MOBIL PRODUCING NIG. UNLT & ANOR. v. UDO TOM UDO [PC NO. 542]
(2008)LCN/2921(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of May, 2008
CA/C/11/2006
RATIO
WORDS AND PHRASES: GENERAL DAMAGES
General damages are the kind of damage which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstance of a case. See Omonuwa vs. Wahabi (1976) 4 SC 37 and Yalaju Amaye vs. A. R. E. C. Ltd. (1990) 4 NWLR (Pt. 145) 422 at 450 – 451. It may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded because damages follow breach of contract. See O. S. G. v. Damami Ltd (supra); A.B. Ltd. vs. Asaolu (supra) and Jambo vs. Wickliff (supra). It arises from inference of law and need not be proved by evidence. It is sufficient if it is generally averred.
Now, the measure of general damages in terms of money is a matter for the Judge. It is always necessary for the Judge to make his own assessment of the quantum of such damage. General damages unlike special damages are generally incapable of substantially exact calculation.
They are presumed by the law to be the direct and probable consequences of the act complained of. See Odulaja vs. Haddad (1973) 11 SC 351.Per JEAN OMOKRI, J.C.A.
WHETHER A PARTY RELYING ON THE PROVISION OF STATUTE AS A DEFENCE MUST PLEAD THE FACTS IN RELATION THERETO
A Supernumerary Police Officer is a creation of law, under the Police Act, Cap 359, L. F. N. 1990, therefore, only full compliance with the relevant provisions of the Police Act would make the respondent a Supernumerary Police Officer. Facts must be applied to law. It is wrong to work backwards from law to facts. It is the establishment of the facts that comes first before the application of the law. It is trite law that a party who relies on the provisions of a statute as a defence should plead facts relied upon for bringing a particular transaction within the ambit of that statute. See I. M. N. L. Vs. Pegofor Industries Ltd. (2005) All FWLR (Pt. 270) at 2018 at 2028.Per JEAN OMOKRI, J.C.A.
WHETHER AN EMPLOYEE MAY BE AWARDED GENERAL DAMAGES AS IN A CLAIM FOR TORT
The law is, whereas the employee can recover his remuneration within the period of suspension, he cannot claim in addition to the sum due, general damages. It is a known principle of law that an employee is, however, not entitled to general damages as in a claim for tort. He is only entitled to what he would have earned throughout the period of suspension which was never authorized by the conditions of his employment. Even if the trial Court had believed that the Respondent was hastily removed from office, the only sum that would have accrued to him was what he would have earned over the period required to lawfully remove him from office. In the instant case, there was no basis whatsoever for the award of the general damages. The learned trial Judge with due respect, obviously applied a wrong principle of law in this direction that an employee who had recovered his remuneration within the period of suspension under a contract of employment is at the same time entitled to an award of general damages. The law is that where an employee is not paid for a period of employment in respect of which he is entitled by the contract to be paid a fixed amount, his claim is not one for damages but a debt, namely, payment for an agreed sum, since he is entitled to be paid according to the agreed rate. The employee cannot claim in addition to the sum due, damages for delay in paying the salary.
Also, a Plaintiff who has been adequately compensated under one head of damages cannot claim damages under another head in respect of the same claim.
It is trite law that the award of general damages is improper when the quantum of loss is ascertainable as it will amount to double damages or double compensation.
The law, therefore, will not allow a litigant who made a claim for specific performance or specific losses suffered by him to add another figure under the head of general damages.
It is absolutely wrong in law for the trial Court after awarding the sum of N4,386, 000.00 being the Respondent’s salaries and allowances from the date of his suspension till the date of judgment to turn round and award general damages for the 1st Appellant’s haste in removing the Respondent from his employment. The reason given for such an unguarded award was most unfounded since the trial Court found out that the Respondent’s employment was not terminated by Exhibit “G”, the letter of suspension. The award of the sum of N2 million as general damages in the present case is baseless.
This is because if this award of general damages is sustained, it, definitely, would amount to double compensation which the Court frowns at. The principles governing the grant of general damages in torts cannot be interchangeable with the principal governing the grant of damages in actions based on contracts. Generally, this principle of assessment of damages for breach of contract, which is applied by the Courts is restitution in integrum. See the cases of Adekunle v. Rock view Hotel (2004) 1 NWLR Part 853 p. 161, Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 p. 25, Ezeani vs. Ejidike (1964) 1 ALL NLR 402, Oluigbo vs. Umeh (2004) 6 NWLR Part 870 p. 621. Per JEAN OMOKRI, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
1. MOBIL PRODUCING NIG. UNLT
2. CHARLES OCHONOGOR Appellant(s)
AND
UDO TOM UDO [PC NO. 542] Respondent(s)
JEAN OMOKRI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Okon, J. of the High Court of Akwa Ibom State sitting at Eket in Suit No. HEK/97/2001 delivered on 9/8/05.
The brief facts of the case are that the respondent, a retired soldier and a professional driver, who was the plaintiff at the lower court applied for employment as a driver in the 1st appellant’s company, which was the 1st defendant at the court below. The 1st appellant interviewed and employed the respondent in September, 1991 as a driver. Thereafter he was sent for training in Police Training School, Calabar. After the training the respondent was deployed to the Security section as a driver. He was assigned a Toyota Jeep with Registration number M 220 PNG. On the 6/10/2000, the respondent was involved in an accident with the said vehicle. The respondent alleged that he was beating up by some Mobile Police men working for the 1st appellant. The respondent was subsequently given an orderly room trial and he was found guilty. Sequel to that finding the respondent was issued with a Warning letter dated 26/10/2000 by the 1st appellant. On the 14/12/2000, the respondent was issued another letter dated 1/11/2000, captioned “Suspension from Duty without Pay”.
Aggrieved by the sudden change of fortune the respondent instituted proceedings against the appellant before court below claiming in his paragraph 21 of the further amended statement of claim as follows:
“WHEREOF PLAINTIFF CLAIMS against 1st and 2nd defendants jointly and severally:
(i)(a) Payment of N50 Million General Damages for assault, wrongful detention, wrongful suspension from duty, false accusation of a crimmous charge and acting therein; wrongfully depriving plaintiff of his remuneration and for various losses (emotional, health, financial and physical suffered). Payment of Spy POLICE SALARY of N12, 000.00 monthly from November, 2000 to date of judgment.
(i)(b) Payment of Spy ALLOWANCE calculated at the rate of N52, 000.00 monthly from January, 2001 to date of Judgment.
(i)(c) Payment of SPY ANNUAL ALLOWANCES comprising Leave Allowance of N100,000.00, Christmas Bonus of N26, 000.00, from 2001 to date of Judgment.
(i)(d) Payment of all terminal entitlements calculated at 1st defendant Prevailing rate (i.e. at least N3 Million for every year worked) i.e. from 1991 to date of Judgment. This is in lieu of reinstatement by 1st defendant at final determination of this suit.
(i)(e) Cost of action.
(ii)(a) “SUSPENSION FROM DUTY WITHOUT PAY” – letter dated November 1, 2000 – to plaintiff and –
(ii) A Declaration that 151 defendant’s –
(ii)(b) “WARNING NOTICE” Letter dated 26th October, 2000 – to plaintiff both pleaded above are unjust, unconstitutional, illegal, null and void.”
At the conclusion of the trial, the court below entered judgment in favour of the respondent and awarded him the sum of N6,402,000.00 as damages.
Dissatisfied with the Judgment and orders of the court below the appellants appealed to this court on 3 grounds in the amended notice of appeal filed on 3/4/06. From the 3 grounds of appeal, the appellants distilled three issues for determination in their appellants’ brief dated on 25/4/06 and deemed filed on 18/5/06. The three issues for determination are as follows:
“(a) Whether the respondent was an employee of the 1st appellant.
(b) Whether the disengagement of the respondent from the service of the 1st appellant was proper.
(c) Whether the award and/or level of damages awarded by the learned trial Judge to the respondent had any basis in law and did not violate all known and settled principles on the award of damages for breach of contract.”
The respondent also cross-appealed vide a notice of cross-appeal filed on 8/11/05 on 4 grounds. The respondent in his Respondent/Cross Appellant’s brief dated 29/11/06 and filed on 30/11/06 raised 3 issues for determination in respect of the appellants’ appeal and 2 issues in respect of the 4 grounds of the cross-appeal. The issues are:
“(1) Whether the respondent was a Supernumerary Police Officer per the Police Act or an employee of the 1st appellant?
(2) Whether the employment of the respondent was properly determined by the 1st appellant?
(3) Whether respondent is entitled to his claims as awarded by the trial court or any claim at all?”
The respondent also formulated two issues from the 4 grounds in the cross-appeal. They are:
“(4) Whether respondent is entitled to be paid his Terminal/Separation Benefits at his claimed rate or at all?
(5) Whether respondent is entitled to general damages for assault, wrongful detention, false accusation of a crimmous charge and or, emotional losses?”
Upon being served with the respondent/cross-appellant’s brief, the appellants filed an appellants’ reply brief/response to cross-appeal which is undated but filed on 28/3/07. The appellants replied to the arguments in the respondent’s brief and in respect of the cross-appeal the appellants adopted the two issues for determination formulated by the respondent. The respondent/cross-appellant also filed a reply brief in response to the Appellants’ Reply brief/response to Cross-Appeal dated 10/10/07 and filed on 15/10/07.
On Issue NO.1, the appellants’ counsel, Mr. Seye Opasanya, submitted that the burden of proving that the respondent was at all material times in the appellants’ employment rested upon him. He contended that for the respondent to have a cause-of action it was-absolutely essential to plead in his statement of claim that there was a contract employment between him and the 1st appellant and furthermore, he must spell out the terms of the contract. Counsel submitted that where an action is founded on contract as in the present case, the respondent must give sufficient particulars in his pleadings to enable the contract to be identified and if this is not done then the statement of claim has not disclosed a cause of action. He referred to section 137 of the Evidence Act; and relied on Hauma vs. Akpekme (2000) 7 SC (Pt. 11) 24; Morofunola vs. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 at 519; Bruce vs. Odhams Press Ltd. (1536) 1 All ER 287 at 294; S. D. P. C. (Nig.) Ltd. & 5 Ors. vs. M. D. Onosanya (1976) 1 All NLR (Pt. 1) 425 and Erarami vs. ACB Ltd. (1978) 4 SC 99.
