U.T.C. (NIG) PLC v. PETERS
(2022)LCN/5164(SC)
In The Supreme Court
On Friday, February 04, 2022
SC.17/2010
Before Our Lordships:
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
U.T.C. NIGERIA PLC APPELANT(S)
And
SAMUEL PETERS RESPONDENT(S)
RATIO:
MASTER-SERVANT RELATIONSHIP
Generally speaking, master-servant relationship is the association between one in authority and a subordinate – especially between an employer and an employee. And employer-employee relationship is the association between a person employed to perform services in the affairs of another who in turn has the right to control the person’s physical conduct in the course of that service. See Black’s Law Dictionary 9th edition page 1402. OLUKAYODE ARIWOOLA, J.S.C
DECLARATORY CLAIMS
Declaratory claims are said to be invitations to the Court to make pronouncement on the legal position of a state of affairs and it is by itself not enforceable in law. Declaratory judgment therefore is a remedy for determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. It is granted as a judicial discretion only in circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into account. OLUKAYODE ARIWOOLA, J.S.C
THAT SPECIAL DAMAGES
Ordinarily, the law is clear that special damages must not only be specifically pleaded, they must be strictly proved by credible evidence of particular losses. See Luke N. Onyiorah Vs. Bendict C. Onyiorah & Anor (2019) LPELR 49096 (SC); Okafor & Ors Vs. Obiwo & Anor (1978) LPELR – 2413 (SC). OLUKAYODE ARIWOOLA, J.S.C
RE-EVALUATION OF EVIDENCE BY AN APPELLATE COURT
The law is settled that re-evaluation of evidence by an appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the appellate Court can re-evaluate the whole facts and come to an independent decision from the trial Court. The appellate Court is in a good position to embark on the exercise where for instance:
(a) the trial Court’s evaluation of the evidence is clearly perverse;
(b) the trial Court drew wrong inferences from the totality of the evidence adduced; and
(c) the trial Court applied wrong principles of the law to accepted facts in the case. See Onyekwuluje & Anor Vs. Animashaun & Anor. (2019) LPELR – 46528 (SC), Jibrin vs. FRN (2018) LPELR – 43844 (SC); Ali vs State 2015 LPELR- 24711 (SC). However, where the evaluation of evidence by the lower Court is found to be properly done, there would be no need for an appellate Court to embark on the exercise. JOHN INYANG OKORO, J.S.C
GENERAL DAMAGES
General damages are such as the law will presume to be the direct, natural, or probable consequence of the act complained of. Special damages, however, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, therefore, they must be claimed specially and proved strictly – Akinfosile V. Mobil Oil (Nig.) Ltd. (1969) NSCC (Vol. 6) 376. In this case, the two lower Courts found that there was no evidence to prove special damages claimed by the Appellant. AMINA ADAMU AUGIE, J.S.C.
OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Port Harcourt division of the Court of Appeal, delivered on Thursday 19th February, 2009 – Coram: Kudirat M. O. Kekere-Ekun, Ibrahim M. M. Saulawa, Ejembi Eko, JJCA (as they then were) all now Justices of the Supreme Court.
The respondent herein, was the Plaintiff at the trial Court. By his amended statement of claim dated 28th November, 1995, the Plaintiff claimed in paragraph 15 as follows:
(a) A declaration that the purported summary dismissal of the Plaintiff by letter dated 30th April, 1984 is wrongful and unlawful and against the laid down conditions of service and the practice in the Defendant’s company.
(b) That the Plaintiff is therefore entitled to full benefits of all his entitlements in the UTC pension fund, the National Provident Fund Contributions.
(c) An injunction to restrain the defendant from tampering with the status quo of the parties vis-a-vis entitlement prior to the date of summary dismissal letter dated 30th April, 1984.
And or in the Alternative:
(d) The Plaintiff claims N750,000.00 as damages for the unlawful and wrongful dismissal of the Plaintiff by letter dated 30th April, 1984.
The trial Court in its considered judgment delivered on 17th November, 2000 gave judgment in favour of the respondent against the appellant.
