Union Bank Of Nigeria Limited Vs Chukwuelo Charles Ogboh (1995)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The plaintiff/respondent was employed in 1957 as a clerk by the defendant/appellant. He rose after many courses organised by the bank to become an assistant manager. On 30th January 1984, he received a letter of dismissal with effect from 24th January, 1984. Respondent then sued and got judgment in default of appearance of the appellant, as defendant, whereby trial court took the evidence of the plaintiff only. An application to set aside the judgment was refused by trial court. However on appeal the Court of Appeal set aside the judgment and ordered a retrial by another Judge of Kaduna High Court.

At the first trial, the respondent’s claim (as plaintiff ) was for special damages as follows:

(a) Plaintiff’s gratuity for 26 years commencing from 1957 when he was employed by the defendant up to the date of dismissal………………….. N29 ,387 .00

(b) Plaintiff’s gratuity for 9 years commencing from the date of dismissal up to the date of retirement N10,172.00

(c) Plaintiff’s basic salaries for 9 years, commencing from the date of dismissal up to the date of retirement at N11 ,303.00 per annum …………… N10,727.00

Total N141,287.70

When the matter started de novo at the High Court the plaintiff changed his claim in an amended statement of claim. A party may amend his pleadings at any stage of trial before judgment. But the amendment of Statement of Claim in this matter was substantial. He abandoned all the claims in the original writ of statement of claim and made the following his ultimate claim:

“(a) A declaration that the dismissal of the plaintiff contained in a letter dated 30/1/84 from the services of the defendant Bank with effect from 24/1/84 is unlawful in that it is against the principles of natural justice, ultra vires, and of no effect.

(b) A declaration that the plaintiff is still in the service of the defendant Bank and that he is entitled to his full remunerations and leave bonus since his dismissal.

(c) A declaration that the plaintiff is also entitled to all his dues as an employee of the defendant Bank”.

(d) A declaration that the plaintiff who is an employee of the defendant Bank be immediately re-instated by the Bank.”

The new case before the High Court was therefore a complete departure from the previous one that the Court of Appeal ordered to be tried de novo. The trial court heard evidence and of most importance are three exhibits to wit. Exhibit 1 dismissing the respondent, Exhibit 3 being the collective agreement between the appellant’s employees and the appellant as terms of employments and Exhibit 5 the letter appointing the respondent as a manager. The respondent as plaintiff in his evidence claimed his summary dismissal violated Exhibit 3, terms of employment also known as Procedural Agreement, earlier referred to. Article 5 of Exhibit 3 lists instances that

will justify summary dismissal as in this case. Exhibit 1, the letter dismissing the respondent merely stated as follows:

“We regret to advise that you have been dismissed from the Bank’s services with effect from 24/1/84”

“We however wish you well in your future endeavours”.

Thus no reason has been adduced for the dismissal in Exhibit 1. Trial court held that even though the plaintiff/respondent was employed as a clerk in 1957, his later promotion to that of a manager in 1983 was supposed by implication to be governed by Exhibit 3. Art 5(d) of Exhibit 3 states:

“(d) Summary Dismissal

The law provides that staff may be summarily dismissed for certain offences covered by the broad heading of gross misconduct.

Such offences include:

(i) Proven cases of theft, fraud, dishonestly defalcation and irregular practices in respect of cash, vouchers records return, or customer’s account and foreign exchange transaction.

(ii) Drunkenness or taking drugs other than for medical reason rendering the employee unfit to carry out his duties.

(iii) Divulging confidential information.

(iv) Conviction for a criminal offence.

(v) Absence from work without authorised leave or reasonable cause(s)

(vi) Fighting and assault or engaging in disorderly behaviour during working hours, or on the office premises or within its immediate surroundings.

(vii) Deriving any benefit in the course of his official duties which place 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.

(viii) Failure to report promptly any irregularity on the part of any other member(s) of staff after having knowledge of such irregularity.

(ix) Abusive or insulting language or behaviour to any client which is prejudicial to the business interest of the Employer.

(x) Any other offences which may be agreed upon between the Employer and/or Association and the Union from time to time”.

The trial court found that Exhibit 1 dismissing the respondent was wrongful relying on such cases, Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652, Imana v. Robinson (1979) 3 & 4 S.C.1, 6-10. The learned trial Judge found inter alia as follows:

“In this matter, the plaintiffs prayers are for declaration as per paragraph 12 of the amended statement of claim. He had not asked for damages. In a situation where I have found that gross injustice was meted out to the plaintiff by summarily dismissing him after twenty-five years of meritorious and unblemished service, a violation of all things fair and just, for he was never informed before or at the time of dismissal what he had done wrong, nor given an opportunity to defend himself, special circumstances exist to warrant the declaration to be made.”

