IN THE SUPREME COURT OF NIGERIA
On Thursday, the 10th day of May, 1973
Before Their Lordships
DAN IBEKWE….. Justice, Supreme Court
GEORGE BAPTIST AYODOLA COKER….. Justice, Supreme Court
AYO GABRIEL IRIKEFE….. Justice, Supreme Court
COLLEGE OF MEDICINE OF UNIVERSITIY OF LAGOS
Dr S. A ADEGBITE
Per G. B. A. COKER, J.S.C. at P.12, P. C.
: The appellants, that is to say, the College of Medicine of the University of Lagos are the first defendants to an action instituted in the High Court Lagos (Lagos State) by Dr S. A. Adegbite, as plaintiff (now respondent) for the following claims:
“(a) A declaration that the plaintiff’s appointment by first defendant as a Junior Research Fellow in the Department of Pathology still subsists, and that the purported variation of the contract and subsequent lock -out of the plaintiff by the first defendant was illegal, void, ultra vires, not made in good faith and therefore constitute a wrongful breach of contract.
(b) 30,000 pounds general and special damages for breach of the plaintiff’s contract of appointment with the first defendant dated the 30th June, 1967.”
There were originally two defendants to the action, the other defendant being a Professor Thomas of the same University. As against him, the learned trial judge found that the action was misconceived and struck it out with costs. The plaintiff filed a statement of claim in which he set out with unmitigated prolixity the story of his association with and later dissociation from the appellants, who will hereinafter in this judgment be referred to as “defendants”.
The pleadings of the plaintiff in short avers that he was employed as a Junior Research Fellow by the defendants by virtue of a letter dated the 30th June, 1967 addressed to him by the defendants and that the plaintiff’s contract was subject to the terms therein contained as well as the “terms and conditions enacted in the Regulations and Conditions of Service of the University of Lagos Medical School”, that the plaintiff performed the duties of his office satisfactorily and was indeed commended in writing by the head of the Department of Pathology, that because he wrote a letter dated the 7th June, 1968, protesting to the Secretary to the College about the unsatisfactory nature of his housing accommodation, his contract was not renewed when it should have been automatically renewed and that he was eventually locked out of the laboratory where he used to perform the duties of his office. On the other hand, the statement of defence denies all the principal averments in the statement of claim, charges the plaintiff with a number of acts of indiscipline and misconduct, avers that there was no legal duty on the defendants to renew the plaintiff’s contract on the expiration of it after the first year and, in particular, paragraph 16 of the statement of defence states as follows “The 1st defendant states that by reasons of the plaintiff’s misconduct, it became impracticable for the College of Medicine to continue to employ him. “
The plaintiff gave evidence at the trial and testified that he was engaged by means of the letter dated the 30th June, 1967 (admitted in evidence as Exhibit A), that he took the view that the contract was to be automatically renewed in view of the written commendations he had received (put in evidence as Exhibit W) in the course of his duties and that although there was no complaint about his work and no warning addressed to him in that respect, the defendants have refused to renew his contract. The Secretary to the College of Medicine, Zacchaeus A. Alabi and the Acting Registrar of the University of Lagos, Samuel A. Oshinulu also gave evidence for the plaintiff. Two other witnesses Dr Odunjo and Professor Olusanya gave evidence on behalf of the plaintiff describing the lock-out of the plaintiff from his laboratory and pointing out that the case of the plaintiff was not referred to the University Council that “deals with the removal of staff’. Some documentary evidence were produced by the plaintiff and we shall refer to them later on in the course of this judgment. Professor Alexander Boyo gave evidence for the defence, described the performance of the plaintiff during the first year of his contract (Exhibit A) and emphasized the fact that the plaintiff refused to resume duty after his return from leave despite several requests to do so.
The learned trial judge in the course of his judgment acceded to the claims of the plaintiff and awarded him a total amount of damages in the sum of 5 pounds,070 (or #10,140) with costs. At the end of his judgment, the learned trial judge apparently dealing with the claim for declaration observed as follows
“I have already held that the termination of the plaintiff’s appointment was wrongful and constituted a breach of the contract entered into by the plaintiff and the 1st defendant in exhibit A. I have also held that this was not a case where a declaration should be made.”
