O. Okwoche V. Nigeria Airways Limited (2002)
LawGlobal-Hub Lead Judgment Report
CHUKWUMA-ENEH, J.C.A.
The plaintiff (appellant) was a former staff of the defendant (respondent), in the Field Services Department as a District Manager, a Grade Level 12 Officer. His appointment was for a misconduct (the details of which are not really material for this appeal) terminated by a letter dated 16/8/85, and admitted in evidence as exhibit ‘A’. The plaintiff was paid his entitlements as showed in items 1, 2 and 4, of exhibit B of 16/8/85. That is, salary and allowances up to and, including three months salary, in lieu of notice and 8 days salary, in lieu of leave, not taken up to and including 16/8/85. To all intents and purposes, the plaintiff was taken to have retired on 16/8/85. By another letter of 6/12/85, otherwise marked exhibit C, the defendant purported to dismiss the plaintiff from its services with immediate effect. Whereupon, the plaintiff instituted this suit, at the High Court of Ikeja Division of Lagos State, and claimed thus:
“(i) An order, setting aside and declaring null and void and of no effect, the purported letter of dismissal written by the defendant to the plaintiff Ref. DOP/S/1540/334 dated 6th December, 1985.
(ii) An order of payment, to the plaintiff by the defendant of end of service gratuity which is 180% of the plaintiff’s annual salary as at 16th August, 1985.
(iii) An order for the payment of pension, to the plaintiff by the defendant calculated at the rate of 46% of the plaintiff’s monthly salary, as at 16th August, 1985, and payable with effect from the 17th August, 1985.”
The plaintiff and the defendant called one witness apiece. The court below in a considered judgment dismissed the plaintiff’s claims against the defendant.
Aggrieved by the decision, the plaintiff/appellant appealed to the court and from the grounds of appeal raised eight issues for determination.
They are as follows:
“1. Having regard to the peculiar and exception fact situation in this case, namely, the former servant suing in respect of a purported dismissal by the former master, who had in unequivocal terms terminated the contract and executed it, was not the remedy of a declaration in the terms maintained appropriate.
- Did the learned trial Judge in holding that the first relief sought, a declaration, is misconceived in law and on the facts not overlook the peculiar features and special circumstances of this case as adumbrated in to wit:
(i) the rules of natural justice;
(ii) of contractual procedure;
(iii) of the status of the office holder, which necessitates the making of a declaratory order of declaration;
(iv) the relationship of master and servant had ceased between the parties since 16th August, 1985 and that as at 6th December, 1985, when exhibit C was written by the defendant, the plaintiff was no more its servant.
- Is the relief by way of declaration not in order, having regard to the decision in Lee v. Showmen’s Guild of Great Britain (1952) 2 QB 329, ambivalent and confused posture of the defendant to the one issue of bringing the plaintiff’s employment to an end?
- Ought the claim for damages, i.e. the plaintiff’s terminal entitlement to have failed for the reasons stated in the judgment?
- Ought it not to have succeeded on the basis of the legal principle that the court regards as certain that which can, from the materials before the court, be made certain?
- Did the learned Judge in dismissing the claim for his terminal entitlements not overlook the maxim “id
certum est quod certum reddi potest” (That is certain, which can be made certain) and come to a wrong decision?
- Is the decision dismissing the entire case having regard to the primary facts found and the unchallenged relevant evidence on record not wrong in fact and in law?
- Is the judgment not against the weight of evidence?”
The respondent in its brief of argument opined that based on the position of the appeal that the question is:
“the ‘seriousness’ or put in another way, the frivolity or academic nature of the appeal.”
The appellant, conceding that although the contractual relationship between the parties was one of master and servant argued that his later dismissal, when his appointment had earlier been terminated had made the claim for a declaration expedient. That is, in spite of the fact that the contract lacked statutory flavour. The case of Shitta Bey v. Public Service Commission (1981) 1 SC 40, rules of the Supreme Court Order 15 rule 16 and Lee v. Showmen Union of Great Britain (1952) 2 QB 329 – on power to make declaratory orders were referred to.
