Union Bank of Nigeria V. John D. Nwachukwu (2000)
LawGlobal-Hub Lead Judgment Report
MICHAEL EYARUOMA AKPIROROH, J.C.A.
The action that gave rise to this appeal was instituted by the plaintiff in 1994. The claim as contained in the statement of claim is as follows: –
(i) A declaration that the suspension and subsequent purported plaintiff resignation of the from Defendant Bank’s services as contained in the letter of resignation dared 23/1/90 and signed by the plaintiff is wrongful, null and void ab initio and of no legal consequences in that the purported resignation was done under duress.
(ii) A declaration that considering the circumstances of the issue of the cheque for N38,800.00 the plaintiff is nor guilty of any wrong doing.
(iii) A declaration that the plaintiff is enployment with the Defendant Bank is still subsisting.
(iv) An order that the plaintiff be reinstated to his post as a Clerk paid arrears of salaries and allowances from the date of the wrongful suspension from duty ALTERNATIVELY TO RELIEFS (iii) & (iv) N500,000.00 general damages representing salaries, pension and fringe benefits from the date of the termination/forced resignation of plaintiff’s employment till he attains the age of 60 years.”
It is the plaintiff’s case that he was employed by the defendant as a clerk on 14/9/81 and his appointment was confirmed six months later. On 27/1/89 at about, 10 p.m. a man came to his house and enquired about one Jimmy who stole their goods worth N38,000.00.
His name was given to him as the guarantor of the said Jimmy. He then told him to pay the sum of N38,000.00 the price of the goods.
One of the men had a dagger and used it to threaten him while another man insisted that he would give them a cheque to cover the amount in order to save his life and he issued a cheque for the sum of N38,000.00 under duress.
On 30/1/89, he told his Manager what happened to him and filed a stop order to stop the cheque. Later he was arrested before the cheque was presented. It was presented on 8/2/89. At the end of the investigation of the case by the police, he was exonorated.
On 24/2/89, he was issued with a query and he sent a reply to the query. Later he was suspended from duty. on 23/1/90, he received a letter from the defendant asking him to resign or his appointment be terminated, and in order not to ruin his banking career, he sent in his letter of resignation on 23/1/90 which he withdrew in writing on 24/1/90 and it was accepted. Consequently, he was not recalled and he was not paid any entitlement.
The Defendant/Appellant called one witness who testified that the respondent issued a cheque to one Tony Amadi Eke when he knew he had no money to cover the amount in his account. On 31/1/89 to 10/2/89, the respondent was absent from duty and he was issued a query and placed on a half salary.
on 23/1/90, the respondent resigned and his letter of resignation was accepted. He was not forced to resign and as such he is not entitled to his claim.
At the end of the trial, both counsel addressed court and a reserved judgment the learned trial Judge entered judgment favour of the appellant against the respondent as follows:-
“1. I hereby declare that the plaintiff’s contract of service still exist, the said contract having not been determined either by dismissal or termination.
- Consequent to (1) above I hereby order that the plaintiff be paid all his salaries allowances and all other entitlements with effect from August, 1989, when he was suspended till the date of this judgment and until the plaintiff’s appointment is terminated.
- The Defendant should comply with relief (2) above within 14 days effect from the date of this judgment.
All other reliefs claimed are refused and dismissed. N1,000.00 costs to the plaintiff.”
Dissatisfied with the judgment, the appellant has appealed tot his court and filed a brief of argument in which he identified five issues for determination as follows:-
“ISSUES FOR DETERMINATION
(i) Whether the learned trial Chief Judge was right in law in declaring that the employment of the plaintiff/respondent was still subsisting and had not been determined.
(ii) Whether having regard to the law and the evidence adduced before the court, the learned trial chief Judge was right to hold that the plaintiff/respondent’s resignation was made under duress.
(iii) Whether the learned trial Chief Judge was right in holding that there was no satisfactory evidence that the defendant/appellant accepted the plaintiff/respondent’s resignation and acted upon it.
(iv) Whether the learned trial chief Judge was right in law to order that the plaintiff/respondent should be paid all his salaries allowances and all other entitlements with effect from August 1989 till the date of judgment and until his appointment was terminated.
(v) Whether having regard to he pleadings the evidence adduced before the trial court and the law the plaintiff/respondent proved his case and was therefore entitled to Judgment?”
The respondent also filed a brief of argument and raised three issues for determination as follows:-
”ISSUES FOR DETERMINATION
Was the learned trial Chief Judge right in holding that the resignation of the Respondent was made under duress.
If the above is answered in the affirmative what is it is implication with respect to the Respondent’s resignation.
Was the trial learned Chief Judge light in law to have made the orders he made (i.e. the relief he granted the respondent.”