Dissatisfied with the decision of the trial Court led to an appeal by the appellant herein to the Court below. In its judgment delivered on Thursday 19th February, 2009, the appeal succeeded in part. The judgment of the trial Court which declared the dismissal of the respondent by letter dated 30th April, 1984 wrongful was affirmed. The award of N750,000.00 as general damages in favour of the respondent was set aside. The Court below then held that the respondent was entitled to his relief (b) above in paragraph 15 of the amended Statement of Claim. However, prayer (c) of the appellant’s counter-claim succeeded and the appellant was awarded general damages in the sum of N75,000.00 for the wrongful detention of its vehicle by the respondent.
Further dissatisfaction led to the instant appeal by the appellant on three grounds filed on 10th March, 2009 at the Court below. Pursuant to the rules of this Court, briefs of argument were filed and duly exchanged by parties. Appellant’s brief of argument was filed on 25/1/2010. Respondent’s brief of argument was filed out of time on 29/3/2010 but deemed properly filed and served on 9/11/2021, the day the appeal was heard.
In the appellant’s brief of argument, the following issues were distilled for determination of the appeal.
Issues for Determination
1. Whether or not in a master and servant relationship, declaratory reliefs are grantable for wrongful dismissal.
2. Whether or not the learned Justices of the Court of Appeal were right in dismissing the appellant’s counter-claim when the respondent did not join issues with the appellant on the claims made against the respondent in the counter-claim.
In his own brief of argument settled by Akuro R. George Esq., the respondent formulated two issues from the three grounds of appeal filed by the appellant. The said two issues are couched in the following words:
1. Whether a declaratory relief can be granted in a master and servant relationship.
2. Whether the Court of Appeal was wrong in refusing to grant the appellant the amount claimed as special damages and the relief for restitution.
As can be seen clearly, the two respective issues of both parties are saying the same thing though differently couched.
In arguing the appeal, learned counsel for the appellant linked issue 1 to grounds 1 and 2 of the Notice of Appeal. He referred to the testimony of DW1 – one Michael Itsibor to the effect that the relationship between the parties was that of master and servant. He referred to pages 26-27 of the record. He contended that throughout his cross-examination he was not contradicted on the nature of the relationship between the parties as pleaded by the appellant and supported by the evidence of DW1. He referred to Exhibit ‘C’ which provides for the determination of the relationship or contract of employment by either party giving the necessary notice or salary in lieu of notice. He contended that the remedy available for wrongful dismissal is what is anticipated by the parties in a master-servant relationship, which is salary in lieu of notice. Learned counsel submitted that the Court below erred in law when it failed to follow the decision in Akinfosile Vs. Mobil Oil (Nig) Ltd (1969) 6 NSCC 376 at 380. He contended that damages for wrongful dismissal are not at large. And that the quantum of damages is dependent on the required length of notice. That it was the duty of the respondent to furnish the Court with materials needed for the assessment of damages. But in the absence of those materials, the claims for damages and or declaratory reliefs ought to fail. He relied on Morohunfola Vs. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506 at 519; Amodu vs. Amode & Anor (1990) 5 NLR (Pt.250) 356 at 373.
Learned counsel contended that the Court below ought not to have upheld the relief sought by the respondent in paragraph 15(b) of the amended statement of claim which was in the nature of a declaratory relief. He submitted that declaratory reliefs are not proper in a claim for wrongful dismissal in a master-servant relationship.
He urged the Court to hold that the relationship between the parties being that of master-servant, the only available remedy to the respondent was damages for wrongful dismissal. And having failed to provide the trial Court with a specific claim and the basis for the assessment of the quantum of damages, the Court below ought to have dismissed the entire claims.
In arguing issue no. 1, learned counsel to the respondent contended that it is discernible from the grounds of appeal filed by the appellant that its grouse is based on the decision of the Court below as it relates to the respondent’s relief for his entitlements under the UTC Pension Fund and National Provident Fund. Learned counsel further contended that the relief for entitlement due to the respondent is predicated on the declaration made with respect to the unlawfulness of the summary dismissal. He opined that the relief by itself is not a declaratory relief but a consequential one. He submitted that a consequential order is one giving effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that judgment or order duly prayed for and made. He relied on Dantsoho Vs. Mohammed (2003) 6 NWLR (Pt.817) 457 at 489, Agu Vs. Odofin (1992) 3 NWLR (Pt.229) 350, (1992) 3 SCNJ 161 and Akinbobola Vs. Plisson Fisko Nigeria Ltd (1991) 1 NWLR (Pt. 167) 270.
