OLAJIDE OMOJOLOMOJU v. GROUP SECURICOR NIGERIA LIMITED & ORS
(2013)LCN/6456(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2013
CA/L/10/2011
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
OLAJIDE OMOJOLOMOJU Appellant(s)
AND
1. GROUP SECURICOR NIGERIA LIMITED
2. OUTSOURCING SERVICES LIMITED
3. ROOLF KRUGER Respondent(s)
RATIO
WHETHER OR NOT AN EMPLOYER HAS A RIGHT T0 HIRE AND FIRE AN EMPLOYEE
It is also trite that an employer has a right to hire and fire and can determine any employee’s contract of service for good, bad or no reasons at all. Where it does so in breach of the terms of the contract, it can only be liable to pay damages therefore as provided in their contract, and where the wrong is as to length of notice to be given, the reasons (sic) of damages is payment in lieu of notice at the rate of the employee’s salary for the appropriate period. Osisanya vs. Afribank (2007) 1 – 2 SC 317; Iyere vs. Bendel Feed & Flour Mill Ltd. (2008) 7 – 12 SC 151; Ativie vs. Kabelmetal Nig. Ltd. (2008) 5 – 6 SC (Pt.11) 67. PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant herein as Claimant at the High Court of Lagos, Ikeja Judicial Division in his writ of summons and statement of Claim dated and filed on 19/6/07 but duly amended, with the amended processes filed on 29/9/09 claimed against the defendants/Respondents as follows:
i. A declaration that the purported termination of the Claimant’s appointment as conveyed by the Defendant’s letter dated the 8th day of February, 2007 is wrongful, null and void and of no effect whatsoever and howsoever.
ii. AN ORDER of the court directing the Defendants to pay the Claimant the sum of US$147,260.46 representing 2% of US$382,112,36 being 2% commission on contract sum on the CBN armoured personnel contract facilitated by the Claimant or its equivalent in naira at the prevailing CBN exchange rate at the time of judgment and with interest at the rate of 2% per annum from 1st day of February, 2007 until judgment and interest on the judgment debt at 21% per annum until it is fully paid.
iii. Special and general damages in the sum of N10 million
iv. Cost of action.
The case of the Appellant as deduced from his pleadings is that he was employed by the Respondents in 2004 initially as a Joint Operation Officer in the 2nd Respondent and was later transferred to the 1st Respondent as Marketing Executive vide a letter dated 5/7/05. By the letter (contract) of employment, Exhibit C3 he was entitled to a salary of N50,000.00 per month and 2% commission on any contract he facilitates into the companies. The Appellant claimed he duly performed his duties to the satisfaction of the Respondents. He was responsible for scouting for and obtaining six contracts for the Respondents. For the sixth contract obtained from CBN, he had personally enlisted the help of two gentlemen – Paul Ikhizamah and Prince Adeniyi whom he introduced to the Respondents. The Appellant claimed his commissions were duly paid to him by the Respondents in respect of five of the contracts. But shortly after securing the Central Bank of Nigeria Armoured Personnel Carriers Contract for the sum of US$7,382,112.36 and 50% of the Contract sum was paid into the Respondents’ bank account, the Respondents out of the blue handed over to the Appellant a letter of termination of his appointment. The Appellant claimed the Respondents failed to pay his 2% commission in respect of the CBN contract though the gentlemen he introduced to the Respondents received their own commissions. After his protests went unheeded, the Appellant filed the present suit claiming as set out above.
In their Statement of Defence, the Respondents denied that the Appellant facilitated the CBN contract. They claimed the Appellant is entitled to 2% commission on any contract he signs into the company. They claimed the Appellant did not sign the CBN contract and was not the person who introduced the facilitators of the said CBN contract. They claimed the Appellant was relieved of his job because of the Respondents’ internal administrative directive to prune down their marketing staff strength. He was paid his full entitlements under the contract of employment. The Respondents claimed the Appellant in an e-mail message expressed his happiness at the cordial working relationship he had with the Respondents but turned volt face to file this suit seeking declarations that the termination of his employment was unlawful and demanding the payment of some money as commission for a contract that he was not even privy to.
