O. Eno Osagie V. New Nigeria Bank Plc. (2004)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
This is an appeal against the judgment of Omage, J. (as he then was) delivered on the 19th October, 1998, wherein he dismissed the appellant’s claims against the respondent for the following reliefs-
(1) A declaration that the defendant’s letter of dismissal dated 3rd June, 1991 with reference No. NNB/PC.140/18 and signed by Mrs. P. I. Uloho-Sokoh, the Industrial Relations Manager is unlawful, wrongful and therefore null and void and of no effect whatsoever.
(2) An Injunction restraining the defendant from giving effect to the contents of the said letter.
(3) An order directing the defendant to re-instate the plaintiff forthwith and to pay the plaintiff his arrears of salary and other entitlements/benefits from August 1988 till whenever he is re-instated.
(4) A declaration that the plaintiff is still a staff of the defendant. Alternatively, the plaintiff claims the sum of N273,960.20 being his arrears of salaries and allowances he would have earned from August 1988 till 1997 when he would have retired from the service of the defendant. Or, an order directing the defendant to convert plaintiff’s dismissal to retirement and to be paid all his entitlements.
On its own part, the respondent urged the lower court in paragraph 12 of its amended statement of defence to –
“Dismiss with substantial costs all the claims and prayer contained in paragraph 27 of the plaintiff’s statement of claim; (supra) as they are baseless, frivolous, misconceived, speculative and gold digging”
At the trial that ensued, the appellant gave evidence for himself and the respondent testified through one of its officers. The facts of this case from the respective standpoint of the parties are in my view germane to this appeal, and will be set out hereunder. This will no doubt facilitate a better understanding of the issues involved in this appeal. The details of the case from the appellant’s perspective are as follows. He was employed as a clerical officer in the respondent’s bank in October 1971 and rose to the rank of accountant II, a senior staff position governed by the ‘main collective agreement’ (exhibit E04).
He was sent to the respondent’s Uzebba branch as relief manager where he approved an enhanced overdraft facility of N91,000.00 to one of the customers of the branch, the owner of the account No. 237, a produce buyer, who before then enjoyed an overdraft facility of only N15,000.00. The appellant thereafter wrote to the Credit Controller and asked for ratification from the Area Manager who was his immediate supervising officer. The Area Manager however issued him a query. Subsequently, he was suspended from duty by the respondent and handed over to the police on the allegation that he defrauded the bank of N88,000.00. He was arraigned before the Magistrate Court, Afuze on charge No. MOA/78C/88, found guilty and sentenced to 6 years imprisonment on the 24th May, 1991. That same day, 24th May, 1991, he filed a notice of appeal against the judgment in the High Court, Afuze. While the appeal was pending, the respondent dismissed the appellant for fraud and irregular practice as per their letter of 3rd June, 1991 (exhibit EOS), which reads as follows:-
“Dismissal
Re: Fraud and Irregular Practices in Respect of Cash, Vouchers, Records and Customers’ Account-
We refer to the subject matter of the Chief Inspector’s query of 22nd August, 1988 and your subsequent reply of 29th August, 1988, which led to your suspension, and wish to inform you that the appropriate Disciplinary Committee has carefully considered your matter in all its ramification and found your representation unsatisfactory and unacceptable. You were therefore found guilty of the relative offence as charged.
Consequently, it was decided that you be dismissed from the services of the bank in accordance with the conditions of service applicable to you. You are hereby dismissed from the services of the New Nigeria Bank Limited with effect from the date of this letter.”
The Afuze High Court however allowed the appeal on the 30th of July, 1992. The conviction and sentence imposed on the appellant by the lower court was set aside, and in their stead, the appellant was discharged and acquitted – see exhibit EOI9. Following this development, the appellant wrote exhibit EOI5, requesting for re-instatement.
The respondent in exhibit E016 dated 8th January, 1993, replied as follows-
“Re: Your Letter of Re-Instatement
Your letter dated 28th September, 1992, in respect of the above subject-matter refers. We wish to congratulate you on your discharge and acquittal by the High Court of Justice, Afuze. However, we wish to inform you that due to re-organization that has taken place in the bank we are unable to reabsorb you.”
It was when he was not re-instated nor paid his entitlements that the appellant instituted the action that led to this appeal. The case for the respondent however, is that the reason for the appellant’s dismissal was sequel to the query to him dated 22nd August, 1988 (exhibit E020). It reads –
“Query: Fraud and Irregular Practices in respect of Cash, Vouchers, Records, and Customer’s Account
While relieving the branch manager of our Uzebba branch, you purportedly paid three cheques… on account No. 237 (Messrs. Ayodele and Matthew A. Osemobor) on 12th August, 1988. You wrote to the Credit Controller and copied the Area Manager that you advanced the money against graded cocoa. Looking through the advance file, we discovered that there was nothing to confirm that the money was advanced for produce. In actual fact it has not been the practice of the bank since the dissolution of cocoa board to pay against graded cocoa. The substantive manager in his handing over notes did not advise you to do this but warned you not to exceed the limit of N15,000.00. Evidence available to us show that you did not advance the N92,000.00 to the customer against their produce but you exchanged your cheques for N89,000.00 with customers (see attached photocopies of the cheques).
