CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The Respondents were former employees of Benue Cement Company Plc, which was later acquired by the Appellant. They were suspended indefinitely pending investigation into allegations of fraud and theft in the company’s commercial/marketing department. The Respondents protested their indefinite suspension and filed an action at the High Court of Benue State, Gboko. An interlocutory injunction was granted restraining the company from taking any further disciplinary action against the Respondents during the pendency of the suit. Subsequently, the company was acquired by the Appellant, and the employment of the Respondents was terminated. The trial Court declared the indefinite suspension and termination of the Respondents’ employment unlawful, null and void, and ordered payment of their entitlements from the date of suspension. The Court of Appeal affirmed this decision but extended the damages to cover the period from suspension to the date of its judgment. The Appellant further appealed to the Supreme Court.
Issues for Determination
ISSUE 1:
Whether the learned Justices of the Court of Appeal were not in error when they affirmed the trial Court’s holding that the indefinite suspension of the Respondents amounted to a breach of the terms of service contained in Exhibit 1.
ISSUE 2:
Whether the learned Justices of the Court of Appeal were not in error when they affirmed the trial Court’s declaration of Exhibits 17 and 42 (letters of termination issued to the Respondents) as being unlawful, null and void.
ISSUE 3:
Whether the learned Justices of the Court of Appeal were not in error when they affirmed the undetermined entitlements awarded by the trial Court and suo motu extended the damages awarded to cover the period from dates of the Respondents’ suspensions in 2003 to the date of its judgment (9th December, 2009).
Decision / Holding
The Supreme Court allowed the appeal in part. The Court held that the Appellant had abandoned Issue 1 by failing to appeal against the finding on indefinite suspension. On Issue 2, the Court held that the termination was wrongful but not null and void, as the employment was of a master-servant nature without statutory flavour. The Respondents’ remedy was damages equal to salaries in lieu of notice, not reinstatement or arrears of salaries. The Court set aside the orders for payment of salaries from suspension to the date of judgment and substituted an order for salaries from suspension to the date of wrongful termination, plus one month’s salary in lieu of notice.
Ratio Decidendi / Principles
APPEAL — Ground(s) of Appeal — Effect of a Ground of Appeal from Which No Issue for Determination Is Formulated “It is also trite that where no issue is formulated from a ground of appeal, the ground is deemed abandoned.” Per Kekere-Ekun, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at p. 40; Paras E–F.
APPEAL — Unappealed Finding(s)/Decision(s) — Effect of Unappealed Finding(s)/Decision(s) of Court “The legal consequence and effect of the abandonment of the complaint and attack against the specific finding and holding by the trial Court on the indefinite suspension of the Respondents by the Appellant, as initially contained in Ground (4) of the aforenamed Notice of Appeal, is that the Appellant had accepted the said finding and decision by the trial Court and so it remains extant and binding on the parties. … This Court has no jurisdiction to directly, entertain an appeal against any finding or decision by the trial Court which was accepted by the Appellant and in respect of which no appeal was lodged before the Court below.” Per Garba, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 18–20; Paras D–A.
APPEAL — Unappealed Finding(s)/Decision(s) — Effect of Unappealed Finding(s)/Decision(s) of Court “The law is well settled that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court. The effect of failure to appeal against such finding is that the decision remains binding and conclusive between the parties.” Per Kekere-Ekun, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 40–41; Paras D–A.
JURISDICTION — Jurisdiction of the Supreme Court — Whether the Supreme Court Has Jurisdiction to Hear Appeals Directly from Decisions of the High Court “By Section 233(1) of the 1999 Constitution, as amended, this Court’s appellate jurisdiction is limited to appeals from decisions of the Court of Appeal.” Per Kekere-Ekun, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at p. 41; Paras D–A.
LABOUR LAW — Contract of Service/Contract of Employment — Whether Parties Are Bound by the Terms of the Agreement Entered into by Them “The law is firmly settled in employment/labour matters, the terms and conditions signed by both the employer and the employees form the formal agreement or contract that would regulate and govern the relationship between the parties. The parties to the contract or agreement; ie. the employer, on the one part and the employee/s, on the other, are legally bound by the terms and conditions agreed to by them and all actions by them during the employment, must be in compliance or in accordance with the specific terms and conditions of service specially provided to regulate and govern the relationship between them. Any of the parties who breaches or acts in violation of the terms and conditions of the service relationship would be liable for the breach or violation of the contract as may be stipulated therein.” Per Garba, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 8–9; Paras D–A.
LABOUR LAW — Employer/Employee Relationship — Whether the Court Can Impose an Employee on an Unwilling Employer “The law, for many years now, has been that in employment that does not enjoy the benefit of statutory favour, but of the nature of pure master and servant relationship, an employee, cannot be imposed or an unwilling employer who rightfully exercises the power and authority to end the employment relationship, even if wrongfully.” Per Garba, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 33–34; Paras D–A.
