Contract of Employment

Thereat, he caused a Writ of Summons to be issued and served on the respondent. He claimed the following reliefs:
(a) A Declaration that the termination of the plaintiffs employment by the defendant is illegal, null and void and of no effect, the defendant having failed to comply with the staff condition of service by paying the plaintiff one month (sic) salary in lieu of service (sic, Notice);
(b) An Order for the defendant to pay the plaintiff all his salaries from December, 2003 and from 2004 to 2008, which is the sum of N17,057,967.00 (Seventeen Million, Fifty-Seven Thousand, Nine Hundred and Sixty-Seven Naira) and such other entitlements due to the plaintiff until judgment is delivered;
(c) An order that the plaintiff is entitled to 6263 unit shares of UBESOT as a staff of the defendant;
(d) N100,000,000 (One Hundred Million Naira) general damages for the plaintiffs unlawful dismissal.
Upon the eventual joinder of issues in the settled pleadings, the matter went to trial. The appellant, (as plaintiff) testified as the sole witness. He tendered nineteen exhibits, Exhibits P1-P19. On her part, the respondent, (as defendant), equally called only one witness who testified and tendered one exhibit, Exhibit D1. The High Court (hereinafter, simply, referred to as “the trial Court”) dismissed the plaintiff’s case, prompting the appellant’s appeal to the Court of Appeal, Enugu Division, (hereinafter simply referred to as “the lower Court”).
The lower Court allowed the appeal in part, holding that “all that the appellant is entitled to is one-month (sic) salary in lieu of Notice and any other entitlements legitimately due to him at the time of termination of his employment and nothing more.” Aggrieved, the appellant further appealed to this Court entreating it to determine the two issues he set out. However, at the hearing, he withdrew the second issue. Thus, the only extant issue for the determination of this appeal is the one framed thus:
Whether the appellant is not entitled to damages, the Court of Appeal having found that the employment of the appellant was wrongly terminated as the one month’s salary in lieu of Notice was not paid, the respondent having breached the terms of the Contract of Employment binding the two parties?
The respondent, on the other hand, framed a sole issue in these words:
Whether the measure of damages for alleged wrongful termination of employment or wrongful dismissal ought not to be the amount equivalent to the period of notice that the affected persons ought to be given as stipulated by the contract?
For the avoidance of any doubt, I shall adopt the appellant’s sole issue after all, it is his appeal. Thus, the issue for the determination of this appeal is that couched thus:
Whether the appellant is not entitled to damages, the Court of Appeal having found that the employment of the appellant was wrongly terminated as the one month’s salary in lieu of Notice was not paid, the respondent having breached the terms of the Contract of Employment binding the two parties?

ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S SUBMISSIONS
At the hearing of this appeal on March 13, 2018, Onyebuchi Ononye, learned counsel for the appellant, adopted the brief filed on October 14, 2015. In the said brief, he contended that the appellant was an employee of the respondent.
He gave an incomplete citation of The Black’s Law Dictionary (Ninth edition) for the definition of “Contract.” He equally referred to Section 9 of the Labour Act, Cap L1 Vol. 8, Laws of the Federation of Nigeria, 2004 for the definition of “contract of employment.” In his submission, the cardinal point from the definition is that there has to be an agreement between the employer and the employee, the former offering a working opportunity and the latter willing, accepting and agreeing to work for the employer.

…………………….B…………………….

He cited Sections 9(7); 11(1) and (2) and 11(6) of the Labour Act.
He explained that, in the course of hearing the matter at the lower Court, the appellant herein (as plaintiff at the trial Court) had tendered Exhibit P19, the Procedure and Main Collective Agreement between the Nigeria Employer’s Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). “The Collective Agreement.” He referred to paragraph 8 of the Contract of Service tendered by the respondent, Exhibit D1; Ifeta v. S.P.D.C.N. Ltd (2006) 32 WRN 1, 28-29; Ajagbe v. Idowu [2011] 17 NWLR (Pt. 1276) 422, 429.
He pointed out that the appellant tendered Exhibit P19, the Collective Agreement, Article 4 (ii) (d) thereof, refers. He canvassed the view that the respondent’s argument that she is not bound by the contents of Exhibit P19 is unsupportable having regard to the decision of the lower Court on Exhibit P8 and the Court’s affirmation of the DW1’s confirmation of the binding nature of the Collective Agreement.
He pointed out that the appellant was issued with Exhibit P1, dated October 30, 2003, terminating his employment.
The said exhibit was however issued to him on November 28, 2003. He explained that, as at the time the said exhibit was issued, the appellant had worked for the month of November for which he was paid. He noted that the respondent, in compliance with the terms of the contract of service, acknowledged the payment of the one month’s salary being payment in lieu of notice. The respondent equally acknowledged payments of benefits due to the appellant.
Learned counsel noted that, in fulfillment of the payment of the one months salary in lieu of notice, the appellant’s account was credited with the one month’s salary in lieu of notice. He pointed out that that payment was reversed five days later. In effect, he contended, the respondent dismissed her employee without paying the one month’s salary in lieu of notice or issuing a one month’s notice to terminate the employment; thus, breaching the fundamental term of the contract with the appellant. No other benefit was paid to the appellant,Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 1, 57; Olaniyan v. University of Lagos (1985) LPELR – SC. 53/1985.
He explained that it was this singular act of non-compliance with the terms of the contract that gave rise to the suit and this appeal. He maintained that the employment of the appellant was wrongfully terminated due to the respondent’s failure to issue to the appellant a one month’s notice terminating his employment or the payment of one month’s salary in lieu of notice, U.B.N. v. Ogboh (1995) 2 NWLR (Pt. 350) 647; Ativie v. Kabel Metal (Nig) Ltd (2008) 10 NWLR (Pt. 1095) 399; Kusfa v. United Bawo Construction Co. Ltd (1994) LPELR-SC.180/1989; (1994) 4 NWLR (Pt. 336) 1; (1994) SCNJ 1.
In his submission, the respondent in dismissing the appellant chose the end of the year so as to invoke some hardship on him. He noted that the non-payment of the one month’s salary in lieu of notice had occasioned much hardship on the appellant, citing paragraph 16 of the Statement of Claim. He pointed out that the lower Court failed to consider this grievous damage in its award of damages. This position, he pointed out, was against the evidence of the appellant that due to the said non-payment that he had suffered grievously and immense financial loss due, paragraph 17 of the Statement of Claim which was unchallenged.
He cited U.B.N. Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 178, 181 as authority for the view that general damages need not be specifically pleaded or the particulars pleaded. He pointed out that the lower Court ought to have considered the grievous damages and immense financial loss that the appellant suffered in awarding damages. Accordingly, its judgment should not have been based only on the payment of the one month’s salary in lieu of notice. In his submission, the non-payment of the one month’s salary in lieu of notice, having occasioned hardship on the appellant, he was entitled to more award as damages to cushion the effect of the hardship which the respondent made him to suffer, paragraph 16 of the Statement of Claim. The lower Court failed to consider these grievous damages, which the appellant assessed and put at 100,000,000 (One Hundred Million Naira) only as his general damages. He urged the Court to consider the circumstance surrounding the case and award damages that are adequate: damages which, to a reasonable extent, would cushion the effect of the hardship the appellant had suffered due the respondent’s wrongful termination of his employment.
RESPONDENT’S ARGUMENTS
On his part, Ikeazor Akaraiwe, learned counsel for the respondent, adopted the brief filed on November 27, 2015. He

…………………….C…………………….

submitted that in an action for wrongful termination/dismissal/retirement, only two primary issues call for determination, namely:
(i) Whether the termination/dismissal/retirement of the plaintiff is wrongful?
(ii) What is the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful?
He cited Ekeagwu v. Nigerian Army (2010) LPELR-1076 (SC) for this proposition. He pointed out that, in the instant case, the lower Court found that the appellant’s employment was wrongfully terminated. The Court accordingly awarded him his one month’s salary as damages being the measure of damages recoverable since the termination was found to be wrongful, Nze v. N.P.A. (1997) 11 NWLR (Pt. 526) (sic).
He canvassed the view that the measure of damages which the appellant could recover was the amount equivalent to the amount of notice and nothing more. In his submission, the lower Court rightly held that the appellant was entitled to one month’s salary in lieu of notice. He maintained that the contract of service was the bedrock upon which an aggrieved employee must found his case. He therefore succeeds or fails upon the terms or conditions contained therein, W.N.D.C. v. Abimbola (1966) 1 All NLR 159.
He referred to Exhibits P19 and D1, the Collective Agreement and Conditions of Service stipulating the terms and conditions of service, respectively, citing Article 4 (ii) (d) of Exhibit P19 and Exhibit D1. He took the view that the above provisions in the written contract of service were binding on the parties. The Court therefore lacks any legal power or jurisdiction to look anywhere else for the purpose of identifying the terms of contract other than the written agreement voluntarily entered into by the parties. In effect, no extrinsic evidence can alter the terms of a written contract, U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385.
He further contended that the only remedy available to the appellant whose employment was wrongfully or unlawfully determined in contravention of the terms or conditions of service is that in cases of ordinary employment (such as the one between the appellant and respondent) where the terms provide for a specific period of notice before termination, or salary in lieu thereof, is the award of salary for the period of notice, and other legitimate entitlements due to the employee at the time the employment was brought to an end.
He explained that the appellant was neither entitled to an award of general damages nor a decree of reinstatement. In his submission, the rationale for this is that a Court cannot impose an employee on an unwilling employer, the only exception being the contract of employment with statutory flavor. This appeal does not fall into that category, FMC, Ado-Ekiti and Ors v. Alabi (2011) 38 WRN 80, 100-101; Bamgboye v. UNILORIN[1999] 10 NWLR (Pt. 622) 290.
On the damages recoverable in cases of wrongful dismissal/termination of employment, he cited Shena Security Co. Ltd. v. Afropak (Nig.) Ltd and Ors [2008] 4-5 SC (Pt. 11) 117; Osisanya v. Afribank (Nig.) Plc (2007) 6 NWLR (Pt. 1031) 565; Ifeta v. S.P.D.C.N. of Nig Ltd [2006] All FWLR (Pt. 314) 305.
He agreed with the lower Court’s award of one month’s salary in lieu of notice to the appellant as damages.
This must be so, he contended because the measure of damages in a situation where the employer has a right to terminate the contract before the end of the term, apart from other entitlements should be limited to the amount the plaintiff would have earned over the period of the notice. He maintained that the appellant was not entitled to the award of general damages. This, he contended, must be so since in awarding damages, the Court will not include compensation for injured feelings or the loss that may have been sustained from the fact that the employees dismissal had made it more difficult for him to get another job. He urged the Court to dismiss the appeal.
RESOLUTION OF THE SOLE ISSUE
As indicated earlier, the trial Court dismissed the plaintiff’s case, prompting the appellants appeal to the lower Court. The lower Court allowed the appeal in part. At page 283 of the record, it first pointed out that:
The appellant tendered the collective agreement (Exhibit P19) to show that he is entitled to one month (sic) notice or one month (sic) salary in lieu of notice.

…………………….D…………………….

