African Continental Bank Plc V. S. I. C. Odukwe (2004)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This is an appeal against the judgment of the then Bendel State High Court sitting at Agbor in the present Delta State. The plaintiff’s claim endorsed on the writ of summons issued on 12th November, 1990 and amended in paragraph 16 of the amended statement of claim reproduced hereunder:

“1. A declaration that the plaintiff is still in the employment of the defendant and is entitled to the benefit accrued since the 1st day of September, 1985 when the defendant purportedly illegally and wrongfully dismissed plaintiff from its service, and/or

2a. A declaration that the plaintiff is entitled to the benefit of a retirement with all his right and privileges given to him by virtue of his employment by the defendant.

(b) Order of court that the plaintiff be paid special damages as follows:

(1) Balance leave grant unpaid 838.20

(2) Send off for retired officers 1,000.00

(3) Half salary as a result of suspension from duty between July-September – (N839.33 x 3) 2,517.99

(4) One standard freezer N4,500.00

(5) A double charlet for plaintiff and wife in a good hotel for 2(two) nights 2,000.00

3. An order of court sitting aside letter reference number PAD/IR/STA.502 emanating from the defendant as irregular and in breach of the rules of natural justice and against the collective agreement between plaintiff and defendant.
4. An order of perpetual injunction restraining the defendant, its servants/agents/privies from further issuing and acting upon letter No.PAD/IR/STA.502 dated the 1st day of September, 1988 dismissing or terminating the employment of the plaintiff without payment of his retirement benefits, rights or privileges.
5. Payment of the sum of N50,000.00 (fifty thousand Naira) as damages.”

Pleadings were filed and exchanged.

At the trial, the plaintiff (respondent herein) testified for himself and closed his case. The defendant, (now appellant) fielded six witnesses and at the close of its case, learned counsel for the parties addressed the court. On 29th May, 1992 the trial court (Edah, J. Presiding) entered judgment for the plaintiff (now respondent) in the following terms: “On the whole, therefore, I hold on the credible evidence before me that the plaintiff has proved his case against the defendant on a balance of probabilities and that he is entitled to judgment. In the circumstances, judgment is hereby entered in favour of the plaintiff against the defendant in the following terms:-

“1. It is hereby declared that the plaintiff is entitled to the benefit of a retirement with all his rights and privileges given to him by virtue of his employment by the defendant.

2. It is hereby ordered that letter reference No. PAD/IR/STA.502 emanating from the defendant be and is hereby set aside as irregular, in breach of the rules of natural justice and against the collective agreement between the plaintiff and defendant.
3. The recovery of the sum of N10,856.19 (ten thousand, eight hundred and fifty-six Naira, nineteen kobo) being special damages for unlawful dismissal.
4. The cost of this action is assessed at N500.00 in favour of the plaintiff.”

Aggrieved by the said judgment, the appellant appealed to this court on the following six (6) grounds:

“(i) Decision is against the weight of evidence.

(ii) The learned trial Judge departed from the ambit of the contractual agreement between the plaintiff and defendant in his judgment and thus came to a wrong conclusion.

(iii) The learned trial Judge gave a very restrictive interpretation to the phrase – willful disobedience of a lawful order- as contained in exhibit K1 and thus, came to a wrong conclusion in his judgment.

(iv) The learned trial Judge detailed (sic) in law when in his judgment he placed the onus of proof of special damages on the defendant.

(v) The learned trial Judge was wrong in law in his interpretation of the scope of pleadings which led him to wrong assessment of evidence.

(vi) The learned trial Judge was wrong in law when he failed to take into consideration the admissions (sic) of the plaintiff under cross-examination in relation in exhibits B1, C1, D, E3 – ‘Embargoes on advances’. None of the grounds of appeal had particulars.”

Consistent with the rules of the court, the parties, through their respective counsel filed and exchanged briefs of argument. From his six grounds of appeal, learned counsel for the appellant in his briefs of argument, isolated the following three issues for the court to determine:

“(i) Was granting unauthorised loans within the scope of wilful disobedience of lawful order, and was it sufficiently pleaded and proved?

(ii) Was the defendant wrongfully dismissed?

(iii) Can an appeal court re-evaluate evidence given at the lower court?”

