Nwaokoro V Sapele Urban District Council (1965) LLJR-SC

Nwaokoro V Sapele Urban District Council (1965)

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BAIRAMIAN, J.S.C.

At a meeting of the Council held on 19 August, 1960 one councillor said the rains were on and most of the labourers were idle, and another said most were redundant, and the Committee resolved that the appointment of forty-one should be terminated with a week’s notice. On the 20th the Secretary wrote to the appellant:-“TERMINATION OF APPOINTMENT.

I regret to inform you that in view of the heavy rains, and the fact that you are lazy and idle, you have been found to be redundant, and the Council has decided that you be terminated. This serves as a week’s notice to you, and your services will not be required as from the 29th August, 1960.

2. You should report to collect your money after this date.” The labourers laid off complained to the Local Government Adviser, who ordered the Council to cancel the notices and take the labourers back pending the Minister’s direction. They were taken back on the 2nd September, and were paid, as usual, on 20th September and again on 20th October. About then the Minister’s decision had come: it was that he would not interfere, for daily paid labourers were liable to dismissal at short notice, and the Council’s action was not contrary to the Staff Regulations.

On the 26th October the labourers were stopped and the appellant sued claiming £80 damages for wrongful dismissal. None of them went to collect his wages for the five working days between the 21st and the 26th October.

The trial magistrate took the view that the reasons given were not genuine, and thought the plaintiff was laid off because (as he said in evidence) he had refused to give the £5 demanded of him by one of the councillors; and he concluded that the dismissal was wrongful. He referred to reg. 91 in Part IX of the Local Government (Staff) Regulations, 1960 (printed at B [585] of the Western Region Legislation for 1960) which reads:- 91. The appointment of a daily paid employee may not be terminated on the grounds of inefficiency unless he has within the immediately preceding six months been warned in writing that his work or conduct has been unsatisfactory.”

There had been no such warning, and in the learned magistrate’s view the dismissal was ultra vires the Council. As to damages, relying on para. 995 in Vol. 25 of Halsbury’s Laws of England (3rd ed.) he decided that the plaintiff was entitled to damages measured by the amount of wages which he had been prevented from earning by reason of his wrongful dismissal, and following Vine v. National Dock Labour Board [1956] 3 All E.R. 939 at p. 946, awarded him, as he had not been able to find work, damages equal to the wages he would have earned up the date of judgment.

In the appeal by the Council, the learned judge gives it as his view that Part IX of the Local Government (Staff) Regulations does not affect the Council’s power as an employer to terminate the employment of labourers, which it can do if they are not usefully employed; and as for the impression, from the words “lazy and idle” in the letter, that the plaintiff was dismissed for inefficiency, the minutes of the Council showed that was not so. On the merits the learned judge decided that the plaintiff was entitled to wages up to 26 October, 1960 less what he had received in respect of wages, and the notice of termination served on 21 August, 1960 was in order.The plaintiff has appealed to the Supreme Court, and the arguments for him are, in short:-

(1) He was wrongfully dismissed, and the damages awarded by the magistrate were correct; or

(2) He was entitled to one month’s notice under reg. 99, and to his fare home under reg. 101; or

(3) If a week’s notice was enough, he should have had (but was not given) fresh notice on 26 October, 1960.The question is whether the regulations on which he relies, which are in Part X of the Local Government (Staff) Regulations, 1960 on “Termination of Appointment”, relate to daily paid employees or to established employees only. It is explicitly clear that from reg. 94 down to reg. 98 the regulations are concerned with the termination of the appointment of a confirmed established employee; and although regs. 99 and 100 speak of “an employee” simpliciter, it is clear from the reference to leave under regs. 130 and 132 (which relate to leave of established employees), and from the sequence and concatenation of the regulations in Part X, that they do not relate to daily paid but to established employees. (The leave of daily paid employees is governed by Reg. 148.)

In our opinion the said Regulations of 1960 do not affect the Council’s power under section 32 of the Labour Code Ordinance (cap. 91 in the 1958 Laws of the Federation etc.) to terminate the employment of daily paid labourers on oral contracts whose employment has been continuous for more than one month, by seven days notice: see subsection (2) (b); the fact that the labourers were paid once a month does not make any difference. We also think that labourers locally engaged at Sapele, though belonging elsewhere by origin, cannot claim their transport back home when discharged. The plain tiff was given a week’s notice on 20th August, 1960; the question is whether he should have been given fresh notice on 26th October.

The plaintiff knew that the Council took him back at the beginning of September on the Adviser’s order to the Council, but as it happened his order was ultra vires, so his cancellation of the notice from the Council was void and the notice remained good, and there was no need of a fresh notice.

In that notice of 20th August, the Secretary, instead of merely giving notice, explained to the plaintiff why he was being discharged, and spoke of the rains and told him he was lazy and idle and redundant; but that does not affect the matter. If a master gives his servant a week’s notice orally and tells him it is because he is lazy, he may feel that he did not deserve the epithet and ought not to be discharged, but cannot complain that he was wrongfully dismissed; so, too, if the master gives notice in writing and adds that the servant is lazy and idle: the servant need not show the letter to anyone. We are concerned with a claim based on breach of contract, and with the power to discharge and the sufficiency of notice given by the Council in this case, in the light of the law of Nigeria. The case of Vine etc. (supra) was based on English legislation.

It remains to note that before deciding the appeal before him on the merits, the learned High Court judge decided, for a procedural reason which need not be gone into, that the trial was a nullity; and one ground of appeal is that, after saying it was a nullity, all the judge could have done was to send the case back for a fresh trial. As this was a test case, learned counsel agreed to argue it on its merits. It will be fair to make no order as to costs of the appeal to the Supreme Court.

The appeal from the High Court judgment of 9th January, 1963 (Warri 40AI1961) is dismissed, no order is made on the costs of appeal to the Supreme Court.

Other Citation: (1965) LCN/1234(SC)