At the hearing, the Appellant called two witnesses CW1 and CW2 and tendered several exhibits. The Respondents also called two witnesses DW1 and DW2 and tendered some Exhibits. At the close of evidence the parties filed written addresses which were duly adopted. The learned trial Judge Alogba J in his judgment delivered on the 21st day of June, 2010 dismissed the Appellant’s claims in their entirety.
The Appellant dissatisfied with the judgment on 21/7/10 filed a notice of appeal containing five grounds of appeal out of which the Appellant in his brief of argument formulated five issues as follows:
1. Whether Exhibit C3 or C14 is the proper document that guides Appellant’s terms of employment and whether Appellant’s claim is distinct from the said document.
2. Whether the Appellant has gone out of his terms of service as contained in Exhibit C3 by working with Prince Jide Adeniyi and Paul Ikhizamah to source contract for the Respondents and whether such claim is part of Appellant’s pleading and evidence.
3. Whether the Appellant has not proved his case when same is unchallenged and uncontradicted and same is supported by the Respondents’ evidence.
4. Whether the contradiction in the evidence of the Defence (Respondent) assisted the case of the Appellant.
5. Whether the Appellant has established a wrong by the Respondents to entitle him to relief sought,
The Respondents in their brief of argument formulated three issues for determination as follows:
(1). whether the learned trial judge was right in law to have held that the payment of one month salary in lieu of notice as shown in column 5 of Exhibit C14 is apparent atonement for the Claimant/Appellant’s alleged wrongful termination.
(2). Whether the Claimant/Appellant placed credible evidence in proof of his claim before the trial court that he sourced the Central Bank of Nigeria contract.
(3). Whether the Claimant/Appellant have proved his claim of special and general damages before the court.
With all due respect to learned counsel for the Appellant the issues as formulated by him are inelegantly framed. They are prolix and not compliant with the rules governing formulation of issues for determination. Five issues out of five grounds of appeal are unwieldy. The issues ought to be less than the grounds of appeal. Most importantly, a proper issue for determination in an appeal must be such a proposition of law or of fact or both, so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. See Kalu v. Odili & Ors. (1992) 5 NWLR (Pt.240) 130. The determination of some of the issues formulated by the Appellant may not necessarily result in judgment in any one’s favour. The issues formulated by the Respondent satisfy this requirement of the law and they are more succinct. I shall therefore adopt those issues in the determination of this appeal.
ISSUE 1:
Whether the learned trial judge was right in law to have held that the payment of one month salary in lieu of notice as shown in column 5 of Exhibit C14 is apparent atonement for the Claimant/Appellant’s alleged wrongful termination.
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellant in his brief submitted that Exhibit C3 is the fulcrum of relationship between the Appellant and the Respondents. He argued that it is the document that guides the relationship of employer and employee between the parties and was duly signed by both parties and consequently binding on them.
Learned counsel submitted that the Respondents agreed with the Claimant throughout that the basis and terms of Appellant’s employment is Exhibit C3 and that no other document can supersede this document in determining the terms of employment between the parties. He contended that Exhibit C14 does not show any term of employment between parties but merely shows the amount of commission the Appellant claimed from the Respondents as agreed to in Exhibit C3 and the one the Respondent approved excluding the commission on Central Bank of Nigeria Armoured Personnel Carriers contract which is the bone of contention in this suit.
Counsel contended that the learned trial Judge having rightly concluded that the notice given to the Appellant was short of two weeks by two days, the Appellant having served for over two years, the termination was wrongful under Exhibit C3. The learned trial Judge was therefore wrong to have fallen back on payment of one month’s salary in lieu of notice under column 5 Exhibit C14 to infer atonement for wrongful dismissal of the Appellant. Counsel relying on several authorities argued that falling back on Exhibit C14 would amount to importation of extraneous matters into the contract of employment Exhibit C3. Counsel further contended that Exhibit C3 and C14 cannot be read jointly or together to give effect to the termination of the Appellant’s employment as Exhibit C14 is not part of the conditions of employment in Exhibit C3. Counsel urged the Court to resolve this issue in favour of the Appellant and to hold that the termination of the employment is wrongful for non conformity with the provisions of Exhibit C3 the only document that guides the Appellant’s employment.
