LawCare Nigeria

Nigeria Legal Information & Law Reports

ADEGBOYE v. UBA (2022)

ADEGBOYE v. UBA

(2022)LCN/16000(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/IL/20/2021

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MR VICTOR ADEGBOYE APPELANT(S)

And

UNITED BANK FOR AFRICA RESPONDENT(S)

 

RATIO

WHETHER OR NOT AN UNSIGNED DOCUMENT HAS EVIDENTIAL VALUE IN COURT

It must be restated that the general rule is that an unsigned document has no evidential value. See Global Soap and Detergent Industrial Ltd v NAFDAC (2011) 50 WRN 108 at136 paras 40-45, see also the cases of Amizu v Nzeribe (1989) 4 NWLR (Pt.118) 755 and Salibawa v Habilat (1991) 7 NWLR (PT 174) 461.

However, the requirement as to signature is strictly to determine the origin and authenticity of the document with regard to its maker. See Ashakacem Plc v Asharatul Mubashshurun Investment Ltd (supra) and Awolaja & Ors v Seatrade G.B.V. (supra). The Appellant (as claimant) in paragraph 12 of his statement of facts in support of his claims pleaded a “copy of the investigation report” and front loaded it. See page 6 and pages 24 – 28 of the record. PER AMADI, J.C.A.

WHETHER OR NOT EMPLOYMENT RELATIONSHIP BETWEEN PARTIES IN AN EMPLOYMENT DISPUTE IS GOVERNED BY COMMON LAW

There is no dispute that the employment relationship between the parties is one governed by the common law which in ordinary parlance is referred to as a master and servant relationship. In such a relationship, the moment the employment relationship is determined whether by termination or dismissal, it can only be wrongful but not unlawful, null and void. In other words, the determination of that employment relationship is final, except in very few circumstances, meaning that specific performance of reinstatement cannot be a remedy to any aggrieved party. See SPDC (Nig) Ltd v Ifeta (2001)11 NWLR (724)473 and Isievwore v. NEPA [2002] 13 NWLR (Pt. 784) 417 SC. The employee under that circumstance is entitled to damages for wrongful termination or dismissals. See Afribank (Nig) Plc V Osisanya (2000) 1 NWLR (Pt.642) 592 and Ilodibia v Nigeria Cement Company Ltd (1997) 7 NWLR (Pt.512)174. For the foregoing reasons, these reliefs are bound to fail and they have failed, I so hold. PER AMADI, J.C.A.

THE DIFFERENCE BETWEEN TERMINATION OF EMPLOYMENT AND DISMISSAL

There is a world of difference between termination of employment and dismissal. Dismissal carries infamy and deprives the dismissed employee of benefits while termination of employment does not. Therefore in matters affecting the dismissal of an employee for whatever reason, the employer is expected to show a reason for the dismissal, a reason which the law would accept as sufficient to warrant the dismissal of the employee. See Abomeli v NRC (1995) 1 NWLR (Pt.372) 451. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court of Nigeria sitting in Akure, Ondo State presided over by Honourable Justice A. A. Adewemimo delivered on the 6th day of March, 2020. The Appellant by a writ of General Form of Complaint instituted a suit at the lower Court claiming the following reliefs:
i. A DECLARATION that the Claimant was not accorded fair hearing in the process that culminated in the purported dismissal of his employment with the Defendant by virtue of which the purported dismissal is unconstitutional, ultra vires, null, void and of no effect whatsoever.
ii. A DECLARATION that the Defendant did not follow the due process of law before purporting to dismiss the employment of the Claimant and consequently the purported dismissal is unconstitutional, ultra vires, null, void and of no effect whatsoever.
iii. A DECLARATION that the Disciplinary Committee of the Defendant held on Friday, 15th January, 2016 was without fair hearing, equity and good justice as three out of five staff invited to appear before the Disciplinary Committee were present.
iv. A DECLARATION that the letter of dismissal, dated 22nd April, 2016 to the Claimant is unconstitutional, null and void and of no effect.
v. AN ORDER directing the Defendant to pay the Claimant all his full salaries, emoluments and allowances effective from the date of his purported suspension till the date of judgment and thenceforth.
vi. A SUM OF TEN MILLION NAIRA ONLY as general, exemplary and or aggravated damages against the Defendant.

The brief facts of this case that gave rise to this appeal as presented by the Appellant are as follows:
That before his dismissal, vide a letter dated 22nd April, 2016, he was a confirmed staff of the Respondent since 2008 when he was offered an appointment in the employment of the Respondent vide the letter of offer dated 16th June, 2008.

That he was diligently discharging his duties as a staff of the Respondent and this has earned him promotion to the rank of Assistant Banking Officer in 2011 vide a letter dated 6th April, 2011.

That in 2014, the Respondent vide her letter dated 6th August, 2014 wrote to the Financial Controller of Dangote Flour Mills Plc, Ilorin introducing him as the only representative of the Respondent to collect the Authority to Collect (ATC) stocks from Dangote Flour Mills Plc, Ilorin on behalf of the Respondent for her customer, Sadiq Umar General Enterprises Nigerian Ltd. That the letter written to Dangote Flour Mills Plc, Ilorin is contained at page 22 of the record.

That sometime in the same August, 2014, the Branch Manager of the Respondent, Mr. Ayo Aiyepeku called and informed him that the Authority to Collect (ATC) stocks for the said customer is ready for collection at Dangote Flour Mills Plc, Ilorin and that one Mr. Wale Agboola, the Relationship Manager to the customer will also join him at the place.