Trial Judge therefrom ended by making the following orders after considering s.33 of the Constitution of 1979 as to fair hearing:

“(a) the plaintiff is still in the service of the defendant bank, and that he is entitled to his full remunerations and leave bonus since the purported dismissal;

(b) the plaintiff is also entitled to all his dues as an employee of the defendant bank, and

(c) that the plaintiff who is an employee of the defendant bank be immediately reinstated by the defendant bank with effect from 24/1/84”.

Against this judgment the defendant appealed to Court of Appeal, Kaduna Branch, Among the grounds of appeal., it is pertinent to set out grounds 1,2, 3, 4, 5, 6, and 7 which are of great importance.

Grounds of Appeal:-

“1. The trial Judge erred in granting the plaintiff the declaration that his employment was still subsisting and the other declarations when

(a) there were no special circumstances justifying the grant and there was no pleading in this regard.

(b) there was no pleading or proof and I no finding that the personal confidence between the parties continued and in fact the letter of dismissal, Exhibit 1, proves the contrary and there was the admission of the plaintiff under cross-examination that there was a suppression of cheques in the branch in which he was the Manager, that he was querried in relation thereto and although he answered the query by denying that he did the act the result was his dismissal which amounted to

a non-acceptance of his defence by the defendant.

(c) It was not pleaded or proved and there was no finding that the plaintiff cannot be adequately compensated by an award of damages and

(d) the order reinstating the plaintiff defeats the Expressed right conferred by Exhibit 5 on the defendant.

(2) The trial Judge erred in applying the provisions of section 33 of the 1979 Constitution when”-

(a) the employment of the plaintiff has no statutory flavour.

(b) the right of the plaintiff to the employment if is not granted to him under a law

(c) the defendant is a limited liability company and the power to bring into force Exhibit 3 does not derive from the constitution or any other law and

(d) the case of Olaniyan, Aiyetan and Laoye upon which the trial Judge relied have to do with employments which have statutory flavour.

3. The trial Judge erred in applying the provision of the collective agreement, Exhibit 3, which in effect nullifies a clear written term contained in the contract of employment of the plaintiff, Exhibit 5; which provides that the employment of the plaintiff may be determined by the defendant by giving the plaintiff one month’s salary or one month’s notice and without having to comply with any procedure leading to giving a hearing or a fair hearing while the right to determine the employment in exhibit 3 is exercisable only after complying with the prescribed procedure which in essence requires fair hearing. The power of defendant by Exhibit 5 is expressed to be exercised without giving any reason.
4. The trial Judge erred in granting orders to back up the declarations sought by the plaintiff when he did not ask for such orders and counsel to the plaintiff conceded at the hearing that he was not entitled to what his client did not ask for an none of the authorities cited by the Judge support, even remotely, his position.
5. The Judge erred in granting the declarations sought by the plaintiff and making an order that he be reinstated when the plaintiff had accepted his dismissal since 1984 and was merely asking for damages which he was awarded although the award was set aside by the Court of Appeal which Ordered a retrial before another Judge and the claim for damages was abandoned and the claims for declarations were substituted only through the application for amendment in August, 1988.
6. The trial Judge erred in holding that the dismissal was wrongful and contrary to principles of natural Justice because there was no fair hearing given to the plaintiff when on his own admission he was required by the defendant to explain his involvement in the suppression of cheques and his representation in the regard was received before a decision to dismiss him was made. The denial of the knowledge of the act by the plaintiff is immaterial to the issue of whether or not there was fair hearing after the opportunity to explain his position was granted to him, there being no other basis upon which breach of requirement of natural justice by the defendant was based.
7. The trial Judge erred in asserting in essence that the defendant did not challenge the evidence of the plaintiff when giving contrary evidence through other witnesses is not the only acceptable means of challenging the evidence of a party or witness and by law it is open to the defendant to challenge the evidence of the plaintiff by cross-examining him which the counsel for the defendant ably did by getting the plaintiff to admit that the substance of what was alleged against him was brought to his notice and his defence was requested before a decision was made to dismiss him.
8. The judgment is erroneous in that the correct principles for consideration in deciding whether or not to grant an order and/or declaration of reinstatement were not applied and what is required as special circumstance in regard to a breach of contract of employment case was not considered or properly considered and in considering irrelevant matters.