The Court below held that the agreement is not binding on the respondent. In Abalogu v. SPDC Nig. Ltd. (2003) 13 NWLR (Pt. 837) 308, 337, the Supreme Court unequivocally held that where a collective agreement is incorporated or embodied in the conditions of a contract of service whether expressly or by necessary implication, it will be binding on the parties The appellant tendered Exhibit P8 to show that the collective agreement forms part of the conditions of his service
The respondent has clearly by the contents of Exhibit P8 expressly adopted and incorporated the terms of the collective agreement into the appellants conditions of service. DW1 also confirmed the fact that the collective agreement is binding on the appellant and the respondent to some extent. At least, Exhibit P8 clearly puts it beyond any doubt that the respondent accepted the fact the Section 1 Article 4 (a), (I)-(IV) of the collective agreement is binding on the parties. Article 4 stipulates the procedure to be followed in taking disciplinary actions against an employee
In the face of Exhibit 8 and the evidence of DW1, the inescapable conclusion that must be reached is that the respondent expressly adopted the provisions of the collective agreement by virtue of Exhibit P8.
Turning to the question of the breach of contract between the parties, the lower Court took the view that:
a community reading of the averments of both parties leave (sic) one in no doubt that the parties are ad idem that the appellant is entitled to one month (sic) salary in lieu of notice. The point of disagreement is whether or he was paid
From the pleadings and the evidence of both parties, it is not difficult to come to the conclusion that the appellant worked for the respondent in the month of November, 2003. Exhibit P19 is evidence of payment of his salary for that month. He earned that salary and in law he is entitled to it. In law the appellant’s employment continued until 28th November, 2003 when he was served with the letter of termination and not the 30th October, 2003 which is the date on the letter. In other words, the effective date of the termination of the appellant’s appointment is 28th November, 2003 and not 30th October, 2003…
In law, the effect of the above finding is that the respondent did not pay the appellant the agreed one month (sic) salary in lieu of notice. There was non-compliance with the provisions of Article 4 (ii) (d) of the collective agreement (supra).
(Pages 292 et seq]
The lower Court finally dealt with the issue of the appellant’s remedies in these words:
The next question is what remedies the appellant is entitled to for failure to give the agreed one month (sic) notice or pay (sic) one month (sic) salary in lieu of notice (sic). The law is settled that where a contract of employment is terminable on notice and the employee is not given the requisite notice or payment in lieu of notice, the only remedy available to the employee is the award of salary for the period of the notice and any other entitlements due to him at the time of the termination of the employment. A declaration that the contract is still subsisting or that the termination is null, void and of effect will not be made except in some cases of employment with statutory flavor. The general principle of law is that a servant cannot be imposed on an unwilling master even where the master’s behavior is wrongful All that the appellant is entitled to is one month (sic) salary in lieu of notice and any other entitlements legitimately due to him at the time of termination of his employment and nothing more
[Pages 294 et seq; italics supplied for emphasis] The appellant’s counsel inveighed against the above reasoning and conclusion of the lower Court, [paragraph 3.21, page 12 of the appellant’s brief]. In doing so, he would seem to have wished away numerous decisions on this Court on this point. Remarkably, however this Court has ware-housed a robust corpus of jurisprudence on the measure of damages awardable in circumstances such as those present in the instant appeal.
In the first place, I endorse the conclusion of the lower Court that parties are bound by the terms of their contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have made,U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385, 404. Thus, unless it is established in evidence that a party was fraudulently led into an agreement, parties are bound by the written and express terms of their contract, Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC); [2013] 5 NWLR (Pt. 1346) 144. In other words, in the absence of fraud, duress and undue influence or misrepresentation, the parties are bound by their contract, Makwe v. Nwukor (2001) 7 SC (Pt. 1) 1, 38; A-B; Alade v. Alic (Nig.) Ltd [2010] 19 NWLR (Pt. 1226) 111.
My Lords, I cannot find any justification for disagreeing with the above conclusion of the lower Court. Under

…………………….E…………………….

the common – and Nigerian – laws, the position is that, ordinarily, a master has the right to terminate his servant’s employment for good or bad reasons or for no reason at all. The basic principle considered normally in the resolution of a dispute between a master and his servant where the former determines the latter’s appointment is the determination of whether the contract of service between the two of them is one with statutory-colouration/flavour.
Where the servant is removed in a contract with statutory flavour, the first question the Court would ask is: has the servant’s employment been determined in accordance with the way and manner prescribed by the statute under reference?
Or, is the contract governed by an agreement of the parties and not under any statute? Where the servant is sought to be removed in a contract with statutory flavor, that is, a contract of employment wherein the procedures for employment and discipline, including dismissal, are clearly spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is void and has no effect.
However, in other cases governed only by agreement of the parties and not by statute, removal by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Where this happens, the only remedy open to the plaintiff is a claim for damages for that wrongful dismissal and not reinstatement.
This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master’s behaviour is wrong. For his wrongful act, the master is only liable in damages and nothing more, Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512, 560; Union Bank v. Ogboh [1995] 2 SCNJ 1, 16; [1995] 2 NWLR (Pt. 380) 647; N.E.P.A. v. Isieveore (1997) 7 NWLR (Pt. 511) 135; Fakuade v. O.A.U.T.H.(1993) 5 NWLR (Pt. 291) 47; Adeniyi v. Governing Council, Yabatech (1993) 6 NWLR (Pt. 300) 426; Imoloame v. W.A.E.C. [1992] 9 NWLR (Pt. 265) 303; Bankole v. N.B.C. (1968) 2 All NLR 371; Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 40; U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 363) 376; N.O.M. Ltd v. Daura (1996) 8 NWLR (Pt. 468) 601.
What flows from this latter category, that is, in cases governed only by agreement of the parties, and not by statute, is that the measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment, Nom Ltd v. Daura (supra); N.P.M.B. v. Adewunmi (1972) 11 SC 111; Onalaja v. African Petroleum Ltd [1991] 7 NWLR (Pt. 206) 691; Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512; International Drilling Co. Ltd. v. Ajijala (1976) 2 SC 115; Akinfosile v. Mobil (1969) NCLR 253; WNDV v. Abimbola (1966) 1 All NLR 159; Mayne and McGregor on Damages (12th edition); paragraph 608.
Simply put, therefore the measure of damages in cases of wrongful dismissal of this category is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment, Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111; Olatunbosun v. N.I.S.E.R Council (1988) 3 NWLR (Pt. 80) 25.
In all therefore, I take the view that the lower Court correctly stated and applied the applicable principle of law in a master and servant relationship. In International Drilling Company (Nigeria) Limited v. Moses Eyeimofe Ajijala (1976) 2 SC 64, 73-74, this Court made the point that:
The principles of law governing the award of damages were stated recently by this Court in: Western Nigeria Development Corporation v. Jimoh Abimbola (1966) NMLR 381, 382; and Nigeria Produce Marketing Board v. A. I. Adewumi (1972) 1 All NLR (Pt. 2) 433, 437.
In the latter case, we stated the law as follows at p. 437:
In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract, Beckham v. Drake (1849) 2 H. L Cas 579 at pages 607-608. Where however the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.
The application of this principle was vividly demonstrated by this Court in the case of Western Nigeria Development Corporation v. Jimoh Abimbola, supra, where Ajegbo, JSC, (delivering the judgment of the Court), after stating the guiding principles, said at page 382:
The plaintiff was given a letter of appointment (Exhibit A)… The plaintiffs appointment was governed by the contract to which he entered at the time of his appointment. If he had been given one month’s notice before termination of

…………………….F…………………….

his appointment, he would have had no claim whatever on the Corporation. But he was not given notice, and he is entitled to one month’s salary in lieu of notice. That is all he can get as damages. Other matters that the Judge considered are irrelevant.
[Italics supplied for emphasis] From all I have said above, I am left with only one option. It is the dismissal of this appeal for lacking in merit. I hereby affirm the judgment of the lower Court. Parties are to bear their costs. Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having had the privilege of reading in draft the lead judgment of my learned brother CHIMA CENTUS NWEZE, JSC just delivered, I agree with the reasoning and conclusion therein that the appeal lacks merit and also dismiss same.
The issue the appeal raises is on the proper procedure an employer needs to follow to effectively terminate the contract of employment with his employee.
It is trite that where the contract of employment itself provides a procedure for the termination of the employment, the procedure as provided must be complied with to effectively bring the employment to an end.
An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that is the employee’s only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. Thus, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only. The Court, except where the employment is especially protected by statute, cannot compel the employer to re-instate the dismissed employee. See Olarewaju v. Afribank (Nig.) Plc (2001) LPELR-2573 (SC), Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599, Osisanya v. Afribank (Nig) Plc (2007) LPELR-2809 (SC).
In the instant case where the terms of employment provide for specific period of notice before termination or salary in lieu thereof, the only remedy available to the appellant is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was terminated and no more.
See Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 890 and Gabriel Ativie v. Kabel Metal Nig. Ltd (2008) LPELR-591 (SC).
In correctly applying the law to the facts of the instant case, the lower Court held:-
“All that the appellant is entitled to is one month salary in lieu of notice and any other entitlements legitimately due to him at the time of termination of his employment and nothing more.”
The foregoing being a correct and just enforcement of the terms of the contract between the parties must persist. See U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385 and Olaniyan & Ors v. Unilag (1985) 2 NWLR (Pt. 9) 599 and AG Ferrero & Co Ltd v. Henkel Chemicals Nig. Ltd (2011) LPELR-12 (12).
It is for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I find no merit in the appeal and dismiss same. I abide by the order of costs made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The narrow issue in this appeal is the measure of damages recoverable for wrongful termination of employment. The law is settled that an employer who has the right to hire also has the right to fire.
The employer has an unfetted right to terminate the employee’s employment. He may terminate for good or bad reason or for no reason at all. The motive for exercising the right does not render the exercise ineffective. See: Shitta-bey v. Federal Public Service Commission (1980) SC 40 @ 56; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Olanrewaju v. Afribank Nig. Plc. (2001) 13 NWLR (Pt. 731) 691 Dudusola v. Nigeria Gas Co. Ltd. (2013) 10 NWLR (Pt. 1363) 423.
What is essential is that the firing must be done in accordance with the terms and conditions of the employment. See: Organ & Ors v. N.L.N.G. Ltd & Anor. (2013) 16 NWLR (Pt. 1381) 506, Garuba v. Kwara Inv. Co. Ltd. (2005) 5 NWLR (Pt. 917) 160, Osisanya v. Afribank (Nig.) Plc (2007) 6 NWLR (Pt. 1031) 565.
In an employment with statutory flavour, where the procedure for employment and discipline, including dismissal, are clearly spelt out in the relevant statute, the employer must comply strictly with its provisions in terminating the employment or in dismissing the employee.

…………………….G…………………….

Any other manner of terminating the employment which is inconsistent with the statute is null and void and of no effect. See: Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25; Comptroller General of Customs & Ors. v. Gusau (2017) 4 SC (Pt. II) 128.
In other cases where the employment is governed by the agreement of the parties, removal by way of termination of appointment or dismissal must be in accordance with the terms agreed upon. Failure to comply with the terms renders the termination wrongful but not null and void. The only remedy available to an employee in an ordinary master and servant relationship for wrongful termination of employment is a claim for damages. The rationale being that a servant, though wiling, cannot be foisted upon an unwilling master. See: U.B.N. Ltd v. Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664; Ibama v. S.P.D.C (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364; Olanrewaju v. Afribank Nig. Plc. (supra). Where the parties have agreed that the contract of employment may be terminated by either party upon the giving of notice or the payment of the equivalent salary for the period of notice, the measure of damages for wrongful termination or dismissal is the amount the servant would have earned over the period of notice. See; Dudusola v. Nigeria Gas Co. Ltd. (supra); Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512; Fakuade v. O.A.U.T.H (supra); Osisanya v. Afribank (Nig.) Plc. (supra).
In the instant case, by virtue of Article 4(ii) (d) of Exhibit P19, the collective agreement, the appellant was entitled to one month’s salary in lieu of notice. The effective date of termination of his appointment, as rightly found by the Court below, was 28th November, 2003 when he was served with the termination letter dated 30/10/2003. The evidence showed that he had worked for the month of November, 2003 and had therefore earned the salary he was paid for that month. The Court below was right when it held that he was entitled to one month’s salary in lieu of notice and any other entitlement legitimately due to him at the time of termination of his employment and nothing more.
My learned brother, Chima Centus Nweze, JSC obliged me with a copy of the judgment just delivered. For the reasons stated above and for the fuller reasons well stated in the ead judgment, I also find no merit in this appeal and dismiss it accordingly.
The parties shall bear their respective costs.
EJEMBI EKO, J.S.C.: The facts of this case have been lucidly stated in the judgment just delivered by my learned brother, C. C. NWEZE, JSC. As I no longer need to re-state them all over, I hereby adopt the facts as summarized in the lead judgment.
The Respondent did not, when they terminated the employment of the Appellant with them, give the Appellant one month notice of the same.
They paid into his account one month’s salary in lieu of notice, which they subsequently reversed. The net consequence of that action is that the Respondent terminated the appointment of the Appellant without giving him one month notice they were required to give him. They also did not pay him one month’s salary in lieu of notice. The Respondent had thereby breached the terms of the contract of service between them and the Appellant.
The Lower Court in allowing the Appellant’s appeal in part, held that “all the Appellant is entitled to is one month salary in lieu of notice and any other entitlements legitimately due to him at the time of the termination of his employment and nothing more.” The sole question for determination of this appeal is: whether the Appellant was entitled to be paid damages in excess of the one month salary in lieu of notice?
The law is settled that in a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to the contract: NIGERIA PRODUCE MARKETING BOARD v. A. I. ADEWUMI (1972) 1 ALL NLR (Pt. 2) 433 at 437. Where the plaintiff was by terms of the contract, entitled to be given one month notice before the termination of his appointment by the employer, the defendant; the plaintiff is only entitled to be paid the amount he would have earned, or entitled to be paid, within the period of one month. That is the amount he would have earned within the period of the mandatory notice: WESTERN NIGERIA DEVELOPMENT CORPORATION v. JIMOH ABIMBOLA (1966) NMLR 381 at 382.
The Appellant herein, was entitled to be given one month notice. He was not given the said one month notice. The amount of damages he was entitled to, in the

