Anselim Irechukwu Osakwe V. Nigerian Paper Mill Ltd (1998)

LAWGLOBAL HUB Lead Judgment Report

“a ‘declaration’ that the plaintiffs purported dismissal from the defendant’s employment vide letter 15th September, 1983 is null and void being against the rule of natural justice, that the plaintiff is still in the employment of the defendant and entitled to his remunerations and allowances to date” Pleadings were ordered, filed and exchanged. By paragraph 8 and 9 of his statement of claim the plaintiff claimed:

“8. The plaintiff therefore prays that the said dismissal be declared null and void being against the rule of natural justice, contrary to Nigerian 1979 Constitution, and that the plaintiff is was in the defendant employment.

9. The plaintiff claims in the alternative such damages as the court may find appropriate in the circumstances of the case having regard to the provisions of the conditions of service binding between the plaintiff and the defendant.”

The action proceeded to trial at which plaintiff testified in his own behalf and closed his case. One witness testified for the defence. Learned counsel for the parties submitted written addresses. The learned trial Judge, in a reserved judgment, found plaintiff’s case not proved and dismissed same. The learned Judge found the following facts not in dispute and, therefore, proved, that is to say:

“1. That the plaintiff who was appointed as Finance Clerk rose to the rank of Assistant Chief Accountant.

2. That the company had and still has cheque exchange for cash by its staff procedure.
3. That the company also has a loan scheme for its staff.
4. That in the course of his employment as Assistant Chief Accountant, the plaintiff indulged. over the years, in objectionable cheque exchange transactions the type which he alleged were practised by 17 others and an expatriate senior officer whose fates we know nothing about but none of who testified before this court.
5. That the cheque exchange transactions were detected to be irregular through internal auditing.
6. That the Board of Directors consequently interviewed the plaintiff on the questionable financial transactions before he was suspended as per a letter dated 22nd July, 1983 (Exhibit 1) which goes thus in the relevant part:

‘It has been revealed after careful investigation that you have been involved in misappropriation of the company’s money. After the exclusive interview with you in the presence of the Cashier and other Accounting Officers by the Board of Directors and your admission to the above, the Board of Directors have no alternative but to suspend you forthwith pending further investigations. You are advised to handover all the keys and records of all your offices, safes and other company’s properties in your possession to the Internal Auditor and Company Secretary immediately.

(SGD.)

(ALHAJI M. KALOMA).

CHAIRMAN

7. That although the plaintiff had every opportunity in the world to react to the content of Exhibit ‘I’, he never denied the fact that he was given an exclusive interview by the Board of Directors and the fact of his admission in the presence of the Cashier and other accounting officers.
8. That consequently the plaintiffs Exhibit ‘2’ written to summarily dismiss him went thus in the relevant part:

‘It has been found after detailed and careful investigation that you have been involved in the misappropriation of company money and other irregularities. You had admitted the above in the presence of Board of Directors.’”

He identified the issues remaining for determination. These were:

“1. Whether or not the plaintiff was summarily dismissed for a misconduct covered by the condition of service and in accordance with the condition of service.

2. Whether or not the alleged or proven misconduct is of criminal nature and if of criminal nature, whether or not any disciplinary tribunal not being a court of law could deal with it and thus proceed on it to dismiss the plaintiff; and
3. Whether or not the plaintiff has been given a fair hearing by his employer before his suspension and dismissal.”

The learned Judge resolved these issues thus:

“Quite rightly, it has not been suggested that the granting of loans without permission or the taking of irregular cheque exchange does not endanger the safety of the property of the employer as to amount to a ‘misappropriation of such money. Therefore, the conclusion is that the power to punish by summary dismissal for serious misconduct is known to be binding condition of service (Exhibit 3) which governs the situation at hand ….”

“As I have said earlier, admitted misappropriation of fund per se and contravening the laid down rules amount to serious misconduct which come squarely within the rule in Sinclair v. Neighbour (1967) 2 WLR 1 where it was held that a servant can be summarily dismissed by his employer if his conduct is of great and weighty character that it undermines the relationship of confidence which should exist between master and servant.. ..”