In The Supreme Court of Nigeria
On Friday, the 23rd day of June, 2017
Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
JOHN OFORISHE –Appellant
NIGERIAN GAS COMPANY LTD –Respondent
OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): This is an appeal from the Court of Appeal (Benin Division) in which the judgment of a Delta State High Court, (Effurun) on appeal was allowed. The appellant as plaintiff sued the respondent as the defendant on a writ of Summons and amended Statement of claim for:1. A declaration that the purported termination of plaintiffs contract of service from the defendant which said decision was taken by the Board of Directors of defendant at Ekpan within the jurisdiction of this Hon. Court and which said decision was communicated to plaintiff vide letter of Termination of Appointment Ref. No. NCC/APD/WR37 dated 18 December, 1991 is null, void and of no effect whatsoever in that the same is contrary to and inconsistent with plaintiffs contract of service with the Defendant and a contravention of plaintiffs fundamental right to fair hearing.
2. A declaration that the termination of plaintiffs appointment from the service of the defendant was based on the report of the Panel of investigation set up in respect of the incident at WOD office, Ughelli.
3. An Order of perpetual injunction restraining the defendants by themselves, all officers servants and/or agents from giving effect to and/or acting on the purported letter of termination and for the defendant to reinstate plaintiff unto his position of employment and payment thereof of all arrears of salaries, allowances and benefits attached to the said post before the purported termination.
IN THE ALTERNATIVE
An order compelling the defendant to pay all plaintiffs salaries, retirement benefits and allowances as stated above from the date of alleged termination till December, 2004 when plaintiff would have retired from the services of defendant at the age of 60 years at the current salary structure and allowances operating in the defendant.
A further amended statement of defence was filed on 7 June 1995. Trial commenced on 3 May, 1995. The plaintiff gave evidence and closed his case on 8 March 1996. A sole witness, Hayatu Y. Jauro, an employee of the respondent gave evidence on behalf of the respondent. Twenty-two documents were tendered and admitted as exhibits.
In a considered judgment delivered on 9 October, 1997, the learned trial judge gave judgment in favour of the plaintiff and against the defendant thus:
1. A declaration that the purported termination of plaintiff contract of service from the defendant which said decision was taken by the Board of Directors of defendant at Ekpan within the jurisdiction of this Honourable Court and which said decision was communicated to plaintiff vide letter of termination of appointment Ref. No. NGC/APD/WR37 dated 18 December, 1991 is null and of no effect whatsoever.
2. A declaration that the termination of plaintiffs appointment from the service of the defendant was based on the report of the Panel of investigation set up in respect of the fire incident at WOD office, Ughelli.
3. An Order of perpetual injunction restraining the defendants by themselves, all officers, servants and/or agents from giving effect to and/or acting on the purported letter of termination. The defendant is to reinstate the plaintiff unto his position within 30 days from todays date and to pay the Plaintiff of all arrears of salaries allowances and benefits attached to the said position before the purported termination.
Costs of N800.00 was awarded in favour of the plaintiff. The main relief was granted. The alternative prayers were not considered.
Dissatisfied with the judgment of the trial Court, the respondent as appellant lodged an appeal. The appeal was heard by the Benin Division of the Court of Appeal. That Court in a well considered judgment upset the judgment of the trial Court. The penultimate paragraph reads:
In the result, this appeal succeeds and it is allowed. I set aside the judgment of the Effurun High Court in suit No. W/98/92 delivered on 9 October 1997 and the costs awarded therein.”
This appeal is against that judgment. In accordance with the Rule of this Court briefs were filed and exchanged. The learned counsel for the appellant filed the appellants brief on 27 March 2017, while learned counsel for the respondent filed an amended respondents brief which was deemed properly filed and served on 27th March, 2017.
Learned counsel for the appellant formulated four issues for determination:
1. Is there no distinction in seeking for a declaration as to the reasons for termination of appointment and the motive for termination of appointment?
