AJAYI v. TEXACO NIGERIA LTD

BABATUNDE AJAYI Appelants

And

TEXACO NIGERIA LIMITED & ORS Respondents

Obaseki, JSC. On the 30th day of June, 1987, after hearing the submissions of counsel for the appellant and counsel for the respondents and reading the written briefs of arguments filed by the parties together with the record of proceedings, judgments of the Court of Appeal and the High Court, i.e. the two courts below, I, in concurrence with my learned brothers dismissed this appeal and reserved my reasons for the judgment till today. I now proceed to give them.

The claim filed by the appellant as plaintiff against the respondents as defendants in the High Court of Lagos State Holden at Lagos as set out in paragraph 29 of the statement of claim reads:

“the plaintiff claims against the 1st defendant company:

1. A declaration that:

(a) The plaintiff is the Operations Manager of the 1st defendant company under a contract of employment;

(b) Any breach of the said contract of employment between the plaintiff and the 1st defendant company is illegal, invalid, ultra vires, null and void and of no effect;

2. An injunction restraining the 1st defendant company by itself, its servants and/or agents or otherwise from committing a breach of the said contract of employment existing between the plaintiff and the 1st defendant company or in any way interfering with the plaintiff in the performance of his duties as Operations Manager; ALTERNATIVELY, the plaintiff claims against the 1st defendant company N634,833.00 special and general damages for anticipatory breach of contract.

Particulars

(i )Salary and other emoluments and benefits for 9 1/2 N612,009.00

years at N64,422.00 per annum

(ii) Pension 20,000.00

(iii) Accrued Leave 1,824.00

(iv) Leave Bonus 1,000.00

Total N634,833.00

…………………….B…………………….

The plaintiff also claims an injunction against the 2nd and 3rd defendants jointly and severally from wrongfully unlawfully inducing a breach of the plaintiff’s contract of employment on the part of the 1st defendant company or ALTERNATIVELY, the sum of N634,833.00 damages.”

First defendant company counter-claimed against the plaintiff in paragraph 14 of the statement of defence and counter-claim as follows:

“The dwelling house at Plot 866A Victoria Island, Lagos was allocated to the plaintiff for his occupation and use. He was also allowed the use of Toyota Crown Saloon car Registration No. LAA 2746. Both the said dwelling house and car belong to the 1st defendant and are still in the possession of the plaintiff.

Wherefor, the 1st defendant counter claims as follows:

(a) for an order that the plaintiff do give up possession of the said premises at and being plot 866A Victoria Island, Lagos, to the 1st defendant;

(b) For an order that the plaintiff do surrender Toyota Crown Saloon car Registration No. LAA 2756 to the 1st defendant.”

Pleadings were filed and served and the issues joined came up for trial before Bada, J.

After hearing evidence of witnesses called by the parties, addresses of counsel for the parties, the learned trial Judge delivered a considered judgment.

(a) dismissing the plaintiff’s claim for declaration for an order of injunction; and

(b) granting the alternative claim for damages assessed at N34,212.50

In his judgment, the learned trial Judge observed and found as follows:

“Although there is no evidence before me that the powers as to the management of a business of a company as set out in Article 82 had been entrusted to and conferred upon the 2nd defendant, it is my view that since the plaintiff admitted that the 2nd defendant had power to take disciplinary action against him such power would include power to terminate

…………………….C…………………….

Defence learned Counsel’s submission in the main, was on Exhibit D1 which he submitted the 1st defendant complied with as to notice of termination, that is, one month’s notice or a month’s salary in lieu and that in this case, the plaintiff was paid 3 months’ salary in lieu of notice together with all his entitlement. While I am in agreement with the submission of learned defence counsel on this point, I am of the view that his submission would have succeeded in a case where an employer terminates the services of the employee under the contract between the parties without adducing any reason for it but under the contract simpliciter. Exhibit D1 does not provide for any disciplinary measure against an employee. Clause 3 paragraph 2 of Exhibit D1 on which the defence is relying provides for period of termination of confirmed officer without more. The threatened termination of the plaintiff was based solely on the contract between the parties but because of the reasons contained in Exhibit p4 on which the plaintiff testified were prompted by malice of the 2nd and 3rd defendants against him, then question arises: Was it not incumbent on the defendants…to rebut this evidence in view of their denial of that paragraph of their statement of defence?

In the present case, there is no evidence before me to controvert the evidence of the plaintiff that the exercise of the 2nd and 3rd defendants in connection with this matter was malicious and I cannot, but hold that the threatened termination of the plaintiff was unlawful.. In the circumstances, I cannot make the declarations prayed for.”

(Italics mine)

By this finding, it should be observed that it was the threatened termination that was unlawful. There was no finding that the employment was terminated or that the termination was wrongful. What is “anticipatory breach” of a contract? It is a breach of contract caused by the repudiation of obligations not yet ripe for performance. As Lord Blackburn puts it in Mersey Steel and Iron Co. v. Naylor Benzon & Co. (1884) 9 App Cas 434:

“Where there is a contract to be performed in the future, if one of the parties has said to the other in effect.

‘If you go on and perform your side of the contract, I will not perform mine’

…………………….D…………………….

that in effect amounts to saying ‘I will not perform the contract.’ In that case, the other party may say ‘you have given me distinct notice that you will not perform the contract, I will not wait until you broken it, but I will treat you as having put an end to the contract and if necessary I will sue you in damages, but at all events, I will not go on with the contract’.

