Benedict Hirki Joseph V. First Inland Bank Nig Plc (2009)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA-AJI, J.C.A.

This is an appeal against the decision of Honourable Justice M.M. Dodo of the High Court of the Federal Capital Territory, Abuja, delivered on the 14th of January, 2008, whereby the learned trial judge dismissed the reliefs sought by the Plaintiff/Appellant.

The Appellant’s claim, as per his Statement of Claim at the lower court was for:-

1. A declaration that the plaintiffs dismissal on the ground of fraud as contained in the Defendant’s letter dated 21st July 2005 is wrongful null and void.
2. An order setting aside the Defendant’s letter dated 21st July, 2005, dismissing the plaintiff from the Defendant’s organisation on the ground that the letter infringed on the plaintiff’s right as contained in the Defendant’s condition of service.

The facts of the Appellant’s case as can be gleaned from the pleadings and evidence adduced was that, in 2001, the defunct Inland Bank Nigeria Plc, entered into a contract of employment with the Appellant and the contract was reduced into writing through a letter dated 3rd December, 2001, issued by the bank to him and he was employed as a Deputy Manager.

On assumption of duty on 14th January, 2002, the Appellant was made to go through various units in Kaduna branch to acquaint him with the bank’s system after which he was assigned to oversee the credit unit. Satisfied with his performance, the Respondent in another letter dated 17th June, 2003, confirmed his employment, thereby making him a permanent staff.

It is further averred that by virtue of his position in the credit unit, the system allowed him to grant overdraft to customers. In the exercise of the said powers vested upon him, he granted overdraft facilities and assisted some customers to procure foreign currencies with the sole purpose of boosting the fortunes of the Respondent. Some customers who obtain these facilities pay-up subsequently, while some were delayed. It is further averred that, in a bid to pay the overdraft facilities, some customers issued cheques, which were not honoured. Before the customers could redeem the facilities, the Respondent alleged that the transaction were fraudulent. On the 9th January, 2004, the Respondent issued a letter of suspension to the Appellant. Thereafter, the Respondent, in a letter dated 21st July, 2005 dismissed him on allegations of granting unauthorized overdrafts and fraudulent withdrawal of money from customers account.

The Appellant’s contention is that his dismissal is unlawful and in violation of Chapter 13 clause 13.5 of the Respondent’s Handbook for its workers as his dismissal was not approved by the Respondent’s Managing Director.

For the Respondent, however, it is its contention that the Appellant entered into a contract of employment with the Respondent. This was contained in a letter of employment dated 3rd December, 2001. The Appellant was subsequently assigned to oversee the credit unit of the Respondent’s Kaduna Branch. In 2004, following an investigation into the activities of the Appellant by the Respondent’s Investigation Team, the Appellant was found to have granted some unauthorized overdrafts and made withdrawals from some customers’ accounts without the customers’ consent. These withdrawals were considered fraudulent by the Respondent. The Appellant was queried. In answering the query he admitted the allegations and made a number of requests for extension of time within which to recover the facilities.

The Appellant was later suspended and when it became apparent that he was tampering with some customer’s accounts he was subsequently dismissed. The decision for dismissal was taken by the Respondent’s Management Director.

The Appellant’s case at the lower court was that his dismissal was not approved by the Respondent’s Managing Director in line with paragraph 13.5 of the Respondent’s staff Handbook and therefore, wrongful, null and void.

The Respondent on the other hand tendered in evidence Exhibit X3, the minute of a meeting of the Committee which approved the dismissal of the Appellant and others, the Managing Director of the Respondent being the Chairman of the said committee, which therefore negatives every allegation of non approval of the dismissal by the said Managing Director.

In a considered judgment delivered by the learned trial judge, the case of the Appellant was dismissed in its entirety. This is what the court said in dismissing the claim at page 122 of the Records of Appeal:-

in the interest of justice, peace and fair play, it is my humble opinion and submission to find and so hold, that the plaintiff has failed to prove his case against the defendant on balance of probability, hence, I equally so hold that;

The dismissal contained in the defendant’s letter dated 21st July, 2005 was not wrongful, null and void, such arguments and averments are hereby rejected. More so, I so hold that, the defendant’s letter dated 21st July, 2005 dismissing the plaintiff -from the defendant’s organisation, did not infringe on the plaintiff’s right as contained in the defendant’s condition of service, hence an order setting aside the letter is hereby refused.

Case is dismissed without cost.”

The Appellant is aggrieved by this decision and appealed to this Court vides a Notice of Appeal dated 2nd April, 2008 upon the following grounds of appeal. The grounds of appeal without their particulars are hereby reproduced.

GROUNDS OF APPEAL

GROUND ONE:

The learned trial judge erred in law when he held:-

“That undoubtedly as projected from the facts of the case, the plaintiff was hired by the defendant who subsequently fired him out of service on serious allegation covered by the handbook of the defendant’s employment which provided no alternative punishment for misconduct but to dismiss any employee of the defendant’s employment found guilty. From the antecedent’s of the case, the defendants were noted to have taken all steps necessary, from querying the plaintiff, receiving his reply, suspending him, not out rightly dismissing the plaintiff, before proving the allegations, the defendant are noted to have been meticulous in handling the matter i.e. by even being kind enough to allow the plaintiff to recover the money he unauthorizedly granted beyond his powers.”

and this error occasioned miscarriage of justice.

GROUND TWO

The learned trial judge erred in law when he held:

“That the defendants are noted to have set up a committee which examined the position of their staff on suspension including the plaintiff. The committee from Exhibit X3 tendered in this case; had recommended the dismissal of the plaintiff along with 8 others, while two of the plaintiff’s colleagues had their termination extended and one of his colleagues was terminated all in the same decision of the committee. From those available facts a reasonable man conversant with the facts would see that the decision passed on the plaintiff and his colleagues were supported by the facts of their alleged various offences. This court has viewed those offences, and for that reason the decision meted out to the plaintiff and his colleagues is seen to have commensurated with the offences.”

and this error occasioned miscarriage of justice.

GROUND THREE:

The learned trial judge erred in law when he held:

“That this court has in believing not only that the decision taken against the plaintiff was in order that the decision is found to have been in full compliance with chapter 13 clause 13.5 of the Defendant’s Handbook.”

and this error occasioned miscarriage of justice.

GROUND FOUR:

The learned trial judge erred in law when he held:

“That, glancing through the various exhibits and or annexure before this court, I have seen Exhibit XI that even the plaintiff did confirm from that letter he wrote to the defendant, that some of the recoveries he made from the beneficiaries were indeed resulting from the unauthorized overdraft the plaintiff had granted the customer of the defendants. The heading of the letter had duly, undoubtedly reflect and confirmed so! This court when it examined exhibit X 2 it is found to be replica of Exhibit X1. Annexures A2 and A3 that projected the reality of the plaintiff’s action agreeing to the alleged action of exceeding his limited authority to grant overdraft equally so, Annexure A4 and the allegations it contained did not only deal (sic) the defence of the plaintiff but the revelation it contained are found reflect (sic) the conduct of the plaintiff in the scenario as nothing more to describe less than a greater misconduct of highest magnitude. More so, Exhibit X1 and X2 which this court noted that were not contradicted or strongly objected to be tendered in evidence, these were, found to be a true reflection of the plaintiffs admission of the allegation leveled by the defendants against him.”

and this error occasioned miscarriage of justice.

