IN THE SUPREME COURT OF NIGERIA
On Friday, the 28th day of January, 1977
Before Their Lordships
UDO UDOMA….. Justice, Supreme Court
CHARLES OLUSOJI MADARIKAN….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ALRAINE (NIGERIA) LIMITED
In the result, this appeal is allowed
LABOUR LAW – Termination of contract of employment – When the employer alleges misconduct – Duty of the court thereof
“. Per MADARIKAN, J.S.C. at P. 5, Para. E.
In the Lagos High Court in suit No. LA/567/73, the plaintiff (now respondent) claimed against the defendants (now appellants and hereinafter referred to as the company) the sum of N4,000.00 for unlawful termination of the plaintiff’s employment. The amount was made up as follows:-
“3 months salary in lieu ……….. notice N148.60
1 month pay in lieu of leave 49.20
General Damages 3,802.20
By a letter of appointment (Exhibit A), the company appointed the plaintiff as a Store Assistant on permanent basis with effect from the 1st January, 1969, on a salary of 162pounds per annum. His appointment was confirmed on the 1st April, 1969, and he was given a rise of 44pounds in his salary as from the 1st July, 1970. On the 1st January, 1971, his salary was increased to 217pounds per annum and he was awarded 1pounds as bonus for 1970.
As a result of Adebo Salary Award, his salary was converted to 277 pounds per annum on the 1st September, 1971 and subsequently his salary was revised to pounds283 per annum on the 1st January, 1972 and he was again granted 1pounds award as bonus. His salary was again increased on the 1st January, 1973 to N598 per annum.
In April, 1973, the plaintiff prepared a voucher for some workmen. The voucher was for N120.00 whereas the correct amount ought to be N12.00. The voucher was checked and passed by two officers who were senior to the plaintiff and neither of them detected the error. The plaintiff was issued a query (Exhibit F) to which he gave an answer (Exhibit G.) We Now reproduce Exhibits F and G:-
“ALRAINE (NIGERIA) LIMITED
Shipping-Stevedoring-Marine Services Clearing and forwarding-brokerage-chartering transit-warehousing-airfreight transport-container operators.
Our Ref: IKU/EFA/PC-157/31
Your Ref: 18th April, 1973
Mr. Monday A. Esthiett,
Alraine (Nigeria) Ltd., Apapa.
Dear Mr. Eshlett,
Will you please explain within 48 hours of receipt of this query, why you should not be disciplined for inflating overtime claimed on a voucher dated 10th April, 1973 for 8 men working from 7.30 a.m. to 7.45 p.m. by N108.00 (one hundred and eight naira).
Alraine (Nigeria) Ltd.
Sgd. Isaiah K. urhoma
Ag. Personnel/Administrative Manager
cc: General Manager, Clearing
“Monday Akpan Eshiett,
Alraine (Nigeria) Limited, Apapa.
The Personnel/Administrative Manager,
Alraine Nigeria Limited, Apapa.
With reference to your query dated 18th April, 1973 and have to state as follows:-
On the day in question I sent 8 men to offload lorry at Philips Factory at Ikorodu Road and they worked from 7.30 a.m. to 7.45p.m. and it was eventually agreed by my Superior Officers that each of them should be paid N1.50.
During the process of my preparing the vouchers I erroneously entered 120 as figure but forgot to put a dot between 12 and zero to indicate N12.0 in fact this was due to pressure of customers who were eagerly waiting on me to attend to them on the day in question. As a store keeper, goods worth thousands of pounds are kept in by trust and it is never my aim and it will never by my aim to be dishonest and I very much regret this great error and would implore Management not to think otherwise about the ugly situation.
(Sgd.) Monday Eshiet”
The company was not satisfied with his explanation and he was dismissed summarily and with immediate effect by a letter (Exhibition H) dated 21st April, 1973, which we also reproduce:-
Dear Mr. Eshiett
With reference to our query IKU/EFA/PC-157/31 of 18th April, 1973, and your reply (undated), we regret to inform you that your explanation for inflating the wages of 8 men working from 7.30 a.m. to 7.45 p.m. by N108 (one hundred and eight naira) has been carefully considered and found unsatisfactory.
