U.T.C. Nigeria Ltd. V. Samuel Peters (2009)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

By his amended statement of claim dated 28th November 2000 filed at the High court of Rivers state, holden at Port Harcourt the respondent herein, as plaintiff, sought the following reliefs against the appellant as defendant:

a. A declaration that the purported summary dismissal of the Plaintiff by letter dated 30th April, 1984 is wrongful and unlawful and against the laid down conditions of service and practice of the Defendant’s company.

b. That the plaintiff is therefore entitled to full benefits of all his entitlements in the U.T.C. pension fund, the National Provident Fund Contributions.

c. An injunction to restrain the Defendant from tampering with the status quo of the parties vis-a-vis entitlement prior to the date of summary dismissal letter dated 30th April, 1984.

AND OR IN THE ALTERNATIVE

d. The plaintiff claims N750, 000.00 as damages for the unlawful and wrongful dismissal of the Plaintiff by letter dated 30th April 1984.

The parties duly exchanged pleadings. In its further amended statement of defence dated 29/11/95 the appellant counter claimed against the respondent thus:

“Whereof the defendant counter claims against the plaintiff in the sum of N1, 641, 087.67 (One Million, Six Hundred and Forty One Thousand, Eighty Seven Naira, Sixty-Seven Kobo) as general damages and special damages for the wrongful actions averred above or in the alternative to 21 (a) above an order for the delivery of the car aforesaid to the defendant by the plaintiff in a perfect mechanical state.”

At the conclusion of the trial the learned trial Judge entered judgment in favour of the respondent and dismissed the appellant’s counter claim in the following-terms: .

“It is my view therefore that no special damages based on Exhibit “L” has been proved against the plaintiff. Defendant has led no evidence let alone credible evidence- He abandoned his claims. The claims for special damages were (sic) abandoned as no evidence was led to prove them. The claim of the defendant therefore fails and is accordingly dismissed.

I am in no doubt therefore that the plaintiff has proved his claims against the defendant and I so hold. The plaintiff is therefore entitled to the following declarations: –

That the purported summary dismissal of the plaintiff by letter dated 30th April 1984 is wrongful and unlawful and against the laid down conditions of service and practice in the defendant’s company.

Having so held, the plaintiff is therefore entitled to the sum of N750, 000.00 as damages Plus N5, 000.00 costs for the plaintiff’s wrongful and unlawful dismissal.”

The appellant was dissatisfied with this decision and filed a notice of appeal containing five grounds of appeal. In compliance with the Rules of this Court the parties duly filed and exchanged their respective briefs of argument. The appellant formulated four issues for the determination of this appeal while the respondent formulated three issues. The issues formulated by the appellant are:

1. Whether or not the relationship between the appellant and respondent was that of master and servant.
2. Whether or not the dismissal of the respondent was justified.
3. Assuming (without conceding) that the dismissal was wrongful, was the learned trial Judge right in granting the declaratory and injunctive reliefs as well as the general damages claimed by the respondent in a master – servant relationship.
4. Whether or not the learned trial Judge was right in dismissing the appellant’s counter claim.

The three issues formulated by the respondent are substantially the same as issues 2, 3 and 4 formulated by the appellant. The law is trite that issues for determination must be distilled from the grounds of appeal, which must in turn be predicated on the ratio decidendi of the decision being appealed against. See: Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (326) 252: Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (938) 59 @ 90 F – H: Dalek Nig. Ltd. v. OMPADEC (20071 ALL FWLR (364) 204 @ 226 F – H.

I have carefully examined the grounds of appeal as contained at pages 51 – 53 of the record. None of the five grounds of appeal complain against any decision or finding of the lower court on whether or not the relationship between the parties was that of master and servant. I have also studied the judgment of the court at pages 49A – 49W of the record. There is no pronouncement of the court on this issue therein. The appellant’s first issue for determination therefore does not arise from any of the grounds of appeal. The said issue is therefore incompetent and it is accordingly struck out.

In determining this appeal I shall adopt the appellant’s issues 2, 3 and 4, which are hereby re-numbered issues 1, 2 and 3 respectively.

When we heard this appeal on 19th February, 2009, Mr. E.B. Ukiri, of counsel, adopted the appellant’s brief dated 3/11/05 and filed on 11/11/05 and urged us to allow the appeal. Mr. I. Clinton West, of counsel, adopted the respondent’s brief dated 16/10/06 and deemed filed on 21/3/07 and urged us to dismiss the appeal.

The facts that gave rise to the suit before the lower court can be briefly summarised thus:

The respondent was an employee of the appellant for 22 years.

He rose through the ranks from the position of Secretary Typist on 2nd October, 1962 to Departmental Store Manager (Executive) on 1st April, 1982.

On 27th April, 1984 the respondent was invited to the appellant’s head office in Lagos. He was questioned regarding the sale of Essential commodities to certain customers, which sale had previously led to his arrest and the arrest of the appellant’s Area Manager. It was the respondent’s case that after the discussion with the management in Lagos he was given a large envelope containing mail to be handed over to the Area Manager upon his return to Port Harcourt. That on the same day of his return he was given a letter dated 30th April 1984 summarily dismissing him from the appellant’s employment. He proceeded to challenge the dismissal in court, which led to the institution of this suit. On the other hand it was the appellant’s case that the summary dismissal of the respondent was proper and in accordance with the company’s conditions of service. It was contended that the respondent was negligent in the performance of his duty, had continuously caused losses to the appellant and was involved in certain malpractices particularly concerning the sale of Essential Commodities to members of the public. At the time the sale of such items was restricted by the Rivers State Government Directive to Limited Liability Companies. The appellant also contended that the respondent had unlawfully detained the official Peugeot 504 GR vehicle assigned to him for his official duties, hence its counterclaim, inter alia, for the current value of the car or its return.

