Bashiru Atanda V. H. Saffeiddine Transport Ltd. (2007)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The Appellant was a Tanker Driver with the Respondent Company and by a letter dated 5th of January 1998, he was informed that his “services are no more required with effect from 05/1/98/.” When all efforts to persuade the Respondent to rescind its decision failed, he engaged the services of counsel, Prince Bioye A.
Oloyede Asanike, who wrote a number of letters to the Respondent, and when that also failed to achieve any results, he instituted an action at the Ibadan High Court of Oyo State, wherein he claimed as follows in the Writ of Summons-
(1) A Declaration that the termination of the Plaintiffs appointment by a letter dated 1st January 1998 is Illegal, unconstitutional and not in accordance with the terms and conditions of his employment with the Company. (Italics mine)
(2.) N10 Million Naira as general damages for the unlawful termination of the Plaintiff’s employment.
He claimed the same reliefs in paragraph 16 of the Statement of Claim dated 25th November 1998, and the Respondent in turn filed its Statement of Defence.
However, the Appellant amended his Statement of Claim on the 29th of January 2002.(pursuant to an Order of Court dated same day) by adding thereto a new paragraph 16 and additional paragraphs 17 -19, wherein he stated as follows-
(16) The Plaintiff states that as at the time his appointment was unceremoniously determined he was only 45 years old and had intended to resign/retire from the service of the Defendant on reaching the age of 65.
(17) The Plaintiff state that before his services was dispensed with he was earning about N10,200.00 per month as salary and allowances.
(18) The Plaintiff states that in order to know the exact amount he would have earned if his appointment was not determined in branch (sic) of the Terms and Conditions of his employment with the Defendant he contacted a Firm of Chartered Accountant and Management Consultant. The Paper prepared by the Firm of Chartered Accountants and Management Consultant is hereby pleaded and will be relied upon at the hearing of this case. [Exhibit F]
(19) WHEREOF the Plaintiff claim from the Defendant as follows-
(i) A Declaration that the determination of the Plaintiff’s appointment by a letter dated 5th January 1998 was a breach of the contract of employment between the Plaintiff and Defendant as contained in the Terms and Conditions of Employment made and entered into on 1st November 1993 but effective from 30th day of October 1996. (Italics mine)
(ii) Damages –
(I) Amount the Plaintiff is expected to have earned if his employment had not been determined illegally as salary,
Salary – 10,761,456.00
(II) Gratuity – 4,015,548.00
14,777.004.00
At the hearing, the Appellant testified himself and called one other witness, while one witness testified for the Respondent, and counsel then addressed the Court.
In his Judgment delivered on the 6th of June 2003, the learned trial Judge, A. A. Sanda, J., made no reference to the Appellant’s Amended Statement of Claim and considered his claims as per the Writ of Summons, He held as follows-
“Exhibit F (document prepared by Chartered Accountant) was made sometimes in 2001 whereas this case started in 1999. This Exhibit coming into being will not carry any weight as to its contents, so let it be with Exhibit F in this instance. Exhibit B is the Terms and Conditions of Employment of the Plaintiff with the Defendant, Clause 2.8 of the Exhibit provides that ……….. The above termination clauses in Exhibit B occur in cases where offences are committed and as the Defendant has not advanced any offence in writing In Exhibit C (letter of termination), this Court holds that in accordance with the law, an employer of labour cannot be saddled with any employee, he can terminate employee with reason or without reason however where an employee stated a reason such must be plausible to justify termination of the appointment of the employee ………
Having regard to the instance of this case, the Court holds that Exhibit C is legal and constitutional and also proper In law”. (Italics mine)
Dissatisfied, the Appellant has appealed to this Court with a Notice of Appeal containing five Grounds of Appeal and in his Brief prepared by Prince Bioye A, Oloyede Asanike, two Issues for Determination were formulated as follows –
- Whether the learned trial Judge was right when he held that the determination of the Plaintiff/Appellant’s employment by the Respondent through EXHIBIT – ‘C’ was legal, constitutional and proper.
- Whether the learned trial Judge was correct in his Interpretation of section 92 (1) of the Evidence Act vis-a-vis EXHIBIT ‘F’.
The Respondent however submitted in its own Brief of Argument prepared by O. E. Bamgbala, Esq., that the Issues for Determination in this appeal are as follows –
(i) Whether the issuance of Exhibit “C” i.e. letter terminating the appointment of the Appellant, is valid in law, Or in other words, is the letter of 5th January 1998 which terminated the employment of the Appellant valid having re9ards to the circumstances of this case?
