African Continental Bank Plc V. Benedict O. Nbisike (1995)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This appeal relates to unlawful dismissal from employment. In suit No.HOR/4/86, in the Orlu High Court, the respondent as plaintiff sued the appellant bank, the defendant in the court below. The claim was for a total sum of N500,000.00 as general and special damages for wrongful dismissal from employment. Pleadings were ordered, duly filed and exchanged and with leave subsequently amended with the pleadings terminating in a further amended statement of claim and a further amended statement of defence to be referred to simply as statement of claim and statement of defence respectively. From the pleadings and evidence of witnesses, two each for the parties, the facts of the case may be summarised as hereunder:-

On 15/5/78, the respondent was offered an employment as a clerk by the appellant bank. He accepted the offer and assumed duty on 1/7/78. The initial salary was N1,162 per annum which by annual increment rose to N2,282 per annum in 1985. The respondent worked at the Orlu branch of the appellant bank. There, he worked in several departments and in different capacities as a clerk, including calculation of interests payable with various customers’ account with the appellant bank. Apparently, there was no special agreement with the appellant bank setting out the terms and conditions of his employment but the respondent relied on the manual titled “Recognition and Procedural Agreement and Main Collective Agreement Between The Nigerian Employers’ Association of Banks, Insurance and Allied Institutions And the National Union of Banks, Insurance And Financial Institutions Employees.” This manual was admitted in evidence as Exhibit ‘C’.

In 1983 the respondent received an oral warning from the Area Inspector of the appellant bank who inspected the books of the appellant bank in that year and discovered that a group of members of the staff of the appellant bank among whom was the respondent ganged up and awarded themselves excess of interests in their various savings and current accounts with the appellant bank. The inspection related to 1982 and 1983 records. Another inspection of the books of the appellant’s bank was conducted by the bank’s Inspector in 1985 and similar discoveries were made and a report sent to the appellant’s head office in Lagos.

Before then, the respondent had on 12/11/84 applied for a study leave to study accountancy in the University of Nigeria, Nsukka. The study leave was to last for four years. His application was addressed to the Chief Personnel Officer of the appellant Head Office, Lagos through the Manager of the appellant Orlu branch. By that date, the respondent was on annual leave which was to end by the end of December, 1984. He did not receive any reply to his application for study leave before he left for the University of Nigeria, Nsukka in that same November, 1984 for a 4-year course in accountancy. The respondent alleged that the Branch Manager of the appellant Bank at Orlu permitted him to proceed to Nsukka assuring him that his application for study leave would be in the affirmative. No such reply was received by the respondent before he left for Nsukka. By a letter dated 23/10/85, admitted in evidence as Exhibit “A”, the respondent was summarily dismissed from employment by the appellant bank for gross misconduct with loss of benefits. It was the respondent’s case that he was not told the cause of his dismissal nor was he given any opportunity to clear himself. In consequence, the respondent initiated the proceedings leading to this appeal. The particulars of special damages claimed by him consist of the following:-

1. Gratuity for 8 years service calculated

at the rate of 40% of terminal salary N8,036.40

2. Staff provident fund and entitlements 624.00
3. Basic salary for 22 years N72,204.00
4. End of Service Gratuity N208,026.00
5. Basic transport allowance of N20

per month for 22 years 5,280.00

6. Basic housing allowance of N30.00

per month for 22 years 7,920.00

7. Luncheon vouchers of N45.00 per month

for 22 years 11,880.00

8. Basic leave allowance of N130.00 for 22 years 3,740.00
9. 1983-1984 leave commuted to cash but unpaid 1,167.42

General damages 181,121.46

Total N500,000.00

The appellant bank, on the other hand, denied liability for the claim contending that the dismissal of the respondent was in order and not wrongful. It was the case of the appellant that following the 1983 inspector’s report, the respondent was cautioned and a report made to the Head office and when in 1985 another Inspector’s report inculpated the respondent over the question of crediting his account with excess interest the appellant bank dismissed him. It was further the appellant’s case that the respondent’s application for study leave was not approved and that the appellant was not bound to give respondent a hearing before dismissal because his case was one of misconduct amounting to fraud.

After due trial, the learned trial Judge Oyudo J, dismissed the respondent’s case for wrongful dismissal but converted the dismissal to termination or retirement and proceeded to award the respondent the following N8,361.93 as gratuity for 7 years; N624 staff Provident Fund pension and N733.92 – 1983/1984 leave allowances. Subject to that the respondents claim was dismissed with N200 costs to the appellant. Aggrieved by the awards, the appellant has appealed to this court. The appeal is predicated on one original and two additional grounds of appeal which without their particulars read as follows:-

Ground 1: Error in Law

The learned trial Judge erred in law in awarding Provident Fund, 1983/84 leave allowance and gratuity to the respondent having regard to the evidence and the findings of the court.

