LEANDRO STOCCO (PLAINTIFF)
OLADIPO MAJA (DEFENDANT)
(1964) All N.L.R. 510
Division: High Court, Lagos
Date of Judgment: 9th September, 1964
Case Number: LD/309/1964
Before: Taylor, C.J.
The plaintiff, an alien medical practitioner whose stay in Nigeria is dependent on the defendant, brought the proceedings, against the defendant, also a medical practitioner, claiming for specific performance of a service agreement between the parties dated 20th January, 1964, and for an account of professional fees obtained by the defendant for the services of the plaintiff at the defendant's clinic or, in the alternative, the sum of £10,000 representing special and general damages for the breach of the said service agreement. The claim for specific performance was dismissed because the plaintiff abandoned it, but the defendant was ordered by the court to file an account in terms of the claim since it was generally agreed by Counsel that it would be in the interest of the parties to the case.
At the trial, evidence showed that the service agreement provided inter alia (a) that the plaintiff is to put in I hour between 9:30 am and 11:00 am, and I hour between 5:30-7:00 pm at the defendant's clinic (b) that the plaintiff is free to do private practice provided that the fees obtained from such practice are distributed in accordance with Clause I of the agreement which provides that the plaintiff's salary will be £50 per month plus 75% of professional fees paid by any patient brought into practice by him; in pursuance of this service agreement, the parties worked together as from 15th February, 1964 up to 25th June, 1964 when the plaintiff's services were terminated by only 14 days notice; the plaintiff contended that he is entitled to one year's implied notice of termination as there is no provision for notice of termination in the agreement; that the plaintiff was given no opportunity to minimise his loss because the defendant wrote to the Immigration Department on 25th June, and the Immigration Officer wrote to the plaintiff on 17th July, 1964 giving him up to 30th July, 1964 to settle his affairs and leave Nigeria; a further extension of time was granted to the plaintiff to enable him prosecute this claim.
The defendant tried unsuccessfully to deny certain basic facts in evidence but the court disbelieved him and held that the defendant was clearly in breach of the service agreement. The point is whether the plaintiff is entitled to recover general damages, in addition to the special damages, for the breach of the service contract.
(1) The summary dismissal of the plaintiff was wrongful because the plaintiff is entitled to reasonable notice of termination of the service contract. What constitutes reasonable notice depends on the facts of each case in the absence of any evidence of usage or custom. In the present case, four months' notice of termination would be reasonable in the circumstances and this ought to be the basis for the calculation of the special damages.
(2) The plaintiff is entitled to an award of general damages for substantial inconvenience and discomfort caused by the breach of the service contract as the facts of this case clearly show.
Cases referred to:-
Addis v. Gramophone Co Limited (1909) A. C. 488.
Dr Akinyemi v. The Electricity Corporation of Nigeria (Unreported)
Maw v. Jones, (1890) 25 Q.B.D,. 107; 59 L.J.Q.B. 542.
British Westinghouse Electricity & Manufacturing Co Limited v. Underground Electric Railways Co of London Limited (1912) A.C. 673.
Bailey v. Bullock (1950) A.E.R. 1167.
Green v. Crocker (1938) 2 A.E.R. 401.
Impey, for the Plaintiff.
Peter Thomas, for the Defendant.
Taylor, C.J. of Lagos- The plaintiff, a medical practitioner, claims against the defendant, also a medical practitioner, the sum of £10,000 as damages for breach of a service contract existing between the parties, as an alternative to the claim for specific performance of the agreement dated the 20th January, 1964, and for an account of professional fees obtained by the defendant for the services of the plaintiff at the defendant's clinic at Obalende and the Nursing Home at 33 Moloney Street, Lagos.
Before dealing with the issues that arise in this claim it is as well at the outset to point out that the claim for specific performance of the service agreement of the 20th January, 1964, was abandoned by the plaintiff and is formally dismissed. The plaintiff's case on the pleadings is that by the letter of the 20th January, 1964, which later became exhibit "C," the plaintiff was engaged by the defendant on terms contained in the agreement, to which reference will later on be made; that such contract of service began on the 13th February, 1964; that on or about the said date the parties agreed to vary Clause 2 of the said agreement in a manner which will be later dealt with; that the plaintiff attended the defendant's clinic as from 15th February, 1964, to the 25th June, 1964, when his services were wrongfully terminated.
