ANGEL SPINNING & DYEING LIMITED v. MR. FIDELIX AJAH(2000)

ANGEL SPINNING & DYEING LIMITED v. MR. FIDELIX AJAH

(2000)LCN/0781(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of May, 2000

CA/K/65/97

JUSTICES

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

OLUDADE OLADAPO OBADINA Justice of The Court of Appeal of Nigeria

Between

ANGEL SPINNING & DYEING LIMITED Appellant(s)

AND

FIDELIX AJAH Respondent(s)

RATIO

THE POSITION OF THE LAW ON THE QUANTUM OF DAMAGES AWARDABLE IN A CASE OF WRONGFUL TERMINATION OF A CONTRACT OF EMPLOYMENT

The quantum of damages awardable in case of wrongful termination of a contract of employment is what the employee would have earned if proper notice had been given and if there is no provision for notice in the contract, what the employee could have earned if reasonable notice was given. What constitutes reasonable notice depends on the nature of the employment, the status of the employee and the length of service the employee has put in the service:- See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 320; I.D.C. v. Ajijala (1976) 2 SC 115 at 119; Mobil Oil Nigeria Limited v. Abraham Akinfosile (1969) 1 NMLR 217. Having received all his just entitlements under the contract of his employment, it seems to me the respondent has put to rest any contract real or imagined which he has or thought that he had with the appellant. The position of the respondent is not dissimilar to the appellant in Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506. See also Guinness (Nig.) Ltd. v. Agoma (1992) 7 NWLR (Pt.256) 728 at 742. PER OBADINA, J.C.A.

WHETHER OR NOT A SERVANT HAS A CLAIM TO FAIR HEARING IF HIS CONTRACT OF EMPLOYMENT PROVIDES FOR NOTICE OR PAYMENT IN LIEU OF NOTICE

The law is well settled that a servant has no claim to fair hearing if his contract of employment provides for notice or payment in lieu of notice. In David-Osuagwu v. A.-G., Anambra State (1993) 4 NWLR (Pt.285) 13 at 41, the Court of Appeal, per Awogu. J.C.A. had the following to say on issue of fair hearing:-

“On the issue of whether or not a claim under Fundamental Rights (Enforcement Procedure) Rules, applies across the board, we agree that it is limited to an infringement of a right mentioned in Sections 30 to 41 of the 1979 Constitution. Thus a servant has no claim to fair hearing if his contract of employment provides for notice or payment in lieu of notice. If there is no provision, the court may determine whether the notice or the amount paid in lieu of same is adequate. Thus, it needs no restatement that the law of master and servant may be governed by both common law and statute, and that termination of appointment depends upon what the contract between the Parties provides.” PER OBADINA, J.C.A.

THE STANDARD OF PROOF IN A CLAIM FOR DECLARATION

OBADINA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the Kano State High Court delivered on the 17th October, 1996 in favour of the respondent against the appellant in suit No.K/69/95. The respondent was the plaintiff, while the appellant was the defendant. At the High Court, the respondent as plaintiff claimed in paragraph 19 of the statement of claim as follows:-

“Whereof the plaintiff claims as follows:-

(i) A declaration that the purported termination of the plaintiff’s employment conveyed in the defendant’s letter dated 12th December, 1994 addressed to the plaintiff is ineffective, wrongful, null and void.

(ii) An order reinstating the plaintiff to his position with all benefits and privileges appertaining thereto, with effect from the date of such purported termination of employment.

(iii) Further and in the alternative, the plaintiff claims from the defendant the sum of N60,500 being special damages for the loss caused to plaintiff by the defendant by reason of the defendant so unfairly and wrongfully terminating the plaintiff’s employment.

(iv) The plaintiff also claims general and compensatory damages from the defendant.”

Pleadings were exchanged by the parties. At the trial before the Lower Court, the respondent as plaintiff testified as PW1, and tendered Exhibits 1 – 11. He called no other witness. The appellant as defendant called only a witness who testified as DW1 and tendered Exhibits 12 – 16. The learned counsel to the parties addressed the court. On the 17th of October, 1996, the learned trial Judge delivered his judgment and entered judgment in favour of the respondent. It is against the judgment that the appellant now appealed to this court, on four(4) original grounds of appeal. Pursuant to the leave of this court, the appellant amended the original notice and grounds of appeal to the present six (6) grounds of appeal.

