ALHAJI M.K. v. FIRST BANK OF NIGERIA PLC & ANOR
(2011)LCN/4587(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2011
CA/K/150/2009
RATIO
RECOMMENDATION: DEFINITION OF THE WORD “RECOMMENDATION”
I buy in toto the definition of the word “recommendation”, as borrowed by the court below from the Black’s Law Dictionary 6th edition, page 1272, thus: “Recommendation refers to an action which is advisory in nature rather than one having any binding effect. PER OBANDE OGBUINYA, J.C.A.
INTERPRETATION OF DOCUMENTS: WHETHER A DOCUMENTS MUST BE INTERPRETED HOLISTICALLY AND HARMONIOUSLY
In my humble view, the recommendation of the Committee is equal to its decision. In holding this opinion, I employ, as a compass, the hallowed principle of law that a document is interpreted holistically and harmoniously in order to decipher or discern its purport. In this regard, I drum up support from the case of NIGERIAN ARMY v. AMINUKANO (2010) 5 NWLR (Pt. 1188) 429 at 457, wherein Muhammad, JSC, lucidly stated:- “Although exhibit P45 is not an Act of Parliament or a piece of any Legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.” See, also, ARTRA IND. NIG. LTD. V. N.B.C.L. (1998) 4 NWLR (Pt. 546) 357 or (1998) 3 SCNJ 97; UNILIFE DEV. CO. LTD. v. ADESHIGBIN (2001) 4 NWLR (Pt.704) 609 or (2001) 2 SCNJ 116. PER OBANDE OGBUINYA, J.C.A.
DECISION: MEANING OF THE WORD “DECISION”
In holding this viewpoint, I take sanctuary under the provision of Section 318(1) of the 1999 Constitution which defines decision thus:- “decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”. Granted that the Committee was not a court, I have the licence of the law to forage for the meanings of words that are not defined in an instrument and use them as beacons in construing a document before the court. By analogy, the case of C.C.B. LTD. v. ATTORNEY-GENERAL, ANAMBRA STATE (1992) 10 SCNJ 137 at 163-164 is in point. Secondly, this, construction of documents, is an issue of law which is at the breast of a Judge and he can use same, any time the need arises, without the prompting of learned counsel, see OKOCHI v. ANIMKWOI (2003) 18 NWLR (Pt. 851) 1. Thirdly, recommendation having been constitutionally categorized under decision, it loses whatever ordinary meaning ascribed to it. In the case of DAPIANLONG v. DARIYE (2007) 8 NWLR (Pt. 1036) 332 at 447, Aderemi, JSC, observed:- “…the arguments of the 1st respondent … have persuaded me to examine other relevant provisions of the Constitution… Before I do that let me quickly remind myself that where words or expressions in the provisions have been legally or judicially defined or determined, their ordinary meaning will definitely give way to their legally or judicially defined meanings; that was the decision in Acme builders ltd. v. k.s.w.b. (1992) 2 SC 1; (1992) 2 NWLR (Pt. 590) 288. This is in conformity with the principle of Judicial Precedent or stare Decisis us it is called. The word decision which includes recommendation, has been legally (constitutionally) and judicially defined, see YUSUF v. OBASANJO (2003) 15 NWLR (Pt. 843) 293; AWUSE v. ODILI (2002) 18 NWLR (Pt. 851) 116. PER OBANDE OGBUINYA, J.C.A.
INTERPRETATION OF CONTRACTUAL DOCUMENTS: PRINCIPLE OF LAW TO BE FOLLOWED IN THE INTERPRETATION OF CONTRACTUAL DOCUMENTS
By law, in construing contract involving more than one document, the documents must be read together, see CBN v. IGWILLO (2007) 14 NWLR (Pt. 1054) 393. Before I plunge into the communal consideration of the two signal documents, I must observe that I agree, hook, line and sinker, with the learned counsel that in construing contractual documents, they must be given their ordinary and grammatical meanings. This is the position of the law. In the case of UBN LTD. v. NWAOKOLO (1995) 6 NWLR (Pt. 127) 127 at 154 Onu, JSC, stated:- “It is trite that in the construction of documents, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. Accordingly, the words employed by them will be as construed and should be given their ordinary and plain meaning unless, of course, circumstance, such as trade usage or the like, dictate that particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties …. As a general rule therefore, words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses…” See, also, ABALOGU v. SPDC LTD. (supra); AGBAREH v. MIMRA (2008) 2 NWLR (pt. 1071) 378; OLOFU v. ITODO (2010) 18 NWLR (Pt. 1225) 545. PER OBANDE OGBUINYA, J.C.A.
