Francis Adesegun Katto V Central Bank Of Nigeria (1999)
LAWGLOBAL HUB Lead Judgment Report
UWAIFO, J.S.C.
The Court of Appeal, Kaduna Division, on 7 June, 1993, gave judgment on an appeal from a rather simple suit decided by Agora J. on 4 September, 1987, sitting at the High Court, Minna. A number of issues were raised on that appeal: three were in respect of an alleged wrongful termination of employment and five in respect of defamation said to emanate from the letter which conveyed the termination. It thus meant that the suit was based on two causes of action whereof in the amended statement of claim the plaintiff finally claimed the following reliefs:
“(a) Declaration that the defendant’s purported termination of plaintiff’s appointment on 1st June. 1984 by virtue of defendant’s letter of that date was wrong in law, null and void and of no effect.
(b) Order on the defendant to re-instate the plaintiff to the former position in the defendant’s employment before the wrong (sic) termination with all necessary entitlements that would have accrued to him had he not be (sic) so wrongly (sic) terminated. Or
A declaration that plaintiff is entitled to gratuity and pension according to the defendant (sic) Staff Manual and an order to the defendant to pay him his gratuities immediately and his pension to start to run at his 45th year anniversary.
(c) N200,000.00 (Two hundred thousand naira) special and general damages for the wrongful termination of the plaintiff’s appointment which claim include (sic) plaintiff’s salary up to voluntary retirement age if plaintiff is not re-instated.
And
(d) N100,000.00 (One hundred thousand naira) general (aggravated) damages for the defamation suffered by the plaintiff as a result of the defendant’s wrongful termination.”
The learned trial Judge gave judgment for the plaintiff. As for the claim based on wrongful termination of appointment, he ordered that the plaintiff be reinstated to his employment (as Senior Manager grade level 13) and given all the entitlements due to him, including promotion prospects. In the alternative, the following orders were made:
(a) The defendant should immediately pay the plaintiff his “gratuity to an amount equal to his annual salary when he was 15 years in the defendant’s service, and [his amount should progress by I0% per annum for each completed year of his service after the first 15 years.”
(b) The plaintiff should be paid his pension when he would be 45 years of age. In regard to damages for defamation, the learned trial Judge awarded the plaintiff N70.000.00.
In the appeal against the judgment, the defendant, as already indicated, raised eight issues for determination. The two most relevant for the purposes of the present appeals before this court were:
(a) whether the statement of claim disclosed a cause of action in respect of the claim for wrongful termination of employment and the effect on the award of damages. and
(b) whether there is a cause of action known as defamation as a result of wrongful termination or whether wrongful termination per se can constitute defamation.
The Court of Appeal appeared to have answered issue (a) above-stated but did not answer issue (b). As regards the said issue (a), it observed inter alia, per Okunola. J.C.A. who read the leading judgment:
“I have examined Exhibit 7 and I am satisfied that there are two modes of termination created in Exhibit 7 (Chapters 3 & 5) dealing with the two situations. Clause 3 of Chapter 5 of Exhibit 7 deals with the first situation where either party just wants to sever the relationship in which case there is no requirement of the employer or employee having committed any or some misbehaviors listed in clause 2 of Chapter 5 of Exhibit 7. It will appear on the face of Exh. 8 that the appellant as reiterated by the counsel has adopted the latter option by payment in lieu of notice….. In consequence, I hold that on the face of Exhibit 8, the respondent could be lawfully terminated by the appellant under clause 3 of Chapter 5 of Exhibit 7 by payment of one month (sic) salary in lieu of notice:
I think the learned Justice mixed up which clause of Exhibit 7 supports the letter of termination, Exhibit 8, somehow in that passage. However, the lower court at the same time later in the judgment relying on Decree No. 17 of 1984, proceeded to hold upon the issue it raised suo motu that the court lacked jurisdiction to entertain the claim relating to the wrongful termination of appointment of the plaintiff. It therefore concluded that the appeal was “allowed in part”, and then struck out “suit No. NSHC/35/86 before the Niger State High Court Minna for lack of jurisdiction” in substitution for the judgment of that court. Although the entire suit was struck out, in effect that striking out would appear, in the circumstances, to relate to the claim for wrongful termination. Nothing absolutely was said about issue (b) above concerning whether there was a cause of action in defamation disclosed.
The plaintiff appealed against the striking out order based by the lower court what it considered amounted to lack of jurisdiction. A number of issues (5 in all) were raised as to whether the lower court could do that and whether it was right in law that Decree No. 17 of 1984 was applicable to the case. The defendant also appealed questioning whether the lower court was right to have failed to consider issues properly raised before it [which include issue (b) I identified above] and whether following its findings that the defendant complied with the contractual condition for terminating an employment simpliciter as contained in Exhibit 7, it should not have dismissed the plaintiffs claim of wrongful dismissal.
