Alhaji Ade Aliu V. Unipetrol (Nigeria) Limited (1993)
LawGlobal-Hub Lead Judgment Report
UTHMAN MOHAMMED, J.C.A.
Alhaji Ade Aliu, who is the appellant in this appeal, was employed as an Assistant District Manager by Unipetrol (Nigeria) Limited on the 26th January, 1979. The appellant rose to the rank of Divisional Manager in charge of Kano Division. The problem of the appellant with his employers arose when he issued to one of his subordinates, Mr. Uddoh, a warning letter for dereliction of duties.
In response to the warning letter Mr. Uddoh made very strong allegations against the appellant that he, the appellant, had sold 3 pumps to one Alhaji Alin Baffa for the sum of N8,000.00. The respondent ordered for investigation of the allegation and after the appellant had appeared before a Disciplinary Committee the respondent terminated his employment.
Aggrieved over the action of the respondent the appellant commenced an action by a writ of summons in a Kano High Court in which he averred that the respondent, without any just cause and without assigning any reason, wrongfully purported to terminate his appointment. He pleaded further that he was 42 years old at the time of the purported termination of his employment and that he had 13 more years of active service under the terms of his employment before he reached the compulsory retiring age of 55 years. By reason of the alleged wrongful acts the appellant claimed that he suffered loss and damage. For the above reasons the appellant prayed the court for the following declarations:
“i) A declaration that the letter dated 30th July 1986 Terminating his appointment, and signed by G.T. Grant as Managing Director, is null and void and of no effect, being contrary to plaintiffs conditions of service and ultra vires the Managing Director not having been authorised by the Defendants Board of Directors or the appropriate minister.
ii) A declaration that plaintiff is still a Divisional Manager of Defendant Company.
iii) A mandatory injunction compelling. Defendant to restore plaintiff to his post aforesaid together with all rights and privileges attached thereto.
iv) Alternatively i.e. as alternative to the claim for declarations (ii and iii) above plaintiff claims against the Defendant Special Damages of N369,018.00 for wrongful termination of appointment, and N130,982.00 as General Damages.
PARTICULARS OF SPECIAL DAMAGES
N :
A) Salaries for 13
years at N17,558.00 228, 228: 00
B) Housing Allowance for 13
years at N3,600.00 per annum 46,800: 00
C) Leave Allowance for 13 years
at N2,107.00 per annum 27,391: 00
D) Annual Bonus for 13 years
at N1,463.00 per annum 19,019:00
E) Family Medical Allowance for 13 years
at N1,500.00 per annum 19,500:00
F) Transport Allowance for 13 years
at N1,440.00 per annum 18,720:00
G) Electricity Allowance for 13 years
at N720.00 per annum 9,360:00
369,018:00
And General Damages of 130.980:00
Total Damages: N500,000:00
v) A further declaration that in addition to the foregoing reliefs Plaintiffs pension rights in terms of his conditions of service be calculated on the basis of what it was likely to be at the time of his retirement from the Defendant Company at 55 years or such lump sum as the court considers fair and reasonable damages for loss of his pension rights. In accordance with Article 17A of the Defendant Company Conditions of Service aforesaid.”
Pleadings were called and delivered. At the end of the trial, in which evidence was adduced by both parties, the learned trial judge, in a well considered judgment, found that the appointment of the appellant had been validly terminated. He also found that the appellant had received a fair hearing from the Disciplinary Committee enpanelled by the respondent. The learned judge, Sanusi Chiroma J. found that the Disciplinary Committee had found the appellant in breach of administrative duties. He also concluded from the evidence that the respondent had complied with the provisions of Exhibit C which contained the conditions of service of the appellant’s employment and under Article 12 of which the respondent could terminate the appointment of the appellant without giving any reason at all. Finally, the learned trial judge dismissed the appellant’s claim.
Dissatisfied with the above decision, the appellant filed this appeal and supported it with seven grounds of appeal. The learned counsel for the appellant formulated six issues for the determination of this appeal, against the seven grounds of appeal, in the following manner:
“(1) Whether in terminating the appellant’s appointment the respondent did so for reason given or merely acted pursuant to Article 12 of Exhibit “C”.