The issues identified by the appellant are comprehensive and adequate to resolve this appeal.
On issue one, learned counsel for the appellant submitted that the learned trial chief Judge was wrong in declaring that the employment of the respondent was still subsisting when the relationship between the parties was that of a master and a servant simpliciter and had no statutory flavour whatsoever, stressing that such a declaration amounted to an order of specific performance which is not usually made in contracts of personal services as it is tantamount to imposing an employee on the employer and relied on Chukwunah Vs Shell petroleum Development Company of Nigeria Ltd (1993) 4 NWLR (pt. 289) 512 and Shuaibu Vs UBN PLC (1995) 4 NWLR (Pt.388) 173.
He further submitted that the learned trial chief Judge was wrong in holding that the contract was subsisting when there was sufficient evidence that the contract had come to an end by the respondents resignation and all that he could have been entitled to assuming that his appointment was wrongly terminated which is not conceded, was damages for the breach of contract in accordance with the terms and conditions of his appointment and cited in support Nigerian Produce Market Board v. Adesunni (1972) 11 S.C. 111 at 117.
On the second issue he submitted that the learned trial Chief judge was wrong in holding that the respondent’s resignation was made under duress and relied on Exhibit E which merely gave him an option, which he was perfectly free to accept or reject, stressing that this fact amount to duress.
On the third issue, he submitted that there was abundant evidence on record to show that the appellant accepted the respondent’s letter of resignation and acted on it. He referred to the evidence led by the appellant that the respondent ceased from coming to work after his resignation on 23/1/90 and that his letter of withdrawal of his resignation was an afterthought, because there was no evidence led by him that the appellant accepted it and acted on it.
On the fourth issue, he submitted that the learned trial chief Judge was wrong in law to order that the respondent should be paid all his salaries and allowances and another entitlements with effect from August 1989 till the date of Judgment and until his appointment is terminated. He further argued that as the respondent voluntarily resigned his appointment, his entitlements will be as contained in his contract of service, Exhibit K. He further submitted that having dismissed the respondent’s claim for payment of arrears salaries and allowances from the date of the wrongful suspension from duty, he cannot turn round to grant the same relief which he had earlier dismissed. He also argued on this issue that the award made by the learned trial Judge is vague and imprecise because he did not particularise what the salaries, allowances and other entitlements were and which of the said items as claimed by him were allowed or disallowed. It was also his submission that the awards being in nature of special damages were not strictly proved as required by law.
On the fifth issue, learned counsel submitted forcefully that no case of unlawful termination was proved by the respondent because he was absent from duty without lawful excuse from 31/1/89 to 10/2/89, a serious offence which attracts dismissal or termination of his appointment, as contained in Exhibit K.
He further argued that the judgment and the conclusion reached by the learned trial Chief Judge are not supported by the evidence led before him.
On the second issue, that is, duress, learned counsel the for respondent referred to the definitions of duress and concision in Black’s Law Dictionary and Exhibit E (the letter asking the respondent to resign or be terminated) and submitted forcefully that “4” resignation of the respondent was made under duress and as such there was no resignation and relied on the cases of North Ocean Shipping Co. Ltd v. Hyundai Construction Co. Ltd, The Atlantic Baron (1973) 3 ALL E.R. 1170.
He further submitted that once it is established that the threat as contained in Exhibit E contributed in making Exhibit F by the respondent, it was therefore made under duress and cited in support the case of Batron v Armstrong (1976) A.C. He further argued that the position of the Law is that any document made or contract entered into under duress is void or voidable and shall be voided at the instance of the party put into duress, like the respondent who resigned his appointment with the appellant under duress. The learned trial chief Judge was therefore holding that the respondent was coerced to resign his appointment and it was made under duress.
In order to appreciate fully the submissions of learned counsel for the parties on this issue, I would like to reproduce Exhibit E in order to resolve this issue one way or the other. Exhibit E provides as follows:-
“UNION BANK OF NIGERIA LIMITED TRANS AMADI, PORT HARCOURT
23rd January, 1990
STAFF, PRIVATE & CONFIDENTIAL
Mr. J. O. Nwachukwu
c/o Union Bank of Nig. Ltd
Trans Amadi
Port Harcourt
Dear Mr. Nwachukwu,
ALLEGED ISSUANCE OF DUD CHEQUE FOR N38,800
We refer to the above and advise that the Executive Committee have considered the matter and decided that you should either resign your appointment or failure which your services should be terminated on the ground that your services no longer required.
The undersigned is looking forward to hearing from you.
Expedite.
Yours faithfully,
(Sgd)
T.O. OGWUMA
MANAGER”
Exhibit E to my mind reproduced above does not by any stretch of the imagination constitute duress because it merely gave the respondent an option which he was perfectly free to accept or reject.
