Elijah I. Ezekwere V. Golden Guinea Breweries Limited (2000)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A
We are here concerned with an appeal by the plaintiff and a cross appeal by the defendant against the decision of the Abia State High Court (M. O. Maranzu, J) sitting at Umuahia. The plaintiff was, until 5/7/83, in the service of the defendant, a limited liability company, as a sales representative. On that day, the defendant served the plaintiff a letter of dismissal on grounds of misconduct. The letter was put in evidence before the trial court as Exh. E. Prior to the issuance of this letter the defendant had issued two letters of query to the plaintiff concerning the conduct of the latter that it considered to constitute gross misconduct and on which the dismissal was based. These queries were tendered before the trial court as Exhs. F and G. The defendant wrote Exh. E, the letter of dismissal, because it was not satisfied with the representations that the plaintiff had made in answer to the allegations made against him in the letters of query. The plaintiff’s answer to the queries was tendered before the trial Court as Exh. H.
Not happy about his dismissal the plaintiff took the matter to court. In paragraph 13 of his amended statement of claim he sought the following reliefs:
“(a) A declaration that the letter of his dismissal Ref. No. PM. 794/1939 dated 5th July, 1983 is contrary to the working Rules and Regulations of the defendant, illegal and unconstitutional and therefore null and void and of no effect for wrongful dismissal and loss of job opportunity or in the alternative reinstatement in the services of the defendant.
(c) A declaration that the plaintiff is entitled to his salaries and entitlements from 1st July up to the date of judgment.”
Because some of the arguments put forward before us on behalf of the plaintiff/appellant I think it is necessary to analyse these reliefs and see what he really was seeking. As can be seen, in paragraph 13(a) he sought a declaration that his dismissal was illegal and unconstitutional and, therefore, null and void and of no effect. Naturally flowing from this is the declaration sought in paragraph 13(c) that he is entitled to his salaries and other entitlements during the period that he purportedly remained dismissed. Naturally following also would be an order, prayed for in the second leg of paragraph 13(b), directing that he be allowed to some his duties forthwith. The first leg of paragraph 13(b) makes it clear that, by way of an alternative relief to declaring his dismissal null and void and of no effect, the plaintiff sought damages for wrongful dismissal. I shall revert to this aspect of the case at the appropriate time.
Only the plaintiff testified for himself, but he put a number of documents in evidence. The defendant called two witnesses. The Court directed counsel on both sides to file written addresses and they complied. The learned Judge then delivered his judgment on 1/6/89 granting the second of the alternative sets of reliefs sought by plaintiff. He accepted the contention that the plaintiff’s dismissal was wrongful. He gave two main reasons for his decision. Firstly, he held that the defendant did not give the latter a prior fair hearing. Secondly, the defendant did not, in the steps it took to dismiss the plaintiff, comply with the terms of the contract of service that existed between it and the plaintiff for dismissing an employee. He however rejected the first alternative i.e. that the dismissal was illegal and unconstitutional and that the plaintiff is entitled to any salaries or other benefits beyond general damages for wrongful dismissal as claimed. He awarded N600.00 to the plaintiff on this head of claim.
The plaintiff was not happy that in addition to the award of damages the learned Judge did not make the two declarations sought in paragraph 1 (a) and (c). He has therefore brought this appeal against the refusal to make those declarations.
The defendant for its part was dissatisfied with the decision of the Court that the dismissal of the plaintiff was wrongful. It therefore cross appealed in challenge to that aspect of the decision.
Briefs of argument were filed and exchanged in compliance with the Rules of this Court. Counsel on behalf of the appellant formulated the following two issues for determination, both relating only to his appeal:
“(i) Whether or not the learned trial Judge was right in failing to grant the declaration sought for in paragraphs 13(a) and 13(c) of the amended statement of claim?
(2) Whether or not the learned trial Judge was right or not in failing to make a complete declaration of the plaintiffs entitlement to his claim under paragraph 13(b) of the amended statement of claim?”
