Joseph Ifeta V. Shell Petroleum Development Company Of Nigeria Limited (2006)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
By a writ of summons dated 17-9-1996, the plaintiff instituted this action against the defendant for wrongful termination of employment. Pleadings were duly filed and later amended by the parties before the plaintiff’s claims came for hearing before the High Court of Justice of Delta State at Warri. In his amended statement of claim, the plaintiff claimed in paragraph 36, the following reliefs –
“36. WHEREFORE the plaintiff claim as follows:
(a) A declaration that the purported termination is wrongful, malicious null and void and (of) no legal effect whatsoever. The sum of N9,000,000.00 (nine million naira) which represents the plaintiff’s salary from 1991-1996.
The sum of N2,800,000.00 (two million eight hundred thousand naira) which represents long service award entitlements. The sum of N200,000.00 (two hundred thousand naira) which represents long service award entitlement.
The sum of N16,200,000.00 (sixteen million two hundred thousand naira) which represents plaintiff’s salary till he retires. Or in the alternative to relief (e) above. An order for this Honourable Court reinstating the plaintiff to his rightful status which he would have presently occupied within the defendant company.”
At the hearing of the case, only the appellant as plaintiff testified in support of his claims and no other witness was called by him. On the part of the defendant, its learned counsel saw no need in calling evidence in the matter thereby leaving the statement of defence bare and unsupported. After receiving addresses from the learned counsel for the parties, the learned trial Judge, Narebor J. in his judgment delivered on 15-12-1998, found for the plaintiff, granting him all the reliefs claimed including the alternative relief of reinstating the plaintiff to his employment in the defendant company.
The defendant being dissatisfied with the judgment of the trial court, appealed against it to the Court of Appeal Benin Division. The appeal was heard on the respective briefs of argument filed by the parties and in a unanimous decision of that court delivered on 2-4-2001, the defendant’s appeal was allowed. The judgment of the trial court in favour of the plaintiff was set aside and replaced with the award of N7,500.00 only, as damages to the plaintiff for the wrongful termination of his employment by the defendant. The plaintiff being unhappy with the judgment of the Court of Appeal depriving him of the benefits of the judgment of the trial High Court in his favour, has now appealed to this court. The plaintiff who was the respondent before the Court of Appeal is now the appellant in this court while the defendant is now the respondent. The appellant’s notice of appeal filed with the leave of Court of Appeal granted on 11-6-2001, contained four grounds of appeal from which the following three issues for the determination of the appeal were formulated in the appellant’s brief of argument.
“(1) Whether the learned Justices of the Court of Appeal Benin Division were right in holding that the appellant’s appointment was effectively brought to an end on 17-5-1991 notwithstanding failure of the respondent to give notice or payment of salaries in lieu of notice.
(2) Whether in all the circumstance of this case, the proper measure of damages the appellant is entitled to, is three months salaries in lieu of three months’ notice.
(3) Whether failure of the Justices of the Court of Appeal Benin Division, to adequately consider the legal consequence of oral termination in the circumstances of this case occasioned a miscarriage of justice.”
In the respondent’s brief of argument, its learned counsel submitted only two issues for determination. They are:
“i. Was the Court of Appeal wrong in holding that the plaintiff’s employment was terminated on 17-5-1991
ii. Was the award of N7,500.00 to the plaintiff as damages for wrongful termination of the contract of employment wrong
The facts of the case which gave rise to the appeal in this court do not appear to be in dispute at all taking into consideration the position taken by the respondent as the defendant before the trial court not to call evidence to support its statement of defence thereby relying on the case made out by the appellant as plaintiff on his statement of claim and evidence. It is noted that pleadings can not constitute evidence and a defendant as in the instant case, who does not give evidence in support of his pleading or in challenge of the evidence of the plaintiff, is deemed to have accepted and rested his case on the facts adduced by the plaintiff notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded and does not constitute proof of such facts unless such facts are admitted. See Woluchem v. Gudi (1981) 5 SC 291; Basheer v. Same (1992) 4 NWLR (Pt. 236) 491; Uwegba v. A.-G., Bendel State (1986) 1 NWLR (Pt. 16) 303; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578 at 590 and F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281. The case of the appellant as can be seen from the relevant paragraphs of his amended statement of claim at pages 26-34 of the record is as follows:
“4. The plaintiff avers that he was employed by the defendant company on the 8th day of October, 1979 as an Operation Supervisor in Water Transport Department, Ogunu. Plaintiff shall rely on this document at the trial. The plaintiff avers that the original of the said letter got lost along with other documents including the letter of suspension.
