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Dr. Ben O. Chukwumah V. Shell Petroleum Development Company Of Nigeria Limited (1993) LLJR-SC

Dr. Ben O. Chukwumah V. Shell Petroleum Development Company Of Nigeria Limited (1993)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiff, Dr. Ben O. Chukwumah is a registered medical practitioner and a specialist in obstetrics and gynecology. In October 1975 he was offered (and he accepted) a locum appointment by the Shell Petroleum Development Company (Nig) Ltd, as a medical officer in the company’s service at its Port-Harcourt branch. By a letter dated 26th November 1976 the company offered him (and again he accepted) a regular appointment as a general duties Industrial Medical Officer at its Warri branch with effect from 17th December 1976. He performed so well that a year later his appointment was confirmed and he became a member of the Shell-BP Contributory Pension Fund and was entitled to other benefits other employees of the company enjoyed. It would appear, however, that relations between him and employer soon became strained and by a letter dated 18th August 1981 his appointment with the Company was terminated with effect from the date of the letter.

While in the employ of the Company, the plaintiff was residing with his family in a house provided by the Company and situate within its premises at Warri. With the termination of his employment, the Company gave him a month’s notice to vacate the house. According to the plaintiff, he was ejected from the house on 15th October, 1981.

Aggrieved by the termination of his employment and his ejection from the company’s house he occupied as a paying tenant, plaintiff sued the Company in the High Court of the former Bendel State, in the Warri Judicial Division claiming:

“(1) A declaration that the defendants’ letter dated 18th August 1981 addressed by the defendants’ branch at Warri to the plaintiff at Warri by which the defendants purported to terminate the employment of the plaintiff with the defendant company is actuated by malice and bad faith, is grossly unreasonable and capricious and is ineffective to terminate the plaintiff’s said employment.

(2) Further and in the alternative, the plaintiff claims from the defendants the sum of N385,529.00 (Three hundred and eighty five thousand, five hundred and twenty nine Naira) being compensation for the loss caused to the plaintiff by the defendants by reason of their so acting maliciously, capriciously, grossly unreasonably and in bad faith to the detriment of the plaintiff. (3) The plaintiff also claims the sum of N100,000.00 (one hundred thousand Naira) being damages for trespass in that the defendants on 17th September 1981 invaded the residence of the plaintiff situate at 4 Benue Road, Ogunu, Warri, vi et armis, which at all material times is occupied and is in possession of plaintiff and therein disconnected the electric power and water supply to the premises to the inconvenience of the plaintiff and generally committed sundry, wanton acts of trespass and annoyance in the said premises in the bid improperly and unlawfully to oust the plaintiff from possession.

(4) An injunction restraining the defendants, their servants and/or agents from disturbing the possession of the plaintiff of the said premises.”

Needless to say that the company resisted the claim.

Pleadings having been ordered and exchanged and amended with leave of court (the plaintiff also filing a reply to the amended statement of defence), the case proceeded to trial at the end of which, after addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment, found that:

“The plaintiff is not entitled to any of the reliefs claimed by him. I hold that he is only entitled to the two month’s salary in lieu of notice and other dues which the company stated in his letter of termination that it would credit him with. Subject therefore, this action is dismissed.”

Being dissatisfied with this judgment, the plaintiff unsuccessfully appealed to the Court of Appeal. He has now further appealed to this Court upon five grounds of appeal which, without their particulars read as follows:

“1. The Court of Appeal erred in law in its conclusion that the circumstances under which a court could grant the declaration sought are:

‘such circumstances arise where the employment has statutory flavour and creates an atmosphere relatively different from the ordinary relationship of master and servant or where the person dismissed or terminated occupied a special legal status such as tenure of public office….. ‘

and by refusing thereby to allow the appeal from the refusal of the High Court to grant the declaration sought.

  1. The Court of Appeal erred in law in the construction which it placed on the contract of service when it held:

‘The offer to pay the money in Exhibit 14 to my mind sufficiently comply with the respondent’s obligations as per Clause 11 of Exhibit 11…….I cannot accept the proposition that the money must be paid before the termination takes effect.’

  1. The Court of Appeal erred in law in failing to consider all the issues of law raised in the complaint relating to the appeal from the trial court’s refusal to grant the claims for trespass and injunction by limiting its consideration to the questions: Whether the appellant was a licensee or a tenant under the Rent Control and Recovery of Residential Premises Law 1977 of Bendel State and that of issue estoppel.
  2. The Court of Appeal erred in law in upholding the decision of the High Court which held that Exhibit ‘C’ a circular letter to Oil Companies by the NNPC, as agent of the Federal Government, does not form part of Exhibit ‘N17’ and that only the term of Exhibit 17, must regulate the rights and obligations of the appellant and the respondent.
  3. The Court of Appeal erred in law when instead of dealing with the issues raised by the appellant, it formulated new issues and foisted them on the issues formulated by the respondent in his brief, when there was no suggestion that the issues as stated by the appellant failed to reflect accurately the grounds of appeal.

Pursuant to the rules of this Court, the parties, through their counsel, filed and exchanged their respective written briefs of arguments. In the appellant’s brief, the following questions are set down as calling for determination in this appeal, that is to say:

“(i) Are the special circumstances upon which a Court should exercise its discretion to make a declaration that a termination of employment is wrongful limited to ‘where the employment has statutory flavour and creates an atmosphere relatively different from the ordinary relationship of master and servant or where the person dismissed or terminated occupied a special legal status such as tenure of public office

(ii) What is the true and correct position in law in respect of a lawful determination of a contract of employment which is determinable by two months notice or the payment of two months’ salary in lieu of notice – is the contract lawfully determined where neither the appropriate notice under the contract is given nor actual payment or tender of salary in lieu of notice

(iii) Was the appellant a tenant or a licensee in the premises which he occupied of the respondent at 4 Benue Road, Ogunu Residential Area -AND if he was a tenant (OR whether or not he was a licensee therein) was it not a breach of the tenure for the respondent to have:

(a) dispossessed the appellant and his family without due compliance with the provisions of the Rent Control And Recovery of Residential Premises Edict, No.4 of 1977 of Bendel State

(b) ousted the appellant and his family during the pendency of a claim for injunction to restrain the respondent from turning the appellant out of possession

(iv) Was the appellant not entitled to the damages claimed for trespass, and to the injunction prayed for to restrain his ouster, pendente lite