With regard to the main appeal counsel on behalf of the respondent/cross appellant formulated only one issue thus:-
“1. Whether the appellant’s appointment with the respondent had a statutory flavour so as to entitle the appellant to reinstatement and arrears of salary.”
With regard to the cross-appeal, he formulated the following one issue:
“Whether the learned trial Judge was right in holding that the appellant was not given a fair hearing and the consequently his dismissal was wrongful and entitled him to general damages.”
I shall first deal with the main appeal, beginning with the second issue formulated on behalf of the appellant from ground 3 of his additional grounds of appeal. The submissions made on it by Chief B.S.C. Nzenwa in the appellant’s brief are short. I shall, therefore, reproduce them verbatim. This, I believe, will throw my comments on them in greater relief than if I only paraphrase them. That is, if I understand them enough to undertake such an exercise:
“The Learned trial Judge delivered a partial Judgment under paragraph 13(a) of the amended statement of claim – See page 139 of the Records Lines 30 – 33 and page 140 lines 1 – ending with the word ‘dismissed’. Only N100,000.00 General Damages for wrongful dismissal was considered and leaving out the other alternative- ‘Or in the alternative reinstatement in the service of the defendant’.
This was a serious error since the crux of the whole plaintiffs case revolves on relief 13(a) it is submitted that under the principle in Olaniyan’s case supra this alternative relief should be granted. No consideration was given to this relief by the learned trial Judge at all. Where there exists conditions of service and a charge of misconduct is made, it needs hardly be stated that any disciplinary measure by way of dismissal, retirement prematuredly or termination ought ordinarily to follow in the wake of laid down procedures. This was stated in the case Calabar Cement Company v. Daniel (1991) 4 N.W.L.R (Pt.188) paragraph 750 – 760.
This case was followed by the unreported case of Flt. Lt. Out Edet v. Chief of Air Staff and Another reported in the Guardian of Wednesday January 5, 1994 at page 22 as per Ignatius C. Pats Acholonu, JJCA (sic) Suit No. CA/L/288/91. Now reported in (1994) 2 NWLR (Pt.324) 41. The facts are on all fours with the instant case. “When the learned trial Judge gave a partial judgment on behalf of the relief claimed, his judgment is in error as no court should grant a relief not claimed unless in certain circumstances when consequential reliefs could be granted and the instant case is not one of such circumstances.”
I must confess to an inability to follow the arguments put forward by learned counsel here. Is he saying that the learned Judge should have granted the first of the alternative reliefs, i.e., a declaration that the dismissal was null and void and of no effect, rather than the second, i.e., damages for wrongful dismissal? If this is what he is saying, then he should have made it clear before the learned Judge. He should not have given the Judge the freedom to choose which of the two reliefs to grant. Since he left the choice to the Judge as to which of the alternative reliefs to grant and the latter made his, he cannot now be heard to complain that the Judge should have granted the one and not the other.
Or is he saying that the judge should have granted both of the alternative reliefs claimed? In other words, is he saying that in addition to awarding damages to the plaintiff for wrongful dismissal the learned Judge should also have declared the letter dismissing him null and void and of no effect? If this is what he is saying (and it appears to me that that is what he is saying) then, with the profoundest respect to him, I think his arguments are misconceived. Such line of argument would show the counsel does not understand what it means to ask for one thing in the alternative to another. One cannot expect to get two things together if one has asked for them in the alternative to each other. A thing is said to be an alternative to another when it is available in place of the other thing. See Oxford Advance Learner’s Dictionary. See also Black’s Law Dictionary. According to Jowitt’s Dictionary. According to Jowitt’s Dictionary of English Law.
“Where a new remedy is created in addition to an existing one, they can be called alternative if only one can be enforced; if both, cumulative.” (italics mine).
