MR. S. ANAJA V. UNITED BANK FOR AFRICA PLC
(2010)LCN/3882(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of June, 2010
CA/J/66/2002
RATIO
PLEADINGS: WHETHER ISSUES CAN BE JOINED ON ADDRESSES OF COUNSEL WHEN THE PLEADINGS ARE SILENT ON THE POINTS
Issues were not joined by the parties, on criminal allegations. It was counsel for the appellant, who raised it in his address for the first time, at the trial court, and made it an issue here. I do not think that, that is proper, in view of the fact that issues are joined in the pleadings, not in the evidence. See AKINOLA VS SOLANO (1986) 5 NWLR (Pt 24) 598 at 623. Certainly, issues cannot be joined on addresses of counsel when the pleadings are silent on the points. PER ABUBAKAR DATTI YAHAYA, J.C.A.
DOCUMENTRY EVIDENCE: CRITERIA GOVERNING THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE
I agree with the submissions of learned senior counsel for the respondent, that there are three main criteria governing admissibility of a document in evidence- (1) Whether the facts relating to the document have been pleaded (2) Whether it is relevant and (3) Whether it is admissible in law DUNIYA VS JIMOH (1994) 3 NWLR (Pt 334) 609 at 617 OKONJI VS NJOKANMA (1999) 14 NWLR (Pt 638) 250 at 266.PER ABUBAKAR DATTI YAHAYA, J.C.A.
WILLFUL MISCONDUCT: WHAT WILL AMOUNT TO WILLFUL MISCONDUCT IN A CONTRACTUAL OBLIGATION
As the relationship between the parties is that of master and servant, it is the principles of common law that will apply and be binding on them. Misconduct is viewed seriously and punished harshly. In SHUAIBU VS NAB (supra) at 129 Wali JSC stated that “any act outside the scope of an employee’s duties in his employer’s establishment which is prejudicial to the latter’s interest, is willful misconduct, considering the nature of the business and service in which his master is bound to provide to the customers.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
GROSS MISCONDUCT: DEFINITION OF GROSS MISCONDUCT
In UBN VS OGBOH (supra) at 669, it was held that “Gross misconduct has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
MR. S. ANAJA Appellant(s)
AND
UNITED BANK FOR AFRICA PLC Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): The plaintiff, Mr. S. Anaja filed an action at the Plateau State High Court, Jos and in it prayed for-
“A. A DECLARATION that the summary Dismissal of the Plaintiff by the Defendant vide a letter dated 29th November, 1996 without any reason stated thereon is ultra vires, in bad faith, wrongful, unlawful, illegal, null and void and of no effect being a transgression of Plaintiff’s right to fair hearing inter alia as well as the Terms and conditions governing Plaintiff’s employment with Defendant hence should be set aside.
B. A MANDATORY ORDER compelling the defendant to reinstate the Plaintiff to his employment with the Defendant as Assistant Manager with full payment of salary and other emoluments with effect from the date of wrongful Summary Dismissal to wit 29th November, 1996.”
ALTERNATIVELY
N3,818,669.98 as Special Damages for wrongful dismissal.
The defendant, United Bank for Africa, denied the claims and in its further Amended Statement of Defence, pleaded that the plaintiff was dismissed for gross misconduct, the particulars of which, were stated.
After trial, the trial High Court gave judgment, dismissing the plaintiff’s claim and observing that
“…it is the employer’s prerogative to dismiss an employee for good or bad reason or for no reason at all so long as the conditions precedent to such dismissal are met.”
Being dissatisfied with the judgment, the plaintiff who will hereafter be referred to as the appellant, filed a Notice and Grounds of Appeal on 28th November 2007, on obtaining the leave of this Court to appeal out of time. On another application, the appellant sought for and obtained the leave of this Court, to amend the Notice and Grounds which were deemed filed and served on the 11th of December, 2002. From the 14 grounds of appeal, the appellant, through his counsel P. A. Akudo as he then was, identified in the appellant’s brief, six issues for determination which read –
1. Whether from a careful evaluation of evidence adduced before the lower court, the Appellant did not establish his claim and/or discharged the burden of proof upon him so as to entitle him to the reliefs sought (Grounds 1, 11 and 12).
2. Whether it is correct as common ground that the Appellant contributed to the losses suffered by the Respondent (if any) against the background of the allegation that the Appellant mis spelt the account’s name of “Transpoa” instead of “Transport” thereby warranting the recommendation of the panel for the dismissal of the Appellant (Grounds 2 and 5).
3. Whether the learned trial judge was correct in her conclusion while examining Exhibit W that the Agreement between the Appellant and the Respondent was at the dead end and that the contract agreements governing the relationship are silent on the issue of summary dismissal hence no evidence before the Court warranting the finding that the summary dismissal of the Appellant was a transgression of the Terms and conditions governing the Appellant’s employment (Grounds 3 and 4).
