Chief Funso Ologunde V. Carnaudmetal Box Toyo Glass Nigeia Plc (2002)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA O. ADEKEYE, J. C. A.
This is an appeal against the judgment of the Ogun State High Court of Justice Ota Judicial Division delivered on the 4th of February 2000. The suit No FCH/154/94 before the lower court relates to a contract of employment whereupon the plaintiff Chief Funso Ologunde complained about the wrongful and premature termination of his employment by the defendant – Carnaudmetal Box Toyo Glass Nigeria PLC after serving the company for a period of fourteen years. In the Writ of Summons before the High Court the plaintiff claimed as follow: –
1) On account of the unlawful termination of his employment by the defendant, the plaintiff claimed special damages of thirteen million four hundred and sixty-four thousand, eight hundred and seventy-eight Naira, forty-nine Kobo (N13,464,878.49) being his emoluments up to the year 2012.
2) On account or the wrongful and sudden termination of his employment, the plaintiff claimed an additional sum of Eleven million, Five hundred and thirty-five thousand, One hundred and twenty-one Naira, Fifty-one kobo (N11,535,121.51) being exemplary damages.
Parties filed and exchanged pleadings. The matter was set down for hearing after parties had filed Amended Statement of Claim, Amended Reply to Amended Statement of Defence, Defence to counterclaim, Further Amended Statement of Defence and Counterclaim. Parties adduced evidence oral and documentary in support of the pleadings. In a well considered judgment of the trial court delivered on the 4th of February 2000 – it was held that:-
a) The defendant pays to the plaintiff the sum of two hundred and seventeen thousand, seven hundred and fifty-one Naira nine kobo (N217, 751.09) being the amount admitted by the defendant in its statement of defence as the plaintiff’s entitlements up to and including Friday 25th March 1994.
b) The defendant pays also to the plaintiff an additional sum of his salary and allowances to cover the period not calculated from 25th March 1994 to 11th April 1994 being the date indicated on the letter of the plaintiff’s termination (Exhibit 7) that the plaintiff should return to the factory to see the Personnel Controller.
c) The counter-claim of the defendant, “for the value of its car in the plaintiff’s possession and also for the loss of ‘use of the car” failed and was accordingly dismissed.
Being aggrieved by this judgment – the plaintiff – now appellant before this court filed Notice and four grounds of appeal. Parties settled records and exchanged briefs. At the time of the hearing of the appeal, the appellant formulated six issues for determination. The appellant did not at any time file motion to increase the number of the grounds of appeal which at the time of filing the briefs and arguing same stood at four. In short appellant distilled six issues out of his four grounds of appeal which read:-
1) Whether the learned trial judge properly evaluated the evidence before him in arriving at his decision.
2) Whether it was right for the learned trial judge to apply the provisions for termination of employment as contained in Chapter 13 (f) pages 26-28 in Exhibit B in place of the provisions contained in paragraph 5 on page 2 of Exhibit A which guides the ordinary termination of the contract of employment by either party.
3) Whether it was right for the learned trial judge to hold that a party of the complete conditions of service of the plaintiff/appellant as contained in Exhibits A and B are not expressly agreed ” after plaintiff/appellant had formally accepted the condition in the manner prescribed on page 2 of Exhibit A.
4) Whether it was right for the learned trial judge to later apply a provision of Exhibit B which he had earlier found not to be expressly agreed” in dismissing the claims of the plaintiff/appellant in a part of the judgment.
5) Whether the damages awarded in favour of the plaintiff/appellant are adequate in view of the totality of evidence before the learned trial judge.
6) Whether it is right for the learned trial judge to hold that it is the duty of the plaintiff to establish the truth of the Defendant’s defence that its (Defendant) action was based on a consultancy report.
The respondent on the other hand distilled four issues for determination as follows:-
1) Whether Exhibit B makes provision for termination of employment
2) Whether the appellant’s employment has been lawfully terminated in accordance with the provision of the Defendant’s Handbook
3) Whether the appellant is guaranteed employment until he attains the age of sixty
4) If the appellant’s employment had been wrongly terminated would his entitlement have exceeded N199, 986.08 as contained in the calculation on page 96 of the record of proceedings, which the Respondent had offered him before the commencement of the proceedings but which the appellant rejected?