That upon collection of the ATC from Dangote Flour Mills, Plc, he was directed by the Branch Manager, Mr. Ayo Aiyepeku handed over the ATC to Mr. Wale Agboola, the Relationship Manager to the customer for onward transmission to the Branch Manager since both of them were in the same branch of the Respondent at Taiwo Road, Ilorin while he was in another branch of the Respondent at the material time.

That in August, 2015 exactly a year after he collected the ATC from Dangote Flour Mills Plc, Ilorin and passed same to the Branch Manager through Mr. Wale Agboola, he received a Memo from the Respondent’s head office in Lagos, requesting for the where about of the ATC he collected from Dangote Flour Mills Plc, Ilorin.

That in a swift reply to the Memo, he informed the Respondent that the ATC has since been submitted to the Branch Manager, Mr. Ayo Aiyepeku through the Relationship Manager of the customer, Mr. Wale Agboola.

That surprisingly and notwithstanding his swift and exonerating response to the Memo from the Head Office of the Respondent, he on 13th January, 2016 (about 5 months after his response) received another Memo inviting him to appear before the Respondent’s Corporate Office Disciplinary Committee in respect of the ATC.

That at the hearing of the Corporate Office Disciplinary Committee, he maintained his position that the ATC was handed over to the Relationship Manager of the customer, Mr. Wale Agboola for onward transmission to the Branch Manager as directed by him.

That Mr. Wale Agboola acknowledged that he collected the ATC from him , but in a surprising twist to the tale, the Respondent served him with a suspension letter dated 18th January, 2016. The letter is contained at pages 29 and 30 of the record.

That on the 25th April, 2016, he was served with a letter of dismissal dated 22nd April, 2016. Worried with this development, that he wrote a letter of appeal dated 26th April, 2016 to the Respondent to review her decision on his dismissal. However, that instead of reviewing her decision, the Respondent deceitfully invited him and took him to the Special Fraud Unit (SFU) of the Nigeria Police, Ikoyi, Lagos State for interrogation. That he was later released on bail at the Special Fraud Unit, Ikoyi after been held for several hours.

That notwithstanding all his entreaties, the Respondent refused to rescind her decision to dismiss him hence this suit.

The respondent on the other hand gave the brief facts of this case as follows:
That sometimes in 2014, the Respondent issued a bank guarantee of N50, 000, 000.00 (Fifty Million Naira, Only) in favour of Dangote Flour Mills Dangote) on behalf of Sadiq Umar General Enterprises Nigeria Limited hereinafter called the customer), to entitle the customer to receive goods on credit from Dangote.

That it was stipulated and indeed a Respondent’s banking policy that, an Authority to Collect (ATC) the goods on credit were to be delivered to the Respondent and the equivalent value to be released to the customer, as the customer is able to fund its designated account with the Respondent.

That the Appellant who was at the relevant time, the Respondent’s Area Control Manager was introduced to Dangote as the authorized representative of the Respondent to collect the ATC.

That in line with the policy for such transactions, the Appellant was to collect the ATC from Dangote and deliver same to the Branch Operations Manager (BOM) for keeping in the Respondent’s vault until the customer makes payment for the first batch which will trigger the release of the equivalent value of the ATC.

That the Appellant was obliged to open a movement register where the transaction would be recorded and signed by both the Appellant and the BOM and also prepare a weekly stock report to be forwarded to the credit monitoring group to monitor compliance.

That in flagrant disregard for the set-out policy, the Appellant went to Dangote in the company of the Relationship Manager, obtained the ATC from Dangote and instead of taking them to the BOM for safe custody, he handed same over to the Relationship Manager on the supposed instruction to deliver to the Branch Manager on his behalf, because the Relationship Manager, the Branch manager and the BOM were all in the same branch.

That notwithstanding the fact that he did not comply with the policy by delivering to the BOM himself, he did not follow up to ensure that the BOM got the ATC and that the ATC were safe in the Respondent’s vault.

That he did not notify the BOM that he had collected any ATC for the Business office and so the BOM did not put in place any system for monitoring or tracking the ATC. That the Appellant also did not make any record of his visit to Dangote, did not notify his Supervisors that he went to Dangote with the Relationship Manager and collected ATC on behalf of the Respondent.

That the Respondent was not aware that the Appellant had collected the ATC until about a year later, when the facility had gone bad and the Respondent discovered that its collateral (the ATC) were not available and the designated account was not well funded to defray the said guarantee sum.

That Appellant’s failure to comply with the Respondent’s policy to deliver the ATC to the BOM thereby exposed the Respondent to a liability of N50, 000. 000.00 (Fifty Million Naira, Only) under the guarantee it issued to Dangote.

That this amounted to a gross misconduct under the contract of employment between the Respondent and the Appellant, the Disciplinary Committee was charged to look into the matter. The appellant amongst others, appeared before the said Disciplinary Committee and was offered every opportunity to defend the allegations against him.

That at the end of the proceedings of the said Disciplinary Committee and consequent upon the findings of the said Disciplinary committee, the Appellant was dismissed for gross misconduct in line with the contract between him and the Respondent.

Aggrieved by the determination of his contract of employment, the Appellant instituted suit no.: NICN/IL/01/2019 at the National Industrial Court, Ilorin division on the 4th day of February, 2019, challenging the determination of his contract of employment by the Respondent.