Issue 1.

The appellant argued issues 2 and 3 (now issues 1 and 2) together. I am however of the view that the issues should be determined separately.

With regard to the first issue, learned counsel for the appellant submitted that in a master/servant relationship, the employer has the general power to dismiss an employee for any misconduct and for good or bad reasons. He relied on: Sule v. Nigeria Cotton Board (1985) 8 NWLR (310) 140 @ 161 – 194: Okosun v. G.B.N. (1996) 2 NWLR (429f 77 @ 86: and Union Bank of Nig. Ltd. v. Ogboh (1995) 2 NWLR (380) 647 @ 669. He submitted that in his evidence in chief before the lower court, the respondent admitted violating the appellant’s and Government’s directives against the sale of large quantities of essential commodities to traders; that the Police seized the essential commodities and sold them to themselves; that he was invited to the appellant’s Head Office as a result of the incident; that he admitted that he had been queried and warned for insubordination and that he also admitted that the appellant had complained about shortages in his department. Learned counsel submitted that any or all of these acts justified summary dismissal.

In reaction to this issue, learned counsel for the respondent submitted that the relationship between the parties was governed by the appellant’s conditions of service for senior staff as contained in Exhibit G. He argued that the respondent’s dismissal was premeditated and failed to comply with the provisions of Articles 10 and 11 of Exhibit C. He submitted that the respondent was not given an opportunity to respond in writing to the allegation against him.

He noted that Exhibit E, the letter of dismissal does not contain the reason for the dismissal. He submitted that an employer is bound to state the reason for summary dismissal. He relied on the case of:

George Abomeli v. Nigeria Railway Corporations (1995) 1 NWLR (373) 451 @ 468C-D.

On the need for strict compliance with Articles 10 and 11 of Exhibit C he relied on: Otu Edet v. Chief of Air Staff (1994) 2 NWLR (324) 41 @ 46 A – E: Iderima v. R.S.G.S.C. (2005) 16 NWLR (951) 378

@ 401 E – G. He submitted further that where the dismissal of an employee is based on an allegation of a crime, such as in the instant case where the appellant’s witness alleged that the respondent was dismissed for stealing, causing shortages and disobeying the appellant’s policy regarding bulk sales of essential commodities, the commission of the crime must be proved before the dismissal can stand. He relied on the case of: Osagie v. N.N.B. Plc. (20051 3 NWLR (9131 513 @ 531 C – D.

Learned counsel submitted that the allegation of insubordination contained in Exhibit M was dated 23rd January 1975 whereas the respondent’s last promotion to the position of store manager was on 25th March 1982 vide Exhibit A. He contended that the appellant, having regard to his subsequent promotion in 1982, had condoned the alleged insubordination. He relied on: Electricity Corp. of Nig. v. George Nicol (1968) ANLR 199 @ 204 – 295. He submitted further that the failure to state the reasons for the respondent’s dismissal was sufficient ground for declaring the action wrongful or unlawful.

He referred to Electricity Corp. of Nig. v. George Nicol (supra) @ 468C-D.

At common law, in a master/servant relationship devoid of statutory flavour, an employer has the right to summarily dismiss an employee on grounds of misconduct or wilful disobedience. See: Osisanya v. Afribank (Nig.) Plc. (2007) 6 NWLR (1031) 565 @ 587 D – E: Nwobosi v. A.G.B. Ltd. (1995) 6 NWLR (404) 656; (1995) 7 SGNJ 92: D.A. (Nig.) AIEP Ltd. v. Oluwadare (2007) 7 NWLR (1033) 336 @ 365 E – F. However-where conditions of service exist between the employer and the employee the provisions are binding on them.

Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. See: Edet v. Chief of Army Staff (1994) 2 NWLR (324) 41 @ 58 D – E; P.H.M.B. v. Ejitagha (2000) (Supra) @ 359 B-D.

An employer is not obliged to give reason for the summary dismissal of an employee. However once reasons are given and they are disputed, the onus lies on the employer to justify the reasons by evidential proof. See: NEPA v. Adeyemi (2007) 3 NWLR. Applying these principles to the case at hand, it is not in dispute that the respondent was promoted to the post of Department Store Manager vide Exhibit A dated 25/3/82. By virtue of Exhibit A the respondent was promoted to “Executive Grade”. The provisions of ‘Exhibit G (Conditions of Service for Senior Staff of the appellant company) are therefore applicable to him. Articles 10 and 11 of Exhibit G provide as follows:

“10. Discipline

The Manager of each department is vested with the responsibility of managing and disciplining his staff. Whenever it is intended to dismiss a Senior Staff member, the Manager of the Department should intimate the Director of Administration and Development of the circumstances of the case. The staff member concerned should be invited to give reasons in writing why a disciplinary action should not be taken against him.

11. Dismissal

Staff dismissal is the most serious disciplinary measure the Company can inflict on Staff members guilty of serious offences such as gross misconduct, fraud or abuse of office.