LABOUR LAW — Termination of Employment — Principles Guiding the Termination of Employment “The employment of the respondents not being one that enjoys statutory flavour, where their employment was terminable upon the giving of notice and the said employment was terminated without giving the requisite notice, what they are entitled to by way of damages is what they would have earned during the period of notice. The reason being that in an ordinary master/servant relationship, an employer has the right to terminate his employee’s employment for good or bad reason, or for no reason at all. The employer must however comply with terms of the agreement between the parties. Failure to comply with the terms of the agreement renders the termination wrongful but not null and void.” Per Kekere-Ekun, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 41–42; Paras D–A.
LABOUR LAW — Termination of Employment — Remedy for Wrongful Termination of Employment Without Statutory Flavour “The only remedy for wrongful termination of appointment is damages for breach of the contract of employment as set out in Exhibit ‘1’. Therefore, … the employment not being one with statutory flavour, the only remedy in damages the Respondents were entitled to for the wrongful termination was the salaries and allowances they would have earned had their employment been terminated by the giving of prior notice or salary and allowances in lieu of notice.” Per Ogunwumiju, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 43–44; Paras D–A.
LABOUR LAW — Termination of Employment — When Is Termination of Employment Deemed Proper and When Can It Be Said to Be Wrongful “By their contract therefore, the Appellant, as an employer, has/had the requisite power and authority to lawfully terminate the employment of the Respondents without any stated reason/s; whether disciplinary or otherwise, so long as the requisite notice of payment in lieu thereof, was given or made. Where that is done, then the termination becomes proper, valid and lawful under the terms and conditions freely agreed to in the contract entered into by the Appellant and the Respondents to govern and regulate their relationship while it lasted. Termination of employment can only be said to be wrongful when it was done in breach or violation of or in a manner not contemplated by the agreed terms and conditions set out either in the contract of the employment entered into by the parties, or contrary to or not in compliance with the relevant statutory provisions governing the employment with statutory flavor.” Per Garba, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 30–31; Paras D–A.
LABOUR LAW — Wrongful Termination of Employment — Remedy for Wrongful Termination of Employment; Measure of Damages Recoverable for Same “The remedy opened to the employee in cases of wrongful termination of employment by his employer, and recognised by the law, is the claim for damages. … Where for instance, the contract provides that the parties may determine it by way of notice of a specified nature and length or payment of money in lieu thereof, then in a claim for alleged wrongful termination of the employment, the law is now firmly established and settled that the quantum of damages a claimant would be entitled to is the sum or amount of money to be in lieu of the requisite notice for the proper termination of the employment. … In a claim for wrongful dismissal, the measure of damages is prima facie the amount the plaintiff would have earned had the employment continued according to the contract. … Being purely of a master-servant nature or kind of employment, the Respondent’s cannot claim and are not, in law, entitled to arrears of salaries and allowances and reinstatement on ground of the wrongful termination.” Per Garba, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 34–38; Paras D–A.
LABOUR LAW — Wrongful Termination of Employment — What Remedy Is Available to an Employee Whose Employment Was Terminated Without the Requisite Notice “The employment relationship between the Appellant and each of the Respondents is in the class of a master-servant relationship. There is no argument as to the fact that the Respondents’ employments did not enjoy statutory flavour. Hence, the Appellant being the employer, had the right to terminate the employment for no reason at all. … The Appellant terminated each of the Respondents’ employments without giving the requisite notice or salary in lieu. Since the employment in question was in the class of a master-servant relationship, the failure to give notice or salary in lieu as envisaged by the parties’ agreement rendered the termination wrongful rather than null and void and the only remedy that the Respondents are entitled to for the wrongful termination are damages in the form of the salary and entitlements due to them in lieu of notice.” Per Jauro, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 47–49; Paras D–A.
LABOUR LAW — Wrongful Termination of Employment — When Can Termination of Employment Be Considered Wrongful “Termination of employment of an employee by an employer may be declared wrongful if done in breach or violation of any of the terms and conditions of the employment agreed to by the parties in their contract of service, because it constitutes a breach of such contract. In the present appeal, after the Court below acknowledged that by the terms of Exhibit 1 in paragraph 19.02; ‘the Appellant reserves the right to terminate any of its employees without giving any reason’, it was apparently wrong in law to have declared the termination null and void on the ground only that notice or payment in lieu thereof was not given or made by the Appellant as stipulated in paragraph 19.02. Failure to give the requisite prior notice or pay in lieu of such notice before the termination of employment in line with the conditions of service of the employment only renders the termination wrongful, but not null and void or invalid since it was done in the exercise of an acknowledged power and authority of the employer to do so at any time in the course of the employment, without giving any reason at all.” Per Garba, JSC, in Dangote Cement Plc. v. Ager & Anor (2024) NLC-123-70-2010(SC) at pp. 32–33; Paras D–A.
Orders of Court
Appeal allowed in part. The order of the Court below for the payment of salaries and allowances of the Respondents from the date of suspension to the date of its judgment was set aside. In its place, it was ordered that the salaries and allowances of the Respondents be paid from the dates of their indefinite suspension to the dates of the wrongful termination of their employment. The Respondents are also to be paid the salaries and allowances they would have earned had their employment been properly terminated by the giving of the requisite notice or payment in lieu thereof, from the date of termination. Parties to bear their respective costs.