There is nothing to show from Exhibit E that any kind of force or threat was used on the respondent before he wrote Exhibit F (letter of resignation). His concern not to jeorpadise his banking career cannot in law or in fact amount to duress. He was quite aware of the terms and the conditions of his employment which is determinable at his will or his employer is will. He could as well have chosen not to resign as he was perfectly free to do just as the plaintiff in chukwumah’s case bluntly refused to do.
At page 234 of the Black’s Law Dictionary relied on by the respondent, coercision is defined as follows:- “compelled to compliance, constrained to obedient or submission in a vigorous or forcible manner.”
On the face of Exhibit E as I said earlier, there is nothing to show from it that the respondent was compelled to compliance or constrained to obedience or forced to write Exhibit F under a vigorous or forcible manner to constitute duress.
In the case of Teliat A.O. Sule v. Nigerian Cotton Board (1985) 6 S.C. 67, Oputa J.S.C. said at page 752-
“… is it not in the instant case a reduction of absurdum to contend that the master who could have lawfully dismissed his servant for absenting himself from duty without leave will be guilty of a wrongful act if he gave that same servant an option to resign honourably.
Using this as a guideline, is the appellant who could have lawfully dismissed the respondent in accordance with section 3 of Exhibit K guilty of wrongful act for giving him an option to resign his appointment honourably? The answer to my mind must be in the negative.
Having held that the respondent resigned his appointment with the appellant voluntarily and without duress, the contention of learned counsel for the respondent on issues two and three that the appointment of the respondent was still subsisting because his resignation is a nullity are totally misplaced.
Still on the third issue, there was abundant evidence on record to show that the appellant accepted Exhibit F, the respondents letter of resignation. There is uncontroverted evidence that he ceased from coming to work and signing the attendance register on 21/1/90. There is also no evidence led by the respondent to show that the appellant accepted his letter of withdrawal, Exhibit G and acted on it.
On the fourth issue, learned counsel for the appellant, was on a firm ground when he submitted that the learned trial Judge was wrong in law to order that the respondent should be paid all his allowances and all other entitlements with effect from August 1989 till the date of judgment, 14/2/94 and until his appointment is terminated.
As the respondent voluntarily resigned his appointment with the appellant, his entitlements if any are governed by Exhibit K, his contract of service with the appellant.
It is well settled in a long line of decided cases that the remedy of an employee wrongly terminated or dismissed is to sue for damages, and the treasure of damages is always the salaries for the length of time for which notice of termination could have been given in accordance with the contract of employment See Obo vs commissioner of Education Bendel State (1993) 2 NWLR (Pt. 273) 46, Nigerian Produce; Marketing Board. Vs Adewunmi supra and Western Nigerian Development Corporation Vs Ablmbola (1966) NMLR 381. There was uncontradicted evidence that the respondent was placed on half salary during the period of his suspension and he admitted at page 23 lines 14-15 of the record that if such a staff on half salary resigned his appointment or the said appointment was terminated, he was not entitled to unpaid half salary. He is therefore not entitled to his unpaid half salary for the period of his suspension.
At page 55 of the records, the learned trial chief judge held as follows:-
“The distinguishing factor in the instant case is that the plaintiff’s contract of service has not been determined at all.
In the circumstances I the relief claimed in Para 23(iv) of the statement of claim, namely:
“An order that the Plaintiff be reinstated to his Post as a clerk and paid arrears of salaries and allowances from the date of the wrongful suspension from duty, does not exist in this case.”
The trial Chief Judge having in effect dismissed the respondent’s claim for payment of “arrears of salaries” and “allowances”
from the date of the wrongful suspension from duty, suddenly turned round to grant the same relief which he had earlier on dismissed as contained in the second arm of his judgment which reads thus:-
“I hereby order that the plaintiff be paid all his salaries allowances and all other entitlements with effect from August, 1989, when he was suspended till the date of this judgment and until the plaintiff’s appointment is terminated.”
This arm of the judgment is not only amazing but contradictory.
Besides, in the award, he failed to particularise or itemise the respondent’s salaries, allowances and other entitlements. The purported award being in nature of special- damages ought to have been particularised and strictly ‘proved’, See British Airways v. Makanjuolu (1993) 8 NWLR (pt 311), 276 at 289.
On the fifth issue, I agree entirely with learned counsel for the appellant that no case of unlawful termination was proved by the respondent and as such the conclusion reached by the learned trial Chief Judge is not supported by, the evidence led before him.
There is therefore merit in this appeal and I hereby allow it.
The judgment of the lower court and the order made therein as to costs are set aside. In its place, I dismiss the respondent’s claim before the lower court.
The appellant is entitle to costs assessed at N5,000.00.
Other Citations: (2000)LCN/0748(CA)