New Nigeria Bank Ltd. V. Francis Obevudiri (1985)
LawGlobal-Hub Lead Judgment Report
AGBAJE, J.C.A.
In a Jos High Court, the plaintiff, Francis Obevudiri, sued the defendant Bank, New Nigeria Bank Limited, claiming against it as follows:
“1. A declaration that the termination of the plaintiff’s appointment by the Bank was malicious and wrongful.
- The sum of N4, 415.90 as special damages made up of:-
(i) N1,275.00 representing 3 months’ salary in lieu of notice for the months of January – March, 1979 at N425.00 a month.
(ii) N1,275.00 being balance of unpaid monthly salary (of N425.00) from January -June, 1979 at N212.50 per month.
(iii) N249.90 balance of monthly car allowance unpaid from January – June, 1979.
(iv) N300.00 as the unpaid half of the monthly housing allowance (of N100.00) from the months January – June, 1979 at N50.00 a month.
(v) N1, 188.00 as refund of pension contribution of N18.00 a month from January – June, 1974 to 1979.
(vi) N75.00 leave grant for 1979 and N52.00 travelling allowance for the trip from Warri to Makurdi.”
Pleadings were ordered, filed and delivered. The case was tried by Momoh J. In a judgment dated 9th March, 1984, she held that the plaintiff’s dismissal by the defendant was wrongful. She held further that the plaintiff is entitled to recover damages for the wrongful dismissal. She awarded the plaintiff special damages totaling N3, 564.90 made up as follows:-
“N425.00 – Salary for one month as damages for wrongful dismissal; additionally sums of N1,275, N249.90, N1,188, N75 and N52 respectively claimed as aforesaid in this judgment. Total amount to be awarded on the plaintiffs claims shall be N3, 564.90.”
Costs of the trial assessed at N427.60, were also awarded to the plaintiff. Both the defendant Bank and the plaintiff were dissatisfied with the decision of the learned trial Judge.
The defendant Bank, in the main appeal, has complained about the whole of the decision. The plaintiff, in his cross-appeal has appealed against certain specific findings of the learned trial Judge which according to the plaintiff, are prejudicial to his case. The findings of the learned trial Judge complained of by the plaintiff are:-
(a) that the charge of negligence which was made against the plaintiff by the defendant in the performance of the former’s duty as regards the transactions giving rise to his dismissal by the Bank has been proved to the satisfaction of the learned trial Judge.
(b) that in the deliberation leading up to the dismissal of the plaintiff by the Disciplinary Committee set up by the Bank to investigate the charge of misconduct against the plaintiff there was no breach of the rules of natural Justices.”
The defendant Bank filed its brief of argument. The plaintiff also filed the reply to this brief of argument and also his brief of argument in respect of his cross-appeal.
There is also the reply by the defendant Bank to the plaintiff’s brief of argument in the cross-appeal. Therefore, I do not consider it necessary to set down the grounds of appeal in the main appeal or in the cross-appeal. It will be sufficient if I refer to the issues identified in the respective briefs as arising from the appeals now before us.
Before I go on to discuss the submissions of counsel on the issues so identified, I should set down the facts of this case and the findings of the learned trial Judge, relevant to the issues raised in the appeals.
I have referred above to the plaintiffs claim. I have also said that pleadings were filed and delivered. Both parties adduced evidence at the trial.
The following facts were common ground in this case. The defendant bank appointed by a letter dated 27th September, 1974, the plaintiff as a Supervisor with effect from October, 1974 on a salary of N1, 760 per annum. The plaintiff took up the appointment. He rose from the post of a Supervisor to that of Accountant Grade II by 1st January, 1979, when his salary also rose to N5, 100.00 per annum. In the capacity of the plaintiff as an Accountant Grade, he became a member of the senior staff of the defendant Bank and his conditions of service with the defendant Bank were as contained in the Bank Book tendered in this case and marked Exh. ‘E’. The plaintiff, apart from his salary, was also entitled to a monthly car allowance of N83.33 and monthly house allowance of N52.00 and some payment from the pension Fund to which the plaintiff contributed monthly.
Exh. ‘E’, the Hand Book, contained provisions relating to taking of disciplinary action against the plaintiff by the defendant and also to termination of the employment of the plaintiff by the defendant. I shall refer to the relevant provisions later in this judgment when considering the issues relating to them.
