Augustine F. I. Ibama V. Shell Petroleum Development Company of Nigeria Limited (1998)

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UWAIFO, J.C.A.

This is an appeal from a judgment of P.B. Akere J given on 11 October, 1993 at the High Court, Port Harcourt, Rivers State. It concerns litigation over the termination of employment in a mere master and servant relationship. The learned trial Judge admirably summarised in the opening paragraphs of his judgment the facts and circumstances of the employment of the appellant and what led to his termination of the said employment. It is enough if I simply start with the salient aspects of what he said in that summary before going into other facts.

The appellant was employed by the defendant on 22 November, 1969. He was due to retire on 25th September, 1992 when he would have reached the retirement age of 55 years. That would have meant some 23 years’ service. He worked without any known blemish and his pre-retirement procedures had been observed some months earlier before his termination of employment He was then on posting to a depot of the respondent known as Kidney Island Depot Some property (referred to as ‘casing pipes’) of the respondent had been sold and one of those who seemed directly involved in it tried to implicate the appellant when the police later carne into the matter. He alleged that it was the appellant who authorised him to sell the said pipes. Two persons were eventually prosecuted; one was found guilty, the other acquitted. The police found nothing against the appellant.

But the respondent had in the meantime suspended the appellant on full pay. This was contained in a letter dated 29 August, 1991 (Exhibit J). By letter dated 13 November, 1991, (Exhibit K) the respondent informed the appellant that his services were no longer required. He was told that it was with immediate effect and that three months’ salary in lieu of notice would be paid to him. Other terminal benefits would be stated in a subsequent letter to him.

The other facts are that the respondent acted upon the terms of clause 9 of the contract of service (Exhibit V) which applied to the appellant. The said clause 9 reads:

“You, or we, shall have the right at anytime to terminate your employment under this letter by giving to the other not less than one month’s notice in writing, or by paying one month’s salary in lieu of notice. On the confirmation of your appointment, the period of notice shall be two months, or two months salary in lieu of notice and the completion of five years of service, the period of notice shall be three months or three months salary in lieu of notice.”

The said contract of service was effective from February 1, 1980. It was for Nigerian Senior Staff which the appellant was.

Following the letter or termination, the appellant sued for (a) a declaration that the termination was null and void in the absence of proof of misconduct by the appellant; (b) a declaration that the appellant is entitled to continue in the service of the respondent until normal retirement and to all retirement benefits and pension for life; (c) an injunction to restrain the respondent from annulling the employment until the appellant retired; (d) alternatively, the sum of N2, 135,545.27 being what is due to the appellant for wrongful termination of his employment; and (c) interest of 20% on the said amount until it is paid.

The learned trial Judge in a well-considered judgment dismissed the claim and made no order for costs. In his appeal, the appellant raised a number of issues for determination most if not all deserve little attention. This issue read as follows:

“(i) Whether Exhibit V, the letter of appointment/promotion and nothing more constitutes the appellant’s contract of service with the respondent.

(ii) Whether the appellant’s contract of service with the respondent is one of general hiring or a contract for a definite period.

(iii) Whether the court was not wrong in failing to declare the appellant entitled to continue in his employment until he attains the retirement age of 55 years.

(iv) Whether the appellant’s contract with the respondent is one of personal service.

(v) Whether the appellant is entitled to the damages claimed.

(vi) Whether the appellant is entitled to interest on the damages found due and payable to him.

(vii) Whether the appellant was not entitled to costs having found that his termination was wrongful.

(vii) Whether the judgment of the lower court is not against the weight of evidence.”

There is no doubt that the relationship between the respondent and the appellant was that of ordinary master and servant governed by the contract of service that existed between them. That contract of service was Exhibit V, clause 9 of which (already reproduced above) provided for how either party could bring the contract to an end. In the case of the appellant, having regard to his status and years of service, it is three months’ notice or three months’ salary in lieu of notice.