…………………….H…………………….

circumstance, was one month’s salary in lieu of notice and no more. The Lower Court was in the circumstance right in law to have so held. There is therefore no substance in this appeal.
In concurrence with my learned brother, C. C. NWEZE, JSC, I hereby affirm the judgment of the Lower Court, as I dismiss this appeal. Appeal dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, C. C. Nweze, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. A private limited liability Company or any employer of labour like the Respondent in the instant case does not have any obligation to retain the services of any unwanted employee and may terminate the appointment of the employee without any reason. See Obe v. Nigersol Construction Company Ltd. (1972) 2 U.I.L.R. (Pt. 11) 121.
In ordinary contract of employment where the terms provide for one month’s notice before the termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlement due to him at the time the employment was brought to an end. See Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390, Western Nigerian Development Corporation v. Abimbola (1966) 1 All NLR 159.
In a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual, as in the instant case, a termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract.
I am therefore of the firm view that the lower Court, correctly applied the correct principle of Law in a master and servant relationship. I find no reason to differ from the decision of the lower Court. With these few words and the more detailed reasoning contained in the judgment of my learned brother Nweze, JSC, I find this appeal lacking in merit, and same shall be and it is hereby dismissed.
I abide by all the consequential orders made in the lead judgment, including order as to costs.

…………………….A…………………….

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Benin Division delivered on 4th March, 2005, wherein the Court below set aside the judgment of the trial State High Court for lack of jurisdiction and struck out the claim of the appellant who was the plaintiff at the trial Court. A perusal of the record of appeal shows the following as the facts leading to this appeal.
The appellant as plaintiff sued the Respondents as defendants before the High Court of Delta State, holden at Warri, claiming the following:-
1. A declaration that the plaintiff is entitled to be employed by the first defendant as driver with effect from 12th day of June, 1987.
2. Order of specific performance of the contract of employment of plaintiff by the first defendant upon the successful medical test the first defendant ordered the plaintiff to undergo as a condition for the said employment as a driver 11 on the first defendant salary grade level 16/1.
3. N500, 000.00 against the second Defendant being damages in that on the 29th of June, 1987 the second defendant wrongfully and unlawfully and acting ultra vires and arbitrarily withheld the letter of appointment issued by the 1st defendant to the plaintiff employing the plaintiff as a driver 11 on the first defendant salary grade level 16/1.
The appellant in this appeal was a casual driver with the 1st Respondent, Warri Refinery and Petrochemical Company Ltd., then as Petrochemical section of the NNPC at Ekpan. He applied for employment as driver 11 on the 1st Respondent’s salary grade level 16/1. In August, 1986, the Appellant was interviewed along with others for regular employment with the corporation. However, on or about 30th December, 1986, he was dismissed from service. In June, 1987, he was invited by the 1st Appellant’s letter to attend a medical test, a condition upon handing over to him his letter of employment by the 1st Respondent which letter was alleged at the material time to be in the custody of the 2nd Respondent, an employee of the 1st Respondent assigned to the Petrochemical section of NNPC, Ekpan as its Project Manager. Appellant states that he passed the medical test conducted and medical report was issued to him which automatically entitled him to be employed as a driver 11.That the 2nd Respondent withheld the letter of employment issued by the 1st Respondent to the appellant without any just cause, consequent upon which he instituted the action.
The Respondents in their joint amended statement of defence denied the claim and stated that they never issued any employment letter to the appellant and that the medical test conducted by the 1st Respondent was one of sin quo – non for an applicant seeking gainful employment with the corporation and that it is not a guarantee or certainty or an assurance that the applicant is successful when such examination is conducted.
In his judgment, the learned trial judge on page 99 of the record of appeal made the following findings and conclusions:-
“The evidence before me shows that 2nd defendant Dr. Dena is an employee of 1st Defendant Company I so find.
As contended in plaintiffs pleadings and in his evidence, 2nd defendant had no mandate or authority by or from 1st Defendant Company to withhold plaintiff’s letter of appointment. I so find.
I have earlier found that 2nd defendant did wrongfully withheld (sic) the said letter. I so find again.
As servant of the 1st Defendant Company, 2nd defendant acted in the course of his duty, albeit wrongfully.
2nd defendant’s action is wrongful and improper.
If he had the authority or mandate of 1st Defendant company to withhold plaintiffs letter of appointment Dr. Dena to have come to Court to place his evidence before the Court to that effect.
He appears to have defiantly or arrogantly ignored this proceedings whist the battle concerning his wrongful act was raging.
The absence of plaintiffs letter of appointment (which 2nd defendant is withholding) has to a large extent, prevented this Court from granting the declaration sought by plaintiff. It has made it impossible for the Court to ascertain plaintiff’s entitlements, i.e., salary on appointment and fringe benefits and allowances. More importantly, plaintiff has suffered hardship and loss of earnings as a result of 2nd defendant???s act which is ultra vires and wrongful. Accordingly, plaintiff is entitled to general damages. In plaintiffs alternative claim at paragraph 14 (c) of his statement of claim, he claims the

…………………….B…………………….

sum of N500,000 (Five Hundred Thousand Naira) as general damages.
Having regard to all I have said in respect of 2nd defendant’s wrongful act, I award the sum of N300, 000 (Three Hundred Thousand Naira) as general damages against 2nd defendant. Dr. Dena for his wrongful act of arbitrarily withholding plaintiffs letter of appointment in his capacity as servant of 1st defendant company who is vicariously liable.”
Dissatisfied with the above judgment of the learned trial judge, the Respondents herein appealed to the Court of Appeal as Appellants. The lower Court set aside the judgment of the High Court of Delta State on the ground that the said State High Court lacked jurisdiction to entertain the matter and to make the orders it made in the judgment.
Also dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court. Notice of appeal was filed on 20th May, 2005 against the judgment of the Court below which was delivered on 4th March, 2005. There are two grounds of appeal, out of which two issues have been distilled for the determination of this appeal.
On 12th February, 2018 when this appeal was argued, the learned counsel for the appellant, D. E. Agbaga, Esq., adopted the appellant’s brief of argument filed on 16th November, 2006. The two issues alluded to above are as follows:-
1. Whether Section 230(1) (P) of the 1979 Constitution as amended by Decree No. 107 of 1993 now Section 251 (1) (P) of the 1999 Constitution applies to action founded on breach of contract and specific performance for which the State High Court enjoys jurisdiction in line with the decision in Felix Onuorah v Kaduna Refinery and Petrochemical Co. Ltd (2005) All FWLR (pt 256) 1356.
2. Whether the Court of Appeal was right to dismiss the appeal when it did not find it necessary to consider and determine the issues identified by the Appellant
Also, C. D. Bello, Esq., of counsel for the Respondents, on the same date identified and adopted the Respondent’s brief of argument he filed on 15th March, 2007 wherein he formulated two similar issues but couched differently thus:-
1. Whether the Court of Appeal was wrong in holding that Section 230(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by the Constitution (Suspension and Modification) Decree 107 of 1993 vested jurisdiction in the Federal High Court rather than the State High Court in the appellant’s action seeking declaratory reliefs and specific performance against the respondents when the 1st Respondent is an agency of the Federal Government.
2. Whether the Court of Appeal did not consider the appellant’s case complaining that the respondents did not appeal against the order of vicarious liability made by the trial Court and, in any event, whether the decision of the Court of Appeal on the issue of jurisdiction did not dispose of the entire appeal before it.
I shall in the circumstance of this case, determine this appeal on the two issues distilled by both parties. But before then, let me make a few comments in respect of notice of preliminary objection contained on page 4, paragraphs 3.00 – 3.04 of the Respondents’ brief. It states:-
3.00 NOTICE OF PRELIMINARY OBJECTION
3.01 At the hearing of this appeal, the respondents shall raise preliminary objection to the competence of this appeal thus:-
3.02 (1) Grounds 1 and 2 of the grounds of appeal being grounds of mixed law and facts were filed without leave of the Court of Appeal or this Honourable Court contrary to Section 233 (1) of the Constitution of the Federal Republic of Nigeria 1999.
3.03 (2) The appellant cannot raise the issue of jurisdiction in his brief as he has done in issue 1 thereof without seeking or obtaining leave of this Honourable Court in that he did not argue of (sic) canvass the said issue in his brief at the Court of Appeal.
3.04 We therefore urge this Honourable Court to strike out the said issue 1 of the appellants’ brief of argument and grounds 1 and 2 of the grounds of appeal for being incompetent.”
The above is all that relates to the preliminary objection. There is no argument in support of the said issues raised in the notice of preliminary objection. The only reasonable conclusion would be that it has been abandoned. It is not the duty of the Court to proffer argument for the respondents in support of the notice of preliminary objection or the issues raised therein.
But even if there was argument in support, the law is trite that issue of jurisdiction is constitutional or statutory and therefore a matter of law.

…………………….C…………………….

