Omenka V. Morison Industries Plc (2000)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
The appeal here is against the judgment of the High Court of Lagos sitting at Ikeja delivered on 9th December, 1994. The plaintiff (hereinafter referred to as the appellant) had claimed from the defendant (hereinafter referred to as the respondent/cross-appellant) in the Court below the following reliefs:-
(1) A declaration that the letter of termination signed by the 2nd defendant purportedly for the 1st defendant dated 25th October, 1996, is null, void and of no effect whatsoever.
(2) A declaration that the plaintiff is still a member of the board of directors of the 1st defendant company and is still in the employment of the said 1st defendant company as Executive Director.
(3) A perpetual injunction restraining the defendants whether by themselves, their privies, agents and assigns or otherwise howsoever from unlawfully and wrongly interfering in any manner whatsoever with the employment of the plaintiff as Executive Director, otherwise than in accordance with his conditions of service and/or in accordance with the Articles of Association of the 1st defendant company. OR IN THE ALTERNATIVE the sum of N1,5000.000.00 being special and general damages for breach of contract of employment.
PARTICULARS OF DAMAGE
Financial emoluments per year for the next 7 years:
N: K
Basic Salary 35,000.00
Leave Allowance
(6% of basis salary) 2,100.00
Provident /Pension Funds
(10% of basic salary) 3,500.00
Entertainment Allowance 10,000.00
Bonus 15,000.00
House Help 2,000.00
Health (Family) 12,000.00
House (rent) 40,000.00
Gas/Electricity 3,750.00
Telephone 6,000.00
Car Maintenance 18,000.00
Driver 2,400.00
Gardener 2,400.00
Security 14,400.00
= = = = = = = =
TOTAL: N172,950.00
For 7 years N1,210,650.00
General Damages 289.350.00
= = = = = = = = =
Grand Total N1,500,000.00
Pleadings were filed and exchanged between the parties. The case later proceeded to trial. At the conclusion of evidence on either side, the addresses of counsel were taken. In a considered judgment delivered on the 9th of December, 1994, the learned trial Judge declined to make a declaratory order sought in leg one, rather he awarded a total sum of N147,635.00, the break-down of which according to the Court below is N64,250.00 awarded by the Court below plus the sum of N83,385.00 earlier offered to the plaintiff through the letter of termination of his appointment dated 25/10/90 tendered as Exhibit P14. The sum of N25,000.00 was also awarded to him as general damages. Being dissatisfied with that part of the judgment wherein the Court below declined to grant the declaratory reliefs and an order of injunction sought the plaintiff/appellant has appealed to this Court on six grounds. The defendant/respondent being also dissatisfied with that part of the judgment wherein the Court below held that the defendant failed to comply with the Articles of Association of the defendant/company before terminating the appointment of the plaintiff/appellant and also that part wherein the plaintiff/appellant was awarded N25,000.00 as general damages did file a notice of cross-appeal with two grounds of appeal. The plaintiff/appellant identified through his brief of argument three issues for determination and they are as follows:
(a) whether the distinction drawn by the trial Court between Iwuchukwu v. Nwizu and the instant case is tenable?.
(b) even if the answer to (a) is affirmative (which is not conceded), whether Exhibit P12 was applicable to this case?.
(c) whether the relief awarded the appellant ought to be allowed to stand?.
The defendant/respondent raised two issues for determination from the main appeal and they are as follows:-
(1) whether there is such circumstance in this case even in the light of the authority of Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379 to warrant the learned trial Judge make the declarations being sought by the appellant?.
(2) whether the damages awarded to the appellant in the circumstances of this case can be regarded as appropriate?.
From the cross-appeal the…defendant/respondent/cross-appellant also identified two issues for determination which are as follows:-
(a) whether considering the provisions of section 63 (1) (2) of the Companies and Allied Matters Act, 1990 which the defendant/cross-appellant complied with the finding of the trial Judge be allowed to stand?.
(b) whether the damages awarded to the appellant in the circumstance of this case can be regarded as appropriate?.
