ASCA BITUMEN COMPANY LIMITED v. HARUNA ISAH
(2016)LCN/8461(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of April, 2016
CA/J/203/2013
RATIO
INTERPRETATION: MEANING OF DECISION AS INTERPRETED BY SECTION 294(2)-(4) AND SECTION 318(1)
I tagged this determination Decision by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a decision to means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. Neither is a Ruling or the expression interlocutory ruling or interlocutory decisions included in the word decision under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be provided by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra). In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 197:
Willes, C.J. once said, When the nature of things changes, the rules of law must change too. This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent, is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag any of my determination an opinion or a decision but certainly not judgment or ruling as provided under Section 294(2)-(3) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
“I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word determination at pages 243-244 as follows:
We gave careful consideration to the argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ruling or determination of the High Court was a judicial decision or determination within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
In this section decision means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.
More light is thrown on the meaning of the words decision and determination in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or the mental action of coming to a decision, or the resolving of a question.
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter’.
The number of appeals and motions listed for hearing per day, per week and per year when put together will show the number of decisions, opinion or determinations each Justice of the Supreme Court or the Court of Appeal renders which the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output. It will be seen how many decisions or opinions each Justice of the Supreme Court or the Court of Appeal have rendered in order to put an end to judicial controversies or disputes. PER JOSEPH TINE TUR, J.C.A.
APPEAL: DUTY OF THE RESPONDENT
Parties/learned Counsel should always bear in mind that Justices will read the briefs of argument and examine the exhibits before proffering an opinion. There is no need to reproduce verbatim the argument of learned Counsel in the briefs except where it becomes absolutely necessary to do so. The duty of the respondent is to show in the brief why the appeal should be dismissed. See Order 18 Rules 3(1)-(5) and 4(1)-(2) of the Court of Appeal Rules, 2011. PER JOSEPH TINE TUR, J.C.A.
ACTION: COUNTER-CLAIM; WHAT CONSTITUTES A COUNTER-CLAIM
Counter-claim is a separate cause of action. See Ogbonna vs. Attorney-General of Imo State (1992) 2 SCNJ (Pt.1) 26 and Alhaji Yusuf Dan Hausa & Co. Ltd. vs. Panatrade Ltd. (1993) 7 SCNJ (Pt.1) 100. In Attorney-General of Lagos State vs. Attorney-General of the Federation (2004) 12 SCNJ 1 Uwais, C.J.N. held at page 39 as follows:
a counter-claim can properly be raised by a defendant when the counter-claim is directly related to the principal See Nigerian Ports Authority vs. Construzioni Generali Farsura Cogefar SPA & Anor. (1972) 12 SC 81 at pages 94-98. PER JOSEPH TINE TUR, J.C.A.
COUNSEL: RELATIONSHIP BETWEEN A COUNSEL AND HIS CLIENT
Rule 18(1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007 provides as follows:
18(1) A client shall be free to choose his lawyer and to dispense with his services as he deems fit provided that nothing in this rule shall absolve the client from fulfilling any agreed or implied obligations to the lawyer including the payment of fees.
(2) The lawyer shall ensure that important agreements between him and the client are, as far as possible, reduced into writing, but it is dishonourable and a misconduct for the lawyer to avoid performance of a contract fairly made with his client whether reduce into writing or not.
The relationship between a Legal Practitioner and his client is contractual. See Edozien vs. Edozien (1993) 1 SCNJ 166 at 189; Mosheshe vs. N.S.P. Ltd. (1987) 2 NWLR (Pt.55) 110 at 119 and Adewunmi vs. Plastex Nig. Ltd. (1986) 6 SC 214 at 223. The agreement bounds only the client and the legal practitioner but not a third party. The respondent was not a party to the agreement entered into by the appellant with the Legal Practitioner engaged to defend her in the trial Court and in this Court. The appellant had the choice to defend the suit through her employees or to contract a Legal Practitioner to defend her in the Lower Court or in this appeal. Rule 21(1) of the Rules (supra) further provides as follows:
21(1) A lawyer shall not abandon or withdraw from any employment once assumed, except for good cause.
A lawyer is an employee once engaged by the client and not a party in litigation. Rule 24(1) of the Rules (supra) further provides that:
24(1) It is the duty of a lawyer to accept any brief in the Court in which he professes to practice provided the proper professional fee is offered unless there are special circumstances which justified his refusal.