Going by the issue projected by the parties – it is apparent that the issues can further be compressed into two as follows:-
1) Whether the termination of appointment of the plaintiff/appellant was done in accordance with the terms of the contract between the parties
2) Whether the damages awarded in favour of the plaintiff/appellant is found to be adequate if it was found that the employment had been wrongfully terminated?
These two issues shall be adopted as the issues for determination as they cover all the issues canvassed by the two parties.
I have to place it on record that a situation where a party filed four grounds of appeal and formulated six issues for determination had always been criticized and frowned upon by the courts. Proliferations of issues have never received a nod by the courts. It is better to have more grounds of appeal than the issues formulated and not the other way round. After all issues are based upon and they flow from the grounds of appeal hence you cannot have more issues than the grounds of appeal. Any issue which is not related to a or more grounds of appeal shall be deemed to be in excess – and such issues shall be discountenanced as being superfluous. CARLEN LTD V UNIJOS 1994 1 NWLR Pt 323 pg 631, FAWEHINMI V AKILU 1987 4 NWLR Pt 67 pg 797, CHEVRON NIG LTD V ONWUGBELU 1996 3 NWLR Pt 437 pg 404 SHELL PETHOLEUM DEV. CO (NIG) LTD V FEDERAL BOARD OF INTERNAL REVENUE 1996 8 NWLR Pt 466 pg 256 ADEWUNMU V A-G ONDO STATE 1990 4 NWLR Pt 146 pg 551 OLATUNJI V ALABA 8 NWLR Pt 563 pg 569 at 579.
ISSUE NO 1.
The first issue for determination is whether the termination of appointment of the appellant was done in accordance with the terms of contract of the parties.
The appellant submitted that his employment was wrongfully terminated – upon Exhibits F1 – F4 and the respondent offered him three months salary in lieu of notice. Exhibit A the letter of appointment provide for three months notice in writing without an option of payment of salary in lieu of notice in case of non-disciplinary termination of employment.
Exhibit B (the Management Handbook in chapter 13 pages 26-28) outlines the disciplinary procedure of the defendant/respondent company from a query to a reprimand, warning, suspension, termination, absondment and dismissal. Exhibit A made reference that other conditions of service not stated above are contained in the Senior Staff Terms and Conditions of Service such as Discipline and Cessation in chapter 13 and 14 – Conditions of employment are in Exhibits A and B. The learned trial judge applied chapter 13(f) pases 26-28 in Exhibit B which categorises termination of employment as discipline when in actual fact there was no disciplinary measure taken against the appellant by the respondent in line with paragraph 5 of Exhibit A as opposed to chapter 13(f) or Exhibit B.
The learned trial judge held that there was nothing in the letter Exhibit F to suggest that the appellant was being disciplined. It was the contention of the appellant that the respondent had a right to terminate his appointment – but that it was done wrongfully. His name was not one of those to be affected by the personnel consultancy exercise and the new restructure of the business. The respondent failed to adduce any evidence to the contrary – that the appellant was to be affected by the exercise. An employer is not bound to give reasons for terminating the appointment of his employee but where he gives the reasons the onus is upon him to establish that cause or reason at the trial. Another aspect of the appellant’s case is also that he was entitled to enjoy his tenure of appointment up to the retirement age of 60 years in accordance with the provisions of chapter 4(f) on page 9 of Exhibit B (page 87 lines 29-34 of the record) as Exhibits A and B are both binding on him.
It was the conclusion of the learned trial judge that the provision was not expressly agreed upon by the parties.
Having concluded that the termination of the appellant’s employment was wrongful, the learned trial judge should have ordered payment to the appellant of his claims before the trial court under special damages – as stated by PW2 or in the alternative – the respondent should give three months notice in writing to the appellant from the day of judgment on 4th of February 2000 – and also to pay the salaries and emoluments from the day that his employment was wrongfully terminated 25th March 1994 to the 4th of May 2000 with payment of the terminal benefits. Court has the power to grant reliefs incidental to the reliefs claimed.The amount as established through PW2 should be ordered to be paid by this court which are a sum of N13,826,903.00 or N4,871,862.79, and interest to be paid at the rate of 21% per annum as from the 1st of April to 4th May 2000, and thereafter at the rate of 6% per annum until payment is effected. This appeal should be allowed on the grounds that –
(1) The appellant’s appointment is guaranteed to retiring age vide Exhibit B Chapter 4(f)
(2) Exhibit F a letter of termination was not issued on account of discipline
(3) The appellant ought to be terminated in accordance with the provision of Exhibit A which makes no room for payment in lieu of notice as an alternative
(4) The lower court ought to have ordered the appellant to be paid all claims in line with the evidences contained from pages 65 to 69 of the record.