Then the appellant went on to file further grounds of appeal in addition to the original grounds. But the most one can make of most of the grounds are amply covered in grounds 1-7 quoted above. Just like the trial court, Court of Appeal relied heavily on the workers Collective Agreement with the appellant on conditions for dismissal, that is Exhibit 3. paragraph 5 (a) of Exhibit 3 reads:

“(i) Proven cases of theft, fraud, dishonesty, defalsifications and irregular practices in respect of cash, vouchers, records, returns or customers account and foreign exchange transactions.

(ii) Drunkeness or taking of drugs other than for medical reasons rendering the employee unfit to carry out his duties.

(iii) Divulging confidential information.

(iv) Conviction for a criminal offence.

(v) Absence from work without authorised leave or reasonable cause(s)

(vi) Fighting and assault or engaging in disorderly behaviour during working hours, or on the office premises or within its immediate surroundings.

(vii) Deriving any 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 are in conflict.

(viii) Failure to report promptly any irregularity on the part of any other member(s) of staff after having knowledge of such irregularity.

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

(x) Any other offences which may be agreed upon between the employer and/or Association and the Union from time to time.”

It was held that the conditions of service of the respondent was governed by Exhibit 3 and he could only be dismissed only if there was proof of any of the offences in para. 5(a) (supra). Court of Appeal affirmed that none of the offences had been proved and that trial court was right in so holding. Thus, according to the court below, Exhibit 5 by which the respondent was first employed in 1957 was found to have been superceded by Exhibit 3, Collective Agreement. Each Court cited with approval Chitty on Contract, 23rd Ed. p. 340 about collective agreement wherein it is stated:

“When the employee knows of the term of Collective Agreement it is legitimate to infer that it was the presumed common intention of both parties to the contract that these terms should apply when the contract was silent on any issue.”

The letter of dismissal Exhibit 1, was silent on the reasons for dismissing the respondent from appellant’s service. Thus the two lower courts’ held the inference is that Exhibit 3 governed their contractual relation. The Court of Appeal quoted in extenso the reasons advanced by the trial court whereby it arrived at the conclusion that the rule of natural justice had been violated by the dismissal of the respondent; that because no reasons had been advanced in Exhibit I for his dismissal, therefore there had been a breach of s. 33(1) of the Constitution of Nigeria 1979. It is of importance to find Ogundere J.C.A. observing the issues raised by the appellant thus:

“In the appellant’s brief, the issues for determination numbered ten. Issues 1,2 and 7 posed the question whether compliance with rules of natural justice were required before an employer dismisses the employee from his employment; whether the rule was breached and the consequence as the plaintiff did not plead its breach. Issues 3 and 4 query the power of the Court to annul the dismissal of the plaintiff by the defendant and substitute reinstatement. Issues 5, 6 and 10 put the question whether the Collective Agreement, which was not pleaded and which varied from the Contract of Employment Exhibit 1 was applicable to the case. Issue 8 criticised the learned trial Judge for awarding salary and allowances to the plaintiff for the period he did not work. Issue 9 criticised Yahaya J for making orders not asked for.”

“The issues raised in the respondent’s brief were two concise points; first, whether from the pleadings and evidence, the learned trial Judge was right to hold that the plaintiff’s dismissal was wrongful and in violation of the rules of natural justice. Secondly, whether the consequential orders that the plaintiff is entitled to reinstatement and payment to him of all his accrued emoluments were right.”

Appellant thereupon submitted that a difference must be made between contract of employment governed by statute, whereby there must be strict adherence to the law as to dismissal and other disciplinary measures; and a contract not governed by any statute but by terms the parties agreed upon. In the latter case submitted by learned counsel for appellant, Aluko-Olokun, Esqr, the only remedy open to an employee wrongfully dismissed is in damages if he so claims but not re-instatement. The former is illustrated by the cases of Olaniyan v. University of Lagos ( 1985) 2 NWLR (Pt.9) 599, 683; Morohunfolu v. Kwara College of Technology (1990); Adedeji v. Police Service Commission (1967) 1 All NLR 67, 71,73. It was further submitted that the contract of employment of an employee by a bank as in this case must be based on strict confidence, Uberrima fides as in the absence of any statute regulating such employment, the only remedy open to a wrongfully dismissed employee is in damages, if claimed, and not in re-instatement. Lead judgment of Ogundere J.C.A. adverted extensively to modes of contract of employment which he classified into three types. According to him these are under the Common Law, by which a party could terminate it by one week’s notice or payment of wages for a week or a month or whatever agreement was as to period for payment; the second is a written contract between the parties in which the terms are well spelt out, whereby determination will be based on the terms. Finally there is the third one where government employee or an employee of a statutory body is employed in accordance with the appropriate statute.