I do not fathom a situation where a client engages or employs the services of a Legal Practitioner upon the payment of a professional fee and saddles the opposing party with the refund of the fee when that party was not a party in the agreement between Counsel and his client. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
ASCA BITUMEN COMPANY LIMITED Appellant(s)
AND
HARUNA ISAH Respondent(s)
JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): I tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a ?decision? to means, ?in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? Neither is a ?Ruling? or the expression ?interlocutory ruling? or ?interlocutory decisions? included in the word ?decision? under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be provided by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra). In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 197:
?Willes, C.J. once said, ?When the nature of things changes, the rules of law must change too.? This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of
1
change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent, is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag any of my determination an ?opinion? or a ?decision? but certainly not ?judgment? or ?ruling? as provided under Section 294(2)-(3) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
?I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.?
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word ?determination? at pages 243-244 as
2
follows:
?We gave careful consideration to the argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In this section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred
3
to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
The number of appeals and motions listed for hearing per day, per week and per year when put together will show the number of ?decisions,? ?opinion? or determinations each Justice of the Supreme Court or the Court of Appeal renders which the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output. It will be seen how many decisions or opinions each Justice of the Supreme Court or the Court of Appeal have rendered in order to put an end to judicial controversies or disputes.<br< p=””
</br<
4
Haruna Isah was the plaintiff before the High Court of Justice, Bauchi State holden at Bauchi whom I now call ?the respondent? in this appeal. ASCA Bitumen Company Limited was the defendant I shall call ?the appellant? in this appeal. The respondent pleaded that he was employed by the appellant on 1st February, 2007 as a Burner Operator on a gross salary of N240,000.00 per annum. Throughout the period of employment the services of the respondent were never found wanting but was arbitrarily terminated on 29th October, 2008 by the appellant without notice and for no misconduct he had ever committed. The respondent further pleaded the terms and conditions of service that governed his relationship with the appellant. The respondent?s case is that the appellant was paying him N15,000.00 per month instead of N20,000.00 which was supposed to be his actual entitlement. The appellant did not pay him for the overtime work he did, working 14 hours per day from 5:00pm to 7:00am. That he was also entitled to six tins of milk on daily basis due to exposure to irritable fumes he was inhaling at his place of work. The appellant never honoured
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her obligation. The respondent averred in paragraph 17 of the statement of claim as follows:
?17. The plaintiff says that he incurred special damages by the company to the tune of Nine Million Four Hundred and Fifty Nine Thousand Six Hundred and Thirty Naira (N9,459,630.00) only as duly particularized here under:
PARTICULARS OF SPECIAL DAMAGES:
(a) Six (6) tins of milk daily at N90 per tin from February, 2007 to October, 2008 amounting to N198,630.00.
(b) The defendant was paying the plaintiff only N15,000.00 monthly salary instead of N20,000.00 through out his probation for the period of 6 months which amounted in all to N30,000.00 under payment of N5,000.00 monthly to the plaintiff from February to July, 2008 by the defendant.
(c) The defendant was also paying the plaintiff after the probationary period the sum of N25,000.00 salary per month instead of N50,000.00 thereby making an under payment of N25,000.00 each month from August, 2007 to October, 2008 which amounted to N375,000.00 in all.
(d) The plaintiff?s over time work from 5:00pm ? 7:00am i.e 14 hours daily at N1,000.00 per hour from February, 2007 to
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October, 2008 which in all amounted to a total of N8,886,000.00.
(e) The 2 hours daily brake which was not enjoyed by the plaintiff since assuming duty with the defendant from February, 2007 to October, 2008 at N1,000 per hour which is N2,000 daily unpaid dues as compensation for the brake not enjoyed thereof also amounting to N1,200,000.00.
BY REASON WHEREOF of the plaintiff has (suffered damages and claims against the defendant jointly and severally as follows:
(a) A DECLARATION that the termination of the plaintiff?s employment by the defendant without notice or a month salary in lieu thereof and without any misconduct committed by the plaintiff in the circumstances was arbitrarily and without a just cause.
(b) The sum of N198,630.00 being compensation as for the cost of tins of milk the defendant owed the plaintiff.
(c) The sum of N30,000.00 being special damages for incomplete payment of salary by the defendant to the plaintiff for the 6 months period of probation.
(d) The sum of N375,000.00 being special damages for slashing the plaintiff?s salaries after probation up to the termination of his appointment by the
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defendant in October, 2008.
