3PLR – ABUKOGBO V. AFRICAN TIMBER
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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TANUGHE ABUKOGBO
V.
AFRICAN TIMBER AND PLYWOOD LTD
HIGH COURT, MID-WEST
29th March, 1966
SUIT NO. S/38/65
3PLR/1966/3 (HC-M)
BEFORE:
EKERUCHE, J.
REPRESENTATION
Sagay – for the Plaintiff
Etuwewe – for the Defendants
EDITORS
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
MAIN ISSUES
ACTION for damages for wrongful dismissal.
MAIN JUDGEMENT
EKERUCHE, J.:-
In this action the plaintiff claims from the defendant the sum of £1,460-Os-Od as general and special damages for the wrongful dismissal of himself by the defendant from the defendant’s employment. Pleadings were ordered in the case and duly delivered.
Only the plaintiff gave evidence in the case. The defendant rested his case on plaintiffs evidence. The only evidence before this court is therefore that given by the plaintiff.
The evidence before this court is that the defendant employed plaintiff as a waterman on 12-7-1947. The plaintiff continued in that employment until 31-12-64 when the defendant terminated his employment. See exhibits ‘1 ‘, ‘2’ and ‘8’ in the case.
The reason for the defendant terminating the plaintiffs employment was that one Thomas Oki who lived in the same place with the plaintiff had reported to a Security Officer employed by the defendant that the plaintiff stole defendant’s petrol and oil from the defendant’s premises.
When plaintiff was first recommended to the General Manager of defendant for dismissal, he caused a letter-exhibits ‘3’ to be written by a lawyer to the defendant’s General Manager. In the letter he said that Thomas Oki had lied against him and he also stated why according to him, Thomas Oki lied against him.
The defendant investigated the allegation and at the conclusion of the investigation obviously accepted the report as true and terminated the plaintiffs employment without giving him any notice. In other words, the defendant summarily dismissed the plaintiff.
Thomas Oki mentioned earlier had, about the period when he made his report against the plaintiff to the defendant destroyed the property of the plaintiff. The plaintiff reported him to the Police and he that is Thomas Oki, going by plaintiffs evidence was convicted for the damage.
After Thomas Oki had been convicted, the plaintiff through his solicitor wrote a letter, exhibit ‘4’ to the defendant’s General Manager. In the said letter, the solicitor stated, inter alia, that Oki who was standing trial in a criminal charge of malicious damage to the property of the plaintiff, then called Ubokohwo Otomuwe, admitted in open Court, that his report to the security officer was a false one and that he was taking vengeance for the complaint made by the plaintiff to the Police. The plaintiff tried to tender the entire proceedings in the original prosecution of Thomas Oki but the Court refused to admit same in evidence for the reasons that:-
(a) The defendant not being a party to the proceedings the said proceedings vis-a-vis the defendant were res alios,
(b) On perusing the evidence of Thomas Oki, the Court found that Thomas Oki was not recorded as having said that in reporting to the defendant that plaintiff stole the defendant’s petrol or oil, he lied against the plaintiff or that the report was false, although he admitted making the report.
The plaintiff said that if he had not been dismissed by the defendant, he would have worked for a further ten years for the defendant, and that a person who puts in seventeen years service for the defendant would be entitled to £300-Os-Od. This sum I think relates to the claim for gratuity as stated in his statement of claim.
Other documents tendered by the plaintiff are:-
Exhibit ‘l0A’ and ‘1013’-Slips showing salaries defendant paid him for the months stated in them, Exhibit ‘6 ‘, his labour card; Exhibit ‘7’ and ‘7A’-The rules and regulations governing his employment in the defendant’s service; Exhibit ‘9’-Long service commendation certificate given him by defendant, Exhibit ‘5’, the defendant’s reply to exhibit ‘4’.
The case which the plaintiff has urged in this Court is that by the contract of service between him and the defendant, his employment was one for life, that the defendant wrongfully terminated the contract and that he is entitled to the entire amount he would have earned as wages for ten years during which period in his life time he would have further served the defendant if the defendant had not wrongfully terminated his employment plus gratuity benefit. The total of his money entitlement is the sum of £1,460 which by his statement of claim he has claimed as special damages. The first question which must be answered is, was the plaintiff’s employment one for life ?