INTERPRETATION OF CONTRACT/DOCUMENTS: WHETHER THE COURT CAN READ INTO A CONTRACT, TERMS ON WHICH THERE IS NO AGREEMENT
In the case of BAKER MARINE (NIG.) LTD. V. CHEVRON (NIG.) LTD. (supra), at pages 287-288 Ogbuagu, JSC, graphically re-echoed the law thus:- “It has been stated and restated in a number of decided authorities that in the interpretation of contracts or documents, the basic principle of law, is that, it is not the duty of any court or tribunal, to make contracts for the parties … Contracts, as a rule are made by the parties thereto who are bound by the terms thereof and the courts are always reluctant to read into a contract terms on which there is no agreement …. In other words, a Court or Tribunal cannot write a new contract for the parties….” See, also, IFETA v. S.P.D.C. (NIG.) LTD. (supra); AFROTECH TECH. SERVICES LTD. v. MIA & SONS v. LTD. (supra); AGBAREH v. MIMRA (supra); BEST (NIG.) LTD. v. B.H. (NIG.) LTD. (2011) 5 NWLR (Pt.1239) 95. PER OBANDE OGBUINYA, J.C.A.
BRIEF OF ARGUMENT: POSITION OF THE LAW WHERE AN OPPONENT FAILS OR NEGLECTS TO COUNTER ANY ARGUMENT OR ISSUE VALIDLY RAISED IN THE BRIEF OF ARGUMENT OR DURING ORAL PRESENTATION
It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting party. PER OBANDE OGBUINYA, J.C.A.
ADMISSION OF FACTS: WHETHER WHAT IS ADMITTED NEEDS FURTHER PROOF
The law is settled that what is admitted needs no further proof, see, SECTION 75 OF THE EVIDENCE ACT, CAP. E14, LAWS OF THE FEDERATION OF NIGERIA, 2004, EJABULOR v. OSHA (supra); OLOFU v. ITODO (supra); IYERE v. B.F.F.M. LTD. (2008) 18 NWLR (Pt. 1119) 300; JOLASUN v. BAMGBOYE (2010) 18 NWLR (Pt. 1225) 285. PER OBANDE OGBUINYA, J.C.A.
JUSTICES
T.N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
J.T. TUR Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI M.K. Appellant(s)
AND
1. FIRST BANK OF NIGERIA PLC
2. UGO UZOUKWU Respondent(s)
OBANDE OGBUINYA, J.C.A.(Delivering the Leading Judgment): Sometime in 2005, precisely on 09/11/2005, the appellant’ as a plaintiff, via a writ of summons, instituted an action, which led to this appeal, in suit No. K/657/2005, against the respondents, in the High court of Kano State presided over by Hon. Justice P.A. Mahmoud. The said trial court delivered its judgment on 30/03/2009.
The facts of the case, as can be gleaned from the processes filed by both parties, are simple. The appellant was an employee of the first respondent bank, one of the customers of the first respondent, Alin Baffa and Sons Limited, alleged against the appellant that he made several unauthorized withdrawals, running into huge sums of money, from its account with the first respondent. It also alleged that those withdrawals were made without cheques, or any written instruments, and that caused the first respondent to refund over N25M Naira to the company customer.
Following those allegations, an investigative panel was set up by the first respondent and it sat, in Kano on 08/07/2004, over the allegations. The appellant and the complainant were duly represented and fairly heard in that panel. The panel forwarded its report to the Head office Disciplinary committee of the first respondent for further action. The committee sat, on 16/08/2004, in the first respondent’s head office in Lagos and the appellant was duly and fairly heard. The committee found him “guilty as charged” for a dismissible offence over the allegations, but recommended for a termination of his employment. However, the first respondent ignored the recommendation and dismissed the appellant from its employment. On 20/10/2005, the first respondent wrote a letter to the appellant and demanded for a refund of the sum of N25.7M Naira being an unauthorized sum withdrawn from the account of the company, Alin Baffa and Sons Limited. The first respondent warned, in that letter, that his failure to comply would lead to legal consequences, including a resort to the Economic and Financial crimes commission (EFCC). The appellant took the letter as libellous for being published to other officials of the first respondent.