It does not appear that this case falls within the category of cases of anticipatory breach of contract.

Where in a contract of employment provisions are made for the termination of the contract and the provisions are followed or complied with to terminate the contract, the question of anticipatory breach does not arise. The exercise of a right of termination of a contract in accordance with the contract does not amount to a breach of the contract. A threat to terminate an employee’s employment remains only a threat and does not without more amount to a wrongful dismissal or a breach of contract of employment.

The defendants/respondents were not satisfied with the judgment of Bada, J. particularly the portion in which the High Court found:

“(a) That the threatened termination for the plaintiffs’ employment under the 1st defendant was wrongful;

(b) That the defendants were liable in damages to the plaintiff for threatened termination of employment or anticipatory breach.”

The defendants/respondents therefore took the matter on appeal to the Court of Appeal and the grounds of appeal filed and argued were:

(1) That the learned trial Judge erred in law in holding in an action for breach of contract, that the termination of the plaintiff’s appointment under the 1st defendant was wrongful when no satisfactory proof of contract of employment relied on by the plaintiff was adduced in evidence;

(2) That the learned trial Judge erred in law in holding in an action for breach of contract, that the termination of the plaintiff’s appointment under the first defendant was wrongful because the 2nd and 3rd defendants acted from selfish irrelevant and improper motives when there was no evidence before him that in considering the actions of the 1st defendant and its agents under the plaintiff’s contract of employment, motive was relevant;

…………………….E…………………….

(3) That the learned trial Judge erred in law in holding that the termination of the plaintiff’s appointment under the 1st defendant was wrongful because the 2nd and 3rd defendants acted from improper motives when there was no proof whatsoever before him that the said defendants in fact so acted.

(4) That the judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence;

(5) That the damages awarded to the plaintiff are excessive in that the award ran counter to:

(a) the law relating to the award of damages in cases of wrongful dismissal;

(b) the stipulation as to payment of salary in lieu of notice contained in the only proven contract of employment between the plaintiff and the 1st defendant.”

The appeal came up before the Court of Appeal and was heard by the Court (Coram Ademola, Nnaemeka-Agu and

Mohammed, JJCA.) on the 18th day of February, 1985. In a reserved well considered judgment delivered on the 18th day of March, 1985, the Court of Appeal unanimously allowed the appeal and set aside the decision of the High Court in the matter Suit No. LD/354/79 delivered on the 2nd day of November 1979 and dismissed the claim in toto with costs fixed at N700.00 in the Court of Appeal and N300.00 in the High Court. In the lead judgment delivered by Mohammed, JCA. (concurred in by Ademola and Nnaemeka-Agu, JJCA), the learned Justice observed and found in his own words:

“On the issue of period of service, it has been spelt out in exhibit D1 that a confirmed employee could have his service terminated by either party by giving thirty (30) days notice in writing of paying equivalent of one month basic salary if such termination is to take immediate effect. I am satisfied that all due processes have been followed in the case of termination of the respondents’ employment with the 1st appellant. There was therefore no breach of any conditions of respondent’s employment when 1st appellant served him with notice of termination of his employment with them.

The learned trial Judge’s finding should have been based on these facts

…………………….F…………………….

It was an agreement accepted by both parties in exhibit D1 that each party could give the other one month notice or one month basic salary in lieu of notice to cause an end to the contract of employment. The 1st appellants were in fact generous enough to give three months salary in lieu of notice and, in my view, the contract of service between them had been validly terminated

In view of the foregoing, I hold that the learned trial Judge was quite in error to award damages to the respondent for what he claimed as anticipatory breach of contract. The appeal must succeed and it is allowed. The judgment of Bada, J. in suit No. LD/354/79 delivered on the 2nd day of November, 1979 is set aside.”

The Court of Appeal however directed, on the issue of other entitlements that

“the appellants having offered the total sum of 32,867.59 less outstanding debt claims against the respondent claim of N12,335.08, must go ahead and pay the said amount to the respondent. I shall award N700.00 costs in favour of the appellants and N300.00 in the court below.”

This direction was necessary to forestall or prevent further litigation on the issue of other entitlements following the lawful termination of appointment.

The plaintiff was dissatisfied with the judgment of the Court of Appeal and proceeded to file his notice of appeal against the judgment to this Court. Five grounds of appeal were filed along with the notice and they read:

“(1) The learned Justices of the Court of Appeal erred in law in holding that Exhibit D1 governed the employment relationship between the parties when that document came into existence long after the employment contract had been established and when no evidence of its adoption by the appellant;

(2) The learned Justices of the Court of Appeal erred in law in holding that the termination of the plaintiff’s employment was proper since it was in accordance with the terms of Exhibit D1 when the said Exhibit was irrelevant to the facts of the case;

(3) The learned Justices of the Court of Appeal erred in law in holding that the allegation of malice was unsubstantiated when ample evidence of malice was adduced at the trial by the appellant which evidence was unchallenged by contrary evidence or attacked under cross examination by the defendants;

…………………….G…………………….

(4) The learned Justices of the Court of Appeal erred in law in interfering with the finding of learned trial Judge on the applicability of Exhibit D1 to the case when the said trial Judge had properly evaluated the evidence thereon before coming to a balanced decision which was neither capricious nor perverse;

(5) The learned Justices of the Court of appeal erred in law in holding that there was no evidence to support the threatened termination of the plaintiff’s employment since the trial court had dismissed his claim for declaration when the Court of Appeal as well as the trial court had held that, “both parties are in agreement that a contract of employment was established between” the parties.”

