KABO AIR LIMITED v. ISMAIL MOHAMMED (2014)

KABO AIR LIMITED v. ISMAIL MOHAMMED

(2014)LCN/7155(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of April, 2014

CA/K/169/2013

RATIO

ESSENCE OF PUNITIVE DAMAGES

WHETHER A WORKMAN CEASES TO ACT IN THE COURSE OF HIS EMPLOYMENT BY WORKING IN A FORBIDDEN PLACE

The Latin phrase eundo, morando, et redeundo means ‘while at the place of employment, and whileentering or leaving it’. The employer’s duty thus extends to matters arising while the employee iscoming to the place of work or leaving it. Further, the duty is not confined to the actual performance ofwork, but also applies when the servant is doing something reasonably incidental to work. Thus, in Davidson v. Handley Page Ltd (1945) 1 All ER 235, where the plaintiff had gone to wash a tea-cup whenshe slipped on an oily dick-board and injured herself, Lord Green MR sated that:

“The obligation of the employer extends to cover all such acts as are normally and reasonably incidental to a man’s day’s work.”

WHETHER LIABILITY OF AN EMPLOYER UNDER THE DUTY OF CARE RESTS UPON THE LAW OF TORT RATHER THE LAW OF CONTRACT

WORDS AND PHRASES: NEGLIGENCE

Negligence is a tort and it is complete and actionable when three conditions are satisfied, these are (i)the defendant owed a duty of care to the claimant; (ii) the duty of care was breached; and (iii) theclaimant suffered damages arising from the breach. A claimant must prove the three conditions bypreponderance of evidence or on balance of probabilities to succeed in an action rooted in negligenceand once these requirements are satisfied, the defendant in law will be held liable in negligence – Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307, Iyere v. Bendel Feeds and Flour Mills Ltd (2008) 18NWLR (Pt. 1119) 300, GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc (2009) 15 NWLR(Pt. 1164) 344 and Diamond Bank Plc v. Partnership Investment Co Ltd supra.

Negligence is a question of fact and not law and so each case must be decided in the light of the factspleaded and proved. A claimant in an action in negligence is required to state or give particulars ofnegligence alleged. It is not sufficient for a claimant to make a blanket allegation of negligence against adefendant in a claim of negligence without giving full particulars of the items of negligence relied on aswell as the duty of care owed him by the defendant – Universal Trust Bank of Nigeria Plc v. Ozoemenasupra, Dare v. Fagbamila (2009) 14 NWLR (Pt. 1160) 177, Diamond Bank Plc v. Partnership InvestmentCo. Ltd supra. A claimant must also lead credible and cogent evidence on the specific acts of negligencealleged – Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173, New Improved Manibanno Ventures Ltd v. FirstBank of Nigeria Plc (2009) 16 NWLR (Pt. 1167) 411. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

KABO AIR LIMITED Appellant(s)

AND

ISMAIL MOHAMMED Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kano State High Court in Suit No. K/270/2010 delivered by Honorable Justice Amina Adamu Aliyu on the 30th of July 2012. The action before the lower Court was commenced by the Respondent, as plaintiff, against the Appellant, as defendant, and his claims were for:
i. The sum of N5 Million as special damages for neglecting and abandoning the Plaintiff at Jeddah, Saudi Arabia during and after the Holy Pilgrimage of January, 2008.
ii. The sum of N5 Million as general damages for the incarceration, beatings, humiliation and abandonment suffered by the Plaintiff during his detention and imprisonment at Jeddah, Saudi Arabia during and after the Holy Pilgrimage of January, 2008 due the Defendant’s neglect and abandonment of the Plaintiff throughout the period.
iii. The sum of N2 Million as punitive damages for the flagrant act of the Defendant in neglecting and abandoning the Plaintiff at Jeddah, Saudi Arabia during and after the Holy Pilgrimage of January, 2008.
iv. 10% of the judgment sum from the date of judgment till the whole sum is liquidated.
v. The cost of filing this action.

The case of the Respondent on the pleadings was that he worked for the Appellant as a Flight Attendant and that on the 6th of January, 2008 he was part of the crew of the Appellant that departed Lagos Nigeria for Jeddah in Saudi Arabia and they conveyed pilgrims from Ilorin and that the flight arrived in Jeddah at about 8am on the 7th of January, 2008. It was his case that he thereafter checked into the Jeddah Trident Hotel which was reserved for the crew members of the Appellant and that later in the evening of the same day, he went in the company of two drivers of the Appellant, Usman and Jameel, to a shopping center to purchase some toiletries and that on the way back, the drivers dropped him at a safe walking distance of the hotel. It was his case that while walking to the hotel, he was accosted by a man speaking in Arabic and that he told the man he did not understand the language but that the man held on to him and prevented him from going to the hotel and that in the commotion that ensued, he was arrested by the police and bundled to the Police Station and forced to sign some papers written in Arabic.

It was the case of the Respondent that after two days at the Police Station, he was allowed to make a telephone call and he called the Cabin Service Manager of the Appellant, Aminu Imam, who came to the Police Station to see him and asked him to remain calm and promised to relay the situation to the members of the Management of the Appellant present in Jeddah at the time. It was his case that he was later questioned by four men in English and that he gave them his name, nationality and told them where he worked and showed them his identity card and they informed him that he was arrested for wearing a ladies trousers with ladies shoes and for having a lipstick in his pocket and soliciting money for sex but they assured him that he would be released once the Management of the Appellant came forward to identify him but that neither Aminu Imam nor any member of the Management of the Appellant returned to the Police Station on that day. It was his case that he was later transferred to another Police Station where he was locked up for nineteen days without seeing anyone from the Appellant coming to look for him and that he managed to get in touch with the Nigerian Embassy in Jeddah and that an official from the Embassy, Mohammed Dawood, came to see him and, after hearing his story, assured him that all would be okay and that all that was necessary was for the Appellant to write to the Nigeria Consul and that the Embassy would do the needful with the authorities.

It was the case of the Respondent that he relayed the information to the Cabin Services Manager, Aminu Imam, and to the representative of the Appellant in Jeddah, Farouk, and that he also got in touch with the Executive Director of Operations of the Appellant, Alhaji Aminu Aliyu, the then General Manager, Operations, Captain Ibrahim Dilli and the Chief Pilot, Captain Machimu Joseph who were all in Jeddah at the time, but that they all did nothing and Mohammed Dawood informed him that there was nothing the Nigerian Embassy could do in the circumstances. It was his case that he was later transferred to the prison and from where he was charged to Court and that he was taken to Court five times and was eventually sentenced to six months imprisonment and four hundred and twenty lashes of the cane and that he eventually spent seven months in prison. It was his case that immediately upon his arrest, the Appellant stopped his salary and that a month later, while he was in detention, he was placed on indefinite suspension and that when he eventually returned to Nigeria, the Appellant asked him to respond to the letter of indefinite suspension and he did so, but nothing happened for many months thereafter.