The defendant charged the plaintiff with negligence in the discharge of the duty for which he was employed. The defendant also charged the plaintiff with some criminal offence involving dishonesty.
Apparently, this charge was not pressed at the trial of this case. So, I will only confine myself to the charge of negligence. The Defendant set up a disciplinary committee to investigate this charge of negligence and that committee having found the plaintiff guilty of the charge of negligence, the defendant Bank wrote a letter dated 28th June, 1979 to the plaintiff dismissing him from the services of the Bank with effect from 29th December, 1978. That is to say, the dismissal letter was with retrospective effect. It is this dismissal letter that has given rise to the plaintiff’s action against the defendant.
The case of the defendant Bank against the plaintiff was that he was negligent in verifying, as genuine, forged signatures on two forged Bank Drafts, as a result of which the Bank paid out a sum of N60, 000.00 on the forged Drafts and thereby incurred a loss of that amount. Since this allegation of negligence is very crucial to the appeal now before us, it will be best for me to lift from the judgment of the learned trial Judge, the facts found by her in this regard and also her inferences from the facts so found by her. As to the facts surrounding the payment of the forged Drafts, I refer to the following passages from the judgment of the learned trial Judge:-
FIRST: “The plaintiff served the Bank meritoriously right from the date he was employed but ran into trouble with the Bank when it was discovered late in December, 1978 that forged signatures on two forged drafts for N35,000 and N25,000 (Exhibit ‘K1 and K2’ dated 17th August and 24th August respectively) were verified by the plaintiff as genuine. The blank Cheques used turned out to be among those stolen from the Muritala Mohammed Branch of the Bank in Benin by unknown persons. Each draft purportedly drawn by the Bank was made out in the name of one Alhaji Mahmud addressed to the Makurdi Branch Manager of the Bank for payment. All Accountants of the Bank in all Branches keep custody of the list of officials of the Bank authorised to sign drafts. Before any draft is honoured the Branch Accountant must verify the signature on the draft as genuine. This is done by comparing the signature on the draft with the specimen signature of the authorised signatories. The plaintiff in this case verified as genuine the signatures on the two drafts with Exhibit ‘L’ (Containing the names and specimen signature of the authorised signatories of the Bank) he passed them on to his Manager for approval to pay which was done and payment accordingly effected. When by December, 1978, the plaintiff failed to receive credit advice from the Benin Branch on the issuance of the drafts (which ought to have been received in 3 weeks of issuance) the plaintiff then sent out traces to the issuing Bank enquiring why no advice had been received. By a reply of 20th December, 1978 (Exhibit ‘A’ from the head office of the Bank in Benin, the plaintiff was informed that the drafts in question were forged and were not drawn by the Murtala Mohammed Branch of the Bank; the plaintiff was in the letter asked to explain why he should not be held responsible for paying the forged drafts. The plaintiff by his letters (Exhibits ‘N1 & N2’) of the same 20th December, 1978 explained himself fully.
The matter was reported to the Makurdi Police and on the 3rd January, 1979, the Bank authorised the Makurdi Branch Manager (D.W.5) under whom the plaintiff was working at the time, to write a letter (Exhibit ‘E’) of 3/1/79 to the plaintiff suspending him on half pay which was done and the suspension was made effective from the said 3rd January, 1979. The suspension was stated to be indefinite pending the determination of the Court action against the plaintiff. In the first Information Report (F.I.R.) presented to Chief Magistrate’s Court Makurdi, the plaintiff and 3 others were alleged to have committed the offences of Criminal Conspiracy, Forgery of the drafts and theft of the total sum of N60, 000 cashed value of the drafts. The Criminal case was filed on the 3rd July, 1979 but on the 13th March, 1980, the Criminal case was terminated by the prosecution, the plaintiff and other accused persons were accordingly discharged by Court. Exhibit ‘H’ is the certified true copy of the Criminal Proceedings.
The bank by its letter of 20th June, 1979 dismissed the plaintiff with retrospective effect namely, with effect from 29th December, 1978. The dismissal of the plaintiff was made without reference to the pendency or outcome of the court action (as was the case of suspension). The defence averred that the decision to dismiss the plaintiff was taken independently of what the outcome of the court action might be but was based on the outcome of the bank assessment of the facts of proof on balance of probability and not beyond reasonable doubt.”