GROUND FIVE:

The learned trial judge erred in law when he held:

“That this court has noted from the conduct of the plaintiff of not objecting to the admission of exhibit 3 i.e. the extract of the minutes leading to the dismissal of the plaintiff, his none-objection to the exhibits being admitted, is a clear demonstration of accepting all the facts stated in the exhibits which signifies and justifies the contents of the allegations against the plaintiff made by the defendant.”

and this occasioned miscarriage of justice.

GROUND SIX:

The learned trial judge erred in law when he held:

“That this court after weighing the evidence of PW1 has found same to have talleyed with the facts stated in the statement of defence; the same two (sic) were found to have also marched and talleyed with statement of witness (.i.e. defendant witness 1) made on oath filed along with the statement of defence. The court did not also find any contradiction when it compared those three outstanding issues brought about by the defendant to defend itself. Not even the narrating of DW1 was contradicted through cross examination of the witness by the plaintiff’s counsel.

These objection are among some notable factors which strengthen (sic) supported and solidified the defence case. One more notable confirmation of the correctness of the defendant’s action of dismissing the plaintiff as enshrined (sic) their handbook was the answer provided by DW1 when cross-examined by the plaintiffs counsel that..” Granting an unauthorized overdraft is a very serious offence! It is liable to punishment of dismissed..” This in my view is a confirmation that the defendant did not act ultra vires in issuing exhibit X3 and Exhibit 4 i.e. The 21st July, 2005 dismissal letter addressed to the plaintiff.”

and this error occasioned miscarriage of justice.

GROUND SEVEN:

The learned trial judge erred in law when he held:

“Cursory examination of exhibit 14 .i.e. the dismissal letter of the plaintiff it is clear that the defendant’s Managing Director was not the one who signed such letter. In my view, from the practical experience of this court and as a convention, there is no provision of any law, act or regulation operation in Nigeria where the Chief Executive or someone with such status referred to as Head of an organization should be made to sign a termination or dismissal letter. On most occasions, it has to be a subordinate officer whose administrative schedule it is to carry out the approval or decision of the Chief exhibit (sic) like Managing Director in the case at hand…. In view of all these demonstrated examples, the Managing Director and Chief Executive Officer of the defendant does not have to be the one to sign a dismissal letter of a staff in the defendant’s employment. As long as the letter is issued, the only inference to be made is that the said letter was issued with the directives and approval of the MD/CEO. One interesting thing to note here in that, the said head of an organisation or MD/CEO are mostly 99% part and parcel of any decision warranting the issuance of serious important document or letter.

Similarly in the case at hand, the said Managing Director contemplated by clause 13.5 to approve the dismissal of the plaintiff, he was the Chairman of the meeting and the decision of the Management Committee which after reviewing all cases of disciplinary action including that of the plaintiff, has decided the decision contained in exhibit X3 which ultimately culminated to the issuance of exhibit 14. If I may ask, which other approval is contemplated better than the decision in which the Managing Director being the approval officer headed the meeting of the decision to communicate exhibit 14 .i.e. the plaintiff’s dismissal letter? On the grounds of all the above I do not agree any reasonable man conversant with the facts would not agree with the argument of the plaintiff’s counsel that the Exhibit 14 the dismissal letter in contention was not approval by the Managing Director as provided for by clause 13.4 of Exhibit 4 .i.e. the Defendant’s staff handbook.”

and this error occasioned miscarriage of justice.

GROUND EIGHT:

The learned trial judge erred in law when he held:

“In view of all the above, in the interest of justice, peace and fair-play, it is my humble opinion and submission to find and so hold that the plaintiff has failed to prove his case against the defendant on balance of probability, hence, I equally so hold that the dismissal contained in the defendant’s letter dated 21st July, 2005, dismissing the plaintiff from the defendant’s organisation, did not infringe on the plaintiff’s right as contained in the defendant’s condition of service, hence an order setting aside the letter is hereby refused. Case is dismissed without cost.”

and this error occasioned miscarriage of justice.

GROUND NINE:

The judgment is against the weight of evidence.

As is the practice in this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Charles Obishai, Esq., the following issues were formulated for determination to wit:-

1. Whether the learned trial judge was right when he relied on Exhibit 3 an administrative panel report to hold that the Respondent established the various serious offences allegedly committed by the Appellant?
2. Does failure to object to the admissibility of Exhibit X3 in evidence amounts to admission of the facts contained in the document?
3. From the exhibits did the Appellant admit the alleged offences?
4. Whether the approval to dismiss the Appellant granted by the Executive Management Committee of the Respondent can be said to be that of the Managing Director?
5. Whether the learned trial judge rightly held that the serious allegations made against the Appellant were proved?
6. Whether the learned trial judge was right in dismissing the Appellant’s case?

In the Respondent’s brief, settled by Maxwell Chiemeka, Esq., the following issues arose for determination, namely:-

I. Whether Exhibit X3 was rightly admitted in evidence.

II. Whether the Appellant admitted granting unauthorized overdraft.

III. Whether the dismissal of the Appellant was not approved by the Respondent’s Managing Director.

IV. Whether the learned trial judge was right in dismissing the Appellant’s case.

At the hearing of the appeal on the 9th February, 2009, learned counsel for the Appellant, Charles Obishai, Esq., adopted and relied on the Appellant’s brief of argument filed on the 31st July, 2008 and the Appellant’s Reply Brief, dated and filed on the 31st of October, 2008 and urged this Honourable court to allow the appeal and set aside the judgment of the trial court.

Maxwell Chiemeka, Esq., learned counsel for the Respondent adopted and relied on the Respondent Brief of Argument dated 28th August, 2008 and filed on the 29th of August, 2008, as his argument in this appeal and urged the court to dismiss the appeal.

I have carefully considered the issues for determination as formulated by the Appellant and Respondent and it is my view that all the issues are related. In other words, they can be covered by the issues raised by the Appellant. I therefore adopt the issues as formulated by the Appellant in the determination of the appeal.

Issue I

Whether the learned trial judge was right when he relied on Exhibit 3 an administrative panel report to hold that the Respondent established the various serious offences allegedly committed by the Appellant?

Learned counsel for the Appellant, in arguing this issue submitted that while DW1 was testifying, he applied to tender the Appellant’s letter of dismissal. But the learned trial judge admitted a different document .i.e. Exhibit X3, which is the Extract of Minutes of the Executive Management Committee of Inland Bank (Nig) Plc.