From the six (6) amended grounds of appeal, the appellant formulated three (3) issues for determination; namely:-

(1) Whether the learned trial Judge was right in ordering the appellant to reinstate the respondent to his former position with all the benefits and privileges appertaining thereto in view of the nature of the respondent’s contract of employment with the appellant coupled with the evidence adduced on the printed record.

(2) Whether the learned trial Judge was justified in law in declaring the respondent’s termination of employment as contained in the appellant’s letter of 12th December, 1994, wrongful, null and void, solely on the ground of lack of fair hearing.

(3) Whether the learned trial Judge was right in finding that the respondent proved his case on the balance of probabilities to warrant the declaratory orders made and award of N60,500 as damages in favour of the respondent.

In arguing the first issue raised in the appeal, the learned counsel for the appellant referred to the findings of the learned trial Judge on pages 53 paragraph 4 of the record of appeal, wherein the learned Judge stated:-

“I therefore enter judgment for the plaintiff against the defendant that the termination of the plaintiff’s employment conveyed in the defendant’s letter dated 12th December, 1994 addressed to the plaintiff is herein declared wrongful, null and void. The defendant is further ordered to reinstate the plaintiff to his position with all the benefits and privileges appertaining thereto with effect from the date of the termination of employment.”

The learned counsel referred to Exhibit 1 paragraph 13, titled ‘contract of employment’, and the evidence of the respondent given as PW 1, wherein the respondent stated that he has collected a month’s salary in lieu of notice. He submitted that the employment of the respondent was properly determined in strict compliance with paragraph 13 of the contract of employment, Exhibit 1. He referred to the case of Morohunfola v. Kwara State College of Tech. (1990) 4 NWLR (Pt.145) 506 at 528, and Guinness (Nig.) Ltd v. Agoma (1992) 7 NWLR (Pt.256) 728 at 742. He submitted that the learned Judge was wrong in ordering the appellant to reinstate the respondent.

The law is well settled that when an employee complains that his employment has been wrongfully terminated, that employee has the onus:-

(a) to place before the court terms and conditions of the contract of employment; and

(b) to prove in what manner the said terms were breached by the employer.

The term of contract of service is the bedrock of any case where the issue of wrongful termination of employment calls for determination. See Amodu v. Amode (1990) 5 NWLR (Pt.150) 356; Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379 at 412.

In Amodu v. Amode (supra) Agbaje. J.S.C. who read the leading judgment observed at page 370 as follows:-

“It appears clear to me that since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question.”

To this, Wali. J.S.C. added at page 373:- “The term of the contract of service is the bedrock of the appellant’s
case.”

As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the court will not and should not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties:- See Western Nigerian Development Corporation v. Abimbola (1966) 4 NSCC 172 at 188. (1966) 1 aLL NLR 159. In that case, the Supreme Court held at page 194 of the report inter alia as follows:-

“That the provisions of a written contract of service bind the parties thereto and it was outside the province of the learned Judge to look at any where for terms of termination of the contract other than in the contract agreement.”

It is also the law that in ordinary contracts of employment where the terms provide for one month’s notice before termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to an end:- See Francis Adesegun Katto v. C.B.N. (1999) 6 NWLR (Pt.607) 390 at 406; WNDC v. Abimbola (supra), which is very relevant to the case in this appeal. In that case the plaintiff sued for wrongful dismissal, claiming for special and general damages, as in this case. There had been some allegations of fraud against him. The trial Judge awarded him a month’s salary and also general damages on the basis of loss of prospects of continued employment for dismissed employee e.t.c. It was true that the dismissal was wrongful. On appeal to the Supreme Court, it was observed, per Ajegbo, J.S.C. at page 174 of the report as follows:-

“The plaintiff was given a letter of appointment, (Exhibit H) and paragraph 5 of the letter reads:-
‘Your employment may be terminated by the Board or yourself by giving one month’s notice in writing or by giving one month’s salary in lieu of such notice excepting in the case of dismissal for offence prejudicial to the interest of the Board.’

The plaintiff’s appointment was governed by the contract into which he entered at the time of his employment. If he had been given one month’s notice before termination of his appointment he would have had no claim whatsoever on the corporation. But he was not given notice and he is entitled to one month’s salary in the absence of notice. That is all he can get as damages; other matters that the Judge considered are irrelevant.”