Sequel to the dismissal and the claimed defamatory letter, the appellant approached the High Court of Kano State, on 09/11/2005, and claimed against the respondents as follows: damages for wrongful dismissal from the employment of the first respondent, payment of accrued pension in lump sum, payment of gratuity or leaving service benefits, payment for performance in 2003 and 2004 and damages for defamation against the respondents jointly and severally.
The matter went through a full-scale trial. The appellant testified in person to prove his case. The respondents fielded one witness to disprove the appellant’s case. Tons of documentary evidence, exhibits, were tendered in the proceedings. After the addresses of learned counsel, the lower court, in a considered judgment, on page 258 of the printed record, held:- “On the whole therefore I find that this claim fails and I accordingly dismiss it.”
Aggrieved by that decision, the appellant filed the instant appeal, via a notice of appeal filed on 29/04/2009 hosting ten grounds of appeal.
Subsequently, the appellant sought for and was granted leave by this court to file an additional ground of appeal. Following that leave, the appellant filed an eleven-ground of amended notice of appeal on 21/06/2010. Briefs of argument were duly filed and exchanged by parties.
When the appeal came up for hearing on 01/03/2011, both parties were duly represented. On that day, learned counsel for the appellant, Olajide Ayodele, SAN, adopted the appellant’s brief of argument, filed on 21/06/2010, as representing his arguments in support of the appeal.
He relied particularly from pages 16-30 of the brief in urging the court to allow the appeal. In the same vein, learned counsel for the respondents’ S. Eigbedon, Esq., adopted the respondents’ brief of argument, filed on 19/07/2010, as forming his submissions against the appeal. He also adopted the respondent’s notice, filed on 19/07/2010, with the arguments thereon contained in the respondent’s brief of argument. He urged the Court to dismiss the appeal.
In the appellant’s brief of argument’ three issues for determination were crafted to wit:
“(i) whether the trial court correctly interpreted paragraph 11 (c) at page 39 of the Employee’s Hand book which is at page 187A of the record of proceedings.
(ii) Whether the learned trial Judge was correct in stating that the plaintiffs claims (sic) is neither for wrongful termination nor for wrongful dismissal?
(iii) whether the learned trial Judge was correct when she held that the plaintiff did not prove publication of libel?”
Contrariarse, the respondents, in their brief of argument’ framed three issues for determination viz:
“3.01.1. Whether or not a recommendation made by the Head office Disciplinary Committee after a finding of “guilty as charged” was a decision of the Committee and if so, it was binding on the 1st respondent.
3.02.2. Whether or not the presence of the Chairman of the investigative Committee on the Head office Disciplinary Committee breached the appellant’s right to fair hearing.
3.03.3. Whether or not the admission of the writing and publication of a letter amongst officials (i.e. employees and agents) of the 1st defendant amount to admission of publication to third parties in proof of defamation by law, and if so, whether the plea of justification raised by the respondent availed them having regards to the evidence before the court.”
I have matched the appellant’s issues against those of the respondents. I have, also, scrutinised them along the line of law. I hold the view that the issues formulated by the appellant are more apposite for the determination of this appeal. The reasons are obvious. Apart from the appellant’s issues exhibiting precision and brevity, the hallmarks of issues for determination, the respondents’ issues can be properly subsumed under them, the appellant’s. To this end, I will utilise the appellant’s issues for the determination of this appeal.
ISSUE ONE
On that issue, learned counsel for the appellant submitted that the central issue in the appeal was the interpretation given to paragraph 11(c) of the first respondent’s Employee Handbook, exhibit 16, and the contents of the committee’s report, exhibit 12, by the lower court. He took the view that the court below brought in extraneous matters in interpreting Paragraph 11(c) of exhibit 16, and gave it a different colouration, instead of giving it the required simple, ordinary and grammatical meaning and led it to arrive at a wrong conclusion. He added that the court below glossed over the content of that paragraph 11 (c) of exhibit 16 – which was agreement between the appellant and the first respondent. He noted that the learned trial Judge declared the decision of the Committee as ultra vires when that was not part of the respondent’ case either in their pleadings or evidence. He held the view that that declaration amounted to making out a case for the respondents for which the appellant had no opportunity to react to.