(II) If the respondent terminated the appellant’s appointment for reason stated, then, whether the respondent established any act of misconduct against the appellant cogent and sufficient to ground a termination.
(III) Whether in terminating the appellant’s employment the respondent acted in conformity with the principles of Natural Justice.
(IV) Whether the lower court correctly appraised the facts and evidence before it.
(V) Whether the whole proceedings before the lower court is not a nullity in that more than one judge sat during various parts of the proceedings.
(VI) Whether the respondent is not estopped from terminating the appointment of the appellant without prior approval of the Board or appropriate Minister.”
The learned counsel for the respondent, in his formulation of issues for the determination of this appeal, questioned whether the respondent had validly terminated the appointment of the appellant in accordance with the contract of service (Exhibit C) which has been admitted binding between the parties. If the answer to the above question is in the negative, the learned counsel then asked, “Do the facts and circumstances of the case warrant the reinstatement of the appellant or are his remedies limited to damages for wrongful termination of his appointment?” In the last issue, the respondent’s counsel queried whether the claim of the appellant for damages lied in contract or tort and whether it was proper for the appellant to claim damages for service up to the age of 55 in view of the stipulation of the contract of service (Exhibit C) that the respondent could terminate the appellant’s employment by giving three months notice.
In his argument in support of the first issue, the learned counsel for the appellant, Mr. Pwul, submitted that it was necessary to appreciate from the beginning whether the appellant’s appointment was terminated for any reason at all or for none. In the relationship of master and servant or employer and employee either party may terminate the relationship without giving any reason for doing so, provided that such party complies with the terms of the contract of employment. The learned counsel concedes that in the case in hand, by virtue of exhibit C, the respondent was entitled to terminate the appellant’s appointment without giving any reason.
Although the respondent had such powers the learned counsel argued that having regards to the circumstances surrounding the termination of the appellant’s employment it cannot be said that his appointment was terminated by the respondent through resort to its power under article 12 of exhibit c. The reason for the termination of the appellant’s employment was said to be the unauthorised sale of three pumps to Alhaji Alin Baffa. The learned counsel argued that having elected to give reason for the termination, the onus is on the respondent to show that the reason is sufficient and cogent to warrant the termination. He cited the case of Olatunbosun v. N.I.S.E.R. Council (1988) N.S.C.C. (Vol.19 Pt.1) 1025.
Mr. Clarke, the learned counsel for the respondent, submitted in his brief, that the relationship between the parties is completely devoid of any “statutory flavour” or “special status” as was the case in the cases of Shitta-Bey v. The Federal Public Service Commission (1981) 1 SC 41; Olaniyan v. University of Lagos (1985) 12 NWLR 599 and Olatunbosun v. NISER (supra). The learned counsel argued further that the relationship was that of master and servant and the condition of service binding between the parties was restricted to Exhibit C – the written agreement pleaded by the appellant and admitted by the respondent.
Mr. Clarke pointed out that although article 17 of Exhibit C contemplated a pensionable employment terminable at the age of 55, article 12 of the same Exhibit spelt out instances when the relationship could be determined before the employee attained the age of 55. The learned counsel is correct here because under Article 12(a) of Exhibit C the parties agreed as follows:
“…..a confirmed employee shall be free at any time, without stating any reason to resign his/her appointment with the company upon giving due notice to that effect. The company likewise shall have a reciprocal right to terminate the employee’s appointment upon given due notice to that effect. Due notice or payment of basic salary in lieu thereof …..”
Under the provisions of Article 12(b) of Exhibit C the respondent could also summarily dismiss the appellant for misconduct.
It is clear from the submissions of learned counsel for the appellant that he relies heavily on the ratio decided in Olatunbosun v. N.I.S.E.R. supra where the Supreme Court held that an employer is not bound to give reasons for terminating the appointment of his employee, but when he gives a reason the onus lies on him to establish that cause or reason at the trial to the satisfaction of the Court. The appellant, in my view, has highlighted the reason upon which the respondent terminated his appointment. The entire pleadings and evidence adduced by the appellant were based on the allegation made against him and one Oloko for selling three pumps of the respondent to one Alhaji Alin Baffa without getting clearance from the management. The Disciplinary Committee appointed by the respondent to investigate the allegation found the appellant guilty of official misconduct. The learned trial judge accepted the reason given for the termination of the appellant and in addition found that under Article 12 of Exhibit C the respondent could terminate the appellant’s appointment without giving any reason at all. The Supreme Court, in Olatunbosun v. NISER (supra) held also that a party to a contract of service cannot be said to have breached that contract if it exercises its rights in accordance with the contractual terms as evidenced in the contractual documents.
