Electricity Corporation Of Nigeria V George Nicol (1968)
LawGlobal-Hub Lead Judgment Report
This Is an appeal by the Electricity Corporation of Nigeria against the judgment of Ikpeazu J., in the High Court of Lagos, in an action where the learned judge awarded the sum of £3,100 in favour of the respondent for wrongful dismissal and also the sum of £1,550 being half of the salary of the respondent unpaid for a period of one year when he was suspended from work A counter-claim filed by the appellant was dismissed but there is no appeal against this dismissal.
The respondent also filed a cross-appeal for various sums of money claimed by him in his amended Statement of Claim which sums were not awarded him by the learned judge, namely:
(a) a sum of £8,100 being loss of rent he would have collected in his own personal house less £2,028 payable as rent in respect of the corporation”s house – £6,072.
(b) Loss of Pension £15,000.
(c) Loss of Gratuity £3,100.
The plaintiff was employed as Secretary to the Corporation on the 14th day of December 1960, and worked in that capacity until October 1963, when he was suspended. Earlier, and indeed from November 1958 until December 1960, he was on acting appointment as Secretary to the Corporation having been seconded from the Government service where he had worked for two years. A year after his suspension from the services of the Corporation, and indeed in October 1964, he was dismissed. He brought an action for wrongful dismissal and was awarded damages.
The Electricity Corporation has appealed against these awards and five grounds of appeal were originally filed. Later, a motion was filed to argue additional grounds of appeal, and nine additional grounds of appeal were filed shortly before the hearing, but three grounds, namely grounds 5, 6 and 9 were objected to by counsel for the respondent. During the arguments which ensued the appellants’ counsel withdrew ground No. 9 as it was never pleaded in the court below that the decision of the Chairman of the Board when he dismissed the respondent was later ratified by the Board. After hearing arguments on both sides, we decided we would not hear arguments on grounds 5 (b) and 6 (a) and in regard to ground 5 (a) the court ruled that the appellants counsel will be restricted in his argument to the ground that the regulations governing appointments generally into the services of the Corporation expressly did not apply to the office of the respondent. It was ruled that counsel could not go beyond this ambit.
It is appropriate at this stage to give a resume of the facts. The respondent a legal practitioner was employed in the Government service in November 1956. Two years later, and indeed in November 1958, he was transferred on secondment from the public service to the service of the Corporation as its legal adviser.
In December, 1960, in response to his application for the advertised post of the Secretary to the Corporation he was accepted and appointed to that post and commenced his work as Secretary to the Corporation as from the 14th December 1960. By virtue of that office he was the head of his department. The plain-tiff/respondent claims that by the terms of his appointment he was subject to the regulations and conditions of service of the corporation which came into force on 1st January 1960, a copy of which was put in evidence and marked exhibit A. On the 28th October 1963, he was suspended from carrying out his normal duties by the Chairman of the Corporation without specifying his offence, but a letter later received by him dated 28th October 1963, and signed by the Chairman alleged he was being suspended on account of series of irregularities. It was stated in the letter that “a full and proper investigation of the circumstances surrounding the irregularities will be carried out,” and until such time he was to cease discharging his duties as Secretary; he was to desist from coming to the office and was to deliver up all the keys and files of the Corporation. His pay or salary would be halved, and this would be paid to him regularly on demand.
On the 26th October 1964, the Chairman served him with a letter of dismissal (exhibit J) the contents of which are as follows:-
24-25 Marina, Lagos.
26th October, 1964
CONFIDENTIAL CH/A.7 G.W.E. Nicol, Esq.
21 Milverton Road, Ikoyi.
Dear Mr. Nicol,
I would like to inform you that at the meeting of the Corporation held at the Headquarters, Marina, on the 21st day of October, 1964, the report of the Committee set up to inquire into the various allegations made against you by the management was considered and k was unanimously decided that you should be dismissed from the services of the Corporation with effect from the 21 at day of October, 1964.
You are therefore requested to settle all advances or loans that may be outstanding against you with the Corporation, and to deliver up possession of the Corporation quarters now occupied by you on or before the 31st of October, 1964.
(Sgd) IBRAHIM S. USMAN (IBRAHIM S. USMAN) Chairman
Before this, an enquiry had been instituted at which the respondent was summoned to be present and in which indeed he took part. The findings of the Inquiry Known as “Adedipes’ Inquiry’ is in evidence and marked exhibit H. The findings were never communicated to the respondent nor was he summoned to or present at the meeting at which the findings of the Inquiry which were referred to by the Chairman of the Corporation in his letter of dismissal (exhibit J). The plaintiff/respondent has complained that as an officer of the Corporation his employment was governed by the Regulations and Conditions of Service, Senior Service Staff (exhibit A) and that under those regulations discipline of the staff could only be carried out by the Executive Officer and the General Manager and not the Chairman of the Corporation and that therefore his suspension and dismissal by the latter was null and void, and that in fact his misconduct and/or inefficiency in the conduct of his duties has never been brought to his notice under the Regulations. Further, he complained that the enquiry ordered by the Chairman and held (at which he was present) did not bind him in anyway. The report of such enquiry was never brought to his notice, and indeed it was against natural justice that he was not called to defend himself when the Board sat to consider the report; that therefore the decision to dismiss him by the Board was wrong and illegal and also against natural justice.