(v) Can the relationship between the appellant and the respondent be isolated (or otherwise completely severed) from the expressed policy of the Federal Government of Nigeria communicated in Exhibit C, which the Nigerian National Petroleum Corporation (NNPC) was enabled to make in furtherance of its statutory functions and powers contained in the NNPC Act 1977 No.33, or otherwise ignored’”

For his part, learned Senior Advocate appearing for the Defendant Company set out the following four questions in his brief:

  1. Were the learned Justices of the Court of Appeal wrong in affirming the judgment of the learned trial Judge dismissing the appellant’s claim for the declaratory relief having regard to the state of the law and the facts established
  2. Where a contract of employment contains a mutual right of either the employer or the employee to terminate the said employment, can the exercise of that contractual right of termination be questioned on the ground that such exercise was actuated by malice, bad faith, improper motive etc, or put in another way, were the Justices of the Court of Appeal wrong in affirming the decision of the learned trial Judge that the appellant’s contract of service with the respondent as evidenced by Exhibit N17 was rightly terminated by Exhibit N14
  3. Were the learned Justices of the Court of Appeal wrong in upholding the learned trial Judge’s conclusion that it is Exhibit 17 (and not exhibit C) which regulated the right and obligation of the appellant and respondent in respect of appellant’s employment. Did Exhibit in fact take away from the respondent, its contractual right to terminate the appointment of the appellant as provided for in Exhibit 17
  4. Were the learned Justices of the Court of Appeal wrong in upholding the judgment of the learned trial Judge dismissing appellant’s claim for trespass in this action”

Having regard to the judgment appealed against and the grounds of appeal, it is my view that the questions as formulated in the respondent’s brief are to be preferred. I must observe however that the two sets of questions are not too dissimilar. For the purpose of the determination of this appeal, I shall nonetheless adopt the questions as formulated in the appellant’s brief.

Two exhibits stand out clearly in this appeal. They are exhibits N17 – the letter by which the plaintiff was offered employment by the defendant, and exhibit N14 dated 18th of August 1981 by which plaintiff’s employment was terminated by the defendant. As these two exhibits feature prominently in this matter I shall set them out in extenso at this stage of this judgment. Exhibit “‘N17” reads:

“THE SHELL-BP PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED POST OFFICE BOX 230, WARRI NIGERIA

DATE: 1/l2/76

TO: Dr. Benedict O. Chukwumah,

Present.

Dear Dr. Chukwumah,

CONTRACT OF SERVICE NSS

We are pleased to advise you that we hereby offer you employment as a member of the Senior Staff of our company.

So that there may be a clear understanding of the terms of your employment, we are setting them out in this letter. They are as follows:

  1. You shall be employed as from 17th December, 1976.
  2. Your place of engagement is Warri.
  3. After and if you complete one year’s service you will be formally confirmed in your employment and you will be entitled, subject to the consent of the Trustees, to join the Company’s Provident and Pension Fund.
  4. Your salary will be at the rate of N11,502.00 per year, subject to such increases as we may grant to you from time to time at our discretion.
  5. We undertake during your service to grant you such allowances, privileges and benefits as we may decide from time to time.
  6. You agree during your employment to give your whole time service (including rest days & Public Holidays if the work so requires) to us or any of our Associated Companies in accordance with the orders and directions from time to time given to you by us, to work and reside in such places in the Federal Republic of Nigeria or elsewhere as we may from time to time require, and to obey all applicable rules, regulations and other practices from time to time in operation for the guidance and conduct of staff employed by us, or by any of our Associated Companies.
  7. If it should be necessary, in pursuance of your employment to travel by air, you hereby agree to be prepared to fly by fixed wing aircraft or helicopter of any recognised airline or owned or chartered by us.
  8. In cases of illness, duly certified by our Medical Officers, which prevents you from performing your normal duties, we undertake to pay your full salary to a maximum of 28 days absence per year. Should your illness extend beyond that maximum, your case shall be reviewed by us and our decision regarding further payments will be final. No payments whatsoever will be made if the illness is due to your negligence or misconduct.
  9. You will be entitled to 36/ – consecutive days’ leave after each year of service.
  10. You will be required to make your own housing arrangements.
  11. You or we, shall have the right at any time 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 on the completion of five years of service, the period of notice shall be three months, or three months’ salary in lieu of notice.
  12. We shall have the right at any time, summarily to dismiss you, for any cause which justifies summary dismissal, including but not limited to, serious misconduct, dishonesty, actions considered prejudicial to our interest or actions conflicting with your obligations under Clauses 6 and 13 of this letter. In case of such dismissal, you shall not be entitled to any notice or payment in lieu.
  13. You hereby acknowledge that you have read our rules relating to confidential information and inventions attached to this letter. You hereby agree to be bound by all the undertakings of the said rules which form part of this letter of agreement.

Please confirm your agreement and acceptance to the above terms and conditions by completing, dating and signing over a 15k stamp, the declaration on the attached duplicate of this letter.

Yours faithfully,

For: THE SHELL-BP PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED

(SGD)

E.O. UGHOVWA

HEAD PERSONNEL SERVICES

TO: The Shell B.P. Petroleum Development Company of Nigeria Limited.

I, DR. BENEDICT ODIROMIWE CHUKWUMAH having read the foregoing letter and the rules concerning confidential information and inventions, accept employment with you on the terms and conditions set out therein and I agree to be bound by these terms and conditions in all respects.

(SGD)

Dr. B.O. Chukwumah”

The penultimate part of exhibit N 14 also reads as follows:

Dear Dr. Chukwumah,

Termination of Appointment

We refer to our recent discussions and hereby confirm that, in accordance with Clause II of your contract of Service dated 1st December 1976, your service will no longer be required as from today.

As at 17th August 1981 you were due 24 days’ proportionate leave and a proportionate leave allowance of N1,189.16 for your service during the period 7/12/80 to 16/8/81.

Your final date on our payroll will be 18/9181 (which includes eight (8) days’ leave brought forward from your last leave), up to which date we shall pay you your current basic salary and applicable standard allowances. In addition, we shall pay you the follows (sic):

  1. Two months’ basic salary in lieu of notice.
  2. Your entitlement in the Shell Petroleum Development Company of Nigeria Limited Non-Contributory Pension Fund.
  3. Pro-rated end-of-year bonus.
  4. Your proportionate leave allowance stated above.

