Mr. P. C. N. Uzondu V. Union Bank of Nigeria Plc (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the Benin High Court delivered on 6th day of June 2002 by Hon. Justice A. A. AGUN wherein all the plaintiff’s claims were dismissed in its entirety. Dissatisfied, the plaintiff at the lower court now appealed to this court. The facts which led to this appeal are as follows:-
The Appellant was employed as a clerk by the Respondent in 1980. He rose to become the Branch Accountant. Sometime in August 1997, it was discovered that one of the vital books of the bank did not balance. Being the Accountant, the Appellant proceeded on leave in October 1997 without balancing the books. Consequently, the Respondent lost N36,437,000.20. The Respondent later charged the Appellant and seven other members of staff to court for stealing. The Respondent suspended the Appellant. Later, the Appellant was dismissed by the Respondent. The Appellant then filed an action at the High Court for the following reliefs:-
“1. A declaration that the defendant’s letter of dismissal of the plaintiff from the employment of the defendant dated the 9th of October, 2000 amounts to a violation of the Plaintiff’s Fundamental Rights, Null and void and of no legal effect.
- An order re-instating the plaintiff to the plaintiff’s position with the Defendant as officer (Branch Accountant)
- A declaration that the letter of suspension issued by the Defendant to the plaintiff dated 12/11/98 is still in force and subsisting.”
Pleadings were filed and exchanged by the parties. The Appellant testified on his own behalf and the Respondent called one witness. After due consideration, the learned trial judge dismissed the Appellant’s claims.
The Appellant filed Appellants’ brief dated 17/6/04 on 24/6/04. The brief was deemed properly filed in this court on 20/9/05. Also an Appellant’s Reply brief was dated and filed on 28/9/06. The Respondent’s brief dated 4/11/05 was filed on the same day. The Appellant’s counsel Mr. A. Osayomwanbor Esquire identified two issues for determination also adopted by Mr. Dafe Akpedeye SAN who filed the brief of argument of the Respondent. They are as follows:-
- Whether the trial court gave full consideration to the case and claim of the Appellant before it before dismissing the Appellant’s claim.
- Whether the trial court was right in holding that the Appellant ought to have placed before it the contract of service Agreement in view of the peculiar circumstance of this case.
Mr. Osayomwanbor Esquire in his oral argument submitted that a letter of dismissal cannot take retroactive effect. He cited Abenga v. BWJSC Ltd (2006) All FWLR Pt. 321 Pg. 1327 at 1328.
On issue 1, learned Appellant’s counsel argued that the Appellant’s case is that subsequent on the discovery of the fraud to the tune of N36m in the branch of the Respondent Bank where he was the Branch Accountant, seven members of staff were arrested and charged to the Chief Magistrate Court Benin City. The Appellant was placed on suspension. The Respondent instituted a civil action to recover the money from Philip Onyia and Helen Uwangue and got judgment. The fulcrum of the Appellant’s case is that he was placed on suspension pending the outcome of the criminal trial and until the outcome of the said trial indicating the culpability of the Appellant; the Respondent could not dismiss the Appellant. Counsel submitted that the learned trial judge ignored the dismissal of the appellant before the determination of the criminal case and got carried away with the principle relating to the power of an employer to dismiss its servant. He submitted that during the period of criminal trial, the power of dismissal is put on hold. He argued that the trial court allowed itself to be influenced by the nature of the financial loss. He argued that the Respondent had lost nothing in the hands of the Appellant and that the reasoning of the learned trial judge that the Appellant worked against the deep interest of the employer is untenable. Appellants’ counsel argued that the Respondent made no effort to meet the Appellants’ case but sought to make a different case for itself which is wrong. He cited Simon Ihezakwu & 2 Ors v. UNIJOS (1990) 4 NWLR Pt. 146 Pg. 598 at 607.
Learned Respondent’s counsel in reply to the Appellant’s first issue introduced arguments in respect of the claim of the Appellant which in my humble view did not arise from the case of the parties at the lower court, from the grounds of appeal and from the arguments raised in support of the 1st issue for determination by the Appellant’s counsel. Respondent’s counsel went at length on a voyage to explore the issue of the enforcement of fundamental human rights of the Appellant as provided by the fundamental human rights enforcement rules as contained in the 1st leg of the Appellant’s claim at the lower court.