It is his submission that since the witness did not give any evidence to support exhibit X3, the learned trial judge ought not to have placed reliance on it to hold that the Respondent established the serious offences alleged against the Appellant. He argued that the committee did not make any recommendations but rather it took final decision on the matter. He referred to Exhibit X3 at pages 68-69 of the Record, and submitted that the Committee did not ask the affected staff to appear before it before it came to its final decision to dismiss the Appellant. It is his contention that this act contravenes the principles of natural justice and that since the civil rights and obligations of the staff were being questioned, the provisions of Section 36 of the 1999 Constitution ought to have been observed. He referred to the case of AROMOLARAN VS KUPOLUYI (1994) 2 NWLR (PT.325) 221 at 244H-245A,

Learned counsel submitted that the violation of the above provision was not only by the Respondent but also by the learned trial judge. That DW1 did not give evidence to support the findings of the committee. None of the committee members appeared before the trial court. That notwithstanding, the learned trial judge accepted Exhibit X3 that was not properly tendered before him, that this has occasioned a miscarriage of justice. It is also further contended that the court, which sat as a different body used the findings from the Respondent’s Committee that queried the Appellant and that of the Committee which decided the Appellant’s final fate. It is his view that one cannot transfer the finding of fact from one case to another. He cited in support the cases of ARAKA VS IDAKWO (1978) 1 LRN 84 at 87, OYEWOLA VS KERANI (1948) 12 WACA 327, DIKE VS NZEKA (1986) 4 NWLR (PT.34) 144 at 155, ALADE VS ABORISHADE (1960) SCNLR 398 at 403 and MADUABUCHUKWU VS UMUNAKWE (1990) 2 NWLR (PT. 134) 598 at 607-608, and submitted that the learned trial judge erred in law when he relied on the report of an Adhoc Committee to arrive at the conclusion that the Respondent established a case of serious offence against the Appellant. He urged this Honourable court to allow the appeal on this issue.

On the 2nd Issue for determination that is, whether failure to object to the admissibility of Exhibit X3 in evidence amounts to admission of the facts contained in the document?

Learned counsel for the Appellant referred to the finding of the court at page 118 of the Record and submitted that failure to object to the admissibility of a document at the trial is not on admission. He cited the case of AROMOLARAN v. KUPOLUYI (1994) supra and submitted that the mere fact that a document had been admitted in evidence without more, does not ipso facto amount to proof that its contents are valid and correct. The following cases are also relied upon. ALADE v. ABORISHADE (1960) 5 FSC 167 and ESSNE v. CECILIA ESIKHUEVEN (1978) 2 SC 87.” It is submitted that admissibility of a document is one thing while the weight to be attached to it is a different thing. Reliance is placed on the following cases NAB LTD v. SHUAIBU (1994) 4 NWLR (PT.186) 450 at 465 F, AYENI v DAUDA (1978) 3 SC 35, OKONJI VS NJOKOMA (1991) 7 NWLR (PT.202) 131 at 145; OKO VS NTUKIDEM (1993) 2 NWLR (PT.274) 124 at 135-136. SEISMOGRAPH SERV. v. MARK (1993) 7 NWLR (PT.304) 203 at 215 A-H; ONIUGBO v. NWEKESON (1993) 3 NWLR (PT.283) 533 at 546

It is therefore the submission of the learned counsel for the appellant that the learned trial judge erred in law when he held that the Appellant’s failure to object to the admissibility of Exhibit X3 is tantamount to admission that its contents are true. He therefore urged this Honourable court to answer the second issue in the negative and allow the Appeal.

On the 3rd issue, .i.e. whether from the exhibits, did the Appellant admit the alleged offences.

In answering this question, learned counsel for the Appellant referred the court to pages 117-118 of the Record, which formed his Ground four, in the Notice of Appeal, and submitted that the learned trial judge did not only examine the exhibits that were formally tendered in court but Annexures attached to the motion for extension of time to file Statement of Defence. He submitted that this is a serious error because only documents duly tendered and admitted in evidence can be examined in the final determination of a case and not annexures. He referred to the case of JACOB VS A.G. AKWA IBOM (2002) 7 NWLR (PT.7650) 16 at 39, to the effect that a photostat copy of a document annexed to an affidavit does not automatically become an exhibit at the trial. It is the view of the learned counsel that the Appellant did not admit granting unauthorized overdraft. In his examination-in-chief, he said “I did not give unauthorized overdraft.” It is thus submitted that the Appellant did not admit granting unauthorized overdraft. He argued further that the mere fact that Exhibit X1 (.i.e. the Appellant’s memo dated 27/1/04) refer to the recoveries made, did not elevate it to an admission. It is also submitted that the Appellant did not deny granting overdraft at all, since they were allowed as at the time he granted them, .ie. before September, 2002.

It is his further submission that the learned trial judge was wrong when he held that the Appellant’s letter support his assertion that the Appellant admitted granting unauthorized overdraft. It is the view of the learned counsel that, the Appellant only quoted the headings from the queries issued him by the Respondent. The headings were not that of the Appellant. He submitted that, it is the duty of the Respondent to plead and prove the limit given to the Appellant and show that he exceeded that limit and that there is no pleading to that effect. He referred to the cases of A.C.B. PLC VS ODUKWE (2005) 3 NWLR (PT.911) 67 at 79; ADEYEMI VS STATE (1991) 6 NWLR (PT.195) 1 at 45 D-E

In the light of the foregoing it is submitted that the learned trial judge erred in law when he held that the documents before him revealed that the Appellant admitted the allegations of granting unauthorized overdraft.

On Issue 4 to wit: whether the approval to dismiss the Appellant granted by the Executive Management Committee of the Respondent can be said to be that of the Managing Director?

Learned counsel for the Appellant submitted that the dismissal was not approved by the Managing director but an Executive Management Committee. He relied on chapter 13, clause 13.5 of the Defendant’s Handbook, which provides inter alia:

1) The determination of a permanent staff’s employment can only be on the approval of the Managing Director.

2) The case should be discussed with the appropriate Unit Head, who after consultation with the Group Head, Human Resources Management will thereafter read and explain the case to the affected staff member and at the same time advise him in writing of his right to appeal to the Managing Director against the recommendation.

3) Details of the case with his/her recommendation should be forwarded to the Group Head, HRM who will refer that case to the staff committee for investigation and they will pass their findings and recommendations to Management.

Learned counsel submitted that there was no evidence before the learned trial judge that the procedure listed in clause 13.5 as set out above was adopted in the dismissal of the Appellant. He submitted further that from the evidence before the court, the relationship of the parties here is governed by Exhibit 4, .i.e. the Staff Handbook and that only the content of the contractual document will be relied upon in considering the contract. It is submitted that, parties and the court are bound by the agreement the parties have freely entered into the following cases were referred to; OMENKA VS MORISON IND. PLC (2000) 13 NWLR (pt.683); UBA VS EUROPHARM (NIG) LTD (1990) 6 NWLR (pt.155) 239 at 250; NIMANTEKS ASSOCIATES VS MORCO CONST. CO. LTD (1991) 2 NWLR (pt.174) 411 at 427; KURUSO VS ZACHMOTISON (NIG) LTD (1992) 5 NWLR (PT.239) 102 at 116; MERCANTILE SANK VS ADALMA (1990) 5 NWLR (PT.153) 747 at 765.

