P. C. Mike Eze V. Spring Bank Plc (2011)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The appellant in this appeal was the plaintiff at the High Court of Justice of Lagos State and the appellant at the Court of Appeal Lagos Division. The Appellant was also an employee of the Defendant/Respondent Bank where he rendered 21-years of service before his dismissal by a letter dated 19th December, 1988. By a writ of summons and a statement of claim, the appellant challenged his dismissal at the Lagos High Court where he claimed for the following reliefs-

“1. A Declaration that the dismissal of the plaintiff from the defendant’s service vide letter reference No. PAD/TR/STA.819 dated 19th December, 1988 is unlawful, irregular, null and void and of no effect whatsoever.

2. The sum of N285,690.00 (Two Hundred and Eighty Five Thousand, Six Hundred and Ninety Naira) being damages for breach of contract of employment committed by the defendant against the plaintiff on 19th December, 1988.”

Before his dismissal, the appellant was issued with a query dated 3rd May, 1988 in accordance with the rules governing his conditions of service which required him to explain why severe disciplinary action should not be taken against him for his involvement in various acts of foreign exchange malpractices which the employer regarded as gross misconduct. The appellant duly responded to the query in writing denying the allegations against him. However, the appellant’s employer was not satisfied with his explanation and proceeded to first suspend him from service and later dismissed him on the ground of gross misconduct.

At the conclusion of the hearing of the appellant’s action at the High court, that court in its judgment delivered on 24th April, 1992, dismissed the appellants claims and his subsequent appeal against that judgment to the Court of Appeal, Lagos Division was also dismissed on 17th November, 1994, thereby giving rise to the present appeal by the appellant.

In the appellant’s brief of argument, the two issues distilled from the three grounds of appeal are –

“1. Whether or not the learned Justices of the Court of Appeal were correct when they held that it is the determination of whether the contract of employment sued on by the appellant was one of mere master and servant or one protected by statute that will resolve the issue of fair hearing necessitating trial before dismissal (formulated from ground 3).

2. Whether or not the Justices of the Court of Appeal were correct when they held that the appellant did not challenge the definite findings of fact by the trial Court (formulated from grounds 1 & 2).

The two issues were adopted by the respondent in its respondent’s brief of argument in which the respondent also raised a preliminary objection to the competence of the appellant’s appeal itself.

Preliminary Objection

The respondent’s preliminary objection is grounded on the fact that on 4th July, 2007, when this court granted the appellant’s application for extension of time to seek leave to appeal, leave to appeal and extension of time to file the notice of appeal, there was no respondent before the court as the African Continental Bank without the addition of ‘Ltd.’ was not a legal personality having ceased to exist as a Company following the order of the Federal High Court of 1st February, 2006, dissolving the Company. It was the contention of the respondent that the notice of appeal filed by the appellant on 17th July, 2007 with the same African Continental Bank, a non legal person, as respondent, is also incompetent, null and void. Relying on the cases of Margaret Nzom v. Jinadu (1987) 1 N.W.L.R. (Pt. 51) 533; Co-operate and Commerce Bank Ltd. V. Alex Onwuchekwa (2000) 3 N.W.L.R. (Pt. 647) 65 at 73; Tesi Opebiyi v. Shittu Oshoboja (1976) 9/10 SC v. United Africa Co. Ltd. (1965) 33 A.E.R. 1169 at 1172 1, learned counsel to the respondent urged this court to strike out this appeal in the absence of a competent respondent to defend the appeal following the demise of the respondent even before initiating this appeal on 4th July, 2007, when this court granted the appellant’s application for extension of time to appeal.

In the appellant’s reaction to the preliminary objection, its learned counsel in the appellant’s reply brief of argument, pointed out that the preliminary objection was misconceived and ought to be dismissed for failure to take into account the fact that since December, 2005, the Spring Bank Plc, the present respondent had acquired African Continental Bank in a recapitalizing exercise; that upon the application of the appellant for substitution under Order 8 Rule 9(1) and (2) of the Rules of this Court which was granted on 28th January, 2009, Spring Bank Plc became the new respondent in this appeal resulting in amending all the processes in this appeal including the notice of appeal; that unless and until the order of this Court of 28th January, 2009 is set aside it remains binding on the court and the parties that Spring Bank Plc is the respondent in this appeal, which the respondent itself recognised in filing its application for extension of time to file and serve its respondent’s brief of argument. Learned counsel pointed to the decisions of this Court in Otu v. A.C.B. International Plc. & Anor. (2008) 2 F.W.L.R. (Pt.419) 18; Akinfolarin & Ors. v. Akintola (1994) 4 S.C.N.J. 30; A.G. Anambra State v. A.G. Federation (2005) 5 S.C. (Pt. 1) 73; Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors. (2009) 5 – 6 S.C. (Pt. 11) 57; Egbo v. Agbara (1997) 1 N.W.L.R. (Pt. 481) 293 and Shuaibu v. Nigeria-Arab Bank Ltd. (1998) 4 S.C. 170 and urged this court to dismiss the preliminary objection as the parties are bound by the ruling of this court of 28th January, 2009, in the application for substitution taking into consideration that the age of relying of technicalities to defeat substantial justice, is over.