Plaintiff shall found on the photocopies of the documents which were made before these documents got lost. Notice is also hereby given to the defendant to produce file copies of the aforementioned documents.
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- The plaintiff avers that inspite of the fact he had performed very well and served the defendant company diligently with transparent honesty, he was served with a letter of suspension dated 11th day of March, 1991 based on allegation of theft of pipes valued at N300,000.00 (three hundred thousand naira) the plaintiff shall rely on the said letter of suspension at the trial of this suit.
The plaintiff further avers that he was never recalled to his job until the 17th day of May, 1991 when his appointment was terminated, although no letter of termination was given to him. The plaintiff shall rely on the letter of termination at the trial of this suit.
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- The plaintiff avers that his purported termination by the defendant company is predicated upon the alleged theft charge preferred against him.
The plaintiff shall lead evidence to establish and contend at the trial of this suit that his termination was wrongful, loaded with malice, null and void and of no legal effect whatsoever.
- The plaintiff further avers that the laid down procedure for terminating a senior staff in the defendant company was not adhered to in his case.
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- The plaintiff avers that he was earning a basic monthly salary of N2,500.00 (two thousand five hundred naira) when his appointment was wickedly terminated.
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- The plaintiff further avers that he was a senior staff of the defendant company when his appointment was terminated. And all senior staff of the defendant company are bound by the ‘CONDITIONS OF SERVICE FOR SENIOR STAFF IN SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED.’ The plaintiff hereby pleads and shall rely on the said conditions of service at the trial of this suit.
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- The plaintiff further avers that his children no longer attend the defendant’s company’s clinic as a result of the malicious termination of his appointment.
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- The plaintiff further avers that since his appointment was terminated summarily by the defendant company some times in 1991 he has not gained any other employment since all the companies he has visited always asked for recommendation letter from former employer which the defendant company consistently refused to write. One of such letter from such company shall be relied upon at the trial.
- The plaintiff avers that since his job was terminated by the defendant company he has been living at the mercy of relations and friends. The plaintiff further avers that as a result of the wrongful, callous and malicious termination of his appointment, his wife deserted him and none of his 7 (seven) children is presently attending school. This is a result of the plaintiff’s inability to pay their school tees.
In the defendant’s amended statement of defence in paragraph 1, paragraph 10 of the plaintiff’s statement of claim is one of the paragraphs admitted by the defendant. In that paragraph of the statement of claim, the plaintiff now appellant had pleaded unequivocally, the termination of his appointment by the defendant on 17lh day of May, 1991.