RESPONDENTS’ ARGUMENTS:
Learned counsel for the Respondents in his brief submitted that it is trite that an employer has a right to hire and fire and even determine any employee’s contract of service for good, bad or no reason at all. Counsel contended that the Respondents employed the Appellant as a Marketing Executive but due to a lull in the business of the Respondents, they decided to reduce the work force by terminating the employment of four staff including the Appellant herein. Most importantly, in terminating the Appellant’s employment, the Respondents paid fully the agreed entitlement under the contract. Counsel cited the case of NITEL V. AWALA (2004) 1 NLR @ page 86 ration 12, and also ONALAJA V. AFRICAN PETROLEUM (1991) 7 NWLR (Pt.2060) 691 where it was held that “an unwilling employer will not be compelled to keep an employee be no longer want”. Counsel further submitted that where an employee’s appointment is terminated in breach of terms of the contract, it can only be liable to pay damages for the breach as provided in their contract and where the wrongful termination relates to length of notice given, the remedy is payment in lieu of notice at the rate of the employee’s salary for the appropriate period. Counsel referred to the following cases:
1) OSISANYA V. AFRIBANK (2007) 1 – 2 PAGE 317
2) IYERE V. BENDEL FEED & MILL LTD. (2008) 7 – 12 SC 151
3) ATIVIE V. KABEL METAL NIG. LTD. (2008) 5 – 6 SC PT. 11 PAGE 67
Counsel submitted that the Appellant himself tendered Exhibit C14 and gave evidence in support of same that he received his entitlement from the Respondents after his contract of employment was terminated. He also tendered Exhibit C3, the appointment letter or agreement which clearly shows that at the point of termination of his employment the Appellant was entitled to two (2) weeks notice. Exhibit C11 is the termination letter of the Appellant. The combined effect of exhibits C3, C14, C11 is that the employment of the Appellant was terminated less two (2) days on the length of notice that ought to have been given by the Respondent but also Exhibit C14 shows that the Appellant was paid in addition to his salary for the month of termination another one (1) month salary in lieu of the notice. The Appellant himself as CW1 gave evidence of all these and acknowledged receipt of payment. Pages 102 -103 of the record particularly his cross-examination where he said “After termination of my contract I was paid my entitlement save the 2% on the armoured carrier contract.”
Counsel submitted that it therefore follows that the employment of the Appellant was validly terminated in accordance with the contract of agreement save for the 2 two days short of the 14 days, the Appellant was entitled to by way of notice. But based on the authority of the Supreme Court case of OSISANYA V. AFRIBNK IYERE V. BENDEL FEES & FLOUR MILL LTD. AND ATIVIE V. KABELMETAL NIG. LTD. (Supra) which among other decision said that where the wrong is as to length of notice to be given, the remedy is payment in lieu of notice at the rate of the employee’s salary for the appropriate period. Counsel submitted that the Appellant acknowledged collecting one month salary in lieu of notice along with other entitlement as shown in column 5 Exhibit C14 including full salary for January 2007 which is adequate atonement for the Claimant. Counsel submitted that the Respondents failed to give the appropriate length of notice before termination of the employment but made good the default by payment of salary in lieu. Learned counsel submitted in respect of this issue that the trial judge was correct in his evaluation of the evidence before him and that the judgment he delivered was very sound in law.
RESOLUTION OF ISSUE 1:
With due respect to learned counsel for the Appellant, his contentions on issue 1 show an obvious misconception of the law and principles guiding wrongful termination of employment. As ably pointed out by learned counsel for the Respondent a contract of employment without statutory flavour can be determined at any point in time for any reason and for no reason at all provided the terms of the contract of service are complied with. Fakuade v. O.A.U.T,H.C, MgI Board (1993) 5 NWLR (Pt 291) 47, All the necessary documents touching on this employment were tendered in evidence by the Appellant. Exhibit C3 the contract of employment at page 14 of the Record provides:
“NOTICE
During the first three months of your service, your appointment is subject to twenty four (24) hours written notice of termination by either the Company or yourself. Notice may not be given over weekends or on public holidays. Thereafter the notice period in terms of Section 11 of the Labour Act No 21 of 1974 will be as follows:
One week where the contract has continued for a period of more than three months but less than two years.
Two weeks where the contract has continued for a period of two years but less than five years.
One month where the contract has continued for five years or more.
The period of notice excludes the day on which notice was given.”