Information available to us show that you had treated your two cheques… as cheques purchased on your account at Auchi. On the strength of the two cheques you issued drafts … The draft for N10,000.00 was payable to banks Eno’97Osagie (your first son) and the draft for N45,000.00 was made payable to Collins Ebohon. We have since discovered that Collins Ebohon is your second son and you have successfully cashed the drafts. When you found that the cheques you treated as cheques purchased will expose you in no distant date, you used your position as a Manager to convince the customers to give you their cheques with which you replaced the C.P cheques which you held for three days and one day respectively. You eventually pushed the entries through on 12th August, 1988. We are reliably informed that you refused to handover to the substantive manager for four days and even threatened him with knife and gun. You illegally collected N33,000.00 cash from the strong room. By your actions you flouted A.G.M. (Operations) Circular No. 44/88, ref. NNB/AGM/OPS/Vol.IV /93, dated 23rd December, 1987.
You exchanged your cheques for N89,000.00 with those of your customers with the intention to defraud the bank. You threatened the branch manager’s life and refused to hand over to him. You ignored the branch manager’s order that you should not exceed the limit of N15,000.00 in account 237. You issued two drafts amounting to N55,000.00 against your account at Auchi branch in which you know you had no such money and your children cashed the two drafts on your order. You have therefore contravened Article 4 (iv) a (i) & (ii) of the collective agreement. You should explain in writing (four copies) why serious disciplinary action should not be taken against you to reach the Chief Inspector quickly.”
The appellant’s reply to the above query is exhibit EO 21, which is hand’97written and dated 29th August, 1988; it reads as follows –
‘Your query of 22nd August, 1988 in respect of the above subject refers. During my relieve duty at Uzebba it happened that my wife’s goods (knitting items) arrived from Britain to Lagos Port. To enable her clear the goods I had to take the money and issued my cheques for N10,000.00 and N45,000.00 for drafts respectively for cash as to enable these goods collected from the custom officials. The proceeds from the sales expected was to be used to defray the drafts and cash collected before 5th August, 1988. But unfortunately the payment was delayed hence the irregularities.
I left for Benin on the 11th August, 1988 from Uzebba to confirm the payment but the proceeds was not received. When I came to the branch the next morning 12th August, 1988, I called the Branch Accountant and the Manager and narrated the story to them and of my intention to report to the Chief Inspector. The substantive Branch Manager (Mr. Anthony Okhueleigbe) suggested that if I could see a customer to debit his account the offence could be milder. When he mentioned Mr. Ayo, I told him that he has given me N7,000.00 cheque hence I did not think of him. He, the Manager, sent for Mr. Ayo who came and discussed the matter with him and finally agreed to give me his cheques which he did. Those cheques when paid created an excess of N91,124.45 which I wrote in the hand over note and a letter to the Area Manager Benin for his information..
In spite of the lapses and irregular practices I am sure to repay the money within two weeks if I am allowed bail as to enable me see the Alhaji who bought the goods… I could be made to report to the police at interval as they may wish. Should the Chief Inspector and/or the Police want to charge me to court before… the option is left to the Chief Inspector. Which ever is the case I am prepared to pay back the money as I have no intention whatsoever to defraud the bank.”
It is the respondent’s contention therefore that the appellant was dealt with on the basis of the said queries and his replies thereto and by virtue of the relevant terms and conditions of his service- see paragraph 10 of the amended statement of defence. However, there is an added twist to the tale, the appellant in paragraph 1 of his reply to the amended statement of defence, arrived that the existence of the A.G.M. (Operations) Circular (supra) was not brought to his knowledge, and as such he “does not know the contents and cannot be held bound by its provisions.”
He also denied in paragraph 2 of the said reply that he was never issued with any query, thus:-
“The plaintiff emphatically denies that he was issued with any query by the defendant’s Chief Inspector or the Chief Inspector’s query with reference No. NNB/ID/UZ/2888/1 dated 22nd August, 1988 (exhibit E020) and neither did the plaintiff offer or was given opportunity to offer any reply to the said query. The said query and reply if any are products of the defendant as the plaintiff was incarcerated throughout August and September 1988 at the State Investigation and Intelligence Bureau, Benin City at the instance of the defendant. In any case the plaintiff’s dismissal was not predicated on the said Chief Inspector’s query and/or reply thereto.”
