Agbolade Babatunde Osiyemi V. Societe Generale Bank Limited (2000)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
In the court below, High Court of Lagos State (Coram Adeyinka J.) the plaintiff (hereinafter referred to as appellant) had brought an action against the defendant (hereinafter referred to as respondent) claiming the following reliefs:
(1) An order that the purported termination is wrongful, illegal, null and void and of no effect whatsoever.
(2) An order that the plaintiff is still the Deputy General Manager (Administration).
(3) An order restraining the defendants their servants, agents, and/or privies from preventing the plaintiff from continuing his job as Deputy General Manager (Administration).
(4) An order of specific performance of the Housing Loan Agreement i.e. that the defendants be ordered to complete all their obligations under the term of the contract, or return to the plaintiff his title document to enable him find another mortgage.
(5) ALTERNATIVELY, N1,100,000.00 (One Million, One Hundred Thousand Naira) damages for wrongful termination of the plaintiff’s appointment.
The defendant/respondent filed a counter-claim wherein it counter-claimed against the plaintiff/appellant as follows:
(a) Payment of the sum of N142,716.59 being the sum received by the plaintiff as an unsecured housing loan from the defendant.
(b) Return of the Peugeot 504 SR motor car, registration No. LA 357 AM, the property of the defendant which is in the possession of the plaintiff or in the alternative N10,000.00 damages for detinue.
(c) Possession of premises situate at and known as No. Twins Obasa Street, Gbagada, Lagos, leased to the defendant on 13th March, 1984; and
(d) Payment for the use and occupation of the said premises at the rate of N45,000.00 per annum from 19th April, 1984 until possession is delivered up.
(e) Return of the amenities set out in paragraph 16 above or in the alternative N57,100.00 damages for detinue.
Suffice it to say that in paragraph 16 of the amended statement of defence and counter-claim, the defendant/respondents had averred that it expended a total sum of N57,100.00 in the provision of amenities for the premises occupied by the plaintiff as its employee. Such amenities included Air-conditioning units, Electric Fans and a Generating set which according to the defendant/respondent, the plaintiff/appellant was holding unto.
Pleadings were filed and exchanged between the parties. At the conclusion of evidence on both sides and after taking the addresses of counsel, the trial Judge, in a reserved judgment, found that the appointment of the plaintiff/appellant was lawfully terminated but entered judgment for the defendant/respondent in respect of his counter-claim for the sum of N248,966.00, with an order that upon the payment of that sum of N248,966.00 by the plaintiff/appellant, the defendant/respondent shall return to the plaintiff/appellant his title documents.
Dissatisfied with the said judgment, the plaintiff filed a notice of appeal with five grounds of appeal and one additional ground of appeal. The plaintiff/appellant identified five issues for determination and they are in the following terms:-
(i) Whether the plaintiff/appellant’s appointment was terminated in accordance with the agreements binding the parties.
(ii) Whether the trial court was right to hold the plaintiff liable for payment for use and occupation of the official residence on the basis that the right to use the premises automatically came to an end from the date of the termination of his appointment.
(iii) Whether the trial Judge was right in holding that upon the termination of plaintiff’s employment, the housing loan which was expressly agreed payable over 15 years automatically became repayable in one lump sum.
(iv) Whether the plaintiff was liable in detinue for the sum of N10,000.00 being the cost of the car alleged to be in the plaintiff’s possession at the time his appointment was terminated.
(v) Whether the trial Judge was right not to have awarded damages to the plaintiff in line with the authorities on the issue particularly the cited case of NWAGBANEBI v. NIGERIA PALM PRODUCE BOARD.
The respondent, for its part, raised three issues for the consideration of this court and they are as follows:
1. what were the terms and conditions governing the appellant’s employment?
2. whether or not there has been a breach of the said conditions of employment.
3. Is the appellant liable to the respondent as per the latter’s counterclaim and judgment of the trial court?
When this appeal came before us on the 3rd of May, 2000, Mr. Osiyemi, a legal practitioner, who appeared in person adopted his (appellant) brief filed on 11/2/98 and urged that the appeal be allowed. Mr. Nweze, learned counsel for the respondent adopted the respondent’s brief deemed to have been filed on 18/5/99 and urged that the appeal be dismissed.
