Borishade V. Nigerian Bank of Nigeria Ltd. (2005)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

On the 24th May, 2001, the Hon. Justice, A. Acho Ogbonna of the Port Harcourt Judicial Division holden at Port Harcourt dismissed the suit of the Plaintiff/Appellant for the failure of the Plaintiff to prove his case as required by law. The learned trial Judge concluded the judgment in these terms:

“… am satisfied that the Plaintiff’s dismissal is not unlawful…”

The Plaintiff, herein after referred to as the Appellant, has come before this Court seeking a reversal of the decision of the trial Court.

Briefly, the suit of the Appellant before the trial Court was for wrongful dismissal by his employee, the Respondent.

The Appellant was employed in 1980. He rose progressively through the ranks to the enviable position of a Branch Manager before his employment was terminated in 1991 at the instance of the Respondent upon some allegations of misconduct.

Before the trial Court, the Appellant sought the following reliefs:

i. A declaration that the purported dismissal of the Plaintiff from the service of the defendant as a Branch Manager Contained in the Defendants; letter reference AP/A, 420/320 dated 8th November 1991 is contrary to the provisions of the Collective Agreement between the plaintiff and Defendant.

ii. An order of Court setting aside the said letter of dismissal.

iii. A declaration that the Plaintiff is still an employee of the Defendant.

iv. An order of Court restraining the Defendant or its agents; from giving effect to the said letter of dismissal.

v. In the alternative:

The Plaintiff claims the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages for wrongful dismissal in that by a letter dated 18th November 1991 the Defendant purported to have dismissed the Plaintiff when the said letter is contrary to the Collective Agreement binding the Plaintiff and the Defendant.

At the conclusion of testimonies, the learned Counsel for each side addressed the Court. It was at this state that the learned Counsel for the Appellant withdrew reliefs 2, 3, & 4 of the suit.

The trial Court however considered all the five reliefs sought in arriving at its decision. Having raised the same issue before this Court, the said reliefs 2, 3, & 4 are considered abandoned. The appeal is therefore considered on reliefs one and five only.

Two issues were formulated for determination from the four grounds of Appeal filed.

The Defendant, herein after referred to as the Respondent formulated three issues for determination, urging this Court to dismiss the appeal. The respondent’s issues are:

i. Whether or not all or any of the admitted acts of the Appellant constituted misconduct, warranting summary dismissal.

ii. Whether or not in a master and servant relationship, declaratory and injunctive reliefs, are available remedies for alleged wrongful termination or dismissal.

iii. Whether the Appellant proved his alternative claim for damages.

Whereas the first and third issues formulated by the Respondent are similar to the Appellant’s two issues which clearly arise from the grounds of Appeal, the 2nd issue is alien to the grounds of appeal filed. The Respondents has filed no cross-appeal and cannot therefore formulate an issue outside the ground of appeal filed by Appellant (Refer Finnih v. Imade (1992) 8 NWLR Pt. 219 p. 511 & Globe Fishing Industry (1990) 1 NWLR Pt. 162 p.265 at 282). The said issue two formulated by the Respondent is accordingly hereby struck out as incompetent.

This appeal shall be determined on the two issues formulated by the Appellant.

The nub of the Appellant’s case is that the Respondent which was the employer for the Appellant is a master and servant relationship, gave reasons for the summary dismissal of the Appellant from its employment. The reasons as pleaded are:

“a. That the Plaintiff was guilty of misconduct

“b That the Plaintiff gave out unauthorized loans and a guarantee of the sum of N43 Million to me (sic) of its customer, AYAKI & CO.

“c That he unjustly enriched himself at the expense of the Bank (Paragraph 9, 11 & 12 of the statement of Defence pg. 20 of Records of Appeal referred).”

It is the case of the Appellant that as a servant of the Respondent, the Respondent could terminate the employment or render the Appellant redundant without giving any reasons. However, the Respondent having elected to give reasons which amounted to allegations made against the Appellant, was obliged to proof the allegations and also accord the Appellant an opportunity to defend himself. The Respondent did none of these, argues the learned Counsel for the Appellant. The Respondent thereby failed to show that the Appellant was dismissed in accordance with his terms of employment and also undermined the Appellant’s right to be heard.

