Shell Petroleum Development Co. Nig. Limited V. Mr. F.o. Emehuru (2006)
LawGlobal-Hub Lead Judgment Report
THOMAS, J.C.A.
This is an appeal by the defendant/appellant against the part judgment in suit No. PHC/1058/98 delivered on 17th June, 2002 by the Hon. Chief Judge of Rivers State. The plaintiff/respondent at the lower court by his writ of summons and the amended statement of claim as shown in the record of appeal at pages 1- 3 and 13 – 20 respectively are as follows:
“Wherefore the plaintiff claims against the defendants as follows:
(a) A declaration that the purported termination of the appointment of the plaintiff by or through an independent contractor not being his employer is null, void and of no effect whatsoever.
(b) A declaration that the plaintiff is still in the employment of the defendant his employment having not been validly terminated through a 3rd party.
(c) An order directing the defendant to re-instate the plaintiff to his status or position as a servant of the defendant without prejudice to entitlements and promotions which might have accrued to him during the period of the purported termination.
Alternatively
N1,000,000.00 (One million Naira) as special and general damages for wrongful termination of the plaintiff’s appointment in so far as the same was purportedly:
1) Carried out through a 3rd party not privy to the contract between the plaintiff and the defendant and
2) Based upon an unsubstantiated allegation of commission of criminal offence by the plaintiff who was never prosecuted at all in any court of law.
Particulars of damages
A. Special damages:
a) N4,100.00 per month until judgment is delivered in this case.
b) N10,000.00 already earned overtime payment from January to June 1994.
General Damages
Being whatever balance after deductions of all sums arising from item (a) above. N10,000,000.00 (Ten million Naira) damages for libel…”
From the record of appeal at page 144, the lower court gave judgment in favour of the respondent as follows:
“The final result is that the plaintiff’s case against the defendant company has succeeded in part, and I enter judgment accordingly in his favour, and make the following declarations and orders:
- It is hereby declared that the purported termination of the appointment of the plaintiff by or through an independent contractor (Petmam Ventures Ltd.) not being the plaintiffs employer is null and void and of no effect.
- It is hereby declared that the plaintiff was still in the employment of the defendant company up to and including this month of June 2002, his employment not having been validly terminated.
- The defendant should pay to the plaintiff the sum of N407,700.00 (Four hundred and seven thousand seven hundred Naira) representing …”
From the above judgment, the appellant has appealed on the issue of unlawful dismissal. Notice and grounds of appeal was amended and filed on 24th January, 2003. The amended grounds of appeal are six from which six issues are formulated by the appellant as follows:
“i) Whether the final court justifiably disregarded, in its evaluation of the evidence, exhibits D1, D2 and D6 which were expressly pleaded and properly admitted.
ii) Whether the conclusion that the appellant was the employer of the respondent and that Petmam Ventures Ltd. is a meddlesome interloper is supported by the preponderance of evidence before the trial court.
iii) Assuming, without conceding, that the appellant was the employer of the respondent, whether the termination of respondent’s appointment by Petmam on the express authority of the appellant did not bring to an end the relationship between the appellant and the respondent.
(iv) Whether the appellant was not discharged from further liability to the respondent by virtue of exhibit D6.
v) Whether the award of damages covering respondent’s salary and allowances from July 1994 to June 2002, together with one month’s salary and allowances in lieu of notice is justified in law.
vi) Was the implication of respondent in the theft case not proved beyond reasonable doubt.
On the part of the respondent, appellant’s issues ii, iii, iv and v were adopted while the respondent’s issue No.1 is stated as follows:
“1. Whether the learned Judge misdirected himself in any way as to the standard of proof required on the criminal allegation involved in their matter.”
Before I proceed to consider the relevant issues formulated for determination in their appeal, I would like to point out that it is unacceptable to this court when issues are proliferated or repeated by the same party. In the matter at hand, the appellant’s issues 1 and 6 are repetitive despite their mere changed words. There is no much difference between the two. A mere observation to appellant’s grounds 1 and 6 in the amended notice and grounds of appeal allowed by this court will clearly show that the complaints are basically related to exhibits D1 and D2 being evidence pleaded and adduced to by both parties. But the appellant’s brief issues have not indicated as to what particular ground of appeal an issue is formulated. In other words, appellant’s counsel has left the appellate Justices to search and find out which issue is relevant to particular ground of appeal.
