Intels Nig. Ltd. & Ors V. William E. Bassey (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

The respondent herein was employed as a security guard level 2-2 in the services of the 1st and 2nd appellants on 1st October, 1998. Confirmation of his employment took effect from 1st April, 1999. The said employment was withdrawn with effect from 18th March, 2005. The respondent was paid the sum of N240, 531.37 as his full entitlement upon his discharge from the said employment. The respondent maintained that the sum of N641, 583.68 was his due entitlement and he approached the appellants through his solicitors in respect thereof. Upon being rebuffed by the appellants, the respondent instituted an action against the appellants by way of undefended list procedure, at the High Court of Justice, Cross River State, holden at Calabar, in his bid to recover the outstanding balance of his asserted due entitlement. The appellants filed their notice of intention to defend and the matter was thereafter transferred to the general cause list with leave of the trial court. Before the trial court, the respondent claimed the following reliefs in paragraph 13 of his statement of claim:

“13. Wherefore the plaintiff claims as follows:

a. The sum of N401, 052.31 (Four Hundred and One Thousand, and Fifty Two Naira, Thirty-One Kobo balance of his under paid entitlement.

b. Fifty Thousand Naira cost of action and legal fees.

c. N15,000.00 being cost of retaining the services of the firm of accounts”

At the hearing before the trial court, the respondent testified for himself and called an additional witness, while one witness testified for the appellants. Various documents were tendered, admitted and marked as exhibits. At the conclusion of hearing and after the adoption of written addresses by the learned counsel for the parties, the learned trial judge, Hon Justice S. M. Anjor, delivered his judgment on 10th June, 2009, wherein he held that the respondent, had proved his case, against the appellants and judgment was accordingly entered in his favour.

Aggrieved by this decision, the appellant’s joint notice of appeal on 21st August, 2009 with two grounds of appeal. In compliance with the rules of this Court, parties duly filed and exchanged briefs of arguments. In the appellants, brief prepared by Charles E. Duke Esq., two issues were distilled therefrom as calling for determination in this appeal. They are:

“(1) Whether the Learned Trial Judge was not wrong in holding that the Respondent’s ‘annual gross salary’ included items like transport allowance, housing allowance, etc. contrary to the terms in Exhibit 6 (page 24 thereof) (see Ground 1 of the Notice of Appeal).

(2) Whether the Learned Trial Judge was not wrong in awarding as special damages the sum of N50,000.00 (Fifty Thousand Naira) as legal fees. (See Ground 2 of the Notice of Appeal).”

On the other hand, in the respondent’s brief prepared by F. O. Riman Esq. a sole issue was formulated for determination by this Court and it goes thus:

“Whether the lower court was right in entering judgment in favour of the Respondent having regard to the evidence before the court.”

On 13th December, 2010, after this court became duly satisfied that the learned counsel for the respondent has been served with the hearing notice in respect of the instant appeal, the court proceeded with the hearing and accordingly treated the appeal as having been argued on the respondent’s brief of argument, prepared by F. O. Riman Esq. and filed on 3rd March, 2010. In determining this appeal, I will adopt the issues framed by the appellants. This is moreso, because the questions posed in both issues are germane to the determination of this appeal. Howbeit, it is pertinent to note that the respondent canvassed arguments in respect of both issues formulated by the appellants. Hence the risk of his being short – changed does not arise.

On the first issue, it is the submission of the learned counsel for the appellants, that it was wrong for the learned trial judge to have held that the annual gross salary, which served as the basis for computation of respondent’s terminal benefits, included items like transport allowance, housing allowance and so on. It was contended that this holding was contrary to the terms in Exhibit 6 – 2005 Collective Agreement of Junior Staff condition of service, which is operational and binding between the parties herein.