ANDREW VENN v. ACCESS BANK PLC & ORS (2014)

ANDREW VENN v. ACCESS BANK PLC & ORS

(2014)LCN/7578(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of December, 2014

CA/L/134/2012

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; BURDEN AND STANDARD OF PROOF IN CRIMINAL AND CIVIL CASES AND THE BURDEN OF PROVING FRAUD

However for the purpose of answering Issue I, it is the law that any allegation of crime requires proof beyond reasonable doubt See Section 135(1) of the Evidence Act 2011. OGUNDIYAN VS THE STATE (1991) 4 SCNJ 44 (1991) 3 NWLR (PT.181) 519; ALONGE VS I.G.P. (1959) 4 SC NLR 516, YONGO VS C.O.P (1992) 4 SCNJ 113; WILLIAMS VS STATE (1992) 10 SCNJ 74; BABATUNDE VS BANK OF THE NORTH (2011) LPELR (8249) SC.

Though in civil cases, the standard of proof is taken as satisfied upon a balance of probabilities or what is often referred to as Preponderance of evidence, it is to the contrary where there is an allegation of crime even in a civil proceedings. The burden of proving the alleged crime which in this case is fraud now inhers in the party who is the accuser to do so beyond reasonable doubt. See EFFIOM VS CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (2010) 14 NWLR (PT.213) 106; KOIKI VS MAGNUSON (1999) 8 NWLR (PT.615) 492; IKOKU VS OLI (1962) 1 ALL NLR 195, NWOBODO VS ONOH (1984) 1 SCNLR 1, per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE CONCEPT OF FAIR HEARING AND THE TWIN PRINCIPLE OF NATURAL JUSTICE

For the purpose of securing justice, the right to fair hearing is quite germane. Under the common law the concept of fair hearing is hinged on the twin principle of natural justice, namely, (a) Audi alterem partem and (b) Nemo judex in causa sua. The first principle connotes that parties to a dispute must both be heard by the arbiter. The second principle requires that a man cannot be a judge in his own cause but must be free from bias or even livelihood of bias. Both principle guarantees that a party to a dispute must be given a fair hearing. The universality and antiquity of the concept of fair hearing was emphasized by the Supreme Court per Karibi Whyte JSC in ADENIYI VS GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT.300) 526 wherein his lordship noted that:- “They are universal principles of ancient origin and common to mankind. They were recognized by the ancient Greeks and Romans, enshrined in the Holy Bible, and recognized as part of our indigenous and other African culture and philosophy of justice. It is, indeed as asserted by Coke, a principle of divine justice.” The right to fair hearing is also a constitutional right carefully enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. However, the burden is on the party who alleges a breach of fair hearing in a case to prove the breach based on the facts of the case. This is premised on the fact that the peculiar facts of a case determines acts which constitute non-compliance with the principle of fair hearing. See MAIKYO VS ITODO (2007) 7 NWLR (PT. 1034) 443. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LABOUR LAW: MISCONDUCT BORDERING ON CRIMINALITY; WHAT IS REQUIRED OF AN EMPLOYER IN CASE OF MISCONDUCT BORDERING OF CRIMINALITY

In the case of ARINZE VS FIRST BANK OF NIGERIA LTD (2004) 12 NWLR (Pt.888) 663. It was held by the Supreme Court that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. See also OLATUBOSUN VS NISER (1988) 3 NWLR (PT.80) 25 and YUSUF VS UNION BANK OF NIGERIA LTD (1996) 6 NWLR (PT.457) 632. Or (1996) SCNJ 201 at 241 – 215 where the Apex Court per Wali JSC pointed out that

“It is not necessary, nor is it a requirement under Section 33 of the 1979 constitution that before an employer summarily dismisses 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 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 the 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 complaint as formulated conveys to him the nature of the accusation against him.” See also NWOBI VS ACB LTD (1995) 6 NWLR (PT 404) 658 and NATIONAL JUDICIAL COUNCIL VS SENLONG (2010) LPELR (4582) CA. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: BIAS; THE MEANING OF BIAS

Bias has been held to mean generally, that instinct which causes the mind to incline towards a particular object or course. See WOMILOJU VS ANIBIRE (2010) 42 NSCQR (PT.2) 878. The test is objective and not subjective. That is, what right minded persons who are aware of the circumstances of facts of the case would say. See AKOH VS ABUH (1988) 3 NWLR (PT 85) 696. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: NOTICE TO PROCEDURE; THE ESSENCE OF NOTICE TO PRODUCE

In the first place a notice to produce is a formal demand on the adverse party to bring before the court for the use of the requesting party such document or documents listed in said notice. Where a notice to produce is served on a party who fails to produce same, then the law allows secondary evidence of such document to be adduced where available. In other words, the purpose of issuing notice to produce is to allow the person who gives the notice to tender secondary evidence of the required documents where the adverse party fails to produce them. BUHARI VS OBASANJO (2005) 13 NWLR (PT.941) 1, AJAGBE VS BABALOLA (2010) LPELR (3668) CA; ADEGBUJI VS MUSTAPHA (2010) LPELR (3600) CA; UNION BANK OF NIGERIA LTD VS IDRIS (1999) 7 NWLR (PT 609) GBADAMOSI VS KABO TRAVELS LTD (2000) 8 NWLR (PT 668) 243, 105. In AINOKO VS YUNUSA (2008) LPELR (3663) CA. This court relying on the above cited authorities held inter alia that:- “The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 98 of the Evidence Act. In other words, the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents. Consequently the non-response to a notice to produce will not cause the court to invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act against the defaulting party.” See also CHUKWUKA VS NDUKA (2008) LPELR (3985) CA. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

TORT: TORT OF DEFAMATION; WHAT THE PLAINTIFF WHO CLAIMS THAT AN ARTICLE IS LIBELOUS OF HIM MUST REPRODUCE

The law requires a party alleging libel to clearly state the exact words or underline the portion of the material he considers defamatory of him in his pleadings. See OJEME VS MOMODU (1994) NWLR (PT.323) 685. In GUARDIAN NEWSPAPERS LTD VS AJEH (2011) 10 NWLR (PT 1256) 574 at 588, the Supreme Court held that:- “In cases of libel, pleadings are of tremendous importance, and so the Plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of in his pleadings. No matter how long the article is, it must be produced. See DDGA Pharmaceuticals Ltd vs. Times Newspaper Ltd. (1973) 1 QB P.21 relied on by this court in OKAFOR VS. IKEANYI 7 ORS. (1979) 12 NSCC P.43 (1979) 3-4 SC 99.” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: JUDGMENT; WHAT THE COURT MUST ASCERTAIN WHEN REVIEWING A JUDGMENT OF THE LOWER COURT IS CHALLENGED ON THE BASIS AGAINST THE WEIGHT OF EVIDENCE

Where a judgment of the lower court is challenged on the basis of being against the weight of evidence, it behoves the Appellate court to review the judgment to ascertain the following:-

(1) The evidence before the trial court.