The evidence on record is that the Appellant had worked for the Respondents for a period of over three years. He was therefore entitled to two weeks notice. The notice given was short of the two weeks by two days. The Respondents none the less paid a full month’s salary in lieu of notice. The requirement of the law is fully satisfied. The Appellant’s appointment was terminated in accordance with the law. The first relief claimed by the Appellant in his amended statement of claim was for a declaration that the purported termination of the Claimant’s appointment as conveyed by the Defendant’s letter dated the 8th day of February 2007 is wrongful, null and void and of no effect whatsoever and howsoever. There was no way this relief could have been granted because in terminating the appointment, the Respondents fully complied with the terms of agreement, Exhibit C3. In his judgment at page 144 of the Record, the learned trial Judge stated:
“The law is that no employee will be forced on an employer and vice versa. See Obu vs. Stauss. It is also trite that an employer has a right to hire and fire and can determine any employee’s contract of service for good, bad or no reasons at all. Where it does so in breach of the terms of the contract, it can only be liable to pay damages therefore as provided in their contract, and where the wrong is as to length of notice to be given, the reasons (sic) of damages is payment in lieu of notice at the rate of the employee’s salary for the appropriate period. Osisanya vs. Afribank (2007) 1 – 2 SC 317; Iyere vs. Bendel Feed & Flour Mill Ltd. (2008) 7 – 12 SC 151; Ativie vs. Kabelmetal Nig. Ltd. (2008) 5 – 6 SC (Pt.11) 67.
Exhibit C14 tendered by the Claimant himself faulted his claim to damages for wrongful termination of his employment and doomed it to failure, appropriate quantum of damages having been paid therefore. Claimant tried to link the termination with the avoidance of Defendants’ to pay him the agreed 2% commission on the Central Bank of Nigeria Contract allegedly sourced by him. Without mincing words, that is a distinct claim, and the 1st Defendant was perfectly entitled to disengage the Claimant without prejudice to their contract on commission for contracts sourced by him for it. I therefore discountenance Claimant’s claim in this matter, to the contrary. In sum total I dismiss Claimant’s claim for wrongful termination of his employment.”
The views expressed by the learned trial Judge are perfectly in order and in consonance with the law. Issue one is resolved in the positive and against the Appellant.
ISSUE TWO:
Whether the Claimant/Appellant placed credible evidence in proof of his claim before the trial court that he sourced the Central Bank of Nigeria contract.
APPELLANT’S ARGUMENTS:
As deduced from his submissions on his issues two and three, the arguments of learned counsel for the Appellant on Respondents’ issue two are that since it is part of the pleadings of the Appellant that he enlisted the service of Prince Adeniyi and Paul Ikhizamah to the knowledge of the Respondents in the pursuit of the CBN contract and that he was not paid his 2% commission on the contract and he also led evidence to that effect; the Appellant must be taken to have proved his case because the Respondents did not challenge or contradict the evidence. Counsel submitted that the Appellant’s two witnesses were not cross examined nor their evidence contradicted and that it is trite law that such evidence must be accepted by the court and acted upon. He relied on OYIBO IRIRI & ORS. VS. ESERORAYE ERHUHORARE & ANOR (1991) 3 SCNJ 1.
Learned counsel further submitted that failure to cross examine the Claimant’s witnesses on the totality of the evidence that the Claimant introduced the pair of Prince Adeniyi and Paul Ikhizamah to the Defendants which introduction led to the Central Bank of Nigeria Armoured Personnel Contract being given to the Defendants left the evidence uncontradicted and therefore established. Counsel argued that the trial court erred to have concluded that the Claimant did not prove his case even when the court admitted that the Defendants were economical with the truth in the evidence they led with regard to the relationship between the Claimant and the two gentlemen Adeniyi and Ikhizamah.
RESPONDENTS’ ARGUMENTS:
Learned Counsel for the Respondent on issue two submitted that the Appellant did not adduce credible evidence and facts in proof of his claim of 2% commission on the Central Bank of Nigeria contract. Counsel submitted that it is common ground between the parties that in addition to his emolument under the contract of employment, the Appellant was entitled to 2% commission on the value of any contract sourced by him for the company. Both parties were also ad-idem that he sourced some contracts for the company and had been paid the agreed 2% commission. Exhibits C6, C7, C8, C13 (item 1 and 2), C14 all attest to this and it is the Central Bank of Nigeria armoured Personnel Carriers contract that is the crux of the problem between both parties.
