Adesoye Olanlege V. Afro Continental Nigeria Limited (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C. 

The plaintiff who is the appellant in this court brought an action in the High Court of Lagos State against the respondent in this court claiming the sum of N1,353,878.00 being damages for breach of contract to provide employment for him up to retirement age of sixty years.

The basis of the claim is the plaintiff’s assumption that his contract of employment guaranteed him security of tenure up to retiring age of sixty years. The amount claimed covered salary, allowances and other benefits for the next ten years from the date of his termination until he attained the age of sixty years.

The learned trial Judge Olusola Thomas, J. dismissed the plaintiff’s claim for damages for breach of contract to be provided employment up to the age of sixty years. His appeal to the Court of Appeal, Lagos Division also failed and he has further appealed to this court.

Before I go into the issues for determination in the appeal, it is better I state the facts of the case. According to the plaintiff, the Chairman/Chief Executive of the defendant’s company (Mr. Gaon) agreed with him orally on the conditions of his employment as Chief Accountant of the defendant/company. He later received a letter from the Managing Director of the defendant embodying the oral agreement – (Exhibit “A”).

The plaintiff wrote a qualified letter of acceptance to the Managing Director of the defendant in reply to Exhibit “A”. The said reply was admitted in evidence as Exhibit “B”. It was endorsed to Mr. Gaon (Chairman of the defendant/company). The plaintiff in Exhibit “B” raised three points which were part of the oral agreement but were not contained in Exhibit “A”. He said that Mr. Gaon confirmed the three points and promised to reduce them to writing but the Managing Director at the time never did so before he left the country on 13:11:77.

He further testified that on 13:2:78 Mr. Gaon wrote an internal memo to Mr. Ventura the new Managing Director confirming the three points raised in Exhibit “B” and asked Mr. Ventura to regularise the situation. The memo, which was endorsed to him was admitted in evidence as Exhibit “C”. The plaintiff was later seconded to Niger Cafe and the letter to that effect addressed to the Board of Directors of Niger Cafe was also endorsed to him – Exhibit “D”. By Exhibit “E”, the plaintiff was recalled to the defendant’s company.

On his return to the defendant/company, his post had been offered to someone else. He complained to the Chairman who told him to wait until December 1980, when he hoped a new Shipping Company would be commenced. The plaintiff said he was given a small office, not given any work but his salaries and allowances were paid regularly, This situation according to the plaintiff continued until he left the defendant’s company. There were exchanges of correspondence between the plaintiff and Mr. Gaon between 1:4:81 and 9:9:81 when he received a letter of termination Exhibit “J”.

The plaintiff’s reply to Exhibit “J” is Exhibit “K” and this was followed by Exhibit “K” to “Q”. The plaintiff testified that he was born on 6:11:38 and would be sixty years on 6:11:98. He tendered a Statutory Declaration of Age – Exhibit “L”,

Mr. Gaon testified as D.W.1. He stated that he proposed to the plaintiff the conditions of employment as financial manager and that the conditions were spelt out in a letter written to the plaintiff offering him the appointment Exhibit “A” and that the plaintiff took up the post. The witness could not recall having seen Exhibit “B” as it was addressed to the Managing Director of the defendant’s company and that the latter must have received it. He testified that the plaintiff wrote Exhibit “C” and asked him to sign it and give it to the Managing Director for implementation. This letter was given to him just before his departure from Nigeria. He read it hurriedly, signed it and told the plaintiff to give it to the Managing Director. According to the witness:

“No action was taken by the Managing Director because since then and immediately thereafter, the Managing Director reported to me that Mr. Olanlege is an agitator, that he does not get along with the staff whether Nigerian or expatriate and that it was a question of removing him completely from the company.”

He further testified that even though he read and signed Exhibit “C” in a hurry, he did not see anything in it that varied from the normal terms of engagement of staff and it did not bring innovation to the normal conditions. He dismissed the claim of the plaintiff that their discussion on his conditions of service was for employment up to the age of sixty years and for payment of salary up to that age as ridiculous. He admitted that Exhibit “C” was an internal memo and was not implemented by the Managing Director.