4. Whether having regard to the circumstances of the case, the learned trial judge properly directed himself in law and/or correct in law when she said there was no allusion or inference of a criminal allegation against the Appellant by the Respondent warranting the trial of the Appellant before a Court of law in order to first establish his guilt before taking disciplinary action against him (Grounds 6 and 7).
5. Whether having rightly stated the correct principles of law on fair hearing, the learned trial Judge rightly applied the principles vis a vis the facts of this case by coming to the conclusion that the Appellant was given every opportunity to be heard and/or given fair hearing by the Respondent (Grounds 8, 9 and 10).
6. Whether the learned trial Judge was in breach of section 36(1) of the Constitution of the Federation of Nigeria, 1999 by excluding and failing to advert to the contents of Exhibit VS’ and on the other hand admitting and utilizing inadmissible evidence to wit: Exhibits Z, Z1, Z2, Z3 and Z4 (Grounds 13 and 14).
On his part, the Respondent, through his counsel, Mr. G. Ofodile Okafor S.A.N., identified the following five issues for determination in the appeal –
1. Whether the Appellant proved his claim before the trial court (Grounds 1, 11 and 12).
2. Whether the plaintiff contributed to losses suffered by the Respondent and whether his summary dismissal was justified on that score (Grounds 2 and 5).
3. Whether the Respondent as employer could summarily dismiss the Appellant (Grounds 3 and 4) and if the answer is in the affirmative whether the summary dismissal of the Appellant can be justified.
4. Whether the commission of crime by the Appellant was an issue before the trial court. (Grounds 6 and 7).
5. Whether the Appellant was given fair hearing and whether exhibits Z, Z1, Z2, Z3 and Z4 are legally admissible in evidence (Grounds 8, 9, 10, 13, and 14).
The issues identified by the Respondent are more apt and they go straight to the point, without any embellishment. I shall therefore utilize them in resolving this appeal.
The facts of the case briefly, are that the appellant, was employed by the respondent back in 1968 as a clerk. Through dint of hard work, he was confirmed in his appointment and was also promoted a number of times, up to the position of an Assistant Manager. He won accolades for long service in-the bank. Whilst he was the sub-manager of operations in the foreign exchange department of the respondent at Jos, it came to light that he was responsible for duplication in the transfer of M14,556.25 on behalf of K. J. Krastev, the account he failed to debit. The situation arose because the appellant had neglected to correctly spell the name of the recipient bank in Bulgaria. Another incident the appellant was held responsible for, came about when he paid the Association of Evangelists of Africa and Madagascar, which maintained a foreign currency domiciliary account with the respondent bank at Jos branch, the sum of $4,000, without debiting the account. As a result, the account presented a false credit balance, which enabled the Association to make a further withdrawal of $5000 when in fact, it did not have sufficient funds to meet the demand. These incidents necessitated the appellant and other staff, to be queried by the respondent and their responses demanded. After they made their written submissions, they were invited to appear before the Senior Staff Disciplinary Committee. After the proceedings, the Appellant was summarily dismissed from the services of the respondent vide a letter dated the 29th of November, 1996 (Exhibit G). No reason was stated therein. In response to Exhibit 1, which was a letter from the appellant’s solicitors, the respondent wrote Exhibit P and gave the reason for the dismissal, to be gross misconduct. Hence this action.
ISSUE NO.1
This has to do with whether the appellant had proved his claim before the trial court. It was the submission of Mr. Akubo for the appellant, that going by the pleadings and the evidence adduced, the appellant had discharged the evidential burden on him. He referred to the unblemished and meritorious career of the appellant, spanning a period of 29 years, for whicn he was never queried for gross misconduct, and Exhibits M, N. G, L, 0, P, R3 and S. Counsel submitted that the procedure regarding disciplinary procedure had been violated by the respondent and that suspension of six months in the event of allegation of gross misconduct as provided by Exhibit M3, had not been compiled with. He specifically referred to Exhibit S, to say that it had exonerated the appellant in respect of the Krastev account and that there was no proof that the account was credited twice. References were made to the cross-examination of DW1 at page 115 lines 21 – 30 of the record, and the evidence of PW2 at page 96 lines 7 – 23 of the record, to show that the appellant had been exonerated from the charges made against him. Counsel argued, that as at October 1996, the account of the Association of Evangelicals of Africa and Madagascar (AEAM) had a credit balance. The appellant was not arraigned before any court over the two incidents he argued, but was tried before the disciplinary committee and subsequently dismissed. He argued further, that the trial court did not properly evaluate the evidence and that this Court can intervene, relying on DAKUR VS. DAPAZ (1998) 10 NWLR (Pt. 571) 573 at 588 – 589 and DAWODU VS MAJOLAGBE (2001) 3 NWLR (Pt. 703) 234 at 243. Counsel argued that the respondent had the onus of proving that it had informed the appellant of the allegations it levied against him and that it accorded him fair hearing. He cited BAMGBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt 622) 290 at 326. As the respondent had failed to observe the procedure, counsel, submitted that the trial court acted wrongly, in casting a wrong burden on the appellant concerning the summary dismissal. He urged us to resolve this issue in favour of the appellant.
