3PLR – KABELMETAL NIGERIA LTD V. GABRIEL ATIVIE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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KABELMETAL NIGERIA LTD

V.

GABRIEL ATIVIE

COURT OF APPEAL

LAGOS JUDICIAL DIVISION

24TH APRIL 2001

CA/L/177/98

LN-e-LR/2001/188 (CA)

 

OTHER CITATIONS

[2001] F.W.L.R. (PT. 66) 662

BEFORE THEIR LORDSHIPS:

ATINUKE OMOBONIKE IGE

CHRISTOPHER MITCHEL CHUKWUMA-ENEH

AMIRU SANUSI

 

REPRESENTATION

Mr. Oladosu Ogunniyi with Kanmi for the appellant

Vincent Eromosele for the respondent.

 

MAIN ISSUES

EMPLOYMENT AND LABOUR LAW – MASTER AND SERVANT:– Contract of employment – person whose employment has been wrongfully terminated – whether he can be awarded damages and reinstated.

PRACTICE AND PROCEDURE – DAMAGES:– Measure of damages in a claim for wrongful dismissal or termination of employment.

PRACTICE AND PROCEDURE – EVIDENCE:– Onus of proof – claim for wrongful termination of employment – onus of proving that termination was not in accordance with terms and conditions of contract of service – on whom lies

 

 

 

 

MAIN JUDGMENT

AMIRU SANUSI, JCA (Delivering the leading judgment): In suit No. ID/2130/90 the respondent was the plaintiff and the appellant the defendant. The plaintiff made the following claims:-

(a)     A declaration that the termination of his appointment by the appellant was wrongful, illegal, null and void and of no effect.

(b)     A declaration that the respondent is still in the employment of the appellant as such entitled to his monthly salary.

(c)     Allowance and an order to restore same from the 5th July 1990 until he voluntarily retires from the service of the defendant company.

(d)     An order that the plaintiff is entitled to the sum of N10,000.000 from the defendant company as special and general damages in the manner set out below:-

(i)      Special damages N25,442

(ii)     General damages … N9,974,557 with interest thereon at 21% banking rate till the said sum is paid.
The parties filed and exchange pleadings which were during the course of the trial, amended by the parties with the leave of the trial court presided over by S.O Adagun J. The learned trial Judge in a considered judgment delivered on 23rd of September 1994, found against the defendant company (the appellant) as per the writ of summons and statement of claim and held that the respondent was still in the employment of the appellant and was thus entitled to his salary, allowances and other claims as from the date of his termination (i.e 5/7/1990) and ordered his reinstatement. The trial court also awarded two million Naira (2,000,000.00) damages. Dissatisfied, the defendant filed a four-ground amended notice of appeal on 28/3/2000. Out of the four grounds of appeal the appellant identified four issues for determination in its amended appellant’s brief of argument which are as follows:-

 

1. Whether the termination of the plaintiff/respondent per exbihit D item 20 was unlawful and at the same time wrongful, void and of no effect as held by the learned trial Judge.

 

2. Whether having regard to the circumstance of master and servant, reinstatement of the plaintiff/respondent is a proper order to make in the matter.

 

3. Whether, even if wrongful or illegal, it was proper and reasonable to award N2m as general damages for breach of contract of employment/personal injuries having regard to the fact and circumstance of the case and status of the respondent.

 

4. Whether the learned trial Judge was right in disregarding exhibit BB in which the plaintiff/respondent admitted that he was on a private assignment of his own at the time of the accident.

 

The two issues formulated by the respondent in his amended respondent’s brief of argument are these:-

 

1. Whether the termination of the plaintiff/respondent’s appointment was in accordance with his contract of employment and if not, what was the proper relief?

 

1. Whether it was proper to award N2m as general damages for personal injuries sustained in the course of employment having regard to the facts and circumstances of the case.