Briefly, the case of the appellant is that upon his employment as Deputy General Manager (Administration) by the respondent with effect from 1st February, 1983, he was given a handbook which contains terms and conditions binding the parties. The handbook was tendered in evidence as Exhibit P5. It was also his case that his employment was permanent and pensionable as confirmed by his employer’s letter dated 10th November, 1983 tendered as (Exhibit P6). Sometimes in 1984 whilst he was attending an Advance Management Workshop at Ibadan the defendant requested him to return to Lagos immediately. He obeyed the directive only to be confronted with an allegation of improper behaviour in the matter of his housing loan consequently he was requested to tender his letter of resignation failing which a report would be forwarded to the meeting of the Board slated for 18th April, 1984. He was suspended and his appointment was later terminated by a letter dated 18th April, 1984 tendered as Exhibit P9. He further averred that the termination of his appointment was wrongful. In consequence of the wrongful termination it was his further case that he was entitled to be paid his salary and all his entitlements until he reached the age of 60 which was 14 years away from the time his appointment was terminated. In meeting the case formulated by the appellant, the respondent who was the defendant in the court below averred that the termination of the plaintiff’s employment was in accordance with the terms and conditions of the contract of service. It also counter- claimed against the plaintiff/appellant for re-payment of the housing loan granted to him (plaintiff), the return of the Peugeot 504 SR motor car assigned to the plaintiff or in the alternative the sum of N10,000.00 damages for detinue, possession of the premises assigned to him as the official residence and mesne profit at the rate of N45,000.00 per annum from 19th April, 1984 until possession is delivered up. In his viva voce evidence, the appellant has further said that his date of birth being 3rd December, 1937 he was supposed to retire from his employment at 60 which was 3rd December, 1997, he claimed his salary at N27,070.00 per annum for the period, his housing allowance for the period, at N45,000.00 per annum, his furniture allowance of 5% of his basic salary; yearly entertainment allowance of N3,000.00. Security guard’s yearly salary at N10,000.00. He said he got a loan of N30,000.00 to buy a parcel of land. He claimed that the housing loan was disbursed to him partially. He did not complete the house as his employers withdrew further disbursement of loan to him. He denied being in possession of the respondent’s official car. In its defence and counter-claim the respondent through its Legal Adviser tendered as Exhibit D5 the Minutes of the Committee of Directors on Staff Matters Item 11 page 8 thereof deals with Staff Housing known to the appellant. Evidence was led as to the equipment installed by the respondent in the premises occupied by the appellant; such equipment are a generator set, costing N39,000.00,three split air conditioners; one costing N2,150.00 while the remaining two cost N4,900.00; six ceiling fans each at N125.00. Evidence was further given that the appellant was still in possession of the said premises with the afore-mentioned equipment being intact. The official car which was yet to be returned was valued at N10,000.00 but the total disbursement to the appellant was N142,000.00.
I have said some where in this judgment that the trial Judge in a considered judgment held that the plaintiff’s employment was lawfully terminated. In addition to this finding, the trial Judge in the concluding part of his judgment said:-
I refer to my findings that the plaintiff is entitled to N35,000.00 being initial furniture allowance and the defendant to N142,716.00 loan disbursement N131,250.00 for use and occupation and N10,000 for the vehicle and hold that the defendant is therefore entitled to judgment on its counter-claim for N248,966.00 against the plaintiff.
Judgment is hereby entered for the defendant against the plaintiff for the sum of N248,966.00 plaintiff’s title documents to him forthwith on payment of the said judgment/debt.”
I have again had a careful study of the issues formulated by both the appellant and the respondent for determination by this court. I am of the view that the three issues raised by the respondent are apt and I shall be guided by them in the determination of this appeal. And issues 1 and 2 formulated by the respondent can conveniently be taken together and I shall so take them. I wish to start by saying that an employee who has a grouse as to the way and manner his appointment is put to an end or who in the conventional manner of complaint says that his employment has been wrongfully terminated has the duty:
(1) to put before the court the terms of the contract of his employment; and
(2) to prove in what manner the said terms were breached by the employer.
This statement is reinforced by the principle that the employer and employee is for all times, regulated by the term of contract of service. See (1) Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379 and (2) Amodu v. Amode (1990) 5 NWLR (pt.150) 356. The case of the employee or the employer stands or falls by the terms of the said contract of service being what is binding on both of them and it is to that document-contract of service that a court of law must cast its searchlight and to nothing else. See (1) W.N.D.C. v. Abimbola (1966) NMLR 381 and (2) N.P.M.B. v. Adewunmi (1972) 11 SC 111.
In a contract of employment, which is of the ordinary nature other than one with statutory flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period’s salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end, see the W.N.D.C. cited supra. The measure of damages will be the salary which the employee would have earned during the period of notice. The crux of the matter here is the ascertainment of the terms of the conditions of service applicable to the appellant. In so doing, the court below, in its judgment held:
“It was not in dispute between the parties that the letters of appointment and confirmation are Exhibits P1 and P6. It was the defendant’s contention on the amended statement of defence and counter-claim that the contract of employment between the parties was the letter of appointment Exh. P1 and that the Staff handbook Exh. p5 did not apply to the plaintiff while the plaintiff contended in the amended statement of claim that the contract of employment between the parties was the letter of appointment Exh. P1 and the Staff hand book Exh. P5. It is settled principle of law that parties are bound by their contract voluntarily entered into and the court will not go outside the contract to interprete its terms. However, the court will look outside the contract if the document makes reference to other documents.”