(e) N8,886,000.00 being money for over time work the plaintiff rendered to the defendant which money the defendant failed or refused to pay.
(f) The sum of N10,000,000.00 general damages against the defendant.?
The appellant filed a statement of defence admitting that the respondent had been engaged on 18th May, 2007 on a gross salary of N240,000.00 per annum. The appointment was however terminated on 29th October, 2008 and the respondent was advised to liaise with the account department to be paid his final entitlements. The respondent indeed collected his final entitlement. The appellant denied the existence of any ?overtime sheets? as her workers in Bauchi State are not required to work overtime. In Paragraph 8-12 of the Statement of Defence the following facts are pleaded:
?8. The defendant denies Paragraph 15, 16 and 17 of the statement of claim and put the plaintiff to the strictest proof thereof.
9. The defendant pleads and shall on the staff personal data form of the plaintiff which he submitted to the defendant on the 9th of May, 2007 and all documents relating to the
8
period of the plaintiff?s employment with the defendant.
10. The defendant avers that as a result of this frivolous suit it has incurred a huge legal and logistic cost. The defendant pleads the receipt of payment issued to it by its solicitors.
11. The defendant contends that the plaintiff?s claim is frivolous, vexatious and lacking in merit.
12. WHEREOF the defendant counter-claim against the plaintiff as follows:
(a) The sum of N9,000.00 (Nine Hundred Thousand Naira) being the legal cost of this suit to the defendant.
(b) The sum of N3,000,000.00 (Three Million Naira) as general damages.?
Lawal Idris testified as PW1 while Bala Mohammed, a casual worker with the appellant gave evidence as PW2. The respondent testified as PW3 and tendered his letter of termination (Exhibit ?A?) and of appointment (Exhibit ?B?). Timothy Jacob the appellant?s Secretary in Bauchi testified as DW1 and tendered the respondent?s letter of appointment which was marked Exhibit ?C?. DW1 denied there was any policy of the appellant to give workers of the respondent?s category six tins
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of milk and N1,000.00 for overtime. Neither had there being a dispute concerning the non-complete payment of salaries by the respondent to the appellant. DW1 also testified in respect of the counter-claim and was cross-examined by Dahiru, Esq. who represented the respondent. The learned Counsel informed the Court he was not calling evidence in respect of the counter-claim. Written addresses were submitted by the legal representatives of the parties. The learned trial Judge entered judgment in favour of the respondent on 28th May, 2013 holding at page 131 lines 14 to page 132 lines 1 to 12 of the printed record as follows:
?Having said that the plaintiff has prove his case against the defendant on the preponderance of evidence and balance of probabilities, judgment is hereby entered in favour of the plaintiff against the defendant as follows:
(a) It is hereby declared that the purported termination of employment of the plaintiff by the defendant is wrongful and therefore the plaintiff is entitled to one month salary in lieu of notice which is the sum of N25,000.00 from the defendant.
(b) That the defendant shall pay the plaintiff the sum
10
of N198,360.00 being the cost of tins of milk the defendant owe the plaintiff.
(c) The defendant shall pay the plaintiff N30,000.00 being special damages for incomplete payment of salary by the defendant to the plaintiff for the 6 months period of probation.
(d) The defendant shall pay the plaintiff the sum of N8,886,000.00 being money for overtime work the plaintiff rendered to the defendant which money the defendant failed or refused to pay.
(e) The defendant shall pay the plaintiff all his retirement benefits forthwith.
(f) The defendant shall pay the plaintiff the sum of N3,000,000.00 as general damages.?
Thirteen grounds accompany the Notice of Appeal filed by the appellant on 10th June, 2013. A brief of argument was filed on 8th November, 2013 with a deeming order dated 27th May, 2014. The respondent filed a brief on 1st July, 2014 which was amended on 4th June, 2015 and deemed properly before the Court on 17th November, 2015. A reply brief was filed by the appellant on 27th May, 2015. When the appeal came up for hearing learned Counsel adopted their respective briefs of argument. Paragraphs 2.0 to 3.4 of the
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appellant?s brief is couched as follows:
?ISSUE FOR DETERMINATION:
We respectfully raise the following issues for determination of this appeal viz:
ISSUE ONE:
Whether the failure of the learned trial Judge to properly evaluate the evidence placed before him in the course of the trial, has led to miscarriage of justice in the case.