The plaintiff, it is true, alleged in paragraph 6 of his Statement of claim, and this he has established, that in the defendant’s service he was someone in permanent employment but he did not allege or suggest that the employment was one for life. There is a distinction in the two. An employment for life is ipso facto a permanent employment, but a permanent employment is not necessarily an employment for life. Permanent employment to my mind means no more than that the employer cannot, in the absence of agreement thereto, tell the employee to stop work forthwith at will and without notice and without some compensation in lieu of notice. But that does not mean without more that the employer is bound to retain him in employment for life.
As stated in Article 946 of Vol. 25 of the 3rd Edition of Halsbury’s Law of England, it seems that the fact that the employment offered to and accepted by an employee is described as permanent employment does not in itself normally create a promise of life employment or disentitle the employers from terminating the employee’s contract of service on reasonable notice. A contract for permanent employment will, however, be considered as a contract for employment for life if the terms of the contract are such as to render inevitable the conclusion that a lifetime employment was intended.”
The cases referred to in the statement of the law set out above are:-
(1) McClelland v. Northern Ireland General Health Services Board (1) and,
(2) Salt v. Power Plant Co., Ltd. (2)
The facts of the McClelland case as appears in the head notes to the report are as follows:-
“By an advertisement in a newspaper in June 1948, the respondent board invited applications for post which “Subject to a probationary period ……….. will be permanent and pensionable.” The appellant applied for a post and in July 1948, was selected for appointment. Conditions of service known as the “September conditions,” were approved in September 1948. The appellant accepted these conditions and her employment, which under them was probationary until confirmed, was confirmed in February 1949. Under clause 9 of the conditions, every employee was required to take the oath of allegiance and failure to do so involved immediate dismissal. By clause 12 the board could dismiss any officer for gross misconduct or who was proved to be inefficient and unfit to merit continued employment, and, except in the case of gross misconduct, the board had to give at least one month’s notice of their exercise their powers of dismissal: all permanent officers who wished to terminate their employment with the board had to give one month’s notice in writing. In 1953 the board sought to terminate the appellant’s employment on the ground of redundancy of staff, and she was finally given six months’ notice expiring in August 1954. The appellant contended that her employment was not subject to termination on reasonable notice by the board.”
The House of Lords in that case held that the appellant’s (that is McClelland’s) employment had not been validly terminated by the board because it was terminable only as provided in the September conditions which were exhaustive in that respect and accordingly, a power to terminate her employment by reasonable notice would not be implied.
Now, the question of reasonableness of notice or notice simpliciter does not arise for consideration here. No notice was in fact given, the plaintiff does not contend that the dismissal was wrongful because no notice was given and by the statement of defence filed, the plaintiff was not entitled to any notice in the circumstances which made them dismiss the plaintiff.
Lord Goddard in his speech in the judgment in McClelland’s case, Supra said, inter alia, in discussing the question as to whether an employment is just permanent or one for life said:-
“That an advertisement offers permanent employment does not, in my opinion, mean thereby that employment for life is offered. It is an offer, I think, or general as distinct from merely temporary employment, that is that the person employed would be on the general staff with an expectation that, apart from misconduct or inability to perform the duties of his office, the employment would continue for an indefinite period. But, apart from a special condition, in my opinion a general employment is always liable to be determined by reasonable notice. Nor do I think that, because a person is offered pensionable employment, the employer thereby necessarily engages to retain the employee in his service long enough to enable him to earn a pension.”
Again, Lord Evershed discussing the same point in his own speech said:-
“My Lords, if the terms of the appellant’s service depended only on the respondent board’s advertised offer and its acceptance by the appellant, I should think that the board were entitled to succeed; for I should not regard the use of the word “permanent” even when the word “pensionable” is added to it, as sufficient in that context to create a promise of a life employment or to disable the board as employers from terminating the employee’s contract of service on reasonable notice. And I should reach the same conclusion if the terms of the relevant contract were derived from the board’s secretary’s letter of July 29, 1948, with or without the advertisement. Whether or not a servant engaged according to the terms contained in the advertisement or to those in the letter or both should be treated as engaged on “a general hiring,” I do not for my part think that, in a contract of service, use of the word “permanent” would be of itself sufficient to import the notion of a life appointment. The word is clearly capable, according to the context of many shades of meaning; and it seems to me of considerable importance, in interpreting its use a contract of service, that such a contract cannot be specifically enforced.”
