Mobil Producing Nig. Unlt & Anor. V. Udo Tom Udo [pc No. 542] (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the judgment of Okon, J. of the High Court of Akwa Ibom State sitting at Eket in Suit No. HEK/97/2001 delivered on 9/8/05.
The brief facts of the case are that the respondent, a retired soldier and a professional driver, who was the plaintiff at the lower court applied for employment as a driver in the 1st appellant’s company, which was the 1st defendant at the court below. The 1st appellant interviewed and employed the respondent in September, 1991 as a driver. Thereafter he was sent for training in Police Training School, Calabar. After the training the respondent was deployed to the Security section as a driver. He was assigned a Toyota Jeep with Registration number M 220 PNG. On the 6/10/2000, the respondent was involved in an accident with the said vehicle. The respondent alleged that he was beating up by some Mobile Police men working for the 1st appellant. The respondent was subsequently given an orderly room trial and he was found guilty. Sequel to that finding the respondent was issued with a Warning letter dated 26/10/2000 by the 1st appellant. On the 14/12/2000, the respondent was issued another letter dated 1/11/2000, captioned “Suspension from Duty without Pay”.
Aggrieved by the sudden change of fortune the respondent instituted proceedings against the appellant before court below claiming in his paragraph 21 of the further amended statement of claim as follows:
“WHEREOF PLAINTIFF CLAIMS against 1st and 2nd defendants jointly and severally:
(i)(a) Payment of N50 Million General Damages for assault, wrongful detention, wrongful suspension from duty, false accusation of a crimmous charge and acting therein; wrongfully depriving plaintiff of his remuneration and for various losses (emotional, health, financial and physical suffered). Payment of Spy POLICE SALARY of N12, 000.00 monthly from November, 2000 to date of judgment.
(i)(b) Payment of Spy ALLOWANCE calculated at the rate of N52, 000.00 monthly from January, 2001 to date of Judgment.
(i)(c) Payment of SPY ANNUAL ALLOWANCES comprising Leave Allowance of N100,000.00, Christmas Bonus of N26, 000.00, from 2001 to date of Judgment.
(i)(d) Payment of all terminal entitlements calculated at 1st defendant Prevailing rate (i.e. at least N3 Million for every year worked) i.e. from 1991 to date of Judgment. This is in lieu of reinstatement by 1st defendant at final determination of this suit.
(i)(e) Cost of action.
(ii)(a) “SUSPENSION FROM DUTY WITHOUT PAY” – letter dated November 1, 2000 – to plaintiff and –
(ii) A Declaration that 151 defendant’s –
(ii)(b) “WARNING NOTICE” Letter dated 26th October, 2000 – to plaintiff both pleaded above are unjust, unconstitutional, illegal, null and void.”
At the conclusion of the trial, the court below entered judgment in favour of the respondent and awarded him the sum of N6,402,000.00 as damages.
Dissatisfied with the Judgment and orders of the court below the appellants appealed to this court on 3 grounds in the amended notice of appeal filed on 3/4/06. From the 3 grounds of appeal, the appellants distilled three issues for determination in their appellants’ brief dated on 25/4/06 and deemed filed on 18/5/06. The three issues for determination are as follows:
“(a) Whether the respondent was an employee of the 1st appellant.
(b) Whether the disengagement of the respondent from the service of the 1st appellant was proper.
(c) Whether the award and/or level of damages awarded by the learned trial Judge to the respondent had any basis in law and did not violate all known and settled principles on the award of damages for breach of contract.”
The respondent also cross-appealed vide a notice of cross-appeal filed on 8/11/05 on 4 grounds. The respondent in his Respondent/Cross Appellant’s brief dated 29/11/06 and filed on 30/11/06 raised 3 issues for determination in respect of the appellants’ appeal and 2 issues in respect of the 4 grounds of the cross-appeal. The issues are:
“(1) Whether the respondent was a Supernumerary Police Officer per the Police Act or an employee of the 1st appellant?
(2) Whether the employment of the respondent was properly determined by the 1st appellant?
(3) Whether respondent is entitled to his claims as awarded by the trial court or any claim at all?”
The respondent also formulated two issues from the 4 grounds in the cross-appeal. They are:
“(4) Whether respondent is entitled to be paid his Terminal/Separation Benefits at his claimed rate or at all?
(5) Whether respondent is entitled to general damages for assault, wrongful detention, false accusation of a crimmous charge and or, emotional losses?”
Upon being served with the respondent/cross-appellant’s brief, the appellants filed an appellants’ reply brief/response to cross-appeal which is undated but filed on 28/3/07. The appellants replied to the arguments in the respondent’s brief and in respect of the cross-appeal the appellants adopted the two issues for determination formulated by the respondent. The respondent/cross-appellant also filed a reply brief in response to the Appellants’ Reply brief/response to Cross-Appeal dated 10/10/07 and filed on 15/10/07.
On Issue NO.1, the appellants’ counsel, Mr. Seye Opasanya, submitted that the burden of proving that the respondent was at all material times in the appellants’ employment rested upon him. He contended that for the respondent to have a cause-of action it was-absolutely essential to plead in his statement of claim that there was a contract employment between him and the 1st appellant and furthermore, he must spell out the terms of the contract. Counsel submitted that where an action is founded on contract as in the present case, the respondent must give sufficient particulars in his pleadings to enable the contract to be identified and if this is not done then the statement of claim has not disclosed a cause of action. He referred to section 137 of the Evidence Act; and relied on Hauma vs. Akpekme (2000) 7 SC (Pt. 11) 24; Morofunola vs. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 at 519; Bruce vs. Odhams Press Ltd. (1536) 1 All ER 287 at 294; S. D. P. C. (Nig.) Ltd. & 5 Ors. vs. M. D. Onosanya (1976) 1 All NLR (Pt. 1) 425 and Erarami vs. ACB Ltd. (1978) 4 SC 99.