The learned trial judge did not thereafter make any such declaration, and it is noteworthy that the plaintiff has not made this omission the subject of any appeal or indeed any complaint before us.
This appeal by the defendants is from the judgment of the learned trial judge and the gravamen of the complaint before us is that the learned trial judge was wrong to hold that the no renewal of the plaintiff’s contract by the defendants was a breach of contract for which the defendants are liable in damages. It was argued by learned counsel for the defendants that the terms and conditions of the plaintiff’s employment were contained in exhibit A, that the Regulations and Conditions applicable to the permanent staff of the College of Medicine (put in evidence at the trial) are not available to the plaintiff and that the defendants’ offer of a new contract to the plaintiff (put in evidence as exhibit K) which the plaintiff rejected, did not constitute a breach of the original contract. For the plaintiff, it was contended before us that in view of the way in which the plaintiff had performed his duties pursuant to exhibit A and for which he was commended in exhibit W, the renewal of his contract as postulated by exhibit A should be automatic.
The letter of offer of employment, exhibit A, dated the 30th June, 1967,so far as it is material, states as follows
“Dear Dr Adegbite,
I refer to your application dated 9th May, 1967 for the post of Junior Research Fellow in the Department of Pathology and your subsequent interview by the Appointments and Promotions Committee on 23rd June, 1967 and wish to inform you that the Medical School Council has decided to offer you the appointment of Junior Research Fellow on the salary of 2,000 pounds per annum in the salary scale 1,200 pounds x 100 = 2,100 pounds. This offer is subject to your being declared medically fit by the Schools Staff Medical Officer to take up the appointment.
The appointment is on contract for one year in the first instance and subject to renewal for a further period of 2 years provided that your services are regarded as satisfactory at the end of each year. The appointment also carries the following
(a) Two months leave on completion of each contract of 10 months continuous service;
(b) A contract gratuity of 10 per cent of your salary payable at the end of each contract of 10 months continuous service;
(c) Free medical attention and hospital accommodation at a reduced rate;
(d) Part-furnished accommodation at a rent not exceeding 7 per cent of your salary;
(e) You will be entitled to children’s allowance for a maximum of 3 children normally below 17 years of age or up to 21 years if the children are pursuing full-time higher education in a recognised institution at the rate of 75 pounds per child per annum;
(f) An advance not exceeding 850 pounds for the purchase of a motor vehicle if you do not already possess one. Such advance to be repaid in full at the expiration of your contract. As financial provision for the purchase of motor vehicle is limited, you may have to be placed on the waiting list for a few months;
(g) A basic car allowance of 2,200 pounds per annum if you own a car which is in a roadworthy condition.
Detailed information about the conditions of service in the Medical School are available in my office on request.
If the terms and conditions set out above are acceptable to you please sign over a shilling stamp, the duplicate copy of this letter and return to me at your earliest convenience.”
According to the plaintiff, he received this letter and accepted the offer contained therein and indeed, resumed duty with the defendants as a Junior Research Fellow on the 2nd of July, 1967. The evidence in the case is to the effect that the parties got on well together until the 7th June, 1968 when the plaintiff wrote a letter to the Secretary of the College of Medicine protesting against the quality of the accommodation given him by the defendants. The letter of protest to which the plaintiff attached no vestige of misconduct apparently aroused the indignation of the head of his department, the Department of Pathology (Professor A. E. Boyo), who asked him to withdraw the letter. One of the letters written to the plaintiff by the head of his department is exhibit H dated the 10th June, 1968. It reads as follows
“As I have already informed you, the Ag. Secretary to the College of Medicine was acting under instructions from me as Head of the Department. I will strongly advise you to withdraw the letter which you addressed to him on the subject of your renewal of appointment with an appropriate apology.
You may, if you wish, address the letter to me as Head of this Department.”