Such staff dismissal takes immediate effect, therefore the dismissed staff is not entitled to any payment of salary in lieu of notice. Furthermore he/she forfeits any entitlement to service gratuity, and the Company’s contribution to his/her Pension/Retirement Scheme.”

From page 49P line 32 to page 49S line 16 the learned trial Judge evaluated the evidence before him on the procedure adopted by the appellant to dismiss the respondent. He considered the provisions of Articles 10 and 11 of Exhibit C (reproduced above) and Exhibit D (the letter of dismissal) and also Exhibits G, K and M (correspondence relating to a complaint of insubordination against the respondent in 1975) respectively. His Lordship made the following findings:

a. That there was no evidence before the court to show that the respondent’s Area Manager (Azzan Williams) sent a report of the alleged fraud, insubordination and disobedience of the respondent to the Director of Administration and Management as stipulated by Article 10 of Exhibit C.

b. With regard to the allegation of fraud, stealing and shortage of certain stocks, the learned trial Judge observed that faced with the respondent’s assertions that the keys to the store were taken from him and that he was neither invited for stock taking nor confronted with any shortage, the appellant ought to have called Azzan Williams to testify regarding his non compliance with the provisions of Article 10.

c. That the respondent’s contention that he acted on Azzan Williams’ directives was not rebutted.

d. That there was no evidence that the respondent had prior notice of what he was to face when invited to Lagos vide Exhibit E.

e. That J.O. Onakunle who allegedly carried out the audit of the store did not testify.

f. That there was no evidence that the respondent was confronted with the audit report prepared by J.O. Onakunle.

g. That there was no evidence of what transpired in Lagos nor was there any report of the findings of any panel.

Based on the above findings, the learned trial Judge held that the appellant failed to comply with its conditions of service in the dismissal of the respondent and that he was not afforded a fair hearing in accordance with the principles of natural justice. He concluded that his dismissal was wrongful.

As observed earlier it was the appellant’s contention before the lower court, as averred in paragraph 2 (ii) & (iii), 9, 10, 17,18, 19 & 20 of the Further Amended statement of Defence at pages 7 – 11 of the record, that the respondent was summarily dismissed on grounds of gross misconduct, fraud and stealing. Having given reasons for the dismissal the appellant was bound to justify the reasons by evidential proof. See: NEPA v. Adeyemi (supra). The appellant’s witness, Michael Itsibor (DW1) testified thus at page 27 of the record:

“Plaintiff was summarily dismissed in 1984 when he caused theft, series of losses and shortages and for disobeying the defendant’s policy of not selling to a trader in bulk of (sic) essential commodities during the 1984 scarcity of essential commodities such as salt, milk, sugar and sarden (sic).”

To support the allegation regarding shortages DW1 tendered Exhibit L a report dated 24th April, 1984 titled “investigation into the malpractices committed by Dept. store Manager – port Harcourt” signed by one J.O. Onakunle. It contains an audit of the stock in the appellant’s Port Harcourt store. He also tendered Exhibit M, a memo dated 23rd January, 1975 signed by one J.O. Osuma regarding alleged acts of insubordination by the respondent.

The main issue here is not whether the acts complained of by the appellant amounted to gross misconduct, fraud or abuse of office which would warrant the summary dismissal of the respondent, but whether having evinced an intention to dismiss the respondent on these grounds, the procedure laid down by the appellant vide its Exhibit C was followed. It is instructive to note that the appellant has not challenged the specific findings of the learned trial Judge enumerated above. I have thoroughly examined the evidence on record and I am in complete agreement with the learned trial Judge that there was no evidence to show that the respondent’s Department Manager made a report of the allegations of fraud, insubordination and disobedience to Director of Administration and Development. There was also no evidence that the respondent was confronted with the allegations against him and invited to give reasons in writing why disciplinary action should not be taken against him as stipulated in Article 10 of Exhibit C. The radio message, Exhibit E dated 25/4/84 inviting the respondent to Lagos merely states:

“Mr. Peters should report in Lagos on Friday 27/4/84 at 10 a.m. in Mr. Craig’s office. Signed Mr. Craig.”

I agree with the learned trial Judge that there is nothing in Exhibit E indicating the nature of the meeting or what the respondent was to expect. As correctly observed by His Lordship, the appellant did not tender any record of what transpired on that day. There is also no evidence before the trial court that the respondent was confronted with the allegations against him and invited to give reasons in writing why disciplinary action should not be taken against him in compliance with Article 10 of Exhibit C. As regards Exhibit L, the audit report, the respondent specifically pleaded and testified that the audit was not conducted in his presence. His evidence in this regard stands unchallenged. The author of Exhibit L did not testify certainly Exhibits G, K and M which all arose out of the respondent’s alleged insubordination in 1975 were not shown to have been the grounds for his dismissal in 1984, nine years later. I agree with learned counsel for the respondent that by his subsequent promotion to the executive position of Department Store Manager in 1982, Exhibits G, K and M were no longer relevant.

In light of all the observations made above it is evident that the lower court was right when it held at page 49S of the record thus:

“Where a contract had been properly terminated intention and notice become irrelevant. But where the defendant pleads that a plaintiff is being removed for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct.

The court frowns at refusing fair hearing to a person whose right is allegedly violated.

