Simon Ansambe V. Bank of the North Ltd (2004)
LawGlobal-Hub Lead Judgment Report
ALOMA MARIAM MUKHTAR, J.C.A.
In his amended statement of claim, which supercedes the writ of summons (See Lahan v. Lajoyetan 1972, 6 S.C. 190) the appellant who was a plaintiff in the High Court of Justice of Plateau State claimed from the defendant the following reliefs, emanating from wrongful dismissal:
(a) The sum of N1,711,844:20k being entitlements both accrued and accruable.
(b) The sum of N288,155,80k being general damages for unlawful dismissal.
The appellant/plaintiff’s case as per his statement of claim is that he was summarily dismissed vide a letter dated 18th December, 1991, by the respondent bank, whom he had served in various capacities from January, 1974, when he was appointed. According to the appellant, the purported dismissal was null, void and of no effect, as it was contrary to the provisions of the senior staff collective agreement of 28th November, 1990. The appellant enumerated all monetary claims he was deprived of on his dismissal, and his entitlement to the claims in the statement of claim.
The respondent/defendant in its further amended statement of defence denied most of the allegations in the appellant’s pleadings, and alleged that the plaintiff adopted a deliberate carelessness towards his official duties towards the end of his career to the extent that it had to serve him with a letter of caution. The respondent stated the various acts of misconduct which led to the summary dismissal of the appellant from its service. The plaintiff gave evidence in proof of his claim and closed his case. The respondent/defendant adduced evidence, and both counsel for the parties addressed the court.
The learned trial Judge after evaluating the evidence found the plaintiff’s claim not proved, and dismissed it. Unhappy with the dismissal, the plaintiff appealed to this court originally on 3 grounds of appeal which were increased to 5 vide the order of this court of 26/11/2003. In compliance with Order 6 rules (2) and (4) of the Court of Appeal Rules, 2002.
Learned Counsel for the parties exchanged briefs of argument which were adopted at the hearing of the appeal. The appellant in his brief of argument raised three issues for determination, which read:
(1) Whether the purported dismissal is in conformity with the collective agreement and if not what is the validity of such a dismissal.
(2) Whether the allegations against the appellant were criminal in nature and if the allegations were criminal in nature, was the appellant given a fair hearing as required by law before his purported dismissal.
(3) Whether the appellant is entitled to the claims put forward by him.
In its own brief of argument the respondent raised the following three issues for determination:
(1) Whether the appellant’s dismissal was valid.
(2) Whether the appellant was denied fair hearing.
(3) Whether the appellant is entitled to any damages at all.
I will adopt the issues in the appellant’s brief of argument for the treatment of this appeal, and will start with issue (1) supra. The argument under this issue revolves around exhibit ‘A’, which learned Counsel for the appellant, has argued is a collective agreement which the parties are signatories to. Both parties have agreed that exhibit ‘A’ is binding on them. I will look at the said exhibit ‘A’ particularly Part II Article 4, which provides for disciplinary procedure later in the judgment.
Learned Counsel for the appellant has argued that the allegation contained in exhibit A14 and paragraph 11 of the respondent’s further amended statement of defence, which were not even proved at the trial, are not specified in article 4 of part II of exhibit ‘A’, but the pertinent question I would like to ask at this juncture is, did the appellant prove his own case, to warrant the shifting of the onus of proof. To do justice to this discussion, I will reproduce the relevant averments in the appellant’s amended statement of claim, and look at the relevant evidence supporting them.
These averments read:
(6) The purported dismissal of the plaintiff is null, void and of no effect whatsoever being contrary to the provision of the senior staff collective agreement as contained in the main collective agreement of 28th day of November, 1990.
(14) The plaintiff shall contend that he did not commit any offence meriting summary dismissal in conformity with the collective agreement. And further if, so, it was not drawn to him and its gravity nor afforded a fair hearing in any such allegation of conduct warranting summary dismissal.
(15) At all times material to this action, the defendant had no powers under the collective agreement to summarily dismiss the plaintiff as conditions for such had not been agreed upon vide the collective agreement.
