AFRICAN NEWSPAPERS LTD & ANOR V.MR. JACOB O. AKANO
(2011)LCN/4575(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of May, 2011
CA/I/180/05
RATIO
CONTRACT OF SERVICE: WHETHER AN EMPLOYER IS OBLIGED TO PROSECUTE OR CAUSE THE PROSECUTION OF AN EMPLOYEE IN A COURT OF LAW FOR THE CRIMINAL ALLEGATION OF STEALING BEFORE DISPENSING WITH HIS SERVICES
The Supreme Court case of Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (Pt.457) 632 or (1996) 6 SCNJ 201 at 214-215 had this today on the same issue: “It is not necessary, nor is it a requirement under common law, the employee must be tried before a court of law where the accusation against the employee is of gross misconduct involving dishonesty bordering on criminality. ….” Yusuf (supra) was followed by the Supreme Court in the case of 714 where the accomplished jurist Katsina-Alu, J.S.C, (now C.J.N.) held inter alia that: “We must bear in mind that present case is one of master and servant with written and express terms of master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. In other words prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal… Alhaji Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (PT.457) 632; (1996) Delta State Law Report (pt.1) 31….” The unbroken stand of the Supreme Court in Yusuf v. Union Bank of Nigeria Ltd. (supra) and Olarewaju v. Afribank Plc (supra) was maintained by the Apex Court in the later case of Arinze v. First Bank of Nigeria Ltd. (2004) 12 NWLR (pt.888) 663 at 673 in these words: “This is a simple case of employee and employer not covered by statutory rules as in Federal Civil Service Commission and Others V. J.O. Laoye (1989) 2 NWLR (pt.106) 652 or Garba v. University of Maiduguri (1986) 1 NWLR (PT.18) 550. The latter case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment. In statutory employment as in private employment, the employer can dismiss in all cases of gross misconduct….” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
AWARD OF DAMAGES: THE PRINCIPLE GOVERNING THE AWARD OF DAMAGES
The award of N10, 000 general damages by the court below to respondent was, with respect, baseless or unfounded, as such an award is not recognized under contracts of service or employment-see International Drilling Co. (Nigeria) Ltd. v. Moses Eyeimofo Ajijala (1976) 1 ALL NLR (pt.1) 117 at 131-132 as follows: “The principles of law governing the award of damages were stated recently by this Court in:- (1) Western Nigeria Development corporation v. Jimoh Abimbola (1966) NMLR 381 at 382; and 2) Nigeria Produce Marketing Board v. A.I. (Adewunmi (1972) 1 ALL NLR. (Part 2) 433 at 37. “In the latter case, we stated the law as follows at p. 437 – “In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract. (See Beckham v. Drake (1849) 2 H.L. Cas 579 at pages 607-608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
STARE DECISIS: WHETHER THE LOWER COURT IS BOUND BY THE DECISIONS OF THE HIGHER COURTS
In the hierarchy of the courts in this country, as in all other free common law countries, one thing is clear, however learned a lower court considers itself to be and however contemptuous of the higher court that lower court is, the lower court is still bound by the decisions of the higher courts. This is the discipline of the law. This makes the law certain and prevents it from being an ass. See: Isaac Madubuogo Okonjo v. Dr. Madiaga Odje & Ors. (1985) 10 SC 267 at pp. 268-269; G.T Oladiran v. The State (1986) 1 SC 153 at pp.187-188. The Supreme Court is the Highest and final court of Appeal in Nigeria. Its Decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis the court below are bound to follow the decisions of the Supreme Court. The Doctrine is a sine qua non for certainty to the practice and Application of law. A refusal therefore by a judge of the court below to be bound by this court’s decision is gross insubordination. See: – Dalhatu v. Turaki (2oo3) 7 S.C. 1. PER SIDI DAUDA BAGE, J.C.A
JUSTICES:
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
AFRICAN NEWSPAPERS LTD & ANOR – Appellant(s)
AND
MR. JACOB O. AKANO – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): On 19.4.2004, the High Court of Justice of Oyo State sitting at Ibadan (Olakanmi, C.J.) entered judgment for respondent against appellants in a claim for wrongful dismissal from employment brought by the former against the latter, agitating the present appeal.
The evidence before the court below as sifted from the bundle of documents compiled by appellants with the leave of the Court granted on 28.2.08, comprising the pleadings, the judgment appealed against and the notice of appeal, indicated respondent was at all material times in the confirmed employment of appellants as a circulation manager (Night Duty) he served in various capacities and in several parts of Nigeria until 14.12.1988, when appellants dismissed him from service on the allegation of stealing fifty (50) copies of the Nigerian Tribune newspaper; an allegation respondent had vehemently denied.
