Mr. Kunle Osisanya V Afribank Nigeria Plc (2007)
LAWGLOBAL HUB Lead Judgment Report
A. OGUNTADE, J.S.C
The appellant was the plaintiff at the Ilorin High Court of Kwara State; and the respondent, the defendant. The appellant (hereinafter referred to as ‘the plaintiff’s) claimed against the respondent (hereinafter referred to as ‘the defendant’) multiple reliefs which read:
“i. A declaration that the dismissal of the plaintiff from the services of the defendant as contained in letter ref. No. OO/MEN/VOK/PERSONNEL/4835/87 of 12th October, 1987 is wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.
ii. A declaration that the decision of the defendant’s senior staff disciplinary committee, which culminated in the dismissal of the plaintiff is contrary to the principles of natural justice and a deliberate and calculated infraction of the plaintiff’s right of fair hearing as contained in and preserved by section 33(1) & (2) of the constitution of the Federal Republic of Nigeria, 1979 and therefore null and void and of no effect whatsoever.
iii. A declaration that the employment of the plaintiff with the defendant is still subsisting notwithstanding the said purported dismissal.
iv. An order commanding the defendant to reinstate the plaintiff to its services and to pay to the plaintiff his full salaries, entitlements, allowances and/or benefits from the date of his suspension and subsequently dismissal up to the date of judgment.
v. An order that the plaintiff is still entitled to receive all the accrued dividends, bonuses on script issue or that will accrue in future in his 1,332 ordinary shares bought by the plaintiff herein at the rate of N1.00 per share being the plaintiff’s equity share participation in the defendant’s bank. Letter dated 31/8/87 to the plaintiff by the defendant and the plaintiff’s share warrant will be founded upon at the trial of this suit.
vi. Alternatively, the plaintiff claims from the defendant the sum of N176,602.00 (One hundred and seventy-six thousand, six hundred and two Naira only) being special damages for his wrongful dismissal from the services of the defendant.
Particulars of special damages
i. Plaintiff’s remaining half salary for the months of September, 1987 to October, 1987 of N275.00 each = N550.00
ii. Transport allowance for the months of September and October, 1987 of N200.00 each = N400.00
iii. Housing Allowance for the months of September and October, 1987 of N300.00 each = N600.00
iv. Lunch Voucher allowance for the months of September and October, 1987 of N5.00 per day = N240.00
v. 12% of the plaintiff’s basic salary of N6,600.00 per annum being his contribution to the National Provident Fund. = N792.00
vi. 20% of the plaintiff’s basic salary of N6,600.00 per annum being his contribution to the Senior Provident Fund = N 1,320.00
vii. The plaintiff’s 13th month basic salary of N550.00 for the year 1987 = N550.00
viii. One month salary in lieu of notice unpaid to the plaintiff before his appointment was wrongfully terminated by the defendant = N550.00
IX. Salary for the unexpired period of service i.e. between 12.10.87 when plaintiff was 34 years old to 10.10.2013 when he will attain the retirement age of 60 years = N171,600.00
TOTAL = N176.602.00”
The parties filed and exchanged pleadings after which the suit was heard by Olagunju, J. (as he then was). On 14/10/96, the trial Judge, in his judgment spanning 34 foolscap pages granted a substantial part of the reliefs sought by the plaintiff. At pages 207208 of the judgment, the trial Judge concluded thus:
“The plaintiff also claims as items of special damages on which he led evidence
(a) 12% of his basic salary of N6,600.00 as his contribution to the National provident Fund totalling N792.00 and
(b) 20% of his basic salary of N6,600.00 which he contributed to the ‘Senior Provident Fund’ amounting to N 1,320.00. The defendant led no evidence in support of her averments in the statement of defence on the two heads of claim.
Thus the claims are unrebutted: See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1980) 16 NSCC (Pt. 11) 942, 951; (1985) 2 NWLR (Pt. 5) 116; and Olabanji v. Ajiboye (1992) 1 NWLR (Pt. 218) 473,485-486.
Therefore, he is entitled to the amount on each head and as he is deemed, by virtue of the declarations and order herein before made. to be in the defendant’s employment till today he is entitled to have the claims adjusted mutatis mutandis to be payable up to today and I so order and I direct that he be paid the revised amounts.
The plaintiff succeeds. His dismissal from the employment of the defendant is declared null and void.
He is deemed to still be in the defendant’s employment till today. Thereafter, his contract of employment with the defendant is to be determined from tomorrow, 23/ 1/96, by payment to him of a month’s salary in lieu of notice. The consequential orders about payment to him of his entitlements as enumerated variously in this judgment shall be satisfied by the defendant without any further ado.”