 

The case made by the plaintiff on its pleadings and evidence in support thereof can be summarized as follows:- The respondent (plaintiff) in the High Court was employed by the defendant company, the appellant , as sales executive grade 1 on 4th February 1985. He was later promoted to senior sales executive I and remained on that position or grade until 5th July 1990 when his appointment was terminated. The appellant company is a cable manufacturing and marketing company with its head office based in Ikeja. As sales executive, the respondent’s job involves sales and marketing of the company’s products in five states of the Federation, namely, Ogun, Oyo, Kwara, Ondo and the defunct Bendel States. While on his leave, the respondent on 27/4/87 got involved in an accident in the company’s vehicle in his home state which is among the states which his job covers. He sustained severe physical and internal injuries and was treated in various hospitals and clinics which later resulted in his permanent disability. He also suffered considerable pains, loss of some of his personal properties, incurred some expenses for his medical treatment. On resumption of work, the respondent along with one other staff of the defendant’s company were attacked by armed bandits in the course of his employment along Benin – Auchi Road in Edo State on 21st March 1990 wherein they lost several personal property. The defendant’s company on 5th July 1990 terminated the respondent’s appointment. That was what made him sue his employers, the appellant in the trial court making the claims I mentioned earlier in this judgment. Alleging that this said termination of his appointment was done in breach of condition of service and contract of employment.

 

The case of the defendant was that the termination of the plaintiff’s appointment was not wrongful but strictly in accordance with the defendant company’s terms and condition of service for senior staff of the company which the plaintiff/respondent was. The company further alleged that the plaintiff was earlier issued with a query relating to misconduct. The defendant alleged that although it did not disclose the reason for the termination of the appointment of the defendant/respondent there is no obligation on it to do so as provided by its terms/condition of service that termination must be with any reason or that reason must be stated or disclosed.

 

I think that the two issues formulated by the respondents have been adequately subsumed by the issues formulated by the appellant’s issues. The 1st, 2nd and 3rd issues formulated by the appellant’s could conveniently be taken together. I intend to so discuss them and later discuss the 4th issue if need be. I think it will be helpful for purpose of clarity to reproduce the letters of appointment, confirmation and termination of the plaintiff’s appointment by the defendant which the trial court admitted as exhibits B, L and C respectively and to also highlight the grounds for termination of appointment as provided in the terms and condition of service relevant to this case. The said terms and condition of service was admitted by the trial court as exhibit D.

 

The exihibits read thus:-

 

Exhibit B.

Kabel metal Nigeria
JO/BE/PH.2
4th February 1985
CR. K. 99987
16, 11: 94
Mr. G. J. Ativie,
4, Durojaiye Street,
Obele Oniwole,
Surulere.

 

Dear Sir,

 

OFFER OF EMPLOYMENT

 

Further to your interview with us, we are pleased to offer you employment as Sales Executive I responsible to the sales manager with effect from 15th March 1985 under the following conditions:-

 

1. Your scale emolument shall be basic salary per month ……N800
   Housing allowance per month……….N80

 

2. Your standard working hours would be 40 hours per week with the understanding that you would be prepared to work extra hours if required and to accept other assignments as may be assigned to you from time to time.

 

3. In the initial stage you would be entitled to paid leave of 24 working days per year.

 

4. You would also be entitled to become a member of the company’s senior staff pension scheme after one year’s service.

 

5. Your appointment will be subject to 6 months probation. During this period, the company reserves the right to terminate your appointment with one month notice if you fail to reach the standard of work required of you. Conversely, you would be required to give the one month’s notice or pay in lieu of notice should you decide leaving the company during your probationary period. On the successful completion of your probationary period your appointment would be confirmed.

 

If you accept this offer of employment under the above terms please sign the duplicate copies of this letter marked “Confidential” and return to the managing director. Meanwhile this offer is subject to satisfactorily references.

 

Yours faithfully,

Kabelmetal Nigeria Limited.
(Sgd) 227

Dr. Dejo Ogunlade
(Personnel/Training Manager)

H.D.Berg
(Managing Director)

EXHIBIT L

Mr. G. Ativie,
Kabelmetal Nigeria Limited, 5th July, 1990
Ikeja. OG/BE/PM.38
Dear Sir,

 

TERMINATION OF APPOINTMENT.

 

This serves to inform you that your services with this company are no longer required with effect from today 5th July, 1990.

 

Therefore you are to surrender in your own interest all company’s property (if any) in your possession and claim the following entitlements due to you.

1. Salary up to 5th July 1990

 

2. 15 days pay in lieu of earned leave but not taken

 

3. Leave allowance (pro-rata)

 

4. 2 months pay in lieu of notice

 

5. your pension scheme contribution would be calculated and paid by the Insurance.

By copy of this letter Accounts Department is being advised to act accordingly.

 

Yours faithfully,

Kabelmetal Nigeria Limited
(Sgd) H.D. Berge
A.O. Ogundipe (Managing Director)
(Snr Personnel Officer)
EXHIBIT C
Kabelmetal (Nig) Ltd.,
28, Henry Carr Street,
Ikeja Nigeria.
Phone 961860, 964953, 900640 –2
Telex 26101 DKMR Nig.
Our Ref: JD/BE/PM.3
Date 23rd September 1985
Mr. G. Ativie,
Kabelmetal Nigeria Limited,
Ikeja.

