African Newspapers Ltd & Anor V.mr. Jacob O. Akano (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

On 19.4.2004, the High Court of Justice of Oyo State sitting at Ibadan (Olakanmi, C.J.) entered judgment for respondent against appellants in a claim for wrongful dismissal from employment brought by the former against the latter, agitating the present appeal.

The evidence before the court below as sifted from the bundle of documents compiled by appellants with the leave of the Court granted on 28.2.08, comprising the pleadings, the judgment appealed against and the notice of appeal, indicated respondent was at all material times in the confirmed employment of appellants as a circulation manager (Night Duty) he served in various capacities and in several parts of Nigeria until 14.12.1988, when appellants dismissed him from service on the allegation of stealing fifty (50) copies of the Nigerian Tribune newspaper; an allegation respondent had vehemently denied.

The court below heard evidence, admitted some documents as Exhibits and took final addresses from the respective learned counsel before it gave judgment declaring the dismissal of respondent from appellants’ employment wrongful and awarding N10, 000 general damages to respondent for the wrongful dismissal.

A notice of appeal conveying two grounds of appeal dated 12.5.2004, was filed challenging the judgment. Two issues for determination were distilled from the two grounds of appeal in the appellant’s brief of argument dated 1.3.2008, but filed on 18.3.08, as follows:

“2.02 whether the learned trial judge was right when he held that the dismissal of the Respondent by the Appellants from employment was wrongful on the ground that the Appellants did not ensure the prosecution and conviction of the Respondent before his dismissal since the grounds for dismissal were criminal in nature; this issue arise from ground one of the grounds of appeal.

2.03 Whether the learned trial judge was right when he awarded the Respondent the sum of Ten Thousand Naira as general damages for his wrongful dismissal by the Appellants; this issue is distilled from the second ground of appeal.”

In arguing the first issue (supra), learned counsel for appellants referred to the terms of employment of respondent based on the offer of appointment in Exhibit D1 and the staff conditions of service in Exhibit P2 to submit that the relationship between appellants and respondent was master/servant and, the court below was bound to construe the binding terms of the contract of employment which did not provide for the criminal prosecution of an employee before dismissing him from employment; consequently the court below imported the condition of prior criminal prosecution of respondent by appellants in the contract of employment contrary to the decisions in Union Bank of Nigeria Ltd. v. Professor Ozigi (1994) 3 NWLR (Pt.333) 385 at 404, Baba v. NCAT (1991) 5 NWLR (Pt.193) 388, Afrotec Tech. services (Nig) Ltd. v. M.I.A and Sons Ltd. (2000) 15 NWLR (pt.6g2) 730 at 772, 794, O.A.U. v. Onabanjo (1991) 5 NWLR (Pt.193) 549, Obu v. NNPC (2003) 2 NWLR (Pt.805) 589, 630, Daodu v. U.B.A plc (2004) 9 NWLR (Pt.878) 276, Texaco (Nig) Plc v. Kehinde (2001) 6 NWLR (Pt.708) 224.

It was argued further on the first issue that in a master/servant relationship, the employer is not bound to prosecute an erring employee before dispensing with his services as held in the cases of Olanrewaju v. African (Nig) Ltd. (2001) 13 NWLR (Pt.691) 714, Arinze v. First Bank (nig Ltd. (2004) 12 NWLR (Pt.888) 663, Ansambe v. B.O.N. Ltd (2005) 8 NWLR (Pt.928) 650 at 672, Abubakar Tatari Ali Polytechnic v. Charles Maina (2005) All FWLR (Pt.284) 250 at 272, Atadi v. Union Bank Plc (2005) ALL FWLR (Pt.285) 517 at 541, Yusuf v. Union Bank Ltd. (1996) 6 NWLR (Pt.457) 632, Maikyo v. Atodod and Others (2007) 5 SCM 41; and that the case of Federal Civil Service Commission and Others v. Laoye (1989) 2 NWLR (Pt.1060 652 relied upon by the court below to give judgment to the respondent was not contract of service employment, but an employment protected by statute and is on that basis distinguishable from the present case.