After having a careful study of Exhibit P1 and comparing same with Exhibit P5, the Staff hand book, the learned trial Judge found as follows:
“I hold upon the comparison of Ex. P1 and P5 and the conduct of the parties that the intention of the parties was to be bound by the letter of employment Exh. P1 and same provision of the Staff hand book, Exhibit P5. I also hold that the contract of employment between the plaintiff and the defendant was compromised in the letter of employment Exh. P1 and some provisions of the staff Hand Book Exh. P5.”
Exh. P6, the letter dated 10th November, 1983, is the confirmation of the Appointment of the appellant as Deputy General Manager (Administration) with effect from 1st November, 1983. In the said letter, the appellant was informed that his basic annual salary had been increased from N25,390.00 per annum to N27,070.00 per annum with effect from the date on the letter. I have a close study of Exhibit P1 as well and I do observe that certain portions of the Staff hand book, Exh. P5, has been incorporated into it. It is my view, therefore, that the terms of conditions of service under which the plaintiff/appellant was employed can be gathered only from Exh. P1, the letter of offer of probationary employment dated 19th January, 1983, Exh. P6, the letter of confirmation of appointment dated 10th November, 1983 and such portions of Exh. P5 – the Staff hand book that have been incorporated into Exh. P1, the letter dated 19th January, 1983. It is those terms that regulate the relationship between the respondent as employer and the appellant as employee. A careful reading of Exh. P1 shows that Exhibit P5 the Staff hand book was never intended as a whole to be part of the documents that regulate the master/servant relationship between the respondent and the appellant. The portions of Exh. P5 that were intended to be part of what would regulate that relationship have been lifted and incorporated into Exhibit P1. And Ex P6, the letter of confirmation of appointment to the extent to which it spelt out the basic salary of the appellant, is in furtherance of Ex P1. Reading Ex. P1 and P6 together the terms and conditions that govern the employment of the appellant are:-
(a) Basic salary – N27,070.00.
(b) Annual Leave Allowance – 5% of basic salary.
(c) Entertainment Allowance – N3,000.00.
(d) Fully-furnished residence which is maintained by the employer.
(e) Free electricity, gas and telephone (local Calls only).
(f) Monthly payment of N200.00 for domestic help.
(g) Free use of official car with a driver.
(h) Provision of security guards at residence.
(i) Provision of medical facilities and access to staff-end-of-service benefit.
(j) Car-Loan.
(k) Housing Loan.
The respondent also undertook to take over the existing commitments of the appellant towards his erstwhile employers; R. T. Briscoe (Nig.) Ltd. On the condition governing termination of appointment, the stipulation agreed to is thus:
“However, after your confirmation as a permanent member of our staff, you will be entitled to one month’s salary in lieu of notice, and will also have the right to resign your appointment by giving one month’s salary in lieu of notice.”
The above represents the terms and condition governing the appellant’s employment with the respondent. Ex. P9 is the letter communicating to the appellant the termination of his appointment. In the said letter, the respondent said inter alia:
“Consequently, your appointment with the bank is hereby terminated with effect from 18th April, 1984. Although, you are only entitled to the payment of one month’s salary in lieu of notice, it was decided that you should be paid three months salary in lieu of notice. The Accounts Department is accordingly notified by a copy of this letter, of the Board of Directors’ decision.
Kindly surrender all the Bank’s belongings in your possession including the Bank’s Car, staff Identity Card, and Cheque Book… You should also vacate immediately the Bank’s premises at Twins Obasa Street, Gbagada, Lagos which you are presently occupying at the expense of the Bank.
We attached herewith a statement of your indebtedness, which stands at N142,716.59 and look forward to receiving your cheque in settlement or at least a repayment programme.
From the totality of the evidence before the court below, both oral and documentary, the respondent cannot be held to have breached any of the conditions of employment. Rather, the respondent had been generous with its offer to pay three months’ salary in lieu of notice of one month. I wish to say further that from the nature of the contractual relationship between the parties which is one of ordinary master/servant relationship and does not savour statutory relationship a reinstatement of the appellant into the employment of the respondent will not meet with the favour of the law as it stands today. See ABIMBOLA’S case cited supra, and of course UNION BEVERAGES LTD. V. OWOLABI (1988) 1 NWLR (Pt.68) 128 cited in the respondent’s brief. I therefore answer issue 2 in the negative, there has not been a breach of the conditions of the employment of the appellant.
On issue 3 which poses the question as to whether the appellant is liable to the respondent as per counter-claim for N10,000.00 in detinue for not returning his official car to the respondent and also the sum N142,000.00 the housing loan due and payable by the appellant to the respondent, the evidence before the court below was so overwhelming that the reliefs sought in the counter-claim could not but have been granted.
From all I have said above, this appeal is adjudged by me to be unmeritorious. It is accordingly dismissed. There shall be N4,000.00 cost in favour of the respondent.
Other Citations: (2000)LCN/0851(CA)