Nigerian Railway Corporation V. Dr. Babatunde Odemuyiwa (1974)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
In Suit No.LD/475/70, tried in the High Court of Lagos State, George, J. gave judgment in favour of the plaintiff whose claims against the defendant were as follows:
“1. Declaration:
(a) That the act of the defendant in suspending plaintiff from duty on half-pay and withdrawing his entitlements to car basic allowance with effect from February, 1970 is unlawful.
(b) That Plaintiff is entitled to full salary and car basic allowance for the month of February, 1970 until the date of judgment in this suit and for such period as he may be in the employment of the Defendant.
- Special Damages:
(a) For car basic allowance at 16pounds per month from the month of February, 1970 up to date of judgment in this suit.
(b) In the sum of 678pounds 14shillings being portion of salaries due to the plaintiff from February, 1970 to June, 1970 inclusive which has been unlawfully withheld by the defendant and salaries to be calculated due to the plaintiff up to date of judgment in this suit.
- General Damages:
In the sum of 5,000pounds for inconvenience suffered by the plaintiff as a result of unlawful suspension from duty”.
It is common ground that the plaintiff was at all material times a medical practitioner in the service of the defendant corporation; that, on February 17, 1970 (a public holiday) the plaintiff was “on call” (which meant that he did not have to be in the hospital all the time but could be sent for at any time there was an “emergency case”); that, after a staff nurse had sent for him and later the Principal Medical Officer had written a letter summoning him to come to the hospital to attend to patients with various types of serious illness, the plaintiff did not come up on the ground that he was himself too ill to travel from his home; that, on February 18, 1970, the Principal Medical Officer, Dr. Ephraim, purported by a telegram to suspend the plaintiff “from duty on half pay forthwith till further notice for disobedience of official instruction”; that, on the same day, Dr. Ephraim informed the plaintiff of his suspension by letter and also wrote to give the same infomation to the General Manager of the defendant corporation who then instructed the Assistant General Manager to inform and request approval from the Statutory Corporation Service Commission which, on February 21, 1970, replied approving the suspension; and that, after studying all the relevant papers submitted to it by the defendant corporation, the Commission directed the immediate recall of the plaintiff but on a reduced salary (from 2,200pounds per annum to 1,890pounds per annum) for one year with effect from May 21, 1970. A copy of this last letter from the Commission was never received by the plaintiff who, therefore, instituted the present action against the defendant corporation.
The plaintiff claims that he was ill on February 17, 1970 and that he could not make a telephone call from his house that day and as this was not contradicted by the defendant, the learned trial judge found both to be true. He also found that the Statutory Corporation Service Commission could not validly delegate to the defendant corporation their disciplinary power over the plaintiff and that, in any case, the defendant corporation acted contrary to their instructions in exhibits K, Land M in purporting to suspend the plaintiff as they did. The learned trial judge observed:
“It is obvious that at the time he wrote exhibit G the Principal Medical Officer did not contemplate dismissal nor had he investigated the complaint before purporting to suspend the plaintiff.
Before suspending the plaintiff, neither the Principal Medical Officer, nor the General Manager gave him an opportunity of being heard.”
He accordingly granted all the plaintiff’s claim as per his writ, including the award to him of 1,000 as general damages. From this decision, the defendant corporation has appealed to this Court on the following six grounds:
“(1) The learned trial judge erred in law in holding that the provisions of section 5 of the Statutory Corporation Service Commission Decree No. 53 of 1968 and of the Nigerian Railway Corporation Standard Conditions of Service Orders 409(a) and 411 did not support the suspension or interdiction of the Plaintiff/Respondent.
(2) The learned trial judge erred in law in holding that the Statutory Corporation Service Commission cannot delegate the power to suspend or interdict the plaintiff to the defendant or its Chief Executive Officer, or if it had not complied in the exercise of such power with the procedure laid down in the Statutory Corporation Service Commission Circular marked exhibit ‘L’ and ‘M’ and thereby came to the wrong conclusion in law, that the plaintiff’s suspension was null and void.
(3) The decision cannot be supponed having regard to the weight of the evidence.
(4) The learned judge misdirected himself on the facts in holding that the plaintiff was not absent from duty even though he found as fact that he was rosted for duty on 17th of February, nevertheless the learned judge held that the provisions of sections 409 and 411 of Exhibit ‘A’ could not be invoked to support the suspension of the plaintiff, and thereby came to a wrong conclusion in law that the suspension is wrongful.
(5) The learned judge misdirected himself on the question or issue of the nature of the act of delegation of powers, in that, he held that delegation of power by the Statutory Corporations Service Commission was a judicial act, since delegation is an administrative act, were the power of suspension not have been validly delegated to the General Manager, the exercise by the Commission of that power was nevertheless valid and lawful, and the learned trial judge, therefore, misdirected himself in law that the suspension of the Respondent by the Statutory Corporations Service Commission was wrongful and invalid.
