Miss Chinwe Emuwa V. Consolidated Discounts Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A. 

Th

is is an appeal by the defendant against the judgment of the High Court of Lagos State dated 22/5/97 per Silva J. for the sum of N582.500.33, in favour of plaintiff (hereinafter referred to as respondent).

Dissatisfied with the judgment, the defendant (hereinafter referred to as appellant) appealed to this court on 3 grounds.

At the hearing of the appeal, learned Counsel adopted their respective briefs of argument on behalf of their clients. The appellant identified 3 issues as calling for determination which read as follows:

“(i) Whether having regard to paragraphs 7 and 8 of agreement dated 8/3/96 (pages 13-17 of the record), the learned trial Judge was entitled to hold that there was an agreement between the parties that the defendant was to remain in the service of the plaintiff for one year after training?.

(ii) Whether the affidavit in support of the plaintiffs application dated 3/3/97 (pages 9-17 of the record) is in compliance with the requirements of Order 11 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994; the deponent not being a person who could swear positively to the facts and if so whether it was proper for the learned trial Judge to proceed to judgment?.

(iii) Whether it was right and proper for the learned trial Judge to have proceeded to enter judgment in favour of the plaintiff when the contention of law raised by the defendant to wit: that there was no agreement between the parties as to the period within which the defendant was to remain in the employment of the plaintiff after training and therefore no possibility of liability under paragraph 8 of the agreement dated 8/3/96 (pages 13-17 of the record) was not clearly without merit?.

The respondent in their brief having adopted the appellant’s first issue, further raised two other issues for determination thus:

“(i) Whether the deponent to the affidavit in support of the application for summary judgment is competent to depose to the said affidavit and whether he complied with the provisions of Order 11 rule 1 of the High Court of Lagos State (Civil Procedure) Rules?.

(ii) Whether the appellant had any defence on the merit to the respondent’s claim?.

The issues postulated by the parties are similar. However, before I consider the issues as formulated, there is need to briefly give the background facts of this case. The respondent is a company duly licenced to carry on the business of a discount house, while the appellant was its employee.

In order to prepare the appellant for the challenges of dealing with the respondent’s customers and members of the public in the capital market and also in view of the fact that discount house business had just been introduced in this country then, the respondent undertook to train the appellant, (a pioneer staff) in Ghana, on the condition that the appellant would continue in the employment of the plaintiff for a period stipulated in the agreement. The agreement provides inter alia, thus:

“Whereas under the company’ s training programme for the training and development of its staff and employees, the company has nominated the employee to attend a training and development programme consequent upon which the employee agrees to be bound upon the terms and conditions hereinafter appearing:

1. The company hereby offers the employee and the employee hereby accepts training attachment at the company’s designated training location.
2. The initial period of training shall be for a period of 4 weeks commencing on 11th March, 1996 until further training periods as deemed fit by the company.
3. In consideration of the financial and other resources committed by the company to the training of the employee as herein set out, the employee agrees to be bound to the company.
4. The employee agrees that on the expiration of the period of training, he will return to Nigeria and continue in the employment of the company for a continuous period of not less that 2 years/one year with satisfactory level of performance. The plaintiff however did not delete one of the two periods in paragraph 7 after the execution of the agreement.
5. In the event that the employee leaves the service of the company for any reason whatever whether by reason of resignation, termination or dismissal before the period stipulated in clause 7 above, the employee hereby agrees and undertakes to refund to the company forthwith all the costs and expenses in original currency for currencies incurred by the company.
6. The amount expended by the company is agreed to be N15,667.00 plus $6,000.

On 10/3/96 the appellant proceeded to Accra, Ghana for the 28 days course to train as a Discount House Operator at a total cost of N576,667 when she returned to Nigeria having completed the course in Ghana and other various money market courses, barely three months in the employment of the respondent, the appellant on 25/6/96 (two days after collecting her June salary) handed over her resignation letter without notice. She ceased reporting for work from 28/6/96.

