Seven-up Bottling Company Plc V. Engr. Adedayo Ajayi (2007)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
In the Benin Judicial Division of the High Court of Justice, the Respondent who was the plaintiff made the following claim against the appellant as defendant.
“(a) A declaration that the defendant’s refusal to confirm Plaintiffs appointment after it was aver due for confirmation by over 6 months was a breach of the contract of employment which existed between the plaintiff and defendant.
(b) AS SPECIAL DAMAGES, the sum of N12,581.09 (Twelve thousand Five hundred and eighty two naira nine kobo) only as outstanding And unpaid leave allowance.
(b) AS SPECIAL DAMAGES, the sum N1,615.60 One Twelve thousand Five Hundred and eighty two naira nine kobo) only as outstanding and unpaid leave allowance.
(c) The sum of N1,615.60 One thousand six hundred and fifteen naira sixty kobo only) as pension fund deductions from the plaintiffs salary.
(d) The sum of N3,600.31 (Three thousand six hundred naira thirty one kobo only) as national Housing Fund deductions from the Plaintiffs salary.
(e) The sum of N3,686,400.00 Three Million six hundred and eighty-six Thousand for Hundred naira only) as transfer and settlement benefit due to the plaintiff.
(i) AS GENERAL DAMAGES, the sum of N4,022,500 (four million twenty-Two thousand five hundred naira only) for breach of contract And the consequential hardships caused to the plaintiff.
TOTAL N7,737,000.00 (Seven million seven hundred and thirty Seven thousand naira only).”
Pleadings were exchanged and the case went all trial and the respondent gave evidence and tendered various documents. The defendant also called one witness and parties counsel addressed the court after which the learned trial Judge after reviewing the evidence adduced by both sides and some decided authorities concluded as follows
“After the termination of the plaintiffs appointment by defendant, the plaintiff in his evidence in Chief said that due to non payment of his financial benefits by the defendant, he suffered financial trauma for over 30 months since he left the defendant company. He said his family also suffered hunger and starvation but on cross Examination he said that since the termination of his appointment he is currently a consultant with a Sweden Firm in Abuja, but before then he had done other jobs. He was previously a consultant with consulting firm in Warri before he moved to Abuja and what the defendants were paying him is pittance to what he currently earned in 7-up bottling company.
Plaintiff’s evidence on cross examination completely contradicts His evidence in Chief that he suffered financial trauma after the Termination of his appointment because the plain tiff did not tell “this Court how long he remained jobless if all after the termination of his Appointment by the defendant before he got the job in Warri. I am therefore unable to come to the conclusion that the plaintiff or members or his family suffered any financial trauma after the termination of his Appointment by defendant as such I cannot see this court awarding Any damages to the plaintiff.
It is my view that the plaintiff has a cause of action in view of the fact that he has not been paid all his entitlement by the defendants as I have found above. The plaintiff has also proved special damages as I found above.
Accordingly judgment is entered for the plaintiff and against the defendant as follows:
(1) the sum of N2,304,000,00 Two million three hundred and four thousand naira only) being transfer allowance and settlement grant due to the plaintiff when he was transferred by the defendant from Lagos to Benin plant.
(2) the sum of N1,615.60k (One thousand six hundred and fifteen naira sixty kobo) only as pension fund deductions from plaintiff salary by defendant.
(3) the sum of N13,600.30k being the amount deducted by the defendant from plaintiffs salary for the national housing fund.”
Dissatisfied with the judgment of the lower court the appellant appealed to this court on the following Amended grounds of Appeal.
“1. The learned Trial Judge erred in Law and misdirected himself when he failed to observe that parties are bound by their pleadings.
- The Learned Trial Judge misdirected himself and erred in law when he failed to observe that it is trite a court must confine itself to the issues raised by the parties.
- The Learned Trial Judge erred in law when he awarded the sum of N2,304,000 as special damage to plaintiff after his findings that the defendant was not in breach of the contract of employment
- The decision of the trial Court is against the weight of evidence.”