APPEARANCES
Counsel for the Appellant(s)
T. O. Ezeobi, Jnr., Esq.
Counsel for the Respondent(s)
B. I. Wayo, Esq. with him, N. Nyikwagh (Ms), Esq. - for 1st Respondent A. Labi-Lawal, Esq. with him, B. I. Banson - for 2nd Respondent
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY MOHAMMED LAWAL GARBA, J.S.C. (DELIVERING THE LEADING JUDGMENT):)
This appeal is against the judgment of the Court of Appeal, Jos Division, (Court below) delivered on the 9th December, 2009 dismissing the Appellant’s appeal from a decision of the Benue State High Court, sitting at Gboko (trial Court), entered in favour of the Respondents. The initial Notice of Appeal was filed on the 18th August, 2010 containing two (2) grounds, but was amended by the Amended Notice of Appeal filed on the 24th November, 2023, deemed on 11th December, 2023, containing four (4) grounds.
In the Amended Appellant’s brief filed on the 24th November, deemed on the same date with the Amended Notice of Appeal and the Amended Respondent’s Briefs, the following three [3] issues are formulated for determination:-
a. Whether the learned Justices of the Court of Appeal were not in error when they affirmed the trial Court’s holding that the indefinite suspension of the Respondents amounted to a breach of the terms of service contained in Exhibit 1 – distilled from Ground 1 of the Notice of Appeal.
b. Whether the learned Justices of the Court
1
of Appeal were not in error when they affirmed the trial Court’s declaration of Exhibits 17 and 42 (letters of termination issued to the Respondents) as being unlawful, null and void – distilled from Ground 2 of the Notice of Appeal.
c. Whether the learned Justices of the Court of Appeal were not in error when they affirmed the undetermined entitlements awarded by the trial Court and suo moto extended the damages awarded to cover the period from dates of the Respondents’ suspensions in 2003 to the date of its judgment (9th December, 2009) – distilled from Ground 3 of the Notice of Appeal.”
The Respondents filed separate Briefs; for the 1st Respondent, filed on the 30th June, 2023 and for the 2nd Respondent; on the 30th November, 2023, which as stated above, were deemed on the 11th December, 2023 at the hearing of the appeal.
Two [2] issues of the same substance are said to arise for decision in the appeal in each of the briefs, as follows:-
“1. Whether the Court below was, on the evidence, right by affirming the judgment of the Trial Court in its declaration that the termination- of the appointment of the Respondents/Plaintiffs,
2
was wrongful, null and void.
2. whether the Court below was right in ordering the Appellant to compute and pay all the financial entitlements, that is, salaries, and allowance due to the 1st Respondent in full from the date of suspension up till the date of judgment being 9th of December, 2009.”
Before a consideration of the issues, a brief restatement of the facts which led to the action from which the appeal emanated would provide the pedestal upon which the issues are predicated. The Respondents were employees of the former Benue Cement Company, Plc, taken over by the present Appellant, who were, suspended indefinitely for an investigation to be carried out on allegations of fraud and the theft in the company’s commercial/ marketing department. The Respondents protested their indefinite suspension and when the company failed to do anything about it, they filed the action at the trial Court against the company and an injunction was issued that no further disciplinary action be taken against the Respondents during the pendency of the action. Meanwhile, the Benue Cement Company, Plc. Was acquired and taken over by the Appellant and the employment of the
3
Respondents along with other employees of the acquired company, was terminated. As a result, the Respondents amended their claims before the trial Court to include reinstatement and payment of entitlements from the date of the indefinite suspension and termination of employment on the basis of a breach of their contract of employment.
At the end of trial, the indefinite suspension and termination of the Respondents were declared unlawful and the company was ordered to pay all their entitlements from the date of the suspension, termination and disengagement.
The Appellant’s appeal to the Court below, as mentioned above, was dismissed and it was ordered that:-
“The Appellant is to pay their salaries from the date of suspension to the date of this judgment. All their entitlements, i.e. Salaries and allowances are to be paid to them in full until the date of this judgment.”
I now turn back to the issues formulated for determination in the appeal and intend to consider the Appellant’s issues as the direct complaints against the decision by the Court below as contained in the grounds of the appeal.
Issue 1: Appellant’s
4
Submissions
Relying on Udemah v. Nigerian Coal Corp. (1991) 3 NWLR (pt. 180) 477 at 486 (CA) and Longe v. F.B.N. Plc. (2006) 3 NWLR (pt. 967) 228 at 265, it is submitted that the Court below erred by holding that the suspension of the Respondent amounted to a breach of the terms of service contained in Exhibit 1 since the Appellant was entitled to suspend them for the purpose of investigation. It is argued that since the Respondents’ suspension was for the purpose of investigation, Exhibit 1 does not apply as it only applies in instances where the suspension is imposed as a disciplinary measure against an employee who has been found guilty of some wrongdoing. Paragraph 19.01 of Exhibit 1 was set out and it is maintained that the Respondents’ suspension was not and could not have been circumscribed by the seven (7) day limit stipulated therein to warrant the finding that it amounted to a breach of the terms of service.
