Elijah I. Ezekwere V. Golden Guinea Breweries Limited (2000)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A

We are here concerned with an appeal by the plaintiff and a cross appeal by the defendant against the decision of the Abia State High Court (M. O. Maranzu, J) sitting at Umuahia. The plaintiff was, until 5/7/83, in the service of the defendant, a limited liability company, as a sales representative. On that day, the defendant served the plaintiff a letter of dismissal on grounds of misconduct. The letter was put in evidence before the trial court as Exh. E. Prior to the issuance of this letter the defendant had issued two letters of query to the plaintiff concerning the conduct of the latter that it considered to constitute gross misconduct and on which the dismissal was based. These queries were tendered before the trial court as Exhs. F and G. The defendant wrote Exh. E, the letter of dismissal, because it was not satisfied with the representations that the plaintiff had made in answer to the allegations made against him in the letters of query. The plaintiff’s answer to the queries was tendered before the trial Court as Exh. H.

Not happy about his dismissal the plaintiff took the matter to court. In paragraph 13 of his amended statement of claim he sought the following reliefs:

“(a) A declaration that the letter of his dismissal Ref. No. PM. 794/1939 dated 5th July, 1983 is contrary to the working Rules and Regulations of the defendant, illegal and unconstitutional and therefore null and void and of no effect for wrongful dismissal and loss of job opportunity or in the alternative reinstatement in the services of the defendant.

(c) A declaration that the plaintiff is entitled to his salaries and entitlements from 1st July up to the date of judgment.”

Because some of the arguments put forward before us on behalf of the plaintiff/appellant I think it is necessary to analyse these reliefs and see what he really was seeking. As can be seen, in paragraph 13(a) he sought a declaration that his dismissal was illegal and unconstitutional and, therefore, null and void and of no effect. Naturally flowing from this is the declaration sought in paragraph 13(c) that he is entitled to his salaries and other entitlements during the period that he purportedly remained dismissed. Naturally following also would be an order, prayed for in the second leg of paragraph 13(b), directing that he be allowed to some his duties forthwith. The first leg of paragraph 13(b) makes it clear that, by way of an alternative relief to declaring his dismissal null and void and of no effect, the plaintiff sought damages for wrongful dismissal. I shall revert to this aspect of the case at the appropriate time.

Only the plaintiff testified for himself, but he put a number of documents in evidence. The defendant called two witnesses. The Court directed counsel on both sides to file written addresses and they complied. The learned Judge then delivered his judgment on 1/6/89 granting the second of the alternative sets of reliefs sought by plaintiff. He accepted the contention that the plaintiff’s dismissal was wrongful. He gave two main reasons for his decision. Firstly, he held that the defendant did not give the latter a prior fair hearing. Secondly, the defendant did not, in the steps it took to dismiss the plaintiff, comply with the terms of the contract of service that existed between it and the plaintiff for dismissing an employee. He however rejected the first alternative i.e. that the dismissal was illegal and unconstitutional and that the plaintiff is entitled to any salaries or other benefits beyond general damages for wrongful dismissal as claimed. He awarded N600.00 to the plaintiff on this head of claim.

The plaintiff was not happy that in addition to the award of damages the learned Judge did not make the two declarations sought in paragraph 1 (a) and (c). He has therefore brought this appeal against the refusal to make those declarations.

The defendant for its part was dissatisfied with the decision of the Court that the dismissal of the plaintiff was wrongful. It therefore cross appealed in challenge to that aspect of the decision.

Briefs of argument were filed and exchanged in compliance with the Rules of this Court. Counsel on behalf of the appellant formulated the following two issues for determination, both relating only to his appeal:

“(i) Whether or not the learned trial Judge was right in failing to grant the declaration sought for in paragraphs 13(a) and 13(c) of the amended statement of claim?

(2) Whether or not the learned trial Judge was right or not in failing to make a complete declaration of the plaintiffs entitlement to his claim under paragraph 13(b) of the amended statement of claim?”

With regard to the main appeal counsel on behalf of the respondent/cross appellant formulated only one issue thus:-

“1. Whether the appellant’s appointment with the respondent had a statutory flavour so as to entitle the appellant to reinstatement and arrears of salary.”