Lawrence Jirgbagh V. Union Bank of Nig. Plc (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

The appellant, (as plaintiff) sued the respondent (as defendant) before the Vandeikya High Court of Benue State in suit No.MHC/25/95. The reliefs sought against the respondent as contained in paragraph 16 of the statement of claim are as follows:-

” (a) A declaration that both the suspension of the plaintiff on 5th September, 1996 and purported dismissal from the services of the defendant is illegal, null and void and of no effect whatsoever.

(b) A declaration that plaintiff is still in the services of the defendant and thus entitled to his salary and other entitlement of the staff of the defendant of the rank of the plaintiff.

(c)i The plaintiff claims the sum of N56,019.93 as special damages being the plaintiff salary housing, transport, utility launche on voucher allowances from May, 1997 to May, 1998.

(ii) Half salary and other allowances not yet paid to the plaintiff by the defendant N5,273.25

(iii) All financial and other entitlements due to the plaintiff from May, 1997 till date of judgment.

(iv) N50.000 general damages for inconveniences caused the plaintiff. Interim grand total N106,010.93″.

The appellant (as plaintiff) gave oral evidence and tendered exhibits A to H. Three witnesses testified for the defendant and tendered exhibits I to M; written addresses as ordered by the trial court were filed. In a considered judgment of 16/9/98, the trial court gave judgment in favour of the defendant. The action was dismissed with N1,000.00 costs to the defendant.

This appeal is against that decision and the notice of appeal filed in that regard contains three grounds of appeal without their particulars as follows:

“1. The decision of the Benue State High Court sitting in Vandeikya, is unreasonable and can not be supported having regard to the weight of evidence.

2. The trial High Court of Benue State sitting in Vandeikya, erred in law when it failed to hold that the appellant was neither queried nor given a hearing before he was purportedly dismissed from service by the respondent, and this error has occasioned a miscarriage of justice.
3. The trial High Court of Benue State sitting in Vandeikya, erred in law when it dismissed the appellant’s case before it holding that the complaint concerning non-prosecution in a criminal court before summary dismissal is without substance, and this error has occasioned a miscarriage of justice”.

Briefs of argument were filed and exchanged by the parties. The appellant in his brief of argument has made out two issues for determination and they reads as follows:

“1. Whether upon the true and dispassionate construction of Article 4(iv) of Exhibit 1, the dismissal of the appellant by the respondent is lawful; and

2. Whether or not the lower court was right in dismissing the appellant’s claims before it”.

The two issues for determination raised by the respondent are contained at p.2 of his brief of argument and they read as follows:

(a) “Whether having regard to pleadings, totality of evidence adduced and the provision of Art. 4(iv) (a) (i) and Art. 4 (iv) (b) and Art. 4 (iii) (a) of the main collective agreement tendered as Exh. I and common law principles of master-servant contract of employment whether the trial Judge was correct to hold that the appellant’s suspension and summary dismissal was proper, lawful or justifiable?

(b) Having regard to the provisions of Article 4(iv) (a) (i) of the collective agreement admitted as Exh. ‘I’ and under the common law principles of a master servant contract of service, whether the appellant must be prosecuted before a law court for accusation of gross misconduct involving dishonesty, mistrust or defalcation before respondent can summarily dismiss the appellant from her services?

The issues raised for determination by the parties seem to me to be ad idem and I adopt the appellant’s in resolving this appeal.

The facts of this case show that the dispute arose out of master/servant relationship. The appellant was employed by the respondent on 6/5/97; See Exh. I. He was at all times material to this action, that is to say about 14/6/96 deployed as a co-note-counter staff with one Daniel Adejoh. Their functions as note-counter staff have been defined not only in the evidence of the defence witnesses but also more elaborately in the hand book Exh. I to include – to cross-check entries in the teller with actual amount paid in. Arising from some problems relating to a customer’s cash lodgment on 14/6/96 in the respondent office, the appellant was queried as shown in Exh. ‘C’. he was later suspended by Exh. E. On 24/5/96 a customer came to make lodgments with the respondent in the sum of N221,000.00 cash. The total from the breakdown in the teller came to N216,000.00 instead of N221,000.00 in physical cash. They were supposed to have been received by the appellant and one Daniel Adejoh. The sum of N5000 was discovered in the drawer used by the appellant and Daniel Adejoh where the money was counted. On 6/5/97, he was summarily dismissed by Exh. ‘G’ for gross misconduct and the appellant has brought this action against his employer challenging his wrongful dismissal. The claim was dismissed hence the appeal to this court.