It is trite law that an issue can be formulated out of a ground of appeal or more grounds of appeal. See Shona-Jason Ltd. v. Omega Air Ltd. (2006) 1 NWLR (Pt. 960) 1 at 38 per Onnoghen (JCA) as he then was. It is also to be noted that a ground or grounds of appeal from which no issue or issues are formulated are deemed abandoned and liable to be struck out. See Ojoh v. Kamalu (2005) 18 NWLR (Pt.958) 523, 543 para. G per Onu, JSC.
It is far better and much easier if counsel can refer to what ground of appeal an issue is formulated for determination. In addition to both party’s, issues 2, 3, 4 and 5, I will use the respondent’s issue No. 1 to cover appellant’s issues 1 and 6 as I am of the considered view that there is not much difference between appellant’s two stated issues and respondent’s issue 1.
Respondent’s issue 1 reads:
“Whether the learned Judge misdirected himself in any way as to the standard of proof required on criminal allegation involved in this matter.”
The appellant’s brief are argued at paragraphs 4.01 – 5.07, pages 2 – 4 and paragraphs 12.1 – 12.12 at pages 9 – 11 respectively.
The appellant submits that the trial court Judge had wrongly ignored exhibits D1, D2 and D6 despite their pleadings, which were admitted into evidence. Learned counsel referred to pages 23, 92 and 85 showing their pleadings and admission; that the respondent denied signing his signature in exhibits D1 and D2; that inspite of the vital facts in exhibits D1, D2 and D6, the lower court Judge did not make any reference to these exhibits when he was evaluating the evidence. The learned counsel for the appellant went further and contended that in law, despite the respondent’s denial of making exhibits D1 and D2, the trial court should have juxtaposed the exhibits with other available evidence to determine their probative value, and relied on the cases in Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 at 432 B – F; Uluebeka v. The State (2000) 7 NWLR (Pt. 665) 404, 428 – 9. Learned counsel for appellant further contended that, the necessary evidence which the trial court should have juxtaposed with the above referred exhibits, are the evidence of DW3, who was the Investigating Police Officer (IPO) who testified on oath at the trial court to the effect that, the respondent, wrote and signed exhibits D1, D2, D3 and D4 before him, then he (IPO) counter signed. The appellant urged this court to hold that the lower court wrongly discountenanced exhibits D1, D2 and D6 which according to it, is the bedrock of the appellant’s case and that this court should set aside the lower court’s judgment. Appellant’s argument on issue No.6 is more or less similar to argument in issue 1 proffered above. Counsel states that their paragraph 12.1 is similar to their arguments in issue 1. They however further contended that there was unchallenged evidence of DW1 and DW2, which are to the effect that the respondent was caught in the act of stealing despite his denial. Counsel then concluded their argument on issue 6 and urges this court to hold that the respondent’s implication in the theft case was amply proved or established by the same respondent’s confession in exhibit D2 which was corroborated by the evidences of DW1, DW2 and DW3.
Respondent’s reply brief is to the effect that, from the totality of evidence of witnesses, it is not shown that the respondent was prosecuted nor was there any suggestion that he would be prosecuted for the theft of any bag. That since the allegation was left without any cogent explanation, it created a serious doubt in favour of the respondent as to his guilt.
Learned counsel for the respondent went further, and submitted that, the position of law is that, if the commission of a crime by a party to any proceedings whether in civil or criminal, is directly in issue, same must be proved beyond reasonable doubt. Section 138(1) Evidence Act was referred to as well as the cases of Aderounmu v. Olowu (2002) 75 LRCN 425, (2000) 4 NWLR (Pt. 652) 253; Eghologbin Oketie & Ors v. Ambrose Olughor & Ors. (1995) 4 NWLR (Pt.392) 655; (1995) 5 SCNJ 217 at 237.
