[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
SUPREME COURT OF NIGERIA
19TH DECEMBER, 1969
SUIT NO. S.C. 257/68
ABDALLAH V ACHOU
BOUTROS ABDALLAH (Trading Under the name and Style of Nigerian City Girl Press Co.)
MICHAEL SAID ACHOU
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Chief Williams (with him Miss Doherty) – for the Defendant/Appellant
Impey (with him Adeshina) – for the Plaintiff/Respondent
Commercial Law – Master and Servant – Action to recover salary earned cannot be brought as damages for breach of contract – Must be brought as alternative or separate claim to damages for breach of contract.
In suit LD/214/68 in the Lagos High Court the plain-tiff’s writ read:
“The plaintiff claims from the defendant the sum of eight thousand six hundred and sixty seven pounds (£8,667) damages for breach of contract of employment made between the defendant and the plaintiff in Beirut, Lebanon on the 29th day of October, 1965.PARTICULARS OF CLAIM
(a) Unpaid salaries from October 1966-April 1968 £4465
(b) Interest at 5% per annum on unpaid salary 171
(c) 5% of net- profit due to plaintiff since 1/12/65 2500
(d) 2 months leave pay 470
(e) Air ticket from Lagos-Lebanon-Lagos 1967 200
(f) Return ticket to Lebanon on termination of contract 100
(g) General damages 1845
Less amounts received (i) by cheque 824
(ii) various sums in cash 250
The defendant has failed refused and/or neglected to pay in spite of repeated demands.”
Paragraphs 2, 3, 4 and 5 of statement of claim read:
“2. Under and by virtue of an agreement dated 29th day of October, 1965, made in Beirut, Lebanon, in Arabic Language and translated into English at the Lebanese Embassy, Lagos on the 26th day of January, 1968, the defendant employed the plaintiff as technical Manager to be in charge and control of the defendant’s Printing Press to be established in Nigeria and the plaintiff was to work for three years in the fast instance.
The statement of claim concluded with the words “where upon the plaintiff claims as per his writ of summons.”
On the 9th of September, 1968, Adedipe J., gave judgment for the plain-tiff on his claim for £2,786 with 150 guineas costs and dismissed the counter-claim that the defendant had made.
The sole point taken on this appeal by Chief Williams for the defendant/appellant is that the learned trial judge was in error in awarding as damages for breach of contract the sum of £2,786 which was made up as to £3,525 for past salary, £235 as leave pay and £100 for a return ticket from Lagos to Lebanon but took account of a total of £1,074 which had been paid to the plaintiff. He submitted that all these items were matters that the plaintiff might be entitled to, as having been earned under the con-tract, but were not damages arising from the breach of contract but were incurred debts. This argument had been submitted to the learned trial judge but he rejected it in his judgment when he said:
“It was submitted by the defendant’s counsel that this case raised one important point and that is how to frame claims for salaries unpaid. He submitted that the action lay in debt. The plaintiff elected to treat the contract as repudiated and therefore sued for damages for its breach. There is no doubt that he is entitled to recover the estimated pecuniary loss resulting from the premature determination of his services. I do not see anything wrong in the way the action was brought or framed.”
Chief Williams submitted that there was a clear distinction between an action to recover debts incurred, such as salary here, and an action for dam-ages for breach of contract which was for damages for future loss arising out of the breach of contract. When debts are incurred such as here then they must be sued for on the basis of work done and not claimed as dam-ages. He referred us in support of his submission to Chitty on Contracts 23rd Edition Volume 1 paragraph 1156 which shows clearly the distinction between claims for payment of a debt and claims for damages. He also referred us to Bullen and Leake’s Precedents of Pleadings 11th Edition page 307 to show from precedents 254 and 255 the different way that a claim for salary or wages due should be framed from a claim for wrongful dismissal. He finally referred us to Mayne & McGregor on Damages 12th Edition page 2 where it states:
“Actions claiming money payable by the terms of a contract are for money which the defendant. has promised by the contract to pay. Illustrations are provided by actions for the price of goods sold and delivered, actions for salary or wages for services rendered, actions for rent, actions for freight, actions to recover moneys payable under insurance policies. These are to be distinguished from actions for dam-ages for breach of a contract.”
Mr. Impey for the plaintiff relied upon Halsbury’s Laws of England 3rd Edition volume 25 paragraph 993 which reads:-
“993. Damages in action for breach of contract. If the servant elects to treat the contract as repudiated, and sues for damages for its breach, he is entitled to recover the estimated pecuniary loss resulting as a reason-able and probable consequence from the premature determination of his service. He is also entitled to the amount of wages earned but not paid at the date of his dismissal; and if he is engaged on service away from home, and the master has agreed to pay them on termination of the service, the expenses of his journey home. Since, however, his claim is founded upon breach of contract, the damage to which he is entitled cannot be increased by reason of the manner in which he was dismissed, whether in respect of his wounded feelings or of the prejudicial effect upon his reputation and chances of finding other employment.”
and also upon Goodman v. Pocock (1850) 15 Q.B. 576 as establishing that in the same action a plaintiff can sue for damages when embracing salary already earned. He also referred us to Wigsell v. The Corporation of the School for the Indigent Blind (1882) 8 Q.B.D. 357 on the basis of damages for breach of contract, but this case in our view did not assist in regard to salary earned in respect of a claim for damages for wrongful dismissal.
