Solicitor-general Western Nigeria V. Dr Festus Adebonojo & Ors (1971)
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PER COKER JSC
The Solicitor-General of Western Nigeria has appealed against the judgement of the Western State Court of Appeal given in matter in which the Solicitor-General had sued the respondent in the High Court, Ibadan on a writ which was endorsed as follows:-
“The plaintiff’s claim against the defendants jointly and severally is for the sum of £4,909-15s-3d being liquidated damages for a breach at Ibadan, by the 1st defendant, of an agreement executed in or about October, 1957, as varied by another agreement executed on 6th March, 1962, between the 1st defendant and the Government of Western Nigeria.
That 2nd defendant as guardian/parent of the 1st defendant as well as the 3rd and 4th defendants as guarantors to the 1st defendant also executed the said agreement as parties thereto and are also liable to pay the Government of Western Nigeria the said sum of £4,909-15s-3d in consequence of the breach of the said agreement.
The 1st, 2nd, 3rd and 4th defendants have refused to pay the said sum of £4,909-15s-3d or any part thereof to the Government of Western Nigeria despite repeated demands made for same.”
The High Court ordered the parties to file their respective pleadings and they did so. The principal averments in the plaintiff’s statement of claim are:-
(i) that the Government of Western Nigeria provided the 1st defendant with an overseas scholarship with effect from October, 1956 and that the parties executed a written contract in the terms of their agreement.
(ii) that the other defendants were the guarantors of the 1st defendant for the faithful performance and discharge of the obligations thereunder arising, that the 1st defendant had returned to Nigeria after the expiration of the time of the award (his passages having been paid in accordance with his request by the Government of Western Nigeria).
(iii) that in breach of the said contract, the first defendant had refused to serve the Government of Western Nigeria for the period stipulated in the agreement.
On the other hand the statement of defence denied the principle averments in the statement of claim, challenged the authority of the Solicitor-General to institute the present proceedings, and averred that the 1st defendant had to resign his appointment with the Western Nigeria Government because the office and conditions of service offered him were not commensurate with his qualifications at the time he returned to Nigeria. The statement of defence finally averred as follows:-
“The 1st defendant would further contend that no offer of employment within the meaning of the agreement relied upon was made to him and that he merely applied for and undertook normal engagement with the Western Nigeria Government which was determinable by one month’s notice on either side.”
The case came up for trial before Delumo J. The plaintiff called evidence to show that the 1st defendant did apply for overseas scholarship to be sponsored by the Government of Western Nigeria, and that the defendants entered into a bond with the Permanent Secretary in the State’s Ministry of Education. This bond was produced in evidence as exhibit “C”. Later by application produced in evidence as exhibit E the 1st defendant applied for a post-graduate scholarship to study paediatrics at the Yale University, in the State of Connecticut in the United State of America. This scholarship was formally awarded to him by the Western Nigeria Government by letter dated the 20th September, 1961 (admitted in this proceedings as exhibit F). In respect of the post-graduate award, the Permanent Secretary, Western Nigeria Ministry of Education and all the defendants again signed a “Variation Agreement” on the 6th of March, 1962 and this was admitted in evidence as exhibit H.
It was also part of the case of the plaintiff that the 1st defendant failed within the time stipulated in exhibit C and H to qualify for the specialities in paediatrics and that at his own request, he and his family had been repatriated back home to Nigeria; that he was offered employment in the State’s Ministry of Health first on a temporary basis but before his appointment was made permanent the defendant had resigned from the services of the Government of Western Nigeria. The plaintiff claims that the total amount spent by the Government on the 1st defendant was £4,909-15s-3d and that the other defendants who were the guarantors or sureties of the 1st defendant have failed or refused to pay back this amount to the Government of Western Nigeria according to the tenor of exhibits C and H even though they were informed that the 1st defendant was in breach of the agreement and that he had failed or refused to make a refund.