The court below heard evidence, admitted some documents as Exhibits and took final addresses from the respective learned counsel before it gave judgment declaring the dismissal of respondent from appellants’ employment wrongful and awarding N10, 000 general damages to respondent for the wrongful dismissal.
A notice of appeal conveying two grounds of appeal dated 12.5.2004, was filed challenging the judgment. Two issues for determination were distilled from the two grounds of appeal in the appellant’s brief of argument dated 1.3.2008, but filed on 18.3.08, as follows:
“2.02 whether the learned trial judge was right when he held that the dismissal of the Respondent by the Appellants from employment was wrongful on the ground that the Appellants did not ensure the prosecution and conviction of the Respondent before his dismissal since the grounds for dismissal were criminal in nature; this issue arise from ground one of the grounds of appeal.
2.03 Whether the learned trial judge was right when he awarded the Respondent the sum of Ten Thousand Naira as general damages for his wrongful dismissal by the Appellants; this issue is distilled from the second ground of appeal.”
In arguing the first issue (supra), learned counsel for appellants referred to the terms of employment of respondent based on the offer of appointment in Exhibit D1 and the staff conditions of service in Exhibit P2 to submit that the relationship between appellants and respondent was master/servant and, the court below was bound to construe the binding terms of the contract of employment which did not provide for the criminal prosecution of an employee before dismissing him from employment; consequently the court below imported the condition of prior criminal prosecution of respondent by appellants in the contract of employment contrary to the decisions in Union Bank of Nigeria Ltd. v. Professor Ozigi (1994) 3 NWLR (Pt.333) 385 at 404, Baba v. NCAT (1991) 5 NWLR (Pt.193) 388, Afrotec Tech. services (Nig) Ltd. v. M.I.A and Sons Ltd. (2000) 15 NWLR (pt.6g2) 730 at 772, 794, O.A.U. v. Onabanjo (1991) 5 NWLR (Pt.193) 549, Obu v. NNPC (2003) 2 NWLR (Pt.805) 589, 630, Daodu v. U.B.A plc (2004) 9 NWLR (Pt.878) 276, Texaco (Nig) Plc v. Kehinde (2001) 6 NWLR (Pt.708) 224.
It was argued further on the first issue that in a master/servant relationship, the employer is not bound to prosecute an erring employee before dispensing with his services as held in the cases of Olanrewaju v. African (Nig) Ltd. (2001) 13 NWLR (Pt.691) 714, Arinze v. First Bank (nig Ltd. (2004) 12 NWLR (Pt.888) 663, Ansambe v. B.O.N. Ltd (2005) 8 NWLR (Pt.928) 650 at 672, Abubakar Tatari Ali Polytechnic v. Charles Maina (2005) All FWLR (Pt.284) 250 at 272, Atadi v. Union Bank Plc (2005) ALL FWLR (Pt.285) 517 at 541, Yusuf v. Union Bank Ltd. (1996) 6 NWLR (Pt.457) 632, Maikyo v. Atodod and Others (2007) 5 SCM 41; and that the case of Federal Civil Service Commission and Others v. Laoye (1989) 2 NWLR (Pt.1060 652 relied upon by the court below to give judgment to the respondent was not contract of service employment, but an employment protected by statute and is on that basis distinguishable from the present case.
The Appellants submitted on the second issue (supra) that the action was based on a contract of service and, in the event of breach, the remedy would not lie in the award of general damages, as such damages are awardable only in tort vide G.B.O. v. Agbabiaka (1972) 2 S.C. 137, Kwara Investment Co. Ltd. v. Garuba (2000) 10 NWLR (Pt.674) 25, 36 NEPA v. Enyong (2003) FWLR (Pt.175) 452, Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296, 315, Kbelmetal Nig. Ltd. v. Ativis (2002) 10 NWLR (Pt.775) 250 at 271-272, and General Oil Ltd v. Chief Agu (2005) ALL FWLR (Pt.247) 140 at 1422.