From the above entitlements (but with the exception of Pension Fund entitlements) we shall make the usual monthly deductions for PAYE Income Tax, National Provident Fund and Shell Medical Schemes.

The exact details on the payments and deductions referred to above will be included in a confirmatory Statement of Account which will be forwarded to you separately in due course. We would, therefore, require your future contact address.

We request you contact the Staff Supervisor (PERW/11) in Personnel Services to clarify any points you may have on the above and to surrender your Shell Identity Card and Driving Permit. You should contact FIN/133 to complete certain documents in connection with the payment of your final entitlements.

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We normally offer to our employees leaving our service the opportunity to undergo a routine exit medical examination with our Medical Department. If you wish to avail yourself of this facility, please contact our Medical Department to make the appointment. However, if you are not interested in the offer, would you please sign and return to us the attached waiver form.

We would also advise you that as per Clause 12 of the Tenancy Agreement for use of your residence at No.4, Benue Road, Ogunu Residential Area, we now give you one month’s notice to vacate the premises. By 16th September, 1981, we expect you to move out all your personal belongings from that house and leave the house in a habitable condition as it was when it was allocated to you.

Finally, we thank you for your services with this Company. Your certificate of service is attached.

Yours sincerely,

Sgd. A. Moody-Stuart

Divisional Manager – West”

These two exhibits are crucial in determining the terms of the contract of employment entered into between the plaintiff and the defendant and whether those terms were complied with when the defendant- terminated plaintiff’s employment on 18th August, 1981. Having said as much, I now proceed to consider the merits or otherwise of this appeal adopting as I have indicated earlier, the questions as formulated in the appellant’s brief.

QUESTIONS (J) & (2): In his amended Statement of Claim, plaintiff pleaded inter alia as follows:

‘”‘7. The plaintiff was by being a confirmed employee entitled to remain so till age of fifty-five years.

  1. The plaintiff’s salary at the time of his removal from employment by the Company was N21,,405.00 per annum. xxxxxxx
  2. The Company’s policy permitted its Medical Doctors to engage in private practice; and all the Nigerian Doctors, including the plaintiff, took advantage of this policy, keeping strictly to the conditions laid down by the company for such private practice. The Company in a report referred to in paragraph 10(ii) acknowledged that the plaintiff’s private practice did not engender any conflict of interest.
  3. In or about 1978, the Company’s Senior Medical Officer, Dr. Nya without any ascertainable or just cause, developed intense hatred against the plaintiff and proceeded unreasonably and capriciously to find fault in everything the plaintiff did.

xxxxxxxx

  1. Actuated by hatred, caprice, malice and improper motive, Mr. M. Moody Stuart, tried to cajole the plaintiff into resigning his appointment, but the plaintiff let it be known that as he wished to serve the company until retiring age had no intention of resigning his appointment.
  2. Mr. Moody-Stuart purporting to act for the Company, thereupon unlawfully, but effectively, removed the plaintiff from his employment with the company by means of a letter dated 18th August. 1981, in addition to other physical threats by the servants and agents of the company.
  3. The plaintiff will at the hearing contend that the said letter by which he was removed from his employment was actuated by malice and bad faith and is grossly unreasonable and capricious and ineffective to terminate the plaintiff’s said employment.
  4. The plaintiff avers that the company has not tendered to the plaintiff any of the terminal benefits which it referred to in its letter dated 18th August, 1981.”

There is nothing in exhibit N17 to denote the duration of the contract of employment plaintiff entered into with the defendant but clauses II and 12 of paragraph 2 of the said exhibit provide the manner of putting the contract to an end. Although plaintiff pleaded in paragraph 7 of his amended Statement of Claim that as a confirmed employee of the defendant, he was entitled to remain in service until age 55 years (a fact denied by the defendant), led no evidence in proof of this averment other than his ipse dixit on the issue when he said – “The retiring age for male employees is 55 years.” Plaintiff hers not produced any document to prove that, as a confirmed officer, he was entitled to remain in service until age 55 years. Be that as it may, the main complaint of the plaintiff was that his termination was actuated by malice. The learned trial Judge in his judgment dealt with this issue when he said:

“He sought to establish that his termination of appointment was in motivated and in fact the claim as stated on the Writ of Summons and incorporated by reference in the amended statement of claim uses such epithets as actuated by malice, bad faith,grossly unreasonable, and capricious. I must say that in an action like this such issues do not go to enhance the entitlements of a plaintiff. They do not indeed help his cause of action. They simply do not matter. They were somehow raised in Addis v. Gramophone Company Limited (supra) (1909) AC 488) when the plaintiff claimed damages of 600pounds because of the abrupt and oppressive way in which his services were discontinued but Lord Loreburn LC said that that contention could only breed baren controversies and increase costs ….

(Square brackets are mine)

Later in the judgment he added:

“That being so the matter of the termination of appointment certainly resolves itself upon contractual relationship in law as the plaintiffs employment was governed by the contract into which he entered at the time of his appointment. The plaintiff himself said it all when he was confronted with the relevant documents. The circumstances in which the employment was terminated, the injured feelings of the plaintiff or the inconveniences he may have suffered cannot be taken into consideration so long as the termination is in accordance with the terms of the contract:’

I agree entirely with the learned trial Judge. Both in his pleadings and evidence the plaintiff concentrated so much on his allegations of bad faith, hatred, malice etc; but all these are of no consequence in determining whether or not his contract of employment was lawfully terminated by the defendant, considering that no reason was given for the termination.

Apart from the front on which the plaintiff predicated his claims, two new fronts were opened both in the pleadings and evidence and particularly in the grounds of appeal. These create issues for determination and submissions of counsel before us. The two new fronts are (1) non-payment by defendant of plaintiff’s salary in lieu of notice at the time of termination and (2) non-observance by the defendant of the circular issued by the N.N.P.C. I shall now proceed to consider these two new fronts notwithstanding that claims (1) & (2) remain unamended. The first new front is the basis of question 2 formulated by the plaintiff in his brief. The second is covered by Question 5.

The first front deals with the effect on plaintiff’s termination of service of non-payment of his two months’ salary in lieu of notice at the time of his termination. Exhibit N17 has reduced into writing the terms of the contract between the parties and it is this document that will determine whether or not plaintiff’s employment was lawfully terminated by exhibit N14.