It was further reasoned that, the respondent was at all material times seised of all the facts of the misconduct involving irregular issue of tickets, when it chose to terminate the appellant and so could not later turn round to dismiss him for one and the same reason. He relied on Halsburys Laws of England, 4th Edition, Vol. 16, page 430 paragraph 648 and Electricity Corporation of Nigeria v. George Nicol (1968) 1 ANLR 201 on waiver of the respondent rights once one course of action was opted for in the matter.
The point was also taken that the respondent could not on 6/12/85, when the appellant was no longer in its services effectively dismiss the appellant. See Robert Upex on termination of employment. And that it was therefore, wrong for the trial court to hold that the only remedy for wrongful dismissal was award of damages not declaration. He urged the court to hold that the appellant was entitled as claimed.
The respondent in expounding its response observed that there was no advantage to accrue to the appellant even if his dismissal was set aside as he would not go back to his job, as he had been retired with benefits nor collect damages for wrongful dismissal. Relying on Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142, Yil v. Ngumar (1998) 8 NWLR (Pt. 560) 125 and Umeji v. A.-G., Imo State (1995) 4 NWLR (Pt. 391) 552 at 593, the court was urged to dismiss the appeal as purely academic.
Guided by settled authorities, the courts have approached termination of contracts of employment from two broad perspectives namely, where the contractual relationship of master and servant is a simple one, at common law or where it is one with statutory flavor giving a servant some tinge of status.
More often than not a dismissed servant under the latter category would seek as one of the reliefs against the master a declaratory relief, where it was perceived that in terminating such a relationship, proper procedure for so doing was not followed. This is not the case with the former category, where the main relief should speak in terms of damages for wrongful dismissal. In this regard, the contractual relationship is at an end. Having set forth the above as a prefatory note, I think I should firstly examine the respondent’s contention, that the instant appeal being academic in nature and therefore frivolous ought to be so treated. As a settled principle of law no appeal lies in cases dealing with academic points as there is no real dispute to be resolved. See: Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 and Yil v. Ngumar (supra).
The crucial question to answer is, whether there is any controversy in being, that is, a live issue to be decided between the parties in the appeal. See Sun Life Assurance of Canada v. Jervis (1944) AC 111 per Lord Simons, wherein the learned Judge set out the abiding principle, I shall come to it later.
It is common ground that the contractual relationship of master and servant, between the instant parties not having a statutory flavour was properly terminated by the letter of 16/8/85.
There is no misgiving as to the entitlements of the appellants on the happening of that event. Indeed, payments of the entitlements have already been made to the appellant. In the instant action, the appellant’s claim inter alia included a declaration to the effect that his alleged dismissal being wrongful ought to be set aside. Also claimed along with it were other consequential reliefs. With respect, the apparent confusion on the part of the appellant in this connection has arisen from not keeping distinctly in his mind the full effect of the letter of 16/8/85, under which he had claimed his entitlements and which letter terminated the master/servant relationship between the parties. The same goes for the claim for declaration and other consequential reliefs arising from the letter of dismissal of 6/12/85. If in the circumstances, the appellant stands no chances of getting his job back or being paid damages for wrongful dismissal, the purpose of this appeal becomes academic. In that case, I agree with the respondent’s submission that granting the declaratory order, will serve no useful purpose. And so my answer to whether
there is a live issue to be decided in the appeal is definitely in the negative.
It is pertinent at this stage, to support my conclusion by reference to the said principle as stated by Lord Simons in the above cited case thus:
” …the House should decline to hear this appeal on the ground that there is no issue before us to be decided between the parties… it (is) a matter of complete indifference to the respondent whether the appellants win or lose. He has nothing to fight for… if the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its views on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties.
“I think it is an essential quality of an appeal, fit to be disposed of by the House that there should exist between the parties, a matter in actual controversy, which the House undertakes to decide as a living issue.”
There can be no doubt that, the appellant is keenly interested in having the issue of his entitlement to the remedy of a declaration resolved in his favour, without adverting to how that has to affect the position of the parties in the circumstances. And court business being serious business, this court would not embark on a course that would stand the whole purpose of our adjudicative system, that is, to settle live issues between parties, on its head.
There being no merit in this appeal, it stands dismissed with N5,000.00 costs to the respondent.
Other Citations: 2002)LCN/1195(CA)
