Union Bank of Nigeria Plc V. Charles Olusola Toyinbo (2008)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE J.C.A.

In the High Court of Justice Ekiti State, in the Ado Ekiti Judicial Division, before Honourable Justice C. Akintayo, the Plaintiff (now Respondent/Cross-Appellant) instituted an action by way of writ of summons and in both his said writ and statement of claim sought for the following Reliefs;-

(1) A Declaration that the termination of the Plaintiff’s appointment vide a letter dated 8th day of January, 2001 is illegal unconstitutional, null and void and of no effect whatsoever.

(2) N50, 000, 00 (Fifty Million Naira) only special and general damages.

(3) Costs of this action

Issues were joined by the Defendant who filed her statement of Defence and counter-claim which was later amended. See pages 1-38 of the Records for details of the processes filed by the parties. In the course of trial the plaintiff testified for himself called no witness and tendered Exhibits A-Q, while the Defendant called a sole witness (one Saibu Oladadpo Saliu) the Debt Recovery Officer of the Defendant Bank and tendered Exhibits R-T in defence of the Plaintiffs claim and in proof of her counter-claim.

At the conclusion of hearing the Court granted all the Reliefs sought by the plaintiff and in consequence made the following orders:-

“1. It is hereby declared that the defendant’s letter dated 8th day of January, 2001, which purported to terminate the appointment of the plaintiff from services of the defendant, is illegal and wrongful.

“21 award a sum of N11, 682,738.00 to the plaintiff against the defendant representing loss of earnings for the year 2001-2020.

“3. I award a sum of N8, 000.000.00 to the plaintiff against the Defendant as general damages.

“4. I assess the cost of this action at N350, 000.00 in favour of the Plaintiff.

“5. The plaintiff shall pay the sum of N69, 407.20 to the plaintiff (read Defendant/counter claimant) by way of counter claim”

Aggrieved by the decision of the lower Court, the plaintiff (now Respondent) filed a notice of Appeal dated 21st day of June, 2006 which was withdrawn by a notice dated and filed the 26th day of June, 2006 and replaced with another Notice of Appeal of the same date from the Chambers of Kayode Ogunleye & Co.

The Appellant subsequently engaged the services of “Bola Ige & Co who filed a separate Notice of Appeal dated 7th day of September, 2006 and filed same date.

The Plaintiff/Respondent on his part filed a cross-Appeal dated the 19th of September, 2006 on the same date.

However, when this appeal came up for hearing on the 7th of May, 2008 the Cross-Appellant in line with page 4 of paragraph 1.9 of the Respondent/Cross Appellant’s Brief A.O. Odu Esq with him J. O. Alabi Esq the Learned Counsel to the Respondent/Cross-Appellant abandoned the Cross-Appeal and this court accordingly struck same out.

It needs only to be mentioned that parties had filed their respective Briefs in accordance with the Rules of court and in the Brief settled by Kolawole Esan Esq on behalf of the Appellant” the following issues were distilled:-

ISSUES FOR DETERMINATION

1. Whether, in the surrounding circumstances of the case before the Learned Trial Judge, the learned trial judge was not in error in placing reliance on Exhibit ‘D’ in coming to his conclusion in favour of the plaintiff.

(Ground 3 of the Appeal dated 7th day of September, 2006).

2. Whether the learned trial judge was not in error when he failed to hold that the appointment of the plaintiff had been lawfully terminate by the Defendant when the Defendant gave and the Plaintiff accepted a month’s salary in lieu of notice in addition to his terminal benefits (Ground 5 of the Appeal)

3. Was the learned trial judge right in basing the award of the sum of N11, 682,738.00 (Eleven Million, Six Hundred and Eighty-Two Thousand, Seven Hundred and Thirty Eight Naira only) as special damages in favour of the Plaintiff if the plaintiffs appointment had not been terminated?

(Ground 4 of the Grounds of Appeal).

4. Whether the award of General Damages in the sum of N8, 000,000.00 (Eight Million Naira) after the learned trial judge had awarded the sum of N11, 682,738.00 (Eleven Million, Six Hundred and Eighty-Two Thousand, Seven Hundred and Thirty Eight Naira) as loss of earnings in favour of the plaintiff/Respondent does not amount to double compensation and whether the learned trial judge had not violated the principle of award of damages in the circumstances (Ground 1 of the Grounds of Appeal.)

5. Was the award of the sum of N350, 000.00 (Three Hundred and Fifty Thousand Naira only) as costs in favour of the Plaintiff/Respondent justified in the circumstances of this case? (Ground 2 of the Grounds of Appeal)

It is also worthy to note that on the said 7th of May, 2008 in the course of hearing the Appeal, the Learned Counsel for the Appellant Ayekenle Elemo Esq moved and was granted the prayers in the motion for extension of time within which to file the Appellant’s Reply Brief and to deem the Reply Brief annexed to the motion paper and marked as Exhibit A to be duly filed and served on the Respondent.

The brief facts of this case are that the Respondent was by a letter dated 8th January, 2001 (Exhibit A) terminated from his employment by the Appellant after the said Respondent had put in seventeen years of meritorious services to the Appellant.

Respondent then appealed against his termination but the Appellants by Exhibit 1 dated 20th June, 2003 declined acceptance of the Appeal and reversal of the termination. Consequently, the Respondent commenced this action on the 9th day of April, 2003 challenging the termination of his said employment. At the trial, the Plaintiff gave evidence on his emoluments and perquisites of office while in the service of the Appellant at the end of which the trial Court gave the judgment that culminated in this judgment.

On the other hand, the case for the Defendant/Appellant is that the Respondent was a former worker with the Appellant (UNION BANK PLC). The genesis of the disagreement between the parties according to the Respondent’s witness was that the Respondent canceled his signature on a Bank Book after signing the said signature. The Bank thereby queried the Respondent who replied to same. Subsequently, the Appellant terminated the appointment of the Respondent by Exhibit A and paid the Respondent a month salary in lieu of notice and his terminal benefits.

The Plaintiff/Respondent was aid to have been employed as a staff of the Appellant in 1983 and that as at when he was employed there was a document regulating the parties’ relationship. The witness sought to tender the document for identification as the original was with the Appellant’s Bank but Counsel to the Respondent objected thereto and the Learned Counsel for the Appellant withdrew the said Document. Accordingly, the said document was withdrawn.

The witness also testified that while in the employ of the Appellant, the Respondent enjoyed some loan facilities from the Appellant which applications for the said loans were tendered as Exhibits 5 – 59. He added that the loan totalled up to N665, 350.00 adding that the terminal benefit of the respondent was paid to the Respondent through a voucher with which his account was credited. The document was however rejected upon the objection of the Learned Counsel to Respondent. However, the statement of Account indicating payment of the Respondent’s terminal benefits into the said Respondent’s Salary Account were tendered without objection and accordingly admitted as Exhibit ‘T’.

The Appellant contended that the Respondent was to repay a loan of N400, 457.31 while the amount of terminal benefit credited to his account was N347, 294.36k which meant that the Respondent was to pay back N69, 407.26 as at 18/4/01 but that in Exhibit ‘O’ the said terminal benefit of the Respondent was said to be N383, 882.82.

It was further contended by the Appellant that the indebtedness of the Plaintiff/Respondent to the bank as at 29/2/04 was N174, 068.09 because of unpaid accrued interest on the outstanding balance of N69, 407.28; at the rate of 2% which the Respondent was expected to pay as soon he left the services of the Bank.

As for Exhibit B tendered by the Respondent, he stated that the Respondent’s Account Number is 0421811148. The Plaintiff, the witness further stated was not entitled to the N50, 000,000.00 damages and Exhibit ‘D’ neither applies between the parties nor was Defendant/Appellant owing the Plaintiff any N100,000.00. The Court below was then urged to pay the Defendant the sum of N174, 068.09 with interest.

Arguing Issue Number 1 of the Appellant’s Issues as to whether the Learned trial Judge was not in error in placing reliance on Exhibit ‘D’ in coming to his conclusion in granting he Plaintiffs claims (GROUND 3 of the Grounds of Appeal), the Learned Counsel for the Appellant submitted that Exhibit D was an unsigned document by any of the parties to the suit and ought not to attract weight more so as the Plaintiff failed to lead evidence that the said Exhibit D was adopted as part of his terms of employment with the Defendant/Appellant.

Learned Counsel also drew the attention of the Court to the fact that the terms of employment of the Plaintiff with the Defendant/Appellant was not placed before the Court so as to show whether the said Exhibit D was adopted as part of the terms and conditions of his employment besides giving evidence that he was employed as a clerk on 7/3/83.

He cited DAODU V. UBA PLC (2004) 9 N.W.L.R. (Pt. 878) at 293B Per Adekeye J.C.A. on when a collective agreement will be binding on parties to submit that the failure to tender his letter of Appointment (his conditions of service) before the trial court was fatal to his case and the Learned trial Judge was in error in relying on the said Exhibit D to give Judgment to the Plaintiff. GARUBA V. K.I.C. LTD (2005) 5 N.W.L.R. (pt. 917) at 160 particularly 176 D was relied upon to buttress the above submission.

Further more, it was the Learned Counsel’s contention that:

1. That the said Exhibit D did not create any enforceable contractual obligations between the parties or in favour of the Respondent.