On the other hand, only one witness gave evidence for the defence, that was the 3rd defendant Dr. Badejo Adebonojo. He disclaimed liability to the plaintiff in the amount claimed or indeed any amount at all, but admitted that all the defendants had executed exhibits C and H and confirmed that it was the 1st defendant who had signed the letter dated 7th March, 1963 (admitted in evidence as exhibit J) requesting the Government of Western Nigeria to arrange and pay for the repatriation of himself and his family. The letter exhibit J, was addressed to the Permanent Secretary, Ministry of Education, Western Nigeria and it reads as follows:-
In July, 1963, 1 shall complete my specialty training in Paediatrics at the Yale New Haven Medical Center, and expect to return to Nigeria immediately thereafter. Since I have a scholarship from the Western Region Government, and a bond to serve for five years after the completion of the training, I anticipate service with the Medical Department on returning to Nigeria.
I shall be grateful if you can instruct the Nigerian Consul in New York to make arrangements for the return reservations of myself and my family. Apparently, your approval is needed in order to include my family in whatever reservation arrangements that need to be made. The circumstances of the time of the year when we shall be travelling make it necessary to effect booking early.
I am happy to inform you that I have taken and successfully passed the examinations of the American Board of Paediatrics, and I will soon be a Diplomate of that Board.
Thank you very much for an early attention to this matter.
(Sgd.) FESTUS OLU ADEBONOJO M.D.”
It is manifest that in exhibit J, the 1st defendant claimed to have successfully passed the examinations of the American Board of Paediatrics and “that he would soon be a Diplomate of that Board”. This fact was the kernel of the plaintiff’s case against the defendants and indeed one of the witnesses called by the plaintiff Dr. Soyode Franklin who was the Controller of Medical Services in the State at the relevant time stated in the course of his evidence during the trial concerning the 1st defendant that he was not qualified to be appointed a specialist on the grounds that the 1st defendant at the time he returned to Nigeria had no post registration experience which is essential for appointment as a specialist and also because the 1st defendant produced no certificate of specialist qualification in paediatrics. Dr. Adebonojo, (the 1st defendant) however produced (and this was admitted in evidence as exhibit BB) a letter written to him by the Executive Secretary of the American Board of Paediatrics and dated 2nd May, 1963 which reads in part thus:-
“Dear Doctor Adebonojo,
The American Board of Paediatrics takes great pleasure in informing you that you passed your oral examination at the session held in Philadelphia, Pennsylvania, April 27, through April 30, 1963.
You will recall that you have been permitted to take oral examination without full completion of the two year practice requirement, because of the fact that you are returning to your homeland. According to our records the date on which you would otherwise have been eligible for oral examination would be subsequent to July 1, 1965. Accordingly, your Non-Resident Certificate will be sent to you as soon as possible after that date.”
It is easy to see that the contention of the defendants all through the pleadings was and is that the plaintiffs had breached their contract with the 1st defendant because he did obtain a specialist qualification and he was not given a corresponding appointment on his return home.
As stated before the case was heard by Delumo J. who in a reserved judgement acceeded to the claims of the plaintiff and gave judgement in the amount claimed against all the defendants with costs. In the course of that judgement, the learned trial judge observed as follows:-
“He could not be appointed as a specialist as apart from academic qualifications he did not have post registration experience. He also failed to produce the certificate of the specialist qualification claimed by him. In fact according to the evidence in this case, he not only failed to produce the specialist certificate whilst he was serving his bond but he did not obtain it until 1965 after he broken his bond and the cause of action had arisen. As I have already observed, the 1st defendant has no answer to the plaintiff’s claim. I am satisfied on the evidence that he was treated very fairly by the Regional Government but he showed himself as a reckless ingrate. After taking the benefit of an overseas education at the expense of the tax payers he deliberately broke his bond without any legal justification.”
The defendants aggrieved by this decision appealed to the Western State Court of Appeal which on the 21st October, 1968 allowed their appeals, set aside the judgement of Delumo J. and ordered that the plaintiff’s case be dismissed. The decision of the Western State Court of Appeal was contained in two judgements of that court, one delivered by Fatayi Williams J.A. and the other by Adegboyega Ademola J.A. and both judgements unnecessarily in our view, criticised the judgement of Delumo J. in the High Court and especially that part of his judgement in which he had observed as follows:-
“I am completely satisfied in this case that the 1st defendant has not put up a defence of any substance. His contention appears to be that because he did not consider the appointment which was accepted by him i.e. Medical Officer, (Paediatrics) to be appropriate to his qualifications he was entitled to break his bond under which he was liable to serve for five years. Surely this contention is untenable.
