O. Okwoche V. Nigeria Airways Limited (2002)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

The plaintiff (appellant) was a former staff of the defendant (respondent), in the Field Services Department as a District Manager, a Grade Level 12 Officer. His appointment was for a misconduct (the details of which are not really material for this appeal) terminated by a letter dated 16/8/85, and admitted in evidence as exhibit ‘A’. The plaintiff was paid his entitlements as showed in items 1, 2 and 4, of exhibit B of 16/8/85. That is, salary and allowances up to and, including three months salary, in lieu of notice and 8 days salary, in lieu of leave, not taken up to and including 16/8/85. To all intents and purposes, the plaintiff was taken to have retired on 16/8/85. By another letter of 6/12/85, otherwise marked exhibit C, the defendant purported to dismiss the plaintiff from its services with immediate effect. Whereupon, the plaintiff instituted this suit, at the High Court of Ikeja Division of Lagos State, and claimed thus:

“(i) An order, setting aside and declaring null and void and of no effect, the purported letter of dismissal written by the defendant to the plaintiff Ref. DOP/S/1540/334 dated 6th December, 1985.

(ii) An order of payment, to the plaintiff by the defendant of end of service gratuity which is 180% of the plaintiff’s annual salary as at 16th August, 1985.

(iii) An order for the payment of pension, to the plaintiff by the defendant calculated at the rate of 46% of the plaintiff’s monthly salary, as at 16th August, 1985, and payable with effect from the 17th August, 1985.”

The plaintiff and the defendant called one witness apiece. The court below in a considered judgment dismissed the plaintiff’s claims against the defendant.

Aggrieved by the decision, the plaintiff/appellant appealed to the court and from the grounds of appeal raised eight issues for determination.

They are as follows:

“1. Having regard to the peculiar and exception fact situation in this case, namely, the former servant suing in respect of a purported dismissal by the former master, who had in unequivocal terms terminated the contract and executed it, was not the remedy of a declaration in the terms maintained appropriate.

2. Did the learned trial Judge in holding that the first relief sought, a declaration, is misconceived in law and on the facts not overlook the peculiar features and special circumstances of this case as adumbrated in to wit:

(i) the rules of natural justice;

(ii) of contractual procedure;

(iii) of the status of the office holder, which necessitates the making of a declaratory order of declaration;

(iv) the relationship of master and servant had ceased between the parties since 16th August, 1985 and that as at 6th December, 1985, when exhibit C was written by the defendant, the plaintiff was no more its servant.

3. Is the relief by way of declaration not in order, having regard to the decision in Lee v. Showmen’s Guild of Great Britain (1952) 2 QB 329, ambivalent and confused posture of the defendant to the one issue of bringing the plaintiff’s employment to an end?
4. Ought the claim for damages, i.e. the plaintiff’s terminal entitlement to have failed for the reasons stated in the judgment?
5. Ought it not to have succeeded on the basis of the legal principle that the court regards as certain that which can, from the materials before the court, be made certain?
6. Did the learned Judge in dismissing the claim for his terminal entitlements not overlook the maxim “id

certum est quod certum reddi potest” (That is certain, which can be made certain) and come to a wrong decision?