1st Respondent’s Submissions:
The submissions are to the effect that the Respondents had pleaded facts of their employment and terms of service in paragraphs 1, 2, 4, 5, 6, 7, 14, 15 and 22 of the Amended Statement of
5
Claim and tendered Exhibit 1 in evidence. It is contended that the indefinite suspension without cause or offence, was outside and constituted a breach of Exhibit 1 for exceeding seven (7) days.
2nd Respondent’s Submissions:
The same arguments as those made by the 1st Respondent are canvassed under the issue and in addition, it is argued that no new issue was raised in the Appellant’s Amended Statement of Defence to have warranted a Reply from the Respondents, on the authority of Akeredolu v. Akinremi (1989] 3 NWLR (pt. 108] 164 at 172.
The case of Longe v. F.B.N. Plc (supra] cited by the Appellant is said not to be applicable to the Respondents’ case since the issue before the trial Court was not on the power of an employer to suspend his employee, but whether the employer complied with the terms in Exhibit 1.
Resolution
In the judgment appealed against, the Court below, at pages 16-17 [page 139 -140 of the Record of Appeal) stated and found that:-
“Learned counsel for the Respondents submitted that parties are bound by the terms of their contract, as in this case Exhibit 1. See
6
Ibama Vs. Shell Petroleum Development Company of Nigeria Ltd. (2005) All FWLR pt. 287 pg. 832 at Pg 843 – 4 para G – A where the Supreme Court held that:-
“The contract of service is indeed the pivot or foundation upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof. Therefore, in a contract of service reduced into writing by the parties as the contract of service, Exhibit “V” in the instant case, the Court will not look into any matter outside the terms stipulated and agreed therein between the parties to the contract, in determining the respective rights and obligations of the parties. See also Western Nigerian Development Corp Vs. Abimbola (1966) NSCU Pg 172.”
In the instant case the Appellant suspended the Respondents indefinitely contrary to Exhibit 1. The Appellant can only suspend an employee for a maximum of 7 days without pay. It therefore means that suspending the Respondents indefinitely was contrary to their conditions of service Exhibit 1 paragraph 10.01(a).
The second disciplinary option for the Appellant was to issue a warning letter to the errant employee paragraph 19.0.01(b).
Subject to paragraph 10.02 the Appellant
7
has a right of terminating any employee without reason by just paying 1 month or 2 weeks as the case may be in lieu of notice.”
As can easily be observed, the reasoning is that the indefinite suspension of the Respondents was contrary to paragraph 19.01(a) of the terms and condition of service of the Respondents’ employment with the Appellant; admitted at the trial, as Exhibit 1.
The law is firmly settled in employment/labour matters, the terms and conditions signed by both the employer and the employees form the formal agreement or contract that would regulate and govern the relationship between the parties.
The parties to the contract or agreement; ie. the employer, on the one part and the employee/s, on the other, are legally bound by the terms and conditions agreed to by them and all actions by them during the employment, must be in compliance or in accordance with the specific terms and conditions of service specially provided to regulate and govern the relationship between them. Any of the parties who breaches or acts in violation of the terms and conditions of the service relationship would be liable for the breach or violation of the
8
contract as may be stipulated therein. SeeOkonkwo v. Co-op. & Comm. Bank Nig. Plc (2003) FWLR (pt. 154) 457 (SC), Ifeta v. Shell Petroleum (2006) 3 FWLR (pt. 321) 3899 (SC), Babatunde v. B.O.N. Ltd. (2011) 18 NWLR (pt. 1279) 738 (SC), Obanye v. U.B.N. Plc (2018) 17 NWLR (pt. 1648] 375 (SC), Enilolobo v. N.P.D.C. (2019) 18 NWLR (pt. 1703) 168 (SC).
In this appeal, there is no dispute between the parties that the terms and conditions of the contract of employment between them which governed and regulated their relationship
Concurring Opinion(s)
— KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.:
The law is well settled that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court. The effect of failure to appeal against such finding is that the decision remains binding and conclusive between the parties. See Opara Vs Dowel Schlumberger (Nig) Ltd & Anor, (2006) LPELR – 2746 (SC) @ 19 A — E; Alakija Vs Abdulai (1998) 6 NWLR (Pt, 552) 1 @ 4; State Vs Solomon (2020) LPELR – 55598 (SC) @ 24 – 25 B – A; C.G.C. Nig. Ltd Vs Alh. Mustapha Isa (2023) LPELR – 60350 (SC) @ 28 – 29 D – F.
It is also trite that where no issue is formulated from a ground of appeal, the ground is deemed abandoned. See Adigun Vs Ayinde (1993) 8 NWLR (Pt- 313) 516; Ibrahim Vs Mohammed (2003) 2 SC 127; (2003) LPELR – 1409 (SC) @ 26
40
– 27 F – A; Eke Vs Ogbonda (2006) 11-12 SC. 31.