Having so found above I hold that the 1st relief of the plaintiff succeeds,”

The appellant has failed to adduce any reasons why the finding of the learned trial Judge in this regard should be disturbed.

The first issue is accordingly resolved against the appellant and in favour of the respondent.

Issue 2

The second issue is whether the learned trial Judge was right in granting the declaratory and injunctive reliefs as well as the general damages claimed by the respondent.

In support of this issue, learned counsel for the appellant submitted that the respondent failed to furnish the lower court with the necessary materials for the assessment of damages. He noted that the respondent claimed N750, 000.00 as general damages against the appellant but failed to tender his letter of appointment, which would have provided the information upon which the assessment could have been based. He submitted that damages for wrongful dismissal are not at large but dependent on the required length of notice. He relied on: Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (145) 506 @ 519 A & 525 – 526 H – A;

Amodu v. Amodu & Anor. (1990) 5 NWLR (150) 356 @ 373 A -B;

A.O. Borishade v. National Bank of Nigeria Ltd. now reported in (2007) 1 NWLR (1015) 217.

He submitted further that the declaratory and injunctive reliefs and the alternative claim for general damages are not proper reliefs in a claim for wrongful dismissal in a master/servant relationship.

He relied on:Oyedele v. I.U.T.H. (1990) 6 NWLR (155) 194 @ 199 C – D; Imolame v. W.A.E.C. (1992) 9 NWLR (265) 303 @ 316 – 319; S.P.D.C Ltd v. S. Lawson-Jack (1998) 4 NWLR (545) 249; S.P.D.C. Ltd. v. Omu (1998) 9 NWLR (567) 672. He urged us to set aside the awards made in-favour of the respondent.

In reply to this, issue, learned counsel for the respondent submitted that the underlying principle in the award of damages is that a court would award damages so far as money can compensate the injured party for the wrongful act and for all the natural and direct consequences of the wrongful act. He cited the case of:

Igbinovia v. Agboifo (2000) 12 NWLR (681) 336 @ 345 B-C; U.T.B. (Nig.) Ltd v. Ozoemena (2001) 7 NWLR (713) 718 @ 736 C – D. He submitted that the award of N750, 000.00 to the respondent as general damages in the circumstances is proper as the damage flows naturally from the wrongful act of the appellant. He contended that the dismissal of a person from the services of his employer brings disgrace to the individual, bars him from securing new employment and disentitles him from receiving his pension and other benefits from his employer.

He submitted that the argument of learned counsel for the appellant that the quantum of damages is dependent on the required length of notice is untenable in the present circumstances on the ground that length of notice is applicable to termination of employment and not summary dismissal. He relied on: lsievworye v. NEPA (2002) FWLR (124) 398 @- 411 C – D: Imoloame v. W.A.E.C. (1992) 9 NWLR (265) 303 @ 313 B – D. He noted that the lower court did not grant the injunctive relief as contended by learned counsel for the appellant.

The respondent’s claims as set out in paragraph 15 of his amended statement of claim were reproduced earlier in this judgment. The claims that are relevant for the consideration of the appellant’s second issue are reliefs (b) and (d), which I shall repeat hereunder for ease of reference:

“(b) That the plaintiff is therefore entitled to the full benefits of all his entitlements in the U.T.C. pension fund, the National Provident Fund Contributions.

Alternatively:

(d) The plaintiff claims N750, 000.00 as damages for unlawful dismissal of the plaintiff by letter dated 30th April 1984.”

It is instructive to note, as submitted by learned counsel for the respondent that the learned trial Judge did not grant the injunctive relief sought in the amended statement of claim.

Secondly, having declared the respondent’s dismissal wrongful, the court proceeded to grant the alternative prayer (d) for damages in the sum of N750, 000.00. The issue in contention therefore is whether the respondent was entitled the award of damages made in his favour.

Learned counsel for the respondent correctly stated the general position of the law on the relevant principles governing an award of general damages, to whit: that general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of. The law is settled that in a master/servant relationship the damages recoverable by an employee for wrongful dismissal is the salary or other entitlements already lawfully accruable and payable for the period for which he should have been given notice of termination. See: Osisanya v. Afribank (Nig.) Plc. (2007) 6 NWLR (1031) 565 @ 586 D – F: Akinfosile v. Mobil Oil (Nig.) Ltd. (1969) Vol.6 NSCC 376 @ 380 lines 34 – 53: and lmoloame v. W.A.E.C. (supra) at 319 E – G.

Learned counsel for the respondent has argued that the length of notice is not applicable in a case of wrongful dismissal. In the case of Akinfosile v. Mobil Oil (Nig.) Ltd (supra) the Supreme Court held at page 380 lines 34 – 38:

“It is manifest from the agreement, Exhibit A that either party could terminate it for no cause whatsoever on giving 30 days’ notice. That being the case, it seems to us that the damages which could be considered to be the natural and probable consequence of a breach of the agreement are those resulting from the failure to give the required 30 days’ notice. We are in agreement with Mr. Molajo that that cannot be more than what the plaintiff could have earned in those 30 days”.

(Underlining mine for emphasis.)