Although it is clear from the judgment of the Court of Appeal of 17th November, 1994, now on appeal in this court that the respondent at the court below was the African Continental Bank Ltd and not African Continental Bank simplicita as claimed by the respondent in its objection. Further, all other processes in the record of appeal including the appellant’s brief of argument, the respondent’s brief of argument and the appellant’s reply brief upon which this appeal was heard, bear Spring Bank Plc as the respondent. Again, it is apparent from the arguments of the respondents in support of the preliminary objection that it arose mainly from the alleged order of the Federal High Court given on 1st February, 2006, dissolving the African Continental Bank Ltd. That order being the root of the preliminary objection is not part of the record of the appeal and as such I cannot see how it will be relied upon in support of the objection having regard to Section 132 of the Evidence Act CAP E14 Laws of the Federation of Nigeria 2004 and the case of Nzekwu & 7 Ors. v. Nzekwu & Ors. (1989) 2 N.W.L.R. (Pt. 104) 373 at 404. On the requirement proof of judgments or orders of court by the production of certified copies thereof. In any case, with the order of this court given on 28th January, 2009, substituting Spring Bank Plc as the respondent in this appeal, the order had the effect of consequential amendment to all the processes of the court reflecting the name of Spring Bank Plc as the respondent. Not only that, it is also plain that all the cases relied upon by the respondent in support of its objection, are not applicable because the respondent had failed to show that the respondent was dead or had ceased to exist as at 4th July, 2007, when this court granted the appellant’s application for extension of time to appeal. The preliminary objection is accordingly hereby dismissed.

Substantive Appeal

The first issue is whether or not the court below was right in holding that it is the determination of whether the contract of employment sued on by the appellant was one of mere master and servant, or one protected by statute that will resolve the issue of fair hearing necessitating trial before dismissal. Learned counsel to the appellant on this issue had submitted that the appellant’s case all along had been that the nature of employment not withstanding, the appellant was entitled to fair hearing before he could be dismissed in accordance with his guaranteed right under Section 35 of the 1999 Constitution; that the court below had misdirected itself on the applicability of the principle of fair hearing as being available only to employees whose employment was clothed with statutory flavour which resulted in causing miscarriage of justice to the appellant. The cases relied upon in support of this stand of the appellant include, Aiyetan v. NIFOR (1978) 3 N.W.L.R. (Pt. 59) 48 at 75 – 76; Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306; Garba v. University of Maiduguri (1986) 1 N.W.L.R. (Pt. 18) 550 at 583; Sofekun v. Akinyemi (1980) 5 – 7 S.C. 1; F.C.S.C. v. Laoye (1989) 2 N.W.L.R. (Pt. 106) 652; Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599 and Bishi v. Judicial Service Commission (1991) 6 N.W.L.R. (Pt.197) 331. Learned counsel observed that the only period the nature of employment becomes relevant is as to the consequence of a finding of wrongful dismissal. An employee enjoying statutory flavor in his employment can be reinstated, whereas for others, the court cannot impose an employee on an employer. On the authorities relied upon, learned counsel submitted that in the present case where the appellants’ employer had given specific misconduct as the reason for the dismissal of the appellant, the dismissal cannot be justified in the absence of adequate opportunity offered to explain, justify or else defend the alleged misconduct; that since the respondent did not give the appellant his constitutional right of fair hearing before his dismissal, that dismissal cannot be allowed to stand, re-iterated the learned counsel who urged the court to allow the appeal on this issue and set aside the order of dismissal as the case of Yusuf v. Union Bank of Nigeria Plc. (1996) 6 S.C.N.J. 203 at 214 relied upon by the respondent, is a mere obiter dictum in the absence of any issue of misconduct which bearded on criminal act in that case.