I have had a careful study of all the issues raised by both the appellant and the cross-appellant in their respective briefs of argument and I do think that all of them can be taken together. The fundamental matter that calls for determination is whether, having regard to the totality of the facts of this case, the appellant had his appointment wrongfully terminated?; if the answer is in the affirmative, what is the remedy available to the appellant in the light of Exhibit P12 -directors Conditions of Service, section 63(1) and (2) of CAMA and the Supreme Court decision in Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379. The learned trial Judge had in his judgment held inter alia:
“I have quoted this particular minutes in full to see if there is any resolution passed specifically terminating the plaintiff’s appointment. I must say that there is no specific resolution on this…”
On the whole, it would appear that the defendant have neither complied with the Articles of Association of the 1st defendant/company itself nor with the law, the mode of removal of the plaintiff is therefore incompetent. The only difference between that case (i.e.) Iwuchukwu v. Nwizu (1994) 7 NWLR (pt.357) at 379 and the instant case is that there is a contract of conditions of service between the plaintiff and the 1st defendant. The said contract is Exhibit P12 and, its copy, Ex. P13 on which the plaintiff has signed to confirm that the conditions are acceptable to him”.
(words in italics supplied by me)
The contention of the Appellant is that having pronounced that the employment of the appellant was wrongfully terminated, that, in itself constituted special circumstances that would warrant the reinstatement of the appellant or in the alternative of the full sum of money claimed. On the other hand, the cross-appellant, through its brief. contended that having regard to the provisions of section 63 (1) and (2) of the Companies and Allied Matters Act Cap 59 Laws of the Federation 1990 the Court below ought not to have held that the removal of the Appellant was wrongful in the light of the facts before him.
I shall start by saying that it is axiomatic that the contract of service is the bedrock upon which an aggrieved employee must found his case; he succeeds or fails upon the terms or conditions contained therein. It follows therefore that in a written or documented contract of service, a court of law must not have resort to any other thing, outside the terms stipulated or mutually agreed therein in deciding the rights and obligations of the parties. Those provisions stipulated in the written contract of service are binding on the parties and a court of law is lacking in any legal power or jurisdiction to look any where for the purpose of identifying the terms of termination of contract other than in the written agreement voluntarily entered into by the parties. See W.N.D.C. v. Abimbola (1966) 1 All NLR 159. By the evidence before the Court below, the Appellant was a director of the defendant company, his employers as at the time his services were been dispensed with. Exhibit P12 is the ‘directors’. Conditions of Service”, the 2nd condition which is relevant to this case reads:
“Should the Board of the Company wish to terminate the employment of any working Director, then one year’s notice in writing must be given or payment in lieu.”
Ex P14 is the letter dated 25th October, 1990 conveying the decision of the cross-appellant to dispense with the services of the appellant. In the said letter, the cross-appellant offered to pay the appellant one year basic salary in lieu of notice; and his total entitlements were put at N85,385.00. The Court below, as I have said, held that the termination of the appointment of the Appellant was wrongful. But in law, no servant can be imposed by the court on an unwilling master even where the master’s behaviour or motive for removing the worker is wrongful or unjustifiable, unless the appointment has a statutory flavour or special circumstances have been shown as to warrant the making of an order reinstating the employee. See (1) Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128 and (2) Ajayi v. Texaco (Nig) Ltd. (1987) 3 NWLR (Pt.62) 577. The Appellant as I have pointed out was a director of the cross-appellant company as at the time his services were dispensed with. That a director of a company may be removed from office is not in doubt. The mode of removing a director may however be spelt out in the Article of Association of the company concerned. In the absence of provision in the Articles of Association then a resort to the Companies and Allied Matters Act may be had:
See Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379 relied upon by the Appellant. I have read the Iwuchukwu’s case very carefully the 2nd condition in Ex. P12 (captioned Directors’ Condition of Service) tendered in this case and which I quoted supra was non-existent in that Supreme Court case. Again, I must say that there is no procedure laid down for the removal of the appellant in Exhibit P.12.
