GARABED GARABEDIAN (PLAINTIFF)
ASAD JAMAKANI (DEFENDANT)
(1961) All N.L.R. 186
Division: High Court (East)
Date of Judgment: 27th March, 1961
Case Number: Suit No. P/26/1960
Before: Savage, J.
By a contract in writing, signed by the plaintiff in the Lebanon, the defendant employed the plaintiff for one year in the defendant's business at Port Harcourt at £80 per month. The contract contained a Clause providing for dismissal for misconduct. Before plaintiff left the Lebanon, the defendant requested him to purchase certain catalogues containing industrial designs for which he, the defendant, promised to reimburse him on his arrival in Nigeria. Plaintiff procured the catalogues and arrived in Port Harcourt on 22nd February, 1960. He delivered the catalogues to the defendant but was not paid for them. In March 1960, the defendant increased plaintiff's salary to £90 per month. From time to time, plaintiff requested the defendant to pay him for the catalogues, until, ultimately, in May 1960, when the plaintiff again requested payment, the defendant returned the catalogues to him, and a few days later dismissed him from his employment without notice. Plaintiff sued for damages for wrongful dismissal. Defendant pleaded that plaintiff was dismissed by him for inefficiency and incompetence, but did not adduce any evidence sufficient to establish that plea; nor was any evidence given which would prove or tend to prove misconduct on the plaintiff's part.
(1) The plaintiff was dismissed by the defendant solely because of the misunderstanding about the catalogues. Such dismissal was in breach of contract and wrongful.
(2) As the plaintiff was dismissed before the expiration of the contract period, the proper measure of damages is the amount of salary, at the increased rate, which he would be entitled to for the unexpired period which he would have worked under the contract if he had not been dismissed.
Judgment for the Plaintiff.
Douglas for Plaintiff.
Nonyelu with him (Gardiner) for Defendant.
Savage, J.:-The plaintiff's claim against the defendant is for:
(1) The sum of £700 being damages for the wrongful dismissal of the plaintiff by the defendant from the defendant's employment.
(2) Refund of £20 being amount wrongfully deducted by the defendant from the plaintiff's salary for May 1960.
Sometime ago while the plaintiff was in Lagos the defendant saw him and asked him to come and work for him (the defendant). The plaintiff said he was going back to Lebanon and that after his arrival in Lebanon the defendant could send for him if he (the defendant) wanted him to work for him (the defendant). The plaintiff then left.
The defendant is a businessman resident and carrying on his business in Port Harcourt and is the proprietor of Eastern Wrought Iron Manufacturers.
The plaintiff is an Engineer. While the plaintiff was in Lebanon the defendant informed him by letter that he (the defendant) had an immigration quota to employ an Expatriate. Later the defendant sent him (the plaintiff) a written contract (exhibit 1) already signed by the defendant in Nigeria. On receiving the contract in Lebanon the plaintiff signed it and sent it back to the defendant in Nigeria. On receipt of the contract (exhibit 1) duly signed by the plaintiff, the defendant sent the visa and the air ticket for the plaintiff to travel to Nigeria. When the plaintiff was coming out to Nigeria, the defendant asked him to bring out catalogues containing industrial designs and promised him (the plaintiff) to pay for the cost of the catalogues. The plaintiff then obtained eleven catalogues and came out with them to Port Harcourt where he was to work for the defendant.
He arrived in Port Harcourt on 22nd February, 1960 and started to work for the defendant as an Engineer the same day. On his arrival in Port Harcourt he delivered the eleven catalogues to the defendant. At the end of February, 1960 the defendant paid the plaintiff £17 being his salary for the period 22nd February, 1960 to 29th February, 1960 inclusive, the agreed salary per month according to the contract (exhibit 1) being £80. At the end of March 1960 the defendant paid the plaintiff £90 as his salary thereby increasing his salary for March by £10 because according to the plaintiff, the plaintiff's work was satisfactory. At the end of April 1960 the defendant again paid the plaintiff £90 as his salary. When the plaintiff delivered the eleven catalogues to the defendant on his arrival in Port Harcourt in February 1960 he asked the defendant to pay him for the catalogues and the defendant asked him to hold on a bit as he (the defendant) had just paid the plaintiff's passage. In March the plaintiff again asked the defendant to pay him for the catalogues. The defendant said he could not pay then and asked the plaintiff to wait till the following month as he was moving his factory from 8 Station Road to Elechi Layout. In April 1960 the plaintiff again demanded payment for the catalogues and the defendant replied that he could not pay then as he had just paid the Bank £1,000. On 25th May, 1960 the plaintiff again demanded payment for the catalogues and the defendant then replied that he would pay him (the plaintiff) on the following day. On the following day the defendant handed back the catalogues to the plaintiff and told the plaintiff that he (the defendant) would deduct from his May salary the £20 increase he had paid the plaintiff. At the end of May 1960 the defendant deducted the £20 from the plaintiff's salary and paid him £60 instead of 80 according to the contract (exhibit 1) and said there would be no more work for the plaintiff as the plaintiff had taken back the catalogues and therefore there would be no catalogues from which customers could choose designs. On 1st June, 1960 the plaintiff went to work but was not allowed by the defendant to work. The plaintiff then told the defendant that if he (the defendant) would not allow him to work he (the defendant) should put it into writing. The defendant then gave him exhibit 2 terminating his appointment. Later the defendant's Solicitor sent exhibit 3 to the plaintiff.