The appellant needed no leave to raise same. Moreover, issue of jurisdiction was the main and probably the only decision of the lower Court. It is my view that the said issue 1 was properly raised by the appellant. SeeAgbule v Warri Refinery & Petrochemical Company Ltd, (2012) LPELR – 20625 (SC), (2013) 6 NWLR (pt. 1350) 318, NNPC & Anor v Orhiowasele & Ors (2013) 13 NWLR (pt. 1371) 211 Wema Securities & Finance Plc v Nigeria Agricultural Insurance Co. (2015) LPELR – 24833 (SC), Western Steel Works Ltd & Anor v Iron Steel Workers Ltd., (1987) 2 NWLR (pt. 179) 188, Aderibigbe v Abidoye (2009) 10 NWLR (pt. 1150) 592.
As the learned counsel for the respondents did not proffer any argument on the preliminary objection, I do not know why he insisted that leave ought to have been obtained. In circumstance therefore, the preliminary objection is devoid of merit and is accordingly overruled. I shall now resolve the two issues submitted for determination which I intend to take them together.
On issue one, learned counsel for the Appellant submitted that the case of the Appellant as stated at the trial Court is founded on breach of contract of employment and specific performance for which a State High Court enjoys residual jurisdiction. He stressed that it is the claim of the party which determines whether a Court has jurisdiction or not.
Learned counsel submitted further that the Federal High Court is not conferred with jurisdiction to hear matters of simple contractual relationship between parties as such matters are outside the provisions of Section 230 (1)and [s) of the 1979 Constitution as amended by Decree 107 of 1993 now Section 251 (1) of the 1999 Constitution, referring to the case of Onuorah v Kaduna Refinery & Petrochemical Company Ltd., (2005) All FWLR (pt. 256) 1356, 7 Up Bottling Co. v Abiola & Sons (2001) FWLR (pt. 70) 1611, Trade Bank Plc vs Benilux Ltd (2003) FWLR (pt. 162) 1871.
Concluding on the 1st issue, learned counsel submitted that having regard to the decision of this Court in Onuorah v KRPC Ltd (supra), the decision of the Court below that the trial Court lacked jurisdiction to have tried this case was made in error and ought to be set aside.
On issue 2, the learned counsel for the appellant submitted that the Court below erred when it declined and/or failed to consider the issues raised by the Appellant (then Respondent) in his brief. That had the Court below considered those issues, it would have come to a different conclusion, relying on I.B.W.A. Ltd v Imano Nig Ltd (2001) FWLR (pt. 44) 421 at 443 paragraphs D – E and Owoseni v Faloye (2005) All FWLR (pt. 284) 220 at 249 paragraphs F – G.He urged the Court to resolve the two issues in favour of the appellant.
In his response on the first issue, the learned counsel for the Respondents, C. D. Bello, Esq., submitted that the decision of the Court of Appeal in holding that the judgment of the trial Court was a nullity for lack of jurisdiction is correct having regard to the provisions of Section 230 (1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by the Constitution (Suspension and Modification) Decree (Decree No 107) of 1993. On the essential elements which determine the jurisdiction of a Court, learned counsel referred to the cases of Madukolu v Nkemdilim (1962) 2 SCNLR 341 at 348, Odofin v Agu (1992) 3 NWLR (Pt. 229) 350 at 365 and Olutola v University of Ilorin (2005) 3 MJSC 151 at 164.
Learned counsel submitted further that having regard to the principles enunciated in Madukolu v Nkemdilim(supra), there are features in the case in hand which affected the competence or jurisdiction of the trial Court to try the case in that Decree No 107 of 1993 had from its commencement date removed from the State High Court’s jurisdiction to try causes and matters, amongst others, seeking declaratory reliefs against the Federal Government and its agencies. Learned counsel referred to the case of NEPA v Edegbero (2003) 1 MJSC 69. According to him, breach of contract or alleged breach of contract cannot be excluded from the purview of Section 230(1) of the 1979 Constitution as amended by Decree No 7 of 1993.
On issue 2, learned counsel submitted that after reaching the decision that the trial Court lacked the jurisdiction to entertain this matter, it was not necessary for the lower Court to go further to consider the arguments in support of other issues in the appeal before it, relying on UBN v Sogunro (2006) 9 MJSC 164 at 175. He submitted further that the lower Court was right in not going further to consider the other issues raised in the appeal having regard to its

…………………….D…………………….

decision on the issue of jurisdiction which disposed of the entire appeal, citing 7 Up Bottling Company Ltd v Abiola & Sons Bottling Company Ltd (2001) 5 MJSC 93 at 105. He urged the Court to resolve the two issues against the appellant.
The simple and straight forward issue in this appeal is to determine which Court has jurisdiction to entertain the claim of the appellant herein. Is it the High Court of Delta State, sitting in Warri or is it the Federal High Court? The learned trial Judge of the Delta State High Court assumed jurisdiction in this matter and entered judgment for the appellant in part. However, the Court below held that the said High Court lacked jurisdiction to entertain the matter and struck out the claim of the appellant. It further held that the suit ought to have been filed at the Federal High Court.
The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd(1992) 5 NWLR (pt 244) 675.
The next thing I wish to determine is the nature of the claim of the appellant before the trial Court. This is so because it is the claim of the Plaintiff that determines the jurisdiction of the Court to entertain the suit. See Adetayo & Ors v Ademola & Ors (2010) 15 NWLR (pt. 1215) 169, Abia State Transport Corporation & Ors v Quorum Consortium Ltd (2009) 9 NWLR (pt 1145) P.1., Dr. Salik v Idris & ors (2014) 15 NWLR (pt 1429) 36.
From the statement of claim of the appellant (as Plaintiff) before the trial Court, it is clear that the Respondent herein had offered to employ the appellant as a driver. The appellant took steps to accept the offer by presenting himself for interview and attending a medical examination as ordered by the 1st Respondent. It must be noted that the appellant had been a casual driver in the 1st Respondent Company before seeking a permanent employment. This contract of employment could not be concluded and no satisfactory reason was given for such failure. It is the failure of the Respondents to issue the appellant with appointment letter that has brought the appellant to Court to order specific performance. Thus, the Appellant’s claim at the trial Court zero on breach of contract of employment and specific performance. The Court below agrees that the claim of the appellant arose from breach of contract of employment. On page 178 – 179 of the record of appeal, the lower Court held as follows:-
In this case, the Plaintiff/Respondent action seeking for a declaration(s) challenging the validity of the executive order or administrative action of the 1st Defendant/Respondent including damages, an agency of the Federal Government of Nigeria for breach of contract of employment clearly falls within the purview of Decree 107 of 1993.”
(Underling mine for emphasis)
Having established that the claim of the appellant at the trial Court arose from contract of employment and specific performance, is it the Federal High Court or the State High Court which has jurisdiction to entertain the matter?
At this stage, it is pertinent to reproduce the provisions of Section 230(1) (p) and (s) of the 1979 Constitution as amended by Decree 107 of 1993 (now Section 251(1) (p) and (s) of the 1999 Constitution (as amended). It states:-
“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters arising from:
(p) the administration or the management and control of the Federal Government or any of its agencies,
(s) any action or proceeding for a declaration

…………………….E…………………….

affecting the validity of the Federal Government or any of its agencies.”
There is no doubt that by the above provision i.e. Section 230(1) (s) of Decree 107 of 1993 which is in pari material with Section 251(1) (s) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended)any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies shall be brought before the Federal High Court. I have given a thorough examination of a plethora of cases of this Court on this issue and there is a consistent pronouncement that the Federal High Court does not have jurisdiction to entertain matters relating to simple contracts. It must not be forgotten that I have already held that the claim of the appellant relates to a simple contract of employment which the appellant sought specific performance. This type of claim, definitely, is not contemplated under Section 230(1) (P) (s) of the 1979 Constitution as amended by Decree 107 of 1993. See Onuorah v KRPC Ltd (2005) All FWLR (pt. 256) 1356, Ports and Cargo Handling Services Company Ltd.&Â Ors v. Migfo Nig Ltd. & Anor (2012) 18 NWLR (pt. 1333) 555, Adelekan v Ecu-Line NV (2006) 12 NWLR (pt 993) 33.
In Integrated Timber & Plywood Products Ltd v Union Bank Nigeria (2006) 12 NWLR (pt. 995) 483, this Court held emphatically that in a simple contract (as in this case), it is the High Court and not the Federal High Court that has jurisdiction to entertain and determine it. See also Eze v Federal Republic of Nigeria (1987) LPELR – 1193 (SC) Pp 29 – 30 paragraphs G – F.
In a simple contract of employment as in the instant case, there is nothing in Section 230(1) of the 1979 Constitution (as amended) which shows that the Federal High Court is conferred with exclusive jurisdiction to entertain matters arising therefrom. Rather it is the State High Court which continues to have jurisdiction to entertain issues connected therewith as brought by the parties for adjudication. The Court below made a grave error as to the claim of the appellant before the trial Court. Had the Court of Appeal properly located the claim of the appellant, I belief their decision would have been different.
I am fully convinced that the learned trial Judge had jurisdiction to entertain the claim of the appellant herein.
Eight issues were distilled and placed before the Court below for determination. Unfortunately, only one issue (of jurisdiction) was determined by the Court below leaving untouched seven issues. This Court has stated in quite a number of cases that intermediate Courts should pronounce on all issues placed before it. It should not restrict it to one or more issues which its opinion may dispose of the matter.
This is to give the apex Court the benefit of their views in the matter should there be the need to consider other issues not determined by the intermediate Court. See Chief Adebisi Adegbuyi v All Progressives Congress & Ors(2014) LPELR 24214 (SC) Xtoudos Services Nig Ltd v Taisei WA Ltd (2006) WRN 46 at 37, Edem v Canon Balls Ltd (2005) 12 NWLR (pt. 938) 27.
Be that as it may, this appeal succeeds on the only issue of jurisdiction determined by the Court below. This Court is of the firm view that the appellant’s claim i.e. enforcement of contract of employment was squarely within the jurisdiction of the Delta State High Court.
The learned trial Judge was right to assume jurisdiction in the matter. The Court below was therefore wrong to strike out the claim on the ground that the said Court did not have jurisdiction to entertain the matter. The judgment and orders of the learned trial Judge are hereby reinstated and the lower Court is ordered to determine all the other seven issues presented before it as this matter is remitted back to the Court of Appeal Benin Division for hearing de novo. I make no order as to costs.
This matter shall be given accelerated hearing.
Appeal Allowed.
OLABODE RHODES-VIVOUR, J.S.C.: I had the benefit of reading a draft copy of the leading judgment delivered by my learned brother, Okoro JSC. I agree with his Lordship that it is the State High Courts that have jurisdiction to decide simple contract.
I must also observe that this Court has said on several occasions that when the penultimate Court finds out that it or the trial High Court did not have jurisdiction to hear the case, it should say so and proceed to give a decision on the merits. This is the procedure that must always be followed, so that if it turns out that the Court of

…………………….F…………………….

Appeal was wrong, the Supreme Court would have the benefit of a judgment on the merits from that Court. Where this is not done as in this case and the Supreme Court finds that the Court of Appeal was wrong on jurisdiction, the only order the top Court can make is to send the case back to the Court of Appeal. This comes with huge costs and delay. See Isah v INEC & 3 Ors (2014) 1-2 SC (Pt. iv) p.101 Brawal Shipping (Nig.) Ltd v Onwadike Co. Ltd (2000) 6SC (Pt.ii) p.133.
In view of the above, my learned brother has found the Court of Appeal to be wrong on jurisdiction and has ordered that Court to hear the appeal on its merits. I am in full agreement with his Lordship.
It is for this and the fuller reasoning in the leading judgment that this appeal succeeds on the sole issue of jurisdiction. I abide by the orders and directives given by this Court.
Appeal is hereby allowed.
AMIRU SANUSI, J.S.C.: His Lordship Hon. Justice J. I. Okoro JSC who prepared this Judgment which was just read, had earlier supplied me with its draft. Having read same, I find myself at one with his reasoning and the conclusion reached that this appeal is meritorious. I also shall allow the appeal.
I abide by the consequential orders made therein, including one on costs. Appeal allowed.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, JOHN INYANG OKORO, JSC. As it represent my view in the appeal, I hereby adopt it.
The issue of jurisdiction is no doubt not just an issue of law, it is a substantial issue of law. Appeal on it is therefore one of law which the appellant, in an appeal from the Court below to the appellate Court does not need leave first sought and obtained to appeal on. Ground two, against which the respondent halfheartedly directed his objection also raises a question of law alone. It therefore does not need leave of Court to be brought. The respondents apparently raised the preliminary objection as a scare-crow. They did not argue it. They have abandoned it.
On the merits, the substance of the appellant’s suit at the trial Court, in my view, was the tort of detinue. The appellant’s complaint at trial Court was that the 2nd defendant/respondent, a servant of the 1st defendant/respondent had wrongfully detained from him the letter of employment issued to him by the 1st defendant/respondent. It is on this fact that the appellant, as the plaintiff, claimed damages against the respondents, as the defendants at the trial Court. The 1st respondent, the employer/master of the 2nd respondent was apparently joined in the suit for purposes of vicarious liability it has for the liability of the 2nd respondent in the alleged tort of detinue. The Federal High Court has no jurisdiction in tort of detinue. The appropriate Court, in the circumstance, was the High Court of Delta State. Section 230(1) (p) & (s) of the 1979 Constitution, as introduced thereto by Decree 107 of 1993 is in pari materia with their successors, Section 251(1) (p) & (s) of the 1999 Constitution. By these provisions, the Constitution does not intend to divest the State High Courts of their jurisdiction over disputes relating to torts or simple contracts. This Court makes the point loud and clear in ONUORAH v. KRPC LTD (2005) ALL FWLR (pt. 256) 1356 and all the decisions following which cited it with approval. NEPA v. EDEGBERO (2002) 12 SC (pt. ii) 119, an earlier decision of this Court, which held that the action for declaration and injunction, the principal purpose of which is the nullification of the decision of the defendant (NEPA, a Federal agency) terminating the appointments of the plaintiffs falls squarely within the provisions of Section 230(1) (s) of the 1979 Constitution, as amended, is only an authority for it decided on the peculiar facts of the case The facts of this case distinguish it from NEPA v. EDEGBERO (supra).
In this case, the appellant as the plaintiff, had sued inter alia for damages on the premise of the 2nd respondent/defendant wrongfully withholding or detaining from him his letter of appointment duly issued by the 1st respondent/defendant, which wrongful act caused him the loss of the appointment. The facts of the instant suit do not fall squarely within the provisions of Section 230 (1) (s) of the 1979 Constitution, as amended byDecree 107. That is what distinguishes it from the EDEGBERO case (supra). This distinction is what makes ONUORAH’s case applicable.