What the plaintiff/appellant did before the trial court was to ask it to either declare, in place of awarding damages for wrongful dismissal, that the letter purportedly dismissing him was null and of no effect, or to award damages in place of such declaration. What he is pressing before us now, however, is to hold that the Judge was in error not to have grained both reliefs.
Now, what is the effect of claiming damages for wrongful dismissal and at the same time seeking a declaration that the letter of dismissal is null and void and of no effect whatsoever?
“Wrongful dismissal” is defined in Jowitt’s Dictionary of English Law as-
“an unjustifiable dismissal of a servant by the master from an engagement for service for a fixed time or, if upon notice, before expiration of the period of notice. The servant may elect to regard the contract as repudiated… In which case, he can recover remuneration for what he has actually done on a quantum meruit, or if he treats the contract as continuing he may sue for damages for the loss of employment and for wages as he has lost the opportunity of earning…”
It can be seen therefore that a claim for general damages for wrongful dismissal is an acknowledgment by the plaintiff that his employment with his master has effectively come to an end, even if the termination had been wrongfully effected. In this kind of cases, the courts are reluctant to force a willing employee on an unwilling employer or vice versa. The master-servant arrangement between them having been arrived at by their mutual agreement must be capable of being brought to an end by either one of them. If any of them follows the agreed method of bringing it to an end prematurely, then the matter ends there. If, on the other hand, he fails to comply with the agreed procedure the common law rule that seeks to protect the sanctity of contracts will not let him go scot free. That is why it regards such premature termination of the relationship as wrongful affair. It is in recognition of this rule of law that the courts, while reluctant to force the parties to continue the relationship, make the erring employer pay for his unjustifiable conduct by slapping him with an order for payment of damages to compensate the employee for being wrongfully put out of job.
On the other hand, seeking a declaration that the letter dismissing him is null and void and of no effect whatsoever implies an assertion by the plaintiff that he has in law never left the service of his master although in fact he had been kept out of office. He also says in effect that he is, therefore, entitled to his salaries and other emoluments without any break, including of course, the period when he was kept out of office. In a case like this, an order for reinstatement is only a formality to give effect to the declaration. In Shitta-Bey v. Federal Public Service Commission (1981) 12 N.S.C.C. 19; (1981)1 SC 40 the employee successfully sought a declaration that his retirement was null and void and of no effect. He later sought re-instatement, which the Commission resisted. Idigbe, JSC, dealt with the matter thus at page 32 of the report.
” … the court has by Exhibit ‘D’ [The judgment of Bada, J.] declaring the purported retirement null and void and of no effect aforesaid precluded the exercise of ‘discretion’ to remove the appellant from service, unless and until proceedings are properly taken and completed under the procedure in the 1974 Civil Service Rules. Again, it seems to me that Exhibit ‘D’ rests the appellant with a ‘legal right’ to remain in office and carry out his public duties as a civil servant…”
The judgment of Bada, J., impliedly confers on the appellant a right to be placed de facto in his original position i.e a right to be re-instated; for, although his termination and retirement were declared ‘invalid, null and void’ and so, in law he was never legally terminated or retired from his employment, there had been a de facto termination or removal from office …”
(Square brackets and content and italics mine).
It can be seen from this analysis of the two concepts that, by their very nature, the reliefs sought in paragraph 13(a) and (c) and the first leg of 13(b), on the one hand, and in the second leg of 13(b), on the other, can only be claimed in the alternative. They are two incompatible bedfellows that can ill exist together. The appellant cannot claim damages for wrongful dismissal, implying that his service with the respondent had come to an end and at the same time claim a declaration that he has never left the service of the respondent company.