That being so therefore, one has to look at the contract. Clause 11 of Exhibit N17 provides for the giving of notice or the payment of salary in lieu of notice. The plaintiff’s appointment having been confirmed and he not having served up to 5 years at the time his appointment was terminated, was entitled only to two months’ notice or two months’ salary in lieu thereof. Exhibit N14 that is, the letter of termination did not give any notice as the termination was to take effect from the date of the letter. Paragraph 3 of Exhibit N14 states that two month’s salary in lieu of notice would however, be paid to the plaintiff. Plaintiff, both in paragraph 19 of his amended statement of claim (by implication though) and in his evidence, denied that he was paid any salary in lieu of notice. In paragraph 7 of its amended statement of defence the defendant pleaded inter alia:

“The defendant denies paragraphs 16, 17, 18, 19, 21 and 22 of the Statement of Claim and states that plaintiff’s employment was lawfully terminated by its letter dated the 18th day of August, 1981 in accordance with plaintiff’s contract of service. It further states that in terminating plaintiff’s employment, it was not actuated by malice either of its own or that of any other of its employees. Defendant shall contend that the plaintiff’s employment having been terminated in accordance with the contract of service, the motive (if there was one) which moved it to exercise its right under the contract is irrelevant. Plaintiff’s terminal benefits were duly paid through his usual mode of payment to wit – through the bank but these have now been returned to the defendant with advise that plaintiff has closed his account. Defendant may rely on the relevant banking documents and states that it is not obliged to employ the plaintiff until any age or the age of retirement.”

It would be observed that the paragraph above speaks of payment of terminal benefits but not payment of two months’ salary in lieu of notice. On the latter entitlement the paragraph is silent. D.W.4 Biliaminu Akanni Babatunde, Controller of Finance with the defendant company who testified at the trial for the defence threw some light on the issue. He deposed:

“I know the plaintiff. He was a member of staff of Shell Company. He has since left. His entitlements at the time he left have not been received by him. The defendant/company did not refuse to pay him. On 25th November 1981 we instructed the First Bank of Nigeria Limited, Warri to pay his entitlements to his account with that bank in accordance with the normal practice of payment of salaries and other entitlements to Shell staff. That was the normal way we were paying the plaintiff while he was in the service of the company. We got two credit advices which the said bank sent to us saying they could not pay the plaintiff.”

Cross-examined, he testified thus:

“It is true the plaintiff nominated the First Bank for the purpose of receiving his salary paid by Shell Company. It is true his appointment was terminated in August, 1981. It is true that after his appointment had been terminated he would not expect Shell to pay his salary for subsequent months. I would not be surprised if under the circumstances he closed his account with the First Bank. Exhibit O is for salary in lieu of notice.

On re-examination, he said:

‘The salary and other entitlements are paid through the bank nominated by a staff on engagement. The plaintiff’s entitlements apart from his salary were also paid through the First Bank.”

What has emerged from the evidence of this witness is that payment of salary in lieu of notice was not made to the plaintiff through his designated bank until the 25th of November, 1981.

The question now arises – is the offer of salary in lieu of notice made three months after the peremptory termination of plaintiff’s employment in compliance with clause II of the contract of service between the parties Learned Senior Advocate, Chief Chukura, for the plaintiff, submitted both in his brief and in oral argument before us that this would not be in compliance with the terms of the contract of service. He submitted that payment of salary in lieu of notice must be made at the time of termination of employment. For the defendant, the learned Senior Advocate Mr. Okpoko submitted that as exhibit N14 made to the defendant an offer of two months’ salary in lieu of notice, the court should hold that there was compliance with the terms of the contract. I observe that the learned Judges of the two courts below appear to have favoured Mr. Okpoko’s line of argument. With profound respect, however, they appeared not to have adverted their minds to the evidence of D.W.4 to the effect that payment was not made to plaintiff’s bank until 25th November 1981. In my respectful view, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. Thus in the case on hand, the defendant having terminated plaintiff’s employment without giving him the required notice, must pay him at the time of the termination, salary in lieu of notice. Payment made three months after termination cannot be in fulfilment of defendant’s obligation under clause II. The defendant ought to have paid the salary either directly to the plaintiff or through his designated bank on 18th August 1981; and, where it is by payment into bank, the plaintiff must be so informed promptly. The payment into bank on 25th November 1981 cannot, in my respectful view, by any stretch of imagination, be said to be in compliance with clause II. Consequently I must hold that when on 18th August 1981 the defendant terminated the appointment of the plaintiff it did so without giving him two months notice nor pay him two months’ salary in lieu of notice as required by clause II of the terms of contract between the parties. In the circumstance, I must hold also that the termination of plaintiff’s employment by the defendant on 18th August 1981 was in breach of the contract between the parties and was therefore, wrongful.

Plaintiff claimed for a declaration that:

“the defendants’ letter dated 18th August 1981 addressed by the defendants’ branch at Warri to the plaintiff at Warri by which the defendant purported to terminate the employment of the plaintiff with the defendant company is actuated by malice and bad faith, is grossly unreasonable and capricious and is ineffective to terminate the plaintiff’s said employment.”

Both the trial High Court and the appellate Court of Appeal rejected this claim. To the extent that the declaration is predicated on the letter of termination being “actuated by malice and bad faith”, “grossly unreasonable and capricious” “and ineffective” to terminate the plaintiff’s employment, I agree with the two courts below that the claim must fail. As I said earlier in this judgment, malice, bad faith etc, are non-issues in determining the lawfulness or otherwise of the termination of the contract. Nor would it be right to say that the letter exhibit N14 is ineffective to terminate plaintiff’s employment. Of course the letter is effective to terminate the contract, howbeit wrongfully. Plaintiff admitted as much in paragraph 17 of his amended statement of claim.

Having held however that plaintiff’s employment was not terminated in compliance with the terms of the contract between the parties, is he entitled to reinstatement which, in effect, is what the claim for declaration is all about This issue has been dealt with exhaustively in the judgments of the courts below. The general law is that the court will not grant specific performance of a contract of service. Therefore, a declaration to the effect that a contract of service still subsists will rarely be made. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court. There is a long line of cases in support of this proposition of law: Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 559; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Ewerami v. African Continental Bank Ltd. (1978) 4 S.C. 99; Francis v. Kuala Lumpur Council/ors (1962) 3 All ER 633; Hanson v. Radcliff UDC (1922) 2 Ch. 507. Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship. Equally so where a special legal status such as a tenure of public office, is attached to the contract of employment. While I am not prepared to hold that the list of special circumstances is exhaustive, I must say however, that in the appeal on hand I can see no special circumstance to warrant a “declaration being made in his favour having regard to his admitted breach of clause 6 of the terms of his contract with the defendant which required that during his employment he must give his whole time service to his employer. In paragraph 11 of his amended statement of claim, he admitted that during his period of service with the defendant he engaged in private medical practice. Although he claimed in that paragraph that this was in accordance with the defendant’s policy, he did not prove this policy. Paragraph 11 was not admitted by the defendant – see paragraph 6 of the amended Statement of Defence. In conclusion I am of the view that the Court below was right in refusing to grant a declaration in favour of the plaintiff as claimed by him.