It was the case of the Respondent that he caused his Solicitors to address a letter dated the 4th of February, 2009 to the Administrative Manager of the Appellant and that the Appellant by a letter dated the 16th of February, 2009 invited him to appear before its Disciplinary Committee on the 19th of February, 2009 and he appeared before the Committee. It was his case that on the 10th of March, 2009, the Appellant terminated his appointment and on the 14th of July, 2009 he was paid the backlog of his salaries and his gratuity but that the Appellant paid him no compensation for the severe disgrace, humiliation, insult and torture both mentally and physically that he suffered in Jeddah, Saudi Arabia by reason of his neglect and abandonment by the Appellant and that he honestly believed that he would have been released by the Saudi Authority if the Appellant had written a letter identifying him as its legitimate staff.

In response, the Appellant asserted that the Respondent was confirmed as its staff on the 13th of October, 1999 on terms and conditions governing the appointment of its cabin crews and that the services of the Respondent were particularly required during air lifting of pilgrims to Saudi Arabia and that the Respondent was part of the crew that airlifted pilgrims on its flight to Jeddah, Saudi Arabia on the 6th of January, 2008. It was its case that it was part of its corporate policy that all crew members were under obligation to seek permission from its pursers before going out, even outside their working hours, and that the Respondent, despite being aware of the rules and convention governing his appointment as a cabin crew staff displayed nonchalant attitude to the consequences of breaching same. It was its case that it detailed its Station Officer in Jeddah to visit the Respondent in detention as a result of the Respondent’s telephone call and that the Station Officer was informed by the Saudi Authority that the Respondent was involved in a serious case of homosexuality and that the report of the Station Officer mystified its management who stood to be sanctioned by the regulatory authority in Saudi Arabia over the conduct of the Respondent, a member of its cabin crew.

It was the case of the Appellant that the Respondent did not deny that he was arrested with lip stick and women attire in his statement to the Saudi Authority and also when confronted by its management and the Appellant denied that its management was contacted by a representative of the Nigerian Embassy or by the Respondent with a directive to write a letter to the Nigerian Consulate and/or to send a staff to the Saudi Arabia authorities to get the Respondent released and that it lacked the capacity to dictate to the Saudi Arabia security agents on how to conduct their investigation and prosecution of the Respondent. It was its case that the letter of suspension pending investigation issued to the Respondent was in line with the conditions of service governing his employment and that the act of the Respondent was such that might bring it into disrepute and destroy its hard earned business reputation in the aviation industry spanning over forty years. It was its case that it invited the Respondent to appear before the Administrative Panel in line with its corporate policy to carry out an in-house investigation to ascertain the position of the Respondent on the allegations made against him in Saudi Arabia and that it also invited other crew members and contemporaries of Respondent who had worked with him.

It was the case of the Appellant that its decision to terminate the appointment of the Respondent was informed by the fact that his services could no longer be of use to it as a cabin crew to airlift pilgrims as his conviction had barred him from further entering Saudi Arabia and that if its decision to determine the employment of the Respondent had been predicated on his conviction and prison sentence and on the outcome of its in-house investigation, it would have dismissed the Respondent in line with its corporate policy governing his employment. It was its case that rather than show appreciation for its magnanimity in terminating his employment and paying his full entitlements, the Respondent caused his Solicitors to write it an insulting letter and that it did not abandon the Respondent in Saudi Arabia, but rather that the Respondent was arrested like other teeming Nigerian in foreign countries who are in the habit of perpetuating criminal offences, prosecuted and sentenced to terms of imprisonment. It was its case that the Respondent disclosed no reasonable cause of action against it and was not entitled to any of the claims and that the conviction and sentence of the Respondent was still subsisting and he was thus not entitled to any damages against it as it was not a party to the complaint that led to his trial and conviction.

The matter proceeded to trial and in the course of which the Respondent testified as the sole plaintiff witness and tendered several exhibits and the Appellant called two witnesses and it also tendered exhibits. At the conclusion of the trial and after the written addresses of Counsel to the parties, the lower Court entered judgment in favour of the Respondent and it found that the Respondent made out a case of negligent abandonment and it awarded the sum of N2 Million as general damages and the sum of N2 Million as punitive damages against the Appellant and 10% court interest until judgment sum is liquidated. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal against it and a notice of appeal dated the 22nd of August, 2012 was filed and it contained four grounds of appeal, inclusive of the omnibus ground.

In compliance with the Rules of this Court, Counsel to the Appellant filed a brief of arguments dated the 27th of November, 2013 to ventilate the grievances of the Appellant with the judgment of the lower Court. In response, Counsel to the Respondent filed a brief of arguments dated the 17th of December, 2013 in asserting the position of the Respondents. Counsel to the parties relied on and adopted their respective briefs of arguments at the hearing of the appeal.

Counsel to the Appellant formulated four issues for determination in his brief of arguments and these issues were:
i. Whether the trial Court rightly held that the Appellant breached the duty of care it owes the Respondent by its refusal to identify with the Respondent or seek Nigeria Consular office assistance in Saudi Arabia for his release.
ii. Whether the trial Court was right in holding that the Respondent has made a case of negligence and abandonment against the Appellant.
iii. Whether from the pleadings, the evidence led in support and documents tendered from the record, the trial Court was right in awarding the N2 Million damages against the Appellant in favour of the Respondent.
iv. Whether the trial Court was right in awarding the sum of N2 Million as punitive damages as it did against the Appellant and in favour of the Respondent.

Counsel to the Respondent adopted the four issues for determination as formulated by Counsel to the Appellant. Reading the four issues for determination formulated by the parties, it is obvious that the first and second issues for determination say the same thing and this Court will treat these two issues together and the third and fourth issues together.

On the first issue for determination, Counsel to the Appellant quoted the definition of negligence as contained in the Black’s Law Dictionary 6th Edition and stated that the lower Court was wrong to have found that the Appellant owed the Respondent a duty a care in the circumstances of this case and to have there from found that the Respondent made out a case of negligence against Appellant. Counsel stated that the duty imposed by law on an employer to his employee is to take reasonable step to ensure the safety of all employees and to observe a reasonable standard of care in doing so and further that the employer is required to provide adequate safety information and equipment to its employees, ensure that the workplace is safe, provide adequate instructions and competent staff to carry out the duties and properly warn the employees of any dangers in the workplace; he referred to the learned authors Winfield and Jolowicz on Tort 11th Edition.