In his own brief of argument, learned counsel for the respondent also framed the following three issues for determination:

“(1) Was it right in law to have dismissed the plaintiff/respondent on several allegations of crime which were neither reported to the police nor proved in court?

(2) Did the trial court correctly address and find on the issue of waver (sic) by the defendant of the alleged misconduct of the plaintiff?

(3) Was the plaintiff’s right to fair hearing and rules of natural justice breached by the actions of the defendants?”

At this stage, there is need to comment on the grounds of appeal and the issues formulated by learned counsel for the patties. Ground six complains that the learned trial Judge was wrong in law when he failed to take into consideration the admissions of the plaintiff under cross-examination in relation to exhibits B1, C1, D1, E2 and E3 – ‘Embargoes on advances’. In effect, the complaint is of non-evaluation of, and ipso facto, non-ascription of probative value, to the alleged admissions. Counsel labelled it error in law but this court is not bound by counsel’s classification of a particular ground of appeal. Whenever, as in this case, the complaint is exclusively on the evaluation of the evidence, i.e., the alleged admission in the light of the exhibits, it is a ground of fact. See Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555.

The said ground 6, filed without leave of this court or the court below, was filed in violation of S. 242 of the Constitution of the Federal Republic of Nigeria, 1999. It is therefore incompetent and it is hereby struck out. From a careful examination of the grounds of appeal and the issues framed therefrom, the 3rd issue – that is whether an appeal court can revaluate the evidence given at the lower court, stems from ground 6 rather than ground 1 as stated by learned counsel. Ground 6 having been struck out as incompetent the 3rd issue based on it goes with it. There is need for more surgical operation.

Learned counsel for the appellant said that issue one is distilled from grounds 2, 3, 5 and 6 of the grounds of appeal and that the 2nd and 3rd issues ‘cover ground 1 of the appeal’. It is accepted and correct practice to frame an issue for determination from several grounds of appeal. In appropriate cases it is permitted to frame an issue from each ground of appeal but on no account should counsel distill more than one issue from one ground of appeal. See Onyemaizu v. Ojiako (2000) 6 NWLR (Pt. 659) 25. In this case, the 2nd and 3rd issues are said to emanate from ground 1 and since there cannot be two issues from the one ground of appeal and since it cannot be determined which of the two issues to jettison and which one to retain the said ground one of appeal must be taken as having been abandoned as there is no issue based on it.

The two issues do not properly relate to any ground of appeal and in consequence, ground 1 of the ground of appeal and issues 2 and 3 are incompetent and are hereby struck out. In the end, the appellant is left with issue 1 distilled from grounds 2, 3, 5 & 6.

The issues formulated by learned counsel for the respondent are also bedevilled with a fundamental vice. The respondent filed neither a cross-appeal nor a respondent’s notice. He has to adopt or modify the issues presented by the appellant. At any rate, he cannot formulate issues outside the grounds of appeal. In my view, issue one flows from the grounds of appeal and appears to be a variant of the appellant’s issue 1. However, the 2nd and 3rd issues appear to have come from the blues as they are neither adoptions of the appellant’s issues nor do flow from any of grounds 1 to 5 of the surviving grounds of appeal. I therefore strike out issues 2 & 3 in the respondent’s brief as incompetent.

This leaves the parties with issue one in their respective briefs of argument. In their combined effect the two issues raise the question whether unauthorised loans come within the scope of wilful disobedience to lawful order if proved to warrant a dismissal of the respondent on allegations of crime which have no proved in court.

The main point of the appellant’s argument is the alleged unauthorised loans granted by the respondent contrary to the terms A of exhibits B1, D2, 2E, E2. Counsel referred to exhibits D, E, O, P, T, U and W for admission he said were made by the respondent. He argued that the queries the respondent admitted receiving were based on unauthorised lendings. Counsel submitted that no proof of unauthorised lending was needed as the respondent did not deny granting the loans at the earliest opportunity.

He said the denial in court was of no avail as the combined effect of exhibits B1, C1, D2, E2 and E3 was to take away all forms of discretionary lending power from the respondent. He urged the Court not to give any weight to the evidence of the respondent tending to contest what be admitted and for which he apologised in answer to one of the queries.

