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Nigerian Telecommunications Ltd v. Ugbe

NIGERIAN TELECOMMUNICATIONS LIMITED

V

SIMON UGBE

COURT OF APPEAL

( ABUJA DIVISION )

MUHAMMAD S. M.-COOMASSIE, JCA ( Presided & Read the Lead Judgment )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

CA/A/49/99

MONDAY, 15TH NOVEMBER, 2001

ACTION - Originating summons - Whether suitable for an action for termination of employment not having statutory flavour

APEPAL - Order of lower court not challenged on appeal - Whether can be set aside by appellate court

APPEAL - Issues for determination - Where in excess of the grounds of appeal - Impropriety of  - Effect thereof

APPEAL - Issues for determination and argument whereon - Need to be based on the grounds of appeal - Failure of - Effect thereof

COURT - Substantial relief not specifically sought - Whether court can grant

DAMAGES - Contract of employment - Where wrongfully terminated Measure of damages recoverable

MASTER AND SERVANT - Action for termination of employment not having statutory flavour - Whether may be commenced by originating summons

MASTER AND SERVANT - Contract of employment - Where wrongfully terminated - Measure of damages recoverable

MASTER AND SERVANT - Termination of employment -  Wrongful termination - Onus of proof - On whom lies - How discharged

MASTER AND SERVANT - Unlawful termination of employment - Onus on employee to prove which category of employment contract he belongs

PRACTICE AND PROCEDURE - Substantial relief not specifically bought

-  Whether court can grant

Issue:

Whether the order of re-instatement of the respondent to his employment with the appellant made by the trial court was correct.

Facts:

The respondent as plaintiff at the lowre court commenced this action against the appellant ad defendant by way originating summons, challenging has dismissed by the appellant vide a letter dated 27/2/97 dismissing him from its employment. In effect, the summons sought to nullify the said letter of dismissal dated 27/2/97.

Before the commencement of hearing before the court, the appellant filed a preliminary objection dated 20/5/97 challenging the commencement of the suit by originating summons. On the 27/4/98 the respondents counsel, moved the court to strick out the preliminary objection dated 20/5/97 filed by the appellant. The court then struck out the objection and adjourned the substantive suit to 11/6/98 for hearing.

The suit was however not heard on 11/6/98 until 21/10/98 in the absence of the appellant and its counsel. The court when entered judgment in favour of the respondent by its ruling delivered on 4/11/94 wherein it ordered for the re-instatement of the respondent to his post.

The appellant upon receipt of certificate of judgment through a new counsel unsuccessfully applied to set aside the default judgment and to extend the time within which the appellant may file and serve its counter-affidavit on the matter. The trial court, based on the counter-affidavit filed by the respondent dismissed the appellants motion, and re-affirmed its earlier judgment of 4/11/98. This appeal is against that judgment delivered on 4/11/ 98.