OGUEJIOFOR v. ACCESS BANK (2020)

OGUEJIOFOR v. ACCESS BANK

(2020)LCN/15227(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/L/1080/2011

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

CHINEDU OGUEJIOFOR APPELANT(S)

And

ACCESS BANK PLC RESPONDENT(S)

RATIO

WHETHER OR NOT THE RELEVANCE OF A DOCUMENT AND NOT THE WEIGHT TO BE ATTACHED TO IT IS PARAMOUNT

This is because admissibility is one thing while the weight to be attached to the document is another. In Dalek (Nig) Ltd vs. Ompadec (2007) 2 SC 305, the Supreme Court held:
“It is settled law, that it is the relevance of a document and not the weight to be attached to it that is paramount. In other words, the position of the law is that admissibility is one thing while the probative value that may be placed thereon is another. Relevance and admissibility of a document are separate matters in contradiction from the weight to be attached to it. See the case of Okonji & 2 Ors. v. Njokanma & 2 Ors. (1998) 12 SCNJ 259 at 273-275, (1999) 14 NWLR (Pt. 638) 250. I note that Exhibit M was made by the appellant and not the respondent. In the face of this fact, what is its relevance to the clear contents of Exhibit G1 if one may ask, since relevance and admissibility of a document or evidence is different from the weight to be attached to it. See also the cases of Oba Oyediran of Igbanla v. H.R.M. Oba Alebiosu II & Ors. (1992) 6 NWLR (Pt. 249) 250 at 539; (1992) 7 SCNJ 167; Duniya v. Jimoh (1994) 3 NWLR (Pt. 334) 609.” PER TOBI, J.C.A.

WHETHER OR NOT WHERE A DOCUMENT IS CHALLENGED AS UNATHENTIC, THE MAKER OF THE DOCUMENT SHOULD BE CALLED TO SUPPORT THE DOCUMENT

WHETHER OR NOT DOCUMENTS PRODUCED BY PARTIES IN EVIDENCE IN THE COURSE OF HEARING SHOULD BE TESTED IN OPEN COURT BEFORE THE COURT CAN EVALUATE THEM TO DETERMINE THEIR RELEVANCE
The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examination for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at 322 323 which the Court below refused to apply in place of its own decision in AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (Pt.1253) 458. See also the cases of SA’EED VS. YAKOWA (2013) 7 NWLR (Pt.1352) 124 AT 149 150 and OSIGWELEM VS.INEC (2011) 9 NWLR (Pt.1253) 425 at 451.”PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice Y.A. Adesanya (Mrs.) of the Ikeja Division of the High Court of Lagos State delivered on 28/1/2011 in Suit No. LD/1321/2007 – Mr. Chinedu Oguejiofor vs. Diamond Bank Plc. The facts of the case at the Lower Court are straight forward and without complexity. The Appellant (Claimant at the Lower Court) was at all material time an employee of the Respondent (Defendant at the Lower Court). The Appellant came into the employment of the Respondent in 1997 as banking executive and rose through the ranks. After series of commendation from the Respondent, the Appellant was transferred to the Umuahia branch of the Respondent where he became the Deputy Manager and Head of the branch. In 2006, the Appellant was dismissed following a disciplinary hearing at the Respondent’s headquarters on an allegation that the Appellant was engaged in some practices which undermine the Respondent. The dismissal was based on conducts which were described as “gross misconduct” in relation to foreign exchange transactions. The Appellant unhappy with his dismissal instituted a suit at the Lower Court against the Respondent vide a Writ of Summons and Statement of Claim claiming amongst other reliefs that his dismissal by the Respondent from its employment be declared null, void and of no effect. He also claimed monetary sums representing his salary for the period and other benefits and also for damages for the wrongful dismissal. The Lower Court in its judgment contained on pages 224 –252 of the record of appeal dismissing the claim of the Appellant ordered as follows:
“On the totality of the foregoing JUDGMENT is entered as follows:
1. The Claimant’s claim against the Defendant fails and is dismissed in its entirety.
2. All the prayers, i.e (i) – (vii) are accordingly refused.
THAT IS THE JUDGMENT OF THIS COURT.”

The Appellant dissatisfied with the judgment of the Lower Court has filed this appeal vide a notice of appeal dated and filed 21/4/2011 containing four grounds of appeal found on pages 254 – 261 of the record of appeal. The grounds are:
Ground 1
The learned trial judge erred in law when she stated and held as follows:
“Clearly, from Claimant’s own evidence on who could deal in foreign exchange, he knew that the transaction of linking two authorized parties (sic) to so deal without any form of documentation is against the CBN regulation. DW1 gave evidence that it is what is called free fund. Importantly also is Claimant’s obligation to his employer, his reason for allowing and facilitating the sale of the $60,000 Dollars cash to be paid to the Diocese (a position denied by DW1) and the desire of the Diocese to realize the maximum naira cash equivalent…. The Claimant as the Defendant’s Manager has the obligation to make profit for his employer and encouraging and facilitating a transaction which resulted in the profit that could have accrued to the bank accruing to an outsider is working against the interest of his employer.”
Ground 2
The Learned Trial Judge erred in law when she stated and held as follows:
“A situation where a bank manager encourages and/or oversees the sale of foreign exchange by a customer directly to an end user, who is not an authorized dealer and without any form of documentation as specified in Exhibit D1 i.e. memorandum 10, must amount to foreign exchange abuse.”
Ground 3
The learned trial Judge erred in law when she stated and held as follows:
“Was the abuse for personal gains? The Claimant did not call the Catholic Diocese or the manager of its bureau de change to whom he claimed to have handed over the cash differential in the two instances cited by the Defendant. The Defendant having established that the said sums were handed over by staffs (sic) of the Defendant bank to the Claimant at the latter’s instruction has established a case of reasonable presumption that the Claimant was not only the recipient but also the beneficial of said sums. The burden of proving otherwise shifts to the Claimant to show that the said cash differentials were subsequently handed over by him to the manager of the Diocese’s bureau de change as claimed by him. The Claimant did not discharge this burden.”
Ground 4
The learned trial Judge erred in law when upon making a finding of gross misconduct against the Claimant declined to consider his claims for damages.