The learned trial judge would have ordered the appellant to be given three months notice in writing with effect from the date of judgment on 4th February 2000. The appellant cited the cases of – EKPEYONG V IYONG 1975 2 SC 71, ERAVWODOKE V U.B.T.H.M.E 1993 2 NWLR Pt 277 pg 590 at pg 593, NIDE V S.S. DRINKS LTD 1992 5 NWLR Pt 242 pg 471 at pg 474, PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V E.O. JEGITAGHA 2000 FWLR pg 1510, NZERIBE V DAVE ENGINEERING CO LTD 1994 9 SCNJ pg 163 BABA V CIVIL AVIATION 1991 7 SCNJ Pt 1 pg 22, GATEWAY BANK OF NIG PLC v ADEBIYI JULIUS ABOSEDE 2002 Vol. I WRM 135 INTERNATIONAL DRILLING CO (NIG) LTD V AJIJALE 1976 NSCC pg 94 KATTO V CBN 1999 6 NWLR Pt 607 pg 405.
In the reply the respondent defined the four classes of employer and employee contracts. In a contract of service parties are bound by the terms of the contract. Where the terms are clear and unambiguous – the parties cannot move out of them in search of more favourable terms – but where they not clear and are ambiguous a court of law can move out and invoke general Rules of contract applicable to the nature of the contract for service. Where there is a collective agreement intended to be incorporated into a contract of service in the form of a manual or handbook – the conduct of the parties will show that such is meant to apply to the employee concerned.
The respondent relied on the cases of OLANIYAN V UNIVERSITY OF LAGOS 1985 2 NWLR Pt 9 pg 599, TDC V AJIJOLA 1976 2 SC pg 115 UNION BANK LTD V EDET 1993 4 NWLR Pt 287 pg 288 NWOBOSI V ACE LTD 1995 6 NWLR Pt 416 pg 404 ACE PLC V NBISIKE 1995 8 NWLR Pt 416 pg 725 ACE PLC v NWODIKA 1996 4 NWLR Pt 443 Pg 470.
Where a contract of service is wrongfully terminated – the plaintiff will be entitled to damages for the wrongful termination of his employment, he is only entitled to the salary and other entitlements he would have earned over the period of notice AKINFOSILE v MOBIL 1969 NCLR pg 253 INTERNATIONAL DRILLING CO. NIG LTD v AJIJALA 1976 2 SC 115 WNDC V ABIMBOLA 1966 1 All NLR pg 159, NIGERIA PRODUCE MARKETING BOARD V ADEWUNMI 1972 1 All NLR pg 870 Part 2 TAIWO V KINGSWAY STORES 1950 19 NLR 172 OLATUNBOSUN v NISER 1988 3 NWLR Pt 80 pg 25 KADUNA ILES LTD V UMAR 1994 1 NWLR Pt 319 pg 143 at 154
Where an employee complained that his employment has been wrongfully terminated he has the onus –
a) to place before the court the terms of the contract of employment and
b) To prove in what manner the said terms were breached by the employer.
In an ordinary contract of employment where the terms provide for a length of notice before termination or salary in lieu of notice thereof the only remedy an employee who is wrongfully terminated can get is that sum that will be equivalent to the length of notice as salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to an end. Exhibit B page 9(f) is to be read with Exhibit A, and paragraph 28(f) of Exhibit B refers to termination. The grouse of the appellant is that the learned trial judge misinterpreted the provisions of Exhibit A – his letter of appointment and Exhibit B paragraph 28(f) as regards termination of his appointment. The respondent should have given the appellant three months notice only and not three months pay in lieu of notice which is only applicable when the appellant’s appointment is terminated for disciplinary reasons.
The letter of appointment Exhibit F was not based on any disciplinary reason.