The relief the appellant sought from the Supreme Court was the reversal of the decision of the Court of Appeal and the restoration of the decision of the High Court.

The questions for determination in this appeal as formulated by the appellant in his brief are:

(1) whether or not in all the circumstances, the Court of appeal ought to have interfered with the findings of the learned trial Judge;

(2) whether it is correct as the court of Appeal held that Exhibit D1 governed the quantum of the plaintiffs entitlements;

(3) whether the CouVrt of Appeal was correct in holding that the termination of the plaintiff’s employment was proper and that the allegation of malice was unsubstantiated.

The short answers to the above questions must, in the light of the evidence on record, be in the affirmative.

It is to be observed that the appellant failed to appeal to the Court of Appeal against the dismissal of his main claims for

(1) a declaration that he is ‘still the Operations Manager of the 1st defendant/respondent company under the contract of employment; and

…………………….H…………………….

(2) An injunction restraining the 1st defendant/respondent by itself, its servants, and or agents or otherwise from committing a breach of the said contract of employment existing between the plaintiff/appellant and the 1st defendant/respondent or in anyway interfering with the plaintiff/appellant in the performance of his duties as Operations Manager.

It is also noteworthy that the plaintiff/appellant, apart from using the term anticipatory breach of the contract of employment’ neither pleaded nor proved the anticipatory breach. He only pleaded and proved threatened termination of appointment. A threat to terminate a contract of employment is only a threat. It is only when the employment is terminated that the circumstances can be examined to ascertain whether the contract is validly terminated or wrongfully terminated. If it is validly terminated, there can be no breach of contract.

But if the termination violates a term or condition of the contact, then the termination is wrongful. If there is no wrongful termination of employment, there can be no liability for breach of contract of employment. It is therefore necessary at this juncture to set out the important paragraphs in the pleadings to see if facts amounting to anticipatory breach have been pleaded. Paragraphs 11, 12, 13, 14, 15, 19, 20, 21, 22, 23, and 24 of the statement of claim which I consider material for the purpose of this judgment read:

“11. The plaintiff has always been and still is ready and willing to serve the 1st defendant company up to the date of retirement;

12. By letter dated 1st February, 1979, the 2nd defendant wrote to the plaintiff compelling him to proceed on leave on the ground that his future relationship with the company was under review, the plaintiff will contend that the hearing of this action that the said letter is invalid, null and void and of no effect;

13. By another letter dated Friday 23rd March, 1979, the 2nd defendant again wrote to the plaintiff inviting him to see him between 2.00p.m and 4.30p.m. that day;

14. In consequence of the matters pleaded in paragraph 13 of this statement of claim, the plaintiff called on the 2nd defendant on the said day in his office at 4.00p.m. whereupon the said 2nd defendant, in the presence of the 3rd defendant asked the plaintiff to tender his resignation of appointment as Operations Manager to the 1st defendant company and that if he failed to do so, he would be dismissed from the service of the said 1st defendant company. the plaintiff was given up till Monday 26th March, 1979 to hand over his letter of resignation;

15. The plaintiff did not agree to resign his appointment because of the matters herein before pleaded and also because of national interest and commenced this action on Monday 26th March, 1979 against the defendants.

…………………….I…………………….

19. The defendants have wrongfully suspended payment of the plaintiff’s salary and other benefits without just cause or excuse;

20. Alternatively, the plaintiff states that by refusing to pay his salary and other benefits as stated in paragraph 19 herein, the 1st defendant company anticipates committing a breach of the contract between it and the plaintiff which the plaintiff contends will amount to a wrongful, illegal, malicious and unconstitutional act and contrary to the Rules of Natural Justice.

21. The 1st defendant company has no right to terminate the plaintiff’s contract of employment before he attains the age of 60 years;

22. That no amount of compensation will be adequate to the plaintiff for any breach of his contract of employment;

23. The 2nd and 3rd defendants are wrongfully and unlawfully inducing the 1st defendant company to terminate the said plaintiff’s appointment without just cause or excuse;

24. The plaintiff has not been able to secure any employment in spite of several efforts to get an alternative job.” (Italics mine)

Nowhere was termination of employment pleaded. The plaintiff has therefore failed to plead the wrongful termination of employment. The defendants, in paragraph 3 of their statement of defence admitted paragraphs 13, 14 and 15 of the statement of claim and in paragraph 2 of the statement of defence, denied paragraphs 19, 20, 21, 22, and 23 of the statement of claim.

In paragraph 4 of the statement of defence, the defendants pleaded that they were not in a position to admit or deny paragraph 24 of the statement of claim. The defendants then proceed to plead in paragraphs 6, 7 and 8 as follows:

“6. With regard to paragraph 11 of the statement of claim, the defendants aver that by a letter dated 26th March, 1979 addressed to the plaintiff, he was informed that his services under the 1st defendant were no longer required as from 1st April, 1979. The defendants will rely on this letter at the trial of this action;

7. With regard to paragraph 14 of the statement of claim, the defendants aver that the plaintiff was not “dismissed” from his employment under the 1st defendant in which event he would have lost his entitlements. His appointment was merely terminated and his full entitlements as to pension, leave pay, leave bonus and salary in lieu of notice will be paid to him as will be itemised hereunder;

8. The defendants aver that the terms and conditions of employment of the plaintiff under the 1st defendant were at all times material to this action government by:

…………………….J…………………….