Counsel stated that it was not in dispute in this case that the Respondent was an employee of the Appellant and that the Respondent left the hotel and went to a shopping center for his personal reasons in the evening of the 6th of January, 2008 without the taking permission from the Appellant contrary to corporate policy and neither was it in dispute that the Respondent was arrested by the Saudi Arabian authorities, tried and was convicted for the offence of homosexuality and that the Respondent was not in this action challenging the termination of his employment but predicated his claims on abandonment and negligence. Counsel stated that the common law duty of care owed by an employer to an employee is not absolute and that as such the finding of the lower Court that the Appellant owed the Respondent a duty of care in the circumstances of this case cannot be sustained as the arrest of the Respondent was outside the official working hours and the duty of care relied upon by the lower Court was not known to law; he referred to the cases of I.I.T.A. v. Amrani (1994) 3 NWLR (Pt. 332) 296 and Wema Bank Ltd v. BBC Brown Boveri (1996) 6 NWLR 364.

Counsel stated that there was unchallenged testimony in the evidence of the second defence witness of the efforts made by the Appellant to ensure the where about and safety of the Respondent during the 2008 Hajj operations and that the lower Court made out a case of breach of duty of care for the Respondent and that the many findings made by the lower Court on the issue of duty of care and the breach of same were not supported or supportable by the pleadings of the Respondent and the evidence led by the parties at the trial. Counsel stated that a Court should be wary of making out a case for a party and should confine itself to the case as fought by the parties before it and he referred to the case of Yakubu v. M.W.T. Adamawa State (2006) 10 NWLR (Pt. 989) 513.

Counsel referred to the case of A.M. Co. (Nig) Ltd v. Volkswagen (Nig) Ltd (2010) 7 NWLR (Pt. 1192) 97 and stated that the basic requirement for proof of negligence is that a claimant must plead all the particulars in sufficient details of the negligence alleged and the duty of care owed by a defendant must be established by evidence. Counsel said that the Respondent did not plead the constituent act of negligence of the Appellant that caused the Respondent damage in any paragraph of the statement of claim. Counsel stated that negligence was a question of fact and not law and that reading through the pleadings of the Respondent and his oral evidence before the Court, it was obvious that the Respondent did not lead evidence in support of the facts pleaded by him. Counsel stated further that the onus of proof of the necessary ingredients of negligence was on the Respondent and the Respondent was obliged to discharge the onus on a preponderance of evidence and that the lower Court found in favour of the Respondent because it did not property evaluate the evidence led by the parties and that when put side by side, the evidence led by the Appellant showed that the Appellant did all it could for the Respondent in the circumstances and did not thus abandon the Respondent and was not negligent with respect to the happenings to the Respondent in Saudi Arabia.

In response, Counsel to the Respondent stated that an employer is deemed to have breached its duty of care by failing to do everything that was reasonable in the circumstances to keep the employee safe from harm while the employee is in the course of his duty and Counsel thereafter proceeded to refer to the definition of the word “duty” in Black’s Law Dictionary. Counsel stated that it was trite, both in common law and under Nigerian legislation, that an employer owes his employee a duty of care while the employee is in the course of his duty and that the duty is even more pronounced when the employee is at his place of work and within the hours of work and he referred to the case of Iyere v. Bendel Feed and Flour Mills Ltd (2009) All FWLR (Pt. 453) 1217. Counsel stated that the relevant question in this case is whether the Respondent was at his place of work when the incident of his arrest occurred in Saudi Arabia?

Counsel stated that it was not in contention that the Respondent travelled to Saudi Arabia in the course of his employment and that it was while he was in Saudi Arabia that he was arrested and he said there from that for as long as the Respondent was in Saudi Arabia where he was mandated to be by the terms of his employment and in the performance of his duty to the Appellant, he was in the course of his employment and that the duty of the Appellant to him continued day and night until the Respondent was back to base in Nigeria. Counsel stated that the Employers Compensation Act of 2010 defined a workplace to include “any premises or place where a person performs work and needs to be or is required to be in the course of employment” and that the Respondent travelled to Saudi Arabia on the instructions of the Appellant and he was required by the Appellant for the purpose of performing his duty as part of his employment and that as Saudi Arabia was his workplace at the time of the incident, and that he was, until he returned to Nigeria, at all material times within the course of his employment.

Counsel stated that the alleged corporate policy which required the Respondent to seek permission before going out to buy toiletries was not produced or tendered at the trial and even if such a document existed, the fact that the Respondent went out without such permission did not mean that he ceased to be a staff and in the employment of the Appellant. Counsel stated that from the pleadings of the Appellant and the testimonies of its witnesses, it was obvious that the Appellant took no steps to discharge its duty of care to the Respondent and it did nothing to seek the where about of the Respondent or see to his well being throughout his ordeal and that all the Appellant was interested in was to obtain a note from the Saudi Authority to enable its aircraft depart without the Respondent.

Counsel referred to the cases of Dare v. Fagbamila (2009) All FWLR (Pt. 489) 568 and Anya v. Imo Concorde Hotels Ltd (2003) 2 MJSC 160 on what the necessary ingredients of negligence were and stated that the lower Court was right in holding that all the ingredients were proved in this case. Counsel stated that from the pleadings of the parties, it was obvious that the Appellant was made aware of the plight of the Respondent in the hands of the Saudi Authorities but that rather than stand by him and take steps to secure his release, the Appellant presumed him guilty “like other teeming Nigerian in foreign countries who are in habit of perpetuating criminal offences, prosecuted and sentenced to terms of imprisonment” and it distanced itself from him to “protect its hard earned reputation in the aviation industry spanning over forty years” and that this was notwithstanding the fact that the Respondent had been a staff of the Appellant for eight years before the incident. Counsel stated that the Respondent led cogent evidence in proof of his abandonment by the Appellant and the action and reaction of the Appellant to the plight of the Respondent was not what was expected of a reasonable man who had known and worked with the Respondent for over eight years prior to the incident. Counsel stated that it was beyond question that the Respondent suffered severe and serious damage by reason of his abandonment as there were assurances that the Respondent would have been released and saved from the ordeal if only the Appellant had identified with him and shown some interest in his plight.

Before resolving the two issues for determination argued by the Counsel to the parties, this Court considers it pertinent to make a few comments on the quality of the arguments canvassed on the issues by Counsel to both parties in their respective briefs of arguments. The arguments were unnecessary long, windy, confused, confusing, not focused, repetitive, and they contained too many narratives rather than arguments. One of the invaluable assets that a Counsel must always possess is drafting skills. Briefs of arguments in an appeal contain the story of a party on which the appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the brief must flow; they must be consistent, they must the concise, they must be comprehensive, they must be comprehensible; and they must be accurate. Some of the eternal qualities of a good brief of arguments are brevity and precision. It must not be too short as to leave out the essentials and must not be too long as to become otiose. The goal must be to achieve maximum brevity consistent with accuracy and clarity. A good brief does not allow for verbosity and must be a succinct statement of a party’s argument in the appeal. A well crafted brief makes for joyful reading while a badly crafted one is tedious and laborious to understand and it is like a bad story which leaves an audience disgruntled, disgusted and unhappy. Counsel must understand that a long and windy brief is discouraging to the appellate Court Justices saddled with the determination of an appeal and can only amount disservice to the cause of a litigant. Litigation is not a long essay competition where success is determined by the length of the brief of arguments and it has been said that repetition does not improve an argument – Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503. It is hoped that Counsel will take heed of the advice in future.