2. Is it the law that apart from employment with statutory flavor a Court cannot in any other circumstances grant a relief for reinstatement of a terminated worker?
3. Did the appellant prove that his termination was wrongful despite reference made by the trial judge to original pleading of the respondent which were later amended?
4. Is the appellant entitled to any other damages apart from the one month salary in lieu of Notice, including his entitlement to gratuity and pension.
On the other side, learned counsel for the respondent formulated two issues for determination.
1. Whether the termination of the plaintiffs employment by the defendant is lawful.
2. Even if the termination is unlawful, which is denied, what would be the plaintiffs remedy?
A diligent examination of the pleadings and evidence led in the trial Court reveals that the appellant complains that his employment with the respondent was brought to an end unlawfully and he was denied his entitlements. After examining the issues formulated by both sides I am satisfied that the issues formulated by the respondent are to be preferred.
They shall be considered for the determination of this appeal.
At the hearing of this appeal on 27 March 2017, learned counsel for the appellant O. Egbon Esq. adopted the appellants brief filed on 27th March 2017, and in amplification, observed that the appellant is entitled to gratuity after working for five years. He further observed that the appellant should be paid other entitlements. He urged this Court to allow the appeal.
On his part, learned counsel for the respondent, L.A.O Nylande esq. adopted the amended respondents brief filed on 27 March 2017 and observed that the appellant was offered his entitlement but he refused to collect it. He further observed that there is no claim for Gratuity in the appellants brief. He urged this Court to dismiss the appeal.
The facts are not in serious dispute. Nigerian National Petroleum Company (NNPC) is the parent company of the respondent. The appellant was employed by NNPC in 1983 and thereafter deployed to the respondent, (after its incorporation) as a Security Guard.
On 18 January 1991, the appellant was informed by the radio operator of the respondent of a fire outbreak in the convenience opposite the radio room. The appellant and his colleagues rushed to the scene of the fire, but were unable to put out the fire, since all the fire extinguishers were empty.
Subsequently, the respondent set up a Panel to investigate the unfortunate inferno. The Panel indicted the appellant. He was suspended and queried. A review Committee set up to review the findings of the Panel also indicted the appellant and recommended that his services be terminated. The Board of Directors of the respondent met and approved the recommendation of both bodies. On 18 December 1991 the respondent addressed a letter to the appellant, (Exhibit K). Extracts from the letter reads:
Dear Mr. Oforishe
TERMINATION OF APPOINTMENT
This is to inform you of Managements decision that your services with the Nigerian Gas Company Limited (A subsidiary of Nigerian National Petroleum Corporation) are no longer required with effect from today, Wednesday 18 December,1991. You should please handover immediately all Corporations property in your possession including Official documents, moveable assets and your identity card to your Head of Section and obtain from him a clearance letter confirming your compliance with this requirement.
By a copy of this letter, Finance and Accounts Department is being advised to pay you one months salary (less your indebtedness, if any) in lieu of notice.
Please note that the terminal entitlement will only be paid on presentation of the clearance letter mentioned above.
For: Nigerian Gas Company Ltd.
Signed: H.Y. Jauro
For: Head, APD.
On these facts, the learned trial judge found that the termination of the appellant was unlawful and granted the appellant his claim in toto. The Court of Appeal on the other hand upset the judgment of the trial Court and dismissed the appellants claim, holding that the termination of the appellants appointment was in the terms of contract, Exhibit N. Now, to the issues in this appeal.
Whether the termination of the plaintiffs employment by the defendant is lawful.
Learned counsel for the appellant argued that this is not the ordinary master and servant case, in view of the facts pleaded, proved and admitted. Reference was made to paragraphs 1, 2, 5 and 32 of the amended statement of claim.
He submitted that since the respondent admitted that the appellants appointment is permanent and pensionable it means that he enjoys security of tenure and he cannot be terminated without just cause such as misconduct. He argued that all the elements of statutory flavor are in Exhibit N, the contract of service.