SECOND: “The defence further averred that the dismissal was as a result of the plaintiff’s fraudulent and negligent act in verifying, in the positive the signatures on the forged drafts which he knew or ought to have known were forgeries. That the plaintiff was given an opportunity of defending himself which he did in writing and was followed by a departmental inquiry by the disciplinary committee that found him guilty of misconduct.”
THIRD: “The plaintiff denied the allegations of fraud and negligence made against him in the statement of defence and emphasised that all he did in connection with the drafts in question was to verify the signatures on them which he did honestly and without negligence.”
FOURTH: “The first draft (Exhibit ‘K1’) dated 17th August 1978 for N35, 000.00 was purportedly signed by the Benin Branch Manager, Mr. N. A. Onwufuju (category A) and his accountant Mr. Ame Amorighori of category B). The signatures are proved to have been forged by unknown person. The Manager’s signature draft is almost a perfect replica of his specimen signature in Exhibit ‘L’ and this fact was confirmed even by the Manager himself but he denied ever signing the draft and pointed out minor differences between his specimen signature and of the one on the forged draft. The forged signature of the Manager appear so genuine that the plaintiff would not have been held negligent for verifying as such. Unfortunately, the same could not be said of the purported signature of the Branch Accountant which was obvious forgery when compared with the specimen signature Exhibit ‘L3’. The Accountant denied signing the draft and the plaintiff himself said he detected the dissimilarity when the beneficiary of the draft presented it to him at Makurdi Branch for encashment. He consequently rejected the draft and made an endorsement in red biro on the stating draft “Second signature irregular, and handed the draft over to the Alhaji and advised him to take it to Benin for regularisation. On the 28th August, the draft was represented by the Alhaji. This time the plaintiff observed that it bore a third signature purported to be that of Mr. C. I. Igure an accountant of category B signatory in Exh. ‘K’. The earlier rejected second signature was still on the draft uncancelled and unrectified. The plaintiff nevertheless accepted the draft and cancelled the endorsement he earlier made (about the second signature being irregular) and thereby validating the irregular signature. He presented the draft bearing the three signatures to the Manager to authorise payment. Another curious aspect of the draft is that 2nd signature said to have been appended by Mr. C. I. Igure was patently irregular as it was not similar to Mr. Igure’s specimen signature in Exh. ‘L’. It does not require any hand-writing analyst to prove the dissimilarities. Mr. Igure who left the service of the Bank about October, 1983 could not be traced to testify but his Manager from Benin under whom Mr. Igure served as an accountant told the court that he was very familiar with Mr. Igure’s signature and confirmed that his signature on the draft was forged. The plaintiff agreed in evidence that ‘Mr. Igure’s specimen signature in Exh. ‘L2’ and the one on the draft did not agree but claimed that the specimen signature of Mr. Igure with which he verified the one on the draft was different from the specimen signatures of Mr. Igure Exh. ‘L2’ in court. The Bank witnesses refuted this by saying that at no time was Mr. Igure’s signature altered or different from the one in Exh. ‘L2’. It was not proved by the plaintiff that Mr. Igure’s was not constant and he failed to produce any other signature of Igure’s. I disbelieve the allegation that the verification of Igure’s signature was based on a different specimen. The plaintiff was clearly negligent in the signatures on the first draft. The second draft; the second draft Exh. ‘K2’ verified by the plaintiff on 24/8/79 bore the same three signatures as appended in the first draft Exh. ‘K1′. This time the plaintiff did not question any of the signatures but accepted, stamped and passed same to his Manager for payment approval of the sum of N25, 000. In this draft (just as the first draft) only the Manager’s signature appeared genuine and that was the Manager’s while the remaining two were obvious forgery of the two accountants’ signatures. If the three signatures were convincingly similar to their genuine specimens, the plaintiff was mindful of the patent verifying them as he did. The plaintiff was mindful of the patent irregularities of the two out of the 3 signatures on the drafts and confirmed same in evidence. He further confirmed that one of the verification rules is that any draft bearing irregular signature shall not be honoured and added “It is true that I verified both drafts in question despite obvious irregularities in the signatures of the signatories.” This is a clear admission of the negligence averred against him in respect of both drafts.”