The Appellants submitted on the second issue (supra) that the action was based on a contract of service and, in the event of breach, the remedy would not lie in the award of general damages, as such damages are awardable only in tort vide G.B.O. v. Agbabiaka (1972) 2 S.C. 137, Kwara Investment Co. Ltd. v. Garuba (2000) 10 NWLR (Pt.674) 25, 36 NEPA v. Enyong (2003) FWLR (Pt.175) 452, Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296, 315, Kbelmetal Nig. Ltd. v. Ativis (2002) 10 NWLR (Pt.775) 250 at 271-272, and General Oil Ltd v. Chief Agu (2005) ALL FWLR (Pt.247) 140 at 1422.

It was submitted further that the award of damages by the court below was based on wrong principle of law warranting the intervention of the Court following the cases of Professor Tam David West v. Biodun Oduwole and Others (2003) NWLR (Pt.835) 682 at 696 and Nka v. Onwu (1996) 7 NWLR (Pt.458) 1 at 27; also, the respondent did not request for general damages for breach of the contract of employment, but special damages for the alleged breach, therefore the court below should not have awarded to respondent th9 N10,000 general damages following the cases of Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352, Seven-up Bottling Co. Ltd Adewale (2004) 4 NWLR (Pt.862) 183 at 218-219, Ekpenyong v. Nyong (1975) 2 SC 1, Ilona v. Idakwo (2003) 11 NWLR (Pt.83O) 53 and Salubi v. Nwariaku (2003) 7 NWLR (Pt.819) 426.

Respondent’s brief of argument dated and filed on 29.4.09, but deemed duly filed on 4.5.09, also framed two issues for determination on the appeal to wit:-

“1. whether the learned trial judge was in error to have applied the judgment of the Supreme Court in FEDERAL CIVIL SERVICE COMMISSION and 2 ORS. V. J.O. LAOYE (1989) 2 NWLR (pt.106) 652 ratio 3 and 5 on pages 656 in accordance with the doctrine of stare decisis et non queta movere in finding as it were/that the Respondent’s dismissal was wrongful?

2. whether the award of N10,000.00 as general damages for Plaintiff’s/Respondent’s wrongful dismissal was proper and/or whether the Defendants/Appellants suffered any miscarriage of justice thereby?”

Issue (1) (supra) canvassed that by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution) followed by the Supreme Court in Federal Civil Service Commission v. Laoye (supra), the allegation of crime upon which respondent lost his job with appellants should have beep tried in a court of law before disciplinary action would have been initiated against respondent, as the governing consideration is not the nature of the employment, but the breach of respondent’s fundamental right to fair hearing, therefore the court below was right to follow the Supreme Court decision in Federal Civil Service Commission (F.C.S.C) v. Laoye (supra) in obedience to judicial precedent or stare decisis vide N.D.I.C. v. Okem Enterprises (2004) 4 S,C. 77; also, the appellants were bound the justify beyond reasonable doubt the reason they gave for dispensing with the respondent services following the cases of Kayode Adams (1966) NMLR 111, Denloye c. Medical and Dental Practitioners Disciplinary Committeee (1968) 1 ALL NLR 306 at 312;Sofekun v. Akinyemi (1981) 1 NCLR 135, GARBA v. Universty of Maiduguri (1986) 1 NWLR (Pt.18) 550, Albert Laoye (1985) 2 NWLR (Pt.10) 832, F.C.S.C. v. Laoye (supra), Osuagwu v. Attorney – General of Anambra State (1993) 4 NWLR (Pt.285) 13 and 16, Angels Spinning v. Ajah (2000) NWLR (Pt.685) 532 at 548, Sofekun v. Akinyemi (1980) 5-7 S.C 1.