To this letter, the plaintiff replied by letter, exhibit J, dated the 11th June, 1968, and addressed to Professor Boyo asking the latter to make himself more explicit concerning the nature of the instructions he had previously given to the Secretary of the College of Medicine. Obviously, after the letter to the Secretary of the College of Medicine on the 7th June, 1968, the plaintiff was requested by the head of his department to proceed on leave and he had indeed before then requested to know the position of his contract and its renewal. Professor Boyo addressed the following communication (exhibit E dated the 12th June, 1968) to the plaintiff
“Your letter of 11th June, 1968, refers
The question of your renewal of contract is a confidential matter on which you cannot question either myself or the College authorities.
You have now completed the one year term of appointment guaranteed in your contract. You may therefore proceed on your earned leave on the 19th of June 1968, when Dr O. O. Akinyanju, Lecturer, resumes duty. The emoluments due to you will become payable at that time.
You will no doubt be hearing from the appropriate authorities in due course whether or not your contract is to be renewed.”
After the receipt of this letter, the plaintiff went on leave. Whilst on leave however, the plaintiff received a letter dated the 8th August 1968 (admitted in evidence as exhibit K) and which reads as follows
“Dear Dr Adegbite,
Renewal of Contract.
You will observe that your contract with the College expired on 22nd May, 1968.
Your head of department has recommended and it has been approved by the Ag. Provost that your contract be extended for a further period of six months at the completion of your leave on 18th August 1968.
The purpose of this extension is to give you ample opportunity to complete your research programme successfully.
The terms and conditions of this extension are as contained in the original contract, i.e. a salary of ‘a32,000 per annum 10 per cent contract gratuity, etc.
I am conveying this decision to you and at the same time wishing you a successful completion of your research programme.”
Undoubtedly, the plaintiff received exhibits K and did not reply to that letter. On the 15th August 1968, however, he wrote a letter which was admitted in evidence as exhibit 8 and addressed to the head of his department as follows” This is to inform you that I wish to extend my leave by 21 days. This is part of the entitled leave earned in 1966-67 with the Lagos University Teaching Hospital.”
The request in exhibit 8 was refused but the plaintiff did not come back to resume duty; the defendants took that as a complete rejection of exhibit K and locked him out of the laboratory when he turned up in the college premises later.
Learned counsel for the defendants submitted that exhibit A is a contract for one year certain, although it is subject to renewal for two periods of one year each provided the services of the plaintiff are satisfactory. On the other hand, learned counsel for the plaintiff submitted that the contract is automatically renewable at the end of the first year and would be so on the face of exhibit W and exhibit 21. Exhibit 21 is a departmental minute addressed by Professor Boyo as the Professor and Head of the Department of Pathology to the Secretary to the College of Medicine and which reads in full as follows
Prof. & Head of Dept. of Pathology
10th June, 1968.
Ag. Secretary to the College of Medicine
Dr S. A. Adegbite’s renewal of contract.
With reference to your memo CM/AIM.S/PF.201 of 20th May, 1968, you will recall that I had already made recommendations in respect of Dr Adegbite, Junior Research Fellow for the Session 1968-69.
I had for that reason requested you to defer the question of his renewal of contract until after the meeting of the ‘Appointments and Promotions Committee’ ….The present position is that Dr Adegbite is scheduled to proceed on leave later this month. Since he has however only recently returned from his accumulated leave due to him as Senior Registrar L.U.T.H. he will now be taking his two months leave at the end of his twelve months’ contract as Junior Research Fellow at which time his entitlements will become payable to him.”
