Santos M. Batalha V. West Construction Company Limited (2001)

LawGlobal-Hub Lead Judgment Report

NIKI TOBI, J.C.A. 

The appellant is a Portuguese. By letter, dated 4th July, 1992, he was appointed as a Project Engineer, at the West Construction Company Limited, the respondent. It has its registered office at No. 47 Siluko Road, Benin City. The 2nd defendant was the Chairman/Managing Director of the Company. The appellant said that when he left the services of the respondent, he was not paid his salaries. By a letter, dated 30th April, 1993, the appellant withdrew his services. He filed an action claiming

(1) the sum of N4,000.00 being arrears of local salary/allowance and interest at the rate of 21% until judgment is delivered

(2) USD $17,500, being arrears of offshore salary/allowance and interest at the rate of 6% until judgment is delivered.

The learned trial Judge took evidence from the parties. After the address of counsel for the parties, he gave judgment in favour of the respondent on the ground that, the contract of employment was illegal for non-compliance with section 8 of the Immigration Act. The learned trial Judge also held that, the name of the 2nd defendant be struck out from the suit on the ground that he was improperly joined.

Dissatisfied, the plaintiff filed an appeal. Briefs were filed and exchanged. The appellant formulated three issues for determination:

“(1) Whether the learned trial Judge was right in holding that, the appellant’s contract of employment was illegal for non-compliance with section 8(1) of the Immigration Act in the absence of any pleaded facts to that effect.

(2) Whether on a true construction of sections 8 and 34(1) of the Immigration Act the contract of employment was illegal and therefore, unenforceable at the instance of the plaintiff.

(3) Whether the learned trial Judge was right in holding that the contract was unenforceable having held that the duty to obtain a permit was on the respondent and the said respondent had benefited therefrom.”

The respondent formulated two issues for determination:

“1. Whether the contract of employment of the appellant was tainted with illegality punishable under the Immigration Act by virtue of non-compliance with the said Act and as such cannot be enforced by either party to the contract.

2. Whether appellant’s issue 2 is incompetent and ought to be struck out.”

Learned Counsel for the appellant, Mr. Adedolapo Akinrele submitted on issue No.1 that parties joined issues in their pleadings specifically in relation to failure to obtain a residence permit. He pointed out that the provisions and effect of section 8(1) and section 34 of the Immigration Act 1990, which were not pleaded but which the trial Judge based his judgment differ materially from the pleaded facts relating to “non-obtainance” of residence permit.

Learned Counsel contended that section 8(1) of the Immigration Act deals specifically with work permit and not residence permit and section 34(1) provides that failure to comply with the provisions of the section shall be an offence under the Act. He also examined section 48(1) of the Act.

It was the submission of learned Counsel that illegality arising out of non-compliance with section 8(1) and section 34 of the Immigration Act was neither raised in the pleadings nor evidence led by the respondent at any material time during the trial in respect of “non-obtainance” of a work permit.