I have read the authority of lmoloame v. WAEC (supra) relied upon by learned counsel for the respondent. It does not support his position that the length of notice is inapplicable in cases of wrongful dismissal. Indeed it supports the view that where an employer fails to comply with the laid down procedure for terminating an employee’s employment or the procedure for dismissal there is an implied term that the contract between the parties can only be terminated by reasonable notice. The Court held that what amounts to reasonable notice is usually dependent, inter alia, on the nature of the contract between the parties and the status of the employee. In lmoloame’s case (supra the applicable conditions were not before the court. The Supreme Court held that the lower court was right to infer the giving of reasonable notice. In the circumstances of that case three months was considered reasonable. In the instant case however the conditions of service, Exhibit G are available and applicable.

The underlying rationale for the above decisions of the Supreme Court is that where an employee’s dismissal has not complied with the laid dawns procedure, it amounts to terminating his appointment in violation of the agreement between the parties (as contained in the conditions of service or contract), which stipulates that a period of notice or salary in lieu thereof would be given to an employee before his services are dispensed with. It supports the view that an employer is entitled to dispense with the services of his employee for good or bad reasons or for no reason at all and the court would not foist an employee on an unwilling employer. See: Abomeli v. N.R.C. (supra) @ 468 B – C.

The first question that arises from the above statement of the law is what is the period for which the respondent should have been given notice of termination? The learned trial Judge found as established the fact that Exhibit c governed the respondent’s employment with the appellant. Article 9 thereof provides:

“Termination of Appointment

9. (a) The company may terminate an employee by giving him notice in writing as stipulated in in appointment letter, or payment in lieu thereof.

(b) A member of staff may also terminate his employment after giving to the Company notice in writing as stipulated in his letter of appointment or payment in lieu thereof.

(c) A Senior member of staff may be terminated for serious misconduct if found justified by the Company, in which case no notice is given and all privileges are forfeited.”

Having found that the respondent’s dismissal was wrongful, the provision of Article 9 (c) is not applicable. By sub paragraphs (a) and (b) the length of notice that could be given on either side is as stipulated in the employee’s employment letter. As correctly observed by learned counsel for the appellant, the respondent did not tender his letter of appointment. There were therefore no facts before the lower court upon which to determine the salary he was entitled to in lieu of notice.

On the authority of Osisanya v. Afribank (Nig.) Plc. (supra) and Akinfosile v. Mobil Oil (Nig.) Ltd. (supra) the general damages would also include the employee’s entitlements already lawfully accruable and payable for the period for which he should have been given notice of termination. The learned trial Judge, at pages 49 U – 49 V enumerated the entitlements of the respondent as contained in Articles 6, 18 & 22 of Exhibit C.

Thereafter he made this very pertinent observation at page 49 V lines 1 – 4 of the record:

“But the plaintiff has not told this court how much his salary was at the time he was summarily dismissed; that could have been the bottom line upon which calculation could have been focused.”

He went further and held thus at lines 4 – 15

“Be that as it may, the following facts were not denied

(a) that the Plaintiff is a Senior Staff entitled to pension and other benefits as stated in Exhibit C;

(b) that he served the defendant up to 22 years before this inceration (sic);

(c) that he and his family are entitled to free medical treatment;

(d) that he is entitled to his gratuity as stated in Exhibit C.

These details epitomise his entitlements which shall naturally flow from his wrongful and unlawful dismissal. In awarding general damages, I shall take into consideration the value of our Naira then and now. The difference is clear.”

After considering and dismissing the appellant’s counter claim, the learned trial Jude proceeded to award the respondent N750, 000.00 without stating how he arrived at that figure. I am of the view and I do hold that His Lordship was in error to have made the award of N750, 000.00 as general damages. Having found that the respondent was unlawfully dismissed he was entitled to his benefits that had accrued under the appellant’s Pension Fund and his National Provident Fund contributions. In other words he was entitled to his relief as contained in paragraph 1s (b) of his amended statement of claim. Indeed the last paragraph of Exhibit D, the letter of dismissal states thus:

“Would you please complete the attached Leaving Service Certificate Form and return same to the Staff Development office to enable us process the withdrawal of your contributions from the Pension Fund.”

This issue is therefore resolved in favour of the appellant and against the respondent.

Issue 3

The final issue for determination is whether the learned trial Judge was right in dismissing the appellant’s counter claim.

In arguing this issue, learned counsel for the appellant submitted that the respondent did not challenge the counter claim.

He referred to pages 24 and 25 of the record wherein he contended that the respondent admitted that he was still in possession of the appellant’s official vehicle. He submitted that the appellant established its counter claim through oral and documentary evidence. He relied on Exhibit L in support of the claim for special damages in the sum of N41, 087.67. He argued that the respondent admitted the purchase price of the vehicle and ought to have been ordered to pay the said purchase price or compelled to return the car in a perfect mechanical condition. Alternatively he submitted that the respondent should have been ordered to pay the market price of N1, 500.000.00. He submitted that the respondent’s retention of the car was unlawful. He submitted that where goods are unlawfully detained the Court could order restitution and damages in favour of the owner of the goods. He referred to:

Oguigo & Sons Ltd. vs. C.O.P. (1991) 3 NWLR (177) 46 @ 63 C – B.

He submitted that the learned trial Judge was in error to have dismissed the counter claim and urged this Court to intervene.

In reply to this issue, learned counsel for the respondent submitted that the appellant did not give any evidence regarding the value of the car nor the amount it claimed in lieu of an order being made for the release of the car. He submitted that a counter claim being an independent action, the plaintiff must prove his claim to the satisfaction of the court. He relied on: Gowon v. Ike Okongwu (2003) FWLR (147) 1027 @ 1035 F – G; Oyegbola v. Esso West Africa Inc. (1966) 1 ANLR 170.