The defendant was dissatisfied with the said judgment. It brought an appeal before the Court of Appeal, Ilorin (hereinafter referred to as ‘the court below’). On 22/11/99, the court below allowed the appeal. In the said judgment, the court below concluded in these words:
“In the circumstance, I find merit in this appeal, I allow the appeal and set aside the judgment of the lower court.
In its place it is hereby ordered that respondent is to be paid all his salaries and entitlements up to 12th October, 1987, the date of his dismissal and thereafter a month’s salary in lieu of notice. I make no order as to costs.”
The plaintiff was dissatisfied with the judgment of the court below and has come on a final appeal before this court. In his appellant’s brief, plaintiff’s counsel formulated for determination in this appeal the following issues:
“(i) Whether having regard to the withdrawal of the petition (exhibit 22) against the appellant by the authors thereon and the two lower courts having found that the dismissal of the appellant was null and void, the appellant can been titled to all his accrued benefits and emoluments.
(ii) Assuming but not conceding that the lower court was right in holding that the appellant is only entitled to his benefits up to the date of his dismissal. whether the appellant can be deprived of his accrued dividends or his shares with the respondent.
(iii) Whether the decision of the Supreme Court in Katta v. C.B.N. (1999) 6 NWLR (Pt. 607) p. 390 at 414 can be relied upon by the lower court when all the circumstances of that case and this, are materially different.”
The respondent for its part, formulated for determination in the appeal, two issues, namely:-
“(i) Having regard to the lower court’s decision that the dismissal of the appellant by the respondent was wrongful, was the court right in awarding him one month’s salary in lieu of notice and his salaries and entitlements up to the date of his wrongful dismissal.
(ii) Could the dismissal or termination of the appellant from the employment of the respondent affect his privileges, rights, benefits and status as a shareholder in the respondent’s company in view of the provisions of the Companies and Allied Matters Act.”
The respondent’s issues are in my view suitable a basis upon which to consider this appeal. For an appreciation of the issues as discussed in this judgment, it is necessary that I examine briefly, the facts leading to the dispute out of which this appeal arose. The facts are these: The plaintiff was an employee of the defendant at the Ilorin branch of the defendant. He was so employed on 4/7/83. In September, 1987, two individuals who were officers of the National Union of Banks, Insurance & Financial Institution Employees jointly sent a petition against the plaintiff. It was alleged that the plaintiff had committed some dishonest acts in the course of his duties under the defendant. In consequence, the defendant suspended the plaintiff from work. Later, however, those who wrote the petition withdrew it. This would appear to convey that the petition had been motivated by malice. The plaintiff’s expectation that he would be recalled from suspension following the withdrawal of the petition did not materialize. Rather, the plaintiff, by a letter dated 12/10/87, was summarily dismissed from the defendant’s employment. In reaction, the plaintiff brought his suit raising the claims earlier set out in this judgment.
I now consider serially, the two issues for determination earlier reproduced. The first issue in my humble view is rooted in an area of the law which is well-settled and must now be regarded as trite. At pages 259-260 of its judgment, the court below said:
“An employer though not bound to give reasons terminating the appointment of his employee: where the employer gives reason for the termination, the onus lies on the employer to establish that cause of reason. Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council (1988) 1 NSCC p. 1025; (1988) 3 NWLR (Pt. 80) 25.
In ex. 24 which is the letter of summary dismissal the appellant stated the reason why the respondent was dismissed from its service. It reads:-
‘You are hereby summarily dismissed for your involvement in fraudulent malpractices.’
DW 1 in her evidence testified in part as follows:-
‘It is not always that people who are accused of fraud are recommended for prosecution. I agree that it is only where the bank has counter proof of allegation against an employee that the matter is referred to the police for criminal prosecution. No, the Committee did not recommended criminal prosecution against the plaintiff.’
My understanding of the evidence is that the appellant admitted that it was not proved that the
respondent was involved in fraudulent malpractices.
Having made the above observation, the question then is, is the learned trial Judge right in reinstating the respondent and thereafter terminate the contract between him and the appellant I answer the question in the negative. My reason will be given later.”