The Court below after a thorough examination of Exhibit P25, the Article of Association together with the evidence rightly held that there was no specific resolution to remove the Appellant. But I cannot ignore the 2nd condition of Ex P12 which I quoted supra. Both parties voluntarily agreed to it, indeed by Ex. P13 the appellant agreed to the implementation of that condition. I am of the view that this makes a clear difference between the facts in Iwuchukwu’s case and the present case. I shall still remind myself that in the matter of termination of appointment of a servant by his employers it is the contractual agreement that a resort is always had to. Again, a court of law does not make a practice of imposing an employee on an unwilling employer. And once a court hold’s that a servant’s employment was wrongfully terminated, he is entitled to damages. See the Supreme Court in the case of Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt.289) 512. Therefore, subject to the setting aside of the sum of N250,000.00 awarded by the Court below as general damages in favour of the Appellant, the cross-appeal is substantially lacking in merit and it must be dismissed. Issue 1 identified by the cross-appellant is therefore answered in the affirmative. I also answer issues (a) and (b) in the appellant’s brief in the affirmative.
I now go to the issue of damages awarded. As I have said, the employment of the Appellant was terminated at the point of his appointment as a director. Where there is a written provision for terminating the contract of employment as epitomized by Exhibit P12 as in the instant case, and there is a breach of the written provision, what the employee would be entitled to would be the salary for the period of the notice which the employer would have given as notice to terminate the employment of the servant. See (1) Daniels v. Shell Petroleum Dev. Co. of Nig. Ltd. (1962) 1 SCNLR 19 and (2) W.N.D.C. v. Abimbola (1966) 1 All NLR 159. In Ex P14, the letter dated 25/10/90 conveying the termination of the appointment to the Appellant, he (appellant) was offered a one year basic salary payment in lieu of notice. In his alternative claim for monetary award, the plaintiff/appellant claimed the sum of N1,210,650.00 (one million two hundred and ten thousand six hundred and fifty naira) representing seven years rent plus allowances, plus N289,350.oo (two hundred and eighty nine thousand three hundred and fifty naira) all totalling N1,500,000.00 (one million five hundred thousand naira). In his testimony before the Court below on the issue of his entitlement, the plaintiff/appellant said inter alia.
“I am entitled to bonus which is not included in Exhibit P14. I am entitled to entertainment allowance which is included but called current year allowance…I am entitled to free accommodation but I was only given permission to stay in accommodation for 6 months, I am entitled to gas and electricity. I am entitled to a company car fully serviced with a driver. I am entitled to a gardener, security and use of telephone, medical attendance for self and family, provident and pension fund, house servant and leave allowance….”
When cross-examined he said:
“I have seen Exhibit P 14. The sum total of what as stated to which I am entitled is N85,385.00. I have not collected it. I do not agree that all I am entitled to is the N85,385.00.”
The law remains immutable that he who asserts must prove.
Again, the items of damages other than the amount claimed for general damages, are special. Special damages are such as the law will not infer from the nature of the act. They do not flow in the ordinary course. They are exceptional in their character and therefore, they must be claimed specially and proved strictly, by credible evidence of such character as would suggest that he indeed is entitled to an award under that head. See Oshinjinrin & Ors v. Elias & Ors (1970) 1 All NLR 153. Computing the sum that the plaintiff/appellant is entitled to by his evidence, it is this:
N : K
(1) Basic Salary 35,000.00
(2) Leave Allowance 2,100.00
(3) Provident /Pension Funds 3,500.00
(4) Entertainment Allowance 10,000.00
(5) Bonus 15,000.00
(6) Gas/Electricity 3,750.00
(7) Telephone 6,000.00
(8) Driver 2,400.00
= = = = = =
N77,750.00
The plaintiff/appellant admitted that the cross-appellant is responsible for the payment of the salaries of the gardener and the security. And the company’s house which he was occupying was rent free: The total sum that is due to the plaintiff/appellant is N77,750.00 (seventy-seven thousand seven hundred and fifty naira).
It must be observed that both the appellant and the cross-appellant agreed, in their respective briefs, that the sum of N25,000 awarded the appellant as general damages ought not to have been allowed as it has no legal support. I have not taken that sum into consideration in the computation of the sum of N77,750.00 which adjudge is due to the plaintiff/appellant. Issue (c) in the appellant’s brief is therefore answered in the negative; so also are issue 2 in the respondent’s brief and issue 2 in the cross-appellant’s brief answered in the negative.
In sum, the appeal is adjudged to be unmeritorious and it is accordingly dismissed. To the extent to which the entitlement of the appellant is reduced from N147,635.00 to N77,750.00 I say that the cross-appeal partially succeeds. There shall be no order as to costs.
Other Citations: (2000)LCN/0844(CA)