Emenite Limited V. Chief Columbus E. Oleka (2004)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The respondent was employed by the appellant company in October, 1976. The appointment was to take effect from January, 1977. He rose through the ranks and became Finance Manager in August, 1989. The conditions of service governing the relationship between the respondent and the appellant is exhibit “G”.
In July, 1993, the appellant in re-organising the company decided to do away with the respondent’s appointment. The appellant used the word “disengagement” instead of termination.
The respondent was offered six months salary in lieu of notice.
This, he rejected and went to court before the High Court of Enugu State seeking the following declarations in an amended statement of claim:
“(a) Declaration that the defendant having made an offer of “disengagement” or “retirement” to the plaintiff outside the consensual conditions of service existing between both parties, the defendant is obliged to allow the plaintiff reasonable time to make a choice of the two options offered to him.
(b) Declaration that the defendant having on 14th July, 1993 made representation of intention to the plaintiff intended to affect their legal relations the defendant is estopped from resiling therefrom once the plaintiff has made his choice.
(c) Declaration that plaintiff having on 18th August, 1993, expressed his acceptance of early retirement as his method of withdrawal from defendant’s employment, the defendant is not only estopped from resiling therefrom but has to accept the plaintiff’s decision to retire from the defendant’s employment.
(d) Declaration that the defendant has no right to determine the service of the plaintiff on terms called “disengagement” which is outside the agreed conditions of service between the parties, and that the plaintiff is still in the employment of the defendant until the determination of this suit.
(e) Cancelled.
(f) Declaration that the option of “disengagement” offered by the defendant to the plaintiff is invalid as being outside the 1993 conditions of service.”
The appellant filed a statement of defence admitting the fact of employment but denied the claim of wrongful termination. At the trial court, the respondent gave evidence and tendered several documents including the conditions of service, exhibit “G” and the letter of “disengagement”, exhibit “L”.
The appellant called the Chairman of his Board of Directors, one Mr. Paul Ezenwa Nwokolo to testify on its behalf. He gave evidence that the respondent’s appointment with the appellant was terminated. He stated that they used the word “disengagement” in order not to embarrass the respondent. He agreed that the respondent was entitled to be treated in accordance with the conditions of service, exhibit “G”.
The trial court gave judgment in favour of the respondent in respect of some of his reliefs especially, relief 12(a) which had the effect of placing the respondent in the employment of the appellant until the Day of Judgment.
Dissatisfied with that decision, the appellant appealed to this court and the learned senior counsel for him filed a brief of argument and identified 3 issues for determination as follows:
“1. In the circumstances of the case was the plaintiff’s contract of employment wrongfully terminated.
- Whether the plaintiff proved the legal personality of the defendant?
- Was the trial court right when he ordered that plaintiff’s employment continued till the date of judgment?”
The learned counsel for the respondent also filed a brief on his behalf and formulated 3 issues for determination as follows:
“1. Whether having regard to all the circumstances of the case, including the pleadings and evidence of the parties, it was proper for the trial High Court to have granted declaration of rights as reliefs and not damages for wrongful termination of the contract of service?
- Whether having regard to the pleadings of the parties, the question of the legal personality (i.e. status) of the defendant/appellant was in issue in the trial of the suit, and whether the onus of proof therefore fell on the plaintiff/respondent?
- Whether it was proper for the trial court based on its findings as to the nature of the controversy between the parties to have granted the respondent the relief he asked for in paragraph 12(a) of the further amended statement of claim (p. 31 of the record)?”
On issue 1, the learned senior counsel for the appellant submitted that the totality of the respondent’s grievance is that the appellant used the word “disengagement” to bring about the end of his service. He admitted that the word “disengagement” cannot be found in exhibit “G”.
However, it is his submission that whatever word that was used by the appellant, the important thing is that the appellant has conveyed to the respondent the fact that his employment with it had ceased. He submitted that the exit of the respondent from the employment of the appellant was not wrongful as he was offered 6 months salary in lieu of notice beyond the 3 months salary stipulated in exhibit “G”.
Where contract of employment is governed by a written contract and if there is any dispute or claim with regard to termination or dismissal from employment, the higher courts have always held the parties bound to the terms of their contract. In all contracts of employment, the courts must be wary of looking outside their terms because the terms govern the relationship between the employer and the employee. See Layade v. Panalpina World Transport Ltd. (1996) 6 NWLR (Pt. 456) 544, (1996) 7 SCNJ 1, at page 10 and Angel Spinning & Dying Ltd. v. Ajah (2000) 13NWLR (Pt. 685) 532; (2000) FWLR (Pt. 23) 1332 at 1354.