The appeal by the plaintiff (to whom I shall now refer as the appellant) was conceded, quite rightly, by the defendant (who, for convenience, I shall refer to as the cross-appellant). I have no doubt that jurisdiction was erroneously delivered by the lower court particularly as the issue of jurisdiction had earlier in the same matter been resolved by this court: see Katto v. Central Bank of Nigeria (1990) 9 NWLR (Pt.214) 126. I hold that the appeal has merit and accordingly I allow it with N10,000.00 costs to the appellant.
The cross-appellant’s appeal has two aspects to it. One is whether the appellant from his own pleading and evidence has shown that he can maintain the claim for wrongful termination of appointment. The appellant pleaded reliance on the Staff Manual regulating his employment with the cross-appellant. In particular, he averred in paras. 11 and 12 of the statement of claim concerning the said Manual (which was admitted as Exhibit 7) the following:
“11. The defendant has a ‘Staff Manual containing the principal Rules and Regulations governing the staff’s appointment and in this said Staff Manual the procedure and circumstances for termination of the Staffs appointment are stated and the position or post of the plaintiff on and before 1st June, 1984 was covered by the Staff Manual.
- The plaintiff avers that the defendant did not follow any laid down rules and procedure in the purported termination of the plaintiff’s appointment on 1st June, 1984”
The appellant certainly took the proper steps to plead the document relevant to the terms of his employment. It is the law that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these. The principle has been laid down by this court in many cases including specifically Amodu v. Amode (1990) 5 NWLR (Pt.150) 356, followed in Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at 412. In Amodu v. Amode (supra), Agbaje, J.S.C., who read the leading judgment observed at page 370:
“….. it appears clear to me that since it is the plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question.”
To this Wali, J.S.C. added at p373: “The term of the contract of service is the bedrock of the appellant’s ease.”
As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties: see Western Nigeria Development Corporation v. Abimbola (1966) 4 NSCC 172 88. In the latter case this court observed at p. 94 that the provisions of a written contract of service bind the parties thereto and that it was “outside the province of the learned trial Judge to look anywhere for terms of termination of the contract other than in the Agreement, Exhibit A,”
In the present case, the Staff Manual/ (Exhibit 7) under chapter 3 which deals with Confirmation and Determination of Appointment, clause 2 thereof, provides quite simply:
“2. Appointments of permanent staff members can be terminated either by the staff member or by the Bank on the giving of a month’s notice or payment of a month’s salary in lieu thereof.”
The letter of termination of appointment dated June 1, 1984 addressed to the appellant by the cross-appellant reads in part:
;’I am directed to inform you that your services are no longer required by the Bank. In the circumstance, your appointment with the Bank is hereby terminated with immediate effect.
You are advised to contact the Manager Accounts Office, Central Bank of Nigeria Kaduna for the payment to you of one month’s salary in lieu of notice of termination of your appointment.
Your final entitlement or indebtedness to the Bank is being determined and will be communicated to you in due cause.”
It was these two relevant Exhibits 7 and 8 the lower court considered to reach its finding that the appellant’s employment could be properly terminated under chapter 3 of Exhibit 7. I think that the court was right except that the cross-appellant would act under clause 2 which provides for one month’s salary or notice in lieu, not clause 3 stated by Okunola, JCA, which applies only if an employee who had served up to 15 years intends to withdraw his service; in that case he alone has an obligation to give three months’ notice or pay three months’ salary in lieu thereof to the employer. In the situation of the appellant, he cannot be heard to say in the face of Exhibits 7 and 8 that the cross-appellant failed to comply with the terms of his contract of service to bring his employment to an end.
It is, I think, irrelevant that the cross-appellant misguidedly pleaded some extraneous facts and circumstances in its statement of defence and led some evidence which appeared to be in contradiction of the purport of Exhibit 8 and the appropriate provision of Exhibit 7. It is for the appellant (as plaintiff) to prove his case which he rightly founded on paras. 11 and 12 of his statement of claim. Therefore, Exhibits 7 and 8 must be taken into proper consideration and what then follow is their legal consequences. The lower court made findings which should have led to unmistakable conclusion in regard to the legal consequence but for the error of declining jurisdiction. This court can draw the legal consequence and apply it to decide the appeal on the issue of wrongful termination.
The case of Western Nigeria Development Corporation v. Abimbola (supra) is relevant here. The plaintiff there sued for wrongful dismissal, claiming for special and general damages. There had been some allegation of fraud against him. The trial judge awarded him a month’s salary and also general damages on the basis of loss of prospects of continued employment for a dismissed employee etc. It is true that the dismissal was wrongful. On appeal to this court, it was observed per Ajegbo, J.C.E at page 174:
“The plaintiff was given a letter of appointment (Exhibit H) and paragraph 5 of the letter reads as follows:
‘Your employment may be terminated by the Board or yourself by giving one month’s notice in writing or by giving one month’s salary in lieu of such notice excepting in the case of dismissal for an offence prejudicial to the interest of the Board.’
The plaintiff’s appointment was governed by the contract into which he entered at the time of his appointment. If he had been given one month’s notice before the termination of his appointment he would have had no claim whatsoever on the Corporation. But he was not given notice and he is entitled to one month’s salary in the absence of notice. That is all he can get as damages; other matters that the Judge considered are irrelevant.”