This is also supported by the learned trial judge’s findings that Exhibit F – the letter of termination was not based on any disciplinary action.
2nd leg of Exhibit B Chapter 13F contains ancilliary provision that:-
“In the alternative he shall receive commensurate pay in lieu of notice”.
The appellant also laid emphasis on Exhibit B pg 9(f) which stipulated “that once his appointment is confirmed – same should hold until he is sixty years old – and his appointment could not have been terminated following personnel consultancy exercise.”
The most important question to be answered is whether the termination of appointment was wrongful. In considering the question this court shall examine the terms of contract of employment and how the terms were breached by the employer the respondent. The terms of the contract of employment are undoubtedly based first on Exhibit A – the letter of appointment dated 4th of March 1980. The appellant was offered the job of Personnel Officer in training on a salary of N7,500 per annum subject to review in accordance with the company’s policy. Termination of appointment reads:-
“This appointment may be terminated during the probationary period by either party giving to the other one month’s notice. After satisfactory completion of your probation the period of notice shall be three months by either party in writing” .
Other conditions of service not stated above are contained in the Senior Staff Terms and Conditions of Service. This document now referred to as Management Staff handbook is Exhibit B before this court. Of particular importance is paragraph 9(f) the Tenure of Office – which stipulates that once confirmed an employee shall hold his appointment to retiring age, subject to provisions made under cessation of appointment. Retiring age shall be sixty for men and 55 for Women.
Under cessation of Appointment paragraph 14 Exhibit B ‘states that:-
“The appointment of an employee may cease with the company in any of the following manner – three of which have been dealt with above under discipline. These are
(i) Termination
(ii) Abscondment
(iii) Dismissal
The others are
Resignation
Retirement
Redundancy”.
The letter Exhibit H communicated to the appellant reads:-
“Chief F. Ologunde
Personnel Manager
Carnaudmetal Box Toyo Glass Nig. PLC
Agbara
Dear Chief Ologunde
Termination of Employment
Following the personnel consultancy exercise and the new structure of the business we find that we cannot offer you a suitable position.
We are therefore exercising our right to terminate your contract of employment forthwith. All terminal benefits will be calculated and you should return to see the Personnel Controller on Monday April 11th 1994.
We thank you for your services to the company over the years and we wish you every success for the future.
Signed
Managing Director”.
As declared in the foregoing the reason the respondent gave as foundation upon which their action of termination of the appellant was not originated by the appellant. The issue raised by the appellant is not about whether or not consultancy exercise took place – but that the report did not recommend that he the appellant be terminated, which evidence was confirmed by the PW1 and PW3. In his judgment the learned trial judge held about termination of the appellant’s appointment – that there is nothing in Exhibit F to suggest that the plaintiff was being disciplined. There is provision for termination under “Cessation of Appointment”. The learned trial judge believe and accept that the plaintiff lost his employment to the personnel consultancy exercise that took place at the defendant’s company. Exhibit A makes it clear that the plaintiff’s appointment can be terminated after giving adequate notice to that effect, while Exhibit B makes it clearer that salary can be offered in lieu of notice. The learned trial judge held that an employer is not bound to give reasons for terminating the appointment of his employee but where he gives reasons the onus is upon him to establish that reason at the trial.
OLATUNBOSUN V NISER 1988 1 NSCC 1025. The learned trial judge believed that there was personnel consultancy exercise – and that if the appellant’s appointment was properly terminated intention and motive will become irrelevant Vide page 99 lines 1-25 of the record OLATUNBOSUN V NISER 1988 1 NSCC 1025 CHUKWUMAH v SHELL 1993 4 NWLR Pt 289 pg 512.
As regards tenure of office the learned trial judge found that both parties agreed that the plaintiff was involved in politics – and that the respondent was supportive in his political ambition to lead this nation as president. The appellant agreed that if he had won the election he would have left the respondent company.
The submission that the appellant planned to remain in the company’s employment till attaining the age of sixty years cannot be tenable. Further that unless expressly agreed upon the provision in Exhibit B for employment till the age of 60 years cannot be enforceable. The court cannot force an employee on an em910yer or vice versa vide page 99 lines 30-40.