Clause 4(a) of the agreement (exhibit C) read thus:-
‘From and after the expiration of the period of study, and provided the student shall have passed to the satisfaction of the Permanent Secretary the examinations relating to the subjects in which he has been instructed, should the Permanent Secretary so desire, the student agrees to serve the Government of Western Region of Nigeria for a further period of five years in any capacity considered appropriate by the Regional Government provided that a formal offer of appointment is made by the Regional Government within a period of six months after the completion of the Student’s studies.’
It is clear from this clause that it is the Regional Government that will decide the capacity which is appropriate during the further period of five years to be served by the student.”
In the Western State Court of Appeal Fatayi Williams J.A. (as he then was) in the course of an exhaustive judgement in which he carefully analysed all the points raised and matters given in evidence before the court observed thus:-
“To our mind, the points in issue, having regard to clause 4(a) of the agreement (exhibit C) are as follows:-
Has the 1st appellant qualified as a specialist paediatrician?
(ii) If so, was the Permanent Secretary (Education) satisfied that he had qualified as such?
(iii) If he was, was the capacity to which he was called upon to serve appropriate?”
Later, he stated as follows:-
“We are of the opinion, having regard to all the circumstances,
including the specialist qualification obtained by the 1st appellant, that, to be appropriate, any capacity in which he was called upon to serve by virtue of clause 4(a) of the agreement (exhibit C), must be reasonable.”
The judgement then dealt at great length with the implications of the term “reasonable” and what in the relationship between the parties should have been considered an appointment which was reasonable. He further observed as follows:-
“It is our view, having regard to the evidence before the learned trial judge, and to the observations made above, that both the offer of appointment as an ordinary Medical Officer and the request to serve in that capacity could not be regarded as reasonable. An offer of appointment as a Medical Officer (Special Grade), considering the 1st appellant’s admitted qualification, would have been reasonable. For these reasons, we are of the view that the 1st appellant was justified in declining to accept the offer of appointment as an ordinary.
Medical Officer and also in declining to serve as such. It therefore follows that he has not committed any breach of clause 4(a) of the agreement (exhibit C). Consequently, the 2nd, 3rd and 4th appellants could also not be held liable for any breach of the said agreement.”
In his own judgement Adegboyega Ademola J.A. dealt at greater length with the issue of the reasonableness of the appointment offered the 1st defendant. He referred in the course of his judgement to clause 4(a) of exhibit C and therein commented as follows:-
“It seems clear to me that on a true and correct interpretation of that clause, the `formal offer of appointment’ to be made relates to and determines the `appropriate capacity’ in which the Regional Government wants the student to serve.”
He took and expressed the view that the test of reasonableness applied only to the appointment offered and not to both the appointment and the capacity because it was the appointment offered itself that determines the capacity in which the 1st defendant was called upon to serve. He reviewed the evidence of the officers of the Ministry of Education and the Ministry of Health who testified in the case, criticised their evidence severely and concluded that the 1st appellant (i.e. 1st defendant) ought to have been considered as having a specialist qualification in paediatrics.
The plaintiff has now appealed to this court against the dismissal of his case by the Western State Court of Appeal. Eight grounds of appeal were filed on behalf of the plaintiff i.e. the Solicitor-General of Western Nigeria, and seven of those grounds were fully argued. It is however unnecessary, in view of the conclusion which we have reached, to deal with all the grounds of appeal argued and our observations on the appeal will be limited to a few of those grounds of appeal
The complaints of the plaintiff on appeal are, firstly, that the 1st defendant did not at the material time possess a specialist qualification and the Western State Court of Appeal was in error in holding that he did; and secondly, that in any case the Western State Court of Appeal was in error of law by importing into the clear words of the contract of the parties the concept of reasonableness. The evidence was of course very clear. Learned counsel for the defence argued firstly that the 1st defendant was indeed qualified for the purpose of the course of studies postulated by the original bond exhibit C and the variation agreement exhibit H and secondly, that the Court of Appeal was right in considering the appropriateness or otherwise of the position offered the first respondent on his return to Nigeria.
We are in no doubt that the question whether or not the 1st defendant had qualified as a specialist paediatrician is of little significance in the determination of this case. It is however necessary to deal with part of the argument briefly.