It was in Nigeria Produce Marketing Board v. Adewunmi (1972) 7 NSCC 662 that it was further explained by this court that in such a situation, apart from the salary in lieu of notice, the plaintiff would be paid other legitimate entitlements due to him at the time the employment was brought to an end.
I think there is merit in the cross-appeal on the claim for wrongful termination of employment. The appeal is accordingly allowed. The judgment of Agora J. delivered on 4 September, 1987 and that of the Court of Appeal on 7 June, 1993 in respect of that claim which the Court of Appeal should have set aside are hereby accordingly set aside and the claim dismissed.
As regards the claim for defamation for which the sum of N70,000.00 was awarded, the lower court inadvertently, I believe, failed to say anything about it even though the question of lack of jurisdiction did not arise in respect of it. That claim was based on para. 1 of the letter of termination of appointment, earlier reproduced in this judgment which the trial court held defamed the appellant. I shall reproduce it again for effect. It reads:
“I am directed to inform you that your services are no longer required by the Bank. In the circumstance, your appointment with the Bank is hereby terminated with immediate effect.”
To this end, innuendo of a sort was pleaded as follows:
“This conveys the inuedo (sic) that the plaintiff was summarily dismissed and that such words (of) termination of plaintiffs level in the Central Bank or any Financial institution in Nigeria shows (sic) that the plaintiff was found guilty of financial misdeeds which is scandalous and portrays the plaintiff as a dishonest person.”
What looks like a curious combination of ordinary meaning and innuendo was added thus:
“The plaintiff will also rely on the natural and ordinary meaning of the words used and quoted above with regard to the prevailing circumstances o/the purge of corrupt officials then, and urge the court to take Judicial Notice thereof” (Emphasis mine).
Since the Court of Appeal did not consider the appeal against the judgment on that claim, this court would have. in a proper case, remitted the appeal back to it to do so. This is on the principle that the Supreme Court derives its jurisdiction as an appellate court from section 213 of the 1979 Constitution. The implication is that it can only hear and resolve a matter on appeal from an appeal from that court on an issue over which it has reached a decision: see Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 164.
In the present circumstance, however, I find no cause to remit the appeal back to the Court of Appeal. If there was no cause of action, to send the appeal back to the Court of Appeal to decide it on the issues raised before it previously which it failed to consider, would be like flogging a dead horse to be up on the move. It obviously would be a waste of lime. It would be best to bury it. At the trial court, there was a duty on the learned Judge to rule in the first instance as a matter of law whether the words in question were capable of conveying a defamatory meaning at all: see If the words complained of are not so capable of a defamatory meaning, the Judge will rule accordingly and end the proceedings at that stage. This needs no evidence but it is a question of interpretation of the said words. That same function is also open to the Court of Appeal under section 16 of the Court of Appeal Act. In other words, since the trial court failed in that function, the Court of Appeal should have exercised its power to do so and determine whether those words were capable of conveying a defamatory meaning. If not, there is no cause of action. In one of the issues set down for determination in the Court of Appeal (issue 3), it was asked:
“Whether there is a cause of action known as defamation as a result of wrongful termination or whether wrongful termination per se can constitute defamation.”
The cross-appellant has now before this court asked whether it was proper for the Court of Appeal to have failed or neglected to consider the said issue properly raised before it. The same general power available to the Court of Appeal under section 16 of the Court of Appeal Act is available to this court under section 22 of the Supreme Court Act, the relevant aspect of which provides that the Supreme Court in any matter on appeal before it,
“….. generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part … ”
The Court of Appeal was in error to have failed to resolve the issue properly raised before it in this regard. I think this is an appropriate situation for this court to act under the said provision to decide as a matter of law whether there was a cause of action to be tried al all. In this regard, I have considered the words complained of. They were written by the cross-appellant to the appellant on the basis and in terms of the contract between them, simply to bring the contract to an end. It is unrealistic to expect a party to a lawful contract to abstain from exercising his rights under it just because it is imagined that third parties may read a wrong meaning to the effect of such exercise. Whether in their ordinary and natural meaning or they are supported by a far-fetched type of innuendo like the one pleaded in this case, these words are not remotely capable of conveying a defamatory meaning particularly when read together with the paragraphs that follow in that letter, which indicated that the appellant was to have a month’s salary in lieu of notice as well as his other entitlements, since published words complained of must be read as a whole: see Okafo v. Midwest Newspapers Corporation (supra) at p.15. Therefore, the words in question disclose no cause of action.
In consequence, I also allow the appeal of the cross-appellant on the claim of defamation and set aside the judgment of the trial court which awarded N70.000.00 general damages to the appellant. Accordingly .the claim is dismissed. In effect, the suit as a whole (No.NSHC/35/86) is dismissed. I award the sum of N10,000.00 as costs in favour of the cross-appellant against the appellant.
SC.117/1994