At the close of the trial and after heating arguments from counsel to the parties, the learned trial Judge delivered his judgment. He held as follows-
“…The plaintiff admitted that he granted an unauthorized facility. He admitted that he made the grant without prior clearance as directed by the contents of A.G.M. (Operations) Circular No. 44/88; and it is idle for the plaintiff to plead as he did that he was not aware of the said circular. The plaintiff admitted that he by-passed his Area Manager. No matter what his objective may be; and it is not noble; he discarded specific instruction of his employers and ignored laid down procedure. The representations of the plaintiff to his employees was not considered satisfactory. The defendant issued E05. Prior to the issue of E05, the plaintiff in E09 had been asked to show cause why maximum disciplinary action should not be taken against him. Clearly, the plaintiff was unable to give such satisfactory cause to the defendant. Exhibit E04, Collective Agreement does not provide agreement for the right of the defendant to dismiss its staff summarily. This is because under the common law, the right to dismiss a staff resides in defendant, and he needs not give any reason. See … In my view, exhibit EOS was properly issued on 3rd June, 1991 and the effective removal of the plaintiff was achieved by the defendant by the dismissal of the plaintiff on 3rd June, 1991. The relief sought therefore to declare the letter unlawful, wrongful, null and void is refused.”
Dissatisfied with the judgment, the appellant filed a notice of appeal containing three grounds of appeal, and in line with the rules of court, briefs of argument were filed and exchanged. Two issues were formulated in the appellant’s brief, as arising for determination in this appeal. The said issues, which were adopted by the respondent, are as follows-
1. Whether or not the defendant can dismiss the plaintiff on a ground predicated on a criminal allegation and prosecution, which was not conclusive at the time of the dismissal.
2. Whether or not the plaintiff and defendant are not bound by the express terms and conditions governing the contract of employment.
On issue 1, it was submitted for the appellant that once a person has been accused of the commission of a crime, the only way it can be certain that he committed the alleged offence is for him to be taken before a court or tribunal cognizable in law and have him tried and convicted, and the trial must finally terminate either against or in favour of the accused person for there to be conclusive proof of the allegation.
The following cases were cited-
(1) Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550;
(2) Dr. Sofekun v. Akinyemi (1980) 5-7 SC 1, (1981) 1 NCLR 135;
(3) Denloye v. Medical and Dental Practitioner Committee (1968) All NLR 306;
(4) Federal Civil Service Commission v. J. O. Laoye (1989) 2 NWLR (Pt. 106) 652
(5) Nigerian Oil Mills Ltd. v. Daura (1996) 8 NWLR (Pt.468) 601
(6) Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599
It was further submitted that the respondent having queried, suspended and handed-over the appellant over to the police for prosecution and trial before the Magistrate Court at Afuze on the allegation of stealing; the Magistrate Court having tried and convicted the appellant of this offence on 24th May, 1991; and the appellant having lodged his appeal against the said decision on the same 24th May, 1991, the trial was at that point not conclusive until the determination of the appeal. Furthermore, that the decision to dismiss the appellant based on the Magistrate Court judgment which was yet inconclusive was entirely premature, and the respondent ought to have waited for the outcome of the appeal before taking their decision since he was on suspension without pay and there was no urgency in the situation.
It was however argued for the respondent that it is a gross misconception on the part of the appellant to contend that his dismissal was predicated on a criminal allegation and prosecution which was not conclusive at the time of the dismissal, because exhibit E020, did not make reference to the criminal charge against the appellant in the Magistrate Court, Afuze, which court convicted and sentenced him, rather the query alleged that-
i. The sum of N92,000.00 the appellant alleged he advanced to the customers of Account No. 237 in the Uzzeba branch of the respondent was at no time actually so advanced.
ii. The appellant exchanged his own cheques for the sum of N89,000.00 with those of the customers, Messrs. Ayodele and Matthew A. Osemobor, who had the said Account No. 237.
iii. The appellant made two bank drafts, for part of the said sum, payable to his 1st and 2nd sons who cashed the drafts.
iv. The appellant flouted A.G.M. (Operations) Circular No.44/88, reference NNB/AGM/OPS/Vol.14/93, dated 23rd December, 1987.
v. The appellant ignored the branch manager’s warning and advice not to exceed the limit of N15,000.00 in respect of existing facilities being enjoyed by customers including the owner of Account No. 237, and that any application for excess by any customer should be referred to the head office.