The plaintiff also avers that the defendant was in breach of some of the terms of the agreement, to which reference will be later made, as well as the implied term of twelve months' notice to determine the contract. By reason of these matters and others arising from them and to which I shall later make reference, the plaintiff says he has been damnified and claims £10,000 damages according to his writ, £4,450 of which is special damage. The defendant on the other hand in his statement of defence as amended in court at the hearing says that the letter of the 20th January, 1964, set out the terms of the agreement of service between the parties, that the variation of the agreement as alleged by the plaintiff is not so but is as stated in paragraph 9 of such statement of defence; that the plaintiff was irregular in his attendance at the Clinic, and absented himself without good, or any, reason at all; that the plaintiff was slipshod and unconventional in his manner of practice; that on one occasion he was negligent, and the defendant remonstrated with him. In consequence of this a verbal ultimatum was given to the plaintiff on the 11th June, 1964, and when this was not heeded, the plaintiff was dismissed on the 25th June, 1964. The defendant also avers that the plaintiff carried on a large extra mural practice outside the Clinic and was therefore in breach of the agreement aforesaid. The plaintiff's entitlement to damages, special or general is also denied.
Now the issues before me, and which are material to this decision are these:-
1. Was there a service agreement between the parties?
2. Was this service agreement, if the above finding is in the affirmative, later varied in the way the plaintiff says it was varied or that of the defendant?
3. Was the plaintiff or the defendant in breach of the service agreement in the form I find it existed, or were they both in breach?
4. If the defendant was in breach has the plaintiff suffered any damage, and if so what is the quantum?
5. Is the plaintiff entitled to an account?
My task so far as it deals with the last issue has been simplified by the attitude of both Counsel in this matter, and I propose to deal with it now, out of its turn. The relevant portion of the writ on this point reads thus:
"The plaintiff's claim against the defendant is for specific performance of an agreement dated the 20th January, 1964, and for an account of professional fees obtained by the defendant for the services of the plaintiff at the defendant's Clinic at Obalende and the defendant's Nursing Home at 33 Moloney Street, Lagos, or alternatively £10,000 damages for breach of contract by reason of the defendant wrongfully dismissing the plaintiff ..."
At the close of the case and after hearing Counsel I discovered that the addresses did not touch upon the point whether if the plaintiff succeeded in the Suit I can, on the writ as it stands both order an account and award the plaintiff damages, (in the alternative), for breach of contract. To put it another way, had the claim for specific performance not been abandoned and were the contract such that an order for specific performance can be made, is a Court empowered to grant specific performance, order an account and award damages which on the writ is an alternative claim? As a result of this discovery I caused a notice to be served on Counsel informing them that I wanted them to address me on this point. On the 28th August, 1964, both Counsel submitted that it would be in the interests of the parties to this case that an account as claimed by the plaintiff should be ordered. This order was not to affect the decision as to whether the plaintiff is entitled to Judgment or not in the alternative claim.
I therefore made the following order on the 28th August, 1964:-
"It is hereby ordered that the defendant do file an account of professional fees obtained by him for the services of the plaintiff at the defendant's Clinic between February 15th 1964 and June 25th 1964. This account is to be filed in court and a copy served on Mr Impey on or by 1. 9. 64. The plaintiff may surcharge and falsify this on or by the 7th September, 1964, and file a copy in court of such surcharge and falsification as well as serve a copy thereof on the defendant." I now pass on to the crux of the matter. That there was a service agreement between the parties is conceded by both parties, the only point of dispute being the terms of this service agreement, so far as it affects Clause 2 of the agreement exhibit "C" which reads thus;
(2) "You will give your full time services to this Clinic and shall not engage in any other employment including the extra mural practice of the profession."
It is the plaintiff's case that on the 13th February, 1964, at a meeting held at the defendant's Clinic in the presence of the parties to this suit, Professor Comi, and Dr Brovedani, this clause was varied as follows as contained in paragraph 6 of the Statement of Claim.
"... that the plaintiff instead of giving full time service in the defendant's Clinic should attend duty at the said Clinic between 9:30 am and 11:00 am for one hour and daily in the afternoon for one hour between 5:30 pm and 7:00 pm and that the plaintiff should be permitted to visit outside patients at the plaintiff's house or at the patients' residences and that the plaintiff might directly charge such patients with fees provided that 25% of such fees should be paid by the plaintiff to the defendant."
While the defendant admits that such a meeting took place on the 13th February, 1964, in his Clinic attended by Professor Comi, and another person whom he cannot identify as Dr Brovedani he states in paragraph 6 of the statement of defence inter alia that the object of the meeting, if it can be so called was:-
"... to thank the defendant for giving the plaintiff an opportunity to practise medicine."
The defence then goes on to deny paragraph 6 of the Statement of Claim and in paragraph 8 of the statement of defence concedes that the plaintiff was allowed to ...