I agree with the foregoing decision of the learned trial judge. The court found that the respondent has a right to terminate the appointment of the appellant but the other leg of the question is whether the termination was in order in all its ramification? The option the respondent exercised was to pay the appellant’s salary in lieu of notice – but the salary was not paid at the time of termination.
It is not sufficient to offer to pay salary in lieu of notice in the letter of termination. CHUKWUMAH v. SHELL cited supra.
The contractual relationship here is purely that of master and servant without any statutory flavour. The issue of termination of the employment of the employee is based on the contract of service between the parties. The contract of service is the bedrock upon which any aggrieved employee must found his case – he succeeds or fails upon the terms therefore. Where there is a written or documented contract of service the court will not look outside the terms stipulated there in deciding the right and obligations of the parties WESTERN NIGERIA DEVELOPMENT CORPORATION v. ABIMBOLA 1966 NSCC 172 KATTO v CBN 1999 6 NWLR Pt 607 pg 390. Termination of employment by the employer cannot be wrongful unless it is in breach of contract, notwithstanding that the employer gave a totally untenable reason for the termination. One has to look into the contents of the contract binding the parties. Exhibits A and B in this case – Exhibit A the Letter of Appointment – and Exhibit B – the Management Staff Handbook.
There are a number of decided cases on the point that where there is a right to terminate, it is unnecessary to prove any reason given for the termination – as it is a well established principle of Common Law and of Nigeria Law as applicable, that ordinarily a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reasons at all.
GATEWAY BANK v ABOSEDE 2002 1 WRN pg 135, H.O.M. v DAURA 1996 8 NWLR Pt 468 pg 807, OKOSUN v CBN 1996 2 NWLR Pt 428 pg 64 at pg 86 KATTO v CBN 1999 6 NWLR Pt 607 pg 890, CHUKWUMAH v SHELL PETROLEUM 1993 4 NWLR Pt 289 pg 512 at 538.
It is fundamental that where there are procedural requirements stipulated for the termination of employment, such conditions for termination must be followed, otherwise a termination carried out without fulfiling the requirements will be invalid. OLANIYAN v UNIVERSITY OF LAGOS NO 2 1985 2 NWLR Pt 9 pg 599 EPEROKUN v UNIVERSITY OF LAGOS 1986 4 NWLR Pt 34 pg 162 OLATUNBOSUN v NISER COUNCIL 1988 3 NWLR Pt 80 pg 25 UNTHMB v NNOLI 1994 8 NWLR Pt 363 pg 376.
The only issue that has to be flogged here is the amount to be paid to the appellant in the circumstance of this case and whether the counter-claim of the respondent succeeds. There was clearly a breach of the contract of employment between the parties at the instance of the respondent. The contract of employment was terminated at the instance of the respondent. The provision in Exhibit A to give three months notice in writing was not complied with – this clearly tantamounts to a breach of the contract. It follows therefore and from the circumstance of the case that once a master takes action to terminate the appointment of the servant – the employment is at an end. A master and servant contract does not and cannot subsist after the termination. Where the contract is terminated by inadequate or without notice or notice not complying with the terms of the contract, the contract is nevertheless terminated.
In the latter case that termination gives a cause of action for wrongful termination of contract of service and the remedy of the employee in an action for wrongful termination. The remedy of the employee is in damages and no more. SHELL PETROLEUM DEVELOPMENT CO (NIG) v IFETA 2002 11 NWLR Pt 724 pg 473, UKPILLA CEMENT COMPANY LTD v IGIEHUME 1979 1 FCA pg 64 CHUKWUMAH v SHELL PETROLEUM 1993 4 NWLR Pt 289 pg 512.
This takes me to consider Issue No 2 – which reads: –
Whether the damages awarded in favour of the plaintiff/appellant is found to be adequate if it was found that the employment had been, wrongfully terminated.
In the Amended Appellant’s Brief the appellant submitted that having found that the termination of his employment was wrongful – the option open to the learned trial judge was to order payment of the appellant’s claim under special damages as stated by PW2 on the alternative to give three months notice in writing to the appellant commencing from 4th of February 2000, and to order payment of his salaries and emoluments from the 25th of March 1994 to the 4th of May 2000 inclusive of his terminal benefits. This is claimed as incidental relief.