ISSUE TWO:
Whether or not a Court law can grant a relief not asked for or claimed by a party and which relief cannot be presumed from the case.
ISSUE THREE:
Whether the award of damages to the respondent is reasonable at law in view of the lack of evidence before the Court to support the claim.
ISSUE FOUR:
Whether at law counter-claim is an independent suit/claim which the Court should make a finding on.
MARRIAGE OF THE ISSUES OF DETERMINATION WITH THE GROUNDS OF APPEAL:
ISSUE NO.1 is distilled from grounds 1, 2, 3, 7, 10, 12 and 13 of the Notice of Appeal.
ISSUE NO.2 emanates from grounds 8 of the Notice of Appeal.
ISSUE NO.3 is distilled from grounds 4, 5 and 9 of the Notice of Appeal.
ISSUE NO.4 is couched from ground 11 of the Notice of the
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Appeal.?
At page 4 of the respondent?s Amended Brief of Argument is to be found the following issues for determination:
?1. Whether trial Court has failed to properly evaluate the evidence before it thereby giving judgment against weight of evidence? Grounds 1, 2, 3, 4, 5, 7, 9, 10, 12 and 13 of the appeal.
2. Whether the trial Court has reached a wrong decision when it considered the respondent?s retirement benefit and disregarded the appellant?s counter claim? Grounds 8 and 11 of the appeal.?
Parties/learned Counsel should always bear in mind that Justices will read the briefs of argument and examine the exhibits before proffering an opinion. There is no need to reproduce verbatim the argument of learned Counsel in the briefs except where it becomes absolutely necessary to do so. The duty of the respondent is to show in the brief why the appeal should be dismissed. See Order 18 Rules 3(1)-(5) and 4(1)-(2) of the Court of Appeal Rules, 2011. Having read the oral and documentary evidence adduced in the Lower Court and considered the reasoning of the learned trial Judge, I am of the candid opinion that
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issues one to three distilled for determination by the appellant can, for the sake of convenience, be merged and treated together since they come to this: Whether the learned trial Judge evaluated the oral and documentary exhibits before finding in favour of the respondent. I shall consider issue four separately.
The respondent pleaded the terms and conditions of his employment with the defendant company in Paragraphs 7 to 8 of the statement of claim but never tendered them at the hearing. In Morohunfola vs. College of Technology (1990) 7 SCNJ 51, Uwais, JSC held at pages 57 to 58 as follows:
?The appellant?s cause of action was based on contract of employment. It was absolutely essential therefore for the appellant, as plaintiff, to plead in his statement of claim the fact that there was a contract of employment between him and the respondent, as defendant. And furthermore, to spell out in the statement of claim what the terms of the contract were. If this was not done then the material facts necessary to formulate a complete cause of action had not been averred and the statement of claim was bad ? See Bruce vs. Odham Press Ltd.
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(1936) 1 All E.R. 287 at page 294 and Shell B.P. Petroleum Development Co. of Nigeria Ltd. & 5 Ors. vs. M.S. Onasanya (1976) 1 All NLR (Pt.1) 425 at 429 where this Court held that where an action is founded on contract, as the present case, the plaintiff must give sufficient particulars in his pleading to enable the contract to be identified. If this is not done, then the statement of claim has not disclosed a cause of action.
This is why no averment which is essential to success must be omitted. In an action for wrongful dismissal it is necessary therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which has been breached would be admissible at the trial; and this will be fatal to the action since it will lack foundation. Shell B.P.?s case (supra).?
Karibi-Whyte, JSC also held at pages 63-64 of the judgment as follows:
?It is pertinent to refer to what
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Counsel to the appellant refers to as plaintiff?s cause of action. He calls it ?null termination?. Whatever that may mean to Counsel, he was seeking a declaration that he is still in the employment of the defendant College of Technology, and that the letter of termination of appointment dated 17th April, 1980 did not have the legal effect intended because there was no Governing Council or Sole Administrator to authorize the writing of such letter. In other words, Counsel is contending that plaintiff is an employee of the defendant, and implies that he has a letter of appointment to that effect, and that his appointment can only be terminated by the Governing Council or the Sole Administrator on the exercise of powers conferred on any other person on their or his behalf. Thus this contention is that since his appointment with the defendant has not been validly determined by the invalid exercise of the powers of the relevant authority, it should be declared that he is still an employee of the defendant. Accordingly, the defendant should be restrained by injunction from filling his post which the purported invalid termination of appointment had
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rendered apparently vacant.