It was submitted further that the award of damages by the court below was based on wrong principle of law warranting the intervention of the Court following the cases of Professor Tam David West v. Biodun Oduwole and Others (2003) NWLR (Pt.835) 682 at 696 and Nka v. Onwu (1996) 7 NWLR (Pt.458) 1 at 27; also, the respondent did not request for general damages for breach of the contract of employment, but special damages for the alleged breach, therefore the court below should not have awarded to respondent th9 N10,000 general damages following the cases of Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352, Seven-up Bottling Co. Ltd Adewale (2004) 4 NWLR (Pt.862) 183 at 218-219, Ekpenyong v. Nyong (1975) 2 SC 1, Ilona v. Idakwo (2003) 11 NWLR (Pt.83O) 53 and Salubi v. Nwariaku (2003) 7 NWLR (Pt.819) 426.
Respondent’s brief of argument dated and filed on 29.4.09, but deemed duly filed on 4.5.09, also framed two issues for determination on the appeal to wit:-
“1. whether the learned trial judge was in error to have applied the judgment of the Supreme Court in FEDERAL CIVIL SERVICE COMMISSION and 2 ORS. V. J.O. LAOYE (1989) 2 NWLR (pt.106) 652 ratio 3 and 5 on pages 656 in accordance with the doctrine of stare decisis et non queta movere in finding as it were/that the Respondent’s dismissal was wrongful?
2. whether the award of N10,000.00 as general damages for Plaintiff’s/Respondent’s wrongful dismissal was proper and/or whether the Defendants/Appellants suffered any miscarriage of justice thereby?”
Issue (1) (supra) canvassed that by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution) followed by the Supreme Court in Federal Civil Service Commission v. Laoye (supra), the allegation of crime upon which respondent lost his job with appellants should have beep tried in a court of law before disciplinary action would have been initiated against respondent, as the governing consideration is not the nature of the employment, but the breach of respondent’s fundamental right to fair hearing, therefore the court below was right to follow the Supreme Court decision in Federal Civil Service Commission (F.C.S.C) v. Laoye (supra) in obedience to judicial precedent or stare decisis vide N.D.I.C. v. Okem Enterprises (2004) 4 S,C. 77; also, the appellants were bound the justify beyond reasonable doubt the reason they gave for dispensing with the respondent services following the cases of Kayode Adams (1966) NMLR 111, Denloye c. Medical and Dental Practitioners Disciplinary Committeee (1968) 1 ALL NLR 306 at 312;Sofekun v. Akinyemi (1981) 1 NCLR 135, GARBA v. Universty of Maiduguri (1986) 1 NWLR (Pt.18) 550, Albert Laoye (1985) 2 NWLR (Pt.10) 832, F.C.S.C. v. Laoye (supra), Osuagwu v. Attorney – General of Anambra State (1993) 4 NWLR (Pt.285) 13 and 16, Angels Spinning v. Ajah (2000) NWLR (Pt.685) 532 at 548, Sofekun v. Akinyemi (1980) 5-7 S.C 1.
Issue (1) (supra) argued further that the findings of fact of the court below that respondent was accused of crime and was dismissed from his employment by appellants on the allegation of crime without first arraigning him in court for the criminal allegation to be dealt with was not appealed against by appellants and remains binding on the appellants in line with the decisions in Nwadiogbu v. Nnadozie (2001) 6 S.C. 107, Jegede v. The State (2001) 7 S.C. (Pt.1) 122, Odugbu v. Abu (2001) 7 S.C. (PT.1) 168, Salibu v. yassin (2002) 2 S.C. (Pt.1) 15, Oyadare v. Keji (2005) 1 S.C. (Pt.1) 19, and Dabo v. Abdullahi (2005) 2 S.C. (Pt.1) 75.
Arguments on issue (2) (supra) disclosed that pleadings were abandoned at the trial of the action and, what was left was the uncontroverted evidence of respondent on the issue of damages which the court below was entitled to award in line with the decisions in Odunsi v. Bamgbala and Others (1995) 1 SCNJ 275 at 286 and Balogun v. U.B.A. Ltd. (1992) 6 NWLR (Pt.247) 336 at 354; also, the award of general damages of N10, 000 was based on pleaded and proven facts and, the award was not shown to be contrary to any principle of law or unreasonably high and should not be lightly disturbed on appeal vide:
Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt.361) 124, Agaba v. Otubusin (1961) 1 ALL N.L.R (PAGINATION NOT SUPPLIED), Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR (Pt.166) 136, Acme Builders Ltd. v. Kaduna State Water Board and Another (1999) 2 NWLR (Pt.590) 288 at 305, Incar (Nig) Ltd. v. Benson Transport Ltd. (1975) 3 S.C. 117, Idahosa v. Orosanye (1959) SCNLR 407, Osuji v and Isiocha (1989) 3 NWLR (Pt.111) 623) and Delta Steel Nig. Ltd v. A.C.T. Incorporation (1994) 4 NWLR (Pt.597) 53; and that the award of N10,000 general damages was justified by the findings of the court below regardless of the labeling of the award, as it is not every error that may lead to the reversal of a decision of the court vide Cookqy v. Fombo (2005) 5 S.C. (Pt.11) 102; and the appeal should be dismissed on the above canvassed grounds read along with the list of authorities submitted by respondent’s learned counsel on the doctrine of stare decisis and quantum of damages for wrongful dismissal dated 13.4.2010.