The appellants also contended that the respondent adduced scanty and poor quality evidence at the court below and that the respondent tendered Exhibits ‘B’ and’ C’ which are nothing more than “Passes” which entitled the respondent access to certain parts of the 1st appellant’s Qua Iboe Terminal. The appellants argued that they adduced credible evidence to show that the respondent was a Supernumerary Police Officer. He referred to the evidence of DW2 and Exhibits ‘Q’, ‘Q1’, ‘V’, and ‘V1’ and concluded that the trial Judge was wrong to prefer mere oral evidence adduced by the respondent to the various documentary evidence tendered by the appellants.
Lastly, counsel submitted that the question of the status of Spy Police is a strict question of law which cannot be conceded by any action or in actions of the 1st appellant. He relied on Onu vs. Agu (1996) 5 NWLR (Pt. 451) 670 and Bello vs. Eweka (1981) 1 SC 101.
On Issue NO.2, Mr. Opasanya submitted that the employer has the right to bring the appointment of his employee to an end for any reason or no reason at all. Relying on Idoniboye-Oba vs. N. N. P. C. (2003) 2 NWLR (Pt. 805) 589 SC and Mobil vs. Assan (2003) 6 NWLR (Pt. 816) 308, counsel submitted that if at all there was any master-servant relationship between the 1st appellant and the respondent, such was terminable by the 1st appellant giving to the respondent a month’s notice or allowances payable to the respondent for that period in lieu of notice. He pointed out that the 1st appellant complied with the provisions of section 18(5) of the Police Act when it sent a letter dated 01/11/2000, i.e. Exhibit ‘T’ in which the 1st appellant informed the Commissioner of Police, Akwa Ibom State, that it no longer required the services of the respondent,. The Commissioner of Police replied through Exhibit ‘U’ dated 22/07/03 where he consented to the withdrawal of the respondent from the services of the 1st appellant. He concluded that by the provisions of section 18(5) of the Police Act, upon expiration of Exhibit ‘T’, the services of the officer shall be withdrawn. That being the case the services of the respondent came to an end automatically by the force of the statutory provision from no later than 02/02/2004.
On issue No. 3, Mr. Opasanya submitted-that-the award of N4,386,000.00 must fail because, the respondent was not an employee of the 1st appellant.
He relied on the provisions of section 22(3) of the Police Act, Cap 359, LFN 1990, which according to him renders the respondent ineligible for any pension, gratuity or annual allowance. Alternatively, counsel relied on Idoniboye-Oba vs. N. N. P. C. (supra) and submitted that in case of breach of contract of employment, the employee’s remedy lies in damages calculated on the basis of what he would have earned for the period of notice agreed for ending of the employment. Counsel argued that applying the above principle, the highest amount the respondent should have been awarded is the sum of N12,000.00 being the undisputed amount of monthly salary paid to the respondent by the Nigeria Police.
He contended that the trial Judge gave judgment against the 2nd appellant who was not the employer of the 1st appellant and urged the court to upturn all monetary awards made against the 2nd appellant.
Lastly on Issue NO.3, it was contended that the respondent who claimed special damages has the burden to strictly prove his claim but the respondent failed to meet the required proof for the award of special damages. He relied on S. P. D. C. vs. Tiebi (1996) 4 NWLR (Pt. 445) 557.
The respondent’s counsel, U. D. A. Imeh, Esq. pointed out in Issue No. 1, that the appellants had raised the issue of the respondent’s statement of claim not disclosing a cause of action at the lower court both by Notice of Preliminary objection and by motion. The issue was decided in favour of the respondent at pages 8, 9, 161 – 188 of the record of proceedings. He pointed out also that the appellants did not appeal against the ruling of the court below, therefore they cannot resurrect it as they are estopped by law. He then urged the court to strike out paragraphs 13 and 14 of the appellant brief. He referred to Okotie-Eboh vs. Manager (2005) 1711 FWLR (Pt. 241) 277 at 310 and Adebayo vs. Shogo (2005) All FWLR (Pt. 253) 739 at 755.
Counsel pointed out that the trial court stated the respondent’s claim, recapitulated the evidence of each party, summarized them stated the issues for resolution examined and resolved them and made its own findings at pages 262 – 296 of the record. He then submitted that no more is required of the court below. He relied on A. C. Ltd. vs. N. N. P. C. (2005) All FWLR (Pt. 270) 1945 at 1977 and GEKPE VS. ALOKWE (2001) FWLR (Pt. 47) 1013 at 1024 on this point.
Mr. Imeh also contended that cases are not won by number of witnesses or documents but by quality or probative value of the evidence adduced by a party. He pointed out that in view of the unequivocal denial of the respondent that he was a Supernumerary Police Officer but an employee of the 1st appellant, the onus was on the appellants to prove their case that the respondent was a Supernumerary Police Officer, which in this case, includes application to the Inspector-General of Police, approval by the President, direction by Inspector-General of Police and conformity with Police Regulations. He relied on I. M. N. L. vs. Pegofor Industries Ltd. (2005) All FWLR (Pt. 270) 2018 at 2028. The appellants failed to lead evidence to satisfy the sections of the Police Act namely; Section 18(1), (2), (4)(a) & (b) and 18(7) of the Police Act and Regulations 72,76, 77, 82, 85, 87, 89, 90, 94, 95, 96, 97, 98, 99, 105 and 106 of the Police Regulation. Counsel argued that the respondent pleaded facts and led evidence to prove that there was an employer and employee relationship between himself and the 1st appellant and that employment can be imputed in the circumstance.
On Issue NO.2, learned counsel submitted that though the appellants deny being responsible for respondent’s salaries in paragraph 42 of the brief,that is contrary to their Exhibit M, N, O, Q, Rand the evidence adduced at pages 230 – 234.