The Appellant with the leave of Court filed additional grounds of appeal on 3/7/2014, deemed on 16/5/2016. The additional grounds are as follows:
Ground 1:
The learned trial judge erred in law by holding that in any event the Appellant was not entitled to a declaration that his dismissal from the Respondent’s employment was null and void.
Ground 2.
The Learned Trial Court erred in law in holding that Exhibits D8 and D9 were admissible, and did admit them in evidence, using them as she did as major planks upon which she hung her verdict of gross misconduct against the Appellant, thereby occasioning a miscarriage of justice against the Appellant.

The Appellant brief dated 1/7/2014, deemed on 30/9/16 was settled by Chijioke Okoli, Esq. In his brief, the Appellant raised two issues for determination viz:
1. Was the Lower Court right in its finding that the Respondent had discharged its burden of proving the guilt of the Appellant for gross misconduct, and for which he was dismissed from the Respondent’s employment, given, inter alia, that the ingredients of the alleged misconduct clearly constitute criminal offence(s)?
2. Considering the facts and circumstances of the case, was the Lower Court justified in holding that in any event the Appellant was not entitled to a declaration that his dismissal was null and void and for its omission to express any view on his other reliefs?

On its issue 1, it is the submission of Appellant’s counsel that whilst an employer could perfunctorily terminate his employee’s employment without giving any reason whatsoever, if the employer chooses to dismiss the employee for stated reasons or grounds, then he is tasked with the burden of proving those reasons or grounds if/when challenged by the dismissed employee. He cited SPDC Ltd. vs. Olanrewaju (2008) 18 NWLR (Pt. 1118) 1. It is the contention of counsel that Exhibits D8 and D9 formed the foundation of the Respondent’s case in the Lower Court and their admittance in evidence and great weight it attached to them is at the fulcrum of the Appellant’s grouse. It is the further contention of counsel that the said exhibits were inadmissible for the very fact that DW1 who tendered them was not the maker and thus breaching Section 91(1)(b) of the Evidence Act, yet the Lower Court admitted them. He relied on Osuoha vs. State (2010) 16 NWLR (Pt. 1219) 364 @ 400. Aside from that, it is also contended by counsel that Exhibit D8 being in the state or condition of banking books and/or record is secondary evidence and as such there was no compliance with the mandatory provisions of the Evidence Act which operates to make the document inadmissible in evidence. He placed reliance on F.B.N. Plc vs. Excel Plastic Industry Ltd (2003) 13 NWLR (Pt. 837) 412; Unity Life & Fire Insurance Co. Ltd vs. I.B.W.A. Ltd (2001) 7 NWLR (Pt. 713) 610. It is submitted by counsel that the exhibits may only be admissible for the very limited purpose of proving that they were made at all and not for the purposes of proof of the allegations therein.

Appellant’s counsel questioned the correctness of the reasoning and conclusions of the Appellant’s guilt as it seems that the reasoning and conclusion appear to be standing on certain perverse findings of fact and misunderstanding of the applicable rules of pleadings and law of evidence. The Appellant contends that he was not cross-examined with respect to the fact that he did not derive any benefit from the transaction which led to his dismissal and that failure to cross-examine him is of consequence which the Lower Court failed to appreciate. He cited Obmiami Brick & Stone Ltd vs. ACB Ltd (1992) 3 NWLR (Pt. 229) 260; Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415 and Njiokwuemeni vs. Ochei (2004) 15 NWLR (Pt. 895) 196 @ 226-7. It is the submission of counsel relying on the provisions of Section 435 of the Criminal Code of Abia State and Section 138 of the Old Evidence Act that the Respondent is tasked with proving the gross misconduct it alleged against the Appellant; which burden of proof the Evidence Act also imposes on the Respondent since the ingredients also constitute a crime. It is the further submission of counsel that by the standard of the balance of probability adopted by the Lower Court, the Respondent did not and could not have proven its allegation of gross misconduct.

Finally, on this issue, it is the claim of the Appellant that the Respondent’s drastic punishment of the Appellant was because of his ignorance and unwitting sabotage of the Respondent’s design to shortchange at all costs the Catholic Diocese of Umuahia by insisting on giving to it the bank’s own calculation of (less) naira equivalent of the dollars.

