Oladipo Maja V Leandro Stocco (1968) LLJR-SC

Oladipo Maja V Leandro Stocco (1968)

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ADEMOLA, C.J.N. 

The appellant in this case has appealed against the award of £1,000 general damages against him in the High Court of Lagos as well as other various sums of special damages also awarded with 150 guineas costs. Seven grounds of appeal were filed and the five relevant grounds which were argued are as follows:-

“(1) The learned trial judge erred in law when he held that a written contract has only been varied by oral agreement when the terms of the oral agreement are repugnant to the terms of the written contract.

(2) The learned trial judge erred in law in giving judgement on the terms of a contract upon which no claim can be founded in view of the oral agreement which the learned trial judge admitted and accepted.

(3) The learned trial judge misdirected himself when he held that no ultimatum was given by the defendant to the plaintiff on the 11th June, 1964.

(6) The learned trial judge misdirected himself when he made no order as to the payment over to the defendant of the moneys which the plaintiff had admitted he held for the defendant.

(7) The verdict is unreasonable and cannot be supported by the evidence adduced”.

The appellant is a private medical practitioner. He engaged the services of the respondent, an Italian doctor, to work in his clinic on contractual basis. There was a service agreement (exhibit ‘C’) to which we will later refer. The appellant was responsible for the respondent’s entry and stay in this country in the sense that he was granted permission by the Immigration Authorities to bring the respondent into the country to work as a doctor and on the expiration of his duties here with the appellant, his entry permit expired and he would have to leave. From the evidence in the court below it would appear that the respondent commenced work with the appellant on the 15th February, 1964, and on the 25th June, 1964, his appointment was terminated. The respondent has complained that the termination was wrongful and thereby commenced the present proceedings against the appellant.

The action was for a claim for specific performance of an agreement dated 20th January, 1964, and for an account, or in the alternative, for a sum of £10,000 damages for breach of contract. During the hearing, the claim for specific performance was abandoned and it was dismissed.

The agreement on which the respondent relied is contained in a letter written by the appellant (exhibit ‘C’) and dated 20th January, 1964, the relevant terms of which are as follows-

“(1) Your salary will be £50 per month plus 75 per cent of the professional fees paid by any patient brought into the practice by you.

(2) You will give your full time services to this clinic and shall not engage in any other employment including the extra mural practice of the profession.

(3) On the determination of your services with this clinic you shall not engage in the practice of medicine in any form whatsoever within 50 miles radius of the Lagos General Post Office for a term of 3 (three) years”.

The plaintiff/respondent averred in his Statement of Claim and the learned Chief Justice who heard the case in the court below held that on the 15th February, 1964, the second clause of the Agreement exhibit ‘C’ was, by agreement of the parties, varied.

It is common ground that the appellant’s solicitor was later to prepare a formal service agreement which was never carried out. Parties, however, agreed to be bound by the letter (exhibit ‘C’) and the terms contained there-in and the respondent commenced work. The respondent claimed however, that on the 15th February, 1964, in the presence of one Professor Cori and Dr. Brovedani Umberto, at the appellant’s clinic at 23 Igbosere Road, he and the appellant agreed to vary the terms of the service agreement.

The learned Chief Justice in the court below found that on that date, namely the 15th February, 1964, clause 2 of the agreement was by oral agreement varied as follows:-

“(a) That Dr. Stocco (respondent) was to put in one hour between 9.30 a.m. and 11 a.m. at the defendant’s clinic.

(b) That the plaintiff (respondent) was, outside those hours, free to do private practice provided that the fees obtained from such practice are distributed in accordance with clause 1 of the agreement which provides that- ‘Your salary will be £50 per month plus 75 per cent of the professional fees paid by any patient brought into the practice by you’.

(c) That the bills for work done outside the clinic could be sent to the patients by the plaintiff provided such bills contained the clinic address on them as the place where payment was to be made”.

For the variation of this agreement the learned Chief Justice said he relied on the evidence of Dr. Brovedani who, it would appear at the meeting of the parties on the aforesaid date, 15th February, 1964, acted as the interpreter, as the respondent did not speak English fluently. There is no dispute between parties as to the purpose of the meeting. Dr. Stocco (respondent) called it a discussion at which there was a clarification of the duties he was to perform in the appellant’s clinic. Dr. Brovedani Umberto said it was a conversation, at which he acted as interpreter, and the main question was to clarify some points about the attendance of Dr. Stucco (respondent) at Dr. Maja’s (appellant) clinic. Dr. Maja himself spoke about it as a talk about the hours the respondent was to be at the clinic as against the time he was to visit patients in their houses. The learned Chief Justice, however, held that at this meeting clause 2 of the agreement was varied.