(21 Whether the trial court accepted or rejected any evidence upon the correct perception.

(3) Whether it correctly approached the assessment of the value on it.

(4) Whether it used the imaginary scale of justice to weigh the evidence on either side.

(5) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regards to the burden of proof. See AGBONIFO VS AIWEREOBA (1988) 1 NWLR (PT.70) 325; MISR (NIG) LTD VS IBRAHIM (1975) 5 SC 55. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

ANDREW VENN – Appellant(s)

AND

1. ACCESS BANK PLC

2. MRS. IJEOMA IRABOR

3. MRS. VIVIAN CHINOYELUM

4. MR. ABEL OSUJI – Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.(Delivering the Leading Judgment): The Claimant in the lower court (now Appellant) had by a writ of summons and statement of claim both dated 5-3-2007 claimed against the four defendants, (now Respondents) jointly and severally as follows:-

“103. WHEREOF the CLAIMANT claims against the Defendants jointly and severally as follows:

i. A declaration that the indefinite suspension of the Claimant by the 1st Defendant in August 2006 and the subsequent purported dismissal of the Claimant on 5th of October 2006 by the 1st Defendant were null and void and of no effect whatsoever.

ii. A declaration that the Claimant’s employment with the 1st Defendant ran and continues to run from the effective date of the purported dismissal being the 1st of October 2006.

iii. A declaration that the presence of the 4th Defendant on the Investigative Disciplinary Committee Panel set up to look at the allegation of fraud against the Claimant offended against a fundamental principle of natural justice and therefore unconstitutional, null and void.

iv. A declaration that the Claimant is entitled to withdraw his services voluntarily and with full pensionable benefits – inclusive of all entitlements and allowances from the employment of the 1st Defendant as currently applicable to the Claimant’s peers in the employ of the 1st Defendant.

v. An order of the Honourable Court compelling all the Defendants to severally tender an unreserved letter of apology to the Claimant for the defamatory and libelous publication that he was involved in a Western Union fraud.

vi. A Declaration that the letter of the 1st Defendant to the Chartered Institute of Bankers that the Claimant had been dismissed from its employment for his involvement in Western Union fraud was absolutely unwarranted and maliciously libelous of the Claimant.

vii. A mandatory order of the Honourable Court compelling the 1st Defendant to publish an unequivocal letter of apology to the Claimant in 3 widely circulated National Newspapers.

viii. A mandatory order of the Honourable Court compelling the 1st Defendant to formally withdraw its libelous letter against the Claimant written to the CHARTERED INSTITUTE OF BANKERS’ and the CENTRAL BANK OF NIGERIA – and the letter of withdrawal to be copied to the Claimant.

ix. Special damages assessed at N1,898,607.35

x. General damages of N30 Million for unlawful dismissal, malicious defamation, injured feelings, loss of reputation, and loss of prospects.

xi. Cost of the suit.”

The Respondents reacted by filing a joint statement of defence dated 3-5-2007. They subsequently filed an amended statement of defence and counterclaim dated 18-2-2010. Their counter claim was for:-

(a) The sum of N4,191,821,82 being the outstanding balance on the Claimant’s staff loan facility as at August 2006.

(b) Interest on the said sum of N4,191,821,82 at the rate of 21% from October 1st 2006 till judgment and thereafter at the rate of 6% fill liquidation of the indebtedness.”

The Appellant had earlier filed a reply to the joint statement of defence. It was dated 23-5-07 but did not file any reply to the amended statement of defence and counter claim neither was the existing reply amended.

The Appellant’s case was that he was employed by the 1st Respondent as senior Executive Assistant in 2001 and in 2005 he was appointed Branch Manager of the 1st Respondent’s branch office at No 71 Adeniran Ogunsanya Street, Surulere, Lagos. Where after sometime the 2nd and 3rd Respondents developed a hatred for him. On the 17/3/2006 a medical student of the University of Lagos who came to the branch to pay in some money into an account was accosted by a staff of the branch for being in possession of an already paid Western Union form which did not bear his name. The student stated that he actually picked up the form from a seat near him when he needed a piece of paper to do some jottings and that his mission in the bank was only to pay in some money into account No 0008288686210. This attracted some other members of the staff including the Appellant and the 2nd Respondent who invited the police on duty to arrest him. The student was searched and nothing was found on him and the Appellant advised that he should be allowed to go. He the Appellant was subsequently accused of aiding the student to escape and of being part of a syndicate of Western Union Fraudsters. He was eventually sent on indefinite suspension on that August 2006 and a disciplinary committee which includes the 4th Respondent who had all along been very hostile to him was set up to investigate the matter. Though he appeared before the committee, he was not given opportunity to cross-examine his accusers and at the end of the investigation he received a letter of dismissal in October 2006. His appeal to the Chief Executive of the 1st Respondent to revisit the case was ignored hence he filed the suit.

For the Respondents, the Appellant had in connivance with two other employees of the 1st Respondent participated in a fraudulent Western Union money transaction and also aided the escape of a major suspect. Also, that the Appellant is not a victim of witch hunt but rather of his own fraudulent activities against the interest of the 1st Respondent. He was afforded the opportunity to defend himself before the Disciplinary Committee who after due process recommended his dismissal along with two other employees. The Respondent’s also denied making any libelous publication.

Trial in the lower court commenced on 23-11-2009 at the conclusion of which parties filed and eventually adopted their respective written addresses.

In a judgment delivered on the 30-9-2011 the learned trial judge in finding against the Appellant held at page 412 of the Records as follows:-

“in summary I find that on a balance of probabilities and preponderance of evidence, the claimant has failed to prove claims(i)-(xi) of the writ of summons. Claimant has however proved that he is entitled to be paid by the 1st defendant the sum of N144,836,28k for August and September 2006 salaries. The defendants has failed to prove the counter claim for N4,191,821,92k.”