On issue 2, it is submitted by counsel that it is a settled principle of law that a Trial Court like the Lower Court is bound to pronounce upon all the issues presented to it for adjudication. Learned counsel submitted that though the case is bound for dismissal, the Trial Court should still go ahead to assess the reliefs/damages claimed and pronounce upon them. He cited Kaycee (Nig) Ltd vs. P.S.C. Ltd (1986) 458 @ 467. He called in aid the provisions of Section 15 of the Court of Appeal Act in urging this Court to act upon the evidence and grant the reliefs once the Respondent is found to have unlawfully dismissed the Appellant in terms canvassed in its brief. On the issue of declarative and consequential reliefs, it is the contention of learned counsel that even though the law is that declarative relief would not be readily granted to nullify a wrongful termination of ordinary employment, there may be special circumstances which may require the grant of such declaration by the Court. He made reference to Ipadeola vs. Oshowole (1987) 3 NWLR (Pt. 59) 18; Olaniyan vs. UNILAG (1985) 2 NWLR (Pt. 9) 599; Bello vs. Eweka (1981) 1 SC 101 @ 121 and Afolayan vs. Ogunrinde (1986) 3 NWLR (Pt. 26) 29 @ 37. It is the further contention of counsel that the view of the Lower Court that even if the Appellant was unlawfully dismissed, he would not be entitled to a declaration nullifying the dismissal is a wrong position of the law. It is posited by counsel that what is required by the Court is a scrutiny of the facts and circumstances of the case to see if the circumstances of the case are special enough to justify the intervention of the Court to nullify the unlawful dismissal. That in doing this, it would be useful to bear in mind that the evidence led by the Appellant relevant in deciding the point was neither challenged nor contradicted in any way. It is submitted by Appellant’s counsel that without a specific declaration by the Court nullifying the Appellant’s dismissal for gross misconduct the truncation of the Appellant’s life would continue in perpetuity. That a declaration that the termination of the Appellant’s employment was wrongful will not suffice.

Relying on Francis vs. Municipal Councilors of Kuala Lumpur (1962) 3 All E.R. 633 @ 637-8, it is the position of counsel that the consequences of the wrongful termination of the Appellant’s employment can only be in the form of payment of salaries and other emoluments due to the Appellant within that period. Finally, it is the submission of counsel placing reliance on Olaniyan vs. UNILAG (supra) and Hill vs. C.A. Parsons & Co. Ltd (1971) 3 All E.R. 1345 that the assertion of the Lower Court that it is in rare cases that the Court can nullify an unlawful termination of employment; of which one of those instances is employment with statutory flavor, is against the backdrop of the decision of the Supreme Court in the aforementioned cases. He finally urged this court to allow the appeal.

The Respondent brief filed on 12/10/2016 was settled by Segun Ololade Esq. In its brief, Respondent raised two issues for determination viz:
1. Whether the Lower Court was right in its finding that the Respondent had discharged its burden of proving guilt of the Appellant for gross misconduct.
2. Whether the Lower Court has pronounced upon all the issues presented to it for adjudication.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
On issue 1, it is the submission of counsel that the Lower Court was right in its finding that the Respondent had discharged its burden of proving the guilt of the Appellant for gross misconduct by holding that Exhibits D8 and D9 are relevant and admissible in proof of their contents and were rightly admitted without breaching the provisions of Section 91(1)(b) of the Evidence Act. It is the submission of counsel that the evidence of the Respondent’s witness being an officer of the Respondent and his witness does not fall within that which can be described as hearsay; as in law, a company must act through its human organs and accordingly any of its officers can testify on its behalf relating to its official matters or acts. He cited First Bank of Nigeria Plc vs. Tsokwa (2004)5 NWLR (Pt. 866) 271. It is the further submission of counsel that where an official giving the evidence is not the one who took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. He relied on Ishola vs. S.G.B (Nig) Ltd (1997) 2 NWLR (Pt. 488) 405. He contended that the cases relied on by the Appellant do not apply to this appeal. He also contends that the evidence given by the official of the Respondent cannot be held liable to fall within the trap of Section 149(d) (now Section 167(d) of the Evidence Act).

It is the submission of the Respondent Counsel that by the provision of Section 149(d), now Section 167(d) of the Evidence Act what is required before the presumption therein can apply is the failure to call evidence and not the failure to call a particular witness. He relied on Law and Practice of Evidence in Nigeria by Afe Babalola 374. It is the argument of counsel that the conduct of the Appellant which led to his dismissal is unethical conduct or misconduct contrary to the policy of the Respondent and does not in any way fall within the ambit of Sections 435 and 436 of the Criminal Code Law of Abia State and Lagos State respectively which required the Respondent to prove within the standard of proof required in a criminal case. It is posited by counsel that the standard of proof that is required in civil cases is proof on the preponderance of evidence and the Respondent has by all creditable evidence discharged this proof. It is the submission of counsel that the commission of a crime by the Appellant was not in issue in the proceeding before the Disciplinary Committee meeting of the Respondent and as such, the proof beyond reasonable doubt is not relevant. He cited Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 123.

On its issue 2, it is the submission of learned counsel that the Lower Court has pronounced on all the issues presented to it for adjudication. It is the further submission of counsel relying on Albishir vs. I.N.E.C (2009) 4 NWLR (Pt. 1130)1 that where an issue has been settled in a Court a party is no longer entitled to pray another Court to determine the proprietary or otherwise. It is the contention of counsel that the Appellant’s claim as endorsed on the writ of summons and statement of claim were all pronounced upon by the Lower Court and as such the Appellant can no longer raise the issues of declaratory order and order of injunction. Counsel urged this Court to dismiss this appeal and uphold the judgment of the Lower Court.