However, it was further explained by the Supreme Court in Nigeria Produce Marketing Board v. Adewunmi (1972) 7 NSCC 662; (1972) 11 SC 111 that apart from the salary in lieu of notice, the plaintiff would be paid other legitimate entitlements due to him at the time the employment was brought to an end.

In this case, it is not in dispute that the terms and conditions of the contract of service between the appellant and the respondent provide for notice to be given before termination. The respondent gave evidence at the trial and tendered Exhibit 1, the contract of employment. Paragraph 13 of Exhibit 1 reads as follows:-

“Under normal circumstances either party shall terminate the contract by giving to the other due notice as stipulated by law or pay in lieu of 1 day notice, if the contract is for three months or less; 1 week if the contract continued for three months and less than 2 years; 2 weeks if the contract continued for more than 2 years but less than 5 years and one month if the contract continued for 5 years or more.”

The above is the contract which the appellant entered into with the respondent. The parties are bound by the terms and conditions of the agreement. The respondent testified at the trial that he worked with the appellant for four (4) years and seven (7) months; and that after Exhibit 3, that is, the letter of termination, was given to him, he felt that his termination was improper and wrongful. He requested to see the Managing Director of the appellant company to tell him (the M.D) his, the respondent’s complaint. He was prevented by the security men from seeing the Managing Director. He then went and collected one month’s salary in lieu of notice. He later got in touch with his solicitors. The question arises; having collected his entitlements as provided in his contract of employment, can the respondent reasonably complain or be heard to say that his termination was wrongful? I suppose not.

In Morohunfola v. Kwara Tech. (1990) 4 NWLR (Pt.145) 506 at 528, His Lordship, Karibi-Whyte. J.S.C. had the following to say:-

“Learned counsel to the respondents submitted quite rightly that it was averred in paragraph 2 of the defendant’s statement of defence, that appellant’s appointment was properly and validly terminated in accordance with the provisions of the Regulations governing conditions of service of its Senior Staff. This Regulation was tendered, admitted and marked Exhibit 2. Exh. 2A i.e. page 3 of Exh. 2 prescribed the conditions for termination of appointment for conduct other than misconduct. It provides for giving of three months’ notice, or three months’ salary in lieu of such notice. The provision applies to Senior Staff leaving employment of the defendant. This evidence was part of the case of the appellant. He admitted he was paid three months’ salary in lieu of notice as provided in Exh. 2A. Thus conceding for the purposes of this argument that the appellant has a contract of employment with the defendant, that contract was validly and properly determined by appellant’s acceptance of its determination. i.e. the acceptance of the three months’ salary paid to him in lieu of notice. See Dr. O. Ajolore v. kwara State College of Technology (1986) 2 SC 374. If the appellant had rejected the three months’ salary in lieu of notice, the unilateral repudiation of his contract of service with the defendant by the appellant would not have operated to determine the contract. See Olaniyan & Ors v. University of Lagos (1985) 2 NWLR (Pt.9) 599 at 683. His conduct rendered the determination mutual.”

In this case on appeal, the respondent’s contract of employment, Exh. 1, provides in paragraph 13 thereof for 2 weeks notice or 2 weeks salary in lieu of notice if the contract continued for more than two (2) years but less than five (5) years. The respondent testified at the trial that he worked with the appellant for (4) four years and (7) seven Months and after he was given Exh. 3, the letter of termination, he collected one month’s salary in lieu of notice. Strictly speaking the respondent is entitled only to 2 weeks’ salary in lieu of notice, but he was given one month’s salary in lieu of notice which he accepted. Having accepted the one month’s salary in lieu of notice, the contract was validly and properly determined in accordance with the terms and conditions prescribed in Exh. 1, the contract of employment. The contract has been mutually determined. See Morohunfola v. Kwara Tech. (supra) at page 528; Dr. O. Ajolore v. Kwara State College of Technology (1986) 2 SC 374. In the circumstances, since the contract has been mutually determined, the issue of the respondent turning round to claim reinstatement to his position with all the benefits and privileges appertaining thereto or for special damages for loss caused to the respondent by reason of the wrongful termination is misconceived and indeed, does not arise. The quantum of damages awardable in case of wrongful termination of a contract of employment is what the employee would have earned if proper notice had been given and if there is no provision for notice in the contract, what the employee could have earned if reasonable notice was given. What constitutes reasonable notice depends on the nature of the employment, the status of the employee and the length of service the employee has put in the service:- See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 320; I.D.C. v. Ajijala (1976) 2 SC 115 at 119; Mobil Oil Nigeria Limited v. Abraham Akinfosile (1969) 1 NMLR 217. Having received all his just entitlements under the contract of his employment, it seems to me the respondent has put to rest any contract real or imagined which he has or thought that he had with the appellant. The position of the respondent is not dissimilar to the appellant in Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506. See also Guinness (Nig.) Ltd. v. Agoma (1992) 7 NWLR (Pt.256) 728 at 742.