The D.W.1. ended his examination-in-chief by saying:

“I have already said that we dispensed with the plaintiff’s employment because he was agitating in the company even though I sent him to Nigercafe with a higher post to manage the company, the Nigercafe Board of Directors felt they could not keep him because he was not productive.”

In answer to cross-examination, the witness concluded:

“During the tenure of the plaintiff’s employment, there was no written conditions of service for our employees. It was the practice. The plaintiff was appointed Chief Accountant in the first place.”

Even though the issues for determination in this appeal are within a very narrow compass, the statement of the facts is important for a better appreciation of those issues and their resolution.

As I stated earlier in the judgment, the plaintiff lost both in the trial court and the court below and has further appealed to this court being dissatisfied with the decision of the Court of Appeal, Lagos Division.

The issues arising for determination in the appeal which were set out in the plaintiff/appellant’s brief of argument are as follows:

“(i) Whether or not there was a contradiction between Exhibits “B” and “C”.

(ii) Whether or not the relationship between the plaintiff and the defendant was governed by a written agreement, the lacuna in which could be not be filed (sic) by oral evidence except as permissible under section 131 of the Evidence Act.

(iii) Whether or not the plaintiff was bound to cross-examine D.W.1 on his claim for payment till he attains the age of 60 years before the Court could accept his evidence.

(iv) Whether it had been the defendant’s case that there had been no agreement as to what was meant by “retirement age.”

(v) Whether or not the plaintiff proved the issues submitted to the learned trial Judge for determination”.

The following questions were set out in the defendant/respondent’s brief:

“(1) Whether the contract of employment between the appellant and the respondent was oral or in writing and if in writing whether section 131 of the Evidence Act applies to exclude appellant’s oral evidence.

(2) Whether the appellant proved by credible and or admissible evidence, that he was entitled to be employed until he attains the age of 60 years”.

I am of the view that the questions submitted by the respondent summaries the five issues identified by the appellant. However, which ever set of issues are determined herein will take into account all the other issues. The principal documentary exhibits which are of vital importance and the keys in the resolution of the above issues are Exhibits “A”, “B” and “C”. Their relevant portions are reproduced hereunder:

Exhibit “A”

“AFRO CONTINENTAL NIGERIA LTD

xxxxxxxxxxxxxxxxxxxxxxx

Date: September 9th, 1977

Mr. Olanlege Adesoye,

17, Olusesan Adetula Street,

Surulere, Lagos.

Dear Sir,

Following your interview with Mr. Gaon yesterday, we have been asked to offer you the appointment of Chief Accountant in Afro Continental Nigeria Limited. We would prefer to keep the title of the post as agreed. The appointment will be on a probationary basis for six calendar months. If reports on your work are satisfactory, you will be confirmed in the appointment after completion of the probationary period.

The basic salary for this appointment will be at the rate of N18,000.00 (eighteen thousand naira) per annum. ………….

During the probationary period, one month’s notice may be given by either party of this (sic) wish to terminate this agreement without ascribing any reason, and once the appointment has been confirmed, two month’s notice will be required by either party. The company may elect to pay the wages in lieu of notice ………………..

You will be required to obey the lawful orders of Officers of the Company and any failure to do so unreasonably may lead to notice of dismissal by the Company. You will abide by the Company’s regulations for the time being in force. The Company reserves the right to invoke instant dismissal, without notice, in any case of proven gross misconduct. …….

Yours faithfully,

For: Afro Continental Nigeria Limited

Sgd. P.L. Gregor Macgregor

Managing Director

………………

Exhibit “B” reads:

“Adesoye Olanlege Esq.,

17, Olusesan Adetula-Street

Surulere.

26th September, 1977

Attention: P.L. Gregor Macgregor

The Managing Director,

Afro Continental Nigeria Ltd.,

Unity House,

37, Marina Lagos. By Hand

Dear Sir,

Qualified Acceptance of Offer of Appointment as Chief Accountant

Thank you for your letter reference PLGM/te dated 9th September, 1977 in which you offered me position of Chief Accountant in your Company. I accept the offer subject to the following additional terms which you appear to have omitted from my draft agreement with Mr. Gaon.