The defendant admitted employing the plaintiff as an Engineer on the terms stipulated in exhibit 1. The defendant also admitted that he asked the plaintiff to bring out some catalogues for him and that he would pay the plaintiff for the catalogues. He also admitted that the plaintiff brought out the catalogues and delivered them to him (the defendant). He admitted returning the catalogues to the plaintiff and not paying for the catalogues. He however denied that he dismissed the plaintiff because of the catalogues. He alleged that he dismissed the plaintiff because the plaintiff's work was not satisfactory. When asked why he paid the plaintiff an increase of £10 over the stipulated salary of £80 in March 1960 he said he paid the increase because the plaintiff's work was not satisfactory, in order to induce the plaintiff to improve his work. He also admitted that he again paid the plaintiff an increase of £10 above the stipulated salary of £80 in April 1960, although the plaintiff's work had not improved. He alleged that he paid the £10 increase in April to induce the plaintiff to improve his work. I cannot imagine a businessman would increase his employee's salary because the employee's work is unsatisfactory. According to the defendant he paid the increase at the end of March 1960 to induce the plaintiff to improve his work and yet although the plaintiff's work was still unsatisfactory and not improved he paid him (the plaintiff) another increase of £10 at the end of April 1960. This to my mind is a ridiculous story. I cannot believe that a sane person would do such a thing. I do not believe that the defendant paid the increase because the plaintiff's work was unsatisfactory. I accept the plaintiff's version that the increases were paid to him by the defendant because the defendant was satisfied with his work. I find as a fact that the plaintiff's work was satisfactory hence the defendant paid him an increase of £10 in March 1960 and another increase of £10 in April 1960.
The defendant called two customers to give evidence on his own behalf. The first was the second witness for the defendant. This witness alleged that he placed orders for ten double doors with the defendant in February 1960 and that he took the first delivery of four doors in June 1960. He did not examine the doors when he took delivery. It is therefore obvious that if he discovered anything wrong with the doors it must be after he had taken delivery in June. It is therefore obvious that the plaintiff could not have been dismissed as a result of a complaint made by the second witness for the defendant because he took delivery after the plaintiff had already been dismissed. In any case according to this witness the complaints he found were small and he did not return the doors.
The second customer was the third witness for the defendant. According to this witness he ordered forty-one windows and four doors from the defendant on 27th February, 1960. He took delivery of all the forty-one windows and four doors. He later discovered that thirty-three of the windows and two doors were good and the rest not good. He however did not tell us when he took delivery or when the first discovered that some of the windows and doors were bent. In any case I do not see how he could make the defendant liable for the windows and doors alleged bent once he has taken delivery of them. After all, the windows and doors could have been bent by his (the third witness for defendant's) workmen. I therefore do not see how that can be used to prove that the plaintiff was inefficient.
The evidence adduced by the defence does not prove that the plaintiff was incompetent nor does it prove that he was inefficient. I however do not believe that the defendant dismissed the plaintiff because the plaintiff was inefficient. I am satisfied and I find as a fact from the evidence before me that the defendant dismissed the plaintiff because of the misunderstanding between them over the catalogues.
It is clear from exhibit 1 that the employment of the plaintiff was for a fixed period of one year. The only Clause giving the power of termination to the defendant is Clause 11 of exhibit 1. There is no evidence before me to show that the defendant is guilty of misconduct. Therefore Clause 11 does not apply in this case. It may be true that one or two windows or doors produced by the plaintiff were not well produced but that by itself does not prove that the plaintiff was incompetent or inefficient. There is nothing in the contract (exhibit 1) to show that the plaintiff gave an undertaking that he would not make mistakes. It does not matter how efficient a person may be he is bound to make mistakes at times. The fact that an employee has made a mistake is no ground for dismissing him. As the plaintiff was dismissed before the expiration of the period of one year he is entitled to his salary for the period he would have worked under the contract if he had not been dismissed. Because of the reasons given above his dismissal by the defendant was wrongful. Now as regards the increase of £20 which was subsequently deducted by the defendant, once the defendant has paid the increase he cannot claim it back from the plaintiff. He therefore has no right to deduct it from the plaintiff's salary. The plaintiff is therefore entitled to the refund of £20.
For these reasons I give Judgment for the plaintiff against the defendant for the sum of £720 and 65 guineas costs.
Judgment for plaintiff.