(a) the letter of offer of employment dated 30th December, 1969 addressed by the 1st defendant to the plaintiff and duly accepted by the plaintiff on 31st December, 1969;

(b) the 1st defendant’s “Employee’s Handbook” forwarded to the plaintiff and signed for by him on 30th September, 1975 The defendants will rely on the said letter of offer and handbook at the trial of this action.”

Since the plaintiff/appellant was already in employment as Operations Manager, the question of anticipatory breach does not arise. He was already executing the duties of the office and being paid his salary for work done. It appears to me that the learned trial Judge lost sight of the fact that there was no claim for damages for wrongful termination of employment before him. The statement of claim did not plead facts from which it could be inferred that such a claim was being made. Instead, the facts pleaded by the appellant amounted to a threat that he would be dismissed if he did not tender his resignation as Operations Manager. It did not go beyond that. On the terms of the contract of employment, the appellant pleaded in paragraphs 4, 5 and 12 of the statement of the statement of claim as follows:

4. The plaintiff was appointed by the 1st defendant company with effect from 7th March, 1978 as Operations Manager, a post which is permanent and pensionable;

5. It was agreed between the plaintiff and the said 1st defendant company that the plaintiff would continue in the said appointment as Operations Manager until the retiring age of 60 years unless the appointment was terminated for gross misconduct or complete inefficiency after several written warnings;

12. By letter dated 1st February, 1979, the 2nd defendant wrote to the plaintiff compelling him to proceed on leave on the ground that his future relationship with the company was under review. The plaintiff will contend at the hearing of this action that the said letter is invalid, null and void and of no effect.

The learned trial Judge commented on the evidence and found that the plaintiff whose duty it was to establish his contract with 1st defendant did not produce both the files and/or sundry names to establish his contract with the 1st defendant. Specifically, he held and said:

“The plaintiff therefore has failed to establish the terms of the contract between him and the 1st defendant except those terms that are admitted by the 1st defendant, that is to say:

(i) that the plaintiff is entitled to an agreed salary;

(ii) that he is entitled to work until the retiring age of 60 years;

(iii) that the plaintiff would participate in 1st defendant’s contributory Provident Fund and would be entitled to pensions and benefits;

…………………….K…………………….

(iv) that the plaintiff would enjoy leave allowance and benefit for health service.”

Dealing with the issue of the non-existent of the right to terminate plaintiff’s employment, the learned trial Judge also held that:

“In the foregoing circumstances, I hold that the plaintiff has not established that his appointment could not be terminated unless “for gross misconduct or complete, inefficiency after several warnings”

On the issue of breach of the Rules of Natural Justice, the learned trial Judge said:

“In the foregoing circumstances, I hold that the plaintiff has not established that his appointment could not be terminated unless “for gross misconduct or complete inefficiency after several warnings”

On the issue of breach of the Rules of Natural Justice, the learned trial Judge said:

“The plaintiff having been afforded the opportunity to offer his explanation, his complaint as to violation of the Rule of natural Justice in this regard cannot succeed.

In this matter, it was the N.N.P.C. who I have held violated the Rule of Natural Justice complained of by the plaintiff in his statement of claim. Indeed, the plaintiff was aware of this which explained why he wrote the letter-Exhibit 7 of which paragraph 3 is the relevant portion. the N.N.P.C. on the defendants or any of them, the aspect of the plaintiff’s claim which hinges on the breach of the rule of natural justice thereafter fails.”

The learned trial Judge dealing fuller with the issue of existence of power to terminate plaintiff’s appointment said:

“Although there is no evidence before me that the powers as to the management of the business of company as set out in Article 82 had been entrusted to the 2nd defendant, it is my view that since the plaintiff admitted that the 2nd defendant had power to take disciplinary action against him, such power would include power to terminate.

In the absence of any evidence from the plaintiff to show that the 2nd defendant could not terminate his appointment and on the authorities referred to above, I hold that the 2nd defendant did not need to show that the power he exercised on the plaintiff either as to the threat to terminate his appointment or request to him to resign had been delegated to him.

…………………….L…………………….

On the above findings, the plaintiff’s claim should have been dismissed in its entirety. However, it appears the learned trial Judge treated the issue of motive or malice as relevant made it a ground for treating the threat of termination of appointment as a breach of the contract of employment. This is borne out by the fact that after referring to the facts pleaded in paragraph 17 of the statement of claim which reads:

“The plaintiff avers that the 2nd and 3rd defendants were not and are not acting in the interest of the 1st defendant company but solely for their own selfish, irrelevant and improper motive.”

He considered the oral evidence of the plaintiff/appellant along with the documentary evidence Exhibit P4A written by the 3rd defendant/respondent to the 2nd defendant/respondent on 1st December, 1978 and commented as follows:

“Defence denied paragraph 17 of the statement of claim among others and put the plaintiff to the strictest proof thereof. The plaintiff’s evidence quoted was not controverted as the 2nd and 3rd defendants testified at the trial. Defence learned councel’s submission, in the main, was on Exhibit D1 which he submitted the 1st defendant complied with as to notice of termination, that is, one month’s notice or one month’s salary in lieu of notice and that in this case, the plaintiff was paid 3 months salary in lieu of notice together with all his entitlements.

