Stephen Okongwu Vs Nigerian National Petroleum Corporation (1988)

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NNAEMEKA-AGU, J.S.C.

The only issue in this appeal is that of quantum of damages. Learned Senior Advocate for the respondent has, rightly I hold, conceded it that the respondents were in breach.

The plaintiffs claim before the High Court was for the sum of N3.5 Million being general damages for breach of contract of employment. The defendant had offered to the plaintiff, a highly qualified Oil Engineer, an employment as a Production Programme Engineer (Technologist) in the defendant’s refinery at Warri. The letter of offer, Exh. D., dated 19th September, 1976 was accepted by the plaintiff by his letter, Exh. E, dated 5th October, 1976.

As Exh. D. required the plaintiff lo commence work immediately, he had to pay one month’s salary in lieu of notice to get out of his employment as a Senior Lecturer at the Petroleum Training Institute, Warri. The plaintiff travelled to the head office of the defendant on the 6th of October, 1976, to report for duty.

When the plaintiff reported to the defendant’s Project Manager, Mr. Kufeji, in Lagos on the 6th of October, 1976, his troubles began, Several and conflicting reasons were given why the plaintiff could not commence work: but as these go to the question of liability which is not in issue in this appeal, I need not go into them here.

For purposes of assessment of damages, it is, however, necessary to state that three offers were made to the plaintiff on behalf of the defendant corporation. These offers and their rejection or acceptance by the appellant, as the case may be, formed the real back-bone of the difference between the decision of the learned trial Judge and the Court of Appeal on the Quantum of damages awarded to the appellant. While the learned trial Judge held that the appellant was right to have refused to accept the third one made on 29/7/79 by Mr. Marinho who was both a Director of the respondent corporation and the Chairman of the Petroleum Training Institute, Warri, the Court of Appeal held that he should have accepted it.

I shall come back to these when I shall discuss the issue of mitigation of damages. Suffice it to say that, having rejected this offer, plaintiff went to court on 30th January, 1978. Hard as the plaintiff tried to get an alternative employment, he could not get one until 15/8/78 when he secured employment as the Head of Chemical Engineering, Bida College of Technology.

After hearing, the learned trial Judge, Eluaka, J., found the defendant corporation liable. Also, based on the salary he would have earned for 22 months, that is between the date of the breach on 6th October, 1976 and the date he secured another employment on 15th August, 1978 at N7,764.00 per annum he awarded to the plaintiff N14,234.00 as damages.

On appeal to the Court of Appeal, Benin Division, Coram, Omo Eboh, Okagbue and Ikwechegh, JJ.C.A., that Court held that the plaintiff had a duty to have mitigated his loss and should have, pursuant thereto, accepted the third offer of Mr. Marinho. The date of his rejection to accept that offer, therefore, terminated the liability of the defendants. They, therefore, reduced the period for the assessment of damages to ten months. Their Lordships also held and I agree with them, that there is no reason why the sum of N7 ,764.00 which was plaintiffs salary in his new employment at Bida should have been used as the basis for assessment of damages. They therefore based their computation on the sum of N7,104.00 per annum, according to Exh. D and therefore awarded him the sum of N5,920.00 over months.

The plaintiff (hereinafter called the appellant) has further appealed to this Court. Arising from the grounds of appeal filed, the issues for determination were framed by the learned counsel, Senator N.N. Anah, S.A.N… on his behalf thus:

“3.1 Whether the learned trial Judge made a finding that the appellant mitigated damage up to the time he secured a new job after the receipt of Exhibit ‘M’ and whether the Justices of the Court of Appeal were right to reverse this finding, if made, and limit the period of mitigation to the time when the appellant received Exhibit ‘M’ without showing that the finding was perverse or not the proper exercise of judicial discretion.

3.2 Whether the appellant’s loss of salary will be computed or assessed on N7,104.00 per annum or on N14,000.00 per annum at least from April, 1977 which was admitted by the defendants as the appellant’s salary under the salary structure in the Oil Industry at the time he was offered appointment by the defendants.

3.3. Whether in computing or assessing the damage suffered by the appellant account should not be taken of the one month salary which the appellant paid in lieu of notice in order to take up the appointment which the defendants later breached.

3.4 Whether the appellant is not entitled to general damages.