Apparently dissatisfied with the said judgment the Appellant filed a notice of appeal dated 28-12-2011 and it contains 12 grounds of appeal.

Briefs of argument were subsequently filed and served by the parties. The Appellant’s brief of argument is dated 4/3/2014 and filed on 11-4-14 but deemed properly filed on 25-9-2014. It was settled by Shakiru Omolaja Esq.

The Respondents’ brief of argument settled by Folabi Kuti Esq is dated 14-10-2014 but filed on 15-10-2014.

At the hearing of the appeal on 21-10-14 the parties duly adopted their respective briefs of argument.

In the Appellant’s brief of argument four issues were distilled for determination from the 12 grounds of appeal. They are:-

(1). Whether there was a Western Union Money Transfer Fraud at the Appellant’s bank on 17-08-2006 as alleged against the appellant.

(2). Whether the appellant was given fair hearing by the 1st Respondent’s Disciplinary committee in respect of the alleged Western Union Money Transfer Fraud of 17-08-2006.

(3). Whether in view of Exhibit J. i.e the letter of the Chartered Institute of Bankers to the Claimant Appellant, and the deliberate refusal of the 1st Defendant/Respondent to produce it’s letter to the Central Bank of Nigeria and the Chartered Institute of Bankers that the Appellant had been dismissed for fraud, after having been duly given notice to produce the letter at the trial, the Claimant/Appellant could still be validly held not to have proved libel against the Defendants/Respondents.

(4). Whether the entire judgment was not against the weight of evidence.”

In the Respondents’ brief of argument three issues were formulated for determination as follows:-

(1). Whether having regard to the facts led and evidence adduced at the lower court the learned trial judge was right in holding that the appellant was given a fair hearing by the 1st defendant?

(2). Whether from the state of pleadings and evidence, the learned trial judge could have correctly reached a decision that a cause of action was not disclosed in libel? If the answer is in the negative, is the defence of qualified privilege available Defendant/Respondent?

(3). Whether from the totality of evidence before the court the appellant proved his case against the Respondents.

The three issue formulated in the Respondents’ brief are well covered by issued 2, 3 and 4 raised the appellant’s brief. I will therefore adopt the four issues raised by the appellant in the consideration of this appeal.

ISSUE 1

It was herein submitted by learned counsel for the appellant that the allegation against the appellant being that of a serious crime, the standard of proof is that of beyond reasonable doubt notwithstanding the fact that it is a civil trial. He also referred to paragraph 24 of the amended statement of defence and counter claim to submit that from the averment therein, and the particulars of fraud given, whether the Respondents discharged the evidential burden of proving that there was a fraud as alleged against appellant.

He also referred to the testimony of DW1, Exhibit DF2 and paragraph 12(j & i) of the amended statement of defence to contend that there are glaring contradictions because while the evidence of DW1 indicated that the appellant was dismissed for his culpability in a series of fraudulent transactions in Western Union Money Transfer, Exhibit DF2 clearly show that the mandate of the Disciplinary Committee was to consider only one case of suspicious Western Union Transaction at 71 Adeniran Ogunsanya Street, Surulere Branch 1. He referred to the following authorities; ROCKONOH VS NITEL (2001) 7 MJSC 21 at 45; FATUNBI VS OLANLOYE (2004) 9 MJSC 161 AT 174 NSIRIM VS NSIRIM (2002) 3 MJSC 23 AT 33. Learned counsel further submitted that by a long line of authorities only a court has the constitutional authority to pronounce anyone guilty of a crime under our laws. A number of cases were cited in support including GARBA VS UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18) 550 and SOFEKUN VS AKINYEMI (1980) 5-7 SC 1. He then urged this court to resolve the issue in favour of the appellant.

ISSUE 2

Dwelling on this issue, learned counsel contended that the appellant did not leave the trial court in any doubt that he was not given a fair hearing by the 1st Respondent’s Disciplinary Committee as shown in the appellants statement of claim at pages 14 to 15 of the Record – where the allegation of bias were expressly pleaded and subsequently supported by the evidence of DW1 during cross-examination. He cited the following cases:- PHMB VS EDOSA (2001) 5 NWLR (PT.107) 612; DENLOYE VS MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) ALL NLR 306; NBA VS GANI FAWEHINMI (1985) 2 NWLR (PT. 7) 300 AND ONIGBEDE VS BALOGUN (2002) FWLR (PT.1062) 1081; VS SPDC VS OLAREWAJU (Supra) OLUFEAGBA VS ABDUL-RAHEEM (2009) 12 MJSC (PT. 1) 164

He therefore urged this court to resolve the issue in favour of the appellant.

ISSUE 3

Herein learned counsel cited some authorities on the definition and meaning of defamatory statement and while conceding that to succeed in a case of libel, the claimant must quote the exact libelous words complained of the posited that it is not in dispute that the 1st Respondent wrote a letter to the Central Bank of Nigeria and the Chartered Institute of Bankers stating that the appellant has been dismissed for his involvement in fraudulent Western Union Transaction.

He contended that the evidence of the letter containing the published libelous words was with the 1st Respondent who refused to produce it despite the notice to produce.

He then urged that the provisions of Section 149(d) of the Evidence Act should be invoked against the Respondents.

On the defence of qualified privilege raised by the appellant in the lower court, learned counsel cited the case of UKO VS MBABA (2002) 14 NWLR 23 AT 36 – 38 to submit that the Respondent have no duty to publish the defamatory material against the appellant because such duty to inform the CIBN and the CBN about the dismissal of the appellant must follow due process of law in which case the appellant ought to have been tried and found guilty of the crime by a court of competent jurisdiction before such duty to inform should arise. He added that the Respondents were actuated by malice and as such not qualified to raise the defence of qualified privilege.

ISSUE 4

Dwelling on this issue, learned counsel submitted that the entire judgment is against the weight of evidence adduced at the trial because the learned trial judge did not ascribe probative value to the evidence available in which case the appellate court can interfere with findings of the trial court where they are perverse or not borne out of the evidence before the court vide OYADEJI VS ADENLE (1993) 9 NWLR (PT.316) 224; IWUCHUKWU VS ANYANWU (1993) 8 NWLR (PT. 311) 307; GARBA VS GALADIMA (1993) 4 NWLR (PT. 285) 72 AND MAINAGGE VS GWAMMA (2004) 12 MJSC 34.