It was further submitted that in the premises the query stated that the appellant contravened Article 4 (iv) (a) (i) & (ii) of Collective Agreement, which was the agreed conditions of service of the appellant with the respondent, and that in exhibit E021, the appellant virtually admitted all the allegations in the query ’97 E020, and pleaded for time to repay the sum. It was further argued that it was on the basis of this admission of gross misconduct as contained in exhibit E021 that the appellant was dismissed in exhibit E05, which also made no reference to the criminal charge in the court where, however, he was already convicted and sentenced.
It was further submitted !hat after the stealing incident was reported to the police, the other aspects of the appellant’s gross misconduct as itemized above, were separately addressed by the respondent, and it is trite that the respondent was justified and had the light to dismiss the appellant who was found to have grossly misconducted himself on the job, citing Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512; Co-operative & Commerce Bank Nigeria Ltd. v. Nwankwo (1993) 7 NWLR (Pt. 286) 159. And citing ’97 Omobiorowo v. Ajasin (1984) 1 SC 205; (1984) 1 SCNLR 108; Yusuf v. Oyetunde (1998) 12 NWLR (Pt. 579) 483; (1998) Vol. 63 LRCN 4914; Onamade v. A.C.B. Ltd. (1997) 1 NWLR (Pt. 480) 123; (1997) Vol. 46 LRCN 91, it was submitted that the word ‘fraud’ as contained in exhibits E04 & E020, does not criminalise each aspect of the appellant’s gross misconduct stated above and the mere use of the word ‘fraud’ in this con does not import criminality, which must only be heard by the law court, and every case should be viewed in its own situation and merit ’97 citing Lana v. University of Ibadan (1987) 2 NWLR (Pt.64) 245; Sofekun v. Akinyemi (supra); F.C.S.C v. Laoye (supra).
It was further argued that the appellant’s argument in respect of this issue is grossly misleading in that the following material facts are missing in the argument, namely:
1. That the written query (exhibit E020) served on the appellant by the respondent was replied to in writing by the appellant (exhibit E021).
2. That the respondent’91E2’9180’99s disciplinary committee deliberated on both query and reply before issuing exhibit E05, the dismissal letter.”
It is the respondent’s contention that in a case of master and servant, as in this case, the above facts which the appellant intentionally left out in his argument is germane, crucial, and most relevant in the treatment of this Issue in order that justice by this court can be done according to the law. Further, that there is nothing in exhibit EOS to show that the appellant’s dismissal ‘was based on the Magistrate Court judgment which was yet conclusive’, and the imported allegation by the appellant that his dismissal was based on the said judgment is unfounded and misleading; and that being so, the judgment of the High Court Afuze, was not relevant to the issue of whether or not the appellant was entitled to be re-instated by the respondent, as the employment was wholly and entirely determined on the query (exhibit E020) and the written reply of the appellant (exhibit E021).
True enough, as the appellant rightly submitted, what the law says is that generally, where the dismissal of an employee is based on an allegation of crime, that allegation must first of all be proved before the dismissal can stand – see Savannah Bank (Nig.) Plc. v. Fakokun (2002) 1 NWLR (Pt.749) S.P.D.C. v. Olarewaju (2002) 16 NWLR (Pt. 792) 38.
Essentially, this is to give the employee adequate opportunity to explain himself before a tribunal vested with criminal jurisdiction before his employer takes any disciplinary action against him – see Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78, where this court per Olagunju, JCA held-
“It must be emphasized for the purpose of clarity that the focus of the decisions in Sofekun v. Akinyemi and F.C.S.C. v. Laoye (supra), behind which are ranged a long line of landmark decisions of the same ilk is primarily the right of fair hearing rather than a vindictive exposure of the erring employee to the punitive sledge of the criminal law.”
That in a nutshell is the raison d’etre for the decisions in cases of this nature, and this is easily discernible in the cases cited by the appellant. In Garba v. University of Maiduguri (supra), the Vice Chancellor of the respondent set up a panel to probe the alleged student rampage. The panel interviewed 104 witnesses including students and at the end of its investigations, several students including the appellant were expelled.
They instituted the action which ended up at the Supreme Court, wherein Nnamani, JSC held as follows:-
The appellants being among the 104 witnesses allegedly interviewed can be said to have been heard but they cannot, having regard to the principles of natural justice discussed above, be said to have had an opportunity of knowing the case they were to meet, or an opportunity of being heard in reply to the serious allegations made against their. There was therefore in my view a serious breach of the principles of natural justice. ” (Italics mine)
In Sofekun v. Akinyemi (supra), see also (1980) NSCC (Vol.12) 175, the Supreme Court held that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and he would be sure of getting a fair hearing.
One of the issues for determination in Denloye v. Medical and Dental Practitioners Committee (supra), see also (1968) NSCC (Vol. 5) 260, was whether the failure of a Tribunal of Inquiry to inform a person charged before it of the nature of the evidence against him, amount to a denial of justice.