2. Neither the names nor signatures of the parties appeared on Exhibit D as the Respondent had admitted that the said Exhibit spoke for itself and it being an unsigned document could not have been used to resolve the crucial question in dispute.

3. The said Exhibit D is a Gentlemen’s Agreement which is not binding on the parties NEW NIGERIA BANK PLC VS. EGUN (2001) 7 N.W.L.R. (Pt. 711) at 18 D Per Niki Tobi J.C.A. (as he then was) quoting Ndoma – EGBA J.C.A. in NIGERIA – ARAB BANK LTD V. SHUAIBU (1991) 4 N.W.L.R. (pt. 186) 450 referred.

4. Exhibit D was not shown to be the initiatory document of employment of the Respondent with the Appellant so not to act in strict compliance with Exhibit D was not justiciable Thus the trial Court was wrong in relying solely on the said document in coming to the conclusion that the termination of the appointment of the Respondent was wrongful.

NEW NIGERIA BANK PLC. V. EGUN Supra at page 18 Per Niki Tobi J.C.A. (as he then was) was further relied upon to urge the Court to hold that the Learned Trial Judge was wrong in placing reliance on Exhibit D solely to arrive at the conclusion that the termination of the Respondent’s employment was wrongful.

ISSUE NUMBER TWO (2) is whether the Learned trial Judge was not in error when he failed to hold that the appointment of the (Plaintiff/Respondent) had been lawfully terminated by the Defendant when the Defendant/Appellant gave and the Respondent accepted a month’s salary in lieu of Notice in addition to his terminal benefits (GROUND 5 OF the GROUNDS OF APPEAL).

On this issue the Learned Counsel to the Appellant had argued that in the absence of the terms and conditions of employment of the Plaintiff/Respondent with the Appellant the Common Law Principle of a month’s Notice or salary in lieu of Notice is applicable Reliance was placed on NEPA VS. ADEYEMI (2007) 3 N.W.L.R. (pt. 1021) 315 at 336 G.C. and 338 A Per Akaahs J.C.A. and page 47 of the Record where it is shown in evidence that the Plaintiff/Respondent received a month’s salary in lieu of Notice and the terminal benefits and the trial Court so found and further at pages 160 of the Records together with paragraph 2 of Exhibit O dated 2nd February, 2001 to further submit that the Respondent who later instituted the action which has led to this appeal on the 9th of September, 2003 had collected his benefit some two years and ten months earlier.

The Learned Counsel cited the decisions in EKEAGWU V. NIGERIAN ARMY (2006) 11 N.W.L.R. (pt 991) 382 at 397 C.A.; JULIUS BERGER (NIG.) PLC V. NWAGWU (2006) 12 N.W.L.R. (pt. 995) 518 at 540 – 541 and MORUHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 N.W.L.R. (Pt. 145) 506 at 528 para. G. Per Karibi-Whyte J.S.C. which he commended to us to urge the court to hold that the Respondent having accepted the month’s salary in lieu of Notice and his terminal benefits the termination of the contract of employment between the parties was mutual two years and ten months before the institution of this suit by the Plaintiff/Respondent. He then urged that the Ground of Appeal be allowed.

ISSUE 3:- Posed the question as to whether the Learned trial Judge was right in basing the award of the sum of N11, 682,738.00 (Eleven Million, Six Hundred Eighty Two Thousand, Seven Hundred and Thirty Eight Naira only) as special damages in favour of the Plaintiff on the expected increases in income of the Plaintiff if the Plaintiff’s appointment had not been terminated (GROUND 4 of the GROUNDS OF APPEAL). Here Learned Counsel pointed to Exhibit A the letter terminating the Respondent’ employment on the 8th day of January, 2001. He recalled that there was no evidence that the contract was for a term of years certain the Respondent having not placed before the court the terms of his employment but that the Learned trial Judge based his award of the sum of N11, 682,638.00 in favour of the Respondent on the expected increases in income of the Respondent thereby ignoring the fact of termination of the appointment of the Plaintiff/Respondent. He therefore submitted that the Learned Trial Judge erred in so holding. The dicta of Akintan J.C.A. (as he then was) in OKEME V. CIVIL SERVICE COMMISSION, EDO STATE (2000) 14 N.W.L.R. (pt. 688) 480 at 496 – 497 Paras. E – H; COOPERATIVE DEVELOPMENT BANK PLC. VS. ESSIEN (2001) 4 N.W.L.R. (pt. 704) 479 at 492 Paras. G – H Per Opene J.C.A.; N.E.P.A. V. ADEYEMI (2007) 3 N.W.L.R. (pt. 1021) 315 at 336 – 337 Per Akaahs were all relied upon to contend that the Learned trial Judge was in error to have awarded damages beyond the Plaintiffs Common Law entitlement of a month’s Notice or Salary in lieu when there could be no further increases in Salary and emoluments for the Respondent (he having received his terminal benefits on the 8th day of January, 2001) when the appointment was terminated by Exhibit A.

Again, it was posited that the process leading to the award of N11, 682,738.00 was without reason although the Learned Counsel to the Plaintiff asked for the said sum without stating at what rate per annum or per month and the Plaintiff/Respondent had at page 41 in his evidence-in-chief stated that as at when he retired his annual salary was N293, 903.00 only while on further evidence he stated at page 48 that the Defendant/Appellant should pay him his earning for year 2002 – 2020 when he was supposed to retire at the rate of N663, 514.00 per annum. Further more, the Plaintiff/Respondent had further testified that Obasanya had increased the salaries of Bankers from 2002 and he ought to benefit from the increase.

The Learned Counsel for the Appellant then maintained that the Learned trial Judge based his calculation of the award on sentiments and speculation and that assuming the Respondent was entitled to any further damages beyond the date of termination of his employment he was not entitled to more than N293, 903.00 per annum which adds to N5, 778,060.00 less the terminal benefit and a month’s salary lieu of Notice already paid to Respondent. Relying again on the case of CHUKWUMA V. SHELL PETROLEUM DEVELOPMENT CO. LTD. per Karibi-Whyte Supra, urged the Court to allow this Appeal.

On ISSUE NUMBER 4:- Whether the award of general damages in the sum of N8, 000,000.00 after the Learned trial Judge had awarded the sum of N11, 682,738.00 as loss of earrings in favour of the Plaintiff/Respondent does not amount to double compensation and whether the Learned trial Judge had not violated the principle of award of damages in the circumstances (GROUND 1 of the Grounds of Appeal).

Learned Counsel took the view that the Learned trial Judge was in error to have awarded N8, 000,000.00 General Damages after awarding Special damages of N11,682,738.00, as the Law is that in contract it is not proper to award general damages as it is only special damages that are claimable. Calling in aid the cases of COOPERATIVE BANK PLC. VS. ESSIEN (2001) 4 N.W.L.R. (pt. 704) 479 at 492 E – F; 493 B – C; OKONGWU V. N.N.P.C. (1989) 4 N.W.L.R. (Pt. 115) 296 at 315 E – F; N.P.M BOARD V. ADEDEWUNMI (1972) 1 ALL N.L.R. (Pt. 2) 433 at 438; CHUKWUMA V. SHELL PETROLEUM DEV. CO. LTD (1993) 4 N.W.L.R. (Pt. 285) 512 Per Karibi-Whyte and the dictum of Nnaemeka Agu J.S.C. in OKONGWU V. N.N.P.C. Supra at 309 F; it was finally submitted on this issue that the sum of N8, 000,000.00 awarded the Respondent was an undue windfall which this Court ought to set aside. He urged also that we hold that if the Plaintiff/Respondent had established the wrongful termination of his employment he was entitled to damages only as to what was due to him for the period of notice which in this case is his terminal benefit and a month’s salary which he had collected.

He called on the Court to set aside the award of N8, 000,000.00 general damages and to allow Ground 1 of the Appeal.

ISSUE NUMBER 5: This issue questions whether the award of N350, 000.00 (Three Hundred and Fifty Thousand Naira) as costs in favour of the Plaintiff/Respondent was justified in the circumstances of the case. Learned Counsel for the Appellant answered the question in the negative as the learned trial Judge did not follow the principle governing the award of costs and submitted that although a Court has an absolute and unfettered discretion to award costs, the discretion must be exercised judicially. Where the Court below did not exercise the discretion judicially, the Court of Appeal will intervene as the award of costs is not punishment but to compensate the successful party for the expenses incurred for coming to Court. WILLIAMS LADEGA V. KASALI AKINLIYI & ORS (1975) 2 S.C. 91/97 – 98, WURNO V. U.A.C. LTD. (1956) 1 F.S.C. 33/34 were cited to maintain that in the award of costs, the Learned Counsel went beyond what he made at page 161 of the Records neither did he call for addresses on costs and none was proffered by Counsel before he made the said award. The Learned Counsel then referred to the Records and calculated the out of pocket expenses, incurred by the Respondent, the number of days the trial lasted and then asserted on the authority of REWANE V. OKOTIE-EBOH (1960) 5 S.C. 200 at 201 having posed the question which he answered as to what other reasonable expenses the Respondent incurred or other circumstances warranting the award and placing reliance on the dictum of OPENE J.C.A. in A.C.B. V. VICTOR NDOMAEGBA (2000) 10 N.W.L.R. (Pt. 675) 229 at 245 A.D., he urged the Court to interfere in the award of the costs of N350,000.00 as being a windfall, totally unwarranted, unjustifiable, punitive, excessive, arbitrary and unreasonable, set same aside and allow Ground 2 of the Appeal.