He relied on Agwu & Ors. v. The State (1965) NMLR 18; (1959) 4 FSC 102 and urged the court to reject the respondent’s denials which contradicted his earlier written statements. Counsel referred to paragraph 22 of the amended statement of defence and said the court below should have drawn the inference that wilful disobedience of lawful order was pleaded. He said the trial Judge was wrong to have gone on a ‘voyage of discovery to scrounge for evidence of the Jack of office/received stamp of Agbor Branch on the documents to come to the conclusion that the plaintiff did not receive the documents the breach of which the appellant complained of’.

He referred to the dictum of Eso, J.S.C. in State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548 and argued that the lower court deviated from its duty to make findings of fact based on the credibility of the witnesses and to decide the merits of the case on the findings. After deviating to issues that bear no relation to the issue of unauthorized loan and whether the same was pleaded and proved, learned counsel concluded that the grant of unauthorised loan was within the scope of wilful disobedience of lawful order and that it was sufficiently pleaded and proved.

In dealing with issue 1 in his own brief, learned counsel for the respondent said the allegation made against the respondent are:

“(a) fraud

(b) opening of several current accounts with fictitious names and addresses which cannot be traced.

(c) Embezzlement.”

Counsel argued that though the allegations are criminal in nature the matter was not reported to the police and so the respondent was neither charged to court nor convicted by a court of law. He cited Garbo v. University of Maduguri (1986) 1 NWLR (Pt. 18) 550 and argued that the executive council of the appellant is not competent to deal with allegation of crime against the respondent. He referred to F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652; (1989) 4 SCNJ 146 at 16 and argued that in allegations of crime the relevant provision of the Constitution must be adhered to. He said the court below was right to have held that the failure to prove the allegations of crime was fatal to the prosecution’s case.

The respondent earned a query over an alleged unauthorised overdraft of N2,474,915.29. It was further alleged that he, ‘in anticipation of an imminent removal from Agbor Branch’ granted further facilities amounting to N210,153.26. The query did not state that the later sum was unauthorised. The query was dated 5th May, 1988 and the respondent’s answer dated June 27th, 1988 appears to have assumed that the amount sum of N210.253.76 was also unauthorised over-draft thus bringing the total to N2,685,070.55 in the reply to the query. On 1st September, 1988 the appellant dismissed the respondent from its service ‘for issuing unauthorized overdraft of N2.6m’.

The sole issue the court below had to determine, and with which I respectively accept as the issue in this appeal, is whether or not the summary dismissal of the respondent by the appellant is lawful in the prevailing circumstances.

The terms of the contract of master/employee between the parties are spelt out in exhibit K1. The relevant article is Art. 4(iv)(a)(1H) herein reproduced:

“4(iv) Summary dismissal

(a) An employee may be summarily dismissed for certain offences covered by the broad heading of gross misconduct. Such offences include proven cases of:

(ii) Wilful disobedience of a lawful order on serious negligence…”

Neither the term ‘wilful disobedience of a lawful order’ nor ‘serious negligence’ was defined in exhibit K1. Be that as it may, the expression ‘proven cases of’ implies that the dismissal must be based on more than a mere allegation of wilful disobedience or serious negligence. From the point of view of the respondent unauthorised lending was neither pleaded nor proved by the appellant.

On the other hand, the appellant is of the view that at the earliest opportunity the respondent in answer to the query concerning same, admitted and apologised for giving unauthorisd overdraft and the respondent’s evidence in court tending to contest an issue earlier admitted and apologised for ought, in the absence of explanation, to be rejected as an after-thought. This position finds support in the dictum of Onyeama, J.S.C. in Agwu & Ors. v. The State (1965) NMLR 18; (1959) 4 FSC 102 an authority relied in by the appellant.

The alleged admission is contained in the respondent’s answer to the query dated 27th May, 1988, the relevant portion of which is herein reproduced: “But if my action in granting overdraft in order that the branch can break even run counter to management’s desire and aspiration, I apologise for my action.” I understand the above to mean that the respondent’s apology is predicated on the assumption but without conceding, that the loans were in conflict with the appellant’s desires and aspirations. If the three page answer to the query is read as a whole, it will be clear that the respondent did not accept any impropriety or breach of the appellant’s regulation in his action which would have formed the basis for apology.

