Samuel Isheno v. Julius Berger Nigeria Plc (2008)



Samuel Isheno v. Julius Berger Nigeria Plc (2008) – SC

by PaulPipar



Samuel Isheno


Julius Berger Nigeria Plc



Supreme Court


Sunday Akinola Akintan. J.S.C



– Greg I. Uloko Esq.


– Abumere A. Osara Esq,


The appellant, the plaintiff in the High Court, was an employee of the respondent/defendant. He was the Assistant Patrolman in charge of security at the site office, Oleh. Two of the respondent’s Mercedes Benz tipper lorries were stolen. Appellant reported the theft to the Police. The vehicles were later recovered at Ibadan. Arrests were made. Appellant went to Ibadan to identify the vehicles. On his return from Ibadan, appellant was arrested by the Police as a suspect. He was later charged to court along with some others, including Jonathan Ekah. Appellant was discharged by the Isoko Area Customary Court on a no case submission. He was thereafter declared redundant by the respondent. Appellant refused to collect his redundancy benefits. He filed an action in the High Court claiming a total sum of N776,281.00 as damages for malicious prosecution, defamation of character, loss of employment for fifteen years and retirement benefits. He also claimed general damages. The learned trial Judge did not grant the claim of the appellant. He dismissed it. Ogbodu, J. described the entire action as speculative and gold digging, provocative and sufficient to cause the respondent annoyance. The Court of Appeal did not agree with the learned trial Judge. That court awarded the appellant redundancy benefits in the sum of N5.285.00. The appellant has come to the Supreme Court.


1. Whether the learned Justices of the Court of Appeal properly evaluated the evidence before awarding the paltry sum of N5,285 only as the entitlement of the appellant under the conditions of service which is Exhibit H.

2. Whether the learned Justices of the Court of Appeal were right in law in holding that the appellant was not entitled to repatriation allowance especially when this allowance was paid automatically to staffs who suffers redundancy in accordance with the conditions of service (Exhibit H).

3. Whether the learned Justices of the Court of Appeal were right in law when they admitted that the parties relationship in this appeal were governed by Exhibit H on the one hand, but held that the respondent had the option to either retire the appellant or declare his position redundant, and that they were right in choosing the latter.

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In conclusion, I hold that the appeal as it relates to the claims for damages for malicious prosecution, defamation of character, loss of employment for 15 years and general damages, lack merit. I accordingly dismiss the appeal as it relates to those items of claim. I however hold that the award made by the Court below in respect of the entitlements due to the appellant as an employee who was declared redundant should be sustained subject to the variation that the calculation should be reviewed upward based on 5 weeks pay for each years of service put in by the appellant which should be 13 years since he served more than 12 years. He should also be paid the appropriate repatriation allowance. I make no order on costs.

2. For issue 2, judgement was declared in favour of the Appellant.


i. The question whether the appellant was entitled to repatriation allowance after his appointment was declared redundant needs to be resolved. This is because the provision for repatriation appears only as paragraph C of Article 9 which is headed “Termination of employment.” No such provision is made in respect of Article 10 which deals with redundancy. But the payment of it to employees declared redundant is admitted by the only witness that testified for the defence at the trial. I believe that such benefit could not be denied to an official who had served for many years as the appellant and whose employment had to be abruptly brought to an end by means of the redundancy provision. I therefore hold that the provision of Article 9 (c) relating to payment of repatriation allowance is also applicable to employees declared redundant under Article 10. I therefore hold that the word “terminated” used in Article 9 (c) covers ‘redundancy’ used in Article 10.