Ground 2: Error in Law

The learned trial Judge misdirected himself by failing to evaluate Exhibit “C” properly.

Ground 3:

The learned trial Judge erred in law in converting the respondent’s case to one of termination of contract or retirement from service when what was claimed by the respondent was for wrongful dismissal from service.”

In the brief of argument filed on behalf of the appellant by its counsel and which was adopted for this appeal, the following issues were formulated for determination:-

“i. Whether the learned Trial Judge was right in awarding to the respondent the following sums:

(a) N8,361.92 being one (sic) year gratuity calculated at 40% of his terminal salary;

(b) 1983 and 1984 leave allowance at the rate of N733.92, and

(c) N624.00 being the plaintiff’s contribution to the Staff Provident Fund

ii Whether the trial Judge was right in unilaterally converting the suit as constituted to one of termination or retirement from service while in the same breadth dismissing the respondent’s case for unlawful dismissal.

iii. Whether there was any proved basis upon which the Hon. Trial Judge based his calculation, the Further Amended Statement of claim notwithstanding.

iv. Whether the Learned Trial Judge was right when he held that the appellant waived their right to dismiss the respondent for misconduct.”

This is yet another typical illustration of a badly written brief. The formulation of four issues from three grounds of appeal portrays counsel for the appellant as having not yet grasped the basic rules of brief writing with respect to the formulation of issues for determination which is to contract one or more related grounds of appeal to form an issue for determination. The principle is now so elementary that it does not appear necessary to cite any authority. It is a matter for regret that despite adverse comments by the court on briefs in a similar manner counsel have continued to indulge in the same practice. The law reports are replete with cases which lay down guides to be adhered to in formulating issues for determination. For those like the appellant’s counsel who do not appear to be acquainted with the correct practice, attention is drawn to the following few cases: – Anon Lodge Hotel v. Mercantile Bank (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 721 at 728; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137 at I48; Joseph Mantup Din v. African Newspaper of Nigeria Ltd. (1990) 3 NWLR (Pt.139) 392 at 403; Engineering Enterprises of Nig. Construction Co. of Nig. v. Attorney-General of Kaduna State (1987) 2 NWLR (Pt.57) 381, 396 and Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 401.

Because of the proliferation of issues for determination in the appellant’s brief, I prefer the issues identified in the respondent’s brief which no doubt will accommodate all the four issues in the appellant’s brief.

The two issues formulated in the respondent’s brief are as follows:-

“1. Whether the learned trial Judge was right in converting the dismissal of the plaintiff to one of termination of appointment and in consequence thereof awarding staff Provident Fund Pension, 1983/84 leave allowance and Gratuity to the plaintiff/respondent.

2. Whether the learned trial Judge correctly evaluated Exhibit “C”

In respect of issue 1 in the respondent’s brief which relates to issues 1, 2 and 3 in the appellant’s brief, it was pointed out in the appellant’s brief that the case was tried on pleadings whereby the respondent anchored his claim on wrongful dismissal. It was stressed that parties are bound by their pleadings a proposition for which the following authorities were cited: Umoffia v. Ndem (1973) 12 S.C. 69; George & ors v. Dominion Flour Mills Ltd. (1963) 1 All NLR p.71; (1963) 1 SCNLR 242; Emegokwue v. Okadigbo (1973) 3 ECSLR 267; (1973) 4 S.C. 113; (1973) 1 NMLR 192; African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 at 248. It was submitted that the learned trial Judge having found as a fact that the dismissal of the respondent from the appellant’s employment, was not wrongful, he could not have converted the lawful dismissal to termination or retirement from service to justify the awards made to the respondent.

It was argued that the reason given by the learned trial Judge in taking that course which was that the respondent left for the University in the belief that the branch manager had power to grant him the permission is untenable because the branch manager of the appellant bank never gave such permission. It was therefore forcefully contended that the learned trial Judge had no legal basis to convert a case of wrongful dismissal to one of termination or retirement from service: vide Yesufu Oyediran and Family v. Tafa Amoo & Ors. (1970) 4 S.C. 91. Dealing specifically with the awards made to the respondent, it was stated in the appellant’s brief that the Agreement dated 31/3/82 which the respondent pleaded as purporting to contain the terms of his employment with the appellant and which was not tendered in evidence is not the same as Exhibit ‘C’ pleaded by the appellant and on the basis of which the trial court considered the rights of the parties. Furthermore, it was argued that there is nothing in Exhibit ‘C’ aforesaid indicating that the respondent is entitled to benefits in respect to which the learned trial Judge made awards to the respondent particularly that of 7 years gratuity. The court was urged to take judicial notice that contribution to the National Provident Fund is claimable from the National Provident Fund pursuant to the National Provident Fund Act, 1961 as amended by Decree No. 35 of 1976 and that since the National Provident Fund Management Board was not a party in the case, the award made by the learned trial Judge in respect of the Provident Fund was erroneous. The case of Abdullah v. Michael S. Achou (1969) 1 All NLR 442 was cited.