Exhibit W is a form of application for payment of contract gratuity. Some portions of the form are to be filled by the applicant whilst other portions are to be filled by the employers of the applicant and in this case, the defendants. The plaintiff duly filled his own portion of this form and the commendations on which reliance is placed by the plaintiff are contained in an endorsement on the form signed by the Head of the Department and is to the following effect. “Dr S. A. Adegbite has rendered satisfactory service and gratuity is recommended. “The learned trial judge seemed to take the view that the contract was automatically renewable on the strength of exhibit 21 and exhibit W for in the course of his judgment, he observed thus
“Exhibit A is the agreement between the plaintiff and the 1st defendant, it provided for one year in the first instance, and subject to renewal for further period of two years, provided that the plaintiff’s services were regarded as satisfactory at the end of each year. This in my opinion means that consideration should be given for the renewal for a period of one year at a time, and not for six months, or three months. It seems to me also that if the services were regarded as satisfactory subsequent renewals would be automatic.”
For his contention that the contract was one which should have been automatically renewed, learned counsel for the plaintiff relied on the cases of
(1) Nigerian Ports Authority v. E. A. Banjo (1972) 3 S.C. 175.
(2) In re an Arbitration between Rubel Bronze & Metal Co. Ltd. and VOS.  1 K.B. 315.
(3) Salt v. Power Plant Co. Ltd.  3 All E.R. 322.
In the case of Nigerian Ports Authority v. Banjo, supra, the respondent as plaintiff had relied on a term of his contract embodied in an official regulation described in the action as “Paragraph 1505” and, as amended, the regulation reads as follows:
COLLEGE OF MEDICINE OF UNIVERSITY OF LAGOS AND ANOTHER V. ADEGBITE
“A pensionable officer may at the discretion of the Authority continue in pensionable service up to the age of sixty years provided that at yearly intervals after attaining the age of 55 years, he is certified by an authorised medical officer as physically fit for the performance of his duties.
On attaining his 55th birthday on the 2nd of August, 1965, he was still retained in the services of the Nigerian Ports Authority and was so employed until the 1st June, 1976, when he was given a letter asking him to retire with effect from the 1st December, 1967. This Court, in the events that happened, interpreted the contract as follows
“Such notice, in our view, may be given by agreement of parties or for misbehavior. The respondent was to expect his contract of service to continue from year to year until he reached the age of 60 or until such time before 60 years of age when the Medical Officer certified him as unable to work further. This certainly, in our view is the correct interpretation that can be given to the old section 1505. Now, has the amendment of the section by the insertion therein of the words at the discretion of the Authority’ made any difference? We do not think so. The words, to our mind, cannot be taken to mean that the Authority, during the period of extension, had a right or discretion to terminate the contract by notice, unjustifiably. The discretion the Authority had in the matter, which it could exercise under section 1505, was whether it would decide to allow a continuation of his services as from 2nd April, 1966. It was clear that what the Authority said in effect was a continuation of his service by the respondent until he was 60 years of age depending upon a certificate of fitness by the Medical Officer from year to year. We are in no doubt from the whole evidence before the learned trial judge, that the earlier view of the Authority in the matter was that the respondent’s service was to continue until he was 60 and that that was the purpose of section 1505.” (See per Ademola, C.J.N. at p. 178 of the report).
In the case of Rubel Bronze and Metal Co. Ltd. and Vos, supra, there was a provisional award by an umpire who stated a case for the court as to whether or not in law, the employee was entitled to the award in the events that happened. In the course of his judgment in that case, McCardie, J. observed as follows at p. 322 of the report
“In every case the question of repudiation must depend on the character of the contract, the number and weight of the wrongful acts or assertions, the intention indicated by such acts or words, the deliberation or otherwise with which they are committed or uttered, and on general circumstances of the case.”
In Salt v. Power Plant Co. Ltd. supra, the court was asked to determine the nature of a contract which provides that the employment would be for a minimum period of three years subject to the defendant’s right to cancel the agreement in case of wilful default. This contract was entered into by the parties on the 24th December, 1925 and contains a clause to the effect that the company shall have the right to terminate the agreement after the expiration of the above-mentioned period by giving six months’ notice to expire on 31st December, 1936 and the court held that his dismissal was wrongful as his appointment was a life appointment. In the course of the judgment of the Court of Appeal in that case and at p. 324 of the report, Greer, L.J. observed thus
“I am clearly of opinion that the time for the company to give their notice had long expired, and that this is a bad notice, which did not terminate the engagement; but they acted upon the notice, and the plaintiff ceased to be their secretary, and he now claims damages on the basis that his employment was wrongfully determined. The learned judge decided in favour of a construction of the letter, which I think is a wrong construction of the letter, and therefore the case must go back in order that evidence may be heard with reference to what are the appropriate damages.”
