Simon Kajo V. Benue Cement Company Plc (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA. J.C.A, (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice Benue State sitting at Gboko Judicial Division delivered by Ikyegh J. on the 28th day of March 2003.

The brief facts leading to this appeal are as stated by the appellant. The appellant herein was employed by the respondent as a messenger on 01/01/1987. He rose through the ranks to the position of sales clerk in 1995, when he was subsequently posted to respondent company’s satellite cement depot at Vandeikya town in Benue state. His duties as sales clerk included recording of authority to pay and authority to collect cement consignments sent to the depot from respondent company’s head office, at Gboko, Benue State and preparation of sales summary of all sales transaction of respondent company at the said satellite depot.

On the 17/03/1995, the store keeper of the respondent company serving at the Vandeikya depot received a consignment of 30 tones (600) bags of cement from the respondent company’s head office and acknowledged receipt per invoice voucher Exhibit ‘A’ dated 17/03/1995 indicating that 503 full bags of cement and 97 breakages were received. After some months, the appellant received an invoice debit voucher (Exhibit B) from the respondent company commanding him to pay the sum of two hundred and seventy thousand naira (270,000) to the respondent company being the value of the 600 bags of cement mentioned in Exhibit ‘A’ which he allegedly diverted.

The respondent company thereafter started deducting the sum of one thousand five hundred naira (1,500.00) from the monthly emoluments of the appellant for the purpose of recovering the amount of two hundred and seventy thousand naira (270,000.00) mentioned in Exhibit ‘B’. The appellant protested vide Exhibit ‘C’ dated 02/11/95 and Exhibit ‘H’ dated 25/08/99 but to no avail, Rather the respondent company stopped paying his entire monthly emoluments from August, 2000. The appellant sued the respondent at the high court of justice.

While the matter was before the court the respondent company suspended the appellant from work. The appellant amended his statement of claim and challenged his suspension from work by the respondent company while the matter was in court. The reliefs sought as per the amended statement of claim dated 24th day of April, 2000 are as follows:-

a. A declaration that all the deductions made from the salaries of the plaintiff from the month of October, 1995 and the non-payment of the plaintiff’s salary for August 2000 till date had/has no basis nor justification and thereby illegal and void. And that the purported, letter of indefinite suspension of the plaintiff without pay by the defendant is not only contemptuous and disrespectful to court, but goes to no issue as it is void.

b. The sum of N87 000.00 representing N1,500.00 deducted every month from the salary of the plaintiff starting from the month of October, 1995 to the month of July, 2000. And the sum of N9,258,50 in the month of August, 2000 and N4,204,60 starting from the month of September, 2000 to December, 2000 and the sum of N6,639.50 starting from January, 2001 till the determination of this suit and thereafter till the sum is liquidated, representing the plaintiff’s monthly salary.”

c. The sum of N1,000,000.00 general damages

The case proceeded to trial. Appellant testified on his own behalf and closed his case.

On the part of the respondent three witnesses testified. At the close of defence case both counsel made oral submission. In a considered judgment delivered on 28/03/2003 the learned trial judge Ikyegh J. dismissed the 1st arm of the relief claimed in paragraph 28(a) of the amended statement of claim on the grounds that the appellant failed to prove his claim therein and ordered for the continuation of the deduction from the monthly emolument of the appellant.

Being dissatisfied with the judgment of the lower court,appellant lodged an appeal to this court vide his notice and grounds of appeal dated 26/06/2003 and filed on 27/06/2003. The notice of appeal contained seven grounds of appeal.

In compliance with the rules of this court parties exchanged briefs of argument. Appellant’s brief of argument settled by B, Wayo Esq was filed on 12/03/2007 but deemed properly filed and served on 19/03/2009. Respondent’s brief of argument settled by Gabriel A. Ibu Esq was filed on 19/03/2009. When the appeal came up for hearing both counsel adopted their respective briefs of argument.

Appellant formulated four issues for determination in his brief of argument. The issues are:-