Indeed, in the instant case, the appellant categorically abandoned Ground 4 of the Notice of Appeal to the lower Court in paragraph 2.04 of its brief of argument before that Court. Ground 4 challenged the finding of the lower Court to the effect that the indefinite suspension of the plaintiffs/respondents amounted to a breach of their terms of service as contained in Exhibit 1. Having abandoned the issue, I agree entirely with my learned brother, Mohammed Lawal Garba, JSC in the lead judgment that the appellant’s issue 1 has no place before this Court. It is incompetent as it seeks to appeal directly from the High Court to this Court. By Section 233(1) of the 1999 Constitution, as amended, this Court’s appellate jurisdiction is limited to appeals from decisions of the Court of Appeal.
I am also in agreement with His Lordship that the employment of the respondents not being one that enjoys statutory flavour, where their employment was terminable upon the giving of notice and the said employment was terminated without giving the requisite notice, what they are entitled to by way of damages is what they
41
would have earned during the period of notice. The reason being that in an ordinary master/servant relationship, an employer has the right to terminate his employee’s employment for good or bad reason, or for no reason at all. See Shitta-Bey Vs Federal Public Service Commission (1981) 1 SC 40 @ 56; Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt. 9) 599. The employer must however comply with terms of the agreement between the parties. Failure to comply with the terms of the agreement renders the termination wrongful but not null and void. See Obanye Vs Union Bank of Nig, Plc (2018) LPELR – 44702 (SC) @ 24 – 27 F – E.
In the circumstances of the present appeal, I agree with His Lordship in the lead judgment that the respondents were entitled to the salaries and allowances they would have earned had they received the requisite notice. In the absence of an appeal against the finding of the trial Court concerning their suspension I agree that they are entitled to their salaries and allowances from the date of their indefinite suspension to the date of the wrongful termination of their employment without the requisite notice.
For these and the more
42
comprehensive reasoning in the lead judgment, I allow the appeal in part in terms of the lead judgment. I abide by the order on costs.
Appeal allowed in part.
— HELEN MORONKEJI OGUNWUMIJU, J.S.C.:
I have read the erudite judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JSC and I am of the view that the appeal should be allowed in part. I will add a few words by way of emphasis to the exhaustive judgment of my learned brother.
There is no doubt that it was after the suspension of the Respondents and the order of interlocutory injunction that the Appellant was taken over by Dangote Cement. It was after the take over that the employment of the Respondents with other workers of the company was terminated. Therefore, the termination of the Respondents’ appointments after the take over was not a disciplinary measure and did not violate the existing Court injunction to make it unlawful, null and void.
The terms of employment between the parties as shown in Exhibit ‘1’ were binding on the parties prior to and subsequent to the acquisition of the Appellant by Dangote Cement. In the circumstance, even though the Appellant had the
43
discretion to terminate the employment of the Respondents and other employees, it must do so with adequate requisite notice or payment of salary in lieu of notice. Where this was not done, the termination is wrongful. The only remedy for wrongful termination of appointment is damages for breach of the contract of employment as set out in Exhibit ‘1’. Therefore, my Lords, in the circumstance of this case, the employment not being one with statutory flavour, the only remedy in damages the Respondents were entitled to for the wrongful termination was the salaries and allowances they would have earned had their employment been terminated by the giving of prior notice or salary and allowances in lieu of notice.
In the peculiar circumstances of this case, the Respondents had been suspended indefinitely for months without pay, whereas their terms of employment were that they could only be suspended for a maximum of seven (7) days without pay. Both lower Courts had found the indefinite suspension without pay illegal, null and void. That was a finding clearly in error for the obvious reason that the employment was not one with statutory flavour, so the issue of
44
illegality did not arise. However, it is clear that it was wrongful to have suspended the Respondents indefinitely. In any event, the Appellant did not appeal against this finding. Therefore, the Appellant had conceded the wrongfulness of indefinite suspension of the Respondents between the time the Respondents were suspended and the time their employment was terminated by the Appellant. The Respondents are entitled only to their salaries and allowances from the date of their indefinite suspension to the date of the termination of their appointment. My lords, there is no doubt that in special circumstances where the employee has proved entitlement to general damages in view of the excessive and unreasonable treatment meted out to them by the employer, the employee would be entitled for consideration of the award of general damages for the unreasonable and unwarranted wrongful dismissal.
In this case, apart from stating in paragraph 10 of the Statement of Claim that they were placed on suspension with half pay for more than seven days, and the averment in paragraph 11 that they suffered emotionally and physically as a result of the suspension with half
45
pay, the Respondents did not give any reason to warrant the award of N4,000,000.00 (Four Million Naira) general damages and so it was refused by the two lower Courts. I also refuse same. As stated earlier, their employment was wrongfully terminated only in the context of failure to give requisite one month’s notice or to pay one month’s salary in lieu of notice.