…………………….G…………………….

The issue at the Lower Court was whether the appellant was entitled to the N300, 000.00 awarded to him, as damages for the wrongful act of the respondents, as defendants? The Lower Court, having struck out the suit, did not decide or resolve the question. They should have resolved it, in case they may be wrong as an intermediate Court, on the issue of jurisdiction. The appeal before the Lower Court was not an interlocutory appeal but an appeal against final decision. It therefore behoved the lower Court, an intermediate Court, to resolve all the issues before it or express an opinion on the merits of the case This alternative course was what this Court enjoined the Lower Court to take, as can be seen from NIPOL LTD v. BIOKU INVESTMENT & PROCO LTD (1992) 23 NSCC (pt. 1) 606 at 618; KATTO v. CBN (1991) 9 NWLR (pt. 214) 126 at 149.
It is unfortunate that this case has to be remitted back to the Lower Court to decide the issues they omitted to decide which thereafter could have clothed this Court its jurisdiction to review. That is only course open to us, though not economical.
All orders made in the lead judgment, including the order remitting the case back to the lower Court to be heard de novo on all the other issues, except the issue of jurisdiction just resolved herein by this Court, are hereby adopted. Appeal allowed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother John Inyang Okoro, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal has merit, and it is accordingly allowed by me. I abide by all the orders contained in the lead Judgment.
Appearances

I find it cumbersome and a waste of precious judicious time to repeat the exercise. This appeal should abide the outcome of appeal No. SC.33/2010. Accordingly, I hold that this appeal has no merit and is also dismissed. I make no order as to costs.
Appeal Dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I had the benefit of reading a draft copy of the leading judgment delivered by my learned brother, Okoro, JSC.
My learned brother has affirmed the judgment of the Court of Appeal. I agree with his lordship.
The appeal is accordingly dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, John Inyang Okoro, JSC and to register the support I have in the reasonings, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Calabar Division: Coram: Kumai B. Akaahs, JCA (as he then was), Jean Omokri and Theresa Ngolika Orji-Abadua, JJCA otherwise called the Court below or Lower Court delivered on the 21st day of May, 2009 which upturned the decision of the trial Federal High Court per G. K. Olotu J. sitting at Uyo which decided that 2nd-16th respondents are not employees of the 1st respondent but employees of the appellant.
The details of the facts leading to this appeal are well set out in the lead judgment and I shall not repeat them save to make references to any part as the occasion warrants.
ISSUE TWO:
3.2 Whether, having found that the action was wrongly commenced by an Originating Summons, the lower Court was right in ignoring its earlier decision in N.N.P.C. v. Abdulrahman (2006) NWLR (Pt. 993) 202 and other Supreme Court decisions, by not striking out the case. (Grounds 2 and 3).
ISSUE THREE:
3.3 Whether the Court below correctly construed Section 18 of the Police Act by holding that Supernumerary Police Officers are appointed from members of the Nigeria Police Force. (Grounds 4 and 6).
ISSUE FOUR:
3.4 Whether, having found the 2nd-16th Respondents to be employees of the 1st respondent (i.e. Mobil Producing Nigeria Unlimited) a non-statutory employer, the lower Court was not wrong to have ordered the reinstatement of the 2nd-16th respondents which is only consistent with statutory employment. (Ground 5).
ISSUE FIVE:
3.5 Whether the Court below was right in disturbing the findings of fact by the learned trial Court which held that from the onset of the recruitment exercise the plaintiffs (now 2nd-16th respondents) were aware that they were being recruited as Spy police for the establishment of the 1st defendant (i.e. Mobil Producing Nigeria Unlimited) and that the appellant (the police) pay the salaries of the 2nd-16th respondents, while the 1st respondent (i.e. Mobil Producing Nigeria Unlimited) pay the 2nd-16th respondent only variable allowances and that there was substantial compliance with the law in the enlistment of the 2nd-16th respondents by the defendants. (Ground 7).
Learned counsel for the 1st respondent, K. Sofola SAN did not file a brief of argument.
Learned counsel for the 2nd-16th respondents adopted their brief of argument filed on 11/12/17 and deemed filed on 23/1/18 and in it raised five issues for determination which are thus:-
1. Whether the process leading to employment of the 2nd-16th respondent were in accordance with the provisions

…………………….B…………………….

of Section 18 of the Police Act to make them the employees of the appellants and subject them to the command of the appellants or that of the 1st respondent. (Grounds 4, 6).
2. Whether there is a legally binding contract between the 1st respondent and the 2nd-16th respondents. (Ground 1).
3. Whether having found the 2nd-16th respondents to be employees of the 1st respondent, and not having been dismissed but the 1st respondent, the lower Court was right to have reinstated them. (Ground 5).
4. Whether the Court below was right to determine the dispute as presented by the parties before it in the notice of appeal despite observing that the suit was wrongly commenced by originating summons. (Grounds 2 and 3).
5. Whether the Court below was right to disturb a finding of the trial Court where same could lead to a miscarriage of justice. (Ground 7).
The 2nd-16th respondents had earlier in the brief of argument argued the Preliminary Objection which has to be dealt with before anything else since the jurisdiction of the Court or otherwise is at stake.
PRELIMINARY OBJECTION:
I shall set down below the grounds upon which this objection is agitated, thus:-
TAKE FURTHER NOTICE THAT THE GROUNDS of the same objection are as follows:-
i. That the appellants herein did not have the locus to appeal the decision of the lower Court as envisaged by the provisions of Section 233 (5) of the 1999 Constitution as amended.
ii. That the decision of the lower Court did not affect the interest of the appellants and no imposition of any obligation whatsoever on the appellants from the judgment of the lower Courts.
iii. That the appellants were parties at the lower Court but did not respond to the briefs of the 2nd-16th respondents at the lower Court thereby admitting the argument canvassed at the lower Court.
iv. The grounds 2 and 3 of the appellants Amended Notice of Appeal are incompetent as they were distilled from obiter dictum of the judgment of lower Court as against the ratio decidendi of the said judgment.
v. The issues formulated in the brief of argument from the said grounds 2 and 3 of the amended notice of appeal are argued together with issue formulated in ground 4.
vi. The said issues are incompetent having been argued together with incompetent grounds of appeal.
vii. That there is no competent appeal and brief of argument.
Learned counsel for the respondents/Objectors stated that grounds 2 and 3 of the amended notice of appeal is a complaint against an obiter dictum of the lower Court and not against the ratio decidendi of the Court and that the Court should strike them out.
That an appeal is usually against the ratio decidendi of the judgment of a lower Court and not in respect of the obiter dictum made by the Court in the course of the said judgment. He cited Saude v. Abdullahi (1989) 4 NWLR (Pt. 116). That what grounds 2 and 3 seek to challenge is not the ratio decidendi in the decision of the Court but only a mere comment or passing remark which was not presented before the Court below for adjudication and so Issue 2 from the said grounds should be struck out. He referred to Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 162, Bello v. Governor of Kogi State (1997) 9 NWLR (Pt. 521) 496 at 513-514; Section 233 (5) of the Constitution of the Federal Republic of Nigeria, as amended.
Learned Senior Counsel for the objector contended that an appeal is for an aggrieved person to approach the Court to ventilate his grievance and that is not the case here, where the 1st appellant is not aggrieved and so the appeal is not competent as it is against the provisions of Section 233 (5) CFRN. He cited Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 253; Societe Generale Bank (Nig.) Ltd v. Afekoro (1999) 11 NWLR (Pt. 627) 510; Sun Insurance Office Ltd. v. Ojemuyiwa (1965) 1 All NLR 1.
In response, learned counsel for the appellant submitted that even though the appellants did not participate in the appeal by the 2nd to 16th respondents in the Court below because they were not aware of the said appeal, that does not translate to admitting the brief of argument of the 2nd to 16th respondent. That as soon as appellants got to know through the agents of the 1st respondent’s appeal No. SC/33/2010 lodged at the Supreme Court by the 1st respondent took steps to initiate the appeal herein.

…………………….C…………………….

He submitted that 2nd to 16th respondents/objectors commenced this action by way of Originating Summons, in the Federal High Court Uyo, the appellants objected to this but the Court overruled them. That the Objectors cannot rightly say that the judgment of the Court below was not against the appellants as appellants lost their employees as the Court declared that they are employees of the 1st respondent as against being employees of the appellants.
Learned Senior Advocate for the appellant contended that even though no appeal can arise out of an obiter dictum but where the obiter dictum has a strong nexus to and is strongly influenced by the ratio in which case both the obiter dictum and the ratio decidendi are almost inseparatable, the appeal on that point will be valid. He relied on N.N.P.C. v. Abdulrahman(2006) NWLR (Pt. 993) 202; Buhari & Ors v. Obasanjo & Ors (2003) 11 SC 1 at 119/120.
That the decision of the Court below declaring the 2nd to 16th respondents, as the employees of the 1st respondent as against SPY Police Officers under the appellants constitute both the relief against the appellants and the grievance of the appellants against the judgment of the Court below. He relied on Section 131 (1) of the Evidence Act; Buhari & Ors v. Obasanjo & Ors (2003) 11 SC 74 at 99/100.
The Preliminary Objection raised seems to me activated against the run of events in the acts that led to the suit in the first place and the decision of the Court below.
Getting back to the origin, the Court of Appeal on 21st May, 2009 set aside the judgment of the trial Federal High Court, Uyo delivered on January 24th, 2006 and held the 2nd-16th respondents are employees of the 1st respondent and not that of the appellants. It is a fact that appellants herein did not participate in the appeal by the 2nd-6th respondents as they were not aware of the said appeal, however the decision of the Court below was to the effect that 2nd to 16th respondents are employees of 1st respondent as against being those of the appellants which decision led to the appellants loss of their workers to the 1st respondent. It was in being aggrieved of the above stated decision that the appellants lodged Appeal No. SC/334/2010 against the 1st respondent.
To refresh the memory, the 2nd to 16th respondents had commenced this action by way of originating summons in the Federal High Court Uyo which the appellants herein objected to but the Court of trial overruled. I shall set out excerpts of the said judgment of the Federal High Court as follows:-
“4 Some other issues
(1) Commencement of Plaintiffs Action by Originating Summons.
“The 2nd-4th defendants (i.e. the appellants herein) challenged the method by which the plaintiffs commenced this action on the ground that the affidavits filed by the parties raised serious disputes over facts. Therefore the Originating Summons procedure was improper in commencing this action. The plaintiffs in their rejoinder submitted that the commencement of their action by Originating Summons was very proper. They submitted further that the affidavits are extensive and had several documents annexed as to them, but there was no substantial dispute as to the facts adduced by the carious parties”.
That Court of trial went on further thus:-
“My earlier review of a substantial part of the facts adduced by all the parties revealed that the facts related to the method of employment and recruitment of the plaintiffs as Spy Police. As submitted by the plaintiffs’ counsel, there was no substantial dispute of these facts. In fact, both the plaintiffs and defendants were in agreement about the procedure and method adopted in the employment process. What was in dispute is whether the procedure was in compliance with the procedure laid down by law. Order 2 Rule 2 (2) (b) of the Federal High Court (Civil procedure) Rules provides that proceedings may be began by Originating Summons where there is unlikely to be any substantial dispute of facts. It is this kind of case that Order 2 Rule 2 (2) (b) had in contemplation. I therefore hold that the plaintiffs rightly and properly began this action by way of Originating Summons. The case of Habib Nig. Bank Ltd v. Ochete (2001) FWLR (Pt. 58) 384 held is very apt and instructive on this issue. From the foregoing, I hold that plaintiffs suit commenced by Originating Summons was properly commenced”.
(Underline for emphasis).