On the first issue, it is not in dispute that the parties executed agreement dated 8/3/96, Exhibit ‘001’, and the appellant further executed a bond to indemnify the respondent for the sums stated therein which was in furtherance of the earlier agreement of the parties that upon the respondent sending the appellant for training the appellant would work continuously in the respondent’s employment for a period of 2 years/1 year after the training as stated in clause 7 of the agreement between the parties.

The point of contention of the appellant was that since one of the periods 2 Years/1 year was not crossed out or deleted then there was no agreement.

They also further contended, that the period was not certain.

The contention of the appellant, to my mind is errorneous, where in the present case the parties had voluntarily entered into an agreement in writing and the appellant agreed to be bonded. It would appear that since the appellant denied the existence of an agreement, this court is called upon to give proper interpretation to the written agreement, Exhibit ‘001’.

It is the duty of the court, when one party alleges that a written agreement is uncertain or ambiguous and the other party alleges that it is clear, certain, and for a period, to look and interprete the agreement in enforceable terms without more. In interpreting a document, due regard must be given to the entire document so as to find the correct meaning of the words in relation to the agreement. See Schroder & Co. v. Major & Co. Nig. Ltd. (l989) 2 NWLR (Pt.101) 1; Artra Industries (Nig.) Ltd. v. The Nigerian Bank for Commerce and Industry (1998) 4 NWLR (Pt.546) 357 at 379.

Whether the parties intended and agreed to be bonded for a period of time resort must be had to paragraph 6 of the agreement. It states thus:

“In consideration of the financial and other resources committed by the company to the training of the employee as herein after set out, the employee agrees to be bound to the company”.

There is no doubt from the reading of paragraph 6 of the agreement the appellant agreed to be bonded to the respondent. The period of being bonded was the radical question before the court below and indeed this court, because of the period ‘2 years/1 year’ was not deleted in paragraph 7 of the agreement.

For me to agree with the contention of the appellant that because one of the periods ‘2 years/1 year’ was not deleted, the agreement therefore is uncertain, is not to see to the justice of this case.

In determining the intention of all parties to an agreement or the meaning or language in any particular passage in that agreement, where there is doubt, then it is to presume that which is to be most in accord with convenience, reason, justice and legal principles. See Tunji Braithwaite v. G.D.M. (1998) 7 NWLR (pt.557) 307 at 338.

To my mind it would be unreasonable and not in accord with justice to conclude that because one of the two periods 2 years/1 year was not deleted then the agreement is uncertain and that the appellant can resign her appointment immediately upon the completion of her training as she has done in this matter without refunding the cost of the training incurred and borne by the respondent. This would not be the intention of the parties in the agreement.

Clearly, the terms of the agreement never envisaged a situation where the appellant a pioneer staff and an employee of the respondent would resign her appointment without being in the employment of the respondent for a continuous period. The operative part of paragraph 7 of the agreement is the phrase ‘continuous period of not less than 2 years/1 year’

Paragraphs 7, 8 and 9 of the said agreement have been already reproduced above.

To say that because of the non deletion of one of the two periods then there was no agreement between the parties as regards period of being bonded is obviously to introduce mere technicality in order to becloud our sense of justice.

The appellant was barely ten days old in the employment of the respondent before she was sent for training in Ghana at a huge cost to the respondent after signing the agreement to be bonded. She resigned her appointment with the respondent immediately upon completion of her training to contend that because one of the periods 2 years/one year was not deleted then the agreement is uncertain and she is not bound to honour it is indeed not tenable.

I do not think it is valid defence to say that since no period of notice to terminate the employment is stipulated in the agreement, the appellant could decide to leave the respondent without giving any notice to the plaintiff. Decided cases do not support this position but rather that she must give reasonable notice.