For the respondent, Mr. Okafor S.A.N., submitted on this, that long and meritorious service rendered by the appellant is irrelevant. On exhibit M, the collective Agreement, counsel referred to UBA VS EDET (1993) 4 NWLR (Pt. 287) 288 at 298 B – H, to submit that unless it has been shown to have been adopted, it could not be binding on the respondent. On exhibit R3, counsel argued that the account of Krastev was debited twice. The first $14,500 was debited to the account, and the second was filed away which became a loss when the customer closed the account. He also contested the submission that DW1 and PW2 had exonerated the appellant, but that instead, they had indicted him. He referred to page 108 lines 27 – 33 and page 109 lines 1 – 19 of the record.
On burden of proof, counsel submitted that the appellant had the onus to prove that the summary dismissal was wrongful, relying on OLOEBOR VS POLICE COUNCIL (2003) 12 NWLR (Pt. 834) 444 at 453 and 485. He then argued that the appellant had failed to prove his assertion that the non-disclosure of the reason for the dismissal, made it wrongful and a breach of fair hearing as well as the terms and conditions of the appellant’s employment. This is because, he submitted, that an employer is not bound to give reasons for dismissal of an employee and that notice is immaterial – CBN VS AMIKA (2000) 13 NWLR (Pt. 683) 21 at 34 and OLAREWAJU VS AFRIBANK (2001) 7 SC (Pt. 111) at 8. There is a rider however, that where the reason for the dismissal is disclosed, it must be justified – SPDC (NIG.) LTD. VS OLAREWAJU (2002) 16 NWLR (Pt. 792) 38. Still on Exhibit M, counsel submitted that no agreement had been reached on summary dismissal and since the contract of employment is silent on summary dismissal, the provisions of the common law will apply. In this vein he argued, an employer has the right under the common law, to summarily dismiss an employee for gross misconduct, without any notice or wages. He placed reliance on UBN VS OGBOH (1995) 2 NWLR (Pt. 380), 647 at 669; NWOBOSI VS. ACB LTD. (1995) 5 NWLR (Pt. 404) 658 at 686 D – F, and NEPA VS ADESAAJI (2002) 17 NWLR (Pt. 797) 578 at 604 – 605. Counsel argued that this being the case, the onus is on the appellant to show how he could not be summarily dismissed for gross misconduct under the common law, since he was the one who asserted it. This, he had failed to do, and the trial judge was not wrong in placing the burden on him. He distinguished the case of BAMGBOYE VS UNIVERSITY OF ILORIN (Supra) which he said is not applicable here, because of lack of statutory flavor. He urged us to resolve the issue in favour of the respondent.
The relationship between an employer and his employee, is generally to be found in the service agreement or letter of employment. See INTERNATIONAL DRILLING CO. NIG. (LTD.) VS. AJIJOLA (1976) 1 ALL NLR 117 at 130. For our purposes here therefore, what governed the relationship between the appellant and the respondent is Exhibit A, which is the letter of employment of the appellant, dated 23/2/1968, and Exhibit N, which is the counter-part service agreement dated 1/9/1968. These are the documents open to the court to look at, in order to resolve the issue of the summary dismissal. It had no jurisdiction to go outside the documents to determine the complaint. Exhibit M, is the main collective Agreement made between THE NIGERIA EMPLOYERS ASSOCIATION OF BANKS, INSURANCE AND ALLIED INSTITUTIONS and THE ASSOCIATION OF SENIOR STAFF OF BANKS, INSURANCE AND FINANCIAL INSTITUTIONS. This document, did not regulate the relationship between the appellant and the respondent and none of them, can sue on it here. Therefore, the call by the appellant for this Court to look at the document (Exhibit M) and make pronouncements on it concerning summary dismissal, has no legal basis. It was held by this Court in UBA VS EDET (Supra) at 298, that collective Agreements on their own, do not give an individual employee, the right to bring an action in respect of any breach of its terms, unless they are accepted to form part of the terms of employment. This is good law because the agreement is not made between the employer and his employee and the law is that in contract, a non-party cannot enforce it, even if it was made for his benefit. See IKPEAZU VS A.C.B. (1965) N.M.L.R. 374 at 379. Similarly, the Supreme Court, per WALI JSC, in SHUAIBU VS N.A.B. (1998) 4 SCNJ 109 at 129, held that
“….the Collective Agreement of Association of Banks etc is at best a ‘gentleman’s agreement’, an extra-legal document totally devoid of sanctions…..”