Respondent’s counsel further submitted, that assuming without conceding that even if there was a confessional statement by the respondent, the confessional statement would not relieve the appellant the serious duty to prove the guilt of the respondent beyond reasonable doubt. Learned counsel referred to and relied on the Supreme Court decision in Aigbadion v. The State (1999) 1 NWLR (Pt. 586) 284; (2000) 77 LRCN 820 at 826, Counsel further contended that the respondent had earlier been cross-examined at the lower trial at page 50 lines 6 – 9 where he stated thus:
“PW1 -This statement showed me was not made by me, but the signature looks like mine. I deny that this is my statement. I did not take the bag. I did not steal. I was not caught and I did not admit stealing.”
In similar reference to evidence in support of the respondent’s innocence to the allegation of theft, learned counsel referred to the evidence of PW2 – Chief Jonah Sado at pages 56 lines 9 – 21, and page 57 lines 5-8 and, then concluded that, the learned trial Chief Judge, did not misdirect himself as to the standard of proof as is required with reference to criminal allegation, which must be proved beyond reasonable doubt no matter the circumstances of the proceedings whether in civil or criminal case. The respondent urged this court to resolve issue No.1 in favour of the respondent and thus accept the findings of the lower court.
I have carefully considered the lines of arguments of both parties in relation to the issue as to whether the learned trial Chief Judge misdirected himself in any way as to the standard of proof on criminal allegation against the respondent.
At the lower court, being a civil matter filed by the respondent who was then the plaintiff, the defendant has relied and tendered into court, exhibits D1, D2, and D6, which were admitted as such. But it is also clear that the allegations stated in exhibits D1, D2 and D6 were vehemently denied by the respondent. At this stage, there is need to look at the issues formulated by the present appellant when he was the defendant at the lower court. At page 101 of the record of appeal, learned counsel for the defendant/appellant then filed a written brief in which he formulated four issues for determination as follows:
“Issues for determination
From the claim and evidence led in support, the following 4 issues fall for determination:
(i) Was the defendant the employer of plaintiff?
(ii) Is the termination of plaintiff’s employment by Petmam null and void?
(iii) Assuming, without conceding that as it is, can plaintiff be heard on complain after signing for and collecting his final terminal payment?
(iv) Is the letter dated 27th June, 1994 addressed to Petmam justified and made on an occasion of qualified privilege?”
In respect of the then plaintiff now respondent in this appeal, similar and identical issues were formulated and argued at the lower court.
See page 113 of the record of appeal where it is stated thus:
“My Lord, we submit that the following issues will for determination in this case and they are thus:
- Was the defendant the employer of the plaintiff?
- Is the termination of the plaintiff’s employment by Petmam or defendant null and void?
- Has the plaintiff really signed for his final entitlement of final payment?
- Is the letter dated 27th June, 1994 addressed to Petmam justified and made on an occasion of qualified privilege?”
Now a careful consideration of the present appellant’s issues 1 and 6 and respondent’s issue 1 these were never considered at the lower court. In other words, the learned trial Chief Judge who heard and delivered his decision was never asked by the present appellant to prove and decide the respondent’s implication in the theft case by relying on exhibits D1 and D2. Now the important question to ask is, what right has a party to file a ground(s) of appeal and formulate issues thereon, whereas, similar issue(s) was not raised between the parties at the lower court? The answer is capital – NONE. It is now trite law that an abandoned issue cannot, in law, be raised on appeal. See Shell B.P Ltd. v. Abedi (1974) 1 All NLR (Pt.1) 1; Comptoir Commercial & Ind. Ltd. v. Ogun State Water Corporation (2002) 9 NWLR (Pt. 773) 629 and Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) 523 at 549 paras. B – C. It is trite law that parties as well as the appellate court i.e. this court, are bound to comply with the orders and rules of this court. It is well established that, an appellate court will not lightly allow a fresh issue or point to be taken before it if such issue or point had not been raised, tried and considered at the lower court as done in the instant matter before us except with the leave of this court. See Alabi v. Doherty (2005) 18 NWLR (Pt. 957) 411, 430 A-D; Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684; Kolawole v. Alberto (1989) 1 NWLR (Pt. 98) 382 and Omo v. J.S.C., Delta State (2000) 12 NWLR (Pt.682) 444. Moreover, I have carefully considered the appellant’s motions filed on 24-01-2003 and 15-01-2003. The former motion is tagged “amended notice and grounds of appeal,” there is nothing in the affidavit and the further affidavit to show that it was to seek leave of this court to hear a ground of appeal not heard or determined at the lower court. Since there has been no such application for leave to hear fresh grounds of appeal on which no issue for determination was heard at the lower court, I am of the considered view that appellant’s grounds 1 and 6 from which he formulated issues 1 and 6 are incompetent and I hereby discountenance them. I similarly strike out respondent’s reply issue 1, being irrelevant.
