Simeon O. Ihezukwu V. University Of Jos & Ors. (1990)
LawGlobal-Hub Lead Judgment Report
On the 29th May, 1990, after hearing learned counsel for the appellant in elaboration of the brief of argument he has already filed, this court decided not to call upon learned counsel for the respondents and summarily dismissed the appeal with N500.00 costs to the respondents, reserving the reasons for doing so to today, the 13th day of July, 1990. I shall now proceed to state the reasons.
By a writ of summons filed in the High Court of Benue State of Nigeria, Makurdi Judicial Division, the appellant/plaintiff claims the following reliefs against the respondents/defendants-
“1. A declaration that the plaintiff is still the higher executive officer (accounts) of the first defendant.
- Payment to the plaintiff by the defendants the sum of N562.00 (five hundred and sixty-two naira) being the monthly salary of the plaintiff from August, 1982 till this case is determined.
- Payment by the defendants to the plaintiff the sum of N15,000.00 (fifteen thousand naira) being the values of the plaintiff’s two vehicles which the defendants illegally and wrongfully seized and appropriated for their own use.
- The sum of N110 (one hundred and ten naira) being the average monthly earnings and/or use of the two vehicles from the 4th of August, 1982 till judgment is given in this case.
- The sum of N10,000.00 being general damages for wrongful termination of appointment.”
The claims were denied by the respondents. Pleadings were ordered, filed and exchanged and issues joined.
Appellant/plaintiff gave evidence but called no witnesses while the respondents/defendants called three witnesses. Learned counsel for the appellant/plaintiff and respondents/defendants addressed the court. In a considered judgment delivered by the learned trial Judge, Ogebe, J., he made the following findings:-
“Exhibit 1 which is the letter of offer of appointment to the plaintiff requires that if the plaintiff’s appointment was not confirmed at the end of the two years probationary period, he was entitled to three months notice or salary in lieu of notice………
I am, therefore, unable to accept the submission of the learned counsel for the defendants that one month’s salary in lieu of notice given to the plaintiff in Exhibit 3 was reasonable and in accord with the regulations binding the plaintiff’s employment. I hold that in so far as the plaintiff was not given sufficient notice before his appointment was terminated, the termination was not lawful and he is entitled to damages for wrongful termination of appointment.”
“To my mind, the only fault with the defendants was their failure to give the plaintiff three months notice or salary in lieu of notice. In such a situation, the plaintiff is only entitled to what he should have earned during that period and no more.”
“In the result, I award the plaintiff damages of N1,686.00 being three months’ salary in lieu of notice.”
“As for the Datsun mini bus, clause 8(a) of the loan agreement is relevant. … Clause 8(a) gave the defendants the right to terminate the agreement and retake possession of the vehicle and it is therefore my view that in seizing the mini bus, the university was exercising its rights under the agreement between it and the plaintiff and no damage can accrue from that.
The defendants in their defence testified that the volkswagen beetle car was seized because the plaintiff was owing the university some money namely the vehicle loan and the losses incurred by the university for which they held the plaintiff responsible. Mr. Ogbole, the learned counsel for the defendants was unable to show me any lawful authority for the detention of the plaintiffs volkswagen car. The plaintiff bought this vehicle before he joined the university and the defendants have no right whatsoever to seize it from him without lawful authority.”
Having made the findings above, the learned trial Judge concluded-
“It is, therefore, ordered that the defendants shall pay the plaintiff N2,000.00 damages for detinue and shall release the volkswagen beetle car to the plaintiff forthwith. In the result, the plaintiff is awarded total damages of N3,686.00 for wrongful termination of appointment and detinue.”
The facts involved in the case are simply thus –
The plaintiff was employed as higher executive officer (accounts) by the defendants, the University of Jos, Makurdi Campus when it was Federal University of Technology, Makurdi, by a letter of appointment (Exhibit I) dated 22nd April, 1981. In paragraph 6 of Exhibit 1 the appointment was for a probationary period of two years in the first instance and if same was not confirmed at the end of the period, it would be terminated by three months notice or payment in lieu thereof. In a letter dated 4th June, 1982 (Exhibit 2) plaintiff was suspended from office. This was followed by another letter dated 2nd August, 1982 (Exhibit 3) formally terminating his appointment with one month’s salary in lieu of notice.