The gravamen of the matter appears to us to be this-did the parties intend that the agreement (exhibit ‘C’) be varied and did they in fact vary it by the conversation which took place between them on the 15th February, 1964? It seems to us that for the determination of this point one must look to the circumstances when the agreement (exhibit ‘C’) was entered into by the parties and what led to the subsequent meeting or conversation which took place on 15th February, and indeed to the conversation itself.

The learned Chief Justice, however, without actually saying so, treated this meeting as an indication that it was the intention of parties to vary the agreement they had entered into and that they met for that purpose and reviewed the agreement. We see nothing in the evidence to justify this conclusion. It is our view that when the parties entered into a written agreement and later met to discuss the means of carrying it out, unless they so agreed the subsequent conversation between them as to the means of implementation of the agreement cannot be treated as variation of the agreement. The facts in this case, in our view, do not justify the inference that the parties when they met were at one that the agreement should be varied.

As we stated earlier the respondent himself did not say that the meeting was because he was displeased with the agreement and wished to vary it. He said the object of the discussion was to clarify the duties he was to perform. Dr. Umberto said the object was to clarify some points about the respondent’s attendance at the clinic. They spoke about the hours he was to attend. Dr. Umberto said this was fixed at 1 or 11/2 hours in the morning and 1 or 11/2 hours in the evening. The respondent himself said 9.30 a.m. to 11 a.m. and 5.30 p.m. to 7 p.m. On this point we refer to the evidence of the plaintiff/respondent himself. This is what he said:-

“On my return I saw the defendant between the 10th and 13th February. There was clarification of the duties I was to perform in Dr. Maja’s clinic during these discussions in the presence of the two witnesses first named (Professor Cori and Dr. Brovedani Umberto). One of the matters discussed was the time I was to spend in Dr. Maja’s clinic. I was to attend in the morning between 9.30-11 a.m. and in the afternoon between 5.30-7 p.m. Dr. Maja explained his plan as to the re-organisation of this clinic. We agreed on the salary. We discussed paragraph 2 of exhibit C. We agreed that I was not to practice surgery in any other clinic. Paragraph 2 is limited to my practice of surgery. As to bills, Dr. Stocco (meaning himself) was to send his bills to patients he visits outside the clinic and Dr. Maja usually would send his bills to patients in the clinic”.

It is appropriate, at this stage, to examine in detail the evidence of Professor Umberto on whose evidence the learned Chief Justice relied in coming to a conclusion that the conversation of 15th February varied the original agreement. This is the relevant portion of his evidence:

“I acted as interpreter and heard the whole discussion. The main question was to clarify some points about attendance of Dr. Stocco at Dr. Maja’s clinic. Dr. Maja asked Dr.Stocco to be present in the clinic morning and afternoon. He asked Dr. Stocco to be there for 1 hour or 11/2 hours in the morning and evening. No specific time was stated. Dr. Stocco was to choose the time in accordance with his programme for the day”.

When, at this stage, exhibit ‘C’ was put to witness and he was asked to examine paragraphs 1, 2 and 3, this is what he said:-

“Dr. Stocco was free to attend his own private practice as long as he put in his hours of work in the morning and evening at the clinic”.

We observe, at this stage, that the witness did not say the latter quotation was part of the discussion. He was asked to examine the document and the above appeared to be the opinion he volunteered. We observe also that the evidence of this witness about the time the respondent was to be at the clinic differs materially from the evidence of the parties themselves who stated definite hours both in the morning and afternoon. According to the witness, it was to be at any time the respondent found it convenient to attend the clinic both in the morning and the evening. Taking the evidence of Dr. Brovedani Umberto by itself it is difficult to see how the learned Chief Justice could arrive at the conclusion that the sum total of his evidence (which he said varied the agreement (exhibit ‘C’)) amounted to the variations he found:-

(a) That Dr. Stoco was to put in 1 hour between 9.30 a.m. and 11.a.m. at the defendant’s clinic.

(b) That the plaintiff was, outside these hours, free to do private practice, etc.

(c) That the bills for work done outside the clinic could be sent to the patients by the defendant provided such bills contained the clinic address on them as the place where payment was to be made.

With regard to (c), the bills bearing clinic address, was in tune with his evidence. This was never in dispute.

The learned judge has criticised adversely the fact that the defendant /appellant in his evidence said he did not challenge Dr. Umberto’s evidence; he also criticised his counsel for not cross-examining Dr. Umberto at all. There is nothing to challenge in Dr. Umberto’s evidence and we agree with the conduct of counsel in not cross-examining him for in effect he said nothing useful to the plaintiff’s case.