The question therefore is whether there is any averments in his statement of claim that:-
(a) He is an employee of the defendant;
(b) How was he appointed and what are the terms and conditions of his appointment;
(c) Who can appoint him and who can remove him;
(d) What are the circumstances under which his appointment can be determined;
(e) That his appointment can only be terminated by the Governing Council or Sole Administrator of the Defendant College.
Those are the material facts required to be pleaded where plaintiff is seeking a declaration that the termination of his appointment is a nullity.
All Counsel to the appellant did in this case in his statement of claim was to allege that there was no authority for the exercise of the power to terminate his appointment. There was no averment in his statement of claim to show that he held an appointment with the defendant, the terms and conditions of that appointment, and the circumstances under which his appointment can be determined by the defendant or any person delegated to do so. I agree with Mr. Olanipekun for the respondent and the
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Court of Appeal that these are essential particulars of appellant?s pleading without which the plaintiff?s claims cannot be sustained.?
His Lordship finally held at page 65 as follows:
?It seems clear to me that appellant has brought this action for the purpose of ascertaining and determining his rights to remain an employee of the defendant. The point of law which falls for determination is whether his contract of service with the Defendant College of Technology has been interfered with by someone who has no authority to do so. In the circumstances it is difficult to conceive how the determination whether appellant is an employee of the Defendant College of Technology and therefore hold its letter of appointment will not arise. If he is an employee how did he come to be, by a contract of employment or oral agreement? Are there any rules governing his employment? If any, what is the nature of the contract, permanent establishment or temporary? Whether they contain conditions for his termination. It is certainly not correct to argue as Counsel to the appellant has done that the fact that appellant is in the employment of the
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defendant was not in dispute. Similarly, not correct is the contention that it is not in dispute that appellant is entitled on termination of appointment to be given three months? salary in lieu of notice.
The law is that only proof admitted facts are dispensed with. And this is only when parties formally agree about a particular matter either in their pleadings or otherwise. See Okparaeke of Ndiakaere & Ors. vs. Egbuonu & Ors. (1941) 7 WACA 53. In the instant case the facts claimed to have been admitted were not pleaded. There was no basis therefore for assuming that they have been admitted.?
Exhibit ?B? is couched as follows:
?ASCA Bitumen Company Ltd.
9 Vanem Crescent, Wuse II, FCT, Abuja, Nigeria
Dear Haruna Isa,
RE: APPLICATION FOR EMPLOYMENT
We refer to your application for employment and the subsequent interview held with our Management, we are pleased to offer you an appointment with our company?s as BOILA OPERATOR under the following terms and conditions:
Place of Employment: Bauchi (You should be prepared to work any where in the country).
Remuneration: You
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shall be placed on 240,000.00 Gross Salary per annum and the breakdown is as follows:
Basic Salary ? 48,000.00
Housing Allowance ? 48,000.00
Transport Allowance ? 24,000.00
Meal Allowance 24,000.00
Utilities ? 96,000.00
Total ? 240,000.00
This appointment is subject to a probationary period of six months and will be confirmed only if your performance proves to be satisfactory during the probationary period. During the probationary period, either party can terminate your appointment by simply giving a one-month notice in writing or one month salary in lieu of notice.
Leave Allowances:
Upon confirmation, you will be entitled to 15 working days and your leave allowance shall be paid at the commencement of the Annual Leave. Your allowance is 10% of your Annual Gross Salary.
Sick Leave:
Any absence of work due to illness must be reported to the company within 24 hours. Any such absence in excess of 20 days in any one-year will be treated as leave without pay.
Medical Allowance:
Your medical allowance is N15,000 ? per annum. If sickness persists after one month or 30
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days of hospitalization, the company shall stop payment of your salary until you are healthy and back on your duty post.
Dismissal:
You will be subject to instant dismissal for facts of gross wrong doing, misconduct, or insubordination which in the opinion of the company necessitates such action and should there be any damages, the company reserves the right to claim such damage(s) from you.
You are required to sign the acceptance copy of this offer letter if you accept the conditions and terms stated therein.
Your faithfully,
SGD.
Werner Pirjins
Managing Director
Note: Medical for senior staff is N25,000 per annum.?