The case of the appellant as predicated on the pleadings and the evidence adduced by him is that he was employed by the respondent on 8-10-1979 as operations supervisor in the Transport Department where he rose to the post of a planning supervisor. He was given a long service award in 1989. However, on 11-3-1991, he was suspended from duty based on an allegation of theft of pipes. While he was on suspension, the appellant was summoned before the Head of Administration on 17-5-1991 where he was informed that his appointment had been terminated. He was not given any letter by the defendant to the effect that his appointment had been terminated. His appointment was terminated because of the allegation of stealing of pipes. The appellant’s contract of service with the respondent is contained in a document exhibit ‘G’ which the appellant alleged the respondent did not comply with in terminating his appointment. The appellant was on a monthly salary of N2,500.00 at the time his appointment was terminated. By the contract agreement, the appellant was entitled to three months notice or the payment of three months’ salary in lieu of such notice on the termination of his employment. On these undisputed facts, the first issue for determination as submitted by the appellant is whether the learned Justices of the Court of Appeal Benin Division were right in holding that the appellant’s appointment was effectively brought to an end on 17-5-1991 notwithstanding failure of the respondent to give notice or payment of salaries in lieu of notice. On the first issue for determination, the learned counsel for the appellant submitted that the respondent not having led any piece of evidence in support of its statement of defence, the facts contained therein on the authority of the cases of Okafor v. Dumez (Nig.) Ltd. (1998) 13 NWLR (Pt. 580) 88 at 95 and Gamboruma v. Bomo (1997) 3 NWLR (Pt. 495) 530 at 543, are deemed abandoned thereby leaving the evidence adduced by the appellant unchallenged. Learned counsel pointed out that in the termination of the appellant’s employment, the respondent failed to comply with the conditions of employment binding on the parties as to the manner of the termination of the contract of employment. Citing the case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 605, learned counsel emphasized that the contract of service between the parties in this case being in writing, the termination of the appellant’s appointment also ought to have been in writing and that in the absence of the letter of termination, the result ought to have been that there was no termination at all as found by the trial court. On the position of the law that a declaration to the effect that a contract of service still subsists will rarely be made, learned counsel for the appellant insists that the present case comes within the exceptions in special circumstances mentioned in the case of Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 at 537.
Learned counsel to the respondent however referred to paragraphs 10, 13, 26,27 and 28 of the appellant’s amended statement of claim, paragraphs 1,5 and 6 of the respondent’s amended statement of defence and the evidence adduced by the appellant in support of the averments in the amended statement of claim and submitted that the fact that the appointment of the appellant was terminated on 175-1991, had been established by the appellant himself and admitted by the respondent. Some of the cases relied upon in support of this argument are Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 1 All NLR (Pt.1) 460; Okagbue v. Romaine (1982) All NLR 111 and Solana v. Olusanya (1975) 6 SC 55 at 62. Learned counsel then observed that the appellant in his arguments in support of this issue, has not faulted any of the findings or pronouncements of the Court of Appeal of its reasons for allowing the appeal before it and setting aside the judgment of the trial High Court. He pointed out that although it is not the practice for any appellate court to interfere or disturb a finding of fact by a trial court, where the finding is not supported by evidence on record or where the finding is perverse, the appellate court has a duty to interfere if the decisions in Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 and Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31 at 56, are taken into consideration. On the failure of the respondent to comply with the terms of exhibit ‘G’ to terminate the employment of the appellant in writing by giving appropriate notice, learned counsel submitted that the failure to comply with exhibit ‘G’ by the respondent amounted only to a breach of the contract of employment and no more because the termination of the appellant’s employment had brought to an end the relationship of master and servant between the appellant and the respondent.
In the determination of this issue, I need to emphasize the bindingness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are, invariably, the guide to its interpretation. On this premise, the material question is; what did the parties in the instant case agree with respect to the termination of the contract of service The answer to this question of course points to the provisions of exhibit ‘G’ which provides in clause II as follows:
“11. You, or we, shall have the right at any time 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 on the completion of five years of service, the period of notice shall be three months or three months’ salary in lieu of notice.”
Clause 11 of exhibit ‘G’ therefore gave both appellant and the respondent equal rights to terminate the employment of the appellant at anytime by giving the prescribed notice or paying appropriate salary in lieu of notice. From the evidence adduced by the appellant who had served the respondent for a period of more than five years, the respondent ought to have given the appellant three months’ notice or three months’ salary in lieu of notice upon the termination of the appellant’s employment. It is not in dispute between the parties that the appellant was neither given three months notice nor three months’ salary in lieu of notice on the termination of employment by the respondent on 17-5-1991. This means the termination of the appellant’s employment was in breach of the contract between the parties in exhibit ‘G’. What then is the appropriate remedy available to the appellant in law. While the trial High Court saw the existence of special circumstances in this case to justify granting the appellant’s relief of specific performance of his contract of service by ordering his reinstatement to the service of the respondent, the court below on appeal before it against the decision of the trial High Court, saw otherwise.