He submitted that failure to pay the appellant his one month salary in lieu of notice at the time of termination makes the termination wrong. Reliance was placed on Chukwumah v Shell Petroleum (1993) 4 NWLR (Pt. 289) p. 512. He further submitted that the trial Court was right to order for reinstatement. He urged this Court to hold that the termination of the appellants employment by the respondent is unlawful and wrong.
Learned counsel for the respondent observed that Exhibit N, the junior Staff Handbook is the binding document governing the relationship between the parties, further observing that by clause 15.1.2 of Exhibit N either party can lawfully bring the relationship to an end with good or bad reason or without reason. Reliance was placed onDudusola v Nig Gas Co. Ltd (2013)p 423; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) p. 599.
He submitted that the appellant is entitled to one months salary in lieu of notice and not reinstatement.
In conclusion he urged this Court to hold that the termination of the appellants appointment was lawful, having complied with Exhibit N.
Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract. See A.G Rivers State v. A.G Akwa-Ibom State (2011) 3 Sc p. 1 Uwah & Anor v. Akpabio & Anor (2014)2-3 SC p1 ; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) p. 492;Union Bank Nig Ltd v. B.U. Umeh & Sons Ltd (1996) 1 NWLR (Pt. 426) p. 565.
A contract of master and servant may be either subject to statutory or common law rules. Contracts with statutory flavor are contracts where the employer is created by statute. Such contracts are governed by the statute which creates the employer. e.g In Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) p. 599, Act No. 3 of 1967 creates the University of Lagos. It is that statute that governs employer employee contract.
A contract is one with statutory flavor where the conditions for appointment and bringing the contract to an end are governed by an enabling statute. It follows naturally that a valid appointment or determination of the contract must satisfy provisions in the statute.
On the other hand contracts of master and servant without statutory flavor are classified as ordinary contract of service. Such contracts are governed by an employee Handbook where the conditions of service are spelt out.
The master can terminate the service of the employee with, or without reasons, intention and motive for termination of employment is never considered by the Courts. They are irrelevant. Termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with. In contracts with statutory flavor where the termination of employment of an employee is found to be wrong, the Court may order specific performance of the contract, injunction or reinstatement. These are not available to employees whose appointments are terminated in simple contracts of master and servant. The remedy for unlawful termination of employment is to sue for damages and the employee must mitigate those damages. See Olatunbosun v NISER Council (1988) 19 NSCC (Pt. 1) p. 1025.
Exhibits A and B show that the appellant is a security guard. A junior staff in the employment of the respondent. The pleadings are clear in that this is a case of master and servant and Exhibit N, the junior staff handbook contains the conditions of service. This is the binding document governing the relationship between the parties. Exhibit N has no statutory flavor and the appellant never pleaded that the contract of employment is one with statutory flavor, neither did he lead evidence that his appointment has statutory flavor.
The Court of Appeal found that the employment of the appellant was lawful when it said:
.. I have read Exhibit N carefully and I am convinced that the condition of service provide for one month salary in lieu of notice. Clause 15.1.2 of Exhibit N states that employment may be terminated by giving one month notice or one month salary in lieu of notice. It is therefore my conclusion . that the respondent was entitled to terminate the appellants service at anytime with or without stating reason under the terms of the contract agreed to by the parties.
Before coming to the finding above the Court of Appeal examined clause 15.1.1 and 15.1.2 of Exhibit N.
Clause 15.1.1 of Exhibit N states that:
An employee shall be free at any time, with or without stating any reason to resign his appointment with the Corporation upon giving the notice.
The corporation has a reciprocal right to terminate an employees appointment upon giving him due notice. Due notice for the purpose of this paragraph is as follows:
Junior Staff 1 month
15.1.22 payment in lieu of Notice.
