Alhaji Lasisi Yusuf Vs Union Bank Of Nigeria Ltd (1996)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
The plaintiff’s claims as set out in paragraph 15 of the Statement of Claim are as follows:-
“Whereof the plaintiff claims against the defendants the following:
(a) A declaration that the plaintiff’s purported dismissal by the defendants was wrongful, null and void.
(b) An order that the plaintiff be reinstated in his employment and position as a staff of the defendants.
(c) An order that the plaintiff be paid arrears of his salary and entitlements from the date of his purported dismissal to the date of judgment of this suit.
(d) N50,000.00 being general damages for wrongful dismissal, plus
(e) The cost of this suit.”
The claims were denied by the defendant, particularly in paragraphs 8(a) and 10 of the Amended Statement of Defence reproduced hereunder:-
“8(a) The defendant denies paragraphs 8, 9, 10, 11 and 12 of the Statement of Claim and will contend at the trial of this suit that the plaintiff misconducted himself in the service of the defendant by engaging in irregular and negligent practices in respect of cash, records, returns or Customer’s Account and the defendant therefore discharged the plaintiff from its service.
Particulars
(a) That on the 21st January, 1983, the plaintiff irregularly and/or negligently signed a paying in slip on general customer’s paying in slip in respect of the sum of N4,665.00 kobo which should have been credited to the account of Salihu Abioye but which the plaintiff diverted to the account of Mallam Salami Yekini his friend. The aforesaid transaction was irregularly made in that it was not internally passed for counter-signature by two Authorized signatories of the Bank one of whom must be an officer of the “A” category.”
b. ………
c. ……..
d. ……..
“8(b) With further reference to paragraphs 4 and 8 of the statement of claim, the defendants plead plaintiffs letter dated 2Sth April, 1984 addressed to the defendant’s Baga Branch Manager captioned “Memo on the Charges of Misappropriation and Irregular Sales of Traveller Cheques” and will found upon same at the trial of this action to establish the fact that contrary to the plaintiff’s averments contained in the said paragraphs, plaintiff was infact demoted for two and half years from a Senior post to that of a clerk on account of his incompetence.”
x x x x x x x x x x x x x x x x x x x x x x x x x x
“10. The defendant denies paragraphs 13, 14 and 15 of the statement of claim and will contend at the trial that the plaintiff’s action is misconceived on facts and groundless in con and that the same be dismissed with substantial costs.”
At the trial, the plaintiff gave evidence in support of his case while the defendant called one witness in defence. At the end of the trial, the learned trial Judge painstakingly considered the issues raised and concluded:-
“In the final result I hold that the plaintiff was guilty of gross misconduct which justified his summary dismissal by the defendant. Accordingly therefore, the plaintiff’s action is hereby dismissed with costs which I assess and fix at N150.00 to the defendant.”
Dissatisfied with the judgment of the trial court the plaintiff lodged an appeal to the Court of Appeal against it.
In a reserved and unanimous judgment of the Court of Appeal delivered by Ndoma-Egba, J.C.A., the appeal was dismissed.
The plaintiff has now further appealed to this court.
In the brief filed in support of the appeal by learned counsel for the plaintiff/appellant the following two issues were raised for consideration by this court:-
“1. Whether the Court of Appeal rightly upheld the rejection of Exhibit F by the trial court.
- Whether the Court of Appeal was in duty bound to consider and/or make findings on all the Grounds of Appeal duly filed and argued by the appellant in his written brief and if so has the failure of the Court of Appeal to consider the complaint on lack of fair hearing occasioned grave miscarriage of justice”
Learned counsel for defendant/respondent also filed a brief in which the following two issues were formulated:-
“(a) Whether the determination by both the trial court and the court below that Exhibit ‘F’ was irrelevant to the issues submitted for adjudication before the court (is) synonymous with a rejection of Exhibit ‘F’.
(b) What is the effect (if any) of the failure of the court below to consider and pronounce upon one of the grounds of appeal argued before it by the appellant herein.”
The set of two issues formulated in the plaintiff and the respondent’s briefs respectively are identical in substance, though differently worded.
