Samuel Isheno V Julius Berger Nig. Plc (2008)
LAWGLOBAL HUB Lead Judgment Report
AKINTAN, J.S.C.
The appellant, Samuel Isheno, as plaintiff, instituted this action against the respondent as defendant at the Oleh High Court, in Oleh, Delta State. His claim, as set out in paragraph 27 of his amended Statement of Claim is as follows:
“Wherefore the plaintiff claims the following from the defendant:
(1) Malicious prosecution of the plaintiff N250,000.00
(2) Defamation of plaintiffs character N200,000.00
(3) Loss of employment for 15 years
(made up of basic salaries, overtime pay,
Sunday hour rate, rent and transport subsidy, ex-gratia payment, SAP deductions, annual leave allowance, annual bonus, Xmas bonus, leave pay etc. 194,645.00
(4) Retirement benefit 32,636.00
(5) General damages 100,000.00
776,281.00
Pleadings were filed and exchanged and the trial took place before Ogbodu, J. The plaintiff gave evidence in support of his claim at the trial while the case for the defence was presented by one Peter Enumah, Security Manager with the defendant company.
The plaintiff’s case was that he was employed by the respondent company in Warri on 18th April, 1979 as an Assistant 2 Patrolman in charge of Uzere Road project at the company’s Oleh site. He was issued with an Identity Card (exhibit A) when he was employed. His duty as an assistant patrolman involved posting guards working under him to their various beats for both day and night duties. He claimed that he served the respondent company without any blemish and was on 18th April, 1989 issued with a certificate often years long service award by the company (exhibit B).
But the trouble that led to his exit from the company’s service and eventually to the institution of this case arose over the theft of the respondent’s two Mercedes Benz Heavy Duty tipper lorries with registration Nos. LA 6540 ML and LA2878 MM valued N800,000 on 27th January, 1991 at the company’s yard at Oleh in Isoko area of Delta State. The appellant, as the head of the security men in charge of the station, immediately reported the theft to the police at Oleh police station. A search for the two missing lorries by the police eventually led to their recovery in Ibadan. The information about their recovery came from the Police who claimed that the two lorries were intercepted at the Nigerian border as they were to be driven across to Benin Republic. Some arrests were made in Ibadan where the lorries were recovered. The appellant was implicated in the statements made to the police by one of the suspects. This led to the arrest of the appellant. He was first detained by the police after his arrest and was eventually charged to court along with the other suspects with conspiracy and stealing of the two lorries.
The appellant was, however, discharged and acquitted in a ruling on a no case submission at the close of the prosecution’s case. The appellant was remanded in prison custody for some days before he was granted bail by the Isoko Area Customary Court, Oleh which tried the criminal charge preferred against the appellant and the other suspects. Four of the appellant’s co-accused at the trial were, however, convicted and sentenced to various terms of imprisonment at the end of the trial. The court made the following observation on page 12 of its judgment in the criminal charge delivered on 29th October, 1991 (exhibit: 1):
“It is our observation that the police failed to properly interrogate the security officers attached to Julius Berger here at Oleh. If they had done so more facts would have emerged so as to determine how the vehicles got out of the yard.”
After the appellant had been discharged and acquitted of the criminal charge preferred against him, he reported for duty at his place of work with the respondent. He was however prevented from resuming duty. Instead, he was issued with a notice titled “Dismissal/Termination Notice” (exhibit J). The reason given in the notice for the termination of his appointment was that the appellant’s services were no longer required on the ground of redundancy. He was however paid the arrears of his salaries and allowances for the entire period he was away from duty up to the time of his final discharge by the court. The respondent also prepared the entitlements due to the appellant as an official disengaged from the company’s services on the ground of redundancy. The appellant, however, refused to accept the amount of N5, 285 as the total amount due to him as an officer disengaged on the ground of redundancy. The appellant insisted that he ought to have been allowed to resume his normal duties or allowed to retire having regard to his long and unblemished service with the company. When all efforts to get the respondent to yield to any of his requests failed, the appellant commenced the action.