 

Dear Sir,

 

CONFIRMATION OF APPOINTMENT

 

Consequent upon satisfactory completion of your probationary period with this company we are pleased to confirm your appointment in the grade of sales executive I responsible to the AGM sales marketing with effect from 1st October, 1985 under the following conditions:-

 

1. Your scale of emolument shall be:-

Basic salary per month ………N800

Housing Allowance per month…..N800

Transport Allowance per month…..N800

 

2. Your working hours shall be 40 hours per week, while your annual leave and leave allowance entitlements shall for the time being, remain the same as stated in your letter of appointment.

 

3. The company’s Senior Staff conditions of service.

 

4. You will undertake to treat as confidential and not to disclose to any unauthorised third party all business matters of the company which shall become known to you in connection with your activities on behalf of the company. At the end of this agreement, you will hand over to the company all documents papers, drawings, keys etc. belonging to the company and give a binding declaration that you have retained no copy etc of such documents or paper.

 

Henceforth your appointment must only be terminated by either side by two months’ notice or pay in lieu thereof.

 

Yours faithfully,

Kabelmetal Nigeria Limited.
(Sgd)???
Dr. Dejo Ogunlade (Personnel/Training Manager)
H. D. Berge
(Managing Director)

 

The terms and condition of service affecting senior staff of the appellant company are contained in the agreement hand-book which the trial court admitted in the course of the trial as exhibit D. The relevant portion of that exhibit are paragraphs 4 and 20. Paragraph 4 gives the power of termination to the company. It however tied such power of termination upon paragraph 20. In other words rights to terminate appointment is qualified by paragraph 20 which sets out the circumstance upon which the defendant/appellant company could terminate appointment of its senior staff. Paragraph 20 of terms and condition of service, (handbook) i.e exhibit D provides that the company may terminate the appointment of its senior staff on the following grounds:-

 

(a)     For accumulation of warning letters.

 

(b)     For violation of company rules and regulations.
 

(c)     Unsatisfactory performance of service when investigations justify any of above conditions, his appointment may be terminated by the management in line with the stipulation in company manual.

 

It is not in dispute that each of the two parties accepted these terms and condition of service without any reservation. In the amended brief of argument filed on behalf of the appellant by its learned counsel it was argued that the respondent as plaintiff at the lower court sought for a declaration that the termination of his appointment was “wrongful, void and of no effect” but in his judgment now appealed against the learned trial Judge used the terms “unlawful/illegal and wrongful” interchangeably throughout (Italics supplied). It was further submitted that the learned trial Judge in one breath held that where termination was not in accordance with the terms and conditions agreed upon, the court could declare such termination unlawful, illegal and void. (Reliance placed on Olaniyan & Ors v. Unilag (1985)2 NWLR (Pt.9) 599 while in another breath the learned trial Judge held that in so far termination of the plaintiff’s appointment was not in accordance with item 20 of the terms and conditions of service – exhibit D, the termination is wrongful. The learned counsel submitted that termination can not be unlawful and wrongful at the same time. He cited case of UTC v. Nwokoruku (1993)3 NWLR (Pt.281)295 at 298. The learned counsel rightly submitted that there are different considerations governing wrongful termination on one hand and invalid/unlawful or illegal termination on the other hand. In wrongful termination or dismissal, the termination/dismissal is complete and the defendant is only liable in damages, while invalid or ineffectual termination or dismissal, there is no such termination or dismissal at all. See Moloame v. WAEC (1992) 9 NWLR (Pt.265) 303 at 305.

 

The learned counsel for the appellant further submitted that going by exbihit B, C and L i.e letters of appointment, termination and confirmation and exbihit D, the terms and conditions of service, an ordinary master and servant relationship was created to be governed by ordinary contract of employment and completely devoid of any statutory flavour. In this situation therefore, court would not and should not order specific performance or order reinstatement. See Nitel v. Ikaro (1994) 1 NWLR (pt. 320) 350.

