Mr. P. C. N. Uzondu V. Union Bank of Nigeria Plc (2008)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of the Benin High Court delivered on 6th day of June 2002 by Hon. Justice A. A. AGUN wherein all the plaintiff’s claims were dismissed in its entirety. Dissatisfied, the plaintiff at the lower court now appealed to this court. The facts which led to this appeal are as follows:-

The Appellant was employed as a clerk by the Respondent in 1980. He rose to become the Branch Accountant. Sometime in August 1997, it was discovered that one of the vital books of the bank did not balance. Being the Accountant, the Appellant proceeded on leave in October 1997 without balancing the books. Consequently, the Respondent lost N36,437,000.20. The Respondent later charged the Appellant and seven other members of staff to court for stealing. The Respondent suspended the Appellant. Later, the Appellant was dismissed by the Respondent. The Appellant then filed an action at the High Court for the following reliefs:-

“1. A declaration that the defendant’s letter of dismissal of the plaintiff from the employment of the defendant dated the 9th of October, 2000 amounts to a violation of the Plaintiff’s Fundamental Rights, Null and void and of no legal effect.

2. An order re-instating the plaintiff to the plaintiff’s position with the Defendant as officer (Branch Accountant)
3. A declaration that the letter of suspension issued by the Defendant to the plaintiff dated 12/11/98 is still in force and subsisting.”

Pleadings were filed and exchanged by the parties. The Appellant testified on his own behalf and the Respondent called one witness. After due consideration, the learned trial judge dismissed the Appellant’s claims.

The Appellant filed Appellants’ brief dated 17/6/04 on 24/6/04. The brief was deemed properly filed in this court on 20/9/05. Also an Appellant’s Reply brief was dated and filed on 28/9/06. The Respondent’s brief dated 4/11/05 was filed on the same day. The Appellant’s counsel Mr. A. Osayomwanbor Esquire identified two issues for determination also adopted by Mr. Dafe Akpedeye SAN who filed the brief of argument of the Respondent. They are as follows:-

1. Whether the trial court gave full consideration to the case and claim of the Appellant before it before dismissing the Appellant’s claim.
2. Whether the trial court was right in holding that the Appellant ought to have placed before it the contract of service Agreement in view of the peculiar circumstance of this case.

Mr. Osayomwanbor Esquire in his oral argument submitted that a letter of dismissal cannot take retroactive effect. He cited Abenga v. BWJSC Ltd (2006) All FWLR Pt. 321 Pg. 1327 at 1328.

On issue 1, learned Appellant’s counsel argued that the Appellant’s case is that subsequent on the discovery of the fraud to the tune of N36m in the branch of the Respondent Bank where he was the Branch Accountant, seven members of staff were arrested and charged to the Chief Magistrate Court Benin City. The Appellant was placed on suspension. The Respondent instituted a civil action to recover the money from Philip Onyia and Helen Uwangue and got judgment. The fulcrum of the Appellant’s case is that he was placed on suspension pending the outcome of the criminal trial and until the outcome of the said trial indicating the culpability of the Appellant; the Respondent could not dismiss the Appellant. Counsel submitted that the learned trial judge ignored the dismissal of the appellant before the determination of the criminal case and got carried away with the principle relating to the power of an employer to dismiss its servant. He submitted that during the period of criminal trial, the power of dismissal is put on hold. He argued that the trial court allowed itself to be influenced by the nature of the financial loss. He argued that the Respondent had lost nothing in the hands of the Appellant and that the reasoning of the learned trial judge that the Appellant worked against the deep interest of the employer is untenable. Appellants’ counsel argued that the Respondent made no effort to meet the Appellants’ case but sought to make a different case for itself which is wrong. He cited Simon Ihezakwu & 2 Ors v. UNIJOS (1990) 4 NWLR Pt. 146 Pg. 598 at 607.

Learned Respondent’s counsel in reply to the Appellant’s first issue introduced arguments in respect of the claim of the Appellant which in my humble view did not arise from the case of the parties at the lower court, from the grounds of appeal and from the arguments raised in support of the 1st issue for determination by the Appellant’s counsel. Respondent’s counsel went at length on a voyage to explore the issue of the enforcement of fundamental human rights of the Appellant as provided by the fundamental human rights enforcement rules as contained in the 1st leg of the Appellant’s claim at the lower court.