The threatened termination of the plaintiff was based solely on the contract between the parties but because of the reasons contained in Exhibit P4 on which the plaintiff testified were prompted by malice the 2nd and 3rd defendants against him, the question arises: was it not incumbent on the defendants particularly the 2nd and 3rd defendants to rebut this evidence in view of their denial in that paragraph in their statement of defence? My answer to this is in the affirmative.

In the present case, there is no evidence before me to controver the evidence of the plaintiff that the exercise of the 2nd and 3rd defendants in connection with this matter was malicious and I cannot but hold that the threatened termination of plaintiff’s [employment] was unlawful (word in brackets supplied) (Italics mine).

It is to be observed that instead of proving the facts pleaded in paragraph 17 of the statement of claim, the evidence proved the contrary and that the 2nd and 3rd defendants/respondents were acting in the interest of the 1st defendant/respondent. However, it was as a result of this erroneous finding that the threatened termination of appointment was unlawful that the learned trial Judge proceeded to assess damages for anticipatory breach. I hold that the learned trial Judge erroneously held that the facts pleaded in paragraph 14 of the statement of claim amounted to or constituted anticipatory breach otherwise I can see no basis for proceeding to assess damages as he did. However, the learned justice of the Court of Appeal, Mohammed JCA. in his lead judgment properly corrected the error when he observed, commented and held as follows:

“The most important matter to consider is the condition of the respondent’s employment under the 1st appellant.

It is without doubt that the most important aspect of the respondent’s claim for damages was based on his assertion that he was entitled to work until he attained the age of 60 years under the company’s pensions scheme. This assertion has been spelt out in paragraph 5 of the statement of claim. Also during the course of his testimony before the court, he had this to say:

‘Under pension scheme at page 13, Exhibit D1 stipulates normal retiring age for male to be 60 years. I see page 4 of Exhibit D1, it provides for termination before I reach the age limit.’

…………………….M…………………….

The respondent was therefore blowing hot and cold in his testimony before the court on the issue of Exhibit D1 and I find it relevant to reproduce the opening paragraph of that exhibit. From this paragraph, one can see that that Exhibit D1 was binding on all the local staff under the employment of the 1st appellant. The paragraph reads as follows:

‘All local employees are subject to these rules and conditions of employment which, together with any additional ones laid down by the company from time to time and duly notified, shall form the conditions of their service with the company’

On the issue of the period of service, it has been spelt out in Exhibit D1 that a confirmed employee could have his service terminated by either party by giving 30 days notice in writing or paying the equivalent of one month basic salary if such termination is to take immediate effect. I am satisfied that all due processes have been followed in the case of the termination of the respondent’s employment with the 1st appellants. There was therefore no breach of conditions of respondent’s employment when the 1st appellants served him with the notice of termination of his employment with them.

The learned trial Judge’s finding should have been based on these facts. In any event, since the declaration sought for was dismissed by the trial court, I do not see where the learned trial Judge found evidence to support his finding on the threatened termination of the respondent’s employment….The learned trial Judge’s finding on one year’s notice or one year’s salary in lieu of notice is not supported by the evidence. I think the allegation of malice made against the 2nd and 3rd appellants were not substantiated.” (Italics mine)

That was well said by the learned Justice of the Court of Appeal.

The plaintiff’s case was not that his employment was terminated wrongfully before he filed his claim but that he was requested to resign and given till 26th March, 1979 to resign and that he refused to resign. He fearing that his appointment might be terminated by the 2nd defendant who had threatened to adopt such a course of action, he took out the summons seeking the relief claimed on the erroneous belief that his appointment could not be terminated before the age of 60 years.

…………………….N…………………….

In his reply to the statement of defence and counter-claim, the plaintiff/appellant denied that any letter of termination of his appointment was served on him as pleaded by the defendants/respondents. He therefore rested his claim on the request to resign.

The parties to any action before the court are bound by the pleadings filed by them and the court is not entitled to consider a claim not set out in the plaintiff’s statement of claim.

Learned counsel for the appellants protested vigorously against the reversal on appeal of the findings of fact made by the learned trial Judge. These findings, in the main, are (1) that malice and improper motives on the part of the 2nd and 3rd defendants have been established and (2) that the plaintiff/appellant is not bound by Exhibit D1 which sets out the condition of service of all local employees.

Learned counsel submitted that parties are bound by their pleadings and that since malice and improper motives were pleaded in paragraphs 17 and 23 of the statement of claim and denied in paragraph 2 of the statement of defence, the defendants failed to discharge the onus on them of disproving malice on their part the plaintiff having given evidence on the issue. Learned counsel then submitted that the failure to rebut the evidence of malice left the evidence uncontroverted the cogent with the fatal effect on the validity of the notice of termination of employment.

On Exhibit D1, the ‘Employees’ Handbook’ which contains the terms or conditions of service of all the local staff of the company, learned Counsel submitted that it is irrelevant to the issue of the quantum of entitlement of the plaintiff. He contended that as the learned trial Judge made a definite finding that Exhibit D1 does not have any binding effect on the plaintiff, the plaintiff was entitled to be given reasonable notice to terminate his employment. He then cited Daniesl v. Shell-BP (1962) 1 All N.L.R.19 and Alran v. Eshiett (1977) 1 SC.89 at 96-97 in support. Reasonable notice, he submitted, varies with the facts of each case according to Kusamotu v. Wemabod Estte Ltd. (1976) 11 SC.79 at 293 and contended that the 12 months notice ordered by the learned trial Judge was reasonable. Finally, he concluded his submissions by contending that it is well established in law that where in a contract of employment, in giving reasons for the termination, the employer makes false allegations motivated by malice then the court will hold that the employee in such circumstances had been wronged and his contract of employment breached.