As for the Brief of the Respondent, it has to be recalled as stated earlier that the Learned Counsel for the Respondent at page 5 paragraph 2 to page 10 of the Brief had raised a preliminary objection as to the competence of the Appeal particularly on the issues raised as B2 in the Appellants Brief and covering Ground 5 of the Grounds of Appeal and also Issue Number B5 as relating to Ground 2 of the Grounds of Appeal.

According to the Learned Counsel to the Respondent the issues raised as B2 covering Ground 5 of the Grounds of Appeal are fresh issues which were not canvassed in the trial Court and for which leave of the Court was not sought before they were filed and argued.

He then drew the Court’s attention to the issues identified by Counsel at the Court of first instance which were enumerated and those issues eventually formulated by the Learned trial Judge as arising from the facts of the case and conceded that the trial Court on the authority of SANUSI V. AMOYEGUN (992) 4 N.W.L.R. (Pt. 237) 527 at 550 – 527, NEKA BBB MANUFACTURING CO. LTD V. ACB LTD (2004) 17 N.S.C. QR 240 at 250 – 251 and the dictum of Niki Tobi JSC in ENEKWE V. IMB (NIG) LTD (2007) 1 CMLR 117 at 136, could formulated such issues as he felt would determine the appeal.

It was however contended that upon a careful consideration of all the issues so formulated by both counsel and the court, the issue of payment and acceptance of salary in lieu of notice was never canvassed as the issue can only be relevant if the court below had held that the termination of the Respondent/Cross-Appellant was valid.

The Learned Counsel for the Respondent argued that since the trial Court did not base its decision on this issue, the Appellant should not make for the Respondent in the court of Appeal a case which the Appellant did not make for himself and which never arose in the lower court. He then cited LEBILE V REGISTERED TRUSTEES C & S (2003) 2 NWLR (Pt. 804) 399 at 422 paras. B-C and AGU v IKEWIBE (1991) 3 NWLR (pt. 180) 385 and urged us to discountenance the fresh issue raised in the Appellant’s Brief on the authority of AKPENA V. BARCLAYS BANK OF NIGERIA (1977) 1 S.C.47.

On Issue B. 5 as related to Ground 2 of the Appeal, it was the Learned Counsel for the Respondent’s contention that by virtue of section 220 (2) of the Constitution of the Federal Republic of Nigeria, 1999, and the case of UNIFAM INDUSTRIES LTD V. OCEANIC NIG.LTD (2005) 3 NWLR (Pt.911) 83 if a party is aggrieved by the order of court relating to costs, he does not appeal as of right, but must first seek leave of court before lodging an appeal thereto. In the instant case, he submitted, having not obtained leave of the Honourable court before the Appeal on costs issue Number 2 should be resolved in favour of the Appellant.

It is pertinent to note that the Appellant filed a Reply Brief dated the 4th day of February, 2008 and deemed filed on the 7th of May, 2008 and, in reaction to the Respondent’s objection as to paragraph B2 of the Appellant’s Brief and the argument in support thereof, the Learned Counsel for the Appellant submitted that the said issue B.2 is not a fresh issue as one of the issues raised in the final address of the Appellant, was whether the termination of the plaintiff’s Employment was illegal, unconstitutional, null and void. Page 65 of the Records referred.

He also alluded to the submission by Counsel to the Appellant in the lower court of the effect that the Appellant did not only give Notice by Exhibit A but paid the plaintiff his one month’s salary in lieu of notice. P69 of the Records referred and the judgment of the lower court at page 160 of the Records reflected that the Respondent had been paid the sum of N347, 294.36k as terminal benefits.

Relying on CEDAR STATIONERIES LTD V. IBWA LTD (2000)15 NWLR (pt.690) 338/347-348. H.A. Learned Counsel for the Appellant submitted in the alternative that in showing that the termination is not illegal, unconstitutional; null and void, the Appellant is entitled to rely on a new line of argument on appeal, as there is a distinction between a new issue and new line of argument on appeal.

On the contention by the Respondent’s Counsel that issue Number B.5 in the Appellant’s Brief that the Appellant needs leave to appeal on issue of costs which the Appellant did not do, the consequence which is that the Ground of Appeal and the issue formulated there from, should be stuck out, the Learned Counsel for the Appellant referred to the provisions of Section 241 (2) (c) of the Constitution to submit that contrary to the position taken by the Respondent’s Counsel, the Section of the Constitution is self explanatory that there is no right of appeal without leave, if the appeal is “as to costs only.” In this case, he further submitted, there are five Grounds of Appeal including the Ground on costs and that the case cited by the Learned Counsel for the Respondent was a decision per in curiam which did not arise from the interpretation of Section 241 (2) (c) of the 1999 constitution. He then urged us to discountenance the preliminary objection.

On the substantive Issues raised by the Learned Counsel for the Respondent in the Respondent’s Brief of Argument; ISSUE A. poses the question as to whether the trial court was right in placing reliance on Exhibit D as the applicable condition of service between the Appellant and the Respondent, the Learned Counsel for the Respondent answered the question in the affirmation submitting that the Respondent pleaded Exhibit D and specifically gave notice to the Appellant in paragraph 7 of his statement of claim and paragraph 5 of the Reply to the statement of Defence and counter-claim, to produce the document at the trial but Defendant/Appellant, failed to do so and the Respondent appropriately relied on his own copy of the Agreement.

He observed that the trial court made a finding of fact in this respect at page 148 of the Records citing in support of his above submission the cases of UNION BANK OF NIGERIA PLC. & ANOR. V. ALHAJI MOHAMMED IDRISU (1999) 7 NWLR (pt.609) p-105 at 118-119 paras. H-A Per Oduyemi J.C.A., on Notice to produce, sections 97 and 98 of the Evidence Act on when secondary evidence can be used by a party in proof of his case.

Furthermore, the Learned Counsel argued, the Appellants used Exhibit D to issue Exhibits M, E-E3 and k during the confirmation of relationship but the Defendant/Appellant kept the said Exhibit D away and submitted that the Appellants were caught by Section 149 (d) of him Evidence Act for withholding material evidence.

Counsel also highlighted the evidence of the only witness for the Appellant at page 61 of the Records where he admitted that Exhibit D is the collective agreement between Senior Staff of the Defendant Bank and Nigeria Employers Association of Banks, Insurance and Allied Institutions and so on and that Exhibit D is binding between the plaintiff and the Defendant. He urged the court to presume that if the Appellant had produced the Agreement it would have been against her.

Again, Learned Counsel argued that since the Appellant had made use of Exhibit D which was in their possession in course of the relation between the parties the said document had become incorporated in the conditions of service with the Respondent expressly and by implication and it is accordingly binding per Adekeye J.C.A. in DAWODU V.UBA. PLC (2004) 9 NWLR (Pt. 829) 276 AT 293 b SUPRA.

It was further contended as follows:-

(a) That the fact of appointment of the Respondent as a junior staff and later Senior Staff of Appellant is not in dispute as same was admitted in the Appellant’s statement of Defence.

(b) Appellant cannot expect the same conditions of service of the Respondent who was appointed a clerk in 1983 and had on numerous occasions been promoted and given awards of good performance to be the same as at 2001 when his appointment was terminated after seventeen (17) years.

(c) Exhibit D has transcended the Gentleman’s Agreement to the realm of conditions of service which the Appellants themselves made use of or regarded as binding between the parties.

(d) If there is any other contract of service binding between the parties apart from Exhibit D the onus of proving the existence of such was on the Appellant which she failed to discharge. He referred to paragraph 9 of the Appellant’s statement of Defence (as Amended) to submit that no evidence was led to prove the averments in the said paragraph nor did he explain why a contract entered into in 1983 while the Respondent was still a junior staff could still be binding in 2001 when Respondent was terminated as a Senior Accountant

Placing reliance on NASS V. U.B.A. PLC (2005) 14 NWLR (Pt.945) 421 at 425, (S.C) and NIGER GAS CO. LTD V. DUDUSOLA (2005) 18 NWLR (Pt.957) 297 it was submitted that pleaded facts are not evidence and the submissions of counsel can not take the place of proof by admissible evidence.

Lastly on this issue the Learned Counsel for the Respondent posited that the evidence of the Appellant’s witness on the issue of applicable conditions of service at the lower court is clear admission against interest which the court was perfectly entitled to rely on.

From the totality of the above submissions, he urged this court to hold that parties agree that the Collective Agreement (Exhibit D) is the contractual document that binds them in the absence of any other contractual agreement.

ISSUE B WHETHER OR NOT THE RESPONDENT WAS PAID AND HE RECEIVED A MONTH’S SALARY IN LIEU OF NOTICE OF TERMINATION (Ground 4 of the Grounds of Appeal). Here the Learned Counsel for the Respondent reiterated that the Appeal is incompetent and should be structout (sic) but at the risk of being overruled he contended that through out the judgment of the trial Judge there was no finding of fact that the Respondent was paid and received a month’s salary in lieu of Notice and accordingly Ground 2 of the Grounds of Appeal does not flow from the judgment of the court and ought to be jettisoned.