Issue 2.
Whether appellant was employer of respondent:
The appellant’s argument is that, the letter of temporary appointment dated 18-11-87, was on the basis of day to day for one month, and that there was no more any other letter to support the respondent’s continued appointment after the one month of day-to-day employment. That after the one month day to day employment, the respondent moved to JOPET for employment on contract staff basis. That JOPET itself was under contract employment by the appellant company, and that same JOPET terminated its employment with the appellant company, whereby, a third party namely PETMAM took over the employment of JOPET and that the respondent continued his employment under the contract of PETMAM. To support its contention, the appellant company has relied on the respondent’s evidence at page 49, lines 18-19 of the record of appeal, where the respondent said – “Shell (appellant) paid me through PETMAM from 1994 … ” Appellant company, further referred to evidence of DW4 who was the Chairman of PETMAM, see the record of appeal page 85 line 11, page 87, line 9 – 10. Learned counsel for the appellant conceded that the appellant was using contract staff including the respondent. Appellant further admitted that the respondent was successfully selected and interviewed by the appellant company as per exhibit P6; but that the respondent was yet to be employed by the appellant company when the selection and interview was being done. Learned counsel for the appellant, submits that since the day to day employment by the appellant company ended on 18-12-87, the subsequent employment of the respondent up to 1994, was specifically on employment of contract agreement between the respondent and JOPET who latter transferred same respondent to PETMAM as employer of respondent. Counsel referred to the case of Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685.
Learned counsel for the appellant contended as per paragraph 8.02 of appellant’s brief at page 5 that learned trial Judge did not take cognisance of the statutory provision of S. 90 of Labour Act, Cap. 198, Laws of Nigeria which defines an employer to include one who employs a worker for himself or for another person; and that the learned trial Judge also ignored Article 126.4 of exhibits D5 which provides that the contractor’s personnel, remain employees of the contractor during the service period. In conclusion, learned counsel for the appellant company further submitted that since the appellant was not the employer of the respondent, appellant company is not liable to be sued under a contract to which it was not a party; that based on the preponderance of evidence at the trial court, the respondent was employed by Petmam, and urged this court to resolve this issue in favour of the appellant company.
On part of the respondent, learned counsel submits that the learned trial Judge had the privilege of seeing the parties witnesses including examining the documentary exhibits relating to employment of the respondent. That based on the above facts, learned trial Judge was in a better position in evaluating the evidence before him, whereby it was resolved that the respondent did not cease to work for the appellant in any capacity until June, 1994. Learned counsel for the respondent relied and referred this court to page 133 lines 14 – 15; page 134, lines 17 – 22; page 135 lines 18 – 31 respectively. Learned counsel disagreed with the appellant’s contention that as from 18/12/87, the respondent was a contract staff first employed by lopet, who handed his employment to Petmam, who supplied respondent to the appellant company. Respondent’s counsel grounded his disagreement on the basis that, DW4 who is Petmam’s Managing Director, was disorganised under cross-examination. Counsel referred to pages 87 and 88 lines 12 – 21 and lines 1 – 3 respectively to show the failure of Petmam who averred that they employed the respondent as a contract employee.
Respondent’s counsel further contends that reliance of the appellant on provisions of S. 90, Labour Act and Article 126.4 of exhibit D4, became useless because DW4 had destroyed the basis of appellant’s usage.