The learned Counsel cited the cases of:

(i) Calabar Cement Company Ltd. v. Daniel (1991) 4 NWLR (Pt.188) 750 at 758 para C – D, and

(ii) Biishi v. JSC (1991) 6 NWLR (Pt. 197) 331 at 350 para. E.

What are the legal requirements for the determination of a master/servant relationship?

Case law has established that in a master/servant relationship there is a general power reposed in the employer to dismiss an employee for misconduct of any kind that can justify dismissal. (Refer Abukagbo v. African Timbers & Plywood Ltd. (1966) 2 All NLR 87, College of Medicine of University of Lagos v. Adegbite (1973) 3 SC 149).

In the case of B. A. Morohunfola v. Kwara State College of Technology (1990) 4 NWLR Pt. 145 p. 506 at 525 – 526.

The Supreme Court enumerated the facts a Plaintiff must poof in an action for wrongful termination of appointment. Among these are how the employer was appointed and the terms and conditions of his appointment which must clearly set out who can appoint and remove him. The circumstances under which the appointment can be terminated must also be clearly set out.

Where the employment is not formally regulated, it has been held that the master can terminate the contract with his servant at any time for good or bad reason or for none see (Refer C.A. Okosun v. Central Bank of Nigeria, (1996) 2 NWLR 429 p. 77 at pt. 86. Further, it was determined in the case of Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1, that it has been the policy of Courts in Nigeria to foist a servant on an unwilling master.

The rule of law is extant in a servant/master relationship of employment. Thus, where there exists conditions of service and a procedure for the termination of employment, a premature termination ought to follow the laid down procedure in the conditions of service. – (Refer Calabar Cement Co. Ltd. v. Daniel (1991) 4 NWLR Pt. 188 p. 750 at 760 and Emmanuel Chukwu and 1 Or v. Nigeria Telecommunications Ltd. (1996) 2 NWLR Pt. 430 p. 290 at 303.)

In the case of Union Bank of Nigeria Ltd. v. Chukwueb Charles Ogboh (1995) 2 NWLR Pt.380 pg. 647 at 669 the Supreme Court held that where an employee is guilty of gross misconduct he could be lawfully dismissed summarily without notice and without wages.

We shall now consider the issues formulated in this appeal, the argument proffered support in the light of the case law reviewed (supra) and of course, always keeping in mind the claim of the Appellant at the court of trial.

ISSUE ONE:

“Whether, on the pleadings, as well as the evidence, there was proof of the allegations made by the Respondent against the Appellant to justify his summary dismissal?”

for the Respondent, I should say up front on this issue, that we did earlier on struck out issue two of the Respondent’s issues which necessarily goes with the argument advanced in support thereof.

The learned Counsel for the Respondents however argued both issues one and two together. It is not the duty of this Court to sieve through the argument and fish out which aspect of the argument is proffered in support of which issue. The entire argument on both issues must therefore discountenanced:- (Refer Globe Fishing Industries (supra).

In support of this issue, the learned counsel for the Appellant submits the learned trial judge had no facts from the evidence adduced before him upon which to make the findings he made.

The part of the decision attacked under this issue and reproduced in the Appellant’s brief is also hereby reproduced for the case of reference. The trial judge held that – (Pg. 48 – 49 of Records).

“In Exhibit ‘E’, Plaintiff was said to have confirmed his involvement in signing a guarantee in favour of Ayaki and Company, he also confirmed that he had been issuing drafts on NNPC Account after the Federal Government Parastatals had withdrawn their deposits from Banks.

All these acts of the plaintiffs, one can say without mincing words, constitutes gross misconduct as they (ended to undermine the operations of the Defendant. As a Branch Manager Plaintiff was conversant with the guidelines for granting facilities to customers, and where those guidelines are breached that will be tantamount to disobedience of lawful order by a servant and such a conduct attracts summary dismissal.