You are, therefore, summarily dismissed with immediate effect.
You will, please, report to our Accounts Department who, on the authority of this letter will pay your dues as follows:-
(1) Salary up to and including 24th April, 1973.
(2) 20 days’ pay in lieu of leave, subject to deductions for any monies you may be owing the Company.
Alraine (Nigeria) Limited,
(Sg.) Isaiah K. Urhoma
Ag. Personnel/Administrative Manager
These were the salient facts upon which the claim was based.
In a reversed judgment, the learned trial judge (Johnson, J.) reviewed the fact and stated that the questions to be determined were:-
(1) Whether the dismissal of the plaintiff in the circumstances revealed by the facts before the Court was justified or not?
(2) If not, to what measure of damages is the plaintiff entitled?”
On the first question, the learned trial judge came to the following conclusion:-
“The error committed by the plaintiff on Exhibit L may well be classified as an act of negligence; but as this is an isolated instance in five years of service which could be brought against him, I find it difficult to come to a conclusion that this isolated error could qualify as a serious neglect to justify his summary dismissal”.
and awarded N1,244.60 as special and general damages. It appears to us that there is an arithemetical error here. The figure should read N1,344.60 as the learned judge had ordered earlier in the judgment that the plaintiff be paid
N 148.6 as three months salary in lieu of notice
N1,196.00 general damages
Before us on appeal, learned counsel for the appellant, Mr. F.O. Akinrele challenged the findings of the lower court that the respondent’s employment was wrongfully terminated.
We observed that in coming to that conclusion, the learned judge cited a few cases and directed himself thus:-
“Guided by the above decisions. I have come to the conclusion that where an employer summarily dismisses an employee for any misconduct, the question whether or not such conduct justified a dismissal, must be a matter for the determination of the Court; except where by agreement the employees have themselves submitted the judgment of his conduct to the discretion of his employer. In such a situation, the Court will not interfere with the genuine opinion of the employer, there it is even unreasonable, and the Court itself would not have come to the same opinion“.
On the face of this case, we are satisfied that the conclusion that:-
“The error committed by the plaintiff on exhibit L may well be classified as an act of negligence; but as this is an isolated instance in five years of service which could be brought against him, I find it difficult to come to a conclusion that this isolated error could qualify as a serious neglect to justify his summary dismissal”.
Whether an isolated act of negligence will justify the dismissal of a servant is a question of fact and degree depending on the circumstances of each particular case. Well this case amply support the conclusion reached by the learned judge on the issue of negligence.
The award of N1,196 as general damages was attacked in the third ground of appeal. The learned judge was in error to have made an award of general damages as in cases of breach of contract, the plaintiff is only entitled to damages naturally resulting from the breach – which in this case was fully covered by items 1 and 2 of the claim. (See Swiss-Nigeria Wood Industries Ltd. v. Bogo (SC.14/70 dated 3/7/70 P.K. & Co. Ltd. v. Ogedengbe (1972) 1 All N.L.R. (Part 1) 202; and Nigerian Produce Marketing Board v. A.O. Adewunmi (1972) 1 All N.L.R. (Part 2) 433). In our view, the award of N1,196 as general damages cannot stand.
In the absence of any evidence as to definite agreement between the parties stipulated period of notice for termination of the plaintiff’s employment, the learned judge, rightly in our view, proceeded to consider what period of notice was reasonable. Having taken all necessary fact into consideration, he came to the conclusion that notice of three months was reasonable. We can see no good reason to disturb this finding which was arrived at after a dispassionate appraisal of the evidence. We therefore uphold the award of N148.60 as three months salary in lieu of notice.
In the result, this appeal is allowed, the award of N1,244.60 as special and general damages by the High Court, Lagos, in Suit No. LD/367/73 on the 30th May, 1974, is hereby set aside together with the order for costs, and in its stead, the plaintiff/respondent is awarded N148.60 as special damages representing three months’ salary in lieu of notice. The plaintiff/respondent shall pay N137 costs to the defendants/appellants in this Court. Parties to bear their respective costs in the lower court.
Mr. F.O. Akinrele…..For Appellant
Mr. A.A. Odunsi…..For Respondent