The respondent in reply (to the appellant’s contention that they (appellant) are not liable because it was Petmam that employed the respondent) submitted that the appellant has been the employer of the respondent. Hence the appellant company was specifically sued as per the writ; and that the 3rd party, namely Petmam by the discredited evidence of DW4 could not substantiate any credible evidence that they employed the respondent.
Respondent’s counsel further submits on issue 2, that though by virtue of the plaintiff/respondent’s amended statement of claim and his evidence on oath that he received his salary from the appellant company through a third party i.e. Petmam, that could not ipso-facto make Petmam to be regarded as employer of the respondent without reliable evidence. That at best, the appellant’s payment of salary of the respondent through Petmam was merely to act as an agent of the appellant company to pay salary only and no more. Respondent’s counsel, further submitted that there is a great difference between paying salary alone on behalf of someone and being an employer. Counsel further submit that the duty of court is to consider evidence testified before it and never to indulge in speculations as to what have happened nor should a Judge substitute his own supposition for the evidence of witnesses who testified on oath. Counsel referred to cases of Adelenwa v. The State (1972) 10 SC 13; Animashaun v. U.C.H. (1996) 10 NWLR (Pt. 476) 65, (1996) 43 LRCN 2051, 2067 F.K; George Ikenye & Anor v. Akpala Ofune & Ors. (1985) 2 NWLR (Pt. 5) 1.
Learned counsel for the respondent, further commended the trial court for not conceding to speculation as envisaged by the appellant. Counsel further referred to the evidence of the respondent at page 29 lines 21 – 23 and page 39 line 11 respectively, and on this issue 2, counsel concluded his argument and urges this court, to accept the findings of the trial court that appellant company was the employer of the respondent and that Petmam was a meddlesome interloper by preponderance of evidence before the lower court. Learned counsel urged this court to resolve issue 2 in favour of the respondent.
Now, from the beginning, the writ and the amended statement of claim filed by the respondent are clear as to the position of the respondent that he was employed by the appellant and not Petmam who purportedly terminated his appointment. See pages 3 and 13 of the record of appeal and especially, where the respondent at paragraph 2 of the statement of claim said:
“The plaintiff was at all … times material to this case a servant or employee of the defendant having been employed as a temporary clerk on 18th November, 1987.”
The appellant in its further amended statement of defence denied that they employed respondent except one-month day-to-day employment from 18-11-1997 to 18-12-1997. By the above, it is trite law that parties are bound by their pleadings. See Ogbogu v. Ugwuegbu (2003) 10 NWLR (Pt. 827) 189; Sogunro v. Yeku (2003) 12 NWLR (Pt. 835) 644.
Now to sustain his pleadings as to his employment, the respondent on oath, testified and was on a serious cross-examination where at page 91 lines 21 – 23 and page 39 line 11 he emphatically maintained a position thus:
Page 21
“1 was working with SPDC under the category
“Temporary Staff: I am still its staff. I know the defendant. They are my employers.”
Page 31
“1 was not employed by Petmam Ventures.”
The above respondent’s evidence could not be punctured by the appellant. Infact, appellant’s pleadings that it was Petmam that employed the respondent as a contract staff was never established, more so, when the same appellant, called the Managing Director of Petmam to testify as DW4 where he messed up the appellant’s case when the witness was under cross-examination and answered as follows at page 87 lines 12 – 21 and page 88 lines 1 – 3 respectively:
“When I employed him, I did not give him a letter of employment. I do not know whether as at 1987, he was still working for defendant. I cannot remember if he was working with the defendant in 1994 … I do not know if the plaintiff was working for SPDC before I got the SPDC’s contract … I do not have list of the staff I took over from Jopet. I did not have any letter from the defendant asking me to take over the staff including the plaintiff … ” (Italics are mine).