It is on record that the appellant tendered exhibit ‘A’, the said collective agreement. It is also on record that the respondent admitted that the appellant was summarily dismissed. Still, on the subject of summary dismissal, what is contained in exhibit ‘A’, part 11 section 1(iv) is, ‘Summary Dismissal’, and under it, ‘No agreement’. What then, is the meaning of this? By adding the words ‘summary dismissal’, in my opinion suggests that exhibit ‘A’ recognizes that summary dismissal does exist, and there would be such situation, even in the respondent’s organization but no agreement has been reached on such eventuality.
It is the submission of learned Counsel for the respondent that although, the court cannot look outside the contract of service, (exhibit ‘A’ in this case) for its terms and conditions, the court can nevertheless, gather such terms from other sources which can be incorporated by reference to contract as the case may be. He placed reliance on the case of Chief Tamunowmi Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt.805) 589, (2003) 1 SCNJ page 87. It is counsel’s view that the provisions of exhibit ‘A’ must be read as a whole.
To my mind, even though conditions have not been agreed upon for such summary dismissal, the fact still remains that the parties recognize the fact that there is such thing as summary dismissal, otherwise exhibit ‘A’ would have been absolutely silent on it, so even though the appellant proved that he was summarily dismissed, did he actually prove that he was summarily dismissed wrongly, in the circumstances? I think not; and I disagree with the contention of learned Counsel for the appellant that since exhibit’ A’, the governing terms of the relationship between the parties did not provide for summary dismissal, the respondent has no power to dismiss, and the dismissal violates the terms of this relationship and such dismissal is null and void.
The case of Dr. Chukwumah v. Shell (1993) 4 NWLR (Pt.289) page 512 cited by learned Counsel is not of great importance to this discussion and case. The above discussion is on the propriety or otherwise of the summary dismissal of the appellant in as far as the nature of the dismissal is concerned. In view of the supra reasonings, I would say the appellant did not prove that the dismissal was null and void to warrant the onus to shift on the respondent, and so I have proffered an answer to my earlier question. it is a cardinal principle of law that the onus or burden of proof does not shift to a defendant, until it has been proved by a plaintiff with reliable and credible evidence. See Obora v R.S.H. & P.D.A. (1997) 9 NWLR (Pt. 521) page 425, Agu v. Nnadi (2002) 18 NWLR (Pt. 798) page 103; and Ibori v. Agbi (2004) 6 NWLR (Pt. 868) page 78.
The argument of the appellant that the respondent did not prove its allegations is weak, for another cardinal principle of law is that a party will not rely on the weakness of the case of his opponent to succeed. He definitely must first prove his case first. See Woluchem v. Gudi (1981) 5 SC 291.
As a matter of fact I draw solace from the words of Uwaifo, JSC in the Idoniboye-Obu’s case supra on pages 108-109, which reads:
“A servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: See Amodu v. Amode (1990) 5 NWLR, (Pt.150) page 356, Katto J. v. Central Bank of Nigeria (1999) 6 NWLR (Pt.607) page 390. Okonu Oil Palm Co. Ltd. v. I serhienrhien (supra) at 673 – 674. In the same vein, the court is not entitled to look outside the contract of service as to the terms and conditions. These must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract as the case may be. It is the best and only way of deciding the rights of the parties under the contract ” (Italicising above is mine).
Learned Counsel for the respondent has taken advantage of the latter of the above passage of the judgment, by squeezing in the provision of Section 9(7)(c) of the Labour Act, Cap. 198 Laws of the Federation of Nigeria, 1990, which he related to article 2 part III section 2 of exhibit ‘A’ which states:
“The association and the union further agreed that both parties, including their members, shall be bound by any relevant government legislation and incomes policy guidelines which are in force during the life of this agreement”.
By the above provision, it is clear that the respondent has established that the parties are subject to other provisions apart from what is contained in exhibit ‘A’.
I will reproduce the said section 9 of the Labour Law referred to by learned counsel, hereunder. It reads:-
(7) A contract shall be terminated –
(a) by the expiry of the period for which it was made; or
(b) by the death of the worker before the expiry of that period; or
(c) by notice in accordance with section 11 of this Act or in any other way in which a contract is legally terminable or held to be terminated.
Subsection (5) of section (II) which is the material provision to this discussion reads as follows:
(5) Nothing in this section, affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this act.
The above provision talks of rights of dismissal in any circumstance.