…………………….D…………………….

From those parts of the said judgment, the Objector cannot rightly object to the appeal of the appellants herein based on their being unaffected by the judgment of the Court below. This is because the judgment of both Courts below touched the interest of the appellants herein and they have a right to cry out and to be heard irrespective of their not being parties to the appeal in the Court below. I rely on the case of Waziri v. Gumel & Anor (2012) 3 SC (Pt. iii) 1 at 26 where in it was held by this Court thus:-
“My humble take on the argument above is that those are issues which are premature and to be handled when the merits of the appeal are considered and not at this stage which narrow question is whether or not the 1st respondent should be allowed in to state his case with reference to his own interest in the disputed property. “Another way of saying what I stated above is that what is to be considered at this stage and within the context of the application is whether the appellant has a grievance that needs be showcased and at the hearing of the appeal. That once the applicant and in this instance the 1st respondent has shown he had the Locus Standi, everything else has to wait for the enlarged gathering at the hearing on the merit of the appeal. The condition that is to enable the 1st respondent to be let into the full discourse is existing and that is all that matters now. See Fawehinmi v. Akilu (1987) NSCC 1265 at 1289 Dairo v. Gbadamosi in Re – Afolabi (1987) 4 NWLR (Pt. 63) 18.”
Also in the Supreme Court decision in Mobil Producing Nigeria Unlimited v. Monokpo (2003) 12 SC (Pt. 11) 50 at Pp 66-67 where it was held as follows:-
“It is true that the judgment of the trial Court which was affirmed by the Court below was given against only the second defendant. In effect, the first defendant is not an aggrieved party that can appeal against the judgment of the Court below to this Court simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of Section 233 (5) of the 1999 Constitution which says that “Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this Section shall be exercisable in the case of civil proceedings at the instance of a party thereto”. That provision must be understood to apply to an aggrieved person or party.
“A party to proceedings cannot appeal a decision arrived there at which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstance can it be argued that a party to a proceeding who has not been affected by a decision may nevertheless appeal against it merely as a party. See, for instance Akinbiyi v. Adelabu (1956) SCNLR 109 where it was recognized that a person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprived him of some right”.
It is clear therefore that the contention by learned counsel for the 2nd to 16th respondents that the appellants lacked locus standi to appeal the decision of the Court below as envisaged by the provisions of Section 233 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended because they appellants did not participate in the Court of Appeal is an argument that falls flat on its face being unsustainable in the light of appellants being directly affected by the decision of that Court below.
In respect to the other area in this preliminary objection which has to do with the competency of Grounds 2 and 3 of the appellants’ Notice of Appeal since according to the Objectors were complaints against an obiter dictum of the Court below and not against the ratio decidendi of the lower Court and so this Court is urged to strike them out. It is true and has become trite in law that appeal does not arise out of an obiter dictum or side comment or as in local parlance ‘side talk’ but there is an exception to that general rule which is that where the ratio decidendi and the obiter dictum are so intertwined and almost inseparable the appeal on the point in issue will be valid. What this translates to is that an appellate Court should not rush to striking out grounds of appeal and I daresay that issues emanating therefrom without caution. As the Court could unwittingly strike out would look like an obiter dictum which would turn round to be not the ratio decidendi but a side comment that is germane and cannot be easily dislodged from the ratio decidendi. A situation as I am trying to put across presented in the case of N.N.P.C. v. Abdulrahman (2006) NWLR (Pt. 993) 202 at 207, Court of Appeal decision which stated thus:-
“6. On mode of commencement of action challenging termination of employment proceedings for the challenge of termination of employment must be begun normally by the issue of a Writ of Summons within the period prescribed by the relevant statute. In the instant case, apart from the fact that the action was statute barred, it was also commenced by means of an Originating Summons instead of by a Writ of Summons. This was wrong in law and the trial Court should have struck out the action on that basis. (Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649; Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) referred to). P.217 para. E-G).” (Underlining mine). See also Tobi,

…………………….E…………………….

JSC in the case of Buhari & Ors v. Obasanjo & Ors (2003) 11 SC 1 at 119/120 where he stated as follows:-
“A statement by a Judge, either by way of a ratio decidendi or an Obiter dictum is determined in the context of the facts of the case before the Court. A ratio or an obiter cannot be determined outside the facts of the case or in vacuo”.
From the foregoing, I see no basis for this Preliminary Objection which ought to be despatched as quickly as possible so the Court can delve into the main assignment before it. The Objection lacks merit and it is dismissed.
MAIN APPEAL:
I shall utilise Issue One of the appellant which is similar to that of the 2nd-16th respondents and settles the remaining dispute between the parties and all the other issues dovetail into issue one.
ISSUE ONE:
Whether the process leading to the employment of the 2nd-16th respondents were in accordance with the provisions of Section 18 of the Police Act to make them the employees of the appellants and subject them to the command of the appellants or that of the 1st respondent.
Learned counsel for the appellant contended that it is the law that for parties to a simple contract including contract of employment to be bound by the agreement, the parties must be ad idem on its terms at the time of its execution which is not the case at this instance. He cited Attorney General, Rivers State v. Attorney General, Akwa Ibom State (2011) 3 SC 1 at 37; Sparkling Breweries Ltd v. Union Bank of Nigeria Ltd (2001) 7 SC (Pt. ii) 146 at 168.
That there is no letter of appointment to warrant the 2nd-16th respondents being employees of the 1st respondent. That the Court below erred when it held that Supernumerary Police Officers are appointed from the Police Force.
Learned counsel for the appellants stated that the plaintiffs, now 2nd-16th respondents had their case predicated on issues of fact raising disputes on those facts and so the case ought not to have been commenced by originating summons but rather through a writ of summons. He cited Order 2 Rule 2 of the Federal High Court (Civil Procedure) Rules 2000; Amaske v. Registered Trustees of CAC & Anor (2010) 5-7 SC (Pt. 1) 147; P.D.P. v. Abubakar (2007) NWLR (Pt. 1022) 540 at 546.
In response, learned counsel for the respondents 2nd-16th contended that appointment into the supernumerary police force is one governed with statutory flavour as it is regulated by statute precisely Sections 18-22 of the Police Act. He cited Imoloame v. W.A.E.C (1992) 9 NWLR (Pt. 265) 303.
That where a statute has provided for the doing of anything it must be done in accordance with the express provision of the statute and so the Court below averted its mind to the provisions of Section 18 of the Police Actand came to the conclusion it reached. He referred toAdeniyi v. Governing Council of Yaba Tech. (1993) 6 NWLR (Pt. 426) at 461; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 etc.
That the Court below was right to have interfered with the findings and decision of the trial Court, holding that the 2nd-16th respondents were not employees of the 1st respondent.
What I see as the enabling statutory provisions in the appointment of supernumerary police officers (Spy police) for short are found in Sections 18-22 of the Police Act and I shall quote Section 18 for effect hereunder, viz:-
(1) Any person (including any government department) who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application there for the Inspector General, stating the nature and situation of the property in question and giving such other particulars as the Inspector General may require.
(2) On an application under the foregoing subsection, the Inspector General may with the approval of the president, direct

…………………….F…………………….

the appropriate authority, to appoint as supernumerary Police Officers in the Force such number of persons as the Inspector General thinks requisite for the protection of the property to which the application relates.
(3) Every Super numeral Police Officer appointed under this act;
(a) Shall be appointed in respect of the area of the Police province or where there is no Police province, the Police district or Police division in which the property which he is to protect is situated.
(b) Shall be employed exclusively on duties connected with the protection of that property.
(c) Shall be posted in Police area in respect of which he is appointed and in any police area adjacent thereto, but not elsewhere, have the powers, privileges and immunity of a Police Officer. And
(d) Subject to the restrictions imposed by Paragraphs (b) and (c) of this Subsection and the provisions of S. 22 of this Act, shall be a member of the force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provision thereof relating to discipline.
(4) Where any supernumerary Police Officer is appointed under this section, the person availing himself of the services of that officer shall pay to the Account-General;
(a) On enlistment of the officer, the full cost of the officer uniform.
(b) Quarterly in advance, a sum equal to the aggregate of the amount of the officer’s pay for the quarter in question and such additional amounts as the Inspector General may direct to be paid in respect of the maintenance of the officer during that quarter.
In tackling the question whether a person has been appointed as a supernumerary Police Officer or Spy Police officer, it is the Primary Legislation that has to taken in view while so considering the question as to whether there has been conformity with the law creating such an employment.
It has become trite that where a legislation has provided for the doing of anything in a specific manner nothing short of that specification will suffice in doing that thing provided for. Therefore the regulating law for our purpose herein is the Police Act with particular reference to Section 18(1) and (2).
A cursory look at the provision of the said Act, that the process of appointment into the Spy Police Force is kick-started with an application to the Inspector General of Police by any person or government department desirous of having its property to be protected by the supernumerary Police Officer. In this case in hand there is no evidence proffered to show that such an application to the Inspector General of Police, the 1st appellant in the way and manner stipulated in Section 18(1), (2) of the Police Act. That failure is fatal to whoever claims to have so appointed persons in the capacity asserted. See Adeniyi v. Governing Council of Yabatech (1993) 6 NWLR (Pt. 426) 461; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599, Olufeagba v. Abdur-Raheem (2009) 18 NWLR 384. For clarity, the 2nd-16th respondents were not recruited or appointed on the instruction of the Inspector-General of Police (1st appellant) in the way and manner prescribed by Section 18 and 22 of the Police Act. The approval of the Head of State or President through the Inspector-General of Police was not sought for nor obtained before the 2nd-16th respondent’s were appointed. There is no evidence of the approval of the Inspector General of Police before the appointment of 2nd-16th respondent’s nor were uniforms of the Nigeria Police Force issued to the said respondents. The Court below was clearly right not to have considered the Force Administrative Instruction/Force Order having made a finding that the employment of the 2nd-16th respondents was not in compliance with the Sections 18-22 of the Police Act which is the substantive Law in the appointment of supernumerary Police Officers while the Force Administrative Order is a subordinate legislation and cannot take the pride of place in relation to the Police Act. That being so with the subordinate legislation inconsistent with the substantive provision of the statutory, the subordinate will give way being ultra-vires. See Oloriegbe v. Omotesho (1993) 1 NWLR (Pt. 270) 386.
From all that is before this Court there is nothing on which an interference by this Court can be justified and so the issue here is resolved against the appellants as the Court below was correct in holding that the 2nd-16th respondents were not employed in accordance with the process provided for in Sections 18-22 of the Police Actwhich govern appointment of supernumerary Police Officers and so are employees of the 1st respondent and not that of the appellants:
In the light of the above, I resolve this issue against the Appellants and no need to go into the other issues as I too see no merit in this appeal which I dismiss.
I abide by the consequential orders made.
AMIRU SANUSI, J.S.C.: This appeal is an offshoot of appeal No. SC.33/2010 in which judgment has just been delivered. The parties in this appeal are same with those in SC.33/2010 although they have different nomenclature. Since the facts and circumstance of the two appeals are the same, it will appear to me absurd to give different treatment to the two appeals.
It is therefore my view that the result in appeal No. SC.33/2010 should abide this appeal too.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother John Inyang Okoro, JSC just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.

…………………….A…………………….

