Nigerian Railway Corporation V. Charles Okwudili Umera (2006)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
This is an appeal against the judgment of the Federal High Court Enugu, delivered on the 15th day of September, 2000.
The plaintiff now respondent took out a writ of summons in the court below in the following terms:
“(1) An order of declaration that the purported retirement of the plaintiff from the defendant’s services on March 10, 1994 “with immediate effect” is null and void and of no effect whatsoever.
(2) An order of declaration that the purported retirement of the plaintiff from the defendant’s services is illegal, and is utterly in breach of the plaintiff’s contract and conditions of service.
(3) An order of declaration that the plaintiff’s purported retirement from the defendant’s services without any hearing whatsoever, is unconstitutional, punitive, and a clear violation of all rules of natural justice as well as infringing the plaintiff’s right to fair hearing as provided for in the Constitution of the Federal Republic of Nigeria.
(4) An order of declaration that the plaintiff is and continues to remain in the service and employment of the defendant.
(5) An injunction to restrain the defendant and its agents and servants from interfering with or disturbing the plaintiff in his employment in the defendant Corporation without due regard to the plaintiff’s condition of service and contract with the defendant.
IN THE ALTERNATIVE
(6) An order on the defendant to pay to the plaintiff the sum of N10,000,000.00 (Ten million Naira) damages to cover plaintiff’s salary for the unexpired period of service up to the time plaintiff shall have been due for retirement, housing and other allowances and other special and general damages for the defendant’s breach of the plaintiff’s contract of service.”
The lower court in its considered judgment stated thus:
” … He gave evidence that he was employed by the defendant into the permanent and pensionable staff cadre in the year 1962. According to him, his said appointment was terminated by a letter he received from the defendant on 10th March, 1994. The letter purported to retire him “with immediate effect.” Plaintiff said as a pensionable staff-member of the defendant, he ought not to have been retired “with immediate effect” but after attaining the age of 60 years; according to the defendant’s Scheme of Service. He was in fact only 52 years old at the time he was compulsorily retired. He tendered a copy of the Scheme of Service of the defendant and it was admitted and marked exhibit “A”.
He tendered the letter of compulsory retirement and it was admitted as exhibit B. Of course, witness also tendered a copy of the pre-action notice he served on the defendant in compliance with section 83 of the Nigerian Railway Corporation Act Cap. 323 Laws of the Federation of Nigeria 1990. Notice was admitted in evidence and marked exhibit “C”. That marked the end of his case.
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It may be the reason why an alternative claim in damages was made by way relief (vi). He is there claiming the sum of N10 million as damages to cover salaries which would have been due up to the time of his retirement including allowances. I must say that no evidence was given of his monthly salary or of his allowances. This ought to have been specifically proved. I have no basis to assess what his salaries or allowances could be. There is no data whatsoever. Be that as it may, by the wrongful and reckless termination, he is entitled to damages. In fact he is entitled to substantial damages having regard to the circumstances. I therefore award the sum of N2 million to the plaintiff as general damage (sic) for the unlawful act of the defendant.”
Dissatisfied with the above decision, the appellant now appealed to this court.
The defendant/appellant formulated two issues for determination, whilst the plaintiff/respondent also formulated two issues for determination in this appeal.
The issues formulated for determination by the defendant/appellant are as follows:
“(1) Whether the learned trial Judge was right in awarding N2,000,000.00 general damages to the respondent when there was no evidence in support of his decision.
(2) Whether the learned trial Judge was right in law in the interpretation he placed on the documents before the court which made him award N2 million general damages to the respondent.”
On his part, the plaintiff/respondent also raised two issues for determination, and they are as follows:
(1) Was the learned trial Judge wrong in law in awarding N2,000,000.00 general damages to the respondent and if the answer is in the negative, was same at variance with the entire case and situation of the respondent?
(2) Was the learned trial Judge in error to have interpreted the documents before him as exhibits and used same arrive at a reasonable award of general damages to the respondent?
The issues formulated by the plaintiff/respondent are more or less the same as those formulated by the defendant/appellant, therefore in the determination of this appeal, I think it will suffice to consider the issues formulated in the defendant/appellant’s brief of argument.