Again, learned Counsel for the appellant referred to section 19(i)(a) of the banks and other financial institutions Act, 1991 which reads:
19(i) No bank shall –
(a) employ or continue the employment of any person, who is or at any time has been adjudged bankrupt or has suspended payment to or has compounded with his creditors or who is or has been convicted by a court for an offence involving fraud of dishonesty, or professional misconduct.
The misconduct alleged by the respondent against the appellant are contained in paragraph (II) of the further amended statement of defence. At this juncture, I will set out the content of paragraph (II) of the said pleadings supra. The averment reads:
(II) The defendant denies paragraphs 14, 15 and 16 of the statement of claim and avers that:
(a) The plaintiff’s misconduct were numerous and equally grievous enough which under the circumstances warranted the defendant to summarily dismiss the plaintiff.
Particulars of Misconduct
(i) Irregular diversion of payments by the plaintiff from customer’s classified bad and doubtful account of Mr. Danladi Shemu (account No. 40017) for purposes of unduly benefiting the customer, while depriving the defendant of well deserved profits;
(ii) Receiving money from various customers especially Alhaji Sidi and giving it to another customer (Danladi Shemu) as loan contrary to normal banking practice;
(iii) The plaintiff accepted and diverted customer’s funds vide dividend warrants into his plaintiffs) personal staff current account No. 480050 and further receiving the sum of N14,000.00 into his savings, account No. 8443, thereby deriving personal benefits;
(iv) Granting unauthorized loans to customers by the plaintiff. The documents of transaction are hereby pleaded.
(v) Drawing housing allowance by the plaintiff, when he was comfortably accommodated in a decent house rented and paid for by the defendant;
(vi) The defendant shall at the trial rely on the cheques, vouchers and ledgers relating to this matter and hereby pleads them;
(vii) The defendant avers that all the matters specified in the particulars of misconduct herein constitute professional misconduct of the first degree, the consequence of which is summary dismissal in the financial industry in Nigeria and the world over;
(viii) The conduct of the plaintiff was highly in conflict with the defendant’s interest which the plaintiff was bound to protect;
It is a fact that the offences for which the appellant was dismissed are contained in exhibit A14. exhibit A14, an internal memo addressed to the appellant from the Chief Inspector are comprehensive and clear enough. Very clearly, a majority of the allegations of gross misconduct in paragraph (II) reproduced above, have been proved vide exhibit A14.
I disagree with the contention of learned Counsel for the appellant that the allegations in paragraph (II) of the amended statement of defence are contradictory of the ones in exhibit A14, and even though I have dealt with the duty of the respondent on proof, DW1 did testify on the reason of the dismissal of the appellant, thus:
“DW1 was dismissed because of acts of gross misconduct… In banking industry, once a staff diverted (sic) an action in conflict with his laid down rule the bank has the right to dismiss such an officer. The bank can dismiss any officer who has done a misconduct without an agreement. However, there are other rules and regulations binding banks and other financial institutions issued by the CBN. The bank can dismiss a person under the financial institutions’ (banking customs and practice)”.
In the light of these discussions issue (1) in the appellant’s brief of argument is resolved in favour of the respondent and so grounds of appeal Nos. (1), (2) and (3) are dismissed as they fail.
I now proceed to the second issue for determination. In arguing this issue, learned Counsel for the appellant has postulated that the allegations against the appellant border on the commission of various criminal offences known to the Nigerian Penal Code System. According to him the effect of the entire allegations is that the appellant engaged in fraudulent acts and breached the trust reposed in him. He referred to Sections 311-315 of the Penal Code, and the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) page 550.
Learned Counsel for the respondent has submitted that the allegations for which the appellant was dismissed was not criminal in nature, but merely gross misconduct, and that act of misconduct may not necessarily be a criminal Act. He placed reliance on the case of University of Ilorin v. Idowu Oluwadere (2003) 3 NWLR (Pt.808) page 557. The allegations and complaints that led to the dismissal of the appellant are contained in exhibit A14, and I will reproduce the content (If the said exhibit A14 here below.
It reads:
“Irregular Diversion of payments/Recoveries from some Bad and Doubtful Accounts in your Breach by yourself Investigation conducted sequel to the petition received by us, alleging serious malpractices against you in respect of the above subject has firmly confirmed that:
1.i) Pankshin Local Government cheque No. 429077 for N25,000.00, drawn payable to Danladi Shemu, holder of classified bad and doubtful overdraft account No. 400005, was authorized by your goodself and irregularly paid to him over the counter on 3rd June, 1991, instead of lodging same to his account to reduce the balance of N193,694.90 outstanding against him.
