FIRST BANK OF NIGERIA PLC v. MR. EFOBI EFFIONG BAM
(2010)LCN/4076(CA)
RATIO
EVALUATION OF EVIDENCE : WHETHER THE EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE ARE PRIMARILY WITHIN THE DOMAIN OF THE TRIAL COURT THAT HAD THE OPPORTUNITY OF HEARING THE WITNESSES AND OBSERVING DEMEANOUR
It is beyond contention that the evaluation of evidence and the ascription of probative value to such evidence are primarily within the domain of the trial court that had the opportunity of hearing the witness (es) and observing demeanour, and the appellate court will not ordinarily interfere with the findings of the trial court on that evidence. Where the trial court however did not utilize the opportunity available to it and has drawn erroneous inferences that occasioned a miscarriage of justice, the appellate court owes a duty to properly evaluate such evidence and make the findings that will correct the injustice. See Nnoridim vs. Ezeani (2001) 2 SC 145; Adeleke vs. Iyanda (2001) 6 SC 18; Ebba vs. Ogodo (200b) FWLR (Pt. 27) 2094; Mafimisebi vs. Ehuwa (2007) All FWLR (Pt. 328) 676; Fagbenro vs. Arobadi (2006) All FWLR (Pt. 310) 1575; Bunge vs. Gov. Rivers State (2006) All FWLR (Pt. 325) 1. The Court of Appeal undoubtedly possesses this power under Section 15 of Court of Appeal Act, 2004. PER ISAIAH OLUFEMI AKEJU, J.C.A.
UNCHALLENGED EVIDENCE: POSITION OF THE LAW WHERE EVIDENCE OF A PARTY REMAINS UNCHALLENGED OR NOT CONTRADICTED
It is trite law as stated by the learned trial judge that where evidence of a party remains unchallenged or not contradicted, minimum evidence will suffice. See Bua vs. Dada (2003) NWLR (Pt. 838) 657; Provost Lacoed vs. Edun (200a) 6 NWLR (Pt. 8701 476. PER ISAIAH OLUFEMI AKEJU, J.C.A.
UNCHALLENGED EVIDENCE : WHAT THE COURT MUST BE SATISFIED WITH BEFORE IT CAN ACT ON AN UNCHALLENGED EVIDENCE
This principle of unchallenged evidence however does not create a floodgate for every type of evidence. To qualify for belief and reliance by a trial court, such unchallenged evidence must be credible in all circumstances and must be cogent enough to sustain the claim of the plaintiff. On this principle of unchallenged evidence, the Supreme Court stated in Baba vs. Civil Aviation (1991) (Pt.1) 7 SCNJ 1, per Nnaemeka Agu JSC at page 22 that “……Based on this principle, whenever on an issue evidence comes from one side and this is unchallenged and uncontroverted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal I should have believed it…….” (underlining and emphasis by me). It follows that unlike a football contest in which a team gets maximum point by walking over the opposing team that fails to appear in the contest, the plaintiff in an action must present evidence of such quality that will sustain the claim as disclosed in his pleadings even in the absence of the defendant. The rule of evidence is that it is he who asserts the existence of a fact or facts that must prove that which he asserts. Sections 135, 136 and 137 Evidence Cap. E 14, Laws of Federation of Nigeria, 2004 have elaborately set down the respective burden on the parties to a civil action. For purpose of clarity I reproduce those sections as follows: “135(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 137(1) In civil cases the burden of first proving the existence or nonexistence of a fact lies on the party against who the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise from the pleadings.” These sections of the Evidence Act make it imperative that the plaintiff who asserts facts must first show by credible evidence that they exist before relying on unchallenged evidence or the principle of balance of probability under section 137 (2) of the Evidence Act. Agu vs. Anadi (2002) 18 NWLR (pt. 298) 103; Ewo vs. Ani (2004) 3 NWLR (pt. 861) 610; Sanusi vs. Ameyogun (1992) 2 NWLR (pt.237) 527; Umeoji vs. Ezenamuo (1990) 1 NWLR (pt.126) 253; Jack vs. Whyte (2001) 3 SC 121; Adedeji vs. Oloso (20o7) All FWLR (pt.356) 610 Nwavu vs. Okoye (2009) All FWLR (Pt. 451) 815. PER ISAIAH OLUFEMI AKEJU, J.C.A.