We now consider the three aforesaid variations as found by the judge in relation to the evidence of the plaintiff/respondent himself. We have stated that the object of the meeting was to clarify hours of attendance of work to conform with the first part of clause 2 of the agreement (exhibit ‘C’). The hours of work were discussed: we see no variation in this which the learned Chief Justice referred to as variation (a). What has been called variation (c) about sending out bills and that they should bear the address of the appellant’s clinic has, in our view, nothing to do with the agreement (exhibit ‘C’) and cannot be considered as part of the agreement (exhibit ‘C’). It was no more than means of checking bills, etc. We now come to consider variation (b) which is the crux of the whole matter and which, as we stated earlier, cannot be found in the evidence of Dr. Umberto. The plaintiff/respondent himself gave evidence about it and what he said differs in part from his Statement of Claim. The relevant paragraph is the second half of paragraph 6 which reads:-

“6. At the meeting referred to in the preceding paragraph hereof the plaintiff and the defendant agreed to vary the provision of the plaintiff’s service agreement so far as the terms set out in paragraph 3 (d) was concerned in that it was agreed. that the plaintiff should be permitted to visit outside patients at the plaintiff’s house or at the patients’ residences”

In his evidence the plaintiff on this point said:-

“We discussed paragraph 2 of exhibit `C’. We agreed that I was not to practice surgery in any other clinic. Paragraph 2 is limited to my practice of surgery..”

In other words the practice of surgery was limited but he was free to practice medicine anywhere. The learned Chief Justice did not say anything about this and it is clear that the averment to practice generally as the Statement of Claim indicates was not proved. Thus, we are left with the evidence of the defendant/appellant that he did not concede to the respondent any practice outside his clinic; that the respondent was to see patients in their homes but any practice on these patients must be in his clinic. He further stated that it will be contrary to the terms of the respondent’s stay in the country if he allowed him to practice in his house, as the terms of his stay were that he must practice under him. It seems to us that one must look at the background of the respondent’s employment to appreciate the force of the appellant’s case. According to the evidence before the court the respondent was originally allowed into Nigeria for a period of three months to do some research. After a short stay in the country he applied for permission to stay and to get employment to practice medicine; both applications were refused. He left Lagos for the neighbouring country, Dahomey. Some of his friends approached the appellant who, after consulting the Immigration Authorities, agreed to employ him. The respondent came from Dahomey.

The appellant took him to the Immigration Authorities where it was made clear to him that the respondent would be allowed in Nigeria if he practiced under the appellant and never on his own. He agreed and signed documents to that effect. The appellant was requested to ask for a quota if he wished to employ him. This was in January, 1964; apparently the agreement (exhibit ‘C’) was entered into at this time. The respondent went back to Dahomey. The appellant applied for and obtained a quota. The respondent in February returned to Lagos and on or about the 15th February, the meeting to clarify the hours of his duties took place.

We respect to the learned Chief Justice we find ourselves, on the facts and the whole circumstances, unable to agree with him that parties met on the 15th February, 1964, to vary the agreement (exhibit ‘C’). We cannot agree that the purpose of the meeting was no other than to clarify the hours of work, etc. the respondent had to carry out. There was, in our view, no variation of the agreement (exhibit ‘C’). The respondent did not deny that he was practising medicine in his house at Yaba; he said he had a right to do this. The respondent knows he had no such right under the agreement. It would even appear that his servant knew he was not to practice. We refer to the evidence of Lewis Mgbeje, who was his clerk, his steward and his general housekeeper, and one cannot help but be struck by his attempt to hide the fact that his master was practising in the house. The witness said under cross-examination:-

“To my knowledge Dr. Stucco does not attend to patients on his return (Meaning on his return home from work)”.

This witness had earlier said that the respondent was in the habit of leaving home at 8 a.m. to Dr. Maja’s clinic and was returning at 1 p.m. He also stated that he was issuing receipts for payments made to his master although they were not paid to him personally and that the printed receipts bore the respondent’s name.

We need to make it clear once again that this court will not interfere with findings of facts made in the court below, but when circumstances justify it, as we have pointed out in some cases, we shall not hesitate to disturb the findings of facts made by the judge in the court below. The circumstances need no reiteration.

We have sufficiently reviewed the position of the law in other cases which came before this court and a few authorities need be referred to here all indicating that where the facts found by the court of trial a re wrongly applied to the circumstances of the case or where the inference drawn from those facts are erroneous or where the findings of facts are not reasonably justified or supported by evidence given in the case, the Court of Appeal, is in as much a good position as the trial court to deal with the facts and to make proper findings-We refer to the cases Akinola and others v. Fatoyinbo Oluwo and others (1962) 1 All N.L.R. 224; Lawal Braimoh Fatoyinbo and others v. Selistu Abike Williams (1956) 1 F.S.C. 87; Chief Oshogbon Fabumiyi and another v. Fatumo Temitoyin Obaji and another (unreported) S.C. 54/1965 delivered 29th September, 1967. and to mention two English cases-Watt or Thomas v. Thomas (1967) A.C. 484 and Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370.