(6) The learned trial judge erred in law in awarding general damages to the Respondent, when such damages could not have been awarded in an action for breach of contract of employment, such an action being analogous to an action for wrongful dismissal, in which general damages could not be awarded in law”.
Mr. Akande, learned counsel for the appellant, argued Ground 6 first and at some length. His main contention is that the learned trial judge was wrong in law to have awarded general damages of 1,000 in addition to the special damages also awarded in respect of loss of earnings and other financial losses there specified. He cited in support Ezeani v. Ejidike (1964) 1 All N.L.R. 402 in which this Court held that the plaintiff in that case could not claim for both special and general damages in the same action, as we there considered that to do otherwise would be against the principle of granting double compensation for one and the same wrong. But the Court was there dealing with an action in conversion for the wrongful removal of materials; it is not a case of master and servant relationship, as it is in the present case. The rule against double compensation is, however, of general application in all proper cases. We were also referred to Western Nigerian Development Corporation v. Abimbola S.C. 37/1965 decided on June 3, 1966, unreported, in which the claim to general damages was disallowed in circumstances in which the special damages also awarded were regarded as adequate. Learned counsel in sum maintained that the plaintiff’s action for wrongful suspension, like an action for wrongful dismissal, is rooted in contract and cannot as such attract both special and general damages. His attempts to argue Grounds 1 and 2 in defence of the purported suspension of the respondent by the appellant proved unsuccessful and he decided to abandon the other grounds of appeal. Since we saw no merit in these grounds of appeal, we called upon counsel for the respondent to reply to the argument of counsel for the appellant about the issue of general damages awarded by the learned trial judge.
Mr. Cole, learned counsel for the respondent, contended that the respondent’s action was founded not in contract, but in tort, and that the learned trial judge was right to have awarded the 1,000 general damages to the respondent. He argued that there was no master and servant relationship between the appellant and the respondent at the time of the purported suspension, and referred to section 4 of the Decree No. 53 of 1968 which gave the Statutory Corporation Service Commission the power of appointment, promotion, dismissal, discipline, and so on. We do not see any merit in this line of argument.
In the first place, the plaintiff/respondent claimed in paragraph 1 of his Statement of Claim to be the servant of the defendant/appellant. In the second place, the judgment appealed from proceeds on the basis of an action for wrongful suspension of the plaintiff by the defendant. In the third place, the Decree No. 53 of 1968 came into force in 1969, although the subject-matter of the complaint was done under the previous employment of the plaintiff with the defendant which the Decree validated in certain essentials. We think that it is not open to learned counsel for the respondent to argue that the respondent’s action against the appellant was really one for unlawful interference with or procurement of a breach of contract between the Statutory Corporation Service Commission, on the one hand, and the respondent, on the other. When he was asked by the Court whether the appellant could not be regarded as agent of the Commission for the purpose, his reply was that it could not be so regarded since its action was neither authorised nor ratified by the Commission. That the Nigerian Railway Corporation could be regarded as an interloper vis-a-vis its former employee adopted by the Statutory Corporation Service Commission seems to us strange; it is even stranger that the defendant/appellant should be viewed as liable in tort for procuring a breach of the contract which it brought about to begin with and which subsisted until the time of the purported suspension.
We are accordingly of the view that the argument of learned counsel for the respondent that the action sounds in tort is not maintainable if only for the fact that it is a departure from his pleadings and goes to no issue. The learned trial judge never once referred to tort as the basis of his award of the 1,000 general damages; all he said was: “As this is not the usual case of wrongful dismissal between master and servant, the plaintiff is entitled to general damages which I assess at 1,000” Had he purported to base this award on the tort of procurement of a breach of contract, it would still have failed because, as we already hold, the defendant/appellant is not so liable for the alleged tort.
We think that the respondent’s case lies in contract and that, without pronouncing ourselves on whether or not general damages may never be awarded pari passu with special damages in the same suit, we consider that the damages awarded (other than general damages) under the other heads of claim in the plaintiff/respondent’s Statement of Claim are adequate as a fair estimate of the loss arising out of his wrongful suspension by the defendant/appellant.
The appeal, therefore, succeeds in part and it is allowed in so far as the general damages of 1,000pounds are concerned. In the result, the judgment of George, J., is hereby set aside as respects the inclusion of the award of 1,000pounds as general damages, but otherwise confirmed as to all ,the other heads of claim which were granted to the plaintiff/respondent. Since the appeal succeeds in part, we think this is a case in which each side should bear its own costs.
Other Citation: (1974) LCN/1970(SC)