WRONGFUL DISMISSAL: BURDEN IMPOSED ON A PARTY CLAIMING THAT HE WAS WRONGFULLLY DISMISSED FROM HIS EMPLOYMENT
In the instant case the respondent’s claim before the lower court centered on wrongful dismissal which in effect means that the Respondent was asserting that in the circumstance of his employment his dismissal was wrongful in that it was not in tandem with the terms and conditions of his employment with the appellant. The respondent had a burden to establish beyond equivocation not only the existence of that employment but also the conditions and terms thereof before he could get judgment on the rule of unchallenged evidence. See: Olanlege vs. Afro continental (Nig) Ltd. (1996) 7 NWLR (Pt. 458) 29; Morohunfotu vs. Kwara Tech. (1990) 4 NWLR (Pt. 145) 506. PER ISAIAH OLUFEMI AKEJU, J.C.A.
EMPLOYMENT WITH STATUTORY FLAVOUR: WHEN CAN AN EMPLOYMENT WITH STATUTORY FLAVOR ARISE
The evidence of the respondent did not show that his employment had statutory flavour which only arises where the procedure for the employment of the servant and his removal there from are governed by statute. see: Imoroame vs. WAEC (1992) 9 NWLR (pt. 265) 303; Olaniyan vs. University of Lagos (1985) 2 NWLR (pt. 9) 599; Olufeagba vs. Abdur Raheem (2010) All FWLR (pt. 512) 1033. PER ISAIAH OLUFEMI AKEJU, J.C.A.
MASTER/SERVANT RELATIONSHIP: WHETHER AN EMPLOYER CAN FIRE AT ANYTIME WITH OR WITHOUT ANY REASON
The respondent was at best an employee of the Appellant under a master/servant relationship and one striking feature of this relationship is that the employer who has the right to hire also has the might to fire at anytime with or without any reason, where the action of the employer is wrongful, the remedy of the employee lies in appropriate damages and not reinstatement; Isheno vs. Jutius Berger (Nig.) plc (2008) All FWLR (pt.415) 1632; Isievwore vs. NWPA (2002) 13 NWLR (pt. 784) 417. The underlying principle is that the employment has been determined by the master and the court does not make a practice of imposing or foisting an employee on an unwilling employer. Ziideeh vs. Rivers state civil Service Commission (2007) All FWLR (pt. 360) 1480. PER ISAIAH OLUFEMI AKEJU, J.C.A.
WHETHER A COURT CAN ORDER REINSTATEMENT OF AN EMPLOYEE WHOSE CONDUCT HAS BEEN DETRIMENTAL TO THE INTEREST OF HIS EMPLOYER
The law is trite that a court will not order reinstatement of an employee whose conduct has been detrimental to the interest of his employer. see Ajayi vs. Texaco Ltd (1987) 3 NWLR (pt.62) 577. PER ISAIAH OLUFEMI AKEJU, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 5th day of November, 2010
CA/C/30/2010
JUSTICES
JAFARU MIKAILU Justice of The Court of Appeal of Nigeria
MASSOUD A. OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
FIRST BANK OF NIGERIA PLC – Appellant(s)
AND
MR. EFOBI EFFIONG BAM – Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment) The appellant in this appeal was the defendant in Suit No. HT/20/2007 commenced by the respondent at the Ikot Ekpene Division of the High Court of Akwa Ibom State, for the following reliefs as endorsed on the writ of summons filed on 27th April, 2007 and averred in paragraph 24 of the Statement of Claim filed on the same date:
“1. Claims N20,000.00, (Twenty Million Naira) being general damages for wrongful dismissal,
2. Reinstatement to the service of the defendant and payment of his basis (sic) salary of N209,000 per annum and other entitlements form the 18th of May, 2004, to the date of judgment.