The first issue relates essentially to the disciplinary procedure followed in dismissing the appellant for his misconduct and the contention that it did not conform with clause 4(iv) (a) (1) to (xi) of Exh. I i.e. the collective agreement. He was particularly irked by the contention that his employment was terminated for gross misconduct without being given a written query nor afforded due opportunity of being heard in his defence as provided in Art. 4 of the disciplinary procedure of Exh. I on the offence of ‘defalcation’. The query was on the offence of ‘mistrust’ an unknown offence as it was not listed in Art. 4(iv) as one of the offences to attract summary dismissal. See also Exh. C i.e. query and Exh. ‘D’. In challenging the oral evidence of DW3 who claimed he gave the appellant verbal query at p.39 LL2 to 3 and p.38 LL38 – 44 of the record and to justify his position he contended that he was not queried for defalcation as alleged by the respondent but for the offence ‘mistrust’ which is criminal in content. He further has contended that the issue of defalcation was raised as an after-thought. More importantly, that in flagrant violation of his right as enshrined in S.33(4) of the 1979 Constitution, he was dismissed without notice for an unknown offence without being heard. Therefore that the dismissal was null and void.

On the second issue, the appellant has taken the point that his alleged misconduct being of criminal nature he ought to have been prosecuted first before being dismissed as all the offences enumerated in Art 4(iv) to (i) to (xi) of Exh.I were crimes to be contested in court. That having failed to initiate criminal proceedings against him, the appellant, the respondent has to be taken to have compromised the crime aspect of his misconduct and could not therefore be heard to rest his dismissal on that premise.

The respondent has argued that the discretionary power to summarily dismiss the appellant derived from Art. 4(a) (i) to (xi) of the collective agreement of Exhibit I as read into the appellant’s contract or employment and from the established common law principles pertaining to master/servant relationship. And that the appellant’s summary dismissal was lawful under the said provisions aforesaid. Again, that the degree of misconduct to justify summary dismissal is not fixed in master/servant relationship. And also that the test in such matters depends on the nature of the business and the position held by the servant. In other words, that what would constitute a misconduct was for the respondent to decide i.e. by constructing the provisions. See S.C.O.A. Motors v. Koransteng (1967) 1 ALR (Comm) 377; Diggle v. Ogston Motors Co. (1915) 84 L.J. KIB 2165. He also submitted that it is a misconception in law for the appellant to submit that summary dismissal could only be invoked as between them for offences covered by the broad headings of gross misconduct as defined in Art (iv) (a) (i) to (xi) of Exhibit I and that the offence of ‘mistrust’ with which the appellant was charged did not so come within the said broad headings. See Jupiter General Insurance Co. Ltd. v. Shroff (1937) 3 AER 67, 74. The master/servant relationship in banking business is of the utmost trust and confidence he submitted. See Maja v. Stocco (1968) NMLR 372. For purposes of this case he added that defalcation has been defined as an act of default or failure to account for trust funds and that not having been defined in the penal Code that the courts have no competence to prescribe it as an offence. On the allegation that the appellant was not given fair hearing as per S. 33 of the Constitution 1979 as amended, the respondent has reiterated that lack of fair hearing has to be predicated on solid facts; than mere speculations and doubtful inferences which characterised contention in this matter. See Akoh v.Abuh (1988) 3 NWLR (pt.85) 696 at 701 as per Oputa JSC. Even then that the appellant having made a written representation on the allegation in addition to his verbal explanation that the principle of audi alteram partem has been sufficiently complied with: Shaibu v. NAB Ltd. (1998) 5 NWLR (Pt.551) 582; (1998) 4 SCNJ 109; 128-9. See also Hart v. Military Governor of Rivers State and Ors (1976) ULIR (Pt.iv) 537, 548 whereof; Fatai Williams JSC: held thus:

‘We would like to point out that it is now settled that natural justice does not require that the hearing should be oral only’.

He went on to submit that as the plaintiff has admitted the offence, the allegation is deemed unchallenged and uncontroverted and it does not therefore require proof by prosecution and conviction before the appellant’s dismissal could be effected. In other words, that there are no pre-conditions to be met before a servant could be dismissed summarily under the collective agreement.

The first question that has to be grappled with, given the background facts of this matter is whether the appellant’s misconduct complained of is of such a degree that the appellant has breached a major term of his contract of employment i.e. an important term as to leave the respondent with a clear choice of either suing for damages or rescinding the contracts by summary dismissal as he did. It boils down to this, that unless there is sufficient ground in law to justify the notice of summary dismissal of the appellant’s contract of employment without due notice, the respondent would have committed a breach of contract.