In the judgment appealed against the lower Court stated that the cause of action of the Respondent against the Appellant was predicated on negligence and abandonment of the Respondent in Saudi Arabia while on duty as a cabin crew member. The lower Court subsequently found thus:
“The defendant is involved as an Air line in the airlift of pilgrims from Nigeria to Jeddah Saudi Arabia and on the 5th of January, 2008, the plaintiff an employee of the defendant as a cabin crew was on such flight from Lagos to Jeddah, but on the 6th of January, 2008 was arrested and detained … before the plaintiff was scheduled to fly out of Jeddah to Nigeria with the defendant, the defendant did not deem it necessary to look for one of its crew members that could have gone missing until two days after when the plaintiff was allowed to call on phone the cabin services manager, Aminu Imam and informed him of the situation he was in and even after that the defendant never went back to check with the authorities what the actual situation was with the plaintiff as stated in the testimony of the defence witnesses for fear that the defendant’s reputation would be compromised and their agents may lose their licenses.

The defendant had a duty of care to ensure that the plaintiff comes to no harm in the discharge of his duty to the defendant. There is no evidence whatsoever before this court to show that the defendant made any attempt to find out the whereabouts of the plaintiff when the plaintiff failed to report for the out bound flight from Jeddah. Even if the plaintiff went out without seeking permission, it is the duty of the defendant to enquire into the circumstances that made him not to seek permission and then take appropriate measures against him but the defendant could not be bothered. The plaintiff could well be dead for all they care.

The plaintiff claimed to have called most of the management staff of the defendant who were on ground at Jeddah to inform them about the fact that if they could either write a letter to the Saudi authorities or sent a person identifying and/or confirming the plaintiff as the staff of the defendant they would have released him. None of the management staff denied this piece of information, only the defence witnesses who are not from their testimony members of the management of the defendant did, such denial by the witnesses is just hearsay as…
The defendant’s refusal to identify with the plaintiff during his arrest and even seek the assistance of the Consular Office led to the subsequent imprisonment of the plaintiff. There was no evidence that the plaintiff was imprisoned for the offence of homosexuality as the defendant’s witnesses stated that the two other persons arrested together with the plaintiff were released due to lack of evidence. The plaintiff could not have performed the act alone.” (see pages 372 to 373 of the records)

It is apparent from the case of the Respondent on his pleadings before the lower Court that his claims were predicated on negligence by abandonment. It was his case that the Appellant was negligent in abandoning him in Saudi Arabia after his arrest by the Saudi Authorities for wearing a ladies trouser’s with ladies shoes and for having a lipstick in his pocket and soliciting money for sex. Now, negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm – Universal Trust Bank of Nigeria Plc v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 and Diamond Bank Plc v. Partnership Investment Co Ltd (2009) 18 NWLR (Pt. 1172) 67.

Negligence is a tort and it is complete and actionable when three conditions are satisfied, these are (i) the defendant owed a duty of care to the claimant; (ii) the duty of care was breached; and (iii) the claimant suffered damages arising from the breach. A claimant must prove the three conditions by preponderance of evidence or on balance of probabilities to succeed in an action rooted in negligence and once these requirements are satisfied, the defendant in law will be held liable in negligence – Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307, Iyere v. Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt. 1119) 300, GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc (2009) 15 NWLR (Pt. 1164) 344 and Diamond Bank Plc v. Partnership Investment Co Ltd supra.

Negligence is a question of fact and not law and so each case must be decided in the light of the facts pleaded and proved. A claimant in an action in negligence is required to state or give particulars of negligence alleged. It is not sufficient for a claimant to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant – Universal Trust Bank of Nigeria Plc v. Ozoemena supra, Dare v. Fagbamila (2009) 14 NWLR (Pt. 1160) 177, Diamond Bank Plc v. Partnership Investment Co. Ltd supra. A claimant must also lead credible and cogent evidence on the specific acts of negligence alleged – Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173, New Improved Manibanno Ventures Ltd v. First Bank of Nigeria Plc (2009) 16 NWLR (Pt. 1167) 411.

The branch of negligence that comes up for consideration in this matter is employer’s liability. It is not in dispute in this matter that the Respondent was, at all the times material to this suit, an employee of the Appellant. In resolving the first and second issues for determination in this appeal therefore, three questions arise for inquiry by this Court and these are (i) what is the scope of an employer’s duty to his employee?; (ii) did the Appellant owe a duty of care to the Respondent in respect of his ordeal, in the circumstances of this case? and (iii) if the answer to two is in the affirmative, did the Appellant breach its duty of care to the Respondent and in consequence of which the Respondent suffered damage.

On the first question, it is settled law that it is the duty of an employer, acting personally or through his servants or agents, to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends in particular to the safety of the place of work, the plant and machinery and the method and conduct of work – Avon Crown Caps & Containers Nig. Ltd v. Bamigboye (2005) 17 NWLR (Pt. 954) 275; but it is not restricted to these matters. Lord Wright said in Wilsons and Clyde Coal Co. Ltd v. English (1938) AC 57 at 84 that:
“The whole course of authority consistently recognizes a duty which rests on the employer, and which is personal to the employer, to take reasonable care of the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations.”

Lord Oakley said in Paris v. Stepney Borough Council (1951) AC 367 at 384 that:
“The duty of an employer towards his servant is to take reasonable care for his servant’s safety in all the circumstances of the case.”

Further, Parke LJ said in Davie v. New Merton Board Mills Ltd (1958) 1 QB 210 at 237-8 that:
“The duty owed by a master to his servant at common law can be stated in general terms as a duty to take reasonable care for the safety of his servants … if the master delegates … the performance of the duty to another he remains liable for the failure of that other to exercise reasonable care… this principle holds good whether the person employed by the master is a servant, a full-time agent or an independent contactor”.

In Iyere v. Bendel Feed and Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300, Muhammad, JSC put it thus:
“The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk. … The level of this duty is the same as that of the employer’s common law duty of care in the law of negligence.”