(ii) In the event that the above is answered in the affirmative, whether the Appellant is entitled to the sum claimed as damages (14,000,000.00) as stated in paragraph 19 of the Appellant’s Amended Statement of Claim dated the 29th day of January 2002.
In my view, the issues formulated by the parties can be subsumed into one, and that quite simply is whether the termination of the Appellant’s employment is valid in law.
The Appellant argues that it is not and to this end submitted that the lower Court only considered the general principle of law on employment without looking at the exceptions to the general rule; that it considered only the letter of termination (Exhibit C) without looking at the Terms and Conditions of his employment (Exhibit B); citing Olanrewaju v. Afribank (2001) 7 SCNJ 493, Katto v. CBN (1999) 5 SCNJ 1 & W.N.D.C. v. Abimbola (1966) 4 NSCC 172, that the lower Court was wrong when after admitting Exhibit B in evidence and alluding to clause 28 therein, it went on to introduce extraneous matter not within the contemplation of the parties and failed to apply provisions of Exhibit B in the consideration of the case; that it is settled law that in interpreting the provisions of a written contract, no addition thereto or subtraction there-from is permissible, citing Afrotec Technical services (Nig.) Ltd. v. Mia & Sons Ltd. & ors (2000) AT NSCQR 379; that it is trite law that where parties have reduced the terms and conditions of service into an agreement the conditions must be observed, citing Chukwumah v. Shell (1993) 5 SCNJ 1; that where the termination of the appointment of the Plaintiff is not based on any misconduct or negligence (as in this case) the Defendant must terminate the Plaintiff’s appointment in accordance with the terms laid down in the conditions of service, citing Fakuode v. OAU (1993) 6 SCNJ 30, WNDC v. Abimbola (supra); that there is no evidence that the Respondent has complied with the provisions of Exhibit B and Exhibit C not having complied with it is therefore wrongly issued null, void and of no effect; and that the lower Court missed the entire case from the onset when it considered the Writ of Summons rather than the Amended Statement of Claim, since it is well settled that any amendment of pleadings before Judgment dates back to the date when the pleadings were originally filed, citing Arch Bishop P. Y. Jatau v. Alhaji Mansur Ahmed (2003) 1 SCNJ 382 AT 390-391.
On its part, the Respondent referred this Court to the evidence and cross-examination of the Appellant, wherein the Appellant admitted that he acted on the instructions of a third party (AGIP) to divert a consignment of Black Oil to Sango-Ota rather than to Lagos as expressly instructed by his employer, which is a misconduct that would ordinarily warrant or attract a reaction of outright dismissal, and the Respondent was therefore magnanimous when it elected to terminate his appointment and pay his outstanding entitlements, rather than have him summarily dismissed from employment without the benefit of claiming any entitlement, referring to the pronouncement of Lord Evershed in the English case of Laws v. London Chronicle Ltd (1959) 2 All ER 285 to the effect that willful disobedience of an order by a servant will justify summary dismissal from the master, and the observation of the Supreme Court in Lanrewaju v. Afribank (supra) that “the master is under no obligation to give reasons for terminating the appointment of his servant”. It was further argued that even if the lower Court failed to take cognizance of the terms of Exhibit B before arriving at his conclusion that Exhibit C was validly issued by the Respondent, a review or reference to the terms of Exhibit B would not have availed the Appellant’s claims, as it is settled that the Court cannot foist a willing employee on an unwilling employer, citing Union Bank Plc v. Ogboh (1995) 2 NWLR (Pt. 380) 649, Chukwumah v. Shell (supra); and even if the Respondent acted in breach of Exhibit B, the Appellant will only be entitled to damages in the sum he would have earned over the requisite period of notice to be given prior to the termination of his employment, citing Nitel plc v. Ocholi (2001) 10 NWLR (pt.720) 188 & Chukwumah v. Shell (supra). This Court was therefore urged to uphold the decision of the lower Court that Exhibit C was validly issued by the Respondent.
The Appellant filed a Reply Brief wherein it was pointed out that the Respondent agreed in its Brief that Exhibit B is the document that regulates the employment of the parties and admitted that Clause 28 & 29 of Exhibit B is not applicable to the situation at hand.
It was argued that if the said Clauses do not provide for the type of misconduct canvassed by the Respondent then the parties never contemplated that diversion of products on the instruction of a client can be misconduct, and if it is not misconduct, then the procedure under Clause 27 on discipline cannot be followed, and the submissions thereon is academic. This Court was urged to hold that any termination that is not in conformity with Exhibit B cannot be said to be legal and constitutional.