In this appeal, I will adopt the two issues raised by the Appellant for determination. I will, however, add one issue to it to make the issues for determination to be three. The issues for determination in this appeal are therefore as follows:
1. Whether Exhibits D8 and D9 are admissible?
2. Was the Lower Court right in its finding that the Respondent had discharged its burden of proving the guilt of the Appellant for gross misconduct, and for which he was dismissed from the Respondent’s employment, given, inter alia, that the ingredients of the alleged misconduct clearly constitute criminal offences(s)?
3. Considering the facts and circumstances of the case, was the Lower Court justified in holding that in any event the Appellant was not entitled to a declaration that his dismissal was null and void and for its omission to express any view on his other reliefs?

The Defendant through his staff who testified on behalf of the bank tendered Exhibits D8 & D9. Exhibit D8 is the Investigation Report dated 6/3/2006 while Exhibit D9 is the extract of the minutes of the Disciplinary Committee meeting held on 18/3/06. Following the allegation against the Appellant, the bank carried out an investigation and based on the report of the investigation(Exhibit D8) the Appellant was made to face a disciplinary committee. He defended himself before the Disciplinary Committee and following the report of the committee (Exhibit D9) he was dismissed. The Lower Court’s decision is largely dependent on Exhibits D8 and D9. When the documents were tendered through the DW1 at the Lower Court, the Appellant objected to its admissibility. The Lower Court in a considered ruling admitted them marking them as Exhibits. The Appellant did not appeal against the ruling but has raised the issue of the admissibility of those documents as a ground of appeal. It is therefore mandatory that I consider it in this appeal. Hence I have raised it as the first issue for determination. I will now address issue 1.

The Appellant in urging this Court to expunge those documents submitted that DW1 was not the maker of the documents and so cannot be tendered through him as it offends Section 91 of the Evidence Act and as a banking book, it is a secondary document. As expected, the Respondent submits to the contrary. The first aspect of the submission to deal with is, whether Exhibits D8 & D9 are classified as bank documents. Section 258 of the Evidence Act, 2011 has defined bank books to include “ledger, daybooks, cash books, account books and all other books used in the banking business.” It is clear that not all books emanating from a bank are a bank book. To say that all books emanating from banks are bank book will be too ambiguous an interpretation and will amount to a wide and open-ended definition and this is not the intendment of the lawmakers. Bank books are therefore documents that are used for banking business. This definition as contained in the Evidence Act excludes reports of investigation or reports of Disciplinary committees. The books to qualify as banking books must relate to the banking business. Banking business has been defined in Akwule & Ors vs. The Queen (1963) LPELR-15460 (SC) as “the business of receiving money on current account from the general public, of paying or collecting cheques drawn by or paid in by customers and of making advances to customers.” Banking books must, therefore, be books relating to receiving money from the public, paying and collecting cheques. Exhibit D8 & D9 are clearly not in that league.

The objection to the admissibility of those documents on that ground does not hold any water.