The respondent also cross appealed and filed the following grounds of appeal
“The Learned Trial Judge erred in Law and misdirected himself when he descended into the Arena and held that there was no breach of the contract of service existing between the parties when the Defendant/Appellant/Respondent refused to confirm the Appellant’s employment before terminating same in spite of Pleading and oral testimony to that effect by both parties.”
Brief of argument were filed and exchanged.
The appellant’s brief of argument dated 6/3/06 was deemed filed on 18/10/06. The respondent’s brief dated 24/11/06 and filed on 27/11/06 and the reply brief is dared 11/1/07.
The appeal came up for hearing on 22/10/07 and parties adopted and relied on their briefs of argument in support of their case. The respondent in proof of his case in the lower court said he was employed by the company and after resuming on the 9th of November at Ijora Lagos after a successful interview was transfer to Benin.
A letter dated 5th October which is the offer of appointment was given to him. Letter of appointment which is the bed rock of this case is reproduced hereunder.
“Adedayo Ajayi (Engr.)
Samadek Ventures Limited
New No. 17, Apena Street
Surulere
Box 2026, Oshodi
Lagos.
Dear Engr. Ajayi,
OFFER OF APPOINTMENT AS ASSISTANT ELECTRICAL/UTILITY ENGINEER
With reference to your application and subsequent interview, we have Pleasure in offering you appointment as Assistant Electrical/Utility Engineer.
SALARY: salary attached to this post is N100,800.00 per annum all Senior Staff Grade 1 Step 9 subject to annual review all satifactory Performance and conduct
HOURS OF WORK: The Company’s Hours of Work are as follows (Monday to Friday)
7.30 am 12.30 pm
2.00 pm 5.00 pm
You may be required to work outside the above stated period as the Operations may demand.
FRINGE BENEFITS
i. Housing Allowance N40,320.00
ii) Transport Allowance N26,100.00
iii. Leave & Leave Allowance: Your leave entitlement is 25 Working days per annum, and you will receive Leave Allowance of 10% of your annual Basic salary.
iv) Medical Facilities You will be entitled to free medical treatment for yourself, your spouse and Four children (not above 18 years old) by the Company’s Medical Officer at the Company’s Clinic
v) Lunch N13,200.00
MEDICAL EXAMINATION Your employment will be subject to Passing a medical examination by the Company’s Medical Officer.
PROBATIONARY PERIOD: You will serve six Months’ Probationary Period which could be lengthened or shortened at the sole discretion of Management and, on successful completion of the period, your appointment Will he confirmed. Confirmation of appointment docs not necessarily
COMPANY ACCOUNTING PERIOD: At the end of your Probationary Period and upon confirmation of your appointment, you will be required to join the Company’s Pensions/Provident Fund.
COMPANY’S ACCOUNTING PERIOD: Please be advised that the Company’s Accounting period is from 21st day of the month to 20th day of the following month, and the calculation of monthly salary is based on the Above period.
TERMINATION OF APPOINTMENT: During the probationary period.
The appointment may be terminated by either party by giving two weeks’ Notice or payment in lieu of notice. After confirmation of appointment. The notice is one month or payment in lieu.
During the course of your employment, you must devote your full time and Attention to the services of the Company.
Please note that if in the course of your employment we discover that you Misled us into believing in your suitability for the job through concealment.
Or misrepresentation/falsehood, your appointment will be immediately Terminated.
Please sign the duplicate copy of this letter indicate your acceptance of.
The offer not later than three (3) weeks from the date this letter.
Yours faithfully,
For: SEVEN-UP BOTTLING COMPANY PLC
FEMI. MOKIKAN
Head, Human Resources Management.”
He also accepted the offer and Signed a document referred to as confirmation of receipt of Employee hand book, immediately on resumption in Lagos. The letter is dated 11/11/93 and signed by one Sayeed Haque and it is herewith reproduced.
“SEVEN-UP BOTTLING COMPANY PLC.