It is therefore submitted that what was tendered in evidence was the extract of the minutes of its Executive Management Committee Exhibit X3.

The minute shows that four persons considered the recommendation for the Appellant’s dismissal and took final decision. There was no further report sent to the Managing Director for approval. It is therefore his submission that it is not the Respondent’s Executive Management Committee that is to approve the Appellant’s dismissal but its Managing Director, referring to Clause 13.5 of the Handbook. Reliance is placed on the following cases: F.C.D.A. VS SULE (1994) 3 NWLR (PT.332) 257 at 286; BANGBOYE VS UNIVERSITY OF ILORIN (1991) 8 NWLR (PT.207) 1 at 31 and EDET VS CHIEF OF AIR STAFF (1994) 2 NWLR (PT.324) 41 at 63

It is his view that the combined effect of all these cases is to the effect that the Appellant’s dismissal is in violation of the terms of his contract of service and this Honourable Court is respectfully urged to answer the fourth issue in the negative and allow the appeal on this ground. In arguing issue five .i.e. whether the learned trial judge rightly held that the serious allegations made against the Appellant were proved? The Appellant’s counsel submitted that the serious allegations were not proved. It is his view that the Respondent merely asserts that granting unauthorized overdraft is a very serious offence without proving what is the monetary limit permitted to the Appellant so as to know how he exceeded the limit. He submitted that an employer is not bound to give reasons for terminating the appointment of his employee but where he gives a reason, the onus lies on him to establish the cause or reason at the trial to the satisfaction of the court. The case of OLATUNBOSUN VS NISER (1988) 3 NWLR (PT.80) 25 at 54, was referred to, to the effect that, “An employer is not bound to give reasons for terminating the appointment of his employee but where he gives a reason, the onus lies on him to establish that cause or reason at the trial and to the satisfaction of the court.”

He argued that the reasons given by the Respondent for the Appellant’s dismissal are –

1. Granting of unauthorized overdraft, and
2. Fraudulent withdrawal of customers’ money.

He submitted that these are criminal offences and proof is beyond reasonable doubt, which onus was not discharged by the Respondent. He placed reliance on the case of FOLAMI VS COLE (1990) 2 NWLR (PT.133) 445 at 454, and submitted that if commission of a crime by a party is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. He cited Section 137 (1) of the Evidence Act, and referred also to the case of TEWOGBADE VS OBADINA (1994) 4 NWLR (PT.338) 326 at 352 G.

He argued further that by paragraphs 5, 6, 7, 8, 9, 16 and 17 of the Statement of Defence and paragraphs 8, 9, 10, 12, 15 and 16 of the Statement of Claim, issues were joined on the above mentioned allegations, which allegations were denied by the Appellant. Consequently, it behoves on the Respondent to establish the allegations and this they failed to do at the trial. It is his view that from all the paragraphs of the Statement of Defence where fraud is mentioned as set out above, none contained the particulars of fraud. No date or circumstances of such fraudulent withdrawals were stated and this failure is fatal to the Respondent’s case. The case of MACRON SERVICES NIG LTD VS AFRO CONTINENTAL (NIG) LTD (1995) 2 NWLR (PT. 376) 201 at 212 C. was relied upon.

It is also the submission of the learned counsel for the Appellant that apart from merely alleging the granting of unauthorized overdraft and fraud on customers’ account, the Respondent did not adduce an iota of evidence to establish the offences. It is his view that there was no oral or documentary evidence to establish the allegation and no Statement of Account or cheque was tendered. None of the alleged customers was subpoenaed to testify on the issue. It is therefore his submission that if the documents were produced in court, they would have been unfavourable to the Respondent. He cited in support the case of OGWURU VS CO-OPERATIVE BANK OF E/N LTD (1994) 8 NWLR (PT.365) 685 at 700 A. He further submitted that having failed to produce the customers’ statement of accounts and cheques or any other instrument allegedly used for the fraud he has deprived the court the opportunity to consider the Respondent’s allegations. He relied on NWANKWO VS NWANKWO (1992) 4 NWLR (PT.238) 693 at 719.

It is thus submitted that the learned trial judge centered his decision on the unauthorized overdraft but was silent throughout the judgment on the allegation of fraud.

In addition to the foregoing, learned counsel further argued that only the court can entertain and determine the culpability or otherwise of a person accused of criminal offence. He relied on the case of OLANREWAJU VS AFRIBANK (NIG) PLC (2001) 13 NWLR (Pt.731) 691 at 703-704. In the light of the foregoing, it is his final submission that the Respondent failed to satisfactorily justify the dismissal of the Appellant based on the allegations of granting unauthorized overdraft and fraud. The Court is respectfully urged to answer issue 5 in the positive and allow the appeal on this ground.

On issue 6, to wit; whether the learned trial judge was right in dismissing the Appellant’s case? The Appellant’s counsel was of the view that only the Managing Director of the Respondent can approve his dismissal. This was not done; rather it was an Executive Management Committee that approved the dismissal. He submitted therefore that the learned trial judge erred in law when he held at page 122 of the Records that:

“I equally so hold that the dismissal contained in the defendants’ letter dated 21st July, 2005, dismissing the plaintiff from the defendants’ organisation, did not infringe on the plaintiff’s right as contained In the defendants’ condition of service hence an order setting aside the letter is hereby refused.”

It is his submission that since the parties reduced their terms of contract into writing, failure to follow the procedure laid down in the regulation is a fundamental breach of the Appellant’s right. He referred to CHUKWU VS NITEL (1996) 2 NWLR (pt.430) 290 at 303.

It is his view that the Appellant is not seeking monetary damages or reinstatement, rather, he wants only the setting aside of the purported dismissal letter that cast unsubstantiated criminal imputations on his person, referring to paragraph 23 of the Statement of Claim.

He urged that the criminal allegation having not been proved, a dismissal based on it cannot be allowed to stand by the court. He placed reliance on the cases of C.C.B. (NIG) LTD VS OKONKWO (2001) 15 NWLR (PT.735) 144 at 134; SHUAIBU VS U.B.N. PLC (1995) 4 NWLR (PT.388) 173 at 183-184.

Learned counsel submitted that from the circumstances of this case, there is a clear case of violation of the Respondent’s condition of service.

It is submitted that, having neglected to observe the terms of its condition of service, the Appellant’s dismissal cannot be allowed to stand and he urged this honourable court to allow the appeal.

Responding to issue 1 and other issues, learned counsel for the Respondent submitted that Exhibit X3 was properly admitted in evidence at the lower court. According to him, it is an elementary principle of law that for a piece of evidence to be admitted in a judicial proceeding, it must be admissible in law and must have been pleaded by the party tendering same. He referred to the case of N.A.C.B LTD VS ARCHIBONG (2007) 19 WRN 49 at 72.