Counsel submitted that the Appellant claims that he “scouted” and made necessary contacts for the contracts for the 1st Respondent and that to get same he had enlisted and introduced Paul Ikhizamah and Prince Adeniyi to the company with an agreement that they should all work together to source contracts which collaboration paid off effectively. Counsel referred to paragraphs 7 and 8 of the Amended Statement of Claim page 93 of the Record. Counsel argued that the Appellant deposed to same in paragraphs 8 and 9 of exhibit C1 his Written Statement on Oath but that in paragraph 10 of the written deposition he added that notwithstanding enlisting both men, the Respondent still agreed to pay him commission as contained in his employment letter. Page 97 of the Record. Learned counsel submitted that this is an addition in the terms of his employment letter Exhibit C3 and not part of his pleadings. Counsel contended that his pleadings simpliciter is that “he was entitled to 2% commission on contract he “facilitates” into the companies. See paragraph 6 of the Amended statement of claim page 92 of the Record. Exhibit C3, the contract of Employment, at the section on “salary” also provides that in addition to his monthly salary a commission of 2% on any sale (contract) made is payable. Counsel submitted that it is very clear that both parties agreed that contracts brought by the claimant/Appellant will earn him 2% of the contract value. Counsel further submitted that the initial evidential burden lies on the Appellant to prove that he was the one who sourced that CBN contract for the 1st Respondent and that the burden does not shift until he has done so. It is only where he has discharged that evidential burden that the burden will now shift to the Respondent to disprove same. See section 137(1) and (2) of the Evidence Act, and case of BUHARI V. OBASANJO 2005 13 NWLR Pt. 941 Pg. 1. Also ORJI V. DORJI ILE MILLS 2008 5 – 6 SC 1. 83. Counsel submitted that the Appellant in his evidence said that he sourced the contract along with Adeniyi and Ikhizamah, but only Adeniyi was paid for the job vide Exhibit C12. On the other hand, the Respondent pleaded in paragraph 5 of the Statement of Defence that the Claimant/Appellant was only entitled to 2% commission on any contract he signs into the company and in paragraphs 6 and 18 denied that he signed the central Bank of Nigeria contract or brought the facilitators of the said contract and so was not entitled to any commission. Counsel submitted that it is clear that the parties joined issues as to who brought the contract to the company.
Counsel contended that the proof or disproof of this singular issue will determine the claim of the Appellant on the contract. In essence therefore it is the Appellant who must prove that he brought the contract to the company and if he is successful in that, his commission automatically attaches and inures to him.
Learned counsel submitted that the issue is not whether or not the duo of Adeniyi/Ikhizamah were introduced to the 1st Respondent by the Appellant and the alleged or seeming contradictory position of defence witnesses 1 and 2 on the point but whether indeed the Appellant either single handedly (and indeed he said he did it along with Adeniyi/Ikhizamah) or in collaboration with those two facilitated the award of the contract to the Respondents. Counsel argued that apart from the Appellant’s assertions in Exhibit C1, he has produced no other proof that he along with the two gentlemen got the CBN contract for the Respondents. Counsel submitted that the Appellant did not discharge the burden of proof necessary to obtain a favourable judgment at least on the balance of probability by virtue of Section 137(1) of the Evidence Act. Counsel contended that the Appellant did not state what part he played in sourcing the contract. He did not state the steps he took and the contacts he made which resulted in the award of the contract to the 1st Respondent. Counsel referred to PATKUN V NIGER SHOES LTD (1998) 5 NWLR (Pt 93) 138 RATION 4 where the Supreme Court held that “a cause of action includes all those things necessary to give a right of action and every fact which is material to be proved to entitle the Plaintiff to succeed.” Counsel submitted that evidence of the above mentioned facts would have tilted the scale of preponderance of evidence to the side of the Appellant. On the contrary the Appellant admitted that he was not the only one who worked on getting the contract for the 1st Respondent. The Respondents, on the other hand denied his participation at all in sourcing the contract. DW2, the Managing Director of the 1st Respondent in his evidence stated that the company did all the negotiations on its own without Appellant’s involvement or knowledge thereof, and that the Appellant only became aware of the contract after it was entered into and publicized by the company. Counsel submitted that this crucial evidence of DW2 was not debunked by the Appellant at all either directly or indirectly. Counsel argued that the Appellant had a duty to show at least minimally what role he played in winning the contract for the company, beyond merely saying that he along with some others got the contract for the company. Counsel submitted that even though the Appellant stated that the Respondents agreed that despite introducing the other two men into the show, he would still be paid 2% commission on any contract sourced, Exhibit C3, his contract of employment did not say so. Further that fact was not pleaded in his amended statement of claim at pages 92-94 of the Records. Accordingly the testimony to that effect in his written deposition Exhibit C1 goes to no issue as evidence led on fact not pleaded. YUSUF V. ADEGOKE 2007 4 SC (1) 26 and AMODU V. COMMANDANT POLICE COLLEGE 2009 7 SC 1. Learned Counsel that the learned trial Judge rightly held that the Appellant failed to prove that he played any role towards securing the CBN contract and urged the Court to uphold the view of the learned trial Judge.