On the above findings, the learned trial Judge held that the defendant Bank has proved the charge of negligence in the performance of his duty against the plaintiff to her satisfaction. The learned trial Judge went on to hold as follows:-
“What constitutes negligence to justify a dismissal is a question of fact to be decided by court. There is no fixed rule of law in that regard.” In this case where a professional Banker (such as the accountant plaintiff) is as negligent as he is proved to have been by authenticating two apparent and undisguised irregular signatures on each draft and on two separate occasions thereby caused the loss of N60, 000 to his employers Bank, I cannot in the circumstance say with any sense of conviction that the plaintiffs negligent conduct is not gross enough to warrant his dismissal. The plaintiff’s conduct was gross enough to justify his summary dismissal under Clause 9(1)(i) of the Condition of employment relied upon by the Bank. What was done by the Bank here was retrospective dismissal.”
The learned trial Judge also held that she was satisfied on the evidence of the defence witness Mr. I. O. Abe that there was not breach of the rules of natural justice in the deliberations of the disciplinary committee set up by the defendant Bank which led up to the dismissal of the plaintiff.
Although the learned trial Judge held that the negligence which the defendant Bank proved against the plaintiff in the performance of his duties was gross enough to justify his summary dismissal under Clause 9 (1) (i) of the Conditions of employment governing the contract of service between the plaintiff and the Bank, she went on to hold that the letter of 28th June, 1979, Exh. ‘H’ in this case, dismissing the plaintiff with retrospective effect from 29th December, 1978 was ineffective. This is how the trial Judge put this decision in her judgment:-
“A retrospective effect given to the operative date of the plaintiffs dismissal in this case, would if upheld by court result in impairing or prejudicing accrued or existing right, interests, concluded transactions and impose obligations-just to mention a few of the disadvantages. It is recalled that learned counsel for the Bank submitted that it was proper for the bank to back-date the dismissal period to take effect from the date of the misconduct. There is no known authority in support of this. A contrary decision is made on the point in the case of Healey v. Societe Anoyme Francaise Rubastic (1917) 1 K.B. 946 where it was held that the contract of employment exists up till the time of dismissal and that the right to determine it by reason of antecedent misconduct subsequently discovered does not entitle the defendants to treat it as determined from any earlier date. I consider this authority as decisive on the question posed by retrospective date of a dismissal. In effect it settles the point that the retrospective effect of dismissal date is wrongful even if it is related back to the date of the antecedent misconduct that subsequently resulted in the dismissal. The decision and that in N. T. C. v. William (Supra) leave me in no doubt that the Bank is not entitled to dismiss the plaintiff with retrospective effect. The effective date is invalid and the invalidity runs through the dismissal itself. I accordingly hold that the plaintiff’s dismissal was wrongful. It follows therefore that the plaintiff’s appointment with the Bank subsisted until the 20th June, 1979 when the letter of dismissal was written (and presumably served on the plaintiff) and not the 29th December, 1978 (the retrospective date.”
Based on these last findings, the learned trial Judge held that the defendant Bank had wrongfully put an end to the contract of service between it and the plaintiff, and was therefore liable in damages to the plaintiff which the trial Judge assessed in the manner indicated earlier on in this case.
I have indicated above, the aspects of the judgment of the learned trial Judge which were unsatisfactory to the plaintiff. The defendant Bank is saying in the main appeal that the trial judge is wrong in holding that it had wrongfully put an end to the contract of employment.
I think I should start with the plaintiff’s cross-appeal. For the thrust of the submission of counsel for the defendant Bank that the learned trial Judge was wrong in holding that the defendant Bank had wrongfully put an end to contract of employment at issue in this case is based on the finding of the learned trial Judge that the plaintiff’s conduct about which the defendant Bank complained was gross enough to justify his summary dismissal under Clause 9 (i) of Exh. ‘E’, the condition of employment between the plaintiff and the defendant. In the cross-appeal of the plaintiff, he has challenged this finding of the learned trial Judge. This is why I am taking the cross-appeal first, and this is why also I have quoted copiously from the judgment of the learned trial Judge to show how she arrived at that conclusion of hers. It is pertinent to note that the learned trial judge in her judgment credited the plaintiff with giving evidence to the following effect:-
“It is true that I have verified both drafts in question despite obvious irregularities in the signatures of the signatories.”