1. My agreement with Mr. Gaon includes a guaranteed minimum increase in my annual basic salary of ten percent (10%)
2. The agreement also guaranteed long tenure of office up to retirement age and good prospect subject only to my being found guilty of stealing the Company’s money.
3. The agreed period of notice of termination of employment is three months and not two months as contained in your letter; and in the case of the Company this is subject to qualification (2) above. Please refer to the sheet of paper handed to you by Mr. Gaon in respect of these points ……………..

Consequently, I accept your offer of appointment as Chief Accountant subject to the addition of the three fundamental terms mentioned above being read along with your offer.

………………

Yours faithfully,

Sgd. Adesoye Olanlege

cc: Mr. N.D. Gaon –

Chairman. Afro Continental Nigeria Ltd.”

Exhibit “C” reads:

“Afro Continental Nigeria Limited,

Internal Memorandum

From Chairman

To Mr. R. Ventura

Subject: Condition of Service

Date 13th Dec. 1978.

The letter of appointment given to Mr. Olanlege when he joined this Company last year November, did not incorporate fully my agreement with him.

The omissions are:

(a) That he would in addition to his duties as Chief Accountant for both Afro Continental (Nig) Limited and Afrofin Engineering Construction Company (Nig) Limited also supervise the administrative function (sic) of both companies;

(b) That he would earn a minimum of 10% annual increment on his annual basic salary;

(c) That the period of notice is three months;

(d) That he would enjoy a secured tenure of office up to retirement age if he did not steal or commit any fraud.

The above conditions also apply in respect of Nigercafe (W.A.) Ltd.

Please bear this in mind and regularise his position.

Sgd. N.D. Gaon

Chairman

cc: Mr. A. Olanlege”

(the Italics are for emphasis).

About four years later, the employment of the appellant was terminated by the defendant/company. Relying on his secured tenure of office up to retirement age, the appellant sued for breach of contract, claiming that the retiring age agreed upon was 60 years. The claim for N1,353.874 covered salary, allowances and other benefits due to him for the next ten years after termination when he would be 60 years.

In his amended statement of claim, the plaintiff averred in paragraph 3(iii) as follows:

“3(iii) That the plaintiff was guaranteed long tenure of office in the defendant Company up to retirement age of sixty years”.

The above averment was denied by the defendant company in paragraph 3 of its statement of defence thus:

“3 The defendant denies that the plaintiff was guaranteed a long tenure of office up to retirement age of 60 years and avers that the plaintiff’s appointment was not for any fixed duration and was accordingly subject to termination by three months notice from either side.”

The case was fought mainly on this issue of fixed age of sixty years. During the trial the plaintiff adduced oral evidence to this effect. That evidence appeared unchallenged in the sense that the respondent/company did not suggest to the plaintiff what the retiring age was supposed to be or what was the retiring age for the employers of the respondent/company generally. However, the case of the respondent/company was that what was agreed upon was retiring age, but not a particular age. Exhibit” A” was the offer of appointment made to the plaintiff. He made a qualified acceptance of the offer in Exhibit “B” and raised the issue of an oral agreement of security of tenure up to the retiring age” and did not himself spell out what retiring age was fixed by the parties. In Exhibit “C” Mr. Gaon (Chairman of the respondent/company) confirmed the contention of the plaintiff of the agreement on “security of tenure up to retiring age” without stating the retiring age.

The question arises whether or not oral evidence even if unchallenged can be led to show that 60 years was the retiring age agreed upon. On this point the court below held as follows:

“In the instant case, however, the documentary evidence does not support the oral evidence; rather the oral evidence sought to supply the lacuna in the documentary evidence. Mrs. Obe for the appellant has contended that the agreement was essentially oral, as no single document contained the full details hence the appellant was entitled to supply the missing link in oral evidence. With respect, I do not agree. If the respondent had not called D.W.1, with whom the oral agreement was reached one might have been tempted to fall for the submission. D.W.1 said in evidence that the claim of the plaintiff to be paid until he was 60 years was ridiculous, and it was not put to him in cross-examination that 60 years was orally agreed upon.

