In The Court of Appeal
(Kaduna Judicial Division)
On Friday, the 19th day of April, 2013
Suit No: CA/K/282/2006
Before Their Lordships
DALHATU ADAMU |
....... Justice, Court of Appeal |
THERESA NGOLIKA ORJI-ABADUA |
....... Justice, Court of Appeal |
ITA GEORGE MBABA |
....... Justice, Court of Appeal |
Between
NEW NIGERIA NEWSPAPERS LIMITED |
Appellants |
And
MR. FELIX ATOYEBI |
Respondents |
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RATIO DECIDENDI |
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1 |
DAMAGES - AWARD OF GENERAL DAMAGES: Whether it is proper for a court to award general damages for wrongful dismissal in a contract of employment |
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"I agree with learned Counsel for the Appellant that award of general damages for wrongful dismissal, in a contract of employment, is strange. This is because what is computed for a successful party in such circumstance cannot be general damages, but proven special damages, which actually is the salaries and other entitlements of the Plaintiff during the period of the purported termination or dismissal, or what would have accrued to him had the dismissal or termination complied with the due process envisaged in the Condition of service, that is, the entitlement payable to the Plaintiff in lieu of notice (where re-instatement cannot be ordered). See the case of ADENIRAN VS. NEPA (2002) 14 NWLR (Pt.786) 30 at 48 See also the case of KWARA STATE POLY VS. SALIU (supra); NIGERIAN PRODUCE MARKETING BOARD VS. A. O. ADEWUNMI (1972) ALL NLR 870. INTERNATIONAL DRILLING NIG. LTD VS. AJIJALA (1976) ALL NLR 97; SPDC LTD VS. OLAREWAJU (2008) 12 SC (Pt.111) 27;" Per MBABA, J.C.A (Pp. 41-42, paras. C-A) |
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CONTRACT - CONTRACT OF EMPLOYMENT: When is a contract said to have statutory flavor |
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"A contract is said to have statutory flavour where the contractual relationship between the employer and the employee is governed by a statute or regulations derived from statutes. See NEPA vs. Adesaaji (2002) 17 NWLR Part 797 page 578. Therefore, where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made thereunder, it is said to be a contract protected by statute and any person in that employment enjoys a special legal status over and above the ordinary, common law master and servant relationship. In matters of termination or discipline under such a contract, the procedure laid down in the applicable statute or regulations made thereunder must be religiously followed as any breach would render the exercise null and void." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 59-60, paras. D-A) |
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CONTRACT - CONTRACTS OF EMPLOYMENT: Categories of contracts of employment |
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"It should be noted that contracts of employment fall into three categories; a) Master and servant, relationship; b) Where a servant holds an office at the pleasure of master; and c) Employment that is governed by statute." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 59, paras. C-D) |
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DAMAGES - DAMAGES RECOVERABLE IN TERMINATION OF EMPLOYMENT: What is the damages recoverable for wrongful termination of employment |
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"So, on damages recoverable for wrongful termination of employment, the remedy available to an employee who had been dismissed or terminated wrongfully is an action for damages and the normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. That is the quantum of damages and the Court would not award general damages. The damages may also include an assessment of other benefits which the dismissed employee would have earned from the continuation of his employment; for example, the value of boarding and lodging or of rent or of free house. But the employee cannot claim for loss of expected benefits if those were benefits which the employer was not contractually bound to give. See Ogbaji vs. Arewa Textiles Plc (2000) 11 NWLR Part 678 page 322 at 325 ration 5. As for the special and general damages claimed for unpaid services and dismissal for shocks, sufferings, false imprisonment and malicious publication, the cases cited above clearly established that general damages cannot be awarded in cases of wrongful termination of employment." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 79-80, paras. F-D) |
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LABOUR LAW - DISMISSAL OF AN EMPLOYEE: Whether it is a requirement under the law that before an employer can dismiss his employee for gross misconduct involving dishonest bordering on criminality, such employee must be tried first before a court of law |