It is not alleged or suggested to us that the learned trial Judge misdirected herself on the evidence of the plaintiff in this regard. This evidence related to the second forged draft Exh. ‘H’ verified by the plaintiff on 24th August, 1978. As regards the first forged draft Exh. ‘K’, what the learned trial judge said about it, I have set down above. I need to repeat here for ease of reference, the following portion of the judgment touching the issue of negligence:-
“The forged signature of the Manager appear so genuine that the plaintiff would not have been held negligent for verifying as such. Unfortunately, the same could not be said of the purported signature of the Branch Accountant which was obvious forgery when compared with the specimen signature Exh. ‘L3’. The Accountant denied signing the draft and the plaintiff himself said he detected the dissimilarity when the beneficiary of the draft presented it to him at Makurdi Branch for encashment. He consequently rejected the draft and made an endorsement in red biro on the stating draft “Second signature Irregular” and handed the draft over to the Alhaji and advised him to take it to Benin for regularisation. On the 28th August, the draft was represented by the Alhaji. This time the plaintiff observed that it bore a third signature purported to be that of Mr. C. I. Igure an accountant of category B signatory in Exh. ‘K’. The earlier rejected second signature was still on the draft uncancelled and unrectified. The plaintiff nevertheless accepted the draft and cancelled the endorsement he earlier made (about the second signature being irregular) and thereby validating the irregular signature. He presented the draft bearing the three signatures to the Manager to authorise payment. Another curious aspect of the draft is that the 2nd signature said to have been appended Mr. C. I. Igure was patently irregular as it was not similar to Mr. Igure’s specimen signature in Exh. ‘L’. It does not require any hand-writing analyst to prove the dissimilarities.”
Again, it is not suggested to us that the learned trial judge misdirected herself on the facts before her in the above passage from her judgment.
Having regard to what I have said above, I am satisfied that the learned trial Judge was right in her findings that the plaintiff was negligent in verifying Exh. ‘K’ and ‘K1’ as genuine.
The learned trial Judge proceeded to hold that the negligence was gross enough to amount to misconduct, justifying summary dismissal of the plaintiff.In deciding whether the trial Judge was right or wrong in this view, I shall permit myself to be guided by following cases:
Clouston & Co. Ltd. v. Cory, 1906, A. C. 122 and Jupiter General Insurance Co. v. Shroff 1937 3 ALL E. R. 67.
In Clouston & Co. Ltd. v. Cory, Lord James of Hereford said at page 129:-
“Now the sufficiency of the justification depended upon the extent of misconduct. There is fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a service which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfillment of the express or implied conditions of service will justify dismissal. Certainly when the alleged misconduct consists of drunkenness there must be considerable difficulty in determining the extent of conditions of intoxication which will establish a justification for dismissal. The intoxication may be habitual and gross, and directly interfere with the business of the employer or with ability of the servant to render due service. But it may be an isolated act committed under circumstances of festivity and in no way connected with or affecting the employer’s business. In such a case, the question whether the misconduct proved establishes the right to dismiss the servant must depend upon fact, – and is a question raised in the present case had to be tried by the jury.”
It is clear from the above passage from his judgment, that Lord James of Hereford was saying that misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.
The following statement of Lord Evershed M. R. in Laws v. London Chronicle (Indicator Newspapers Ltd.) 1959 1 W.L.R. 698 at 700 also bears out this point.
“The question must be – if summary dismissal is claimed to be justifiable whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is no doubt, therefore, generally true that willful disobedience of lawful and reasonable order will justify summary dismissal since willful disobedience of a lawful and reasonable order shows a disregard – a complete disregard – of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that unless he does so the relationship is, so to speak, struck at permanently.”
It is recognised that the statement of principles governing good ground for the dismissal of a servant stated in Jupiter General Insurance Co. v. Shroff (Supra) is of importance. So I will permit myself to be guided by this statement on the aspect of the appeal before us which I am now considering. Lord Mangham, delivering the opinion of the Privy Council in the case said at pages 73 and 74:-
“Their Lordships recognise that the immediate dismissal of an employee is a strong measure … it can be in exceptional circumstance only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence…that in such cases one must apply the standards of men and not those of angels … placing all proper weight on these considerations their Lordships have to determine in view of the facts found by the trial Judge, apart of course from the vital finding that the circumstances justified dismissal, whether the misconduct of the respondent (servant) was not such as to interfere with and to prejudice the safe and proper conduct of the business of the company and therefore justify immediate dismissal.