There is no evidence on record, that Exhibit M, was adopted to form part of the terms of employment of the appellant as, Exhibit N, clause 9 had made, in respect of N.B.A. Handbook’. Exhibit M has therefore no place in this respect.
The law regarding the relationship between master and servant is settled. The master has full powers to terminate the employment of his servant at any time, for any reason or indeed, for no reason at all. Provided, that the termination of such an employment, should follow the procedure spelt out in the contract of service, otherwise the master will be liable in damages for breach of the contractual agreement. See CBN VS BASSEY AMUKE (supra) and RIDGE VS BALDWIN (1964) A.C. 40. In OLAREWAJU VS AFRIBANK (supra) at 502, Katsina-Alu JSC as he then was, held –
“In this class of cases (master and servant) an officer’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanations. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice.”
It is not controverted that the employment of the appellant was not governed by statute and did not have any statutory flavor. It was therefore a master and servant relationship. Exhibit G, the letter of summary dismissal of the appellant, did not give any reasons for the summary dismissal, let alone make any criminal allegation. The respondent was well within its right as a master, to so end the relationship without giving any reason at all. As the appellant was complaining about the summary dismissal without reasons given, he does not have a foot to stand upon. The reason given for the dismissal came later, via Exhibit P. It states in parts-
We hereby inform you that your client was dismissed from the Bank’s arraigned before a disciplinary Committee… The law does not require an employer to state the reason for an employer’s dismissal when dismissing the employee.”
It was the appellant that alleged wrongful dismissal and the onus of proving this assertion, is clearly on his shoulders. He has to show and satisfy the court, the terms of his employment and the way and manner those terms were breached by the respondent. See KATTO VS C.B.N. (1999) NNLR (Pt. 607) 390, and BAMGBOYE VS ILORIN (supra) (1996) 6 SCNJ 295 at 323-4.
As stated earlier, the documents governing their relationship, are Exhibits A and N which incorporated U.B.A. Handbook. Exhibit A is not applicable for this purpose, as it made no mention for disciplinary procedure. Similarly, Exhibit N has not made any provision for summary dismissal. But paragraph 9 incorporates the U.B.A. Handbook on matters that have not been specifically mentioned in the Agreement. This would include summary dismissal. As that document (U.B.A Handbook) is not before the court, no reference can be made to it.
For all intents and purposes therefore, there are no provisions made for summary dismissal, in the contractual documents that govern the relationship between the appellant and the respondent. Since the terms of the appellant’s employment did not make such provision, let alone the procedure for it, the appellant cannot be heard to complain about the breach of his contractual agreement, by the respondent. To that extent, he was not able to discharge the burden on him, to satisfy the court that his summary dismissal was wrongful.
For what it is worth, I will now make reference to Exhibit M, even though it is not a contractual agreement between the appellant and the respondent. Exhibit M, and M2 only make provision for promotion, training and termination after warning. It is only in Exhibit M3, Article 4(IV) that the issue of summary dismissal was mentioned but even at that, no agreement was reached as to whether it is available as a disciplinary measure and what procedure will be followed before it is embarked upon. Effectively and in reality therefore, even Exhibit M did not make provision for summary dismissal and I fail to see how the appellant can satisfy the court that the term of his employment had been breached in that respect. I therefore endorse the succinct finding of the trial court, which cannot be faulted having regard to the evidence led, in these words at page 155 of the record –
“in consequence, since the contract agreements governing the relationship between the plaintiff and the defendant are silent on the issue of summary dismissal, there is no evidence before the court wherein I can find that the summary dismissal of the plaintiff is ultra vires and a transgression of the Terms and conditions governing the plaintiff’s employment with the defendant.”
Counsel for the appellant had also argued that Exhibit S and the evidence of DW1 had exonerated the appellant of the allegations made against him and that as they were criminal in nature, the failure to arraign him before a court of law for trial, before meting out the punishment to him was wrong.
The record does not bear the position of the appellant. At page 108 of the record, DW1 indicted the appellant for failing to apply the 2nd interbranch voucher dated 16/2/1993.but merely filed it away, without an alarm, which frustrated the early detection and recovery of the “$14,500.00 transferred twice.” And in respect of the AEAM account, DW1 at page 110 indicted the appellant for failing to debit the account with $4000 which he paid to the customer. At page 165 of the record, this position was corroborated as the appellant was shown in Exhibit Z1, to have admitted paying the $4000 to the customer.
As regards the allegation, the law is that if allegations of crime are made against an employee, they have to be proved in a court of law seized with jurisdiction to try the offence. See LASISI VS BANK (2002) 7 NWLR (Pt. 767) 542 and GARBA VS UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550. However, where the allegations are termed misconduct, without criminal acts, then an employer can apply the appropriate sanction to either terminate the employment or dismiss the erring staff. As the appellant was not accused of criminal acts but misconduct, a prior trial in a court of law before he was disciplined, did not arise. He had the opportunity and had infact made written submissions regarding the misconduct before he was dismissed summarily. I am in total agreement with the trial court, that the appellant had failed to prove that his summary dismissal was wrongful. I therefore resolve the issue No. 1 in favour of the respondent.
