Gabriel Ativie V. Kabelmetal Nig. Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C.

In the High Court of Lagos the plaintiff who is the appellant, herein claimed against the defendant which is the respondent herein:

(a) A declaration that the termination of his appointment on the 5/7/90 was wrongful, illegal, null and void and therefore of no effect.

(b) A declaration that he (plaintiff) was still in the employ of the defendant/respondent company and as such he was entitled to his monthly salary(s) and allowances and an order to restore same from the 51h of July 1990 until he voluntarily retires from the service of the defendant company.

(c) That he (plaintiff) was entitled to the sum of N10,000,000.00 from the defendant/respondent as general and special damages with interest thereon at 21% banking rate till the said sum is paid.

The claim was filed on the 26th October 1990. Filed along with the writ of summons was a 12 paragraph Statement of Claim. The defendant/respondent filed an 11 paragraph statement of defence on the 10/1/91. In reaction thereto the plaintiff/appellant filed a seven paragraph Reply to the defendant statement of defence.

The matter went on trial. In his judgment on the 23rd of September 1994 the learned trial judge S.O. Adagun J. allowed the claim and entered judgment for the Appellant which he expressed as follows:

“I am inclined to believe that the Plaintiff had suffered personal injuries and suffering which it could be calculated from the day of his wrongful termination of his employment up to date, to the tune of N2,000,000.00, the amount which is considered reasonable to be paid to the Plaintiff as general damages. In addition the plaintiff is to be reinstated to his employment and pay him all his dues. The defendant company is to pay the amount of N2,000,000.00 to the plaintiff only for his sufferings to the injuries accidentally met in the course of his employment. ”

The defendant/respondent was not satisfied and went on appeal to the court below. By its judgment on the 24th of April, 2001 the appeal was partially allowed. The Court of Appeal per Sanusi, J.C.A. concluded in the following terms:-

“In consequence, the appeal succeeds in part and is partially allowed. The decision of the trial court to the extend that the termination of the respondent’s appointment by the Appellant was wrongful is affirmed. All other awards made by the trial court are hereby set aside. For the avoidance of doubts, the respondent is entitled to be paid two months salary and all other allowances payable to him upon termination of his appointment as provided in the terms and condition of the contract of service. These should be paid to him accordingly. The trial court’s order reinstating the respondent and award of N2m general damages and all other awards made by the lower court are hereby set aside.”

The plaintiff was aggrieved by the decision and has come on appeal to this Court. In the notice of appeal dated 23rd of July 2001 the appellant raised two grounds of appeal. Before this Court, briefs were filed and exchanged. The undated appellant’s Brief filed on the 15/10/02 was prepared by N.A. Okoye of Abumchukwu Okoye & Co. Two issues for determination were formulated therein as follows:

1. Whether the Lower Court was right when it held that the appellant’s case was on contract and not in tort
2. Whether the appellant is entitled to the award of the sum of N 11,325.45 and N2m awarded by the High Court as special and general damages and/or whether same is a windfall

Oladosu Ogunniyi prepared the respondent’s amended brief of arguments also undated but filed on the 2213/07. In it the Respondent formulated the following single issue for determination.

Whether having found that the termination of the appointment of the appellant was wrongful, the lower Court was right in setting aside the award of N2million as general damages for the breach, considering the facts and circumstances of the case and the status of the appellant

On behalf of the appellant Mr. Okoye proffered the following arguments. On the appellant’s first issue counsel referred to paragraphs 5 and 11 of the Statement of Claim and paragraphs 2, 3, 4, 5 and 7 of the Reply to the statement of defence and submitted that the cause of action is in tort. It was argued that the Appellant not only pleaded but also tendered evidence of personal injuries which was accepted by the trial Court and which formed the basis of the awards made. There was therefore no basis for the interference in the damages awarded by the trial Court, Appellant contended. Learned counsel referred to the statement of the lower Court to the effect that there was no justification for the award of damages for personal injuries in a claim of purely wrongful termination of appointment and submitted that the finding was not supported by the evidence before the Court. It was argued that the damages awarded by the trial Court were neither windfall nor gratuitous.