For these reasons, it is my view that the criticism of the learned Judge by the appellant’s counsel for not also granting the reliefs sought in paragraphs 13(a) and (c) is totally unjustified and unjustifiable. The award made by the Judge cannot in the circumstances be regarded as partial. Had he done what learned counsel is now trying to convince us he should have done his decision would have become impeachable on two grounds. He would have granted the appellant far more than he had claimed. The appellant had, as my analysis of his claim shows, claimed only one or the other or the two sets of reliefs he had put forward. He could not and did not claim both sets and so was not entitled to both. Secondly, the Judge would, as I have demonstrated, have granted two incompatible reliefs. It would have been most unreasonable if he had in one breath held that the plaintiff’s employment had come to an end and in another that the employment still subsisted.
As has been seen, learned counsel cited Olaniyan & Ors, University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599 and a number of other cases. I fail to see what any of these cases has to do with the issue now being discussed. None of them treated the question whether or not a claim for declaration that a letter of dismissal is null and void and for reinstatement can be sought and obtained cumulatively with the claim for damages for wrongful dismissal.
For all the reasons I have given, I must, and do hereby, resolve this issue against the appellant. The learned Judge was right in refusing to grant both sets of reliefs. Olaniyan & Ors. v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599.
I shall now take issue 1 in the appellant’s brief together with the sale issue formulated in the respondent’s brief in the main appeal.
Chief Nzenwa, for the appellant, rested his contention, that the learned trial Judge was in error in holding that the appellant’s dismissal was only wrongful and not illegal and unconstitutional as well, on two main planks. Learned counsel submitted that this was so firstly, because there was evidence, accepted by the Judge, that the respondent did not comply with the terms of the rules and regulations governing the relationship between it and the plaintiff’s appellant before dismissing the appellant.
With respect to learned counsel, I think there has been some basic misconceptions on his part here. The dismissal of an employee is not necessarily illegal or unconstitutional because it is contrary to the terms of the document governing the relationship between his employer and him. If that document is only the product of a mutual agreement between the parties, not imposed by statutory law, then non-compliance will not necessarily result in an illegal act. It may result in a wrongful act for which the employer may in law be held liable in damages to the employee. A wrongful act is not necessarily an illegal or unconstitutional one. An act is wrongful if it involves, the infringement of some right. See Mogul The Steamship Co. Ltd. v. McGregor, Gow, & Co. and Ors. (1889) 598. at 612, adopted by Bello J.S.C, (as he then was) in Aliu Bello & Ors. v. A-G. Oyo (1986) 5 NWLR (Pt. 45) 828, at 853.
The term ‘wrongful act’ is defined in Black’s Law Dictionary as-
“Any act which in the ordinary course will infringe upon the rights of another to his damage, unless it is done in the exercise of an equal or superior right. The term is occasionally equated with term ‘negligent’, but generally has been considered more comprehensive term, including criminal, wilful, wanton, reckless and another acts which in ordinary course will infringe upon rights of another to his damage.”
On the other hand, an act is illegal only when it is one which the law directly forbids, such as to commit murder or obstruct the highway. (Oxford Advanced Learner’s Dictionary). Similarly, an act is unconstitutional if it is directly prohibited by the Constitution or is contrary to one of its provisions. According to Black’s Law Dictionary, the word ‘unconstitutional’ is used in two different senses:
“One, which may be called the English sense, is that the legislation conflicts with some recognized general principle. This is no more than to say that it is unwise, or is based upon a wrong or unsound principle, or conflicts with a generally accepted policy”. The other, which may be called the American sense, is that the legislation conflicts with some provision of our written Constitution, which it is beyond the power of the Legislature to change.”
We, like the Americans, have a written Constitution. So, when we talk of an act being unconstitutional, we mean that it is contrary to or is in conflict with a provision or provisions of the Constitution.
It can thus be seen from these definitions that an act that is wrongful, in the sense that it infringes on the rights of another, will not be illegal or unconstitutional unless it is an act that is at the same time directly forbidden by law or is contrary to or in conflict with a constitutional provision. Thus, the premature execution of Nasiru Bello while his appeal was still pending was in Aliu Bello’s case, supra declared unconstitutional, illegal and unlawful because it was prohibited by law, the Constitution. It was also declared wrongful ‘in the sense that it was injurious to the right primarily of Bello to life and secondarily of his dependants who by his death lost their bread winner”. Per Oputa, JSC at 884 and 885.
