Gabriel Ativie V. Kabelmetal Nig. Limited (2008)
LAWGLOBAL HUB Lead Judgment Report
F. TABAI, J.S.C.
In the High Court of Lagos the plaintiff who is the appellant, herein claimed against the defendant which is the respondent herein:
(a) A declaration that the termination of his appointment on the 5/7/90 was wrongful, illegal, null and void and therefore of no effect.
(b) A declaration that he (plaintiff) was still in the employ of the defendant/respondent company and as such he was entitled to his monthly salary(s) and allowances and an order to restore same from the 51h of July 1990 until he voluntarily retires from the service of the defendant company.
(c) That he (plaintiff) was entitled to the sum of N10,000,000.00 from the defendant/respondent as general and special damages with interest thereon at 21% banking rate till the said sum is paid.
The claim was filed on the 26th October 1990. Filed along with the writ of summons was a 12 paragraph Statement of Claim. The defendant/respondent filed an 11 paragraph statement of defence on the 10/1/91. In reaction thereto the plaintiff/appellant filed a seven paragraph Reply to the defendant statement of defence.
The matter went on trial. In his judgment on the 23rd of September 1994 the learned trial judge S.O. Adagun J. allowed the claim and entered judgment for the Appellant which he expressed as follows:
“I am inclined to believe that the Plaintiff had suffered personal injuries and suffering which it could be calculated from the day of his wrongful termination of his employment up to date, to the tune of N2,000,000.00, the amount which is considered reasonable to be paid to the Plaintiff as general damages. In addition the plaintiff is to be reinstated to his employment and pay him all his dues. The defendant company is to pay the amount of N2,000,000.00 to the plaintiff only for his sufferings to the injuries accidentally met in the course of his employment. ”
The defendant/respondent was not satisfied and went on appeal to the court below. By its judgment on the 24th of April, 2001 the appeal was partially allowed. The Court of Appeal per Sanusi, J.C.A. concluded in the following terms:-
“In consequence, the appeal succeeds in part and is partially allowed. The decision of the trial court to the extend that the termination of the respondent’s appointment by the Appellant was wrongful is affirmed. All other awards made by the trial court are hereby set aside. For the avoidance of doubts, the respondent is entitled to be paid two months salary and all other allowances payable to him upon termination of his appointment as provided in the terms and condition of the contract of service. These should be paid to him accordingly. The trial court’s order reinstating the respondent and award of N2m general damages and all other awards made by the lower court are hereby set aside.”
The plaintiff was aggrieved by the decision and has come on appeal to this Court. In the notice of appeal dated 23rd of July 2001 the appellant raised two grounds of appeal. Before this Court, briefs were filed and exchanged. The undated appellant’s Brief filed on the 15/10/02 was prepared by N.A. Okoye of Abumchukwu Okoye & Co. Two issues for determination were formulated therein as follows:
- Whether the Lower Court was right when it held that the appellant’s case was on contract and not in tort
- Whether the appellant is entitled to the award of the sum of N 11,325.45 and N2m awarded by the High Court as special and general damages and/or whether same is a windfall
Oladosu Ogunniyi prepared the respondent’s amended brief of arguments also undated but filed on the 2213/07. In it the Respondent formulated the following single issue for determination.
Whether having found that the termination of the appointment of the appellant was wrongful, the lower Court was right in setting aside the award of N2million as general damages for the breach, considering the facts and circumstances of the case and the status of the appellant
On behalf of the appellant Mr. Okoye proffered the following arguments. On the appellant’s first issue counsel referred to paragraphs 5 and 11 of the Statement of Claim and paragraphs 2, 3, 4, 5 and 7 of the Reply to the statement of defence and submitted that the cause of action is in tort. It was argued that the Appellant not only pleaded but also tendered evidence of personal injuries which was accepted by the trial Court and which formed the basis of the awards made. There was therefore no basis for the interference in the damages awarded by the trial Court, Appellant contended. Learned counsel referred to the statement of the lower Court to the effect that there was no justification for the award of damages for personal injuries in a claim of purely wrongful termination of appointment and submitted that the finding was not supported by the evidence before the Court. It was argued that the damages awarded by the trial Court were neither windfall nor gratuitous.