RESOLUTION OF ISSUE TWO:
The Respondents in their pleadings and evidence led in the lower court made some contradictory claims that cast doubts on their credibility. In paragraph 5 of their statement of Defence at page 37 of the Record, the Respondents averred:
“The Defendants aver in reference to paragraphs 5 and 6 of the Statement of Claim that the Claimant was only entitled to 2% commission on any contract he signs into the company.”
The evidence of the two witnesses called by the Respondents is also to the effect that the Appellant was entitled to commission in respect of contracts signed into the Company. But under cross-examination it became obvious that all contracts including those in respect of which commission had already been paid to the Appellant were signed by the Managing Director of the 1st Respondent and the respective clients. None was signed by the Appellant as he was considered too junior. The Appellant signed no other form of agreement for his 2% commission. Whenever he sourced a contract, he was acknowledged as the one who brought it and paid his commission which he normally acknowledged. It is obvious then that the attempt of the Respondents to claim that the Appellant cannot claim commission for the CBN contract because he did not sign the contract failed because all the others in respect of which commissions were paid to him were not signed by him. The contract of employment Exhibit C3 did not state that the contract sourced by the Appellant should be signed by him. The other issue that dented the credibility of the Respondents’ witnesses is the conflict in their evidence as regards the relationship between the Appellant and the other two gentlemen Prince Adeniyi and Paul Ikhizamah who allegedly assisted in sourcing or actually sourced the CBN contract. Both DW1 and DW2 stated in their witness depositions that there is no connection between the Appellant and the two gentlemen, Adeniyi and Ikhizamah and that the two gentlemen had been friends of the Respondents even before the employment of the Appellant. DW1 under cross-examination at page 106 of the record said:
“We know Prince Adeniyi as the person who brought the contract, Claimant was very close friend of Prince Adeniyi. It was rumoured that Prince Adeniyi complained that his commission on the contract should be different from that of the Marketing Manager. I do not know the marketing manager who brought him. Only Prince Adeniyi was paid commission in respect of the contract. The Marketing Manager was not paid either.”
DW2 under cross-examination at page 108 of the Record insisted that Prince Adeniyi and the Claimant were not close friends. Of these inconsistencies, the learned trial Judge rightly observed that neither the matter of whether Adeniyi and Ikhizamah were introduced to the Respondents nor the nature of the relationship between the two gentlemen and the Appellant is material to the primary question of whether the Appellant is entitled to 2% commission on the CBN contract. The efforts of the Respondents to undermine or deny the relationship between the Appellant and the two gentlemen leave some doubt as to their credibility in their denial that the Appellant introduced the gentlemen to them. But the question is, assuming the Appellant did in fact introduce the gentlemen to the Respondents and the gentlemen sourced the CBN contract, does that introduction entitle the Appellant to the 2% commission under his contract of employment? The Learned Trial Judge was rightly of the view that the primary question can only be resolved by looking at the terms of the contract of employment and then the evidence led by the Appellant as to his entitlement to the commission. The relevant paragraph of the contract of employment Exhibit C3 at page 13 of the Record provides:
“SALARY
Your monthly salary will be N50,000.00 per month (Fifty thousand naira). There will be a commission of 2% on every sale (contract) made and is payable once, after three months of the resumption of the contract.”