Now, to the other ground of the objection. DW1 through whom they were tendered was not the officer of the bank who did the investigation or a member of the Disciplinary Committee. Though he is a staff of the bank but did not participate in the meetings that produced those documents. The question, therefore, is does that foreclose him from tendering the documents? In answering that question, it is important to know that the documents were bank documents, though not bank books, and therefore it is not the personal documents of the persons who actually took part in the meeting or in the investigation. The documents are bank documents which in my opinion can be tendered by any staff of the bank. The report and the minutes of the Disciplinary Committee are not the personal property of the members who carried out the act. The report belongs to the bank as even after the retirement of the staff who participated in the proceeding, the documents remain with the bank. The bank being a limited liability company can act through its staff. In Mr. S. Anaja vs. United Bank for Africa Plc (2010) LPELR-3769 (CA), this Court per Yahaya JCA held:
“It is not controverted that the documents in question had been pleaded and are relevant to the case. It is correct, as submitted by counsel for the appellant, that DW1 who tendered them, was not the maker, and the makers had not been called to enable the appellant to cross-examine them. However, the respondent bank as a juristic person, can only act through natural persons. Any servant or agent of a company such as the respondent bank, can give evidence and tender documents to establish any transaction it entered into or the activities it had undertaken. The servant or agent may not of necessity, have to be the one who actually took part in the transaction or activity, for the company. His evidence is admissible, relevant and not hearsay. See KATE VS DAEWOO (1985) 2 NWLR (Pt 511) 116.”
The point I am laboring to make is that DW1 being the staff of the Respondent can tender any document on behalf of the Respondent provided the document belongs to the Respondent. DW1 needs not be a member of the Disciplinary committee to tender Exhibit D9 and similarly, he need not be the investigating officer to tender Exhibit D8. He is qualified to tender both documents as a staff of the Respondent, acting on its behalf. I agree with the finding of the Lower Court on page 248 of the record of appeal (page 25 of the judgment) to that effect. I have no difficulty in agreeing with the Lower Court in admitting Exhibits D8 and D9. The law on the admissibility of a document is settled beyond any form of dispute. It is trite that the test of admissibility is relevance. Once a document is relevant to the proceedings, that document will be admitted as it has passed the test of admissibility. See Royork (Nig) Ltd vs. A.G. & C.J. Sokoto State & Anor (2017)LPELR-42506 (CA). In Hamza vs. State (2019) LPELR-47858(SC), Okoro, JSC at pages 9-10 held:
“May I state clearly, at this stage that admissibility, one of the cornerstone of our Law of Evidence, is based on relevancy. A fact in issue is admissible if it is relevant to the matter before the Court. In that respect, it is correct to say that relevancy is a precursor to admissibility in our law of Evidence. See Nwabuoku & Ors v Onwordi & Ors (2006) 5 SC (pt 111) page 103. Still on the issue of admissibility of evidence, this Court, per Adekeye, JSC put the issue succinctly in Haruna v Attorney General of the Federation (2012) 9 NWLR (pt 1306) page 419, (2012) LPELR 7821 (SC) page 29 – 30 paragraphs F – C as follows:-
“Ordinarily admissibility of evidence is governed by Section 6 of the Evidence Act. Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained. Fawehinmi v. NBA (No 2) (1989) 2 NWLR (pt 105) 558. Where a piece of evidence is wrongly received in evidence by the trial Court, an appellate Court has the inherent jurisdiction to exclude it or expunge it from the records not withstanding that counsel at the Trial Court did not object to the admissibility of the piece of evidence as any finding made on inadmissible evidence is perverse. However, the proper time to object to the admissibility of a document, particularly Exhibits, M1 – M3 the confessional statement of the appellant where necessary was when they were tendered in evidence. Olayinka v State (2007) 9 NWLR (pt 1040) page 561, Ogudo v State (2011) vol. 202 LRCN page 1.”
That Exhibits D8 & D9 are relevant to the proceedings is not in dispute. The dismissal of the Appellant is based on misconduct which Exhibits D8 and D9 tried to establish. On the grounds of relevance, the Lower Court was right to have admitted the documents marking them as Exhibits. I will however hasten to add that in law, the fact that a document has passed the test of admissibility does not mean that probative value will be placed on it. This is because admissibility is one thing while the weight to be attached to the document is another. In Dalek (Nig) Ltd vs. Ompadec (2007) 2 SC 305, the Supreme Court held:
“It is settled law, that it is the relevance of a document and not the weight to be attached to it that is paramount. In other words, the position of the law is that admissibility is one thing while the probative value that may be placed thereon is another. Relevance and admissibility of a document are separate matters in contradiction from the weight to be attached to it. See the case of Okonji & 2 Ors. v. Njokanma & 2 Ors. (1998) 12 SCNJ 259 at 273-275, (1999) 14 NWLR (Pt. 638) 250. I note that Exhibit M was made by the appellant and not the respondent. In the face of this fact, what is its relevance to the clear contents of Exhibit G1 if one may ask, since relevance and admissibility of a document or evidence is different from the weight to be attached to it. See also the cases of Oba Oyediran of Igbanla v. H.R.M. Oba Alebiosu II & Ors. (1992) 6 NWLR (Pt. 249) 250 at 539; (1992) 7 SCNJ 167; Duniya v. Jimoh (1994) 3 NWLR (Pt. 334) 609.”
It is easier to pass the test of admissibility than the test of weight. For the purpose of winning a case, admissibility is just the first step but the most important is the weight that a Court gives or attaches to an admitted evidence or document. The implication is that a Court can admit a document and place no weight on it. It is therefore not all over for the Appellant because those documents are admitted. At the risk of sounding repetitive but for emphasis sake, I must state that the Lower Court was in order to admit the two exhibits.

I must, however, state in clear terms that the law is that for any document to have probative value the maker need to be called as a witness especially when the authenticity of the document is challenged. It is easier when there is no challenge to the authenticity of the document. I will deal more with this point when I am considering issue 2. For now, I will cite one or two cases on this point. In G. Chitex Industries Ltd vs. Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt. 145) 392, the Apex Court held:
“Where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it.”
Similarly, in Emmanuel vs. Umana & Ors (2016) 2 SC (Pt.1) 102, Mohammed, JSC in driving the point that no probative value should be attached to a document without the maker testifying held:
“However, I wish to further emphasized on the rather reckless behavior of the Court below in refusing to be guided by the decision of this Court but relied on its own decision to decide that it was unnecessary to call the makers of documents Exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examination for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at 322 323 which the Court below refused to apply in place of its own decision in AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (Pt.1253) 458. See also the cases of SA’EED VS. YAKOWA (2013) 7 NWLR (Pt.1352) 124 AT 149 150 and OSIGWELEM VS.INEC (2011) 9 NWLR (Pt.1253) 425 at 451.”

Exhibits D8 and D9 are admissible despite the fact that DW1 was not a member of the committee that sat over the matter since the document is that of the Respondent to which he is a staff and more so that the documents are relevant. The documents are therefore admissible. The question as to whether the Appellant can be dismissed based on them is a question of weight to be attached to them. This is what I will discuss in issue 2 in this judgment. I resolve issue 1 in favour of the Respondent.