Let me say here that the arguments on whether leave should have been sought etc to urge that relief and the proper procedure to be used by the plaintiff to urge that relief was not a point or issue raised by the Respondent’s counsel at the lower court. It was neither raised nor addressed by either counsel or the court and no ground of appeal relates to it. The issue of fundamental human rights came up in the Appellant’s pleadings only in relation to the right of fair hearing which was allegedly denied the Appellant by the Respondent before his dismissal. The issue of enforcement of fundamental human rights according to the Fundamental Human Rights Enforcement Rules did not arise at all. In any event, an action challenging dismissal does not partake of the nature of an action for breach of fundamental human rights and is therefore not maintainable by action for enforcement of fundamental human rights See Grace Jack v. Uni Agric Maiduguri (2004) 1 SCNJ 335 at 346. That the whole portion of the arguments is irrelevant being in my humble view misconceived.
On the argument properly raised by Appellant’s counsel, Respondent’s counsel argued that it is not necessary under the common law nor is it a requirement of the Nigerian Constitution that before an employer summarily dismisses his employee from his service, the employee must be tried by a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. He cited Alh. Lasisi Yusuf v. Union Bank (1996) 6 NWLR Pt.457 Pg. 632 at 644; Ajayi v. Texaco Nig Ltd (1987) 3 NWLR Pt. 62 Pg. 577.
He further submitted that the law is trite that an employer can terminate his employee without waiting for the outcome of criminal prosecution initiated against the employee. This is so where the employee is not invested with a legal status higher that the ordinary one of master and servant. In that case his suspension may turn into a full dismissal at the option of the employer subject to the terms and condition of service. He argued that in the instant case the Appellant has not shown that his dismissal was not in accordance with his terms of service as to make it wrongful. Dismissal is never tied to criminal prosecution since it is an administrative weapon which can be utilized whether there is a suspension or a criminal matter pending in court or not. Counsel further argued that the Respondent had lost over N36 million (Thirty Six Million Naira) from laxity of the Appellant’s department. Instead of unraveling the scam, Appellant proceeded on leave, and when he returned he pushed the file to a junior officer who now unraveled the scam. The law is trite that where an employee works against the deep interest of his employers, it amounts to misconduct and such employee is liable to dismissal.
Counsel submitted that no where in the Appellant pleadings did the appellant invite the trial court to consider the effect of his dismissal. He opined that a court is bound by the case before it and cannot make an order not prayed for by the parties before it. He cited A.G. Anambra State v. Okafor (1992) 2 NWLR Pt. 224 Pg. 396 at 403; LUTH & MGT Board v. Prince M.B. Ademola (1998) 5 NWLR Pt.550 Pg. 406 at 419.
This issue has two legs. The first is whether the Appellant’s pleading and evidence at the lower court emphasized the point being raised here on appeal that the dismissal of the appellant before the determination of the criminal case was wrongful. I have read the statement of claim filed by the Appellant at the lower court. Clearly paragraphs 24 and 25 thereof raised this issue which was answered by the Respondent in paragraphs 23 and 24 of the amended statement of defense to the effect that the Respondent can dispense with the Appellant’s service at any time for any reason or for no reason at all and that the Appellant’s dismissal had nothing to do with the pending criminal trial. I am inclined to agree with the Appellant’s counsel that this point was clearly made by the Appellant and issues were joined on same. I have read the judgment of the lower court contained on Pg. 45 – 58 of the printed record. The learned trial Judge reviewed the evidence of the Appellant in particular and the parties on the point. However, nowhere at all did the learned trial Judge avert his mind in his findings nor give a legal opinion on this particular point. That is whether or not the Respondent was obliged in the circumstances of this case to abide the outcome of the criminal trial before it could dismiss the Appellant. The non consideration of this point on which issues were joined is clearly an error in the judgment of the lower court. The issue now is whether or not the error of the lower court in not considering the point has occasioned miscarriage of justice. Not every error or mistake of the lower court will result in appeal being allowed. See Spasco Vehicle & Plant Hire v. Alraine Nig Ltd (1995) 9 SCNJ 288; Owhonda v. Ekpechi (2003) 9 SCNJ 1; Amayo v. Erinmwingbovo (2006) 5 SCNJ 1.