It was further submitted that the finding of the learned trial judge led to miscarriage of justice because the Disciplinary Committee was not set up to consider a case of series of misconduct against the appellant but to determine the Appellant’s involvement in the alleged single case of Western Union Money transfer Fraud at the 1st Respondents Bank on 17-08-2006 as shown in Exhibit DF2. He contended that the Disciplinary Committee exceeded it’s mandate and acted unlawfully when it purported to investigate the appellant for other cases of misconduct and this the appellant brought to the notice of the committee when he told them that he was not going to answer to an earlier issue of irregular payment for which he admitted the mistake and assumed he had been pardon because of the series of recommendations he subsequently received.

Learned counsel further referred to the finding of the lower court at page 403 of the Record on the issue of the extent and scope of what constitutes misconduct vis a vis Exhibit F, DF1 and H. He argued that Exhibit F cannot he held to be over the constitution of the Federal Republic of Nigeria which vest judicial powers in the courts of the land.

Learned counsel also picked holes in the final finding of the learned trial judge where it was held at page 412 of the Record as follows:-

“In summary I find that on the balance of possibilities (sic) and preponderance of evidence, the claimant has failed to prove claims (i-xi) of writ of summons. Claimant has however proved that he is entitled to be paid by the 1st Defendant the sum of N144,836,28K for August and September 2006 salaries. The Defendant has failed to prove the counter claim for N4,191,821,82K. Cost is awarded to the Defendants at N100,000 only on the claimant’s claim. The claimant is awarded N50,000 on the counter claim.”

He argued that the learned trial judge did not appreciate the position of the Appellant that he was not indebted to the 1st Respondent because he was never given a document of title to the land neither was he allocated any hand but his account was simply credited with N4 Million and immediately debited as well to the same tune of N4million to service the loan which the 1st Respondent embarked upon by monthly deductions from the appellant’s monthly salary to offset the Abijo Land loan.

This court was then urged to allow the appeal and set aside the judgment of the lower court.

Responding to the Appellant’s issue 3 in their issue I, learned counsel for the Respondents denied any ill-will, malice on bias towards the appellant in their actions leading up to his suspension and subsequent dismissal from the employment of the 1st Respondent which fact was affirmed by the DW1 in his statements on oath at page 104 – 105 and 150-151 of the Records. He argued that the action of the Respondents from the period the appellant was suspended to his dismissal and particularly the activities of the disciplinary committee, were in accordance with the principles of fair hearing and natural justice having regard to the content of the 1st Respondents staff handbook; report of Ms Mejindade Omowunmi, report of the securityman on duty on the day the fraudulent transaction occurred, copy of the Disciplinary Committee Report and a copy of the Central Bank of Nigeria Circular, all marked Exhibits DF1, DF7, DF8, DF2 and DF3 Respectively.

He also referred to the finding of the trial court at page 403 of the Records as it relates to Exhibits F, Exhibit DF1 and Exhibit H which led to the conclusion that the appellant was rightly dismissed by the 1st Respondent.

On the contention of the appellant that he cannot be dismissed for the crime of fraud except upon the pronouncement of guilt by a competent court, he submitted that the law does not require the crime or misconduct to be proven or established before the employer can dismiss the employee but such dismissal must be contemplated by the contract of service and an opportunity presented to the employee to defend himself vide YUSUF VS UNION BANK OF NIGERIA LIMITED (1996) 6 NWLR (PT.457) 632. He added that the appellant was guilty of not an isolated incident but series of it, one of which he openly admitted during cross-examination as found by the lower court.

It was further contended that the submission of the appellant at page 7 to 17 of his brief of argument wherein he dwelt extensively on the elements of fraud are unmeritorious given the content of Exhibit DF2 which is the Report of the Disciplinary Committee of International Bank dated 21-9-2006. (Page 58 of the Records).

On whether there was compliance with the principle of natural justice as to fair hearing. It was submitted that the basic tenets of fair hearing as required by law in such circumstance was complied with because an allegation of fraud was made against the appellant on 17-8-2006, he had an opportunity and did defend himself before the disciplinary committee; he was placed an indefinite suspension before he was finally dismissed from service.

He added that the case of SPDC VS OLAREWAJU supra relied on by the appellant to contend that there must be an opportunity of being heard and reason for the dismissal must be to the satisfaction of the court does not help his case given the testimony of the appellant during cross-examination as well as the allegations he was confronted with and the opportunity to respond to them.

On the allegation of bias against the 4th Respondent who was also a member of the Disciplinary Committee, it was submitted that by the testimony of the appellant coupled with exhibit DF2, it is clear that the role of the 4th Respondent was to substantiate findings of his investigation before the disciplinary committee. Besides, at no time did the appellant protest the presence of the 4th Respondent as a member of the 7 man Disciplinary Committee. Learned counsel then urge this court to hold that the appellant was given a fair hearing.

On Issue No. 2, learned counsel for the appellant after stating the law as it affects the tort of libel and the plea of qualified privilege, referred to the relief sought by the appellant as per the statement of claim as well as the averments in paragraph 85 and 89 of the statement of claim to contend that the letters complained of therein were not tendered in evidence. There is also no averment of the defamatory words published as referring to him. He cited the case of KATTO VS CBN (1999) 6 NWLR (Pt. 6071 390 at 415 to submit that there must be averment of the precise words so as to enable the court determine whether the words were defamatory in the circumstance. Therefore it is not enough for the Appellant to merely plead that there was a letter to the Central Bank of Nigeria or Charted Institute of Bankers of Nigeria alleging that he was fraudulent.

He then submitted that the lower court was right to have held that the appellant had failed to prove it’s case of libel against the 1st Respondent.

On the Appellant’s counsels contention that failure of the Respondents to produce the said letters should lead the court to invoke Section 149(d) of the Evidence Act against them, learned counsel referred to the decision of the Supreme Court on the issue in ONWUJUGBA VS OBIENU (1991) 4 NWLR (PT. 183) 16 AT 25. He added that the law is settled that the inability of a party to produce a document is a notice to the requesting party to tender secondary evidence of it. See AWUSE VS ODILI (2005) 16 WLR (PT. 952) 481. On the defence of qualified privilege, learned counsel submitted that the defence recognizes that on certain occasions a person should be free to publish defamatory matter provided he acts in good faith, even though it may prove to be false, provided it was done pursuant to a social, moral or legal duty or in the protection or furtherance of a legitimate interest. Vide OJEME VS MOMODU (1991) 1 NWLR (PT.323) 685; AKAMAGWUNA VS SAVANNAH BANK OF NIGERIA LIMITED (1995) 3 NWLR (PT.383) 343; ILOABACHIE VS ILOABACHIE (2005) 13 NWLR (PT. 943) 695 GIWA VS AJAYI (1993) 5 NWLR (PT.294) 423 AND NTA VS. BABATOPE (1996) 4 NWLR (PT.440) 75.