Adverting to the oral testimony of the appellant before the trial court, it has brought out some of the salient facts in this case including the letter of 1712/92 i.e. Exhibit A by which he was offered a temporary appointment and Exhibit B that brought him under permanent situation. The appellant also tendered Exhibit C of 14/6/96, a query from his employer headed gross misconduct and Exhibit D his reply thereto. The letter of his suspension Exh. E was dated 5/9/96 and Exhibit F of 11/10/96 was written by the appellant appealing for a reconsideration of Exhibit E. The next thing was Exhibit G, a letter of 6/5/97 summarily dismissing the appellant. Exhibit H was on the confirmation of the appellant’s appointment.

The appellant has vigorously contested the procedure followed in summarily terminating his appointment as not in conformity with the provisions of Exhibit I – otherwise known as the collective agreement which has been incorporated into the appellant’s contract of employment. He has contended that on a proper construction of Art. 4 of Exhibit I dealing with disciplinary procedures that he was entitled to be given a chance and to be heard in his defence particularly as the query Exhibit C and his answer Exhibit D were directed against the offence of ‘mistrust’ otherwise an offence not mentioned and nor covered by Art.4 of Exhibit I instead of the offence of ‘defalcation’ for which he was summarily dismissed. See Exh. G.

The respondent has countered that the appellant was otherwise given a second chance in that he was not only verbally queried by the respondent’s supervisor (DW3) there and then but was later given a written query Exhibit G which again afforded him another chance of making a written representation i.e. Exhibit D on the issue before he was suspended and eventually dismissed summarily. All these measures were as provided in Art. 4(iii) (b) of Exhibit I i.e. the hand book containing the collective agreement. The respondent wasn’t in any doubt that in complying with Art. 4(iv) (b) of Exhibit I that the appellant was given due hearing in compliance with the rules of natural justice which was and also in tacit recognition of his rights as enshrined in S.33 of the Constitution, 1979. The trial court in its judgment has paid adequate attention to the foregoing issues by observing at p.67 LL3-20 of the record thus:

“I find as a fact that the defendant through its supervisor (DW3) Simon Abeje verbally queried and also interviewed the plaintiff on 14/6/96 before he issued a written query (Exhibit C) dated 14/6/96. The plaintiff answered the query which is Exhibit D dated 14/6/96. It was after this that the plaintiff was on 5/9/96 suspended from office with effect from 16/10/96 (Exhibit E). There is no provision in Exhibit I Article 4(iii) (b) for the employee to be queried verbally or in writing before he is even suspended from duty by the employer. All that is required is for the employer to suspect the employee of dishonesty or any other serious misconduct for the employee to be suspended before full-scale investigation into the alleged dishonesty or other serious misconduct is investigated. Here, the defendant went even beyond the terms of Exhibit I to issue verbal queries followed by a written one before the plaintiff and Adejo Daniel were suspended from duty. Furthermore, I do not see where the plaintiff or an employee has to be reported to the police before the person is suspended by the employer”.

The foregoing excerpt from the judgment of the trial court represents its solid findings of fact and inferences drawn from accepted facts. It is on these findings that the trial court has rightly in my view adjudged the disciplinary procedures as provided under Article 4 i.e. the disciplinary procedure and applied by the respondent in this scenario as sufficiently wide enough and in consonance with the Rules of Natural Justice to afford the appellant due opportunity of being heard in his defence. These findings flow from the accepted facts and cannot be faulted.

Here, I may say, is a convenient stage to reproduce some of the terms of the collective agreement on disciplinary procedures as encompassed in Exhibit I as far as they are materially relevant to the issue. Art 4.(i) covers caution’; Art. 4(ii) is on termination after warning; Art. 4(iii) relates to ‘suspension’ while Art. 4(iv) is on ‘summary dismissal’. The appellant’s complaint in this court concerns in the main of the non-application to his case of the provisions of Art. 4(iii) and (iv); and these provisions are reproduced hereunder thus:

“(a) If an employee is suspected of dishonesty or any other serious misconduct he will be suspended from duty for a period not exceeding six months during which investigations shall be concluded. During the period of such suspension, the employee shall be paid half of his basic salary and full transport and housing allowances. If after such investigations he is exonerated, he shall be recalled and the balance of his basic salary and any other entitlement due to him shall be made good to him from the date of suspension. If however the employee is found guilty he will be dealt with in accordance with the disciplinary procedure.

