C.G.G. (NIG) LIMITED v. ANTHONY AUGUSTINE & ORS
(2010)LCN/4026(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of November, 2010
CA/PH/224/2008
RATIO
FORCE MAJEURE : MEANING OF FORCE MAJEURE
Force majeure, according to Black’s Law Dictionary 8th Ed, is an event or effect that can neither be anticipated nor controlled. It includes both natural and human acts. PER EJEMBI EKO, J.C.A
PRINCIPLE TO BE FOLLOWED BY THE COURT IN EVALUATING THE EVIDENCE ADDUCED BY THE PARTIES IN A CIVIL CASE
The golden rule on evaluation, or proper evaluation, of evidence enunciated by the Supreme Court in MOGAJI v. ODOFIN (1978) 4 SC 91 @ 95 and followed in a number of cases including WOLUCHEM v. GUDI (1981) SC 291 is that: before a Judge, before whom evidence is adduced by the parties before him in a civil case, comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence 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 of the defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but, by the quality or the probative value of the testimony of those witnesses. PER EJEMBI EKO, J.C.A
WHETHER A COURT IS EXPECTED TO ACT UPON ANY UNCHALLENGED EVIDENCE
…the law is quite trite that this defence evidence having not been denied by the Plaintiffs/Respondents ought to be accepted and acted upon, and not merely shoved aside as the learned trial Judge had done in the instance case. See SAMUEL OBERE v. BOARD OF MANAGEMENT, EKU BAPTIST HOSPITAL (1978) 6-7 sc 15. PER EJEMBI EKO, J.C.A
WRONGFUL DISMISSAL: WHETHER THE AMOUNT OF DAMAGES A SERVANT WHOSE EMPLOYMENT WAS WRONGFULLY TERMINATED, IS ENTITLED TO BE GIVEN IS THE AMOUNT EQUIVALENT TO THE SALARY HE WOULD HAVE EARNED WITHIN THE PERIOD OF THE NOTICE TO TERMINATE THE EMPLOYMENT
In W.N.D.C. v. ABIMBOLA (1966) 1 ALL NLR 159 at 160 -161 the supreme court held that the measure, if damages is on the face of it, the amount the servant would have earned had he continued with the employment such damages are regarded as an indemnity which do not include compensation for either injured feelings or for the fact that by the fact of the dismissal the servant would find it difficult to obtain fresh employment. And in ONALAJA v. AFRICAN PETROLEUM LIMITED (1991) 7 NWLR (pt.206) 691 at 698 the Supreme Court further stated: I think the most important thing to emphasize in this judgment is that in cases of wrongful dismissal, the amount of damages recoverable by a plaintiff must be geared to the period of notice to be given by the employer as stipulated in the contract of employment. If no period of notice was prescribed, then the common law rule will apply, namely that a reasonable period would be given, usually one month or three months, depending on the category of staff being dismissed. On this still, the Supreme Court in CHUKWUMAH v. SHELL PETROLEUM DEVELOPMENT CO. NIG LTD (1993) 4 NWLR (pt.289) 512 at 538 D appears to be more forthright in stating: Having held however that his employment was wrongfully terminated, he is undoubtedly entitled to damages. On the authorities as their stand, he is only entitled to what he would have earned over the period of notice. All the servant, wrongfully terminated, gets or is entitled to be given is the amount equivalent to the salary he would have earned within the period of the notice to terminate the employment. That is all he can get as damages. See I.D.C. v. AJIJALA (1976) 2 SC 115 per Obaseki JSC. PER EJEMBI EKO, J.C.A
JUSTICES:
MUSA DATIJJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
C.G.G. (NIG) LIMITED – Appellant(s)
AND
1. ANTHONY AUGUSTINE
2. BOB OGBO (for themselves and on behalf of 15 others in Alebiribi Town)
3. HRH SIMON EBEBI – Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment):. The 1st sets of Respondents were the Plaintiffs at the lower court. Their case against the Appellant and the 3rd set of Respondent was that they were employed as security supervisors and security men by the Appellant and the 3rd Respondent. They alleged that they had a four (4) year contract of employment with the Appellant and the 3rd Respondent at Aleibiri village of Bayelsa State. They further contended that at the time the Appellant (as 1st Defendant) left Aleibiri site they were being owed arrears of their entitlements and that the Appellant suddenly moved out of Aleibiri site without their knowledge and notice; and further that the Appellant moved out of the said Aleibiri site without giving them a formal letter terminating their appointment. They had formed an opinion that the conduct of the Appellant amounted to termination of their appointment.
Consequently, their claim against the Appellant and 2nd set of Respondent jointly and/or severally is for
a. Plaintiffs’ salaries in arrears running from 1998 until judgment is liquidated.
b. A monthly interest of 30% of the aforesaid salaries in arrears until judgment is liquidated.
c. the sum of two million Naira (N2,000,000.00) being and representing general damages for breach of contract of employment.