The Supreme Court per Ademola, CJN, held as follows:
“Surely, the appellant in the present case was entitled to know the nature of the evidence given against him on 7th August, 1967 and it was wrong to withhold this evidence from him. Referring to such right, the Privy Council in the case of Kanda v. Government of the Federation of Malaya (1962) AC 337, said-
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given fair opportunity to correct or contradict them.” (Italics mine)
In the case of Olaniyan & Ors. v. Unilag (supra), the appellants were all Professors in University of Lagos, who filed an action in the High Court, which ended up at the Supreme Court, seeking for a declaration that their respective appointments were still subsisting and that the purported termination of their appointment was ultra vires the respondents, being contrary to the provisions of section 17 of the University of Lagos Act, 1967.
The Supreme Court per Oputa, JSC held as follows-
”I hold … that the power to dismiss or remove or terminate the appointments of the appellants either under clause 7 of their agreements or under section 17 (1) of the Act cannot be exercised until the University Council has informed the appellant of the grounds on which they propose to proceed and have given them a proper opportunity to present their case in defence. Dismissing or terminating the contract of a university professor who has not been convicted of any criminal offence is not a thing to be done lightly. It seems to me very necessary that there should be such inquiry as the regulations and section 17 (1) of the Act require and such right to be heard in defence as ‘the principles of eternal justice’ prescribe.'(Italics mine)
The fact of the case of Nigerian Oil Mills Ltd. v. Daura (supra), also cited by the appellant, are similar in some regard to this case under consideration. The respondent therein was employed by the appellant as a clerk in 1966 and rose to the position of production officer. He was dismissed by a letter dated 15th March, 1991 (exhibit ‘E’) on the allegation that he stole 1,250 empty polythene bags from the stock of the appellant. In that case, there was no doubt whatsoever from exhibit E, that the respondent was actually dismissed because of the allegation that he stole and sold the 1,250 empty polythene bags for his personal use. It was the respondent’s case that he was not confronted with this serious allegation of theft and that he was not given the opportunity to defend himself before he was served a letter of dismissal. The lower court held that the dismissal was wrongful.
On appeal to this court, Mohammed, JCA held as follows:-
It is quite clear from the evidence led at the lower court that this serious allegation of crime was not established against the respondent. In fact even the allegation relating to the breach of the appellant’s company’s regulation leveled against the respondent was not established by the appellant because of its failure to put in evidence before the lower court a copy of the said regulations.
Furthermore, the evidence also revealed quite plainly that the respondent was never confronted with these serious allegations against him by the appellant or afforded the respondent an opportunity to defend himself. In these circumstances, having regard to the position of the law, I am of the view that the findings of the learned trial Judge that the dismissal of the respondent by the appellant was wrongful is quite in order having been made in accordance with the law.’
(Italics mine)
The position of the law as stated in Nigerian Oil Mills Ltd. v. Daura (supra), is that it is a well-established principle of the common law and of Nigeria law that ordinarily a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all; where parties have reduced the terms and conditions of service into agreement, the conditions must be observed; and where a contract of employment had been properly terminated intention or motive for doing so becomes totally irrelevant. Furthermore, that where an employer plead that an employee had been removed or dismissed for a specific misconduct, the dismissal cannot be justified in the absence of adequate opportunity offered to the employee to explain, justify or else defend the alleged misconduct.
I have set out the decisions of the court in the cases cited by the appellant, basically because I agree with the respondent that each case should be viewed in its own situation and merit, and to show in no uncertain terms that the cases cited by the appellant are easily distinguishable from this case under consideration. Can the appellant in this case convincingly say that he was never given an opportunity ‘to explain, justify or else defend’ the alleged misconduct leveled against him. I think not, and this brings us to the last case cited by the appellant, Federal Civil Service Commission v. J. O. Laoye (supra), where the Supreme Court, per Eso, JSC held as follows-
”I would like to emphasize herein that the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved; care must be taken that the provision of section 33(4) of the 1979 Constitution are adhered to. It is not difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter.’ (Italics mine)
In other words, contrary to the submissions of the appellant, it is not in every case where an employee is accused of misconduct that he must be arraigned before a court on a criminal charge before disciplinary action can be taken against him. Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge. See Uzoho v. Task Force on Hospital Management (2004) 5 NWLR (Pt. 867) 627 where the court held that where an allegation of misconduct by an employee can be proved without the need to find the employee guilty of acts amounting to a criminal offence, a disciplinary tribunal can investigate the allegation without being held to be trying a criminal charge.