When the plaintiff was appointed, he was granted a car loan of N4,000.00 by the defendants with which he purchased a Datsun C20 mini bus. The loan was to be repaid by monthly instalments to be deducted from his salary. As the loan was not repaid in full when the plaintiff’s appointment was terminated, the mini bus and another volkswagen car belonging to the plaintiff were seized by the defendants.
From now, both the plaintiff and the defendants will be referred to as the appellant and the respondents respectively.
The appellant was not satisfied with the judgment of the trial court against which he appealed to the Court of Appeal, Jos Division. In a unanimous judgment of that court delivered by Agbaje, J.C.A. (as he then was), he allowed the appeal in part and concluded –
“In my judgment therefore, since the appellant, the plaintiff in the lower court, had succeeded, even partially in his case, he is entitled to his costs in the lower court. According to the brief of argument in this case, the out of pocket expenses of the appellant in the lower court was N302.50. Taking all the circumstances of the case, including the fact that the respondents’ counter claim was struck out, I award the appellant the costs of N600.00 in the lower court. In this court since the appellant has also succeeded partially, I award him costs of N200.00 against the respondents.
In my judgment therefore, I find in favour of the judgment of the lower court in refusing to grant the declaration that the appellant is still a higher executive officer of the 1st respondent. I set aside the judgment of the lower court holding that the seizure of the appellant’s mini bus by the respondents was right, and thereby dismissing the appellant’s claim for conversion in this regard. In its place, I enter judgment for the appellant against the respondents for N4,466.72 in this regard. I award the appellant costs of this appeal and costs in the lower court which I assess at N200.00 and N600.00 respectively against the respondents.”
The judgment of the Court of Appeal is now being challenged on appeal by the appellant.
Learned counsel for both the appellant and the respondents filed and exchanged briefs. After listening to learned counsel for the appellant’s oral submissions in elaboration of issues 2 and 3 formulated in his brief, the appeal was dismissed without calling upon learned counsel for the respondents.
It is pertinent to state here that issue No.1 in the appellant’s brief of argument was abandoned and accordingly struck out. The two remaining issues are –
Whether the Court of Appeal was right in law in introducing the issue of confirmation of appointment of the appellant when same was neither raised in the pleadings nor argued before the court, ground A of the notice of appeal.
Whether the learned Court of Appeal was right in holding that the decision in the Olaniyan’s case will not apply to the appellant and so refused to declare that the plaintiff is still the higher executive officer (accounts) of the first defendant and that he should be paid his salaries from the date of the purported dismissal till the date his case is determined in the Supreme Court. Grounds A & B of the notice and grounds of appeal.”
On issue no.2, it was the submission of learned counsel that neither in the pleadings nor in the evidence did parties join issue on whether the appellant was a confirmed officer or not, the issue was not raised in the High Court and that the parties did not raise it in the Court of Appeal. He therefore submitted that the Court of Appeal was in error in raising the issue suo motu and without inviting counsel on both sides to address it on the same. He relied on Dilibe & Ors. v. Nwakozor (1986) 5 NWLR (Pt.41) 315.
As for issue no.3, it was the submission of learned counsel that since the contract between the appellant and the respondents was for two years, it could not be determined within the said two years. It could only be determined at the expiration of the two year probationary period by giving the appellant’s three months notice. He cited the following cases in support Gunton v. London Borough of Richmond Upon Thames (1980) 1 All E.R. 580 at p.582; D. O. Ewerami v. A.C.B. Ltd. (1978) 4 S.C.99 at 109; De Stempel v. Dunkels (1938) 1 All E.R. 238 at 252; Eyutchae v. N. T.A. (1986) 5 NWLR (Pt.41) 395; Shitta-Bey v. F.P.S.C. (1981) 1 S.C.40; Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 and Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 599
In reply to the submissions (supra), it was the contention of learned counsel for the respondents that learned counsel for the appellant in the Court of Appeal had raised the issue of the appellant’s nature of appointment by placing “much reliance on Olaniyan’s case” and he had also “at the same time conceded that the appellant’s appointment had not been confirmed as at the date of his termination, and that the length of notice to terminate his appointment is three months.” He submitted that the Court of Appeal was perfectly in order in considering and distinguishing the case of Olaniyan (supra) from the facts and circumstances of this case which are dissimilar. It was his further submission that Exhibit 1, the document containing the terms and nature of the appellant’s employment must be strictly construed in the light of the terms agreed to by the parties. He cited the following cases to buttress his submissions Niger Dams v. Lajide (1973) 5 S.C.207 and Olaniyan & 2 Ors. v. University of Lagos & 1 Ors. (1985) 2 NWLR (Pt.9) 599.