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Hon. Justice Y. O. Idowu of the High Court of Lagos State delivered in the Lagos Judicial Division on 30th day of October, 2008.
Initially, the Appellant as Plaintiff began this suit by Originating Summons of 08-10-1999 which later metamorphosed into a statement of claim of 14-02-2001. The Respondent filed a Statement of Defence on 08-05-2001.
However, by paragraph 23 of the Appellant’s Amended Statement of Claim of 31-01-2007, the Appellant claimed from the Respondent as follows:-
a) An Order of Declaration stating that the Claimant was forcibly and prematurely retired by the Defendant and is entitled to inclusion in the Pensions Scheme upon attaining the requisite age.
ALTERNATIVELY
An Order for the payment of the sum of N6,357,751:00 being an En Bloc payment of the retirement benefit due to the Claimant till she attains the age of 80.
(b) An order for the sum of N5,500,000:00 being GENERAL DAMAGES in respect of the loss of HEALTH, SHOCK AND TRAUMA occasioned by the DEFENDANT LETTER OF 20-12-1996.
(c) An Order for interest at the rate of 23 per centum upon ALL SUMS until Judgment is entered and 21 per centum till payment is made to the claimant.
The facts of the case are as follows:-
The Appellant was in the employment of the Respondent Bank from 16th August, 1968 continuously until 20-12-1996 when her employment was determined by a letter of same date.
The Respondent had set up as far back as 1/1/1970 a Staff Provident Fund (SPF) Life Assurance Scheme managed by the Royal Exchange Assurance Limited for benefit of Employees towards the terminal exit from employment via retirement. Under this Provident fund, Employer (Respondent) contributed up to 20% of a staff emolument while Employee contributed 5% his earnings into the Provident Fund. The Provident Fund paid one time enbloc payment to retired Employee.
Under a new in-house Afribank Nigeria Plc Staff Pension Scheme, the Employer (Respondent herein) contributes 22¹_/2 of staff emolument into the Staff Pension Scheme Fund. Staff were given the option of collecting the surrender value of their contribution under the old provident Fund managed by Royal Exchange Assurance Ltd or allowing the accruing sum to be transferred into the new in-house staff pension Scheme for purposes of working out their final entitlement at severance of employment if that staff meets the qualifying criteria under the Rules governing the Staff Pension Scheme.
The Appellant was given the option to receive her benefit from the previous provident Fund Scheme by the Respondent letter of 28th August, 1996 shortly after the new in-house Afribank Nigeria Plc Staff Pension Scheme became operation document following its approval by the Joint Tax board and execution by the Afribank Nigeria Plc Signatories. The Appellant elected to be paid her surrender value and was duly Paid.
The Respondent Bank determined the employment of the Appellant by a letter dated 20/12/1996. However, conveying the break down of Appellant Gratuity Benefit vide its letter of 14/1/1997, the Respondent erroneously and mistakenly informed the Appellant that she qualified for Pension when actually she did not under the Rules governing the new in house staff Pension Scheme. This error and mistake was subsequently rectified and corrected vide Respondent letter of March 11th 1999 to the Appellant informing her of the fact that she did not qualify.
The Appellant averred that she was born in 1941 and had not attained 50 years at the commencement of the new Staff Pension Scheme. That she refused the acceptance of the draft sum of N292,895.34 sent to her by the Respondent as the calculated retirement/terminal benefit. That she requested a breakdown, analysis of how the computed figure was arrived at, but the Respondent has failed to furnish same.
The Appellant averred that as a direct consequence of the letter of 14(03) 99, she suffered trauma, shock and a general deterioration of her health and had to be hospitalized, and that upon recovery, she instructed her solicitors to write the Respondent for a demand.
The Respondent states it is only bound to give an employee a three (3) Months Notice of Severance or salary in Lieu of Notice, which it did.
The Respondent admitted that there is a Deed of Amendment of Trust Deed but states that the Appellant does not qualify to participate or benefit under the trust deed having already attained the age of 50 years at the inception of the new scheme in

…………………….B…………………….

1991 and not having served for at least 10 years period from the date of inception of the new scheme (1991) to date of severance of employment (1996) nor paid contributions for 10 years as stipulated by the trust deed.
The Appellant testified and the Respondent also gave evidence through its witness. Several documents were tendered as Exhibits.
At the end of the trial, the learned trial Judge considered that the main issue for determination is:-
“Whether the claimant is entitled to the pension having regard to the Rules governing the scheme”
In answering the question, the learned trial Judge found for the Respondent at Pages 352-353 of the Records as follows:-
“From the above its clear that the claimant having admitted collecting the surrender value of the previous staff provident contribution, and more particularly having not served in the scheme up to 31st December, 1997 has not satisfied the requirement for entitlement under the special concession as stated in the staff hand book.
However it is not in issue that the claimant after the collection of the surrender value of the previous staff provided contribution, did contribute in the new scheme though did not complete the required years, is entitled to what she had contributed.
From the foregoing, it is palpably obvious that the claimant is not entitled to pension, having not completed the required numbers of years; moreover, she had collected her surrender value as well as her gratuity and the 3 months in lieu of notice.
On the issue of general damages in respect of the loss of health, shock and trauma occasioned by the Defendant’s letter of 20/12/1996.
Generally, damages are awarded for loss sustained by the party who claim in order to restore the party to a position he would have been had the injury not been done to his interest.
In the instant case, the Claimant claimed general damages of N5,500,000.00. No evidence was given for such damages.
General damages are such as the law will presume to be direct natural or probable consequences of the act. The Claimant’s claim for general damages in respect of the loss of health, shock and trauma suffered was not proved and thus hereby fails”.
Dissatisfied with the above Judgment, the Appellant filed a Notice of Appeal containing Five Grounds of Appeal into this Court on 20/01/2009.
The relevant Briefs of Argument are:-
i. Appellant’s Brief of Argument dated 13/10/2016 and filed on 23/12/2016-settled by K. O. Irabor, Esq.
ii. Respondent’s Brief of Argument dated 19/12/2016 and filed on 12/01/2017 – settled by Chuma Ajaegbu.
Learned Counsel for the Appellant nominated four (4) Issues for determination as follows:-
1. Whether Appellant is not entitled to Judgment having regard to the documentary evidence before the trial Court, particularly the fact that the alleged surrender value of the old pension scheme which for all intent and purpose had merged into new scheme was suo motu paid into the Appellant’s account at the instance of the Respondent, and without the Appellant’s solicitation about 6 years after the commencement of the new scheme and less than 4 Months before her premature retirement – at the time the Respondent was already contemplating to retire the Appellant.
2. Whether the Court below ought not to have looked into the schedule to the Amended Trust Deed of Afribank Nigeria Plc Staff Pension Scheme in order to determine whether the Appellant is entitle to pension, instead of the staff handbook which is a mere explanation of some Provisions in the Pension Rules.
3. Whether the Court below was right in holding that the Appellant having collected the surrender value of the previous staff provident contribution … has not satisfied the requirement for entitlement under the special concession as stated in the staff handbook’ without considering the circumstances under which the said surrender value was ‘collected‘ as well as overlooking other special provisions that entitled the Appellant to pension.
4. Whether the Appellant is not entitled to pension under the redundancy provision of the Rules governing the pension scheme.
The Respondents similarly formulated Four Issues for determination coined as follows:
1. Whether the Appellant is not entitled to Judgment having regard to the totality of evidence before the trial Court.
2. Whether the trial Court was entitled to and right to call in aid documentary evidence placed before it including the staff handbook in arriving at finding whether Appellant is entitled to Pension.

…………………….C…………………….

3. Whether the trial Court holding that Appellant did not satisfy the requirement for entitlement under special concession contained in the Staff Handbook explaining the Staff Pension Scheme because she had
collected the surrender value of the previous staff Provident Fund contribution is perverse, absurd and wrong.
4. Whether the Appellant qualified for Pension under the Afribank Nig. Plc Staff Pension Scheme and Rules governing it especially the redundancy Provision thereof.
The Appellant’s complaint on Issue One which relates to Ground One of the Appellant’s Notice of Appeal is that the learned trial Judge erred in law in dismissing the Appellant’s Claims in spite of the fact that on balance of probability the evidence before the Court ought to tilt in favour of the Appellant.
Learned Counsel for the Appellant reiterated the facts of the case that the Appellant was in the employment of the Respondent for 28 years beginning from August 16, 1968 and contributed regularly to the Pension Scheme of the Respondent (which contribution was deducted at source). That even after the amendment/reform in the scheme in 1991, the Appellant was qualified to continue in the Respondent’s Pension Scheme and continued to contribute until she retire on December 20,1996.
The Appellant did not attain her normal retirement date before she was involuntarily retired on December 20, 1996. Appellant’s Counsel conceded that the Appellant does not contest the right of the Respondent to retire her but asserts her entitlement under the Pension scheme which she contributed to until her retirement.
Counsel submitted that under the interpretation clause, i.e Rule 1 commencement date of the scheme means the first day of January 1970″. That this provision is neither superficial nor accidental, but provided to take care of the interest of the those like the Appellant, who have acquired interest in the scheme before the 1991 amendment. Significantly, there is no repeal of the previous scheme under any provisions of the new amended scheme.
Learned Counsel for the Appellant urged us to view the unsolicited payment of the surrender value of the previous scheme to the Appellant about six years after the commencement of the new one and a few months before the Appellant’s forced retirement as not only prejudicial to the Appellant, but unjust enrichment to the Respondent. This, he said is more so when viewed against the back drop of time value of money.
He argued that while the commencement of the scheme under Rule 1 (i.e first of January 1970) is applicable to employees like the Appellant who was in the employment of the Respondent before the new scheme, the date of commencement under Rule 2 (i.e first day of January 1991) is applicable to employees who joined the service of the Respondent from first January 1991.
He submitted that the internal disharmony in the Rules of the pension Scheme if any, should not work against the Appellant but the Respondent who made the Rules.
He referred to the case of: ANIMASHAHUN VS. OSUWA & ORS (1972) 1 ALL N. L. R. 372 at 373 and submitted that in interpreting documents, “no gloss should be put on any words used – that Rule 1, which is the interpretation clause states that the commencement date of the scheme means “the first day of January 1970”.
Finally on Issue One, Appellant’s Counsel submitted that there is also the Provision of Rule 6 (d) which in fact was the provision under which Exhibit F was anchored. It states “As for pension benefits, your entitlement will start to be paid to you when you become 60 years old before which time you will be informed”.
He concluded on Issue One, that the Appellant is therefore qualified for Pension under Rule 1 and Rule 6 (d) of the Pension Scheme Rules.
In responding to Appellant’s Issue One, learned Counsel for the Respondent reviewed the gamut of the oral and documentary evidence tendered in the case.
He submitted that the Appellant was wrong when he suggested that commencement date of the scheme means “the first day of January, 1970 therefore providing and covering for the interest of the Appellant and others who have acquired interest in the scheme before the 1991 amendment and qualifies Appellant to receive pension under the new scheme.
He submitted that the crucial element to consider is not the commencement date of the scheme but what amounts to “pensionable Service” under the Staff Pension Scheme. What is at stake, said counsel is pension payable and receivable. That the same interpretation clause Rule 1 of the Rules governing the

…………………….D…………………….