That the prosecution of an employee before the law court is not a sine qua non to the exercise of the power of summary dismissal by an employer was brought out clearly by the Supreme Court in Yusuf v. Union Bank of Nigeria (1996) 6 NWLR (Pt. 457) 632, where Wali, JSC stated as follows-
”On the issue of fair hearing which the appellant belatedly introduced, it is my considered view that 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 involves accusation of crime. In the case in hand, the respondent had done that. See exhibit B wherein the respondent called upon the appellant to give comprehensive explanation of the three accusations of misconduct and impropriety levelled against him. These were replied by the appellant in exhibit C most satisfactorily. Instead of answering the accusations, he went about accusing the respondent of trying to destroy him and rudely proposing questions for the respondent to answer.” (Italics mine)
The appellant in Yusuf v. Union Bank of Nigeria (supra) was dismissed for gross misconduct, in connection with his involvement in the negligent and irregular paying in of the sum of N4,665.00 which was wrongly diverted to the account of his friend, and some misappropriation and irregular sales of traveler’s cheques. The Supreme Court further held as follows-
”It is not necessary, nor is it a requirement under section 33 of the 1997 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality … To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.” (Italics mine) See also Arinze v. First Bank (Nig.) Ltd. (supra) wherein it was contended for the appellant that as the acts of misconduct allegedly committed by him disclosed criminal offences, he ought to have been tried by a court of law before dismissal.
The dismissal, it was argued, constituted a breach of his fair hearing. This court per Olagunju, JCA held as follows-
”It seems to me from the perspective of the decisions on the powers of an employer to dismiss summarily his employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the court is satisfied that the employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence. In sum, contrary to the argument of learned counsel for the appellant, the principle that where the act of misconduct by an employee also amounts to a criminal offence, the criminal offence must first be prosecuted before the employee can exercise his power of summary dismissal of the employee is not intended as law of the Medes and Persians. It is not an immutable principle.”
In this case, it is the respondent’s contention that other aspects of the appellant’s gross misconduct were addressed by the respondent and his employment was wholly and entirely determined on exhibits E020 & E021. The appellant however denied receiving exhibit E020, (reproduced above), and denied writing exhibit E021 (reproduced above). The learned trial Judge did not make any findings on this issue.
It is trite law that evaluation of evidence is primarily the function of the trial court, nonetheless, where the evaluation of evidence, would not entail issues of credibility of witnesses and it is an issue of non-evaluation or improper evaluation or appraisal of evidence by a trial court, an appellate court is in a good position as the trial court to do its own evaluation. See PI. & P Dev. Co. Ltd. v. Ebhota (2001) 4 NWLR (Pt. 704) 475; and Akintola v. Balogun (2000) 1 NWLR (Pt. 642) 532.
Exhibit E020 is a query addressed to the appellant and signed by one ‘M. Osa Okunghae for Chief Inspector.’ It is dated the 22nd August, 1988 and headed ‘Query: Fraud and irregular practices in respect of cash, vouchers, records, and customer s account’. Exhibit E021 is a handwritten reply to the query, it is dated 29th August, 1988; addressed to the Chief Inspector it is headed ‘Re – Yr query: Fraud and irregular practices in respect of cash, vouchers, records, and customer’s account’. Exhibits E020 & E021 were tendered by the respondent in proof of its assertion that the appellant was dismissed for gross misconduct on the basis of the said query and reply, and not because of the allegation of stealing against him.
The appellant denied receiving exhibit E020 and writing exhibit E021, yet, he tendered exhibit E05, the letter dismissing him from the services of the respondent, which is dated 3rd June, 1991 and headed
‘Dismissal – Re: Query: Fraud and irregular practices in respect of cash, vouchers, records, and customer’s account.’
The first paragraph of exhibit E05 reads as follows-
”We refer to the subject matter of the Chief Inspector’s query of 22nd August, 1988 and your subsequent reply of 29th August, 1988, which led to your suspension, and wish to inform you that the appropriate Disciplinary Committee has carefully considered your matter in all its ramification and found your representation unsatisfactory and unacceptable.” (Italics mine)
Be that as it may, apart from exhibits E020 & E021 which were tendered by the respondent, the appellant tendered exhibits E09 & E010 in evidence.
Exhibit E09 is also a query dated August 16, 1988. It reads as follows-
”On Friday, 12th August, 1988 as a relief manager you granted an authorized (sic) overdraft totaling N91,127.45 to holders of account 237 in spite of the fact that you were to handover finally that day to the substantive manager. You are well aware that AGM (Operations) Circular No. 44/88 reference NNB/AGM/OPS/Vol.IV/93 dated 23rd December, 1987 among other instructions directed that relief managers should only allow borrowing customers to operate within approved ceiling provided their accounts are satisfactorily conducted and that all applications for excesses should be referred to head office for determination. Furthermore, the substantive manager in his hand over note warned that the customers’ balance must not exceed approved limit. You also failed to refer the customer’s application to your Area Manager who you could easily reach for his consideration. As an Area Office personnel who had different times in the past queried managers for granting unauthorized overdraft, you cannot feign ignorance of your action. We have since realized that there was more to it than mere granting of an overdraft.