Under issue no.2, appellant’s counsel complained that the Court of Appeal was wrong in raising and deciding suo motu the issue of the confirmation of the appellant’s appointment when this was neither raised in the pleadings nor canvassed before the court.
The main purpose of filing pleadings is –
(a) to ascertain the various matters actually in dispute between the parties and those in which there is agreement between them;
(b) to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them, and to provide a brief summary of the case of each party which is readily available for reference and from which the nature of the claim and defence may be easily apprehended, and to constitute a permanent record on the questions raised in the action and the issues decided therein in order to prevent future litigation upon such matters and issues already adjudicated between the parties.
See page 5 Bullen and Leake (Eleventh Edition).
In paragraphs 4, 19 and 20 of the appellant’s statement of claims, the following facts were pleaded –
“4. On the 22nd of April, 1981 the defendants employed the plaintiff as higher executive officer (accounts). The terms of his employment were contained in a letter ref. No. R. UT/P/38 of 22/4/82. This shall be relied and founded upon at the hearing of this case.
- On 2/8/82 by letter reference No.R/FUT/PF/38/5 the defendants purported to terminate the appointment of the plaintiff.
- This letter was contrary to the express terms of the contract agreement between the plaintiff and the first defendant. The defendants failed to report the incident to the police for investigation. Rather they took the law into their own hands.”
The averments in paragraphs 4 and 19 were admitted by the respondents while issue was joined on paragraph 20 of the statement of claim see paragraphs 1, 3 and 6 of the statement of defence. Exhibit 1 which is the contract of employment was specifically pleaded by the appellant and same was admitted in evidence through the appellant. In his address on conclusion of the appellant’s evidence, learned counsel specifically referred to paragraph 6 of Exhibit 1 to buttress his submission that the appellant’s appointment can only be terminated on three months notice or 3 months salary in lieu thereof. In that paragraph, it is specifically provided as a term of the contract that –
“The appointment will be for a probationary period of two years in the first instance after which it will be to the retiring age of 60 years if it is confirmed.”
The nature of the appellant’s appointment to wit whether it was probationary or permanent was therefore in my view raised in the pleadings and canvassed in the High Court.
Learned counsel also argued and submitted that the issue of the nature of the appellant’s appointment was not raised by either parties in their respective briefs filed in the Court of Appeal. I have not been afforded the opportunity of seeing the brief of arguments filed in the Court of Appeal as these were not made part of the record by the appellant as is required of him by order 7 rule 2(1) of the Supreme Court Rules, 1985. That notwithstanding, reading grounds A and B, of the grounds of appeal which were canvassed in the Court of Appeal it would not be difficult to comprehend that the nature of the appellant’s appointment at the time his appointment was purportedly terminated was made an issue therein.
This ground of appeal (and the issue related to it) is misconceived. It fails and is accordingly dismissed. The next issue is whether following the wrongful termination of the appellant’s appointment as found by both the trial court and the Court of Appeal, the appellant is entitled to be reinstated and that he could only be subsequently properly terminated at the expiration of the two year probationary period. Learned counsel on both sides cited and relied on decided cases with reference to the construction of Exhibit 1, particularly the celebrated case of C.I.O. Olaniyan & Ors. v. Unilag Council (1985) 1 All NLR 314; (1985) 2 NWLR (Pt.9) 599. I am of the opinion that the only principle derived from that case is that the contract is to be construed in accordance with its express terms and that no term is to be implied which is not rendered reasonably necessary to carry out the main intention of the parties. In accordance with this principle it seems to me impossible to imply a term that the appellant’s appointment can only be determined by a three months notice on the expiration of the two year probationary period failing which he is entitled to be declared that he is still in the respondents service. As the learned trial Judge found, which finding was subsequently affirmed by the Court of Appeal, the respondents are entitled to terminate the appellant’s employment anytime during or on the expiration of the two year probationary period, subject to the stipulation in paragraph 6 of Exhibit 1 part of which provides that –
“….. The appointment will be for a probationary period of two years in the first instance after which it will be to the retiring age of 60 years if confirmed. If the appointment is not confirmed at the end of the period, it will be terminated by three months notice or payment in lieu.”