Any employee may resign his appointment by paying the equivalent amount of his basic salary to the Corporation in lieu of notice. Similarly, the Corporation will pay the sum equal to the basic salary of an employee in lieu of notice of termination of appointment.
A diligent examination of clauses 15.1.1 and 15.1.2 of Exhibit N reveals that either party has a reciprocal right to bring the contract of employment to an end with or without reasons by simply giving one month notice with salary in lieu of notice. I am satisfied that the respondent complied with the relevant provisions supra, and so the appellants employment with the respondent was lawfully terminated.
According to the appellant, since his termination he has not been paid his salary till date. The position of the law is that where a contract of service gives a party a right of termination of the contract by either party, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. Where this is not done the termination of the appellants employment would be unlawful. See Chukwumah v. Shell (1993) 4 NWLR (Pt. 289) p. 152.
Exhibit K is the letter terminating the appointment of the appellant. Relevant extracts from Exhibit K reads:
.. By a copy of this letter, Finance and Accounts Department is being advised to pay you one months salary (less indebtedness, if any) in lieu of notice.
Please not that the terminal entitlement will only be paid on presentation of the clearance letter mentioned above.
For: NIGERIAN GAS COMPANY LIMITED.
Sgd. H.Y. Jawoo.
For: Head, APD.
Exhibit K is dated 18 December, 1991. It was on that day that the appellants employment with the respondent was terminated. For the termination of the appellants employment to be lawful he must be paid one months salary on 18 December, 1991. He has not been paid till today, so says the appellant. As at 18 December 1991 one months salary which was due to the appellant was available for collection as per Exhibit K. Failure of the appellant to collect the said sum is no fault of the respondent. Rather the appellant never wanted to collect it because he was always of the view that the termination of his employment was wrong and that he was entitled to be reinstated. In the circumstances the termination of the appellants employment with the respondent was lawful.
Even if the termination is unlawful, which is denied, what would be the plaintiffs remedy?
Learned counsel for the appellant observed that the termination of employment of the appellant under the clause 15.1.1. of Exhibit N was wrong
since no reason was given for the termination.
He submitted that the appellant is entitled to gratuity and pension to retirement age 60 years, urging this Court to allow the appeal and restore the judgment of the trial Court.
Learned counsel for the respondent observed that the appellant is entitled to one months salary as provided by clause 15.1.2 in Exhibit N. He further observed that the appellant is not entitled to gratuity and pension since he never claimed it, and in any case he is not entitled to it even if he claimed it. Reference was made to Exhibit N. Afrotech v. Mia & Sons Ltd (2002) 12 SC (Pt. ii) p.1.
He urged this Court to dismiss this appeal.
After amendment of pleadings by both sides, the final pleadings were the amended statement of claim filed on 3 May 1995 and the further amended statement of defence filed on 7 June, 1995. The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties. The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi & Ors v. MC Gregor 1974 II SC p. 133; CGDG (Nig) Ltd & Anor v Idorenyim (2015) 56 SC (Pt II) p. 1.
If pleadings are to be of any use parties must be bound by them. See Agu v. General Oil Ltd (2015) 4-5 SC (Pt. 1) p. 69; Ogundalu v Macjob (2015) 3-4 SC (Pt. ii) p. 1.
The amended statement of claim filed pursuant to Court order dated 3 May 1995 and filed on 3 May 1995 contains thirty-five paragraphs. There is no averment in the pleadings to support a claim for gratuity and pension and in none of these paragraphs are the words gratuity pension mentioned or even remotely referred to. I am satisfied that the appellant never pleaded gratuity and pension.
It is in the appellants brief that learned counsel for the appellant made lengthy submissions in support of gratuity and pension for his client.
I must remind counsel that the main purpose for address is simply to assist the Court.