They are also entitled to one month’s salary in lieu of notice of termination of their employment. The orders of the Court below declaring their termination null and void is set aside. The order to the Appellant to pay the allowances and salaries of the Respondents from the date of suspension till the judgment of the Court below is also set aside.
Appeal allowed in part. I abide by the order as to costs.
— ADAMU JAURO, J.S.C.:
I have had the privilege of reading in draft the lead judgment just delivered by his Lordship Mohammed Lawal Garba, JSC. I agree entirely with the reasoning and conclusion reached therein.
In its appeal to the lower Court, the Appellant expressly abandoned ground 4 of its Notice of Appeal, which complained about the decision of the trial Court that the
46
indefinite suspension of the Respondents amounted to a breach of Exhibit 1, their conditions of employment. This had the impact of refusing to appeal against the said decision. It is well settled beyond equivocation that the failure of a party to appeal against a decision or finding of a lower Court means that he can no longer be heard to question that finding, which he is deemed to have accepted as binding, and has in fact, become binding on him. See YUSUF V. KANO STATE (2023) 10 NWLR (PT. 1891) 23; I.N.E.C. V. A.C.D. (2023) 3 NWLR (PT. 1870) 97; OKEREMUTE V. STATE (2021) 16 NWLR (PT. 1803) 587; OFFODILE V. ONEJEME (2021) 7 NWLR (PT. 1775) 389.
Furthermore, the Appellant having failed to appeal against the decision at the Court below, cannot challenge the same before this Court as this Court is not vested with jurisdiction to entertain an appeal directly from a High Court. See Sections 233(1) and 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) as well as the cases of C.G.C. (NIG) LTD V. ISA (2023) LPELR – 60350 (SC); IGWEMMA & ANOR V. OBIDIGWE & ORS (2019) LPELR – 48112 (SC); BELLO V. FRN (2018) LPELR – 44465 (SC); IDAGU V. STATE
47
(2018) LPELR – 44343 (SC); DARLINTON V. FRN (2018) LPELR – 43850 (SC).
The employment relationship between the Appellant and each of the Respondents is in the class of a master-servant relationship. There is no argument as to the fact that the Respondents’ employments did not enjoy statutory flavour. Hence, the Appellant being the employer, had the right to terminate the employment for no reason at all. This is also in line with the agreement between the parties as captured in Paragraph 19.02 of Exhibit 1. The same Paragraph provides that the employees (like the Respondents) who have put in upwards of five years of service are entitled one month’s notice of termination of employment or salary in lieu of notice. The Appellant terminated each of the Respondents’ employments without giving the requisite notice or salary in lieu. Since the employment in question was in the class of a master-servant relationship, the failure to give notice or salary in lieu as envisaged by the parties’ agreement rendered the termination wrongful rather than null and void and the only remedy that the Respondents are entitled to for the wrongful termination are damages in
48
the form of the salary and entitlements due to them in lieu of notice. See OBANYE V. UNION BANK (2018) LPELR – 44702 (SC); OSISANYA V. AFRIBANK (NIG) PLC (2007) LPELR – 2809 (SC).
The decision of the lower Court declaring the termination of the Respondents’ employment as null and void is hereby set aside.
Hence, the Respondents are entitled to and are to be paid their salaries and allowances from the dates of their respective unlawful indefinite suspensions to the date of the wrongful termination of their employment as well as the salaries and allowances they would have earned, from the date of termination of their employments, in lieu of one month’s notice for the termination of their respective employments.
I also agree with my learned brother as held in the lead judgment that the disengagement of the Respondents from the employment of the Appellant, which was not a further disciplinary action against the Respondents in relation to the facts that gave rise to this suit, was neither in disobedience of Exhibit 18 nor was it contemptuous.
In conclusion, I agree with my learned brother that the appeal ought to be allowed in part and same is hereby
49
allowed in part in the terms contained in the lead judgment. I abide by the orders made in the lead.
— TIJJANI ABUBAKAR, J.S.C.:
I had the advantage of reading before now the comprehensive leading Judgment of my learned brother GARBA, JSC. I endorse the entire reasoning and conclusion and adopt the Judgment as my own.
I have nothing extra to add.