Learned Counsel for the Plaintiff had argued that exhibits ‘H’ is not a bank guarantee but a mere local purchase order. This argument cannot be sustained because the exhibit carries an endorsement which is authenticated by the signature of the Manager and Accountant of the Port Harcourt Branch of the defendant. The document speaks for itself.”

The learned counsel for the Appellant portends in this finding of the trial court, that no evidence was adduced as to guidelines for granting facilities and that no guidelines were tendered before the Court. It is also the submission of Counsel on exhibit H, that the extent of the authority of the Appellant was not placed before the trial court. The learned trial judge therefore based his decision purely on speculation, declared the counsel.

Counsel expatiates that Exhibit H was a document of a company other than a bank, thus it was neither prepared by the bank nor was it made on the letter headed paper of the Bank and could neither by content nor description, qualify as a Bank Guarantee. Counsel refers to the definition of a Bank Guarantee in the Black’s Law Dictionary 6th Edition 705 and then dismissed the issue of a Bank Guarantee as preposterous and unsustainable.

Counsel also submits that no evidence was produced on the alleged unjust enrichment leveled against the Appellant. There having been neither an investigation nor a trial leading to a conviction of the Appellant. Counsel cites in support section 138(i) of the Evidence Act Cap. 112 LFN 1990 and the case of Jim Nwobodo v. C. Onoh and Ors. (1984) 1 SC NLR P1 at 27 para. G.

I have perused the testimonies of the only two witnesses, one each for either side and the judgment of the trial court. The Respondent, as rightly submitted to by the learned counsel to the Appellant, tendered no guidelines for the granting of facilities to the customers of the Respondent Bank. Equally, no direct evidence was adduced by the Respondent to support the findings of the trial court: (pg. 49 of Records).

“… where those guidelines are breached that will be tantamount to disobedience of lawful order by a servant and such conduct attracts summary dismissal….”

Those where are inferential findings the deductive postulations of the trial Judge.

I also agree with the learned Counsel to the Appellant that the evidence adduced in support of the allegations of unjust enrichment goes to no issue as it falls far below the expected standard of proof either in criminal or in civil proceedings.

I must hasten to add that most of the facts in support of the findings of the learned trial judge were aduced from the mouth of the Appellant under cross-examination.

Cross-examination is a formidable tool in the hands of a diligent and skillful counsel. By the instrument of cross-examination, counsel can either totally demolish the Plaintiff’s case or fully develop the case of the Defendant and vice versa.

When masterly administered, cross-examination actually brings forth the best form of evidence.

Purposeful cross examination can drum up sacred truth from the stomach of an otherwise reluctant witness. When the core of the case is touched by cross-examination, the witness not only speaks with his mouth, his facial expression, his jaunty answers and gesticulations all go a long way to expose the unexpressed, the untold dark side of the whole story.

A thorough cross-examination seeks to and indeed often elicits the best form of evidence, admission of the truth initially concealed by a carefully thought out testimony guided by the skillful hands of the witness’s learned Counsel.

Advocacy is an art of skill and fact; this the learned counsel for the Respondent utilized to great advantage at the trial Court.

The trial judge had dutifully recorded the cross-examination in the question and answer type of proceedings. Part of the cross-examination is hereby reproduced for emphasis and the case of reference. (from pages 23, 24, 25, 27, 28 and 29 of the Records of this appeal. Enumeration is mine for purposes of clarity).

5. “Q. As a Branch Manager you granted so many facilities to customers.

“A. Yes.

6. “Q. You were recalled and requested to recover the unauthorized facilities you granted.

“A. Yes.

7. “Q. By the time you were served the letter of dismissal you had not completely recovered all the facilities you grant.