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"I would, refer to Arinze vs. F.B.N. Ltd (2004) 12 NWLR Part 888, page 663, where Belgore, J.S.C., (as he then was) stated that in statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct. The case of Yusuf vs. Union Bank of Nig. Ltd (1996) 6 NWLR Part 457 page 632 was referred to therein, where Wali, J.S.C., expressed at pages 214 - 215 thus: "it is not necessary, nor is it a requirement under the common law, that the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality... To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him." Onu, J.S.C., further stated that since the Appellant has been confronted with the accusations and he was given opportunity to explain and the explanation showed that he had no satisfactory answer to the accusation and, on the authority of Yusuf vs. Union Bank of Nigeria Ltd. (supra); Nwobosi vs. A.C.B. Ltd (1995) 6 NWLR Part 404 page 658 at 586, it was not necessary for the Respondent to initiate criminal prosecution before taking disciplinary measures against him by summarily dismissing him where the Appellant's misconduct undermined the relationship of confidence which should exist between the Appellant and his employer." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 72-73, paras. C-D) |
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LABOUR LAW - DISMISSAL OF AN EMPLOYEE: Whether employer in a master and servant employment relationship can dismiss his employee without first telling him what is alleged against him and hearing his defence or explanation |
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"It is also necessary to note the observations of the Supreme Court in Olarewaju vs. Afribank (Nig) Plc. (2001) 13 NWLR Part 731- page 691, where Katsina Alu, J.S.C., (as he then was) expressed at pages 708 at 714 as follows: where, therefore, an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted above, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. "The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. What this means is this. In this class of cases an officer's appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice. " Further, in Texaco Nigeria Plc vs. Alfred G. Adegbile Kehinde (2001) 6 NWLR Part 708 Page 224 at 228-229, Onnoghen J.C.A (as he then was) stated that whether the dismissal is lawful or unlawful, in a purely master and servant situation it has brought the relationship to an end. The relationship was brought to an end, and too, the Court cannot force a wiling servant on an unwilling master." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 73-74, paras. D-E) |
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LABOUR LAW - DISMISSAL OF AN EMPLOYEE: What is the effect where an employee's dismissal is found to have been wrongful or null and void |
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"Where an employee is found to have been wrongfully dismissed, the dismissal is complete and it cannot be held that the employee was still in the employment of his employer. On the other hand, where the dismissal is invalid or void, as for instance where it is purportedly done by a person who does not have the power to dismiss, there is no dismissal. See Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 page 25 at 28 ratios 3 and 4." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 79, paras. C-F) - read in context |
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8 |
LABOUR LAW - DISMISSAL OF AN EMPLOYEE: When is a dismissal "wrongful", "null and void" |
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"A dismissal is "wrongful" when an employer did not follow a laid down procedure in dismissing an employee. A dismissal is "null and void" when an employee is dismissed from his employment by a body other than his employer or the person who has power to dismiss him." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 79, paras. B-C) -read in context |
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COURT - DUTY OF COURT: When does the court have duty to order reinstatement of an employee |
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"In fact by law the Court has a duty to order reinstatement, once it finds that the contract of employment enjoyed Statutory flavour. ADEJEMIWA VS. OGUN STATE COLLEGE OF EDUCATION (2000) ALL FWLR (Pt. 456) 11804." Per MBABA, J.C.A. (P. 41, paras. A-B) - read in context |
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COURT - DUTY OF COURT: Whether it is the court that has the duty to determine the question whether a contract of employment is governed by statute or not |
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"So, the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or of the relevant statute. The duty so to construe is the exclusive preserve of the Courts. See Iloabachie vs. Phillips (2002) 14 NWLR Part 787 page 264. The onus lies strictly on the Plaintiff i.e., the employee to supply the Court with facts tending to establish that his said appointment with the Defendant was governed by statute. The court is not entitled to look outside the contract of service as to the terms and conditions. They must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract as the case may be." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 60, paras. A-D) - read in context |
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LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: Whether the fact that an employer is a creation of statute or that the government has shares in it, will elevate its employment to one of statutory flavour |