Before I proceed to consider the appeal on its merit, it is pertinent to deal with the preliminary objection raised by learned counsel for the defendant/respondent in his brief against ground one of the grounds of appeal. The preliminary objection reads:-
“It is the respondent’s contention that ground one of the grounds of appeal raises questions of mixed law and fact. This is so because the question whether a piece of evidence which has been admitted is relevant or irrelevant to the issues before a court involves a consideration of the probative value or weight to be attached to such evidence. Whether a piece of evidence is admissible or not is essentially a question of law. A finding that such evidence is irrelevant to the issues before the court is a question of fact. And a ground of appeal challenging such finding will at best be a ground of mixed law and fact.”
Learned counsel argued that ground one of the grounds of appeal raises issue of mixed law and fact in that the question whether a piece of evidence which has been admitted is relevant or irrelevant to the issues before a court involves a consideration of the probative value or weight to be attached to such evidence and submitted that:
(a) Whether a piece of evidence is admissible or not is essentially a question of law; while
(b) A finding that such evidence is irrelevant to the issues before the court is a question of fact;
and as such, he further submitted, leave of the Court of Appeal or the Supreme Court as the case may be, is required before it is filed. He cited S.213(3) of the 1979 Constitution of Nigeria and the cases of Onifade v. Alhaji Olayiwala (1990) 11 SCNJ 10 at201; (1990) 7 NWLR (P!.161) 130 and Ojemen & Ors. v. Momdu 11 (1983) 1 SCNLR 188; (1983) 3 SC 173 at 211 among others, in support. He urged the court to declare ground one incompetent and to strike it out.
Learned counsel for the plaintiff/appellant, though served with respondent’s brief containing the preliminary objection, did not consider it fit to file a reply to it. Also on the day the appeal was called for hearing learned counsel for both parties appeared in court, but counsel for the defendant/respondent did not specifically move his preliminary objection. In fact he said nothing other than adopting and relying on the brief he filed on behalf of the defendant/respondent.
As stated earlier, learned counsel for the plaintiff/appellant did not reply to the preliminary objection by filing a reply brief after being served with respondent’s brief containing the preliminary objection, and did not apply to do so while addressing us.
With the position as it is, I shall proceed to consider the preliminary objection raised and argued in the respondent’s brief as if it were a brief requiring a reply to which none was filed or orally presented, as the issue raised therein is fundamental.
It appears to me that there is substance in the objection taken by learned counsel for the respondent against ground one of the grounds of appeal already filed and argued. The particular ground reads as follows:-
“1. The learned Justices of the Court of Appeal erred in law by holding that it was proper for the trial Judge to reject Exhibit F (tendered without objection) as irrelevant at the judgment stage and then apply the common law inspite of the attitude of the parties to the applicability of Exhibit F as the agreement governing the terms of the plaintiff’s employment with the defendant.
Particulars and Nature of Error
A. The parties are not in issue on the state of the pleadings as to the relevance and applicability of Exhibit F as the agreement covering plaintiff’s employment with the defendant.
B. None of the parties raised the issue of duration of Exhibit F at the trial but the trial Judge raised the issue of duration suo motu during judgment without hearing the parties on the issue.
C. Exhibit F is a relevant and admissible evidence within the con of the law of evidence
D. The Court of Appeal equated relevancy with weight of evidence and thereby mis-applied the dicta of Fatayi-Williams J.S.C. in Ayeni v. Dada (1978) 3 S.C. 35 at 61”
Looking at and examining the ground of appeal with its supporting particulars, I have no difficulty in coming to the conclusion that particulars A and B thereof raise issues of fact while particular C and D raise issues of law. The combined effect of these particulars therefore makes it a ground of mixed law and fact. The mere fact that the appellant described the ground as a ground of law, would not render it to be so. See Onifade v. Alhaji Olayiwola (1990) 11 SCNJ 10 at 20: (1990) 7 NWLR (Pt.161) 130 and Ojemen v. Momodu II (1983) 1 SCNLR 188; (1983) 3 S.C. 173 at 211 wherein Obaseki, J.S.C. stated thus:
“The mere description of a ground of appeal as a ground complaining of Error in Law when in fact, the particulars show clearly that the complaint or the substance thereof is against the evaluation, assessment, weight of evidence, findings of fact or a complaint of misdirection on the facts or mixed law and fact.”