Now, learned counsel for the appellant has not drawn our attention to any law or any provision of the constitution that directly forbids an employer to dismiss his employee, even wrongfully, or with which the act complained of is in conflict. The learned trial Judge held the dismissal of the appellant wrongful because, among other things, it was contrary to the provisions of clause 15(1.1) and (b) of Exh. J, i.e., the Working Rules and Regulations by which the respondent’s company regulated the relationship between itself and its employees. With respect to the learned Judge and the appellant’s counsel, it is my view that non-compliance with the provisions of this document can result in the nullity of the appellant’s dismissal only if it is shown that they have a statutory impact, thus lacing the appellant’s relationship with his employer with a statutory flavour and raising it above the normal common law master-servant relationship.
Was there such a showing before the trial court? This brings me naturally to Chief Nzenwa’s second contention.
Learned counsel’s contention here is that the fact that the defendant is a creature of statute, being a company registered under the relevant statute, renders the service of the defendant a public service, especially as the old Imo State had full control if it. Therefore, the employment of the plaintiff is in the public service of the Imo State and so, has a statutory flavour. Therefore, he has a status higher than in a mere master-servant arrangement. Learned counsel placed reliance on Olaniyan’s case, supra.
Mr. E. A Ozara, in the respondent’s brief, in answer to this contention, pointed out firstly, that it was not the appellant’s case, on his pleading in the court below, that he was a public officer by virtue of the defendant being part of the public service of the old Imo State. Secondly, learned counsel drew attention to the answer provided to this contention by Wali, JSC in Orji v. Zaria Industries Ltd. & Anor. (1992) 1 NWLR (Pt. 216) 124, at 144 to the effect that the fact that the defendant is 100% owned by Government does not make the appellant’s employment acquire a statutory flavour.
I have no difficulty at all in taking sides with Mr. Ozara on both counts. It was not the case of the appellant in the court below that his employment had a statulory flavour so as to place it above that of a mere employee. Even if that had been his case, Wali. JSC has the short answer for the appellant in the words to which Mr. Ozara has drawn our attention:
“The other issue which learned counsel raised is that since the Kaduna State Government held the largest shares… of the total shareholding of the company, the appellant’s appointment has statutory flavour and therefore a public officer. I am inclined to disagree with this submission. There is nothing to show that the conditions under which he was appointed are statutory nor that the post he was holding had any statutory impact. Mere participation of any government in a private company does not, ipso facto, convert such accompany into public one. The facts and status of the present case are in no way comparable to Olaniyan & Ors. v. Univeristy of Lagos & Anor, (1985) 2 NWLR (Pt.9) 599. In the latter case the Unviersity was established by an instrument to wit the University of Lagos Act and the procedure of removal of any of the academic and administrative officers of the University are provided in section 17 of the Act. Both Olaniyan and others who sued the University were officers appointed in accordance with provisions of the Act. They were at the time of their purported dismissal professional members of the University staff and therefore their appointment had a statutory flavour.” (italic mine).
The appellant’s counsel’s contention that the fact that the respondent was incorporated under statute equated it with the University in Olaniyan’s case holds no water in my view. The respondent company is not a creature of statute in the sense that the University in Olaniyan’s case is. Unlike the University, a private limited liability company is not established by statute. Such a company is formed by act or private persons, whether natural or corporate. By section 18 of the Companies and Allied Matter’s Act, any two or more persons may form and incorporate a company by complying with the requirements of the Act in respect of registration of such company. It will be seen from the general tenor of the Act that it, like earlier legislation passed on companies, is not aimed at establishing companies. Its object is merely to regulate how companies are formed, incorporated and run. The Act does not concern itself with the relationship between the company and its employees. That is left to private negotiation between the company and such employees, just like in the case between a private individual and his employees. The only employee of the company whose employment one might say has a statutory flavour is the company’s secretary. Section 296 of the Act makes it mandatory for the employment of one and stipulates how he may be removed. The appellant here was not the secretary or the respondent’s company.