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"The law had been repeatedly stated by the apex Court that the mere fact that an employer is a creation of statute or that it is a statutory body or a statutory corporation, or that the government has shares in it does not elevate its employment to one of statutory flavour, nor without more, raise the legal status of its employees over and above the normal common law master and servant relationship. Further, the fact that a person is a pensionable Federal Public Servant does not mean that his contract of employment is protected by statute. Rather, there has to be a linkage or nexus between the employee's appointment with the statute creating the employer or corporation. See cases of Iyase vs. U.B.T.H.M.B (2000) 2 NWLR Part 643 page 45; Igwilo vs. CBN (2000) 9 NWLR Part 672 page 302; U.B.T.H.M.B vs. Dawa (2001) 16 NWLR Part 739 page 424; and Olatunbosun vs. NISER (1998) 3 NWLR Part 80 page 25;" Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 45, paras. B-F) - read in context |
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LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: Conditions to be satisfied before an employment can be said to be with statutory flavour |
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"Before such employment can be said to have enjoyed statutory flavour, the Act governing the employment and the regulations made pursuant to the said Act must be expressly incorporated into the contract existing between the parties. It is such incorporation that gives rise to special treatment by way of statutory or legal flavour in the event of the Master deciding unilaterally to terminate the appointment of servant: See Alhassan vs. A.B.U., Zaria (2011) NWLR Part 1259 page 417. For further elucidation, it is stated that a servant with a legal or special status covers an employee whose employment is governed by the provisions of the Constitution or by the Civil Service Rules made pursuant to the Constitution." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 67, paras. B-F) - read in context |
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LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: The ingredients that must exist before a contract of employment may be said to import statutory flavour |
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"Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavour include the following: 1. The employer must be a body set up by statute. 2. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline" Peter-Odili J.S.C., went further to state: "In a similar vein and in the same case of Idoniboye-Obu vs. N.N.P.C. (supra) at 1004, Niki Tobi, J.S.C cited with approval, the opinion of Karibi-Whyte, J.S.C. in Imoloame vs. W.A.E.C. (1992) 9 NWLR Part 265 303 at 317, paragraphs C-E, added another feature in these words. "There is an employment with statutory flavour when the appointment and termination is governed by statutory provisions... it is now accepted that where the contract of service is governed by the provisions, they invest the employee with a Legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 46, paras. A-F) - read in context |
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LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: The nature of employment with statutory flavour |
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COURT - JURISDICTION: Whether court has the jurisdiction to interpret a contractual document to favour a party outside the terms and conditions provided in the documents |
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"It is well established that a court has no jurisdiction to interpret or construe contractual documents more favourably to a party outside the terms and conditions provided in the documents. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See Daodu vs. U.B.A Plc (2004) 9 NWLR Part 878 page 276 at 279, per Adekeye, J.C.A., (as she then was)." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 60, paras. E-G) - read in context |
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DAMAGES - MEASURE OF DAMAGES: What is the measure of damages in a claim for wrongful dismissal |
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"In a claim for wrongful dismissal the measurement of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract (See Beckham VS. DRAKE (1849) 2 HCC 579 at 607 - 608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal." Per UWAIS JSC, as he then was. (Who also relied on the English case of DENMARK PRODUCTION LTD VS. BOSCOBEL PRODUCTIONS LTD (1968) 1 ALL ER. 513 AT 524, where it was had that:" As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course instigate those damages as far as he reasonably can." Per MBABA, J.C.A (P. 40, paras. B-G) -read in context |
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DAMAGES - MEASURE OF DAMAGES: The measure of damages to be awarded, to a servant whose employment is unlawfully terminated |
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"A servant would only be paid for the period he served his master and, if he is dismissed, all he gets as damages is the amount he would have earned if his appointment had been properly determined. The servant is to be paid all his salaries and entitlements up to the date of his dismissal. Thereafter, he is to be paid a month's, two months, three months' salary and other entitlements in lieu of notice depending on the terms and conditions of service between the parties. Where no period of notice is stipulated or agreed upon by the parties, the law stipulates that he be given reasonable notice. See Isong Udofia Umoh vs. Industrial Training Governing Council (2001) 4 NWLR Part 703 page 281 at 300-301, per Edozie J.C.A (as he then was), in which the Supreme Court case of Professor Dupe Olatunbosun vs. NISER Council (1988) 3 NWLR Part 80 page 25, was referred to and in which Oputa J.S.C cited with approval the dictum of Harman L. J. In Denmark Production Ltd. vs. Boscobel Production Ltd. (1968) 1 All ER 513 at p. 524." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 76-77, paras. D-B) - read in context |
