P. O. Ewarami V. African Continental Bank Ltd (1978)
LawGlobal-Hub Lead Judgment Report
At the end of counsel’s submissions in this appeal, we indicated there and then that it was dismissed, and promised that we would give our reasons later. This we now do. By his amended writ the respondent herein claimed against the appellants thus:- “The plaintiff’s claim against the defendant is for the sum of N20,000.00 (Twenty-thousand Naira) being special and general damages for wrongful dismissal in that on or about the 13th November, 1973 at benin City within the jurisdiction of this honourable Court, the defendant wrongfully dismissed the plaintiff from the service of the defendant company.
The plaintiff also claims a declaration that the purported dismissal is wrongful, illegal and unconstitutional.
PARTICULARS OF DAMAGES Salaries due to plaintiff for the months of July – November, 1971; (a) N80.00 per month N400.00 (b) Leave Bonus due plaintiff 1972/3 N50.00 (c) General damages N19,550.00 N20,000.00” After the proceedings had been adjourned for judgment, the respondent moved the court for an amendment of the relief sought in his Statement of Claim. The said amendment, although strenuously opposed by the appellants was granted on terms. In view of the above, the relief sought under paragraph 29 of the Statement of Claim now reads as follows:-
“The plaintiff avers that by reason of the said wrongful dismissal he has suffered damages. Whereof the plaintiff claims that the dismissal of the plaintiff by the defendant company is wrongful and a declaration that the plaintiff is still in the employment of the defendant company.
The plaintiff therefore claims N20,000 (Twenth-thousand Naira) general damages. OR IN THE ALTERNATIVE The plaintiff claims as special damages his salary from July 1973 to January, 1975. (a) N80.00 per month N1,440.00 (b) Leave bonus N50.00 TOTAL N1,490.00
PAGE| 3 The facts found by the lower court which were not challenged as the appellants elected not to call evidence, show that the respondent was employed by the appellants on 21st March, 1964. Thereafter, he served at various branches of the appellants’ banking houses and at the commencement of this suit in February, 1974, was a member of the permanent staff of the appellants in the post of “ARCHIVIST.”
In 1972 the appellants sued one Chief F. S. Yesufu, customer, in the Benin High Court in Suit No. B/10/72. Upon the application of the said Chief Yesufu, the respondent was served with a subpoena requiring him to appear and give evidence at the benin High Court in the pending suit on 14th June, 1973. The respondent appeared in court on the stated date, but no evidence was taken in the matter that day. It was then adjourned to 2nd July, 1973. On 25th June, 1973 the respondent received a letter from the appellants transferring him from their Ring Road Branch in Benin – City, where he then worked, to their Jos Branch. By some strange co-incidence, the date of the respondent’s resumption of duty at Jos was 2nd July, 1973; the same date to which the Yesufu suit in which a subpoena had been served on him had been adjourned. A discussion between the respondent and the manager of the appellants’ Ring Road Branch in Benin City failed to resolve the crisis created by the conflicting demands for the respondent’s presence at the Benin High Court and at Jos on the same day. It would appear that when Yesufu got wind of the respondent’s impending transfer to JOS, he moved the Benin High Court for an order restraining the appellants from doing so until Suit B/10/72 was disposed of.
This order was made on 29/6/73 and the manager of the appellants’ Ring Road Branch in Benin City who was present in court told the respondent that he would have to wait for another order of posting in view of the court’s order. Soon after the making of the above order, the respondent took ill and was attended to by one Dr. Oviasu who issued him with a sick leave certificate dated 30/6/73 and which was admitted at the hearing at the court below as Exhibit “D”. No evidence was taken in Suit No. B/10/72 on 2nd July, 1973. It was adjourned to 9th July, 1973 and again to 10th July, 1973 when the respondent’s evidence was taken. Although his evidence had been taken, no formal application was made for his discharge by the court.
The respondent thereafter stayed away from work on the strength of medical sick-leave certificates. Efforts made by him to receive his salary from the appellants’ Ring Road, Benin-city Branch met with no success. This was how matters stood when the respondent instructed a solicitor to write a letter dated 25th September, 1973 to the appellants. It was in their reply dated 13th November, 1973 to the above letter that the respondent learnt for the first time that another letter dated 3rd August, 1973 had issued to him from the appellants instructing him to again proceed on transfer to Jos. The refusal by the appellants to pay the respondent’s salary had apparently been due to the view which they had formed that the respondent had been guilty of gross insurbordination by refusing to proceed on transfer to Jos consequent upon the issue of their letter dated 3rd August, 1973. This much was alleged in their Statement of Defence .
The case at the lower court thus turned on the narrow issue as to whether the respondent had been lawfully dismissed, as indeed he could, by his employers, for insurbordination, or whether a case for dismissal had not been made out in the absence of proof that he had received the letter of 3rd August, 1973 re-confirming his earlier transfer to Jos. After a most careful appraisal of the only evidence before him (since the appellants elected not to offer any evidence), the learned trial Judge (Oki, J.), accepted the respondent’s case and relying on the claim as amended, held that:- “His purported dismissal from the employment of the defendant company is null and void” and declared: “that he is still in the employment of the defendant company.”
This appeal is against the above decision. A number of grounds of appeal both original and additional were filed, but the appellants specifically relied on the following:-
(a) The learned Judge erred in law by granting a declaration that the plaintiff/respondent was still in the employment of the defendant/appellant when – (a) he had no jurisdiction so to do; and (b) the admissible evidence was not in support of the declaration. (b) The learned Judge erred in law by granting the plaintiff’s application dated 3rd February, 1975 to amend the Statement of Claim in view of the fact that the momentum introduced new reliefs not cognisable under the claim endorsed on the writ of summons and in view of the legal objections raised in opposition to the application.
(c) The learned trial Judge having accepted as proved the allegation in paragraph 9 of the amended Statement of Defence erred in law:- (a) in entering judgment for the plaintiff who was in breach of contract by absenting himself from duty. (b) in holding that “the defendants ought to have given evidence to show that the absence from duty in their company is regarded as a serious breach of contract of service to warrant termination of appointment,” when the onus is on the plaintiff to prove that his termination or dismissal was wrongful.
(d) The learned trial Judge erred in law by holding and assuming (a) that the parties were governed by the common law “and the practice within the defendant company” when – (i) there is evidence before him that there are conditions of service governing the parties; (ii) there is no evidence of the practice within the defendant company. (b) that the condition of service was not in writing when there is no such evidence before the court.” (e) The learned trial Judge erred in law in granting the plaintiff the declaration sought after holding that the parties were governed by the common law when declaratory judgments are unknown to the common law and/or the only remedy at common law for breach of contract of service or wrongful dismissal is the award of damages.
(f) the learned trial Judge erred in law in holding that the dismissal of the plaintiff by the defendant was null and void when the defendant was competent to dismiss the plaintiff. (g) The learned trial Judge having held that “before the court, however, there was no evidence of dismissal” erred in law in entering judgment for the plaintiff and declaring his dismissal from the employment of the defendant company null and void when the plaintiff’s claim ought to have been dismissed or non-suited for failure to prove the b
Other Citation: (1978) LCN/2066(SC)