The respondent’s case at the trial was presented by its only witness, Peter Enumah, the respondent’s Security Manager. The witness denied the appellant’s claims. He then went on to tell the trial court that as the arrest and trial of the appellant lasted for a fairly long term, the appellant could not be re-absorbed into the company because the project which the company was engaged in at the time was near completion and that meanwhile, his place had been filled by another person. The decision was therefore taken to pay the appellant all his outstanding arrears of salary from the time of his arrest right up to the time of his discharge by the trial court. The appellant was accordingly declared as redundant along with some other staff and his entitlement as a staff declared redundant was prepared (exhibit K). The appellant is, however, said to have refused to collect it.
The witness admitted, under cross-examination, that in computing the appellant’s redundancy entitlement (as set out in exhibit K) the appellant’s transport or repatriation allowance was not included. The man’s evidence in respect of the redundancy entitlement is as follows:
“I agree that in computing exhibit K his transport or repatriation allowance was not included. At this stage, I am now in agreement that the plaintiff is entitled to the claim of N5,000. I do not lie to court when I stated that exhibit K was prepared in strict compliance with exhibit H.
It is true that redundancy pay in the case of plaintiff is 5 weeks pay for each year of service. It is correct that plaintiff did put in 12 years of service. It is also quite correct that Article 10 of exhibit H did not specify whether or not the redundancy payment as already referred to is that of basic salary alone or including other payments, I do not agree that plaintiffs redundancy payment for 12 years of completed service should be N684 monthly nor N10,260 for that period of 12 years.
I disagree that an employee’s retirement age with the company is 65 years. There is no scheme for retirement with the company. It is not correct that the plaintiff was prosecuted maliciously for an allegation as having stolen tipper lorries.”
At the conclusion of the trial, the learned trial Judge in his reserved judgment delivered on 11th September, 1996 found that there was no merit in the plaintiffs claim. He accordingly dismissed the entire claim with N2,000 costs in favour of the defendant/respondent. The learned trial Judge said thus in the concluding paragraph of his said judgment:
“Finally, I wish to point out again that the entire action is speculative and gold digging exercise which has been embarked upon by the plaintiff. There is no basis for instituting this action in the first place. The whole act of the plaintiff is provocation and sufficient to cause defendant annoyance and in view of all I have already stated, the entire action is dismissed on ground that it lacks merit.”
The appellant was dissatisfied with the verdict and he filed an appeal against it to the Court of Appeal (hereinafter referred to as the court below. The parties filed their briefs of argument in the court below and after hearing the submissions from learned Counsel for each of the parties, the court in its lead judgment delivered by Akaahs, J.C.A.; with Rowland and Ibiyeye, JJCA concurring, dismissed the appeal. The learned Justice said thus in the concluding paragraph of the lead judgment:
“This appeal fails in its entirety and it is accordingly dismissed except for the redundancy benefits totaling N5,285 which the plaintiff/appellant refused to accept. I award =N=2,000 costs against the appellant in favour of the respondent.”
Again the appellant was still dissatisfied with the judgment delivered by the court below and a further appeal was filed against it to this court. The parties filed their briefs in this court. The following three issues were formulated in the appellant’s brief as arising for determination in the appeal:
“1 Whether the learned Justices of the Court of Appeal properly evaluated the evidence before awarding the paltry sum of-N=5,285 only as the entitlement of the appellant under the conditions of service which is Exhibit H.
- Whether the learned Justices of the Court of Appeal were right in law in holding that the appellant was not entitled to repatriation allowance especially when this allowance was paid automatically to staffs who suffers redundancy in accordance with the conditions of service (exhibit H).
- Whether the learned Justices of the Court of Appeal were right in law when they admitted that the parties relationship in this appeal were governed by exhibit H on the one hand, but held that the respondent had the option to either retire the appellant or declare his position redundant, and that they were right in choosing the latter.”
Three similar issues were also formulated in the respondent’s brief. I therefore do not consider it necessary to reproduce the three similar issues.