In the circumstances, I am of the view that the learned trial Judge was wrong in ordering the reinstatement of the respondent to his former position with all the benefits and privileges appertaining thereto.

I now turn to the second issue, namely:-

“Whether the learned trial Judge was justified in law in declaring the respondent’s termination of employment wrongful, null and void on the ground of lack of fair hearing.”

It is not in doubt that the contract between the appellant and the respondent is an ordinary private contract of employment and the contract is governed by Exh.1 at page 10 of the record of appeal. Exh.1 prescribes the terms and conditions applicable to the relationship between the parties; and in particular the terms and conditions under which the contract can be lawfully determined. Paragraph 13 of Exh. 1 which deals with the conditions under which the contract can be terminated provides as follows:-

“Under normal circumstances either party shall terminate the contract by giving to the other due notice as stipulated by law or pay in lieu of 1 day notice if the contract is for three months or less; 1 week if the contract continued for three months and less than 2 years; 2 weeks if the contract continued for more than 2 years but less than 5 years; and one month if the contract continued for 5 years or more.”

There is no provision in Exh.1 which compels the appellant to query the respondent for any misconduct before terminating the employment of the respondent; or to afford the respondent opportunity of being heard. Once the appellant makes up its mind to determine the contract whether for good reason or no reason at all, the appellant must comply strictly with paragraph 13 of Exh.1.

The learned justice of the Court of Appeal further stated at pages 43 – 44 of the report as follows:-

“It seems to me that what the appellant regarded as a right was simply a privilege. A faithful servant may well want to know why he was being sacked without being given a hearing. If his contract of service does not so provide, his being told is a privilege not a right.”

Since there is no provision in the contract of employment, Exh. 1, to the effect that the respondent must be queried or heard before the contract can be terminated, it seems to me the learned trial Judge was wrong to declare the said termination wrongful, null and void on the ground of lack of fair hearing. I therefore allow the second issue.

The third and the last issue formulated for determination is:-

“Whether the learned trial Judge was right in finding that the respondent proved his case on the balance of probabilities to warrant the declaratory Order made and the award of (N60,500), Sixty Thousand, Five Hundred Naira as damages in favour of the respondent.”

Where a judgment is attacked on the ground of being against the weight of evidence or where the finding or non-finding of facts is questioned, as in this appeal, the Court of Appeal in its primary role in considering a judgment on appeal in a civil case in which the finding or non- finding of facts is questioned will seek to know the following, namely:-

(a) The evidence before the trial court;

(b) Whether it accepted or rejected any evidence upon the correct perception;

(d) Whether it used the imaginary scale of justice to weigh the evidence on either side;

(e) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof: See Agbonifo v. A. Aiwereoba (1988) 1 NWLR (Pt.70) 325 at 339; MISR (Nig.) Ltd. v. Ibrahim (1975) 5 SC 55 at 62; Egonu v. Egonu (1978) 11 – 12 SC III at 129.

Based on these authorities, I will now consider issue No.3 as formulated by the appellant, and critically examine the judgment of the trial court. The case of the appellant as gathered from the pleadings and evidence led at the trial is that the respondent was employed as a Trainee Assistant Weaver and was later promoted a full Weaver and subsequently an Assistant Mechanic. Prior to the termination of the respondent, the respondent committed series of acts of misconduct in respect of which he was either warned or suspended from work:- See Exhibits 12, 13, 14, 15, and 16. On 12th of December 1994, the respondent was caught sleeping on duty at 10:a.m. He was asked why and he said he was tired. The respondent was then suspended for two days. Before the respondent could resume on 14/12/94, a decision to terminate his employment had been taken and he was accordingly terminated and he collected one month’s salary in lieu of notice.