This issue has been dealt with exhaustively in the judgment of the court below. The traditional common law rule which has been adopted and applied in many decisions of our courts in this country is that the courts will not grant specific performance in respect of breach of contract of service. In Rigby v. Connol (1880) 14 Ch.482, Jessel MR said:
“the courts, as such have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant, or whether they are agreements for the purpose of pleasure, or for the purpose of specific pursuits, or for the purpose of charity or philanthropy.”
In Vine v. National Dock Labour Board (1956) 1 All ER I, Viscount Kilmur expressed the common law view that in the ordinary case of master and servant,
“…if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract.”
The position of the law therefore is that where there has been a purported termination of a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made.
See Bankole v. N.B.C. (1968) 2 All NLR 372 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 612 where Oputa JSC had this to say on the subject of termination of master and servant relationship under a contract of service.
“The law regarding master and servant is not in doubt. There is also no doubt that the contract of master and servant is subject of both statutory and common law rules. By and large, the master can terminate the contract with his servant at anytime and for any reason or for no reason at all. But if he does so in a manner not warranted by the particular contract under review, he must pay damages for breach.”
As a general rule, reinstatement as sought by the appellant as one of his reliefs in the present case, is not ordinarily the remedy for breach of contract of service. Specific performance or reinstatement is generally not the remedy in respect of personal service. Special circumstances will be required before such a declaration is made and its making will usually be in the discretion of the court. Several decisions of this court in which this state of the law was dealt include Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 559: Shitta Bey v. Federal Public Service Commission (1981) 1 SC 40 and Ewarami v. African Continental Bank Ltd. (1978) 4 SC 99. Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship. Equally so where a special legal status such as a tenure of public office is attached to the contract of employment. While it cannot be said that what may amount to special circumstances is exhaustive, in the present case having regard to the evidence on record, I fail to see any special circumstance to warrant such declaration of specific performance of the contract of service being made in favour or the appellant as was done by the trial court. I therefore entirely agree with the court below in setting aside the judgment of the trial court. In other words, the court below was quite right in holding that the appellant’s appointment was effectively brought to an end on 17-5-1991 notwithstanding failure of the respondent to give three months notice or payment of three months’ salary in lieu of notice. Although by not leading any evidence to support its amended statement of defence, the respondent as defendant, It the trial High Court was deemed to have rested its case on the case as proved by the appellant as plaintiff on his pleadings and evidence, it is quite clear from several paragraphs of the amended statement claim of the appellant earlier quoted in this judgment, particularly paragraph 10 thereof which unambiguously pleaded the termination of the appellant’s employment on 17-5-1991, the appellant himself had accepted the fact that he was no longer in the service or the respondent. This fact which was admitted by the respondent in paragraph one of its amended statement of defence was further confirmed in the appellant’s evidence-in-chief and under cross examination. Therefore from the case presented before the trial court by the appellant, the issue of the termination of his employment on 17-5-1991 and the fact that the termination was not done in accordance with the agreed procedure under clause 11 of the contract of service exhibit ‘G’ by giving him three months notice or three months’ salary in lieu of notice had been fully established by him. To say it differently, the termination of the appellant’s employment was done in breach of the contract of service between him and the respondent resulting in the respondent being liable for damages for the breach.
This brings me to the second and third issues for determination in this appeal which are whether in all the circumstance of this case, the proper measure of damages the appellant is entitled to, is three months salaries in lieu of three months notice and whether failure of the court below to adequately consider the legal consequence of Boral termination in the circumstances of this case occasioned a miscarriage of justice. According to the appellant, the proper measure of damages he was entitled to is as contained in the alternative judgment of the trial court being the sum of N16,200,000.00 representing appellant’s salaries from 1991 until retirement consistent with the subsisting applicable conditions of service. By this stand, the appellant seemed to have put aside the fact of the termination of his employment relying on the case of Latchford Premier Cinema Ltd. v. Ennion (1931) 2 CH. 409. Learned counsel to the appellant submitted that the court below was wrong in setting aside the damages awarded to the appellant by the trial court because this case is distinguishable from the cases of Western Nigerian Development Corporation v. Abimbola (1966) 1 All NLR 159 and G. B Olivant (Nig.) Ltd. v. I. B. Agbabiaka (1972) 2 SC 137 at 144, relied upon by the court below. Concluding his argument without visiting the appellant’s complain of the alleged miscarriage of justice in the decision of the court below against the appellant, learned counsel pointed out that this case stands on its own and same is bravely different from the recognizable facts of all decided cases of master and servant relationship ever decided by our courts and urge the court to allow the appeal.