With regard to Exhibit L he referred to the findings of the learned trial Judge at page 49V lines 17 -24 and submitted that His Lordship properly evaluated the evidence before him. He noted that the respondent had challenged the authenticity of Exhibit L on the ground that he was not invited for the stock taking. He observed that the evidence of the appellant’s witness on the procedure for stock taking to the effect that the Store Manager must be present, buttressed the respondent’s position on the issue. On when an appellate court would interfere with the evaluation of evidence by a lower court he relied on: Olatunde v. Abidogun (2001) 18 NWLR (746) 712 @ 721 A – B. He contended that the appellant has not shown any reason for this Court to interfere with the decision of the lower court.

In paragraph 21 of the counter claim at page 11 of the record the appellant claimed special damages as follows:

(a) N1, 500,000.00 being the current value of Peugeot 504 GR with registration no. RV 6922 PD;

(b) N41, 087.67 being the cost of goods found missing from its store for which the respondent was the store Manager;

(c) N100, 000.00 being general damages for wrongful detention of the car.

The total amount of special damages claimed was N1, 641, 087.80.

In the alternative to paragraph 21 (a) the appellant sought an order for the delivery of the vehicle in a perfect mechanical state.

Special damages must not only be specifically pleaded, they must be strictly proved by evidence of particular losses. See: Xtoudos Services Nig. Ltd. & Anor. v. Taisei (W.A.) Ltd. & Anr. (2006) 15 NWLR (1003) 533: Mobil Oil (Nig.) Ltd. v. Akinfosile (supra). The failure of the respondent to file a defence to the counter claim in the circumstances of this case would not relieve the counter claimant of the burden establishing his claims.

The only witness for the appellant was DW1, the Accounts Supervisor. In proof of paragraph 21 (b) he tendered Exhibit L, the stock taking report prepared by one J.O. Onakunle, who did not testify. On this document the learned trial Judge held thus at pages 49V – 49W of the record:

“It is to be noted that the Plaintiff has contended that he was not invited when the stock taking was made but all keys were taken away from him. Unfortunately this J.O. Onakunle was not called to clear this serious allegation. In the face of this serious doubt can we say there was indeed a loss in the Departmental Store at Port Harcourt? Can we say that Exhibit L is credible documentary evidence without subjecting it to a proper test through the maker? … It is my view therefore that no special damages based on Exhibit L has been proved against the plaintiff.”

Where a trial court has satisfactorily performed its function of evaluating evidence and ascribing probative value thereto, an appellate court would not interfere with its findings on such evidence. See: Atolagbe Vs Shorun (1985) 1 NWLR (2) 360; A.N.P.P v. P.D.P. (2006) 17 NWLR (1009) 467 at 501 C – F. The evidential value of Exhibit L was considered in the course of resolving issue no. 1 earlier in this judgment. The finding of the learned trial Judge is consistent with the evidence on record. I find no reason to disturb it.

On the other hand, DW1 did not tender any evidence whatsoever in proof of the special damages claimed for the value of the Peugeot 504 GR. However the fact that the vehicle was still in the respondent’s possession was not in dispute between the parties. In paragraphs 12 and 13 of his amended statement of claim the respondent averred that he was issued with the Peugeot 504 GR with registration number RV 6922 PD by the appellant for his official duties and that he installed certain fittings therein at his own expense with the approval of the Area Representative on the understanding that the vehicle would eventually be sold to him. The said paragraphs were admitted in paragraph 11 of the further amended statement of defence only to the extent that the respondent was issued with the said vehicle for his official duties.

In paragraph 16 of the further amended statement of defence it is averred that a demand was made for the return of the vehicle in the letter of dismissal Exhibit D and that the respondent refused to return it. From page 24 lines 30 – 33 to page 25 lines 2 – 6 of the record the respondent testified thus under cross examination:

“The official vehicle is still with me. The defendant requested for a return of the vehicle but I refused with reasons. … I have been enjoying it on the understanding that it would be sold to me. The car was not sold to me before I was dismissed because the period had not expired for the defendant to sell it to me which is usually four years. I used it from 1982 – 7984.”

The law is that facts admitted require no further proof. See: section 75 of the Evidence Act. From the pleadings and the evidence before the court, the appellant had established the wrongful detention of the vehicle by the respondent. Having failed to prove the special damages in reliefs (a) and (b), the appellant was nonetheless entitled to its prayer (c), general damages for wrongful retention of the vehicle or the alternative prayer for a return of the vehicle. The learned trial Judge was therefore in error to have dismissed the counterclaim in its entirety. From the unchallenged evidence of the respondent at page 25 lines 8 and 9 of the record as at 9/12/97 when he testified the vehicle was no longer in use due to wear and tear. The appellant ought to have been awarded general damages for the wrongful detention of the vehicle. This issue is accordingly resolved in favour of the appellant.

In conclusion this appeal succeeds in part. The judgment of the lower court, declaring the dismissal of the respondent by letter dated 30th April 1984, wrongful is hereby affirmed. The award of N750, 000.00 as general damages in favour of the respondent is hereby set aside. We hold that the respondent is entitled to his relief (b) as contained in paragraph 1 of his amended statement of claim. Prayer (c) of the appellant’s counter claim succeeds.