Deed of Amendment of the Trust Deed states that “Pensionable Service” means for the purpose of this scheme all period of continuous service as a member subsequent to first January 1991
He submitted that the period qualifying the employee members to benefit under the new Staff Pension Scheme is the period spent as a member from 1/1/91 and not previous. Therefore the Appellant is wrong in her contention that commencement date interpretation governs. Rather “Pensionable Service” years controls qualification to benefit from the Staff Pension Scheme.
Commencement date of the Scheme being stated to be 1/1/1970 in the interpretation clause Rule 1 of Rules governing the Deed of Amendment of the Trust Deed is because the original Staff Provident Life Assurance Fund commenced on that date and by the recital of the Deed of Amendment of the Trust Deed, that was recited. The Scheme being stated to commence on 1/1/1970 is for purposes of allowing employees not to lose their benefit completely and to elect whether or not to receive the surrender value of their contribution under the old Staff Provident Fund.
According to Counsel, if a member elects, he can collect the surrender value otherwise that accruing sum (not previous year of service) will merge to his favour into the new Pension Scheme. However, the member must qualify by serving up till the new number of years as stipulated in the Rules to benefit under the Staff Scheme. If such member leaves service before meeting the qualifying years then he will receive only the surrender value of his contribution alone although same was merged into the new Staff Pension Scheme.
He submitted for example if an employee who was a member of the old Provident Fund elected not to take the surrender value at the inception of new Staff Pension Scheme, then the sum (not years of service) accruing to him will merge into the new Staff Pension Scheme for his benefit. Nevertheless if this employee do not put in up till 10 years further service from 1/1/1991 then such employee will get paid only the surrender value of his contribution made both under the previous Provident Fund and new Staff Pension Scheme BUT will not be eligible for pension payment from month to month under the new Staff Pension Scheme (see Rule 6 (a) governing the Deed of Amendment of the Trust Deed at Pages 59 and 60 of the Record of Appeal showing nil Pensionable Service years of less than 10 years).
The Appellant’s employment said Counsel was determined on 20/12/1996 and so she did not serve up till the qualifying requisite years calculated from 1/1/1991 as to qualify for pension benefit. This evidence do not support Appellant’s claim that she is entitled to Judgment and trial Court was right in dismissing her claim.
He submitted that in paragraph 3.1.4 at page 4 of the Appellant’s Brief, Appellant tried to create impression that the surrender value of the previous Staff Provident Fund was unsolicitedly paid to her by the Respondent. However this is not true, as it was the Appellant herself who elected to be paid the Surrender Value and same was paid to her. This fact was admitted by the Appellant at paragraph 18 of witness statement on oath at page 37 of the Record of Appeal and under cross examination at page 314 of the Record of Appeal. The Respondent only offered the Appellant the choice to be paid the surrender value or not and the Appellant elected to be paid. (See letter of 28/8/1996 at Page 44 of the Record of Appeal).
Learned Counsel for the Respondent referred to the cases of:-
UDE VS. A.G RIVERS STATE (2002) 2002 4 NWLR (PT. 756) 66, SUFIANU VS. AMINASHAUN (2000) 14 NWLR (PT. 688) 650 and DAGGASH VS. BULAMA (2004) 14 NWLR (PT.892) 144.
and submitted that the Appellant had admitted that she elected to be paid the surrender value of the provident fund and never alleged any coercion or intimidation both in her witness Statement on Oath or her ipse dixit testimony in Court and, that so it becomes an exercise in futility for the Appellant at this Appeal stage to raise it.
Respondent’s counsel debunked the suggestion by the Appellant’s Counsel that the Appellant would be qualified for pension under Rule 6 (d) of the Staff Pension Scheme.
He submitted that the Appellant was not rendered redundant because of any re-Organization at the Respondent Bank. Rather, that the Appellant was relieved of her employment because her service was no longer required.
Finally on Issue one, Respondent’s counsel submitted that the letter of 14/01/1997 by the Respondent (Exhibit F) was an error of Judgment on the part of the officer

…………………….E…………………….

of the Respondent and same has been rectified by another letter of 11/03/1999 (Exhibit H) and cannot be a basis of Appellant’s claim of entitlement to Judgment.
In deciding Appellant’s Issue one, I must quickly point out that neither the separate nor combined reading of Rules 1 and 2 of the Pension Scheme Amended Trust Deed nor the application of Rule 6 (d) could help the Appellant’s case and/or entitlement to pension under the scheme.
The truth is that for one reason or the other, unfortunately so, the Appellant has not fulfilled the vital conditions in the scheme to be able to qualify for pension. One of such is that even if an employee joins the new Pension scheme and makes contribution, his benefit for the purpose of the pension scheme is only dependant on his/her continuous service for ten years after the 1991 Amendment date of the scheme. For example, under Rules 6(a) and (b) whether an employee retires normally at 60 years or retires prior to attainment of such age as in the case of the Appellant the minimum number of years for pensionable service under the new scheme is 10 years. In fact, in the tabulation provided under Rule 6, nine (9) years service post the said 1991 date is not regarded or counted as pensionable service.
Indeed, for this purpose and as Cardozo, J. said in the American case of:- UNITED STATES VS. GREAT NORTHERN Ry. 287 U.S. 144, 154 (1932).
We have not traveled, in our search for the meaning of the lawmakers, beyond the borders of the statute.
This is because as Justinian Digest put it: A Verbis legis non est recedendum Digest 32. 69 “The text of a statute or rule is the primary, essential source of its meaning.”
In deciding an issue governed by the text of a legal instrument, the judex does not depart from the law. This is because the ordinary meaning rule is the most fundamental semantic rule of Interpretation. The terms of writing are presumed to have been used in their primary and general acceptation.
I do agree that there is obvious misconception on the part of the Appellant that commencement date of scheme is synonymous with “pensionable service” years under the scheme. This is not so.
I also agree with the learned Counsel for the Respondent that the commencement date stated to be 01/01/1970 was to allow members having entitlement under the old Staff Provident Fund who do not want to collect the surrender value accruing thereof to be able to transfer same and merge into the new Staff Pension Scheme for purposes of working out their final monthly pension. However, such member must have spent up till 10 Pensionable Service year from 01/01/1991 to be qualified for pension. Otherwise he will be paid only the surrender value of his contribution.
In relation to Rule 6 (d) of the Pension Scheme, it is clear that the provision is only applicable to employees rendered redundant consequent on re-organization by the employer and also does not by any stretch of imagination apply to the Appellant’s case. Issue One is resolved against the Appellant.
On Issue Two, learned Counsel for the Appellant submitted that the Court below did not consider the Rules of Pension Scheme which is the schedule to the Amended Trust Deed Exhibit A. That if the Court had examined Exhibit A, it would have come to the conclusion that the Appellant is entitled to pension as of right, having served the Respondent for a continuous period of 28 years throughout which period, she made contribution to the Respondent’s pension Scheme.
Learned Counsel for the Appellant added that this Honourable Court, being a Court of law and equity should consider the events from when Exhibit B originated to Exhibit D.
Respondent’s letter retiring the Appellant, as well as Exhibit F, the Respondent’s undertaking to commence payment of Appellant’s Pension when she attains 60 years of age, even to Exhibit H which retracted the undertaking on the ground of purported mistake. That this Court will find the whole events were one unbroken chain of premeditated events- craftily concocted and executed to deny the Appellant her legitimate entitlement.
Learned counsel for the Respondent on the other hand made references to the Judgment of the learned trail Judge especially at Page 352 of the Record not only to assure the Appellant???s counsel that the learned trial Judge was indeed aware that the in-house Pension scheme of the Defendant – Respondent is regulated by the provision of the Deed of Amendment of Afribank Plc which commenced on 1st January, 1991. But also to show that the learned trial Judge further

…………………….F…………………….

referred to the staff handbook which provision unfortunately did not also help the Appellant’s case.
He repeated that pensionable years is defined as the number of years subsequently to 01/01/1991 that a member served the employer and contributed into the scheme. And that previous number of years of service as that of the Appellant prior to 01/01/1991 does not count for the purpose of qualifying for pension under the new scheme.
Clearly, I have provided the answer to Appellant’s Issue Two in my treatment of Issue One.
Perhaps, it suffices to add that the pension scheme is an agreement between the parties. That an agreement or contract is a bilateral affair, which needs the ad idem of the parties. And more importantly that a Court of law must always respect the sanctity of the agreements reached by the parties. It must not make a contract for them or re-write the one they have already made for themselves.
See:
SONA BREW PLC VS. PETERS (2005) 1 NWLR (PT. 908) 478, OWONIBOYS TECHNICAL SERVICES LTD VS. U.B.N. LTD (2003) 15 NWLR (PT. 844) 545 and S.E. CO. LTD VS. N.B.C. 1 (2006) 7 NWLR (PT. 978) 201.

Issue Two is resolved against the Appellant.
On Issue Three, learned Counsel for the Appellant repeated the facts of the case and noted that on July 15, 1996, the Respondent wrote the Appellant that she had retired on April 18, 1996.
The Respondent discovered the fallacy of their claim and apologized to the Appellant (Exhibit B). That it was here they made overture to the Appellant that she could receive the surrender value of the previous scheme, which had merged into the new one.
Appellant’s Counsel believes that the Respondent’s contrive this clever plot to subvert the Appellant’s already accrued rights to pension that as soon as her account was credited with the alleged surrender value of the previous scheme, she was retired on December 20, 1996.
Appellant’s Counsel asked rhetorically- should the Court close its eyes to the circumstances under which the alleged surrender value of the previous scheme was paid to the Appellant?
He concluded that Equity looks at the intent and at form. And, that since the Respondent had undertaken to pay the Appellant her pension upon attainment of 60 years, they should be estopped from asserting contrary position.
Learned Counsel for the Respondent submitted that in paragraph 18 of Appellant’s written Statement of Oath, the Appellant unequivocally stated she was asked to confirm if she wanted to be paid the surrender value of her contribution under the staff provident fund and she elected to be paid and was paid.
He referred to the cases of:
A.T.M. PLC VS. B.V.T. LTD. (2007) 1 NWLR (PT.1015) 259 at 263 and ANASON VS. NAL MERCHANT BANK LTD (1994) 3 NWLR (PT. 331) 241.
To demonstrate that facts, expressly admitted need no further proof and that the trial Judge was right to have accepted amongst other things, the Appellant’s admission that she voluntarily exercised the option to receive the surrender value under the old Provident Fund Pension Scheme.
There are only two things to say in deciding Appellant’s Issue Three. The first is to remind the Appellant who has expressed a lot of sentiments in her Brief of Argument, that a trial is not an investigation and investigation is not the function of a Court. The duty of a Court is to receive and test evidence openly demonstrated between the parties and rely on only same to arrive at just conclusions.
See e.g. DURUMINIYA VS. C.O.P. 1961 NNLR PAGE 70.
The second thing to say in the determination of this issue is that the learned trial Judge has provided a complete answer to said Issue Three when he held at Page 352 of Record that:
“The Claimant having admitted collecting the surrender value of the previous staff provident fund contribution and more particularly having not served in the scheme up to 31st December, 1997 has not satisfied the requirement for entitlement under the special concession in the staff hand book.”
Issue Three is resolved against the Appellant.
On Issue Four, learned Counsel for the Appellant submitted that the Appellant is at least qualified to be paid pension under the redundancy clause in Rule 6(d) of the Staff Pension Scheme.
Counsel submitted that it is significant that the Respondent stated that the Appellant’s services were no longer required as a result of which she was retired before her normal retirement time.
This act, said Counsel, obviously rendered the Appellant redundant and by the express provision of the Pension Rules, the

…………………….G…………………….

Respondent ought to commence payment to the Appellant upon her attainment of the age of 60.
He referred to the case of: LLOYD VS. BRASSEY (1969) 1 ALL E.R. 382, that it has been held that “a worker of long standing is recognized as having an accrued right in his job; and rights gained in value with the years so much that if the job is shut down, he is entitled to compensation for loss of the job the worker gets a redundancy payment
Learned counsel for the Respondent on the other hand submitted that the Appellant does not qualify for pension under the redundancy clause because the Appellant was not relieved of her employment because of any re-organization by the Respondent Bank but because her services were no longer required.
He referred to the case of YAKUBU vs M.W.T. ADAMAWA STATE (2006) 10 NWLR (PT. 989) 513 at 565 to say that A Court of Justice can only adjudicate and determine issues raised before it and come to a Just decision based only upon evidence adduced before it.”
He concluded that the evidence in the present case does not support the contention of the Appellant that she is entitled to Judgment.
In the instant case, the retirement of the Appellant was not based on re-organization by the Respondent. The Appellant could not therefore invoke the provision of the redundancy clause in Rule 6 (d) of the Staff Pension Scheme to justify her entitlement to pension.
Consequently, the learned trial Judge was correct not to hold that Appellant was qualified for Pension under the redundancy clause.
Issue Four is also resolved against the Appellant.
Having resolved the four Issues in this Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.
The sum of Thirty Thousand Naira (N30,000:00) costs is awarded to the Respondent.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA, just delivered. I agree that the appeal is lacking in merit and also dismiss it. I abide by the order made as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read before now the lead judgment of my learned brother Mojeed Adekunle Owoade J. C. A. and I agree with his reasoning an conclusion; consequently, I also dismiss the appeal for lacking in merit.
I abide by my brother’s order as to costs.