On his part, Mr. Oladosu Ogunniyi submitted firstly that there was no issue as to whether the action was in contract or tort and that the Appellant’s issue one be struck out. With respect to ground two on which Appellant’s issue two is predicated, learned counsel submitted that the ground is a mere general statement of opinion and vague that no sustainable and valid issue could be distillined from it. For this submission counsel relied on SARAKI V KOTOYE (1990) 4 NWLR (Part 143) 147. It was further submitted that in breach of contract cases the damages to be awarded should be such as fairly and reasonably supposed to be within the contemplation of the parties. OKONGWU v N.N.P.C. (1989) 4 NWLR (Part 115) 296 at 315. The principle of assessment of damages in breach of contract cases, counsel submitted, is restitutio in integrum. It was further submitted that the categorization into general and special damages for the purpose of awards is unnecessary in breach of contract cases since apart from damages that flow naturally from the breach no form of general damages can be contemplated. He cited U.T.C. v NWOKOKUKU (1993) 3 NWLR (Part 281) and submitted that general damages is known only in the law of tort. Counsel referred to exhibits “C” and “D” and the terms therein that either party to the contract could terminate it by giving the other, two months notice or payment in lieu thereof and submitted that where there is wrongful termination two months payment in lieu is all the damages within the contemplation of the parties. Therefore the award of N2,000,000.00 is completely out of tune with the principles guiding the award of damages, learned counsel argued. It was submitted therefore that the court below rightly intervened with the damages awarded. Learned Counsel finally urged that the appeal be dismissed.
I have considered the pleadings, the evidence in support thereof, the judgment of the trial High Court, that of the Court of Appeal and the submissions of counsel for the parties in their respective briefs. The first issue for determination is whether this action is in contract or in tort. The issue is crucial. Its resolution effectively determines the appeal. I have reproduced herein above the substance of the submissions for the appellant. He relied on paragraphs 5 and 11 of the Statement of Claim and paragraphs 2, 3, 4,5 and 7 of the reply to the statement of defence and submitted that the action is in tort. In paragraph 5 of the Statement of Claim the appellant pleaded thus:
“The plaintiff avers that prior to his employment in the defendant company, he had no disability whatsoever and that on 27th April 1987 he was involved in an accident in the course of his employment in consequence whereof the Plaintiff sustained severe physical and internal injuries in respect of which he was treated in various hospitals and clinics and which resulted in the Plaintiff’s permanent disability and a report of which was made to the Defendant company. By reason of the aforesaid accident, the Plaintiff suffered (and still suffers) considerable pains, loss and expenses. Certificate of disability shall at the trial of this suit be relied upon. ”
And in part of paragraph 11 of the Statement of Claim he pleaded as follows:
“(11) The Plaintiff avers that the termination of his appointment is unlawful and void as follows:
(i) It was done in breach of his conditions of service and contract of employment.
(ii) The Plaintiff was never confronted with any allegation, and if the defendant company had any allegation in mind he was not given a fair hearing before the termination of the said appointment.
(iii) That he was terminated without justifiable cause, particularly in view of his said involvement in an accident and robbery attack which have left him disabled and poverty stricken.
General Damages:
The plaintiff claims the sum of N9,974,557.13 as general damages for; the unlawful breach of the 1985 contract of employment; the permanent disability arising from the plaintiff’s involvement in a motor accident in the course of his employment and the cost of this action.”
He then went on to plead particulars of special damages in the rest of the said paragraph 11. In paragraphs 2, 3, 4, 5 and 7 of the reply to the statement of defence, the appellant pleaded more details and particulars about the accident, the injuries and disability resulting therefrom. He also pleaded the facts of his admission and treatment in various hospitals at Uromi, Fugar and Lagos.
At the trial the appellant was at great pains to tender oral and documentary evidence to prove these assertions. The learned trial judge was swayed by the above pleadings and evidence and found for the appellant without relating same strictly to the reliefs claimed. I think, with respect, that he erred. A claim is circumscribed by the reliefs claimed. The duty of a plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed.A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed. These are the principles in OKUBULE v OYAGBOLA (1990) 4 NWLR (part 147) 723 at 744; KALIO v KALIO (1975) 2 SC 15; OLUROTIMI v IGE (1993) 6NWLR (Part 311) 257.
I have, at the beginning of this judgment, reproduced the three reliefs claimed in this case. The first is the principal claim, the other two being only ancillary to and dependent on it. The relief is for a declaration that the termination of his appointment is wrongful, illegal, null and void and of no effect. The second is for a declaration that he is still in the employment of the defendant/ respondent. And the third is for his entitlement to N10,000,000.00 special and general damages. It is only the appellant’s success in obtaining the first relief that entitles him to the second and third reliefs. Specifically the appellant’s entitlement to the special and general damages claimed in the third relief is dependent wholly on his entitlement to the declaration that the termination was, by virtue of the terms and conditions of the contract of service between them, wrongful, null and void. In so far as the reliefs claimed in this action are concerned, there is no reference whatsoever to any claim in tort. In my consideration, the claim is in contract pure and simple. On this question of whether the action is in contract or tort the Court below had this say:
“It is clear from the printed record of proceedings that the cause of action before the trial court as shown in the writ of summons and Statement of Claim is that of breach of contract of service. There has not been any distinct claim of damages arising from personal injuries under tort or Workman’s Compensation Act. The action before the trial court was not an action in tort.”