He contended that the same Exhibit X3 was pleaded at paragraph 18 of the Respondent’s Statement of Defence at page 22 of the records, and submitted that before Exhibit X3 was tendered, same was shown to the Appellant and his counsel and there was no objection to its admissibility. It is his submission that the court should do away with technicalities and pursue substantial justice. What is important is that the Exhibit X3 was sighted by the Appellant and his counsel and they raised no objection before it was validly admitted in evidence. Learned counsel submitted that, like every other piece of evidence before the court, it is the sacred duty of the trial court to evaluate relevant and material evidence before it on the issue joined on the pleadings and ascribe probative value thereto.

He referred to the cases of VIKA LTD VS BANK OF THE NORTH (2007) 22 WRN 136 at 147, OBIAZIKWOR VS OBIAZIKWOR (2007) WRN 106 at 130-131,

It is therefore submitted that Exhibit X3, was tendered not in proof of any allegation of crime, but to prove the fact that the Appellant’s dismissal was indeed approved by the Managing Director of the Respondent.

Learned counsel therefore urged this Honourable court to discountenance the entire arguments of the Appellants on Issue One of his brief of argument as being completely misconceived, and to affirm the decision of the lower court by holding that the trial court rightly admitted Exhibit X3 in evidence and correctly evaluated same in its decision.

On whether the dismissal of the Appellant was approved by the Respondent’s Managing Director, learned counsel for the Respondent submitted that the dismissal of the Appellant was approved by the Managing Director of the Respondent, in line with Clause 13.5 of the Handbook. Learned counsel submitted that the staff handbook simply requires that the dismissal of a permanent staff must be approved by the Managing Director. It is his view that it does not at any where require that the letter conveying the dismissal must be signed by the Managing Director. Exhibit X3 clearly shows that the Managing Director was the Chairman of the Management Committee which decided on the Appellant’s dismissal. He submitted that this is the only way that could be shown that the dismissal of the Appellant by the Respondent has the Managing Director’s approval. He therefore urged this Honourable court to affirm the decision of the lower court by holding that the dismissal of the Appellant by the Respondent was approved by the Managing Director of the Respondent.

In his response to issue 5, the learned counsel for the Respondent was of the view that issue 5, does not arise from any of the grounds of appeal filed by the Appellant. He submitted that the Appellant was not being tried for fraud or for any criminal offence before the trial court. The Appellant was the plaintiff at the trial court, seeking a declaration that his dismissal was wrongful, null and void on the account of the said dismissal not been approved by the Respondent’s Managing Director. He argued further that the argument of the Appellant’s counsel, that the Respondent failed to prove the allegation of fraud against the Appellant, is completely misconceived. It is his view that the Respondent only showed by its pleadings and evidence that the Appellant’s dismissal was not wrongful as the same was done with the approval of the Respondent’s Managing Director, following an investigation into some allegations of misconduct against the Appellant in the form of unauthorized overdraft and fraudulent withdrawals from customers’ accounts.

It is also the view of the learned counsel that the argument of Appellant’s counsel on the breach, or otherwise of the principles of natural justice is completely uncalled for as the Appellant was not on trial either before the trial court or before the Management Committee that considered the report of the Appellant’s unwholesome activities and approved his dismissed, that being the case, the learned trial judge could not have held and indeed, did not at anywhere in his judgment hold that “the serious allegations made against the Appellant were proved” as there was no such issue or matter before him.

It is submitted that a brief of argument ought to be confined to matters which properly arise from the judgment being appeal against and an issue for determination in an appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against, as in the instant appeal, is not only Incompetent, but completely valueless in the appeal and must therefore be discountenanced together with arguments advanced there under in the consideration of the appeal. The following cases were referred to; BJ EXPORT & CHEMICAL CO LTD VS KADUNA REFINNING PETROCHEMICAL CO LTD (2003) 24 WRN 74 at 90-91; JACOB BOLAJI ADEDISOLA & ORS VS JOSEPH OLADIRAN AKINDE & ORS (2004) 54 WRN 27 at 39.

Learned counsel for the Respondent further submitted that the dismissal of the Appellant has the approval of the Managing Director of the Respondent and that the learned trial judge was right to have dismissed his case. He argued that, a declaration that a dismissal is wrongful naturally attracts an award of damages. He thus failed to agree with the Appellant’s counsel in his argument that the Appellant is not seeking monetary damages or reinstatement. In the same vein, a declaration that a dismissal is null and void means that the purported dismissal is void ab initio which is the same as reinstatement. He referred to the case of N.I.A. VS AYANFALU (2007) WRN 34 at 59. It is also submitted that the relationship between the Respondent and the Appellant was that of master and servant. Therefore the Respondent has the right to dispense with the services of the Appellant for whatever reason or no reason at all. He placed reliance on ZHDEEH VS R.S.C.S.C. (2007) 14 WRN 54 at 107, where the Supreme Court, per Ogbuagu, JSC said “it is now firmly established in a number of decided cases, that under the common law a master can dispense with the services of his employee with or without any reason whatsoever, .i.e. for bad or good reason or no reason at all.”

He also referred to the case of N.N.P.C. VS OJO (2005) 22 WRN 77 at 133 and submitted that even if the reason upon which the Appellant’s dismissal is predicted is considered, that will still not avail the Appellant of the reliefs sought. It is his view that the court can only declare the dismissal null and void if such terms and conditions of contract were created by statute which is not so in the present case. He referred to the cases of OFFORLO VS NATIONAL ELECTRIC POWER PLC (2006) 4 WRN 179 at 205-206; FAMAKINWA VS TOWER ALUMINIUM NIG PLC (2007) 18 WRN 36 at 51. He submitted that the learned trial judge was therefore right in dismissing the case of the Appellant. He also argued that the case at the lower court was that the Appellant’s dismissal was not approved by the Managing Director of the Respondent and not the allegation of giving unauthorized overdraft/fraudulent withdrawal from customers’ account. It is argued that assuming this was properly in issue before the lower court, and needed proof; it is submitted that this burden was properly discharged by the Respondent. He referred to page 17 of the Records as per the Statement of Defence, where he gave particulars of withdrawals in paragraphs 5 & 6 of the Statement of Defence.

He argued further that the Appellant in his evidence-in-chief claimed not to have given unauthorized overdraft, but under cross-examination, he admitted giving unauthorized overdrafts when queries were issued him by the Respondent, he took steps and recovered some of the facilities. It is submitted that facts admitted need not be proved. Having admitted the allegations upon which he was dismissed, both in his letters to the Respondent/Exhibits X1 and X2 and in his oral testimony during cross examination, the Appellant cannot be heard to say that the allegation against him was not proved. He referred to the case of EIGBE VS NUT (2008) 24 WRN 110 at 139. It is therefore submitted that the learned trial judge did not err in law when he dismissed the Appellant’s case and urged this court to discountenanced the arguments of the Appellant and affirm the decision of the lower court.

In his Reply Brief, the Appellant’s counsel submitted that his issue 5, emanated from Grounds 1 & 6 of the Grounds of Appeal and the Respondent was therefore wrong to have said that the issue does not arise from any of the grounds of appeal and that it has no nexus with the case and urged the court to allow the appeal.