Learned counsel identified three flaws in the conclusion reached by the lower court with respect to paragraph 11(c) of exhibit 16 and exhibit 12 as follows:- (a) that it applied common sense approach instead of ordinary and grammatical meanings; (b) that the decision of the Committee was that the appellant be dismissed; and (c) that it concerned itself with the word “recommendation” rather than the expression, “Depending on the decisions of the Disciplinary Committee.” He insisted that the court below was expected to find out the decision of the Committee and whether the decision of the first respondent was dependent on that of the Committee. He maintained that the terms and conditions of employment of the appellant had paragraph 11(c) of exhibit 16 as one of their cardinal principles. He stated the law that the court below was bound to interpret those terms and conditions (the agreement) which parties entered into and not to make one for them. In support, he cited the case of IFETA v. S.P.D.C. (NIG.) LTD. (2006) 8 NWLR (Pt. 983) 583 at 605. He emphasised the law that a court of law should not read into a contract words and conditions not contained therein.
He drew the court’s attention to the recommendation of the Committee, exhibit 12, Paragraph 10.1 thereof, contained on page 137 of the record, and submitted that no one had the power to exclude the recommendation. He noted that the appellant’s complaint was that the court below tinkered with the decision of the Committee. He referred to the conclusion of the learned trial Judge on pages 255 – 256 of the record, wherein she made a case, of retirement’ different from the appellant’s case.
He went further to draw the court’s attention to the conclusion of the court below on page 255 and insisted that it seemed to interpret paragraph 10 of exhibit 12 without recourse to paragraph 1 I (c) of exhibit 16. He maintained the point that the decision of the first respondent dependent upon that of the Committee in line with paragraph 11(c) of exhibit 16. He outlined the said paragraph 11(c) of exhibit 16.
He stated the phrase “depending on”, in paragraph 11(c) of exhibit 16, had been held to be synonymous with the term “subject to” in the case of OLORUNTOBA-OJU v. ABDUL-RAHEEM (2009) ALL FWLR (pt. 497) 1 at 43-44, Per Adekeye, JSC. He urged the Court to adopt that interpretation by the Supreme Court.
Learned counsel further submitted that by the decision of the committee, contained in paragraph 10 of exhibit 12 and on page 137 of the record, the appellant’s appointment ought to be terminated instead of being dismissed, as shown in exhibit 15, because of paragraph 1(c) of exhibit 16 even when the Committee reached a decision with that word.
He added that the meaning given to the word, recommendation, by the court below, as being advisory without binding effect without reference to paragraph 11(c) of exhibit 16 was in isolation. The first respondent, according to learned counsel, had no discretion on the measure to be taken against the appellant. He insisted that the learned trial Judge failed to read the whole of paragraph 10.1 of exhibit 12.
On the holding, by the learned trial Judge, that the decision of the Committee was ultra vires, learned counsel took the view that it was not.
He stated that the Committee’s decision, that the appellant’s appointment be terminated instead of his being dismissed summarily, was not outside paragraph 11(c) of exhibit 16. He repeated that the point was never part of the respondents’ case. He added that if the court below had interpreted paragraph 10.1 of exhibit 12 and paragraph 11(c) of exhibit 16 together, it would have noticed that the Committee did not act outside its powers. He placed reliance on the case of BAKER MARINE (NIG.) LTD. v. CHEVRON (NIG.) LTD (2006) 13 NWLR (Pt. 997) 216 at 287-288, on the duty of court not to make contracts for parties.
He concluded by insisting that paragraph 11(c) of exhibit 16, given its ordinary meaning, was binding on the first respondent.
For the respondents, on issue one, their learned counsel contended that the recommendation of the Committee, that the appellant’s employment be terminated instead of his being summarily dismissed after finding him “guilty as charged”, was not a decision , ultra vires and not binding on the first respondent and the court below was right in its judgment. He drew the court’s attention to paragraph 11(c) of exhibit 16 and further contended that it was a wrong interpretation of it to hold that the decision of the committee was its recommendation rather than its verdict of guilty as charged” of a dismissible offence. In learned counsel’s view, a recommendation made on compassionate grounds would not be a negative verdict or decision of “guilty as charged”.