Learned Justice of appeal however never adverted to one clear fact that his first two modes of contract could be determined against any agreement, such a dismissal will only be wrongful and could only be compensated in damages. Adverting to the case of Hadley v. Baxendate (1954) 9 Exh .. 341, 354, to my mind is stretching too far the principles involved in this case. There is nothing in this case remotely on all fours with the case quoted as “locus classicus” by the learned Justice. Having found that there exists a third type of contract governed by statute which must be adhered to otherwise a dismissal might be rendered null and void he concluded curiously as follows!

“There is no doubt that the respondent’s employment is based on Statute. It is even much weaker than the case of Okafor, where the Progress Bank established under the Companies Act was 100% owned by Imo State. There is no doubt however that the plaintiff/respondent claimed re-instaiment and all his remunerations since his dismissal on 24 January, 1984.

“In the circumstances, I hereby uphold the submission of Aluko-Olokun Esq. that the contract in question has no statutory flavour. In consequence whereof, I hereby set aside the Order of reinstatement of Yahaya J. in paragraph (c) above.

I uphold the findings of Yahaya J. that the employment of the respondent was wrongfully terminated. In consequence I hereby vary orders (a) and (b) of Yahaya J as follows:

(a) The respondent shall be paid all his emoluments from the date of his dismissal 24/1/84 to the date of the judgment of Yahaya J. on 25/8/89.

(b) The respondent shall be deemed compulsorily retired from the services of the Bank with effect from 26/8/89. Consequentially, he shall be entitled to his gratuity and pension, if any, from 26/8/89 aforesaid.

The appeal is dismissed with N350.00 costs in favour of the respondent. The appeal in re-instatement succeeds.” This appeal is against this decision. The appeal was based inter alia on the premise that the terms of employment, Exhibit 3, was never pleaded and could not have been received in evidence; that the learned trial Judge and Justices of Appeal [Ogundere J.C.A. Uthman Mohammed J.C.A. (as he then was) Aikawa J.C.A.) erred in placing too much burden of proof on the appellant as defendant to prove the terms of the contract of employment and failure to so prove amounted to admission and that evidence extensively relied upon. Exhibit 3, was never pleaded by the respondent.

The aim of pleadings is to set out clearly the facts upon which parties rely for the case.Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167. Pleadings thus must contain only facts upon which the parties rely. The facts in the pleadings must be concise, unambiguous and placed in numbered paragraphs and where necessary subparagraphs so that the opponent will know clearly the case he has to meet. Sometimes, to obviate ambiguity or to aver some more facts, a party may amend his pleadings under certain principles before the end of hearing or judgment and some times on appeal Oguma v. international Bank for West Africa (1986) 2 NWLR (Pt. 20) 114 C.A.; Salami v. Oke (1987) 4 NWLR (Pt.63) 11:. Thus the aim of pleadings is to place parties on alert as to the facts they are to meet at the hearing. Ezewani v. Okwordi (1986)4 NWLR (Pt.’33) 27; Salami v. Oke (1987)(supra) Sodipo v; Lemminkainen OY (1985) 2 NWLR (Pt.8) 547. It is for the sake of doing justice to the parties that the court is always lenient and favourably disposed to an amendment of pleadings at any stage of hearing and before judgment so as to bring, to focus the trend of substantial evidence of the dispute between the parties. The appellate court can even make such amendment if asked for insofar as it will not be to the disadvantage of the other side or occasion a miscarriage of justice Kate’ Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt.5), 116. It is therefore necessary that all the facts pleaded are the ones to determine the outcome of a case in judgment; that is to say all matters unpleaded will go to no issue because judgment must be based on legally admissible evidence Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413; Abayev. Ofili (1986)1 NWLR (Pt.15) 134; Ehimare v. Emhonyon (1985)1 NWLR (Pt.2) 177; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248; Fawehinmi v. Nigeria Bar Association (No.1) (1989) 2 NWLR (Pt. 105) 494]