ENGINERING SERVICES DEPARTMENT
MEMO
From E..S.M. To: G.M. – Benin
Attention: C.O.O. Date: 11th November, 1998
Subject: POSTING OF A NEW ASSISTANT ELECTRICAL ENGINEER MR. ADEDAYO AJAYI
The above named person has been interviewed found suitable. Apart From his good academic qualification (B. Engineering (electrical) from Amadu Bello University Zaria, he has also acquired 18 years post Qualification experience. He has being seconded to Benin Plant as Assistant Engineer (Electrical).
Mr. Ajayi will report to the Plant Engineer who will prepare an appropriate Induction Course for a week to familiarize him with Benin Plant. After the Induction Course he is expected to submit a report on whatever problems he observed and how he would organize the hobs in the Electrical Section, His responsibilities are as follows:
- His first basic assignment is to ensure a hitch free installation of Line II.
- He will also ensure that all electrical equipments /instruments are well protected, properly secured against any mishap or hazard. He will also implement the Preventive Maintenance Programme to ensure that there is NO DOWN-TIME and BURNING OF MOTORS in his area of jurisdiction.
- We suggest that the following sections could be under his control.
(a) CO@ Plant
(b) Air Compressors
(c) Boilers
(d) Bore Hole Pumps
(e) Raw Water Pumps
(f) Water Treatment
(g) Syrup Room
(h) Motor Rewinding
(i) Office Block and Security Lights
(j) Gen-sets
- To perform any other duties that may be allotted to him by GM, PM and PE respectively.
He is expected to resume duty on Monday 16th of November, 1998.
It will be highly appreciated, if you can give him your full support operation so that he could accomplish the above tasks allotted to him.
Regards.
Sgd.
Sayed Haque
Cc: HHRM
” PE – Benin
” Mr. Adedayo Ajayi”
Another memo dated same day signed by one Femi Mokikan reads
“You are by a copy of this memo advised to report to our Benin Plant on Monday November 16, 1998 for your induction programme and therefore, resume duty. Please note that this is not a transfer but assumption of Duty.”
The respondent duly reported for duty at Benin and worked for (16) sixteen months without being confirmed when in actual fact the contract was to be confirmed after six months or with an extension not more that 3 months.
By a letter dated 25/2/00 a letter of Termination of Appointment hereunder reproduced was given to the Respondent.
“February 25 2000
Mr. Adedayo Ajayi
Assistant Electrical Engineer
Seven-Up Bottling Company Plc
BENIN PLANT
Dear Mr. Ajayi
TERMINATION OF APPOINTMENT
We regret to advise that your services are no longer required with this Company. You are therefore terminated from the service of the Company with effect from Friday, February 25, 2000.
You will be paid your salary up to and including February 25, 2000 together with one month’s salary in lieu of notice less any indebtedness to the company.
You should please surrender immediately all the Company’s property that may be in your possession to the Maintenance Engineer (Benin), and the company’s identity Card issued to you to the Personnel Manager (Benin), on receipt of this letter.
We thanks you for your past services and wish you success in your future endeavors.
Yours faithfully
For SEVEN-UP BOTTLING COMPANY PLC
SGD.
FEMI MOKIKAN
Head Human Resource Management”
A total sum of Forty thousand nine hundred and fifty three Naira thirty kobo was paid and collected by the Respondent vide Exhibit D12. The Respondent not satisfied with the benefit, claimed that there was a breach of contract by the appellant by not confirming his appointment before termination. He therefore instituted this suit and claimed other benefits. The appellant who was the defendant in the lower court denied any breach of contract with the Respondent/Cross Appellant and further argued that the Respondent/Cross Appellant was not transferred to Benin Plant. The Appellant insisted that confirmation of the Respondent appointment is the discretion of the Appellant. The appellant/Cross Respondent distilled 4 issues for determination of this appeal as follows:
“(a) Whether the learned Trial Judge properly considered the validity and took a correct view as to the evidential value of Exhibits 2 and 3 to hold that Plaintiff on appointment resumed duty in Lagos and was subsequently transferred to Benin.