The appellants also contended that the respondent adduced scanty and poor quality evidence at the court below and that the respondent tendered Exhibits ‘B’ and’ C’ which are nothing more than “Passes” which entitled the respondent access to certain parts of the 1st appellant’s Qua Iboe Terminal. The appellants argued that they adduced credible evidence to show that the respondent was a Supernumerary Police Officer. He referred to the evidence of DW2 and Exhibits ‘Q’, ‘Q1’, ‘V’, and ‘V1’ and concluded that the trial Judge was wrong to prefer mere oral evidence adduced by the respondent to the various documentary evidence tendered by the appellants.
Lastly, counsel submitted that the question of the status of Spy Police is a strict question of law which cannot be conceded by any action or in actions of the 1st appellant. He relied on Onu vs. Agu (1996) 5 NWLR (Pt. 451) 670 and Bello vs. Eweka (1981) 1 SC 101.
On Issue NO.2, Mr. Opasanya submitted that the employer has the right to bring the appointment of his employee to an end for any reason or no reason at all. Relying on Idoniboye-Oba vs. N. N. P. C. (2003) 2 NWLR (Pt. 805) 589 SC and Mobil vs. Assan (2003) 6 NWLR (Pt. 816) 308, counsel submitted that if at all there was any master-servant relationship between the 1st appellant and the respondent, such was terminable by the 1st appellant giving to the respondent a month’s notice or allowances payable to the respondent for that period in lieu of notice. He pointed out that the 1st appellant complied with the provisions of section 18(5) of the Police Act when it sent a letter dated 01/11/2000, i.e. Exhibit ‘T’ in which the 1st appellant informed the Commissioner of Police, Akwa Ibom State, that it no longer required the services of the respondent,. The Commissioner of Police replied through Exhibit ‘U’ dated 22/07/03 where he consented to the withdrawal of the respondent from the services of the 1st appellant. He concluded that by the provisions of section 18(5) of the Police Act, upon expiration of Exhibit ‘T’, the services of the officer shall be withdrawn. That being the case the services of the respondent came to an end automatically by the force of the statutory provision from no later than 02/02/2004.
On issue No. 3, Mr. Opasanya submitted-that-the award of N4,386,000.00 must fail because, the respondent was not an employee of the 1st appellant.
He relied on the provisions of section 22(3) of the Police Act, Cap 359, LFN 1990, which according to him renders the respondent ineligible for any pension, gratuity or annual allowance. Alternatively, counsel relied on Idoniboye-Oba vs. N. N. P. C. (supra) and submitted that in case of breach of contract of employment, the employee’s remedy lies in damages calculated on the basis of what he would have earned for the period of notice agreed for ending of the employment. Counsel argued that applying the above principle, the highest amount the respondent should have been awarded is the sum of N12,000.00 being the undisputed amount of monthly salary paid to the respondent by the Nigeria Police.
He contended that the trial Judge gave judgment against the 2nd appellant who was not the employer of the 1st appellant and urged the court to upturn all monetary awards made against the 2nd appellant.
Lastly on Issue NO.3, it was contended that the respondent who claimed special damages has the burden to strictly prove his claim but the respondent failed to meet the required proof for the award of special damages. He relied on S. P. D. C. vs. Tiebi (1996) 4 NWLR (Pt. 445) 557.
The respondent’s counsel, U. D. A. Imeh, Esq. pointed out in Issue No. 1, that the appellants had raised the issue of the respondent’s statement of claim not disclosing a cause of action at the lower court both by Notice of Preliminary objection and by motion. The issue was decided in favour of the respondent at pages 8, 9, 161 – 188 of the record of proceedings. He pointed out also that the appellants did not appeal against the ruling of the court below, therefore they cannot resurrect it as they are estopped by law. He then urged the court to strike out paragraphs 13 and 14 of the appellant brief. He referred to Okotie-Eboh vs. Manager (2005) 1711 FWLR (Pt. 241) 277 at 310 and Adebayo vs. Shogo (2005) All FWLR (Pt. 253) 739 at 755.
Counsel pointed out that the trial court stated the respondent’s claim, recapitulated the evidence of each party, summarized them stated the issues for resolution examined and resolved them and made its own findings at pages 262 – 296 of the record. He then submitted that no more is required of the court below. He relied on A. C. Ltd. vs. N. N. P. C. (2005) All FWLR (Pt. 270) 1945 at 1977 and GEKPE VS. ALOKWE (2001) FWLR (Pt. 47) 1013 at 1024 on this point.
Mr. Imeh also contended that cases are not won by number of witnesses or documents but by quality or probative value of the evidence adduced by a party. He pointed out that in view of the unequivocal denial of the respondent that he was a Supernumerary Police Officer but an employee of the 1st appellant, the onus was on the appellants to prove their case that the respondent was a Supernumerary Police Officer, which in this case, includes application to the Inspector-General of Police, approval by the President, direction by Inspector-General of Police and conformity with Police Regulations. He relied on I. M. N. L. vs. Pegofor Industries Ltd. (2005) All FWLR (Pt. 270) 2018 at 2028. The appellants failed to lead evidence to satisfy the sections of the Police Act namely; Section 18(1), (2), (4)(a) & (b) and 18(7) of the Police Act and Regulations 72,76, 77, 82, 85, 87, 89, 90, 94, 95, 96, 97, 98, 99, 105 and 106 of the Police Regulation. Counsel argued that the respondent pleaded facts and led evidence to prove that there was an employer and employee relationship between himself and the 1st appellant and that employment can be imputed in the circumstance.
On Issue NO.2, learned counsel submitted that though the appellants deny being responsible for respondent’s salaries in paragraph 42 of the brief,that is contrary to their Exhibit M, N, O, Q, Rand the evidence adduced at pages 230 – 234.
Learned counsel pointed out that the respondent has not been served with any letter of termination of his appointment, therefore the purported unilateral termination of the respondent’s appointment is invalid. He relied on Offoelo vs. N. E. P. Plc. (2005) All FWLR (Pt. 285) 245 at 561. It was also contended that by the issuance of Exhibit’S’ and Exhibit ‘F’ the respondent was fully punished for the alleged offence committed on 6/10/2000. The respondent was warned to refrain from any similar offence within the period of one year. Learned counsel for the respondent argued that after the adjudged warning, to mete any other punishment to the respondent for the same offence would be unfair. He was also of the view that the respondent’s employment was wrongfully determined because Exhibits ‘G’ (suspension letter) and Exhibit ‘T’ (the withdrawal letter) on the same 1/11/2000 were a -direct breach on the terms stated in Exhibit ‘F’ and-are -not provided for in Exhibit ‘L’ which is the handbook of the 1st appellant. Moreover, Exhibits ‘T’ and ‘U’ were not copied or served on the respondent, therefore, his employment has not been properly brought to an end.
On Issue NO.3, Mr. Imeh relied on Busari vs. Edo State Civil Service Commission (1999) 4 NWLR (Pt. 599) 368; Iderima vs. R. S. C. C. S. (2005) All FWLR (Pt. 285) 452, and submitted that the respondent is entitled to his full earnings up to the date of judgment of the lower court (i.e. N4,386, 500.00) up to the final determination of this appeal or until proper Notice or termination of his employment is served on him.
He furthered that the court below was right to award general damages of N2 million to the respondent because damages follow breach of contract or a wrongful act. See Osun State Government vs. Dawami Ltd. (2003) NWLR (Pt. 818) at 102; A. B. Ltd. vs. Asaolu (2005) All FWLR (Pt. 270) 2132 and Jambo vs. Wickliffe (2005) All FWLR (Pt. 251) 278.
On the award of cost of N15,000.00 Mr. Imeh submitted that it in no way meets the respondent’s expenditure on filing of process alone. He concluded that the court should uphold the sum of N6,402,000.00 awarded by the court below as at 9/8/05 and this court should further order the appellants to pay the respondent his earnings up to final determination of this appeal or until notice is given.
The appellants in their reply brief attacked paragraphs 12 and 14 of the respondent’s brief of argument and submitted that it is at variance with his pleadings and an attempt to set up a new case on appeal. Also, that the respondent’s attack on Exhibit ‘V’ in paragraphs 19 – 22 of his brief is a fresh point and ought not to have been raised without leave of court. Appellant’s counsel referred to Fatunbi vs. Olanloye (2004) 6 – 7 SC 68 – 86; Lipede vs. Shonekan (1995) 1 NWLR (Pt. 374) 668 and Ibrahim vs. Balogun (1999) 7 NWNR (Pt. 619) 214. Counsel concluded that no issue was joined or fought by the parties on whether appointment of the respondent as Spy
Police was in compliance with the Police Act have given careful consideration to the issues formulated for determination by the parties in their respective briefs of argument in this appeal. I observed that the respondent adopted the 3 issues formulated by the appellants. That being the case I shall rely on the issues formulated by the appellants for the determination of this appeal.
On Issue NO.1, the parties joined issues on the employment status of the respondent. While the respondent claims to be an employee of the 1st appellant in paragraphs 3 and 4 of the further Statement of Claim, the 1st appellant in paragraph 2 of the Further Amended Joint Statement of Defence claim that the respondent was an employee of the Nigeria Police.
It is important that I preface this judgment with the issue whether the respondent established a reasonable cause of action in his pleadings before the trial court. A careful perusal of the records show clearly that this same issue was raised before the trial court both by Notice of Preliminary Objection (see pages 8 and 9 of the record) and by motion on notice. This issue was keenly contested at the court of trial and resolved. See pages 161 to 187 of the record. At page 186 of the record the trial court held as follows:
“… A reasonable cause of action has been explained to mean a cause of action which when only the allegations in the statement of claim are considered, has some chance of success. See the case of Dantata vs. Mohammed (2000) 7 NWLR (Pt. 664) 176.
I hold that the averment in the amended statement of claim have (sic) disclosed a reasonable cause of action.”