The appellant has not shown why this issue should be resolved in his favour. Accordingly, I resolve it against him. All the issues in the main appeal having been resolved against the appellant, his appeal fails and is accordingly dismissed.
I come now to the cross-appeal. Arguing it on the sole issue formulated on behalf of the respondent/cross-appellant’s learned counsel advanced reasons why in his view, the learned Judge erred in holding that the appellant was not given a fair hearing. First, he drew attention to the fact that before the respondent company dismissed the appellant it issued him queries in Exhs. F and G and to the fact that the appellant made his representations in Exh. H. Counsel then drew attention to the testimony of the appellant where he admitted that he was given every opportunity and every facility to put his own side the story across. Citing Hart v. Military Government of Rivers State (1976) 10 N.S.C.C 622, at 632; (1976) 11 SC 211 and Adedeji v. Police Service Commission (1967) 5 N.S.C.C. 59 at 63: (1967) 1 All NLR 67; (1965) NMLR 102 learned counsel pointed out that fair hearing is not limited to oral hearing alone. Counsel then critically went through the four reasons advanced by the learned Judge to back his conclusion that the appellant had not been given a fair hearing.
I have gone through this aspect of the learned Judge’s judgment and the attack on it by learned counsel. I agree with counsel, for all the reasons that he gave, that the learned Judge had no justification at all in arriving at the conclusion he did on this aspect of the case before him. It was most unreasonable for him to hold that the case before him came within the category of cases which Aniagolu, JSC declared, in the case that he himself cited, as entitling the employer to peremptorily dismiss his employee ‘irrespective’ of the employer’s handbook” and still refused to follow the decision of the Supreme Court. I would go so far as to say that it was rather impertinent of him. At page 137, line 1 to page 138, line 2, he made the following observations and comments:
What are the peculiar facts of this case? They are among others that the plaintiff became a confirmed staff of the defendant/Company as from the 1st day of October 1982 (Exh, ‘C’ refers): that as from 1st January, 1983 the salary of the plaintiff was doubly increased to N2,349.00 per annum (Exh, ‘D’ refers); that the plaintiff was following my findings above wrongfully dismissed from the service of the defendant/Company as from 1st July, 1983, In effect, the plaintiff was a confirmed a permanent staff of the defendant/Company after his probation for only nine months (1st October, 1982 – 30th June, 1983) and he was on a salary of N2,349.00 per annum for only six months.
Against these facts are also other factors that are not in any way complimentary to the plaintiff: Among these are his failure to answer the allegations contained in his query exhibit ‘G’ dealing mainly with credit sales in his answer to the queries as contained in ‘H’. The chilling experience of D.W.2 the Marketing Manager pursuing two run-away lorries loaded with alleged empties that turned out to be crates filled with beer; the granting of credit to unauthorized people and the diversion of drinks meant for specific people to other people for whom they were not meant for (sic), In the words of Aniagolu, JSC in the case of Babatunde Ajayi v. Texaco (Nigeria) Ltd., supra…
”In the instant case, working against the deep interest of the employer clearly amounted to gross misconduct entitling the employer to peremptorily dismiss the appellant, irrespective of the ‘Employer’s Handbook Exhibit D1’,
I will hasten to add that inspite of these facts and the views of the learned Supreme Court Judge which I entirely accept, I still found the dismissal of the plaintiff wrongful because among other things the defendant relied on the provisions of their own handbook in this case exhibit ‘J’ but failed to follow the procedure they themselves set out in exhibit ‘J’ ” (Italics Mine).