The appellants’ reply brief dated 18.5.09, but filed on 19.5.09, contended that the case of F.C.S.C. v. Laoye (supra) was rooted in the Federal Civil Service Commission Rules with constitutional force or flavor and, the employer in that case was a public body which warranted the decision reached in that case. Whilst in the instant case, the relationship between appellants and respondent was purely master/servant under the common law which should have precluded the court below from applying the F.C.S.C. v. Laoye case (supra) to the dispute before it; more-so contracts of employment are categorized into master/servant relationship, employment held at pleasure, and employment protected by statute as held in the case of The appellants’ reply brief submitted finally that the issue of fair hearing was not raised in the grounds of appeal and, the issues for determination formulated therefrom should be discounted following the cases of Eke v. Ogbondo (2006) 18 NWLR (Pt.1012) 506 at 522 – 523 and Emespo Continental Ltd. v. Corona and Co. (2006) 11 NWLR (Pt.991) 365 at 379 -380; and that the award of damages by the court below was wrong and in conflict with established principles of law in respect of contracts of personal service vide Nitel Plc v. Akwa (2006) 2 NWLR (pt.964) 391 at 423 – 424.
The issues for determination formulated by appellants are apt and more encompassing than respondent’s issues for determination. Accordingly, I shall follow appellants’ issues for determination in the treatment of the appeal.
Respondent’s contention that appellants did not appeal against part of the decision of the court below respecting the procedural disciplinary step of charging respondent to court on the allegation of stealing before enforcing disciplinary on against him by appellants is, with deference, untenable having regard to ground 1 of the notice of appeal. And, for ease of reference the said ground 1 of the notice of appeal without its particulars states:
“The learned trial Judge erred in law when he held as follows:
“The dismissal of the plaintiff as contained in Exhibit P in this case is therefore to that extent held by this court to be wrongful. The defendants indeed jumped the que (sic) and came to a hasty decision on the allegation of stealing without first charging him to court and have him tried and convicted before dismissing him as they did.”
The issue of fair hearing was not raised by appellants. Therefore, the respondent was wrong to argue it without a cross-appeal or respondent’s notice to vary the judgment on other ground(s) sustaining it as required by Order 9 of the Court of Appeal Rules, 2011. See the illuminating judgment of the Supreme Couft in Emespo J. Continental Ltd. v. Corona S. and Co. (supra) at pages 379-380 cited by appellants’ learned counsel per the lead judgment of Mukhtar, J.S.C., thus:
“A respondent who has not cross appealed (in which case he may raise issue to marry his ground of appeal) must when formulating an issue for determination in his brief of argument distill it from the grounds of appeal framed by the appellant in his notice of appeal. Where an issue is not married to a ground of appear, then it becomes an issue with no leg to stand on and such issue has no place in our legal system and deserves to be struck out for being incompetent.
See Alhaji Kokoro-Owo and 6 Ors. v. Lagos State Government and 4 Ors. (2001) 11 NWLR (pt.723) page 237; UAC Nigeria Ltd. v. Global Transport S.A. (1996) 5 NWLR (Pt.448) page 291; and Nnaji v. Ede (1996) 8 NWLR (Pt.466) page 332.”
See also Owners of M.T. Venturere v. Nigeria National Petroleum Corp and Another (2011) 8 W.R.N. 72 at 79.
At any rate, the judgment of the court below acknowledged that respondent was heard on the allegation by appellants before he was dismissed from service. For clarity, part of the judgment of the court below on the issue recorded:
“All that happened was Exhibit P12 the query issued to the plaintiff in writing alleging a case of stealing 50 copies of the Nigerian Tribune on 1st December, 19BB and the plaintiff’s response to same is Exhibit P13 in which plaintiff explained and tried to exonerate himself from the allegation; he claimed that the extra 50 copies found with the driver by the security man must have been a mistake.