See page 186 lines 24 – 33.
Curiously enough, the appellants did not appeal against the Ruling of the trial court. The appellants are- therefore estopped by law from resurrecting the same issue again. In Iyoho vs. Effiong (2007) 11 NWLR (Pt. 1044) 31 at 55, the Supreme Court held that: “A decision of court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding.”In the circumstance, I shall discountenance the paragraphs aforesaid.
On the issue of the respondent’s comment on Exhibit ‘V’, I observed that it was the appellants themselves that raised the issue of Exh. ‘V’ in their brief. They exposed themselves to the comments from the respondent. Being a statutory provision it was not necessary for the respondent to plead the sections and regulations of the Police Act. Only material facts are pleaded not law, statutory provisions or regulations. See Adewole vs. Adesanoye (2004) 12 NWLR (Pt. 887) 435.
Now, the issue whether the respondent is an employee of the 1st appellant or a Supernumerary Police Officer is the real issue in the, appeal and the fulcrum on which this appeal revolves. I shall therefore carefully consider Issue No. 1 in some detail.
Firstly, the respondent in paragraph 4 of his further amended statement of claim and in his evidence in court established clearly that he applied to the 1st appellant who in turn interviewed him and employed him as a driver in September 1991. The respondent’s main duty for which he was employed was simply put, driving and indeed that was all he did in his employment with the 1st appellant.
Secondly, it is very significant to note that the respondent was not a Supernumerary Police Officer to the 1st appellant. Though the appellants pleaded in their further amended joint statement of defence that the respondent was not their employee but a Supernumerary Police Officer. The respondent in his reply and evidence stoutly denied that allegation. Respondent testified that it was not until the 22nd day of June, 1992, that he and 50 other persons were sent for training at the Police College, Calabar. That is almost 10 months after he was employed by the 1st appellant as a driver.
The evidence of the respondent is supported and confirmed by the evidence of PW2, Annete Ntia, before the court below, which is at page 218, lines 16 to 27 of the record of proceedings. He testified as follows:
“… I was trained along with the plaintiff at Police Training School, Calabar. The 1st defendant sent us for that training. We worked for the 1st defendant for a long time before we were sent to the Police Training School for basic police training. The 1st defendant gave us a list of people who were to proceed for that training. Before and after the training we were not police officers and we are not Police Officers. At the Police Training School, the Commandant showed us a letter sent by the 1st defendant to the school for our training ”
The above piece of evidence by PW2 was not challenged, controverted or contradicted. The evidence is not of poor quality. When a piece of evidence is unchallenged or uncontradicted by the opposing party who had an opportunity to controvert the evidence, the trial court has no alternative but to believe the evidence. See Okeke vs. Aondokaa (2000) 9 NWLR (Pt. 673) 501 at 516; Omo vs. J. S. C., Delta State (2000) 12 NWLR (Pt. 682) 444 and Otuendor vs. Olughor & Ors. (1997) 7 SCNJ 411.
A Supernumerary Police Officer is a creation of law, under the Police Act, Cap 359, L. F. N. 1990, therefore, only full compliance with the relevant provisions of the Police Act would make the respondent a Supernumerary Police Officer. Facts must be applied to law. It is wrong to work backwards from law to facts. It is the establishment of the facts that comes first before the application of the law. It is trite law that a party who relies on the provisions of a statute as a defence should plead facts relied upon for bringing a particular transaction within the ambit of that statute. See I. M. N. L. Vs. Pegofor Industries Ltd. (2005) All FWLR (Pt. 270) at 2018 at 2028.
At this juncture it is necessary that I reproduce the provisions of section 18(1) and (2) of the Police Act for ease of reference and far clarity.
“(1) Any person (including any government department) who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application therefore to the Inspector- General, stating the nature and situation of the property in question and giving such other particulars as the Inspector-General may require.
(2) On an application under the foregoing subsection the Inspector-General may, with the approval of the President, direct the appropriate authority to appoint as supernumerary police officers in the Force such number of persons as the Inspector General thinks requite for the protection of the property to which the application relates.”
The Police Act is written in simple, plain, unambiguous language and it spells out in the simplest form, the prerequisites for qualification as a Supernumerary Police Officer. In this case the appellants failed woefully to produce any evidence that they complied with the provisions of section 18(1) and (2) of the Police Act.
It is not enough merely to paint to the uniform, or the name tag. A uniform and name tag does not make a Supernumerary Police Officer. The fact that the 1st appellant adapted a circuitous route in paying the salary of the respondent through the Police Force is to no avail. Only a full compliance with the provisions of the Police Act would make respondent a Supernumerary Police Officer.
In the instant case an appeal there is now evidence that 1st appellant made any application to the Inspector-General of Police, stating the nature and situation of the property in question and giving such particulars as the Inspector-General may require. There is now evidence that the Inspector- General of Police, with the approval of the President of Nigeria gave any direction to the appropriate authority to appoint the respondent as a Supernumerary Police Officer. There is also no evidence that the respondent applied to be appointed a Supernumerary Police Officer and there is no evidence that he was conscripted. Furthermore, the 1st appellant is not an agent of the Nigeria Police Force and neither is a recruitment centre for Supernumerary Police Officer.
A careful perusal of the appellants’ further amended joint statement of defence, the oral evidence and the documentary evidence in the case at the court below, reveal the appellants’ non-compliance with the provisions of section 18(1) and (2) of the Police Act.
The appellant relied on the case of S. P. D. C. (Nig.) Plc v. Dino (supra) to support their case that the respondent was a Supernumerary Police Officer. Having carefully gone through the case it is my finding that the facts, issues and circumstances are very different and are clearly distinguishable from the facts of the instant case on appeal. Each case must be considered according to its peculiar facts, circumstances and merit. It is only where the facts and circumstances of a case is in pari materia with another that the ratio decidendi could be applied to it.
There is a world of difference between a person employed as a driver by a company and a Supernumerary Police Officer attached to a company as such. The appellants contended that the fact that respondent was sent on training at the Police College makes the respondent a Supernumerary Police Officer. Without compliance with the provisions of section 18(1) & (2) of the Police Act, the appellants’ submission has no legs to stand.
There is evidence that before the respondent was sent to the Police Training School on 22/6/92, the 1st appellant sent him for training. See Exhibit ‘A’ which is the diploma for Fire Fighting and Fire Prevention training conducted at the premises of the 1st appellant and issued to the respondent by the 1st appellant and dated 18/8/91. Exhibit ‘B’ is the 1st appellant’s Safety Orientation Certificate issued to the respondent dated 31/8/95. Exhibit ‘E’ is a Certificate of Proficiency issued by the 1st applicant on 31/8/95. Exhibit ‘A’ not only confirm that before, 22/6/92, when the respondent and 50 others were sent for training at the Police Training School, the respondent had been in the employment of the 1st appellant since September 1991, it also establish that the 1st appellant had been sending the respondent for different training as evidenced in Exhibits ‘B’ and ‘E’. It is of interest to mention here that the training for which Exhibits ‘A’, ‘B’ and ‘E’ were issued to the respondent by the 1st appellant are not connected with the duties of a Supernumerary Police Officer as stated in section 18 of the Police Act.
More importantly, after each training programme the respondent always returned to his driving duties and he remained there until he received a letter of Indefinite Suspension on 14th December, 2000. At all times material to the employment of the respondent he was under the management and control of the 1st appellant. See Exhibits ‘F’, ‘G’, ‘K’ and’ S’ which not only show that the respondent was a driver for the 1st appellant but that the appellant had complete control over the respondent’s employment, duties and discipline.
It is well settled in contract of employment that services and wages are the twin pillars upon which a contract rests. Exhibits ‘J’, ‘Q’ and ‘Q1′ are the Pay Slips which clearly show the salaries and sundry allowances paid by the 1st appellant to the respondent.
The respondent testified that when the 1st appellant employed him in September 1991, he was not given any letter of employment. The appellants did not deny this allegation rather they alleged in their pleadings that they only had a chat with the respondent. The appellants did not explain what they meant by having a “chat” with the respondent and when they had such a chat with the respondent. None of the appellants’ witnesses testified in support of the allegation. It is settled law that any averment on which no evidence is adduced in support is deemed abandoned. See Uwegba vs. AG, Bendel State (1986) 1 NWLR (Pt. 16) 303. It follows therefore that the appellants have abandoned that allegation.
From all available evidence replete on the record of proceedings, even without a letter of employment being given to the respondent, the employee/employer relationship can easily be imputed in the instant case on appeal.
Where a contract of employment is unwritten as in the instant case, the intention of the parties can be discovered by reference to the oral evidence of the parties and their witness and by facts of the surrounding circumstance of the transaction. The evidence of PW1 and PW2 are available. Exhibits ‘A’, ‘B’, and ‘E’ which are the evidence of the training course organized by the 1st appellant for the respondent are clear evidence in support of the fact that he was an employee of the 1st appellant. Furthermore, Exhibits ‘J’, ‘Q’ and ‘Q1’ clearly show salaries and sundry allowances paid by the 1st appellant to the plaintiff. They include shift, lunch subsidy, turkey, overtime and medical allowances.
The fact that the respondent was called for the purpose of that employment No. 542 Pc Udo Tom cannot derogate from the fact that it has been firmly established that he was employed in September 1991 as a driver.
It is equally significant that from the disciplinary action of the 1st appellant against the respondent, it could be seen that the respondent was never a Supernumerary Police Officer and he was never considered as such by the 1st appellant. The respondent according to DW2 and Exhibit ‘S’ was tried in what the 1st appellant considered as “Orderly Room Trial”. In Exh. ‘S’, it was recommended that the respondent should be seriously reprimanded e and warned. The respondent was subsequently given a letter of warning, that is Exh. ‘F’ dated 26/10/2000.
On 1/11/2000 contrary to the content of the Warning letter, Exh. ‘F’, the 1st appellant also served Exhibit ‘G’ dated 1/11/2000. In Exh. ‘G’, the respondent was told that he was placed on;
“indefinite suspension pending further management action.”