These submissions are, in my view, not well founded. The conditions for interfering with the findings of fact laid down in Chief Frank Ebba v. Chief Ogodo (1984) 4 SC. 92 1 SC. NLR.372 and other judicial authorities are all present in this case. There was evidence that the appellant was bound by Exhibit D1 but the learned trial Judge in the face of overwhelming documentary and oral evidence went onto make a finding that appellant was not bound. Such a finding deserved to be set aside and was properly set aside by the Court of Appeal. It shows that the learned trial Judge failed to make proper use of the advantage of seeing and hearing the witnesses testify and of drawing proper conclusions from printed evidence.

Where in a contract of employment there exists a right to terminate the contract given to either party, the validity of the exercise of that right cannot be vitiated by the existence of malice or improper motive. It is not the law that motive vitiates the validity of the exercise of a right to terminate validly an employment of the employee. There must be other considerations. The exercise is totally independent of the motive that prompted the exercise.

…………………….O…………………….

In summary, there were very many flaws in the statement of claim and the evidence adduced on behalf of the plaintiff/appellant that spelt doom to the claims of the plaintiff either for declarations and injunction or for damages and injunction. It is a well settled principle of practice and procedure that parties are bound by their pleadings [Woluchem v. Gudi (1981) 5 SC.291 at 320; Emegokwe v. Okadigbo (1973) 4 SC. 113, 117; Metalimpex v. A.G. Leventis (Nig) Ltd. (1976) 2 SC.91 at p.102; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR.71]. A claimant can only get what he claims if, both on the pleadings and the evidence, he has successfully made out and proved his claim. As no breach of the contract of employment was pleaded in the statement of claim and or by him, the plaintiff/appellant is not entitled to succeed and the High Court should have dismissed his claim in toto.

The High Court therefore erred in assessing and making an award of damages. A court if without power to award to a claimant what he did not claim and/or prove. The facts pleaded in the statement of claim were in support of threatened termination of appointment not in support of a wrongful dismissal of the appellant or anticipatory breach of contract of employment. The High Court should not have awarded the plaintiff/appellant damages for wrongful dismissal. The Court of Appeal was therefore justified in setting aside the judgment of the court of trial. See Egonu v. Egonu (1978) 11 & 12 SC.111 at 133; Etim Ekpenyong & 3 Ors. v. Inyang Effiong Nyong & Ors. (1975) 2 SC.71 at 80; Oridola v. M & K Ltd (1972) 2 SC.49 at 51].

The court in a civil case does not make for a party a case which the party had not made for itself; the High Court therefore erred in making a case of wrongful dismissal for the plaintiff/appellant. [Olaniyan v. University of Lagos (1985) 2 NWLR.599 (Pt.9); Eperokun v. University of Lagos (1986) 4 NWLR.162, 193/194]. the Court of appeal was therefore justified in interfering with the findings of fact.

In the ordinary case of master and servant as in the instant appeal, the master can terminate the contact with his servant at any time for good or for bad reasons or for none [Ridge v. Baldwin (1963) 2 All E.R. 66 at 71. Olaniyan v. University of Lagos (1985) 2 NWLR 599, 641. 669] The motive for exercising a right to terminate the contract of service of a servant does not render a valid exercise of that right ineffective. It is therefore irrelevant whether the exercise by the 2nd and 3rd defendants/respondents were for improper motives or actuated by malice and the failure of the 2nd and 3rd defendants/respondents to give evidence inrebuttal of the evidence of the plaintiff/appellant did not tilt the scales of justice in plaintiff’s favour.

…………………….P…………………….

A master who can lawfully dismiss a servant for disobedience and insubordination or sabotage of the employer’s policy cannot be guilty of a wrongful act if he retired the same servant on the grounds of opposition to the indigenisation policy. Retiring the present appellant with full benefits was a humanitarian act which the appellant deserved. This approach by the employer is to be commended especially for servants who have given many years of useful service. We had occasion to so commend the employers in the case of Sule v. Nigerian Cotton Board (1985) 2 NWLR.15 at 19 (Part 5).

It was for the above reasons that I dismissed the appeal.

Aniagolu, JSC. I dismissed the appeal filed by the plaintiff/appellant in the above appeal on 30th June 1987. I now give my said reasons.

The draft of the ‘Reasons for Judgment’ just delivered by my learned brother, Obaseki, J.S.C., was made available to me before now, and I entirely agree with him. It was for those reasons, which I adopt, that I dismissed the appeal.

I would go no further than to mention the fact that the relationship between the plaintiff and his employers had soured up, upon the employer’s realisation that the plaintiff had become disloyal by sabotaging the implementation of the employer’s policy on indigenization and working against the essential interests of the employer by such inimical actions as the delaying of overseas telex messages, which delays, as is well known in oil industries, could cost the employer heavy financial losses.