3. In the alternative, entitled to be promoted to the next step retired with full benefits of N8,000.00 (Eight Million Naira) in view of his commendable track record and years of service in the defendant bank.”
The appellant did not file any defence and did not appear at the hearing of the suit. The learned trial judge after listening to the Respondent as the only witness, gave judgment on 27th November, 2008 in his favour and ordered the Appellant to:
“1. Reinstate the plaintiff in his status of Manager as at 18th May, 2004 when he was dismissed.
2. Pay him his salaries and allowance and other entitlement from May, 2004.
3. Grant him all promotions due.
4. Pay the plaintiff N3,000 (Three Thousand Naira) cost.”
Dissatisfied with the judgment and orders of the lower court, the appellant has appealed to this court on four grounds.
Learned counsel to the Appellant, E.O.E. Ekong Esq. formulated three issues in his Brief of Argument as distilled from the grounds of appeal:
(i) whether having regard to the peculiar facts of this case, the learned trial Judge was right when he ordered the reinstatement of the Respondent to his status as Manager in the appellant’s employment as at 18th May, 2004 when he was dismissed.
(ii) Whether having regard to the peculiar facts of this case the learned trial judge was right when he ordered the Appellant to pay the Respondent’s “salaries and allowances and other entitlement from May, 2004.”
(iii) Whether the Judgment of the Lower Court delivered on 27th November, 2008 demonstrates in full a dispassionate consideration of all issues of fact and law arising in the substantive suit leading to the present Appeal.
On issue (1), the learned counsel argued that the learned trial judge was wrong to have ordered the reinstatement of the respondent to the position of Manager which he occupied as at 18th May, 2004 when he was dismissed. Appellant’s counsel contended that the respondent did not tender the contract of employment or terms he had with the bank and so no credible evidence existed to show that the respondent was entitled to reinstatement. The learned counsel submitted also that in law, the relief of reinstatement in master and servant case is available only to employee who by the terms of their contract of employment can establish circumstances showing that they are entitled to be reinstated. According to the learned counsel the respondent did not give evidence that warranted the order of the lower court reinstating him. He cited Okocha vs. Civil Service Commission, Edo State (2004) FWLR (Pt. 190) 1304 at 1307; Nigeria Telecommunications Plc vs. Emmanuel Awala (2004) 1 NLLR 82 at 87.
On issue No. 2, the learned counsel contended that the Court below was wrong in law when it ordered the appellant to pay to the respondent all his salaries and allowances as well as other entitlements. The basis for this contention was that the respondent did not place any credible evidence before the court to entitle him to such relief as the respondent did not produce any contract of employment with the appellant from were the court could have ascertained the terms and conditions of that employment.
The learned counsel submitted also that the evidence of the Respondent on the issue of his salary varied with the facts pleaded thereon in the statement of claim wherein he had put his salary at N209,000 while he produced exhibit 2 during his oral testimony and the salary was N165,000, a contradiction the learned trial judge failed to resolve but made an order for payment of salary without any specific figure. On issue No. 3, appellant’s counsel argued that the learned trial judge did not dispassionately consider all the issues that arose in the suit by failing to review and evaluate the documentary evidence tendered in support of the respondent’s claim. He contended that the order reinstating the respondent was not in line with the law as in decisions of Supreme Court of Nigeria on that relief as the respondent showed no special circumstances that entitled him to relief of reinstatement while the findings of the lower court were perverse and based on legally inadmissible evidence. He submitted that the other or further reliefs granted by the learned trial judge were unlawful. He cited the cases Trade Bank Plc vs. K. B. Chami (2004) FWLR (Pt.235) Page 118 at 123-124; Stephen Okedion & Ors vs. Federal Airport Authority of Nigeria & Another (2008).