For the respondent, it was contended that the argument of the appellant predicated on the view that after the appellant’s employment was on his own showing terminated on 17-5-1991, he continued to remain in the employment of the respondent, entitled to salaries and allowances until his retirement, is not the correct position in law. Referring to the judgment of the court below on the question of damages, learned counsel agreed with that court that having found the trial court did not award damages on any correct legal basis, the court below was under a duty to interfere with the award of damages and make its own assessment on the evidence on record as was done in Ekpe v. Fagbemi (1978) All NLR 107; Obere v. Eku Baptist Hospital (Board of Management) (1978) All NLR 155. In supporting the decision of the court below to award the appellant N7,500.00 being his three months salary in lieu of notice as provided in the contract of service exhibit ‘G’, learned counsel said that the court in doing so was guided by the principles laid down in the decisions of this court on assessment of damages in cases of wrongful termination of employment. The cases are Western Nigeria Development Corporation v. Jimoh Abimbola (1966) 1 All NLR 159; G.B. Ollivant (Nig.) Ltd. v. Agbabiaka (1972) 2 SC 137 and Nigeria Produce Marketing Board v. Adewunmi (1972) 1 All NLR (Pt. 2) 433, which are not only applicable to the ordinary common law case of master and servant relationship as disclosed in the present case but also binding on the court below.
In the present case, the damages as itemized in the appellant’s amended statement of claim in paragraph 36 earlier quoted in this judgment shows quite plainly that the items being claimed are based on the fact that the appellant would have remained in the service of the respondent for about 14 years from 1991, the date of the termination of his employment, to 2005, the year he would have retired from the service. This position cannot be correct because that is not in accordance with the principle on which damages for wrongful termination of employment are assessed. In the case of The Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111 at 117; (1972) NSCC 662 at 665, this court (Per Fatayi Williams JSC (as he then was) held –
“In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract [see Beckham v. Drake (1849) 2 HLC 579 at pp. 607-608]. Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice bearing in mind that it is the duty of the plaintiff to minimize the damages which he sustains by the wrongful dismissal.”
See also Western Nigeria Development Corporation v. Jimoh Abimbola (1966) 1 All NLR 159; G.B. Ollivant (Nig.) Ltd. v. Agbabiaka (1972) 2 SC 137 and Nyong Emmanuel Obot v. Central Bank of Nigeria (1993) 8 NWLR (Pt. 310) 140 at 162. Applying the law as laid down in these decisions on assessment of damages for wrongful dismissal or wrongful termination of employment as happened in the instant case, the appellant was only entitled to the amount of salaries and allowances he would have earned within the period of notice of three months he would have been entitled to under clause 11 of exhibit ‘G’ containing the contract of service binding on the parties. As the appellant only pleaded his monthly salary of N2,500.00 without pleading other monthly allowances he was entitled to, the court below was quite in order in awarding him three months salary in lieu of notice which came to the sum of N7,500.00 based on the evidence adduced by the appellant himself.
Although I am quite aware that it is not the practice of an appellant court to interfere with or disturb a finding of fact by a trial court, the appellate court is quite justified and in fact is enjoined by law to interfere with such findings where they are not supported by the evidence on record or where they are perverse or in violation of some essential principles of law or procedure so substantial enough to lead to a miscarriage of justice if left uncorrected. In the instant case, the judgment of the trial court is indeed very far from the evidence adduced before that court and as such the court below in exercise of its powers on appeal against that judgment, was duty bound to interfere by allowing the appeal and setting aside the judgment. That duty performed by the court below was perfectly sanctioned by the decisions of this court in Adimora v. Ajilo (1988) 3 NWLR (Pt. 80) 1 and Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31 at 55-56.
In the final result, this appeal fails and the same is hereby dismissed.
The respondent shall have N10,000.00 costs against the appellant.
SC.276/2001