It must be remembered that the test to be applied must vary with the nature of the business and the position held by the employee, and that decisions in other cases are of little value. ”
Bearing in mind the above authorities, and having ‘regard to the position of the plaintiff in the defendant’s establishment, and having regard too to the nature of the business of the defendant which is that of Banking, I cannot say that the learned trial Judge was wrong in holding that the negligence of the plaintiff in verifying, as genuine, two forged drafts in the circumstances she has described in her judgment, was not misconduct, gross enough to justify the plaintiff’s summary dismissal. This disposes of the complaint of the plaintiff against the finding of the learned trial Judge that he was guilty of misconduct justifying his summary dismissal.
I will now take the ground of appeal which complained about the finding of the learned trial Judge that there was no breach of rules of natural justice in the deliberations leading up to the plaintiff’s dismissal. I am afraid, I cannot agree with the learned trial Judge in this regard. The learned trial Judge based her findings on the evidence of P.W.1. This witness in talking about the deliberations which led up to the dismissal of the plaintiff said inter alia as follows:-
“Personnel department includes recruitment staff development and welfare, staff discipline, promotions and all matters touching upon the conditions of service for the staff. Usually my department is aware of matters requiring disciplinary action only after the inspectorate department had referred the case to me namely query and reply and assemble the facts as regards and there summon a meeting of the disciplinary committee. All fact of the case are submitted by the Inspectorate department to my department. We acted upon the inspector’s written outcome of the investigation, the query and the reply. The Assistant General Manager in charge of the Inspectorate division is the member of the disciplinary committee and it is his section through authorised inspector of any grade that issues query. The Chief Inspector is not a member of the disciplinary committee and did not participate in the proceedings in which the plaintiff was dismissed but he wrote the letter of suspension.”
(Italics mine)
From that passage, it is clear that in taking the disciplinary action against the plaintiff, the disciplinary committee acted upon (1) the Inspector’s written outcome of an investigation he conducted, (2) the query the committee gave the plaintiff and (3) his reply to it. It is equally clear that the written report of the inspector upon which the disciplinary committee acted was not communicated to the plaintiff for him to comment on it. It is clear from the decision of the Supreme Court in Adedeji v. Police Commission 1967 1 All NLR 67 that a domestic tribunal like the disciplinary committee we are dealing with in this case must, in its deliberation over disciplinary action, observe the rules of natural justice and that the rules of natural justice also implied that the party who is subject of the enquiry must know, not only the charge against him but also be given adequate opportunity to answer anything that is said against him. At pages 74 at 75 of the report, the Supreme Court said:-
“The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself. As the Privy Council put it in the case of Kanda v. Government of the Federations of Malaya (1962) A.C. 322 at page 337-
“If the right to be heard is to be a real right which is worth anything, it must carry with it right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.”
Again in the case of Board of Education v. Rice and others (1911) A.C. 179, referred to by the learned Chief Justice, Lord Loreburn L. C. at page 182 of the report, after stating the powers given by recent statutes to departments of Governments and tribunals with quasi-judicial powers said:-
“They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views…”
It is therefore because the report of the inspector upon which the disciplinary committee acted in taking a decision against the plaintiff was not communicated to the latter, that I hold that there had been a breach of rules of natural justice in this case.
I therefore hold that the contention in cross-appeal that the learned trial Judge was wrong in holding that there had been no breach of the rules of natural justice in the deliberations of the disciplinary committee set up by the defendant Bank must be upheld. This,however,is not the end of this case. The disciplinary committee which investigated the case against the plaintiff was set up by the defendant Bank by virtue of Clause 9(i) of the conditions of service governing the Contract of service between the plaintiff and the defendant. As I have said, it is implicit in this condition that the committee must follow the rules of natural justice. In so far as I have held that the committee has breached the rules of natural justice, it cannot be said that the committee had followed the correct procedure before recommending that the plaintiff be summarily dismissed from the service of the defendant. If the committee had followed the correct procedure, and had recommended the dismissal of the plaintiff, the decision of the committee would have been sufficient answer to the action of the plaintiff for damages for wrongful dismissal.