In view of this evidence disagreeing that 60 years was agreed upon, oral evidence cannot be let in to fill the lacuna in the written agreement. The only situation in which this is permissible in law is under section 131 of the Evidence Act………….. ”

Chief Ajayi, S.A.N. for the appellant submitted that the above conclusion that the relationship between the parties was governed by written agreement was arrived at because of the misconception of the purpose for which Exhibits “B” and “C” were tendered. It was his contention that the exhibits were tendered not as documents which governed the relationship between the parties, but to corroborate the case of the appellant that the basis of their relationship was the oral agreement of 8th September, 1977 between appellant and D.W.1 and not Exhibit “A”.

Mr. Sagay O.M. for the respondent in his written and oral argument, contended that the above quoted conclusion of the court below postulated that the agreement between the parties was a written agreement and that that court did not give the appellant’s failure to cross-examine D.W. 1 as its reason for applying section 131 of the Evidence Act to the appellant’s oral evidence. He submitted that the primary finding of fact upon which the decision of the court below proceeded was that the agreement between the parties is a written agreement and that this informed the courts’ application of section 131 of the Evidence Act to exclude the appellant’s oral evidence and not the failure of the appellant to cross-examine D.W.1 on his assertion that the appellant’s claim for payment until the age of 60 years was ridiculous. I fully agree with this submission.

In this case, the respondent company made an offer embodying its oral agreement with the appellant in Exhibit “A”. While purporting to accept the offer as a whole, the appellant wrote Exhibit “B” that he accepted the offer subject to three additional terms which appear omitted from the draft agreement with Mr. Gaon. The second and that touching on the issue on hand is that the agreement also guaranteed long tenure in office up to retirement age”. Exhibit “C” written by the Chairman of the respondent company agreed that Exhibit “A” did not incorporate fully his agreement with the respondent. In paragraph (d) of Exhibit “C”, the Chairman agreed with the appellant in Exhibit “B” that the appellant was “to enjoy a secured tenure of office up to retirement age” and no more. There was no further objection from the appellant after Exhibit “C”. In my view, at the the stage of Exhibit “C”, the contract between the parties had been concluded. In this case, the extent of the agreement is in dispute and as a general rule, no formality is needed. A contract may be made by word of mouth, or partly by word of mouth and partly in writing.

The court below held that the agreement between the parties is in writing and this agreement is contained in Exhibits “A” “B” and “C” and they constitute the appellant’s contract of employment. I refuse to accept the contention of Chief Ajayi, S.A.N that Exhibits “B” and “C” were tendered not as documents which governed the relationship between the parties, but to corroborate the case of the appellant that the basis of their relationship was the oral agreement of 8th September, 1977.

It is not the case of the appellant that the oral agreement had been mis-stated in Exhibit “C”. He did not raise the question of the retiring age of 60 years again after Exhibit “C”. He too did not state in Exhibit “B” that they agreed on 60 years or any age at all. The only inference is that no particular age was agreed upon by the parties. I am also of the firm view that Exhibits “A”, “B” and “C” constitute the agreement of employment between the parties to the proceedings.

It is firmly established as a rule of law that parole evidence cannot be admitted to add, to vary or contradict a written instrument such as Exhibits “A”. “B” and “C” but together as constituting the contract. Accordingly, parol evidence will not be admitted to prove that some particular term which had been verbally agreed upon had been omitted (by design or otherwise) from a written agreement constituting a valid and operative contract between the parties. See Jocobs v. Batayia and General Plantations Trust (1924) 1 Ch. 287 at 295.

The only situation when oral evidence is permissible in law is under section 131 now section 132(1)(b) of the Evidence Act. Cap 112 Laws of the Federation of Nigeria. 1990 which provides:

“132(1) When any judgment of any court or any other judicial or official proceedings or any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained; nor may the contents of any such document be contradicted altered added to or varied by oral evidence, provided that any of the following matters may be proved

(b) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.”

Paragraphs (c) (d) and (e) of sub-section 132(1) do not also apply. The appellant does not contend that the alleged agreement on 60 years was separate or subsequent to the other terms agreed upon. He did not also show that in the defendant/respondent’s company, the custom or usage was retirement at the age of 60 years. The view I take is that the plaintiff fixed the retiring age unilaterally.