The learned counsel submitted that after granting the respondent’s principal relief for reinstatement, the lower court was in error by making an order directing the appellant to “grant him all promotions due.” He cited Trade Bank Plc vs. K. B. Chami 2004 ALL FWLR (Pt. 235) Page 118; Stephen Okedion & ors vs. Federal Airports Authority of Nigeria & Anor; Aji vs. Chad Basin Development Authority (2004) All FWLR (Pt.237) Page 424.
Appellant’s counsel concluded by urging Court to allow this appeal and set aside the decision of the trial court.
Learned counsel to the respondent N. T. Ojong Esq., in his own Respondent’s Brief set down two issues for determination as follows:
(1) Whether the learned trial judge was right in law to have declared respondent’s dismissal wrongful.
(2) Whether the learned trial judge was right in law to have made the consequential and ancillary orders.
On the first issue, the learned counsel argued that the judgment of the lower court was right since there was no evidence on the other side of the imaginary judicial scale and the court was left with no option than to enter judgment in favour of the respondent. He submitted that the courts have a duty to accept unchallenged evidence when such evidence is clear and credible. He cited Zenecca Ltd vs. Jammal R. Ltd (2008) 21 WRN 157; Abdul vs. Fegbohum (2005) 17 WRN 131.
According to respondent counsel the learned trial judge found the evidence of the respondent (as plaintiff) credible and granted the claim. He submitted that the respondent who was investigated and faced a disciplinary committee was not accorded a fair hearing and the respondent’s right to fair hearing was breached when the auditors did not inform appellant of the recovery of money. He cited Olufeagba vs. Abdul Racheem (2010) 17 WRN 23 at 36; Olaniyan vs. Unilag (2004) 15 WRN 44; Busari vs. Edo State Civil Service Commission (1999) 4 NWLR (pt. 599) 365; Eperokun vs. Unilag (2004) 16 WRN 90; Efobi vs. Ikeji (2010) 10 WRN 137; Nwosu vs. Odulaja (1990) 1 NWLR (pt.125) 188; Jonpal Ltd. vs. Afribank (Nig) Ltd. (2003) 1 NWLR (pt.822)290.
In the remaining part of his argument on issue number one, the learned counsel stated thus at page 4 of the Respondent’s Brief of Argument:
“My Lords we admit that the General position at common law which is applicable in Nigeria is that an employer is at liberty to terminate the appointment of a servant for good or bad reason or for no reason at all. See Gateway Bank (Nig) Ltd. vs. Abosede (2001) FWLR (Pt.79) 1316 at 1321.
Furthermore that a court will not foist a servant on an unwilling master and vice versa. See Opuo vs. NNPC (2002) FWLR 11 at 17; Seatrucks (Nig) Ltd. vs. Pyne (1996 ) 6 NWLR (pt. 607) 514.
However, in order to check probable cases of abuse likely to occur from the wide powers of employers at common law, each case should be considered on its peculiar facts, circumstances and merit. It is when the facts and circumstances are in paria materia that the ratio decidendi of one could be applied to the other. See Mobil prod (Nig) Unltd. v. Udo (2008) 3WRN 53 at 66 per Omokri (JCA). In this case the respondent has been informed of the reason for his suspension, and made to face a disciplinary committee without fair hearing. I submit that this case is an exception to the strict common law position in view of the respondent’s credible evidence of his commendable tract record of his service which earned him laurels. In his testimony he said he worked for 17 years without a query. I submit that the learned trial judge was right to find in favour of the respondent ….”
On issue number 2, the respondent’s counsel submitted that in the absence of a written contract of employment, principles of common law applicable in Nigeria apply to this case, moreso that the respondent’s employment with the appellant bank was without statutory flavour. He submitted that the terms and conditions of employment are usually in or implied into the contract by common law and custom while the nature of employment generally affects the terms of the contract of employment. He cited Bernard Ojafe Longe vs. First Bank (Nig) Plc (2010) 6 NWLR (sic).
According to the learned counsel the nature of the respondent’s employment could be ascertained from exhibits 1 and 2 tendered at the trial being letters of transfer and promotion and therefore the learned trial judge was right to have made the consequential orders.