With all due respect to the learned Judge, I find this last logic of his here hard to follow. He agreed with Aniagolu, JSC, that the kind of conduct he found the appellant guilty of entitles the employer to peremptorily dismiss the employee irrespective of the employer’s handbook. Yet, he still found himself at liberty to ignore the words of Aniagolu, JSC. Why? Just because the employer relied on the handbook, but did not fully comply with its provisions. But pray, was that not precisely what Aniagolu, JSC, was talking about in Ajayi’s case, supra? Did he not say that if the employee was guilty of the conduct that the Judge found the present appellant to be guilty of the employer was entitled to sack him without regard to the handbook? If the employer is entitled to disregard it completely, why should it matter that he complied with some but not all of the relevant provisions?
Let us see why the learned Judge thought that the appellant was not given a fair hearing. One of his reasons was that the records of the investigation that led to the dismissal or the appellant was compiled a year after the event. With respect, this is another impossible logic. Who says that before an employee is dismissed the record of the investigation leading up to the dismissal must be compiled? I should have thought that what matters is the fact that the report of the investigation into the conduct of the employee that the employer considers offending is placed before the appropriate disciplinary body and brought to the attention of the employee concerned for his reaction. That, as the evidence here shows, was exactly what happened here. The appellant himself admitted in evidence that the allegations arising from the investigations by the Area Sales Manager, Enugu, and the Marketing Manager were brought to his attention in Exhibits F and G. These documents speak for themselves. There was unchallenged and uncontradicted evidence before the lower court that the report was placed before Management, which considered it together with the appellant’s reaction in Exh. H to it before authorising the dismissal of the appellant. I agree entirely with the submissions of the respondent’s counsel that the fact that the record of all the investigations was compiled a year later did not affect the validity of the dismissal of the appellant.
Another reason was that not all the allegations that led to the appellant’s dismissal were included in the queries issued to him, i.e., Exhs. F and G. Again with respect, this reason is not tenable. Even only one of the allegations listed in the queries entitled the respondent to summarily dismiss the appellant if proved. The Judge himself, as seen in the portion of his judgment set out earlier, found that the appellant failed to answer the serious allegations made against him in the queries. The Judge found that he had no answer to the allegations that he made unauthorized credit sales; that he diverted drinks meant for the respondent’s customers to other persons. If these acts did not amount to working against the deep interest of the employer, then I find it hard to conceive of any other act that would. Why should the respondent be saddled with such an untrustworthy employee merely because the employer had not brought forth the complete litany of the employee’s misdeeds?. See Ajayi’s case, surpa at 30. If he had been able to satisfactorily answer such of the allegations as were brought to his notice but had been dismissed nonetheless, then one might have justified the Judge’s stand. As it was, he did not, as the learned Judge himself found, answer them satisfactorily. Moreover, the respondent made it clear in Exh. E, the letter of dismissal, that it was dismissing the appellant based on the allegations in Exhs. F and G and his unsatisfactory response thereto. It did not claim to have dismissed him on any allegation not contained in Exhs. F and G. Paragraphs 1 and 2 of the letter, Exh. E, read:
“We refer to the memos EN/41343 and EN/4/345 both of 23rd June, 1983 alleging fraudulent activities and gross misconduct against you in the discharge of your duties, and your subsequent defence of 24th June, 1983.
After thorough investigation, Management is satisfied that a strong case of fraudulent activities and gross misconduct against you in the discharge of your duties has been established against you”.
Then there was the unchallenged and uncontradicted evidence of DW2 thus.”