He submitted further that the Respondents argument that the Appellant was not being tried for fraud, therefore the allegation of fraud against the Appellant is completely misconceived is in error because the Respondent’s defence was based on criminal allegations of fraud and unauthorized overdraft. It was therefore incumbent upon the Respondent to prove fraud which proof must be beyond reasonable doubt. He referred to SECTON 138 (1) of the Evidence Act 1990.

It is also submitted that the Respondent erred when he said that the argument of the Appellant’s counsel on the breach of otherwise of the principles of natural justice is completely uncalled for as the Appellant was not on trial either before the learned trial court or before the Management Committee that considered the report of the Appellant’s unwholesome activities and approved his dismissal. It is his submission that the principles of natural justice is not hinged on when a person is on trial before a court of law. He referred to Section 36 (1) of the 1999 Constitution. He referred also to the case of AROMOLARAN VS KUPOLUYI (supra) to argue the issue that at every point in time, the principles of natural justice must be observed. He also referred to the case

of ADIGU VS A.G. OYO STATE (supra).

Learned counsel for the Appellant also submitted that the Respondent’s issue 1 i.e” Whether Exhibit X3 was rightly admitted in evidence was outside the ambit of the Appellant’s ground of appeal.

According to him, what was in issue was not whether or not Exhibit X3 was rightly admitted in evidence but rather the weight to be attached to it.

It is thus submitted that issues for determination must of necessity be limited by and fall within the scope of the grounds of appeal. Reliance is placed on the following cases:- ADELAJA VS FANDIKI (1990) 2 NWLR (PT.131) 137 at 148, ONYIDO VS AJEMBA (1991) 4 NWLR (PT.184) 203 at 217-219; AJA VS OKORO (1991) 7 NWLR (pT.203) 260 at 272-273; and OGUNDIYAN VS STATE (1991) 3 NWLR (PT. 181) 519 at 532. While recognizing the right of

a Respondent to raise issues for determination, that such issue when raised should be within the grounds of appeal. He referred to the case of ELEJA VS BANGUDU (1994) 3 NWLR (PT.334) 534 at 540. It is thus argued that issue 1 of the Respondent does not arise from GROUND 2 of the Grounds of Appeal.

Counsel for the Appellant also submitted that Exhibit X3 was tendered, not to prove the fact that the appellant’s dismissal was approved by the Managing Director of the Respondent as submitted by the counsel for the Respondent, but to prove the allegation of fraud against the Appellant. He placed reliance on paragraph 20 of the Statement of Defence, and the case of ONYIDHA VS UNION BANK LTD (1993) 5 NWLR (PT.296) 698 at 703 A. It is submitted that it is the law that he who asserts must prove, and granting an unauthorized overdraft, as alleged by the Respondent has a criminal connotation and the duty is on the Respondent to establish that the Appellant by virtue of his position was prohibited from granting any sort of overdraft to a customer, and that they failed to do.

Another erroneous submission according to him that needs a response is the fact that the Respondent argued at page 8 of his brief that the staff Handbook simply requires that the dismissal of a permanent staff must be approved by the Managing Director. It does not at any where require that the letter conveying the dismissal must be signed by the Managing Director. It is submitted that the Appellant is not complaining about who signed the letter of dismissal rather the complaint is that the Managing Director as a distinct officer in the bank never approved his dismissal. According to him, the staff Handbook is the legal document binding the contractual relationship of the parties. It is thus submitted that, having not proved the alleged fraud and granting of unauthorized overdraft, the Respondent breached the contractual right of the Appellant when it dismissed him. He referred to ADIGU VS A.G. OYO STATE (Supra). Learned Counsel was also of the view that it was wrong for the counsel for the Respondent to have stated at page 13 of his Brief that the Appellant never controverted the facts relating to the particulars of the unauthorized overdraft/fraudulent withdrawals which are detailed in page 17 of the Record.

The facts according to counsel for the Appellants, averred in paragraphs 5 and 6 of the Respondents Statement of Defence are responses to the Appellant’s averment stated in paragraphs 8 and 9 of the Statement of Claim also paragraphs 10 to 16. It is his view that from these pleadings, it is not correct to say that the Respondents allegation of fraud and unauthorized overdraft were not controverted. It is view that Issues were joined on the matter, and referred to ORDER 23, RULES 10, of the High Court of the F.C.T Civil Procedure Rules 2004. The following cases were also referred to; OBOT VS CBN (1993) 8 NWLR (pt310) 140 Pt 159-160; AKEREDOLU VS AKINREMI (1989) 3 NWLR (pt.108) 164 at 172; OLABANJI VS AJIBOYE (1992) 1 NWLR (Pt 218) 473 at 488. Learned counsel urged the Court to discountenance the Respondent’s argument and allow the appeal.

After a careful consideration of the issues for determination and arguments canvassed therein in the appeal, it is my view that the crux of the Appellants’ contention in his issues 1 & 2 is the propriety or otherwise of the lower court in admitting Exhibit X3 in evidence before the court and placing reliance on it in the determination of the matter before it.

Exhibit X3 was the exact of the minutes leading to the dismissal of the Appellant from the Respondent Bank. At page 102 of the Records, counsel for the Respondent sought to tender in evidence the dismissal letter issued the Appellant. However what was admitted in evidence and marked Exhibit X3 was the extracts of the minutes leading to the Appellant’s dismissal. Learned counsel for the Appellant’s submitted that this was not the document that counsel for the Respondent wanted to tender. Even though that document was not what was intended to be tendered at that material time, its admissibility was not objected to.

However, Exhibit X3 was duly pleaded in paragraph 18 of the Statement of Defence, it is a legally admissible evidence. Since the Appellant’s counsel did not raise any objection when this Exhibit was being admitted, it is humbly submitted that he cannot be heard to complain that the lower court ought not to have placed reliance on it. The court is replete with authorities as to the effect of unconverted evidence. In GUKAS VS JOS INT, BREWERIES LTD (1991) 6 NWLR (Pt 199) 614 at 615, the court held that “A piece of evidence neither challenged nor discredited is deemed to be admitted and must be accepted.” The lower court held at page 118 of the Records that:

“That this court has noted from the conduct of the plaintiff of not objecting to the admission of Exhibit X. His none objection to the exhibit being admitted, is a clear demonstration of accepting all the facts stated in the exhibits which signifies and justifies the contents of the allegations against the plaintiff made by the Defendant.”

In R.E.A.N LTD v ASWANI ILE IND. (1991) 2 NWLR (pt 176) 639 at 649, it was held that the law is common place that unchallenged or uncontracted evidence is admissible. Similarly, in BR-AMERICAN INS.CO VS OMOLAYO (1991) 2 NWLR (Pt.176) 721 at 722, the court held that it is trite law that evidence not challenged establishes facts before the court and is so accepted. The learned trial judge held that the none-objection by the Appellant of the exhibit being admitted in evidence was fatal to his case. I cannot but agree more.

Knowing fully well the import of the Exhibit, it behoves on learned counsel for the Appellant to have objected to its admissibility. He cannot be heard to allege wrongful admission of evidence without more. In BISHI VS J.S.C (1991) 6 NWLR (PT 197) 331 at 336, the court held “it is not enough to show wrongful admission of evidence by a lower court. The appellant must also show that without such evidence, the decision would have been otherwise.”