From the statement of claim and the evidence led at the trial by the respondent, the case of the respondent is also as follows:-

The respondent was employed by the appellant as a weaver on the 16/5/90, vide Exh. 1. He was later promoted to the post of Assistant Mechanic Staff on a basic Salary of N1,308 which was increased to N1,900 per month with effect from October, 1994. His allowances were:- housing – N457; transport – N594 and feeding – N250 per month respectively. On 12/12/94, he was invited to the office of Personnel Manager, where he was given a letter of suspension from duty for 2 days and he resumed on 14/12/94. He was not given a query to defend himself:- See Exh. 2.

On 14/12/94 after the two days’ suspension, he resumed work again. He was again invited to the office of the Personnel Manager where he was given a letter of termination of his employment:- See Exh. 3 .After Exh. 3 was given to the respondent he felt that his termination was wrongful. He requested to see the Managing Director to tell him his complaint, but he was prevented from seeing the Managing Director by the security men. He then collected his one month’s salary in lieu of notice. He later briefed his solicitors to pursue his rights.

In paragraph 19 of the statement of claim, the respondent as plaintiff claimed as follows:-

“(1) A declaration that the purported termination of the plaintiff’s employment conveyed in the defendant’s letter dated 12th December, 1994 addressed to the plaintiff is ineffective, wrongful, null and void.

(2) An Order reinstating the plaintiff to his position with all the benefits and privileges appertaining thereto, with effect from the date of such purported termination of employment.

(3) Further and in the alternative, the plaintiff claims from the defendant the sum of N60,500 being special damages for the loss caused to the plaintiff by the defendant by reason of the defendant so unfairly and wrongfully terminating the plaintiff’s employment.

(4) The plaintiff also claims general and compensatory damages from the defendant.”

The law is well settled that in a claim for declaration, the plaintiff must prove his case on the balance of probability sometimes styled preponderance of evidence. The plaintiff can only succeed in obtaining the declaration from the court on the strength of his own case and not on the weakness of the defence unless he finds in the evidence of the defence facts which strengthen his own case:- See Oyinloye v. Esinkin (1999) 10 NWLR (Pt.624) 540 at 549;Akinola v. Oluwo (1962) 1 SCNLR 352; Woluchem v. Gudi(1981)5 SC 291 at 294;Osiaba & Others v. Ojiegbe (1999) 10 NWLR (pt.623) 463 at 472. In this case on appeal, the respondent gave evidence that he was employed by the appellant. He tendered the contract of employment Exh. 1. Exh. 1 prescribes the terms and conditions of terminating the contract, by either of the parties, namely, the giving of notice or payment in lieu of notice.- See paragraph 13 of Exh. 1. The respondent further gave evidence that on the 14/12/94 he was given a letter of termination, – Exh. 3 and he collected a month’s salary in lieu of notice.

I have considered most carefully the pleadings, the evidence led by the parties and the findings of the trial court, as well as the brief and argument of counsel in relation to the issues thereof. It is trite that a declaration is a discretionary remedy; but a plaintiff seeking it has the same legal burden of proof as well as evidential burden under Sections 135 to 137 of the Evidence Act, as in any other civil case, namely, proof on the balance of probabilities, sometimes styled preponderance of evidence. How then does a trial court decide that evidence is preponderant?

In Mogaji & Others v. Odofin & Others (1978) 4 SC 91 at 93 – 95, the Supreme Court, per Fatayi – Williams, JSC. (as he then was) gave the following guidelines:-

In short, before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale: he will put the evidence adduced by the plaintiff on one side of the scale and that by the defendant on the other side of the scale and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but the quality or probative value of the testimony of these witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.”