He also referred to Exhibit DF3 which is a circular from the CBN to all Banks requesting them to report cases of dismissal of a Bank Staff. He then urged this court to hold that the defence of qualified privilege avails the 1st Respondent.

Responding in their issue 3 which is akin to the appellants issue 4, learned counsel for the Respondents submitted that this appeal must fail because the evidence adduced from Exhibits DFL. DF2 and “A” supports the judgment of the lower court having properly evaluated the evidence before it. He referred to some authorities on the attitude of the appellate court to appraisal of evidence by the trial court and also pointed out the fact that it is not every mistake or error in judgment that will result in its being overturned on appeal, except where the error is substantial that it results in the miscarriage of justice, in which case the appellate court is bound to interfere. Vide NDULUE VS IBEZIM (2002) 12 NWLR (PT.780) 139; OWHONDA VS EKPECHI (2003) 17 NWLR (PT.849) 326 AND ODOFIN VS ONI (2001) 3 NWLR (PT.701) 488.

On the appellants contention that EXHIBIT “M” (Police Report) exonerated him of any crime. Learned counsel submitted that the said Police Report was limited only to the escape of the fraudulent and not the issues of the appellant, tampering with funds, his negligent actions and receipt of financial gratification hence the heading of the Report is “CASE OF AIDING THE ESCAPE OF A SUSPECT”

On the probative value of Exhibits DF3 DF7 and DF8 he submitted that it was wrong for the appellant’s counsel to contend that they were of doubtful origin and as such the lower court ought not have attached any probative value to them. He added that the appellant having failed to object to their admissibility cannot now be heard to complain about their admission in evidence. Vide EZOMO VS NNB LIMITED Supra.

On the appellants argument that the lower court ought not to attach probative value to the evidence of DW2 being at best a hearsay evidence. Learned counsel submitted that the lower court did in fact note it in the judgment and as such made little or no reference to it, but that even if it were so, the appellant’s counsel had every opportunity to discredit it during cross-examination and having failed to do so, the evidence remains uncontradicted and should be relied upon by the court. Vide SPDC (NIGERIA) LIMITED VS EDAMUKE Supra. This court was then urged to resolve the issue against the appellant and dismiss the appeal.

On Issue 1, “That is whether there was a Western Union Money Transfer Fraud at the Appellant’s Bank on 17-8-2006 as alleged against the appellant”.

The appellant’s stance is that no case of fraud was established against him to warrant his dismissal from the service of the 1st Respondent. The said dismissal is a product of the findings and Report of the Disciplinary Committee set up by the 1st Respondent to investigate the appellant and two other members of staff working with him at the Adeniran Ogunsanya Branch of the 1st Respondent Bank, (Exhibit DF2). The said Disciplinary Committee which sat on the 15-9-2006 consists of seven members with one Soji Jenyo as the chairman and Ezekiel Adewole as the Secretary.

The Agenda of the committee sitting was stated to be:-

“To consider a case of suspicious Western Union Transaction at 71, Adeniran Ogunsanya Street, Surulere Branch I.”

A summary of the incident leading to the setting up of the Disciplinary Committee as contained in page 119 of the Record reads thus:-

“The Branch, Resident Controller (BRC) of Surulere Branch intercepted a man who had come to fraudulently collect proceeds of Western Union Money Transfer meant for another person. The Branch Manager aided the fraudster to escape from the Branch by deceiving the securityman that the matter had

been resolved and that the fraudster had no case to answer. A sport check conducted by internal control on the Western Union Unit also revealed unethical practices, among the indicted staff namely: Andrew Venn, Olushola Obiwusi and Titilola Olusoji. The details are contained in their responses stated below”.

What one can glean from the above resume of the committees mandate is that the single incident of a suspected fraudster who had come to the bank to execute his activities but left the scene unceremoniously triggered off or exposed some unacceptable transactions involving Western Union Money Transfer Unit of the Bank hence the setting up of the committee to investigate those involved and report back to the Authorities.

The appellant who was the Branch Operations Manager along with Obiwusi Olushola (Teller) of the Branch and Titilola Olusoji (Fund Transfer Officer) of the Branch were indicted and thus requested to make their representations in defence thereof and their representations are found at pages 120 to 121 of the Record. It should also be noted that the appellant did not dispute the fact that he and the others were given the opportunity to present their own side of the story. He was confronted by the committee on the fact that the Auditor and the cash officer had earlier on counted the vault balance of dollars and it was $30,000 dollars but subsequently increased to $30,000 for which he denied knowledge of anything concerning the extra $900 but he was contradicted by the cash officer Vivian Chinonyelum who explained that the appellant actually removed the $900 dollars from the Teller and it was in her presence that the appellant put the said sum in the Western Union Envelope inside the vault.

On the $150 dollars average found in the vault, the appellant agreed that it was a gift from a customer of which he was to take $100 and give $50 dollars to Titilola Olusoji.

He was also asked to explain the alteration in the name of a recipient of a Western Union Money Transfer and the fact that the country of source was different from the one supplied by the recipient, yet he approved payment but replied that he did not notice both the alteration in the name as well as the country of source.

The eventual finding of the committee members who were Professional Bankers was that appellant attempted to cover up fraud by removing $900 dollars from the Teller to ensure that the Teller position is balanced. That he lowered the standard for payment of Western Union Transactions in the Branch by paying recipients even in cases of obvious errors and the act of receiving monetary gratification from customer was rampant in that Branch of the Bank.

The learned trial judge in his judgment at page 408 of the Record made the following findings and conclusion:-

“I have also observed that although the Claimant states that there was no fraud, there were some lapses or errors in the performance of his duties which he admitted during the Panel sitting and during cross-examination before this court. At pg. 3 of the Disciplinary Committee Report (DF2) stated that when the Claimant was asked to explain the alteration in the name of a recipient and the fact that the country of source from where the money was sent was different from the one supplied the recipient yet payment was made. The Claimant stated that he did not notice the difference in the country of source.