ISSUES NOS. 2 AND 3
As the two issues are closely interrelated, I shall take them up together. They are as to whether the appellant contributed to the losses suffered by the respondent for which it could summarily dismiss him justifiably.
Learned counsel for the appellant submitted, that the purported losses allegedly caused by the appellant, concern the accounts of M. Krastev and AEAM, for which the trial court made a finding of facts that from the pleadings and the evidence, it was common ground that the Panel found that the appellant contributed to the losses suffered by the respondent. Counsel argued that there was no such common ground. He referred to paragraphs 6, 9, 9.1 – 9.7, 10 and 12 of the further Amended Statement of Defence, which were rebutted by the averments in paragraphs 3, 4(a) – (v) of the Amended Reply. He then also referred to the evidence of PW1 at page 79 lines 10 – 15 of the record, that of PW2 at pages 97 lines 14 – 16 of the record and that of the respondent at page 113, lines 23 – 25 of the record to submit that on the evidence, there was also no common ground on the losses. The same submission was directed at the issue of mis-spelling Transport as Mr. Krastev did not complain of any wrong spelling.
On summary dismissal, learned counsel submitted that contrary to the conclusions of the trial court that no agreement was reached in respect of summary dismissal even though provision was made for it, Exhibits M1, M2 and M3 provide for the procedure for the discipline of staff, for which summary dismissal is its culmination. Further, that since Exhibit M3 makes provision for suspension from duty for six months, pending conclusion of investigation, where an employee is suspected of dishonesty or other serious misconduct, and that since the appellant was not so suspended, never queried or warned for gross misconduct, the procedure had been breached and the disciplinary action -fatally afflicted. He referred to OBO VS COMMISSIONER OF EDUCATION BENDEL STATE (2001) 2 NWLR (Pt. 698) 625 at 636. He urged us to resolve the issues in favour of the appellant.
In response, learned senior counsel for the respondent referred to Exhibits Z4, Z, the evidence of DW1 at page 114 lines 23 – 25, PW2 under – cross-examination at page 99 lines 15 – 23 of the record, page 101 lines 33 and page 102 line 1 and the evidence of PW1 under cross-examination at page 89 lines 24 – 29 of the record, to submit that the finding of the trial court is supported by evidence. He then concluded by positing that the appellant was guilty of gross misconduct justifying his summary dismissal, citing UBN VS OGBOH (supra) AT 669, NWOBOSI VS ACB (1995) 5 NWLR (Pt. 404) 658 at 686 and AJAYI VS TEXACO NIG. LTD. (1987) 3 NWLR (Pt.62) 577.
Learned counsel also submitted that the summary dismissal of the appellant is justified, because it is the common law that applies in relation to the summary dismissal and in such a master and servant relationship, the master can terminate the employment without furnishing any reason. He cited AFRIBANK VS OSISANYA (2001) 1 NWLR (Pt 642)598 at 616, OMENKA VS MORISON IND. PLC (2000) 12 NWLR (Pt 683) 147 at 153 – 154, OLAREWAJU VS AFRIBANK (supra) at 8, U.B.A. VS EDET (supra). He argued that as Exhibit M is not binding on the respondent unless it is adopted, an individual employee cannot enforce it. He urged us to resolve the issues in favour of the respondent.
It seems to me that counsel for the appellant has missed the point concerning common ground on the losses suffered by the respondent. The position of the trial court, was not that there was common ground between the parties on the losses. No. Its position shows that it was common ground, that the Panel found that it was the appellant who contributed to the losses. All his submissions on the wrong notion would therefore not be relevant. It is however important to state that the finding of the trial court was fully supported by the evidence led, in respect of the losses. Exhibit Z4 tendered before the trial court, is the minutes of the Senior Staff Disciplinary Committee Meeting of the 11/10/1996. Page 9 thereof states –
The committee observed that both Messrs S. Anaja and O. Samuel contributed to the loss of $3,956.87 and US $14,556.25 respectively suffered by the Rank. It noted that Mr. S. Anaja was guilty in both cases, and therefore recommended that he should be dismissed from the services of the Bank.’
The trial court was therefore right that it was common ground that the Panel found the appellant to have contributed to the losses suffered by the respondent, but not that it was common ground between the parties, that the appellant so contributed. The parties had infact joined issues in the pleadings on the losses.
On summary dismissal and breach of procedure enumerated in Exhibits M1, M2 and M3 the position remains the same as that discussed in issue I earlier. Exhibits M, M2 and M3 are the collective Agreement. The agreement was not made between the parties in this case, did not form part of the terms and conditions governing the appellant’s employment and so it is not enforceable by him. Its purported .breach will not confer any right on the appellant to seek to set aside the summary dismissal.