Cases are decided not on address or alluring closing speeches but on credible evidence. So no amount of brilliant address can make up for lack of evidence to resolve any issue before the Court. See Niger Construction Ltd v. Okugbemi (1987) 4 NWLR (Pt. 67) p. 787;
N.E.W. Ltd v. Denap Ltd (1997) 10 NWLR (Pt. 525) p. 481 Okuleye v Adesanya (2014) 6-7 SC (Pt. 1) p. 1.
The submission of learned counsel for the appellant on gratuity and pension amount to a futile exercise since it was not pleaded.
This brings me to whether this Court can determine an issue not raised and determined by the trial Court.
An issue which was not raised and determined by the trial Court cannot be raised as an issue for determination in an Appeal Court. The reason is simple. Such an issue is incompetent, since an Appeal Court considers only issues heard by the trial Court or with leave of the Court. In the trial Court the appellant gave evidence but did not give evidence on his right to gratuity and pension.
It was only in his address that appellants learned counsel Mr. Akponudje said:
.. even if the procedure for terminating the plaintiffs appointment as laid down in Exhibit N has been followed, the plaintiff would be entitled not merely to one months salary but to pension and gratuity..
The trial Court did not consider the issue of gratuity and pension in relation to the appellants claim rather the trial Court held that the termination of the appellants employment was null and void and ordered that he be reinstated.
The law is long settled that where the Court grants the main reliefs claimed, it should not consider the alternative
relief claimed in the suit.
In this case, the Court granted the appellants main relief. There was thus no need to consider the alternative reliefs. If the alternative reliefs were considered and granted it would amount to double compensation and that would be wrong in law.
I now turn to the correct entitlements due to the appellant.
This is what the Court of Appeal said:
It seems to me that clause 15.1.2 of Exhibit N which states the employment may be terminated by giving one month notice or salary in lieu is binding on the parties. All the respondents (appellant) can get as damages by the agreement, Exhibit N, binding the parties is one month salary.
Exhibit K is the letter that terminated the employment of the appellant. It reads:
18 December, 1991
Mr. Oforishe, J.
(ID. No. 10433)
Through Head, WOD
Nigerian Gas Company Ltd,
Dear Mr. Oforishe
TERMINATION OF APPOINTMENT
This is to inform you of Managements decision that your services with the Nigerian Gas Company Limited (A subsidiary off Nigerian National Petroleum Corporation) are no longer required with effect from today, Wednesday 18 December,1991. You should please handover immediately all Corporations property in your possession including Official documents, moveable assets and your identity card to your Head of Section and obtain from him a clearance letter confirming your compliance with this requirement.
By a copy of this letter, Finance and Accounts Department is being advised to pay you one months salary (less your indebtedness, if any) in lieu off notice.
Please note that the terminal entitlement will only be paid on presentation of the clearance letter mentioned above.
For: Nigerian Gas Company Ltd.
Signed: H.Y. Juaro.
For: Head, APD.
Exhibit N is the binding document governing the relationship between the parties. Clause 15.1.2 in Exhibit N states that employment may be terminated by giving one month notice or salary in lieu of Notice. There can be no doubt whatsoever that since the appellant was offered one months salary in lieu of notice the respondent complied with the clause 15.1.2. The correct entitlements, that is one months salary was made available to the appellant. This is not a contract of master and servant with statutory flavor. On the contrary this is the ordinary master and servant case where the contract binding the parties is Exhibit N. The employee Handbook. (conditions of service).
In an ordinary contract of master and servant, i.e a contract without statutory flavor a master can terminate the appointment of the servant without giving any reasons and his motive is an irrelevant consideration.
The relief for reinstatement of a terminated worker is only available where the contract is one with statutory flavor. There is no element of statutory flavor in Exhibit N, the contract of service since, Exhibit N is not a statute.
The High Court was wrong to order reinstatement and the Court of Appeal was correct to set aside that judgment and state the correct position of the law which is affirmed by this Court.
In the end the appeal is dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned OLABODE RHODES-VIVOUR JSC just delivered which I adopt as mine in dismissing the unmeritorious appeal. I abide by the consequential orders made in
the lead judgment.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Rhodes-Vivour, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with the reasoning and conclusion.