(b) Whether the Oral testimony (evidence) of the Plaintiff on Transfer benefit/hotel allowance/resettlement allowance, was sufficient legal evidence to sustain the Learned Judge’s Conclusion that the Plaintiff was entitled to hotel allowance At the rate of N4,800 per day and to award N2,304.000 for 16 Months for hotel allowance,
(c) Whether the Learned Trial Judge approached the issue of the confirmation of Plaintiff’s appointment properly and made n proper assessment or evaluation of the evidence placed before him and facts pleaded.
(d) Whether the costs awarded in this case was reasonable.”
The appellant argued Issues 1 & 2 together. He argued that the contention of the Respondent that
(a) Respondent resumed duty in Lagos after he was offered appointment.
(b) that his movement to Benin was transfer and
(c) that he was entitled to transfer allowance and resettlement grant.
The appellant argued that where a document is voluntarily signed by a person the contents of such a document are binding on the signatory and no evidence will be allowed to add or reduce therefrom any such contents. Citing NIGERGATE V. NIGER STATE GOVERNMENT (2005) 1 NWLR (Pt.707) E42 AT 348; LEWIS V. UBA PLC (2006) 1 WNLR PT. 962 546 AT 550 AT 551.
He referred to Exhibit 2 & 3 which he claimed formed the foundation of the Appellants case as they were voluntarily signed by the Respondent/Cross Appellant. He argued that the trail Judge was wrong in his approach to the issue under consideration.
He referred to the case of KATTO V. CBN (1999) SN WLR PT. Gill. 390 AT 405. where the Supreme Court held,
“A contract of service is the bedrock upon which an aggrieved employee must found his case. Therefore in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein to decide the rights and obligations of the parties
“He argued that the lower court failed to properly evaluate the material before it and it should be set aside.”
On issue of whether the Respondent/Cross Appellant’s movement to Benin was a transfer or not, he argued that the trial Judge merely descended in to the arena, as there is nothing in the memo to suggest that the Respondent/Cross Appellant was already working in Ijora, the word “seconded” not withstanding. He argued that the Respondent/Cross Appellant was not on permanent transfer as provided for in Exhibit 3A to attract transfer allowance and resettlement grant. He submitted a finding of fact which is merely speculation and not based on credible evidence is perverse and leads to a miscarriage of justice. See IHEWUEZI v. EKEANYA (1989) 1 NWLR PT. 96 239 AT 241. OVERSEAS CONSTRUCTION CO. NIG. LTD. V. CREAK ENTERPRISES NIG. LTD. (1985) 3 NWLR (PT. 13) 407 AT 409 AND THE SUPREME COURT CASE OF THE STATE V. AIBANGBEE (1988) 3 NWLR PT. 84 AT 587 D – F
Where it was held that no trial court has the right to draw conclusions of facts outside the available evidence.
See also Section 132(1) of the Evidence Act.
He argued that the findings of the court that the Plaintiff was entitled to hotel allowance at an applicable rate of N4,800 per day for 16 months as a result of erroneous decision that the respondent was transferred ought to be set aside. He argued that the appellant has agreed that the respondent was never transferred.
He argued that neither Exhibit 2 nor Exhibit 3A provides the applicable rate or states how much an employee is entitled to as transfer benefits or hotel allowance.
The only evidence of allowance is from the Respondent. The pleadings of the Respondent did not tally with his evidence, so there is no nexus Evidence which runs contrary to pleadings must be rejected Citing the case of ISERU v. CATHOLIC BISHOP WARRI DIOCESE (1997) 3 NWLR PT. 495 AT 819. On this ground he urged the court to set aside the relief. So grated
He concluded that on this, issue the findings of the trial court is perverse and therefore ought to be reversed. He urged the court to do so.
In answer to this argument the Respondent/Cross Appellant said the movement of the Respondent from Lagos to Benin was clearly a transfer within the meaning of Exhibit 3A therefore there is an obligation imposed on the appellant to pay transfer allowance.