Finally, it was canvassed that the learned trial Judge having found as a fact that the respondent enjoyed his 1984 annual leave, it must he inferred therefrom that he had equally enjoyed his 1983 leave and therefore there was no basis for the award on the 1983/84 leave moreso as there was no evidence that the respondent applied and obtained approval for the 1983/84 leave to be commuted to cash.

With respect to issue 2 in the respondent’s brief which is similar to issue 4 as formulated in the appellant’s brief, the point was made by the appellant that a proper appraisal of Exhibit C which sets out categories of various offences and the punishment attaching thereto, study leave by an employee who proceeds without permission qualifies as gross misconduct to entitle the employer to dismiss the employee summarily. It was therefore contended that the learned trial Judge was in error to have held that Exhibit C did not make provision for the case of an employee who without permission absented himself from duty to pursue a course of study.

In reply to the above submissions, with reference to the first issue in the respondent’s brief, it wm, therein stated that the High Court has an inherent power to do substantial justice. It was contended that the inherent powers of the court are powers which enable it to effectively and effectually to exercise jurisdiction conferred on it vide Adigun v. Attorney-General of Oyo State & ors (1987) 2 NWLR (Pt.56) 197 at Pp.212 and 229. It was further argued that the inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. For this proposition, the case of T. A. Yonwuren v. Modern Signs (Nig.) Ltd (1985) 2 S.C. 86 Pp. 89-90; (1985) 1 NWLR (Pt.2) 244 was cited. It was therefore submitted that the learned trial Judge was right when in exercise of his inherent jurisdiction he converted the dismissal into termination of appointment. With respect to the specific awards made by the learned trial Judge, it was argued that the issue is not awarding what was not claimed but rather, that of awarding less than was claimed. It was canvassed that entitlements to gratuity, Staff Provident Fund Pension and leave allowances for 1983 and 1984 were among the special claims of the respondent and that on the authority of Etim Ekpenyong & ors. v. Nyong & ors. (1975) 2 S.C. 71, the court was entitled to award less but not more than was claimed. It was further submitted that what the respondent claimed in respect to pension is contribution under the Staff Provident Fund Pension Scheme and not under the National Provident Fund as the appellant had erroneously contended. The case of B. Abdullahi v. Michael S. Achou supra, relied upon by the appellant is inapplicable, it was submitted. Regarding the contention that Exhibit C was not the document pleaded by the respondent, it was contended that although Exhibit C was tendered by the appellant’s witness, the respondent was entitled to take advantage of any evidence adduced by the appellant which tends to support his case vide Sunday Piaro v. Chief Wopnu Tenalo (1976) 12 S.C. 31 at 37. Dealing with the second issue for determination in the respondent’s brief, it was argued that Exh. C was properly evaluated by the learned trial Judge. It was therefore submitted that where a trial court has unquestionably evaluated evidence and appraised the facts, it is not the business of a court of appeal to substitute its own views for the views of the trial court. Reference was made to the case of Akinloye v. Eyiyola (1968) NMLR 92 at 95. Finally, it was argued on the authority of the case of Etowe Enang v. Fidelis Ikor Adu (1981) 11-12 S.C. 25 at 42 that it is no sufficient for the appellant to allege that the learned trial Judge did not properly evaluate Exhibit “C” without the appellant pointing out errors of which they complain and showing convincingly that if such errors were corrected the judgment could not stand. We were therefore urged to dismiss the appeal.