It is also settled that the liability of an employer under the duty of care rests upon the law of tort rather than on the law of contract and this is because under the general law of tort, a duty of care is said to arise when two persons are so closely and directly related that the activities of one of them may involve an appreciable risk of injury to the other – Donoghue v. Stevenson (1932) AC 562. Such a close and direct relationship exists between an employer and his employee and thus, under the ordinary principles of tort, the employers owes a duty of care and he is liable for negligence – Baker v. James (1921) 2 KB 674, Mackinnon v. Iberia Shipping Ltd (1954) 2 Lloyds Rep 372 and Davie v. New Merton Board Mills Ltd supra. An employee is, however, at liberty to sue under contract if there are special advantages – Matthews v. Kuwait Bechtel Corporation (1959) 2 All ER 345.
Whether the duty is based on tort or on contract, however, the employer is not under an absolute duty to ensure safety, and negligence must always be proved. The employer’s duty does not extend to every moment of the workman’s life, and it equally cannot be restricted to the period when the workman is actually inside the factory or other place of work, since his duties may take him outside. The employer must still take reasonable care for the workman’s safety when he is working in the premises of other persons – General Cleaning Contractors Ltd v. Christmas (1953) AC 180. The law, therefore, is that the employer’s duty is to provide for the safety of his employee in “the course of his employment”. The phrase ‘course of employment’ is accorded a somewhat broad view under employer’s liability – National Coal Board v. England (1954) 1 All ER 546. In Brydon v. Stewart (1855) 2 Macq 30, Lord Cranworth LC said:
“A master is only responsible while the servant is engaged in his employment: but whatever he does in the course of his employment, according to the fair interpretation of the words – eundo, morando, et redeundo – for all that the master is responsible.”

The Latin phrase eundo, morando, et redeundo means ‘while at the place of employment, and while entering or leaving it’. The employer’s duty thus extends to matters arising while the employee is coming to the place of work or leaving it. Further, the duty is not confined to the actual performance of work, but also applies when the servant is doing something reasonably incidental to work. Thus, in Davidson v. Handley Page Ltd (1945) 1 All ER 235, where the plaintiff had gone to wash a tea-cup when she slipped on an oily dick-board and injured herself, Lord Green MR sated that:
“The obligation of the employer extends to cover all such acts as are normally and reasonably incidental to a man’s day’s work.”

Also, where a workman is doing his employer’s work, he does not cease to be acting in the course of his employment by the fact that he is working in a place where he is forbidden to go, even by statutory orders – Stapley v. Gypsum (1953) AC 663, Laszczyk v. National Coal Board (1954) 3 All ER 205, Rands v. McNeil (1955) 3 All ER 593. Likewise, disobedience to orders does not necessarily mean that the workman has moved out of the course of the employment, even when he arrogates to himself duties which he is not employed to perform and is forbidden by statute to perform – National Coal Board v. England (1954) AC 403. The common feature in these cases is that the employee, however foolishly or misguidedly, was doing the employer’s work. The learned author, John Munkman, in his book “Employers Liability at Common Law” suggested that probably the reason why the court has taken a broader view of the course of employment in this connection is that the fault of the employee can always be taken into account to reduce the damages to be awarded.

On the second question of whether the Appellant, as the employer, owed a duty of care to the Respondent, as employee, in the circumstances of this case, the answer must necessarily depend on the resolution of two related sub-questions – (i) whether the Respondent was in the course of his employment when the incident of his arrest and detention occurred; (ii) whether the Appellant owed the Respondent any legal duty of care in respect of his arrest and detention.

Now, it was not in dispute between the parties that the Respondent was a confirmed staff of the Appellant and one of the members of the Appellant’s cabin crew and that the services of the Respondent were particularly required during air lifting of pilgrims to Saudi Arabia and that the Respondent was part of the crew that air lifted pilgrims on its flight to Jeddah, Saudi Arabia on the 6th of January, 2008. It was not in dispute on the pleadings that on arrival in Saudi Arabia, the Respondent checked into the Jeddah Trident Hotel which was reserved for the crew members of the Appellant and that later in the evening of the same day, the Respondent went in the company of two drivers of the Appellant, Usman and Jameel, to a shopping center to purchase some toiletries and that it was on his way back to the hotel that the incident of his arrest by the Police and his subsequent detention occurred.

The learned authors of Halsbury’s laws of England stated in paragraph 1161 of Volume 2 of the Fourth Edition that:
“‘Duty period’ in relation to any person who flies in an aircraft as a member of its crew means any continuous period throughout which he is to be treated as being on duty.
In consequence, a person who is employed under a contract of service to fly as a member of the crew is deemed to be on duty at any time when in the course of his employment he flies in any aircraft or is otherwise acting in the course of that employment, such as when he is required to be available to report for duty at an aerodrome, or at any other place, being a place at which his employer requires persons similarly employed to be so available, where facilities for rest are not available. …”

The learned authors stated further that where two or more periods which would otherwise be duty periods are separated by an internal of less than ten hours they are deemed to constitute a single continuous duty period. Applying these statements to the circumstances of the Respondent in the instant case, it is clear that he travelled to Saudi Arabia as a crew member in the course of his employment and that, on arrival there, he was required by the Appellant to be available to report for duty in Saudi Arabia, being a place where the Appellant required all other members of the crew to be so available for duty. The Respondent was present in Saudi Arabia at the behest of the Appellant and in the course of his employment. The incident of the arrest and detention of the Respondent thus occurred in the course of his employment. It was immaterial that the Respondent was returning from the purchase of toiletries for his personal use when the incident occurred as the purchase of toiletries was reasonably incidental to his work in the circumstances. It is reasonable to expect a person who had just arrived on a journey from Nigeria and who was expected to fly out again in some time to need toiletries for personal use. Further, and as stated earlier, it was also immaterial, as alleged by the Appellant, that the Respondent did not obtain permission before going to purchase the toiletries.]]

On the second sub-question of whether the Appellant owed the Respondent any legal duty of care in respect of his arrest and detention, it is essential to draw a distinction between a legal duty and a moral obligation. The learned authors of the Black’s Law Dictionary 5th Ed. defined a legal duty as “that which the law requires to be done or forborne to a determinate person or the public at large, correlative to a vested and coexistence right in such person or the public, and the breach of which constitutes negligence.” Moral obligation on the other hand is “a duty which is valid and binding in conscience and according to natural justice, but it is not recognized by the law as adequate to set in motion the machinery of justice; that is one which rests upon ethical considerations alone, and is not imposed or enforced by positive law.” There is a saying in jurisprudence that law and morality are not synonymous. Hence, an act that is morally reprehensible may not be legally punishable – Attorney-General, Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1. The Supreme Court has stated over and over that the Court is for espousing the law and not a place for sentiments and that sentiments command no place in judicial adjudication – Ezeugo v. Ohanyere (1978) 6-7 SC 171, Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514, Mbachu v. Anambra-Imo River Basin Development Authority, Owerri (2006) 14 NWLR (Pt. 1000) 691 and Udosen v. State (2007) 4 NWLR (Pt. 1023) 125. Thus, to constitute negligence the breach of duty of care must be actionable in law and not be a moral liability GFK Investment Nigeria Ltd v. Nigeria Telecommunications Plc (2009) 13 NWLR (Pt. 1164) 344.