At the conclusion of hearing, the trial Court delivered judgment on the 6 day of March, 2020 wherein it dismissed the entirety of the claims of the Appellant for failure to plead and prove the terms and conditions of his employment with the Respondent.

The Appellant, being aggrieved with the decision of the trial Court appealed to this Honourable Court vide a notice of appeal dated and filed on the 23rd day of October, 2020 wherein he raised 6 (six) grounds of Appeal thus:
GROUND ONE
The learned trial Court erred in law in holding that Exhibit’ VG5 is an unsigned document thus, worthless, inadmissible in law and commands no judicial nor evidential value,
GROUND TWO
The learned trial Court erred in law in holding that Exhibit VG14 is a computer generated document and it is inadmissible in evidence having failed to comply with the provision of S.84 of the Evidence Act.
GROUND THREE
The learned trial Court misdirected itself on the facts of the Appellant’s case when it held that the failure of the Appellant to tender his letter of appointment in evidence is fatal to his case and amounted to failure to prove his case.
GROUND FOUR
The learned trial Court misdirected itself on the facts of this case in holding thus:
“It is consequent upon the evidence adduced in this case that is, the claimant’s refusal to place the contract of employment before this Court and failure to offer any explanation as regard its whereabouts that I find that the claimant’s suit therefore has no leg to stand on and is bound to fail.”
GROUND FIVE
The learned trial Court erred in law in failing to consider the merit of the Appellant’s case by holding thus:
“In view of the above. I find no basis for the Court to delve into the issue of lack of fair hearing and unlawful dismissal raised by the claimant in this suit against the defendant, as same is untenable in the light of the failure of the claimant to place his contract of employment before the Court, which I find is fatal to his case.”
GROUND SIX
The learned trial Court misdirected itself on the facts of the case by dismissing the entire reliefs of the Appellant on the ground that the Appellant did not place before the Court the letter of appointment (contract of service) and on the ground that the Appellant cannot solely rely on oral evidence to prove his case.

The record of appeal in this matter was transmitted on to this Court from the lower Court on the 22/2/2021. The Appellant filed his brief of argument on the 25/10/2021 and Appellant’s reply brief on 11/1/2022. Both briefs of the Appellant were deemed properly filed and served on the 21/1/2022. The Respondent filed its brief of argument on the 26/11/2021. The appeal was heard on the 21/1/2022.

In his brief of argument, the learned counsel for the Appellant raised two issues for determination thus:
1) Whether the trial Court was not wrong in dismissing the Appellant’s case on the ground of not tendering his letter of appointment in evidence. (Grounds 3, 4, 5 and 6)
2) Whether the trial Court was not wrong in rejecting and refusing to rely on Exhibit VG5 AND VG14 in determining the Appellant’s case. (Grounds 1 and 2)

In respect of issue one above, counsel argued that where issues are not joined by the parties on a particular claim, it becomes unnecessary for that claim to be proved. That admitted fact needs no further proof, counsel referred to the cases of Benson v The State (2018) LPELR 48458 CA, Olale v. Ekwelendu (1989) 7 SCNJ (Pt. 2) 62 and Ehinlanwo v. Olusola Oke & Anor (2008) 10 SCM 28.

Counsel argued that the Appellant pleaded the fact that he was employed by the Respondent on the 16/6/2008 in paragraph 3 of his statement of Facts (page 5 of the record). That the Respondent admitted the fact of the employment of the Appellant as pleaded in paragraph 3 of its statement of defence (page 120 – 125 of the record). That the case of the Appellant was not the determination of whether there was a contract of employment between him and the Respondent. That none of the parties pleaded nor gave evidence that the terms and conditions of service relating to the Appellant’s employment with the Respondent is contained solely in his letter of appointment. That the claimant’s claim of unlawful and unjust dismissal emanating from a breach of his right to fair hearing does not require his letter of appointment to be proved.

Continuing counsel argued that the allegation of gross misconduct against the Appellant by the Respondent is that he failed to follow due process as contained in the CACOM (Credit Approval Communication Memorandum). That the case of the Appellant on the other hand was that he was neither privy to nor was a copy of the CACOM served on him by the Respondent.

Counsel submitted that all that needs to be proved by the Respondent was service of a copy of the said CACOM on the Appellant or Knowledge of same by him which has nothing to do with the terms and conditions of his employment.

Counsel urged the Court to resolve this issue in favour of the Appellant.

In respect of issue two and in relation to Exhibit VG5, (The Investigation Report of 6/10/2015). The learned counsel argued that Exhibit VG5 which was expunged from the record on the ground that it is unsigned ought to have been admitted. That the last page of the exhibit has clearly and boldly written on the names and designations of the makers of the document. That what was lacking was only an ink impression on their names. That both parties pleaded and front loaded it in the form that it was admitted. Counsel submitted that though generally, an unsigned document lacks evidential value and cannot be acted upon by a Court; that this general rule has exceptions and the said Exhibit VG5 clearly falls within the said exception.

Continuing counsel argued that the Supreme Court in Ashaka Cement Plc v. Asharatul Mubashshurun Investment Ltd (2019) LPELR – 46541 clearly stated that the requirement of signature of a document is made by law to determine the origin and authenticity with regard to its maker, therefore where certain circumstances exist for instance where oral evidence could explain that the unsigned document could be admissible. Counsel further referred to the case of Awolaja & Ors v Seatrade G.B.V. (2002) LPELR 651, Peace Capital Market Ltd v Ujam (2021) LPELR 54954. Counsel submitted that the parties are ad idem on the existence of Exhibit VG5, thus making same to be admissible with evidential value notwithstanding the absence of signature on it.

