, to a strike action should the need arise and it be appropriate.”

I entirely agree with the above and I am in grave difficulty to hold that exhibit B, the main collective agreement between the Nigeria Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks Insurance and Financial Institution is binding on the parties. Only parties to a contract can take advantage of any breach thereof. In the instant case, the respondent was not a party to exhibit B and therefore he cannot sue on it. That is the whole essence of the doctrine of privity of contract. Exhibit A, the letter of appointment, contains the terms of the employment.

But let me go into exhibit B as a matter of mere academic exercise. Assuming I am wrong, does exhibit B provide for “monthly pension” calculated on the aggregate of basic salary plus housing, transport and luncheon allowances? I think not. The nearest to the claim is provided for in article 8, page 16 of exhibit B. It reads:

“Pension and gratuity scheme shall be negotiated at company level between the domestic unit of the union and individual member companies of the association.”

There is no evidence that there was such a negotiation and that the appellant agreed to pay “monthly pension” calculated on the aggregate of basic salary plus housing, transport and luncheon. And what is more, there is no such provision in exhibit.

Now to exhibit C, it is the condition of senior staff employment with New Nigerian Bank Limited. It deals with offer of appointment, employment of married couple, working hours, confirmation and determination of appointment, code of ethics, system of promotion, award of increments, advances and allowances, staff discipline, procedure for handling grievances, transfers, staff housing loan scheme, residential accommodation, medical facilities, staff superannuation and pension scheme and retirement.

Exhibits D and F deal with the notice of retirement, while exhibit F is the personal policy. At page 24, paragraphs 6, 8, “monthly pension benefits calculated in accordance with the provisions of the bank’s pension scheme” is payable. The bank’s pension scheme is not in evidence. Exhibits G, H, J and K do not provide for “monthly pension to be calculated on the aggregate of basic salary plus housing, transport and luncheon allowances.” In a matter such as this, which is covered by documentary evidence it is difficult to rely on the ipse dixit of the respondent. He ought to have tendered document or documents to vindicate his claim. There is none and this court is not father Christmas to award damages that are not proved.

That claim fails. In the light of the foregoing, the respondent is entitled to the following:

 

1. Salary: October and November, Month, 1991 at N3,075.00	N6,150.00
2. Housing allowance: October and November 1991.	N2,642.00
3. Security allowance: October and November 1991 at N300 per month	N600.00
4. Utility allowance: October and November 1991 at N300 per month.	N600.00
5. Fuel subsidy October and November, 1991at N300 per month.	N600.00
6. Entertainment allowance: October and November, 1991 at N300 per month	N600.00
7. 1991 leave bonus 12% of N36,900	N4,428.00
8. 1991 salary in lieu of leave, 51 days i.e. 27 working days	N5,227.50
9. 13th month’s pay, 1991	N3,075.00
10. Luncheon allowance: October and November, 1991 at N65.00 per week	N520.00
N24,442.50

 

For the avoidance of doubt, the judgment in respect of the purchase of the Peugeot saloon car with registration No. BD 7645 BF by the respondent and the monthly pension to be calculated on the aggregate of basic salary, plus housing, transport and luncheon allowance is hereby set aside. The injunction in respect of the purchase of the car is hereby lifted. The car shall be returned to the appellant within 30 days from the date of judgment. The general damages of N2,000.00 awarded the respondent is upheld. In sum the respondent shall be paid the sum of N26,442.50 (Twenty-six thousand, four hundred and forty-two naira, fifty kobo). As this appeal succeeds in part the appellant is awarded N2,000.00 costs.

BABA ALKALI BA’ABA, JCA.: I agree with the judgment delivered by my learned brother, Tobi, JCA. I do not wish to add anything. I too would allow the appeal in part with N2,000.00 costs to the appellant.

SAKA ADEYEMI IBIYEYE, JCA.: I read in advance the lead judgment of my learned brother, Tobi, JCA. I agree with the reasoning and conclusion in the lead judgment that in view of the consensual stance of the learned counsel for the parties, the appeal should be allowed. The appeal is accordingly allowed. I also award costs of N3,000.00 to the appellants.

Cases referred to in the leading judgment

A.C.B. Ltd. v. Obmiami Brick and Stone Ltd. (1990) 5 NWLR (Pt. 149) 230

Adeleye v. Awotoye (1990) 7 NWLR (Pt. 162) 337

African Continental Seaways v. Nigeria Dredging Roads & General Works Ltd (1977) 5 SC. 235

Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802.

Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248.

Akaose v. Nwosu (1997) 1 NWLR (Pt. 482) 478

Akinfosile v. Ijose (1960) 5 FSC 192; (1960) SCNLR 447.

Alraine (Nig.) Ltd. v. Eshiett (1977) 1 SC 89.

American Cynamid Company v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt. 171) 15.

Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1990) 1 NWLR (Pt. 127) 397

Atane v. Amu (1974) 10 SC. 237.

Are v. Adisa (1967) 1 All NLR 148

Attorney-General Bendel State v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 37) 547

Barau v. Cubitts (Nig) Ltd. (1990) 5 NWLR (Pt. 152) 630

Board of Custom & Exercise v. Barau (1982) 10 SC 48

Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512

College of Education, Warri v. Odede (1999) 1 NWLR (Pt. 586) 253

Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546

Ehimare v. Emohonyon (1985) 1 NWLR (Pt. 2) 177

Elemo v. Omolade (1968) NMLR 359.

Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214

Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47

Emegokwue v. Okadigbo (1973) 4 SC. 113

Essien v. The Commissioner of Police (1996) 5 NWLR (Pt. 449) 489

Eze v. Obiefina (1995) 6 NWLR (Pt. 404) 639

Fashanu v. Adekoya (1974) 6 SC 83.

Galadima v. Tambai (1994) 8 NWLR (Pt. 365) 747

George v., U.B.A (1972) 8-9 SC 264

Ihezukwu v. University of Jos (1990) 4 NWLR (Pt. 146) 598

Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523

Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt. 5) 116

Lewis and Peat v. Akhimien (1976) 1 All NLR (Pt. 1) 460

N.M.S.L. v. Afolabi (1978) 2 SC 79

Nigeria-Arab Bank Ltd. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450

Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC. 79

Odiete v. Okotie (1972) 6 SC 83;

Odulaja v. Haddad (1973) 11 SC 357.

Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517.

Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409.

Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 679) 519.

Osawaru v. Ezeiruka (1978) 6-7 SC.135.

Paterson Zochonis and Co. Ltd. v. Ogedengbe (1972) 3 SC 98; 1 All NLR (Pt. 1) 202.

Savannah Bank (Nig) Ltd. v. Salami (1996) 8 NWLR (Pt. 465) 131.

Swiss-Nigeria Wood Industries Limited v. Bogo (1972) 1 All NLR (Pt. 2) 433, (1971) 1 U.I.L.R. (Pt. 3) 337.

Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.

Ude v. Osuji (1990) 5 NWLR (Pt. 151) 488.

Union Bank of Nigeria Ltd. v. Edet (1993) 4 NWLR (Pt. 287) 288.

Western Steel v. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617.

Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 1.

Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572.

Woluchem v. Gudi (1981) 5 SC. 291.

 

Statute referred to in the judgment

Evidence Act Cap. 112 LFN; 1990, Sec. 135(1).

Rules of Court referred to in the judgment

Bendel State High Court (Civil Procedure) Rules of 1988, Or. 25. r. 4.

Court of Appeal Rules 1981, Or. 6.r. Or. 3.r.14(2).