Applying the above principle to the present case on appeal, when the totality of the evidence adduced by the plaintiff/respondent is put on one side of that imaginary scale and that by the defendant/appellant on the other side of the scale and weighed together, it seems to me the evidence led by the appellant is heavier and the weight of the evidence ought to go in favour of the appellant. Exh.1 was tendered by the respondent as the contract of employment regulating the relationship of the parties. Paragraph 13 thereof provides for the giving of notice or payment of salary in lieu of notice. This evidence was part of the evidence of the respondent. He admitted he was paid one month’s salary in lieu of notice as provided in Exh 1. Thus conceding for the purposes of this argument that the respondent has a contract of employment with the appellant, that contract was validly and properly determined by the respondent’s acceptance of its determination. i.e. the one month’s salary paid to him in lieu of notice. See Dr. O. Ajolore v. Kwara State College of Technology (1986) 2 SC 374; also Morohunfola v. Kwara Technology (1990) (supra).

With this evidence led by the plaintiff/respondent, the respondent has not proved his case that the appellant wrongfully terminated his employment. There is no evidence of wrongful termination of employment before the learned trial Judge. The evidence before the learned trial Judge was to the effect that the contract was properly and validly terminated in accordance with the provision of paragraph 13 of Exh.1, the contract between the parties. The contract was mutually determined by the parties: See Dr. O.Ajolore v. Kwara State College of Technology (supra). Consequently, there is no basis for the order made by the learned trial Judge declaring the termination of the respondent wrongful, null and void and for reinstating the respondent to his former position with all the benefits and privileges appertaining thereto.

Similarly, there is no basis for the award of (N60,500) sixty thousand five hundred naira damages to the respondent as alternative to reinstatement of the respondent. Furthermore, the sum of (N60,500) sixty thousand five hundred naira claimed by the respondent in the statement of claim was claimed as special damages. A cursory look at the statement of claim shows that the particulars of the special damages were not given. It is the law that special damages must be specially pleaded and proved:- See Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623.
Where a plaintiff makes a claim in the realm of special damages, he must not only plead it with sufficient particulars, he must also prove it strictly:- See Audu v. Ahmed (1990) 5 NWLR (Pt.150) 287; and Osuji v. Isiocha (1989) (Supra). This, the respondent has totally failed to do.

On the final analysis, it is my view that there is merit in the appeal. Accordingly, the appeal succeeds and it is hereby allowed. The decision of the Kano State High Court contained in the judgment of Hon. Justice, Nura Sagir, delivered on 17th day of October, 1996 in Suit No. k/69/95 is hereby set aside. The respondent’s case as plaintiff at the court below is hereby dismissed. The respondent shall pay the costs of the appeal assessed at (N2500) two thousand five hundred Naira to the appellant.

MOHAMMED, J.C.A.: I have had the privilege of reading the judgment of my learned brother Obadina, J.C.A., just delivered and I agree that there is merit in this appeal. I therefore agree with the reasoning and conclusion finally arrived at by my learned brother in resolving the 3 issues that were identified for determination of the appeal. By accepting the payment of one month’s salary in lieu of notice from the appellant, the contract of employment between the appellant and the respondent had been mutually determined thereby leaving nothing upon which the lower court could have restored the respondent upon. Furthermore, the respondent’s employment having been determined strictly in accordance with the terms of the contract of employment binding between the parties, the lower court was in grave error to have regarded that lawful termination of contract as being in breach of the respondent’s right of fair hearing particularly when the appellant magnanimously allowed the respondent to take away one month’s salary in lieu of notice when having regard to the period he served the appellant was only entitled to two weeks’ salary in lieu of notice.

In the result, I also allow the appeal, set aside the decision of the lower court and replace the same with an order dismissing the respondent’s claims. The appellant shall have N2,500.00 costs.

OMAGE, J.C.A.: In this appeal, the appellant filed in his amended notice of appeal on which leave of court was granted on 7th May, 1997, six grounds of appeal.

On the said six grounds of appeal the appellant formulated three issues for determination of his brief of argument. The brief of argument was filed on 12th June, 1999, and duly served on the respondent, Mr. Fidelix Ajah, who up to the date of hearing filed no respondent’s brief. This appeal therefore is being heard for determination on the appellant’s brief as the date has long elapsed within which the respondent should file a brief if he so desires. It is deemed that the respondent has failed to file his brief as provided under Order 6, Rule 10 of the Court of Appeal Rules 1981. The appellant’s issues for determination are as follows:-

“(1) Whether the learned trial Judge was right in ordering the appellant to reinstate the respondent to his former position with all the benefits and privileges appertaining thereto in view of the nature of the respondent’s contracts of employment with the appellant coupled with the evidence adduced in the printed record.