"take outside calls at the residence of patients only as this is in keeping with general medical practice but that every such call shall be noted in the Clinic's record in accordance with the rules of the profession and all bills for any such attendance must be sent out from the Clinic."
The only independent witness who gave evidence on this point was PW3, Dr Umberto Brovedani, the absence of Professor Comi having been satisfactorily explained. It is important to bear in mind that in spite of the denials and averments in the defence about what took place at this meeting not a single question was put to Dr Umberto Brovedani in cross-examination. This is what he says inter alia:-
"I was asked by Dr Stocco to act as an interpreter for him in a conversation in Dr Maja's Clinic with Dr Maja...
... the meeting was about mid-February... "The main question was to clarify some points about the attendance of Dr Stocco at Dr Maja's Clinic. Dr Maja asked Dr Stocco to be present in the Clinic in the morning and afternoon. He asked Stocco to be there for hour or 1½ hours in the morning and evening. No specific time was stated. Dr Stocco was to choose the time in accordance with his programme for the day..."
Dr Stocco was free to attend his own private practice as long as he put in his hours of work in the morning and afternoon at the Clinic.
If Dr Maja was going away on a Saturday or Sunday he said that Dr Stocco would have to see to his (Dr Maja's) patients. They also discussed about the way bills should be sent out. Dr Maja wanted the bills to have his Clinic address on them."
As I have said this evidence was not challenged by cross examination and having heard and seen this witness I have no doubt that this evidence on the whole represents the discussions and agreement reached on that day. This evidence in the main, is in agreement with that of the plaintiff with this exception, that the plaintiff deposed that he was to attend between 9:30 am and 11:00 am, and between 5:30 pm and 7:00 pm. The defendant in his evidence gave the hours the plaintiff was to put in at the defendant's Clinic at 9:00 am to 11:00 am, and in the afternoon between 5:30 pm and 7:00 pm. The defendant I found most evasive over the question of whether there was a variation of Clause 2 of the agreement or not. At one time in his evidence-in-chief he said this:-
"I did not agree that plaintiff would not give full time service as deposed to by Umberto."
and yet under cross-examination he went on to say:-"I do not challenge Dr Brovedani's evidence."
The defendant then went on to define the words "extra mural practice of the profession" as contained in Clause 2 of the agreement by giving them a meaning which would make nonsense of the words extra mural which I have always understood to mean "outside the walls." It is not however necessary for me to go into this for the uncontradicted evidence of Dr Brovedani shows that Clause 2 was varied on the 13th February, 1964, and I so hold that it was varied in this way:-
(a) That Dr Stocco was to put in 1 hour between 9:30 am, and 11:00 am, and 1 hour between 5:30 and 7:00 pm at the defendant's Clinic.
(b) That the plaintiff was, outside those hours, free to do private practice provided that the fees obtained from such practice are distributed in accordance with Clause 1 of the agreement which provides that: "your salary will be £50 per month plus 75% of the professional fees paid by any patient brought into the practice by you."
(c) That the bills for work done outside the Clinic could be sent to the patients by the defendant provided such bills contained the Clinic address on them as the place where payment was to be made.
Having come to a conclusion as to the final terms of the agreement of service under which the parties to this Suit were working as from the 15th February, 1964, the next stage is to see who was in breach of this agreement. Mr Impey urges that the defendant was in breach of the following provision:
"Having regard to the fact that there must be some form of agreement, I am putting into this letter the details of our discussion which will form the basis of a proper agreement to be drawn up by my lawyers."
This is an undertaking made by the defendant on the 20th January, 1964, which up to the 25th June, 1964, when the plaintiff's services were terminated, was admittedly never carried out. There is no time factor attached to this provision and both parties seem, on the evidence before me, to have worked together from the 15th February to the 25th June paying little regard to the absence of a formal agreement.