Before I embark on the consideration of the merits of this appeal, let me make a few pertinent observations on the case generally. The respondent’s case being in contract, the applicable rule governing the award of damages is laid down in the 19th Century English case of Hadley v. Baxendale (1854) 9 Ex. 34. The principles enshrined therein are that damages in respect of breach of contract should be such as (i) may fairly and reasonably be considered either arising naturally that is, according to the usual course of things from such breach itself or (ii) may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the’ probable result of the breach of it. These principles have been adopted in our courts: See Produce Marketing Board v. Adewunmi (1972) 1 All NLR (Pt.2) 433 at 438; P. Z. and Co. Ltd. v. Ogedengbe (1972) 1 All NLR (Pt.1) 202 at 205-206; Okongwu v. NNPC (1989) 7 SCNJ 1004 116-117; (1989) 4 NWLR (Pt.115) 296. In Adewunmi’s case supra, the Supreme Court referred with approval to its earlier decision in Swiss-Nigerian Wood Industries Ltd v. Bogo S.C. 4/70 (1972) 1 All NLR (Pt.2) 433 delivered on 3/3/70 where it was stated:-

“The terms “general” and “special” damages are normally inapt in the categorisation of damages for the purposes of awards in cases of breach of contract. We had occasion to point out before: See Agbaje v. National Motors Ltd. S.C.25/68 dated 13th March, 1970: (1971) 1 UILR 119 and we make the point that apart from damages naturally resulting from the breach, no other form of general damages can be contemplated.”

See also Wilfred Ononuwa v. B. A. Wahabi (1976) 4 S.C. 37 at Pp.47-48; Maiden Electronics “. A.-G., Fed. (1974) 1 All NLR 179; Ijebu-Ode Local Government v. Adediji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136, at 158. It seems to me therefore, that by the force of the above authorities, learned counsel for the respondent ought to have avoided dichotomising damages claimed in the instant case into general and special.

Another pertinent observation that deserves to be made is in respect of the Collective Agreement Exhibit C which both parties in this case have relied upon. The legal status of such a Collective Agreement as Exhibit C is doubtful. In the Law of Contracts by Chitty Vol. II, 23rd Edition Articles 656 to 657, Pp. 337338, the learned author observed thus:-

“In modern conditions many employees are covered by collective agreements made between one or more trade unions on the one side and one or more employers’ association on the other… Much of the procedure of this collective bargaining is governed by practice, not strict law and there is no legal compulsion on either the employees or the employers to enter into collective bargaining except in the case of certain public boards or corporations. There is no reported case on the legal status of such a collective agreement and the majority opinion of those concerned with such agreements is that they are not intended to create legal relations. This means that they are binding in honour only, and that their enforcement must depend on industrial and political pressure.”

In the case of Nigeria-Arab Bank Ltd. v. J. E. Shuaibu (1991) 4 NWLR (Pt.186)450 at 469 the Jos Division of this court, per Ndoma-Egba J.C.A. described the collective agreement of Association of Banks, Insurance and Allied Institutions etc as “at best, a gentleman’s agreement, an extra-legal document totally devoid of sanctions. It is a product of trade Unionist’s pressure.” In the case in hand, neither party has raised any issue on Exh. C and therefore I will say no more about it.

The crucial or dominant issue for determination in this appeal is whether the learned trial Judge was right in converting the dismissal of the respondent to one of termination of appointment or retirement so as to entitle the respondent to the award of retirement benefits which otherwise he would have lost vide Calabar Cement Co. Ltd. v. Daniel (1991) 4 NWLR (Pt.188) 750; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599. It is not in dispute that the respondent’s claim in damages is predicated on his alleged wrongful dismissal from the appellant’s service. The learned trial Judge after an exhaustive evaluation of the evidence led on both sides found as a fact that the dismissal was not wrongful. At P.104 lines 10-12, the learned trial Judge held:-

“Although I held that the dismissal from such services was not wrongful, it is my view that in the circumstances of the case, it should be converted to retirement from service.”

There is no appeal or cross-appeal against that finding of the court below that the dismissal of the respondent from service is not wrongful. It is the law that where there is no appeal against the findings of fact made by a trial court, those findings remain for ever unassailable: Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Kasa v. State (1994) 5 NWLR (Pt.344) 269 at 289; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; Awote v. Owodunni (1986) 5 NWLR (Pt.46) 941 at 946.