Admitting without conceding that the part of the judgment appealed against is declaratory, learned counsel submitted that the Courts are not in any way precluded by law from making declarations in respect of master and servant relationships. He further submitted that a declaratory relief by its inherent nature is a remedy for the determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. He relied on Oduyoye Vs. Lawal (2002) 3 NWLR (Pt.807) 432 at 497.
Learned counsel contended that the determination of whether or not an employment has been lawfully determined is by its very nature a declaratory relief. It is for this reason that the Courts have on several occasions granted declaratory reliefs in cases bothering on master and servant relationship. He relied on Chukwumah Vs. Shell Petroleum Development Company (1993) 4 NWLR (Pt.289) 527.
Learned counsel further contended that the fact that the relationship between the disputing parties, in this case, relates to master and servant relationship was never in contention and indeed was of common ground to the parties.
In the final analysis, learned counsel submitted that declaratory reliefs are available and can be granted by the Court in Master and Servant relationship. He urged the Court to resolve the issue against the appellant.
From the available evidence, certain facts are not in dispute between parties, hence they are deemed admitted. They include the following:
– The respondent was at all material times an employee of the appellant – UTC Nigeria Ltd having joined the company’s employment on 2/10/1962 as a Secretary/Typist and rose to the rank of Departmental Store Manager (Executive) on April, 1982.
– The respondent spent 22 years in the employment of the appellant.
– The relationship that existed between parties was that of Master-Servant.
– The respondent was summarily dismissed in writing with effect from 30th April, 1984.
– Condition of Service of the appellant is contained in Exhibit C.
– The respondent’s summary dismissal by the appellant was declared by the trial Court as wrongful and unlawful and against the laid down conditions of service and the practice in the appellant’s company.
The first issue being contested by the appellant is whether or not in the Master-Servant relationship that existed between parties declaratory reliefs are grantable for wrongful dismissal.
Generally speaking, master-servant relationship is the association between one in authority and a subordinate – especially between an employer and an employee. And employer-employee relationship is the association between a person employed to perform services in the affairs of another who in turn has the right to control the person’s physical conduct in the course of that service. See Black’s Law Dictionary 9th edition page 1402.
It is clear from the record that the respondent had sought, before the trial Court, for declaration that his purported summary dismissal by the appellant in April 1984 was wrongful and unlawful among other things.
Declaratory claims are said to be invitations to the Court to make pronouncement on the legal position of a state of affairs and it is by itself not enforceable in law. Declaratory judgment therefore is a remedy for determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. It is granted as a judicial discretion only in circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into account.
As earlier stated, the respondent was a servant of the appellant as the Master. He served the appellant for twenty-two (22) years prior to his said summary dismissal. He considered his dismissal as wrongful and unlawful but wanted the Court to so declare putting all the required and relevant facts before the Court. A wrongful act is characterized by unfairness or injustice. Contrary to law.
In the judgment of the trial Court, it was found as follows on page 49T of the records:
“In the suit before me, the plaintiff was employed by the Defendant and the conditions of service are as stated in Exhibit “C” – this is the document that binds the relationship between the parties. The Exhibit “C” is a mere condition of service drawn up by the Defendant to guide the employment terms and conditions. My attention has not been drawn to any statute under which the plaintiff is employed. I have not been shown either that the relationship has any statutory flavor. I have no doubt in my mind including that the relationship between the plaintiff and the defendant does not go beyond mere Master/Servant relationship.”
The Court later found and held that the dismissal of the respondent as defendant was wrongful and unlawful. In other words, the trial Court granted the declaratory relief sought in paragraph 15(a) of the amended Statement of Claim. That is, the respondent’s summary dismissal by the appellant was declared wrongful and unlawful. Generally, it is the practice that a declaratory relief will be granted where the plaintiff is entitled to relief in the fullest meaning of the word. See Guaranty Trust Co. Vs. Hamay (1951) 2 KB at 572, Chukwumah Vs. Shell Petroleum (Nig) Ltd (1993) LPELR 864 (SC). There is no doubt that the trial Court was right in granting the declaratory relief sought by the respondent on the wrongful act of his summary dismissal. The Court below was therefore correct in affirming the grant of the declaratory relief sought by the respondent on his summary dismissal. In the circumstance, issue no.1 is resolved against the appellant.