Learned counsel pointed out that the respondent has not been served with any letter of termination of his appointment, therefore the purported unilateral termination of the respondent’s appointment is invalid. He relied on Offoelo vs. N. E. P. Plc. (2005) All FWLR (Pt. 285) 245 at 561. It was also contended that by the issuance of Exhibit’S’ and Exhibit ‘F’ the respondent was fully punished for the alleged offence committed on 6/10/2000. The respondent was warned to refrain from any similar offence within the period of one year. Learned counsel for the respondent argued that after the adjudged warning, to mete any other punishment to the respondent for the same offence would be unfair. He was also of the view that the respondent’s employment was wrongfully determined because Exhibits ‘G’ (suspension letter) and Exhibit ‘T’ (the withdrawal letter) on the same 1/11/2000 were a -direct breach on the terms stated in Exhibit ‘F’ and-are -not provided for in Exhibit ‘L’ which is the handbook of the 1st appellant. Moreover, Exhibits ‘T’ and ‘U’ were not copied or served on the respondent, therefore, his employment has not been properly brought to an end.
On Issue NO.3, Mr. Imeh relied on Busari vs. Edo State Civil Service Commission (1999) 4 NWLR (Pt. 599) 368; Iderima vs. R. S. C. C. S. (2005) All FWLR (Pt. 285) 452, and submitted that the respondent is entitled to his full earnings up to the date of judgment of the lower court (i.e. N4,386, 500.00) up to the final determination of this appeal or until proper Notice or termination of his employment is served on him.
He furthered that the court below was right to award general damages of N2 million to the respondent because damages follow breach of contract or a wrongful act. See Osun State Government vs. Dawami Ltd. (2003) NWLR (Pt. 818) at 102; A. B. Ltd. vs. Asaolu (2005) All FWLR (Pt. 270) 2132 and Jambo vs. Wickliffe (2005) All FWLR (Pt. 251) 278.
On the award of cost of N15,000.00 Mr. Imeh submitted that it in no way meets the respondent’s expenditure on filing of process alone. He concluded that the court should uphold the sum of N6,402,000.00 awarded by the court below as at 9/8/05 and this court should further order the appellants to pay the respondent his earnings up to final determination of this appeal or until notice is given.
The appellants in their reply brief attacked paragraphs 12 and 14 of the respondent’s brief of argument and submitted that it is at variance with his pleadings and an attempt to set up a new case on appeal. Also, that the respondent’s attack on Exhibit ‘V’ in paragraphs 19 – 22 of his brief is a fresh point and ought not to have been raised without leave of court. Appellant’s counsel referred to Fatunbi vs. Olanloye (2004) 6 – 7 SC 68 – 86; Lipede vs. Shonekan (1995) 1 NWLR (Pt. 374) 668 and Ibrahim vs. Balogun (1999) 7 NWNR (Pt. 619) 214. Counsel concluded that no issue was joined or fought by the parties on whether appointment of the respondent as Spy
Police was in compliance with the Police Act have given careful consideration to the issues formulated for determination by the parties in their respective briefs of argument in this appeal. I observed that the respondent adopted the 3 issues formulated by the appellants. That being the case I shall rely on the issues formulated by the appellants for the determination of this appeal.
On Issue NO.1, the parties joined issues on the employment status of the respondent. While the respondent claims to be an employee of the 1st appellant in paragraphs 3 and 4 of the further Statement of Claim, the 1st appellant in paragraph 2 of the Further Amended Joint Statement of Defence claim that the respondent was an employee of the Nigeria Police.
It is important that I preface this judgment with the issue whether the respondent established a reasonable cause of action in his pleadings before the trial court. A careful perusal of the records show clearly that this same issue was raised before the trial court both by Notice of Preliminary Objection (see pages 8 and 9 of the record) and by motion on notice. This issue was keenly contested at the court of trial and resolved. See pages 161 to 187 of the record. At page 186 of the record the trial court held as follows:
“… A reasonable cause of action has been explained to mean a cause of action which when only the allegations in the statement of claim are considered, has some chance of success. See the case of Dantata vs. Mohammed (2000) 7 NWLR (Pt. 664) 176.
I hold that the averment in the amended statement of claim have (sic) disclosed a reasonable cause of action.”
See page 186 lines 24 – 33.
Curiously enough, the appellants did not appeal against the Ruling of the trial court. The appellants are- therefore estopped by law from resurrecting the same issue again. In Iyoho vs. Effiong (2007) 11 NWLR (Pt. 1044) 31 at 55, the Supreme Court held that: “A decision of court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding.”In the circumstance, I shall discountenance the paragraphs aforesaid.
On the issue of the respondent’s comment on Exhibit ‘V’, I observed that it was the appellants themselves that raised the issue of Exh. ‘V’ in their brief. They exposed themselves to the comments from the respondent. Being a statutory provision it was not necessary for the respondent to plead the sections and regulations of the Police Act. Only material facts are pleaded not law, statutory provisions or regulations. See Adewole vs. Adesanoye (2004) 12 NWLR (Pt. 887) 435.
Now, the issue whether the respondent is an employee of the 1st appellant or a Supernumerary Police Officer is the real issue in the, appeal and the fulcrum on which this appeal revolves. I shall therefore carefully consider Issue No. 1 in some detail.
Firstly, the respondent in paragraph 4 of his further amended statement of claim and in his evidence in court established clearly that he applied to the 1st appellant who in turn interviewed him and employed him as a driver in September 1991. The respondent’s main duty for which he was employed was simply put, driving and indeed that was all he did in his employment with the 1st appellant.
Secondly, it is very significant to note that the respondent was not a Supernumerary Police Officer to the 1st appellant. Though the appellants pleaded in their further amended joint statement of defence that the respondent was not their employee but a Supernumerary Police Officer. The respondent in his reply and evidence stoutly denied that allegation. Respondent testified that it was not until the 22nd day of June, 1992, that he and 50 other persons were sent for training at the Police College, Calabar. That is almost 10 months after he was employed by the 1st appellant as a driver.