Issue 1:
Learned counsel for the defendant/appellant submitted that it is the duty of the respondent to give evidence in support of his claim for N10,000,000.00 (Ten million Naira) but that he did not give any evidence or tender any document in that respect. He went further in his submission that the trial court’s award of N2 million to the respondent without any evidence of his salary or allowances or any figure thereof is arbitrary and should be set aside. He referred to the following cases:
– Union Beverages Ltd. v. M. A. Owolabi (1988) 1 NWLR (Pt. 68) Page 128 at 136 paragraph B;
– Swiss-Nigerian Wood Industries Ltd. v. Danilo Bogo (1971) U.I.L.R. (Pt. 3) Page 337;
– Judicial Service Committee v. Omo (1990) 6 NWLR (Pt.157) Page 407 at 465;
– Olatunbosun v. N.I.S.E.R. (1988) 3 NWLR (Pt. 80) Page 25.
On the other hand, learned counsel for the plaintiff/respondent stated that the respondent gave uncontradicted evidence in line with paragraph 9(vi) of the statement of claim. He went further that the learned trial Judge examined appellant’s conditions of service and held that the employer/employee relationship was not of ordinary common law but one created by statute. He referred to the following cases:
– Professor Olaniyan & 2 Others v. University of Lagos (1985) 2 NWLR (Pt. 9) Page 599;
– U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) Page 647
Learned counsel also submitted that general damages are those which the law implies in every breach of contract and in every violation of a legal right and it is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded nor proved, as it is generally presumed by law.
He referred to –
– Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) Page 435.
– ACME Builders Ltd. v. KSWB (1999) 2 NWLR (Pt. 590) 288.
He also submitted that the said award of general damages by the trial court was a consequential relief to the reliefs earlier granted and not being challenged by the appellant, there being no appeal against the finding under reliefs in paragraphs 9(i) to 9(iii) of the statement of claim.
Learned counsel for the plaintiff/respondent also submitted that the issue of the salaries and allowances of the plaintiff/respondent could only have been of any consequence if special damages had been awarded.
He went further that where no particulars of special damages are pleaded the court will award general damages only. He referred to –
– Johnson v. Shonowo (1964) L.L.R. Page 51; Samuel Igbe v. The Govemor of Bendel State (1983) 1 SCNLR Page 73.
He finally submitted that the learned trial Judge was correct in law to have awarded N2,000,000.00 (Two million naira) general damages to the respondent.
In the instant appeal, the respondent as the plaintiff in the lower court has the burden of proving his claim for damages. See
– Swiss-Nigerian Wood Industries Ltd. v. Danilo Bogo (supra);
– Amodu v. Dr. Amode (1990) 9 SCNJ Page 1; (1990) 5 NWLR (Pt. 150) 356.
The plaintiff/respondent at the lower court did not tender his letter of appointment, and he did not give evidence of his salary or allowances. The trial court stated that there was no data whatsoever upon which to assess what the salary and allowances of the plaintiff could be.
In Maiden Electronics Works Ltd. v. A.-G., Federation (1974) 1 SC Page 53 it was observed that it is improper in cases of breach of contract to categorise damages by the use of the words “general” and “special”. The distinction though misleading and likely to confuse is still made to determine the nature of the loss flowing from the breach. General damages are such as the law will presume to be direct or probable consequence of the act complained of. Special damages are such as the law will not infer from the nature of the act, and do not follow in ordinary course but are exceptional in character.
See -Akinfosile v. Mobil (1960) NCLR Page 253.
In the statement of claim, the plaintiff/respondent asked for the sum of N10,000,000.00 (Ten million naira) damages to cover his salary for the unexpired period of service up to the time the plaintiff shall have been due for retirement, housing and other allowances and other special and general damages for the defendant’s breach of the plaintiff’s contract of service.
The learned trial Judge at the lower court awarded the plaintiff/respondent the sum of N2,000,000.00 (Two million naira) general damages.
In Denmark Productions Ltd. v. Boscobel Productions Ltd. (1968) 3 All ER Page 513 at 524 it was decided that-
“As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period:
he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can.”