All the respondent was obliged to do was to give the requisite notice or pay appropriate salary (and other entitlements) to the appellant. The law is that failure to do so will amount to unlawful termination for which the damages will, in any case, still be the salary and entitlements for that period (of course including other entitlements already lawfully accrued and payable). There are several decisions in this regard: see Western Nigeria Development Corporation v. Abimbola (1966) NMLR 381; Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111; Imoloame v. West African Examinations Council (1992) 9 NWLR (Pt. 265) 303; Chukwuma v. Shell Petroleum Dev. Company of Nigeria Ltd (1993) 4 NWLR (Pt. 289) 512.

In Adewunmi’s case (supra), it was held that in a written contract of service, the court should not look outside the terms stipulated or agreed therein in deciding the rights of the parties thereto. This has been restated and confirmed in other decisions too numerous to mention. The appellant has not shown that he can look beyond Exhibit V which is his contract of service. If the appellant has qualified for pension by virtue of the number of years he put in the service of the respondent that can either be found in Exhibit V or any other document referable to it. The fact that his employment was brought to an end a couple of months before he was 55 years of age may not affect that. That is not a matter to be taken into account, in my view, for protecting the rights of the appellant by calling into aid the common law as the appellant seems to have argued by his reference to Halsbary’s Laws of England, 3rd edn vol. 8 para. 212, page 121, foot note (a). The said foot note as reproduced in the appellant’s brief, reads:

“(a) See Morgan v. Ravey (1861) 6 H & N 265 (which decided that wherever a relation exists between two parties which involves the performance of certain duties by one of them, and the payment of reward to him by the other, the law will imply or a jury may infer, a promise by each party to do what is to be done by him.)”

On the basis of this, the appellant argues that the court should reject the respondent’s defence based on Exhibit V and imply that the appellant having qualified for pension under his contract of employment cannot be terminated without good cause shown. It was further argued that the court should infer that there is a promise by the respondent that if the appellant would work for 15 years in its service and attained the age of 55 years he would be entitled to pension for life.

I think there are fundamental flaws in these arguments. The case or Morgan v. Ravey (supra) is about implied terms which are terms that may be imported into a contract. There are certain a contract where terms may be logically implied from the express terms of the contract; See A.E. Farr Ltd v. The Admiralty (1953) 2 All ER 512; or where no such express words are available, implied terms may be imported into a contract insofar as they do not contradict the express terms of the particular contract: see Hancock v. B.W. Brazier (Anerley) (1966) 2 All ER 901.

But the court must be careful not to create a new contract by qualifying it for the purpose of doing what seems to it just and reasonable: see British Movietonews Ltd v. London and District Cinemas Ltd (1952) AC 166. Secondly, the appellant did not plead any implied terms which would entitle him to claim that clause 9 of Exhibit V could not apply when he was nearing retirement age unless for misconduct shown on his party. The clause simply says either party ‘shall have the right at anytime to terminate your employment’ by giving appropriate notice or paying salary in lieu of such notice. If there are other conditions which preserve the pension entitlement of the appellant or which mere termination of his employment does not affect, he should have made them part of his case rather than sue for wrongful termination of his employment. I therefore answer issue (i) in the affirmative.

As regards issue (ii), the answer is that it is a contractor service determinable as provided by clause 9 of Exhibit V. There is no question of a contract of general hiring or for a definite period. I answer issues (iii), (v) and (vii) simply in the negative; and issue (v) in the affirmative. As regards issue (vi), the appellant is not entitled to the interest he claimed. But the general rule is that money judgment attracts appropriate interest even when none is claimed. In regard to issue (vii), the appellant virtually lost the case. If the trial court were to have decided to award costs at its discretion, they would have gone to the respondent.

I think this appeal entirely lacks merit. It is therefore dismissed with N2, 000.00 costs to the respondent.

Other Citations: (1998)LCN/0391(CA)