As the relationship between the parties is that of master and servant, it is the principles of common law that will apply and be binding on them. Misconduct is viewed seriously and punished harshly. In SHUAIBU VS NAB (supra) at 129 Wali JSC stated that
“any act outside the scope of an employee’s duties in his employer’s establishment which is prejudicial to the latter’s interest, is willful misconduct, considering the nature of the business and service in which his master is bound to provide to the customers.”
In UBN VS OGBOH (supra) at 669, it was held that
“Gross misconduct has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer.”
Evidence on record, shows that the appellant was accused of gross negligence and failure to follow laid down procedure, which led the respondent to suffer financial losses. Two incidents gave rise to these acts. A customer of the respondent at Jos Branch requested a transfer of the sum of $14,500 to Transport Bank Varna, Bulgaria. The appellant, who was in charge, wrote “Transpor Bank” as the beneficiary. The amount was transferred. When the beneficiary could not be found, and the appellant needed to correct the situation, he sent another message with the correct name but failed to raise an alarm which would have avoided duplication. So a second $14,556.25 was transferred abroad, when there was no sufficient fund to do this. The bank lost $14,556.25. See Exhibit 24 page 9 and the evidence of PW2 under cross-examination, at page 99 of the record.
The second incident was when the appellant paid a customer, AEAM at Jos branch-of the respondent bank, the sum of $4000 and failed to debit the customer’s account with the amount. Initially/ the appellant denied that he was the one who paid the $4000, but when confronted by Mr. Samuel, he agreed that he was the one who paid it. See Exhibit 21, page 8. Because the appellant failed to debit the AEAM account with the $4000, another request by the customer for the payment of $5000 was honoured, due to the false balance in the account.
The account was overdrawn to the tune of $3,956.97. See Exhibit 24 and the evidence of PW2 at page 101 of the record and the evidence of DW1 at page 114 lines 23 – 25 of the record. The evidence led was evaluated and accepted by the trial court and acted upon.
In my view, failure to debit the account of a customer, after cash withdrawal, is gross negligence and irresponsibility of the highest order. It is prejudicial to the interest of the respondent bank and depositors’ funds. The bank therefore suffered the stated loss. For an officer of the appellant’s calibre, a Senior Staff with about 29 years experience in the Bank, his action was not only grossly negligent and reprehensible, but was also a serious misconduct for which summary dismissal will be justifiable, going by the common law principles. The confidence existing between the respondent and the appellant, the employer and the employee had been seriously eroded. There is nothing before the court to show that any procedural step before the dismissal, had been violated. Issues Nos. 2 and 3 are therefore resolved in favour of the respondent.
ISSUE NO. 4
This is whether the commission of crime by the appellant, was an issue before the trial court. Learned counsel for the appellant submitted that the allegations against the appellant were criminal in nature, which ought to have attracted the trial of the appellant in a competent court first, before the respondent could take disciplinary action against him, relying on N.A.U. VS NWAFOR (1999) 1 NWLR (Pt 585) 116 at 138; GARBA VS UNIMAID (supra) and DENLOYE VS M.D.P.D.C. (1968)1 All NLR 306. Counsel argued that the allegation of duplicating the transfer of US $14,500 in favour of Mr. Krastev, suggested an offence of “criminal breach of trust by a banker” under Section 315 of the Panel Code and “fraudulent accounting” under section 438 of the criminal code. Furthermore, that Exhibit 24 shows that the Disciplinary Committee ‘HEARD’ ‘CASES’ for adjudication and returned a verdict of “guilty in both cases.” These aspects, he argued, unequivocally show that the accusation were criminal in nature contrary to the finding of the trial court. He opined that failure to arraign the appellant before a court of law and obtaining a conviction first, has rendered the summary dismissal wrongful. He urged us to resolve the issue in favour of the appellant.
For the respondent, it was submitted that no reasons were given for the summary dismissal at the first instance and that it was only in Exhibit P that misconduct was given as a reason for the dismissal. The misconduct it was submitted, was rooted on duplication of transfer of money to Mr. Krastev, occasioning loss to the respondent – paragraph 9.5 of the further Amended Statement of Defence – and failure to debit the account of AEAM after it withdrew US $4000, leaving an exaggerated balance in the account -paragraph 12.1 of the Further Amended Statement of Defence at page 31 of the record. These, it was argued, could never amount to criminal acts, let alone fraud, theft and criminal breach of trust by a banker as submitted by the appellant. The cases cited by the appellant are therefore not relevant here, it was argued. Counsel submitted that the findings of the trial court were grounded on evidence led and therefore correct and proper.