But the fact that in my judgment that there had been a procedural breach in the deliberation of the committee which recommended the dismissal of the plaintiff does not mean that the plaintiff’s case must succeed in the circumstances existing in this case. For the defendant led evidence before the trial court to show that the plaintiff was guilty of gross misconduct which would justify his summary dismissal. In Adamo Gbolade Adeko v. Ijebu-Ode District Council 1962 1 All NLR. 220, the Supreme Court held that the failure to accord a confirmed Local Government employee whose conditions of employment were governed by the Western Nigeria Local Government Regulations an opportunity to be heard prior to his being summarily dismissed did not deprive the Court of its jurisdiction to inquire into whether there existed just cause or excuse for his dismissal.
The learned trial Judge did inquire into whether there existed just cause or excuse for the plaintiff’s dismissal. In so far as I have held that the plaintiff has not persuaded me that the trial Judge was wrong in her findings that the plaintiff was guilty of gross misconduct which will justify his summary dismissal, I can now go on to consider the main appeal by the defendant Bank based, as I have said, on this finding about which the plaintiff complained. This is all I need say about the plaintiff’s cross-appeal, which in essence, in my judgment, fails.
The issue raised by the defendant Bank in its main appeal is straight forward, and it is as follows: whether the summary dismissal of the plaintiff by the defendant Bank was wrong by reason of the fact that the effective date of the dismissal was made retrospective. Counsel’s submission on this point is that the learned trial Judge wrongly took the view that the defendant Bank was terminating the contract of service between it and the plaintiff by giving the latter notice of termination of the contract.
The Bank had the right to terminate, by notice, the contract under Clause 4 paragraph 3 of the conditions Exh. ‘H’ which provides as follows:-
“Appointment of permanent staff may be terminated by either the staff or the Bank on the giving of a month notice, or payment of a month’s salary in lieu of notice, provided that in the case of management staff the notice shall be three months salary in lieu of notice thereof.”
It is the submission of counsel that the case of N. T. C. Ltd. v. David O. William 1475 NNLR 204, upon which the learned trial Judge relied for holding that the summary dismissal was invalid because the effective date of the dismissal was made retrospective would apply if the defendant were praying in aid, the provision of Clause 4 paragraph 3 of the conditions of service for their right to terminate the contract of service in question in this case. Counsel submitted that the defendant was not terminating the contract by notice to the plaintiff but the defendant summarily dismissed the plaintiff. The later situation according to counsel, is provided for by Clause 9 Sub Clause (i) of the conditions of employment between the plaintiff which empowers the Bank to dismiss without any entitlement, any staff who commits:-
“any offence which may be adjudged by management or the Board of Directors as gross misconduct…
There is no doubt, in my mind, that counsel for the Bank is right that the case of the Bank is based on Clause 4 Sub-Clause (i) of the conditions of employment, Exh. ‘E’. Paragraph 4 of the amended statement of defence bears this out clearly.
It appears clear too, from paragraph 10 of the plaintiff’s statement of claim that the plaintiff was relying on Clause 4 paragraph 3 of the conditions of service which I have copied above and Clause 4 Paragraph 4 of the same conditions which says:-
“Before a written warning is issued, the staff concerned shall be given an opportunity of stating his case in writing.
A staff member’s appointment may he dismissed if within the period of twelve months he or she has been found guilty on one occasion of committing any offence for which a warning letter has been issued.”
for his contention that the termination of his appointment by the defendant Bank was wrongful. The learned trial Judge in her judgment held, as I have shown earlier on in this judgment, and rightly too, in my view that the plaintiffs conduct was gross enough to justify his summary dismissal under Clause 9(i) of the conditions of employment relied upon by the Bank. What was done by the Bank here was that the dismissal was with retrospective effect.
The letter of dismissal of 20th June, 1979 from the Bank to the plaintiff was said to be with effect from 29th December, 1978. Dealing with this aspect of the letter which made the effective date of the dismissal 29th December, 1978, the learned trial Judge said.
“The plaintiff’s appointment with the Bank subsisted until the 20th June, 1979 when the letter of dismissal was written and presumably served on the plaintiff and not the 29th December, 1978 (the retrospective date).”