He argued that there is no where in Exhibit D that it was stated that he Respondent’s employment could be terminated by a months salary in lieu of notice except in Appellant’s paragraphs 7 and 11 of the Amended statement of Defence at pages 36 and 37 where allusions were made as to his account credited with a month’s salary in lieu of notice and that the plaintiff was not entitled to more than a month’s salary in lieu of notice. It was then submitted that since the Appellant led no evidence in proof of the averments in the pleadings on the authority of NASS v. UBA PLC (2005) 14 NWLR (pt.945) 421 at 425 the paragraphs above cited are deemed abandoned.

Further, he continued, the pleading is at variance with the evidence led on the issue at the trial court as the Appellant was unable to produce any contract of service where parties agreed as to the made of termination of the contract.

Counsel for the Respondent maintained that this court can not import terms outside those agreed between the parties and that if the termination is unlawful any other act based on the unlawful act is illegal and renders the Appellant liable to pay damages. Moreover, the Respondent not being a casual worker who can be laid off for the rest of his active years on earth without adequate compensation particularly where the Appellant was not able to point out from the Statement of Account where the Respondent signed and collected a month’s salary in lieu of Notice. He stressed that the actions of the Respondent as deduced from the evidence was that he vehemently apposed his termination and it was not until 2003 when Exhibit 1 was issued that the termination matter was laid to rest and they promptly approached the Court for remedy.

On the authorities cited by Counsel for the Appellant on payment of damages for breach of contract, Learned counsel again submitted after distinguishing each of them from the facts of this case, that they are inapplicable here; and after enumerating the three types of employees cognizable in Law took the view that the common Law position will only be applicable where there is no existing contract of service or where the conditions of service are not before the Court.

He insisted that the mode of determination of the Respondent’s employment is contained in Exhibit D and any departure from it is illegal. Per Uwaifo J.C.A. (as he then was) in U.B.N. LTD & ANOR. V. EDET (1993) 4 N.W.L.R. (Pt. 287) 288, IN DR. BEN. O. CHUKWUMAH V. SHELL PETROLEUM DEV. CO. NIG. LTD (1995) 4 N.W.L.R. (Pt. 189) at 512 and 560 para F and EKENGWU V. NIGERIAN ARMY (2006) 11 N.W.L.R. (pt. 911) 382 were all cited to adumbrate his further position on this issue that:-

(1) Appellant had claimed by Exhibit Q to have paid some terminal benefits to the Respondent but uncontroverted evidence showed that Exhibit Q dated 2nd February, 2001 was received only on 14/4/04.

(2) There was no proof that the Respondent’s account was credited with the said benefits and the amount reflected in the Statement of Account was far less than and where the balance went to could not be explained away.

(3) The Respondent had no opportunity of confirming payment as according to him he saw the doctored statement of Account for the first time during the trial and he promptly stated that all entries on the account up to and including 8th day of January, 2001 when he received Exhibit A were correct but that all entries made thereafter his exit from the employment of the Appellant are not correct.

(4) The Respondent was an Accountant with the Appellant until his unlawful termination and it would appear that he knew what he was saying as the fact of illegal dealings with the Account of the Respondent was further buttressed by illegal addition of interests at the rate of 7% instead of 2% agreed as the terms of the loans granted the Respondent as per Exhibits X – X9.

Learned Counsel for the respondent on this score then concluded the only reasonable explanation that can be made is that the Appellants who had the account of the Respondent in their care and who owed the Respondent a duty of care to deal with the account in good faith seized the opportunity to deal with this account in bad faith. Citing again DR. BEN CHUKWUMAH V. SHELL DEV. CO. OF NIG. (LTD. (1995) 4 N.W.L.R. Pt. 189 at 512 on the course to choose where a contract of service gives the parties the right of termination by either Notice or payment of salary in lieu and the case of MOROHUNFOLA V. KWARA COLLEGE OF TECHNOLOGY Supra he submitted those cases are distinguishable from our instant case. he then urged us to be wary in adopting willy milly the ratio of a case except the facts and circumstances are similar.

ISSUE C:

Whether the Learned trial Judge was correct in his assessment of damages awarded to the Respondent or whether the award of special damages in favour of the Respondent amounted to double compensation (Grounds 1 and 4 of the Grounds of Appeal).

The Learned Counsel for the Respondent on this issue alluded to the grouse of the Appellant and the Reliefs sought in the Respondent’s Statement of Claim and the basis of the lower Court’s assessment of the damages awarded and submitted that the amount awarded in favour of the Appellant as special damages was not based on the evidence of expected income but on credible unchallenged and uncontroverted evidence which the trial Judge correctly assessed. He then referred to the evidence of the Respondent as to his earrings as at 8th January, 2001 and a breakdown of the said income and how he exercised his right of Appeal under the conditions of service (see pages 44 – 45 and the amount he should have received as salary including other emoluments as at the date Exhibit 1 was received.

It was submitted until Exhibit 1 was received the termination of appointment was uncertain but on receipt of the said Exhibit the Appellant closed the chapter on termination on the 26th day of June, 2003 and the Court was right to have applied the emoluments applicable to the Respondent’s cadre as at June, 2003 in assessing payments due to the Respondent.

He accordingly maintained that the award of the sum of N11, 000,000.00 and N8, 000,000.00 as Special and General damages can never under any imagination amount to double compensation in the light of the evidence of DW1. Particularly when the Appellant envisaged that in line with Exhibit D written in Exhibit Q.

I have carefully considered the submissions of Counsel on both sides of the divide together with the Issues raised in this Appeal and I am of the candid view that the issues formulated by the Learned Counsel for the Appellant shall best determine the appeal if eventually resolved.

Before considering the Issues formulated, let me proceed first to address the preliminary objection raised in respect of the issue of payment and acceptance of salary in lieu of notice which the Learned Counsel for the Respondent contends was never canvassed by the Appellant in the lower Court.

Again, there is a second objection as to Issue B5 raised by the Appellant as relates to GROUND 2 of the Appeal which touches on the award of costs because according to him, the said Ground 2 is incompetent by virtue of Section 220 (2) of the 1999 Constitution of the Federation of Nigeria because leave of either the lower Court or this Court was never sought before filing and arguing the said Ground.

Counsel for the Respondent had argued and submitted in respect of the first ground of objection that the issue of payment and receipt of salary in lieu of notice can only arise or become relevant if the Court holds that the termination of the Respondent’s appointment was valid. Moreover, the trial in the lower Court was not based on the said issue and Appellant should not make a case for the Respondent in this Court which the Respondent did not make for himself and which issue never arose for determination in the said lower Court.

Responding to the submission of the Respondent’s Counsel, Mr. Odu for the Appellant in the Appellant’s Reply Brief asserted that issue B2 in the Appellant’s Brief of argument does not cover Grounds 4 & 5 of the Grounds of Appeal but covers Ground 5.

He then argued per contra that issue B2 does not raise a fresh point in the Appeal as one of the issues raised in the final address of Counsel to the Appellant in the Court below was whether the termination of the Plaintiff’s Employment by the defendant was illegal, unconstitutional null and void. Learned Counsel added that one of the submissions to show that the termination was constitutional, legal and not null and avoid was that Defendant/Appellant did not only give notice of termination vide Exhibit ‘A’ but the Defendant/Appellant paid the Respondent one moth salary in lieu of notice and the Court acknowledged this fact when it held that Plaintiff/Respondent has been paid the sum of N347, 294.36k as terminal benefit.

Alternatively, the Learned Counsel for the Appellant submitted that in showing that the termination was not illegal, unconstitutional, null and void the Appellant is entitled to rely on a new line of argument on appeal as there is distinction between a new point or issue and new line of argument in respect of the same point in issue. For this proposition of the law he relied on CEDAR STATIONERIES LTD V. IBWA LTD (2000) 15 N.W.L.R. (pt. 690) 338/347 – 348 H – A where it was held that a party can change the argument in support of his case to raise a new line of argument at any stage of proceedings.

On the second arm of the objection which touches on the incompetence of Issue No. B5 of the Appellant’s Brief, the Appellant’s Counsel referred to Section 241 (2) (c) of the 1999 Constitution which according to him is elf-explanatory and submitted that the interpretation given by the Learned Counsel for the Respondent will render the word “only” functionally useless in the con it is used. Thus, he further submitted, the case of UNIFAM INDUSTRIES LTD. V. OCEANIC BANK INTERNATIONAL NIG. LTD (2005) 3 N.W.L.R. (Pt. 911) 83 was cited by the Learned Counsel per incurriam as Section 241 (2) (c) was not cited in that case.

I have been opportune to go through the state of pleadings in the respective statement of claim the Amended Statement of Defence and the Reply to the Statement of Defence and at page 29 of the Records containing the Amended Statement of Defence paragraph 11 thereof the Defendant (now Appellant) had pleaded thus:-

“11. The Defendant shall contend that the Plaintiff is not entitled to more than his month’s salary in lieu of Notice at the hearing of the suit.”