In respect of Exhibit VG14 (GROUP HR Disciplinary Process & Sanctions Policy) which was expunged for being a computer generated document tendered without a certificate as required by Section 84 of the Evidence Act 2011.
Counsel referred to pages 54 – 64 of the record and submitted that there is nothing on the face of that document which suggests that it was computer generated. That assuming that it was computer generated. That because of the special nature of the Court and the provision of Section 12 of the National Industrial Court Act 2006, the Court should make use of the exhibit in the interest of justice. Counsel relied on the Unilorin Teaching Hospital Management Board & Anor v Mariam (2016) LPELR 41673.

Counsel urged the Court to resolve this issue in favour of the Appellant and set aside the decision of the lower Court to expunge and or discountenance Exhibits VG5 and VG14.

The learned counsel for the Respondent in his own brief of argument adopted the two issues raised by the learned counsel for the Appellant but modified them thus:
1) Having regard to the claims and reliefs sought, whether the trial Court was right when it dismissed the Appellant’s case for failure to plead and prove the terms and conditions of the Appellant’s contract of employment? (Grounds 3, 4, 5 and 6)
2) Having regard to the principle of admissibility of documents in law, whether the trial Court was right when it discountenanced Exhibits VG5 and VG14? (Grounds 1 and 2)

In respect of issue one that is the learned counsel submitted that the law is settled that where an employee complains that his employment was wrongfully terminated, he has the onus to plead and prove the wrong by:
a. Placing before the Court, the terms and conditions of the contract of employment.
b. Proving in what manner the said terms were breached by the employer.

Counsel argued that the contract of service forms the yardstick with which to determine what the parties have agreed to on termination of employment and whether the termination accorded with what the parties have agreed.

That once the letter of appointment which created the employment is not tendered, the claim is liable to be dismissed. That the provisions of a written contract of service bind the parties and it is outside the province of the Court to look elsewhere for the terms of termination of contract other than in the written agreement. Counsel cited and relied on the following cases:-
Idoniboye Obu v N.N.P.C. (2003) 6 NWLR (pt. 607) 390 at 405, Amodu V. Amode (1990) 5 NWLR (Pt. 150) 356 at 373, Oforishe v. N.G.C. Ltd (2018) 2 NWLR (PT. 1602) 35 at 61, Organ v NLNG Ltd (2013) 16 NWLR (Pt. 1381) 506 at 539, Morohunfola v Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 406 at 527 NEPA v Olagunju (2005) 3 NWLR (Pt. 913) 602 at 632.

Continuing counsel argued that the claimant’s claims are declaratory in nature. Therefore, the onus is on the claimant to establish his case and not rely on the weakness of the defence. That the argument of the Appellant in respect of CACOM which was front loaded but not tendered by the Respondent does not help the case of the Appellant. That a document cannot by any means form basis of any judicial consideration as a Court cannot act on a fact not forming part of the legally admitted evidence. That having expunged Exhibit VG17 (The Proceedings of the Disciplinary Committee) no issue of lack of fair hearing can be sustained. Counsel submitted that the contract between the parties being the determinant in master and servant relationship the termination of the employment cannot be unconstitutional, null, void and of no effect as the Appellant is seeking. Counsel relied on the following cases: – Umar v. Geidam (2019) 1 NWLR (Pt. 1632) 29, Sifax (Nig) Ltd v Migfo (Nig) (2016) 7 NWLR (Pt 1510) 10, Ogboru v Okowa (2016) 7 NWLR (PT. 1522) 84, Ladipo v Chevron (Nig) Ltd (2005) 1 NWLR (Pt 907) 277, ACB Ltd v. Gwagwada (1994) 5 NWLR (pt. 342) 25 at 36, Amadi v. A.G. Imo State (2017) 11 NWLR (Pt. 1575) 92, Araraume v. Ibezim (2021) 8 NWLR (Pt. 1779) 543, Zakiri v Muhammed (2017) 17 NWLR (Pt. 1594) 181.

Counsel urged the Court to resolve this issue in favour of the Respondent and against the Appellant.

In respect to issue two, the learned counsel submitted that a Court is expected in all proceedings to admit and act only on evidence which is admissible in law. That where a Court inadvertently admits inadmissible evidence, the Court is duty bound to expunge it from the record.

That Exhibit VG5 (Investigation Report dated 6th October, 2015) shows that the document is unsigned by the persons from which it purported to have emanated. That it is settled that an unsigned document is a worthless piece of paper and has no evidential value. Counsel relied on the cases of:
Mohammed Ismail v FRN (2020) 2 NWLR (pt. 1707) 85 at 112, Omega Bank Plc v. OBC Ltd (2005) 8 NWLR (pt. 928) 547 at 577, Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 146, Ali v State (2021) 12 NWLR (pt. 1789) 159 at 189, NNPC v Roven Shipping Ltd (2019) 9 NWLR (pt. 1676) 67 at 83.

Continuing counsel submitted that the parties must agree on the existence of the terms and conditions and the content of unsigned document before such document can be accorded probative value. That the mere agreement as to the existence of the said Exhibit VG5 does not by any means extend to an agreement as to the content or tenor of the said Exhibit VG5 for the exception to general rule on the inadmissibility of unsigned document to take effect, that it must be shown:
(i) That the document under consideration is an agreement between the parties.
(ii) That the parties are agreed as to the content and tenor
(iii) That the parties have carried out the terms under the document and
(iv) That one of the parties or both parties did not sign the contract paper.