I am in agreement with the learned counsel for the appellant that for many reasons, the learned trial Judge was in error to have converted the lawful dismissal to that of termination of appointment or retirement from service. Firstly, trial was on pleadings and the guiding principle is that parties are bound by their pleadings. It is not competent for a court to make a case of its own or formulate its own case from the evidence before it and thereafter proceed to give a decision based upon its own postulate quite contrary to the case of the parties before him. In the case of Ochomma v. Unosi (1965) NMLR 321, it was held that the Judge was wrong to have based his judgment on an interpretation of a transaction between the parties therein which neither of them had pleaded or testified to in evidence: See Adeleke v. Iyande (1994) 9 NWLR (Pt.366) 113 at 124. Rasaq A. Balogun v. A.C.B. Ltd. (1972) 1 S.C. 77 and Ogiemen v. Ogiemen (1967) 1 All NLR 191. Secondly, the respondent’s case in substance would appear to be as a substantive relief a declaration that he was wrongfully dismissed from service with ancillary reliefs for damages. The court is without power to grant a substantive relief, such as termination of appointment or retirement which was not claimed for. It has been constantly emphasised that a court of law ought not award to a plaintiff a substantive relief he has not specifically claimed: See Ekpenyong v. Nyong (1975) 2 S.C. 71 at 81-82: Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57 at 81; University of Lagos v. Dada (1971) 1 UILR (Pt.3) 344 at 349; Union Beverages Ltd. v. Owolahi (1988) 2 NWLR (Pt.68) 118 at 136: Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192 at 206; Olurotimi v. Ige (1993) NWLR (Pt.311) 257 at 271; Union Bank of Nig Ltd. v. Chukwuelo Charles Ogboh (1995) 2 NWLR (Pt.380) 647 at 671.

Thirdly, the course taken by the learned trial Judge in converting the dismissal to retirement was made suo motu without counsel on both sides being afforded the opportunity of addressing the court on the matter. It is well established that where a court decides to deal with an issue which was not raised by any of the parties before it, it is mandatory for the court before deciding the issue to give the parties the opportunity to address it on the issue. This is to ensure fairness to both parties as well as to avoid an element of surprise: Road Transport Employers Association of Nigeria v. The National Union of Road Transport Workers (1992) 2 NWLR (Pt.224) 381 at 392; Kallo v. C.B.N. (1991) 9 NWLR (Pt.214) 126 at 150. This principle was recently echoed by the Supreme Court in the case of Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 at 170 where Iguh, J.S.C. emphasised thus:-

“With very great respect to the Court of Appeal it cannot be over-emphasised and this court has repeatedly warned against decisions of court being founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before it, nor even raised by or for the parties or either of them. See Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 and Sauda v. Abdullahi (1989) 7 N.J. 216 at 229; (1989) 4 NWLR (Pt.116) 387; In Chief Ebba Chief v. Ogodo & Anor (1984) 4 S.C. 84 at 112; (1984) 1 SCNLR 372, Eso J.S.C. succinctly put the matter as follows:-

“With utmost respect, it should be plain to Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.”

See too Florence Olusanya v. Olufemi-Olusanya (1983) 1 SCNLR 135; (1983) 3 S.C. 41 at 56-57. Courts of law must therefore limit themselves to the issue raised by the parties in their pleadings ‘as to do otherwise might well result in the denial to one or the other of the parties’ right to fair hearing: See Metalimpex v. A.G. Leventis & Co. (Nig.) Ltd. (1976) 2 S.C. 91; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; Kalio v. Kalio (1975) 2 S.C. 15; Shell B. P. Ltd. v. Abedi (1974) 1 All NLR (Pt.1) 1 and Alhaji Ogunlowo v. Prince Ogundare (1993) 7 NWLR (Pt.307) 610 at 624. On no account should a court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without giving the parties an opportunity to be heard on the point, particularly the party that may suffer as a result of the point so raised suo motu. See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566 at 581, Okafor v. Felix Nnaife (1973) 3 ECSLR (Pt.1) 261; (1973) 3 S.C. 85; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1; Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420; Atanda v. Lakanmi (1974) 3 S.C. 109; Ajao v. Ashiru (1973) 11 S.C. 23 etc etc. If it does so, it will be in breach of the parties’ right to fair hearing. Sheldon v. Brownfield Justices (1964) 2 Q.B. 573 at 578 and Regina v. Hendon Justices ex parte Govchein (1973) 1 WLR 1502.”

In the case in hand, neither in their pleadings, nor in the address of counsel did the parties raise the issue of the conversion of the respondent’s dismissal to termination of appointment or retirement from service. The learned trial Judge was therefore, with respect, in grave error to have raised same suo motu and proceeded to rely on it in entering judgment for the respondent without inviting counsel to address him on the issue.

A fourth, and perhaps a more serious and compelling reason for impugning the decision of the court below in converting the respondent’s dismissal to retirement is that the grounds upon which the learned trial Judge did so are untenable.

By a letter dated 23rd October, 1985, Exhibit A, the appellant dismissed the respondent from its service for gross misconduct. It was stated therein that by the dismissal he had forfeited all rights and privileges that might have accrued to him by virtue of the employment. The nature or particulars of the gross misconduct were not disclosed in the letter. It was, however, not a requirement of the law that it should be so disclosed. An employer, when he dismisses his employee, need not allege any specific act of misconduct on the employee’s part as the ground for the dismissal, it is sufficient if such a ground did exist, whether or not the employer knew of it at the time of the dismissal: Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch.D 339.