A. I had not.

8. Q. To you knowledge some of those facilities are still un-recovered.

A. I will not know.

9. Q. You know the Bank is distressed because of bad debts.

A. It is as a result of bad management.

10. Q. Do you know the bank is distressed.

A. I know.

11. Q. You were one of the several managers of the bank.

A. I was

12. Q. As a branch manager you were one of those charged with the management of your branch.

A. I was heading the management of Port Harcourt Branch which was one of the best braches.

13. Q. It was during your tenure that N.N.P.C. withdraw its account.

A. It was during my tenure that NNPC withdrew it accounts from all banks.

14. Q. What was the effect of that withdrawal from the Commercial bank?

A. It led to liquiding problem and some banks which were badly managed got distressed.

15. Q. Had you any authority to give any guarantee to a customer to pay N43,000,000.00 for goods to be supplied to it without reference to your head office.

A. I had no right to give a guarantee.

16. Q. Did you on behalf of the bank write a letter in favour of your customers guaranteeing the payment of goods worth N43,000,000.00.

A. I did not write any letter of guarantee.

17. Q. Did you write a letter that Ayaki was in a position to pay N43,000,000.00.

A. I supported Ayaki’s proposal involving 50% of N43,000,000.00 which is 21,500,000.00 I say the it was a conditional proposal. I know it was bound to fail because the other party could not have accepted it.

18. Q. On whose behalf were you acting.

A. The Defendants.

19. Q. Did you seek any approval from the head office.

A. The District Manager recommended the customer and insisted. I should go ahead even though I told him the matter would not succeed.

20. Q. This is the proposal.

A. It is.

21. Q. The original was sent to whom.

A. The customer took away the original.

22. Q. The photocopy you are holding is what you kept after the customer took the original away.

A. Yes.

23. Q. As a result of the proposal you signed, you were queried by the head Office.

A. Yes.

24. Q. You know you had no authority to give out loans to customers.

A. I had no written authority.

25. Q. The leave of authority to give out loan was a company policy not restricted to you alone.

A. Yes it was a policy of the company.

26. Q. Do you know a customer Samesokey & … Nig. Ltd.

A. Yes.

27. Q. You gave a John to this Company.

A. I did.

28. Q. Did you seek the approval of the Head Office before you gave the loan.

A. I did need to seek Head Office approval.

29. Q. You were queried and suspended for giving loan to this customer others.

A. I was not queried, but there was a letter complaining about giving out loans without authority.

30. Q. You were asked by defendant to make written explanation.

A. Yes I did.

31. Q. After the written explanation, the defendant suspended you.

A. Yes, to pave way for investigation.

32. Q. Who carried out the investigation

A. Inspectors from the Head Office.

33. Q. The investigation found out that you gave out facilities to other customers without authority.

A. Yes.

34. Q. Was there a verbal authority to you.

A. None.

By section 75 of the Evidence Act, that which is admitted needs no further proof and he who admits is estopped from denying that which is admitted. (Refer Ojiegbu v. Okwaranyia (1962) 1 All NLR 605 at 607).

Upon this is added the uncontroverted testimony of the only witness for the Respondent. The DW1 testified to the effect that the Appellant was “queried on the guarantee he gave on behalf of the bank without authorization. The Management was not satisfied with his answers and he was put on suspension. He was later recalled to recover the loans and advance he gave out. He came back but did not recover any of the loans, so he was dismissed. (Refer pg. 29 – 30 of Records).

There was thus ample evidence upon which the trial Court acted.

Finally on the issue of the provisions for dismissal, the Appellant’s learned Counsel contends that the Appellant pleaded and proved Exhibit A which he claims contained the terms and conditions of his employment with the Respondent. The trial Court erroneously, argues Counsel, rather relied on Exhibit K tendered the Respondent.

Exhibit A is the 1988, while Exhibit K is the 1990 Collective Agreement between the Nigeria Employers Association of Bank, Insurance and Allied Institution and the National Union of Banks, Insurance and Financial Institutions Employees.

The learned trial Judge found that Exhibit A which the Appellant relied upon was no longer the operative agreement.

It appears reasonable to infer the Exhibit K was tendered by the Respondent not necessarily in proof of the terms of the condition of service but to establish that Exhibit a was obsolete and no longer in use, having been replaced by Exhibit K:

The Appellant admitted under cross-examination that the terms of service are subject to periodic review. It should therefore not be surprising that the 1988 Collective Agreement had evolved into the 1990 version.

