Texaco Nigeria Plc V. Alfred G. Adegbile Kehinde (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the Kwara State High Court in Suit No. KWS/283/94 presided over by the Hon. Justice J. A. IBIWOYE and delivered on 26th day of August, 1998.

The facts of the case are that in November 1981, the respondent was employed by the appellant as a sales clerk vide a letter of appointment which was tendered in the proceedings as Exhibit 1. He served the appellant in that capacity at Akure, in Ondo State till 1991, when he was promoted to the post of Depot Superintendent and posted to Ilorin depot of the NNPC as the representative of the appellant in April, 1991. He remained in that capacity until 13th May, 1994 when his employment was summarily brought to an end by summary dismissal vide Exhibit 10. The respondent pleaded and told the court that his employment with the appellant was governed by a collective agreement between the Workers Union and the appellant which agreement was tendered and admitted as Exhibit 5, in addition to Exhibit 1; his letter of appointment.

In summarily dismissing the respondent vide Exhibit 10, the appellant assigned no reason.
The respondent was not happy with the action of the appellant in dismissing him so he instituted an action in the High Court claiming inter alia the following reliefs as can be seen in amended statement of claim at pages 13 to 17 of the record of proceedings to wit:
“WHEREOF the plaintiff claims as follows:
1. A DECLARATION that the purported dismissal of the plaintiff from the employment of the defendant by letter dated May, 13, 1994 is unlawful, wrongful, null and void.
2. A DECLARATION that the plaintiff is still in the employment of the defendant and therefore entitled to the rights, benefits and privileges (including salaries) attached to his post employment up to the date of judgment.
3. AN ORDER compelling the defendant to pay to the plaintiff all his salaries from June 1994 up to the date of judgment.
4. And/or in the ALTERNATIVE, the plaintiff claims the sum of Three Million Naira (N3m) being the special and general damages for the plaintiff’s wrong dismissal from the defendant’s employment as a Depot Superintendent on May, 13, 1994…”

The respondent’s complaint is based on an alleged breach of his conditions of employment contained in Exhibit 5 and breach of the rules of fair hearing in the process leading to his summary dismissal. The appellant denied these complaints.

Parties called evidence and tendered certain documents at the trial at the end of which the learned trial Judge found for the respondent against the appellant. In finding for the respondent the learned trial Judge agreed that Exhibit 5 was ineffectual because it had lapsed by effluxion of time.
Secondly, the trial Judge found as a fact that there was no breach of the fundamental rights of the respondent to fair hearing in the processes leading to his summary dismissal.

Dissatisfied with that judgment, the appellant has appealed to this court on 10 grounds of appeal to be found at pages 83 to 97 of the record of appeal. Out of these grounds of appeal, learned Counsel for the appellant YUSUF O. ALI, Esq., SAN, leading AHMEED AKANBI Esq., has formulated two issues for our determination. The issues are:
1. “Whether the learned trial Judge was right to have held that the dismissal of the respondent was unlawful, wrongful, null and void when:
(i) The respondent did not tender the valid condition of service, nor discharged the onus of proof;
(ii) The respondent failed to make out a case of lack of fair hearing;
(iii) The relationship between the appellant and respondent was a mere master/servant relationship;
(iv) The trial Judge wrongly invoked the provisions of Section 149(d) of the Evidence Act, and,
(v) The learned trial Judge took a lot of irrelevant things into consideration in arriving at his conclusion.
2. Whether the learned trial Judge was right to have awarded damages in favour of the respondent having regard to the refusal of the trial court to grant relief No. 2 on the amended statement of claim and the general circumstances of the case.”

On the other hand, the respondent is also dissatisfied with certain aspect of the judgment and has consequently and with the leave of this court, cross-appealed against the said judgment particularly the finding by that court that Exhibit 5 had lapsed before the respondent’s cause of action arose. I will return to the cross-appeal later in this judgment.

The appellant’s brief of argument was filed on 29th October, 1998. On the 5th day of June, 2000, the appellant filed a reply brief and cross-respondent’s brief in this matter.

When the appeal carne up for hearing on the 25th of October 2000, the learned Counsel for the appellant, Yusuf O. Ali, Esq, SAN adopted the two briefs of argument and referred the court to page 86 of the record in relation to issue No. 1 and submitted that there is no appeal against the finding by the lower court that the case of fair hearing was not made out. That the lower court having so held ought to have dismissed the case. He then urged the court to invoke the provisions of Section 16 of the Court of Appeal Act in making the correct order.

As regards issue No. 2, learned Counsel referred the court to the case of Union Bank v. Ogboh (1995) 2 NWLR (pt. 389) 647 at 664 on employment without statutory flavour. Finally learned counsel urged the court to allow the appeal and dismiss the cross-appeal.

The respondent’s brief of argument in the main appeal and cross-appeal were deemed filed on 24th May, 2000. During the hearing of the appeal, learned Counsel for the respondent/cross-appellant R. A. AFOLABI Esq., relied on these briefs of argument and urged the court to dismiss the appeal and allow the cross-appeal.

On issue No.1, learned Counsel for the appellant stated that the case of the respondent at the trial is that his dismissal was wrongful because it was not in accordance with the conditions of service binding the parties and that the dismissal breached his right to fair hearing in that he was not allowed to know and confront his accusers. That the respondent admitted that apart from Exhibits 1 and 5, his employment was governed by nothing else.

That the trial Judge held that Exhibit 5 was useless to the respondent’s case but in a curious way went on to hold that he did not agree that the respondent had failed to lead evidence to show how Exhibit 10 (the letter of dismissal) was in breach or departure from Exhibit 5.