But if the employer does know of the misconduct in question and thereafter continues the employment, he may be taken to have waived his right to dismiss the employee on that ground; Boston Deep Sea Fishing Co. v. Ansell supra, Electricity Corporation of Nigeria v. George Nichol (1969) NMLR 265 at 269. At the trial, however, it emerged that the respondent was summarily dismissed for gross misconduct in respect to the award of excess interest into his account and the study leave he took without permission. In respect to the former, the appellant’s witness, D.W.1 gave evidence which the learned trial Judge accepted to the effect that the books of the appellant’s branch at Orlu were inspected for 1982/83 and 1984/85. In respect to that of 1982/83 carried out in 1983, the respondent was warned.

The second report for 1984/85 was made in 1985 after the respondent had left for the University and according to D.W.2 it was when the appellant’s Head office received it that the respondent was dismissed.

In his consideration of the evidence, the learned trial judge at P.103 lines 8 to 11 of the record said:-

“But as regards allegation of earning unmerited interests, my view is that the defendant bank could not have validly dismissed the plaintiff by reason of waiver as discussed above. However, the term ‘summary dismissal’ cannot apply. I will rather change it to termination of appointment.”

Earlier, at the bottom of page 96 and at P.97 lines 1 to 2 the learned trial Judge stated:- .

“In my view, a summary dismissal must be a dismissal following immediately after a misconduct is discovered against an employee.”

From the above extracts, it is evident that one of the reasons given by the learned trial Judge in converting the respondent’s dismissal to termination is that the appellant had waived its right to dismiss the appellant for the unmerited interests he earned in his account from 1982 to 1984 and the fact that the letter of dismissal Exhibit A dated 23/1 0/85 not having been issued immediately the dishonesty of the respondent had become known in 1983 could not amount to summary dismissal.

With profound respect to the learned trial Judge, I do not share his views. Waiver is an abandonment of a right and showing by words or conduct not to insist on the right: See Vol. 37 Halsbury’s Laws of England (3rd Ed) 152; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt.210) 391 at 416. In the case of Phillips v. Foxall (1871-72) L.R.Q.B. 666, Blackbourne J, observed as follows:-

“Now the law gives the master the right to terminate the employment of a servant on his discovering that the servant is guilty of fraud. He is not bound to dismiss him, and if he elects after knowledge of the fraud, to continue with him in his service, he cannot at any subsequent time dismiss him on account of that which has been condoned.”

In the same vein, in Beattie v. Farmenter (1888) 5 T.L.R., Lord Esher M.R. said:

“As to irregularities, the defendant could not rely on them in as much as, after full knowledge of them he continued the plaintiff in service.”

The emphasis is on full knowledge or awareness of the irregularities or misconduct. Undoubtedly, the appellant was aware of the 1983 report of dishonesty of the respondent and other staff. It took no step to dismiss him besides the warning given to him and thereafter he was allowed to earn his annual increment of his salaries for the subsequent years which according to evidence is subject to satisfactory service. Clearly, the appellant cannot rely on that misconduct that had been condoned to dismiss the respondent. But the misconduct discovered in 1985 is on a different footing. No act of waiver could have been imputed to the appellant. It is my respectful view that since the appellant bank had not become aware of the respondent’s misconduct in respect to the year 1984 until 1985 when the D.W.1 sent another report to the appellant’s Head office in Lagos by which time the respondent had left for the University, the question of waiver could not have arisen. It has not been suggested that the allegation against the respondent to the effect that he awarded unmerited interest to his account is not a misconduct to justify his summary dismissal. In the case of Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt.62) 577 at 579, the Supreme Court held:

“There is no fixed rule of law defining the degree of misconduct which would justify a dismissal. 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. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employee irrespective of the conditions of service.”

In that case, the plaintiff had become disloyal by sabotaging the implementation of the employer’s policy on indigenisation and working against the essential interest of the employer and such conduct was held to amount to gross misconduct. I have no doubt that in the instant case the respondent’s conduct in awarding himself unmerited interest amounts to gross misconduct. The learned trial Judge ought to have found the respondent rightly dismissed for gross misconduct in respect of the unmerited interest he earned in his account with the appellant for the year 1984. The words ‘summary dismissal’ according to Oxford advanced Learners Dictionary 4th Edition means a dismissal done or given immediately without attention to details or fonnal procedure. the letter of dismissal Exh. A is in accord with that definition. For the learned trial Judge to hold to the contrary is to strain the meaning of those words.