The complaints of the Respondent before the lower Court were that the Appellant never bothered to look for him after his arrest and that when after two days he was allowed a telephone call and he called the Appellant, the Appellant merely sent a staff to assure him to remain calm, and that the Appellant did not confirm his identification as one of its members of staff and as someone legitimately employed to enable his release and that the Appellant never showed up thereafter throughout his detention period and/or throughout his trial and did not give him any legal assistance and that the Appellant abandoned him throughout his incarceration. Now while the employer’s duty of care can be said to place a legal duty on the Appellant to look for the Respondent during the two days he was incommunicado and to identity him to the Police authorities as one of its members of staff and as someone legitimately in its employment, it will be stretching it into the realm of morality to suggest that the Appellant’s obligation extended to attending Court for the trial of the Respondent, assisting the Respondent with legal representation and visiting the Respondent in prison during his incarceration. After all, the offence the Respondent was alleged to have committed and for which he was arrested and detained was not done in furtherance of his duties to the Appellant. It is thus only in this limited sense that it can be said that the Appellant owed the Respondent a duty of care, in the circumstances.

This takes us to the third question of whether the Appellant breached its duty of care to the Respondent and, if so, did the Respondent suffer any consequent damage thereby. The word “care” means serious attention or heed. Under the law of negligence or of obligation, it means the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible dangers, mistakes and pitfalls and to ways of minimizing those risks – Nigerian Ports Plc v. Beecham Pharmaceutical PTE Ltd (2013) 3 NWLR (Pt. 1333) 454.

The standard of an employer’s duty towards his employee under common law is to see that reasonable care is taken – Hanseatic International Ltd v. Usang (2002) 13 NWLR (Pt. 784) 376. Reasonable care is that degree of care which a person of ordinary prudence would exercise in the same or similar circumstances.

The case of the Respondent before the lower Court was that upon his arrest no one from the Appellant company came looking for him and that after two days at the Police Station, he was allowed to make a telephone call and he called the Cabin Service Manager of the Appellant, Aminu Imam, who came to the Police Station to see him and asked him to remain calm and promised to relay the situation to the members of the Management of the Appellant present in Jeddah at the time. It was his case that he was later questioned by four men in English and that he gave them his name, nationality and told them where he worked and showed them his identity card and they informed him that he was arrested for wearing a ladies trousers with ladies shoes and for having a lipstick in his pocket and soliciting money for sex but they assured him that he would be released once the Management of the Appellant came forward to identity him but that neither Aminu Imam nor any member of the Management of the Appellant returned to the Police Station on that day.

It was the case of the Respondent that he was later transferred to another Police Station where he was locked up for nineteen days without seeing anyone from the Appellant coming to look for him and that he managed to get in touch with the Nigerian Embassy in Jeddah and that an official from the Embassy, Mohammed Dawood, came to see him and, after hearing his story, assured him that all would be okay and that all that was necessary was for the Appellant to write to the Nigeria Consul and that the Embassy would do the needful with the authorities. It was his case that he relayed the information to the Cabin Services Manager, Aminu Imam, and to the representative of the Appellant in Jeddah, Farouk, and that he also got in touch with the Executive Director of Operations of the Appellant, Alhaji Aminu Aliyu, the then General Manager, Operations, Captain Ibrahim Dilli and the Chief Pilot, Captain Machimu Joseph who were all in Jeddah at the time, but that they all did nothing and Mohammed Dawood informed him that there was nothing the Nigerian Embassy could do in the circumstances. It was his case that he was later transferred to the prison and from where he was charged to Court and that he was eventually sentenced to six months imprisonment and four hundred and twenty lashes of the cane and that he eventually spent seven months in prison. It was his case that he honestly believed that he would have been released by the Saudi Authority if the Appellant had written a letter identifying him as its legitimate staff.

The case of the Respondent in response was that upon the receipt of the telephone call of the Respondent, it detailed its Station Officer in Jeddah to visit the Respondent in detention and that the Station Officer was informed by the Saudi Authority that the Respondent was involved in a serious case of homosexuality and that the report of the Station Officer mystified its management who stood to be sanctioned by the regulatory authority in Saudi Arabia over the conduct of the Respondent, a member of its cabin crew. It denied that its management was contacted by a representative of the Nigerian Embassy or by the Respondent with a directive to write a letter to the Nigerian Consulate and/or to send a staff to the Saudi Arabian authorities to get the Respondent released and that it lacked the capacity to dictate to the Saudi Arabian security agents on how to conduct their investigation and prosecution of the Respondent. It was its case that the Nigerian Consulate in Saudi Arabia could have treated the case of the Respondent if it was supportable in view of its diplomatic status without its intervention.

The record of appeal shows that the Respondent as the sole plaintiff witness testified in proof of his case and he gave evidence on the assertions in support of his case and his testimony on them was not discredited or disparaged under cross-examination and he reiterated that he was convicted because the Appellant refused to identify him to the Police authorities as one of its members of staff and as someone legitimately in its employment. The Appellant called two defence witnesses, one Muhammad Ahmad as first defence witness and one Fatouk Haroun as the second defence witness and they also testified in proof of the assertions of the Appellant. Under cross-examination, however, the first defence witness stated that he was in Nigeria at the material times to this matter and that did not participate in any of the events and that his testimony was hearsay but he confirmed that the Appellant did not provide the Respondent any assistance during his arrest and subsequent trial. Also under cross-examination, the second defence witness stated that he was detailed to go to the Investigation Department of Saudi Arabian authorities along with one El-Tayyeb and that on getting there, he stayed outside and that it said El-Tayyeb that went in to discuss with the officers and that El-Tayyeb informed him thereafter of the discussion. The second defence witness also stated that all the information he knew about the complaint against and the prosecution of the Respondent by the Saudi authorities was told to him by El-Tayyeb. The testimonies of the two witnesses for the Appellant on the material facts of this case thus constituted hearsay evidence and are useless and of no probative value.

Further, though the witness stated in his deposition on oath that the Respondent did not get in touch with the management of the Appellant on the advice given by official of the Nigerian Consulate, he did not say that the Respondent did not get in touch with the specific individuals mentioned by the Respondent, including himself. The witness admitted that the Management of the Appellant did not on its own bring the arrest and detention of the Respondent to the attention of the Nigerian Consulate in Saudi Arabia.

It is only common sense that an employer will take steps to look for an employee who had gone missing for two days in the circumstances of this case and where an employee is arrested, as the Respondent was in this matter, an employer should take some steps to secure his release, if possible, and to give him some comfort. The witnesses of the Appellant led no credible evidence to show that the Appellant took any step to look for the Appellant and/or to secure his release upon learning that he was arrested by the Police. On this state of the evidence, it is obvious that the Respondent made out a better case than the Appellant in proof of the breach of duty of care and this Court is thus unable to fault the finding of the lower Court that the Appellant breached its duty of care to the Respondent in the circumstances. The Appellant obviously did not exhibit that degree of care that a person of ordinary prudence would exercise in the same or similar circumstances. It completely abdicated its duty to the Respondent.