At page 54 where the 1st Defence witness was called the following appears: in paragraph 3 of the said page: “As per Exhibit ‘A’ the bank paid the Plaintiff a month salary in lieu of notice. The bank paid the Plaintiff his terminal benefits”.

The Plaintiff on the other hand at page 52 of the Record of proceedings under Cross examination by the Learned Counsel for the Appellant admitted as follows, inter alia in paragraph 3 of that page thus:-

“When I was informed that my account has been credited with one month’s salary in lieu of notice I made no efforts to go and check it because I was appealing against the decision. I would not know whether my account was credited with the money or not.”

From the foregoing it cannot be said that parties never joined Issues on the question of receipt of a month’s salary in lieu of notice. The Respondent is however right to have submitted that the Court did not pronounce upon that contention and it would appear that the Court below glossed over the assertion of the Respondent in her Amended Statement of Defence as to not being liable to pay the Plaintiff/respondent anything more than the one month’s salary in lieu of Notice and the terminal benefits which they had already credited to the Account of Respondent and such the termination was constitutional, legal and not null and void.

There is no doubt, and there are authorities galore, to buttress the contention that a ground of Appeal must relate or flow from the judgment or ruling of a Court below and that an issue not raised and pronounced upon by the Court cannot be the subject of an appeal, such an issue being a fresh point for which the leave of this Court must be sought before it can be so raised.

See NWANA V. ONYE (2000) 15 N.W.L.R. (pt. 689); OBATOYINBO V. OSHATOBA (1996) 5 N.W.L.R. (Pt. 450) 531 and BABALOLA V. THE STATE (1989) 4 N.W.L.R. (Pt. 115) 204.

In this case, although the Court below did not pronounce on the issue of payment of salary in lieu of a month’s notice to Plaintiff, this is one of the pedestals of Respondent’s case such that even if it is considered a fresh point on appeal (which is not conceded), it is settled law that an Appellate Court would allow fresh points of Law to be raised in the Court below under the following circumstances:-

(a) The Court is seised with evidence before it on record which is required to completely sustain the new issue;

(b) The point of Law if argued in the Court below and pronounced upon could have been decisive of the case before it.

See ATTORNEY-GENERAL RIVERS STATE V. (2000) 18 N.W.L.R. (Pt. 746) 526 (2002) F.W.L.R. (Pt. 89) 1109; ABAYE V. OFILI (1986) 1 N.W.L.R. (pt. 15) 134 and IKWEKI VS. EBELE (2005) ALL F.W.L.R. (pt. 257) 140.

Going by the above authorities, the Issue of a month’s salary was not only pleaded as a defence there was evidence led by the Defendant/Appellant, which the Respondent admitted in answer to cross-examination that such salary in lieu of Notice had been paid into his Account. If the Court had pronounced on this issue, the question of illegality or unconstitutionality of the termination will not arise.

Section 151 of the Evidence Act will therefore estop the Respondent from raising an objection and contending that such issue was not raised at the lower Court.

Issue Number 2 which was formulated from Ground (4) four is very competent just as the Ground is competent as they flow from the facts of the case as pleaded and elicited by the parties. The cases of LEBILE V. REGISTERED TRUSTEES C & S (2003) 2 N.W.L. (Pt. 804) 399 at 422 paras. B – C, AGU V. IKEWIBE (1991) 3 N.W.L.R. (Pt. 180) 385 and AKPENA V. BARCLAYS BANK OF NIG ERIA (1977) 1 S.C. 47; are not apposite to the facts of this case. The first arm of objection by the Learned Counsel for the Respondent is accordingly overruled.

On the second arm of the objection, which relates to Ground 2 and Issue D as formulated by the Respondent it is necessary to examine the provisions of the Constitution in order to determine the propriety or otherwise of the said Ground 2 and Issue D as formulated there from vis-avis case law decided in that respect.

Section 220 (2) of the Constitution of the Federal Republic of Nigeria 1999 provides as follows:- “until an Act of the National Assembly is made in that behalf the president may maintain adequate facilities in any secondary…”

Definitely, this is not the section of the Constitution envisaged in the Learned Counsel for the Respondent’s argument.

Rather, the Section of the Constitution from which the excerpts in paragraph 3.1 of the Respondent’s Brief is extracted should be Section 241 (2) (c) which provides that:-

“(2) Nothing in this Section shall confer any right of appeal-

(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”

The Learned Counsel for the Respondent has argued that in view of the above provisions leave of the Court is necessary before any party can appeal against a decision of a High Court as to cost only. It has been further argued that the Appellant in the instant case did not seek the leave of either the High Court that tried the case or the Court of Appeal before which the appeal is pending to appeal against the order of costs made in this matter.

Learned Counsel has cited the case of UNIFAM INDUSTRIES LTD V. OCEANIC BANK NIG. LTD (2005) 3 N.W.L.R. (pt. 911) 83 to assert that costs follow events and a successful party is generally entitled to costs of litigation. In that case, the Respondent filed a winding up petition against the Appellant on grounds of inability to pay its debt (insolvency). Upon being served the Appellant filed a notice of conditional appearance praying the court for a dismissal of the petition for constituting an abuse of Court process. After arguments were taken on the motion for dismissal, the Court below struck out the petition.

The Appellant was dissatisfied with the striking out order, contending that a dismissal order would have satisfied the justice of the case. The Respondent on the other hand, being dissatisfied with the entire Ruling cross-appealed. From the tenor of the judgment of the Court Appeal delivered by Aderemi J.C.A. (as he then was) the Appeal and cross-Appeal included Grounds complaining of award of costs in the issues formulated for determination and his Lordship held thus:-

“However, if a party is aggrieved by the order of a court of law as it relates to costs, he does not appeal as of right, he must first seek and obtain the leave of Court before an appeal can be against an order relating to costs. See Asims (Nig Ltd & Anor V. Lower Benue River Basin Development Authority & Ors. (2002) 8 N. WLR. (Pt. 769) 349. ”

The purport of this decision it would appear, is that once a ground complaining of award of costs is incorporated in a Notice and Grounds of Appeal, leave of the lower Court or Court of Appeal must be sought and obtained before such a ground can be lodged or argued on Appeal.

If this position of the law is taken to be the purport of Section 241 (2) (c) of the Constitution then Ground 2 of the Grounds as couched by the Appellant along with issue B. 5 are incompetent and ought be struck out.

However, I am of the candid opinion that if Section 241 (2) (c) of the 1999 Constitution is given the above interpretation then serious violence would have been done to the meaning of the word “only”, as can be gleaned from the lexical definitions or meanings of the word. The Oxford Dictionary of Current English 3rd Edition by Catherine Soannes at page 625 defines “only” as “Adverb and no one or nothing more besides.” As an adjective the word also means “single and solitary” and “alone deserving consideration.”

Going by the definitions given to the word, it cannot be seriously contended and it could not have been the intendment of the Constitution that a ground of appeal which is not single and solitary and does not appear alone or does not deserve consideration alone as to costs, like the Grounds of Appeal filed by Appellant in this appeal, must entail leave before the Ground of costs can be lodged. It is submitted that, to qualify as a Ground of Appeal which is “as to costs only” such an appeal must be on ‘a single and solitary ground’ standing alone and with no other ground besides it and it must also be the only ground deserving of consideration on an issue as to costs.

I agree therefore with the Learned Counsel for the Appellant as canvassed in the Reply brief that the case of UNIFAM INDUSTRIES V. OCEANIC BANK INTERNATIONAL NIG. LTD Supra, did not interpret Section 241 (2) (c) of the 1999 Constitution and even if did consider the provisions of the Constitution in question the decision is per in curiam and could not have overridden the express and clear simple provision of the Constitution which needs no application of the Interpretation technique to discover the intention of the Legislature.

Accordingly, all the submissions of the Learned Counsel for the Respondent in that respect shall be discountenanced and the entire preliminary objection shall fail and are hereby dismissed. I shall now proceed to delve into the main Issues for determination.

In doing this I am not oblivious of the fact that Issues 1, 2 and 3 of the respective parties are basically the same and are subsumed within each other. While Issues 4 and 5 can adequately take care of the remaining issues formulated by the Respondent’s Counsel.

ISSUE NO. B. 1 WHETHER, IN THE SURROUNDING CIRCUMSTANCES OF THE CASE BEFORE THE LEARNED TRIAL JUDGE THE LEARNED TRIAL JUDGE WAS NOT IN ERROR IN PLACING RELIANCE ON EXHIBIT ‘D’ IN COMING TO HIS CONCLUSION IN FAVOUR OF THE PLAINTIFF (GROUND 3 OF THE GROUNDS OF APPEAL dated 7th day of September, 2006).

Here, the learned Counsel for the Appellant had submitted that Exhibit D relied upon by the Court was an unsigned document by the parties to the suit and ought not to attract weight more so as the Plaintiff failed to lead evidence to the effect that the said Exhibit D was adopted as part of his terms of employment with the Defendant/Appellant. Several authorities have been cited to buttress the contention that the terms of employment between the Respondent and the Appellant were not placed before the Court.

