Usen V Bank Of West Africa Ltd (1965)

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BRETT, J.S.C.

The appellant was first employed by the respondent Bank on the 1st June, 1948, and remained in its employment until the 12th January, 1962, when he received a letter saying that his employment was terminated as a result of his serious misconduct.

On the 30th January, 1964, he instituted these proceedings, in which he claimed damages for wrongful dismissal in the sum of £1,381-3s-10d, made up of one month’s salary, leave pay for six months, and sums which he said were due to him by way of shortage allowance and out of a Provident Fund and a Staff Profit Sharing Fund.

Pleadings were ordered and it was pleaded in the Statement of Claim that the contract of service provided for one month’s notice of termination, that the appellant had been wrongfully dismissed, and that the sums claimed had been wrongfully withheld. The core of the Statement of Defence is in paragraph 17, which reads as follows-

“17. The defendants admit that it was an express term of the said contract of service that either party should be at liberty to put an end to such further employment upon giving to the other one month’s notice in writing or by the defendants paying to the plaintiff one month’s salary in lieu of notice but the said contract of service provided for certain events upon which occurring the defendants could determine the said contract of service without notice and in accordance with the same the defendants did terminate the said contract of service without notice.”

This is as vague as it could well be, but no motion for further and better particulars was brought, and the case went to trial with the defendants enjoying the tactical advantage of having avoided committing themselves to any precise version of the facts, or of the interpretation to be put on the facts. What is important is that they did not assume the burden of proving that the appellant had been guilty of fraud.

The appellant was not in any doubt as to the incident which was alleged to justify his dismissal. In his evidence in chief he produced a letter written by the Bank’s legal adviser to his solicitors, in which it was stated that he was dismissed “as a result of a deficiency of £235”, and he then went on to give his account of the incident.

There is a conflict of evidence on this between him and Mr. Lowd, who was Manager of the Maiduguri branch of the Bank, at which the appellant was working at the time, and the case turns on which version is to be believed. The burden of proving that the dismissal of the appellant was justified is on the Bank.

The facts were that on the 3rd January, 1962, a customer of the Bank’s called Umenze called on the Bank wishing to withdraw funds. When the state of his account was queried he produced a teller dated the previous day showing a payment in of £235, and bearing the signature of the appellant as receiving cashier, and an imprint of a rubber stamp.

The number on this stamp showed that it was one appropriated for the appellant’s use; no-one but the appellant was authorised to have access to it, and he had standing instructions in writing that he was not to leave it unprotected. As no credit entry had been made in the cash book or ledger, and no payment in could be accounted for, Mr. Lowd sent for the appellant and asked him about the teller. Up to this point the facts are agreed, but here the stories diverge.

The appellant says that he at once denied receiving the money, and although he admits that the stamp was his, he maintains that he has always denied that the signature was his. Mr. Lowd is not certain whether the appellant denied receiving the money, but he says positively that the appellant admitted that both the stamp and the signature were his, and that in consequence of this he, Mr. Lowd, felt obliged to order that the customer’s account should be credited, and that the customer should be allowed to draw at once against the credit.

Mr. Lowd had no authority to dismiss staff, but he immediately reported the facts as stated in his evidence to his Head Office by telegram and letter, and the letter by which the appellant was dismissed was the result.

The trial judge accepted Mr. Lowd’s version, and dismissed the claim. We have been asked to reverse his findings on this but in our view they were fully warranted by the evidence. It is difficult to believe that Mr. Lowd would have acted to the detriment of the Bank by ordering the customer’s account to be credited if he had not satisfied himself by inquiry that the teller was genuine and could not be disputed, and although this is not independent corroboration of his story it shows that his conduct has been consistent and credible throughout. The appellant’s suggestion that because his relations with Mr. Lowd had not been cordial Mr. Lowd was prepared to tell de liberate lies against him is insufficient to explain why Mr. Lowd should have disregarded his duty to the Bank, and apart from the signature it is significant that the appellant made no attempt to explain how the imprint of his stamp came to be on the teller if he had not affixed it or allowed it to be affixed. We uphold the judge’s findings on this point.

The judge went on to say that the Bank had “been made to lose the sum of £235 not by any act or omission or mistake but what amounts to a deliberate misappropriation” which was going further than the respondents had been prepared to go in their pleading. Where fraud has not been pleaded, it is well settled that neither party may invite the court to find it proved, and there are even stronger objections to the court’s doing so uninvited. It is also settled that a party who intends to prove fraud must plead it expressly and that if he had not done so he will not be allowed to produce evidence which points unequivocally to fraud and nothing else. However, counsel for the appellant did not submit that Mr. Lowd’s evidence, if accepted, was conclusive proof of fraud, and he agreed that the facts as found by the judge were open to three possible explanations: the appellant might, as the judge held, have misappropriated the money; or he might deliberately and fraudulently have issued a teller for a sum which he had never received; or he might have done the same thing through negligence.

Counsel for the appellant invited the Court to adopt the third explanation, if Mr. Lowd’s evidence was accepted, and to say that the negligence did not amount to such misconduct as would justify the summary dismissal of a servant of fourteen years’ standing, with forfeiture of all retiring benefits.

We consider that on the pleadings and the evidence the proper course is to say that what has been proved against the appellant amounts to negligence, and to remove whatever stigma may attach to him from a judicial finding that he acted fraudulently. Even on that basis we cannot say that an act of negligence which resulted in the issue of a false teller bearing the signature and stamp of the appellant was not misconduct of such a kind as to justify his dismissal.

He may feel aggrieved at losing the accrued benefits of fourteen years’ service for a single act of negligence, however gross, but that is not a matter for the Court, and a letter which he himself produced in evidence shows that he rejected the Bank’s offer to make an ex gratia payment of an amount which is not ungenerous.

The question of the damages to which the appellant would be entitled if he succeeded was argued but does not now arise.

The appeal is dismissed, with costs which we estimate at 27 guineas.

Other Citation: (1965) LCN/1282(SC)