The Respondent dismissed the appointment of the Appellant on the grounds of gross misconduct on 17/3/06. The Lower Court had held that the Respondent had proved that the Appellant was liable for gross misconduct hence the dismissal was not declared unlawful or wrong. The point must be made from the onset that the initial burden is on the Appellant to show that his termination is unlawful because the settled issue on the burden of proof is on the person who brings a matter to Court to prove his case because he will be the loser if no evidence is adduced. The Appellant in the lower Court had the duty to show that he was wrongly dismissed. See Organ & Ors vs. Nig Liquefield Natural Gas Ltd & Anor (2013) 7 SC (Pt. iv) 74; Okomu Oil Palm Co Ltd vs. Iserhienrhien (2001) 6 NWLR (Pt.710) 660; Iwuchukwu vs. Nwizu & Anor (1994) 7 NWLR (Pt.357) 379; Aji vs. Chad Basin Development Authority & Anor (2015) ALL FWLR (Pt.784) 148. It is after this has been done that the burden shifts to the Respondent to justify the dismissal. See Mrs. Vidah C. Ohochukwu vs. Attorney General of Rivers State & Ors. (2012) LPELR-7849 (SC).

The Appellant had successfully proved at the Lower Court to the extent that he was an employee of the Respondent and was dismissed by them. It is after this that the burden came on the Respondent to show that the dismissal was lawful. The reason given for the dismissal is misconduct in relation to foreign exchange transactions conducted by the Appellant against the guidelines of the bank and that of the Central Bank of Nigeria. The conduct of the Appellant was considered by the Respondent as unethical and therefore he was dismissed after facing disciplinary action. The law on termination of the appointment of the employee by the employer is settled. The employer has the right to fire anyone he has hired with or without reason but if he chooses to state the reason for dismissing an employee, the employer must justify that reason and ensure that due process is followed before the termination otherwise the termination will be unlawful. In Isievwore vs. NEPA (2002) 13 NWLR (Pt.784) 417, the Supreme Court held:
“It is an established principle of law backed by a plethora of decided cases that an employer is entitled to retire/terminate his employee’s appointment for good or for bad reason or no reason at all. The case of Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C 40 at 56 the locus classicus on cases of this nature along with several other cases and legislations were called in aid and so I see no reason to interfere therewith.”
Similarly, the Supreme Court in Yusuf vs. UBN Ltd (1996) LPELR-3537 (SC) per Wali JSC at pages 16-17 held:
“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 Fakuade vs. O.A.U.T.H. Complex Management Board (1993) 5 NWLR (Pt.291) 47, the Apex Court held:
“An employer is not bound to state any reason why an employee’s appointment is being terminated, but where a reason is stated by the employer why an appointment is being terminated, the burden of proving or establishing that reason will be on the employer or master.”
This Court per Ndukwe-Anyanwu, JCA also added its views to this discussion in these words in Ntewo vs. University of Calabar Teaching Hospital & Anor (2013) LPELR-20332 (CA) at page 18-19:
“Where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure if any, and accepted that he committed the act after investigation. University of Calabar vs. Essien (1996) 10 NWLR (Pt.477) 255 at 262 Olatunbosun vs. NISER Council (1988) 3 NWLR (Pt. 80) 25.Yusuf vs. Union Bank of Nigeria (1996) 36 NWLR (Pt.457) 632.” The Appellant argued that since what the Appellant was alleged to have done is gross misconduct which is a criminal offence, the dismissal based on same is unlawful when the Court has not decided on it. This is not the correct position of the law. Employers can dismiss an employee for gross misconduct based on administrative disciplinary action without necessarily waiting for a Court’s decision declaring the conduct as a criminal offence. This Court in Arinze vs. FBN (2000) 1 NWLR (Pt. 639) 78 per Olugunju, JCA, the Court held:
“With the fuss and fury generated by the debate over where the line must be drawn between the administrative powers of an Employer to dismiss his Employee summarily and when the intervention of the Court is made mandatory,the drawback of the argument of learned counsel for the appellant is putting an undue premium on criminal prosecution of an Employee for every conceivable act of misconduct that has a savour of criminality. The thread of the argument betrays single-mindedness that makes no allowance for the sphere of domestic or administrative measure and what objective it is set out to achieve that may not always coincide with the focus of criminal policy. By undue emphasis on enforcement of criminal law as a preliminary concern in the relationship of master and servant the argument has completely flown off at a tangent as regards the considerations underlying the judicial policy in so sensitive an area where the right of an Employee can be protected without the Employer being unduly hamstrung in order to harmonise the mutual interest and interdependence of the duo in employment matters.
It must be emphasised for the purpose of clarity that the focus of the decisions in Sofekun v. Akinyemi and FCSC. 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. In pursuit of that ideal, a line is drawn between cases that an Employer or the machinery at his disposal can handle and complex cases that may be more amenable to criminal trial so as to insulate them against the susceptibility to violation of the constitutional right of fair hearing. That objective rather than muscle-flexing for criminal prosecution as a precondition for the exercise of the right of summary dismissal by an Employer is the rationale underlying the crop of decisions on the contract of service which is an integral part of the general law of contract.
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 for gross misconduct was brought out in bold relief by the Supreme Court in Yusuf v. Union Bank of Nigeria Ltd., (1996) 6 NWLR (Pt. 457) 632 (1996) 6 SCNJ 203, a decision which turned upon the issue of fair hearing…..
That clinches any further argument on the matter. 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 offences 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 a 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 Employer 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.
The overwhelming evidence before the trial Court that at every turn the appellant was given the opportunity to challenge each allegation justifies the conclusion of the learned trial judge that the respondent’s decision to dismiss the appellant was fair and lawful. That conclusion is impeccable. Therefore, I will resolve Issue Four against the appellant holding in effect that the appellant having been given a fair hearing by the bank before dismissing him his dismissal is unassailable and it is immaterial that he was not prosecuted for the criminal offences which his acts of misconduct constituted .”
The Supreme Court in the same case reported in (2004) 10 FWLR (Pt.230) 238 held thus:
“As Wali, J.S.C. pointed out at pages 214 – 215 in the latter case:
“It is not necessary, nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismissed 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 of a 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 proceeding must be given adequate notice of the allegation against him to afford him opportunity for 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 complaints as formulated conveys to him the nature of the accusation against him.”
Before I am misunderstood, it is important to say that even if the Appellant’s act is criminal, once there is no criminal charge against him in Court, the Respondent need not wait before disciplinary action is carried out but if however the matter has been charged to Court, the Respondent needs to wait for the outcome of the decision before taking disciplinary action against him. See Musa vs. Federal Ministry of Tourism, Culture Nat Orientation (2013) 10 NWLR (Pt. 1363) 556; Dongtoe vs. C.S.C. Plateau State(2001) 9 NWLR (Pt. 717) 132; Ndukwe vs. LPDC (2007) 5 NWLR (Pt. 1026) 1; Institute of Health Ahmadu Bello University Hospital Management Board vs. Mrs. Junnai R.I. Anyip (2011) LPELR-1517 (SC).