50
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
Adekunjo v. Hussaini (2021) 11 NWLR (pt. 1788) 434 (SC) — cited at p. 20
Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516 — cited at p. 40
Agbareh v. Mimra (2008) LPELR-4321 (SC) — cited at p. 23
Agwu v. Julius Berger Nig. Plc (2019) 11 NWLR (pt. 1682) 165 (SC) — cited at p. 34
Akinlagun v. Oshoboja (2006) All FWLR (pt. 325) 53 (SC) — cited at p. 20
Akinlade v. INEC (2020) 77 NWLR (pt. 1754) 439 (SC) — cited at p. 19
Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 — cited at p. 40
Amodu v. Amode (1990) 5 NWLR (pt. 150) 356 (SC) — cited at pp. 31, 38
Ativie v. Kabel Metal Nig. Ltd. (2008) 10 NWLR (Pt. 1095) 399 — cited at p. 36
Awolowo v. Shagari (1979) All NLR (SC) 120 — cited at p. 11
Baba v. N.C.A.T.C. — cited at p. 36
Babatunde v. B.O.N. Ltd. (2011) 18 NWLR (pt. 1279) 738 (SC) — cited at p. 9
Babatunde v. Olatunji (2000) FWLR (pt. 5) 874 — cited at p. 23
Bamgboye v. Univ. of Ilorin (1999) 10 NWLR (Pt. 22) 290 — cited at p. 37
Banke v. Akure North L. G (2015) 6 NWLR (pt. 1455) 400 — cited at pp. 34, 36
Beckham v. Drake (1849) 2 H.L. cases 579 — cited at p. 35
Bello v. FRN (2018) LPELR-44465 (SC) — cited at p. 47
C.G.C. Nig. Ltd v. Alh. Mustapha Isa (2023) LPELR-60350 (SC) — cited at pp. 40, 47
Carlens v. Unijos (1994) LPELR-832 (SC) — cited at p. 22
Chami v. UBA, Plc (2010) 6 NWLR (pt. 1191) 474 (SC) — cited at p. 18
Chukwuma v. SPDCN Ltd. (1993) 4 NWLR (Pt. 289) 512 — cited at p. 35
Coca-Cola v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74 (SC) — cited at p. 38
Co-operative Bank Plc v. Essien (2001) 4 NWLR (Pt. 704) 479 — cited at p. 36
Darlington v. FRN (2018) LPELR-43850 (SC) — cited at p. 48
Eke v. Ogbonda (2006) 11-12 SC 31 — cited at p. 41
Ekumola v. CBN (2013) All FWLR (Pt. 703) 1861 (SC) — cited at p. 36
Emegokwue v. Okadigbo (1973) 4 SC 113 — cited at p. 22
Enilolobo v. N.P.D.C. (2019) 18 NWLR (pt. 1703) 168 (SC) — cited at p. 9
Eze v. Spring Bank, Plc (2011) 18 NWLR (Pt. 1278) 113 — cited at p. 37
F. M. C. Ido-Ekiti v. Alabi (2012) 2 NWLR (Pt. 1285) 411 — cited at p. 36
Garba v. F.C.S.C. (1988) 1 NWLR (pt. 71) 449 — cited at p. 23
Gbedu v. Itie (2020) 3 NWLR (pt. 1710) 104 (SC) — cited at p. 31
George v. Dominion Flour Mills Ltd. (1963) All NLR 71 — cited at p. 21
Green v. Green (1987) 7 SCNJ 255 — cited at p. 18
Hanatu v. Amadi (2020) 1 SC (pt. vi) 91 — cited at p. 18
I.D.C.N. Ltd. v. Ajijola — cited at p. 35
I. H. A. B.U. H. M. B. v. Anyi (2011) 12 NWLR (Pt. 1260) 1 (SC) — cited at p. 38
I.N.E.C. v. A.C.D. (2023) 3 NWLR (PT. 1870) 97 — cited at p. 47
Ibama v. Shell Petroleum Development Company of Nigeria Ltd. (2005) All FWLR pt. 287 pg. 832; (2005) 17 NWLR (pt. 954) 364 (SC) — cited at pp. 7, 23, 29
Ibrahim v. Mohammed (2003) 2 SC 127; (2003) LPELR-1409 (SC) — cited at p. 40
Idagu v. State (2018) LPELR-44343 (SC) — cited at p. 47
Idiok v. State (2008) 6 MJSC 36 — cited at p. 18
Ifeta v. Shell Petroleum (2006) 3 FWLR (pt. 321) 3899 (SC); (2006) 8 NWLR (Pt. 983) 585 (SC) — cited at pp. 9, 36, 37
Igbinokpogie v. Ogedgegbe (2001) 92 LRCN 3253 — cited at p. 21
Igwemma & Anor v. Obidigwe & Ors (2019) LPELR-48112 (SC) — cited at p. 47
Ijebu-Ode L.G. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (pt. 166) 136 (SC) — cited at p. 20
Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506 — cited at p. 11
Iwuchukwu v. Nwizu (1994) 7 NWLR (pt. 357) 357 — cited at p. 31
Iyere v. B.F.F. M. Ltd. (2008) 18 NWLR (pt. 1119) 300 — cited at p. 29
Jaiyesimi v. Darlington (2022) 9 NWLR (pt. 1835) 335 (SC) — cited at p. 19