Learned Counsel for the Respondents argues to the contrary and submits that the Court rightly relied on Exhibit D as the condition of service between the parties. He submitted that the Respondent gave notice to the Appellant to produce the document which the Appellant failed to do so Respondent had forely on his own copy. Reliance has been placed also on Section 149 of the Evidence Act and UNION BANK OF NIG. PLC & ANOR. V. ALBAJI MOHAMMED IDIRISU (1999) N.W.L.R. (Pt. 609) 105 at 118 – 119 and other Section of Evidence Act on admissibility of documentary evidence together with the evidence of the Appellant’s only witness to submit that from all indications, it is clear that parties agree that the collective agreement Exhibit D is the contractual document that binds them particularly where there is no other agreement.

Now, it has to be stressed that like in all other civil cases, the Plaintiff/Respondent who complained of wrongful termination of his employment with Appellant, has the onus to place before the lower Court the terms and conditions of his employment and further demonstrate with concrete and credible evidence how the terms of the agreement have been breached.

It is true that he who alleges must prove and in order to be entitled to the judgment of the lower court, the plaintiff ought to rely on the strength of his case an not necessarily on the weakness of the Defendant’s. Sometimes, however, the weakness of the Defendant’s case may strengthen the plaintiff’s case and where the Plaintiff is able to establish a prima facie case then the burden shifts to the Defendant to furnish rebuttal evidence or to show why judgment should not be entered for the Plaintiff in the absence of such evidence. Where however, parties have elicited evidence in support of each other’s case then, the court below is duty-bound to place the pieces of evidence on the imaginary scale of justice, weigh them and then come out with a dispassionate judgment. See KODILINYE V ODU (1935) 2 W.A.C.A. 336, ADELEKE V IYANDA (2001) 13 NWLR (Pt.729) 1; BELLO V. EWEKA (1981) 1 S.C. 101 at 118-120 MAGAJI VS. ODOFIN & ANOR (1978) 4 S.C. 91 at 94 and OWOYEMI V. ADEKOYA (2004) 18 NWLR (Pt 852) 307.

In the instant case the bed rock or fulcrum of the Plaintiff/Respondent’s case is Exhibit D, a Collective Agreement defined by NDOMA-EGBA J.CA in NIGERIA-ARAB BANK LTD. V SHUAIBU (1991) 4 NWLR (Pt.186) 45 while construing the collective Agreement of Association of Banks, Insurance and Allied Institutions and so on as being “at best a gentleman’s agreement, an extra judicial document totally devoid of sanctions. It is at best a product of trade union’s pressure, ”

According to the Learned Justice, “the terms and conditions upon which the Respondent accepted the employment offered by the Appellants are contained in Exhibit A Letter of appointment.” See NIKITOBI J.C.A. (as he then was) in NEW NIGERIA BANK PLC VS. EGUN (2001) 7 NWLR (pt.711) 18 D following Ndoma-Egba J.C.A.’s dictum

What emerges from the rational of the above cited cases is that generally, a collective agreement is not usually enforceable if any of its terms is breached except by strike or any other industrial action. However, as was decided in DAODU V. UBA PLC (2004) 9 NWLR (Pt. 878)276 at 293 B per our Adekeye J.C.A. then sitting at Ibadan Division of this court;-

“Where a collective agreement is incorporated or embodied in the conditions of a contract of service, whether expressly or by implication, it will be binding on the parties.”

I have had a careful perusal of the Exhibits tendered and seen Exhibit D which is the self-same “Main collective Agreement Between The Nigeria Employers Association of Banks, Insurance And Allied Institutions AND The Association of Senior Staff of Banks, Insurance And Financial Institutions” which was held by Ndoma-Egba and Niki Tobi J.C.A. as unenforceable and that the only enforceable contract of service between the parties capable of enforcement in the face of a breach is the letter of appointment.

On further perusal of the bundle of documents exhibited in this case I also came across a photocopy of IDI (An Agreement made on the 7th of March, 1983 between the Appellant (Union Bank) and Mr. Charles Olusola Toyinbo (the Official) which is the letter of Appointment containing the terms and conditions of employment between the Appellant and Respondent. Since the document was merely identified as ID 1, this court can not even place any value on it. The Collective Agreement on the other hand when tendered was not objected to and it was accordingly admitted and marked Exhibit D.

In the course of eliciting evidence on Oath the only witness for the Appellants when cross examined by counsel for the Respondent had this to say at page 61 of the Record of proceedings thus:-

As there are collective Agreement between the bank and junior staff,

“There is collective Agreement between Senior Staff. The collective Agreement for the senior staff also containing the terms and conditions of service for senior staff, i.e. between bank and the Senior Staff. The Plaintiff was a Senior Staff when his appointment was terminated in 2001. Exhibit D is the Collective agreement between Senior Staff of the Defendant and Nigeria Employers Association of Banks, Insurance and Allied Institutions. Article 4 at page 7 of the Exhibit D deals with discipline. At page 8 of Exhibit D part 2 Section 1 deals with termination of Appointment. Exhibit A is a letter of termination of Appointment. Exhibit A does not contain the reason for termination as 1 stated yesterday in my evidence-in-chief. Exhibit B is a letter of promotion of the Plaintiff to the Rank of a Senior Staff. According to Exhibit ‘B’ the Plaintiff must be personally satisfied before signing any document of the bank. Exhibit N was the query that was given to the Plaintiff for canceling his signature on the voucher. Exhibit 1 was the response of the Plaintiff to the query in Exhibit ‘M’ Exhibit K was the warning letter that was given the Plaintiff in respect of cancellation of his signature on the said voucher.” At page 62 the witness Shaibu Oladapo Saliu continued in answers to cross examination as follows:-

“Exhibit L was the appeal against the warning letter. Exhibit N is the letter that (sic) withdrawn the warning letter to the Plaintiff, Exhibit K. At page 8 part C of Exhibit D, is the procedure for termination. As a witness to the Bank I did not bring any warning letter to this Court and I did not tender any. According to Exhibit D before the Plaintiff’s appoint could be terminated, there must be three warning letters to him within one year. The Defendant used and applied Exhibit D to issue the warning letter Exhibit K to the Plaintiff. Exhibit D is the binding agreement between the Plaintiff and the Defendant. ”

The Learned Counsel for the Appellant has rightly in my view, submitted that no contract of Service has been placed before the Court that could have incorporated the collective Agreement as the main contractual Agreement which is the letter of Employment dated 7th March, 1983 was not tendered by the Plaintiff/Respondent.

It has also been contended that Exhibit D is an unsigned document which ordinarily should attract no probative value. This point was made by Oguntade J.S.C. in the case of GARUBA V. KWARA INVESTMENT CO. LTD & 2 ORS. (2005) 5 N.W.L.R. (Pt. 917) 160 at 176 paras. D – E where he intoned:

“Such a document as Exhibit 8, unsigned as it was, is incapable of establishing the fact that 2nd Defendant took over the assets and liability of the 1st Defendant.”

See also SEIDU V. ATTORNEY-GENERAL OF LAGOS STATE (1986) 2 N.W.L.R. (pt. 21) 165, A.G. ABIA STATE & ORS V. SILAS O. AGHARANYA & ORS. (1999) 6 N.W.L.R. (Pt. 607) 362 at 371 and ANAEZE V. ANYASO (1993) 5 S.C.N.J. 151 at 168 – 169 all to the effect that it is well settled that an unsigned document is worthless and void and is entitled to no weight at all in law.

The Respondents have however relied on Sections 97 (1) (a) and 97 (2) (c) of the Evidence Act and the fact that the said document was pleaded and Notice given the Appellants to produce the same at the trial. See paragraphs 5 – 7 of the Plaintiff’s statement of claim where he averred that:-

“(5) The Plaintiff shall contend that in as much as the Defendant could hire and fire same must be done in compliance with the staff conditions of service between the Defendant and the Plaintiff and as contained in the collective agreement between the Defendant and the Association of Senior Staff Employees of Banks and Insurance. The Plaintiff hereby pleads the said collective agreement and shall rely on same at the trial. Notice is hereby given to the Defendant to produce the said agreement at the trial.

“(6) The Plaintiff shall contend that the collective agreement is applicable between him and the Defendant as the Defendant has in various circulars to him applied the collective agreements. The Plaintiff herein pleads the said circulars and his reply to them and shall rely on them at the trial.

“7. The Plaintiff shall contend that that his termination is in breach and total violation of the relevant Section of the collective agreement on disciplinary procedure.”

In response to these averments of the Plaintiff, the Defendant/Appellant pleaded in paragraph 9 of her Amendment Statement of Defence thus:-

“(9) The Defendant shall contend that the termination of the Plaintiffs vide Defendant’s letter of 8th January, 2001 is a mitigation of the Plaintiff’s punishment and in pursuance of the contract of service dated 7th March, 1983 between the Plaintiff and the Defendant. Notice is hereby given to the Plaintiff to produce the original copy of the contract of service.”

Neither did the Plaintiff produce the original contract of service nor did the Defendant produce the Original Collective Agreement. The Plaintiff/Respondent hiding under the canopy of the Notice to produce and Section 97 of the Evidence Act tendered the Secondary evidence of the Collective Agreement which in any case the only witness for the Defendant/Respondent admitted was the Agreement binding Senior Staff before and as at when the Plaintiff/Respondent’s employment was terminated.