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The plaintiff also claimed, in the alternative, the sum of N385,529.00 being “compensation for the loss caused to the plaintiff by defendants by reason of their so acting maliciously, capriciously, grossly unreasonably and in bad faith to the detriment of the plaintiff”. In effect, he is claiming that sum as damages for wrongful (for the reasons given, which reasons are clearly untenable) termination of his employment. On the face of claim (2) as it stands and for the reason that the motive for terminating a contract is not a factor in determining its lawfulness or otherwise that claim could not stand and ought to be dismissed.

Having held however that his employment was wrongfully terminated, he is undoubtedly entitled to damages. On the authorities as they stand, he is only entitled to what he would have earned over the period of notice. See Nigerian Produce Marketing Board v. Adewunmi (1972) 1 (Pt.2) All NLR 870 where Fatayi-Williams 1 S.C (as he then was) delivering the judgment of this Court said at p.875 of the report:

“Where, as in this case, the defendants/appellants have failed to follow the machinery laid down in the above provisions of paragraph 1402, the measure of damages, as Mr. Lardner has rightly pointed out, is enough money to put the plaintiff/respondent in the same position as if such machinery has been followed. In other words, the plaintiff/respondent is only entitled to what he would have received had he been given the six months’ notice provided for in paragraph 1402 of the conditions of service applicable to the plaintiff/respondent. Since his salary at the time of his dismissal on the 4th May, 1958 was 2,040.00pounds. per annum, he would be entitled to only 1,020pounds, in this respect.”

See also International Drilling Company Nigeria Ltd, v. Ajijala (1976) 2 SC 115; Akinjfosile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159. See also Mayne and McGregor on Damages 12th Edition paragraph 608 et seq.

It is not in dispute in this case that exhibit N17 constitutes the contract between the two parties. The plaintiff admitted as much when in his evidence under cross-examination he said:

“I see exhibit N 17. It is the contract of service between me and the defendant company. Clause II is in respect of how appointment may be terminated by either party. It is true under this clause there is actual right by either party to terminate the contract of employment.

It is true that at the time my appointment was terminated, I had not served 5 years. It is true that my appointment could have been terminated by either party by giving 2 months notice or 2 months’ pay in lieu of notice.”

Under the contract of service plaintiff’s appointment could he terminated by the defendant by giving him two months’ notice or pay him two months’ salary in lieu of notice. As his appointment was summarily terminated on 18th August, 1981, plaintiff was entitled to two months’ salary in lieu of notice. In my respectful judgment the court below was right in holding that is all that he was entitled to. In addition, however, he would also be entitled to other allowances for the period of two months normally enjoyed by him such as car allowance, et cetera. Equally so he would be entitled to his entitlement under the pension scheme.

QUESTION 5: It is convenient to deal with this Question at this stage. Plaintiff relies on Exhibit C in support of his claim to reinstatement. In his amended statement of claim he pleaded, inter alia, as follows:

“3. The Government of the Federal Republic of Nigeria is the majority shareholder in the Company holding therein 80% of the equity share capital of the company; and when it does not deal directly with the company, it acts through the instrumentality of the Nigerian National Petroleum Corporation.

  1. When the Company’s functionaries believed that they had perfected their grand design unlawfully to remove the plaintiff from his employment they sought the concurrence of the majority shareholders, the Government of Nigeria (per the N.N.P.C.) in their plan but by letter (reference MD, 21,1) dated 26th June 1981, the N.N.P.C. gave its considered opinion, wholly and entirely rejecting the proposal to remove the plaintiff.”

Exhibit C is a circular letter by the NNPC to oil companies and dated 16th February 1978. It is a policy circular letter and reads in full:

“Nigerian National Petroleum Corporation

P.M.B. 10701

Lagos, Nigeria.

16th February, 1978

Ref. No. CABC/Co.II/Vol.5

To: All Oil Exploration & Production Companies,

Oilfield Service Companies,

Petroleum Refining Companies, And

Petroleum Products, Marketing Companies.

Sir,

EMPLOYMENT OF NIGERIANS

The Federal Commissioner for Mines and Power in his circular letter No. MMP.3007/S.9/15 of 3rd March, 1972 drew the attention of local oil companies to some incidents connected with their employment of Nigerians which tended to obstruct and frustrate Government’s policy of effective Nigerianization within the industry. Some companies have since tried to co-operate with Government in that direction but there are still indications that the proper working atmosphere is not being created to facilitate the recruitment and retention of qualified and capable Nigerians. Various management tactics are sometimes employed to justify terminating the appointments of some Nigerian employees or to obtain their resignation through frustration.

This unsatisfactory situation makes it necessary for me to ask you, once again, to re-examine your recruitment and employment policies and ensure that they do not conflict with the policies of Government and they conform with the principles of good personnel management. I can assure you that it has never been the intention of Government to obstruct the normal process of administration and discipline within your organisations, but I cannot remain indifferent to any practice by the companies which would tend to hinder the active and meaningful involvement of Nigerians in an industry so vital to the economic survival of this country.

In order to remove any doubts as to the category and level of Nigerian staff covered by this circular, I wish to make it clear that all cadres of staff – professional, administrative, and technical- who have been confirmed in their appointments are included.

Probationary staffs are thus not covered by the circular. Those earning basic salaries less than N6,000.00 p.a. are also not covered. In addition, those companies which have not already submitted a full list of their Nigerian employees should do so indicating their dates of appointment, positions, qualifications and salaries.

A quarterly supplement indicating changes in the list, with reasons for such changes, should continue to be submitted not later than four weeks after the end of each quarter. These and similar submissions should be marked for the attention of the Manager, Manpower Planning & Development.