Let us pause for a while to consider and reflect on the content of Exh. ‘G’. The question that arises is, if the respondent was a Supernumerary Police Officer how come it is the 1st appellant that is issuing him a letter of indefinite suspension? How come, the 1st appellant stated that the indefinite suspension is effective pending further management action and not Nigeria Police Force action? This clearly exposed the 1st appellant that the respondent was their employee.
Also on 1/11/2000 the 1st appellant also issued Exh. ‘1’, a letter of withdrawal of service of the respondent. By stating that the separation benefits of the respondent would be worked out and accordingly paid, the 1st appellant was accepting that the respondent was his employee. He would therefore be covered by the 1st appellant’s Employee Hand Book, Exhibit ‘L’, tendered by the appellants themselves. While the disciplinary measures of “Warning” and “Suspension” are contained in article 15.0 at pages 19 to 20 of Exhibit ‘L’ it does not conform with the disciplinary measure prescribed under section 18(3) (d) and (5) of the Police Act.
If as contended by the appellants, the respondent was a Supernumerary Police Officer then all the disciplinary actions against the respondent by the 1st appellant should have-been left to-the Nigeria -Police Force. At this juncture let me ask a rhetorical question, what has the 1st appellant to do with the respondent’s separation benefits if he was a Supernumerary Police Officer? The Police Act specifically provides for disciplinary action against a Supernumerary Police Officer under section 18(3) (d) and (5) of the Police Act and they provide as follows:
“(3)(d) subject to the restrictions imposed by paragraphs (b) and (c) of the subsection and to the provisions of section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.
(5) Where the person availing himself of the services of any supernumerary police officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal territory, to the Inspector-General or, in the case of an officer appointed in respect of a police area within a State, to the Commissioner of Police of that State; and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn.”
It was after the 1st appellant had issued the respondent a “Warning”, Exh. ‘F’ and a letter of “Indefinite Suspension without pay” that it dawned on the 1st appellant to attempt to comply with the Police Act by writing Exh. ‘T’. Exhibit ‘T’ is titled: “Withdraw of Service of Pc Udo Tom”.
Thirdly, there is no evidence that the respondent was ever employed for the purposes of a security guard or security personnel to protect any of the 1st appellant’s property and he never was. Now, section 18(3) (b) of the Police Act provides:
“Every -Supernumerary – Police Officer – appointed under this section:
(a) …
(b) shall be employed exclusively on duties connected with the protection of that property; …”
The phrase “shall be employed exclusively on duties connected with protection of that property” is complete and total. It leaves no room for doubt.
In the instant appeal, there is no evidence from the appellants that the respondent was ever employed or deployed exclusively for duties connected with the protection of the properties of the 1st appellant. The lukewarm submission of the appellants that the respondent was assigned to protect the vehicle he was driving, is to say the least, very ridiculous and derisive. One does not need to be Supernumerary Police Officer to be employed as a driver and a driver need not be a Supernumerary Police Officer to perform his functions. From all indications and all available admissible evidence both oral and documentary, the conclusion to reach is clearly that the respondent was an employee of the 1st appellant.
The appellants also contended that the trial court did not evaluate the evidence of the respondent properly and that the evidence adduced before the trial court is scanty. The evidence comprised of both credible oral evidence and documentary evidence, to wit, Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, ‘J’ and ‘K’. The trial Judge properly and adequately evaluated the evidence adduced by the respective parties in this appeal, considered the submission of counsel and came to his conclusion. See pages 202 – 269 of the record. The trial Judge had done all that was required of him. See A. C. Ltd. vs. N. N. P. C. (supra), and Gekpe vs. Alokwe (supra). In Oyekola vs. Ajibade (2004) 17 NWLR (Pt. 9020) 356 at 385 – 386, it was held that:
“Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court which saw, heard and assessed the witnesses. The Court of Appeal which has not had the same advantage watch the trial court enjoyed of seeing the witnesses and watching their demeanor will only disturb the finding of facts of such a court where it is satisfied that the trial court has made no use of such advantage. Such specific instances where the Court of Appeal will interfere are:
(a) Where there is no evidence to support the findings or the decision of the trial court.
(b) Where the trial court did not make a correct assessment of the evidence before it.
(c) Where the trial court wrongly accepted or rejected any evidence tendered during trial.
(d) Where there has been an erroneous appraisal of facts leading to erroneous conclusions in the case or in effect the conclusion reached is perverse.”
None of the above is manifested in the judgment of the court below.
I am at one with the learned trial Judge when he found at page 289 of the record that:
“The employment of the plaintiff was therefore under Contract of Service for which he was paid by the 1st defendant though circuitously through the Nigeria Police in respect of salaries and certain allowances.”
The finding of the trial Judge is unassailable. I, therefore, resolve Issue 1 in favour of the respondent and I answer the question in the affirmative, that is to say that the respondent was an employee of the 1st appellant.
Issue NO.2 deals with whether the employment of the respondent has been properly determined by the 1st appellant. Sequel to the respondent’s alleged accident, he was tried in what was described as an “Orderly Room”. The report of that “orderly room” trial is contained in Exhibit ‘S’ tendered by the appellants themselves. Exhibit IF’ tendered by the respondent is the outcome of the Orderly Room trial. The relevant portion of Exhibit IF’ reads as follows:-
“You are therefore by this letter warned to refrain from any similar within the period of one year else severe disciplinary measures will be considered against you.”
Exhibit ‘F’ was written, dated and served on the respondent on the 26/10/2000. By Exhibit ‘F’, the respondent had been fully punished by the 1st appellant and he was given one year grace period which would have expired on 26/10/2001 or thereabout. Therefore, by the contents of Exhibit ‘F’ an implied contract not to tamper with the respondent’s employment for one year from 26/10/2000 is deducible and established. But surprisingly 6 days later, precisely 1/11/2000, and without more ado, the 1st appellant issued and served Exhibit ‘G’ on the respondent, which is a letter suspending him from duty.
The relevant portion of Exhibit ‘G’ reads:
“…
Management considered your action inimical to its Health and Safety policy and can no longer tolerate such lapses.
In view of the above Management has decided to place you on indefinite suspension effective immediately pending further Management action.
You are to surrender all the company’s property in your possession including the Identity Card to the Sergeant Administration.”
Now, there is no evidence that after the warning given to the respondent, in Exh. ‘F’ he committed similar or any other offence between 26/10/2000 and 1/11/2000 when Exhibit ‘G’ was written. Clearly the warning issued to the respondent was for a period of one year. But, just 6 days into the one year, Exhibit ‘G’ was written which suspended the respondent from duty indefinitely without pay. It is a travesty of justice for the 1st appellant to subject the respondent to double jeopardy over the same singular offence. No one should be punished twice for the same offence.
It appears that the 1st appellant was desperate and wanted the respondent out of the company or to get rid of him with all haste. The 1st appellant ordinarily should have waited at least for the one year or for the respondent to commit any other offence within the one year period before issuing out another punishment on him. Obviously that is in a bad taste. It is unfair and contrary to natural justice, equity and good conscience. Moreover, the content of Exhibit ‘G’ is contrary to the punishment prescribed in Exhibit ‘S’, the report of the Orderly Room trial which recommended severe reprimand and warning. In my considered view it was unconscionable for the 1st appellant to renege, ignore or disregard Exhibit ‘F’. Certainly the sudden change of mind exhibited by the 1st appellant is unsupportable in law. Since the 1st appellant voluntarily and consciously issued and served the respondent with Exhibit ‘F’ it is estopped from resorting to any other disciplinary action unless and until the respondent committed any other offence within the period of one year. That is not end of the matter. Curiously enough the 1st appellant issued Exhibit ‘T’ captioned “Withdrawal of Service” dated 1/11/2000 and signed by the 2ndappellant. In Exhibit ‘T’, the 1st appellant wrote to the Commissioner of Police, Akwa Ibom State stating that the services of the respondent are no longer required and requested that his services be withdrawn with effect from November 1,2000. In other words both Exhibit ‘G’ (suspension letter) and Exhibit ‘T’ (letter of withdrawal) were issued on the same 1/11/2000. Now, the provisions of section 18(5) of the Police Act provides:
“Where the person availing himself of the services of any supernumerary police officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal territory, to the Inspector-General or, in the case of an officer appointed in respect of a police area within a State, to the Commissioner of Police of that State; and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn.”
Assuming the respondent was a Supernumerary Police Officer, then Exhibit ‘T’ was made by the 1st appellant in flagrant violation of the clear provisions of section 18(5) of the Police Act which requires not less than two months before the services of the respondent can be withdrawn. Ordinarily the two months should start to run when the Commissioner of Police is served with Exhibit IT’. But Exhibit IT’ states that the services of the respondent be withdrawn with immediate effect, i.e. 1/11/2000 in clear violation of section 18(3) of the Police Act. It is not known when Exh. IT’ was served on the Commissioner of Police, Akwa Ibom State.
Surprisingly the reply from the Commissioner of Police came in the form of Exh. ‘U’ written, signed and dated 29/7/2003 almost 3 years later after Exh. ‘T’ was written and daring the pendency of this suit.
Before proceeding further it is significant to note that the Police Act made no provision for letter of “warning” or for “suspension” of a Supernumerary Police Officer.
In other words the 1st appellant considered the respondent as its employee and not as a Supernumerary Police Officer. In conclusion, it is clear that the 1st appellant acted hastily and unfairly when it refused to wait for one year or for the respondent to commit a similar offence or any other offence within one year from the 26/10/08 as per Exhibit ‘F’ before resorting to steps to remove the respondent.
The 1st appellant did not comply with the provisions of the Police Act and neither did it comply with Exh. ‘L’ because the issuance of letter of warning is the 1st step to be followed. Having elected to discipline the respondent by issuing the letter of warning, it was wrong for-the 1st appellant to take other steps to remove the respondent. Thus Exhibits ‘G’ and ‘T’ were unnecessary, uncalled for, premature and hastily issued. Therefore, the employment of the respondent was not properly and validly brought to an end having regard to the facts and circumstances. I, therefore, resolve Issue No. 2 against the appellants and hold that the disengagement of the respondent from the service of the 1st appellant was not proper.