We point out unhesitatingly that a study of the cases relied upon by learned counsel for the plaintiff, far from laying down any principle of general application, confirms perhaps more forcefully the argument of learned counsel for the defendants that the cases must turn on their facts and in this particular case, on the meaning and construction of exhibit A. One of the witnesses for the plaintiff was the Registrar of the University of Lagos, Mr S. A. Oshinulu. In the course of his testimony he states as follows:
“I am the Secretary to the Senate. The section deals with permanent and established staff. Members of the academic staff who are on contract are governed by their terms of contract. This section does not apply to officers on contract. I see exhibit A; according to the letter the plaintiff is a contract officer.”
The exhibit on which the witness was being cross-examined is exhibit B, the printed statutory terms and conditions stated to apply to the pennanent staff of the University of Lagos. Learned counsel for the plaintiff also submitted that the provisions of section 17 (1) (b) (ii) of the University of Lagos Decree No.3 of 1967 apply to the case of the plaintiff. That section states in so far as it is material to this case as follows:
’17 (1) If it appears to the council that there are reasons for believing that the vice-chancellor, the deputy vice-chancellor, the provost of a college or any other person employed as a member of the academic or administrative staff of the University or a college should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment the council shall
(b) make arrangements
(ii) for a committee of the senate to investigate the matter, where it relates to any other member of the staff of the University, and to report on it to the senate and to the council; and
It is manifest however that on the strength of the authorities the plaintiff must rely upon the clear words of his contract. Nothing else has been incorporated either by reference or otherwise into exhibit A and we are firmly of the view that only exhibit A must regulate the rights inter se of the parties. The plaintiff had sued for wrongful dismissal and has to prove that he had been wrongfully dismissed from office.
There is no dispute that when the plaintiff proceeded on leave in June 1968, he did so on the strength of exhibit A even though he had had an extended period of service owing to the exigencies of the service of the defendants at that time. Exhibit A speaks only of a “renewal” and does not speak of an “extension” which plainly is the language of the letter, exhibit K, addressed by the defendants to the plaintiff during the period of his leave. The learned trial judge treated exhibits K as evidence of a breach of exhibit A. He stated as follows in connection with this point in the course of his judgment
“It seems to me that exhibit K, the letter of renewal addressed to the plaintiff by the Secretary to the College of Medicine informing him that his contract has been extended for a further period of six months, was clearly a breach of the terms of the agreement exhibit A between the plaintiff and the 1st defendant.”
The learned trial judge construed exhibits K as letter of renewal but, certainly, this is a mistaken view of its contents. Exhibit A was a new offer of a fresh contract and the plaintiff being free to accept or reject that offer, preferred not to accept it. It is trite law that an offer must be accepted in order to crystalise into a contract. See per Lord Blackburn in Alexander Brogden & Ors. v. The Directors & Co. of The Metropolitan Railway Co. (1877) 2 App. Cas. 666 at pp. 691, 692 where he observed thus
“Mr. Justice Brett, referring to the case of Ex parte Harris before the Lords Justices and other cases says that looking to all this, he has come to a strong opinion that the moment one party has made a proposition of terms to another, and it can be shown by sufficient evidence that that other has accepted those terms in his own mind, then the contract is made, before that acceptance is intimated to the proposer’ . . . My Lords, I must say that that is contrary to what my impression is, and that I cannot agree in it . . . when you come to the general proposition which Mr. Justice Brett seem to have laid down that a simple acceptance in your own mind, without any intimation to the other party and expressed by a mere private act, such as putting a letter into a drawer, completes a contract, I must say I differ from that . . . for it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is…”
Even the plaintiff himself knew that his contract was for one year certain and his several and, regrettably, fruitless endeavours by his letters, exhibit F, dated 7-6-68 (that speaks of the expiration of his contract with the College of Medicine) and exhibit J dated 11th June, 1968 (in which he wanted to know “the present condition of my service” in writing) are clear evidence in support of his own understanding of the contractual position. The plaintiff certainly did have the year’s service and unless he could establish that the contract was automatically renewable there has been no actionable breach on the part of the defendants.