The appellant is hereby awarded general damages in the sum of N75, 000.00 for the wrongful detention of its vehicle by the respondent.

The parties shall bear their respective costs in this appeal.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I was privileged to have read before now, the lead judgment prepared and delivered by my learned brother, KEKERE-EKUN, JCA. I had equally gone through the respective briefs of argument of learned counsel and the entire record of proceedings of the court below, which was transmitted to this court since on 29/6/2005. A separate copy of the judgment appealed against was however filed in court as a supplementary record on 13 /7/06.

It is evident from the record of appeal, that the Respondent was employed by the Appellant on 02/10/62 as a secretary Typist. He gradually rose through the ranks to the coveted managerial post of store manager on 01/4/82. However, the Respondent’s career came to an abrupt and rather crushing end on 30/4/84, when he was summarily dismissed from the service of the Appellant. Not unnaturally, the Respondent was aggrieved by the dismissal thereof. Thus, on 28/5/84, he filed a suit NO.PHC/78/84 in the court below praying, inter alia, that the purported summary dismissal be declared wrongful, unlawful and against the led down conditions of service and practice in Appellant’s Company. By the amended statement of claim thereof, filed on 28/11/95, the Respondent prayed the lower court for the following reliefs:

(a) A declaration that the purported summary plaintiff by letter dated 30th April, 1984 is wrongful and unlawful and against the laid down condition of service and the practice in the Defendant’s company.

(b) that the plaintiff is therefore entitled to the full benefits of all his entitlements in the U.T.C. pension fund, the National Provident Fund Contributions.

(c) An injunction to restrain the Defendant from tampering with the statute quo of the parties’ vis-‘E0-vis entitlements prior to the date of the summary dismissal letter dated 30th April, 1984.

AND OR IN THE ALTERNATIVE

(d) The Plaintiff claims N70, 000.00 as damages for unlawful and wrongful dismissal of the Plaintiff by letter dated 30th April 1984.

On the other hand, by the amended statement of defence thereof, the Appellant not only denied the claim but also counter-claimed against the Respondent in the sum of N1, 641,087.67 (One Million six Hundred and Forty one Thousand Eighty Seven Naira sixty seven Kobo) as general and special damages for the Respondent, wrongful detention of the Appellant’s Peugeot 504 G& RV 6932 PD then valued N7, 782, but current value of N1, 500,000.00.

At the conclusion of the trial of the suit, the learned trial judge delivered judgment on 17/11/2000 to the effect, inter alia, thus:

The (court) claim of the Defendant therefore fails and is accordingly dismissed.

I am in no doubt therefore that the plaintiff has proved his case against the Defendant and I so hold.

The plaintiff is therefore entitled to the following declaration:-

That the purported summary dismissal of the plaintiff by letter dated 30th April, 1984 is wrongful and against the laid down conditions of service and the practice in the Defendant’s company.

Having so held, the plaintiff is therefore entitled to the sum of N750, 000.00 as damages plus N5, 000.00 costs for the plaintiff’s wrongful and unlawful dismissal. Bracket added.

The Appellant’s learned counsel, E.B. UKIRI ESQ. has in the brief thereof formulated a total of four issues for determination, to wit:

(i) Whether or not the relationship between the Appellant and Respondent was that of master and servant.

(ii) Whether or not the dismissal of the Respondent was justified

(iii) Assuming (with out conceding) that the dismissal was wrongful, was the Learned trial Judge right in granting the declaratory and injunctive reliefs as well as the general damages claimed by the Respondent.

(iv) Whether or not the learned trial Judge was right in dismissing the Appellant’s counter claim.

ON ISSUE NO.1:

It is pertinent that on 31/3/2000, the Appellant’s counsel in the lower court had in his address raised three issues for determination. See page 38 of the record. Most certainly, the issue of whether the relationship between the Appellant and the Respondent was that of master and servant was not one of them. Not surprisingly, therefore, the lower court did not allude to, or make any pronouncement, on that issue in the judgment therefore. The issue is thus incompetent and ought to be discountenanced, for not having been canvassed at the trial of the suit.

It is indeed a trite and well settled principle, that for an issue to be competent, it must have been distilled from a valid ground of appeal which is predicated on a ratio decidendi of the decision appealed against. BRIGGS V. C.L.O.R.S. (2005) 12 NWLR (938) 59 at 90 paragraphs F – H; DALEK NIG. LTD V. COMPADE (2007) ALL FWLR (364) 204 at 226 paragraphs F – H.

ON ISSUE NO.2:

The second issue raises the vexed question of whether the dismissal of the Respondent was justified. Considering the submissions of the learned counsel in their respective briefs, the authorities cited and relied upon vis-a-vis the record of the lower court, there is every reason to believe that the answer to that pertinent question is undoubtedly in the affiemative. It is not in dispute that the provisions of the conditions of services for service for senior staff of the Appellant (Exhibit C) are applicable to the Respondent, as a managerial staff of an Executive Grade. By virtue of the conditions of service, the Respondent was entitled to be accorded the right of fair hearing prior to the termination of his employment. The finding of the lower court is to the effect, inter alia, that-

In my view the Defendant has violated article 10 which they set for themselves and which should be binding on both employer and the employee.