The appellants contended in their brief that the trial court gave judgment against the 2nd appellant and awarded damages against him. The 1st and 2nd appellants were sued jointly and severally. See paragraph 21 of the respondent’s further amended statement of claim. The travails of the respondent is directly traceable to the 2nd appellant. The appellants’ submission is untenable and it is devoid of merit. In paragraph 3 of the further amended statement of claim the respondent pleaded that the 2nd appellant is an employee of the 1st appellant. The appellants made a blanket denial of paragraphs 3-17, 20 and 21 of the respondent’s further amended statement of claim in their amended joint statement of defence. They did not expressly and specifically deny that the 2nd appellant was not an employee of the 1st appellant and they did not define what the relationship of the 2nd appellant is which is divergent or contrary to the averment of the respondent in his pleading.
The appellants in their pleadings conceded that if there was any master and servant relationship between the 1st appellant and the respondent, such was terminable by the 1st appellant giving to the respondent a month’s notice or allowances payable to the respondent in lieu of notice. From the evidence adduced by the respondent uptil the date of the judgment of the trial court, the respondent has not been giving any notice of termination of his appointment. So the trial court was in order when he awarded the claims of the respondent.
I now come to Issue NO.3. The appellants’ counsel contended that the amount awarded by the trial court is outrageous and flies in the face of settled authorities as Idoniboye-Oba vs. N. N. P. C. (supra) and Mobil vs. Assan (2003) 1 NWLR 816 page 308. He submitted that the highest amount the respondent should have been awarded is the sum of N12, 000.00 being the undisputed amount of a month salary paid to the respondent by the Nigeria Police. In my view the appellants must be labouring under a gross misconception. I have firmly held and confirmed that the respondent was not a Supernumerary Police Officer, therefore, the Nigeria Police Force has no control whatsoever on him. The submission of counsel in this respect is a mere straw in the wind that must go with the wind.
Mr. Opasanya also submitted that the respondent was not an employee of the 1st appellant so the award of N4,386,000.00 must fail. On the contrary, the respondent is undoubtedly an employee of the 1st appellant, so the award of N4,386, 000.00 made by the trial court must stand. Furthermore, the appellants’ reliance on the provisions of sections 18, 21 and 22 of the Police Act is misplaced and grossly misconceived as they are inapplicable and irrelevant since the respondent is not a Supernumerary Police Officer.
The trial court declared Exhibit ‘G’, the letter of Suspension, as illegal, unjust, null and void and of no effect whatsoever. Strangely enough, the appellants did not appeal against that declaration. So the appellants must be deemed to have accepted that part of the judgment of the lower court. See Okotie-Eboh vs. Manager (supra) and Iyoho vs. Effiong (supra). Once the suspension is declared null and void, the effect is that the respondent was always and still is a servant of the 1st appellant. In the circumstances, respondent is entitled to all his withheld earnings. The law is that a unilateral termination of contract does not terminate the contract. See Offoelo vs. N. E. P. Plc. (supra). It is trite that a servant is generally entitled to damages in the sum- of the period of Notice. In the instant case on appeal there is no evidence that the respondent was served with any notice of termination and he is not aware of the termination of his employment. The question then is when will the duration of the notice start to run for the purposes of calculating damages? In the circumstance the respondent is entitled to his full earnings up to the date of judgment of the Lower Court. That covers the sum of N4,368, 500.00. See Busari vs. Edo State Civil Service Commission (supra) and Iderima vs. R. S. C. C. S. (supra). It will be recalled that the appellants themselves in Exh. ‘G’ suspended the respondent without pay. The 1st appellant has not uptil the date of judgment, served the respondent with any notice of termination of his employment. It is trite that a servant cannot be foisted on a master but at the same time a master cannot suo motu, terminate the contract without informing the servant. In respect of the general damages of N2 million and cost of action awarded by the court below, the contention of the appellants is that they are excessive. The award of damages is a matter for the trial court and this court would not ordinarily interfere with it. The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of the requisite notice. See Ezekiel vs. Westminister Dedging Ltd. (2000) 9 NWLR (Pt. 672) page 248 at 262 and British Airways vs. Makanjuola (1993) 8 NWLR (Pt. 311) 276. In the instant appeal the various punitive measures metted out to the respondent were based on the allegation that he was involved in a motor vehicle accident because he was drunk while driving. Obviously, this is a stigma on the character of the respondent.
General damages are the kind of damage which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstance of a case. See Omonuwa vs. Wahabi (1976) 4 SC 37 and Yalaju Amaye vs. A. R. E. C. Ltd. (1990) 4 NWLR (Pt. 145) 422 at 450 – 451. It may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded because damages follow breach of contract. See O. S. G. v. Damami Ltd (supra); A.B. Ltd. vs. Asaolu (supra) and Jambo vs. Wickliff (supra). It arises from inference of law and need not be proved by evidence. It is sufficient if it is generally averred.
Now, the measure of general damages in terms of money is a matter for the Judge. It is always necessary for the Judge to make his own assessment of the quantum of such damage. General damages unlike special damages are generally incapable of substantially exact calculation.
They are presumed by the law to be the direct and probable consequences of the act complained of. See Odulaja vs. Haddad (1973) 11 SC 351.In the circumstances the award of N2 million by the trial Judge as general damages is reasonable and cannot be faulted.
Similarly, the award of N15,000.00 as cost of the action is not excessive rather, I consider it reasonable and therefore justified. It is apparent that the paltry sum of N15,000.00 cannot cover the cost of the action which commenced on 8/8/01 and concluded on the 9/8/05, that is a period of four years. I see no merit at all in Issue NO.3 and I resolve it in favour of the respondent and against the appellants.
Having resolved Issue Nos. 1, 2 and 3 against the appellants, it follows that appeal has no merit whatsoever and it richly deserves to be dismissed. I accordingly dismiss this appeal.
I now turn to the Cross-Appeal filed by the Respondent/Cross-Appellant. On the cross-appeal, the main grouse of the respondent/cross-appellant is the failure of the trial court to award the claim for Terminal or Separation benefits at the rate of N3 million per year, and the refusal to order for the award for general damages for assault, wrongful detention, false accusation of a crimonous charge and or emotional loss.
Aggrieved by the decision of trial court the cross-appellant cross appealed to this court on 4 grounds in his notice of appeal filed on 38/5/07. From the 4 grounds of appeal, the respondent distilled two issues for determination in the brief filed on 30/1/06. The two issues have already been stated earlier in this judgment. The appellants/cross-respondents in their brief filed on 28/3/07 adopted the two issues distilled or formulated for determination.
I have carefully considered the briefs of the learned counsel in the cross-appeal, and I agree with the submission of the counsel for the appellant/cross-respondent that the trial court was right not to grant the cross-appellant’s claim for terminal or separation benefits. A claim for terminal or separation benefits is a claim for special damages which must be specifically pleaded and strictly proved. See SOPC (Nig.) Ltd. vs. Tiebo VII (supra) and Warner & Warner International vs. F. H. A. (1993) 6 NWLR (Pt. 298) 148.
The respondent/cross-appellant all through the gamut of the evidence before the trial court did not adduce any evidence as to how he arrived at the sum of N3 million per year. The trial Judge in his judgment at page 295 of the record held that he was unable to find how the respondent/cross-appellant came about the N3 million. The respondent’s/cross-appellant’s bare assertion in his pleadings and testimony without more is not sufficient. He has the duty to specifically prove the claim by adducing concrete evidence in support of it which he woefully failed to do. See Gege vs. Nande (supra). The finding of the trial Judge is infallible. The issue is devoid of any merit, I therefore resolve it against the respondent/cross-appellant.
On Issue NO.5, the main issue here is whether the respondent is entitled to damages for-assault wrongful detention, false accusation of crimonous charge and or emotional losses. The learned counsel for the respondent/cross-appellant relied on the evidence of PWs 1 and 2 and Exhibits ‘F’, ‘G’, ‘K’, “S’ and ‘T’. He also referred to the evidence of DWs 1 and 2 and submitted that the trial court failed in its duty to properly consider this claim.
Learned counsel for the appellant/cross-respondent submitted on the contrary that the cross-appellant failed to prove this claim.
Having carefully examined Issue NO.5, I am of the firm view that the cross-appellant failed to prove this aspect of his claim for 3 main reasons.
Firstly, there is no sufficient evidence in support of the claim. A part from the evidence of the cross-appellant there is no other supporting evidence. The evidence of PW2 on this issue is hearsay because he merely repeated what the respondent told him. DWs 1 and 2 did not testify in support of the respondent’s claim. Therefore, the evidence of the cross-appellant was not credible enough to sustain his claim. It will be most unreasonable for the trial court to accept the mere Ipse Dixit of the respondent and award him the amount claimed. See Onu vs. Idu (2006) 12 NWLR (Pt. 905) and Oyediji vs. Olaniyi (2005) (supra).
Secondly, the law frowns at double compensation and will not allow a litigant who made claims for specific losses suffered by him to add another figure under the head of general damages. SDPC (Nig.) Ltd. vs. Tiebi VII (1996) 4 NWLR (Pt. 445) 657 at 689.
Thirdly, the respondent/cross-appellant at paragraph 21 of his further statement of claim said at the instance of the appellants he was severely beaten by their agents. In his testimony in court the respondent/cross-appellant stated that it was the Mobile Policemen that assaulted him and wrongly detained him. See pages 192 – 194 of the record. This evidence is very important and crucial for the determination of this appeal. By operation of law the Mobile Police men attached to the 1st appellant/1st cross-respondent are members of the Nigeria Police and are under the control and management of the Nigeria Police Force. There is no evidence from the cross-appellant that the Mobile Police men in question acted on the instructions of the 1st appellant/cross-respondent. In that case the respondent/cross-appellant’s claim can only be sustained against the Nigeria Police and not the 1st appellant/cross-respondents because they cannot be held vicariously liable for the acts of the Mobile police men. See SDPC (Nig.) Plc. v. Dino & Ors. (supra). Therefore, the claim of the cross-appeal must fail. I resolve Issue No. 5 against the respondent/cross-appellant.