Although, the onus was on the Plaintiff to establish his case by placing all the necessary facts before the Court since he would not be entitled to judgment unless he so did, where the said Plaintiff/Respondent anchored his case on the collective agreement which has been admitted by the sole witness of the Defendant/Appellant the Plaintiff had discharged the burden placed on him and it was left for the Defendant to tender the other contract of service which was entered into on the 7th of March, 1983 but this the Defendant failed to do.

He can therefore not be heard to approbate and reprobate particularly as what her witness has done amounted to admission and admission against interest. See Sections 33 (1) (c) and 75 of the Evidence Act and the case of NWIZUK & ORS VS. ENEYOK (1953) 14 W.A.C.A. 354; REBEENY (1894) 1 CH. 499 and generally the commentary in paragraph 11.18 at page 198 of “Law And Practice Relating To Evidence In Nigeria” by Akinola Aguda 2nd Edition 1998.

The bottom line of the cases above cited and Section 75 of the evidence act is that facts admitted need no further proof. I am afraid that the authorities of UNION BANK V. EDET (1993) 4 N.W.L.R. (Pt. 287) 512 and New Nigerian Bank Plc. V. Egun Supra are not apposite to the circumstances of this case.

Rather, it has been proved that what governed the contractual relationship between the parties was the Collective Agreement which has been expressly incorporated through the circulars dated 13th March, 2001 (Exhibit ‘E’) 16th August, 2001 (Exhibit EI”); June 29, 2002 and 29th September, 2003 annexed to Exhibit E1″); 24th May, 2000 (Exhibit E2″) and September 30th, 2003 (Exhibit E3).

It would therefore amount to unnecessary hair splitting argument to posit as the Learned Counsel for the Appellant has done that the trial Judge was in error to place reliance on Exhibit D to find for the Plaintiff/Respondent.

After all even if we agree that there was a contract of service when the Plaintiff was employed in 1983, (which he has not denied) by the dictum of Adekeye J.C.A. in DAWODU VS. UBA (Supra), that contract has been incorporated with the collective Agreement (Exhibit D) to now modify the terms and conditions as applicable to Senior Staff which admittedly the Plaintiff by his letters of promotions and Commendations he richly deserved. He could not have been static since 1983 as the Defendant has admitted. Issue Number One (1) is therefore resolved in favour of the Respondent and Ground 3 of the Grounds of Appeal shall fail.

ISSUE NUMBER 2: WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN ERROR WHEN HE FAILED TO HOLD THAT THE APPOINTMENT OF THE PLAINTIFF HAD BEEN LAWFULLY TERMINATED BY THE DEFENDANT WHEN THE DEFENDANT GAVE AND THE PLAINTIFF ACCEPTED A MONTH’S SALARY IN LIEU OF NOTICE IN ADDITION TO HIS TERMINAL BENEFITS (GROUND 5 OF THE GROUNDS OF APPEAL).

In resolving this question, it is pertinent to refer to the pleadings of the parties and the evidence elicited to buttress the respective positions taken by the parties. It would be recalled that the Defendant in his amended statement of Defence pleaded in paragraphs 7 and 11 that:-

“… the Defendant terminated the Plaintiff’s employment and credited his account with the Defendant with a month’s salary in lieu of notice without objection by the Plaintiff. The Defendant shall lead both oral and documentary evidence at the hearing of this suit to substantiate this fact.”

“11. The Defendant shall contend that the Plaintiff is not entitled to more than his one month salary in lieu of notice at the hearing of this suit. The Defendant hereby pleads all legal and equitable defences relevant to this suit.”

It is pertinent to note that the Plaintiff/Respondent had pleaded in paragraph 5 of the Reply to the Defendant/Appellant’s Amended Statement of Defence that he “shall contend that since the only ever warning letter was given by the Defendant has been withdrawn, it is a violation of the contract between the Defendant and himself, for his appointment to have been terminated without compliance with the collective Agreement applicable between NIGERIA EMPLOYERS ASSOCIATION OF SENIOR STAFF OF BANKS INSURANCE AND FINANCIAL INSTITUTIONS.”

In paragraph 7 of the Reply to the statement of Defence he again stated thus:-

“….. the plaintiff shall contend that by a letter he received some times on 14th April, 2004 after the commencement of this case and nearly three years after the Defendant refused his appeal against the termination the Defendant advised him in a dated letter of February, 2001 of a purported terminal benefit which was and has never been paid to him and which does not represent his lawful terminal benefit. The Plaintiff pleads the said letter and shall rely on it. ”

But under cross-examination, at page 52 of the Record of Proceedings the Plaintiff/Respondent stated thus:-

“When I was informed that my account has been credited one month’s salary in lieu of Notice, I made no efforts to go and check it because I was appealing against the decision, I would not know whether my account was credited with money or not. ”

Note however, that the defence witness had stated in defence of the Defendant/Respondent that: – “As Per Exhibit A the bank paid the Plaintiff a month’s salary in lieu of notice. The bank paid the Plaintiff his terminal benefits.”

The Court below while resolving Issue 6 as to whether the appointment of Plaintiff/Respondent was validly terminated held at page 154 of the Record of proceedings that it was agreed by the parties that the appointment of the Plaintiff was based on a warning letter Exhibit K and that the Plaintiff/Respondent appealed against the said letter by Exhibit L dated 6/9/2000. That subsequently, the warning letter was withdrawn vide exhibit N dated 18/8/2000 and that to his mind, this in essence means that the letter of warning had been withdrawn.

It was further held that both parties agree that by Exhibit D the contract agreement called Collective Agreement, before the Plaintiff’s appointment could be terminated, he must be given three warning letters within one year but that was not the case when the appointment of the Plaintiff/Respondent was terminated. Citing the case of ACB PLC. V. B.O. ANOSIKE (1995) N.W.L.R. (pt. 415) at 75 where it was held that the law gives the master the right to terminate the employment of a servant on his discovering that the servant is guilty of fraud. He is not bound to dismiss the servant and if he elects after knowledge of the fraud to continue with his services, he cannot at any subsequent time dismiss him on account of that which had been condoned. In other words, if an employer does know of the misconduct of the employee and thereafter continues the employment, he may be taken to have waived his right to dismiss the employee on that ground. See also ELECTRICITY CORPORATION OF NIGERIA V. NICHOH (1969) N.M.L.R. page 265 at 265 at 269.

In the case at hand, his Lordship further held, the Plaintiff was given a warning letter by the Defendant which was withdrawn by the Defendant in the year 2000 and the Defendant having kept the Plaintiff in his employment for months before the Plaintiffs appointment was terminated, it would be wrong to take it that the termination of the Plaintiffs appointment was based on the warning letter or an act upon which it was predicated when in actual fact the said warning letter had been withdrawn.

From the foregoing, the learned trial Judge held that the appointment of the Plaintiff was not validly or legally terminated and the termination was wrongful.

Now a look at pages 7 and 8 of Exhibit D would reveal that Article 4 spells out Disciplinary measures on Senior Staff of Banks like the Plaintiff. The said Article 4 warns that observance of company rules and regulations is necessary to ensure smooth running of the organization and that breaches of company rules and regulations and other cases of indiscipline were to be dealt with as follows:

i. caution

(a) ……..

(b) …… see page 7.

At page 8, Part II (Section I) thereof paragraph II captioned

“TERMINATION OF APPOINTMENT”

(a) Where the services of employee have proved unsatisfactory he may be given written warnings. For the purpose of this paragraph such written warnings may be issued only in respect of the following cases of misconduct:

(i) ……..

(ii) ……..

(iii) Neglecting to perform any work which it was his duty to have performed, or carelessly or improperly performing any work which from its nature it was his duty to have performed carefully and properly;

(iv) ……

(v) Refusing to obey any proper instruction of any person placed in authority over him which instruction it was his duty to obey and

(vi) Any other act of misconduct which may be agreed upon between the Association and the Union from time to time.”

I have deliberately highlighted subparagraphs (a) (iii), (v) and (vi) because of the State of pleadings in paragraph 5 of the Amended Statement of Defence to the effect that the Plaintiff altered and cancelled his signature on the Defendant’s voucher some time in 2000 without the consent of the authority of the Defendant which attracted a query as pleaded in paragraph 6 of the Amended Statement of Defence. Alteration of signature and/or cancellation thereof amounted to careless or improper performance of his work which from the nature of his duty the Plaintiff/Respondent ought to have performed well and carefully. Again, such an act amounted to a refusal to obey proper instruction of a person or authority over which instruction it was his duty to obey. See for instance, Exhibit B dated 11th March, 1999 which is a letter of promotion as well as instruction to exercise caution and prudence of the utmost type in the placement of his signature upon any document and that in no circumstances must he sign instruction from other parties or merely because another signatory had signed before him.

The Management for whom O.A. Akinrumi (Mrs.) signed the letter expressed confidence in the ability of the Plaintiff/Respondent to discharge the responsibility thrust upon him but the letter reminded him that: “if you feel uncertain in any case, you have a right to direct approach to the Manager. ”

See the evidence of the DW1 at page 54 of the Records where in he stated:-

“What led to the disagreement with the Bank was that he (Plaintiff) cancelled his signature on the Bank Book. After he has signed his signature he latter (sic) cancelled it. When he cancelled the signature, Bank issued him a query. The bank terminated his appointment. ”

By paragraph ii (b) of Part II (Section I) of Exhibit D:

“(b) Before a written warning is issued the Employee shall first be given a written query and opportunity of stating his case in writing.”

