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Claim for damages for wrongful dismissal-What is quantum of damage when offer of re-employment following a breach is made and refused ?-When Court will reverse finding of fact.

Held: Such refusal must be unreasonable to justify damages being nominal Appeal from only; Court may reverse finding of fact when Lower Court has misunderstood Judgment of documentary evidence; Appeal allowed but only by slight reduction of damages. Divisional Court.

There is no need to set out the facts.

E. O. Asafu-Adjaye (E. P. Asafu-Adjaye with him) for Appellant.

T. Hutton-Ellis for Respondent.

The following judgment was delivered :KINGDON, C.J., NIGERIA.

In. this case the plaintiff, who is a German, was engaged at Las Palmas by defendant under an agreement dated 22nd June, 1936, as general engineer at the defendant's tobacco manufacturing works at Kumasi for a term of three years. The plaintiff duly took up his work on the 14th August, 1936, and on the 23rd April he was, as the trial Judge found, wrongfully dismissed by the defendant. He sued for damages, claiming £514 95. 4d. as per the following particulars:-

£ s. d. £ s. d.

(1) To salary due him under the Agreement dated 22nd June 1936, to 30th April, 1937, at £120 per annum ..................................... .	85 6 8
(1a) Less payment received on a/c-£25 10s. Od.	25 10 0
Balance due on Item (1)	59 16 8
(lb) To Balance due from 1st May, 1937, to 3rd August, 1937	34 10 4
(2) To salary due from 14th August, 1937, to 14thAugust, 1938 .	160 0 0
(3) To salary due from 14th August, 1938, to 14th August, 1939	200 0 0
(4) To Food Allowance due him from31st March, 1937, to 30th April1937, at 4s. per diem £6, less £4 paid on alc leaving a balance of £2	2 0 0
(5) To two (2) months' estimated food allowance at 4s. per diem until departure for Las Palmas	12 0 0
(6) To 1st Train fare and 3rd Class steamer passage from Kumasi to Las Palmas for himself and Wife	45 5 4
	-------------
	£ 514 9 4
	--------------

The trial Judge found for plaintiff and awarded him £249 Os. 8d. damages made up as follows :-

£ s. d.

Item (I) of Particulars of Claim ......... 57 10 0

Item (Ib), (2). and (3) ......................... 150 0 0

Item (4) ....................................................... 8 0

Item (5) ..................................................... NIl.

Item (6) ................................................. 41 2 8

The defendant has appealed to this Court against the finding of the trial Judge that he had broken the contract and also against the amount of the damages awarded. The main ground of appeal is that the finding in favour of plaintiff that defendant wrongfully dismissed the plaintiff is against the weight of evidence. As to this it is sufficient to say that this Court cannot reverse the finding of the trial Judge who had the advantage of seeing and hearing the witnesses and so judging of their credibility.

On the question of damages the appellant's main contention was that damages should be merely nominal, because a few days after the dismissal defendant offered to re-employ plaintiff, an offer which plaintiff refused. The appellant relied upon the case of Brace v. Calder 0- Others (1895 2 Q.B.D., p. 253), in which it was held that, where the employment of a plaintiff by a partnership of four members came to an end owing to the partnership being dissolved, there was a technical breach of agreement but, since the business was continued by two partners who offered the plaintiff similar employment which was refused, the damages must be purely nominal. This case is referred to in Chitty on Contracts (18th edition, p. 1956), in these words: "A servant who has been wrongfully dismissed and unreasonably refuses to accept another post to date from the dismissal is only entitled to nominal damages." I have italicised the word " unreasonably" as I think that therein lies the clue to how the present case is to be distinguished. It was unreasonable to refuse employment in the circumstances of the Brace v. Calder case, but is it unreasonable to refuse an offer to be taken back when the parties have quarrelled and the employer has been guilty of an actual and not merely technical wrong? The question must, I think, depend on the facts of each case and is one for the trial Court to determine. It is significant that Counsel for appellant was unable to point to a single case where refusal of re-employment in such circumstances as the present was held to be unreasonable. In the present case the trial Judge did not find, and I am not prepared to hold, that the plaintiff's refusal of re-employment was unreasonable. I think therefore that the trial Judge was right to award substantial and not merely nominal damages. Moreover, I see no reason to quarrel with the basis of assessment, vi~. a year's salary having regard to the special circumstances of this case, namely the facts that plaintiff is a stranger in a strange country and may have difficulty in returning to Las Palmas, the place of his engagement, owing to the Spanish civil war.

It remains to consider the minor points as to the amount of damages which were raised on the appeal. Inter alia, the Judge awarded a sum in respect of the plaintiff's wife's passage back to Las Palmas. Respondent does not try to support this, and it is agreed'

that item (6) of the award must be reduced by £20 18s. 3d. in respect thereof. The other disputed item is No.1, £57 10s. Appellant contends that this should be reduced by £12 as, in calculating it, £12 paid . in Las Palmas as an advance of salary was not taken into account Respondent says that this £12 was handed over, not as an advance of. salary, but as a payment to cover the expenses of staying one month in Las Palmas. There is a direct conflict of evidence here and the trial Judge found in plaintiff's favour. But this is one of the rare cases where I feel compelled to differ from the trial Judge and to over- rule him on the facts, because the entries at page 85 of the defendant's ledger (Exhibit" E "), in my view, demonstrate conclusively the correctness of the defendant's version and the meaning and effect of these entries was misunderstood by the trial Judge. He says that the credit side of that page " shows a number of monthly payments of £10 as being due to the plaintiff," and holds that" although the agreement was silent as to the exact times of payment, monthly payments had been agreed upon by mutual consent."

What this page of the ledger really does is to record the running account as between the parties. On the credit side is entered month by month the total amount earned by the plaintiff by way of salary (not amounts then due). On the debit side are entered the amounts which will ultimately have to be set off against the total of the credit side, i.e. the amounts drawn by plaintiff under the express term of the contract. "Employee may draw up to one-half of the salary earned, and the remaining will be paid to him at the end of the determined of the contract" (sic). All the entries on the debit side are initialled by the plaintiff. The first item on the debit side is £22, and it is agreed that it includes the £12 in dispute. This alone is strong confirmation of the defendant's case that the whole £22 was by way of advance of salary, and this is still further strengthened by the significant fact that all subsequent sums drawn are for less than £5, thus indicating that there had been an excessive amount drawn which was being recovered, until by the last entry on each side the total debit is brought to exactly one-half of the total credit. I think that this documentary evidence is conclusive in favour of defendant's version and that therefore item (1) of the award should be reduced by £12.

For the reasons given I am of opinion that the appeal should be allowed to the extent of ordering that the judgment of the Court below be varied by reducing the sum awarded to the plaintiff from £249 Os. 8d. to £216 2s. 5d., the order of the Court below as to costs remaining good. As to costs in this Court, I am of opinion that, since on the one hand the appellant has failed in his main contentions whereas on the other he had to bring this appeal in order to secure the reduction indicated, justice will be met by leaving each party to bear his own costs of appeal.