After receiving exhibit ‘H’ the management of the defendant company considered that the reply was unsatisfactory… After considering all aspects of the reports and reply by the plaintiff exhibit ‘H’, the management decided that the plaintiff should go…”
The Judge based his decision that the appellant was denied fair hearing also on the fact that the respondent did not comply with the provisions of clause 15(a) and (b) of Exh. J, the conditions of service. This, in his view, is because the Area Sales Manager and the Marketing Manager, rather than the Senior Personnel Manager carried out the investigation that resulted in the appellant’s dismissal. With respect, I think the Judge was too legalistic here. I agree with the respondent’s counsel that there was substantial compliance in the way the matter had been handled. Clauses 15(a) and (b) are not intended to be read as narrowly as the Judge had read them. They do not provide that nobody but the Senior Personnel Manager should be involved in the investigation of any alleged misdeed. Their aim, in my view, is to ensure that “No Manager shall have authority to unilaterally dismiss any permanent junior staff”. See the last sentence of clause 15(b). The Area Sales Manager and the Marketing Manager went into the field and discovered the appellant’s misdeeds. They did not proceed against the appellant on their own by way of dismissing him. They took the matter before the Management of the company, which included the Senior Personnel Manager. It was this body that took the decision to sack the appellant.
Finally, the Judge was of the view that the letter of dismissal brought down the very heavens merely because it was given retroactive effect by four days. This, in my view was totally irrelevant as the appellant has not shown that he has lost anything. As the respondent’s counsel pointed out, even if the dismissal had been wrongful all that the appellant would have been entitled to by way of damages was his salary for the period of the notice to which he is entitled. The fact the that letter was given a retroactive effect was certainly no good ground for declaring the dismissal entirely wrongful.
On a calm view of the evidence before the trial Court, I have no hesitation whatsoever in holding that the learned trial Judge came to a totally erroneous conclusion that the appellant was not given a fair hearing. In this regard, the following answer by the appellant in cross-examination on page 23, 11, 1-14 and page 24, 11, 14 – 24 of the record are quite revealing:
“Ans. I received Exhibit ‘E’ and I did read it and I understood Exhibit ‘E’
Q. Before Exhibit ‘E’ you were given Exhibits F and G.
Ans. That is correct. I read them.
Q. In Exhibit ‘F” you were asked to reply to the allegations therein that is to defend yourself within forty-eight hours.
Ans. That is correct. I sent a reply to Exhibit ‘F’. I see Exhibit ‘H shown to me. It is my reply to Exhibit ‘F’. It is my full defence to the charges levelled against me.
Q. Is it then correct to say that you were not given opportunity to defend yourself?.
I was not given opportunity to defend myself fully.
Q. While answering the query in Exhibits ‘F’ and ‘G’ you had at your disposal all the official documents to enable you answer.
Ans. I had all official documents to enable me answer.
Q. Did you answer in your reply attaching any receipts and waybills, invoices and vouchers to satisfy the company in respect of questions raised in those queries in Exhibits ‘F’ and ‘G’?.
Ans. I answered the queries but the receipts and vouchers and invoices and waybills are usually transferred to Umuahia for accounting. I did not refer the company to any such waybills, receipts etc in any reply Exhibit H’.” (Italics mine for highlight).
The learned Judge himself noted all these on page 130. The evidence, even from the appellant’s own mouth, was overwhelming that although there was no oral hearing, the appellant was given every opportunity and facility to defend himself against the allegations that the respondent used as the basis for his dismissal. He took the opportunity and presented his ‘full defence against the charges leveled against’ him.
For all these reasons, I hold that the respondent has made more than sufficient case for his cross-appeal to succeed. It accordingly succeeds and is allowed.
The final result is that the main appeal fails and is dismissed. The decision of the learned trial Judge that the letter dismissing the appellant was not unconstitutional and illegal and, therefore, not null and void is affirmed. The cross-appeal succeeds and is allowed. The decision of the court below declaring the dismissal of the appellant wrongful is hereby set aside. The dismissal was not, on the evidence before the court below, wrongful. The appellant richly deserved to be peremptorily dismissed in the circumstances. In place of the said decision and the consequential order that the respondent should pay damages to the appellant, I make an order dismissing the appellant’s claim before that court in its entirety.
The appellant shall pay the costs of the proceedings in the court below assessed at N200.00. He shall also pay the costs of this appeal assessed at N3,000.00.
Other Citations: (2000)LCN/0738(CA)