The endorsement on Exhibit P3 from chief Manager to the General Manager reads in part:
“Please a thorough investigation has been conducted on the above issue and a case of stealing has been established as follows….”
What followed the Chief Manager’s recommendation for plaintiff’s dismissal was an approval by the General Manager….”
The above excerpt establishes that respondent was accorded a fair hearing before his dismissal from the service of the 1st appellant, in my view.
It is incontestable from the facts of the case that the respondent was in the employment of a limited liability company, the 1st appellant, before the demise of his employment. The categories of his appointment were therefore on the footing of master/servant relationship see Iderima v. R.S.C.S. C. (supra) at page 403 thus:
“… employment falls into three categories viz:
(1) A Pure Master and servant relationship under common law.
(2) Employment where office is held at pleasure.
(3) Employment protected by statute.
See Ridge v. Baldwin and Ors. (1964) A.C. 40, Olanrewaju v. Afribank (Nig) Plc. (2001) 13 NWLR at 731) 691 at p. 705, Olanrewaju v. University of Lagos (1985) 2 NWLR (pt.9) 599,”
Being a contract of service or master/servant engagement, the appellants were not obliged to prosecute or to cause the prosecution of respondent in a court of law for the criminal allegation of stealing before dispensing with his services. The Supreme Court case of Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (Pt.457) 632 or (1996) 6 SCNJ 201 at 214-215 had this today on the same issue:
“It is not necessary, nor is it a requirement under common law, the employee must be tried before a court of law where the accusation against the employee is of gross misconduct involving dishonesty bordering on criminality. ….”
Yusuf (supra) was followed by the Supreme Court in the case of 714 where the accomplished jurist Katsina-Alu, J.S.C, (now C.J.N.) held inter alia that:
“We must bear in mind that present case is one of master and servant with written and express terms of master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case.
In other words prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal… Alhaji Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (PT.457) 632; (1996) Delta State Law Report (pt.1) 31….”
The unbroken stand of the Supreme Court in Yusuf v. Union Bank of Nigeria Ltd. (supra) and Olarewaju v. Afribank Plc (supra) was maintained by the Apex Court in the later case of Arinze v. First Bank of Nigeria Ltd. (2004) 12 NWLR (pt.888) 663 at 673 in these words:
“This is a simple case of employee and employer not covered by statutory rules as in Federal Civil Service Commission and Others V. J.O. Laoye (1989) 2 NWLR (pt.106) 652 or Garba v. University of Maiduguri (1986) 1 NWLR (PT.18) 550. The latter case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment. In statutory employment as in private employment, the employer can dismiss in all cases of gross misconduct….”
It is amazing that Arinze (supra) and Yusuf (supra) were brushed aside by the court below after it was referred to them by learned counsel for the defendants in the court below. Surprisingly, the court below relied on the clearly irrelevant authority of Federal Civil Service Commission (F.C.S.C.) and others v. Laoye (19s9) z NWLR (pt. 106) 652 to erroneously hold that appellants were obliged to prosecute respondent in a court of law for the alleged stealing of their property before enforcing disciplinary action against him.
Respondent’s learned counsel’s spirited effort to save the said reasoning of the court below on ground of stare decisis is, with respects, puerile. The Supreme Court that gave the judgment in F.C.S.C. and Others v. Laoye (supra) also took time to explain in the later case of Arinze v. First Bank of Nigeria Ltd. (supra) that the decision in the earlier case of F.C.S.C. and others v. Laoye (supra) does not apply to private employment or master/servant relationship. So the issue of stare decisis would not arise. I hereby discountenance it. The first issue, accordingly, succeeds on the able arguments of appellants’ learned counsel, Mr. W.A. Olajide.
The respondent’s claim for specific losses amounting to N27, 948.00 said to have risen from the demise of his employment was tabulated in the judgment of the court below, which that court dismissed. For ease of appreciation, the relevant portion of the judgment is quoted below:
“In assessing such damages anyway, consideration here should go to what are the particulars of claim for damages as endorsed on plaintiff on plaintiff’s writ which are:
PARTICULARS OF CLAIM/DAMAGES
i. Salary for the period from the 14th December, 1988 till date of filing Writ of Summons i.e. 3 years at the rate of N4,800.00 per annum. N14, 000.00
ii. Gratuity for ten (10) years service at the rate of 11/12 Years N7, 200.00
iii. Housing allowance for 3 years at the rate of N480.00 per annum N1, 440.00
iv. Transport allowance for 3 years at the rate of N360.00 per annum
v. Leave allowance for 3 years at the rate of N250.00 per annum
vi. Staff Pension Assurance scheme deductions made from Plaintiff’s salary at the rate of 20% of salary from April, 1983 till December, 1988 i.e. about N200x6 years N1, 200.00
vii. Contribution of the 1st defendant to the scheme
Referred to in sub-paragraph (vi) above N1, 200.00
viii. Compulsory Security deduction for field salesmen at the rate of 5% of salary from 1985 to 1988 N678.00
SUB-TOTAL 27, 948.00
Plaintiff has claimed as above but it seems to me that having held as I have done in this judgment that the plaintiff cannot impose his services on the 1st defendant nor can the court so order, all the items of claim by the plaintiff that have to do with his salary, gratuity, housing allowance for three years and indeed all other items under this cannot be awarded by this court.”