We, therefore demand an explanation from you why you presented your two cheques totaling N55,000.00 to be purchased when you knew that the balance in your account at Auchi on which the cheques were drawn had a balance of N9.42 credit at the time. We will also want to know what led to the cancellation of the cheques and who actually cancelled them out from the CP register. Let us know who banks Eno-Osagie and Collins Ebohon, the beneficiaries of draft No. 481052 for N45,000.00 drawn of M.M. way branch are and their connections with the holders of account 237 at Uzebba.
Let us know why it took you five good days to handover.
Finally, you are required to show cause why maximum disciplinary action should not be taken against you for
1. Flouting AGM (Operations) Circular referred to above.
2. Ignoring the substantive manager’s warning that the account should not exceed the approved limit.
3. Failure to refer the customer’s request to your area manager.
4. Granting the overdraft on your last working day in the branch when you were supposed to have fully handed over to the substantive manager.
5. Directing your request for ratification to the credit controller with an endorsement to your Area Manager for his information only.
6. For attempting to defraud the bank with your two cheques you had earlier wanted Uzebba branch to purchase.”
Exhibit E010 in his reply dated 17th August, 1988, and it reads as follows –
”On the 12th August, 1988, before I gave a hand over note to the substantive manager, I granted after a due inspection of the customer’s produce rented apartment a tentative overdraft of N91,127.45 for 14 days to holder of account 237 to meet up payment for his produce purchases. This was reflected in my hand over note to him (the substantive manager).
My objective decision to grant the overdraft before I reported to head office was because of the time lag in the transaction:
(a) To enable us retain the produce buyer instead of losing him to First Bank, Sabon’97gida Branch Co-operative Branch Ifon which are stone throw from Uzebba. The COT and the interest which will come into the bank within the 14 days the overdraft is allowed were utmost thoughts.’ (Italics mine)
The appellant denied knowledge of the existence of the AGM (Operations) Circular, but in exhibit EO10 dated 17th August, 1988, he had further stated as follows-
”However, it is regretted that I did not get clearance from the Area Manager (Bendel North) nor written to him directly instead of copying him for action already taken in my letter 12th August, 1988 seeking ratification from the credit controller on the subject, and more so heed to the head office circulars referred to.” (Italics mine)
Exhibits E020 & E021 aside, the appellant admitted in exhibit E010 that he granted an unauthorized facility without clearance from the Area Manager. He further admitted that in granting the said facility, he did not ‘heed to the Head Office Circulars referred to in exhibit E09. The circular referred to in exhibit E09 is the ”AGM (Operations) Circular No. 44/88 reference NNB/AGM/OPS/Vol.IV/93 dated 23rd December, 1987” which ‘among other instructions directed that Relief Managers should only allow borrowing customers to operate within approved ceiling provided their accounts are satisfactorily conducted and that all applications for excesses should be referred to Head Office for determination.”
The same circular is referred to in exhibit E020, which the appellant denied receiving, as follows-
”By your actions you flouted A.G.M. (Operations) Circular No. 44/88 ref. NNB/AGM/OPS/VoI.IV/93, dated 23rd December, 1987. You exchanged your cheques for N89,000.00 with those of your customers with the intention to defraud the bank. You threatened the branch manager’s life and refused to hand’97over to him. You ignored the branch manager’s order that you should not exceed the limit of N15,000.00 in account 237. You issued two drafts amounting to N55,000.00 against your account at Auchi Branch in which you know you had no such money and your children cashed the two drafts on your order. You have therefore contravened Article 4 (iv) a (i) & (ii) of the Collective Agreement. You should explain in writing (Four copies) why serious disciplinary action should not be taken against you to reach the Chief Inspector quickly.”