Issue no.2 of the appellant is whether or not the learned Justices of the Court of Appeal were right in dismissing the appellant’s counter-claim which the respondent did not join issues with the appellant on the claims made against the respondent in the counter-claim.
It is clear on record that in paragraph 21 of the appellant’s counter-claim at page 11 of the record of appeal, the appellant indeed counter-claimed as follows:
(a) N1,500,000.00 being the current value of Peugeot 504 GR with Registration No.RV6922PD;
(b) N41,087.67 from its store for which the respondent was the Store Manager;
(c) N100,000.00 being general damages for wrongful detention of the car.
The total amount of special damages claimed was N1,641,087.00.
In the alternative to paragraph 21 (a) the appellant sought an order for the delivery of the vehicle in a perfect mechanical state.
There is no doubt that the Court below did not outrightly dismiss the appellant’s counter-claim as alleged.
Ordinarily, the law is clear that special damages must not only be specifically pleaded, they must be strictly proved by credible evidence of particular losses. See Luke N. Onyiorah Vs. Bendict C. Onyiorah & Anor (2019) LPELR 49096 (SC); Okafor & Ors Vs. Obiwo & Anor (1978) LPELR – 2413 (SC).
The Court below truly found that the failure of the respondent to file a defence to the counter-claim, in the circumstances of this case would not relieve the counter claimant of the burden to establish his claims. The Court below had found as follows in the counter-claim:
“The only witness for the appellant was DW1 – the Accounts Supervisor. In proof of paragraph 21(b) he tendered Exhibit L, the Stock taking report prepared by one J. O. Onakunle, who did not testify. On this document, the learned trial Judge held thus at pages 49-49w of the record:
It is to be noted that the plaintiff has contended that he was not invited when the stocktaking was made but all keys were taken away from him. Unfortunately this J. O. Onakunle was not called to clear this serious allegation. In the face of this serious doubt, can we say there was indeed a loss in the Departmental Store at Port Harcourt. Can we say that Exhibit L is credible documentary evidence without subjecting it to a proper test through the maker? It is my view therefore that no special damages based on Exhibit L has been proved against the plaintiff.”
Where a trial Court has satisfactorily performed its function evaluating evidence and ascribing probative value thereto, an appellate Court would not interfere with its findings on such evidence.
Still on the counter-claim by the appellant, the Court below found that there was no iota of evidence whatsoever in proof of the special damages claimed for the value of the Peugeot 504 GR. But the fact that the said vehicle was still in possession of the respondent was not in dispute.
Upon review of the pleadings and the findings of fact from the available evidence, the Court below found that the appellant had established the wrongful detention of the vehicle – Peugeot 504, GR by the respondent.
Even though the Court below had found that the appellant failed to prove the special damages in its reliefs (a) and (b), the appellant was found to have proved relief (c) – general damages for wrongful retention of the vehicle. The trial Court was therefore rightly adjudged to be in error in dismissing the counter-claim in its entirety. The Court below then granted the appellant the counter-claim for wrongful detention of its Peugeot 504 GR which was in possession of the respondent. Hence the appeal succeeded in part at the Court below. The appellant was therefore wrong to generally say that the counter-claim was dismissed by the Court below. There was misconception of the judgment of the Court of Appeal. The second issue is also resolved against the appellant.
In the result, the two issues for the determination of this appeal are resolved against the appellant. The appeal therefore fails and is liable to dismissal.
Accordingly, the appeal is dismissed. The judgment of the Court below stands and it is affirmed.
Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: My learned brother, Olukayode Ariwoola, JSC obliged me a copy of the lead judgment just delivered. I must say that I am totally in agreement with the conclusion reached by my learned brother. This appeal is devoid of merit. I shall only make a few comments of my own in support of the judgment.