Accordingly, this appeal is hereby dismissed. The judgment of the trial court presided-over by Okon J. in Suit No HEK/97/2001 delivered on 9/8/05 is hereby affirmed. Appeal dismissed.
The cross-appeal fails and it is hereby dismissed. Cross-appeal dismissed. I make no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Omokri, JCA and I agree that each of the main appeal and the Cross-appeal is devoid of merit.
The real issue in the appeal, as found by His Lordship in the lead judgment, is whether the Respondent was at all material times a Supernumerary Police Officer as asserted by the appellant but denied by the Respondent. Compliance with the provisions of Section 18(1) and (2) of the Police Act is a condition precedent to the appellants’ reliance on the alleged status of the Respondent. The defence based on the assertion that the Respondent was a Supernumerary Police Officer without evidence of compliance with the above section in the engagement of the Respondent is bound to fail. See ATOLAGBE v. AWUNI (1997) 9 NWLR (PT. 522) 566. It is immaterial that the Respondent wore a uniform and was assigned a number. The hood does not make a monk.
Further the appellants interviewed (or in the words of the appellants chatted with the respondent after which he was employed as a driver. His duties did not involve securities properly so called and I find the appellant’s argument that the respondent was employed to protect the vehicle he was assigned to drive specious.
It is for this and the fuller reasons set out in the lead judgment that I also dismiss both the main appeal and the cross-appeal. I make no order for costs.
THERESA N. ORJI-ABADUA, J.C.A.: I have read before now the lead judgment of my learned brother, Jean Omokri, JCA, and I agree with him that the cross-appeal is without substance and ought to fail. On the issue of the main appeal, however, I have given the issues raised therein very close attention and agree on the award of the Respondent’s remunerations but that his claim on the question of general damages, with respect, is bound to be set aside.
The facts of this case are fully set out in the leading judgment of my learned brother. NeedlessBera6ouring or recapitulating them herein. The issue of whether the Respondent was a Supernumerary Police Officer has been copiously and exhaustively dealt with by my learned brother in the lead judgment.
The Respondent in his Further Amended Statement of Claim sought the following reliefs against the Defendants:
“(i)(a) Payment of N50 Million General Damages for assault, wrongful detention, wrongful suspension from duty, false accusation of a criminous charge and acting therein; wrongfully depriving Plaintiff of his remuneration and for various losses (emotional, health, financial and physical suffered). Payment of Spy POLICE SALARY of N12, 000.00 monthly from November, 2000 to date of Judgment.
(i)(b) Payment of Spy ALLOWANCE calculated at the rate of N52,000.00 Monthly from January 2001 to date of Judgment.
(i)(b) Payment of SPY ALLOWANCE calculated at the rate of N52,000.00 Monthly from January 2001 to date of Judgment.
(i)(c) Payment of Spy ANNUAL ALLOWANCES comprising Leave allowance of N100,000,00,
Christmas Bonus of N26,000.00,from 2001 to date of Judgment.
(i)(d) Payment of all terminal entitlements calculated at 1st Defendant prevailing rate (i.e. at least N3 Million for every year worked) i.e. from 1991 to date of Judgment. This is in lieu of reinstatement by 1st Defendant at final determination of this suit.
(i)(e) Cost of Action.
(ii) A Declaration that 1st Defendant’s-
(ii)(a) “SUSPENSION FROM DUTY WITHOUT PAY” – letter dated 1st November, 2000 – to Plaintiff and-
(ii)(b) “WARNING NOTICE”. Letter dated 26th October, 2000 – to Plaintiff both pleaded above are unjust, unconstitutional, illegal, null and void and of no effect”.
Then, at paragraphs 4, and 20, of the said Further Amended Statement of Claim he averred thus:
“41st Defendant interviewed and, employed Plaintiff as “Security Guard about September -1991, and thereafter sent Plaintiff for training in the Police Training School, Calabar. After the training Plaintiff was deployed and used as a driver for some of the vehicles owned by 1st Defendant. At the hearing of this suit, Plaintiff shall lead evidence to show that 1st Defendant does not issue employment letters to staff in the cadre of plaintiff, except that Defendant short-listed his name after interview, and sent same to Police Training School, Calabar. Plaintiff shall rely on that letter at the hearing; Defendant is hereby given Notice to Produce” .
“20 Since he was employed, Plaintiff’s remuneration had been made up of
(a) Spy allowance and
(b) Spy Salary
both paid monthly. At the time of his suspension, Plaintiff’s monthly earnings were made up as follows:
(a) Spy allowance averaging N52, 000.00.00
(i) N42, 610.00 (Stipend – N16,100.00; Shift allowance – N5, 000.00; Lunch Subsidy-N1,800.00; Overtime N960.00; Turkey allowance – N7, 500.00; Medical – N11, 250.00).
(ii) As Allowance, Plaintiff is also entitled to Annual Bonus of N26,000.00 and Leave Allowance of N100, 000.00.
(b) Spy Salary of N12, 000.00 monthly. Both the Spy Allowance and Spy Salary are subject to annual increment and periodic upward review”.
In his evidence before the Court, the Respondent gave a detailed account of how in 1991 he applied for a post in the Security Department of the 1st ” Appellant He was invited for an interview and at the conclusion of it, he emerged successfully, following which, his name was published on the Defendant’s Notice Board. In September 1991 he was effectively employed as a driver and was then attached to the Security Department of the 1st Appellant. Then, in June 1992, the 1sf Appellant, on its own volition sent him to atop Abasi, Calabar for training in the Police Training School as a Spy Police. He was not given any employment letter by the 1st Appellant. The only document issued to him was the one in which his name was short listed as one of those to be sent to the Police Training School, Calabar. The course lasted for three months after which he returned to the 1sf Appellant. On getting back to his employers, he was still deployed to the security department as adriver. See p 190 of the record.
Then, at pp. 198-199 of the record, the Respondent in his evidence before the trial Court particularized his monthly entitlements being claimed as special damages. He said as follows:
“As at the time of the incident I was paid;
(a) Spy Allowance N52, 000.00 per Month
(b) Spy Salary N12, 000.00 ” ”
(c) Spy stipend N16, 100.00 ” ”
(d) Shift Allowance N5, 000.00 ” ”
(e) Overtime N 960.00 ” ”
(f) Lunch subsidy N1, 800.00 ” ”
(g) Medical allowance Quarterly N11, 250.00 ” ”
(h) Turkey Allowance yearly – N7, 500.00 ” ”
(i) Christmas bonus yearly – N26, 000.00 ” ”
(j) Leave Allowance yearly – N100, 000.00 ” ”
He said he used to have yearly increment in respect of all the allowances and salaries. He tendered as Exhibit ‘J’ a copy of his pay slip to buttress the fact that his salary was being paid to him by the 1st Appellant under the said contract of employment between them. He emphatically denied being employed as a Nigerian Police Officer by the Appellant.
Under cross-examination, he said that the uniform he wore at the Appellant’s premises which had a semblance of Nigerian Police uniform was given to him by the 1st Appellant, but without any rank affixed on it.
He said he did not know the meaning of the letters “PC” used as a prefix to his name. Before he went for the training in 199, the uniform given to him was blue, up and down, with “Mobil Security” inscribed on it. It was after he came back from the training that he was being described as “File No 542 PC”. He said his financial claims are only evidenced by his pay slips, since his contract of employment was not documented so as to embody the terms and conditions.
I must confess, given the record of this appeal that, the whole fuss about the Respondent being a Supernumerary Police Officer appears to me imaginary on the part of the 1st Appellant.
What seems so glaring both on the pleadings of the Appellants and the evidence proffered on their behalf before the trial Court is that probably, the 1st Appellant had wished to have Supernumerary Police Officers, but, its management seemed not-to have-been conversant with the procedure clearly stipulated in section 18(1) and (2) of the Police Act for securing them. So, in the case of the Respondent, the 1st Appellant set out on a wrong footing by first engaging the services of the Respondent as one of its employees. He was interviewed and employed as a driver in September, 1991. It is evident in the record before this Court that the Respondent was engaged by the 1st Appellant in 1991 as an employee. He had worked as a driver in the Security Department of the 1st Appellant between September, 1991 and June 1992 before the 1st Appellant sent him to undergo some police training. There is nothing on the record tending to show that before the Respondent was sent out for the training, the Nigeria Police Force requested, the 1st Appellant to send him. There is also nothing on the record establishing that the Nigeria Police influenced the Respondent’s initial employment with the 1st Appellant in September, 1991, nor, was the Respondentappointed then as a Supernumerary Police Officer at the directives of the Inspector General of the Police, before he was engaged by the 1st Appellant. Besides, there is nothing on the record to portray that the Respondent was at any time charged with the responsibility of protecting the 1st Appellant’s property as adumbrated by section 18(1) and (2) of the Police Act.
He had worked as the 1st Appellant’s driver attached to its Security Department between September, 1991 and June, 1992 with all his salaries and allowances being paid by the 1st Appellant before, the 1st Appellant, without any promptings from any quarters, or authority, then sent him to the Police Training School, Calabar for training.
At the completion of the course, he returned to his duty post at the 1st Appellant’-s Company, although -he was given a uniform by the 1st Appellant that looks like that of Nigerian Police Uniform. After the course his salary and other allowances structures were upgraded to reflect his
improved position. The whole idea of the Respondent being a Spy Police Officer was a figment of the 1st Appellant’s imagination. There was no iota of proof before the trial Court establishing that the Respondent is or was a Supernumerary Police Officer assigned to guard and protect the 1st Appellant’s property at the directives of the IGP. He was a mere driver. Even the contents of the “Warning” and “Suspension” letters issued to him by the 1st Appellant after the incident of 1/11/2000 referred to him as a driver. The fact that there were communications between the 1st Appellant and the Commissioner of Police Akwa Ibom State did not lead credence to the claim that the Respondent was a Supernumerary Police Officer. It must be emphasized that, Courts deal with facts and empirical evidence and the law, to enable it come to a just conclusion, and, not on imaginations, wishes, intentions or dreams or situations of make-believe.