 

In his amended respondent’s brief of argument the learned counsel for the respondent while conceding that this is an ordinary contract of employment, he submitted that it should be governed by terms/rules and regulation of service i.e. exhibit D. with regard to termination of the appointment. He further submitted that the action of the appellant in terminating the respondent appointment was wrongful because none of the conditions stipulated in exhibit D was complied with. The learned respondent’s counsel also argued that where termination of appointment is done in disregard of the terms of the agreement between the parties the court should hold that such termination is wrongful. He cited and relied on Ajayi v. Texaco Nigeria Limited (1987)3 NWLR (Pt.62)577. The learned counsel however submitted that where a court declare a termination as wrongful, it can either order a declaratory relief of reinstatement or award damages. Reliance was also put on Olaniyan v. University of Lagos (supra); Ajayi v. Texaco Ltd (supra); Nitel v. Ilaro (supra). The learned counsel for the respondent further submitted, albeit strangely, that the appellant has the burden to prove that the termination of the respondent’s appointment was in accordance with the contract of service emphasizing that the appellant failed to so prove.

 

I shall start with the concluding submission of the learned counsel for the respondent I just highlighted above on who has the burden of proof. At the expense of repetition I will say that the respondent was the plaintiff at the lower court while the appellant was the defendant. “It is an elementary principle of law that he who asserts must prove. In a catalogue of decided authorities the principle has been laid down by superior courts of record that where an employee complains that his employment has been wrongfully terminated he has the onus first to place before the court the manner the said terms were breached by the employer. It is not in principle for the employer who is the defendant to an action brought by the employee to prove any of these. In Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356, the Supreme Court per Agbaje JSC (as he then was) had this to say at page 370:-
“It appears clear to me that since it is the plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question”

 

The learned counsel’s submission that the appellant who was an employer of the defendant does not have the burden on his part to prove that termination of the plaintiff’s appointment was wrongful. See also Iwuchukwu v. Nwizu (1994)7 NWLR (Pt. 357)379) at 412 and Katto v. CBN (1991) 9 NWLR (Pt.214) 126.
On the submission of the learned counsel for the appellant regarding the alleged use of the phrase “wrongful” and “unlawful/illegal or”invalid” interchangeably by the learned trial Judge, it is apt to refer to the paragraph which contained the relief sought by the plaintiff. At the end of the averments on his statement of claim the plaintiff sought the undermentioned relief among others:-

 

“Whereof the plaintiff claims against the defendant as per writ of summons as follows:-

 

(a)     A declaration that the termination of the appointment of the plaintiff by the defendant company on 5-7-90 is wrongful, illegal and void and therefore of no effect.”

 

On page 102 lines 3-7 the learned trial Judge made the following finding:-

 

“With the totality of evidence adduced in this case, I found as a fact that the termination of the plaintiff as it was not in accordance with item 20 of terms and condition of service for senior staff in Kabelmetal Nigeria is wrongful and therefore void (Italics supplied).

Note, the learned trial Judge did not use the phrase or declare the termination “unlawful” or “illegal and void.” The reliance made by the learned counsel on the case of UTC v. Nwokoruku (supra) does not therefore assist him or beautify his submission since that case is distinguishable from this instant case. In UTC’s case the relief sought by the plaintiff as per his statement of claims was that of “wrongful dismissal” but the trial court found on a claim of “unlawful dismissal” which was never claimed. In that situation this court held that the trial court made a case for the plaintiff different from the one he made. But in this instant case the relief sought by the plaintiff was that the termination was “wrongful, illegal and void and therefore of no effect”. The conclusion the court reached as per its finding above was that the termination was wrongful and therefore void. Although the trial court at the end of page 101 to first few lines on page 102, while referring to some decided case, said thus

 

“in all those cases it has been held by Supreme Court that where the termination of service was not in accordance with terms and condition as partly agreed the court could declare such termination of appointment unlawful and void”

 

this cannot be said to represent or be regarded as its finding at all. I am therefore not convinced that trial court ever meant to find that the termination was “unlawful” despite the fact that the trial court made a subsequent order of reinstating of the plaintiff to the position/appointment he held in the appellant company which is not normally made in situation where a termination is declared wrongful. UTC v. Nwokoruku (supra). I will consider the validity or otherwise of these order for reinstatement later.

 

Coming to the question whether the termination of the plaintiff’s appointment was wrongfully made by the appellant I must say that both parties are agreed that the agreement governing the parties is an ordinary contract of appointment purely based on ordinary master and servant relationship. It is not the type of contract of service regulated by statute or a contract which has statute flavour. I shall later come to the distinction between the two types of contract of employment.