In addition during cross-examination the Claimant stated thus:-

“On the day of the panel Mr. Abel Osuji brought a transaction in my branch that was processed four months back. He showed it to me and observed that the money was sent from Italy although it came from a different city. I told the panel that this was an error and that I was human and could have made a mistake. I admitted to the panel that I was culpable but it could have happened to anybody”.

Thus the Claimant has admitted to being careless or negligent which is considered by the bank to be an act of misconduct justifying dismissal”.

I am inclined to agree with the above finding of the learned trial judge. Though there is no clear case of fraud proved against the appellant both at the level of the Disciplinary Committee as disclosed in Exhibit DF2 and at the lower court,’ there are however cases of impropriety and negligence. However for the purpose of answering Issue I, it is the law that any allegation of crime requires proof beyond reasonable doubt See Section 135(1) of the Evidence Act 2011. OGUNDIYAN VS THE STATE (1991) 4 SCNJ 44 (1991) 3 NWLR (PT.181) 519; ALONGE VS I.G.P. (1959) 4 SC NLR 516, YONGO VS C.O.P (1992) 4 SCNJ 113; WILLIAMS VS STATE (1992) 10 SCNJ 74; BABATUNDE VS BANK OF THE NORTH (2011) LPELR (8249) SC.

In the instant case, there seem to be no clear cut proof of fraudulent transaction involving Western Union Money Transfer against the appellant at the Bank on 17-8-2006 and it will be against the tenets of criminal jurisprudence to hold him down to such. The finding of the learned trial judge on this regard at page 408 of the record and earlier set out in this judgment is correct in this regard. I am therefore inclined to answer issue I in the Negative. Issue I is therefore resolved in favour of the appellant.

ISSUE 2

The appellants contention herein is that he was not given a fair hearing by the Disciplinary Committee, moreso with the inclusion of the 4th Respondent as a member of the said committee that tried and recommended his dismissal. For the Respondents it was argued that the activities of the Disciplinary Committee, were in accordance with the principle of fair hearing and natural justice going by Exhibit DF2, DF1, DF7, DF8 and DF3.

The learned trial judge in resolving the issue in his judgment held as follows at page 408 of the record:-

“It is my humble view that the answer to this question is no. The Claimant was informed of the allegations against him and was given every opportunity to explain himself and confront his accusers.

The Claimant during the Disciplinary Committee meeting never raised the issue of bias or challenge the inclusion of Abel Osuji as a member.

He did not request to confront the witnesses and he did not present any witnesses of his own.

In the case of Arize vs. F.B.N. Ltd (2004) 12 NWLR (Pt.888) P.663 the Supreme Court held that in case of misconduct bordering on criminality all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.

In the instant case, the Claimant was confronted with the accusation made against him, and given the opportunity to explain and the explanation was not considered satisfactory by the bank hence has dismissal. Therefore, the complaint of the Claimant, that he was denied fair hearing is not tenable.

See also Yusuf Vs. Union Bank Nig. Ltd (1996) 6 NWLR (Pt. 457) 632, Damisa Vs. UBA Plc (2005) 9 NWLR (Pt.931) P.526 at 536”.

The universality and antiquity of the concept of fair hearing was emphasized by the Supreme Court per Karibi Whyte JSC in ADENIYI VS GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT.300) 526 wherein his lordship noted that:-

“They are universal principles of ancient origin and common to mankind. They were recognized by the ancient Greeks and Romans, enshrined in the Holy Bible, and recognized as part of our indigenous and other African culture and philosophy of justice. It is, indeed as asserted by Coke, a principle of divine justice.”

The right to fair hearing is also a constitutional right carefully enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. However, the burden is on the party who alleges a breach of fair hearing in a case to prove the breach based on the facts of the case. This is premised on the fact that the peculiar facts of a case determines acts which constitute non-compliance with the principle of fair hearing. See MAIKYO VS ITODO (2007) 7 NWLR (PT. 1034) 443.

Records of this court particularly Exhibit DF2 (Report of the Disciplinary Committee) which contains the proceedings and decision of the committee provides insight on the peculiar facts of the case which will aid this court in deciding whether there was a breach of fair heaving. Obiwusi Olushola and Titilola Olusoji and the appellant were the officers of the 1s Respondent whose activities at the branch office of the Respondent on the 17-8-2006 led to the setting up of the Disciplinary Committee to consider a case of suspicious Western Union Transaction at the said Branch at No 71 Adenirain Ogunsanya Street Surulere. Exhibit DF2 reveals that the three of them were present at the hearing and presented their individual cases in defence. They were also confronted with any contradiction in their evidence as against what the others stated before the committee and their response was also recorded. The Appellant’s case was not different as he provided his own response to the questions put to him and some transactions he was confronted with. The whole proceedings revolved around him and the other two officers indicted with him and there is no other evidence that he requested for and was denied access to any document or opportunity to confront or question anybody whose testimony was part of the proceedings. For instance, in the report of the Committee as it affects the Appellant the proceedings was recorded as follows at page 121 of the record:-

Irregular Payment of Western Union:

He explained that his role in payment of Western Union payment is to look at the form to ensure compliance. He was asked to explain the alteration in the name of a recipient and the fact that the Country of Source from where the money was sent was different from the one supplied by the recipient, yet payment was made. His explanation was that he did not notice both the alteration in the name and the different in the Country of Source. Similarly, Olushola Obiwusi claimed she did not notice the two points before she effected payment.

Consequently, I agree with the finding of the learned trial judge that the Appellant was duly confronted with the accusation made against him and given the opportunity to explain by telling his own side of the story but his explanation was not considered satisfactory by the Disciplinary Committee who recommended his dismissal to the 1st Respondent, hence his complaint that he was given fair hearing cannot stand. In the case of ARINZE VS FIRST BANK OF NIGERIA LTD (2004) 12 NWLR (Pt.888) 663. It was held by the Supreme Court that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. See also OLATUBOSUN VS NISER (1988) 3 NWLR (PT.80) 25 and YUSUF VS UNION BANK OF NIGERIA LTD (1996) 6 NWLR (PT.457) 632. Or (1996) SCNJ 201 at 241 – 215 where the Apex Court per Wali JSC pointed out that

See also NWOBI VS ACB LTD (1995) 6 NWLR (PT 404) 658 and NATIONAL JUDICIAL COUNCIL VS SENLONG (2010) LPELR (4582) CA.