But the matter does not rest here. There is another aspect to this case which must receive our consideration. Was the respondent dismissed by the appellant from his service? If so, had he grounds for dismissing him or, in other words, was the dismissal lawful? The trial Chief Justice had a lot to say about an ultimatum which the appellant said he gave to the respondent, after an event in his clinic in which one Miss Hajaig, a patient, collapsed after the administration of a wrong injection on her by the respondent.

The appellant said this was the climax to several misdeeds of the respondent, particularly in not entering up the cards of patients he treated in the clinic and the extent of the private practice he had been carrying on in his house, contrary to agreement; also the cards of such patients kept in the respondent’s house were not entered up.

The respondent did not deny the accusations although the learned Chief Justice stated that Miss Hajaig should have been called to give evidence. It is true she was not called; but her brother, who took her to the clinic and who rushed to the consulting room when there was panic and who saw his sister in a critical condition, was called and gave evidence of the incident, and what the respondent himself at the material time, said to him. The appellant, however stated that the respondent was given an ultimatum to enter up all the records and bring these to his house, all within a fortnight. As we stated earlier, the respondent did not deny that he kept no records of patients. His attitude to this can be surmised from his evidence under cross-examination. He said:

“Miss Barhaglia Adriana was my patient. I have not written anything on the file shown to me in the column marked “History of Patient”. I also have written nothing about the past history of the patient. Similarly about the family history or social history. I have written the diagnosis on the continuation sheet. There is no record of treatment shown. I have written everything down on my personal record because they are personal and secret. Dr. Maja is responsible to the Government for anything happening in his clinic. These people are my patients and not Dr. Maja’s ……”

Certainly, this is not the attitude one would expect from an employee. The learned Chief Justice found as a fact that the appellant gave no ultimatum to the respondent because evidence of those present when the ultimatum was given was not forthcoming; also that if it was true, he believed Dr. Maja would have put it in writing. Having held that no ultimatum was given to the respondent, the learned judge stated that the letter of termination of the respondent’s appointment (exhibit ‘C’) was of no effect. We hesitate to quarrel with this finding of fact. The learned Chief Justice has found the appellant not to be a witness of truth and had passed strictures, unjustifiably though in our view, on his capability to tell the truth. The net result, there-fore, is that the respondent was given no ultimatum and the first time he was faced with his dismissal was when he received a letter (exhibit ‘F’) on 25th June, 1964, from the appellant’s receptionist.

This brings us to the question whether or not the dismissal of the respondent was justified. Various acts may give rise to a dismissal. For example, wilful disobedience to lawful and reasonable orders, misconduct of the master’s business, neglect, incompetence and other conduct incompatible with or prejudicial to the master’s business. From the evidence before the court it cannot be disputed from the conduct of the respondent justified his dismissal. The more important is that he was acting in breach of the agreement (exhibit ‘C’) by carrying on extensive practice in his house at Yaba contrary to the terms of the agreement.

A servant whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed, as for instance, if unknown to his employer, he enters into transactions where-by his personal interests conflict with his duty as a servant in his particular capacity. See Pearce v. Foster (1886) 17 Q.B.D. 536; C. A. and Ridgeway v. Hungerford Market Co., (1835) 3 Ad. & El. 171, and in Nicol v. Martyn (1799) 2 Esp. 732, and East Anglian Railways Co. v. Lythgoe (1851) 10 C. B. 726, it was held that a servant whose conduct has been such that it would be injurious to the master’s business to retain him was justifiably dismissed. And in the case of a servant who takes advantage of his position to enrich himself as in the present case, he is not only accountable to his master for the proceeds but he is liable to an instant dismissal by the master. See the cases Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch.D. 339 at pp. 367 & 368; and Reading v. Attorney General (1951) A.C. 507 H.L.

We therefore have no hesitation in arriving at the conclusion that the respondent was in the circumstances rightly and justifiably dismissed by the appellant, and that the award of damages to him by the learned Chief Justice was wrong. He is however entitled to three months salary which as it appears from the evidence had not been paid to him.

The questions of accounts in the claim and indeed between the parties were not argued before us; we therefore express no opinion.

The net result is that this appeal is allowed; the judgement of the learned Chief Justice on the award of damages for wrongful dismissal in Lagos High Court Suit No. LD/309/64 is hereby set aside and we hereby enter judgement for the plaintiff/respondent for the sum of £150 representing his three months salary and dismiss his claims on the other items of damages, with costs assessed at 35 guineas in the court below. Costs of this appeal will be in favour of the appellant assessed at 75 guineas.

Other Citation: (1968) LCN/1602(SC)