(b) If any employee is suspected of a criminal offence by the police he may be suspended and paid half of his basic salary and his full transport and housing allowances from the date of suspension for a maximum period of eighteen months. If he is exonerated within the period of eighteen months, he shall be recalled and the balance of his basic salary and any other entitlements due to him will be made good from the date of his suspension. If however, the case has not been disposed of, he shall be dealt with in accordance with the disciplinary procedure as set out in the collective agreement provided that the matter is not in court.

(c) An employee on suspension may where practicable be required to report each working day (morning or afternoon) for two hours to an official designated by the employer”.

“Article 4(iv) then provides for circumstances under which an employee may be dismissed summarily I reproduce them:

(a) The law provides that employee may be summarily dismissed for certain offences covered by the broad headings of gross misconduct. Such offences include:

(i) proven cases of theft, fraud, dishonesty, defalcations and irregular practices in respect of cash, vouchers, records, returns or customers accounts;

(ii) Wilful disobedience of a lawful order or serious negligence;

(iii) Drunkenness or taking drugs other than for medical reasons, rendering the employee unfit to carry out his or her duties;

(iv) Divulging confidential information in breach of declaration or secrecy;

(v) Conviction for a criminal offence;

(vi) Prolonged and/or frequent absence from work without leave or reasonable cause;

(vii) Fighting and assault or engaging in disorderly behaviour during working hours, or on the office premise or within its immediate surroundings;

(viii) Deriving and benefit in the course of his official duties which places him in such a position that his personal interest and his duty to the employer or to any customer of the employer are in conflict;

(ix) Failure to report promptly any irregularity on the part of any other member of staff after having knowledge of such irregularity;

(x) Abusive or insulting language or behaviour to any client which is prejudicial to the business interest of the employer;

(xi) Any other offences which may be agreed upon between the Association and the Union from time to time.

(b) Before summary dismissal is effected the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded.

(c) Where an offence has been committed which merits summary dismissal but where the member company does not exercise its prerogative of dismissal a ‘first and last’ or ‘a second and last’ warning letter may be issued and the fact that the warning is a final one will be made clear in the letter.” (Italics is mine)

I now turn to deal with the issue in detail. It is not recondite that at common law the employer is obliged to follow any particular procedure in summarily dismissing his servant. But where, however, the dismissal is in breach of a fundamental term of the contract as by summary or by giving insufficient notice to terminate the contract, the servant has to accept the fact that the contract is at an end and his only remedy lies in suing for wrongful termination of his contract of service. See Vine v. National Dock Labour Board (1956) 3 All ER; Imoloame v. WAEC (1992) 9 NWLR (Pt.265) 303; Ilodibia v. Nigeria Cement Co. Ltd. (1997) 7 NWLR (Pt.512) 174; Harman L.J. in Denmark Productions Ltd. v. Boscobel Production Ltd. (1969) 1 QB. 699 said:

“An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he would have earned to the end of the contractual period, he must sue for damages for the wrongful dismissal and must of course, mitigate those damages so far as he reasonably can”.

In other words, like in all matters subject to the law of contract the employer’s right of summary dismissal has to arise from the terms express or implied in the contract of employment. The master/servant relationship being basically one founded in contract and subject to the vagaries of the ordinary law of contract, the employer’s right of summary dismissal can be circumscribed and this has been achieved by the incorporation of works rules as in this case by means of collective agreement being incorporated into the contract. The collective agreement Exhibit I has been incorporated in the appellant’s contract of employment. If I may pause here to restate the respondent’s case, he is saying that the respondent’s right under the contract of employment has been effectively circumscribed by the collective agreement Exh. I and binding on the respondent. Thus, making the procedure followed in terminating his appointment null and void as he was not given a hearing as clearly implied in the collective agreement. In another breath, however, the courts have resisted granting specific performance in respect of breach of contract of service. See Rigby v. Connol (1880) 14 Ch. D 482 per Jessel M.I. Denmork Production Ltd. v. Boscobel Productions Ltd. (1969) 1 QB 697 Per Harman L. J. Furthermore, a rationalisation of the cases in master/servant relationship reveal that much as an employer is not bound to follow a proper procedure in summarily dismissing an employee, there is a long line of decided cases identifying two or three exceptions where to properly and effectively terminate a contract of employment, the employer has to follow the proper procedure and the instant matter falls squarely into one of the three exceptions that is to say:

(1) Where the contract itself has made provisions for a procedure to be followed; that procedure has to be followed to effectively determine the contract.