Mr Impey argued that the defendant was also in breach of Clause I whereby he was to pay the plaintiff £50 a month as salary. The plaintiff says that from the very moment he started working for the defendant till the day of termination of his service he was not paid. He admits that he was to be paid only £25 for the month of February as he only worked for half the month. The defendant on the other hand admits that for April, May and June he never paid the plaintiff. He says that the plaintiff was overpaid by some small sum for the months of February and March. Whichever way you look at it the defendant was in breach of Clause 1 of the agreement; but here again the plaintiff appears to have worked on without making any move to determine the agreement or to claim damages for breach by the defendant. What steps, if any, the plaintiff might have taken had it not been for the termination of his service on the 25th June, 1964, is a matter of conjecture, into which realm I need not enter for the real bone of contention is the dismissal or termination of the plaintiff's services without giving him one year's implied notice. On this point the plaintiff said that the first he knew of the termination of his services was on the 25th June, 1964, when he was given a copy of exhibit "F" by the defendant's receptionist. That on receiving it he was so shocked that he went out of the Clinic and did not come back again. The defendant, on the other hand, gives a completely different version, and it seems to me a great pity that one of two men of such a noble and learned profession should come here and tell deliberate falsehoods over a matter or event which is not only recent in their minds but which invites only one version. He says that:-
"As soon as I saw he (Dr Stocco) was not filling in the Clinic cards, I pointed it out to him and he agreed to comply with it. A Miss Hajaig made a certain report to me early in June 1964. She has a Clinic card. As a result of the report I called Dr Stocco and gave him an ultimatum. He did not deny the report. I asked him for all the records of the cases he has done including the records in his house within a fortnight ... I told him that if he wanted to practice any more in the Clinic he had better produce the things I wanted."
Under cross-examination he said that he dismissed Dr Stocco because he did not comply with the ultimatum; and this is in accordance with paragraph 13 of the statement of defence. The plaintiff says that no ultimatum was given to him and the proof of the affirmative lies on the defendant. Under cross-examination the defendant said that the ultimatum was given in the presence of an Italian, a Mr Miguletti. I made an attempt to spell this name as the defendant pronounced it for he was unable to assist me in this respect. It is certainly odd that this important witness was never called, nor was any explanation given as to his absence, and further, his name was never suggested to the plaintiff when he gave evidence under cross-examination, and I have no difficulty in rejecting the evidence of the defendant that there was any ultimatum given to the plaintiff, and on any point on which their evidence is in conflict. I find it hard to believe that if an ultimatum of the kind deposed to by the defendant was given, it would not have been reduced into writing. I am not unmindful of, nor impressed by the fact that exhibit "S," written on the 25th June, 1964, the receipt of which the plaintiff denies contained the words inter alia:-
"As you have failed to comply with the conditions of your service with me in spite of the ultimatum I gave you two weeks ago..."
One peculiar thing about the letter which might suggest the haste in which it was prepared is the address of Dr Leonardo Stocco as "Permanent Secretary, Ministry of Internal Affairs, Lagos." Dr Maja, I regret to say, was not a witness of truth, and at no stage during the period of time he was in the witness box did he impress me. He was hesitant and evasive in his answers, and when the ground he formerly held was found untenable, he thought nothing of shifting ground. His evidence in relation to Dr Umberto Brovedani is but an example of this, another was when under cross-examination he said in one breath:-
"I had at the end of March overpaid the plaintiff. He still had money to come to me at the end of March."
And in the next breath immediately following upon this he said that:-
"At the end of March I would be owing the plaintiff a few pounds when the 75% takings are taken into account."
Again it struck me as odd that if there was any truth in Dr Maja's evidence as to the frequent disagreements he had with Dr Stocco, no witness from the Clinic was called to give evidence of one occasion, not even the nurse who on the evidence of Mr Hajaig came out of the surgery with a "shocked look" on the occasion Miss Hajaig was alleged to have collapsed at the hands of Dr StocCo As for Miss Hajaig, my notes read that she was identified by Dr Stocco at the instance of Mr Thomas, Counsel for the defendant, but she never gave evidence.
I have gone to some length in dealing with the evidence of Dr Maja because on the most important issue of whether an ultimatum was given or not, as well as whether there was any disobedience to any of the instructions given by Dr Maja to Dr Stocco warranting instant dismissal it is Dr Maja's evidence against that of Dr StocCo I have not rejected Dr Maja's version of these incidents without mature consideration. On the other hand I found Dr Stocco and Dr Brovedani to be witnesses of truth and subject to what I have said earlier about the slight variation in their evidence dealing with the hours Dr Stocco was to put in at the Clinic I accept their evidence in preference to that of Dr Maja.
Having found that no ultimatum was given by Dr Maja to Dr Stocco on the 11th June, 1964, the bottom is knocked out of the defence which alleges that the dismissal of the 25th June came because the plaintiff did not heed the defendant's ultimatum. The question of whether the full 14 days of the ultimatum had run out, and whether the servant can be dismissed summarily for disobedience to his master's orders or instructions become academic.
On the evidence before me and on the facts found by me, there can be no doubt at all that:-
The summary dismissal of the plaintiff on the 25th June was wrongful.