I have stated earlier in this judgment that the use of the expression ‘proven cases of’ in Art. 4 of exhibit K1 implies at least that the matter has gone beyond a mere allegation and that the veracity of the allegation has been established though not necessarily in court. Now, if unauthorised lending is encompassed in the broad heading of ‘gross misconduct’, was it established on the evidence before the court below? I have carefully read the entire proceedings.

Unauthorised leading or overdraft means that there is a ceiling beyond which the respondent could not grant loan or overdraft. In his considered judgment, the learned trial Judge found that ‘it is not pleaded nor evidence led by the defendant to show what these head office approved limits were beyond which the plaintiff was not permitted to grant loans and facilities…’ The lower court’s finding is based on a portion of the query alleging ‘total unauthorized facilities, loans and excess overdrafts over and above head office approved limits’.

As found by the learned trial Judge, a finding with which I am in respectful agreement, the only evidence touching on permitted limit was given by the respondent. He swore that it is only in respect of a loan or overdraft above N500,000.00 that a branch manager requires the approval of head office to grant to bank customers. This evidence was not challenged nor was it in its nature inherently incredible. The lower court was right to accord it appropriate weight. The alleged overdraft of N2.6m was not made en bloc and going by the unchallenged evidence of the respondent which the court below accepted and relied on it was incumbent on the appellant to break the sum up with reference to the dates the loans were granted and show that a loan granted on a particular date was more than N500,000.00, without which it cannot be said that the respondent granted unauthorised loan or overdraft at any particular point in time.

The appellant relied on exhibits B1, C1, D2, R2 and D3, to say that the respondent granted overdrafts in defiance of embargos placed on lendings. However, the respondent denied receiving any of the exhibits and in attempt to prove the contrary the appellant sought to rely on the evidence of PW5 who took over from the respondent who handed him over the exhibits placing embargo on lending. I have carefully considered the amended statement of defence and I agree with court below that the appellant pleaded no facts that can form the basis of the reception of the evidence that the PW5 took over from the respondent and/or that the respondent handed over the said exhibits to the PW5.

On the issue of whether or not the respondent received exhibits B1, C1, D2, E2 and E3 learned counsel for the appellant resorted to disparaging language in his claim that the learned trial Judge ”went on a voyage of discovery to scrounge for evidence of the lack of official received stamp of Agbor branch on the documents to come to the conclusion that the plaintiff did not receive the document the breach of which the appellant complained of.”

I agree with learned counsel for the appellant that the role of a trial Judge as stated by Eso, J.S.C. in the case he cited The State v. Aibangbee (1988) 13 NWLR (Pt. 84) 548 is to hear evidence, to evaluate the evidence, to believe or disbelieve witnesses, to make findings of fact based on the credibility of the witnesses who testified and to decide the merits of the case based on the findings.

Now applying the above to documentary evidence in this case exhibits B1, C1, D2, E2 and E3, the court can hardly evaluate and ascribe probative value to them without examining their contents. In its scrutiny of the documents, the court found that they emanated from the appellant’s office in Lagos and were meant to be sent to area and branch offices of the appellant. The exhibits bore the official stamp of the area office, Benin, meaning that they were received in Benin not Agbor where the respondent was a branch manager. It would have been selective justice and unjustified leaning towards the appellant for the lower court to ignore the portion of the evidence of the appellant which lends support to the contention of the respondent that he did not receive the exhibits.

The documents were tendered in order to fix the respondent with knowledge of their contents. In order to achieve its set goal the appellant was required to do more than tendering documents which contained information that they were received in Benin, not Agbor. There is no evidence that the respondent was in Benin at the material time.

In view of the foregoing, I have come to the conclusion that the alleged unauthorised loans were not pleaded and ipso facto not proved and it serves no useful purpose in this appeal to determine whether or not what was not pleaded and proved is within the scope of wilful disobedience of lawful order. It was therefore wrong to dismiss the respondent from the service on the allegation that was not proved and could not have been proved in view of the amended pleadings relied on by the parties. It is my view that this appeal is devoid of merit and it is hereby dismissed with N5,000.00 costs to the respondent.

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Other Citations: (2004)LCN/1597(CA)