Again, the learned trial Judge dealt with the second ground of gross misconduct relied upon by the appellant bank which was that the respondent’s application for study leave had not been granted before the respondent abandoned his work for the University. The learned trial Judge referred to Exhibit ‘C’ supposed to be the conditions of service of the staff of the appellant and observed that the provisions therein did not cover the situations where the employee abandones his work for the University without permission. Having on the authority of Turner v. Mason (1885) 14 M & W 112 held that at Common Law a servant can be summarily dismissed from his employment if he absents himself from work without permission, he held that the respondent was liable for summary dismissal in January 1985 when he left for the University. At p. 104 lines 9-16, of the record, the learned trial Judge then said:-

“I now come to the question of the plaintiff’s entitlement if any, because of termination of his service. Although I held that his dismissal from such service was not wrongful, it is my view that in the circumstance of the case it should be converted to retirement from service. I say this because although the branch Manager of the defendant Bank Orlu has no power to grant the plaintiff a study leave, it is quite clear that the plaintiff acted in the belief that the said Orlu branch Manager had power to do so.”

It is thus evident from the above excerpt that the second reason given by the learned trial Judge for converting the respondent’s dismissal based on the abandonment of his work without permission is that the respondent acted in the belief that the Orlu branch manager of the appellant Bank had the power to grant him study leave. It is said that ignorance of the law is no excuse. Granting, but without conceding that such an excuse was tenable, that finding that the respondent acted in the belief that the Orlu Branch Manager could grant him study leave is inconsistent with an earlier finding by the learned trial Judge when at p.100 lines 26-32, he said:-

“…and having regard to the fact that the plaintiff knew that the Orlu Branch Manager had no authority to grant him a study leave by addressing his application to the Chief Personnel Officer, Lagos through the Orlu Branch Manager. This simply means that the duty of the latter was to forward the letter and not to consider the application.”

It is manifest from the above that the second ground relied upon by the court below in converting the respondent’s dismissal to termination of appointment which is based on to conflicting findings of the learned trial Judge cannot be supported. It has been argued that the respondent not having pleaded Exhibit ‘C’ ought not to have relied on it. I agree with learned counsel to the respondent that the appellant having pleaded and tendered Exhibit ‘C’ the respondent was entitled to take advantage of it if it supports his case. It is settled law that although a plaintiff must prove his case on the strength of the case, he is however entitled to take advantage of any evidence adduced by the defence, which tends to establish his case: See Josiah Akinola & Anor v. Fatoyinbo Oluwo & 2 ors. (1962) 1 All NLR 224 at 225; (1962) 1 SCNLR 352. Be that as it may, I have already expressed my doubt as to the legal status of Exhibit ‘C’. Besides, it does not appear that it contains any provision favourable to the respondent which he can rely on to establish his claim in this case. For this reason, the contention that Exhibit C was not properly evaluated with respect to whether the disciplinary measure contained therein covers that of study leave without permission is irrelevant. This is so because, the learned trial Judge found that absence from duty without permission is a gross misconduct at common law for which an employee could be summarily dismissed, whether such a misconduct is provided for in Exhibit ‘C’ is neither here nor there. It is for this reason that I think that the second issue for determination in the respondent’s brief though properly arising from the grounds of appeal is not a proper issue for determination. An issue for determination is such a proposition of lawful fact which if resolved one way or the other ought to affect the judgment appealed against: See Standard Consolidated Dredging and Construction Co. Ltd. & Anor. v. Katonecrest Nig. Ltd. (1986) 5 NWLR (Pt.44) 791 at 799; Onyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) 315 at 343.

Learned counsel to the respondent had argued vigorously in support of the course taken by the learned trial Judge to convert the respondent’s dismissal to termination. It was argued that it was based on the court’s inherent power to do substantial justice. With respect to counsel, I am not taken in by that argument. In the case of Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122 at 197, the Supreme Court observed:-

“In my judgment, inherent jurisdiction or inherent power, (as it is more commonly called. of court is that which is not expressly spelt out by the Constitution or in any statute or rule but which can, of necessity be invoked by any court of record to supplement its express jurisdiction and powers. It is a most valuable adjunct to the express jurisdiction or powers conferred on our courts of record by the Constitution, any law, or rule of court an inherent power nebulous as it usually is does not extend the jurisdiction of a court of record. Rather, it practically lubricates its statutory jurisdiction and makes it work.

Courts in proper cases, use their inherent jurisdiction to control persons, say in cases of contempt of court, to control processes such as when they strike out actions which are frivolous or vexatious or an abuse of process (see Palmer v. Stooke & Anor (1953) 14 WACA 333 and 10 control inferior courts and tribunals, say, when they order stay of proceedings.”