The procedure currently in force concerning cases of resignation and termination of appointment will continue. For the benefit of those companies not conversant with the procedure, whenever it is intended to terminate the appointment of an affected Nigerian employee or when such an employee indicates his intention to resign his appointment, the following particulars should in each case be forwarded to the Nigerian National Petroleum Corporation:

(a) The name, appointment, salary, length of service, nature of work, etc. of the employee.

(b) The reasons, fully documented, for termination or resignation, as the case may be.

(c) Terminal benefits accruing, or paid to the employee.

(d) The names, nationalities and academic qualifications of employee by whom they will be replaced, with particulars of appointments, salaries, etc, as in (a) above.

I attach a copy of the circular outlining the procedure for your information.

Final action on your part should await the views of the Corporation.

Submission of these details will facilitate prompt disposal of cases.

Yours sincerely,

(SGD)

(COL. M. BUHARI)

COMMISSIONER FOR PETROLEUM

FEDERAL MINISTRY OF MINES AND POWER

PRIVATE MAIL BAG 1257

LAGOS, NIGERIA

Ref. No. MMP/3007/S.9/15 3rd March, 1972.

TO ALL OIL EXPLORATION COMPANIES

AND OIL MARKETING COMPANIES

Sir,

EMPLOYMENT OF NIGERIANS

My attention has been drawn to some disquieting incidents connected with the employment of Nigerians in the oil industry. For a long time, this Ministry has not been satisfied with the efforts made by oil companies to recruit and retain capable Nigerians. In recent months, various tactics have been used by the companies to terminate the appointments of senior Nigerian employees or to secure their ‘voluntary’ resignation. The result is that government’s policy of Nigerianisation is being openly and flagrantly frustrated by oil companies.

  1. This situation cannot be allowed to continue. Government has, so far, relied on the good faith and co-operation of the oil companies to support, and actively pursue, the policy of Nigerianisation. If oil companies behave as if that faith was misplaced and continue deliberately to obstruct the policy, it may be necessary to resort to legislation. For the present, however, I wish to advise you, in your own interest, to re-examine your recruitment and employment policies and ensure that they are strictly in accordance with the policies of Government as well as of a sound management.
  2. In the meantime oil companies should submit to the Director of Petroleum Resources, within 14 days of the date of this letter, the names of all senior Nigerian employees (above skilled labour grades) whose appointments have been terminated or who have been made to resign, within the last six months.

In each case, full particulars should be given of

(a) the name, appointment, salary, length of service, nature of work, etc. of the employee;

(b) the reasons, fully documented, for termination or resignation, as the case may be;

(c) terminal benefits accruing, or paid, to the employee;

(d) the names, nationalities and academic qualifications of employees by whom they were replaced with particulars of appointments, salaries, etc, as in (a) above.

  1. In future, when it is contemplated to terminate the appointment of a senior Nigerian official (above the grade of skilled worker), or when such official gives notice of his intention to resign his appointment, the procedure outlined in items (a) and (b) of paragraph 3 above should be followed. In the case of proposed termination of appointments, the information should be sent to the Director of Petroleum Resources well in advance of the action contemplated, and no final action should be taken by the company until the views of the Ministry have been conveyed to the company. In this connection, all companies to whom this circular is addressed should send, within 14 days of the date hereof, a full list of senior Nigerians in their employment together with particulars of their positions, salaries, date of appointment, etc. A monthly supplement indicating changes in the list, with reasons for such changes should be submitted to reach him not later than two weeks after the end of each month.
  2. Oil exploration companies have an obligation under the law to achieve a certain degree of Nigerianisation by a specific date. The procedures outlined above are intended both to help them in the achievement of this target as well as to protect the interests of all concerned. In the case of oil marketing companies, any senior Nigerian employees will not be considered as being in the true spirit of the marketer’s licence by virtue of which they operate.

Yours sincerely,

(Sgd.)

(ALHAJI SHETTIMA ALI MONGUNO)

COMMISSIONER FOR MINES AND POWER

Learned leading counsel for the plaintiff, Chief Chukura SAN relying on Exhibit C had submitted before the trial court that where the defendant sought to terminate the employment of an employee and NNPC did not give concurrence, the defendant could not terminate. In effect, what learned Senior Advocate was urging on that court was that Exhibit C must be deemed to be incorporated into the contract of service between the plaintiff and the defendant. This is what the learned trial Judge said on this submission:

“There was the contention that the company did not comply with what has been referred to as the Joint Venture Agreement between the Nigerian National Petroleum Corporation and the company. The said Joint Venture Agreement was not tendered in court and whatever it contains is a matter of mere speculation for the purposes of this litigation. It was in no way incorporated by reference otherwise into the contract of service (Exh. N17) signed between the plaintiff and the company so as to make it part of the said contract and binding on the parties. Therefore only the terms of Exh. 17 must regulate the rights and obligations of the plaintiff and the company: see the Supreme Court per Coker JSC in College of Medicine of University of Lagos v. Dr. S.A Adegbite (1973) 5 SC 149 at 162.

In law there is no privity of contract between the plaintiff and the company in respect of whatever was agreed between it and the Nigerian National Petroleum Corporation whereby the plaintiff may be permitted to derive any benefit thereunder. This principle of law that a stranger cannot sue upon a contract entered into between two parties, he not having furnished any consideration for it, has long been settled. As far back as 1861 in Tweddle v. Arkhinson I.B. & S.393. reported (1881-83) All ER. Rep. 369, it was held to be the law. Dunlop Pneumatic Tyre Company Limited v. Selfridge and Company Limited (1915) AC 847, the plaintiffs/appellants sought to derive benefit from an agreement between a company known as Messrs Dew and the defendants/respondents by suing upon it. It was held by the House of Lords that they could not. The observation of Viscount Haldane LC at pages 854-855 which is quite germane here is as follows:-

“………. the form of the contract which we have to interpret leaves the appellants in this dilemma, that if they say that Messrs. Dew contracted on their behalf, they gave no consideration, and if they say they gave consideration in the shape of a permission to the respondents to buy, they must

set up further stipulations, which are neither to be found in the contract sued upon nor are germane to it, but are really inconsistent with its structure. That contract has been reduced to writing, and it is in the writing that we must look for the whole of the terms made between the parties. These terms cannot, in my opinion consistently with the settled principles of English law, be construed as giving to the appellants any enforceable rights as against the respondents.”