Even though the learned counsel for the Appellant argued that since the witness did not give any evidence to support Exhibit X3, the learned trial judge ought not to have placed reliance on it to hold that the Respondent established the serious offences alleged against the Appellant.

The Appellant cannot claim a breach of fair hearing enshrine under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

There is no rule of law or practice that says a court will not make use of document properly tendered before it without objection or place reliance on it to arrive at its decision. Exhibit X3 being extract of the minutes leading to the dismissal of the Appellant and others, is the finding of the committee set up to consider the report of the Investigation Committee into the various allegations levelled against the Appellant. This cannot be said to be the same with a reliance on a finding of a court in an earlier decision as contended by the Appellant’s counsel. The cases therefore cited by him to support his argument that what the trial court did was to transfer the findings of the Committee to find the Appellant guilty are not relevant to the circumstances of this case as they are not applicable.

It is argued that the Appellant had admitted the offences he was alleged to have committed. This has to do with issue 5. In his response to the query issued him, at page 31 of the Record, the Appellant admitted having recovered certain sum and asked for extension of the recovery period for another two weeks.

Exhibits X1 and Annexture A5 are the Appellant’s response to the letter issued him by the Respondent. It is hereby reproduced:-

Exhibit X1

INTERNAL MEMORANDUM

FROM: BEN HIRKI JOSEPH

TO: HUMAN RESOURCES MANAGEMENT G.

DATE: 27TH JANUARY, 2004

REF:

REPORT ON TOTAL RECOVERIES MADE SO FAR ON UNAUTHORISED OVERDRAFT AT KADUNA NORTH BRANCH.

Please refer to the suspension letter given to me on 9/1/04 in respect of the unauthorized overdrafts I granted to Binbat Ventures, Ambrose Akus Nigeria Ltd and M.H. Babangida.

The overdrafts were granted in September, 2002.

The total recoveries made so far is N698,000.00. The breakdown is as follows:-

Binbat Ventures: – Amount recovered is N340, 000.00.

The balance is now N2,104,362,46Dr.

I have discussed with the father of Binta and he has promised to tal……. After the discussion with the father she called me and she promised to start repayment before the end of January and liquidate fully soonest.

Ambrose Akus Nig Ltd:- total amount recovered is N368,000.00

The balance is now N448,613.14Dr. There is promise to liquidate fully within two weeks. There was an earlier commitment that the full repayment would have been completed but for lull in sales because his goods are off season now.

M.H. Babangida: – The total recovery made is just N9,000.00. There was a lodgment of N201,000.00 cash and N70,000.00 cheque on 26/1/04. The balance is now N1,066,000.00. He said he is expecting his payment from Nigeria Agricultural Cooperative and Rural Development Bank, Kaduna. The receivable is adequate to liquidate the outstanding amount on his account.

I am in contact with NACRDB and I have been able to access those concerned who will intimate me about when the cheque will be ready than two weeks, the payment will be ready.

In this connection, I am seeking an extension of another 2 weeks effective from 28/1/04. I hope by that time full recoveries would have been made. The customers have made pledges and I hope they will redeem their pledges.

Once again I seek extension by two weeks.

Thank you.

SGD

BEN HIRKI JOSEPH

CC: CHIEF INSPECTOR

Exhibit Annexture A5

INTERNAL MEMORANDUM

FROM: BEN HIRKI JOSEPH

TO: GH, HRM GROUP

REF:

DATE: 9TH MARCH, 2004

RE: RECOVERY OF UNAUTHORISED OVERDRAFT GRANTED AT KADUNA NORTH BRANCH.

Please refer to the above subject matter which I have been pursuing since 9/1/04 as per your letter.

So far I have been able to recover a total sum of N1,968,000.00 on the three accounts which translates to about 50%.

As per my verbal discussion with the ED Branches, I hereby seek for extension of the recovery period for another two weeks.

Thank you.

SGD

BEN HIRKI JOSEPH

These Exhibits are clearly admission on the allegations of unauthorized granting of overdraft and fraud levelled against the Appellant.

It is an elementary principle of law that facts admitted need no further proof. Section 75 of the Evidence Act provides as follows:-

“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings ……….” The Appellant has admitted the allegations of granting unauthorized overdraft and fraudulent withdrawals from customer’s account. See Exhibit X1 and Annexture A5.

Section 19 of the Evidence Act, Cap 112 LFN, 1990 defines ‘Admission’ as follows:-

“An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by the persons, and in the circumstances, hereinafter mentioned.”

Section 20 of the Evidence Act classified the circumstances and provided in Sub-section (1) that statement made by party to the proceedings or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorised by him to make them. Admission is therefore a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. Admission in this con cannot be termed as a confession which is admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime, where to qualify for admissibility it must be proved to be direct, positive, clear and unequivocal. See SEISMOGRAPH SERVICES (NIG) LTD VS EYUAFE (1976) 9-10 SC 135, where the Supreme Court held that a statement oral or written (expressed or implied) made by a party to a Civil Proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement.

In the instant case, the Appellant had admitted the allegations of unauthorized granting of overdraft and fraud against him in Exhibits X1 and Annexture A5, What else would the court do in the circumstances, rather than to accept the said admissions against the Appellant in the determination of the matter against him. What issues would the parties have joined with such overwhelming admission of the allegation by the Appellant? Certainly the trial court would not be expected to close its eyes to it. The fact that the Appellant never admitted these allegations against him is too late in the day. The finding of the learned trial judge on this issue that the Appellant admitted the allegations against him cannot be faulted. The limit the Appellant is allowed to grant in form of overdraft is clearly known to the Appellant having admitted the allegations against him and the request for extension of time to be allowed to make recoveries of the monies granted. The Appellant cannot be heard to complain. See EIGBE VS NIGERIAN UNION OF TEACHERS (2008) 5 NWLR (PT.1081) 604. This issue is resolved against the Appellant and in favour of the Respondent.

The learned counsel for the Appellant had contended on issue 4, that it was not the Managing Director for the Appellant that approved the Appellant’s dismissal from service as required by Chapter 13 clause 13.5 of the Staff Handbook and therefore any purported dismissal of the Appellant not from the Respondent’s Managing Director is null and void.

Chapter 13 clause 13.5 of the Staff Handbook has been reproduced elsewhere in the judgment. Exhibit 4, that is the staff Handbook stated that the determination of a permanent staff’s employment can only be on the approval of the Managing Director. Exhibit X3 already stated above, is the extract of the minutes of meeting leading to the dismissal of the Appellant from the service of the Respondent. The meeting leading to the dismissal of the Appellant was headed by the Managing Director of the Respondent, who was Chairman of the meeting. There is no gain saying the fact that the Managing Director who chaired the meeting that dismissed the Appellant from service did not approved of the Appellant’s dismissal. An investigative panel was set up to investigate the unauthorized granting of overdraft and fraudulent withdrawals from customers account against the Appellant which was discovered during a routine inspection exercise of the Respondent. Before the investigative panel was set up, the Appellant was queried to explain the circumstances leading to the unauthorized lending and withdrawals from customers account and also to make recoveries. See Exhibits 5, 6 and 7 respectively.