The learned trial judge found no provisions for summary dismissal in the 1990 Collective Agreement and so held. The Appellant tendered no letter of appointment.

We had reviewed, in the course of this judgment, some case law on the master/servant, relationship and found it held severally, that where there exist no formal agreement regulating the relationship between the master/servant, then either of them has a right to terminate the relationship. The Courts are incompetent to compel to continuation of the relationship (Refer O.O. Oyedele v. Ife University Teaching Hospital Complex Management Board (1990) 6 NWLR Pt. 154 p. 194at 199.

It appears a settled practice that an employer is at liberty to prematurely terminate the employee’s appointment for the misconduct of the employee. (Refer Union Bank of Nigeria Ltd. v. Ogboh (supra).

There has been no clear definition under the law of this nation as to what constitutes misconduct. The Supreme however gave a definition of “Gross misconduct” as conduct of a grave and weight character as to undermine the confidence which should exist between the employee, and his employer. (Refer U.B.N. Ogboh (supra).

Misconduct, in the circumstance, is what the employer makes it out to be; could be a series of disobedient actions, acts of insubordination (see Teliat A.O. Sule v. Nigeria Cotton Board (1995) 2 NWLR Pt. 5 P. 17 at 28) absenteeism, embezzlement or some conduct considered detrimental to the corporate existence of an institution as in the instant case.

Upon the facts before the trial Court, the question of conditions/terms of services and the issue of compliance or non-compliance herewith is mere cosmetic balderdash, gibberish.

Under cross-examination, the Appellant acknowledged that he knew his employer, a banking institution was – distressed, a condition he attributed to poor management. He was a Branch Manager and therefore part of the bad administration; of course, the Appellant exonerated himself and claimed that Port Harcourt, which he managed was the best branch. No certificate nor medal of a merit award for best managerial skills was tendered in evidence in support of this self-proclamation.

Whatever the conditions of service regulating a master/servant relationship, I fail to see any rational employer which/who would applaud and condone the actions of a managerial staff who engages in activities clearly detrimental to the continued existence of the employer.

The Appellant has admitted giving out loan facilities over and above his capacity to give without the approval of the Head Quarters. He has also admitted using his employer’s official stamp, his signature and that of the Accountant in their respective capacities as Manager and Accountant to commit the Bank to a guarantee of N43,000,000.00/N21,000,000.00 without the authorization of the Head office (Refer Exhibit H).

The Appellant knew he had no power to do such but claims he did that upon the insistant request of some other official. The said official was not called up as a witness, albeit a hostile witness.

There was a clear indication from the answers of the plaintiff to question; under cross-examination, that there was a policy and some form of regulation as to the granting of facilities; these the Appellant totally ignored.

The Appellant was simply reckless, he therefore earned the summary dismissal. His conduct was clearly inimical to the corporate existence of his employers, as correctly found by the trial judge.

His exercises knew no bounds. He contended overdraft facilities even to the former customers of the bank who no longer maintained accounts with the Bank. The appellant failed to recover the facilities he granted even when he was allowed a year period of grace.

The facts before the Court were such that the trial Court was well equipped to described the conduct of the appellant as amounting to gross misconduct which is deserving of an extreme major. A summary dismissal was an adequate quick response to curbing the excesses of the Appellant in the circumstances.

I find no wrong done in the exercise of this essential power of the employer.

The learned trial Court was right.

Issue one therefore fails.

ISSUE TWO:

“Whether, on the facts before the lower Court, it can be said the Appellant is not entitled to damages for his dismissal.”

In view of our finding on issue one, it would appear rather academic to delve into this issue. However, not being the Court of last resort, we shall address the issue briefly for whatever it is worth.

It is the submission of the learned Counsel to the Appellant that the allegation made against the Appellant amounted to crimes for which the Respondent had to prove him guilty before the Court or Tribunal. Counsel submits that the Respondent “must at least set up an investigating panel to try the allegations against the Appellants and grant him fair hearing” in favour of the Appellant. Counsel cites the following cases to buttress his submission:-

(i) YESUFU AMADA GARBA & ORS. VS. THE UNIVERSITY OF MAIDUGURI (1986) 2 SC 128; at 187 line 4.