In an attempt to show that the dismissal of the plaintiff was justified, the Corporation averred in their pleadings and led evidence to prove that the plaintiff/respondent has been guilty of
(1) unauthorized disclosure of confidential information,
(2) irregularities in matters relating to the administration of the Corporation and
(3) inefficiency and lack of discipline in the discharge of his duties as Secretary to the Corporation. These charges were later itemised and under
(1) three specific charges were allowed, namely
(a) that the plaintiff released a copy of a confidential re-port of Sir Joseph Eccles for the reorganization of the Corporation, to one Oyewusi who was the Chief Commercial Officer,
(b) and (c) that the appellant on two different occasions disclosed or caused to be disclosed to a newspaper draft minutes of the Board’s meeting and also certain matters relating to two staff officers of the Corporation.
The second charge relating to irregularities was Remised to contain seven various charges, namely
(a) making an offer to sell four houses,
(b) writing to a firm to supply a newly employed officer with a car before his car advance was approved,
(c) sitting without authority as Chairman for the approval of some loans one of which was his own application,
(d) disclosing confidential matters to news-papers.
(e) giving documents to certain firms, thus giving undue preference to such firms and providing them with tender documents before advertising same
(f) failing to implement contract award to certain individuals, and
(g) fraudulently substituting revised tenders and submitting them to the Corporation after closing date.
The third charge namely inefficiency and lack of discipline was general.
The learned trial judge examined the charges under the three main heads and each item under the three heads. The evidence on No. 1 collapsed due to a circular letter on the result of the report issued by the General Manager himself (exhibtt 23) and also due to the collapse of the principal witness on the point under cross-examination. Under this first head, items (b) and (c) were not proved by the Corporation. In regard to No. 2 with its various heads or items it is enough to say that more than half of the allegations or charges were withdrawn by the counsel for the Corporation at different stages of the trial and the rest were thoroughly examined by the trial judge. Three charges of irregularities under No. 2 were found by the learned judge as established namely item
(a) offer to sell houses,
(b) writing to a firm to supply a newly appointed officer with a car prior to an approval being given, and
(c) irregular meeting where appellant sat as Chairman to hear application for loans. Decisions at this irregular meeting was later ratified by the General Manager.
On head 3 charging the plaintiff/respondent with inefficiency and lack of discipline, the learned judge found two minor items which occurred 19 months be-fore the suspension proved.
On these two as well as the three items referred to earlier, the learned judge said:-
“I find each of these complaints caught by the authorities as waived or condoned and cannot be relied upon on this ground. In Item 3 – Housing Committee Meeting, the event took place in 1960 at a time when the plaintiff was acting Secretary. He was given substantive appointment after that and no voice was raised about that and none can certainly be allowed to be raised now. Apart from this, I do not consider these acts to be irregularities of such a nature as to justify dismiss-al. I have no doubt that this was the view of the defendant Corporation, and that this accounts for their attitude of indifference to the incidents.”
The ground of appeal argued before us may succinctly be put under three heads:-
(1) That the plaintiff/respondent was head of his department and as such regulations 23101 – 23107 of the Regulations and Conditions of Service (exhibit A) are not applicable to him.
(2) That there can be no waiver of the acts of misconduct of the plaintiff as the Board was not aware, or had not full knowledge of these misconduct.
(3) That the damages awarded are excessive.
Dealing with (1) we think it appropriate to refer to regulation 23101 – It reads:-
“230101 – As soon as the Head of Department is dissatisfied with the work or conduct of a senior service officer working under him it is his duty to report the matter to the General Manager, giving the full reasons for his dissatisfaction, and to notify the officer that he has done so.
On receipt of the report the General Manager will call upon the officer to submit within a specified time such written representations as he may wish to make as to why disciplinary action should not be taken against him.”
Regulations 23102 deals with Interdiction. Regulations 23103 and 23104 deal with the responsibility of interdicted staff.
Regulations 23105 and 23106 deal with the conduct of disciplinary proceedings. Regulation 13107 deals with removal for general inefficiency. There is one officer referred to in all the aforesaid regulations, namely the General Manager. The regulations all made it plain that in the matter of discipline of any officer in the senior service of the Corporation, the powers of the Corporation are delegated to the General Manager of the Corporation. Counsel for the Corporation submitted that there are no express provisions in these Regulations regulating the service of the plaintiff/respondent in matters of discipline, termination and dismissal, although he agreed that power to employ the plaintiff/ respondent is in the General Manager, and further that power to employ connotes power to dismiss. He also agreed that the regulations do not exclude the plaintiff/respondent in these matters of discipline. We fail to understand counsel’s arguments on this point since in paragraph 6 of the Statement of Claim the Corporation itself pleaded that the plaintiff was bound by these regulations.