I must first of all address the issue of the lower Court hinging its Judgment on the Appellant’s Writ of Summons rather than the Amended Statement of Claim, wherein he pleaded Exhibit F prepared by OLUROTIMI OGUNNOTE& CO (Chartered Accountants), to show the exact amount he would have earned if his appointment was not terminated, and added an additional claim for the said amount as damages. To start with, it is well settled that an amendment of a pleading takes effect not from the date it is made but from the date of the original document. In other words, the Court cannot rely on the original pleading to decide the live issues in the case but on the amendment – see Anka v. Lokoja (2001) 4 NWLR (pt. 702) 178 N.G.C. Ltd. v. Oforishe (2002) 17 NWLR (pt. 797) 657, & Oguma v. I.B.W.A. (1988) 1 NWLR (pt. 73) 658 where the Supreme Court held that further claims arising from the same cause of action subsequent to the issue of the writ may be properly added. Agbaje, JSC explained –
“It is clear that the Plaintiff’s claim is based on the loan agreement it alleges existed between it and the Defendant. The amendment does not seek to introduce a new loan agreement. In other words, the amendment does not constitute the addition of a new cause of action nor does it raise a different case.
It amounts to no more than a different or additional approach to the same facts based on the same cause of action…. So in my Judgment the amendment of the debt claimed in 1978 to include the amount due in 1981 on the loan agreement between the parties after the writ was filed …..was in order since it was only additional to the same fads based on the same cause of action in the original writ of summons, and has the effect of preventing multiplicity of actions”.
In this case, the Appellant’s claims in the Writ of Summons included “N10 Million Naira as general damages for the unlawful termination of the Plaintiffs employment”.
However, he stated in paragraph 18 of his Amended Statement of Claim, which is the relevant pleading in this case, that in order to know the exact amount he would have earned if his appointment had not been terminated, he contacted the Firm of Accountants that prepared Exhibit F and he amended his claim for damages accordingly.
Obviously, the amendment did not add a new cause of action nor did it raise a different case from that espoused in the original Writ of Summons, and the lower Court therefore erred when it held that Exhibit F will not carry any weight because it was made in 2001 after this case started in 1999. Be that as it may, it is not every error committed by a trial Court that is fatal and will lead to a reversal of its Judgment by an appellate Court.
An error that can warrant such a reversal must have substantially affected the decision – see Cookey v. Fombo (2005) 15 NWLR (pt. 947) 182 at 201 SC.
Obviously, the lower Court’s error with regard to Exhibit F is not such a mistake as would vitiate its Judgment, it is clear that Exhibit F, which the Appellant tendered to show how much he would have earned if his employment had not been terminated, is of no consequence in the scheme of things. PW2, Folani Ayodele Lasisi, a Professional Accountant with Olurotimi Ogunnote & Co, testified that he prepared Exhibit F for the Appellant who approached him to prepare his entitlements with his former employer. He stated under cross-examination-
“In paragraph 1 (of Exhibit F) I also calculated the basic gratuity based on the same terms and conditions (Exhibit B) and also the number of years the Plaintiff would have served in the Company, which is 65 years”.
The Appellant himself however admitted under cross-examination as PW1 that there is nothing in his contract of employment with the Respondent that said he would be employed until he was 65 years old. The be all and end all of it that clinches the matter against the Appellant is that in a contract of employment that is not governed by statute, as in this case, where an employer breaches the contract in terminating the employee’s appointment, the employee’s remedy lies in damages calculated on the basis of what the employee could have earned for the period of notice agreed upon for ending the employment – see Daodu v. U.B.A. Plc (2004) 9 NWLR (pt. 878) 276, Nitel Plc v. Akwa (2006) 2 NWLR (pt- 964) 391 & Osumah v. E.B.S. (2004) 17 NWLR (Pt. 902) 332. In other words, the measure of damages recoverable in cases of wrongful termination of a contract of employment is what the employee would have earned over the period of notice required to lawfully terminate the employment, certainly not what he would have earned if he had spent his life working for the employer, which is not likely and highly speculative. In effect, whether the Appellant’s employment was wrongly terminated or not, the error over Exhibit F is neither here nor there as it would have been of no use to the lower Court either way.
The issue now is whether the Appellant’s employment was wrongly terminated.
The Appellant was a driver in the service of the Respondent and even though the letter terminating his appointment merely stated that his services were no longer required, he claimed in paragraph 19 of the Amended Statement of Claim that the determination of his appointment by the said letter was a breach of the contract of his employment with the Respondent as contained in Exhibit B.