ON TERMINATION OF EMPLOYMENT; Subparagraph (e) provides that:

“(e) An Employee’s Services may be terminated if within any period of 12 months, he had been guilty on three occasions of committing any act of misconduct for which a warning letter has been issued Termination may only be effected on the third occasion provided warnings in writing have been given to the Employee in respect of two previous cases of misconduct within the preceding 12 (twelve) months. Persistent breaches, however, will be treated in accordance with the employee’s previous records even though they may have been ineffective after 12 (Twelve) months from the date of warning.

“d An Employee whose services have been terminated under the provisions of this paragraph shall nevertheless, be entitled to one month’s notice in the case of confirmed Employee or two weeks in the case of probationer or salary in lieu, in addition to any other terminal benefits that may be due to him.”

Going by the provisions of the Collective Agreement which binds the parties relationship, the Plaintiff/Respondent was entitled to be given a month’s notice in accordance with paragraph II (d) of part II Section one of Exhibit D or in the alternative a month’s salary in lieu, in addition to any other terminal benefits that may be due the Plaintiff/Respondent.

By Exhibit A dated 8th January, 2001, the Plaintiff was given a letter of Termination of Employment which stated that:-

“We regret to advise the termination of your employment as your services are no longer required, with effect from 14th December, 2000. Your account has been credited with a month’s salary being payment in lieu of notice. Benefits due to you and from which outstanding liabilities are to be deducted will be credited to your account shortly”

Evidence has been led to the effect that the said salary and terminal benefits had long been credited into the Plaintiff/Respondent’s account and it is mischievous for him to pretend as he has stated in evidence that when he was informed that his account has been credited with the month’s salary and his terminal benefits, he did not go to check on the account because he was appealing to his former employers to rescind the letter of termination.

The Plaintiff anchored his case on Exhibit D and the provisions of paragraph II (d) of part II page 8 of the said Exhibit which deals with the issue of notice upon termination and this court cannot go outside the purview of the said clause to consider any extraneous matters in determination of the validity of the termination of the Plaintiffs employment.

This is a case of master and servant and not a contract of service with statutory flavour. In the circumstance, it is settled by several authorities that the master/employer reserves the right to hire and fire a servant at any time provided as in this case, the servant is given the requisite notice or paid salary in lieu of notice.

In the case at hand, the Appellants have fulfilled their part of the bargain by paying the respondent the appropriate month’s salary in lieu of Notice including his terminal benefit its. See ALI V. N.A.A. (2005) ALL F.W.L.R. (pt. 272) 265 at 293 – 294.

The point was even made more succinct in the case of ODEH V. ASABA ILE MILLS PLC. (2004) ALL F.W.L.R. (pt 242) 2163 where this court Per Ngwuta J.C.A. with whom Akaahs and Augie J.J.C.A. concurred had held when confronted with the scenario we have found ourselves at page 2177 paras A – C inter alia:-

“The employer can retire the employee without assigning any reason for doing so. A master can terminate the employment of his servant at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of their contract. In the instant case, the retirement or termination being in compliance with the terms of contract of employment the Appellant cannot make a case for wrongful termination of his employment.” See IBAMA V. SHELL PET. DEV. CO. (NIG.) LTD (1998) 3 N.W.L.R. (pt. 542) 493; WARRI REFINING AND PETROCHEMICAL COMPANY LTD V. ONWO (1999) 12 N.W.L.R. (Pt. 630) 312, NITEL PLC. V. OCHOLI (2001) F.W.L.R. (Pt. 74) 254 all relied upon.

My Lord also has sealed the doom of the case of the Plaintiff/Respondent whom after payment of his salary in lieu of notice and terminal benefits is still parading the corridors of the courts for outrageous reliefs, when he held at page 2177 – 2178 paragraphs G – A following MENAKAYA V MENAKAYA (1996) 9 N.W.L.R. (pt. 472) 256 at 265, PAVE V. GAJI (1996) 5 N.W.L.R. (pt. 450) page 589 at 593 and ANI V. NNA (1996) 4 N.W.L.R. (Pt. 440) that it does not lie in the month of the Appellant to make claim for wrongful termination of his employment after receiving his salary in lieu of notice as well as his retirement benefit. According to his Lordship and I am in total agreement with him from the facts and circumstances of this case that any right to the claim he makes had been abandoned or waived having known that the Appellants had paid his retirement benefits and the month’s salary in lieu of notice which has not been refunded till date. Of course, he is estopped from making further claims as he cannot approbate and reprobate at the same time.

To round up this ground, I am not oblivious of the avalanche of cases that have been unleashed on us by counsel for the Respondent but I hasten to add that the Respondent cannot wish away the evidence of the payment of the terminal benefit of N347, 234.36 on 18/4/01 which the court below found to be true and acknowledged the indebtedness of the Respondent to the Appellant to the tune of N400, 457.00. Rather than plead with the Appellant to consider his plight on compassionate grounds he is behaving as if he has a fixed termed contract or a contract with statutory flavour. The contract he entered with the Appellants was not a contract for life which could only be terminated on good cause being shown or on proof of misconduct which in any case was the reason for the query and eventual termination of the Respondent. That the Appellants withdrew the letter of warning was even to mitigate his punishment because he flouted the instructions contained in his letter of promotion as well as paragraph II (e) of Exhibit D and dismissal with some degree of infamy would have remained a life stigma on him.

On the whole, I am of the opinion that since Exhibit D the Contract of Service incorporates the procedure for determination of the contract which in this case is by service of a month’s notice or payment of salary in lieu of notice all that the Appellants needed to do was to serve him with the requisite notice or pay the salary and terminal benefits. The Appellants have even been magnanimous in the computation of his gratuity and provided him with the entitlement of deferred pension of N74, 115.99 per annum when he attains the age of 60 years 2020.

It is from the foregoing reasons that I hold that the trial Court brushed aside the main issue when he held that because the Defendant/Appellant kept the Respondent for months before his appointment was terminated, the termination was invalid.

For me, I hold that the termination was valid both in law and infact because the Respondent received his salary in lieu of notice and terminal benefits and he cannot turn summersault to claim otherwise. I agree with all the authorities cited by the Learned Counsel for the Appellant and hereby resolve Issue Number B. 2 in favour of the Appellant.

With Issue Number Two (2) or B.2 being resolved In favour of the Appellants Issues B. 3 being resolved in favour of the Appellant Issues 3, 4 and 5 become otiose. I am of the view that the Plaintiff was not entitled to any sum in the form of special or general damages because his termination was valid in that the Defendant/Respondent paid him one month’s salary in lieu of notice as dictated by Exhibit D which he claimed was the Agreement that governed his employment if at all.

I agree therefore with the authorities of COOPERATIVE BANK PLC V. ESSIEN (2001) 4 N.W.L.R. (Pt. 704) 4079 at 492 paras. E. F; 493 B – C that the Plaintiff/Respondent would not have been entitled to general damages since an employee who successfully established wrongful termination of his employment would only be entitled to what would have been due to him for the period of notice.

Thus, the Court below exceeded its bounds when it went ahead to award both special and general damages for breach of contract of employment as in this case. Again in line with the dictum of Karibi- Whyte in CHUKWUMAH V. SHELL PETROLEUM CO. LTD (1993) 4 N.W.L.R. (pt 285) 512 the Court awarded damages upon the assumption that the Respondent’s appointment was terminated wrongfully and if at all that was the case, the damages should not have exceeded his salary and perquisite of office as at the time notice was not given to him. In other words, the principle of “restitution integrum” would have applied in the computation of damages. I therefore, reiterate that since the termination was not illegal, the sums of N11, 682,738.00 and N8, 000,000.00 awarded to the Plaintiff/Respondent as loss of earnings and general damages were not only windfalls but outrageous to say the least. Accordingly since the outrageous sums were not awarded on the basis of any known principles of law, I hereby set them aside.

On the issue of cost, it is trite that costs follow events and except where stipulated by statutes or rule of court, it is always at the discretion of the courts. Thus it is settled law that cost should not be punitive but to assuage a litigant for part of his expenses. See LADEGA V. AKINLIYI & ORS (1975) 2 S.C. 91 AT 97 – 98 WURNO V. UNITED AFRICAN CO. LTD. (1956) 1 F.S.C. 33 AT 34.

In this case, the Learned Counsel for the Plaintiff/Respondent has inundated the court with a barrage of authorities to justify the outrageous award doled out to the Plaintiff/Respondent. These authorities would have been applicable if the termination of the Respondent’s employment were illegal or wrongful.

Since from all indications, the Respondent had received what was due him as his entitlement he is only entitled to such balance of the said sum after whatever he owes the Appellants must have been deducted.

On the whole, this appeal is meritorious Issues Numbers 3, 4, and 5 are resolved in favour of the Appellant. Ground 1, 2, 4 and 5 shall succeed and accordingly sustained. The Judgment of the trial (sic) is herby set aside except order 5 which directs the Plaintiff/respondent to pay the Defendant/Counterclaimant/Appellant the sum of N69, 407.20k by way of counter-claim.

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Other Citations: (2008)LCN/2924(CA)