 

Meanwhile, I will first of all consider whether the plaintiff who always has the burden to prove that his appointment was wrongfully terminated had actually proved that claim as held by the trial court. As I posited above the relevant document to consider is whether in terminating the plaintiff’s/respondent’s appointment the appellant had actually complied with the terms and condition of service i.e. exhibit D. Under paragraph 20 of exhibit D the grounds upon which appointment of a senior staff of the appellant company (which the respondent is one) can be terminated are as follows:-

 

(a)     if he has warning letters

 

(b)     if he violates rules and regulations
and

 

(c)     if he is putting non-satisfactory performance.

 

My understanding of these conditions is that if a senior or confirmed staff breaches any of these condition his appointment could be terminated by the appellant company upon issuance of two months notice or salary in lieu thereof. The plaintiff when testifying in court as well as in his averment in his pleading did show that he neither violated the rules and regulation of the company nor was he ever found wanting in the discharge of his official function as senior sale executive I of the company. Although he pleaded that he was never given any query, the appellant denied that and showed that he was given a query alleging misconduct. But note that exhibit D talked of warning letters and not “query”. The letter terminating the respondent appointment did not state the reason upon which his appointment was terminated as a senior officer. My understanding of the letter of appointment given to the plaintiff when being employed is that if a staff is on probation his appointment could be terminated even without any reason. But, from the wording of exhibit D before a senior staff’s appointment could be terminated any of the conditions in paragraph 20 must be breached by the senior staff. From what I have said above I agree with the learned trial Judge that the termination of the defendant/respondent’s appointment was not made in accordance with the condition laid in exhibit D, the terms and condition of services, and was therefore wrongful. Having held that the trial court rightly found that the termination was wrongful I shall now come to its consequence. The trial court at the end of the day, inter alia , ordered thus:-

“A declaration that the plaintiff is still in the employment of the defendant company and as such is entitled to his money salary and allowance from the 5th July, 1990 up to date is therefore made as prayed, that is granted.”

 

By the above grant the court can be said to have ordered reinstatement of the respondent to his appointment. Is this a proper order for the trial court to make in the circumstance of this case? I think not. As I said above the relationship created by the parties is that of master and servant only governed by ordinary contract of employment completely devoid of statutory flavour.

 

In Nitel v. Ikaro (supra) this court held on pages 362-363 R1 and 2:-

 

“Where a contract of employment is regulated by statute and there is a breach of the contract of employment the court can order specific performance or reinstatement of the employee so wrongfully terminated. The court will not order specific performance or make an order of declaration of an ordinary contract of employment which is not regulated by statute.”

 

See also Oki v. Taylor Wall Tanjon Nig. Ltd (1965) 2 All NLR 45. Also in PTI v. Nesimona (1995) NWLR (Pt.402) 477 this court held that in cases of employment governed by the agreement of the parties and not by statute, the remedy of the person wrongfully teminated or dismissed is a claim for damages and no more.
The apex court of the land i.e Supreme Court in Katto v. CBN (supra) had this to say on page 394 ratio 3 in an action of wrongful termination of appointment:-
“In ordinary contract of employment where the terms provide for one months notice before termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to the end.”

 

I am to add that the conditions of employment of the plaintiff are very much different from the employment contract in the case of Olaniyan and others v. University of Lagos Council (supra). In the latter case the appellant’s were employees of the respondent as professors under a statutory body governed by statute hence the Supreme Court ordered their reinstatement. This also applied to the case of Shitta-Bay v. FPSC (1981)1 SC. 40. There is therefore a world of difference between contract of employment which is governed by statute and ordinary master and servant contract. When there is purported termination of contract of service a declaration that such contract of service still exists is rarely made. This is because of the well settled principle of law that a court will not grant specific performance of contract of service. (see Francis v. Principal Councillors of Kuale Lumpur P.C. (1962) 3 All ER 633.

 

Thus from the decisions of the superior courts of record I referred to above, it is clear that in ordinary master/servant contract of employment an employee whose appointment is wrongfully terminated cannot be imposed by the court on the employer to reinstate him in that regard therefore the trial court is wrong in its order that the respondent should be reinstated by the appellant. The only remedy available to the respondent therefore is only in damages. I therefore hereby set aside the order of reinstatement or specific performance made by the trial court in the respondent’s favour. I also hold that the trial court was also wrong to have both ordered his reinstatement and at the same time awarded him damages.