The above exposition speaks for itself; I only need to say that the respondent’s argument carries the day in this appeal. An employer is not debarred from summarily dismissing his employee whose I offence amounts to gross misconduct. See Co-operative Dev. Bank v. Essien (2001) 4 NWLR (Pt. 704) 479; Savannah Bank v. Fakokun (2002) 1 NWLR (Pt. 749) 544. Various acts may give rise to a dismissal, for example, willful disobedience to lawful or reasonable orders, misconduct of the master’91E2’9180’99s business, neglect, incompetence and other conduct incompatible with the faithful discharge of the servant’s duty to his master- see Co’97operative & Commerce Bank Nigeria Ltd. v. Nwankwo (supra). See also Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt. 404) 658, where Iguh, JSC stated as follows at p.686-
“In the present case, the appellant was in willful disobedience of the lawful and reasonable order of his employers. It is a conduct of such grave and weighty character as to undermine the relationship of confidence, which should exist between an employer and an employee. He was therefore guilty of gross misconduct and was liable to dismissal without notice and without wages. In my view, the respondent, in the exercise of its lawful powers properly dismissed the appellant summarily. I entertain no doubt, that the court below was right when it so held.” (Italics mine)
In this case the learned trial Judge held as follows, and rightly In my view-
”The plaintiff admitted that he granted an unauthorized facility. He admitted that he made the grant without prior clearance as directed by the contents of A.G.M. (Operations) Circular No. 44/88; and it is idle for the plaintiff to plead as he did that he was not aware of the said circular. The plaintiff admitted that he by’97passed his Area Manger. No matter what his objective may be; and it is not noble; he discarded specific instruction of his employers and ignored laid down procedure. The representations of the plaintiff to his employees was not considered satisfactory. The defendant issued E05. Prior to the issue of E05, the plaintiff in E09 had been asked to show cause why maximum disciplinary action should not be take against him”.
It is obvious from the foregoing, that there was overwhelming evidence before the trial court that the appellant was given ample opportunity to defend himself, and what is more, he admitted that he was given specific instructions not to grant unauthorized loans without approval from the head office, but he went ahead to approve the overdraft facility of N91 ,000.00.
This no doubt, justifies the conclusion of the learned Judge that –
“Exhibit E05 was properly issued on 3rd June, 1991 and the effective removal of the plaintiff was achieved by the defendant by the dismissal of the plaintiff on 3rd June, 1991. The relief sought therefore to declare the letter unlawful, wrongful, null and void is refused.”
The appellant’s issue 2, raises the question of whether or not the parties are bound by the express terms and conditions governing the contract of employment. It is his contention that the learned trial Judge was wrong to have validated the dismissal, particularly when there was no agreement between the parties in exhibit E04, the collective agreement, on how and when. an employee can be dismissed, therefore the resort to the common law by the lower court was inappropriate in the circumstances. It was however submitted for the respondent that the statement of the learned trial Judge that ‘exhibit E04 does not provide agreement for the right of the defendant to dismiss its staff summarily, should be attributed to the ‘Printer’s Devil, since the true position is that exhibit E04 fully provides for the right of the respondent to summarily dismiss any of its staff members who misconducts himself or herself. The court was referred to the provisions of Article 4 (iv) (a) of exhibit E04, set out on page 8 of the respondent’s brief.
I must point out that the provisions of Article 4 reproduced in the respondent’s brief is not contained in the ‘Main Collective Agreement’ admitted in evidence in this case as exhibit E04. In the exhibit before the court, Article 4 in Part II -Terms and Conditions of Service (section 1) of exhibit E04 is titled ‘Disciplinary Procedure’, and Article 4 (iv) titled ‘Summary Dismissal’ read ‘No agreement’. In any case, the fact that exhibit E04 does not provide for summary dismissal is quite irrelevant and the learned trial Judge was right in relying on the common law in his decision. See U.B.N. Ltd. v. Edet (1993) 4 NWLR (Pt. 287) 288; Texaco (Nig.) Pic. v. Kehinde (2001) 6 NWR (Pt. 708) 224; and Afribank (Nig.) Ltd. v. Osisanya (2000) 1 NWLR (Pt. 642) 598, wherein the courts held that collective agreements, except where they have been adopted as forming part of the terms of employment, are not enforceable.
In other words, the failure to act in strict compliance therewith is therefore not justiciable. See also CCB. v. Nwankwo (supra) and Nwobosi v. A.C.B. (supra). In Nwobosi’s case, the ‘Main Collective Agreement’ was admitted in evidence before the trial court as exhibit P, the Supreme Court held that the right of an employer to discharge an employee for gross misconduct is a common law right which the respondent had not lost simply because it had set down in exhibit P, other acts on the part of an employee which will constitute misconduct, and that the disregard of the respondent’s instruction by the appellant was an act of misconduct under the common law.
The Supreme Court per Kutigi, JSC also held as follows at page 681 –
‘It is equally clear to me that the act of granting unauthorized overdrafts and loans to customers by the appellant contrary to specific instructions as contained in exhibits C and L-L3, amounted to an irregular practice in respect of cash. It was unauthorized and therefore irregular. The act also in my view equally amounted to gross misconduct for which the appellant was liable for summary dismissal under the common law whether or not it was covered by any of the provisions of exhibit P’. (Italics mine)
In the final analysis, I agree with the respondent that this appeal is manifestly frivolous and absolutely unmeritorious. The appeal therefore fails and is hereby dismissed in its entirety. I make no order as to costs.
Other Citations: (2004)LCN/1593(CA)