(2) Whether the learned trial Judge was justified in law in declaring the respondent’s termination of employment as contained in the appellant’s letter of 12th December, 1994 wrongful, null and void, solely on the ground of fair hearing.

(3) Whether the learned trial Judge was right in finding that the respondent proved his case on the balance of probabilities to warrant the declaration order made and the award of N60,500 as damages in favour of the respondents.”

The facts of the case before the lower court are as contained in the respondent’s statement of claim which he filed as the plaintiff. In it the plaintiff was shown as Weaver in the employment of the appellant, which is a limited liability company. The respondent was employed by the appellant by or on 16th May, 1990. The instrument of appointment of the respondent was upon the terms contained therein Exhibit 1 before the court which are reproduced in the appellant’s brief of argument as follows:-

“Under normal circumstances, either party shall terminate the contract by giving to the other due notice as stipulated by law or pay in lieu of i.e. I day if the contract is for three months or less, one week if the contract continues for three months and less than two years, 2 weeks if the contract continued for more than 2 years but less than 5 years or more.”

The respondent worked with the appellant for four years and seven months. The appellant terminated the appointment of the respondent and gave to the respondent salary of one month in lieu of notice. The respondent collected the said one month salary in lieu of notice of termination of his appointment, and still issued a writ of summons against the appellant.

The respondent claimed in the statement of claim paragraph 19 as follows:

“(i) A declaration that the purported termination of the plaintiff’s employment conveyed in the defendant’s letter dated 12th December, 1994 addressed to the plaintiff is ineffective, wrongful, null and void.

(ii) An order reinstating the plaintiff to his position with all the benefits and privileges appertaining thereto with effect from the date of such purported termination of employment.

(iii) Further and in the alternative, the plaintiff claims from the defendant the sum of N60,500 being special damages for the loss caused to the plaintiff by the defendant by reason of the defendant so unfairly and wrongfully terminating the plaintiff’s employment.

(iv) The plaintiff also claims general and compensatory damages from the defendant.”

The defendant now appellant denied the plaintiff’s claim in its entirety.

In his judgment the Hon. Justice Nura Sagir of the Kano State High Court ruled as follows:-

“I therefore enter judgment for the plaintiff against the defendant that the termination of the plaintiff’s employment conveyed in the defendant’s letter dated 12th December, 1994 addressed to the plaintiff is herein declared wrongful, null and void. The defendant is further ordered to reinstate the plaintiff to his position with all the benefits and privileges appertaining with effect from the date of the termination of employment.”

It is against the above quoted judgment of the court below that the appellant formulated from the grounds of appeal, filed the issues formulated for determination as above.

In the submission of the appellant on the first issue for determination which asked whether the trial court was right in ordering the reinstatement of the respondent, the appellant said that as the appointment of the respondent does not have a statutory flavour, the order for reinstatement of the respondent is not founded on law. As a private limited liability company or any employer of labour like the appellant does not owe any obligation to retain the services of any unwanted employee; and may terminate the appointment of the employee without any reason given Obe v. Nigersol Construction Company Ltd. (1972) 2 University of Ife Law Report Part II p.(2)11. An employer of labour is not bound to be saddled with an unwanted staff; and may terminate the services of such an employee without stating any reason for the terminations see Taiwo v. Kingsway Stores Ltd. (1950) 19 NLR 122. However, where an employer states a reason for the termination such reasons must be plausible to justify such termination of the appointment of the employee.

In the instant case, the central issue to be determined is whether or not the employer complied with the terms of the contract of employment between the parties. Exhibit 1 before the court. Exhibit 1, provides for the quantum of notice to be given by either party that is the employer and the employee when either party wishes to terminate the contract of employment. The contract provides for one month notice to terminate the contract where an employee has served up to 5 years. It is not in dispute that the respondent served the appellant for 4 years and seven months.