….The dismissal which was based on this nonchalant approach, a deviation from the principle of fair hearing and a violation to the terms of service of the Defendant is therefore wrongful and unlawful and l so uphold.

I think, I can not agree more with the findings of the learned trial judge. It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus-

(i) To place before the trial court the terms of the contract of employment;

(ii) To prove the manner in which the said terms were breached by the employer thereof.

See GARUBA V. KIC LTD (2005) 5 NWLR (part 917) 160; JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.

In the instant case, as alluded to above, the learned trial judge’s findings, to the effect that the Respondent’s employment was wrongfully terminated by the Appellant are rather unassailable. Thus, the second issue is hereby answered in the affirmative and accordingly resolved in favour of the Respondent.

ON THE ISSUE NO.3:

The Appellant’s third issue raises the question of whether or not the learned judge was right in granting the declaratory and injunctive reliefs and the general damages in favour of the Respondent, and dismissing the Appellant’s counter claim. At page 49 of the record the learned trial judge was recorded to have declared thus:

That the purported summary is dismissal of the plaintiff by letter date 30th April, 1984 is wrongful and unlawful and against the laid down conditions of service and the practice in the Defendant’s company.

Having so held, the plaintiff is therefore entitled to the sum of N750, 600.00 as damages plus N5, 000.00 cost for the plaintiff’s wrongful and unlawful dismissal

Ironically, however, in the amended statement of claim thereof, the Respondent has not pleaded his entitlement to the N750, 000.00 damages awarded thereto by the trial court. The letter of employment was not also tendered to support the award of damages in question. It is trite, that a party claiming damages has an onerous duty or onus to provide the court with sufficient materials required for the assessment of damages. Thus, where a plaintiff has failed to provide adequate materials for the assessment of damages in favour thereof, as in the instant case, his claims for damages must fail. See AMODU V. AMODE & ANOR (1990) 5 NWLR (Part 150) 356 at 373 Paragraphs A – B; MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (Part 145) 506 at 519 paragraph A; 525-526 paragraph A; 525-526 paragraph H-A.

The law is in indeed trite, that special damages must not only be specifically pleaded by a party, but that they should be proved by cogent evidence of specific losses; MOBIL OIL (NIG.) LTD V. AKINFOSILE (1969) 6 NSCC 376; XTOUDOS SERVICES NIG. LTD & ANOR V. TAISSEI (WA) LTD & ANOR (2006) 15 NWLR (part 1003) 533.

In the circumstances, the lower court was wrong to have awarded the N750, 000.00 as general damages to the Respondent.

The third issue is answered in the negative, and therefore resolved in the Appellant’s favour.

ON ISSUE NO. 4:

The fourth issues raises the question of whether the learned trial judge was right in dismissing the Appellant’s counter claim. Having considered the submissions of the respective learned counsel in the brief thereof vis-a-vis the record of the trial court, there is no doubt that the answer to this issue ought to likewise be in the negative, and resolved in the Appellants favour. The Respondent had failed, for reasons best known thereto, file a defence to the Appellant’s counter claim.

However, the law is still trite that the party who asserts has the onus or duty to prove his assertion or claimed by adducing credible evidence. See section 136 of the evidence Act, to the effect that the burden of proof in civil matters lies on the party who would fail if no evidence at all was adduced on either side. Thus, the onus or burden lies on the claimant to adduce credible evidence in proof of his claim or defence, but strictly on the strength of his own case. The balance of proof in civil cases is on the balance of probability or preponderance of evidence so far adduced. See ONIFADE V. OYEDEMI (1999) 5 NWLR (part 601); LARMIE V. DPMS LTD (2006) 18 NWLR (part 958) 438; AWUSE V. ODILI (2005) 16 NWLR (part 952); UKPO V. IMOKE (2009) 1 NWLR (part 1121) 90 at 143 Paragraphs C-H; 144 paragraph B, respectively.

In the instant case, there is every reason to uphold the finding of the learned trial, judge, to the effect, inter alia that the Appellant’s counter claim has not been proved and it therefore fails. It’s trite that special damages must not only be specifically pleaded, but that they have to be unequivocal proved by cogent evidence of specific losses to that effect.

However, regarding the second aspect of the counter claim relating to general damages for wrongful detention or retention of the staff Peugeot 504 GR RV 6922 PD by the Respondent, the learned trial judge was undoubtedly in error to have dismissed that aspect of the counter claim. The vehicle in question having been out of use due to wear and tear, the Appellant ought to be entitled to general damages for the wrongful detention thereof by the Respondent. The 4th issue is thus answered in the negative and resolved in favour of the Appellant.

Hence in the light of the aforesaid, I have no hesitation in associating myself with the reasoning and conclusions reached in leading judgment prepared and delivered by my learned brother, KEKERE-EKUN, JCA, to the effect that the appeal succeeds in part. The judgment of the lower court delivered on 14/11/2000 declaring the dismissal of the Respondent by the Appellant, vide letter dated, 30/4/08 “wrongful and unlawful”, is hereby affirmed by me. However, the award of N750, 000.00 as general damages in favour of the Respondent is contained in paragraph 15 of the amend statement of claim thereof. The Appellant’s prayer (c) of his counter claim succeeds and same is hereby allowed. I abide by the consequential order of N75, 000.00 awarded in favour of the Appellant for the wrongful detention of the vehicle thereof.

No order as to costs.

---

Other Citations: (2009)LCN/3125(CA)