Counsel submitted that Exhibit VG5 aforesaid does not accord with any of the above stipulated conditions therefore the exception in Askakacem v A.M. Inv. Ltd (supra) and Peace Capital Market Ltd v. Ujam (2021) LPELR – 54954 will not apply.

On Exhibit VG14 expunged for failure to comply with Section 84 of the Evidence Act. Submits that the Appellant under crosss-examination admitted that it was from the mail and on website of the defendant.

Continuing, counsel submits that a party of who relies on computer generated evidence must led oral or documentary evidence as required by S. 84 (22 of the Evidence Act.) counsel relied on Dickson v Sylva (2017) 8 NWLR (pt. 1567) 67 at 203. That the provision of Section 12 of the National Industrial Court Act 2006 calls for exercise of discretion by a trial Court. That the lower Court having exercised the discretion not to depart from the enforcement of the Evidence Act, by expunging Exhibit VG14, as appellate Court is always reluctant to tamper with the exercise of discretion by a lower Court. Counsel cited and relied on the cases of: Minister P.M.R. v E.L. (Nig.) Ltd (2010) 12 NWLR (pt. 1208) 261 at 282. Counsel urged the Court to resolve this issue in favour of the Respondent.

The learned counsel for the Appellant in his reply brief submitted that summation of the Appellant’s complaint is the error of the trial Court in refusing to consider the appellant’s case on the merit on the ground of his failure to tender his letter of appointment in the course of trial.

That the general rule that a claimant in a declarative relief cannot rely on the admission or weakness of the defendant has an exception in that where the weakness or admission of the defendant supports the already proved declaratory relief of the plaintiff, the plaintiff can rely on such weakness or admission by the defendant referring to Ajibulu v Ajayi (2013) LPELR 21860 SC. Counsel urged the Court to allow this appeal.

As I noted earlier in this judgment, the learned counsel for the Appellant filed Appellant’s reply brief, after going through it, it is not difficult to find out that it has nothing to do with points of law. But is a further argument of counsel in support this appeal. It is therefore discountenanced.

RESOLUTION:
The 2 (two) issues raised by the learned counsel for the Appellant were adopted and modified by the learned counsel for the Respondent. I therefore adopt the said 2 (two) issues raised by the learned counsel for the Appellant in the resolution of this case as follows: –
In respect of the first issue, that is; whether the trial Court was not wrong in dismissing the Appellant’s case on the ground of not tendering his letter of appointment in evidence.

At page 15 of the judgment that is page 392 of the record the learned trial judge held at paragraph 54 that the failure of the Appellant to produce or tender his letter of contract of employment is fatal to his case thus:
“The claimant’s appointment is not in contention and is undisputed in this case, even as Exhibits VG1 and VG3, alluded to the claimant’s employment with the defendant. What is in contention is the propriety or otherwise of the dismissal of the claimant whereby he is contending that his dismissal is in breach of his contract of employment, while the defendant in a bid to justify the dismissal, contented that the claimant was dismissed for gross misconduct.” (underlining mine for emphasis).
It is from this point that the learned trial judge went off tangent; the case of the appellant was clearly misunderstood and misinterpreted. The claims of the Appellant at the lower Court have been reproduced above, nowhere did he complain against breach of the terms of his contract of employment, his complaint were basically denial of “fair hearing” and failure to “follow the due process of law”.
At page 16 in paragraph 5 the Court held thus:
“I find no basis for the Court to delve into the issue of lack of fair hearing and unlawful dismissal raised by the claimant in this suit against the defendant as same is untenable in the light of the failure of the claimant to place his contract of employment before the Court, which I find is fatal to his case.”
With the greatest respect to the trial Court, while I admit that the above is very desirable and very important, I make bold in holding that it is not in all cases that failure to plead and tender the letter of employment that will be fatal to the case of the claimant in a case of wrongful termination of employment, where the terms of the contract of employment is not in issue as in this case and where there is otherwise ample evidence to establish the terms of the contract of employment, failure to tender the letter of appointment will not necessarily be fatal to the plaintiff’s case. See Savannah Bank (Nig) Plc v Fakokum (2002)1 NWLR (Pt.749) 544. See also my judgment in Nwokoma v First Bank of Nigeria Plc (2014) 50 NLLR (Pt.166) 357, without much ado on this issue I resolve it in favour of the Appellant and against the Respondent.

In respect of issue two that is; whether the trial Court was not wrong in rejecting and refusing to rely on Exhibits VG5 and VG14 in determining the Appellant’s case. (Grounds 1 and 2).

The said Exhibit VG5 is a document dated 6th October, 2015 and titled: “Investigation Report on the called-in Guarantee of N50m issued IFO Dangote Flour Mills on behalf of Sadiq Umar Ent. Ltd”.

The argument of the Appellant is that the said Exhibit VG5 falls within the exceptions to the general rule that an unsigned document lacks evidential value. It must be restated that the general rule is that an unsigned document has no evidential value. See Global Soap and Detergent Industrial Ltd v NAFDAC (2011) 50 WRN 108 at 136 paras 40-45, see also the cases of Amizu v Nzeribe (1989) 4 NWLR (Pt.118) 755 and Salibawa v Habilat (1991) 7 NWLR (PT 174) 461.