By reason of those devious actions, confidence was gone or substantially eroded and, the plaintiff/appellant was clearly guilty of gross misconduct for which, on the accepted general legal principles, he could have been discharged without notice and without wages (Boston Deep Sea Fishing Co. V. Ansel (1888) 39 Ch.D. 339)

The appellant could have been peremptorily dismissed and, in law, there is no fixed rule of law defining the degree of misconduct which would justify a dismissal (see: Clouston & Co. v. Corry (1906) A.C. 122; Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R.15). It is enough that the conduct of the servant is of a grave and weighty character as to undermine the confidence which should exist between him and the master Sinclair v. Neighbour (1967) 2 W.L.R.1).

In the instant case, working against the deep interests of the employer clearly amounted to gross misconduct entitling the employer to peremptorily dismiss the appellant, irrespective of the “Employees’ Handbook”, Exhibit D1. The appellant should consider himself lucky that the employers had decided on a humanitarian approach, as disclosed in the evidence, and not to have insisted upon their strict legal rights.

…………………….Q…………………….

Kazeem, JSC. On 30th June, 1987, this appeal was summarily dismissed by this Court with N300.00 costs awarded in favour of the Respondents. The reasons for doing so was adjourned till the 18th September, 1987. I have since had the privilege of reading in draft the Reasons for Judgment to be delivered by my learned brother Obaseki J.S.C. on 18th September, 1987. It has fully dealt with all the facts and the submissions canvassed before us, and I entirely agree with the conclusions reached therein. I have nothing more to add.

Oputa, JSC. I have had the privilege of a preview of the lead Reasons for Judgment just delivered by my learned brother Obaseki, J.S.C. and I am in complete and total agreement with the reasons he adduced and I hereby adopt same as mine also.

On the 30th day of June, 1987, this Court heard arguments from both sides. After considering all the issues raised in the Briefs of Argument and points raised in elaboration by learned Counsel for the Appellant and the Respondents, this appeal was there and then unanimously dismissed and the Court reserved its Reasons for Judgment till today, Friday, the 18th day of September, 1987.

The lead Reasons for Judgment set out in great details the claims of the Plaintiff/Appellant, the relevant paragraphs of the parties’ pleadings and the findings and conclusion of the learned trial Judge. The learned trial Judge was not satisfied that he could make the declarations sought by the Plaintiff but he held that “the threatened termination of the plaintiff’s appointment was unlawful” and awarded the Plaintiff a total of N34,212.51. The Defendants’ appealed to the Court of Appeal Lagos Division.

Two questions now arise-

(i) Was there an anticipatory breach of the Appellant’s contract with the 1st Respondent.

(ii) Was there an actual breach by the 1st Respondent of its contract with the Appellant?

I will take the 2nd question first. The Plaintiff/Appellant in paragraph 21 of his Statement of claim put his case high as this:

“21. The 1st Defendant/Company has no right to terminate the Plaintiff’s contract of employment before he attains the age of 60 years.”

This paragraph is the crux of the matter, the pivot around which all other issues will revolve. Whether or not the right claimed in paragraph 21 of the Statement of Claim above exists, can only be gathered from the terms and conditions of Plaintiff/Appellant’s contract with the 1st Defendant/Respondent/Company. The duty to establish the averment of fact in this paragraph 21 above was squarely on the Plaintiff/Appellant. This he woefully failed to do. Rather the defence in paragraph 8 of the Statement of Defence pleaded as follows:

“8. The Defendants aver that the terms and conditions of employment of the plaintiff under the 1st Defendant were at all times material to this action governed by:

(a) The letter of offer of employment dated 30th December 1969 addressed by the 1st Defendant to the Plaintiff and duly accepted by the Plaintiff on 31st December, 1969.

(b) The 1st Defendants’ “Employee’s Handbook” forwarded to the Plaintiff and signed by him on 30th September 1975.”

The Employee’s Handbook was tendered as Exhibit D1. It is pertinent here to note that after the offer made on the 30th December 1969 and accepted by the Appellant on 31st December 1969 a valid contract came into existence. Apparently the terms and conditions of this contract were not specifically and fully set out in either the 1st Respondent’s letter of offer or the appellant’s letter of acceptance. Rather 5 years and 9 months later, on 30th September 1975 the 1st Respondent/Company issued Exhibit D1 which the appellant received and signed for on the same 30th September 1975. The Appellant’s evidence in cross-examination about Exhibit D1 at paragraph 59 of the record of proceedings is rather pregnant with meaning. It is as follows:

…………………….R…………………….

“I know the contents of Exhibit D1. There are three categories of staff-junior, senior and managements. Exhibit D1 is common to all grades. Some aspects of Exhibit D1 bind me. That was why it was sent to me and all officers and that was why I was made to sign it…………..Exhibit D1 contains part of my contract of service. It bound me in September 1975-even then (sic) it only contained part of my conditions of service. All other conditions are in the files of the Company

The question that should now arise is-What is the legal effect of EX.D1 on the rights and obligations of the parties? Was it (EX.D1) a variation or novation of the original contract? Whether one chooses to call EX.D1 a variation or a novation will be purely of academic interest. The important thing is the Appellant signed for EX.D1 and remained in the employment of the 1st Respondent’s Company from 30th September 1975 until 26th day of March, 1977, when he issued his Writ of Summons commencing proceedings. He (the appellant) was thus not only by his admissions in cross-examination but also by his conduct justified the first Respondent/Company in believing that he (the Appellant) has accepted to be bound by all the terms and conditions contained in Exhibit D1. He, the Appellant, cannot now be heard to say that he is not bound by EX.D1. By his failure to question any part of EX.D1 or to repudiate same for a period of almost one and a half years, the Appellant is now estopped by his conduct from denying that he is bound by the Employee’s Handbook, EX.D1. He is bound as he himself admitted.