I entirely agree with the learned trial Judge on this view of hers. In this passage from the judgment of the learned trial Judge, in my view, held that the effective date of the dismissal of the plaintiff from the services of the defendant was 28th June, 1979 and not 29th December, 1978 which was indicated in the letter of dismissal written to the plaintiff. Where I part company with the learned trial Judge is the earlier finding of hers to the effect that the effective date in the letter of dismissal which she held to be invalid invalidates the whole of the grounds upon which the defendant relies for dismissing the plaintiff. It is to be remembered that the defendant’s case was that it dismissed the plaintiff for misconduct. The lower Court had found and I agree with it that the misconduct justified the summary dismissal of the plaintiff. The plaintiff worked for the defendant up to 28th June, 1979 which was held by the lower court to be the effective date of the dismissal of the plaintiff. The case of Healey v. Societe Anonyme Francaise Ribastic (1917) 1 KB 946 when applied to the case in hand only means that the summary dismissal of the plaintiff by the defendant was good as from 28th June, 1979 and not as from the earlier date during which period the plaintiff had worked for the defendant, that is to say, 29th December, 1978. So, applying Healey’s case, the plaintiff is entitled to keep his salary or claim arrears of salary due to him if he had not been paid for the period between 29th December, 1978 and 28th June, 1979. But this is not the position here. The learned trial Judge treated Healey’s case as an authority for saying that the dismissal for misconduct is invalid once the dismissal was made with retrospective effect. I do not think that authority decides that. What it decides, in my view, I have just stated above.
The conclusion I reach therefore, is that the learned trial Judge having rightly, held, in my view, that the plaintiffs misconduct justified his summary dismissal under Clause 9(i) of the conditions of service was wrong to have held again that the plaintiff is entitled to one month’s notice of termination of his appointment or one month’s salary in lieu thereof, as stipulated in Clause 4 Sub-Clause 3 of the contract of employment, Exh. ‘E’ What the plaintiff in the circumstances of this case would have claimed if the ground exists for such claim is his arrears of salary between the ineffective date of the dismissal and the effective date thereof. As I have said, this is not the case here. In the case of summary dismissal under Clause 9(i) of the conditions of employment, the defendant Bank can dismiss the plaintiff without any entitlement.
Because of this too, the trial Judge is not entitled to give the plaintiff any entitlement due to him under Exh. ‘H’. The learned trial Judge having held that the misconduct of the plaintiff justified his summary dismissal by the defendant Bank, should have dismissed claims 1 and 2 of the plaintiff’s claims which I have copied earlier on in this judgment.
The Claim for N4, 450.90 is for special damages for unlawful termination of contract. On the findings of the learned trial Judge that the summary dismissal was justified, the claim for damages for unlawful termination or dismissal cannot be sustained. In the result, the defendant Bank’s appeal is allowed by me. The judgment of the learned trial Judge in favour of the plaintiff is hereby set aside by me. In its place, I enter an order dismissing the plaintiff’s action.
Before I part with this judgment, I should say a word about the following heads of claim under special damages for wrongful termination of contract. The heads of claims are as follows:-
“(ii) Remainder of half salary from 3rd January, 1979 to 20th June, 1979 (212.00) half month pay….N1,275.00
(iii) Remainder of half car Allowance from 3rd January, 1979 to 20th June, 1979 (N83.33 per month).. N249.90
(iv) Remainder of half Housing Allowance from 3rd January, 1979 to 20th June, 1979 (N100.00) per month….N300.00
(v) Refund of Pension contribution from January, 1974 to 20th June, 1979 at N18.00 per month N1, 188.00”
These claims relate to the period between the ineffective date of dismissal and the effective date thereof. These claims cannot sound in damages for wrongful dismissal. These heads of claims properly speaking are grounded, in my view, in a claim for debt and not in one for damages. In this regard, I refer to Halsbury’s Laws of England 4th Edition, Volume 12 page 413 paragraph 1103 which says:-
“1103. Damages distinguished from other kinds of money payment. Damages as defined in the previous paragraph are distinguishable from debt, and from a sum payable under contractual liability to pay a sum certain on a given event (other than breach), but include sums payable under claims for a reasonable price or remuneration for goods sold or services rendered and under claims under an insurance policy when the quantum of damage has been proved.Damages are also distinguishable from compensation, from a penalty and from costs.”
This is why I cannot see my way clear to awarding the heads of claim in action before the Court, which is for damages for wrongful dismissal. The defendant is entitled to the costs of this appeal which I assess at N300.00 and the costs in the Court below which I assess at N200.00 against the plaintiff.
Other Citations: (1985) LCN/0016(CA)