PW2 a former employee of the respondent fashioned out the entitlement of the appellant up to the year 2012 the day of his retirement in the normal cause of events. The claims are not speculative. PW2 gave the evidence that the terminal salary of the appellant was N75, 747.05 and not N65,857 .00 as compiled by the respondent. The total entitlement which the court shall order must be as follows –
The Annual Salary,
Annual allowances and other allowances based on per annum calculation payments from 1/4/94 to 13/2/2012, long service awards, outstanding benefits, terminal benefits, Company Provident Funds and Gratuity – all adding up to N13, 826,903.00.
The alternative payment as follows:-
Salaries and Allowances – 1/4/94, Basic Salary as at 1/4/94
Total Annual Allowances, Total other Allowances, Claim for 73 months, Long Service Awards, Outstanding benefits, Terminal benefits, Company’s Provident Fund and Gratuity – all adding up to N4, 871, 862.79 – Interest on payments at 21% from 1st April 1994 to 4th May 2000, and thereafter at 6% until payment is effected.
The learned trial judge should have ordered all claims to be paid to the appellant under special damages. Finally the court should have ordered that the appellant be given three months notice in writing with effect from the day of judgment on 4th of February 2000 – thereby ordering specific performance of this employment contract.
In his reply the respondent said that even where a contract of service is wrongfully terminated, the plaintiff will be entitled to damages for the wrongful termination of his employment and on the authorities as they stand he is only entitled to the salary and other entitlements he would have earned over the period of notice. AKINFOSILE v MOBIL 1969 NCLR 253 INTERNATIONAL DRILLING CO NIG LTD v AJIJALA 2 SC 115 WNDC V ABIMBOLA 1966 1 All NLR 159, NIGERIA PRODUCE MARKETING BOARD v ADEWUNMI 1972 1 All NLR pg 870 Pt 2, TAIWO v KINGSWAY STORES 1950 19 NLR 122, OLATUNBOSUN V NISER 1988 3 NWLR Pt 80 Pg 25 ONALAJA V AFRICAN PETROLEUM LTD 1991 7 NWLR Pt 206 pg 691 KADUNA ILES LTD v UMAR 1994 Pt 319 pg 143.
The respondent submitted further that in ordinary contract of employment where the terms provide for a length of notice before termination or salary in lieu of notice thereof the only remedy an employee who is wrongfully terminated can get is that sum that will be equivalent to the length of notice and any other legitimate entitlements due to him at the time the employment was brought to an end. KATTO V CBN, WNDC V ABIMBOLA 1996 4 NSCC 172, NIGERIA PRODUCE MARKETING BOARD V ADEWUNMI 1997 7 NSCC 199 662.
I must reiterate the position that traditional Common Law Rule which is applicable in Nigeria is that courts will not grant specific performance in respect of a breach of contract of service. As a general rule reinstatement is not ordinarily the remedy for breach of contract of service. This rule is based on the principles of confidential relationship between a master and servant which cannot continue in the absence of mutuality. It is only in special circumstances that remedy of special performance will be granted and what constitutes special circumstances depend upon the particulars of each case – and its making shall be at the discretion of the court. IMOLOAME V WAEC 1992 9 NWLR Pt 265 pg; 303 ARAROMI RUBBER ESTATES LTD v OROGUN 1999 1 NWLR Pt 586 pg 302, KATTO V CBN 1999 6 NWLR Pt 607 pg 390, OBOT V CBN 1993 8 NWLR Pt 310 pg 140, CUBAN v ARUKA 2000 13 NWLR Pt 683 pg 21.
On page 100 lines 6-17 – the learned trial judge held that:-
“In the instant case the defendant purported to terminate the plaintiff’s appointment by exhibit F dated 25th March 1994.
In Exhibit F the plaintiff was asked to return on 11th April 1994 to see the Personnel Controller when all his benefits will be calculated. Of course the letter is effective to terminate the contract but wrongfully. Once the court holds that a servant’s employment is terminated he is entitled to damages. However he is only entitled to what he would have earned over the period of notice required to lawfully terminate his employment. In the circumstance of this case I find and hold that the 3 months salary and other entitlements of the plaintiff will be calculated from the 11th of April 1994 and not 25th March 1994. In other words the plaintiff will be entitled among other relevant allowance for the period between 25th March 1994 to 11th April 1994.”