Exhibit B is the Respondent’s Terms and Conditions of Service, and this Court was referred to Clause 27, Clause 28, and Cause 1 (E), which reads as follows- (27) Discipline will be maintained at all levels within the organization. The following procedure shall be applied when disciplining any staff:
(a) Verbal warning for minor offences,
(b) After the third verbal warning, then a written warning.
(c) Query for a serious offence may be followed by termination of employment if a satisfactory answer is not given by the employee concerned.
(28) Employees may be terminated on offences such as:-
(a) Sleeping on duty, having been given a final warning in writing.
(b) Disobedience to senior staff as 28 (a) above.
(e) Fighting on Duty as 27 (c) at above.
(d) Drunkenness during working hours and governed by 27 (c) at above.
(e) Causing major accidents through gross negligence.
Termination shall attract the employee’s gratuity entitlements.”
And Clause 1 (E) of Exhibit B states as follows on termination of appointment-
“Any confirmed employee whose appointment is terminated for misconduct will be paid two weeks salary in lieu of notice”.
It is the Appellant’s contention that the purports of these Clauses is that except in cases of misconduct, a staff after confirmation can only resign his appointment with the Respondent, and that there is no evidence to show that the Respondent complied with its provisions in terminating his contract, thus Exhibit C, the letter of termination, not having complied with Exhibit B is therefore wrongly issued, null, void and of no effect. It would however appear that the Appellant has mixed up the law relating to this issue. It has been settled by a long line of judicial authorities that in a contract of service between an employer and an employee, where the service terms do not contain a statutory flavour, the contract between the parties is one of a master and servant, and in a master and servant employment, as in this case, the master is under no obligation to give reasons for terminating the appointment of his servant. The master can terminate the contract with his servant at any time and for any reason or for no reason- see Daodu v. U.B.A. Plc (supra), Nitel Plc v. Akwa (supra), & Olarewaju v. Afribank (2001) 13 NWLR (Pt. 731) 691 where the Supreme Court adopted the observation of Lord Reid in Ridge v. Baldwin (1964) A.C. 40 as follows-
“So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: It depends on whether the facts emerging at the trial prove breach of contract”.
The Supreme Court per Katsina-Alu, JSC, explained the meaning as follows at 705-
“What this means is this. In this class of cases an officer’s appointment can lawfully be terminated without first telling him what is alleged against him…………”
In this case, the Appellant claimed that he did not do anything to warrant the termination of his employment, particularly nothing in the class of misconduct spelt out in Clause 28 of Exhibit B. He testified as follows in his evidence in chief as PW1 –
“On the 25th of December 1997 my employer sent me to WA LGPP at Warri, I loaded LPFO called Black Oil to be deposited to Lagos, AGIP then directed me to take it to Sango Otta. On January 1st the Black Oil was offloaded by the consignee at Sango Otta, I then came to the Defendant at Ibadan, being public holiday I went to my house, the 2nd day being Friday, I prepared the Job Card for the repair of the Trailer. On Monday the 5th January 1998 I received a letter of termination (Exhibit C). Before the letter I received no query”.
Exhibit C, the letter of termination dated the 5th of January 1998, reads as follows-
“This is to inform you that your services are no more required with effect from 05/1/98. Will you therefore please arrange to surrender all the Company’s property in your possession ands thereafter report at the Account Department for your entitlements”. (Italics mine)
This appeal clearly lacks merit; the Appellant’s employment was terminated because his services were no longer required, and that is reason enough for any employer to terminate the appointment of his employee since a Court cannot force an employee on his roll if his services are no longer required – see Nitel Plc. v. Ocholi (2001) 10 NWLR (pt. 720) 188, Nitel Plc v. Akwa (supra) wherein this Court held as follows-
“In the letter terminating the appointment of the Respondent, the 1st Appellant simply said that his services were no longer required. To my mind, there is no obligation on the 1st Respondent to state why his services were no more required. The effect of the judicial decisions which stated that an employee needs not give reasons for termination simply means that the master or employer need not give a catalogue of allegation or accusation(s) of any wrongdoing, or offence committed by the employee in terminating his appointment”. (Italics mine)
In this case, the Respondent did not give any reasons for terminating the Appellant’s employment, and no explanation is required to justify the termination.
The lower Court was right to hold that the termination was lawful since the Appellant was not accused of any misconduct in his letter of termination, which required a plausible explanation from the Respondent to justify the termination.
The Appellant’s employment was lawfully terminated and he is therefore only entitled to his unpaid entitlements and gratuity as ordered by the lower Court.
The appeal therefore lacks merit and is dismissed.
Other Citations: (2007)LCN/2427(CA)