(2) Where a statute regulates the appointment and dismissal of a servant, the requirements of the statute must be complied with. In that case, the master/servant relationship has what is known as a ‘statutory flavour’. See Federal Civil Service Commission v. Laoye (1989) 2 NWLR (pt.106) 652,(1989) 45 CAJ 146 and 160. Imoloame v. WAEC (1992) 9 NWLR (pt.265) 303.

(3)The other third category affects holders of offices involving public function. Here, the rules of natural justice must be complied with in the dismissal. See Shanks v. Plumbing Trade Union 15/1167 unreported cited in Leary v. National Union of Vehicle Builders (1971) Ch. D 34 Per Megarry J.

As regards where the contract has provided for its termination but the procedure was not followed, the servant cannot treat the contract as still subsisting as the contract stands repudiated by the act of wrongful dismissal and the servant’s only remedy is in damages for wrongful dismissal. See Vine v. National Dock Labour Board (1956) 3 All ER 939 where Lord Keith said:

“If the master wrongful dismisses the servant either summarily or by giving insufficient notice the employment is effectively terminated”.

See Imoloame v. WAEC (supra) and Nnoli v. UNTH Mgt. Bd (1994) 13 KLR 163, (1994) 8 NWLR (pt.363) 376; the Supreme Court has observed thus:

“Where the procedure is not followed it is incapable of terminating the employment relationship, and the servant could be granted a declaration. See also Vidyo-daya University v. Silva (1964) 3 AER 865. Vine v. National Dock Labour Board (Supra)”.

As regard the second exception as stated above even though it was never in issue that the appellant’s contract of employment was not regulated by statute the appellant has asked to be reinstated as if it was. The implications of employment with statutory flavour was fully explored by Karibi- Whyte JSC in the case of Imoloame v. WAEC supra where he said:

“It is now accepted that where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”.

See Adedeji v. Police Service Commission (1968) NMLR 102; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40, Olaniyan v. University (1985) 2 NWLR (Pt.9) 599. In this class of cases, the court invariably is prepared to reinstate the servant by granting declarations and injunctions.

On the third exception: In this respect, I refer to the case of Shanks v. Plumbing Trade United cited in Leary v. National Union of Vehicle Builders (supra). The only issue in the motion in that case was for the removal from office of district secretary of a union. Having made out a prima facie case that he was likely to succeed in the action. Buckley J. said:

“It has been submitted on behalf of the Union that this is a case in which the court ought not to grant the relief sought because that will be tantamount to specific performance of a contract of employment. It seems to me that every different considerations apply when one is dealing with an elected officer whom somebody other than those who elected him is seeking to remove him from office, than apply in the ordinary case of employer and employee. In the circumstance, I propose to grant the plaintiff the injunction he seeks until judgment in the action”.

Any dismissal of a servant under right class of employment must accord with the rules of natural justice.

Having set out the principles very material in resolving this appeal in the above paragraphs of this judgment, the appellant has the task of bringing his case within the principles in Adedeji v. Police Service Commission (1968) NMLR 102 and Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 in order to have himself reinstated as per his claim that is that his contract to employment has some statutory flavour to it. One of the implications of the appellant’s contention in this matter is the misconception of the relief sought on the facts of this case i.e. that the dismissal be declared null and void. This line of approach with respect fails to recognise the impact of the act of the appellant’s dismissal on his contract of employment. By that singular act of apparent breach, the contract has come to an abrupt end, and the parties were left to their remedies in damages. Because as I stated above his contract of employment lacks statutory flavour.

Reverting to the instant matter proper, it seems to me that the appellant’s contract of employment having clearly provided for a procedure to be followed to summarily terminate it that that procedure has to be followed to terminate the contract of his employment ( it has to be followed). And if I may observe it is not in doubt that adherence to strict procedural safeguards makes for justice under the law. I have already alluded to the servant’s options where his contract of employment is terminated by wrongful dismissal. The instant case clearly comes within the first exception as enunciated above. And I now proceed to consider whether the appellant’s summary dismissal is justifiable. In that case, I have to advert to Art. 4(iii) and (iv) of Exhibit I and to start with, I agree with the true construction given by the trial court to the provision of Art. 4(iii) thus:

“It seems to me that once the defendant employer suspects the employee of dishonesty or any other serious misconduct, the employer reserves the right to suspend the employee and then commence investigation which must be concluded within six (months). The above provision appears appear to be subjective, vesting on the employer the absolute right to determine which conducts are regarded as dishonesty or as coming within the ‘terms or any other serious misconduct”.