The case of Olaniyan’s (supra) is strictly decided along this principle. The appellants in Olaniyan’s case are on permanent and pensionable appointment of the university and therefore governed by their memorandum of appointment, by regulations governing service in the university and the statutory provisions of the University of Lagos Act, No.3 of 1967. These were specifically pleaded and put in evidence. In construing the memorandum of appointment Exhibits p.1, p.18 and p.12A Oputa, J.S.C., delivering the lead judgment of this court said at p.331-
“In any event, the learned trial Judge held that the appellants were holders of permanent office with legal status in the established pensionable cadre of the University of Lagos and are entitled to remain in the office until they attain the retiring age or until they are properly removed.” (Italics mine).
From the passage quoted supra, it is clear that there are two ways of terminating the appellants’ appointment involved in Olaniyan’s case-
(1) When they reach the retiring age of 60 as they are officers on permanent and pensionable appointment.
(2) When they are properly terminated by following the necessary procedure governing their condition of service i.e. memorandum of appointment and the relevant sections of the university act.
Are the facts in the appellant’s case on all fours with those in Olaniyan’s My answer is in the negative for the following-
(1) The appellant was not on permanent and pensionable cadre of the university but on probationary (or trial) appointment for two years.
(2) The conditions of service and regulations mentioned in paragraph 6 of Exhibit 1 were not put in evidence by the appellant for the trial court to see.
In the instant case, Exhibit 1 save for providing that the respondents can terminate the appellant’s employment on giving him 3 months notice or payment of 3 months salary in lieu, it is silent as regards the circumstances in which the power can be exercised. In my view, it can reasonably be implied as a term of the contract that the power to terminate the appointment of the appellant by the respondents can be exercised on grounds of say, ill-health, incompetence. misconduct, dishonesty, exigencies of service or such other similar grounds. The mere fact that the appellant was given a probationary appointment for two years, does not mean and nor could it be implied that his appointment cannot be lawfully terminated within the probationary period on reasonable notice see Ward v. Barclay Perkins &: Co, Ltd. (1939) 1 All E.R. 287 and Para. 3606 of Vol. II – Chitty on Contract [24th Edition].
The essence of a probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period. Where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not give the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiry of that period.
Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis.
It is therefore my conclusion that both the trial court and the Court of Appeal were right when they refused to reinstate the appellant. The normal measure of damages recoverable by an employee whose contract has been wrongly terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in other employment. But where the employer has a right to terminate the contract before the expiry of the term (as in the instant case) damages should be assessed only up to the earliest time at which the employer could validly have terminated the contract see British Guiana Credit Corporation v. Da Silva (1965) 1 WLR 248 and also para. 3636 of Chitty on Contract, Vol. II [24th Edition].
In my view the termination of the appointment of the appellant by payment of one month’s salary in lieu of notice was not in consonance with Exhibit 1. This would not however entitle him to be reinstated when the appointment was basically temporary i.e. it was on probation for two years. He was however entitled to three months salary in lieu of proper notice as provided in Exhibit 1. In that regard, I endorse the conclusion of Agbaje, J.C.A. (as he then was) that –
“…the appellant’s case will have to be decided according to the terms of the contract between him and the respondents. Exhibit ‘1’ contains the terms of the contract between the appellant and the respondents, including the mode of terminating the appointment.
It appears to be common ground in this case, that, according to the terms of the agreement between the appellant and the respondents, the respondents could validly terminate his appointment by giving the appellant three months’ notice of the termination of that appointment or in lieu thereof, three months salary.”
The appeal fails and it is dismissed. The judgment of the Court of Appeal is affirmed.