In the result what the appellant got from Exhibits “A” “B” and “C” was an indefinite term until he attained an indefinite retiring age. The learned trial Judge was therefore right when he held:

True, the plaintiff gave oral evidence as to what he alleged was agreed upon between himself and Mr. Gaon, but the further evidence which he himself adduced namely the contents of Exhibits “B” and “C” contradicted his oral evidence. It would therefore have been immaterial that Mr. Gaon did not give his own version in rebuttal. The plaintiff’s oral evidence, though on oath is not

uncontradicted as to leave the court with no choice but to accept it. Following my finding above. I reject the oral evidence in preference to the credible evidence that the plaintiff was guaranteed a long tenure of office till retirement age and this without an agreement as to what that retirement age should be.”

The appellant cannot be heard to argue that the agreement was oral which was corroborated by Exhibits “B” and “C”. There was a contract which was reduced to writing and embodied in Exhibits “A” “B” and “C”. The three exhibits taken together constitute the appellant’s contract of employment. As said earlier, in the circumstances of this case, oral evidence cannot be allowed to vary and/or subtract from the three exhibits under any of the exceptions to section 132 of the Evidence Act. Exhibits “A” “B” and “C” speak for themselves and do not support the appellant’s contention that he was guaranteed employment till he attains the age of sixty years. Both the trial court and the court below were right in holding that the contract was written and admits none of the exceptions to section 132 of the Evidence Act.

Dealing further with this narrow issue of this guaranteed long tenure of office up to retirement age the plaintiff in Exhibit “B” wrote as follows:

” I accept the offer subject to the following additional terms which you appear to have omitted from my draft agreement with Mr. Gaon.

“1. ………………………

2. The agreement also guaranteed long tenure of office up to retirement age and good prospects subject only to my being found guilty of stealing the Company’s money.
3. ……………………..

Consequently, I accept your offer of appointment subject to the addition of the three fundamental terms mentioned above being read along with your offer.”

The plaintiff under cross examination repeated the above three fundamental additions stated in Exhibit “B” and went further:

“After I wrote Exhibit “B”, I had no cause to draw the defendant’s attention to any other mis-statement or misrepresentation on Exhibit “A”.”

Surely, if any specific age was agreed upon that age should not have been left out by the appellant in Exhibit “B” and his answer in cross-examination to the effect that after Exhibit “B” he had no cause to draw defendant’s attention to any other misstatement confirms that fact that no age was agreed upon by the parties. Therefore a specific age of retirement was not one of the agreed terms of the contract otherwise Exhibits “B” and “C” should not have been silent on it.

The plaintiff failed to prove the principal issue submitted to the learned trial Judge for determination namely whether the agreement guaranteed him long tenure of office up to the retirement age of 60 years. His oral evidence on it was rejected by the learned trial Judge as not being credible having regard to the contents of Exhibits “B” and “C”. The court below affirmed this conclusion. There was therefore no evidence to support the plaintiff’s claim to an employment which is guaranteed to last till 1998 when he will attain the age of sixty years. The burden of proof was on the plaintiff and this he failed to discharge and his claim based on the retirement age of 60 years was rightly dismissed.

The appellant has appealed against the concurrent judgment of the High Court and the Court of Appeal. This court will not lightly disturb or upset such concurrent findings unless there is compelling reason and those grounds are based on long established principles. See the cases of Kofi v. Kofi 1 WACA 284. Enang & Ors v. Adu & ors (1981) 11-12 SC 25 at 42. Okagbue v. Romaine (1982) 5 SC. 133 at 170-171, Ejike v. Nwankwoala & ors (1984) 12 SC. 301 at 325 and Evans v. Bartlam (1937) AC. 473.

In the result, this appeal cannot succeed and it accordingly fails. The appeal is dismissed. The judgment of the Court of Appeal dated 7th December 1988 is hereby affirmed. The respondent company is entitled to costs against the appellant which I assess at N1,000.00

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SC.30/1990