The first principle of the rules of construction and it is trite is that where words used in a document are clear and unambiguous their ordinary meaning should prevail. Wilson v. A.-G. Bendel State and Ors (1985) 1 NWLR (pt.4) 572; (1985) NSCC (Vol. 16) 191. The words used in Art. 4(iii) are clear and unambiguous and do not tend to absurdity and therefore are entitled in the con to be given their ordinary meaning. In this regard, the respondent and I agree with the trial court, reserve the right to suspend the appellant based on suspicion and within six months thereof to conduct investigation regarding the suspicion and to reinstate the appellant to his employment on being exonerated by the investigation. Before Exhibit G, the appellant sent in Exhibit F in which he more or less admitted he erred. The fact is that he was not exonerated and Exhibit G finally sealed his fate. He was summarily dismissed. I recongise that introducing a subjective element in this manner by the provisions of Art. 4(iii) has posed its own problems. Has it diminished or more appropriately impinged on the appellant’s right to fair hearing?

That is to say oral hearing. I think not. In Hart v. Military Government of Rivers States and Ors (supra); Fatai William JSC rightly in my view observed that “natural justice does not require that the hearing be oral”. The collective agreement has clearly introduced subjective element in this con. More often than not it poses some difficulties where this is the case. The right to oral hearing as a matter of procedure for satisfying the requirement of natural justice has to depend on the facts of the particular case as it is bound to differ from case to case. Without letting the matter rest there, in this case, it has to be observed that the fact on which the respondent hinged his suspicion have been known to the appellant and they gave rise to exhibits C and D i.e. the query and the appellant’s answer respectively. These facts have been set forth earlier on in this judgment. I may say that in such cases it is still open to the court to enquire if a reasonable employer could honestly have come to hold such suspicion on the particular facts of the case as in this matter and if the answer is ‘yes’ then the court could not enquire further into the matter, that is to say, into the propriety or otherwise of acting on the suspicion. In Diggle v. Ogston Motors Co. (1955) 84 LJKB 2165 where employment was made subject to ‘your carrying out your duties to the satisfaction of the directors’ (as in the above cited case). It was held that the court could enquire into the question whether reasonable board of directors could honestly have come to the conclusion that they were not satisfied with the employer’s work. If the answer to that was in the affirmative then the court could not enquire further into the correctness of the director’s decision that they were not satisfied with the employer’s work. The instant trial court looked at this side of the appellant’s case and came to the conclusion that the suspicion leading to the ultimate act of summary dismissal of the appellant was well founded. I find myself in complete agreement with this conclusion. The appellant has however, raised unnecessary dust by complaining that he was queried as to the offence of ‘mistrust’ and not as of ‘defalcation’ And so was punished for an offence he never committed. This confusion is misplaced as it has no foundation in that in Exhibit ‘F’ written by him to the respondent he said:

“… as we rummaged around, the money was found in an open drawer full of wrappers”.I must have erred by way of omission of commission”

(Italics mine for emphasis).

To contend therefore before the trial court and in this court that he was punished for an offence he did not commit smacks of defiance against proven facts. The appellant cannot be heard to renege from the import of Exhibit ‘F’ where he more or less admitted the respondent’s story of how the sum of N5000.00 was found in his drawer. The only money recovered from the drawer was the amount defalcated from a customer’s money for lodgment with the respondent on 14/6/96. And he and one Daniel Adejoh manned the chest of drawers from where the sum of N5000.00 was retrieved. He never offered any satisfactory explanation of how part of a customer’s money handed to him for counting found its way into the drawer in their control.