(ii) BABA VS. NCATC (1991) 5 NWLR (Pt.192) 388 at 418 para E – F;

(iii) SOFEKAN VS. AKINYEMI (1980) 5 SC 1.

(iv) BIISHI VS. J.S.C. (1991) 6 NWLR (Pt. 197) 331 at 334 Para 8.

and section 33(5) of the Constitution of the Federal Republic of Nigeria 1979 which was then applicable.

It is further the postulations of the learned Counsel that “gross misconduct”, to warrant a summary dismissal ought to have been established to be a conduct of grave and weighty character as to determine the confidence which should exist between the employee and his employer or working against the deep interest of his employer.

The Respondent, argues Counsel, must lead evidence in proof of the gross misconduct including defining the scope of the Appellant’s authority and of which the Appellant abused. (Refers UBN LTD. V. OGBOH (1955) 2 NWLR Pt. 380; 647 (SC) at 669 paras F – G). Counsel submits that there was no evidence on record establishing that as a Bank Manager, the Appellant could not without more give credit facilities to Bank customers. Counsel further argues that Exhibit H which the learned trial judge found as “speaking for itself” was not a Bank Guarantee; having been prepared on the headed paper of Ayaki & Sons; Counsel submits that little evidential value or weight should have been attached to Exhibit H. The said Exhibit submits Counsel should not have been served as the nail with which the coffin of the alleged gross misconduct was nailed. Upon these facts argues the learned counsel, the Appellant’s contract of service was wrongfully terminated.

The Appellant concedes that his contract of employment, not being one with statutory flavour, a dismissal can only attract damages and not reinstatement for wrongful dismissal.

Also concedes that a servant cannot be forced on an unwilling master not is specific performance usually ordered of a contract of personal service.

Counsel relies on the following cases:

(i) ABOMELI v. NRC (1995) 1 NWLR Part 372, 451 (CA); at 471 paras. C – D.

(ii) IWUCHUKWU v. NWUZU (994) 7 NWLR Part 350 (SC); at 411 para F -G;

(iii) ONDO STATE UNIVERSITY v. FOLAYAN (1994) 7 NWLR Part 354 1 (SC); at page 34 paras E – F.

It is the further submission of the learned Counsel that if Appellant was wrongfully dismissed, although cannot be reinstated he is entitled to damages. Now, by the facts of this case, argues Counsel, the Appellant had claimed the sum of N500,000.00 as general damages. Considering the way and manner he was treated, submits Counsel, the Appellant ought to be awarded the sum claimed.

It is the case of the Respondent per his learned Counsel, that the Appellant neither pleaded nor did he lead any evidence on how be arrived at the damages of N500,000.00 he claimed.

The Appellant did not also plead nor lead evidence on the terms of his appointment as to the required length of notice which would have determined the quantum of damages due to the Appellant in lieu of notice, if his dismissal were held to be wrongful (Refers: Imoloame v. WAEC (1992) 4 NWLR Pt. 265 p. 303 at 316 para E – F, 319, para A – B., Akinfosile v. Mobil Oil Nigeria Ltd. (1969) Nigerian Commercial Law Reports (NCLR) 253 at 259.

Counsel submits that the Appellant failed to prove the alternative claim of N500,000.00 damages, having failed to produce the material averments and evidence upon which the assessment of damages could have been based (Refers Amodu v. Amode & Anor (1990) 5 NWLR Pt. 150 P. 356 at 367.

Further, Counsel submits that having failed to prove that his dismissal was wrongful, the Appellant is not entitled to any damages.

In a nutshell, the learned counsel for the Appellant wants damages paid to the Appellant for the failure of the Respondent to prosecute and secure a conviction or acquittal for the Appellant before his dismissal. The Appellant must also be compensated for the error of the learned trial Judge in holding that Exhibit H was a Bank Guarantee and thereby according it undue weight. Counsel also wants compensation paid to the Appellant for the failure of the Respondent to adduce evidence establishing that as a Bank Manager, the Appellant could not without more, give credit facilities to Bank customers.