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DAMAGES - MEASURE OF DAMAGES: What is the measure of damages to be awarded to an employee whose employment is unlawfully terminated in a contract of employment which is of the ordinary nature other than one with statutory-flavour |
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"In a contract of employment which is of the ordinary nature other than one with statutory-flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period's salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end. The measure of damages, therefore, will be the salary which the employee would have earned during the period of notice. See also McGregor on Damages, 17th Edition at page 937 paragraphs 28-002 and 28-003. Also, in Ibama vs. S.P.D.C (Nig) Ltd (2005) 17 NWLR Part 954 page 364, Onnoghen J.S.C., expressed that in cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master behavior is wrong. For his wrongful act, he is only liable in damages and nothing more." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 77-78, paras. B-A) - read in context |
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COURT - POWER OF COURT OF APPEAL: Whether the Court of Appeal has powers to enter such decision which a trial Court was entitled to make in a case in the interest of Justice |
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"Section 15 of the Court of Appeal Act, 2011, as well as Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011, allow this Court powers to enter such decision which the trial Court was entitled to make in the case in the interest of Justice, See the Case of AFRIBANK VS. YELWA (2011) 12 NWLR (Pt.1261) 286 at, or (2011) ALL FWLR (Pt.586). I think this is an appropriate circumstance to invoke the powers of this Court, under the law, to do substantial justice. HAS Nig Ltd Vs. KEAZOR (2011) 13 NWLR (Pt.1264) 320 at 260; OKONKWO VS. FRN (2011) 11 NWLR (Pt.1258) 215." Per MBABA, J.C.A (Pp. 40-41, paras. E-A) - read in context |
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ACTION - RELIEFS: Whether it is proper to claim, in an action for unlawful termination of employment other than employment with statutory flavour, the relief that the dismissal is unlawful, ultra vires, null and void |
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"Turning to the reliefs claimed by the Plaintiff, it is of great necessity to state at this juncture that it is only in employments under statute or which have statutory flavour that a dismissal can be said to be unlawful, ultra vires, null and void and of no effect, that the purported dismissal was not done by the correct officer designated to do the termination or dismissal, or that the correct procedure stipulated in the enabling statute was not followed. In all other cases which have no statutory flavour, all the Court can say is that the dismissal is wrongful. See CCB (Nig) Ltd vs. Okonkwo (2001) 5 NWLR Part 735 page 114 at 118 ration 2." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 78-79, paras. F-A) - read in context |
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LABOUR LAW - REMEDY FOR UNLAWFUL TERMINATION OF EMPLOYMENT: What is the remedy available to an employee in a master/servant relationship whose employment is terminated unlawfully |
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"Being an ordinary master and servant relationship in my view, the Respondent's remedy lies in the award of damages, and not on reinstatement. A termination of a contract of service, whether lawful or unlawful, brings to an end the relationship of master and servant." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 76, paras. B-D) -read in context |
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LABOUR LAW - REMEDY FOR UNLAWFUL TERMINATION OF EMPLOYMENT: What remedy should a court provide for the termination of employment with statutory flavour held to be null and void |
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"I think this was a clear case for order of re-instatement, since the employment was proved to be one with statutory flavour and it was established that the purported dismissal was null and void, therefore, meaning that in the eye of the law, the dismissal never occurred, and the Respondent's employment was never interrupted. To hold that Respondent be paid for loss of earning, in the circumstances, was strange as that would give the Respondent only what he earned a month for one year and it would mean, giving him wages for what he did not work! A servant cannot claim wages for services he never rendered. See the case of OLATUNBOSUN VS. NISER (1988) 3 NWLR (Pt. 80) 25 at 55. I think, in the circumstance, an order for reinstatement of the Respondent would be more appropriate, not payment of N12,493.00 annually (the Salary he earned per month at the time of the purported dismissal) up to the age of retirement!" Per MBABA, J.C.A (Pp. 39-40, paras. E-B) -read in context |
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