However, the requirement as to signature is strictly to determine the origin and authenticity of the document with regard to its maker. See Ashakacem Plc v Asharatul Mubashshurun Investment Ltd (supra) and Awolaja & Ors v Seatrade G.B.V. (supra). The Appellant (as claimant) in paragraph 12 of his statement of facts in support of his claims pleaded a “copy of the investigation report” and front loaded it. See page 6 and pages 24 – 28 of the record.

Also, the Respondent (as defendant) in its statement of defence in paragraph 3(c) pleaded “The Investigation Report” and front loaded it. See page 122 and pages 139 – 144 of the record.

It is trite that a Court is entitled to look at all the documents in its file and form an opinion of the case. See the case of Ogbunyiya v Okudo (1979) 6-9 S.C 24.

I have looked at the documents filed very closely, the document frontloaded by the Appellant as the ‘Investigative Report’ now the said Exhibit VG5 is one and the same with the document frontloaded by the Respondent as the “Investigative Report”. It was an Internal Memo from Group Credit audits through: Group Chief Internal Auditor to GMD/CEO dated October 6, 2015 and authored by Peace Oduronbi (Credit Audit) and Adewale Adedokun (Group Head, Credit Audit). The fact that at trial while the Appellant tendered it in evidence, the Respondent failed to tender it did not diminish the fact that it emanated from the Respondent. The Respondent pleaded it, pleaded to rely on it and front loaded it; meaning that it was the report upon which the Appellant was dismissed which report was unsigned. The implication of both parties pleading and frontloading the same document is that there is no doubt or dispute as to its origination and authenticity in which case it clearly qualifies for the exception rule. To hold otherwise, will certainly amount to allowing the Respondent to benefit from its own wrong which the Courts abhor. See Eke v FRN (2013) All FWLR (Pt. 702) 1748. Consequently, the order of the lower Court that Exhibit VG5 has no evidential value for being unsigned is hereby discountenanced and set aside.

In respect of Exhibit VG14, the lower Court expunged this exhibit for non-compliance with the provision of Section 84 of the Evidence Act 2011. Under cross-examination, the Appellant said that he downloaded it from mail and the Respondent’s website. Section 84(2) of the Evidence Act provides that:
“84 (1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.
(2) The conditions referred in Subsection (1) of this section are;
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from the information supplied to the computer in the ordinary course of those activities.”
It is important to note that both parties pleaded that document and frontloaded it. The Appellant tendered his copy which was received and marked as Exhibit VG14, while the Respondent refrained from tendering it. The Respondent pleaded it in paragraph 4(c) of her Statement of Defence see pages 123 – 124 of the record. The copy attached by the Respondent shows that it was downloaded through an email address adetunbiangco@gmail.com with the phone numbers clearly written. Thus both parties agreed that the document is in existence. Both parties pleaded it and pleaded to rely on it. Also both parties front loaded it. And the document is very crucial and relevant for the proper determination of this case. The National Industrial Court is a specialized Court established to handle labour and employment related matters for two specific reasons. The first reason is to ensure that such matters are determined expeditiously and without delay as opposed to trial in the ordinary Courts. This reason is very crucial considering the fact that labour rights are primarily rights in person am as against rights in rem, in which case, time is of essence in determining such rights. Globally, the resolution of labour disputes is guided, among others, by this principle that: it is better to have a bad decision quickly than a good decision too later. See B. B. Kanyip-National Industrial Court Jurisdiction: “How Narrow is Narrow” (Hybrid Consult: Lagos) 2021, paragraph 13 page 7. This first reason also underscores the importance of labour as a factor of production which is very critical to economic growth and development of the country. The second reason which is equally very important is to ensure that technicality is not allowed to operate in the Court against substantial justice. To achieve this purpose, the National Industrial Court Act 2006 statutorily and clearly provided in Section 12(2) that:
(a) the Court may regulate its procedure and proceedings as it thinks fit; and
(b) shall be bound by the Evidence Act but may depart from it in the interest of justice.
I must use this opportunity to state clearly that this Court in the case of SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013 the judgment of which was delivered on 21st December, 2016 did not invalidate nor diminish in any manner or form the provisions or intendment of Section 12(2) of the National Industrial Court Act 2006.
In that case, (SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013), the National Industrial Court admitted in evidence public documents that were not certified on the ground that Section 12(2) permitted the Court to depart from the Evidence Act. The Court of Appeal held that the provisions of Section 12(2) of the National Industrial Court Act 2006 cannot operate to encumber the provisions of the Evidence Act 2011. Part of the reasons upon which this Court based its decision was that the Evidence Act 2011 was made by the National Assembly subsequent to the National Industrial Court Act 2006. However, in that case the attention of this Court was not drawn to the following facts:
“Firstly, granted that the Evidence Act 2011 in the explanatory note as well as in Section 256 made it clear that the new Evidence Act in repealing the old one ‘shall apply to all judicial proceedings in or before Courts in Nigeria’. Section 4(2) (b) of the Interpretation Act Cap. 123 LFN 2004, provides that where an enactment is repealed and another enactment is substituted for it, then any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. It should be noted that by Section 1 of the Interpretation Act, the Interpretation Act “shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question”.
Secondly, Section 2 of the Evidence Act 2011 itself, provides that ‘for the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies’.
The proviso to Section 2, provides that the admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under the Evidence Act. The implication is that Section 2 acknowledges that there are existing laws that exclude the application of even the Evidence Act 2011.
Thirdly, Section 3 of the Evidence Act 2011, provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”. A fortiori, if another legislation makes any evidence inadmissible, the intention of the legislature in that regard must be respected. Meaning that, Section 3 must be read to mean nothing in this Act shall prejudice the admissibility or otherwise that is to say; inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria.
Fourthly, Section 12(2) of the National Industrial Court Act 2006 is not delimited by time or date. It talks of “Evidence Act”, not “Evidence Act 1990 or 2004”. Therefore, the notion that the Evidence Act 2011 is subsequent to the National Industrial Court Act 2006 that is because the National Industrial Court Act was passed in 2006, it cannot be said that the Evidence Act 2011 was contemplated under it, cannot really hold ground as the National Industrial Court Act 2006 simply talks of the “Evidence Act”. Even if Section 12(2) of the National Industrial Court Act were delimited by time or date, Section 4(2) (b) of the Interpretation Act took care of the problem. With very due respect, had the attention of this Court been drawn to the foregoing factors certainly this Court would have held otherwise, therefore; I maintain that Section 12(2) is extant and applicable at the National Industrial Court.
In view of the foregoing, I hold that Section 12(2) of the National Industrial Act 2006 ought to apply to this case and it is hereby applied. The lower Court ought to have departed from the provisions of Section 84 of the Evidence Act 2011 which is hereby departed from. Consequently, the order of the lower Court discountenancing and expunging the said Exhibit VG14 is hereby set aside, the said Exhibit VG14 is to be given its probative value. This issue is consequently resolved in favour of the Appellant and against the Respondent.