S. 213(3) of the 1979 Constitution of Nigeria provides as follows:-
“(3) Subject to the provisions of subsection (2) of this section an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
Since the ground of appeal complained against does not fall under the provisions of 213(1) and (2) of the said Constitution, leave of either the Court of Appeal or the Supreme Court is a condition precedent to its competency, and this leave not having been obtained, I am left with no alternative but to sustain the preliminary objection and declare the ground incompetent. It is hereby so declared and struck out. The argument contained in the brief in support of that ground therefore goes to no issue and shall be ignored in deciding the appeal.
The second issue raised in this appeal is related to ground two of the grounds of appeal with particular reference to particular two of that ground. For ease and convenience of following the arguments in this appeal, I deem it pertinent to reproduce hereunder both the ground two in this court and the additional ground 3 in the Court of Appeal.
“2. The learned justices of the Court of Appeal misdirected themselves in law and proceeded on faulty steps when they observed as follows:
(i) (not relevant)
(ii) Issues Nos. 3(a) and (b) were not pleaded nor were they in issue at the trial court; they cannot without leave be entertained on appeal, they are struck out.
Particulars and Nature of Misdirection
A. Three additional grounds of appeal were filed by the plaintiff (as appellant) on 15th July, 1988 pursuant to the leave of court to so do granted on 6th July 1988 upon hearing motion on notice filed on 1st July, 1988.
B. The two grounds of appeal quoted by the court as the additional grounds filed with leave of the court are not the additional grounds filed by the plaintiff/appellant on 15th July 1988, pursuant to the leave granted on 6th July, 1988.
C. The third additional grounds of appeal filed on 15th July, 1988 raised the issue of the constitutionality of the procedure adopted in dismissing the plaintiff/appellant.
D. Issue 3(a) and 3(b) formulated by the appellant in his amended brief dated 6th July, 1988 and filed on 15th July, 1988 related to the additional ground No.3 filed on 15th July, 1988 as aforesaid.
E. The Appeal Court before hearing arguments in the substantive appeal on 14th September, 1989, granted leave to the plaintiff/appellant to argue the points on additional grounds No.3 dated 6th July, 1988 without objection upon the hearing of motion on notice dated 3rd October, 1988 and filed on 3rd May, 1989.
F. The Appeal Court failed to consider issue No.3(a) and 3(b) raised before it.”
In the Court of Appeal, the additional ground 3 reads thus:-
“3. The learned trial judge erred in law by closing his eyes to the Constitutionality of the procedure of dismissing the plaintiff inspite of the nature of the allegation against him.
Particulars of Error
(a) Misappropriation, a criminal offence under section 308 and section 309 of the Penal Code was the reason given for the plaintiff’s dismissal by the defendant.
(b) The plaintiff was neither found guilty by any court of law recognised by the Nigerian Constitution nor any Tribunal set up by law.
(c) The allegation of misappropriation was made by Exhibit ‘E’ (Query) written and signed by the D.W. 1 Mr. C.N. Onovo. Exhibit ‘C’ (the reply to query) was addressed to Mr. C.N. Onovo. Exhibit ‘D’ (letter of suspension) and Exhibit ‘E’ (letter of dismissal), were written and signed by Mr. C.N. Onovo after he received Exhibit ‘C’”
It was the argument of learned counsel that the Court of Appeal was wrong when it refused to consider additional ground 3 above on grounds that issues 3(a) and (b) were not pleaded nor raised in the trial court and no prior leave of that court was obtained to argue and urge fresh issues not raised in the trial court, when leave to argue the ground had been earlier granted by the same Court of Appeal. Learned counsel referred to pages 75 – 76 and 99 – 100 of the record. He contended that the omission to consider this ground of appeal by the Court of Appeal was a serious misdirection of denying the appellant his constitutional right to fair hearing which occasioned miscarriage of justice. Learned counsel cited the following cases in support – Udeze &. Ors. v. Chidebe &. Ors. (1990) 1 NWLR (Pt.125) 141 at 161; Bray v. Ford (1896) AC 44 at 49; Chidiak v. Laguda (1964) NMLR 123 and Sofekun v. Akinyemi & Ors. (1980) 5 -7 SC 1 at 20-21. He urged the court to allow the appeal.