The law is settled that re-evaluation of evidence by an appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the appellate Court can re-evaluate the whole facts and come to an independent decision from the trial Court. The appellate Court is in a good position to embark on the exercise where for instance:
(a) the trial Court’s evaluation of the evidence is clearly perverse;
(b) the trial Court drew wrong inferences from the totality of the evidence adduced; and
(c) the trial Court applied wrong principles of the law to accepted facts in the case. See Onyekwuluje & Anor Vs. Animashaun & Anor. (2019) LPELR – 46528 (SC), Jibrin vs. FRN (2018) LPELR – 43844 (SC); Ali vs State 2015 LPELR- 24711 (SC). However, where the evaluation of evidence by the lower Court is found to be properly done, there would be no need for an appellate Court to embark on the exercise.
In the instant appeal, upon the declaratory relief granted the Respondent being affirmed, to wit: that the dismissal of the Respondent from his employment of 22 years was wrongful and unlawful, the Court below went further to review the Appellant’s counter-claim for wrongful detention of its Peugeot 504 GR and granted it N75,000.00 as general damages. This Court cannot undertake the exercise of re-evaluating that evidence having found that the Court below did the proper thing. There is really nothing more to add.
It is my judgment therefore that this appeal has no merit. I also dismiss it. The judgment of the Court below delivered on 19th February, 2009 is hereby affirmed.
Appeal Dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Ariwoola, JSC, and I agree with him that this appeal lacks merit. It is well settled that a master has the right to terminate his servant’s employment for good or bad reasons or for no reasons at all. Except in employment governed by statute wherein the procedure for employment and discipline of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the Parties agreed to be master and servant. In this case, the relationship between the parties is that of master/servant, it is not statutory.
The Respondent, who was an employee of the Appellant for 22 years, was questioned about the sale of essential commodities to certain customers, which sale had previously led to the arrest and the arrest of his Area Manager. He was subsequently given a letter dated 30/4/1984 summarily dismissing him from the Appellant’s employment, and he challenged the dismissal in Court.
The Appellant’s case is that the Respondent was negligent in his duties, had continuously caused loss to the Appellant and was involved in malpractice. The Appellant also contended that the Respondent had unlawfully detained the official Peugeot 504 GR vehicle assigned to him for his official duties, therefore, it counter-claimed inter alia for the current value of the said vehicle or its return. The trial Court granted all the reliefs claimed by the Respondent and dismissed the Appellant’s counter-claim. The Appellant then appealed to Court of Appeal, and in its judgment delivered on 19/2/2009, the said appeal succeeded in part. The Court of Appeal found that the Appellant proved its claim for the wrongful detention of its car by the Respondent and awarded general damages without directing the return or the restitution of the car or payment of its market value.
The Appellant has now come before this Court, and one of the issues for determination in this appeal is whether the Court of Appeal was right in refusing to grant the amount claimed as special damages and the relief for restitution. It contends that the Court of Appeal ought to have ordered the Respondent to pay the current market value or return the car to it in perfect mechanical state.
It submitted that the Court of Appeal was in grave error when it awarded only general damages in respect of its counter-claim contrary to the decision in Kosile V Folarin (1989) 3 NWLR (Pt. 107) 1, wherein this Court held that:
Proof of special damages is not radically different from the general method of proof in civil cases. It is equally proved on a balance of probability. Where the Plaintiff pleads special damage with particularity and gives some evidence of it and the Defendant does not challenge or contradict the evidence given, he has discharged his onus of proof and, unless the evidence is of such a quality that no reasonable Tribunal can accept it, it ought to be accepted. This is because where evidence called by the Plaintiff in a case is neither challenged nor contradicted, the onus of proof is discharged on a minimal of proof.
The Respondent, on the other hand, countered that the counter-claim being an independent action, has to be proven to the satisfaction of the Court through credible evidence, that the Appellant’s counter-claim has not been proved by any shred of evidence and that since the Appellant did not plead or lead any evidence to show that the car was in a perfect mechanical state, there was no basis, therefore, for the Court of Appeal to make an order of specific restitution.
Now, general damages are such as the law will presume to be the direct, natural, or probable consequence of the act complained of. Special damages, however, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, therefore, they must be claimed specially and proved strictly – Akinfosile V. Mobil Oil (Nig.) Ltd. (1969) NSCC (Vol. 6) 376. In this case, the two lower Courts found that there was no evidence to prove special damages claimed by the Appellant.