The parties called a total of four witnesses. In his considered judgment, after the final addresses of counsel, the learned trial Judge dismissed claims for “arrears of salaries from 1998 until judgment is liquidated” and a “monthly interest of 30% of the aforesaid salaries in arrears until judgment is liquidated”. The 1st set of Respondents, as Plaintiffs, did not appeal the dismissal of these claims.
The learned trial Judge held however that the Appellant ought to have given reasonable notice to the Plaintiffs/Respondents “of termination of the employment or payment in lieu which they fail (sic) to do” in breach of their common law duty. He consequently awarded N200,000.00 general damages against the Appellant for breach of common law rule of a termination of contract of employment – in favour of the plaintiffs (Respondents).”  The suit this against the 2nd Defendant/ 3rd Respondent was dismissed in its entirety.
It is against this decision and award of N200,000.00 general damages that the Appellant appealed on three grounds of appeal.
Out of these three grounds of appeal the Appellant, in his Brief of argument, filed on 20th June, 2005, formulated two issues to wit:
01. Whether the Appellant is liable to the 1st set Respondents for breach of contract of employment, and
02. If so, to what extent in damages?
The 3rd Respondent, who also was the 2nd Defendant at the trial court, formulated one issue in his brief of argument filed on 18th April, 2007 but deemed filed on 30th October, 2008. That is
Whether the lower court was right when it awarded to the 1st set of Respondents (plaintiffs) the sum of N200,000.00 (two hundred Thousand Naira) only as general damages for alleged breach of contract of employment.
The 1st set of Respondents, who were the plaintiffs at the trial court, did not file any brief of argument. The appeal, at the instance of the appellant, was heard only on the briefs of the Appellant and the 3rd Respondent, who incidentally were the defendants at the trial court.
The Appellant, as 1st Defendant at the trial court, pleaded force majeure and averred that they had to hurriedly leave Aleibiri site because of “the Bayelsa CHIKOKO Youth disturbances.” The Plaintiffs, now 1st set of Respondents, did not join issues on the plea of force majeure. They filed no reply to the defence of 1st defendant/Appellant. Only the PW.2 stated tersely under cross-examination that “there was no crises called Chico Youth crises” in 1998,
The DW.1 testified unchallenged, that the Appellant had worked for three months at Aleibiri and left because of a problem. It was one CHIKOKO group who came threatening us, the company, to leave. This CHIKOKO group claimed that they are marginalized by oil companies and government and asks all companies to leave their domain. As a result of this scenario our management informed us and the contractors to leave the area for safety.
Important as this issue was to the defence of the Appellant, 1st defendant at the trial court, the learned trial Judge never bothered to give this evidence any consideration. Force majeure, according to Black’s Law Dictionary 8th Ed, is an event or effect that can neither be anticipated nor controlled. It includes both natural and human acts.
The human acts may be of political in nature including riots, strikes or war.I understand their plea of the Appellant, as 1st defendant, to mean that their having to leave Aleibiri site and abandoning whoever was working for them was not an act of their volition but one thrusted on them by the political and security situation created and foisted on them by the CHIKOKO Youths.
The golden rule on evaluation, or proper evaluation, of evidence enunciated by the Supreme Court in MOGAJI v. ODOFIN (1978) 4 SC 91 @ 95 and followed in a number of cases including WOLUCHEM v. GUDI (1981) SC 291 is that: before a Judge, before whom evidence is adduced by the parties before him in a civil case, comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence 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 of the defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party, but, by the quality or the probative value of the testimony of those witnesses. Clearly, the learned trial Judge was in breach of this golden rule when he held the Appellant liable in the suit of the Plaintiffs/Respondents and awarded N200,000.00 as general damages for constructive dismissal. He did not at all consider the defence of force majeure and the evidence on it put up by the Appellant that allegedly necessitated their hurriedly leaving Aleibiri site without formal notice of disengagement of their staff and contractors.
Appellant rightly, in my view, made so much fuss on this when they submitted inter alia that their contract with the Plaintiffs/Respondents was frustrated by violent youth crisis, and that the circumstances, though not the fault of the Plaintiffs/Respondents, conferred no fault also on the Appellant. And further that in such situation there could not be reasonability of notice.
Finally, on this point: the law is quite trite that this defence evidence having not been denied by the Plaintiffs/Respondents ought to be accepted and acted upon, and not merely shoved aside as the learned trial Judge had done in the instance case. See SAMUEL OBERE v. BOARD OF MANAGEMENT, EKU BAPTIST HOSPITAL (1978) 6-7 sc 15. The answer to the Appellant’s first issue is negative. The trial court had not properly determined the liability of the Appellant (1st defendant) in the suit of the 1st set of Respondents, who were the Plaintiffs,
The basis of the claim of the Plaintiffs/Respondents for general damages for constructive dismissal is that the 1st defendant/Appellant “left Aleibiri community secretly, without due notice and without paying the Plaintiffs their entitlements in arrears.”