Paragraph 20B of the statement of claim states in effect that under the conditions of service of Western Nigeria Government no officer may be appointed as Medical Officer (Special Grade) without the officer in question being in possession of a specialist qualification granted without conditions by an approved institution. The defendants did not in their statement of defence specifically deny this averment and indeed para. 6 of their statement of defence states that the defendants are not in a position to deny all the averments in paras. 17, 18 and 20 of the statement of claim. In the course of the trial in the High Court, Dr. Franklin, the Controller of Medical Services in Western Nigeria testified as to the conditions under which an officer could be appointed a Medical Officer (Special Grade) and clearly stated that the 1st defendant at the material time was not so qualified. The letter of resignation written by the 1st defendant and dated 1st July, 1964 was produced and put in evidence as exhibit S and para. 3 of that letter reads thus:-
“In April, 1963, after meeting the requirements of the American Board of Paediatrics, I took and passed the final examinations of that Board. The certificate of the Board was however, `frozen’ for a period of two years, during which time I was to practice as a `pediatrician’ or under-take further sub-specialization, and after which time I would receive the certificate without further tests, examinations, or other requirements.”
Furthermore, Dr. Franklin stated in evidence that after seeing the letter dated 2nd May, 1963 (exhibit BB shown to him by 1st defendant) addressed to the 1st defendant by the American Board of Paediatrics, he made further enquiries from the Federal Ministry of Health in Lagos concerning the claims of the 1st defendant to be a specialist. He received in reply a memorandum dated 8th November, 1963 which reads as follows:-
“Confirmation from Lagos.
(1) That American Diplomate of National Board of Examiners is registrable in Nigeria (pp.36443 refer) State Exam.
(2) That American Board of Paediatrics Certificate is a recognised Specialist qualification.
(i) I have confirmed from C.M.A. Lagos that Dr. Adebonojo’s Medical qualification-M.D. (Yale University Medical School) American Diplomate of National Board of Medical Examiners is registrable in Nigeria.
(ii) That the American Board of Paediatrics certificate is not considered to be a specialist qualification by the Federal Ministry of Health.
2. The above-named certificate is not yet included in our scheme of service as a specialist qualification.
As stated before the learned trial judge who saw and heard the witnesses in the course of the trial of the case preferred and accepted the evidence of the Controller of Medical Services and found as a fact that at the material time the 1st defendant did not possess as pleaded by the plaintiff in para. 20B of the statement of claim, “a specialist qualification granted without conditions by an approved instituion”. Both judge-ments of the Western State Court of Appeal condemned these findings. Fatayi Williams J.A. in the course of his judgement on this point stated:-
“Moreover, it seems to us that the production of a certificate, especially where the examining body is known and would be contacted, is not the only method of ascertaining whether a person has the specialist qualification which he claims to possess.”
and appertaining to the point under consideration, the judgement of Adegboyega Ademola J.A. contains the following passage:-
“This is an obvious anomaly, for the respondent contended that the 1st appellant would have been given a `Special Grade’ appointment if only he had produced his `certificate’ to prove that he had `specialist qualification’ in paediatrics; but, on the respondent’s own admission, this same `certificate’ being demanded from the 1st appellant, was not then included in his Scheme of Service as proof of a `specialist qualification.’ Therefore, if, as the respondent claimed, this Scheme of Service was depended upon to decide the `appropriate’ appointments of offer, it would seem obvious that the 1st appellant had no chance, whether or not he produced his `certificate’ would not have been regarded as proof of `specialist qualification’ in accordance with the Scheme of Service. Yet, it was the respondent’s case that the 1st appellant was not given a `special grade’ appointment because he did not produce this specialist qualification certificate.”
It is clear to us that neither of the judgements of the Western State Court of Appeal can be supported. There is the fact that the 1st defendant gave no evidence at the hearing; the evidence of his qualification or disqualification came from the plaintiff and from his own letter of resignation exhibit S. In that exhibit, he frankly admitted in effect that he had no certificate granted without conditions and the memorandum exhibit CC shows that a certificate of the institution at which he qualified was not then considered to be a specialist qualification by the Federal Ministry of Health. The judgement of the Western State Court of Appeal in our view without justification brushed aside the plethora of evidence on this point which we have referred to and held that the 1st defendant either was or should be deemed to be so qualified. In one case the judgement of the court of Appeal begs the question under consideration and in the other case the judgement is a non-sequitur. There was indeed evidence direct and over-whelming in support of the judgement of the learned trial judge that the 1st defendant was not at the material time in possession of the necessary specialist qualification granted without conditions by an approved institution. This and other conditions were clearly pleaded and given in evidence by the plaintiff and were not refuted by the defendant so as to warrant his immediate appointment to the post of a Medical Officer (Special Grade).