Exhibit ?B? and ?C? are the same in terms of conditions of service and entitlements of the respondent.
In the absence of the terms and conditions of service governing the relationship between the respondent and the appellant, material facts to formulate a complete cause of action had not been averred in the statement of claim and proved at the hearing to warrant judgment been entered in favour of the respondent by the learned trial Judge.
In E. Sapara vs.
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University College Hospital Board Management (1988) 7 SCNJ 291 Karibi-Whyte, JSC again held at page 306 as follows:
?It is clear therefore that Exhibit ?D? contains the regulations governing the contract of employment and cannot operate inconsistent with Exhibit ?A? which is evidence of such contract. Exhibit ?D? is intended to support and give effect to Exhibit ?A?. It is an accepted proposition of law that where there is an existing contract, and a new document supporting and giving effect to the rights under the contract is drawn up, the rights of the parties must be construed in terms of the original contract. See Beesly vs. Hallwood Estate Ltd. (1960) 2 All E.R. 314 at pp.322-323.?
See also Olatunbosun vs. NISER (1988) 3 NWLR (Pt.80) 25 and Shell Petroleum Development Co. of Nigeria Ltd. & Ors. vs. Onasanya (1976) 6 SC 57.
?
A letter of appointment is not the same as the terms and conditions of service. Both have to be pleaded and proved at the hearing. There is no scintilla or iota of evidence in Exhibits ?A?-?C? put before the trial Court as to what
22
were the respondent?s entitlements as a probating staff of the appellant. Documentary evidence adduced at the trial should be used to test the oral evidence given by the parties and their witnesses. See Fashanu vs. Adekoya (1974) 9 NSCC 327 at 331 and Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253. Oral evidence cannot be employed to contradict, vary or add to the documents evidencing the contractual relationship between the appellant and the respondent. See Union Bank of Nig. Ltd. vs. Sax Nig. Ltd. (1994) 9 SCNJ 1 and Union Bank of Nigeria Ltd. vs. Ozigi (1994) 3 SCNJ 42 at 55. However, the learned trial Judge held at page 120 lines 5 to page 121 lines 1-25 of the printed record as follows:
?Therefore, it is not in doubt that the plaintiff was an employee of the defendant before his employment was terminated by the defendant, and I so hold.
From the testimonies of the plaintiff who gave evidence as PW3 and also that of PW1 and PW2 and Exhibits ?A?, ?B?, and ?C? the relevant portion of Exhibits ?B? and ?C? which I find relevant to quote thus:
?This appointment
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is subject to a probationary period of six months and will be confirmed only if your performance proves to be satisfactory during the probationary period, either party can terminate your appointment by simply giving a one month notice in writing or one month salary in lieu of notice.?
And Exhibit ?A? states and I quote:
?This is to inform you that your services are no longer required with the company with effect from 29th October, 2008.?
It is worthy of note that Exhibit ?A? is dated 29th October, 2008 meaning that the termination of the plaintiff?s employment took effect on the same date the letter was written. This confirms the evidence of the plaintiff which is to the effect that no notice was given to him for the termination of his employment. The plaintiff further testified that one month salary was not paid to him in lieu of notice, and this piece of evidence was never challenged or discredited by the defendant and therefore admissible.
It is trite that where the contract of employment expressly states the period of notice which the employee is entitled to receive, then at least that
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period must be given. See Akumechiel vs. Benue Cement Co. Ltd. (1997) 1 NWLR (Pt.484) 695; Osisanya vs. Afribank (Nig.) Plc (2007) 6 NWLR (Pt.1031) 565.
In the present case by Exhibits ?B? and ?C? the plaintiff was entitled to one month notice or one month salary in lieu of notice where the defendant desires to terminate the employment of the plaintiff. There is no evidence of such notice or payment of one month salary in lieu of such notice.
I am of the firm view that the termination of employment of the plaintiff by the defendant without due regard to the terms and conditions of his employment as regard to notice as contained on Exhibits ?B? and ?C? is wrongful and I so hold.
He who hires can fine. Nevertheless, an employer must observe and adhere to the conditions under which an employee is hired before such an employee can be fired, otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee. See Akinfe vs. UBA Plc (2007) 10 NWLR (Pt.104) 185.
A master or employer is entitled to suspend, retire, terminate or dismiss his or its
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servant/employee?s appointment for good or bad reason or even for no reason at all.?