3. For issue 3, judgement was declared in favour of the respondent.


i. It is clear from the provisions of Article 10 relating to redundancy and Articles 13 which deals with gratuity/retirement benefits, that the employer has discretion to either declare an employee redundant or retire him in the appropriate case. In the instant case, the respondent chose to declare the appellant as redundant. But on a close look, there seems to be not much difference in the entitlements due to an employee declared redundant and one retired. The entitlement due to the employee who has served the company for 11-20 years, as the appellant, would be 5 weeks pay per year of service. The complaint of the appellant that he would prefer retirement to redundancy, therefore, would not mean much to him financially since his entitlement would still be 5 weeks pay per years of service he put in. Secondly, as the discretion to make the choice is conferred on the employer, the court will not interfere with the exercise of such discretion without any justifiable cause. No evidence of any such justifiable cause was pleaded and adduced at the trial. The court below is therefore right in dismissing the appeal on that point.

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Article 9 of the National Joint Industrial Council Agreement (Exhibit H) sets out the provisions relating to termination of employment of daily rated employees and monthly rated employees. The part of the Article 9 relevant to the appellant are Article 9 (b) and (c) which provide thus:
“Article 9(b) Monthly Rated Employees:
Employment may be terminated upon giving one month’s notice by either side or payment in lieu of such notice;
(c) Repatriation If an employee’s service is terminated by the company, the employee shall be repatriated, along with his wife and a maximum of four children, to his original place of engagement at the company’s expenses.”
Article 10, on the other hand, makes provision for redundancy. The article provides as follows: “Article 10-Redundancy:
Redundancy Pay shall be given as compensation for loss of future prospect with one employer. Redundancy occurs when the service of a worker, having been in continuous employment of one employer for two years or more are no longer required by that employer due to no fault of the worker. Except those workers who are employed on a contract for a specific job or for a specific length of time. The following scales of redundancy payment for the employee shall then be paid:
2-5 years continuous employment 3 weeks pay for each year of service
6-10 years continuous employment 4 weeks pay for each year of service
11 years and above 5 weeks pay for each year of service.”

“Article 13 Gratuity/Retirement Benefits On attaining the age of 65 years, an employee’s appointment will automatically terminate on ground of retirement, provided he has completed ten years of continuous service. An employee may retire or may be retired by an employer on or after attaining the age of 50 years; provided that he has completed ten years of continuous service. The following retirement benefit shall be paid: (a) 10 years of service 4 weeks per year of service (b) 1120 years of service 5 weeks pay per year of service (c) 21 years of service 6 weeks pay per year of service.”

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The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect. Similarly, where, on a report made by an appellant to the police about the theft of his goods, the appellant was asked whether he suspected anyone, he replied that he suspected the respondent who was consequently arrested and detained by the police for inquiry, such expression of opinion is said to be no more than putting the police on a trail upon which he can work instead of leaving him in the wilderness. Giving such information to the police cannot therefore form the basis for any action for false imprisonment or false prosecution by the police since it would be the duty of the police, after receiving such information, to make investigations themselves which may or may not lead to an arrest or to any action they take on the information given to them. Giving the police such information, therefore, cannot be said to have put the law in motion against the respondent. – Akintan, J.S.C. Isheno v. Berger (2008)

The object of pleadings is to enable the adverse party and the courts know the case before the date of hearing. Accordingly, once the pleadings are settled, parties cannot move in or out of them, unless by the process of amendment. If parties have the liberty to give evidence on facts not pleaded in the pleadings, there will not only be a state of confusion, but litigation may not be completed on time. – Niki Tobi, J.S.C. Isheno v. Berger (2008)

There is still one aspect. It is the evidence procured under cross-examination. The cliché or aphorism that the sky is the limit of cross-examination is not good law. This is not because, (to put it lightly) the lawyer is not an astronomist or astronomer, but because there is no such law. The discipline of law is one which is characterized by limitations here and there and cross-examination cannot occupy such a tall and enviable place in our law of procedure. And here I should say that relevancy is a limitation in all the three types of examination, including cross-examination. After all, relevancy is the cynosure or heart beat of the Law of Evidence. – Niki Tobi, J.S.C. Isheno v. Berger (2008)




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