Having resolved the two (2) issues raised in this case in favour of the Appellant, this appeal certainly is not lacking in merit. It ought to be allowed and it is hereby allowed.

However, the lower Court clearly refused to consider the merit of the case as stated above. This failure to deal with the merit of this case is clearly against the admonition of the Supreme Court in Brawal Shipping Company v Onwadikwe Company (2000) 6 SCNJ 508 at 522, Seven Up Bottling Company Ltd v Abiola & Sons Bottling Company Ltd (2001) 6SCNJ 18 at 49, that trial and penultimate Courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted back to the lower Court for the trial of the issues not determined by it. See also Ojogbue v Nnubia (1972) 6 SC 27 and Katto v CBN (1991) 9NWLR (Pt. 214) 126 at 149.

Consequently, this case ought to be sent back to the trial Court for determination on the merit. But, this suit was filed at the lower Court on 4/2/2019, so sending it back to the trial Court would certainly further delay the case. Based on the authority of Section 15 of the Court of Appeal Act I shall determine the merit or otherwise of this case.

I adopt the two issues raised by the learned counsel for the claimant as mine and shall resolve the two issues by treating the claims of the claimant seriatim as follows:
Claims 1, 2 and 4 primarily are asking for a declaration that the act of the defendant in dismissing the claimant is unconstitutional, ultra vires, null, void and of no effect whatsoever for want of fair hearing and failure to follow due process of the law.

There is no dispute that the employment relationship between the parties is one governed by the common law which in ordinary parlance is referred to as a master and servant relationship. In such a relationship, the moment the employment relationship is determined whether by termination or dismissal, it can only be wrongful but not unlawful, null and void. In other words, the determination of that employment relationship is final, except in very few circumstances, meaning that specific performance of reinstatement cannot be a remedy to any aggrieved party. See SPDC (Nig) Ltd v Ifeta (2001)11 NWLR (724)473 and Isievwore v. NEPA [2002] 13 NWLR (Pt. 784) 417 SC. The employee under that circumstance is entitled to damages for wrongful termination or dismissals. See Afribank (Nig) Plc V Osisanya (2000) 1 NWLR (Pt.642) 592 and Ilodibia v Nigeria Cement Company Ltd (1997) 7 NWLR (Pt.512)174. For the foregoing reasons, these reliefs are bound to fail and they have failed, I so hold.

In claim 3, the claimant alleged denial of fair hearing. In paragraphs 9-14 of his statement of claim the Appellant pleaded the facts that he received a memo requesting for the where about of the signed ATC at Dangote Flour Mills Plc.”, that “in a swift reply to the memo” he “submitted his answers thereto” that despite his reply “on 13th of January, 2016, he received a memo” inviting him to appear before the defendant’s Corporate Office Disciplinary Committee in Ibadan on Friday the 15th of January, 2016”. It is the submission of counsel that 3 out of the 5 persons invited honoured the invitation. That the other 2 (two) persons who were absent at the Disciplinary committee meeting at Ibadan on the 15th of January, 2016 were never called upon again to testify as regards their respective role and responsibility on the ATC so as to afforded him the opportunity to cross-examine them.

It is important to note that the Appellant pleaded the fact that the meeting was a teleconference anchored. By Exhibit VG17, it is clear that the 5 persons were present. I hold that the complaint of the Appellant then was based on the persons he saw physically in Ibadan during the hearing excluding the persons that attended electronically. There is no doubt from the pleadings and evidence above that the Appellant was given fair hearing. He was given adequate opportunity to state his case and he did state his case.

Assuming those 2 (two) other persons were absent during the hearing they were co-accused who equally had to explain the role each of them played, at nowhere did the Appellant state any evidence which they gave against him. It has been held that fair hearing is not an abstract term that a party can dangle in the justice process but one which is real and which must be considered in the light and fact and circumstance of the case. That a party who alleges that he was denied fair hearing or that the due process was not followed must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic. See the case of Imasueh v Uniben (2011) All NWLR (Pt. 572), 1791 at 1812. I hold that this claim is lacking in merit and ought to be dismissed. It is hereby dismissed.