But the more important matter is as to the interpretation of clause 4(a) of the bond or contract admitted in evidence as exhibit C. We did point out that a variation agreement or bond was again executed by all the defendants when the 1st defendant was to undergo post-graduate studies at the further expense of the Government of Western Nigeria. It is of course common ground that the variation agreement put in evidence as exhibit H only confirms and makes applicable to the post graduate award the terms and conditions of the original agreement exhibit C.
Now we have already set out the provision of clause 4(a) of exhibit C and in the events which had happened it is easy to see why a considera-tion of that clause has become a matter of paramount relevance. To us this clause clearly stipulates that after qualification the first defendant could be offered employment by the Permanent Secretary, Ministry of Education, Western State “in a capacity considered suitable by the regional government.” In his consideration of that clause and his application of it to the facts of this case, Delumo J. had held that according to the provision of the clause “it is the regional government that would decide the capacity which is appropriate”. On the other hand, the Western State Court of Appeal took the view that the word “reasonable” (and the “concept of reasonableness”) should be imported into the contracts of the parties for the purpose of construction. Neither of the parties to exhibit C (and exhibit H) contemplated that the word should be included in their agreement and throughout exhibit C (and exhibit H) that word was not even breathed. It is obvious from the confusion that arose in the Western State Court of Appeal itself that the court was in difficulty to ascertain the real position into
which the word “reasonable” could or should be fixed. This is demonstrated by the fact that whilst the majority judgement of two of the judges would ascribe the characteristic of being reasonable to the capacity in which the lst defendant was called upon to serve, the judgement of Adegboyega Ademola J.A. would apply the test of reasonableness only to the appointment offered.
It is impossible to see the wood for the trees in all conjectures. It is the alphabet of his study to any lawyer that in the construction of documents the words must first be given their simple and ordinary meaning and that under no circumstances may new or additional words be imported into the text unless the documents would be by the absence of that which is imported impossible to understand. The cardinal presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand. In Smith v. Lucas (1881) 18 Ch.D. 531 at 542 Jessel M.R. on this point observed that:
“One must consider the meaning of the words used not what one may guess to be the intention of the parties.”
It is perhaps easy to see why considerable sympathy should be lavished on the 1st defendant and his fortunes but both parties have gone to law and the law must take its course. On the plain reading of the contract exhibit C, the judgement of the learned trial judge is unexceptionable. Besides, it is explicit in the extreme and it follows to our end the cardinal rules of interpretation. On the other hand, the judgements of the Western State Court of Appeal have proceeded on conjectures, and an un-warranted injection into the context of the contracts of the parties of word or words which the parties never contemplated. We disagree entirely with the construction put on the provision of clause 4(a) of exhibit C by the Western State Court of Appeal.
We are in agreement with the interpretation of that clause as made by the learned trial judge. We conclude that the Western State Court of Appeal took a mistaken view of the law when they held that the appointment offered the 1st defendant on his return home and/or the capacity in which he was then asked to serve the regional government was not “reasonable”. We also conclude that the Western State Court of Appeal was wrong to decide that because the appointment offered him was not reasonable, the 1st defendant was entitled, as he did, to resign from the services of the Western Nigeria Ministry of Health as if the remedy by a party to a contract which is already executed for a breach of that contract by the other party is to treat that contract as if it had never existed at all.
On all these grounds which we have considered, we have come to the conclusion that the Western State Court of Appeal was wrong in its conclusions in this matter and that the appeal of the plaintiff should succeed.
The appeal therefore succeeds and it is allowed. The judgement of the Western State Court of Appeal in suit No. CAW/59/68 including the order for costs is set aside and we make the following orders:-
“(1) that the judgement of Delumo J. in the High Court, Ibadan in this suit i.e. 1/49/66 be restored in full including his order for costs.
(2) that the defendants do pay jointly and severally to the plaintiff/appellant the costs of this appeal fixed at 88 (eighty-eight) guineas.”
Other Citation: (1971) LCN/1173(SC)