The question whether the appellant was involved in a misconduct sufficient enough to warrant the termination of his employment is not strictly the only issue relevant for the consideration in bringing his contract of employment at an end. It was also held in Olatunbosun’s case it is not the law that motive vitiates the validity of the exercise of a right to terminate validly the employment of an employee.
Mr. Clarke submitted quite correctly that once it is proved that the respondent acted in accordance with the provision of Article 12 of Exhibit C, the premature termination of the appellant’s employment cannot be faulted. The learned counsel relied on the case of Babatunde Ajayi v. Texaco & 2 Ors. (1987) 3 NWLR (Part 62) 577. In that case the Supreme Court held that where in a contract of employment provisions are made for the termination of the contract and the provisions are followed or complied with to terminate the contract, the question of anticipatory breach does not arise. The exercise of a right of termination of a contract of employment in accordance with the contract does not amount to a breach of the contract.
The learned trial judge referred to Exhibit Q, which is the report of the Disciplinary Committee, where the appellant admitted having failed to consult the head office before allocating the three pumps to Alhaji Alin Baffa. The learned trial judge thereafter found thus:
“Having found that the plaintiff’s appointment had been terminated on the ground of refusal to seek permission or ratifications before or after releasing the 3 pumps and that there is evidence of prior instruction I shall proceed to find out whether by exhibit C the Defendants are justified in their action against the plaintiff.”
The learned trial judge then considered the provision of article 12 and, quite correctly, concluded that the appointment of the appellant had been validly terminated.
I have also looked into the finding of the Disciplinary Committee, and far from being exonerated, as the learned counsel for the appellant had submitted, in the appellant’s brief, as a matter of fact, the Committee found the appellant guilty of official misconduct. The Disciplinary Committee concluded its finding with the following words:
“Accordingly the Committee found Mr. Aliu and Mr. Oloko guilty of official misconduct by violating laid down procedure in their business relationship with a third party and appropriate disciplinary measure is being recommended in accordance with the Conditions of Service.”
It is part of the pleading and the evidence adduced by the appellant that the report of the Disciplinary Committee was written on 26th June 1986 and on 4th July, 1986 Exhibit H, a letter of suspension of the appellant from duty, was issued to him. On 30th July 1986 the following letter was addressed to the appellant:
“MD/GTG/Pers
30th July, 1986
Alhaji Ade Aliu
No. 10 Abdullahi Bayero Road
KANO
Dear Alhaji Aliu
TERMINATION OF APPOINTMENT
Further to our letter of 4th July, 1986, ref. VOO/SAD/PERS, I write to advise that effective 1st August, 1986, your services will no longer be required by this Company. You will, however, be entitled to your full terminal benefits including three months salary in lieu of notice, consistent with the Conditions of Service.
By copy of this letter, the Accounts & Finance Manager, the Staff Administration Manager and the Marketing Manager are advised to implement same. You are allowed a period of three months from 1st August, 1986 within which to move out of the Company house you are currently occupying.
I thank you for your past services to the Company and wish you best of luck in your future endeavours.
Very truly yours
UNIPETROL NIGERIA LIMITED
(SGD)
G. T. Grant
MANAGING DIRECTOR.”
I agree entirely with the learned trial judge that the appellant had a fair hearing before the Disciplinary Committee and that the respondent had complied with the provisions of Article 12 of Exhibit C before the contract of the appellant’s appointment was terminated.
This appeal is devoid of any merit and it is dismissed. The judgment of Sanusi Chiroma J of Kano High Court delivered on 18th July, 1989 is hereby affirmed. The appellant shall pay N500 costs to the respondent.
Other Citations: (1993)LCN/0165(CA)