It comes down to concurrent findings, which this Court is always hesitant to interfere with, and the Appellant has not provided this Court with any reason to disturb the concurrent findings of the two lower Courts on special damages.
It is for this and the other well-marshalled reasons in the lead judgment that I also dismiss this appeal and affirm the decision of the Court of Appeal.
ABDU ABOKI, J.S.C.: I had read in draft, the lead judgment prepared by my learned brother, OLUKAYODE ARIWOOLA, JSC, just delivered. I agree with the analyses of the issues and conclusions on them as contained in the judgment that this appeal is devoid of merit. I only add a few words by way of emphasis, on the 1st issue raised by the Appellant, which questioned “Whether or not in a master servant relationship, declaratory reliefs are grantable for wrongful dismissal?”
The Respondent’s story is that he was an employee of the Appellant for 22 years. He rose through the ranks from the position of Secretary Typist on 2nd October 1962 to Departmental Store Manager (Executive) on 1st April, 1982. On 27th April, 1984 he was invited to the Appellant’s Head Office in Lagos. He was questioned regarding the sale of essential commodities to certain customers, which sale had previously led to his arrest and the arrest of the Appellant’s Area Manager. It was the Respondent’s case that after the discussion with the Management in Lagos he was given a large envelope containing mail to be handed over to the Area Manager upon his return to Port Harcourt. That on the same day of his return, he was given a letter dated 30th April, 1984 summarily dismissing him from the Appellant’s employment. Aggrieved by his dismissal, the Respondent instituted this action as afore said. He contended that his dismissal was contrary to his conditions of service and therefore, illegal and wrongful.
On the other hand, it was the Appellant’s case that the summary dismissal of the Respondent was proper and in accordance with the company’s conditions of service. It was contended that the Respondent was negligent in the performance of his duty, had continuously caused losses to the Appellant and was involved in certain malpractices particularly concerning the sale of Essential Commodities in bulk, to members of the public, which sale at the time, was restricted by the Rivers State Government Directive to Limited Liability Companies. The Respondent allegedly breached the policy, as Appellant’s Super Stores Manager. He was arrested and the goods belonging to the Appellant were seized and auctioned, and the Appellant was deeply embarrassed by the incident.
The Appellant found the Respondent’s defence unsatisfactory and he was summarily dismissed. The Appellant also contended that the Respondent had unlawfully detained the official Peugeot 504 GR vehicle assigned to him for his official duties, hence its counter-claim, inter alia, for the current value of the car or its return.
It is now beyond any argument that in a master and servant relationship, which is devoid of statutory flavour, as in the instant case, the termination of the employment of an employee by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract of employment. It must, however, be always remembered the parties are bound by the terms of their contract voluntarily entered into. Once there is a compliance with the terms of the contract of employment, the termination can never be said to be wrongful. However, where there is a written provision for terminating the contract of employment, and the termination is carried out in a manner which is contrary to the terms of the agreement between the parties, the employer must pay damages for the breach of the agreement between the parties. The employee however is not entitled to general damages as in a claim in tort. He is only entitled to what he would have earned over a period required to lawfully terminate his employment.
See Garuba v. K.I.C. Ltd (2005) LPELR 1310 SC.
In Shitta-Bey v. Federal Public Service Commission (1981) LPELR-3056 SC, this Court posited that:
“At common law, in a master/servant relationship devoid of statutory flavour, an employer has the right to summarily dismiss an employee on grounds of misconduct or wilful disobedience. However, where conditions of service exist between the employer and the employee the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure.”
It follows therefore, that an employee (as in the instant case), who complains that he was wrongly terminated has the onus to place before the Court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer.
See also Ziideeh v. Rivers State Civil Service Commission (2007) LPELR-3544 SC.
It is not in dispute that the Respondent was promoted to the post of Department Store Manager vide Exhibit A dated 25/3/82. By virtue of Exhibit A, the Respondent was promoted to “Executive Grade”. The provisions of ‘Exhibit C (Conditions of Service for Senior Staff of the appellant company) are therefore applicable to him. Articles 10 and 11 of Exhibit C provide as follows:
“10. Discipline
The Manager of each department is vested with the responsibility of managing and disciplining his staff. Whenever it is intended to dismiss a Senior Staff member, the Manager of the Department should intimate the Director of Administration and Development of the circumstances of the case. The staff member concerned should be invited to give reasons in writing why a disciplinary action should not be taken against him.