I have set out at the beginning of this judgment all that the plaintiff/respondent prayed for. He at the subsequent retrial leading to this appeal abandoned his original claim and decided to ask for declaration that he remained in the employment of the appellant, that Exhibit I purporting to dismiss him was ultra vires and of no effect, and that he be taken back to his office as manager. He initiated the proceedings four years after he was given Exhibit I (supra) dismissing him from the employment with the appellant and made the claim as a businessman. Unlike the previous case which the Court of Appeal ordered to be retried where he claimed damages for wrongful dismissal, he in the instant case was not claiming damages but re-instatement, for the court to hold that he was still in the appellant’s service despite Exhibit 1. He virtually went back for retrial with a new case, abandoning his original claim. The trial court and the Court of Appeal placed reliance on Shita-Bey v. Federal Public Service Commission (1981) 1 S.C. 40, Baba v. Civil Aviation Authority (1986) 5 NWLR (Pt.42) 514; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt.106) 652; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Olatubosun v. NISER (1988) 3 NWLR (Pt.80) 25 and a host of others by analogy holding that Exhibit 3, Collective Agreement, has the force of law and that the notice of dismissal, Exhibit 1 was Ultra vires and that the respondent remained an employee of the appellant.

With greatest respect, this is not the law. Except in employment governed by statute wherein the procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect. Examples are many especially with modern Constitutional and statutory trends. [University of Lagos Act 1962, sections 13(2), 18(e) and 61 under which this court decided Olaniyan v. University of Lagos (supra); University of Maiduguri Act, s.17 under which Federal Civil Service Commission v. Laoye (supra) was considered; University of Ife Edict 1970, 5s. 4, 6 and 16, under which Akintemi v. Onwumechili (1985) 1 NWLR (Pt.1) 68 was decided; others are Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162; Aiyetanv. NIFOR (1987) 3 NWLR (Pt.59) 48; Garha v. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 449 and Sapara v. University College Hospital Management Board (1988) 4 NWLR (Pt.86) 581. In other cases governed only by agreement of parties and not by statute removal by way of termination of appointment of dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void; the only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master even where the master’s behaviour is wrong. For his wrongful act he is only liable in damages and nothing more. [Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128; Ajayi v. Texaco (1987) 3 NWLR (Pt.62) 577; NNB Ltd. v. Obevudiri (1986) 3 NWLR (Pt.29) 387]. In those cases where reliance is placed on statute, the Board created under that statute for the Corporation to employ, dismiss etc. does so on behalf of the statutory body which is a complete creature of the statute; this is why anything done outside what the statute provides and is directly in contradiction to the provisions of that enabling statute is ultra vires null and void. Both the trial court and Court of Appeal erred in ignoring time honoured principle of pleading. A party is only bound by what he pleads and that pleadings is his case, nothing more, nothing less. A party should be given only the relief he claims and what must be reasonably antecedent to it. A situation whereby the court goes out of its own to award what is not claimed especially to award what has been abandoned as a claim is wrong in law. [Ekpeyong v. Nyong (1975) 2 S.C. 71,81 and 82; Nigerian Housing Development Society Ltd. V. Mumuni (1977) 2 S.C. 57, 81; Bonny v Yougha (1969) 1 All NLR 396,402; University of Lagos v. Dada (1971) 11 NLR (Pt.111), 344, 349; Union Beverages Ltd 1′. M.A. Owolabi (1988) 1 NWLR (Pt.68) 128, 129]. All the respondent claimed is that his removal was “Unlawful in that it is against the principles of natural justice, ultra vires an of no effect”, that the respondent was still in the service of the appellant, and a declaration that the respondent was entitled to his dues as an employee of the appellant bank and that he be re-instated by the bank. Learned trial Judge granted all the prayers. Court of Appeal in “dismissing the appeal and upholding the decision of trial court” concluded that the respondent must be paid all his dues from 24th January, 1984 to 25th August, 1989 but without saying so varied the order of trial court by concluding thus:

“(b) The respondent shall be deemed compulsorily retired from the services of the Bank with effect from 26th August 1989. Consequently, he shall be entitled to gratuity and pension, if any, from 26th August, 1989 aforesaid”. “The appeal is dismissed with N350.00 costs in favour of the respondent. The appeal for reinstatement succeeds.”

There is hardly anything more confusing. The entire conclusion for reasons alluded to earlier in this judgment is not the law. Secondly, Court of Appeal decreed “compulsorily retirement and pension and gratuity” not in the pleadings and not remotely in evidence. Unfortunately this decision of the Court of Appeal runs contrary to raison d’ etre of pleadings as explained earlier in this judgment. If the trial court erred, Court of Appeal drastically departed from all known notions of the use of pleadings.

For the foregoing reasons, I see a lot of merit in the appeal and I allow it. I set aside the decision of the Court of Appeal which claims to affirm the decision of the trial court, but in fact actually created further departure. In its stead, I enter a verdict of dismissal of plaintiff’s claims. The respondent shall pay N 1 ,000.00 costs of this appeal.

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Other Citation: (1995) LCN/2667(SC)