The letter, exhibit A, prescribes that the plaintiff’s further services with the defendants would be subject to the renewal of his contract which will only happen if his work is regarded as satisfactory. The document exhibit W on which the plaintiff has placed some reliance, is his own application for the payment of his contract gratuity, and it is difficult to see how it should be made a basis for the renewal of his contract. By exhibit W, the plaintiff had already on the 23rd May, 1968, applied for the payment of his contract gratuity and indeed on this aspect of the case, Professor Boyo the head of plaintiff’s department, testified as follows:
“I did not give him the, impression that his contract would be renewed after June, 1968, I told him that this is a confidential matter on which he cannot question me or the College authority.
The only thing he did wrong was going to London without permission. I had already explained to him his faults; up to 23rd May, his work was satisfactory. As from June he had not submitted the final report, which would have followed on the work I asked him to do.
Secondly he had written an offensive letter to the College Secretary, exhibit F, dated 7-6-70; I asked him to withdraw it but he refused to do so.”
This piece of evidence puts beyond doubt the attitude of defendants to the plaintiff’s conduct and character. He had fallen out with his employers and unless they renewed his contract, he cannot complain of a breach. That the letter, exhibit K, was an offer of a new contract is evidenced by the letter, exhibit T, written to the plaintiff on the 29th August, 1968 by the Secretary of the College of Medicine of the University of Lagos, exhibit T reads as follows
“Dear Dr Adegbite,
I refer to my letter No. CM/ADM.S/PF. 201 dated 8th August, 1968, in which I informed you that your contract with the College of Medicine expired on 22nd May, 1968.
Notwithstanding the fact that the said contract had expired on 22nd May, 1968, you were offered an extension for a further period of six months at the completion of your leave on 18th August, 1968.
Up till today, 29th August, 1968, this offer has not been accepted by you and neither did you report for duty immediately upon the expiration of your said leave.
Accordingly, I am directed by the Provost to withdraw our offer contained in our letter dated 8th August, 1968, and the said offer is hereby withdrawn. You are therefore required to vacate the accommodation offered you within 14 days of the receipt of this letter.”
Also confirming the same view is the letter dated 29-8-68, exhibit S, addressed to the plaintiff by the Professor of the College of Medicine. In short, the defendants told the plaintiff why they did not any longer consider his service satisfactory and accordingly would not renew his contract. The learned trial judge took the view that the contract exhibit A had been breached but, in that respect, he was in error. The contract in exhibit A had been performed, although renewal had been refused, as a pre-requisite of it had not been accomplished.
We have come to the conclusion that the grounds of appeal argued on behalf of the defendants are justified and that the appeal must be allowed. There is another little observation concerning the judgment of the learned trial judge. He had assessed damages on the basis of the continuance of the plaintiffs contract for another period of two years.
The contract exhibit A does not envisage this form of treatment and indeed it postulates, as the learned counsel for the plaintiff eventually conceded before us, two separate renewals for periods of one year each.
In any case, the appeal succeeds and it is allowed. The judgment of the learned trial judge in Suit No. LD/437/69 (High Court Lagos, Lagos State) including the order for costs, is set aside. We order that the plaintiff’s case be dismissed with costs and this shall be the judgment of the court. We also order that the plaintiff do pay the costs of this appeal fixed at N200 and costs in the court below fixed at N200.
Appeal allowed; case dismissed.
Chief F.R.A. Williams for the appellant…..For Appellant
Chief Akin Olugbade for the respondent
J.A. Cole for the 2nd respondent…..For Respondent