On page 101 lines 2-5 – the learned trial judge held that “The sum of N217, 751.09 is hereby entered in his favour being the sum admitted by the defendant as plaintiff’s entitlements as a result of the termination of the plaintiff’s appointment by the defendant. Plaintiff is also entitled to his salary and allowances to cover the period not calculated between 25th March 1994 and 11th April 1994”.
I hold that the learned trial judge’s decision cannot be faulted. The position of the law is that in an action for damages for wrongful dismissal based on breach of contract of employment – the normal measure of damages is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it, less the amount the employee could reasonably be expected to earn in other suitable employment because the dismissed employee like any innocent party following a breach of contract by the other party, must take reasonable steps to minimize the loss. In the instant case clause 5 of Exhibit A provides for mutual rights of termination by three months notice or payment of three months salary in lieu of notice. The breach of contract established here lies in the fact that the appellant was not given three months notice of termination nor paid three months salaries in the absence of the notice. The measure of damages to which the appellant is entitled is no more than three months salaries – with all his entitlements as tabulated. SHELL PETROLEUM v. DEVELOPMENT CO (NIG) LTD V IFETA 2001 11 NWLR Pt 724 pg 473, WNDC V ABIMBOLA 1966 NWLR 381, G.B. OLLIVANT (NIG) LTD V AGBAKIABA 1972 2 SC 137, NPMB v ADEWUNMI 1972 1 All NLR Pt 2 pg 433.
Furthermore court will be justified in interfering with the award of damages made by a trial court when:-
a) The trial court has acted under a mistake of law or
b) It has acted in disregard of principles of law or
c) It has acted under a misapprehension of facts or
d) It has taken into account irrelevant matters or
e) Injustice would result if the appellate court does not interfere
f) The amount is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damages SOLEL-BONEH OVERSEAS NIG LTD v AYODELE 1989 1 NWLR Pt 95 pg 549; U.B.N. LTD v ODUSOTE BOOKSTORES LTD 1995 9 NWLR Pt 221 pg 558; OGUNDIPE v A-G KWARA STATE 1993 8 NWLR Pt 313 pg 558; JOHN HOLT VENTURE LTD v OPUTE 1996 9 NWLR Pt 470 pg 101; MOMODU v UNIVERSITY OF BENIN 1997 7 NWLR pt 513 pg 479; A-G. LEVENTIS (NIG) LTD v AKPU 2002 1 NWLR Pt 748 pg 182.
None of the foregoing is applicable to the damages.
In the evidence before the court the appellant based the guantum of damages on factors like his health and that his payment of his entitlements should be made till his retirement at the age of sixty in the year 2012. As rightly observed by the counsel to the respondent this court cannot make awards for injured feelings as this is a claim in contract and not in tort. The court cannot make any speculative awards tied to future services yet to be rendered.
The alternative in 13(f) page 28 of the manual that he shall receive commesurate pay in lieu of notice can only be interpreted to be applicable when his terminal salary cannot readily be quantified – the respondent will use any yardstick that is reasonable to determine what to pay him as renumeration in the circumstance of the case and in line with the company’s policy.
In tabulating his entitlements one shall look into the evidence witnesses and proposal for his entitlements as supported by oral and documentary evidence before the court as follows:-
1) Salary in lieu of notice – 3 months at N75, 000 per annum which is N18, 750.00
Salary in lieu of leave N14,075.89
Leave allowance 5,295.70
Gratuity of N89,041.67
Provident Fund –
(a) N25, 015.09
(b) N50,091.18
The salary to cover the period 25th of March 1994 and the 11th of April shall be paid – which shall be fixed by this court as a month’s salary – N6,250 Interests on any award – either pre-judgment or post judgment interests have not been vigorously pursued. There are issues on which counsel have to satisfy the court on their applicability in the circumstance of this case.
The counter-claim appears to have died a natural death with the judgment of the trial court as it is not an issue before this court. On the overwhelming evidence before this court – this appeal lacks substance and merit – it shall be and is hereby dismissed. Judgment of the lower court is affirmed.
N10,000 costs is awarded in favour of the respondent.
Other Citations: (2002)LCN/1267(CA)