The two passages set out above clearly elucidate the fact that an employment though permanent is not necessarily for life.
McClelland’s case was decided on the facts of the particular case, which facts are totally different from those in this case.
In Salt’s case (Supra):-
“The plaintiff was employed by the defendant company upon the terms of a letter, dated 24th December, 1925, which provided that the engagement would be for a minimum of 3 years, subject to the defendants’ right to cancel the agreement in case of wilful default.
The letter continued:
“The company shall have the right to terminate the agreement after the expiration of the above-mentioned period by giving 6 months’ notice in writing prior to the ensuing December 31, and in the absence of such notice the engagement to remain in force as a permanent one.” The defendants gave the plaintiff 6 months’ notice, to expire on 31st December, 1936. The plaintiff brought an action for wrongful dismissal:-
It was held that in the absence of notice to determine the employment at the end of the three years ending 31st December, 1928 the plaintiffs engagement was to be for his life, and there had been a breach of the agreement.
Salt’s case was again decided on the particular facts of the case which are different from the facts of the present case.
One thing however is clear about the two cases, that is in each case the employer reserved a right to dismiss the employee but only in certain stated circumstances. The power to dismiss was circumscribed by limitations and when they dismissed outside the limitations they were held to have acted wrongly.
In the present plaintiffs case, there is a general power to dismiss for misconduct of any kind that can justify a dismissal and to terminate the plaintiffs employment or give him a month’s notice or wages in lieu of notice.
Reading Exhibits ‘7’ and 7A’ carefully, I can find nothing in either of them to warrant the view that by employing the plaintiff in its permanent establishment, the defendant employed him for life. The plaintiff has not proved a life employment and his claim for damages on that basis must fail.
Now, although plaintiff has not proved a life employment, he would still be entitled to succeed although for a much smaller sum, if he can show that the dismissal was wrongful. I will therefore consider the question whether or not the dismissal was wrongful.
As I stated earlier only the plaintiff gave evidence. The defendant did not. If the plaintiff by his evidence makes out a case of wrongful dismissal, in the absence of evidence from the defendant to disprove it, he will be entitled to judgment for some amount. But my view is that the plaintiff has not proved a case of wrongful dismissal.
On the plaintiffs own showing, the defendant dismissed him on a report that he stole defendant’s petrol and oil, after the defendant had investigated the report and apparently found it was true.
The plaintiff was dismissed on 31-12-64. Going by the evidence before this Court, the plaintiff never bothered the defendant again about the matter until 1st May, 1965—See Exhibit ‘4 ‘.
He never complained that the dismissal was wrongful.
On 1st May, 1965, he turned up by letter Exhibit 4′ to defendant and said that Thomas Oko admitted in open Court that his report to the Defendant’s Security Officer that he the plaintiff stole petrol and oil was false. This admission is not proved and as I stated earlier there was no such admission.
It is my view that plaintiff not having disputed the propriety of his dismissal on his being finally dismissed on 31-12-64, the onus is on him to disprove the propriety. No doubt he realises this is so and hence he said in Exhibit ‘4’ that Thomas Oki had admitted in open Court that he had lied against him. As I have shown, plaintiff has not discharged that onus and I therefore have no reason to hold that the dismissal was wrongful.
As regards the claim for gratuity, the plaintiff has not proved that he is entitled to any gratuity. There is no evidence that he was enrolled, under his employer’s Gratuity Scheme and when he was so enrolled. See paragraph 1, at page 51 of Exhibit ‘7A’.
Plaintiff has failed in this action, which I regard as thoroughly speculative.
The action is dismissed.
I wish to say in passing that I do not want to be understood in this judgment as saying for all purposes that the onus of proving that a dismissal is wrongful lies on the plaintiff or that a defendant has not to justify a dismissal which has been shown to be prima facie at least wrongful. In the particular case, I have taken the view that the onus lay on the plaintiff because he had been maneuvered into that position by events connected with his dismissal as shown by his evidence.
Action dismissed.