1.ii) You authorized Pankshin Local Government cheque No. 426715 for N14,929.60, issued to Danladi Shemu and after its encashment on 12th November, 1990, a sum of N14.000.00 was simultaneously credited to your savings account No. 8443.
1.iii) Dividend warrant for N1,077.98, issued in favour of Danladi Shemu was irregularly diverted by you and credited to your current account No. 480050 on 10th September, 1990, and you subsequently paid N800.00 to the bona-fide owner, (Danladi Shemu), on the same date as evidenced by your cheque No. 201869.
As a Branch Manager, it is your primary responsibility to vigorously pursue recoveries of Bad and Doubtful accounts. In this regard:
(a) You should explain why the above payments were diverted and not paid to payee’s classified bad and doubtful account No. 40005 in accordance with the bank’s established policy.
(b) As it is against the rules and regulations of the bank, for any staff to accept for lodgment into his account, cheques issued in favour of another person, you should explain on what basis you accepted the cheque and dividend warrant in 1.ii) and 1.iii) above and credited their values to your personal account.
(2) Similarly, on 14th November, 1990, James Gombwer, holder of bad and doubtful overdraft account No. 400017 brought a CBN cheque No. 784001 for N32,721.21 to the bank. Very unfortunately, instead of the cheque to be lodged to his classified bad account, you allowed a new savings account No.9273 to be opened by the customer. The cheque was then lodged into the new savings account and granted direct credit facility by your goodself. Thereafter, you authorized N10,000.00 to be transferred to the account of Mr. Gombwer’s wife, while only N5,000.00 was credited to the payee’s classified bad account. The remaining balance was encashed by James Gombwer.
You should explain why the cheque was not credited to the customer’s classified bad overdraft account No40017 to off set part of the balance of N118.136.76 outstanding against him.
(3) You should explain on whose authority you are drawing housing allowance as you are provided with accommodation by the bank. You should please, ensure that your reply is submitted to the undersigned, latest by the close of business today, 4th July 1991”.
Going through the above, I fail to see that there is anything criminal in nature, in all the allegations, other than gross misconduct and acts of disloyalty to the appellant’s employer, the respondent. What the appellant did was to act contrary to the practice and laid down rules of the bank to which he was very familiar with. He hadn’t the interest of his employers at heart, and so adopted nonchalant attitude towards the discharge of his duties, which the respondent could no longer tolerate, and rightly put an end to all his mischievous antics.
The fact that the appellant was not interested in protecting the interests of the respondent is clearly written in exhibits A3, A5, A6, A9 etc. If every staff of the bank adopts the attitude of the appellant to work for the bank, I wonder what could have become of the bank before that 1991. I therefore hold that the allegations are not criminal in nature, and so I subscribe to the following finding of the learned trial Judge where he said inter alia:
“Looking further at exhibits A12 and A14, both bordered on irregular cash withdrawals irregular diversion of payments from some bad accounts. These allegations in my view are not criminal in nature”.
Another grouse of the appellant was that he was not given fair healing before the purported dismissal, which still renders the purported dismissal null and void.
At the end of exhibit A14 is the following directive:
“You should please ensure that your reply is submitted to the undersigned, latest by the close of business today, 4th July, 1991 “.
The above to my mind, is a clear indication that he was given the opportunity to put forward his case or defence in respect of the allegation of various misconduct. In reply to the query and allegations in exhibit A14, the appellant wrote exhibit A13. Exhibit A13 commenced with an admission of the allegations in exhibit A14, thus:
“I accept that all the issues related in the memo are true. But all my actions were taken in good faith for the following reasons…”
The reasons stated in the main body of exhibit A13 are in my opinion not satisfactory as to exonerate the appellant of blame and guilt of misconduct, and obviously the respondent was also not satisfied, for thereafter it dismissed the appellant summarily, as is evidenced in exhibit Al an internal memo, dated 11th September, 1991. An important and material paragraph of exhibit A1 reads the following:
“However, we have gone through the attached papers and subsequently both myself and the Deputy General Manager (Northern Operations) had (on 4/9/91) joint discussions and area managers, Jos and Bauchi, on the matter. The unanimous opinion and consensus of all the four of us is that no matter what, the managers action is highly disturbing and were all bordering (sic) on out right dishonesty and lack of genuine interest for the bank, hence, he should be removed immediately and his case be referred to Senior Staff Advisory Committee for determination”.