The learned counsel for the defendant/appellant urged this court to set aside the N2 million general damages awarded to the plaintiff/respondent because it is arbitrary. In Obere v. Board of Management, Eku Baptist Hospital (1978) 6-7 SC Page 15 at Page 24 which was cited also in Uwa Printers Nig. Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWLR (Pt. 92) Page110 at 122- the guiding principles upon which an appellate court will act in reviewing an award of damages are now well settled and can be summarized as follows:
“An appellate court is not justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure if it had tried the case at first instance. Before the appellate court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor, or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of damage”.
Also in The Nigerian produce Marketing Board v. A. O. Adewunmi (1972) 11 SC Page 111 at 117; (1972) NSCC Page 662 at page 665, it was held that:
“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. 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 damage which he sustains by the wrongful dismissal.”
The plaintiff/respondent in this appeal was retired from service and he was offered:
(1) Three months salary in lieu of notice,
(2) Gratuity
(3) Pension,
(4) Repatriation allowance,
He also tendered in evidence, a copy of the scheme of service of the defendant. Under paragraph 3408 of the said scheme of Service –
The services of a servant may be terminated according to the terms of the contract or agreement appointing him.
In the preparation of the claim for, as well as in the consideration of an award in the consequence of a breach of contract the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the violation. Apart from damages naturally resulting from the breach, no other form of general damages can be contemplated. The damages recoverable are the losses reasonably, foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss, there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract. Thus the terms “general” and “special” damages are normally inapt in the categorization of damages for the purposes of awards in cases of breach of contract. ”
See – Swiss-Nigeria Wood Industries Ltd. v. Danilo Bogo (supra).
As stated earlier in this judgment, the plaintiff did not tender in evidence, his letter of appointment or agreement by which he was appointed which will show the terms of contract between him and the defendant. The learned trial Judge also stated that he had no data upon which to assess what his salaries and allowances could be.
Chitty on Contracts – Specific Contracts – Twenty-Fourth Edition says as follows at page 3603 paragraph 3604:
“Construction of the contract. Apart from any relevant statutory provision, any question as to the duration of the employment, its terminability by notice, the length of the notice required to determine it, or the time at which notice to determine it may be given, will depend on the intention of the parties, either revealed in the express or implied terms of their contract, or to be inferred from all the surrounding circumstances. If there are express terms relevant to these issues, the problem is one of construction … ”
Having regard to the passage in Chitty on Contract above, in the absence of the express terms of the contract, one will have to fall back on the implied terms of the contract sued upon going by the intention of the parties to it. But in this appeal, neither the express nor the implied terms of the contract were placed before the lower court to enable it determine the appropriate notice required to terminate the contract and thereafter award an amount in damages which should be limited to the amount which the plaintiff would have earned over the period of the notice. See – Amodu v. Dr. Amode (supra).
In view of the foregoing, it is therefore clear that the plaintiff has not placed enough materials before the lower court upon which the award of N2 million damages could be sustained. The learned trial Judge was wrong in law to have awarded the said general damages. The principle he relied upon is not in accordance with the principle upon which damages for wrongful dismissal are usually assessed.
In the circumstance, it is my view that the N2,000,000.00 (Two million naira) general damages awarded to the plaintiff by the learned trial Judge is arbitrary and erroneous, it is hereby set aside.
The question posed in issue 2 as to whether the learned trial Judge was right in law in the interpretation he placed on the documents before the court which made him award N2million general damages to the respondent, in the light of all I have said under Issue 1 above, is no more than engaging in an academic exercise for which I decline to proffer an answer.
In the result, this appeal has merit and it is allowed. The decision of the trial court delivered on 15th day of September, 2000 which awarded N2,000,000.00 (Two million naira) to the plaintiff/respondent as general damages for the unlawful act of the defendant is hereby set aside. In its place prayer 6 of the plaintiff/respondent for damages is hereby dismissed.
The defendant/appellant is entitled to costs of this appeal which is assessed as N7,500.00 (Seven thousand five hundred naira) against the plaintiff/respondent.
Other Citations: (2006)LCN/2017(CA)