It is the contention of the appellant, as canvassed in Issue 1 of the appellant’s brief, that the learned Justices of the Court below did not properly evaluate the available evidence on the record before them before awarding the sum of N5,285. It is submitted that going by the conditions of employment as contained in the National Joint Industrial Council Agreement on terms and Conditions of Service for all Junior Employees in the Building and Civil Engineering Industry in Nigeria (tendered and admitted at the trial as exhibit H), the proper decision which ought to have been taken in respect of the appellant’s case would have been to retire him so that he could claim the retirement benefits as laid down in the said conditions of service. Such entitlement would have been more than the paltry sum of N5,285 awarded to him. It is further submitted that going by the terms of the said exhibit H, which was binding on the parties, the correct position would have been to retire the appellant after attaining the age of 52 years and having served the respondent for more than 12 years.
On Issue 2, it is submitted that the appellant was entitled to the repatriation allowance not as a separate payment but as part of the computation of the appellant’s entitlement. Failure of the respondent to do this is said to be erroneous.
Finally, it is submitted in the appellant’s Issue 3 that the conclusion of the two lower courts to the effect that declaring the appellant as redundant instead of retiring him was appropriate is said to have been reached without a proper evaluation of the evidence led at the trial and the provisions of the conditions of service as set out in exhibit H. It is further argued that a situation warranting the declaration of any employee as redundant could only arise when the employer has ceased to or intend to stop carrying on business or where the employer is no longer interested in the particular job being done by the employee. None of the above situations existed in the instant case and, as such, declaring the appellant as redundant could not arise and was totally wrong.
It is submitted in reply in the respondent’s brief on Issues 1, 2 and 3 that from the appellant’s claim and pleadings filed at the trial court, the plaintiff did not make any claim for reparation allowance. Issues were therefore not joined thereon. It is also argued that there was no relief in the amended statement of claim challenging the mode of termination of his employment. The calculation of his redundancy benefits as shown on exhibit K was also not challenged. What the appellant insisted on was a continuation of his employment with the respondent. It is then submitted that there was no reason for the court below to have granted the claim to the plaintiff/appellant. ,
The same is also said in respect of the claim for repatriation allowance. It is argued that since that item was not claimed or pleaded, it was wrong of the Court below to grant such claim. The contention of the appellant has been that he ought to have been reinstated or retired under Article 9 of exhibit H instead of being declared redundant under Article 10 of the same exhibit H. It is argued that since it was within the powers of the respondent to take the decision to declare the appellant as redundant under Article 10 of exhibit H, there is no ground for the Court to tamper with that decision since the respondent complied with the provisions of Article 10
The main question raised in this appeal is whether, from the facts established in this case, the respondent could be held liable for acts of the police on the report made to the police in respect of a crime as was in this case. The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect: See Bank of West Africa v. Odiatu (1956) L.L.R. 48; and Mandilas & Karaberis v. Apena (1969) All N.L.R. 390.
Similarly, where, on a report made by an appellant to the police about the theft of his goods, the appellant was asked whether he suspected anyone. He replied that he suspected the respondent who was consequently arrested and detained by the police for inquiry, such expression of opinion is said to be no more than putting the police on a trail upon which he can work instead of leaving him in the wilderness. Giving such information to the police cannot therefore form the basis for any action for false imprisonment or false prosecution by the police since it would be the duty of the police, after receiving such information, to make investigations themselves which may or may not lead to an arrest or to any action they take on the information given to them. Giving the police such information, therefore, cannot be said to have put the law in motion against the respondent: See: Esther Adefunmilayo v. Omolara Oduntan (1958) WR.N.L.R. 31; and Gbajor v. Ogunburegui (1961) All NLR 853.
Thus, in the instant case, the arrest, detention and subsequent prosecution of the appellant by the police for the theft of the respondent’s stolen tipper lorries, could not form the basis for an action for damages for false imprisonment or malicious prosecution or defamation of character against the respondent as claimed by the appellant even if the appellant’s name was given to the police as a person suspected. His claim in respect of those items was therefore without any merit. The next point to be resolved is in respect of the claim for loss of employment and retirement benefits. As it was agreed by both parties that their relationship is governed by Exhibit H, the relevant provisions of that document will have to be examined with a view to determining if there was a breach of any of the provisions of that document.