AMIRU SANUSI J.S.C.: I was obliged with copy of draft of the judgment prepared by my learned brother Rhodes-Vivour JSC just delivered. I am in tandem with his reasoning and conclusion that this appeal is devoid of merit. I accordingly dismiss it. I have nothing useful to add. Appeal dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Rhodes-Vivour JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. My Learned brother as usual, adequately resolved all the issues submitted for determination of this appeal. The Appellant admitted his amended statement of claim at the trial Court that he was employed as security guard by the Nigerian National Petroleum Corporation (NNPC) in 1983 and was subsequently deployed to the Respondent herein. This fact confirmed by Exhibits A and B which are letters of employment and confirmation of appointment respectively. By the contents of Exhibit A. It is very clear that the Appellant’s conditions of service are not covered by statutory provisions. Conditions of service are said to have statutory flavour, where they are expressly set out by statute or statutory regulations made under a subsidiary regulation, such as Civil Service Rules which must be enacted by the parliament or any law making body as a schedule to an Act or law or as a subsidiary legislation in the instant case, the conditions under which the Appellant was employed are contained in the junior Staff Handbook, Exhibit N which were drawn up by the Board of Director of NNPC. They therefore have no statutory flavour.
This being so, the Appellant’s employment falls within the common law principle of master and servants. See Idoniboyeobu v NNPC (2003) 2 NWLR (Pt. 805) 589: Fakuade v OAUTH Comp. Mangt. Board (1993) 5 NWLR (Pt. 291) 47.
Under the common law an employer is entitled to bring the appointment of his employee to an end for any reason of no reason at all. So long as the employer acts within the terms of the employment, his motive for doing so is irrelevant.
In case of a breach of the terms of the employment, the employees remedy lies in damages calculated on the basis of what he would have earned for the period of notice agreed for ending the employment. See Commissioner of Works, Benue State v. Devcon Ltd (1988) 3 NWLR (Pt. 83) 407; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111; Chukwuma v Shell Petroleum Dev. Co. of Nigeria Ltd (1993) 4 NWLR (Pt. 298) 512. Where an employee complains that his employment has been wrongfully terminated, he has the onus to prove the wrong by-
(a) Placing before the Court the terms and conditions of the contract of employment; and
(b) Proving in what manner the said terms were breached by the employer.
The terms of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination. Even at this, as I have stated elsewhere, the remedy available for breach lies in damages only. This is so because a private limited liability company or any employer of labour like the Respondent in the instant appeal does not have any obligation to retain the Services of any unwanted employee and may terminate the appointment of the employee without any reason.
The Court of Appeal in its judgment held:-
“I have read Exhibit N carefully and I am convinced that the condition of service provide for one month salary in lieu of notice, Clause 15.1.2 of Exhibit N states that employment may be terminated by giving one month or one month salary in lieu of notice…. it is therefore my conclusion……. that the respondent was entitled to terminate the appellants service at any time with or without stating reason under the terms of the contract agreed to by the parties.”
Parties are bound by the agreement they freely entered into. Clause 15.1.1. and 15.1.2 of Exhibit N have been reproduced in the lead judgment. The respondents action in terminating the employment of the appellant has not breached the terms of the agreement executed by the parties in this appeal. I entirely agree with the lower Court that the Appellants employment with the Respondent was lawfully terminated. By the terms of the agreement, the appellant is entitled to one month salary in lieu of notice. This money according to the available evidence is ready and it is the appellant who refused to collect the money. It therefore not the fault of the Respondent that the Appellant has not been paid.
For these few words and the more detailed reasons in the lead judgment, I find no merit in this appeal. Accordingly same is hereby dismissed for lack of merit
MR. ONOME EGBON with him, O. C Eze. For Appellant
MR. L.A.O NYLANDER. For Respondent