In his argument on damages, the learned counsel cited Osisanya vs. Afribank 29 CSCQR 282 at 284; International Drilling Co (Nig) Ltd. vs. Moses Eyeimofe Ajijala (1976) 2 SC 64 at 73-74; Western Nig. Dev. Corp. vs. Jimost Abimbola (1966) NMLR 381 at 382; Nigeria Produce Marketing Board vs. A. E. Adewunmi (1972) 2 ALL NLR 433 at 437 and submitted that continuity of employment must mean up to retirement and therefore all the orders made by the learned trial judge were valid in law having declared the dismissal null and void. He stated that the orders of the trial court amounted to orders on damages which that court had the prerogative to make, citing Kwara State C. S. C. vs. Abiodun (1994) 13 KLG (Pt. 25) 163 at 183; Shitta Bey vs. Federal Civil Service Commission (1981) 1 sc 40; UBN (Nig.) LTD vs. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 669.
The learned counsel urged this court to, in exercise of its powers under Section 16 of the Court of Appeal Act grant the alternative reliefs sought by the respondent at the lower court, citing Adebayo vs. Shogo (2005) 10 WRN 152; Nneh vs. Chukwu (1996) NWLR (pt. 428) 263. The three issues set down by the appellant’s counsel relate to the failure of the learned trial judge to properly ascribe value to the evidence of the respondent and the propriety of the orders of the lower court in the judgment, while the two issues formulated by the learned counsel to the respondent also deal with the findings of the lower court and the orders of that court consequent upon the judgment. It is therefore convenient for me to treat this appeal on the basis of the following two issues as formulated by the learned counsel to respondent as follows:
(1) Whether the trial judge was right to have declared the respondent’s dismissal wrongful.
(2) Whether the learned trial judge was right to have made the order contained in that judgment.
In paragraph 1 of his Statement of Claim the Respondent averred that:
“(1) The plaintiff at all material time was an employee of the defendant. His first appointment was as TRAINEE supervisor vide a letter of 30th April, 1997 to take effect from 4th day of May, 1997.
The said letter of appointment is hereby pleaded and shall be relied upon at the trial.”
The respondent failed to tender that letter of appointment at the trial while he also failed to plead any fact relating to the terms and/or conditions of his employment with the appellant, and so he did not give any evidence concerning those conditions. What the respondent tendered at the lower court were letters written to him by the appellant relating to his transfer, commendation, promotion, audit query and eventual summary dismissal which were Exhibits 1,2,3, 4, 5,6 and 8.
The testimony of the respondent is recorded on pages 12-14 and 16-17 of the Record of Proceedings, and in respect of his employment, he said “I know the Defendant. The defendant is my employer. I was trained for one year mandatory induction. I was then deployed to work in advance/Credit department of the defendant at Calabar branch. Having worked for more than one
year, I was confirmed a permanent member of staff.”
The remaining evidence was on the duties the respondent carried out and the events that led to his summary dismissal.
On the reliefs he was seeking in his claim, the respondent testified on this at page 14; that,
“I pray the Court to reinstate me in the services of the defendant. I pray the Court to order the defendant to pay me my salaries and allowances. I also prayed for Thirty Million Naira damages for wrongful dismissal. The salaries I pray for covers from May 2004 till judgment.”
In the brief judgment of the lower court on page 142 and half of page
143, of the Records, the learned trial judge found as follows:
“Since the defendant chose not to defend this action, I have no alternative evidence to weigh on the imaginary judicial scale. Since I find the plaintiff’s evidence credible, I hereby find for the plaintiff.”
From the evidence of the respondent and the findings of the lower court, the following can easily be made out.
(1) The respondent (as plaintiff) did not, by pleadings and evidence place the materials before the court from which the existence of his employment with the appellant and/or the terms and conditions of that employment could be ascertained.
(2) Exhibits 1,2,3,4,5, 6 and 8 tendered by the respondent being letters of transfer, promotion, commendation, and his eventual dismissal only present an inference that the respondent was at best an employee of the appellant under a contract of service of master and servant relationship without more.