On Issue III. He argued that both the appellant and the Respondent admitted that the Respondent’s appointment was not confirmed but the learned trial judge disagreed with both parties holding that the Respondent appointment was confirmed by the appellant’s conduct.
There was no evidence that a letter of confirmation was issued. Document of contract should be construed jointly is in relative to the contents total account of what the terms of the contract have See LADIPO v. CHUME NIG. LTD. (2005) NWLR Pt. 907 277.
It is the duty of the court to confine itself to the plain words and meaning which can be derived from the terms of the agreement between the parties.
FAKUADE V. OAUTH (1993) 5 NWLR PT. (291) 47
To say that the Respondent appointment was confirmed by conduct is erroneous.
Referred to OLUSEYE v. LAWNMA (2003) 17 NWLR (PT. 849) 310. The Respondent on Issue III argued that the non confirmation of the Respondent’s appointment is a breach of contract. He argued that such confirmation cannot be implied. It must be written and therefore the Respondent is entitled to damages. He argued that the court will not look outside the written contract citing.
KATTO’S case supra. He argued that the court ought to award damage. In his words he argued and I quote.
“Assuming (without correcting that the damage alleged before the lower court were made and not ever pleaded the court will still have the jurisdiction to determine same as it is completely different from special damage.”
Citing “NADIM CHAGAURY C & C CONSTRUCTION WORK V IBRAHIM YAKUBU (2006) 3 NWLR PT. 966 PAGE 138
ON ISSUE 4
Appellant argued that cost are awarded to person entitled to them. They are not imposed as punishment. See OLATOPE V. NATIONAL BANK (1985) 3 NWLR (PT. 11) 147 AT 151 G-H
He argued that the cost assessed at N20,000 awarded to the respondent is excessive.
At no time during the trial did the defence cause any delay.
The discretion of the court must be exercised judicially See SOGUNRO V. YAKUBU (2003) 12 NWLR 835) 644 at 684.
He argued that out of pocket expenses of the Responded was N710 (Seven hundred and ten Naira and there were 12 appearances. He then urged the court for the reasons in his argument to allow the appeal and set aside the judgment and that the plaintiff case be dismissed. The Respondent/Cross Appellant in reply said it is trite law that cost follow events and says that both the counsel and the Respondent/Cross Appellant were based in Abuja and would have to traveled from there. He argued that the cost awarded is justifiable.
In his brief of argument the Respondent/Cross Appellant distilled an issue which he claimed to be Issue No.5 which reads thus
“Whether a trial court have power to determine the remoteness of damage.”
In his reply brief the Appellant submitted that the issue of remoteness of damage raised by the Respondent/Cross Appellant is incompetent and should he dismissed as it relates to no grounds of appeal.
Let me dispense of the 5b issue raised by the Respondent. The issue as formulated do not relate to any of the grounds of appeal and there is no Respondent’s notice to raise a new point not canversed in the court below. In my view I agree with the appellant that the issue 5 raised by him is incompetent. See MOMODU V. MOMOH (1991) 1 NWLR Pt. 169 at 608 at 52 paragraphs B-C.
The said 5th issue being incompetent is struck out. The Respondent urged the court to dismiss the appeal and uphold the judgment of the lower court. Let me again say here that the Respondent seems to have abandoned his cross appeal.
There is no where on record where he argued the appeal in his reply brief of argument nor did he file any brief of argument nor did he file any brief as to a Cross/Appeal. His brief was merely headed “Respondent’s brief of Argument. His notice and grounds of appeal as shown all page 106A – 106 is hereby struck out having been abandoned.
Parties in this appeal agreed that what is the contract of employment of the Respondent is the letter of Appointment which is exhibit 3A. I have earlier copied the letter of appointment. Paragraph 4 of terms and conditions of employment at page 16 of Exhibit 3A reads.