Claim 5 is for the Defendant to pay the Claimant all his full salaries, emoluments and allowances effective from the date of his purported suspension till the date of judgment and thenceforth. This claim falls within the realm of special damages which must be particularly pleaded and strictly proved. See Savannah Bank of Nigeria PLC v Central Bank of Nigeria & Ors (2009) ALL FWLR PT 481 P. 939 at 1006, in Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207 at 238 the Court held that special damages must be specifically pleaded and strictly proved. Therefore, a party claiming special damages must state with necessary details or particularity how the sum claimed is arrived at. In this case, the Appellant failed to state and to prove what he earns as salary, allowances and other benefits to which he is entitled to, he also did not plead or give evidence when last he was paid. This claim is therefore refused.

However, there is no dispute that the claimant was dismissed. There is a world of difference between termination of employment and dismissal. Dismissal carries infamy and deprives the dismissed employee of benefits while termination of employment does not. Therefore in matters affecting the dismissal of an employee for whatever reason, the employer is expected to show a reason for the dismissal, a reason which the law would accept as sufficient to warrant the dismissal of the employee. See Abomeli v NRC (1995) 1 NWLR (Pt.372) 451.
Therefore, the onus is on the employer that is the defendant to show reasons and justify the dismissal to the satisfaction of the Court. At the risk of repetition, the Appellant was accused in paragraph 2(c) of the statement of defence of mishandling of ATC stocks in that “instead of delivering same to the BOM in line with the mandate of the defendant as contained in CACOM handed them over to the Relationship Manager who in turn handed them over to the customer i.e Sadiq Umar General Enterprises Nigeria Limited”. In paragraph 3(c) of the Statement of defence, the defendant/Respondent pleaded the said CACOM and front loaded same. Also in paragraph 4 of her said statement of defence, the Respondent pleaded the fact that the claimant was found guilty for gross misconduct under the defendant’s Group HR Disciplinary Process and Sanctions Policy and was dismissed. The Respondent also pleaded and frontloaded the said Group HR Disciplinary Process and Sanctions.
However, the Respondent restrained and did not tender any of the 2(two) documents CACOM and Group HR Disciplinary Process and Sanction, the only way to explain the refusal to tender these documents is that they will not help the justification of the dismissal of the claimant/Appellant in this case.
In any case, I have looked at the documents being materials in the file while the alleged act of “failure to follow due process in releasing of ATC to customer” levelled against the Appellant took place in 2014, the said CACOM was issued and executed on 3/12/2015 see pages 136 – 138 of the record.
Again the Respondent failed to show the clause, paragraph or section of the said Group HR Disciplinary Process and Sanction that was followed in dismissing the Appellant. I hold that the Respondent failed to justify the dismissal of the Appellant. Therefore his dismissal was wrongful.

I have held above that the claimant did not plead nor prove what his last salary was with the defendant. However, Section 14 of the National Industrial Court Act 2006 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided. The implication of the foregoing is that in relation to labour or employment and or related matters, the doctrine or principle of law that the Court does not grant a relief not asked for by the parties is expressly and statutorily removed. Meaning that the National Industrial Court is granted powers to grant a relief not asked for as long as the merit of the case will justify such grant.

Claim 6 is a monetary claim for general, exemplary and or aggravated damages against the Defendant. Section 19(d) of the National Industrial Court Act 2006 provides that the Court may in all cases and where necessary make any appropriate order, including an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.
I have held that the dismissal of the Appellant was wrongful in which case he is entitled to damages for wrongful dismissal. Flowing from the foregoing and in view of the fact that the career growth and progression of the Appellant as a banker was abruptly terminated, I shall award N6, 000,000.00 (Six Million Naira only) in damages for wrongful dismissal.

At the risk of repetition, I cannot end this judgment without emphasizing, that it must be borne in mind always, the nature of the National Industrial Court as a specialized Court established to ensure that labour and employment related matters are determined expeditiously and more importantly; that those matters are determined based on substantial justice devoid of technicalities. Because it is settled that a decision arrived at by a Court which is based on technicality is no decision as technicality in the administration of justice shuts out justice. It is therefore better to have a case heard and determined on the merits than to leave the Court with a shield of victory on mere technicality. See Ogbonnaya v Mbalewe (2005) 1 NWLR (Pt. 907) 252

In all, this appeal is allowed. The dismissal of the Appellant is hereby set aside.

The Respondent shall pay the Appellant the sum of N6,000,000.00 (Six Million Naira only) in damages for wrongful dismissal on or before the 30th day of July, 2022 failing which it shall attract 20% interest per annum until fully liquidated.

The Respondent shall also pay the Appellant the sum of N100, 000 (One hundred thousand naira only) as cost of this appeal.

​Judgment is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother, KENNETH IKECHUKWU AMADI, Ph.D JCA. I am in total agreement with his reasoning and final conclusion.

My learned brother has taken great pains to comprehensively deal with all the issue donated for determination. I have nothing more useful to add.

I therefore also hold that this appeal is meritorious and it is hereby allowed. I abide by all the other orders in the lead judgment including that as to cost.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, KENNETH IKECHUKWU AMADI, JCA. I agree with the reasoning of my learned brother and the conclusion that the appeal is allowed. I allow the appeal and abide by the consequential orders.

Appearances:

L. O. BELLO, with him, OLAWALE OGUNDELE For Appellant(s)

KHALIL O. AJANA For Respondent(s)