(3) The employment of the respondent was not under any statute or was devoid of what is commonly referred to as statutory flavour and was not controlled or governed by any special condition.
(4) While the respondent asked for general damages of N20 Million in his pleadings, he asked for “Thirty Million Naira” in his viva voce evidence.
(5) The respondent put his annual basic salary at N209,000 in his pleadings but did not mention any amount in his testimony, while exhibit 2 tendered by him stated his annual basic salary as N165,000 though with some other allowances.
(6) The respondent did not, either in his claim or in his evidence ask to be reinstated specifically as Manager.
In spite of the above pitfalls that emerged from the pleadings and the evidence of the respondent, the learned trial judge still found the respondent’s evidence to be credible enough to warrant the orders for reinstatement and other orders of that court just because the evidence of the respondent was unchallenged.
It is beyond contention that the evaluation of evidence and the ascription of probative value to such evidence are primarily within the domain of the trial court that had the opportunity of hearing the witness (es) and observing demeanour, and the appellate court will not ordinarily interfere with the findings of the trial court on that evidence. Where the trial court however did not utilize the opportunity available to it and has drawn erroneous inferences that occasioned a miscarriage of justice, the appellate court owes a duty to properly evaluate such evidence and make the findings that will correct the injustice. See Nnoridim vs. Ezeani (2001) 2 SC 145; Adeleke vs. Iyanda (2001) 6 SC 18; Ebba vs. Ogodo (200b) FWLR (Pt. 27) 2094; Mafimisebi vs. Ehuwa (2007) All FWLR (Pt. 328) 676; Fagbenro vs. Arobadi (2006) All FWLR (Pt. 310) 1575; Bunge vs. Gov. Rivers State (2006) All FWLR (Pt. 325) 1. The Court of Appeal undoubtedly possesses this power under Section 15 of Court of Appeal Act, 2004.
It is trite law as stated by the learned trial judge that where evidence of a party remains unchallenged or not contradicted, minimum evidence will suffice. See Bua vs. Dada (2003) NWLR (Pt. 838) 657; Provost Lacoed vs. Edun (200a) 6 NWLR (Pt. 8701 476. This principle of unchallenged evidence however does not create a floodgate for every type of evidence.
To qualify for belief and reliance by a trial court, such unchallenged evidence must be credible in all circumstances and must be cogent enough to sustain the claim of the plaintiff. On this principle of unchallenged evidence, the Supreme Court stated in Baba vs. Civil Aviation (1991) (Pt.1) 7 SCNJ 1, per Nnaemeka Agu JSC at page 22 that “……Based on this principle, whenever on an issue evidence comes from one side and this is unchallenged and uncontroverted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal I should have believed it…….”
(underlining and emphasis by me).
It follows that unlike a football contest in which a team gets maximum point by walking over the opposing team that fails to appear in the contest, the plaintiff in an action must present evidence of such quality that will sustain the claim as disclosed in his pleadings even in the absence of the defendant. The rule of evidence is that it is he who asserts the existence of a fact or facts that must prove that which he asserts.
Sections 135, 136 and 137 Evidence Cap. E 14, Laws of Federation of Nigeria, 2004 have elaborately set down the respective burden on the parties to a civil action. For purpose of clarity I reproduce those sections as follows:
“135(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1) In civil cases the burden of first proving the existence or nonexistence of a fact lies on the party against who the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise from the pleadings.”
These sections of the Evidence Act make it imperative that the plaintiff who asserts facts must first show by credible evidence that they exist before relying on unchallenged evidence or the principle of balance of probability under section 137 (2) of the Evidence Act. Agu vs. Anadi (2002) 18 NWLR (pt. 298) 103; Ewo vs. Ani (2004) 3 NWLR (pt. 861) 610; Sanusi vs. Ameyogun (1992) 2 NWLR (pt.237) 527; Umeoji vs. Ezenamuo (1990) 1 NWLR (pt.126) 253; Jack vs. Whyte (2001) 3 SC 121; Adedeji vs. Oloso (20o7) All FWLR (pt.356) 610 Nwavu vs. Okoye (2009) All FWLR (Pt. 451) 815.