In the absence of any provision in the agreement for the period of notice to be given to-terminate the agreement, the law implies that the service shall be terminable by reasonable notice. What is a reasonable notice must of course depend on the facts and circumstances of each case in the absence of any evidence of usage or custom. In the present case both parties are members of a highly skilled and honourable profession. The-plaintiff is a foreigner whose stay in Nigeria is, on the evidence before me, dependent on the defendant. The evidence shows that he has patients of his own, and if his takings for the month of July are any yardstick by which his future in Nigeria can be judged, then I would say it is full of promise.
On the other hand, we must bear in mind the adverse effect that a long notice could have on the clientele of the defendant. No authority has been cited which is "on all fours" with the present. In the case of Dr Akinyemi v. The Electricity Corporation of Nigeria Suit LD/193/56 to which my attention was drawn by Mr Impey, Coker J. (as he then was) said this inter alia:-
"There is no doubt that the agreement between the parties in 1956 was a yearly service agreement."
and a little later:-
"I do not agree with the suggestion of the defence Counsel that the facts are also consistent here with a quarterly service contract, and in any case both parties agree that it was a yearly contract."
That is not the case here. I bear in mind the evidence of the Immigration Officer that his department would have no objection to the plaintiff remaining in Nigeria provided he could team up with another medical practitioner, and Dr Maja's consent could be obtained. Taking all these into account I think four months' notice would be reasonable in the circumstances.
I now pass on the final issue of damages, and in this respect I will deal firstly with the items of special damages. The first head is for £3,600 being payment in lieu of notice calculated at the rate of 75% of one year's fees at £400 per month. This item and the next deal with the loss suffered by the plaintiff as a result of the defendant's failure to give him a reasonable notice of termination of his services. That he is entitled to succeed on these two heads cannot be in doubt. The only dispute is the sum to which he is entitled.
It is not at this stage possible for me to assess the sum payable on the first head until the account to be filed by the defendant has been surcharged and falsified and a final figure arrived at. I intend at this stage to provide only the method by which the account representing the damage on this head can be worked out. It is to be computed by working out the average monthly takings for the months of March 1964 to July 1964 as shown in exhibit "Q," and adding to it the average monthly takings as shown in the final figure arrived at by the parties in the accounts ordered by me on the 28th August, 1964. Seventy five per centum of this is to be multiplied by four representing the four months' notice which should have been given to the plaintiff, and this will be my award on this head.
There is no difficulty at all on the next head, i.e. the claim for £600 being salary in lieu of notice at the rate of £50 per month for one year. On my findings that four months would be a reasonable notice I would assess the damages at £200.
The last head, i.e. £250 salary for February to June 1964 is not really a head of special damage. I intend however to deal with it as such in order that there might be a finality in this matter. It is a claim for salary to which the plaintiff claims he is entitled during the months he was admittedly working for the defendant. This figure, I should mention has been amended to read £225 in view of the admitted fact that the plaintiff only worked for half of February. The only disputed months are February and March for as I have said before, the defendant concedes that the plaintiff has not been paid for April, May and June 1964. As for February and March the defendant's evidence as to payment made to the plaintiff is most unsatisfactory, and vague. He does not say in so many words that he paid the plaintiff his salary for those two months. His evidence is that he made a loan of £50 cash to the plaintiff to enable the latter to settle his outstanding account with U.T.C. stores and that he gave Dr Stocco a cheque for £22.1.0d. being fees paid by Textile Mills, and cash of about £10. Dr Stocco denies the receipt of any salary, and of any loan from and by the defendant. I have already given my reasons for accepting Dr Stocco's evidence in preference to that of Dr Maja. For these reasons I hold that the defendant is liable to the plaintiff for the full sum of £225 on this head, and I award such sum to the plaintiff.
Before I pass on to the head of general damages, I am aware of the principle of law that the duty is always on the plaintiff in a case such as this to minimize his loss, but the evidence before me has shown that the defendant and the Immigration Department have acted so swiftly that the plaintiff has had little or no time to make alternative provisions. I cannot here lay any blame at his door for not having made any such provision. The defendant wrote to the Immigration Department on the 25th June, and the Immigration Officer on the 17th July wrote to the plaintiff giving him up to the 30th July to "settle your affairs and leave Nigeria." A further extension has been granted only to enable him to prosecute his claim in this Court.
Mr Impey has urged on the head of general damages that the case of Addis v. Gramophone Co 1909 A.C. 488 is distinguishable from the present and has cited Maw v. Jones 1890 25 Q.B.D 107 and Dr Akinyemi v. Electricity Corporation of Nigeria to which reference has been made, as authorities for the proposition that general damages can be awarded in cases such as this. I was referred by learned Counsel to the Judgment of Lord Coleridge C.J. at 108 and 109 of the report of the case Maw v. Jones. In Mayne on Damages the 11th Edition at 295 not (m) the