I have gone through the pleadings exchanged by the parties. The statement of claim did not raise any issue of criminal allegations against the appellant. Infact, the appellant had pleaded that the respondent had alleged that the appellant committed acts of ‘gross misconduct’. The Further Amended Statement of Defence also did not make any criminal allegations against the appellant. It alleged flagrant breach of Banking procedures, resulting in a duplication of transfer of moneys, failure to raise an alarm and failing to debit the account of AEAM after withdrawal of cash, all amounting to gross misconduct. The Amended Reply to the Further Amended Statement of Defence, did not also raise any issue of criminal allegations. The trial judge made the proper findings in this respect.
Issues were not joined by the parties, on criminal allegations. It was counsel for the appellant, who raised it in his address for the first time, at the trial court, and made it an issue here. I do not think that, that is proper, in view of the fact that issues are joined in the pleadings, not in the evidence. See AKINOLA VS SOLANO (1986) 5 NWLR (Pt 24) 598 at 623. Certainly, issues cannot be joined on addresses of counsel when the pleadings are silent on the points.
Be that as it may, in the instant case, Exhibit G which is the letter of summary dismissal of the appellant, did not give any reasons for it. It certainly did not make any criminal allegations against the appellant, warranting a trial in a court of law. It was Exhibit P that gave the reason for the summary dismissal as gross misconduct. The trial judge evaluated the evidence led and came to an impeccable conclusion in these words –
“…fail to see any allusion or reference of a criminal allegation by the defendant on the part of the plaintiff. Infact, in Exhibit 23 one B. Y. Mamma in his report on page 5 stated thus:
‘It is our considered opinion that Deacon Anaja might not have been fraudulent but his apparent absent mindedness and ignorance of procedure have facilitated the duplication of the transfer”. See page 159 of the record.
She went on at page 160 to hold –
“Again I find no insinuation of criminal allegation either impliedly or expressly in the plaintiff’s letter of dismissal Exhibit G, which gives absolutely no reasons for the dismissal.”
Consequently, I find that the plaintiff was never accused of a crime to warrant his trial before a court of law to establish guilt before the defendant could take disciplinary action against him.”
Where a trial court, as in this case, made findings of facts which are justified and supported by the evidence led in the court, an appellate court cannot interfere and substitute its own findings, since it was the trial court that saw and heard the witnesses. See WOLCHEM VS GUDI (1981) 5 S.C 291, GARBA VS MAIDUGURI (supra) and ABRAHAM VS SAkANU (1992) 6 NWLR (Pt 250) 671 at 687 – 688.
As the allegations of misconduct leveled against the appellant in this case were not of a criminal nature, warranting a prior criminal trial, the cases cited by the appellant are not applicable to this case. This is because in those cases, criminal offences were clearly discernible. In this vein therefore, I resolve issue No. 4 against the appellant.
ISSUE NO. 5
This issue pertains to whether the appellant was given a fair hearing and whether Exhibits Z, Z1, Z2, Z3 and Z4 are legally admissible in evidence.
For the appellant, it was submitted that he was not accorded fair hearing by the respondent, as he was given little time to prepare before appearing before the Senior Staff Disciplinary Committee in Lagos, was not given the opportunity to confront those who made reports against him and was not given the report in advance to study and prepare his response. Reliance was placed on KANDA VS GOVERNMENT OF MALAYA (1962) A.C 332 at 337 GARBA VS UNIMAID (supra) at 228 – 229, UBANI VS DIRECTOR SSS (1999) 11 NWLR (Pt 625) 129 at 147, NWOKORO VS ONUMA (1990) 3 NWLR (Pt 136) 22 at 31 and OKONKWO VS OKONKWO (1998) 10 NWLR (Pt 571) 554 at 570.
The response of the respondent to these, is that from the nature of the relationship, the appellant had no right to be heard and could be dismissed without observing the principles of fair hearing as held in OLAREWAJU VS AFRIBANK (supra). At any rate, it was argued, the appellant was informed of the allegations against him, called before a disciplinary committee and allowed to make representatives. He made written submissions, before he was dismissed. He had thus been accorded fair hearing and has no cause to complain.
On admissibility of exhibits Z – Z4, learned Senior Counsel submitted that the documents were relevant, had been pleaded and were admissible in law. Since they are not contractual documents made by a company, they need not be in writing and under seal as required by section 71(1) (a) and (b) of the Companies and Allied Matters Act 1990, he argued. Furthermore, as they are internal memos, there is no requirement for stamping and sealing under section III (1) of the Evidence Act. They could also be tendered by any officer of the Company.
The appellant was served with a telex to appear before the Disciplinary Committee (page 70 of the record) in Lagos to state his side of the story. In his own words, he said at page 71 of the record, that
“…..I went to Lagos I appeared before the committee on the same day. I was asked questions on the transaction involving the transfer of the funds. I told them exactly what happened….”