“Probation
i. Every letter of appointment will state the grade of the Employee and length of probation. On completion of the said probationary period, the employee will, if the services are considered satisfactory, receive a letter of Confirmation.
ii. The probationary period may be extended at the discretion of Management for a further period not exceeding three months, if the employee’s services are not considered to be up to the standard required, the employment will cease at the end of the trial period.
iii. During probation either party may terminate the employment in accordance with the notice of termination as set out the letter of engagement, without giving any reasons,”
Under TRANSFER/RELOCATION Exhibit 3A shows at page 25 as follows:
“TRANSFER/RELOCATION
i. The company conducts its business throughout the Federal Republic of Nigeria, and an employee may be required to serve anywhere in the country, or department within the company.
ii. An employee on permanent transfer at the company’s request will enjoy the conditions, and also receive a transfer allowance and re-settlement grant at the applicable rates.
iii. An employee transferred at his own request shall forfeit all transfer entitlements.
iv. An employee on transfer shall not he entitled to outstation/out-of-pocket allowance,”
Let me pause here to define the word transfer. In Blacks Law Dictionary Transfer means “To convey or remove from one place to another, specifically to change over possession or control of”
In the Oxford Advance Learner’s Dictionary 6th Edition Transfer means “To move from one place to another, to move from one job or station to another. The employees are being transferred from the sales department.” Relocate in the same dictionary says the moving “of a company or workers to move to a new place of work.”
There are roughly three categories of contract of employment
They are
(a) those regarded as purely master and servant
(b) those where a servant holds office at the pleasure of the employer and
(c) those where the employment is regulated or governed by statute other wise known as having statutory flavour See OLANIYAN v. UNILAG (1985) 2 NWLR PT. 9 AT 599 AND the Supreme Court’s case of CBN v. IGWILO (2007) 14 NWLR 393.
The Appellant and the Respondent agree that what governs the contract of Employment is the Letter of Appointment Exhibit 2 and the Hand Book Exhibit J.
These two documents must be read together to enable one to see and determine the contract between the Appellant and the Respondent. In the interpretation of the contract involving several documents, the documents must be read tog-ether including letters relating to the contract and the conduct of the parties.
See A.G. KADUNA STATE v. ATTA (1986) 4 NWLR PT.38 785, LEYLAND NIG. LTD. v. DIZENGOFFWA (1990) 2 NWLR Pt.134 600; ROYAL EXCHANGE ASSURANCE (NIG.) LTD. v. ASWANI ILE INDUSTRIES LTD. 1991 2 NWLR Pt.176, 639.
I have gone so far in the interpretation of the word “transfer” to enable me resolve issues I & II together.
Exhibit 4 headed Posting of a new ASSISTANT ELECTRICAL ENGINEER MR. ADEDAYO AJAYO reads in part “Mr. Ajayi will report to the Plant Engineer who will prepare an appropriate Induction Course for a week to familiarize him with Benin Plant”, That was a memo to the Manage in Benin. Exhibit 9 another memo directed to the Respondent specifically states thus “Please note that this is not a transfer hut assumption of duty.”
Reading these two exhibits together can the Respondent safely say he was transferred? He was in Benin for 16 months and never raised any question of transfer benefits until his appointment was terminated under the contract. The learned trial Judge was wrong to have held that the respondent was transferred to enable him claim such benefit.
He is also not entitled to claim under paragraph E of Exhibit 3A Staff Hand book which provides as follows
(ii) An employee on permanent transfer at the company’s request will enjoy the conditions and also earn a transfer allowance and resettlement’ grant”
It is also of note that the respondent was paid Housing allowance throughout his 16 months sojourn in Benin.
The contents of the documents signed for by the Respondent are binding on him and therefore no extrinsic evidence will be allowed to reduce NIGERGATE LTD. V. NIGER STATE GOVT. (2005) 1 NWLR (PT. 967) 342 AT 348: LEWIS V. UBA PLC (2006) 1 NWLR PT. 962 546. It is well state in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390. I disagree with the learned trial Judge that Exhibit 9 written by the head of Human Resources Management is an attempt to alter the provision of the Hand book.
Exhibit 4 on the other hand was not directed to the/Respondent but the General Manage Benin. It is trite law that when the findings of the trial court are shown to be perverse or do not flow from the evidence before the court as in this case, the appellate court ought to alter, reverse and or set aside the trial court’s findings.
