Francis C. Arinze Vs First Bank Of Nigeria (2004)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

The appellant, was the plaintiff at the High Court of former Anambra State sitting at Onitsha. He lost his action against the respondent bank that employed him, claiming wrongful dismissal. He claimed N250,000 as special and general damages. Among the reasons given at the trial for his dismissal were the various cases of insubordination, absenteeism and fraudulent claim for overtime while he was not even on duty. Various letters were sent to him on his misbehaviour and he chose not to reply to them and during trial he claimed not to have received any of the letters which are exhibits U, V,W, X and Y. At the end of the trial, trial Judge, Ononiba J. (as he then was) found the appellant failed to prove his case and thereby dismissed the suit. He therefore appealed to Court of Appeal which dismissed the appeal in upholding trial court’s judgment.

The appellant filed ten grounds of appeal and wrote a brief of argument to cover all the grounds. However, at the hearing in this court, the respondent bank raised preliminary objection that all of the grounds were of mixed law and facts with no leave having been sought and granted to file them. The appellant had no valid reply except to accept that only ground 2 out of the ten grounds was valid. Grounds 1, 3, 4, 5, 6, 7, 8, 9 and 10 were therefore struck out as incompetent. Therefore the only valid ground sustaining the appeal is ground 2 covered by issue number 3 in the appellant’s brief. Ground 2 reads:

“The learned Justices of Court of Appeal erred in law when they held that in the particular circumstances of the appellant (who did not admit the allegation made against him) and who denied receiving exhibits U, V, W, X, Y, Z, A1 it was enough without prosecuting him that the respondent did afford the appellant the opportunity of defending himself through written answers to the queries before dismissing him and as such the case of the appellant came within the exception in the cases of:

Federal Civil Service Commission & 2 Ors. v. J. O. Laoye (1989) 2 NWLR (Pt. 106) 652 and Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (Pt. 457) 632; (1996) 6 SCNJ 203 when the case of the appellant did not fall within the said exception and he ought to have been prosecuted.

Particulars of error

(a) By the said Supreme Court authorities where an employee admits the allegation leveled against him, he need not be prosecuted and the employer could exercise disciplinary action against him.

(b) Where as in this case he denies the allegations of which allegations are of very serious criminal nature as per exhibits E, F, G, H, J, K, he must be prosecuted to establish his guilt in an appropriate forum.

(c) The employer cannot validly adjudge the serious issues of which had been denied and have the employee dismissed as was done in the instant case.

(d) The employer cannot prove by himself the offences as enumerated in paragraph 1 of Article 5(c).

(e) Such disciplinary action as may be taken without observance of the above principle is invalid, incompetent and void.

(f) The evidence was also that the appellant did not receive the exhibits U, V, W, X, V, Z, A1 tendered through DW1.

(g) Appellant’s denial ought to be applied in his favour.

(h) The offences listed under paragraph (1) of Articles 5(c) of the appendix ‘C’ of exhibit C cannot be said to have been proven unless admitted or successfully prosecuted in court.”

The issue covering this ground of appeal is issue No.3 reading:

“Whether the appellant’s constitutional right to fair hearing was not breached by the respondent who on its own found the appellant guilty/liable and proceeded to summarily dismiss him, without more, when the appellant has not admitted the alleged acts of gross- misconduct against him which acts bordered on criminal offences and whether the court below was correct to have held that the dismissal met that requirement of fair hearing.”

It is clear therefore that this court is only to consider the narrow issue of whether the appellant had fair hearing leading to his dismissal by the respondent. This was the culmination of several warnings to appellant in letters dated 5th February, 1981; 15th May, 1981; 15th July, 1981 and 4th August, 1981 respectively. The plaintiff (appellant) replied to some of these letters on 6th February, 1981 and 24th July, 1981. It seemed the appellant would not change his attitude to work, habitual absence from work, not attending adequately to cash and ledgers, willful disobedience to order, serious negligence and habitual penchant to insulting colleagues and superiors. By 1982 the appellant’s general attitude never changed and this led to several queries to him in letters dated 6th January, 1982; 18th March, 1982; 23rd June, 1982; 19th July, 1982; 18th October, 1982 and 23rd December, 1982 which were pleaded and tendered at the trial. The appellant replied to some of these letters and denied receiving some. But the full weight of evidence indicated the appellant as an indifferent employee, who was a perpetual absentee and made claims for overtime on days he was even not on duty due to absenteeism. He even submitted a forged medical certificate. The appellant was proved to habitually close his cubicle, abandoning cash therein without balancing his account. Between 19th December, 1981 and 2nd January, 1982, appellant who was not on duty as was common with him, claimed he was at medical clinic and forged a doctor’s certificate to that effect. All these acts of irresponsibility were clearly in evidence before trial court which believed them and as a result led to plaintiff’s case being dismissed. Court of Appeal had no reason to interfere with this decision.

Certainly the appellant was greatly indulged with several warnings on his misconduct. This is a simple case of employee and employer not covered by statutory rules as in Federal Civil Service Commission & Others v. J. O. Laoye (1989) 2 NWLR (Pt. 106) 652 or Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550. This latter case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment. In statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct. In this case, the appellant was found guilty of insubordination and fraudulent claim of money; he claimed overtime allowance when he in fact was never on duty to work during the normal office hours. He claimed refund for a treatment in hospital which never took place; he in this instance forged a doctor’s certificate.

I find no merit in this appeal. This is an appeal essentially based on complaint against concurrent findings of fact. This court, has, in several decisions, expressed its attitude to concurrent findings of fact by lower courts. There are so many decisions over several decades and it seems parties will never stop asking the court to reverse concurrent findings of fact. See Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771; Abidoye v. Alawode (2001) 6 NWLR (Pt. 709) 463; Nigerian Engineering Works Ltd. v. Denap Ltd. (2001) 18 NWLR (Pt. 746) 726; Obasohan v. Omorodion (2001) 13 NWLR (Pt. 729) 206. These are the latest in this line of decisions. The present appeal is not opening any new ground. This appeal is therefore dismissed with N10,000.00 costs to respondent.

SC.82/2000