There is nothing in the record before this Court detracting from the fact that the Respondent was employed by the 1st Appellant as a driver. He was merely sent for a course at the Police Training School for only three months with P.W. 2. If he were really a Police Officer as the 1st Appellant had claimed, why didn’t the “Warning” and “Suspension” letters emanate from the Nigeria Police Council? Why was he not disciplined by the Nigerian Police Council? Why the 1st Appellant? who was never proved at the trial Court to be an agent of the Nigeria Police Council.
It is evident in the record of appeal that the 1st Appellant’s denial that the Respondent was its employee, was anchored on its failure or omission to issue the Respondent with a letter of employment embodying the terms and conditions of his employment.
Therefore, in respect of issue No. 1 distilled by the Appellant’s Counsel the relevant questions that need to be tackled now, are; (1) Is every employment required to be evidenced in writing? (2) Would failure to produce a letter of employment where an employee was not given any by his employer, deprive the employee his entitlements and benefits derivable from that employment?
The general rule is that the contract of employment may be in any form, and not necessarily in writing. A contract of employment may be inferred from the contract of the parties if it can be shown that such a contract was intended although not expressed. It should be noted that the inference may be rebutted if such service is incompatible with employment. This may happen where the parties are relations or where the service was performed on the basis of a charity. Nevertheless, a contract of employment may be oral unless there is a statute requiring writing or deed.
Having stated that, I will, by virtue of section 74 (1) (a) of the Evidence Act, take judicial notice of the Labour Act, 1974 which made provisions for the protection of wages, contracts of employment and terms and conditions of employment of workers in Nigeria, even though, the said law was not made reference to by any of the parties in their respective Brief of Argument or Reply Brief. It is trite law that parties to proceedings need not plead statutes before reliance is placed on them. See Military Governor of Oyo State vs. Adekunle (2005) 3 NWLR Part 912 p. 294.
Section 91 of the Labour Act, 1974 defined “a worker” to mean:
“Any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a contract of service or contract personally to execute work or labour. There are certain exceptions enunciated in sub-paragraph (a) to (f) stated thereat”.
It is therefore, interesting, to note that in Nigerian justice system, employees or workers whose employers deliberately failed to give letters of employment were never left unprotected by the law. They were jealously guard to the extent that their employers who refused to follow the dictates of the law may, when exposed, face the wrath of the law, and become liable on conviction to a fine. Employers are mandated by section 7 of the Labour Act, 1974 to give to their workers, written statements of particulars of the terms and conditions of their employment not later than three months after the beginning of their period of employment.
Section 7 provides thus:
“7(1) Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying-
(a) The name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed;
(b) The name and address of the worker and the place and date of his engagement;
(c) The nature of the employment;
(d) If the contract is for a fixed term, the date when the contract expires;
(e) The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act;
(f) The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages;
(g) Any terms and conditions relating to-
i. hours of work, or
ii. holidays and holiday pay, or
iii. incapability for work due to sickness or injury, including any provisions for sick pay; and
(h) Any special conditions of the contract”.
By section 7 subsection (6) the stipulation for written statements to be given does not apply to workers who, already, were given such letters of employment stating the terms and conditions of their employment by their employers.
It must also be emphasized that by virtue of the provisions of section 21 (1) (c) of the Act, if an employer fails to comply with his obligation to give his employee a written statement of the specified terms of employment, i.e., where he contravenes section 7 of the Act, he shall be guilty of an offence and liable on conviction to a fine not exceeding N800 or for a second or subsequent offence, to a fine not exceeding N1, 500.00.
In the instant case, the 1st, Appellant which was under compulsion as prescribed by the Labour Act, 1974 to issue the Respondent with a letter of employment embodying the terms and conditions of his employment, and, who equally defaulted in so doing, had argued that the fact the alleged employment of the Respondent by the Appellant was oral and not written is neither an extenuating circumstance nor justifiable reason for failure to plead the essential terms and conditions of the alleged contract.
This Court is not in doubt as to whether the Respondent was employed by the 1st Appellant. P. W. 2’s testimony before the trial Court is pungent on the point. It is deducible from P.W. 2’s evidence that the Respondent was employed by the 1st Appellant long before the Respondent and himself were sent to the Police Training School for the three month course.
It must be stressed at this juncture, that, it was not the fault of the Respondent that the 1st Appellant failed in its obligation as an employer of service to give him a letter of employment stating his terms and condition of employment.It is settled law that any employer who fails to give his employee a written statement of the terms and conditions of his employment about three months after the beginning of his employment is estopped from relying on the failure of the worker or his said employee to tender in evidence the said terms and conditions of his employment. See the case of Nwakhoba vs. Dumez (Nig) Ltd (2004) 3 NWLR Part 861 p. 461 where it was held that it would not be proper for the Respondent, the employer now, to contend that the Plaintiffs failed to produce in evidence the NJIC conditions of service under which they claimed, when, the evidence in Court established that it was the Defendant/Respondent who failed in its statutory obligation to provide any of the Plaintiffs workers with conditions of service as provided for in section 7 (1) of the Labour Act. It was stated that, the Defendant contravened the provisions of section 7 (1) of the Labour Act and as such shall not be permitted in law to profit from its own wrong doing per Oduyemi J.C.A at 484.
It is therefore my humble view, that no matter the microscopic examination the 1st Appellant had subjected its relationship with the Respondent to, the 1st Appellant was under compulsion in law to have issued the Respondent with a written statement of the terms and conditions of his employment not later than three months after he was employed, and I so hold.
I, therefore, hold that, as a result of the 1st Appellant’s failure to issue to the Respondent the mandatory written statement of the term and conditions of his employment, the 1st Appellant cannot be allowed in law to benefit from the consequences of the failure by the Respondent to tender such document in Court. The tendency is that the 1st Appellant shall be bound by any other credible evidence produced by the Respondent proving the existence of his assertions. Therefore, the oral evidence proffered by the Respondent stating how he was employed in September 1991 and the corroborative evidence of P.W. 2, that the Respondent had worked for a long time with the 1st Appellant before he was sent to the Police Training School suffice. Furthermore, the Respondent’s evidence as to the sums he was paid regarding his remunerations, i.e., special damages, coupled with the documentary evidence of the same as were clearly stated in Exhibit J, the pay slip issued to him by the 1st Appellant, are to my mind, insurmountable by mere denials of the 1st Appellant, who, obviously contravened section 7(1) of the Labour Act 1974 by its failure to give to the Respondent a written statement of his terms and conditions of employment. Certainly, the 1st Appellant cannot be permitted to benefit from its own wrong-doing. I therefore resolve issue NO.1 distilled by the Appellants in favour of the Respondent.
I now turn to issue NO.2, which is whether the disengagement of the Respondent from the service of the 1st Appellant was proper.
The record of proceedings of the trial Court showed that the Respondent was issued with (1) Exhibit F, dated 26/10/2000 and titled “Warning Notice and (2) Exhibit “G entitled Suspension From Duty Without Pay”. Then, according to D.W. 2, after the disciplinary proceedings against the Respondent by the 1st Appellant, the Respondent’s case was reviewed and decision was taken that his services were no longer required. As a result, Exhibit “T” dated the same 1/11/2000 was written to the Commissioner of Police, Akwa Ibom State. It is on record that the Respondent was not confronted under cross-examination with Exhibit T, nor was it suggested to him that he had been disengaged from the service of the 1st Appellant.
It is material to recognize that in so far as the Respondent’s employment with the 1st Appellant was concerned, the Commissioner of Police, Akwa Ibom State, was not a privy to it. He is strictly a third party to the master and servant relationship/agreement before the 1st Appellant and the Respondent. So to the issue of service on the Commissioner of Police, the so called “withdrawal of service letter” did not arise. The record this shows that the same was never communicated to the Respondent in any form. For the purposes of clarification, I would like to refer to the letter of “Suspension From Duty Without Pay”, Exhibit “G”, issued to the Respondent. Let us find out what the word “suspension” connotes? Black’s Law Dictionary 6th Edition at p.1447 defines it, as “temporary withdrawal or cessation from employment as distinguished from permanent severance that is accompanied by removal”. Also, in Akinyanju vs. UniIlorin (2005) 7 NWLR Part 923 p. 87, it is said to mean, “to defer, lay aside, or hold in abeyance. It, also, means “to halt midway but certainly not to bring to an end or terminate”.
The primary question to be determined now is, “what is the status of an employee during suspension”? For proper perception of the issue, I would, refer to Orojo’s Book on Nigeria Commercial Law and Practice Vol. 1 p. 552 paragraph 171 where he stated that subject to agreement, a contract subsists until determination. He cited the case of Adekunle vs. Western Region Finance Corporation (1963) NWLR where the Plaintiff was suspended from work on allegation that he was responsible for the loss of some money belonging to the Defendant. He was subsequently charged with criminal offences relating to the loss but was discharged and acquitted for lack of sufficient evidence. The Defendant then purported to dismiss the Plaintiff with retrospective effect from the date of his suspension. The Plaintiff claimed the salary for the period of suspension and succeeded. Fatayi-Williams, J referred to Re Rubel Bronze & Metal Co. & Vos., and to Hanley vs. Pease & Partners Ltd where Rowlatt, J. said
”The employer has no implied power to punish the workman by suspending him for certain period of his employment, the contract subsisting all the time… “He held that, “by merely suspending him from performing his duties, the Defendant Corporation has allowed the contract of employment to subsist during the relevant period and it is not open to them to put an end to it retrospectively twenty-eight months later. They cannot, in my view, escape liability for paying the Plaintiff’s salary during this period by dismissing him retrospectively”.
He further referred to Freedman on the Modern Law of Employment at p. 486 where he said, inter alia,
“Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract; in such a case the employee-may sue for wages he has lost by being suspended”.