The Court of Appeal agreed with the learned trial Judge on this issue. I also think that the learned trial Judge was quite correct in this exposition of the law. It is more so that the plaintiff did not make non-observance of the policy in Exhibit C part of his case for wishing to set aside his termination. I have referred earlier in this part of my judgment to the two paragraphs of his amended statement of claim touching on the relationship between the defendant Company and the Government of Nigeria. I can find nothing in those averments to suggest that Exhibit C was incorporated into Exhibit N17 and that it was plaintiffs case that non-observance of its contents rendered plaintiffs termination null and void. In any event, whatever the position of the NNPC in Exhibit B, it had been changed by its subsequent letter Exhibit S wherein it took the position – “However, we do appreciate that the strained relationship which has now developed between your management and Dr. Chukwumah does not provide a conducive (sic) atmosphere for the latter to perform properly as a medical doctor. For that reason, we would not object to Dr. Chukwumah withdrawing his services from your company under the terms of his employment”.

See also  E. O. Fasoro & Anor V. Olalere A. Beyioku & Ors (1988) LLJR-SC

It is in evidence from the plaintiff that he was advised by the defendant to withdraw his services but he bluntly refused. He thus left the defendant with no choice but to exercise its rights under Exhibit N17. I must also observe. as was rightly done by the learned trial Judge, that the joint Venture Agreement was not put in evidence even thought plaintiff, in paragraph 7(b) of his reply, said he would found on it. It is, therefore, difficult to say that the policy statement contained in Exhibit C was validly made by the NNPC and binding on the defendant. It certainly could not be made the basis of an action by the plaintiff or any other employee, unless it is incorporated into the contract of service of such employee.

Both in his brief and in oral argument before us, Chief Chukura, SAN referred to sections 4(1)(g), 4(1)(h) and S(1) (e) of the Nigerian National Petroleum Corporation Act, No.3 of 1977 (now sections S(1)(g),S( I)(h)and 6( I )(e) Cap. 320, Vol, XVIII Laws of the Federation of Nigeria 1990). These sections read:

“S(1) Subject to the provisions of this Act, the Corporation shall be charged with the duty of –

xx x xxx xxx

(g) doing anything required for the purpose of giving effect to agreements entered into by the Federal Government with a view to securing participation by the Government or the Corporation in activities connected with petroleum;

(h) generally engaging in activities that would enhance the petroleum industry in the overall interest of Nigeria.

6.(1) The Corporation shall have powers to do anything which in its opinion is calculated to facilitate the carrying out of its duties under this Act including, without limiting the generality of the following, the power –

xxxxxxxxxxx

(e) to train managerial, technical and such other staff for the purpose of the running of its operations and for the petroleum industry in general.”

I cannot see how these sections help the plaintiff or give his contract of employment with the defendant company any statutory flavour as to constitute special circumstanccs for granting a declaration in his favour. Section 5 relates to the general duties of the NNPC while section 6 relates to its powers. It is my respectful view that unless it is so specifically empowered in the agreement entered into with the defendant company by the Federal Government “with a view to securing participation by the Government or the Corporation in activities connected with petroleum” – in short, Joint Venture Agreement – the NNPC has no power under sections 5 and 6 involve itself in the day to day running of the defendant company. I am satisfied, on the facts of this appeal, that Exhibit C was never incorporated into Exhibit N 17 and gives the plaintiff no cause of action against the defendant company. In conclusion, I am of the view, and I so hold, that both the trial High Court and the Court of Appeal are right in their view of Exhibit C as not availing the plaintiff in this case.

QUESTIONS 3 & 4.-

These questions deal with plaintiff’s claims for damages for trespass and injunction. The plaintiff pleaded thus:

“23. The plaintiff is a tenant of the Company at No.4, Benue Road, Ogunu, Warri in that the plaintiff had exclusive possession of the said premises, paying rents therefor to the Company.

  1. The Company without due compliance with the law caused its servants and agents to enter the said premises on 17th September, 1981, Vi et armis which at all material times was occupied by and was in possession of the plaintiff, and therein disconnected the electric power and water supply to the premises to the inconvenience of the plaintiff and generally committed sundry and wanton acts of trespass and annoyance in the bid improperly and unlawfully to oust the plaintiff from possession.
  2. From 17th September 1981 to 15th October 1981, the company put the premises under seize (sic) harassing the plaintiff and his family even though there was a subsisting interlocutory application for an injunction pending in court.
  3. On 15th October 1981 with more than 10 Policemen the Company barred the plaintiff and his family from the said premises without permitting the plaintiff to clear all his effects therefrom. Most of the plaintiff’s personal property is still in the premises and the plaintiff has been refused ingress thereto to collect the same.
  4. The plaintiff will at the hearing rely on all the affidavits and counter-affidavit filed in court in urging the interlocutory application for injunction and will also rely on the decision of the court thereon made on 15th October, 1981, to found a plea of estoppel per res judicata in respect of the Trespass herein complained of.

The learned trial Judge, after reviewing and evaluating the evidence led on this issue found the claim not proved. The Court of Appeal agreed with him.

Trespass, of course, is a wrong against possession of land. It is not in dispute that by virtue of his employment. the plaintiff was let into possession of the premises situate at 4 Benue Road in the defendant Company’s estate at Ogunu and was paying rent to the Company. Under the contract by which he held the premises he was to quit the premises within one month of his ceasing to remain in the employ of the Company. When plaintiff’s employment was terminated on 18th August 1981, he was given notice by the Company to quit the premises by 18th September 1981. If he remained in possession after that date, he would become a trespasser. But this fact did not give the defendant company right to forcibly evict him. If it did so, it would be liable to the plaintiff in trespass. It is immaterial, in my respectful view, that he was a tenant or a licensee.

Plaintiff had made allegations of forcible eviction against the defendant company. I have examined the evidence proferred in support of these allegations but I regret to say that I found them unproven. Plaintiff alleged that the defendant disconnected power and water supplies to his premises. But in his evidence he said:

“Electricity is supplied by NEPA and water by Bendel State Water Board. Electricity and water bills are now paid directly by Shell and deducted from the salaries of staff members:’

Indeed, there is nothing in his evidence nor in that of his 2nd, 3rd and 4th witnesses to support his allegation of trespass. One is left with the evidence of plaintiff’s wife (P.W.S), Mrs. Maureen Chukwumah. She testified thus:

“I recall Thursday the 17th September, 1981. My husband traveled that day to Benin to return the next day. On 18th September he did not come back. He telephoned about 9 p.m. to say that he had been barred from entering the Shell Residential area by Shell security Nigeria Policemen at the gate. He said as a result, he would spend , the night in town with a friend. I was not surprised about his experience because earlier that day at about 2.15 p.m. on my way back from a Dental Surgery I was prevented at the gate from entering the residential area by Inspector Benson Oniyara and Sergeant Akpovite who said they had instructions not to allow me into the area. I asked who gave the instruction they said it was the Management. I asked whether it was Mr. Moody-Stuart or Mr. Ademiluyi. They said it was both of them.”