The first issue (supra) having succeeded, the second issue (supra) becomes largely academic; but out of extra caution, it would be considered. The award of N10, 000 general damages by the court below to respondent was, with respect, baseless or unfounded, as such an award is not recognized under contracts of service or employment-see International Drilling Co. (Nigeria) Ltd. v. Moses Eyeimofo Ajijala (1976) 1 ALL NLR (pt.1) 117 at 131-132 as follows:
“The principles of law governing the award of damages were stated recently by this Court in:-
(1) Western Nigeria Development corporation v. Jimoh Abimbola (1966) NMLR 381 at 382; and
2) Nigeria Produce Marketing Board v. A.I. (Adewunmi (1972) 1 ALL NLR. (Part 2) 433 at 37.
“In the latter case, we stated the law as follows at p. 437 –
“In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract. (See Beckham v. Drake (1849) 2 H.L. Cas 579 at pages 607-608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.”
The application of this principle was vividly demonstrated by this Court in the case of Western Nigeria
Development Corporation v. Jimoh Abimbola, supra…. . . .
The plaintiff’s appointment was governed by the contract to which he entered at the time of his appointment. If he had been given one month’s notice before termination of his appointment, he would have had no claim whatever on the Corporation. But he was not given notice, and he is entitled to one month’s salary in lieu of notice. That is all he can get as damages. Other matters that the Judge considered are irrelevant.”
See also Kabelmetal Nigeria Ltd. v. Gabriel Ativie (supra) cited by appellants’ learned counsel. The said award is accordingly set aside for violating the principles respecting the award of damages in contracts of employment.
The appeal is meritorious. I would allow it. The judgment of the court below together with the N10, 000 general damages awarded therein to respondent are hereby set aside. Costs of N30, 000 are assessed and awarded against respondent to appellants.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in advance the lead judgment of learned brother J.S. IKYEGH, J.C.A. I agree with the judgment in it’s entirely. I will only add a voice on the Supreme Court decisions of Alh. Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (pt.457) 632; and Arize v. First Bank of Nigeria Ltd. (2004) 12 NWLR (pt.888) 663 at 673; were referred to the trial court by the learned counsel for the defendants, but were brushed aside by the court. The court instead made preference to an authority found to be irrelevant to the issue before it.
In the hierarchy of the courts in this country, as in all other free common law countries, one thing is clear, however learned a lower court considers itself to be and however contemptuous of the higher court that lower court is, the lower court is still bound by the decisions of the higher courts. This is the discipline of the law. This makes the law certain and prevents it from being an ass. See: Isaac Madubuogo Okonjo v. Dr. Madiaga Odje & Ors. (1985) 10 SC 267 at pp. 268-269; G.T Oladiran v. The State (1986) 1 SC 153 at pp.187-188.
The Supreme Court is the Highest and final court of Appeal in Nigeria. Its Decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis the court below are bound to follow the decisions of the Supreme Court. The Doctrine is a sine qua non for certainty to the practice and Application of law. A refusal therefore by a judge of the court below to be bound by this court’s decision is gross insubordination. See: – Dalhatu v. Turaki (2oo3) 7 S.C. 1
For this, and fuller reasons provided to in the lead judgment I also find the appeal meritorious, and allow it. I abide by all the consequential orders including the order as to costs contained in the lead judgment.
MODUPE FASANMI, J.C.A: I had the advantage of reading in advance the lead judgment of my learned brother J. S. Ikyegh J.C.A.
I agree entirely with the reasoning and conclusion reached therein. I adopt same. The appeal is meritorious. I also allow it and abide by the consequential order made and also the order on cost.
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Appearances
MR W.A. OLAJIDEFor Appellant
AND
MR. TUNDE OLUPONAFor Respondent