The evidence of the respondent is supported and confirmed by the evidence of PW2, Annete Ntia, before the court below, which is at page 218, lines 16 to 27 of the record of proceedings. He testified as follows:
“… I was trained along with the plaintiff at Police Training School, Calabar. The 1st defendant sent us for that training. We worked for the 1st defendant for a long time before we were sent to the Police Training School for basic police training. The 1st defendant gave us a list of people who were to proceed for that training. Before and after the training we were not police officers and we are not Police Officers. At the Police Training School, the Commandant showed us a letter sent by the 1st defendant to the school for our training ”
The above piece of evidence by PW2 was not challenged, controverted or contradicted. The evidence is not of poor quality. When a piece of evidence is unchallenged or uncontradicted by the opposing party who had an opportunity to controvert the evidence, the trial court has no alternative but to believe the evidence. See Okeke vs. Aondokaa (2000) 9 NWLR (Pt. 673) 501 at 516; Omo vs. J. S. C., Delta State (2000) 12 NWLR (Pt. 682) 444 and Otuendor vs. Olughor & Ors. (1997) 7 SCNJ 411.
A Supernumerary Police Officer is a creation of law, under the Police Act, Cap 359, L. F. N. 1990, therefore, only full compliance with the relevant provisions of the Police Act would make the respondent a Supernumerary Police Officer. Facts must be applied to law. It is wrong to work backwards from law to facts. It is the establishment of the facts that comes first before the application of the law. It is trite law that a party who relies on the provisions of a statute as a defence should plead facts relied upon for bringing a particular transaction within the ambit of that statute. See I. M. N. L. Vs. Pegofor Industries Ltd. (2005) All FWLR (Pt. 270) at 2018 at 2028.
At this juncture it is necessary that I reproduce the provisions of section 18(1) and (2) of the Police Act for ease of reference and far clarity.
“(1) Any person (including any government department) who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application therefore to the Inspector- General, stating the nature and situation of the property in question and giving such other particulars as the Inspector-General may require.
(2) On an application under the foregoing subsection the Inspector-General may, with the approval of the President, direct the appropriate authority to appoint as supernumerary police officers in the Force such number of persons as the Inspector General thinks requite for the protection of the property to which the application relates.”
The Police Act is written in simple, plain, unambiguous language and it spells out in the simplest form, the prerequisites for qualification as a Supernumerary Police Officer. In this case the appellants failed woefully to produce any evidence that they complied with the provisions of section 18(1) and (2) of the Police Act.
It is not enough merely to paint to the uniform, or the name tag. A uniform and name tag does not make a Supernumerary Police Officer. The fact that the 1st appellant adapted a circuitous route in paying the salary of the respondent through the Police Force is to no avail. Only a full compliance with the provisions of the Police Act would make respondent a Supernumerary Police Officer.
In the instant case an appeal there is now evidence that 1st appellant made any application to the Inspector-General of Police, stating the nature and situation of the property in question and giving such particulars as the Inspector-General may require. There is now evidence that the Inspector- General of Police, with the approval of the President of Nigeria gave any direction to the appropriate authority to appoint the respondent as a Supernumerary Police Officer. There is also no evidence that the respondent applied to be appointed a Supernumerary Police Officer and there is no evidence that he was conscripted. Furthermore, the 1st appellant is not an agent of the Nigeria Police Force and neither is a recruitment centre for Supernumerary Police Officer.
A careful perusal of the appellants’ further amended joint statement of defence, the oral evidence and the documentary evidence in the case at the court below, reveal the appellants’ non-compliance with the provisions of section 18(1) and (2) of the Police Act.
The appellant relied on the case of S. P. D. C. (Nig.) Plc v. Dino (supra) to support their case that the respondent was a Supernumerary Police Officer. Having carefully gone through the case it is my finding that the facts, issues and circumstances are very different and are clearly distinguishable from the facts of the instant case on appeal. Each case must be considered according to its peculiar facts, circumstances and merit. It is only where the facts and circumstances of a case is in pari materia with another that the ratio decidendi could be applied to it.
There is a world of difference between a person employed as a driver by a company and a Supernumerary Police Officer attached to a company as such. The appellants contended that the fact that respondent was sent on training at the Police College makes the respondent a Supernumerary Police Officer. Without compliance with the provisions of section 18(1) & (2) of the Police Act, the appellants’ submission has no legs to stand.
There is evidence that before the respondent was sent to the Police Training School on 22/6/92, the 1st appellant sent him for training. See Exhibit ‘A’ which is the diploma for Fire Fighting and Fire Prevention training conducted at the premises of the 1st appellant and issued to the respondent by the 1st appellant and dated 18/8/91. Exhibit ‘B’ is the 1st appellant’s Safety Orientation Certificate issued to the respondent dated 31/8/95. Exhibit ‘E’ is a Certificate of Proficiency issued by the 1st applicant on 31/8/95. Exhibit ‘A’ not only confirm that before, 22/6/92, when the respondent and 50 others were sent for training at the Police Training School, the respondent had been in the employment of the 1st appellant since September 1991, it also establish that the 1st appellant had been sending the respondent for different training as evidenced in Exhibits ‘B’ and ‘E’. It is of interest to mention here that the training for which Exhibits ‘A’, ‘B’ and ‘E’ were issued to the respondent by the 1st appellant are not connected with the duties of a Supernumerary Police Officer as stated in section 18 of the Police Act.
More importantly, after each training programme the respondent always returned to his driving duties and he remained there until he received a letter of Indefinite Suspension on 14th December, 2000. At all times material to the employment of the respondent he was under the management and control of the 1st appellant. See Exhibits ‘F’, ‘G’, ‘K’ and’ S’ which not only show that the respondent was a driver for the 1st appellant but that the appellant had complete control over the respondent’s employment, duties and discipline.