On whether the breach of duty caused damage to the Respondent, Counsel to the Appellant argued copiously that it did not as it was not the Appellant that instigated the arrest of the Respondent and that the trauma suffered by the Respondent was due to his arrest, prosecution and imprisonment for seven months sequel to a trial in Court in Saudi Arabia, and not to acts of the Respondent. Counsel stated that the damage envisaged by the breach of duty of care in the law of negligence must flow directly from the breach and not be shrouded in the air. With respect to Counsel to the Appellant, he did not fully state the position of the law. The law states that an employee alleging negligence on the part of his employer need not strictly prove that the breach of duty of care was directly responsible for his injuries and that it is sufficient if he shows that it materially contributed to his injuries. This point was succinctly made by the English House of Lords in Bonnington Castings Ltd v. Wardlaw (1956) 1 All ER 615, Nicholson v. Atlas Steel Foundry & Engineering Co. Ltd (1957) 1 All ER 776, and McGhee v. National Coal Board (1972) 3 All ER 1008. In the last case, the House of Lords held that a defendant was liable to the plaintiff if the defendant’s breach of duty had caused, or materially contributed to the injury suffered by the plaintiff notwithstanding that there were other factors, for which the defendant was not responsible, which had contributed to the injury. Lord Simon of Glaisdale put the point thus at page 1014:
“… where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively.”

The case of the Respondent before the lower Court in the instant case was that he was assured by the four English speaking Police Officers that first interrogated him that he would be released once the Management of the Appellant came forward to identify him but that no member of the Management of the Appellant returned to the Police Station thereafter. It was his case that he was also later assured by an official from the Nigerian Consulate, Mohammed Dawood, who came to see him and, after hearing his story, that all would be okay and that all that was necessary was for the Appellant to write to the Nigeria Consul and that the Embassy would do the needful with the authorities. It was his case that he relayed the information to the Cabin Services Manager, Aminu Imam, and to the representative of the Appellant in Jeddah, Farouk, and that he also got in touch with the Executive Director of Operations of the Appellant, Alhaji Aminu Aliyu, the then General Manager, Operations, Captain Ibrahim Dilli and the Chief Pilot, Captain Machimu Joseph who were all in Jeddah at the time, but that they all did nothing and Mohammed Dawood informed him that there was nothing the Nigerian Embassy could in the circumstances. It was his case that he honestly believed that he would have been released by the Saudi Authority if the Appellant had written a letter identifying him as its legitimate staff.

The Respondent led unchallenged evidence in support of these assertions. The Appellant led no credible evidence to contradict the case of the Respondent. The second defence witness and the other persons specifically mentioned by the Respondent in his pleadings and in his evidence did not lead evidence to debunk the assertions therein. The second defence witness did not say that the Respondent did not contact him to relay the information from the official of the Nigerian Consulate and all that the second defence witness stated was that the Respondent did not contact the management of the Appellant on the issue. The second defence witness gave hearsay evidence of the trial and conviction of the Respondent and the Appellant did not tender either the report of the investigations of the Saudi Police or the proceedings before the Saudi Court or the judgment of the Court to show that the Respondent would have been convicted any way and/or that its breach of duty did not materially or substantially contribute to the imprisonment of the Respondent. The lower Court was thus on firm ground when it found that it was the breach of duty by the Appellant that led to imprisonment of the Respondent.

The finding of the lower Court that the Respondent made out a case in negligence against the Appellant is unassailable and the first and second issues for determination in this appeal are resolved in favour of the Respondent.

This takes us to the third issue formulated for determination in this appeal, whether the trial Court was right in awarding N2 Million damages against the Appellant in favour of the Respondent. Counsel to the Appellant stated that it was wrong for the lower Court to have made the award of damages because the Appellant did not commit any wrong to warrant the award of damages and that, even if, any wrong was shown to have been committed, the injury suffered by the Respondent was not a reasonably foreseeable consequence of the conduct of the Appellant and he referred to the cases of I.I.T.A. v. Amrani (1994) 3 NWLR (Pt. 332) 296 and Unipetrol (Nig) Plc v. Adereje (WA) Ltd (2005) 14 NWLR 563.

The finding made by this Court that the Respondent made out a case in negligence against the Appellant, on the first and second issues for determination in this appeal, takes the “wind out of sail” of the arguments of the Counsel to the Appellant on this issue. This is because the necessary consequence of a finding of negligence is liability in damages – Iyere v. Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt. 1119) 300. The Appellant was thus liable to the Respondent in damages. The Appellant did not complain about the amount of N2 Million awarded as damages. The complaint was on whether the lower Court should have awarded any damages at all. It is settled law that an appellate Court does not make a habit of interfering with an award of damages made by a trial court and in order to justify such interference, the appellate Court must be convinced that (i) the trial Court acted upon wrong principles of law; or (b) the amount awarded was so extremely high or very small to make it, in the view of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled – Abu v. Abulime (2007) All FWLR (Pt. 396) 683, Usang v. Hanseatic International Ltd (2009) 11 NWLR (Pt. 1153) 522, Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598. There being no complaint against the amount awarded, there is no basis for this Court to tinker with the sum of damages awarded by the lower Court. This issue is resolved against the Appellant.

The complaint of the Appellant in the fourth issue for determination is whether the trial Court was right in awarding the sum of N2 Million as punitive damages against the Appellant. Counsel referred to the definition of punitive damages in the book, Winfield and Jolowicz on Tort 11th Ed, as “the class of damages intended not to compensate the plaintiff but rather to punish the defendant’s conduct and to deter him from similar behavior in the future” and he also referred to the cases of Drane v. Evangelou (1978) 1 NWLR 455 and Allied Bank (Nig) Ltd v. Akubueze (1997) 6 NWLR (Pt. 509) 374 on circumstances when punitive damages could be awarded. Counsel submitted that there was no conduct on the part of the Appellant which could have given rise to the award of the punitive damages and also that the award of punitive damages after the grant of general damages offended the rule of double compensation and he referred to the case of Tsokwa Motors (Nig) Ltd v. UBA Plc (2008) 2 NWLR (Pt. 1074) 347. Counsel stated further that the case of the Respondent was rooted in his contract of employment and that punitive damages cannot be awarded in a purely contractual matter and he referred to the case of Allied Bank (Nig) Ltd v. Akubueze supra. Counsel urged this Court to interfere with this award of damages and set it aside.