I agree with the opinion expressed above and I adopt same. The result is that this first issue is resolved against the appellant.
This takes me to the next issue of whether the Appellant is entitled to the award of the sum of N11,325.45 and N2m as special and general damages. It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, as in this case, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more. See KATO v C.B.N. (1999) 6 NWLR (Part 607) 890 at 406; WESTERN NIGERIA DEVELOPMENT CORPORATION V ABIMBOLA (1966) 4 NSCC 172; NIGERIA PRODUCE MARKETING BOARD v ADEWUNMI (1972) 7 NSCC 662. In such cases the award of general damages is inappropriate. Nor is the wronged employee entitled to a decree of reinstatement; the rationale being that no servant can be imposed by the court on an unwilling master or employer. See UNION BEVERAGES LTD v OWOLABI (1988) 1 NWLR (Part 68);UNION BANK OF NIGERIA v OGBOH (1995) 2 NWLR (part 380) 647 at 664.
It has to be emphasised that such cases of ordinary contracts of service are quite distinguishable from contracts of service which are statutorily protected such as the case of OLANIYA & ORS v UNIVERSITY OF LAGOS (1985) 2 NWLR (Part 9) 599 where reinstatement can properly be ordered.
As I indicated above this case falls within the category of ordinary contracts of employment which terms are those stipulated in the contract itself. Exhibit ‘D’ is the terms and conditions of service for Senior Staff.
Paragraph 4 thereof states:-
Confirmation of Appointment
“After successful completion of the probationary period, confirmation of appointment will be notified to the employee in writing after which appointment may only be terminated by either party giving two months notice or two months pay in lieu thereof.”
This was conveyed to the appellant in exhibit C and expressed in the last paragraph therein as follows:-
“Henceforth, your appointment may only be terminated either side by two months notice or pay in lieu thereof’
The finding by the trial Court and affirmed by the lower Court is that the termination of the appointment of the appellant by the respondent through exhibit ‘C’ dated 5th July 1990 is wrongful and that the appellant is by reason thereof entitled to damages. But going by the principle in the authorities above some of which I have reviewed above, his entitlement in damages is as stipulated in exhibits ‘C’ and ‘D’. He gets no more than the two months salary covering the period of notice. This was the principle invoked by the Court below in setting aside the damages awarded and the reinstatement ordered by the trial Court. The trial Court was clearly wrong to order the reinstatement of the appellant in the respondent’s company. It had no jurisdiction to decree the appellant’s reinstatement and thus impose him on the unwilling Respondent company. On this point see further the cases of ONALAJA v AFRICAN PETROLEUM LTD (1991) 7 NWLR (part 206) 691; UNION BANK OF NIGERIA v OGBOH (supra). Similarly the trial court had no justification to award the W2m damages. For the foregoing reasoning fully endorse the decision of the Court below.
On this issue of the propriety or otherwise of the damages awarded by the trial Court, there is yet another reason why the award cannot be sustained. It is related to the first issue of whether the claim was in contract or in tort. I have, on the resolution of that issue, held that the claim was founded in contract. It is clear from the reliefs claimed that but for his termination, the appellant would not have filed this suit. But the termination of his appointment has nothing to do with his entitlement for injuries he sustained in the course of his employment. If the appellant genuinely felt that he could recover damages for injuries he suffered in the course of his employment with the defendant/respondent company he was free to seek redress in that behalf. The appellant was involved in the accident on the 27t1l of April 1987 and the termination was on the 5th July 1990 a period of over three years. There were a number of correspondences between the parties. None of which raised the issue of the accident in the course of the appellant’s employment. exhibit BB dated 4th May 1988 was made by the Appellant. It contained no assertion that the accident occurred in the course of his employment. And after his termination the Appellant reacted through his solicitors by exhibit ‘M’ dated 10th August 1990. The termination of his appointment was the main issue in focus. It is not surprising therefore that he claimed no relief for his entitlement to damages that arose from the accident. Although facts about the accident and the consequences thereof were pleaded in paragraphs 5 and 11 of the Statement of Claim and some evidence led in support thereof, such evidence was strictly not relevant to the reliefs claimed. The learned trial judge ought not to have allowed himself to be swayed by such evidence.
On the whole, I am satisfied that the learned trial judge erred in granting the reliefs for damages and reinstatement. I fully endorse the decision of the Court below setting aside the order for damages and reinstatement. The result is that the appeal fails and is accordingly dismissed. I make no orders as to costs.
SC.390/2001