It is well settled in contract of employment that services and wages are the twin pillars upon which a contract rests. Exhibits ‘J’, ‘Q’ and ‘Q1′ are the Pay Slips which clearly show the salaries and sundry allowances paid by the 1st appellant to the respondent.
The respondent testified that when the 1st appellant employed him in September 1991, he was not given any letter of employment. The appellants did not deny this allegation rather they alleged in their pleadings that they only had a chat with the respondent. The appellants did not explain what they meant by having a “chat” with the respondent and when they had such a chat with the respondent. None of the appellants’ witnesses testified in support of the allegation. It is settled law that any averment on which no evidence is adduced in support is deemed abandoned. See Uwegba vs. AG, Bendel State (1986) 1 NWLR (Pt. 16) 303. It follows therefore that the appellants have abandoned that allegation.
From all available evidence replete on the record of proceedings, even without a letter of employment being given to the respondent, the employee/employer relationship can easily be imputed in the instant case on appeal.
Where a contract of employment is unwritten as in the instant case, the intention of the parties can be discovered by reference to the oral evidence of the parties and their witness and by facts of the surrounding circumstance of the transaction. The evidence of PW1 and PW2 are available. Exhibits ‘A’, ‘B’, and ‘E’ which are the evidence of the training course organized by the 1st appellant for the respondent are clear evidence in support of the fact that he was an employee of the 1st appellant. Furthermore, Exhibits ‘J’, ‘Q’ and ‘Q1’ clearly show salaries and sundry allowances paid by the 1st appellant to the plaintiff. They include shift, lunch subsidy, turkey, overtime and medical allowances.
The fact that the respondent was called for the purpose of that employment No. 542 Pc Udo Tom cannot derogate from the fact that it has been firmly established that he was employed in September 1991 as a driver.
It is equally significant that from the disciplinary action of the 1st appellant against the respondent, it could be seen that the respondent was never a Supernumerary Police Officer and he was never considered as such by the 1st appellant. The respondent according to DW2 and Exhibit ‘S’ was tried in what the 1st appellant considered as “Orderly Room Trial”. In Exh. ‘S’, it was recommended that the respondent should be seriously reprimanded e and warned. The respondent was subsequently given a letter of warning, that is Exh. ‘F’ dated 26/10/2000.
On 1/11/2000 contrary to the content of the Warning letter, Exh. ‘F’, the 1st appellant also served Exhibit ‘G’ dated 1/11/2000. In Exh. ‘G’, the respondent was told that he was placed on;
“indefinite suspension pending further management action.”
Let us pause for a while to consider and reflect on the content of Exh. ‘G’. The question that arises is, if the respondent was a Supernumerary Police Officer how come it is the 1st appellant that is issuing him a letter of indefinite suspension? How come, the 1st appellant stated that the indefinite suspension is effective pending further management action and not Nigeria Police Force action? This clearly exposed the 1st appellant that the respondent was their employee.
Also on 1/11/2000 the 1st appellant also issued Exh. ‘1’, a letter of withdrawal of service of the respondent. By stating that the separation benefits of the respondent would be worked out and accordingly paid, the 1st appellant was accepting that the respondent was his employee. He would therefore be covered by the 1st appellant’s Employee Hand Book, Exhibit ‘L’, tendered by the appellants themselves. While the disciplinary measures of “Warning” and “Suspension” are contained in article 15.0 at pages 19 to 20 of Exhibit ‘L’ it does not conform with the disciplinary measure prescribed under section 18(3) (d) and (5) of the Police Act.
If as contended by the appellants, the respondent was a Supernumerary Police Officer then all the disciplinary actions against the respondent by the 1st appellant should have-been left to-the Nigeria -Police Force. At this juncture let me ask a rhetorical question, what has the 1st appellant to do with the respondent’s separation benefits if he was a Supernumerary Police Officer? The Police Act specifically provides for disciplinary action against a Supernumerary Police Officer under section 18(3) (d) and (5) of the Police Act and they provide as follows:
“(3)(d) subject to the restrictions imposed by paragraphs (b) and (c) of the subsection and to the provisions of section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.
(5) Where the person availing himself of the services of any supernumerary police officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal territory, to the Inspector-General or, in the case of an officer appointed in respect of a police area within a State, to the Commissioner of Police of that State; and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn.”
It was after the 1st appellant had issued the respondent a “Warning”, Exh. ‘F’ and a letter of “Indefinite Suspension without pay” that it dawned on the 1st appellant to attempt to comply with the Police Act by writing Exh. ‘T’. Exhibit ‘T’ is titled: “Withdraw of Service of Pc Udo Tom”.
Thirdly, there is no evidence that the respondent was ever employed for the purposes of a security guard or security personnel to protect any of the 1st appellant’s property and he never was. Now, section 18(3) (b) of the Police Act provides:
“Every -Supernumerary – Police Officer – appointed under this section:
(a) …
(b) shall be employed exclusively on duties connected with the protection of that property; …”
The phrase “shall be employed exclusively on duties connected with protection of that property” is complete and total. It leaves no room for doubt.
In the instant appeal, there is no evidence from the appellants that the respondent was ever employed or deployed exclusively for duties connected with the protection of the properties of the 1st appellant. The lukewarm submission of the appellants that the respondent was assigned to protect the vehicle he was driving, is to say the least, very ridiculous and derisive. One does not need to be Supernumerary Police Officer to be employed as a driver and a driver need not be a Supernumerary Police Officer to perform his functions. From all indications and all available admissible evidence both oral and documentary, the conclusion to reach is clearly that the respondent was an employee of the 1st appellant.