From the above cross-examination evidence before the learned trial Judge, he had the prerogative right and obligation to evaluate the evidence of the appellant’s witness DW4, vis-a-vis the evidence of the respondent in relation to the employment issue. It is undisputable that, the trial Judge, actually and in a passionate manner evaluated the totality of evidence adduced before him. At page 137 of the record, learned Judge stated thus:
“DW4, the Managing Director of Petmam said he employed the plaintiff as a contract staff for the defendant. He did not enter into any contract agreement with the plaintiff, nor did he hand over to him the conditions of service. One very curious thing about his testimony is that he could not even state categorically when he employed the plaintiff. He did not know if the plaintiff was working for the defendant before Petmam Company as engaged by the defendant as a contract Exhibit D5 is the conditions of contract for the supply of work and services to Defendant Company.” (Italics mine).
I am of the considered view, that the above trial Judge’s crystal evaluation of the weak evidence of appellant’s witness DW4 is unassailable. A court of law is bound by the terms of written contract entered into by the parties. But where another side cannot show a written contract agreement entered into, as claimed by Petmam, that they employed the respondent on contract, the trial court did not go into speculation that such could have happened.
The mere proof by the appellant that they paid monthly salary of the respondent through Petmam – a third party, was not enough to claim that, the respondent was by then employed by the third party. The fact that the respondent was actually employed by the appellant company on the basis of day-to-day employment was tendered and admitted at the lower court and marked exhibit P1. The Supreme Court has clearly established that, written contract agreement entered into by parties are binding on same. Where there is any disagreement between parties to such written agreement on any particular point as in the instant case between the respondent and the appellant, the only reliable evidence and legal source of information to resolve the claim and denied on the employment is the written contract executed by the parties i.e. exhibit P1 tendered and admitted. This is supported by the Supreme Court decision in Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt. 958) 438, 459-D.
Still on the third party i.e. Petmam, who failed to substantiate this claim, that not appellant but them, employed the respondent, the trial court’s finding that, Petmam was “meddlesome interloper” cannot be contradicted as argued by the appellant. DW4 had no exhibit to show that he employed the respondent on labour contract. The position of the law is that, where parties had orally agree on a particular point and then later, enter into a written agreement, it becomes part of a general commercial practice to reduce the oral agreement as part of the contents of the written agreement. See the case of Larmie v. D.P.M.S. (supra) at page 469 paras. A – B. In the case at hand, the appellant via exhibit P2 gave a letter as an order to terminate the respondent. Neither appellant nor Petmam tendered further written contract that it was agreed that the latter would act as an agent to the former to terminate employees.
I am therefore, satisfied as stated in the judgment of the lower court that, Petmam was a meddlesome interloper. I am of the view, that the worker supply contractor-third party, was not an agent of the appellant company simply because he paid respondent’s salary. The third man was merely an errand boy or a conduit pipe in payment of appellant’s workers salary. I resolve issue 2 in favour of the respondent.
Issue 3 is overtaken by the resolution of issue 2. I resolve issue 3 in favour of the respondent because I find that Petmam was never entered between it and the appellant to serve as an agent. Issue 4
“Whether the appellant was discharged from further liability to the respondent by virtue of exhibits D6”.
Learned appellant’s counsel argued that exhibit D6, captioned:
“Final and Terminal Payment on Personnel Contract No. E0052 with PL ME”, shows that the respondent had stated in the same exhibit that – “I Mr. Festus Emehuru has collected all the payment due to me as a contract staff…”
and then submitted that by executing the document, the respondent had accepted in the termination of his appointment and that it amounted to discharging the appellant company from further liability, counsel referred to the case of Guinness (Nig.) Ltd. v. Agoma (1992) 7 NWLR (Pt. 256) 728, 742 B-C. Appellant’s counsel further contended that exhibit D6 also amount to an accord (agreement) and satisfaction and released the appellant from further obligation to the respondent, and relied on the case of Nigerian Educational Research Development Council v. Gonze (Nig.) Ltd. (2000) 9 NWLR (Pt. 673) 532, 551 B-C and urged that it be held that appellant had been discharged from further liability to the respondent.