Let me say here that the arguments on whether leave should have been sought etc to urge that relief and the proper procedure to be used by the plaintiff to urge that relief was not a point or issue raised by the Respondent’s counsel at the lower court. It was neither raised nor addressed by either counsel or the court and no ground of appeal relates to it. The issue of fundamental human rights came up in the Appellant’s pleadings only in relation to the right of fair hearing which was allegedly denied the Appellant by the Respondent before his dismissal. The issue of enforcement of fundamental human rights according to the Fundamental Human Rights Enforcement Rules did not arise at all. In any event, an action challenging dismissal does not partake of the nature of an action for breach of fundamental human rights and is therefore not maintainable by action for enforcement of fundamental human rights See Grace Jack v. Uni Agric Maiduguri (2004) 1 SCNJ 335 at 346. That the whole portion of the arguments is irrelevant being in my humble view misconceived.

On the argument properly raised by Appellant’s counsel, Respondent’s counsel argued that it is not necessary under the common law nor is it a requirement of the Nigerian Constitution that before an employer summarily dismisses his employee from his service, the employee must be tried by a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. He cited Alh. Lasisi Yusuf v. Union Bank (1996) 6 NWLR Pt.457 Pg. 632 at 644; Ajayi v. Texaco Nig Ltd (1987) 3 NWLR Pt. 62 Pg. 577.

He further submitted that the law is trite that an employer can terminate his employee without waiting for the outcome of criminal prosecution initiated against the employee. This is so where the employee is not invested with a legal status higher that the ordinary one of master and servant. In that case his suspension may turn into a full dismissal at the option of the employer subject to the terms and condition of service. He argued that in the instant case the Appellant has not shown that his dismissal was not in accordance with his terms of service as to make it wrongful. Dismissal is never tied to criminal prosecution since it is an administrative weapon which can be utilized whether there is a suspension or a criminal matter pending in court or not. Counsel further argued that the Respondent had lost over N36 million (Thirty Six Million Naira) from laxity of the Appellant’s department. Instead of unraveling the scam, Appellant proceeded on leave, and when he returned he pushed the file to a junior officer who now unraveled the scam. The law is trite that where an employee works against the deep interest of his employers, it amounts to misconduct and such employee is liable to dismissal.

Counsel submitted that no where in the Appellant pleadings did the appellant invite the trial court to consider the effect of his dismissal. He opined that a court is bound by the case before it and cannot make an order not prayed for by the parties before it. He cited A.G. Anambra State v. Okafor (1992) 2 NWLR Pt. 224 Pg. 396 at 403; LUTH & MGT Board v. Prince M.B. Ademola (1998) 5 NWLR Pt.550 Pg. 406 at 419.

This issue has two legs. The first is whether the Appellant’s pleading and evidence at the lower court emphasized the point being raised here on appeal that the dismissal of the appellant before the determination of the criminal case was wrongful. I have read the statement of claim filed by the Appellant at the lower court. Clearly paragraphs 24 and 25 thereof raised this issue which was answered by the Respondent in paragraphs 23 and 24 of the amended statement of defense to the effect that the Respondent can dispense with the Appellant’s service at any time for any reason or for no reason at all and that the Appellant’s dismissal had nothing to do with the pending criminal trial. I am inclined to agree with the Appellant’s counsel that this point was clearly made by the Appellant and issues were joined on same. I have read the judgment of the lower court contained on Pg. 45 – 58 of the printed record. The learned trial Judge reviewed the evidence of the Appellant in particular and the parties on the point. However, nowhere at all did the learned trial Judge avert his mind in his findings nor give a legal opinion on this particular point. That is whether or not the Respondent was obliged in the circumstances of this case to abide the outcome of the criminal trial before it could dismiss the Appellant. The non consideration of this point on which issues were joined is clearly an error in the judgment of the lower court. The issue now is whether or not the error of the lower court in not considering the point has occasioned miscarriage of justice. Not every error or mistake of the lower court will result in appeal being allowed. See Spasco Vehicle & Plant Hire v. Alraine Nig Ltd (1995) 9 SCNJ 288; Owhonda v. Ekpechi (2003) 9 SCNJ 1; Amayo v. Erinmwingbovo (2006) 5 SCNJ 1.