The bank was however, not hasty in dismissing the appellant for he was not dismissed until three months thereafter. My view is that it was not as though the respondent was too eager to get rid of the appellant, for on previous occasion he had been cautioned on his ineptitude and attitude to work, as is evidenced in exhibit A5. I think the appellant was given the opportunity to be heard, and he was heard, the fact that his explanation was not found to be satisfactory does not mean that he was not availed the principle of fair hearing.
In this respect the learned trial Judge was right when he found thus:
“Here, I find that by exhibit A5 and A12 the plaintiffs attention was drawn to his initial short coming which led to his being cautioned. Similarly, by exhibit A14 the plaintiff was yet formally given a query which he replied as in exhibit A10 and A13. I find here also that by virtue of the caution, query, the answer and the consideration of same that led to his dismissal, fair hearing was complied with”.
At any rate, as learned Counsel for the respondent has argued, there was a clear admission of the allegations in exhibit A13, by the appellant, which I have also stated in the earlier part of this judgment. See the case of Raymond S. Dongtoe v Civil Service Commission Plateau State & Ors. (2001) 4 SCNJ 131; (2001) 9 NWLR (Pt.719) 132 cited by learned Counsel.
For the foregoing reasonings, I answer issue No. (2) in the negative, and that of fair hearing has already been answered above, that is to say the appellant was given fair hearing. Ground of appeal Nos. (4) and (5) to which the issue is married fail and they are hereby dismissed. As for the last issue for determination I have looked at both the original and amended notices of appeal, and no where therein, have I found a ground of appeal from which the issue has been distilled.
The position of the law is that an issue raised for determination that does not derive its source from a ground of appeal is a non-issue that should be struck out. In this respect, I hereby strike out the said issue No. (3), for it has no ground of appeal that it is married to. See Labiyi v. Anretiola (1992) 8 NWLR (Part 258) page 139, Bendel Insurance Co. Plc. v. B.C.M. Finance and Securities (Nig.) Ltd. (1997) 8 NWLR (Pt. 518) page 597 and C.C.B. (Nig.) Plc. v. Okpala (1997) 8 NWLR (Pt.518) page 673. In the event that I am wrong, I will deal with it for what its worth.
On the last issue for determination, learned Counsel for the appellant has postulated that if a servant is terminated contrary to or in violation of the terms of employment, the master must pay damages for the breach, and he placed reliance on the case of Ekpeogu v. Ashaka Cement (1997) 6 NWLR (Pt.508) Page 280. He further argued that the measure of damages is normally the amount plaintiff would have earned had the employment continued according to the contract. Again, he referred to the cases of Cooperative Bank v. Essien (2001) 4 NWLR (Pt.704) page 479 and Umoh v I.T.G.C. (2001) 4 NWLR (Pt.703) page 281.
Learned Counsel for the respondent has replied that the appellant was not entitled to damages or any amount by reasons of the propriety of the dismissal, but even if the appellant was to get damages such damages must be limited to the period between his dismissal which is 16th December, 1991 and 30th November, 1992, when exhibit A expired. It is a fact that exhibit ‘A’ was made to apply or exist for a period of two years, as contained in part III article 1(a) of exh. ‘A’, which reads:
(a) It is agreed that this agreement shall come into force and operate for two years from 1st December, 1990 to 30th November, 1992. It is further agreed that within twelve weeks to the expiry of this agreement, either party to the agreement may give the other at least six weeks notice in writing, of its wish to terminate or amend the agreement or any of its appendices, and in the event of an amendment, being proposed, will provide details of the proposed amendment”.
It may well be so, but having held that the dismissal of the appellant was valid, I do not see that the unnecessary flogging of this issue will take anybody anywhere. The appellant has not been terminated contrary to or in violation of exhibit ‘A’, as has been proved and found. In the circumstances no damages would have accrued to the appellant, as his dismissal has been found to be proper.
In the final analysis, this appeal fails in its entirety. The judgment of the lower court is hereby affirmed. I award N10,000 costs to the respondent, against the appellant.
Other Citations: (2004)LCN/1591(CA)