In his evidence the Respondent claimed the sum of N3,686,400 as and resettlement grant for 16″ months in Benin during which the company failed to settle him as a daily allowance for 30 days X 16 months at the rate of Hotel Allowance of about N4,800 averagely per day.
The trial judge in dealing with this issue says and I quote.
“The plaintiff has also proved special damage as I have found above.
Accordingly judgment is entered for the plaintiff and against the defendant as follows: –
1) The sum of N2,304.000.00 or (two million three hundred and four thousand naira only being transfer allowance and settlement grant clue to the plaintiff when he was transferred by the defendant from Lagos to Benin Plant”.
The trial court has no basis for this award. There is nothing in this master servant agreement ‘which stipulated an amount as transfer and resettlement allowance
while loses of salary or wages is the common loss of wrongful dismissal depending on the terms of contract. In LAWAVDE v. WOODS OF COLCHESTER LTD. (1967) 1 QB 278, the Court of Appeal held that bonus payment under the contract w as dependent on the discretion of the directors rather than a legal obligation.
An appellate court will disturb the award of damage by a lower court if it was discovered that the lower court came to its award by proceeding upon some wrong principle of law that the award has an entirety erroneous estimate.
In this case the trial court based its award on a wrong premise and therefore cannot stand.
See THOMPSON V. ADEFOPE 1969 1 ALL NCR 322: GWARA SEC & FIN. LTD. V. T.I.C.. LTD. 1999 2 NWLR PT. 589 29. In ARCHBONG V. ITA 2004 13 WRN Page 1 at 21 if was held that it is dangerous for the Court to speculate in the absence of evidence. After all a court of law call not speculate or conjure.
In the light of the above 1 answer issues 1 & 2 ns formulated by the appellant in the negative.
On issue III it is in evidence that both parties agree that the appointment of the Respondent was not confirmed before termination the fact that the respondent spent 16 months in the company not withstanding I have earlier set out the provision probation when the probationary period was supposed to be six months the period may be extended at the discretion of Management for a further period not exceeding 3 months if the employee services are not considered to be up to the standard required the employment will cease at the end of the trial period.
During probation either party may terminate the contract as set out in the letter of engagement. The trial court was wrong to infer that because the Respondent’s appointment was not confirmed after 9 months probation and payment of one month’s salary in lieu of notice Respondent has confirmed the appellant by conduct.
There is no where in the record hat the Respondent even asked the appellant to confirm his appointment after the probationary period.
The cardinal presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand.
That is to say the meaning of the document or of a particular part of it is to be sought in the document itself.
One must consider the meaning of the words used not what one may guess to be the intention of the parties. Confirmation of the Respondent appointment is at the discretion of the Appellant therefore there is no basis to hold that by conduct the appellant had confirmed the appointment of the Respondent. I again answer Issue 3 in the negative and in favour of the Appellant.
On issue 4
Cost is awarded at the discretion of the court but such discretion like any other discretion must be exercised judicially and judiciously.
Therefore the Court of Appeal will interfere with the award of cost by the lower court which was not judicious See MALAM IDI WURNO v. UAC LTD, (1956) SC NLR 99, LAYINKA V. MAKINDE 10 NSCQR Pt. 2. 644. In this case there is no material to base the award. Award of cost is not meant to be punitive. SOAUNRO V. YAKU (2003) 12 NWLR Pt. 835 at 684. I hold that the award of N20,000.00 as cost is excessive.
In the light of the above the appeal succeeds and the judgment of the lower court is set aside to the following extent.
(i) The award of the sum of N2,304.000.00 being transfer allowance And settlement grant due to the plaintiff when he was transferred by the defendant from Lagos to Benin Plant is set aside.
(ii) The award of cost in favour of the Plaintiff is set aside. I assess the cost of this appeal as N30,000.00 in favour of the Appellant.
Other Citations: (2007)LCN/2579(CA)