The trial court found that the Plaintiffs were not owed any entitlements in arrears. It consequently dismissed the first two reliefs claimed by the Plaintiffs. It, however, made contradictory findings on whether the 1st defendant/Appellant left Aleibiri community secretly, without due notice which formed the fulcrum of the claim for general damages. At page 101 of the record the learned trial Judge found –
Although the 1st defendant denied the fact of leaving without notice, I do not believe the 1st defendant that they left with the knowledge of all.
This finding is completely the antithesis of the earlier finding at page 100 of the same record that the 1st defendant finally departed Aleibiri on 24.5.98 to the knowledge of all including the Plaintiff and defendant.
These contradictory findings completely knock off the basis of the claim of N2,000,000.00 general damages for constructive dismissal put up by the plaintiffs before the trial court. There is therefore no basis for holding the 1st defendant/Appellant liable to the plaintiffs in the claim of N2,000,000.00 general damages, out of which the learned trial judge, in his wisdom, awarded N200,000.00 in favour of the Plaintiffs/1st Respondent.
Notwithstanding my resolution of the Appellant’s first issue in the appeal, which substantially disposes of the appeal, I still have to consider whether the learned trial Judge properly exercised his discretion in the measure of damages awarded in the alleged constructive dismissal of the plaintiffs.
The 2nd defendant/ 3rd Respondent submitted that the trial court was in error when it awarded general damages in favour of the Plaintiffs/1st set of Respondents for the alleged breach of contract of employment as there is no room for general damages in cases of this class of breach of contract. The 2nd Defendant/ 3rd Respondent is in firm ground here. Authorities, which are abound, suggest that the damages recoverable in this class of breach of contract are in the specie of special damages. In W.N.D.C. v. ABIMBOLA (1966) 1 ALL NLR 159 at 160 -161 the supreme court held that the measure, if damages is on the face of it, the amount the servant would have earned had he continued with the employment such damages are regarded as an indemnity which do not include compensation for either injured feelings or for the fact that by the fact of the dismissal the servant would find it difficult to obtain fresh employment. And in ONALAJA v. AFRICAN PETROLEUM LIMITED (1991) 7 NWLR (pt.206) 691 at 698 the Supreme Court further stated:
I think the most important thing to emphasize in this judgment is that in cases of wrongful dismissal, the amount of damages recoverable by a plaintiff must be geared to the period of notice to be given by the employer as stipulated in the contract of employment. If no period of notice was prescribed, then the common law rule will apply, namely that a reasonable period would be given, usually one month or three months, depending on the category of staff being dismissed.
On this still, the Supreme Court in CHUKWUMAH v. SHELL PETROLEUM DEVELOPMENT CO. NIG LTD (1993) 4 NWLR (pt.289) 512 at 538 D appears to be more forthright in stating:
Having held however that his employment was wrongfully terminated, he is undoubtedly entitled to damages. On the authorities as their stand, he is only entitled to what he would have earned over the period of notice. All the servant, wrongfully terminated, gets or is entitled to be given is the amount equivalent to the salary he would have earned within the period of the notice to terminate the employment. That is all he can get as damages. See I.D.C. v. AJIJALA (1976) 2 SC 115 per Obaseki JSC.
From the authorities, as they stand presently, the learned trial Judge was clearly in error in holding, as he did in this at pages 101-102 that –
General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s act- which is generally presumed by law.
This clearly is a misapplication of the principle of compensation the special class of tort of wrongful dismissal in which the rule of on damages is one of indemnity
In view of the foregoing I have no difficulty resolving all the issues in favour of the Appellant in this appeal. The basis of the award of N200,000.00 in favour of the plaintiff/Respondents against the 1st Defendant/Appellant is lacking in law.
The law is trite that the Plaintiff or claimant in the court of law gets only what he has claimed and proved. The Court, not being Father Christmas, can not award to a party the relief he neither claimed nor proved. On all the issues canvassed I hereby allow the appeal. The judgment, including the order awarding N200,000.00 as general damages to the Plaintiffs, of the Bayelsa state High court in suit no. SHC//13/2001 of 28th July, 2004 is hereby set aside. Costs assessed at N50,000.00 are hereby awarded against the plaintiffs,/1st set of Respondents in favour of the Appellant.
DATTIJO MUHAMMAD, J.C.A(OFR):. I have read in advance the lead judgment of my learned brother EKO J.C.A, I agree with his reasoning and conclusion therein that the appeal has merit. I adopt the judgment as well as the consequential orders made as mine.
T. O. AWOTOYE, J.C.A:. I have read before now the judgment of my learned brother EJEMBI EKO J.C.A, just delivered I agree entirely with it. I have nothing to add to or subtract from it. I respectfully adopt the reasoning as mine I allow the appeal on all the issues canvassed. The judgment and order of Bayelsa High court in suit No. SHC/13/2001 of 28th July, 2004 is hereby set aside. I make the same orders as to costs.
Appearances
H.N. Owhor (Mrs.) holding brief of D.O. Ezaga Esq. For Appellant
AND
K. Wodu For Respondent