The terms as set out above are clear and unambiguous. 2% commission on every sale (contract) made as applicable b a Marketing Manager means exactly what it says. so for the Appellant to be entitled to 2% commission on the CBN contract he must adduce evidence that he was responsible for the making of the contract, or as put by the Appellant in his amended statement of claim that he facilitated the contract. From his written deposition and evidence led the only claim by the Appellant to facilitating the CBN contract is that he personally enlisted and introduced Paul Ikhizamah and prince Adeniyi to the company with an agreement that they should all work together to source for more contracts and that the collaboration paid off effectively. In the face of the denial by the company that he introduced the two gentlemen to the Company and that in fact he knew nothing about that particular contract until after its negotiation and publication, the Appellant as rightly found by the trial Judge ought to have done more to prove that he indeed made the contract for the Company or facilitated in making it. In the absence of any evidence in proof of the agreement with either the Respondents or the two gentlemen that they would work together to source for contracts and that commission will be paid to all of them, the contract of employment Exhibit C3 did not envisage the sourcing of the contracts by the Appellant with other persons to whom commission would also be payable. To be entitled to commission under his agreement, the Appellant should not have allowed interaction between the Respondents and the gentlemen to such a level as to raise doubts as to who indeed sourced the contract. At any rate the burden remained on the Appellant to adduce evidence in proof of what actions he took along with the gentlemen to secure the contract. The least he could have done is to call at least one of the gentlemen to back up his story as to the role he played in getting the contract especially given the rumour said to be making the rounds that Mr. Adeniyi had complained that his commission should be different from that of the Marketing Manager. The fact that the Appellant had averred in paragraph 10 of his written deposition that notwithstanding enlisting both men, the Respondent still agreed to pay him commission as contained in his employment letter shows that the Appellant is aware that he went outside his contract of employment in pushing for commission because he enlisted men who actually sourced the contract. Still he adduced no evidence in proof of the agreement by the Respondents to still pay him the commission. To make matters worse, there was evidence that one of the men Prince Adeniyi had been paid commission for the contract. The Appellant did not challenge the payment of commission to Prince Adeniyi but his case was that commission should also be paid to him without proving what he actually did to be entitled to the commission. Contrary to the contention of the Appellant that the learned Judge ought to have found for him because the Respondents failed to discredit his witnesses through cross-examination, the evidential burden did not shift to the Respondents. The learned trial Judge was right in his conclusion that the Appellant failed to discharge the initial burden of adducing evidence that he assisted in sourcing or facilitating the contract. He failed to adduce credible evidence in proof of his claim before the trial court that he sourced the Central Bank of Nigeria contract. It is only after the Appellant had discharged that initial burden that the onus will shift to the Respondents. Issue two must consequently be resolved in the negative against the Appellant.
ISSUE THREE:
Whether the Claimant/Appellant proved his claim of special and general damages.
In view of the fact that issues one and two have been resolved against the Appellant, the issue whether the learned trial Judge was right in dismissing the Appellant’s claim of special and general damages is a moot point. However the Appellant made no submissions on the issue. The Respondent on the issue restated the well settled principle of law that special damages must be specifically pleaded and strictly proved by evidence. Learned counsel ended his submissions this way:
“The Appellant merely stated in paragraph 17(b) of the Amended Statement of Claim pg.94 and 98 of the printed record this:
“Special and general damages in the sum of N10 million” without more fall short of the requirement of the law on same and having failed to discharge the burden, his claim for special and general damages must also fail, the claim of interest on the monetary claims, those primal claims having been faulted and being consequential on them, must fall too. See the case of VEEPEE INDUSTRY LTD. VS. COCOA INDUSTRY LTD. 2008 4 – 5 SC 1, Pg.116.”
The learned trial Judge was right in dismissing the Appellant’s claim for special and general damages as no particulars of any special damage was pleaded or proved. The Appellant having failed to prove his claims is not entitled to any general damage. In conclusion, this appeal lacks merit. It is hereby dismissed. The judgment of Alogba J. of the High Court of Lagos State, Lagos Judicial Division in suit No ID/782/2007 delivered on the 21st day of June 2010 is hereby upheld. I make no order as to costs.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my brother Iyizoba, JCA. I agree with his conclusion.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with my learned brother, Iyizoba, J.C.A., that the appeal lacks merit and hereby dismiss the appeal and uphold the judgment of the court below (Alogba J.) I too make no order on costs.
Appearances
O.O. Adeluyi Esq.For Appellant
AND
A.N. MekwenyeFor Respondent