In reply brief of the respondent at page 14, learned counsel referred to page 138 lines 10 – 20, where the learned trial Judge, in his judgment in respect of the same issue, had stated that exhibit D6 was discountenanced by the trial Judge, because the appellant, who tendered it, offered no evidence to explain the clear discrepancy caused by tampering the relevant dates in the same exhibit D6. The trial Judge had then stated thus:
” … I cannot therefore place my reliance on such a document. But besides, what is the relevance of that document when I have found that the employer of the plaintiff was the Defendant Company and not Petmam?” (Italics mine)
From the findings of the trial court that, it was the appellant who tendered exhibit D6 to support their case, and the said exhibit was written and executed by the 3rd party meddlesome interloper; I am therefore of the view that it was legally sound that, the lower court, rightly discountenanced the illegality of the document.
It is a misconception for the appellant to urge that, an illegality be allowed to hold that, the appellant had been cleared of liability to pay respondents. I therefore resolve issue No.4 to be in favour of the respondent; because as from 18-7-1987 to the date lower court’s judgment was pronounced being 17-6-2002, the respondent was entitled to his terminal benefits, being salary arrears of his employment with the appellant.
Issue 5
“Whether the award of damages covering respondent’s salary and allowances from July, 1994 to June, 2002, together with one month’s salary in lieu of notice is justified.”
The appellant’s thrust of argument was that the respondent was not entitled to his benefits because he was a criminal, having found in the act of theft. That respondent was a temporary staff of day-to-day employment only as from 18-11-1987 to 18-12-1997 and that it was the intervention of Jopet and Petmam who later employed the respondent and supplied him to the appellant; and then submitted that since the respondent had confessed in his statement to the Police that he was –
“seeking means of taking them away through the security men at the gate with a private vehicle or company’s”
Exhibit D2, without more was sufficient ground for dismissal considering the erosion of mutuality. Appellant’s counsel further contended that after the learned trial Judge had rightly stated the appropriate measure of damages as pay in lieu of notice in favour of the respondent and also the trial Judge had accepted the master’s (appellant) will to end the relationship, the same trial court turned round to award 8 years salary and allowances as damages on the excuse that the employment continued inspite of exhibits P3 and P4. (I will refer to page 139 of the record and exhibits P3 and P4 in this judgment latter).
Appellant’s counsel argues that the award of 8 years salaries and allowances by the trial Judge is unjustified; that the law is that an employee on legitimate suspension is not entitled to his salary as in the instant case where the respondent was caught in the act of theft, and that it was on that basis that, the appellant manifests its intention to dispense with the service of its employee. Counsel referred to the case of Olafimihan v. Nova-Lay Tech Ltd. (1998) 4 NWLR (Pt. 547) 608, 608 H – A. Appellant urged this court to hold that the respondent is not entitled to any damages, but that if he is entitled to, then only reasonable pay in lieu of notice, which is just one month’s salary.
On the part of the respondent, learned counsel referred to pages 141, 143 where the teamed trial Judge found on the totality of the evidence before him which was to the effect that the termination of the respondent employment, was wrongful and that, the purported suspension was unlawful, then there was nothing wrong in the award of damages for salary and allowances from July 1994 to June 2002 along with one month salary in lieu of notice. Respondent’s counsel urges that the issue 5 be resolved in favour of the respondent. That his salary and allowances from July 1994 to June 2002 was justified in law.
My findings are that exhibit P3 was a letter from the appellant to Petmam (a mere third party) to terminate the respondent’s employment. It is well established that Petmam was not an employer of the respondent because the Managing Director of the third party could not even prove any letter to show how the respondent was employed. Therefore, the purported letter of termination of employment of the respondent, which is exhibit P4, is ab initio, null and void. Petmam had no legal right whatsoever to terminate an employee appointed by a different person. It means therefore, that the respondent was still in the employment of the appellant as from the time of the wrongful termination dated July 1994 to June, 2002 when the trial court delivered the judgment. I therefore resolve issue 5 in favour of the respondent.
In the final analysis, I find no merit in this appeal, and I dismiss same. I affirm the decision of the learned trial Chief Judge delivered on Monday the 17th June, 2002 in suit No. PHC/105/94.
I award cost of N10,000.00 in favour of the respondent against the appellant.
Other Citations: (2006)LCN/1907(CA)