The witness gave further account of how she and her children were confined to within their premises for about 8 days and how eventually they vacated the premises.

The learned trial Judge, commenting on the evidence of this witness, observed:

“Anyway, looking at her evidence as it stands I find it extremely difficult to see any issue of trespass. At the best what it tends to show may be stated as (a) unlawful imprisonment and (b) breach of contract in respect of the licence.”

The Court of Appeal agreed with this observation. Musdapher J.C.A., in his lead judgment observed:

“I entirely agree, that it was only Mrs. Chukwumah, the wife of the appellant who gave evidence that she was at first refused entry into the Shell Compound and later when she entered, she was debarred from leaving. There is also the evidence of some visitors who were refused entry. These to my mind are no facts of trespass or put it in the words used in the particular of claim – ‘The defendants on 17th September, 1981 invaded the residence of the plaintiff situated at No.4. Benue Road, Ogunu, Warri vi et armis’ was not proved at all.

I have carefully read the evidence adduced, and I cannot find any proof that the respondents ‘invaded’ the premises aforesaid. In my view, the appellant had failed to make out a case for trespass and the Judge was justified in refusing to make an award for damages and order an award for an injunction.”

I have no reason to disagree with the above observation. It may be that the defendant company used some unorthodox method in seeing to it that the plaintiff vacated the house, such as preventing plaintiff and his visitors gaining entrance into the estate thereby preventing them coming to the house where he lived with his family. It is not the same thing as saying that trespass, as pleaded, was proved. In view of this conclusion I consider it necessary to dwell in depth on the issue whether the plaintiff was a tenant or licensee in respect of the premises, the subject matter of the claim for damages for trespass and injunction. I have no reason to disturb the concurrent findings of the two courts below. I hold, therefore, that the claims for damages for trespass and injunction were rightly dismissed.

The net result of all I have been saying is that this appeal succeeds only on the point as to the wrongfulness of the termination of plaintiff’s employment, he not having been given two months notice nor paid two months’ salary in lieu of notice at the time of the termination. Subject to this, I affirm the dismissal by the two courts below of his claims as contained in his writ of summons. As the authorities now stand, he is only entitled, as damages, to two months’ salary in lieu of notice and, in addition, to his terminal benefits – all of which were awarded him by the two courts below. To that extent I affirm the judgment of the two courts below. For the avoidance of doubt, plaintiff is entitled by way of damages not only to two months’ basic salary but to other monthly allowances (for 2 months) normally enjoyed by him when in the service or the defendant and to pro-rated end of year bonus and proportionate leave allowance. The damages herein awarded are clear of any deductions such as enumerated in Exhibit N14. That is, those deductions are not to be made from the damages herein awarded. In addition to the damages awarded, the plaintiff is to be paid his entitlement in the Company’s Non-contributory Pension Fund.

The orders for costs made in the two courts below are set aside. Each party is to bear its costs of this appeal.

BELLO, C.J.N.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother, Ogundare J.S.C. I agree with his reasoning and conclusions save that I would not go to the extent of holding that where a contract is terminable by payment of salary in lieu of notice, the payment must be made at the time of termination of the contract.

I think the mode and time of payment of the salary in lieu of notice depends on the circumstance of each case. Thus in Morohunfola v. Kwara State College of Technology (1986) 4 NWLR (Pt.38) 732 at 744, the Court of Appeal held the payment of the salary in lieu of notice to the Bank of the employee where his salaries had been ordinarily paid to be sufficient compliance with the term of the contract relating to payment in lieu of notice. As was the case in Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt.62) 577, the letter of termination of an appointment might also inform the employee that salary in lieu of notice and his other entitlement would be paid to him and the actual payment made thereafter. In Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 559 a cheque for the salary in lieu of notice was sent with the letter of termination.

In the case on appeal, the portion of the letter of termination relevant to the issue reads:

“We refer to our recent discussions and hereby confirm that, in accordance with Clause II of your Contract of Service dated 1st December, 1976, your service will no longer be required as from today.

As at 17th August, 1981 you were due 24days’ proportionate leave and a proportionate leave allowance of N 1,189.16 for your service during the period 7/12/80 to 16/8/81.

Your final date on our payroll will be 18/9/81 (which includes eight (8) days leave brought forward from your last leave), up to which date we shall pay you your current basic salary and applicable standard allowances. In addition, we shall pay you the follows (sic):

  1. Two months’ basic salary in lieu of notice.
  2. Your entitlement in the Shell Petroleum Development Company of Nigeria Limited Non-Contributory Pension Fund.
  3. Pro-rated end-of-year bonus.
  4. Your proportionate leave allowance stated above.

From the above entitlements (but with the exception of Pension Fund entitlements) we shall make the usual monthly deduction for PAYE Income Tax, National Provident Fund and Shell Medical Schemes.

The exact details on the payments and deductions referred to above will be included in a confirmatory Statement of Account which will be forwarded to you separately in due course. We would. Therefore, required your future contact address.

We request you contact the Staff Supervisor (PERW/11) in Personnel Services to clarify any points you may have on the above and to surrender your Shell Identity Card and Driving Permit. You should contact FN/133 to complete certain documents in connection with the payment of your final entitlements.”

It appears the appellant did into furnish to the respondent his contact address and did not contact the Staff Supervisor as requested by the letter of termination. The evidence shows three months after termination, the respondent paid the salary in lieu of notice to the Bank where the appellant’ salaries had been when he was in their employment. The Bank returned the salary in lieu of notice to the respondent because the appellant had closed his account at the Bank.

In my view, since the respondent had been paying the appellant’s salaries to his bank, the respondent ought to have paid the salary in lieu of notice to the Bank immediately after the appellant had failed to contact the Staff Supervisor. To wait for three months before making the payment was not compliance with the term of the contract. The time of payment exceeded the two months period of notice for terminating the contract. Accordingly, the contract was wrongfully terminated.

I endorse the Orders made by my learned brother, Ogundare J.S.C,


SC.122/1988

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