On the issue of bias based on the fact that the 4th Respondent was hostile to the Appellant and also handed him over to the police with an instruction that he should not be released unless he surrenders his International Passport.

A perusal of Exhibit DF2 show that membership of the Disciplinary Committee was 7 with one Mr. SOJI JENYO as the chairman. The 4th Respondent, ABEL OSUJI was the 6th out of the 7th members in the order of listing. The Appellant was not the only person invited to face the committee. There were two other members of staff also involved and the decision of the committee based on their findings also adversely affected the other two persons. The 4th Respondent is the Head of Investigation Department of the 1st Respondent. He was only invited to the scene on the 17-8-2006 based on what had transpired that day and the invitation was at the instance of the 2nd Respondent. To my mind therefore the scenario created does not provide room for justifying the allegation of bias against the 4th Respondent.

On this allegation of bias the learned trial judge had this to say at page 407 of the Record.

I have read the Disciplinary Committee Report Exhibit DF2 and there were 7 members including the 4th Defendant. In attendance was Obiwusi Olushola – Teller Surulere, Titilola Olusoji – Funds Transfer Surulere and the Claimant being the Branch Manager of the Surulere Branch.

Thus, Abel Osuji was not the only member neither was he the Chairperson of the Committee. The report was signed by all the members of the committee present. Could Abel Osuji have influenced all the members?

Furthermore the three employees involved in the alleged fraudulent transaction were in attendance and each of them were aware of the source of information being used against them. Vivian Chinonyelum, Titilola Olusoji and the 3rd Defendant had in their statements indicted Andrew Venn the Claimant yet he did not request the he be allowed to confront the witnesses particularly those in attendance.”

The question is did the 1st Defendant bank breach the rules of the natural justice in terminating the Claimant’s appointment.

It is my humble view that the answer to this question is no. the Claimant was informed of the allegations against him and was given every opportunity to explain himself and confront his accusers.

The Claimant during the Disciplinary Committee meeting never raised the issue of bias or challenge the inclusion of Abel Osuji as a member.

In the case of ARINZE VS. F.B.N LTD (2004) 12 NWLR (PT.888) P.663 the Supreme Court held that in case of misconduct bordering on criminality all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.

In the instant case, the Claimant was confronted with the accusation made against him and given the opportunity to explain and the explanation was not considered satisfactory by the bank hence his dismissal. Therefore, the complaint of the Claimant that he was denied fair hearing is not tenable.

See also YUSUF VS. UNION BANK NIG. LTD (1996) 6 NWLR (PT.457) 632. DAMISA VS. UBA

PLC (2005) 9 NWLR (PT.931) P.526 AT 536.”

The learned trial judge indeed made a correct finding in on the issue and I agree with it in concluding that the allegation of bias against the 4th Respondent is unnecessary and unwarranted. This issue is therefore resolved against the Appellant.

ISSUE 3

The crux of the Appellant’s compliant herein is that the 1st Respondent refused to produce the letters written to the Central Bank of Nigeria and the Chartered Institute of Bankers stating that he has been dismissed for fraud notwithstanding a notice to produce the said letters duly served on the 1st Respondent. This he says could justify claim for libel, hence the need for the court to invoke Section 149(d) of the Evidence Act.

In AINOKO VS YUNUSA (2008) LPELR (3663) CA. This court relying on the above cited authorities held inter alia that:-

“The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 98 of the Evidence Act. In other words, the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents. Consequently the non-response to a notice to produce will not cause the court to invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act against the defaulting party.”

See also CHUKWUKA VS NDUKA (2008) LPELR (3985) CA.

It follows therefore, that the 1st Respondent having failed to produce the letter written to the Central Bank of Nigeria and the Chartered Institute of Bankers, the coast was made clear for the appellant to adduce secondary evidence of the said letters in support of his case because the invitation to the court to invoke the provisions of Section 149(d) of the Evidence Act against the respondents cannot be supported by law.

On the issue of libel, it is comforting to note that the appellant conceded in his brief of argument that the law is settled that to succeed in a case of libel, the claimant must quote the exact libelous words complained of. He however sought to shift this onus on the 1st Respondent for it’s failure to produced the letters complained of. This however is not tenable as earlier indicated. The current position of the law is that the onus is on the claimant to prove a publication of the libelous matter concerning him, and if he fails to discharge that onus, his claim will not succeed. See ONU VS AGBESE (1985) 5 SC 242 and DELUMO VS SKETCH PUBLISHING CO. LTD (1972) 5 SC 308.

I have carefully read through the Appellant’s statement of claim and the averments therein relating to the alleged libel is at paragraph 86 to 92 and they are herein below set out.

“86. That the 1st Defendant maliciously published a defamatory letter to the Chartered Institute of Bankers that I had been dismissed from its employment because of my involvement in fraudulent Western Union Money Transfer transactions.

87. That the Chartered Institute of Bankers therefore wrote to me, as one of their members, vide their letter dated 13th December 2006, demanding explanation of the alleged professional misconduct.

88. That upon receiving the Chartered Institute of Bankers’ letter I promptly wrote a letter dated 19th December 2006 in response to the demand of the Chartered Institute of Bankers.

89. That I also contacted my lawyer to do a further representation of my innocence to the Chartered Institute of Bankers vide my lawyer’s letter dated 10th January 2007.

90. That apart from the Chartered Institute of Bankers the 1st Defendant has also maliciously and without any justification whatsoever published the same libelous letter of my having been dismissed from the services of Intercontinental Bank for my involvement in Western Union fraudulent transactions to the Central Bank of Nigeria.

91. That by the malicious act of publishing the libelous letter of my purported dismissal to the Central Bank the 1st Defendant has practically destroyed my life because it is a trite fact throughout the banking world that where a banker has been dismissed for an established case of fraud he can never work as a banker again, or pick up any decent job with any reputable company.

92. That the words of my purported dismissal allegedly for fraud as publishing by the 1st Defendant are naturally defamatory of me and have actually lowered me in the opinion and estimation of right thinking members of the society.”

It is quite glaring from the above set out paragraphs of the statement of claim relating to the allegation of libel that the exact words used are nowhere stated. The law requires a party alleging libel to clearly state the exact words or underline the portion of the material he considers defamatory of him in his pleadings. See OJEME VS MOMODU (1994) NWLR (PT.323) 685. In GUARDIAN NEWSPAPERS LTD VS AJEH (2011) 10 NWLR (PT 1256) 574 at 588, the Supreme Court held that:-

“In cases of libel, pleadings are of tremendous importance, and so the Plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of in his pleadings. No matter how long the article is, it must be produced. See DDGA Pharmaceuticals Ltd vs. Times Newspaper Ltd. (1973) 1 QB P.21 relied on by this court in OKAFOR VS. IKEANYI 7 ORS. (1979) 12 NSCC P.43 (1979) 3-4 SC 99.”