In the determination of the contract of service of the respondent, the appellant gave to the respondent one month salary in lieu of notice, with the letter informing the respondent of the cessation of his appointment. The respondent accepted both the letter dated 12th December, 1994, and the one month salary in lieu of notice. In that act of the respondent’s acceptance of the salary paid by his employer in lieu of notice of one month termination of his appointment the respondent has created a ”fait accompli” and has agreed that his appointment was validly and effectively terminated. Where then lies his plea for relief of reinstatement? It does not exist. See Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 599 at p.683. In that case, the court held that the acceptance of payment in lieu of notice by the plaintiff renders mutual the determination of his appointment, see also Guinness Nig. Ltd. v. Agoma (1992) 7 NWLR (Pt.256) p. 728 at 742, where Ejiwunmi, JCA, (as he then was) observed in a case where the claimant sued the employer after collecting the payment of salary in lieu asked the question whether the respondent had an enforceable contract after she had collected all her entitlements from the appellant following the receipt of her letter of termination of her appointment.

It is appropriate to ask the same question in the instant case; and the answer must be no, in the negative. There is no longer in existence any enforceable contract between the appellant and the respondent and there is no longer any ground to reinstate the respondent to the employment of the appellant. Surely a proper interpretation of our constitutional provision which allows freedom of association should include the refusal by our courts of law to impose a willing servant on an unwilling master.

The above decision in this appeal answers in part issue two in the appellant’s brief, which reads:-

“Whether the learned trial Judge was justified in law in declaring the respondent’s termination of employment as contained in the appellant’s letter of 12/12/94, wrongful, null and void solely on the ground of fair hearing.”

The appellant has submitted on this issue that there is no provision in the contract of employment of the respondent by the appellant for fair hearing. The requirement for fair hearing is one founded on the rules of natural justice. It is better applied in a trial. It simply requires that an alleged offender be heard on the complaint made against him. It is my view that the employment of the rule of fair hearing in a matter of service between a master and servant is one of a privilege to the servant, not a right. If it were to be otherwise, the master in a contract of service will cease to have the initiative and control over his employees. I am strengthened in this view by the decision in David-Osuagwu v. Anambra State (1993) 4 NWLR (Pt.285) at p. 41.

However, it remains a good practice, despite the power of an employer to dispense with the service of his employee to terminate the service of his employee upon good and lawful reason, and when the reason is stated to afford the employee an opportunity to be heard. This will apply in any case where the contract of employment is not in writing and where such provision to be told the offence is not excluded; or silent. In the instant case, the terms of appointment between the parties are well set out, and the written terms for disposal of each other’s service is not made to depend on reasons given or explanation.

It is my view and I so rule that the introduction of requirement of fair hearing into the contract as determined by the trial court is an attempt to re-write the agreement for the parties, by imputing into it concepts it does not contain. See Udemah v. Nigeria Coal Corporation (1991) 3 NWLR (Pt.180) at 479 per Esho JSC at 479. It is therefore wrong in law for the court below to hold simply because the respondent has alleged that he was not given a fair hearing; to rule that the letter which determined the contract between the parties is wrongful, null and void. It is the duty of court to confine itself to the interpretation of the right of both parties as it is contained in the contract of employment between the parties. See Shell Petroleum Dev. Co. Nig. Ltd. v. Lawson Jack (1998) 4 NWLR (Pt.545) 249 AC

The third issue posed for determination in the appellant’s brief is whether the respondent in the court below has proved his case on a balance of probability.

The rule has been established that the onus is on the employee who alleges that his appointment was wrongly terminated to prove the wrong. See College of Medicine v. Adegbite (1973) 5 SC 149, see also Nigeria Airways Ltd. v. Y. Ahmada (1991) 6 NWLR (Pt.198) at 492. The rule also accords with the requirements of the Evidence Act Section 138 which places the burden of proof on the party who asserts a state of affairs.

In the instant case, the plaintiff/respondent has failed to show that the termination of his contract with the respondent does not accord with the terms of the contract. Furthermore he, the respondent has accepted by his conduct of receiving his entitlements and payment of a month salary in lieu of notice that the appointment was properly terminated. The respondent in the court below failed to prove his claim, and the duty is on him to prove it or fail. In proving his claim he has to rely on the strength of his case, see Kodilinye v. Odu (1936) 2 WACA 336.
The respondent was therefore not entitled to judgment of the court. For the above reason, I am in agreement, with the judgment of my learned brother Obadina, J.C.A. that the judgment and costs awarded by the court below be set aside; and the appeal be allowed. I abide by the consequential order for costs.

Appearances