We now deal with the second point argued and that is that the Corporation had not full knowledge of the misconduct of the plaintiff. There were no instances proved before the learned trial judge where it was clear that the alleged misconduct of the plaintiff was not fully known to the Corporation, and we are therefore unable to quarrel with the decision of the Judge about the condonation of the various charges against the plaintiff. It is settled law that if a master did not complain and appeared to be satisfied with a servant’s conduct, that complaint cannot be a ground for dismissal on a subsequent occasion. See Smith v. Allen 176 Eng. Rep. 73, and in the case of Beattie v. Farmenter (1888-89) 5 T.L.R. 396 Lord Esher, M. R. said as follows:
“As to irregularities, the defendant could not rely on them in as much as, after full knowledge of them, he continued the plaintiff in his service.”
In the instant case the learned judge pointed out instances where what is now alleged as misconduct on the part of the plaintiff/respondent had been condoned and where promotion had been earned by him a short time after an alleged misconduct.
In regard to the submission before us on ground (3), namely, that the damages awarded are excessive there was no serious argument before us to merit any comment. On the whole therefore we see no substance in the appeal before us and the appellants’ appeal will be dismissed.
We now come to consider the cross-appeal. The plaintiff has complained that as a result of his being wrongfully dismissed by the Corporation he had to leave the Corporations’ premises and moved to his own house at Toyan Street for which normally he would have collected rent of £8,100 for the remaining fourteen years he would have had in the service of the Corporation, but for the termination of his appointment. From this amount he asked for a sum of £2,028 to be deducted which he said represents the rent he would have paid for the same period in the Corporations’ quarters at Bourdillon Road, Ikoyi, Lagos, which he occupied. It was also argued that the benefit of paying subsidised rent was part of the benefits he was entitled as a servant of the Corporation. Whilst in an appropriate case this may be damages flowing from the breach of contract of employment as being in the contemplation of the parties, we are of the view that the claim was not proved in the court below.
The fact that the Corporation housed the respondent in one of its quarters is not evidence that he will always be housed in that particular quarters or its equivalent nor was it established that it was not possible for the Corporation to raise the rents for all its quarters at any time. We feel unable to allow this item and in this court counsel for the plaintiff conceded that the claim had not been properly framed. We will consider together claims under C and D namely the sum of £15,000 for loss of pension and £3,100 for loss of gratuity. There was no dispute that the plaintiff/respondent would have been entitled to these benefits had be continued in the employment of the Corporation up till his retirement from the service at the age of 55 which in this case would have been in 1978. It is clear from the evidence adduced by then Corporation that if the plaintiff/respondent had remained in the service up till the age of 55, he would have earned the sum of £4,246 as gratuity and £1,090 per annum as pension. The question is if he is wrongfully dismissed, should he lose these benefits? In the case Manupeens v. Leon  1 K.B. 208 at p.211, Lush J., in a similar action said:-
‘The plaintiff was entitled, upon the defendant’s breach of the contract, to recover for the loss he had sustained by reason of the breach, the loss being measured by, or represented by, the damages flowing to the contract.”
In that case, a barber who was wrongfully dismissed sued for his salary and the accepted tips he would have received If he was still working. Lush J. continued:-
“It was clearly within the contemplation of the parties to the contract that the plaintiff would received these tips. The defendant, therefore, knew and contemplated, when the contract was entered into, that if it should be broken by the plaintiff being summarily dismissed, the plaintiff would sustain the loss in respect of tips which he would otherwise have received.”
In Lake v. Campbell (1862) Vol. V., L.T 582, a gift of £20 which the plaintiff would have earned under the contract but for his dismissal was allowed; and in the case of Bold v. Brough, Nicholson and Hall Ltd., 1 W.L.R. 201, where the plaintiff was held to have been wrongfully dismissed, the measure of damages was held to include salary and commission due to the plaintiff, and also staff pension and assurance scheme.
In the present case, it is difficult to assess how much the plaintiff/respondent would have been entitled to under claim C, which is loss of pension rights, and D, loss of gratuity. As we stated earlier, a witness called by the Corporation who is the Finance Officer of the Corporation stated that If the plaintiff had remained in the service of the Corporation until he was 55 years of age, he would be entitled to £1,090 per annum under C, (pension) and under D, loss of gratuity a sum of £4,246, would have been due to him. He added that if the plaintiff’s appointment had been lawfully terminated on the 21st October 1964, he would have received a gratuity of £3,067 and no pension. However, a gratuity without pension of £3,067 would have to be paid to him. We therefore assess the damages due to the plaintiff/respondent on heads C and D at £3,067.
The net result is that the appeal by the Corporation is dismissed with costs assessed at 75 guineas. The counter appeal succeeds. The Corporation is to pay the plaintiff/respondent a sum of £3,067 and 65 guineas costs.
Other Citation: (1968) LCN/1594(SC)