The appellants also contended that the trial court did not evaluate the evidence of the respondent properly and that the evidence adduced before the trial court is scanty. The evidence comprised of both credible oral evidence and documentary evidence, to wit, Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, ‘J’ and ‘K’. The trial Judge properly and adequately evaluated the evidence adduced by the respective parties in this appeal, considered the submission of counsel and came to his conclusion. See pages 202 – 269 of the record. The trial Judge had done all that was required of him. See A. C. Ltd. vs. N. N. P. C. (supra), and Gekpe vs. Alokwe (supra). In Oyekola vs. Ajibade (2004) 17 NWLR (Pt. 9020) 356 at 385 – 386, it was held that:
“Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court which saw, heard and assessed the witnesses. The Court of Appeal which has not had the same advantage watch the trial court enjoyed of seeing the witnesses and watching their demeanor will only disturb the finding of facts of such a court where it is satisfied that the trial court has made no use of such advantage. Such specific instances where the Court of Appeal will interfere are:
(a) Where there is no evidence to support the findings or the decision of the trial court.
(b) Where the trial court did not make a correct assessment of the evidence before it.
(c) Where the trial court wrongly accepted or rejected any evidence tendered during trial.
(d) Where there has been an erroneous appraisal of facts leading to erroneous conclusions in the case or in effect the conclusion reached is perverse.”
None of the above is manifested in the judgment of the court below.
I am at one with the learned trial Judge when he found at page 289 of the record that:
“The employment of the plaintiff was therefore under Contract of Service for which he was paid by the 1st defendant though circuitously through the Nigeria Police in respect of salaries and certain allowances.”
The finding of the trial Judge is unassailable. I, therefore, resolve Issue 1 in favour of the respondent and I answer the question in the affirmative, that is to say that the respondent was an employee of the 1st appellant.
Issue NO.2 deals with whether the employment of the respondent has been properly determined by the 1st appellant. Sequel to the respondent’s alleged accident, he was tried in what was described as an “Orderly Room”. The report of that “orderly room” trial is contained in Exhibit ‘S’ tendered by the appellants themselves. Exhibit IF’ tendered by the respondent is the outcome of the Orderly Room trial. The relevant portion of Exhibit IF’ reads as follows:-
“You are therefore by this letter warned to refrain from any similar within the period of one year else severe disciplinary measures will be considered against you.”
Exhibit ‘F’ was written, dated and served on the respondent on the 26/10/2000. By Exhibit ‘F’, the respondent had been fully punished by the 1st appellant and he was given one year grace period which would have expired on 26/10/2001 or thereabout. Therefore, by the contents of Exhibit ‘F’ an implied contract not to tamper with the respondent’s employment for one year from 26/10/2000 is deducible and established. But surprisingly 6 days later, precisely 1/11/2000, and without more ado, the 1st appellant issued and served Exhibit ‘G’ on the respondent, which is a letter suspending him from duty.
The relevant portion of Exhibit ‘G’ reads:
“…
Management considered your action inimical to its Health and Safety policy and can no longer tolerate such lapses.
In view of the above Management has decided to place you on indefinite suspension effective immediately pending further Management action.
You are to surrender all the company’s property in your possession including the Identity Card to the Sergeant Administration.”
Now, there is no evidence that after the warning given to the respondent, in Exh. ‘F’ he committed similar or any other offence between 26/10/2000 and 1/11/2000 when Exhibit ‘G’ was written. Clearly the warning issued to the respondent was for a period of one year. But, just 6 days into the one year, Exhibit ‘G’ was written which suspended the respondent from duty indefinitely without pay. It is a travesty of justice for the 1st appellant to subject the respondent to double jeopardy over the same singular offence. No one should be punished twice for the same offence.
It appears that the 1st appellant was desperate and wanted the respondent out of the company or to get rid of him with all haste. The 1st appellant ordinarily should have waited at least for the one year or for the respondent to commit any other offence within the one year period before issuing out another punishment on him. Obviously that is in a bad taste. It is unfair and contrary to natural justice, equity and good conscience. Moreover, the content of Exhibit ‘G’ is contrary to the punishment prescribed in Exhibit ‘S’, the report of the Orderly Room trial which recommended severe reprimand and warning. In my considered view it was unconscionable for the 1st appellant to renege, ignore or disregard Exhibit ‘F’. Certainly the sudden change of mind exhibited by the 1st appellant is unsupportable in law. Since the 1st appellant voluntarily and consciously issued and served the respondent with Exhibit ‘F’ it is estopped from resorting to any other disciplinary action unless and until the respondent committed any other offence within the period of one year. That is not end of the matter. Curiously enough the 1st appellant issued Exhibit ‘T’ captioned “Withdrawal of Service” dated 1/11/2000 and signed by the 2ndappellant. In Exhibit ‘T’, the 1st appellant wrote to the Commissioner of Police, Akwa Ibom State stating that the services of the respondent are no longer required and requested that his services be withdrawn with effect from November 1,2000. In other words both Exhibit ‘G’ (suspension letter) and Exhibit ‘T’ (letter of withdrawal) were issued on the same 1/11/2000. Now, the provisions of section 18(5) of the Police Act provides:
“Where the person availing himself of the services of any supernumerary police officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal territory, to the Inspector-General or, in the case of an officer appointed in respect of a police area within a State, to the Commissioner of Police of that State; and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn.”
Assuming the respondent was a Supernumerary Police Officer, then Exhibit ‘T’ was made by the 1st appellant in flagrant violation of the clear provisions of section 18(5) of the Police Act which requires not less than two months before the services of the respondent can be withdrawn. Ordinarily the two months should start to run when the Commissioner of Police is served with Exhibit IT’. But Exhibit IT’ states that the services of the respondent be withdrawn with immediate effect, i.e. 1/11/2000 in clear violation of section 18(3) of the Police Act. It is not known when Exh. IT’ was served on the Commissioner of Police, Akwa Ibom State.
Surprisingly the reply from the Commissioner of Police came in the form of Exh. ‘U’ written, signed and dated 29/7/2003 almost 3 years later after Exh. ‘T’ was written and daring the pendency of this suit.