In reply to the argument and submissions of the appellant’s counsel, learned counsel for the respondent contended that the complaint of the appellant that he was dismissed for “misappropriation of collection proceeds” which constituted Criminal offences chargeable under S. 308 and S. 309 of Penal Code applicable to Borno State was ill-founded and a complete misconception of the role of pleading in civil proceedings. He submitted that since the issue of constitutionality or otherwise of the procedure adopted in dismissing the appellant was never raised in the pleading and no leave was sought and obtained to argue the same in the Court of Appeal as an issue not raised and canvassed in the trial court, it would be an exercise in futility for the Court of Appeal to have considered it. He also relied on the following cases among others cited:- Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 131 at 144; Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326 at 360 and Ransome-Kuti v. A.Federation (1985) 2 NWLR (Pt.6) 211. He argued further that since the appellant was dismissed by the respondent for gross misconduct, both the trial court and the Court of Appeal were right in dismissing the appellant’s case. He urged this court also to dismiss the appeal and affirm the two lower courts’ decisions.
The main question that falls to be considered and answered in this appeal, having regard to the arguments of learned counsel, is –
Did the application for leave to file and argue additional ground 3 simpliciter which was granted by the Court of Appeal, give the appellant the right to argue issue or issues not raised in the pleadings or canvassed in the trial court but contained in that ground and being raised for the first time, without specifically applying and obtaining leave of the Court of Appeal to that effect
S. 213(3) of the Constitution of Nigeria 1979 makes it mandatory that with the exception of cases that fall within S.213(1) – (2) of the said Constitution, prior leave to appeal either to the Court of Appeal or the Supreme Court as the case may be is a pre-requisite. Where an appellant is seeking leave of the court to raise and canvass issues for the first time in the appellate court and which were not raised in the trial court leave of the appellate court must specifically be sought and obtained to that effect. The application must contain a prayer that the issue or issues are being raised for the first time in the Court of Appeal, and same not having been canvassed in the trial court, as in the present appeal.
The prayers contained in the appellant’s Motion filed in the Court of Appeal on 1st July, 1988 did not contain a prayer for leave to raise the fresh issue for the first time, relating to fair hearing. The conclusion of the Court of Appeal that “Issues 3(a) and (b) were not pleaded nor were they an issue at the trial court cannot, without leave, be entertained on appeal”, cannot be faulted. Counsel for the appellant did not deny that the question of breach of fair hearing by the respondent was not raised in the appellant’s statement of claim, but proceeded under misconception to regard that the leave as granted by Court of Appeal to file ground 3 was tantamount to a grant of leave by that court, to raise and argue the new points. Leave to file and argue additional ground simpliciter did not per se clothe the appellant with authority to argue issues being raised for the first time in the Court of Appeal, which were not pleaded and canvassed in the trial court. The order was not a blanket authority. See Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 and Amusa Opoola Adio v. The State (1986) 2 NWLR (Pt.24) 581 and Bakin Salati v. Shehu (1986) 1 NWLR (Pt.15) 198.
On the issue of fair hearing which the appellant belatedly introduced, it is my considered view that before an employer can dispense with the services of his employee under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. In the case in hand, the respondent had done that. See Exhibit B wherein the respondent called upon the appellant to give comprehensive explanation of the three accusations of misconduct and impropriety levelled against him. These were replied by the appellant in Exhibit C most unsatisfactorily. Instead of answering the accusations, he went about accusing the respondent of trying to destroy him and rudely proposing questions for the respondent to answer.
It is not necessary, nor is it a requirement under S. 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. I may go further to say that the provisions of S.33 supra have no application to the facts of this case. See: Ransome-Kuti v. A.-G. of the Federation (1985) 2 NWLR (Pt.6) 211.
To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him. See Russell v. Duke of Norfolk (1949) 1 All ER 109 at 118.
Having regard to all that I have said above, this appeal is completely devoid of any merit and is accordingly dismissed with N1,000.00 costs to the respondent.
The judgments of the lower court and the court below respectively are equally affirmed.
Other Citation: (1996) LCN/2684(SC)