Save for the statement in paragraph 993 of Halsbury’s Laws of England-”he is also entitled to the amount of wages earned but not paid at the date of his dismissal” the authority is all against Mr. Impey as Chief Williams has shown and we have therefore carefully examined the five cases listed in Halsbury as a footnote to the statement to which we have referred. One of those cases is Goodman v. Pocock (supra), which was the only one of those cases cited to us by Mr. Impey. Goodman v. Pocock was dealing with the case of a servant suing for wrongful dismissal in the middle of a quarter and held that a servant cannot bring first an action for wrongful dismissal and then later a subsequent action for wages earned in the broken period of service as they were both actions arising out of the breach of contract of employment. Hochester v. De La Tour (1853) 2 E. & B. 678 and Frost v. Knight (1872) L.R. 7 Exch. 111 are both dealing with the right to sue for breach of contract before the time of performance is due to begin if the other party gives notice of intention to refuse to carry out the contract, and so those cases do not assist on the present point at all. In Hartley v. Harman (1840) 11 Ad. & El. 798 the decision of the court far from supporting Mr. Impey’s submission seems to us to go exactly in the opposite direction as the judgments of the court at page 801 read:
“Lord Denman C.J. I believe I pressed the defendant to let a verdict pass for the whole amount of wages due, in order that another action might not be brought; but the plaintiff stood upon his declaration, which was for dismissing him without a month’s notice. On such a dismissal a month’s wages must be looked upon as stipulated damages: and the parties seem agreed on this: but then it is said that the prior wages also are part of the damages. I think that it is not so. The plain-tiff might have declared in a special count for the month’s wages, and in a common count for the rest. As it is, he can recover for the month only. To grant a rule would only suspend proceedings for a long time; and then the plaintiff would have to bring an action for work and labour.
Littledale J. The plaintiff may now sue for his wages down to the time of dismissal; but the form of his declaration precludes him from recovering them in this action. The contract having been put an end to, he declares for damages in respect of the dismissal without notice: that shuts out the claim for wages. He must recover them in an action for work and labour.
Patterson J. An ingenious argument has been urged to supply the omission of a common count, which there is no doubt the plaintiff might have added. It is not correctly stated that the agreement was for a year: the hiring was ‘at the rate of a hundred and fifty guineas per annum;’ therefore the year was divisible.
Coleridgo J. The breach of contract stated is dismissal without notice. All the damage consequent upon that is the loss of a month’s wages.”
Similarly the last case listed in the footnote of Halsbury is Brace v. Calder  2. Q.B. 253 and seems to us to follow the principle established in Hartley v. Harman (supra) as where a manager sued for damages for wrongful dismissal and had actually served two months before he treated the contract as at an end on discovering that the partnership which employed him had been dissolved two months earlier, Lopes L.J. at page 261 said-
“It is true that, as the Master of the Rolls has pointed out, he did continue to serve till the end of July, and would have been entitled to claim for that service; but the action was not brought in respect of that. If it had been, the defendants might have paid into court a sum sufficient to cover that claim. Therefore I do not think that the plaintiff is entitled now to avail himself of it”,
and see also in similar vein Rigby L.J. at page 264.
In our view therefore it is clear that the proposition in Halsbury “he is also entitled to the amount of wages earned but not paid at the date of his dismissal” whilst true in itself is highly misleading in the context in which it is put as the authorities do not support the proposition that in an action for damages for wrongful dismissal one can be awarded as damages the past salary or wages that have been earned. It would be possible either to bring the action in the alternative or to bring separate claims in the same action or to bring separate actions as they are quite separate causes of action. The statement in Halsbury does not specifically say that damages for wrongful dismissal can embrace wages or salary for past service, but in the context where it is dealing with such damages it in our view clearly but mistakenly implies it.
The decision of Adedipe J. was on the writ and statement of claim, which we have quoted, based on damages for wrongful dismissal and he was therefore in our view in error in awarding as damages sums for past salary and two other items (leave pay and air ticket) which had been earned already under the contract so that they were incurred debts and should have been sued for as such. Chief Williams has not asked for the action to be dismissed but indicated that in the circumstances he would be satisfied if we entered a non-suit. We accordingly set aside the judgment of Adedipe J. awarding the plaintiff £2,786 together with 150 guineas cost and enter a non-suit in the action. The defendant is entitled to his costs of this appeal which we assess at 58 guineas and to his costs in the High Court which we assess at 100 guineas.
Appeal allowed: Judgment of High Court set aside: non-suit ordered.