In response, Counsel to the Respondent stated that the Appellant was brash in its treatment of the Respondent as it was more concerned with protecting its forty year’s reputation and its relationship with the Saudi Authority and that the local agents of the Appellant in Saudi Arabia did nothing for the Respondent for fear of having his licence revoked and that as such the reason for the Appellant’s refusal to carry out its duty of care to the Respondent was pecuniary. Counsel stated that the action of the Appellant was reckless and reprehensible and he urged this Court to uphold the award of punitive damages to prevent a reoccurrence of this kind of behavior of the part of employers who regard and treat their employees as criminals. Counsel submitted that general damages and punitive damages were separate heads of claim and that a trial Court was empowered to award both in deserving cases and that the grant of one should not deter the grant of the other. Counsel stated that the case of the Respondent before the lower Court was located in tort and not in contract as it complained about the breach of duty of care.

Punitive damages which are also referred to as exemplary damages are intended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in the future. They are awarded whenever the conduct of the defendant is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law – University of Calabar v. Orji (2012) 3 NWLR (Pt. 1288) 418 and Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207. In the instance case, the evidence showed that the Respondent had been a staff of the Appellant for about nine years as a cabin crew member as at the time of the occurrence of the incident leading up to this case and he had partaken in airlifting pilgrims on Holy Pilgrimage several times and throughout this period he was never issued any query or warned by the Management of the Appellant for any untoward behavior and at no time was any report made of his having exhibited homosexual tendencies. The evidence showed that the Respondent had been a dedicated staff of the Appellant without any blemish.

The case made out by the Appellant itself, both in its pleadings and in the testimonies of its two witnesses, was that despite this unblemished nine years record of the Respondent, when the Respondent was arrested by the Saudi Arabian authorities and was incommunicado for two days, it made no attempt to locate the Respondent and that when eventually the Respondent made contacted as to his whereabouts and it learnt from Saudi Authorities that the Respondent was arrested and was being investigated for exhibiting homosexual behaviors, its Management was mystified as it stood to be sanctioned by the regulatory authority in Saudi Arabia for the behavior of the Respondent. It is obvious from the case of the Appellant that its Management, at that point, took a decision to immediately distance the Appellant from the Respondent and that all it did was to obtain a letter from the Saudi Police, Exhibit D4 at the trial, stating the reasons for the arrest of the Respondent to enable it carry on its business and it mattered not to the Appellant that, as at this time, the reasons for the arrest of the Respondent were mere allegations that even the Saudi Police stated in the said letter that it was still investigating. The reasons for this stance, as stated by the Appellant itself in its pleadings and evidence, was to protect its hard earned reputation in the aviation industry spanning over forty years and for which the Federal Government of Nigeria upgraded it in 1982 to the status of full-fledge National Airline as well as operator of International Air Service particularly for airlift of pilgrims to Saudi Arabia during Hajj operation from being brought into disrepute and destroyed. The Appellant stated that it believed that the Respondent was arrested like other teeming Nigerians in foreign countries who were in the habit of perpetuating criminal conduct and who were prosecuted and sentenced to terms of imprisonment.

The Appellant thus left the Respondent, a dedicated staff of nine years with an unblemished record, to his fate in a country where he did not understand the language or its legal system without any assistance whatsoever, not even making contact with the Nigeria Consulate on the matter, and without any interest in ascertaining the truth of the allegations made against him or trying to secure his release on bail. This was notwithstanding that the Respondent travelled to the Saudi Arabia at the behest of the Appellant and for the purpose of the business of the Appellant. Rather what the Appellant did was to place the Respondent on indefinite suspension by a letter dated the 11th of February, 2008, Exhibit D1 at the trial. The actions of the Appellant were selfish, self-centered, callous and downright wicked. The Respondent predicated his cause of action in this matter in tort and not in contract and the actions of the Appellant amount to a conduct deserving of punishment by the award of punitive damages. The Appellant needs to learn to treat its employees with more respect and to give its long dedicated staff the benefit of doubt when allegations are made against them by anyone and to show empathy with their travails, and not be focused on only its business, profits and its reputation. After all, it is its dedicated staff that built the business, profits and reputation in the first place. This need for employers of labour to show concern for their workers was touched upon by my noble and learned Lord, Amina Augie, JCA in Udoh v. Okitipupa Oil Palm Plc (2005) 9 NWLR (Pt. 929) 58 at 83 F-H thus:
“The evidence before the court showed clearly that the appellant was in the service of the 1st respondent, when the operation was scheduled to take place exhibits J & K were written on the 26th of August, 1999, a few days before the appellant was due to leave the services of the 1st respondent – 1st September, 1999. At that time the 1st respondent was not concerned about whether the appellant was in its employment or not, and whether he was entitled to free medical treatment or not; rather its concern was the amount of money to pay for the operation. By the terms of his contract of employment, the appellant was entitled to free medical treatment, there is no ceiling placed on how much was to be paid, and in my view, it does not speak well of the management of the 1st respondent, since a company is run by human beings, that they were more concerned with how much to pay for an operation, than the health of their employee who had spent 29 (twenty nine) years of his life in their service.”

The lower court was on very firm ground when it awarded punitive damages against the Appellant. The Appellant made no complaint on the sum of N2 Million so awarded and this Court cannot thus touch the sum. The fourth issue for determination is resolved in favour of the Respondent.

This Court must say that contrary to the assertion of the Counsel to the Appellant in paragraph 7.0 of his brief of arguments that the judgment of the lower Court “demonstrated that the Honourable trial Court did not appreciate the facts of the case before it as the judgment with due respect to the trial court was drenched in confusion”, it is obvious that it was the counsel who lacked any understanding and who did not appreciate the essence of the case of the Respondent before the lower Court and it was his thought process and arguments that were drenched in confusion. It behoves a Counsel, before running off his mouth to castigate the judgment of a Court, to take some time out to educate himself on the subject matter of the action before that Court and display some learning on the subject in his arguments. It is obvious that the Counsel to the Appellant did neither in the instance case.
In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment of the Kano State High Court in Suit No. K/270/2010 delivered by Honorable Justice Amina Adamu Aliyu on the 30th of July, 2012 is hereby affirmed. The Respondent is entitled to the cost of this action assessed at N100,000.00. These shall be the orders of this Court.

ABDU ABOKI, J.C.A.: The lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, was made available to me and I agree with the conclusion reached that there is no merit in this appeal. I too affirmed the judgment of the Kano State High Court in Suit No. K/270/2010 delivered by Hon. Justice Amina Adamu Aliyu on the 30th July 2012.
I abide by the consequential order as to costs contained in the lead judgment.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I read in advance the draft copy of the judgment just delivered by my learned brother, Abiru, JCA, and I am in agreement that there is no substance in this appeal and as such it bound to fail. The same is hereby dismissed by me with the costs awarded in the leading judgment.

Appearances

Abdulsalaam A. MisbauFor Appellant

AND

Salisu AbubakarFor Respondent