ISSUE FOUR:
The appellant counter-claimed in Paragraph 11 of the statement of Defence. Counter-claim is a separate cause of action. See Ogbonna vs. Attorney-General of Imo State (1992) 2 SCNJ (Pt.1) 26 and Alhaji Yusuf Dan Hausa & Co. Ltd. vs. Panatrade Ltd. (1993) 7 SCNJ (Pt.1) 100. In Attorney-General of Lagos State vs. Attorney-General of the Federation (2004) 12 SCNJ 1 Uwais, C.J.N. held at page 39 as follows:
a counter-claim can properly be raised by a defendant when the counter-claim is directly related to the principal ? See Nigerian Ports Authority vs. Construzioni Generali Farsura Cogefar SPA & Anor. (1972) 12 SC 81 at pages 94-98.?
Paragraphs 10-12 of the Statement of Defence sets out the matters on which the appellant founded the counter-claim which is a separate cause of action. The respondent should have filed a defence to the counter-claim and led evidence at the trial to rebut the counter-claim. The respondent did not. The result is that the facts pleaded by way of the counter-claim remained
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unchallenged. But the onus of proving the counter-claim rested on the appellant/counter-claimant.
Rule 18(1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007 provides as follows:
?18(1) A client shall be free to choose his lawyer and to dispense with his services as he deems fit provided that nothing in this rule shall absolve the client from fulfilling any agreed or implied obligations to the lawyer including the payment of fees.
(2) The lawyer shall ensure that important agreements between him and the client are, as far as possible, reduced into writing, but it is dishonourable and a misconduct for the lawyer to avoid performance of a contract fairly made with his client whether reduce into writing or not.?
The relationship between a Legal Practitioner and his client is contractual. See Edozien vs. Edozien (1993) 1 SCNJ 166 at 189; Mosheshe vs. N.S.P. Ltd. (1987) 2 NWLR (Pt.55) 110 at 119 and Adewunmi vs. Plastex Nig. Ltd. (1986) 6 SC 214 at 223. The agreement bounds only the client and the legal practitioner but not a third party. The respondent was not a party to the agreement entered into by the
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appellant with the Legal Practitioner engaged to defend her in the trial Court and in this Court. The appellant had the choice to defend the suit through her employees or to contract a Legal Practitioner to defend her in the Lower Court or in this appeal. Rule 21(1) of the Rules (supra) further provides as follows:
?21(1) A lawyer shall not abandon or withdraw from any employment once assumed, except for good cause.?
A lawyer is an employee once engaged by the client and not a party in litigation. Rule 24(1) of the Rules (supra) further provides that:
?24(1) It is the duty of a lawyer to accept any brief in the Court in which he professes to practice provided the proper professional fee is offered unless there are special circumstances which justified his refusal.?
I do not fathom a situation where a client engages or employs the services of a Legal Practitioner upon the payment of a professional fee and saddles the opposing party with the refund of the fee when that party was not a party in the agreement between Counsel and his client.
Truly, the learned trial Judge did not pronounce on the counter-claim but it is
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not every error committed by a learned trial Judge that shall result into the Court of Appeal setting aside decision. See Amayo vs. Erinmwingbovo (2006) All FWLR (Pt.318) 612 at 628 and Bankole vs. Pelu (1991) 8 NWLR (Pt.211) 523.
Accordingly, I resolve issue four against the appellant. Issue four is dismissed.
On the whole this appeal succeeds in part. For the avoidance of doubt I hold that the respondent was entitled to only one month?s salary in lieu of notice. The rest of the reliefs granted the respondent in the Lower Court are set aside and stand dismissed. Parties to bear their respective cost of this litigation.
ADAMU JAURO, J.C.A.: I have had a preview of the judgment, just delivered by my learned brother, JOSEPH TINE TUR, JCA. I agree entirely with all the reasoning and conclusions contained therein, to the effect that the appeal succeeds in part. I adopt the said judgment as mine and abide by all consequential orders made therein.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading the draft of the lead judgment by my
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learned brother, JOSEPH TINE TUR, JCA. I am in complete agreement with the conclusions and decision reached therein.
Consequently, I abide by the orders made therein.
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Appearances:
E.M.D. Umokoro, Esq.For Appellant(s)
S.F. Dashe, Esq.For Respondent(s)
Appearances
E.M.D. Umokoro, Esq.For Appellant
AND
S.F. Dashe, Esq.For Respondent