Furthermore, Art. 4(iv) of Exhibit ‘I’ has equally made provisions where an employee is dismissed summarily. I have earlier reproduced these provisions herein. According to Art.4(iv) (b) the employer is enjoined to do no more than, ‘before summary dismissal is effected, the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded. The respondent gave a written query to the appellant and he replied to it. The trial court was satisfied that the respondent so complied. There is evidence of a query and answer as per exhibits C and D. The findings that the appellant was given a written query i.e. Exhibit C and that the appellant admitted being so queried and his answer as per Exhibit D and that he wrote Exhibit F, a letter for leniency and that due opportunity was given to the appellant to defend himself, all these relate to questions of fact. And not having found the findings in any way to be perverse this court is precluded from interfering with them as they fall within the exclusive preserves of the trial court to determine. This court has no intention to interfere with the findings. see Narumal and Sons (Nig.) Ltd. v. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (pt. 106) 730 at 742; Silli v. Mosoka (1997) 10 NWLR (pt.479) 98. Following from the letter and spirit of the collective agreement which confided in the respondent the right to take final decision in the matter, that is whether to caution, suspend, give summary dismissal and warn to. If I may say now, what will justify an instant dismissal? “Something done by the servant which impliedly or expressly is a repudiation of the fundamental terms of the contract, and in my judgment if ever there was such a repudiation this is it I have no reason to fault in any way the findings of the trial court as to the procedures followed in terminating summarily the appellant’s appointment. As found by the trial court, I am satisfied that the procedures as required by Art.4 (iii) and (iv) dealing on disciplinary procedures were duly complied with in pari passu with the principles of natural justice. The appellant was given due opportunity to be heard and indeed had his say. He cannot be heard to complain. I must however add that where the procedure for such an exercise has been provided for in a contract of employment it has to be complied with faithfully against the background of the rules of natural justice as in the instant matter. I have no difficulty in coming down on the side of the respondent and to affirm the trial court’s finding that the appellant’s summary dismissal was justifiable. I have dealt fully, I am afraid, with all those matters because of the way they were strenuously argued. This disposes of issue No.1.

The second issue raises an interesting legal point as to whether the appellant should have been prosecuted first before being dismissed summarily. The decision in Garba v. University of Maiduguri (1986) 1 NSCC (Vo.17) 245, at 248 (1986) 1 NWLR (Pt.18) 550 has often been cited in support of the proposition. In that case the Supreme Court has stated a much quoted passage relating to S.33 of the Constitution 1979. Briefly, some students of the University of Maiduguri who engaged in a rampage that caused much property damage, arson, looting were expelled. The Senate met and handed down the expulsion order without first having the students tried in regular courts for the criminal offences arising out of their misconduct. And it held thus that:

“There is no doubt that in the con in which the term ‘misconduct’ is used in section 17 of the Act, the complaints, to wit arson, wilful destruction of properties, looting and assaults made against the appellants fell within the definition, and the Vice Chancellor can expel a student if he is satisfied that he is guilty of misconduct but where the misconduct alleged involved crimes against the state it is no longer a matter for internal discipline but a matter for a court or tribunal vested with judicial powers to try such offences. It is only after conviction by a proper court for these offences that the Vice-Chancellor can proceed to exercise his disciplinary powers and expel the students if he so wishes”.

The trend in judicial opinion now is that the decision in Garba is no impediment to summary dismissal of a servant for gross misconduct even where the misconduct approximates to a criminal offence provided the exercise was conducted against the backdrop of the provision of S.33(4) of the Constitution 1979. But where the servant has owned up as to his misconduct he could be proceeded with without more. See Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt.l06) 652 per Eso JSC. In Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (pt.457) 632 Onu JSC stated thus:

“On the issue of fair hearing before an employer can dispense with the services of his employee, under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal even where the allegation for which the employee is being dismissed involve accusation of crime”.

Wali, JSC in his leading judgment in the same matter also stated in like manner. However, at common law, it is open to an employer to dismiss the employee summarily even where his misconduct is criminal in content. See Tomlinson v. LM.S.R.Y CO. (1944) 1 All ER 537. The respondent in that case i.e. the Railway Company summarily dismissed the appellant who had violently assaulted another employee at a meeting, without first prosecuting the appellant. In fact, the meeting and the assault took place outside the normal business premises. Also, the misconduct took place outside normal working hours yet it was brought under the contract.