Katto v. CBN (1999) 6 NWLR (607) 390 (SC) — cited at pp. 31, 36
Longe v. F.B.N. Plc. (2006) 3 NWLR (pt. 967) 228; (2010) 6 NWLR (pt. 1189) 1 (SC) — cited at pp. 5, 6, 34, 36
Maduabum v. Nwosu (2010) 13 NWLR (pt. 1212) 623 — cited at p. 18
Marwa v. Nyako (2012) 6 NWLR (pt. 1296) 199 (SC) — cited at p. 11
Messrs Singoz & Co. Nig. Ltd. v. U.M. Co. Ltd. (2022) 18 NWLR (pt. 1862) 203 (SC) — cited at p. 19
Mobil Oil Nig. Ltd. v. Assan (1995) 8 NWLR (pt. 412) 143 — cited at p. 23
Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (pt. 145) 506 — cited at p. 31
Musa v. State (2022) 18 NWLR (pt. 1863) 551 (SC) — cited at p. 20
N.I.P.C. Ltd. v. The Thompson Org. (1969) 1 All NLR 138 — cited at p. 21
N. P. M. B. v. Adewumi (1972) 11 SC 111 — cited at p. 38
Nig. Prod. Mkt. Bd. V. Adewunmi (1972) 11 SC 111; (1972) 1 All NLR (Pt. II) 2133 — cited at p. 36
Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 — cited at p. 21
Nwawuba v. Enemuo (1988) 2 NWLR (pt. 78) 581 — cited at p. 21
Nwoye v. FAAN (2019) 5 NWLR (pt. 1665) 193 (SC) — cited at p. 34
Obanye v. U.B.N. Plc (2018) 17 NWLR (pt. 1648) 375 (SC); (2018) LPELR-44702 (SC) — cited at pp. 9, 34, 35, 38, 42, 49
Offodile v. Onejeme (2021) 7 NWLR (PT. 1775) 389 — cited at p. 47
Oforishe v. N. G. C. Ltd. (2018) 2 NWLR (Pt. 1602) 35 (SC); (2017) LPELR-42766 (SC) — cited at pp. 23, 38
Okeremute v. State (2021) 16 NWLR (PT. 1803) 587 — cited at p. 47
Okoh v. Unilag (2011) 14 NWLR (Pt. 1268) 563 — cited at p. 36
Okonkwo v. Co-op. & Comm. Bank Nig. Plc (2003) FWLR (pt. 154) 457 (SC) — cited at p. 9
Okomu Oil Palm Co. Ltd. v. Iserhienrhen (2001) 6 NWLR (Pt. 710) 660 (SC) — cited at p. 38
Okotie-Eboh v. Manager (2004) 11-12 SC 174 — cited at p. 18
Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 — cited at p. 42
Oloruntoba-Oju v. Abdul.-Raheem (2009) 13 NWLR (Pt. 1157) 83 (SC) — cited at p. 37
Ompadec v. Ajoku (2001) 8 NWLR (pt. 715) 379 — cited at p. 11
Onalaja v. A.P. Ltd. (1991) 7 NWLR (Pt. 206) 691 — cited at p. 35
Onuminya v. Access Bank, Plc (2015) 9 NWLR (Pt. 1463) 159 — cited at p. 36
Opara v. Dowel Schlumberger (Nig) Ltd & Anor (2006) LPELR-2746 (SC) — cited at p. 40
Osisanya v. Afribank (Nig) Plc (2007) LPELR-2809 (SC) — cited at p. 49
Oyeyemi v. Owoye (2017) 12 NWLR (Pt. 1580) 364 (SC) — cited at p. 38
PDP v. Degi-Eremienyo (2020) 1-2 SC (pt. 1) 144 — cited at p. 18
Robert v. IGP (2021) 7 NWLR (pt. 1775) 267 (SC) — cited at p. 19
Seven-Up Bottling Co. Plc v. Augustus (2012) LPELR-20873 — cited at p. 36
Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 — cited at p. 42
Simi v. INEC (2020) 1-2 SC (pt. IV) 17 — cited at p. 20
Sommer v. FHA (1992) 1 NWLR (pt. 219) 548 — cited at p. 21
Standard Nig. Engr. Co. Ltd. v. Nig. Bank for Comm. & Ind. Ltd. (2006) All FWLR (pt. 316) 255 (SC) — cited at p. 18
State v. Solomon (2020) 3-4 SC (pt. 1) 180; (2020) LPELR-55598 (SC) — cited at pp. 18, 40
U.E.S. Ltd. v. R. M. A. & F.C. (2022) 10 NWLR (pt. 1837) 133 (SC) — cited at p. 19
UBN Ltd. v. Ogboh (1995) 2 NWLR (pt. 380) 647 (SC) — cited at p. 29
UBN Ltd. v. Ozigi (1994) 3 NWLR (pt. 333) 385 — cited at p. 29
Udemah v. Nigerian Coal Corp. (1991) 3 NWLR (pt. 180) 477 (CA) — cited at p. 5
Ukpanah v. Ayaya (2011) 1 NWLR (pt. 1227) 61 — cited at p. 22
Umera v. N.R.C. (2022) 10 NWLR (pt. 1838) 349 (SC) — cited at pp. 31, 34
Western Nigerian Development Corp v. Abimbola (1966) NSCU 172; (1966) NSCN 172 — cited at pp. 7, 23
Yusuf v. Kano State (2023) 10 NWLR (PT. 1891) 23 — cited at p. 47
Referenced Statutes
1999 Constitution of the Federal Republic of Nigeria (as altered), Sections 233(1), 240 — cited at pp. 41, 47