The Appellant admitted his culpability and requested for time to make recoveries. He was obliged. He was thus place on suspension. He made progress with respect to recoveries as shown on Exhibit X1. A panel was set up to consider the acts of the Appellant along with other staff of the Respondent. That was the Executive Management Committee. That panel was chaired by the Managing Director of the Appellant and approved the dismissal of the Appellant? What other form of approval is the Appellant referring to. I am of the considered view that all the procedure required culminating in the determination of the Appellant’s employment have been duly complied with as required by Chapter 13 clause 13.5 of the Respondent’s Handbook. Chapter 13 clause 13.5 does not at anywhere require that letter conveying the dismissal to be signed by the Managing Director. The argument of the Appellant’s counsel on this issue is totally misconceived and it is hereby resolve against him.

It is also contended by the Appellant’s counsel on the fifth issue for determination, that the Appellant was not given a fair hearing as he was not asked to explain himself on the unauthorized grant of overdrafts and fraudulent withdrawals from customer’s accounts. This cannot be said to be the correct position. The procedure leading to the dismissal of the Appellant in accordance with chapter 13 clause 13.5 of the Respondent’s staff Handbook had been duly followed by the Respondent before it eventually dismissed the Appellant from its service. The terms of the contract of employment was duly complied with particular chapter 13 clause 13.5 of Exhibit 4.

From all the annextures and Exhibits tendered before the court in evidence as contained on pages 24 to 32 of the Records of appeal, it is abundantly clear that the Appellant was given ample opportunity to defend himself before the decision to dismiss him was taken. An employee who was confronted with allegation of misconduct before his employment was terminated cannot complain about lack of fair hearing. Like in the instant case, where an allegation has been made against an employee, an employer is entitled to set up a panel to investigate the allegations. Such an investigating panel not being a court of trial, it is enough if it gives to any of the persons whose names feature in the enquiry opportunity of making representations oral or written before it. See LASISI VS ALLIED BANK (NIG) PLC (2002) 7 NWLR (PT.767) 542; EDET VS CHIEF OF AIR STAFF (1994) 2 NWLR (PT.324) 41.

The issue of fair hearing under the Constitution of the Federal Republic Nigeria, 1999, simply means that before any final disciplinary action is taken against a person, he is first and foremost confronted with whatever allegations his accusers have against him and he is given a reasonable time to prepare for and present his defence either orally and or in a written from before his accusers. The query issued to the Appellant shows that he was given time to present a defence which he did in writing.

Details of the allegations were contained in the query and the Appellant cannot claim he had not had a full briefing of what he was to meet and his subsequent replies including a request for extension of time to make recoveries of the unauthorized overdrafts. The Appellant therefore cannot be heard to complain of fair hearing. See EIGBE VS N.U.T. (supra) and DAMISA VS UBA PLC (2005) 9 NWLR (pt.931) 526. In the instant case therefore, reference to a right to and denial of fair hearing cannot be correct because there was first a query followed by a suspension of the Appellant by the Respondent while further investigation was going on. Written correspondences were going between them until the Appellant’s guilt was fully established leading to his dismissal from the services of the Respondent’s Bank. The Appellant was therefore given adequate opportunity to explain his own side of the story in writing which, in itself constituted fair hearing. This issue is also resolved against the Appellant and in favour of the Respondent.

On the six issue for determination, teamed counsel for the Appellant had extensively argued that since the Respondent dismissed the Appellant on allegation of fraud, such allegations ought to have been proved beyond reasonable doubt. It was also his contention that only a court of law ought to have determined the culpability or otherwise of the Appellant and not the Respondent. The complaint of the Appellant before the trial was for declaration that his dismissal on ground of fraud as contained in the Respondent’s letter dated 21st July, 2005 is wrongful, null and void and for an order setting aside the said letter on the ground that the letter infringed on his right as contained in the Defendant’s condition of service. It is therefore clear that the Appellant was not being tried for fraud or for any criminal offence before the trial court. The Respondent only showed by its pleadings and evidence that the Appellant’s dismissal was not wrongful as same was done with approval of the Respondent’s Managing Director, following an investigation into some allegations of misconduct against the Appellant in the form of unauthorized overdraft and fraudulent withdrawals from customers’ accounts and which misconduct was admitted by the Appellant. The Appellant having admitted the misconduct against him, would there still be need to press charges in a court of law? In a case of admission of guilt to a crime no proof of criminal charge against him would be required. See FEDERAL CIVIL SERVICE COMMISSION VS LAOYE (1989) 2 NWLR (PT.106) 652. Thus, criminal prosecution in a law court is not necessary. Where an employee has admitted his involvement in the act of criminality leveled against him, no proof of the criminal charge against him would be required. The question to be asked is whether the principles of Natural Justice and fair hearing have been at play and strictly adhered to. In the instant case, every attempt was made of fair hearing by the Respondent. Therefore, the prosecution of an employee before the law court is not sine quo non to the exercise of the power of summary dismissal by an employee. In other words, it is not in every case where an employee is accused of a misconduct that he must be arraigned before a court on a criminal charge before disciplinary action can be taken against him. Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case may be taken without recourse to a criminal charge. Therefore, the Respondent need not prove the culpability of the appellant in a court of law before the dismissal of the Appellant. This issue must also fail as it is resolved against the Appellant.

It is again contended that the learned trial judge was wrong to have dismissed the case of the Appellant stating that the dismissal did not have the approval of the Managing Director of the Respondent and that the Appellant was not seeking monetary damages or reinstatement, rather, he wants the purported dismissal set aside.

The learned trial judge has dispassionately considered, evaluated and assessed the evidence adduced before him alongside the various Exhibits tendered. Where the trial court has performed its primary duties of assessing and evaluating the evidence before it, it is not the duty of the court of the Appeal to interfere when the duty has already been carried out by the trial court. See ELERAN VS ADERONPE (2008) 11 NWLR (PT.1097) 5 where therefore, a finding of fact by the trial court is amply supported by evidence on record, the Appellate Court will not disturb it.

Therefore, from all the Exhibits tendered, the Appellant was given a fair hearing as he was given ample opportunity to defend himself which he did utilized and his subsequent dismissal was approved by the Respondent’s Managing director pursuant to chapter 13 clause 13.5 of the Respondent’s Handbook, Exhibit 4. There was no basis for the trial court to declare the dismissal letter of the Appellant void ab initio. Consequently, this issue also must fail as it is resolved against the Appellant.

Having resolved all the issues for determination in the appeal against the Appellant, the conclusion therefore is that this appeal must fail as it lacks merit. I therefore dismiss the appeal and affirm the judgment of the trial court delivered on the 14th January, 2008 dismissing the claims of the Appellant.

There shall be costs of N50, 000.00 in favour of the Respondent against the Appellant.

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Other Citations: (2009)LCN/3235(CA)