As already set out earlier above, the items of the appellant’s claim are set out in paragraph 27 of his statement of claim. They include claims for loss of employment and retirement benefits. It is therefore not correct as submitted by the respondent that he was not entitled to repatriation allowance and that since the calculation of his redundancy allowance as set out in exhibit K was not challenged, it was improper for the Court below to have granted it in its judgment. That submission is incorrect in view of the claims for loss of employment and retirement benefit. Article 9 of the National Joint Industrial Council Agreement (exhibit H) sets out the provisions relating to termination of employment of daily rated employees and monthly rated employees. The part of the Article 9 relevant to the appellant are Article 9 (b) and (c) which provide thus:
“Article 9
(b) Monthly Rated Employees:
Employment may be terminated upon giving one month’s notice by either side or payment in lieu of such notice
(c) Repatriation
If an employee’s service is terminated by the company, the employee shall be repatriated, his wife and a maximum of four children, to his original place of engagement at the company’s expenses.”
Article 10, on the other hand, makes provision for redundancy. The article provides as follows:
18
“Article 10 – Redundancy
Redundancy Pay shall be given as compensation for loss of future prospect with one employer. Redundancy occurs when the service of a worker, having been in continuous employment of one employer for two years or more are no longer required by that employer due to no fault of the worker. Except those workers who are employed on a contract for a specific job or for a specific length of time.
The following scales of redundancy payment for the employee shall then be paid:-
2 – 5 years continuous employment – 3 weeks pay for each year of service
6- 10 years continuous employment – 4 weeks pay for each year of service
11 years and above – 5 weeks pay for each year of service.
“Article 13 of the document, exhibit H, deals with Gratuity and Retirement Benefits. The Article reads as follows:
“Article 13 – Gratuity/Retirement Benefits
On attaining the age of 65 years, an employee’s appointment will automatically terminate on ground of retirement, provided he has completed ten years of continuous service. An employee may retire or may be retired by an employer on or after attaining the age of 50 years; provided that he has completed ten years of continuous service.
The following retirement benefit shall be paid:-
(a) 10 years of service – 4 weeks per year of service
(b) 11- 20 years of service – 5 weeks pay per year of service
(c) 21 years of service – 6 weeks pay per year of service. ”
It is clear from the provisions of Article 10 relating to redundancy and Articles 13 which deals with gratuity/retirement benefits, that the employer has a discretion to either declare an employee redundant or retire him in the appropriate case. In the instant case, the respondent chose to declare the appellant as redundant. But on a close look, there seems to be not much difference in the entitlements due to an employee declare redundant and one retired. The entitlement due to the employee who has served the company for 11-20 years, as the appellant, would be 5 weeks pay per year of service. The complaint of the appellant that he would prefer retirement to redundancy, therefore, would not mean much to him financially since his entitlement would still be 5 weeks pay per years of service he put in.
Secondly, as the discretion to make the choice is conferred on the employer, the court will not interfere with the exercise of such discretion without any justifiable cause. No evidence of any such justifiable cause was pleaded and adduced at the trial. The court below is therefore right in dismissing the appeal on that point.
Finally, the question whether the appellant was entitled to repatriation allowance after his appointment was declared redundant needs to be resolved. This is because the provision for repatriation appears only as paragraph C of Article 9 which is headed “Termination of employment.” No such provision is made in respect of Article 10 which deals with redundancy. But the payment of it to employees declared redundant is admitted by the only witness that testified for the defence at the trial. I believe that such benefit could not be denied to an official who had served for many years as the appellant and whose employment had to be abruptly brought to an end by means of the redundancy provision. I therefore hold that the provision of Article 9 (c) relating to payment of repatriation allowance is also applicable to employees 22 declared redundant under Article 10. I therefore hold that the word “terminated” used in Article 9 (c) covers ‘redundancy’ used in Article 10.
In conclusion, I hold that the appeal as it relates to the claims for damages for malicious prosecution, defamation of character, loss of employment for 15 years and general damages, lacks merit. I accordingly dismiss the appeal as it relates to those items of claim. I however hold that the award made by the Court below in respect of the entitlements due to the appellant as an employee who was declared redundant should be sustained subject to the variation that the calculation should be reviewed upward based on 5 weeks pay for each years of service put in by the appellant which, should be 13 years since he served more than 12 years. He should also be paid the appropriate repatriation allowance. I make no order on costs.
SC.256/2002