Exhibit H, has clearly endorsed on the very first page in the following manner:

“Note:-

“50% of total amount of (21,500.00k twenty one million five hundred thousand naira only) to be released to you. Bankers as soon as the ship berths in Port Harcourt with the sugar while the balance total would b e released midway to the discharge of the ship. Provided the originals of the shipping documents were dispatched to reach and Bankers – National Bank of Nigeria Limited, Port Harcourt, before the arrival of the carrying vessel into Port Harcourt for berthing.”

Directly underneath this is stamped “for National Bank of Nigeria Limited Port Harcourt” signed “Manager” on top and “Accountant” below, on the said Exhibit.

The Appellant did not deny signing the document without authority so to do. He said “I supported Ayaki’s proposal involving 50% of 43,000,000.00 which is N21,500,000.00. I say that it was a conditional proposal. I know it was bound to fail because the other party could not have accepted it.”

On the issue of investigation; and fair hearing, the testimony of the Appellant is apposite and part of which is hereby reproduced:-

On page 22 of the Records of this Appeal, the Appellant, while testifying as the PW1 stated as follows, inter alia:-

“… I was not given any query before I was dismissed”. The very next sentence of the witness is a direct contradiction of the above allegation. He said “on 12/6/90, I was sent for to the Head Office in Lagos and given a query”. He next tendered the query which was admitted as Exhibit ‘C’. He continued thus “…. On the 14/6/90. I was given another query” he also tendered the said letter which was admitted as Exhibit E. The Appellant also said he answered the query. The Appellant also stated that by “Exhibit E”… I was suspended from work…” It was also the testimony of the Appellant that he answered the query said he “………I denied the issue of guarantee to Ayaki in my reply and also explained why we sold draft to N.N.P.C. even though they were no longer our customer…”

By the above testimony of the Appellant, one wonders what further investigation was required. The Appellant had admitted under cross-examination, that he was asked to go on suspension to ‘pave way for investigation. “He knew who carried out the investigation.” “Inspectors from the Head Office, was his answer as to who carried out the investigation (Refer pg. 27 of Records).

In the case of Alh. Abdullahi Baba v. Nigerian Civil Aviation & Anor. (1991) 5 NWLR Pt. 192 p. 388 at 418, the Supreme Court held that the setting up of an Investigation Panel is sufficient if the persons involved are allowed to state their case which could be either by oral evidence, submission or by written presentation.

All allegations made against the Appellant were addressed to him to which he gave answers. He was even allowed time to recover some of the facilities he gave out without authority.

A Court of law is not a theater where all the scenes of a play are fully acted out of necessity for purposes of entertainment.

In a superior Court of Record, once pleadings are ordered and issues have been joined, legal evidence is only required and adduced upon those issues which are contentious and controverted. Where allegations made are admitted by the person against whom they are made it becomes theatrical to proceed to adduce evidence to establish that which has already been admitted, unless of course such further evidence is vital for a particular’s reason.

Admission is the best form of evidence, why adulterate such pure evidence by deductions? There was ample evidence before the trial Court to enable it arrives at the decision it did and rightly so.

The general position is that before damages can be awarded, there must be a wrong committed (Refer Adene v. Dantunba (1994) 4 SCNJ P. 150 at 151).

The main purpose of awarding damages is to compensate the aggrieved party for the loss, injury or damages suffered by him.

Thus the guiding principle in the award of damages is Restitution in interrogation. (Refer Maximum v. Owoniji (1994) 3 NWLR Pt. 331 Pg. 178 at 195.)

What wrong that the Appellant suffered? The Appellant failed to establish that his dismissal was wrongful. He also failed to establish any damages due to him. The trial Court found no damages established. The Appellant is therefore entitled to no award of damages.

This issue also fails.

The entire appeal is devoid of merit and hereby dismissed. The decision of the Court of trial is accordingly affirmed.

A cost of N5,000.00 is awarded to the Respondent against the Appellant.

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Other Citations: (2005)LCN/1697(CA)