Since the appellant’s counsel has conceded that the respondent was not removed from office in accordance with the terms of exhibit “G”, it follows naturally that the respondent’s removal was wrongful.
I cannot understand why the appellant was shying away from using the word “termination” which the respondent preferred and which was covered by the terms of employment, exhibit “G”. If the appellant wanted to grant special favour to the respondent it could easily have done so without breaching the terms of his employment by complying strictly with exhibit “G” and then giving him extra parting gifts.
On the second issue, the learned senior counsel for the appellant submitted that the respondent failed to establish that the appellant is a limited liability company registered in Nigeria. He said that even though the averment by the respondent in this regard was admitted by the appellant, the respondent has the responsibility to prove the legal personality of the appellant. He relied on the case of A.C.B. Plc. v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501 at page 505 where in his submission, the Supreme Court held that the legal personality of a corporate body can only be established as a matter of law by the production in evidence of the certificate of incorporation, admission by the parties notwithstanding.
In reply to this, the learned counsel for the respondent submitted that the appellant in paragraph 1 of his statement of defence unreservedly admitted the respondent’s pleading as to the status of the appellant as averred in paragraph 1 for the further amended B statement of claim. No issue was therefore joined on the status and the legal personality of the appellant and there was therefore no onus on the respondent to prove the status and legal personality of the appellant. He also relied on the case of A.C.B. Plc. v. Emostrade Ltd. (supra).
I agree with the submission of the learned counsel for the respondent that on the state of the pleadings, the status of the appellant was not in issue in the lower court.
In the case of A.C.E. Plc. v. Emostrade Ltd. (supra), the issue of legal personality of the respondent was called into question before the trial court but it failed to produce its certificate of incorporation.
In the present case, the appellant admitted its legal personality and the general principle of law is that what is admitted need not be proved. See Omeziri & Ors. v. Oko & Anor. (2004) 13 NWLR (Pt. 890) 287. The statement of Supreme Court to the effect that the legal personality of a corporate body can only be established as a matter of law by the production in evidence of the certificate of incorporation, admission inter parties notwithstanding was merely an obita dictum.
In all the cases relied on in the lead judgment of Uwaifo, J.S.C. the legal personalities of the companies concerned were denied by the opposing sides. The contribution of Kalgo, J.S.C. at page 520 of the report clarifies the position thus:
“According to the record of appeal, the respondent failed to prove that it had the legal status to sue or be sued. It also did not plead misnomer. It was therefore wrong for the Court of Appeal to introduce gratuitously the issue of misnomer on behalf of the respondent and rely on it in arriving at majority decision of that court. It is also not enough to assume that because company uses the name “limited” on the writ of summons as plaintiff, that company must be a limited liability company entitled to sue. The company status must be proved especially in this case where it was denied to be a limited liability company at the time of the transaction. This was not proved in this case and cannot be presumed either.”
This issue is resolved against the appellant.
On issue 3, the learned senior counsel submitted that the trial court was wrong in declaring that the respondent was still in the service of the appellant until the Day of judgment which was even beyond the respondent’s retirement age which was earlier in time. The learned counsel for the respondent conceded that the trial court was wrong to have extended the respondent’s employment beyond his retirement age.
It is the law that in ordinary relationship of master and servant, the court of law will not generally impose a servant upon a master. If the contract of employment is terminated wrongfully, all that is done is to award damages in lieu of notice as specified in the conditions of employment. See the case of P. C. Imoloame v. W.A.E.C. (1992) 9 NWLR (Pt. 265) 303.
In the present case, the respondent did not claim for damages in lieu of notice. I cannot therefore give him what was not claimed. By exhibit “G”, that is, the conditions of service, he is entitled to 3 months notice. He filed his writ of summons on the 18th of February, 1994 and 3 months notice of his termination from that date would end on the 17th of May, 1994.
From all I have said in this judgment, the appeal has no merit and it is hereby dismissed save for the variation of the judgment of the trial court to read that the respondent’s employment with the appellant subsisted until the 17th of May, 1994.
The appellant shall pay costs of N5,000 to the respondent.
Other Citations: (2004)LCN/1651(CA)