11. Dismissal
Staff dismissal is the most serious disciplinary measure the Company can inflict on Staff members guilty of serious offences such as gross misconduct, fraud or abuse of office. Such staff dismissal takes immediate effect, therefore the dismissed staff is not entitled to any payment of salary in lieu of notice. Furthermore, he/she forfeits any entitlement to service gratuity, and the Company’s contribution to his/her Pension/Retirement Scheme.”
The Court below considered the provisions of Articles 10 and 11 of Exhibit C (reproduced above) and Exhibit D (the letter of dismissal) and also Exhibits G, K and M (correspondence relating to a complaint of insubordination against the Respondent in 1975) respectively, and came to the following conclusion:
“I have thoroughly examined the evidence on record and I am in complete agreement with the learned trial Judge that there was no evidence to show that the Respondent’s Department Manager made a report of the allegations of fraud, insubordination and disobedience to Director of Administration and Development. There was also no evidence that the Respondent was confronted with the allegations against him and invited to give reasons in writing why disciplinary action should not be taken against him as stipulated in Article 10 of Exhibit C. I agree with the learned trial Judge that there is nothing in Exhibit E indicating the nature of the meeting or what the Respondent was to expect. As correctly observed by His Lordship, the Appellant did not tender any record of what transpired on that day. There is also no evidence before the trial Court that the Respondent was confronted with the allegations against him and invited to give reasons in writing why disciplinary action should not be taken against him in compliance with Article 10 of Exhibit C. As regards Exhibit L, the Audit Report, the Respondent specifically pleaded and testified that the audit was not conducted in his presence. His evidence in this regard stands unchallenged. The author of Exhibit L did not testify. Certainly, Exhibits G, K and M which all arose out of the Respondent’s alleged insubordination in 1975 were not shown to have been the grounds for his dismissal in 1984, nine years later. I agree with learned counsel for the Respondent that by his subsequent promotion to the executive position of Department Store Manager in 1982, Exhibits G, K and M were no longer relevant. In light of all the observations made above, it is evident that the lower Court was right when it held at page 49S of the record thus: “Where a contract had been properly terminated intention and notice become irrelevant. But where the Defendant pleads that a Plaintiff is being removed for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. The Court frowns at refusing fair hearing to a person whose right is allegedly violated. The Appellant has failed to adduce any reasons why the finding of the learned trial Judge in this regard should be disturbed.”
As rightly pointed out in the above excerpts of the judgment of the Court below, the Appellant did not follow the procedure laid down by it, vide its Exhibit C, in the dismissal of the Respondent. The very essence of Article 10 of Exhibit C which regulated the contract of service between the Appellant and the Respondent is fair hearing. The Appellant is bound to follow its own procedure for dismissing the Respondent.
It is on the basis of the Appellant violating its own procedure of dispensing with the services of the Respondent in its employment that renders the dismissal unlawful.
The Appellant herein is questioning whether a declaratory relief is grantable in a summary dismissal of a master/servant relationship. What is the declaratory relief sought by the Respondent?
“A declaration that the purported summary dismissal of the Plaintiff by letter dated 30th April, 1984 is wrongful and unlawful and against the laid down conditions of service and practice of the Defendant’s company.”
Having held that the dismissal of the Respondent was unlawful, I answer this issue in the affirmative, and hold further that the Court below rightly affirmed the decision of the trial Court.
It is for all these, and the more detailed reasoning contained in the lead judgment of my learned brother OLUKAYODE ARIWOOLA, JSC, that I also adjudge this appeal to be devoid of merit and worthy of dismissal. I accordingly dismiss it.
I also abide by the consequential orders, (if any) in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice OLUKAYODE ARIWOOLA, JSC. I agree with the reasoning, conclusions and decision therein.
Appearances:
Biola Oyebanji, Esq., with him, Chijioke Nwachukwu, Esq. For Appellant(s)
No Legal representation For Respondent(s)