Now that I have stated the legal position, it is now time to look at the evidence before the Lower Court to determine issue 2. The point, I have made above sounding more specific and relevant is that the Respondent as the employer of the Appellant has the right to fire him at any time with or without reason but he must follow due process of giving a fair hearing to the Appellant. Having given reason, he has the obligation to justify the reason. The reason given for the dismissal is gross misconduct. Has the Respondent been able to prove that in the Lower Court? As to what action from an employee will amount to misconduct there is no hard and fast rule or open-ended character that will fall into that category. The actions are not exhaustive and indeed any action that violates the laid down rules and conditions as in the employment letter or handbook of a company will amount to misconduct. Doing anything outside the due process as laid down by the company will amount to misconduct which is capable of being sanctioned by dismissal. The employee of any company is to ensure that he abides by the rules of engagement or risk dismissal by disobedience and insubordination. In University of Calabar vs. Essien (1996) 10 NWLR (Pt.477) 225, the Apex Court held:
“In Tellat Sule v. Nigerian Cotton Board (1985) 6 S.C. 62; (1985) 2 NWLR (Pt. 5) 17 at 38 the law was restated that disobedience of an employer’s lawful order and/or insubordination by an employee is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of the employee concerned. Obaseki, J.S.C. in an illuminating judgment exposed the law on the issue as follows-
“When a servant grows too big to obey his master, the honourable course open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience. Both common law and statute law book no disobedience of lawful order from any servant, high or low, big or small. Such conduct normally and usually attracts the penalty of summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishment. When therefore the plaintiff embarked on a course of disobedience of lawful orders, it must have been the Christian spirit that worked on the Board to persuade the Board not to visit the conduct with the penalty of dismissal. The fact that in addition to the disobedience, there is the insubordination helps to emphasise the magnanimity of the Board in the sacrifice it made in conferring full retirement benefits on the plaintiff. It would have been otherwise if the plaintiff had committed no act of misconduct…”
In his own judgment, Aniagolu, J.S.C. expressed his opinion in the following words-
“I agree that the appellant should count himself lucky not to have been dismissed. In the circumstances, it is idle for him to claim that his retirement from service was unlawful, when the punishment which his conduct rightly deserved was instant dismissal.”
And Oputa, J.S.C. in no mistaken terms in his judgment asserted thus:
“I cannot conceive any “Terms and Conditions of Service”, be it the civil service conditions or the Boards, that will legalise disobedience to lawful order and instruction or tolerate insubordination…”
The Supreme Court has also stated that when the employee does anything against the interest of the employer, it amounts to gross misconduct which can lead to summary dismissal. In Nwobosi vs. Africa Continental Bank Ltd (1995) 6 NWLR (Pt.404) 658 per Ighu JSC, the Supreme Court held:
“On the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch. D 339; Babatunde Ajayi v. Texaco Nigeria Ltd. & Ors (1987) 3 NWLR (Pt. 62) 577. And gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summary dismissal of the employee. See Ridge v. Baldwin (1963) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. To warrant a summary dismissal, it suffices that the conduct of the employee, as in the present case, is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and an employee. See Teliat Sule v. Nigerian Cotton Board supra.”
The evidence before the Lower Court which is not disputed is the fact that the Appellant was involved in foreign exchange transactions involving a customer with other persons outside the bank with the knowledge of the Appellant. This is clear evidence even from the pleadings of the Appellant. The foreign exchange was deposited into the domiciliary account of a customer to the bank, the Roman Catholic Diocese. This was in the branch of the Appellant. The Appellant had the knowledge and was involved in the sale of the foreign exchange directly by the customer to other persons outside the bank. Even if the Appellant claims that he had no benefit from the transaction, the fact that he knew about the transactions without notifying the bank on its own is misconduct. The Appellant did not deny the fact that he had knowledge of the foreign exchange transaction between the Diocese and other persons which is not the bank. This misconduct as revealed by evidence is against the CBN guidelines and the policy of the bank. The misconducts that the Appellant is alleged to have been engaged in was spelled out in pages 234-235 of the records.
“a. Collecting customers cheques opened for cash and issued in the names of the sole signatories instead of requesting customers to write same in the name of the ultimate beneficiaries.
b. Collecting money that was meant for his customers, depositing a fraction of the funds into another customers account and authorizing the beneficial customer to transfer foreign currency from domiciliary account against the bank’s policy
c. Suppressing the shortfall in cash between what was collected from ACA Enterprises and Standard lead Environ Consultant Ltd and what was deposited into the account of Catholic Diocese of Umuahia thereby converting same for personal use.
d. Engaging in unethical practices of sourcing for and engaging in foreign currency transaction in flagrant violations of the bank’s policy….”
These are misconducts that warrant summary dismissal as the foreign exchange transaction was not made in line with the accepted and recognized legitimate policies of the bank and CBN. The Lower Court has held that the Appellant conducts amount to gross misconduct for which the Respondent was in order to dismiss him. I cannot see any reason to interfere with that finding as the finding based on the facts before it is not perverse.