To determine whether or not the error led to a miscarriage of justice, one must see whether if in fact the learned trial Judge considered this point he would have come to a different conclusion in the circumstances of this case. The learned trial judge based his decision on the legal relationship between master and servant and arrived at the conclusion that the Respondent proved the negligence of the Appellant and thus had a right to dismiss him after giving him a fair hearing. His Lordship was of the view that the Appellant was liable to be dismissed for good reason or for no reason at all and that he was rightly dismissed by the Respondent on account of his negligence in handling the account of the bank as branch accountant. I do not think the learned trial Judge would have come to a different conclusion if his Lordship had considered the issue of whether or not the Respondent should abide the outcome of the criminal trial. The reason for the Appellant’s dismissal as contained in Exhibit I was not the pending criminal trial or allegation of fraud; rather it was based on the supposed negligence of the Appellant. The first paragraph of Exhibit 1 reads as follows:
“You are hereby advised of your dismissal from the Banks’ service for gross misconduct at Akpakpava branch with effect from 6th October 2000.”
In the circumstances, I am of the view that the error of the learned trial Judge in not considering whether or not the Respondent should have waited for the outcome of the criminal trial did not lead to a miscarriage of justice.
This brings us to the 2nd leg of the issue. In this case, the facts as found by the lower court clearly show that the Appellant was grossly negligent in the discharge of his duties. The learned trial judge held on Pg. 56 of the judgment that one of the reasons for dismissal of an employee as contained in Exhibit 2 Senior Staff Regulations tendered by the Appellant at the trial was serious negligence. The court found as follows:-
“On the whole, the conclusion I reach is that in all the circumstances of this case, the plaintiff was negligent in the performance of his duties, which resulted in substantial financial loss to his employer- the defendant.”
Clearly the Appellant who kept on abdicating his duties to junior officers until the bank lost N36m was seriously negligent. He did not keep his own part of the contract to exercise diligence and efficiency in his duties. I agree that the employer/Respondent rightly dismissed him and the learned trial judge had good reason to uphold the dismissal even before the outcome of the criminal prosecution. In Nwobosi v. ACB Ltd (1995) 7 SCNJ 92, the Supreme Court defined gross misconduct as follows: Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer.
I quite agree with the learned trial Judge that the position of the law is that where the employment is one of master and servant at common law, the employer has no obligation to give reason for determining the employment. In NWOBOSI V. ACB supra; SHUAIBU V. NIGERIA-ARAB BANK (1998) 4 SCNJ 109 the courts have defined willful misconduct to be any act prejudicial to the interest of the master or outside the scope of the duties of the servant. See SHUAIBU V. NIGERIA-ARAB BANK supra. No fair hearing or hearing is required. See Arinze v First Bank (2004) 5 SCNJ 183.
The only relevant consideration is whether or not the contract of service was breached by the employer. Where there is wrongful dismissal of the employee, the relief of specific performance is not available to such employee as the employer is only liable to pay damages. Also it is not compulsory for employer to ensure prosecution of employee for commission of a crime before dismissing him particularly where the employee admits to the crime. See Samson Babatunde Olanrewaju v. Afribank Nig Plc (2001) 7 SCNJ 493, Alh Yusuf v. Union Bank supra.
I also agree with the learned trial judge that the dismissal of the Appellant by the Respondent was quite justified in this case. The sum of N36m was lost by the Bank through the dereliction of duty on the part of the Appellant. An account that should be balanced twice monthly was left unbalanced for months on end leading to defrauding and loss of money of the employer. Where an employee omits to do some thing or commits an act which is injurious to the business of his employer and is incompatible with the faithful discharge of his duties, it is justifiable for the employer to dismiss him. See Underwater Engineering Co. Ltd & Anor v. Darusha Dubefon (1995) 6 SCJN 55; Anselim I Osakwe v. Nigerian Paper Mill Ltd (1998) 7 SCNJ 222.
The law in this regard is that where there is an allegation of crime against an employee, the employer cannot dismiss the employee based on that allegation until the conclusion of a criminal trial convicting the employee. Where however as in this case, the employee was not dismissed on the basis of the criminal allegation but for “gross misconduct” as contained in the Respondent’s letter of dismissal Exhibit 1, and having given the Appellant a fair hearing as evidenced by Exhibit 3, the Respondent was quite entitled to dismiss the Appellant in this case. I have looked at Exhibit 3 tendered by the Respondent. It is a copious report including a question and answer session in which the questions put to the Appellant and his replies were recorded. The Appellant was given adequate opportunity to react to all the questions put to him as evidenced by Exhibit 3. I am satisfied that the rules laid down in Yusuf v. Union Bank were complied with. In Alamonda v. Bida (2000) Pt. 668 Pg. 186 at Pg. 192-193, the court held that the obligation of the employer does not exceed disclosure of complaints to the employer and the employee given a chance to react to them. I could not have put the matter better than the learned trial judge who held on Pg. 58 of the record as follows:-
“It must be stressed however that a contract of service is like any other form of contract where each of the parties is expected to keep his own side of the bargin (sic). Where however as in this case, the plaintiff performed his duties with a nonchalant attitude, it cannot be seriously contested that he has kept his own side of the bargin (sic).”