It would appear from the above passage that the court below took the view that the defendant did not establish by evidence, the assertion in exhibit 24, the letter by which the plaintiff was dismissed from the defendant’s employment, that the plaintiff had been guilty of any fraudulent malpractices. The court below at page 261 of the record in its judgment then said:
“In an ordinary relationship like in this one and following the common law principle, a termination of a contract of service, even if unlawful brings to an end the relationship of master and servant. Chukwuma v. Shell Petroleum Dev Corporation (1993) 4 NWLR (Pt.289) 512. The learned trial Judge seems to appreciate this. This is evident from the following passage in his judgment:-
‘However, I find the plaintiff’s prayer for reinstatement to the defendant’s employment a hard nut to crack for while I am aware of the prevailing judicial leaning against imposing an employee on an unwilling employer especially where, as in this case, the confidence between the two has sunk to a very low ebb with the allegation of dishonesty that has brought the plaintiff under a cloud …’
The court should not have proceeded to award the respondent his salary for over eight years. The law is that a servant would only be paid for the period he served his master and if he is dismissed as in this case, although wrongfully all he gets as damages is the amount he would have earned if his appointment has been properly determined.”
There is, in my view, no doubt that the court below correctly stated and applied the applicable principle of law in a master and servant relationship. In International Drilling Company (Nigeria) Limited v. Moses Eyeimofe Ajijala (1979) 2 Sc. 64 at 73-74, this court per Obaseki Ag., JSC, said on the point: “The principles of law governing the award of damages were stated recently by this court in:-
(1) Western Nigeria Development Corporation v. Jimoh Abimbola (1966) NMLR 381 at 382; and
(2) Nigeria Produce Marketing Board v. A. I.Adewumii (1972) 1 All NLR (Pt. 2) 433 at 437
In the latter case, we stated the law as follows at p.437:-
‘In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract. (See Beckham v. Drake (1849) 2 H.L Cas 579 at pages 607-608. Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.
The application of this principle was vividly demonstrated by this court in the case of Western Nigeria Development Corporation v. Jimoh Abimbola, supra, where Ajegbo, JSC, (delivering the judgment of the court) after stating the guiding principles said at page 382:-
‘The plaintiff was given a letter of appointment (exhibit A) and paragraph 5 of that letter reads as
follows:-
‘Your employment may be terminated by the Board or yourself by giving one month’s notice in writing or by paying one month’s salary in lieu of notice, except in the case of dismissal for an offence prejudicial to the interest of the Board.’
The plaintiff’s appointment was governed by the contract to which he entered at the time of his appointment. If he had been given one month’s notice before termination of his appointment, he would have had no claim whatever on the Corporation. But he was not given notice, and he is entitled to one month’s salary in lieu of notice. That is all he can get as damages. Other matters that the Judge considered are irrelevant.’”
See also Francis Adesegun Katto v. C.B.N. (1999) 7 NWLR (Pt. 607) 390 at 406.
On the evidence before the trial court, the plaintiff was only entitled to all his salaries and entitlements up to 12th October, 1987 when he was dismissed and in addition a month’s salary in lieu of notice. At pages 266-267 of the record, Obadina, JCA in his concurring judgment said:
“The law is well settled that where a contract of employment is terminable on notice, and the employee is not given the requisite notice, what the employee could have earned during the period of the notice is the damages that the employee can get. I.D.C. v. Ajijola (1976) 2 SC. 115 at 119-120; Mobil Oil Nigeria Limited v. Abraham Akinfosile (1969) NMLR 217.
In the circumstances of this case, I think it was wrong of the learned trial Judge to have declared null and void the termination of appointment arising from the ordinary master and servant relationship. When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 320; Shitta Bey v. Federal Public Service Commission (1981) 1 SC. 40 at 56; Olaniyan v. University of Lagos (No.2) (1985) 2 NWLR (Pt. 9) 599 at 613; Eperokun University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 201; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25 at 41.”
The plaintiff’s employment with the defendant was not shown to be one specially protected by statute. The trial court was clearly in error to have made a declaration the effect of which was to have kept plaintiff in the employment of the defendant from which the plaintiff had been removed albeit wrongfully. The court below was therefore right to have allowed the appeal.
The only issue outstanding is whether the court below ought to have made orders in plaintiff’s favour concerning the shares which the plaintiff claimed to own in the defendant’s company and as to the dividends accruing from such shares. The question of share ownership of an employee in a company for which he works generally has nothing to do with the terms of the employee’s employment under the company. Share ownership is a relationship governed by the Companies and Allied Matters Act, Cap. 59, 1990 Laws of the Federation. Outsiders who are not employees of a company buy shares in the company. I do not see therefore why the dismissal or termination of the plaintiff from the defendant’s employment would have any effect whatsoever on the shares he still owned in the defendant’s company. This was simply an irrelevant matter. The court below rightly in my view did not make any pronouncement in relation thereto.
This appeal has no merit. It is accordingly dismissed with N10,000.00 costs in the defendant/respondent’s favour against the plaintiff/appellant.
SC.135/2001