IKPEKPE v. WARRI REFINERY & PETROCHEMICAL COMPANY LIMITED & ANOR

…………………….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