The Appellant’s pleading contains no such words complained of but a general allusion to the effect that the 1st Respondent published a defamatory letter to the Chartered Institute of Bankers and the Central Bank of Nigeria that he has been dismissed from his employment because of his involvement in fraudulent Western Union Money Transfer Transaction. The said averments are too general in terms and lacks specifics as required by law. This no doubt will lead this court to hold, and I so do that the Appellant failed to prove the allegation of libel against the Respondent. See ONU VS AGBESE (Supra).

Having so held that there is no proof of the allegation of libel against the Respondents, consideration of the issue of qualified privilege does not arise. There must first be established that there was a libelous publication before the defence of the qualified privilege will be considered. This issue is accordingly resolved against the Appellant.

ISSUE 4

“Whether the entire judgment was not against the weight of evidence”.

Where a judgment of the lower court is challenged on the basis of being against the weight of evidence, it behoves the Appellate court to review the judgment to ascertain the following:-

(1) The evidence before the trial court.

(21 Whether the trial court accepted or rejected any evidence upon the correct perception.

(3) Whether it correctly approached the assessment of the value on it.

(4) Whether it used the imaginary scale of justice to weigh the evidence on either side.

(5) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regards to the burden of proof.

See AGBONIFO VS AIWEREOBA (1988) 1 NWLR (PT.70) 325; MISR (NIG) LTD VS IBRAHIM (1975) 5 SC 55.

I have carefully perused the judgment of the lower court and I am satisfied that there was proper evaluation of the evidence and exhaustive appraisal of facts. Save for the issue of the allegation of fraud against the Appellant which I found not proved as addressed in issue 1. issue 4 have been duly covered in the course of the consideration of issue 2 and 3. I need to add therefore that except for issue 1, I agree with the finding of the learned trial judge at page 408 of the Record where he held thus:-

“I have also observed that although the Claimant states that there was no fraud, there were some lapses or errors in the performance of his duties which he admitted during the Panel sitting and during cross-examination before this court. At pg. 3 of the Disciplinary Committee Report (DF2) stated that when the Claimant was asked to explain the alternation in the name of a recipient and the fact that the country of source from where the money was sent was different from the one supplied the recipient yet payment was made. The Claimant stated that he did not notice the difference in the country of source.

In addition during cross-examination the Claimant stated thus:-

Thus the Claimant has admitted to being careless or negligent which is considered by the bank to be an act of misconduct justifying dismissal”.

It supports my view that even though no specific allegation of fraud is proved against the appellant, his admission of culpability in the act of negligence in the course of the Banks transaction falls within one of the acts of serious misconduct that can warrant a dismissal. Besides, the findings of the Disciplinary Committee is very clear as to the basis for the dismissal of the appellant and it is hereinbelow set out:-

“Findings:

The committee found that there was overwhelming evidence that Andrew Venn facilitated the escape of the fraudster from the branch.

He also attempted to cover the fraud by removing $900 dollars from the Teller to ensure that the teller’s position balance

The BM and the Teller have lowered the standard for the payment of Western Union Transaction in the Branch by paying even in cases of obvious errors.

Financial impropriety i.e. receiving monetary gratification from customers was rampant; Andrew Venn and Titilola Olusoji are the beneficiaries.

Olushola Obiwusi was unreliable, she lacks integrity. Her claim of duress and threat of rope are unfortunate. She deliberately misled the Bank in her written statement.”

It is glaring that there was no specific findings of the committee that the appellant defrauded the 1st Respondent or it’s customers of any particular sum of money. Rather that he helped a fraudster to escape; removed $900 dollars from the Teller to ensure that the teller’s position balanced.

Lowered the standard for the payment of Western Union Transactions in the Branch by paying even in cases of obvious errors as well as receiving gratifications from customers.

The above findings some of which were admitted by the appellant and others found proved by the lower court fall within the ambit of acts regarded as serious misconduct that can warrant termination of appointment or summary dismissal as per Exhibit DF1. (Staff Hand Book) which governs the relationship between the appellant and the 1st Respondent.

In this regard I find justified the act of the 1st Respondent in dismissing the appellant for acts constituting grievous misconduct by virtue of the staff Hand Book Exhibit DF1, sequel to the findings of the Disciplinary Committee after a due hearing.

In the final result having resolved issue 1 in favour of the appellant, I hold that this appeal succeeds in part.

Consequently, except for the finding that there is proof of fraud against the appellant, the judgment of O.A. Taiwo J. (Mrs.) of the Lagos State High Court delivered on 5-10-2006 is hereby affirmed.

Parties to bear their costs.

TIJJANI ABUBAKAR, J.C.A.: My lord and learned brother OSEJI JCA made available to me in draft the lead judgment just delivered.

I carefully read the entire judgment; my lord did a very thorough analysis of the issues submitted for determination. As usual his lordship sufficiently and ably covered the field, I have nothing more to add except to adopt the entire judgment as my own.

ABIMBOLA OBASEKI-ADEJUMO, J.C.A.: I have read in draft the judgment of my learned brother, HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

I agree with the reasoning and conclusions reached therein, and wish to re-iterate that the law is trite as it relates to Fair Hearing as enshrined in Sec 36(1) of the 1999 Constitution (as amended). What is required is that the Appellant be given fair hearing within a reasonable time by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality. Once this is fulfilled, if the Appellant fails to present his case satisfactorily before such tribunal who found against him, he cannot come afterwards to complain that he was not given fair hearing. More so, the concept is a reasonable man’s test. In OKAFOR V. A.G, ANAMBRA (1991) 6 NWLR (PT.200) 659, the court stated that;

“The test for the impression of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. PER KARIBI WHYTE, J.S.C (P.27, Paras. C-D)”

In this vein, I too agree that the appeal succeeds in part, and affirm the judgment of O.A Taiwo J. (Mrs) of the Lagos State High Court delivered on 5-10-2006, but for the finding that there is proof of fraud against the Appellant.

Appearances

Shakeru OmolajaFor Appellant

AND

Folabi Kuti with A. OlogeFor Respondent