In the instant case the respondent’s claim before the lower court centered on wrongful dismissal which in effect means that the Respondent was asserting that in the circumstance of his employment his dismissal was wrongful in that it was not in tandem with the terms and conditions of his employment with the appellant. The respondent had a burden to establish beyond equivocation not only the existence of that employment but also the conditions and terms thereof before he could get judgment on the rule of unchallenged evidence. See: Olanlege vs. Afro continental (Nig) Ltd. (1996) 7 NWLR (Pt. 458) 29; Morohunfotu vs. Kwara Tech. (1990) 4 NWLR (Pt. 145) 506. The respondent failed to fulfill this burden.
Since the respondent failed to plead and adduce material evidence in support of his claim the trial court ought to have found against him.
Consequently, I resolve issue No. 1 in favour of the appellant.
Now to the second issue.
The orders of the learned trial court are clear. The appellant was ordered to:
a. Reinstate the plaintiff in his status of Manager as at 18th May, 2004 when he was dismissed.
b. Pay him his salaries and allowances and other entitlement from May, 2004.
c. Grant him all promotions due.
d. Pay the plaintiff N3,000.00 (Three Thousand Naira) cost.
The evidence of the respondent did not show that his employment had statutory flavour which only arises where the procedure for the employment of the servant and his removal there from are governed by statute. see: Imoroame vs. WAEC (1992) 9 NWLR (pt. 265) 303; Olaniyan vs. University of Lagos (1985) 2 NWLR (pt. 9) 599; Olufeagba vs. Abdur Raheem (2010) All FWLR (pt. 512) 1033.
The respondent was at best an employee of the Appellant under a master/servant relationship and one striking feature of this relationship is that the employer who has the right to hire also has the might to fire at anytime with or without any reason, where the action of the employer is wrongful, the remedy of the employee lies in appropriate damages and not reinstatement; Isheno vs. Jutius Berger (Nig.) plc (2008) All FWLR (pt.415) 1632; Isievwore vs. NWPA (2002) 13 NWLR (pt. 784) 417. The underlying principle is that the employment has been determined by the master and the court does not make a practice of imposing or foisting an employee on an unwilling employer. Ziideeh vs. Rivers state civil Service Commission (2007) All FWLR (pt. 360) 1480.
In the instant case, the respondent stated the reason for his dismissal by the appellant’ In paragraphs 14, 15 and 16 of his statement of claim, the respondent stated that he “bent the banking rules but not break bank” by giving overdraft facilities amounting to N352,000 under a wrong procedure, which the appellant found intolerable and issued him a query and placed him on suspension pending further investigation and final determination of the case. After the investigation, the respondent was summarily dismissed. The law is trite that a court will not order reinstatement of an employee whose conduct has been detrimental to the interest of his employer. see Ajayi vs. Texaco Ltd (1987) 3 NWLR (pt.62) 577.
There is no doubt in my mind that the findings of the learned trial judge are perverse while the orders are wrongful. There has been a miscarriage of justice which this court must correct by reversing those findings and orders which I accordingly reverse. I resolve issue No. 2 also in appellants’ favour.
In conclusion this appeal is allowed. The judgment of the learned trial judge dated 27th November, 2008 is set aside. I award cost of N25,000 in favour of the appellant.
JAFARU MIKA’ILU, J.C.A.: I agree.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had a preview of the leading Judgment just delivered by my learned brother, Akeju, JCA and I entirely agree with the reasoning and conclusion reflected in it, that the appeal has merit and deserves to succeed.
I adopt the leading judgment as mine and consequentially set aside the trial Court’s judgment herein and replace the same with an order for dismissal of the plaintiff/respondent’s case. I also abide by the order regarding costs made in the said leading judgment.
Appearances
E. O. E. Ekong Esq.For Appellant
AND
N. T. Ojong Esq.For Respondent