This may just be the appropriate place to look at the weight to be attached to Exhibits D8 and D9. It is pertinent to state that the Appellant did not challenge the authenticity of Exhibit D8 and D9 so there is really no need to call those who took part in the investigation and the Disciplinary Committee. This is more so that the Appellant did not deny that those reports were a follow up of investigation over his conduct and minutes of disciplinary action that he participated in. I therefore see no reason why probative value will not be placed on those exhibits simply because those who participated in the investigation and the disciplinary committee were not physically called to testify. On the strength of the evidence before the Court, there is no need for those who participated in the investigation and the Disciplinary Committee to testify. There is no evidence or question asked under cross-examination on the documents which could not be answered. The Lower Court was therefore in order in according Exhibits D8 and D9 probative value. I see no reason whatsoever not to resolve issue 2 in favour of the Respondent. I resolve issue 2 in favour of the Respondent. This is more so when there is no evidence of criminal charges against the Appellant. The matter against him is for misconduct and not any criminal charge and the standard of proof is the balance of probability and not beyond a reasonable doubt.

Now to issue 3. I cannot resolve this issue in favour of the Appellant but rather against him and in favour of the Respondent. In the light of the finding of the Lower Court that the dismissal is lawful, I do not see the need to make any finding or order on the other reliefs which will be more of an academic exercise. Having held that the dismissal is lawful, the Appellant is not entitled to sums claimed as salary, entitlement and damages. The Apex Court has held in several cases to the effect that a Court should not be engaged in an academic exercise. See Engineer Frank Okon Daniel vs. INEC & Ors. (2015) LPELR-24566 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the circumstance, this appeal lacks merit and it is dismissed. The decision of Hon. Justice Y.A. Adesanya (Mrs.) of the Lagos State High Court sitting in Ikeja in the matter of Mr. Chinedu Oguejiofor vs. Diamond Bank Plc Suit No. LD/1321/2007 is hereby upheld and affirmed.
This appeal is dismissed with N100,000 (One Hundred Thousand Naira) against the Appellant.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft, the illuminating and comprehensive judgment of my learned brother, Ebiowei Tobi, JCA, which has just been delivered.

In his characteristic sapience, the issues thrust up for determination in the appeal have been resolved in a manner which accords with my views. I adopt the reasoning and conclusion in the leading judgment as mine, with nothing more to add, I therefore join in dismissing the appeal for being devoid of merit. I abide by the order as to costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, EBIOWE TOBI, JCA, afforded me the privilege to read in its draft form, the leading judgment which has just been delivered and in which he found no merit in the appeal and dismissed same.

I am in total agreement with his exhaustive analysis of the issues canvassed in the appeal and of the resolution of the issues.

The jurisprudence of labour and employment contract, has over the years with the aid of decisions of the Apex Court and of this Court, been fairly settled. The Courts will not allow any employee whose employment has been validly terminated when the employer has observed and complied with the judicial templates for termination or dismissal of an employee, to seek to void the decision of the employer by raking up issues of allegation of crimes when the employer’s decision to terminate or dismiss the employee was anchored on misconduct for which the employee was accorded a fair hearing. To do otherwise would amount to a situation where it will almost be nigh impossible for an employer to exercise in good faith, its “sovereign” powers and authority in a free market economy as encapsulated in the provision of Section 16 (1); (2) & (3) of the Constitution, 1999 as to hire and fire any of its employees whose conduct was found to have contravened the terms and conditions of the employee’s contract of employment.
I agree with the lead judgment and abide with the consequential made as to costs.
Appeal is dismissed by me too.

Appearances:

Chijioke Okoli (SAN) with him, Perpetual Onwumma Esq., and T. Olabajo (Miss)
For Appellant(s)

Segun Ololade Esq., with him, Chizom Nnamdi Esq. For Respondent(s)