Also, in Olafimihan vs. Nova Lay-Tech Ltd (1998) 4 NWLR Part 547 p. 518, Mohammed JCA stated thus;
”The words used in Exhibit 4 are indeed quite plain and clear. Right from its heading, the letter was simply conveying to the Appellant his indefinite suspension without pay from the services of the Respondent. It is the law that where a document is clear, the operative words in it should be given their simple and grammatical meaning. See Union Bank of Nig. Vs. Ozigi (1994) 3 NWLR Part 333 p. 385 403. There is nothing in this document to justify any imputation into it that the Appellant was being dismissed for gross misconduct. This is because according to the unchallenged and uncontradicted evidence on record, the Respondent as employer of the Appellant did not ever accuse the Appellant of any short coming in the discharge of his duties not to talk of any misbehaviour amounting to gross misconduct that could warrant the dismissal of the Appellant before he was served with the suspension letter, Exhibit 4. For the foregoing therefore, I am of the view that the suspension letter Exhibit 4 did not amount to a letter of dismissal since it is quite clear from the evidence on record that the Respondent did not at any time exercise its power under Regulation 9(A) and 29 (4) of the conditions of service Exhibit 5 dismiss the Appellant for his alleged role in failing to stop the strike action by the junior workers of the Respondent.
However, taking into consideration that the letter of suspension Exhibit 4 was issued in complete violation of Regulation 29 (3) of Exhibit 5, the conditions of service which empowered the Respondent to suspend any worker without pay for only a maximum of two weeks, the fact that Exhibit 4 not only suspended the Appellant indefinitely without pay from the services of the Respondent but also restricted his presence at the premises of the Respondent company, showed the clear intention of the Respondent to dispense with the services of the Appellant” .
It is rather surprising and mind-boggling that throughout the Respondent’s testimony before the trial Court, he was not confronted with Exhibit “T”; which allegedly terminated his employment. The said document only surfaced and was tendered during D.W.2’s evidence for the defence.
Also, in the instant case there is no evidence before the trial Court that there were any laid down conditions between the parties stating clearly the right of the 1st Appellant to suspend the Respondent without pay. The 1st Appellant did not tender through D.W.2 any document embodying such conditions of service. What it amount to is that the 1st Appellant did not possess the right under the said contract of employment to suspend the Respondent indefinitely without pay. Chitty on Contracts is very explicit on this saying that there is no implied contractual right on the part of the employer to suspend the employees without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract agreement of the parties. See Chitty on Contracts, 25th Edition p. 683 para. 3456.
It needs to be clearly stated that the only, purported notice given was to the Commissioner of Police, Akwa Ibom State, when the 1st Appellant was acting under the illusion that the Respondent was a Supernumerary Police Officer of the Nigerian Police Force. Section 11 (1) and (2)(d) of the labour Act, 1974 which regulates or protects this class of oral contract says that either party to a contract of employment may terminate the contract on the expiration of one month notice given by him to the other party of his intention to do so. He may also waive his right to notice on any occasion, or from accepting a payment in lieu of notice.
I must observe, with due respect, that, there is no iota of evidence on the record which established that the Respondent has been served with any Notice of Termination of his employment or that the 1st Appellant had any power under their oral agreement to suspend the Respondent. It follows therefore, that by the letter of indefinite suspension without pay, given to the Respondent, together with the distinct propositions of law made in Adekunle vs. Western Region Finance Corporation (supra) and Olafimihan vs. Nova lay -Tech. Ltd (supra), the Respondent’s contract of employment still subsists. The employment has not been determined at all, let alone the disengagement being proper. Accordingly, issue NO.2 will be and is hereby resolved against the Appellant.
On the award of the Respondent’s remuneration, as special damages, it is my view that, since the Respondent has not been served with any notice of termination of his employment and this Court having held that the 1st Appellant had no right in law to suspend the Respondent without pay unless it was expressly contained in the terms and condition of his employment, the Respondent is entitled to his monthly and yearly remunerations/allowances right from the date of issuance of the said letter of suspension till the date of judgment of the trial Court. See Adekunle v. Western Region Finance Corporation (supra) and Olafimihen vs. Nwalay Tech. Ltd (supra).
On the award of the N2 million general damages, the Appellants’ Counsel argued that it must fail for being gratuitous as the Respondent made no claim for such relief.
I must observed that what was typed on the record of appeal was N2, 000.00 but, when the total sum awarded by the trial Court is scrutinized, one would agree that it was the sum of N2, 000, 000.00 which the Court actually awarded against the 1st Defendant for its unbecoming haste in removing the Respondent from employment.
The award of damages is squarely within the domain of trial Courts and, as such, an appellate Court will not interfere with it, except for certain reasons. Before an appellate Court can properly interfere with any decision of a trial Court on the amount of damages awarded, it must be convinced either:
(a) that the trial Court in assessing the damages applied a wrong principle of law or
(b) that the amount awarded was so extremely high or so small as to make it in the judgment of the appellate an entirely erroneous estimate of damages to which the Plaintiff is entitled.
In the instant case firstly, the Respondent did not claim nor did he lead any evidence on general damages for his employers’ “unbecoming haste in removing him from employment”. It should be noted that the N50 million general damages claimed by the Respondent was for assault, wrongful detention, wrongful suspension from duty, false accusation of a criminous charge, wrongful deprivation of his remuneration and for various losses (emotional, health, financial and physical) suffered. The Respondent did not seek for general damages for wrongful termination of – his employment or removal from office.
Furthermore, this is a case bordering on master and servant relationship whereby the Respondent has been suspended since 2001 without pay. The trial Court rightly awarded the Respondent his salary and allowances for the period of suspension under the head of special damages.
The law is, whereas the employee can recover his remuneration within the period of suspension, he cannot claim in addition to the sum due, general damages. It is a known principle of law that an employee is, however, not entitled to general damages as in a claim for tort. He is only entitled to what he would have earned throughout the period of suspension which was never authorized by the conditions of his employment. Even if the trial Court had believed that the Respondent was hastily removed from office, the only sum that would have accrued to him was what he would have earned over the period required to lawfully remove him from office. In the instant case, there was no basis whatsoever for the award of the general damages. The learned trial Judge with due respect, obviously applied a wrong principle of law in this direction that an employee who had recovered his remuneration within the period of suspension under a contract of employment is at the same time entitled to an award of general damages. The law is that where an employee is not paid for a period of employment in respect of which he is entitled by the contract to be paid a fixed amount, his claim is not one for damages but a debt, namely, payment for an agreed sum, since he is entitled to be paid according to the agreed rate. The employee cannot claim in addition to the sum due, damages for delay in paying the salary.
Also, a Plaintiff who has been adequately compensated under one head of damages cannot claim damages under another head in respect of the same claim.
It is trite law that the award of general damages is improper when the quantum of loss is ascertainable as it will amount to double damages or double compensation.
The law, therefore, will not allow a litigant who made a claim for specific performance or specific losses suffered by him to add another figure under the head of general damages.
It is absolutely wrong in law for the trial Court after awarding the sum of N4,386, 000.00 being the Respondent’s salaries and allowances from the date of his suspension till the date of judgment to turn round and award general damages for the 1st Appellant’s haste in removing the Respondent from his employment. The reason given for such an unguarded award was most unfounded since the trial Court found out that the Respondent’s employment was not terminated by Exhibit “G”, the letter of suspension. The award of the sum of N2 million as general damages in the present case is baseless.
This is because if this award of general damages is sustained, it, definitely, would amount to double compensation which the Court frowns at. The principles governing the grant of general damages in torts cannot be interchangeable with the principal governing the grant of damages in actions based on contracts. Generally, this principle of assessment of damages for breach of contract, which is applied by the Courts is restitution in integrum. See the cases of Adekunle v. Rock view Hotel (2004) 1 NWLR Part 853 p. 161, Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 p. 25, Ezeani vs. Ejidike (1964) 1 ALL NLR 402, Oluigbo vs. Umeh (2004) 6 NWLR Part 870 p. 621.
It is on this issue of general damages of N2 million awarded to the Respondent I would, with due respect, beg to differ. It is unsustainable in law and I hereby refuse to abide by the order in the lead judgment affirming the same as awarded by the trial Court.
Having stated that, issue NO.3, therefore, succeeds in part. Consequently, and for the reasons stated herein and all the reasons given in the lead judgment, the main appeal, to my mind, succeeds in part. The main appeal is allowed only on the issue of award of general damages of N2,000,000.00 made by the trial Court.
Therefore, the award of general damages in the sum of N12,000,000.00 (Two Million Naira) made by the trial Court is hereby set aside. However aside, apart from the issue of the general damages of N12,000,000.00 awarded against the Appellant which, I have, for the reasons given above, set I agree that the main appeal, as it relates to the award of special damages of N4,386,000.00 being the salaries/allowances of the is hereby dismissed. Respondent from 1/11/2000 till the date of judgment of the lower Court, the issue of whether the Respondent was an employee of the 1st Appellant and whether his service were properly disengaged, will be and is hereby dismissed.
As for the cross-appeal, I agree that it ought to fail as the issue of payment of Terminal Entitlements and Separation Benefits of the Respondent at the trial Court. It is the decision of this Court that service on the Respondent of the letter of “Indefinite Suspension Without Pay” Respondent has not arisen even though they were also sued for by the does not tantamount to service of the requisite notice of termination of his employment. So, if by the perception of this Court, the Respondent’s employment has not been determined or termination, on what premise then, would payment of the “Terminal Entitlement and Separation Benefits of the Respondent be based. By the record of appeal before this Court, the Respondent has not been served with any Notice of Termination of his employment.
Interestingly, the said “letter of Indefinite Suspension without Pay” was declared illegal, null and void by the trial Court, although the findings of the trial Court appear inconsistent as to whether the employment of the Respondent has been determined at all, or was properly terminated or has not been terminated. To my mind, the Respondent’s employment still subsists until notice of termination of his employment is served on him in accordance with the Labour Act, 1974. Therefore, having regard to the above findings in respect of payments of the “Terminal Entitlements and Separation Benefits” of the Respondent, the cross-appeal the cross-appeal hereby fails.
On the other hand, since the Respondent/Cross Appellant had pursued those reliefs at the Court below and failed and has now appealed against the findings of the Lower Court in that respect, it is my humble view that those items fall under the head of special damages which the Respondent
could not prove by credible evidence at the trial Court. Consequently, the Cross-Appeal will be and is hereby dismissed.
There will be no order as to costs.
Appearances
Seye Opasanya, Esq. with him, M. Amadi, Esq.,For Appellant
AND
U. D. A. Imeh, Esq.For Respondent