 

This brings me to the issue of damages awarded by the trial court. The learned trial Judge besides making an order reinstating the respondent also awarded in his favour a sum of N2m as general damages for breach of contract of employment and personal injuries. In the first place it is settled law that a wrongfully terminated or dismissed person cannot get both damages and reinstatement at one and the same time. It must be one or the other. See PTI v. Nesimone (supra). In making its award of N2m damages the trial court had this to say:-

 

“I am inclined to believe that the plaintiff had suffered personal injuries and suffering which it could be calculated from the day of his wrongfully termination of his employment up to date to the tune of N2,000,000.00 the amount which is considered reasonable to be paid to the plaintiff as general damages. In addition the plaintiff is to be reinstated to his employment and pay him all his dues.”
My understanding of the instant case is that it is that of wrongful termination of appointment. The learned trial Judge knew and was appreciative of that when he said on page 102 paragraph 3 lines 15-16 as follows:

 

“…… in any event the action which was filed by the plaintiff was for contract of services..”

 

Having rightly held as per above is the award of general damages justifiable in the circumstance? I do not think so. In saying so I seek refuge in the dictum of the Supreme Court in the case of Okongwu vs NNPC (1989) 4 NWLR (Pt. 115) 296 where it said:-

 

“The terms “general” and “special” damages are normally inept in the categoriazation of damages for the purposes of awards in cases of breach of contract. Apart from damages naturally resulting from the breach, on (sic) [no] other form of general damages can be contemplated.”

 

The court further held that damages in respect of breach of contract should be such as:-

 

“(a)    may fairly and reasonably be expected to arise naturally i.e. according to the usual course of things from such breach of contract itself; or

(b)     may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.”
The Supreme Court went further to hold in that case that the principle of assessment of damages for breach of contract is restitutio in integrum – that is that in so far as the damages are not too remote, the plaintiff shall be restored, as far as money can do it in to the position in which he would have been if the breach had not occurred. The principle is not restitutio in opulentiam – giving him a windfall. In fact it is settled law as I posited above that measure of damages for wrongful dismissal or termination is the amount the plaintiff would have earned had he continued with the employment. This being a case of wrongful termination the damages recoverable are the losses reasonably forceable by the parties and foreseen also by them at the time of the contract as inevitably arising if one opts out of the contract.

 

It is clear from the printed record of proceedings that the cause of action before the trial court as shown in the writ of summons and statement of claims is that of breach of contract of service. There has not been any distinct claim of damages arising from personnel injuries under tort or workman’s Compensation Act. The action before the trial court was not an action on tort as suggested by the learned counsel for the respondent in his brief of argument. I have set out the claims made in the suit at the trial court in the fore paragraphs of this judgment. Therein I could not see where the respondent as plaintiff at the lower court made any distinct claim of damages as a result of injuries sustained by him in the course of his official duty. Admittedly, evidence was led to establish that he sustained such injuries but then that does not justify the trial court to make award on that in a claim or action of purely wrongful termination of appointment. It should be noted that the respondent was involved in the accident on 27/4/1987. His purported termination of appointment by the appellant/defendant company was effective from 5/7/90 (i.e more than three years after). Since the defendant did not give reason for his termination hence the court could not speculate or relate it with the personal injury or disability or the plaintiff. I therefore hold that the action being of simply that [of ] ordinary breach of contract of service/employment the award of N2m general damages by the trial court on personal injuries which is only applicable in tort is gratuitous and amounts to a windfall given to him. It cannot be allowed to stand and ought to be set aside. Such award is also not in accord with the law as enunciated in decided authorities. I accordingly set aside the N2m general damages awarded by the learned trial Judge. Having earlier held that the trial court was right in holding that the termination of the appointment of the plaintiff was wrongfully made by the defendant company, it will be superfluous to treat the fourth issue formulated by the appellant.

 

In consequence the appeal succeeds in part and is partially allowed. The decision of the trial court to the extent that the termination of the respondent appointment by the appellant was wrongful is affirmed. All other awards made by the trial court are hereby set aside. For the avoidance of doubts the respondent is entitled to be paid two months salary and all other allowance payable to him upon termination of his appointment as provided in the term and condition of the contract of service. These should be paid to him accordingly. The trial court’s order reinstating the respondent and award of N2m general damages and all other awards made the lower court are hereby set aside. Each party is to bear its own cost.
ATINUKE OMOBONIKE IGE JCA: I agree.

 

CHRISTOPHER MITCHELL CHUKWUMA – ENEH, JCA: I have read the judgment just delivered by my learned brother Sanusi JCA and I agree. The appeal succeeds in part and is partially allowed. I endorse all the orders therein contained.