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G.B. Ollivant (Nig.) Ltd Vs I.b. Agbabiaka (1972) LLJR-SC

G.B. Ollivant (Nig.) Ltd Vs I.b. Agbabiaka (1972)

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The appellants were the defendants in the High Court, Lagos, in an action (Suit No. LD/568/69) instituted against them by the present respondent as plaintiff and in which the plaintiff’s amended Writ of Summons was as follows:-

“The plaintiff’s claim is for 12,235.15.0pounds damages for wrongful dismissal from defendant’s employment on the 1st June, 1969.


(a)Loss of salaries from 1st June, 1969, to 21st July, 1988, (i.e.) 19 years and 1 month approximately…….12,117.18.4pounds

(b)Salaries for 2 months leave of absence at 1 month to a year, which leave the plaintiff did not enjoy, at 635pounds per annum

(c)Leave allowance at 6 pounds per leave in respect of item (b) above….. 635pounds 12,235.15.0pounds.”

The facts relied upon by the parties may be summarized thus. On the 8th of June, 1951, the plaintiff was engaged as an accounts clerk by the defendants. By series of promotions, he rose to the post of supervisor of goods in transit and was on a salary of 635pounds per annum in 1969. It would appear that he had given meritorious services to the defendants, and that as a result of this, he was awarded a certificate (Exhibit 1) by the defendants in January, 1967, “in recognition of fifteen years loyal service with the company.”

The unfortunate chain of events which culminated in the present proceedings started off with a minute (Exhibit 16) addressed to the plaintiff by the Chief Accountant of the defendants on the 23rd of April, 1969. In it, the plaintiff was informed that he had been posted from Apapa to Ilorin because of negligence in the performance of his duties and was requested to report to the Personnel Manager on the 3rd of May, 1969, for further instructions. It would appear that instead of reporting to the Personnel Manager as instructed, he applied for his vacation leave on the 3rd of May, 1969, and his application was refused two days later.

On the 6th of May, 1969, he fell ill and reported to a private medical practitioner in Ada Hospital, Surulere, who placed him on sick leave for five days and gave him a sick report (Exhibit 4) which he later forwarded to the Defendants through one Paul Koku Adjamah (P.W.3). On the 10th of May, 1969, his sick leave was extended for a period of six days and he also forwarded the sick report (Exhibit 5) covering this period to the Defendants through P.W.3. On the 16th of May, 1969, he was referred by the private medical practitioner to Dr. A.O. Wilkey, a Senior Surgical Specialist in the General Hospital, Lagos, who testified at the trial that after examining the plaintiff on the 16th of May, 1969, he placed him on sick leave and later performed a surgical operation on him on the 24th of May, 1969, and kept him as an in-patient in the hospital till the 2nd of June, 1969, when he was discharged from the hospital but was still placed on sick leave. Dr. Wilkey further testified that he issued at least three sick reports to cover the duration of the Plaintiff’s sickness. The last of such reports was marked as Exhibit 7 and issued on the 25th of June, 1969. In Exhibit 7, the duration of illness was shown as three weeks.

The Defendants admitted receiving the sick reports (Exhibits 4 and 5) covering the period 6th to 16th of May, 1969; but they contended that as the plaintiff failed to report for duty after the 16th of May, 1969, without producing any further sick reports, he was regarded as having abandoned his employment. In consequence of this, a letter was addressed to him on the 12th of June, 1969, by the Defendants in the following terms:

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12th June, 1969.

Our Ref. PM/A.220/92

Mr. I.B. Agbabiaka,

57, Denton Street,

Ebute Metta, Lagos.


Abandonment of Employment

We note that you have since the 16th May, 1969, been absent from duty without permission. We can only assume that you have decided to abandon your services with the Company. We have therefore regarded your services with the Company to have ceased with effect from 1st June, 1969.

We must, however, record that you did not give one month’s notice or one month’s salary in lieu of notice before abandoning your services.

“Arrangements are being made to ascertain the amount due to you from the Unico Pension Fund, and as soon as this is known we shall contact you.

Enclosed herewith is your Certificate of Service covering the period of your employment with this Company.

Yours faithfully,

G.B. Ollivant (Nigeria) Ltd.

(Sgd.) W.C.R. Watts

Ag. Chairman.”

For his part, the plaintiff called evidence to establish that the sick reports issued to him after the 16th of May, 1969, were delivered to the Defendants by P.W.3. On this aspect of the case, the learned trial Judge made specific findings as follows:

“From their demeanour in the Witness Box, I believe the evidence of the plaintiff and his witnesses. I do not believe the evidence of the 3rd Defendants’ witness Oseni Lokoja. I am satisfied that the Medical Certificates after 16th May, 1969, were delivered to the 3rd Defendants’ witness and if they did not reach the Defendants’ Chief Accountant, the plaintiff is not to be blamed for the loss or misplacement of the Medical Certificates.”

The learned Judge then commented as follows on the Defendants’ letter (Exhibit 6) dated the 12th of June, 1969, which we have reproduced earlier:

“On the facts and circumstances of the case, I am satisfied that the defendants were hasty in taking the decision in Exhibit “6” without considering its implications, particularly in respect of the plaintiff whose 16 years loyal service were in glowing terms recently acknowledged by the defendants themselves in Exhibit “1”.

On the main issue before the court, that is, wrongful dismissal, the learned trial Judge said:

“I find on the facts and circumstances that the defendants had wrongfully put an end to the services of the plaintiff without just cause or excuse.”

In conclusion, the learned Judge considered the award of damages cursorily by saying:

“In my view, the amount of damages of 12,117.11.4pounds is fantastic.