The issue of whether the letter of dismissal could take retroactive effect or not was not one raised in the pleadings or evidence at the lower court. Issues were not joined in respect of same. It is a matter of mixed facts and law which impacts on the financial implication of when the dismissal came into effect. This should have been decided by the lower court. It is a new issue entirely for which leave had not been sought or obtained by the Appellant’s counsel to argue before us. The oral argument in respect of same is hereby completely discountenanced. In the circumstances, the first issue is resolved in favour of the Respondent.
The second issue for determination is whether the trial court was right in holding that the Appellant ought to have placed before it the contract of service agreement in view of the peculiar circumstances of this case. Appellant’s counsel argued that the learned trial judge did not relate the principles of law to the peculiar circumstances of this case. He submitted that even though the court held that it was necessary for a party who claims that his contract of service has been violated to tender the said contract, the Appellant could not do so because the Respondent refused to produce the only copy of the agreement. He submitted that in view of the unwillingness of the respondent to tender the agreement, the learned trial judge should have invoked S.149 (d) of the Evidence Act against it. He argued that the Respondent witness failed to explain the failure of the Respondent to produce the only copy of the agreement in spite of a notice to produce filed and served on the Respondent. He submitted that it was wrong for the learned trial judge to have insisted that the Appellant should produce the agreement.
Learned Respondent’s counsel in reply argued that the law is trite that he who asserts must prove. The Respondent in Para 19 & 20 of the Amended Statement of Defence had denied being in possession of the copy of the contract of service. Respondent’s counsel argued that there is a clear distinction which their witness made at the lower court between a contract of employment which is used to secure the employment of a servant and the conditions of service, which operates as the constitution between the master and servant. Counsel submitted that with the failure of the Appellant to adduce primary evidence of the terms of agreement which regulated his employment, the secondary evidence adduced did not meet the standard of proof laid down in Morohunfola v. Kwara Tech (1990) 4 NWLR Pt. 145 Pg. 506.
On this issue, it is apt to state here that in an action for wrongful termination of appointment, the employee must prove the following.
(a) That he was employed by the defendant;
(b) The terms and conditions of his appointment including duration and termination.
(c) Who can appoint and remove him;
(d) The circumstances under which his appointment can be terminated;
(e) That his appointment can only be terminated by a person or authority other than the defendant.
The facts which show the regulations binding on the parties are material facts to be proved by the employee. in this case the Appellant. The Appellant must plead and prove the terms in the contract of service violated by his employers. This can only be done by tendering the contract and not by oral evidence. See Morohunfola v. Kwara Tech supra, Adams v. L.S.D.P.C. (2000) 5 NWLR Pt. 656 Pg. 291 at 316.
With the greatest respect this issue is much ado about nothing. The contract of employment was said not to regulate the conditions of service but rather to prove that the Appellant was employed by the Respondent. The Appellant tendered Exhibit 2 which is the Senior Staff Regulations which clearly provides for conditions of employment including grounds for dismissal. The learned trial judge gave due consideration to Exhibit 2 in the judgment. Due cognizance is taken of the fact that the Respondent refused to produce the sole copy of the contract of employment. Even if S.149 of the Evidence Act is construed against the Respondent, would it have affected the outcome of the trial? The Appellant claimed that the agreement stipulated that he should be queried and subsequently be made to face a disciplinary panel. There is evidence from DW I who tendered Exhibit 3 the Audit Query issued to the Appellant that indeed the Appellant was issued with and answered a query in compliance with staff regulations for disciplinary actions.
The second issue is resolved against the Appellant.
In conclusion, I am of the view that the appeal is completely unmeritorious and it is hereby dismissed. N30,000 costs against the Appellant for the Respondent.
APPEAL DISMISSED.
Other Citations: (2008)LCN/2821(CA)