In the instant matter, before the appellant’s summary dismissal was effected, as found by the trial court he was given due opportunity of being heard. Having been given the opportunity, he should not be seen to complain. See Kataye v. C.B.N. (supra) per Nnaemeka Agu, JSC. The ultimate decision in the matter was confided in the respondent and it reserved the right to take a favourable or unfavourable decision against the appellant in the matter. In this case it took the unfavourable decision to dismiss him summarily. The appellant in further expatiation of his representation in Exhibit D also made Exhibit ‘F’ in which he confessed that he might have ‘erred in omission or commission’ in this matter. Beside, the facts of this case are totally dissimilar to those in Garba’s case where the students committed diverse offences of destruction to properties, arson, looting and assaults – all criminal in nature as against ‘mistrust’ in this matter – a misconduct not known to our criminal law as a crime. Garba’s case is therefore not a binding authority in this respect. I think that appellant’s case falls beyond the scope of the principle set down in Garba but more within the confines of the principles in Laaye. The appellant’s misconduct was incompatible with due or faithful discharge of his duty to the respondent and the respondent has a right to dismiss him summarily. It is also important to note that neither of the parties in the case lodged a report to the police. Secondly, the appellant did not plead any specific crime for which he was accused and that being so, the trial court was not bound to delve into an issue not joined on the pleadings. See Metal Construction W/A Ltd. v. Milgore (1975) 6/9 SC 163. Besides, it was not made a specific ground of appeal in this court. Equally, noticeable is that the query given to the appellant did not alleged crime but raised the issue of ‘mistrust’ – a misconduct which as I stated above has not been defined in our criminal law as a crime. And the same goes for the allegation of defalcation. It is futile therefore to argued that definition of misconduct in the con in which it is used in Art.4(iv) of Exhibit ‘I’ does not comprehend ‘mistrust’ although not specifically spelt out in the broad headings of gross misconduct in Art. 4(iv). There can be no doubt that it comes within the meaning of the words used in Art.(iv)(a)(i) which provides thus: ‘The law provides that employee may be summarily dismissed for certain offences covered by the broad headings of gross misconduct. Such offences includes’: Italics for emphasis. The trial Court has construed the foregoing provision thus:

“In other words, the offences for which the employer can summarily dismiss the employee under ‘the broad heading of gross misconduct’ is elastic. Those provided or set out under Article 4(iv)(a)(i) Exhibit I are only inserted as examples or as a guide. It is for the employer to determine which offences it regards as ‘gross misconduct’ worthy of summary dismissal. This is in addition to those set out in Article 4(iv)(a)(i) – (xi) of Exhibit ‘I’.

When the word ‘include’ is used in a document it has the effect of extending the scope of the concept covered by the terms mentioned: See Okesuji v. Lawal (1991) 1 NWLR (pt.170) 661;(1991) 2 SCNJ and Nafiu Rabiu v. The State (1981) 1 NCLR 293,(1980) FNLR 509 at 524; (1981) 2 NCLR 293. Besides, the appellant having the advantage of knowing the truth in this matter did not to my mind, get mixed up in his written representation by the fact of denoting his misconduct as either ‘mistrust’ or ‘defalcation’ in Exhibit C, D, F and G. I am satisfied that not only is it not correct to contend that the appellant must be prosecuted first before being summarily dismissed in this case and such cases as the instant matter but also it is important to note that the suggestion to first prosecute the appellant before dismissing him could not derive from Art. 4(iv) of Exhibit I however construed.

In the final analysis the issue is therefore whether the respondent has satisfied the trial court that the appellant’s conduct constituted a misconduct for which it (i.e. the respondent) was justified in dismissing him summarily and if not the appellant would be entitled to payment in lieu of notice. The respondent acquitted himself of this onus creditably.

One poignant factor that cannot be glossed over in this judgment is the impact of the appellant’s gross misconduct on the master/servant relationship between them. The appellant and one Daniel Adejoh his co-note-counter were at all material times bank staffs. The alleged misconduct culminating in the appellant’s summary dismissal borders on dishonesty and breach of confidence. This conclusion is incontestable. The appellant has pleaded in Exbibit ‘F’ that he must have erred by way of omission or commission. The appellant having got that far in his disclosure as to what happened on that day, it must be recognised that the respondent is a bank. And banking business is one erected on trust and confidence not only between customer and bank but also between bank and it staff. The master/servant relationship between them i.e. (the appellant and respondent) has been greatly damaged in this respect.

As found by the trial court, the appellant’s misconduct was of great embarrassment to the respondent with regard to its instant customer. In these days of huge banking, fraud perpetrated by fraudsters and miscreants and leading to bank failures here and there, it matters the quality of best staffs. Such factors as these should have been considered by his counsel and so moderate the nature of the appellant’s claims against the respondent. His remedy lies in damages and no more if his action in wrongful dismissal had succeeded. It is settled law that the courts will not grant specific performance for breach of contract of service.

Having exhausted all the issues in this appeal and having resolved these against the appellant his appeal must successfully fail. The appellant was guilty of gross misconduct and he can be dismissed summarily without notice and without wages. In the circumstances, his summary dismissal is justifiable. This appeal therefore fails and it is hereby dismissed with N2000.00 costs in favour of the respondent.

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Other Citations: (2000)LCN/0880(CA)