Although the instances in which the courts exercise their inherent powers are galore, they are nevertheless limited. In the case of Adigun v. Att. Gen of Oyo State supra, it was held that the inherent power of a court does not empower it to review its own decision and in Yonwuren v. Modern Sign (Nig) Ltd. supra it was also held that the inherent jurisdiction of a court to set aside its judgment or order is limited to judgment or orders which are nullities. In the case in hand. I am of the view that it will not be a proper exercise of the inherent jurisdiction of a court to override a fundamental rule of law by granting a substantive relief not claimed by a party in the name of substantial justice. In the case of Manova Ogbe v. The State (1987) 3 S.C. 479 at 501. Obaseki J.S.C. said:-

“Interest of justice does not refer to the interest of the appellant alone. Both the appellant and the respondent are each entitled to justice in the matter before the • court. The court is also interested in seeing that justice is done.”

It would be absurd and unjust for the inherent power of the court to be invoked in the guise of doing substantial justice to the respondent at the expense of the appellant.

Even if, but without conceding, the learned trial Judge was right in converting the respondent’s dismissal to termination, the awards made to the cannot be sustained on the available evidence on record. In paragraph 12 of the statement of claim, the respondent pleaded that by reason of his wrongful dismissal, he had been deprived of his salary, gratuity, staff provident fund entitlements, transport allowance, leave allowances etc. Responding in paragraphs 6 and 7 of the statement of defence, the appellant denied the allegations in paragraph 13 of the statement of claim and put the respondent to strict proof thereof. What was the evidence led by the respondent to establish his entitlements to the benefit he pleaded? It would appear from the records that he relied on mere ipse dixit in which at p.S9 lines 17 to 32 he said:-

“For 8 years I served I would have been entitled to service gratuity calculated at the rate of 40% of the terminal salary that gives N8,036.40. For the period I worked, I would have been entitled to Staff Provident Fund Pension to the total of N624. My leave allowance for 1983 and 1984 was commuted to cash which has not yet been paid. The amount involved is N1,167.72”

I am not oblivious of the fact that depending on the circumstances a fact can be established by a mere ipse dixit of a party: See Boshali v. Allied Commercial Exporters Ltd, (1961) All NLR 917; (1961) 2 SCNLR 322; Bello v. Eweka (1981) 1 S. C. 101 at 129; Debo v. Cenico Ltd. ( 1986) 3 NWLR (Pt.32) 846. In the last of these cases, Oputa J.S.C. at P. 853 of the report said:-

“Now ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual. There can be no question that a ‘mere ipse dixit’ is admissible evidence but it is evidence resting on the assertion of the one who made it. Where there is need for further proof ‘a mere ipse dixit’ may not be enough.”

And at p.854 Eso J.S.C said:-

“I agree with him that there is nothing wrong with ipse dixit as a piece of evidence. It is admissible and the weight to be placed upon it would depend on the circumstances. A party’s ipse dixit could be cross-examined, it could be left just uncontradicted. It is for the court in evaluating the evidence to take every circumstance into consideration.”

It is my judgment that the ‘ipse dixit’ of the respondent was insufficient to establish his entitlement to pension and gratuity having regard to the pleadings of the parties referred to above and particularly the fact that the supposed conditions of service Exh. C which both parties relied upon did not appeal to establish those entitlements.

The awards made by the learned trial Judge in that regard were unjustified. Perhaps, a more glaring error in the awards relates to that of 1983/1984 leave allowances. The learned trial Judge had found, rightly, in my view, that the respondent had earned and enjoyed his 1984 annual leave which ended by the end of December, 1984. That raises the presumption that the respondent had earned and enjoyed his 1983 annual leave: vide section 149(c) of the Evidence Act, Cap.112 Laws of the Federation of Nigeria, 1990. One is therefore at a loss to appreciate the basis of the award in respect to the 1983 and 1984 annual leave particularly as there was no iota of credible evidence that the respondent applied that it be commuted to cash and such application granted. More importantly, that item cannot be properly claimed as damages. I am fortified in this view by the case of Abdullah v. Achou supra where the Supreme Court held that the trial Judge was in error in awarding as damages for breach of contract past salary and leave pay which ought to have been brought as alternative or separate claims to damages.

In the light of the foregoing, the complaints against the judgment of the learned trial Judge are many and substantial and such as would justify its reversal, the appeal is accordingly allowed. The judgment of the lower court is hereby set aside. In its place, the respondent’s case is dismissed. I award to the appellant as against the respondent costs assessed at N300.00 in this court.

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Other Citations: (1995)LCN/0223(CA)