Augustine F. I. Ibama V. Shell Petroleum Development Company of Nigeria Limited (1998)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A.

This is an appeal from a judgment of P.B. Akere J given on 11 October, 1993 at the High Court, Port Harcourt, Rivers State. It concerns litigation over the termination of employment in a mere master and servant relationship. The learned trial Judge admirably summarised in the opening paragraphs of his judgment the facts and circumstances of the employment of the appellant and what led to his termination of the said employment. It is enough if I simply start with the salient aspects of what he said in that summary before going into other facts.

The appellant was employed by the defendant on 22 November, 1969. He was due to retire on 25th September, 1992 when he would have reached the retirement age of 55 years. That would have meant some 23 years’ service. He worked without any known blemish and his pre-retirement procedures had been observed some months earlier before his termination of employment He was then on posting to a depot of the respondent known as Kidney Island Depot Some property (referred to as ‘casing pipes’) of the respondent had been sold and one of those who seemed directly involved in it tried to implicate the appellant when the police later carne into the matter. He alleged that it was the appellant who authorised him to sell the said pipes. Two persons were eventually prosecuted; one was found guilty, the other acquitted. The police found nothing against the appellant.

But the respondent had in the meantime suspended the appellant on full pay. This was contained in a letter dated 29 August, 1991 (Exhibit J). By letter dated 13 November, 1991, (Exhibit K) the respondent informed the appellant that his services were no longer required. He was told that it was with immediate effect and that three months’ salary in lieu of notice would be paid to him. Other terminal benefits would be stated in a subsequent letter to him.

The other facts are that the respondent acted upon the terms of clause 9 of the contract of service (Exhibit V) which applied to the appellant. The said clause 9 reads:

“You, or we, shall have the right at anytime to terminate your employment under this letter by giving to the other not less than one month’s notice in writing, or by paying one month’s salary in lieu of notice. On the confirmation of your appointment, the period of notice shall be two months, or two months salary in lieu of notice and the completion of five years of service, the period of notice shall be three months or three months salary in lieu of notice.”

The said contract of service was effective from February 1, 1980. It was for Nigerian Senior Staff which the appellant was.

Following the letter or termination, the appellant sued for (a) a declaration that the termination was null and void in the absence of proof of misconduct by the appellant; (b) a declaration that the appellant is entitled to continue in the service of the respondent until normal retirement and to all retirement benefits and pension for life; (c) an injunction to restrain the respondent from annulling the employment until the appellant retired; (d) alternatively, the sum of N2, 135,545.27 being what is due to the appellant for wrongful termination of his employment; and (c) interest of 20% on the said amount until it is paid.

The learned trial Judge in a well-considered judgment dismissed the claim and made no order for costs. In his appeal, the appellant raised a number of issues for determination most if not all deserve little attention. This issue read as follows:

“(i) Whether Exhibit V, the letter of appointment/promotion and nothing more constitutes the appellant’s contract of service with the respondent.

(ii) Whether the appellant’s contract of service with the respondent is one of general hiring or a contract for a definite period.

(iii) Whether the court was not wrong in failing to declare the appellant entitled to continue in his employment until he attains the retirement age of 55 years.

(iv) Whether the appellant’s contract with the respondent is one of personal service.

(v) Whether the appellant is entitled to the damages claimed.