From the evidence, the plaintiff had been deprived of employment under the defendants since June, 1969, and loss of salary of 635pounds a year. The plaintiff has been trained and has acquired experience in the particular type of work under the defendants and in my view, he is entitled to a reasonable amount of damages.

I award the sum of 3,000pounds to cover all the items of the damages to which the plaintiff is entitled 28th May, 1970.”

The defendants have now appealed against this decision and the plaintiff has also filed a cross-appeal; both parties were attacking the quantum of damages. Before considering the arguments addressed to us, we feel obliged to comment generally on the learned judge’s approach to the award of damages. As stated earlier, the plaintiff’s amended Writ of Summons read:

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“The plaintiff’s claim is for 12, 235.15pounds damages for wrongful dismissal from defendant’s employment on the 1st June, 1969.


(a)Loss of salaries from 1st June, 1969, to 21st July, 1988, (i.e.) 19 years and 1 month approximately …12,117.18.4pounds

(b)Salaries for 2 months leave of absence at 1 month to a year, which leave the plaintiff did not enjoy, at 635pounds per annum

(c)Leave allowance at 6 pounds per leave in respect of item (b) above….. 12pounds


It will be observed that the claim is itemised into three distinct groups, namely, (a), (b) and (c). Instead of separately considering each item of the claim, the learned Judge in the portion of the judgment that we have quoted earlier considered the claim as a whole and awarded as damages a lump sum of 3,000pounds” to cover all the items of damages.” We think that in awarding damages, the learned Judge ought to have treated each item of the claim separately.

We shall now advert to the arguments on this appeal. In his judgment, the learned trial Judge expressed the view that “the plaintiff’s claim is in tort for wrongful determination of his appointment by the defendants.” On behalf of the appellants, Mr. J.E. David has submitted that the claim sounded in contract and not tort because the essence of the complaint of the plaintiff was that he was entitled to recover damages from the defendants as a result of the breach of his contract of service. Mr. David further submitted that the question of whether the claim was formed in contract or tort was important and ought to be resolved before determining the proper measure of damages.

At page 3 paragraph 5 of Clerk and Lindsell on Torts (12th Edition), the learned authors stated as follows in considering the relation of tort and contract;

“Sir Percy Winfield drew the distinction as follows:

‘At present day, tort and contract are distinguishable from one another in that the duties in the former are primarily fixed by law, while in the latter they are fixed by the parties themselves. Moreover, in tort the duty is towards persons generally; in contract it is towards a specific person or specific persons.’ xxx

If the claim depends on the proof of the terms of the contract, the action does not lie in tort, so a claim for wrongful dismissal is a claim in contract.’

In our view, there can be no question that the plaintiff’s claim as framed stems from a breach of his contract of service. We are in no doubt that the action lies in contract and not in tort. The learned Judge was therefore in error when he held that the claim was in tort.

Continuing his argument, Mr. David submitted that if his contention that the action lies in contract is accepted, then the plaintiff was not entitled to more than one month’s salary in lieu of notice as under his conditions of service, his appointment could be lawfully terminated without assigning any reasons by either giving him one month’s notice in writing or paying him one month’s salary in lieu of notice. Counsel relied on Article 609 of the Conditions of Service marked as Exhibit 2. The article reads as follows:

“Termination of Appointment

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The General manager may, at any time, terminate the appointment of an employee by giving him in writing, one month’s notice or by paying him one month’s salary in lieu of notice.”

The gravamen of Mr. David’s argument was that the highest figure the plaintiff could claim as damages was one month’s salary.

In reply and also in support of the cross-appeal, Mr. J.A. Cole has submitted that items (b) and (c) of the claim (that is, the claim for 105.16.8 pounds being two months’ salary for earned but unspent leave and 12pounds being leave allowance for two years) were not disallowed by the learned trial Judge and that there was ample evidence to support the claim. It was his contention that the learned Judge ought to have awarded sums totalling 117.16pounds on items (b) and (c) of the claim; and we consider that this contention is well founded.

Regarding the first item of the claim, that is, the claim for 12,117.18.4pounds for loss of salaries for the period of 19 years which, according to the plaintiff, is the period during which he would have been entitled to work under his conditions of service if his appointment had not been wrongfully terminated, counsel referred us to some decided cases in England but as have recently laid down, the general principle to be followed in assessing damages for wrongful dismissal in the case of Nigerian Broadcasting Corporation v. J.O. Adeyemi (SC. 45/1969) delivered on 8/10/71, we shall refer to the relevant portion of that judgment. It reads:

“This being an action for damages for wrongful dismissal, it is grounded on a breach of contract of employment. As a general principle, in law in an action for wrongful dismissal, 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.”

Applying this principle to the facts of this case. We are of the view that an award of one year’s salary (i.e. 635pounds) is adequate under item (a) of the claim as we consider that a period of one year is reasonably needed by the plaintiff to seek suitable employment. The total award to the plaintiff will then be 752.16.8 pounds made up as follows:

“(a) Loss of salaries 635 pounds

(b) Salaries payable in lieu of 2 months’ vacation leave 105.16.8 pounds

(c) Leave allowance 12 pounds

  1. 16.8 pounds

In the event, this appeal succeeds and it is hereby allowed, but the cross-appeal fails and it is hereby dismissed. The judgment of the High Court, Lagos, in Suit No. LD/568/69 together with the order for costs is set aside and it is hereby adjudged that the defendants/appellants shall pay to the plaintiff/respondent 752.16.8pounds as damages for wrongful dismissal.

The defendants/appellants are entitled to costs which we assess at 50 guineas in the court below and 56 guineas in this court.

Other Citation: (1972) LCN/1569(SC)

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