In Akumechiel v. B. C.C. Ltd. (1997) (Pt.484) 695 at 703 it was stated thus:

“Where the contract of employment is silent as to the required notice of termination, the court will imply that a reasonable notice is necessary. And it is within the province of the Judge acting as a jury to decide what is reasonable notice, having regard to the following factors:

(a) the nature of the employment

(b) the length of service, and

(c) other circumstances of the case.

See also Ogunsanmi v. C.F. Furniture (WA.) Company Ltd. (1961) All NLR 862. I am of the opinion that the learned trial Judge correctly interpreted the agreement so as to enforce its terms, regard having been had to the nature of engagement of the appellant in the respondent’s company, and the over all circumstances of the case. This interpretation is most in accord with convenience, reason and justice of this case.

It is the submission of the appellant in the second issue that the second issue that the affidavit in support of the respondents application dated 3/3/97 does not meet the requirements of Order 11, rule 1 of the High Court of Lagos State (Civil Procedure) Rules. It would appearthe quarrel of the appellant is with the deponent. It is that he was not in a position to swear positively to the facts verifying the cause of action.

My understanding of the provision of Order 11 rule 1 is that where the plaintiff himself has not deposed to the affidavit accompanying the endorsed writ, then the person who swears to the affidavit must be in a position to swear positively to the fact verifying the cause of action and must be able to state, in his behalf, that the defendant has no defence to the action. He must also show that he has the authority of the plaintiff. This is what has been held in the case of Sodipo v. Lemminkainen OY & 1 Or. (No.2) (1986) 1 NWLR (Pt.15) 220 at 231. In that case, the deponent who deposed to a seven point affidavit was the junior counsel to the plaintiff’s counsel. She averred that the facts were within her personal knowledge more especially as the plaintiffs were an artificial person as in the present case.

In the affidavit in support of the application deposed to by Oye Ogbeide, a legal practitioner, he stated in the affidavit as follows:-

“(a) paragraph 1- That I am the person handling the matter in Chambers and I am aware of all the facts of the case.

(b) paragraph 2 – I have the consent and authority of the plaintiff company to depose to this affidavit.

(c) paragraph 4 -That I have read the whole averments in the defendant’s statement of defence and I state that the averments therein have not met/are not a reasonable defence to the plaintiff’s claim, and

(d) paragraphs – 13 – That in view of the fact that the claim is for a liquidated demand, I reasonably believe that the defendant will not be prejudiced if the application is granted as her defence is an attempt to frustrate the plaintiff from realising the fruits of judgment.

Perusing through these paragraphs of the above affidavit, the said affidavit satisfies all the requirements of Order 11 rule 1 of the High Court, Lagos State (Civil Procedure) Rules, 1994. Contrary to the view held by counsel for the appellants, the deponent does not have to be a privy to the facts deposed to in the affidavit.

In view of the fact that the respondent was artificial person that cannot depose to an affidavit by itself the deponent to the affidavit in the present case is competent to depose to the affidavit and the learned trial Judge was quite right to have proceeded to give judgment relying on that affidavit. See Sodipo v. Lemminkainen (supra).

The third issue is all about propriety of judgment being entered in favour of the respondent under Order 11 r.1 of the High Court of Lagos State (Civil Procedure) Rules 1994.

The purpose of this Order is to enable a plaintiff enter judgment without the necessity of a trial where the defendant has no defence to the plaintiff’s case. I do not think the appellant has raised any defence to necessitate a trial. The question of the period which the appellant was to be in continuous employment of the respondent is a question of fact. The learned trial Judge had resolved this. The question whether the agreement the parties executed was certain or not, against the back drop of the available facts have earlier been treated under the first issue. I do not think there is need to overflog the issue. If the parties had intended that the appellant would not be bonded then there would not have been any need for Exhibit ‘001’, the agreement.

The purpose of the summary procedure under Order 11, is to discourage sham defence by the defendant. See Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283 at 308.

In sum, this appeal lacks merit. It is unmeritorious. It is therefore dismissed. I assess costs as N3,000 in favour of the respondent.

---

Other Citations: (2000)LCN/0926(CA)