The Court of Appeal (Ademola, Nnaemeka-Agu and Mohammed, JJ.C.A.) was therefore right in holding that:

“On the issue of period of service, it has been spelt out in exhibit D1 that a confirmed employee could have his services terminated by either party by giving thirty (30) days notice in writing or paying equivalent of one month basic salary if such termination is to take immediate effect. I am satisfied that all due processes have been followed in the case of termination of the Respondent’s employment with the 1st Appellant. There was therefore no breach of any conditions of respondent’s employment when 1st appellant served him with termination of his employment with them.”

I am in full agreement with the Court of Appeal that the termination of the Appellant’s contract with the 1st Respondent/Company under the terms and conditions in EX.D1 mutually agreed to, both by the evidence and the conduct of the parties, cannot amount to a breach of contract.

The second issue is-Where, from the facts and circumstances of any given case, the Courts holds that there has not been a breach of contract; can those same facts and circumstances sustain an action for “unlawful threatened termination” of the self same contract? In his original action the Plaintiff now Appellant claimed:

“1. A Declaration that:

(a) The Plaintiff is the Operations Manager of the 1st Defendant/Company under a contract of employment.

(b) Any breach of the said contract of employment between the Plaintiff and the 1st Defendant/Company is illegal, invalid, ultra vires, null and void and no effect.

2. Any injunction restraining the 1st Defendant/Company by itself, its servants and/or agents or otherwise from committing a breach of the said contract of employment existing between the Plaintiff and the 1st Defendant/Company or in any way interfering with the Plaintiff in the performance of his duties as Operations Manager.

Alternatively the plaintiff claims against the 1st Defendant/Company N634,833.00 special and general damages for anticipatory breach of contract

…………………….S……………………. “

It is important to note that both the main claim and the alternative claim were directed against the 1st Defendant/Company. There were o specific claims against the 2nd and 3rd Defendants.

What was the judgment of the trial court with regard to the main claim for a declaration and injunction? After reviewing the whole case the learned trial Judge, Bada, J. at p.131 held:

“In the circumstances I cannot make the declaration sought. In so far as a declaration cannot be made an order for injunction, in the circumstances cannot be made.”

The Court of Appeal dealing with this aspect of the case observed at p.197:

“…since the declaration sought was dismissed by the trial Court, I do not see where the learned trial Judge found evidence to support his finding on the threatened termination of the Respondent’s employment.”

I do not see one either.

But, ab abundantia cautela, let me review the pleadings and evidence in support of this alleged threatened breach of contract. By paragraphs 12, 13, 14 and 15 of his Statement of claim, the Plaintiff/Appellant Pleaded:

(i) A letter of 1st February 1979 by the 2nd Defendant “compelling him (the Plaintiff) to proceed on leave on the ground that his future relationship with the Company was under review.

(ii) That by another letter dated Friday, 23rd March 1979 “the 2nd Defendant wrote to the Plaintiff inviting him (the plaintiff) to see him (the 2nd Defendant) between 2p.m. and 4p.m. that day.”

(iii) That “the 2nd Defendant in the presence of the 3rd Defendant asked the Plaintiff to tender his resignation of appointment as Operations Manager to the 1st Defendant/Company.”

(iv) That “the Plaintiff was given up till Monday, 26th March, 1979, to hand over his said letter of resignation.”(v) That the Plaintiff did not agree to resign his appointment.”

The Plaintiff did not in his Statement of Claim follow the course of events to its logical conclusion-which is that on his failure to resign as requested the Defendants pursuant to EX.D1 “terminated his appointment” with his full entitlements as to pension, leave pay, leave bonus and salary in lieu of notice.” This was pleaded in paragraph 7 of the Statement of Defence. Paragraph 17 of the Statement of Claim averred that in terminating is said appointment “the 2nd and 3rd Defendants were not acting in the interest of the 1st Defendant/Company but solely for their own selfish, irrelevant and improper motive.”

The question now is-Even if all the facts alleged in paragraphs 12, 13, 14, 15 and 17 of the Statement of claim are established will those facts mount to an actionable “threatened breach of contract”? Surely the 2nd Defendant as Managing Director of the TEXACO Nigeria Ltd. (1st Defendant) and the 3rd Defendant as the General Manager must have and did have the right under EX.D1 to terminate the appointment of any employee of the 1st Defendant/Company including the Plaintiff/Appellant. If these two Directors exercised their right under the contract, I cannot see how their action will ground a claim for “unlawful threatened breach of contract.” It sounds preposterous to hold that where the facts reveal no breach of contract, nonetheless, they can ground an action for an alleged “unlawful threatened breach of contract.”

There may in proper cases be what the law regards as an “anticipatory breach” by one party to the contract, entitling the other party either to treat such breach as discharging him from further performance and sue for damages forthwith as in Hochster v. Dela Tour (1853) 2 E & B 678 or treat the entire contract as at an end except for the purpose of bringing an action upon it for damages sustained by him in consequence of such renunciation: Moschi v. Lep Air Services ltd. (1973) A.C.331 at p.356. In this case far from treating the contract as at an end the