Before proceeding further it is significant to note that the Police Act made no provision for letter of “warning” or for “suspension” of a Supernumerary Police Officer.
In other words the 1st appellant considered the respondent as its employee and not as a Supernumerary Police Officer. In conclusion, it is clear that the 1st appellant acted hastily and unfairly when it refused to wait for one year or for the respondent to commit a similar offence or any other offence within one year from the 26/10/08 as per Exhibit ‘F’ before resorting to steps to remove the respondent.
The 1st appellant did not comply with the provisions of the Police Act and neither did it comply with Exh. ‘L’ because the issuance of letter of warning is the 1st step to be followed. Having elected to discipline the respondent by issuing the letter of warning, it was wrong for-the 1st appellant to take other steps to remove the respondent. Thus Exhibits ‘G’ and ‘T’ were unnecessary, uncalled for, premature and hastily issued. Therefore, the employment of the respondent was not properly and validly brought to an end having regard to the facts and circumstances. I, therefore, resolve Issue No. 2 against the appellants and hold that the disengagement of the respondent from the service of the 1st appellant was not proper.
The appellants contended in their brief that the trial court gave judgment against the 2nd appellant and awarded damages against him. The 1st and 2nd appellants were sued jointly and severally. See paragraph 21 of the respondent’s further amended statement of claim. The travails of the respondent is directly traceable to the 2nd appellant. The appellants’ submission is untenable and it is devoid of merit. In paragraph 3 of the further amended statement of claim the respondent pleaded that the 2nd appellant is an employee of the 1st appellant. The appellants made a blanket denial of paragraphs 3-17, 20 and 21 of the respondent’s further amended statement of claim in their amended joint statement of defence. They did not expressly and specifically deny that the 2nd appellant was not an employee of the 1st appellant and they did not define what the relationship of the 2nd appellant is which is divergent or contrary to the averment of the respondent in his pleading.
The appellants in their pleadings conceded that if there was any master and servant relationship between the 1st appellant and the respondent, such was terminable by the 1st appellant giving to the respondent a month’s notice or allowances payable to the respondent in lieu of notice. From the evidence adduced by the respondent uptil the date of the judgment of the trial court, the respondent has not been giving any notice of termination of his appointment. So the trial court was in order when he awarded the claims of the respondent.
I now come to Issue NO.3. The appellants’ counsel contended that the amount awarded by the trial court is outrageous and flies in the face of settled authorities as Idoniboye-Oba vs. N. N. P. C. (supra) and Mobil vs. Assan (2003) 1 NWLR 816 page 308. He submitted that the highest amount the respondent should have been awarded is the sum of N12, 000.00 being the undisputed amount of a month salary paid to the respondent by the Nigeria Police. In my view the appellants must be labouring under a gross misconception. I have firmly held and confirmed that the respondent was not a Supernumerary Police Officer, therefore, the Nigeria Police Force has no control whatsoever on him. The submission of counsel in this respect is a mere straw in the wind that must go with the wind.
Mr. Opasanya also submitted that the respondent was not an employee of the 1st appellant so the award of N4,386,000.00 must fail. On the contrary, the respondent is undoubtedly an employee of the 1st appellant, so the award of N4,386, 000.00 made by the trial court must stand. Furthermore, the appellants’ reliance on the provisions of sections 18, 21 and 22 of the Police Act is misplaced and grossly misconceived as they are inapplicable and irrelevant since the respondent is not a Supernumerary Police Officer.
The trial court declared Exhibit ‘G’, the letter of Suspension, as illegal, unjust, null and void and of no effect whatsoever. Strangely enough, the appellants did not appeal against that declaration. So the appellants must be deemed to have accepted that part of the judgment of the lower court. See Okotie-Eboh vs. Manager (supra) and Iyoho vs. Effiong (supra). Once the suspension is declared null and void, the effect is that the respondent was always and still is a servant of the 1st appellant. In the circumstances, respondent is entitled to all his withheld earnings. The law is that a unilateral termination of contract does not terminate the contract. See Offoelo vs. N. E. P. Plc. (supra). It is trite that a servant is generally entitled to damages in the sum- of the period of Notice. In the instant case on appeal there is no evidence that the respondent was served with any notice of termination and he is not aware of the termination of his employment. The question then is when will the duration of the notice start to run for the purposes of calculating damages? In the circumstance the respondent is entitled to his full earnings up to the date of judgment of the Lower Court. That covers the sum of N4,368, 500.00. See Busari vs. Edo State Civil Service Commission (supra) and Iderima vs. R. S. C. C. S. (supra). It will be recalled that the appellants themselves in Exh. ‘G’ suspended the respondent without pay. The 1st appellant has not uptil the date of judgment, served the respondent with any notice of termination of his employment. It is trite that a servant cannot be foisted on a master but at the same time a master cannot suo motu, terminate the contract without informing the servant. In respect of the general damages of N2 million and cost of action awarded by the court below, the contention of the appellants is that they are excessive. The award of damages is a matter for the trial court and this court would not ordinarily interfere with it. The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of the requisite notice. See Ezekiel vs. Westminister Dedging Ltd. (2000) 9 NWLR (Pt. 672) page 248 at 262 and British Airways vs. Makanjuola (1993) 8 NWLR (Pt. 311) 276. In the instant appeal the various punitive measures metted out to the respondent were based on the allegation that he was involved in a motor vehicle accident because he was drunk while driving. Obviously, this is a stigma on the character of the respondent.
General damages are the kind of damage which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstance of a case. See Omonuwa vs. Wahabi (1976) 4 SC 37 and Yalaju Amaye vs. A. R. E. C. Ltd. (1990) 4 NWLR (Pt. 145) 422 at 450 – 451. It may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded because damages follow breach of contract. See O. S. G. v. Damami Ltd (supra); A.B. Ltd. vs. Asaolu (supra) and Jambo vs. Wickliff (supra). It arises from inference of law and need not be proved by evidence. It is sufficient if it is generally averred.