At page 79 of the record, he also stated that he was aware of the duplicated transfer of funds to Mr. Krastev and the overdrawing on the account of AEAM. That after these 2 incidents, when Inspectors went to the Jos office of the respondent
“I was asked to write a report on what I knew of the incidents…….I wrote the report on the 2 transactions….. in my handwriting…” It was admitted as Exhibit U.
From the above, the findings of the trial judge at page 166 of the record, that
“It is obvious that the plaintiff was given every opportunity to be heard”
and
“From these pieces of evidence, I am satisfied that the plaintiff received a fair hearing at the hands of the defendant” cannot be faulted at all. The appellant had indeed been accorded fair hearing.
Counsel for the respondent is also quite in. order, when he submitted that at any rate, the respondent could dismiss the appellant “without observing the principles of natural justice” as enunciated in OLAREWAJU VS AFRIBANK (supra), meaning that he could be dismissed without being heard.
Exhibit S is said to have exonerated the appellant from the issue of duplicated transfer to Mr. Krastev but that the trial court failed to make good use of it to the advantage of the appellant, and that this has occasioned gross miscarriage of justice.
The claim before the trial court, was for wrongful dismissal. It was not the province of the trial court, to find fault with the result of the investigations carried out by the respondent. Therefore, the issue of exonerating the appellant from having a hand in the duplicated transfers did not at all arise. In that vein therefore, Exhibit S would not have added any value to the substance of the action as to whether the respondent could summarily dismiss the appellant or not and whether reasons had to be given for the dismissal and for the appellant to be heard in his defence. The so called failure to give due effect to Exhibit S therefore, could never constitute a gross miscarriage of justice. At any rate, even if. Exhibit S had been utilized and the appellant exonerated, it is only in respect of the duplicated transfer. The issue of failure to debit the account of AEAM with the withdrawn funds, is serious negligence leading to losses on the part of the respondent bank, which constituted gross misconduct, leading to the summary dismissal.
On Exhibit Z -24, I agree with the submissions of learned senior counsel for the respondent, that there are three main criteria governing admissibility of a document in evidence-
(1) Whether the facts relating to the document have been pleaded
(2) Whether it is relevant and
(3) Whether it is admissible in law
DUNIYA VS JIMOH (1994) 3 NWLR (Pt 334) 609 at 617 OKONJI VS NJOKANMA (1999) 14 NWLR (Pt 638) 250 at 266.
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 KATO VS DAEWOO (1985) 2 NWLR (Pt 511) 116.
Although DW1 was not the maker of the documents, she was a Manager of the respondent bank at the time, and was as such, a servant of the bank who could validly tender documents and give evidence on behalf of the bank. Again, the documents were reports and memoranda produced by officers of the bank, who investigated the wrong-doings of the appellant. They were purely for the purposes of the internal workings of the respondent bank, and cannot be said to be public documents requiring stamping or sealing. Section 111 (1) of the Evidence Act is therefore not applicable. The documents are not contracts to require them to be sealed. The documents were therefore properly admitted in evidence.
Even, if Exhibits Z – Z4 were wrongly admitted, and are to be expunged or discountenanced, that would still not affect the outcome of the case. This is because there is the viva voce evidence of DW1 which blamed the appellant for duplicated transfer of funds to Krastev account and for failure to debit the AEAM account with the amount withdrawn. These amount to gross misconduct and whether the appellant was heard or not, could be summarily dismissed, especially when it is borne in mind, that the letter of summary dismissal, did not, nor was it necessary to, give reasons. Issue No. 5 is thus resolved against the appellant.
Consequently, I find no merit in this appeal and it is dismissed. The decision of the trial court dated the 1st day of June 2000 dismissing the claim of the appellant in its entirety, is hereby affirmed.
N30,000 costs to the respondent.
ZAINAB A. BULKACHUWA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Yahaya J.C.A. All issues raised in the appeal had been admirably addressed.
The findings of the lower’ court based on the facts before it, cannot be faulted and this is a situation where an appellate court cannot interfere with the said findings. See Ajuwa Vs. Odili 1985 2 NWLR (Part 9) 710; Bunge Vs. Gov. Rivers State 2006 12 NWLR Part 995 573; Popoola Vs. Balogun 2007 8 NWLR Part 1037 574; Ajayi Vs. S.E.C. 2009 13 NWLR (Part 1157) 2009.
In the circumstances, I find no merit in the appeal and accordingly dismiss it. Cost of N30,000.00 to the respondent against the appellant.
UZO NDUKWE-ANYANWU, J.C.A.: I have had the privilege of reading in draft form, the judgment just delivered by my learned brother Yahaya JCA. I agree with his reasoning and conclusions.
There is no merit in this appeal and it is dismissed. I abide by all the consequential orders in the lead judgment and that on costs too.
Appearances
A.T. Kehinde with A.I. ZellaFor Appellant
AND
G.Ofodile SAN, with R.O. SomadeFor Respondent
