ELEBUTE V. ODEKILEKUN

• Pages: 406-409

ELEBUTE V. ODEKILEKUN

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406

ing that the partnership which employed him had been dissolved two months ear-

lier, Lopes, L.J. at page 261 said -

"It is true that, as the Master of the Rolls has pointed out, he did continue to

serve till the erd of July, and would have been entitled to claim for that service;

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but the action was not brought in respect of that. If it has been, the defendants

might have paid into court a sum sufficient to cover that claim. Therefore I do

not think that the plaintiff is entitled now to avail himself of it."

and see also in similar vein Rigby L.J. at page 264

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In our view therefore it is clear that the proposition in Halsbury "he is also en-

titled to the amount of wages earned but not paid at the date of his dismissal" whilst

true in itself is highly misleading in the context in which it is put as the authorities

do not support the proposition that in an action for damages for wrongful dismiss-

al one can be awarded as damages the past salary or wages that have been earned.

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It would be possible either to bring the action in the alternative or to bring separ-

ate claims in the same action or to bring separate actions as they are quite separ-

ate causes of action. The statement in Halsbury does not specifically say that

damages for wrongful dismissal can embrace wages or salary for past service,

but in the context where it is dealing with such damages it in our view clearly but

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mistakenly implies it.

The decision cf Adedipe, J. was on the writ and statement of claim, which we

have quoted, based on damages for wrongful dismissal and he was therefore in

our view in error in awarding as damages sums for past salary and two other items

(leave pay and air ticket) which had been earned already under the contract so

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that they were incurred debts and should have been sued for as such. Chief Wil-

liams has not asked for the action to be dismissed but indicated that in the circum-

stances he would be satisfied if we entered a non-suit. We accordingly set aside

the judgment of Adedipe, J. awarding the plaintiff £2,786 together with 150 gui-

neas cost and enter a non-suit in the action.The defendant is entitled to his cost of

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this appeal which we assess at 58 guineas and to his costs in the High Court which

we assess at 100 guineas.

Appeal allowed. Non-suit ordered.

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ELEBUTE V. ODEKILEKUN

H . A. ELEBUTE

V

ALHAJI A.W. ODEKILEKUN

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

UDO-UDOMA,

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J.S.C.

FATAIMILLIAMS, J.S.C.

19th December, 1969.

APPELLANT

RESPONDENT

SUIT NO. SC 86/67

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Evidence - Right of Counsel for plaintiff to address last denied when nothing

on record to show counsel for defendant ever stated he was calling no

evidence.