Now, the measure of general damages in terms of money is a matter for the Judge. It is always necessary for the Judge to make his own assessment of the quantum of such damage. General damages unlike special damages are generally incapable of substantially exact calculation.
They are presumed by the law to be the direct and probable consequences of the act complained of. See Odulaja vs. Haddad (1973) 11 SC 351.In the circumstances the award of N2 million by the trial Judge as general damages is reasonable and cannot be faulted.
Similarly, the award of N15,000.00 as cost of the action is not excessive rather, I consider it reasonable and therefore justified. It is apparent that the paltry sum of N15,000.00 cannot cover the cost of the action which commenced on 8/8/01 and concluded on the 9/8/05, that is a period of four years. I see no merit at all in Issue NO.3 and I resolve it in favour of the respondent and against the appellants.
Having resolved Issue Nos. 1, 2 and 3 against the appellants, it follows that appeal has no merit whatsoever and it richly deserves to be dismissed. I accordingly dismiss this appeal.
I now turn to the Cross-Appeal filed by the Respondent/Cross-Appellant. On the cross-appeal, the main grouse of the respondent/cross-appellant is the failure of the trial court to award the claim for Terminal or Separation benefits at the rate of N3 million per year, and the refusal to order for the award for general damages for assault, wrongful detention, false accusation of a crimonous charge and or emotional loss.
Aggrieved by the decision of trial court the cross-appellant cross appealed to this court on 4 grounds in his notice of appeal filed on 38/5/07. From the 4 grounds of appeal, the respondent distilled two issues for determination in the brief filed on 30/1/06. The two issues have already been stated earlier in this judgment. The appellants/cross-respondents in their brief filed on 28/3/07 adopted the two issues distilled or formulated for determination.
I have carefully considered the briefs of the learned counsel in the cross-appeal, and I agree with the submission of the counsel for the appellant/cross-respondent that the trial court was right not to grant the cross-appellant’s claim for terminal or separation benefits. A claim for terminal or separation benefits is a claim for special damages which must be specifically pleaded and strictly proved. See SOPC (Nig.) Ltd. vs. Tiebo VII (supra) and Warner & Warner International vs. F. H. A. (1993) 6 NWLR (Pt. 298) 148.
The respondent/cross-appellant all through the gamut of the evidence before the trial court did not adduce any evidence as to how he arrived at the sum of N3 million per year. The trial Judge in his judgment at page 295 of the record held that he was unable to find how the respondent/cross-appellant came about the N3 million. The respondent’s/cross-appellant’s bare assertion in his pleadings and testimony without more is not sufficient. He has the duty to specifically prove the claim by adducing concrete evidence in support of it which he woefully failed to do. See Gege vs. Nande (supra). The finding of the trial Judge is infallible. The issue is devoid of any merit, I therefore resolve it against the respondent/cross-appellant.
On Issue NO.5, the main issue here is whether the respondent is entitled to damages for-assault wrongful detention, false accusation of crimonous charge and or emotional losses. The learned counsel for the respondent/cross-appellant relied on the evidence of PWs 1 and 2 and Exhibits ‘F’, ‘G’, ‘K’, “S’ and ‘T’. He also referred to the evidence of DWs 1 and 2 and submitted that the trial court failed in its duty to properly consider this claim.
Learned counsel for the appellant/cross-respondent submitted on the contrary that the cross-appellant failed to prove this claim.
Having carefully examined Issue NO.5, I am of the firm view that the cross-appellant failed to prove this aspect of his claim for 3 main reasons.
Firstly, there is no sufficient evidence in support of the claim. A part from the evidence of the cross-appellant there is no other supporting evidence. The evidence of PW2 on this issue is hearsay because he merely repeated what the respondent told him. DWs 1 and 2 did not testify in support of the respondent’s claim. Therefore, the evidence of the cross-appellant was not credible enough to sustain his claim. It will be most unreasonable for the trial court to accept the mere Ipse Dixit of the respondent and award him the amount claimed. See Onu vs. Idu (2006) 12 NWLR (Pt. 905) and Oyediji vs. Olaniyi (2005) (supra).
Secondly, the law frowns at double compensation and will not allow a litigant who made claims for specific losses suffered by him to add another figure under the head of general damages. SDPC (Nig.) Ltd. vs. Tiebi VII (1996) 4 NWLR (Pt. 445) 657 at 689.
Thirdly, the respondent/cross-appellant at paragraph 21 of his further statement of claim said at the instance of the appellants he was severely beaten by their agents. In his testimony in court the respondent/cross-appellant stated that it was the Mobile Policemen that assaulted him and wrongly detained him. See pages 192 – 194 of the record. This evidence is very important and crucial for the determination of this appeal. By operation of law the Mobile Police men attached to the 1st appellant/1st cross-respondent are members of the Nigeria Police and are under the control and management of the Nigeria Police Force.
There is no evidence from the cross-appellant that the Mobile Police men in question acted on the instructions of the 1st appellant/cross-respondent. In that case the respondent/cross-appellant’s claim can only be sustained against the Nigeria Police and not the 1st appellant/cross-respondents because they cannot be held vicariously liable for the acts of the Mobile police men. See SDPC (Nig.) Plc. v. Dino & Ors. (supra). Therefore, the claim of the cross-appeal must fail. I resolve Issue No. 5 against the respondent/cross-appellant.
Accordingly, this appeal is hereby dismissed. The judgment of the trial court presided-over by Okon J. in Suit No HEK/97/2001 delivered on 9/8/05 is hereby affirmed. Appeal dismissed.
The cross-appeal fails and it is hereby dismissed. Cross-appeal dismissed. I make no order as to costs.
Other Citations: (2008)LCN/2921(CA)