He agreed with the finding of the learned trial Judge that the Committee’s decision was that the appellant committed offences which warranted summary dismissal and that clause 11(c) of exhibit 16 contained no provision for recommendations. It was his contention that a wrongful dismissal could not arise or be sustained from non-compliance with a recommendation and that if the committee’s recommendation was a decision, it was, at best, a decision to recommend. He drew an analogy, on the Committee’s recommendation, with a court that found an accused guilty of an offence with a prescribed punishment, and went ahead, unsolicitedly, to recommend a reprieve, which was not provided in law, its decision was still the finding of guilt. He cited the case of KATO v. CBN (1999) 5 SCNJ 1 for the principle that a court would not go outside the terms of contract in deciding the rights and obligations of the parties. He went further to contend that the lower court’s finding that there was no provision for recommendation in the Employee Handbook, exhibit 16, led to the conclusion regarding the legal consequence that the recommendation was urtra vires the committee. He stated that a court would confine itself to the plain words and meaning in construing a written agreement and cited the case of ABALOGU v. SPDC LTD. (2003) 6 SCNJ 262. He persisted that the court below never went outside the Employee Handbook to make any agreement for them, but rightly found that the recommendations were not the decisions provided for in paragraph 11(c) of exhibit 16. He noted that the appellant’s claim’ whether for wrongful dismissal or termination or retirement, could not be sustained by reference to the provisions of the contract of service in the Employee Handbook; adding that he failed to prove the first respondent’s non-adherence to the terms of his employment.
He took the view that even if the Committee had powers of decision to recommend, any such recommendation could not be binding on the first respondent for lack of such in the Staff Manual. He made reference to the definition of recommendation in the Black’s Law Dictionary, 6th edition, page 1727, adopted by the learned trial Judge, that, “Recommendation refers to an action which is advisory in nature rather than one having any binding effects”. He insisted and noted that the fact that the respondents did not raise the issue of the recommendation being ultra vires the committee would not be fatal to the clear and unquestioned exercise of the rower court’s power to make a finding on that the legal consequences of absence of provision on recommendation. He sought in aid the case of OKOYE v. KPAJIE (1992)2 SCNJ 290 at 292 on the power of the court to resolve issue using pleadings and evidence even though not referred to by counsel.
He further contended that the respondents pleaded that the recommendation was not binding on them; adding that a court had inherent powers to make legal pronouncement, on evidence before it, even if it was not mentioned or differently put by counsel. He maintained that there was nowhere in exhibit 12 where recommendations were provided for most particularity after the appellant had been found “guilty as charged” of a dismissible offence. He referred to the case of AFROTECH TECH. SERVICES LTD. v. MIA & SONS LTD. (2000) 12 SCNJ, 298, where it was held that parties were bound by the terms of their contract.
Learned counsel posited that interpretation of document was a matter of law and that the words in exhibit 12 were clear and unambiguous and never admitted of any extraneous matters or materials. He relied on the case of NNAYELUGO ODUKWE v. MRS. ETHEL OGUNBIYI (1998) 6 SCNJ 102 at 113 for the rule of law that a wrong reason would not defeat a decision, but established error that occasioned injustice to the parties. In addition, he cited the case of BALEK (NIG.) LTD. v. OMPADEC (2007) 2 SCNJ 218. He conceded that the cases of IFETA v. SPDC (NIG.) LTD (supra) and BAKER MARINE (NIG.) LTD. v. CHEVRON (NIG.) LTD. (supra), cited by the learned counsel for the appellant, were in favour of the respondents’ case and he adopted them. He, however, observed that the case of OLORUNTOBA-OJU v. ABDUL-RAHEEM (supra), cited by the appellant’s Counsel, was quite inapplicable herein. He urged the Court to resolve the issue against the appellant.
ISSUE TWO
On behalf of the appellant, his learned counsel alluded to the holding of the learned trial Judge, on pages 255-256 of the record, that the appellant’s claim was neither based on wrongful dismissal nor wrongful termination of his appointment, but that he ought to be retired. Learned counsel maintained that the holding overlooked the appellant’s pleading and evidence which showed that his basis of claim was on wrongful dismissal from employment. He added that the appellant claimed that if he were not wrongly dismissed from his employment, he would have been entitled to six months notice and the other claims in the pleadings and that there was no contrary evidence from the respondents.
He emphasised that the appellant’s case was that his appointment should have been terminated as provided in paragraph 10.1 of exhibit 12 and not dismissed as in exhibit 15.
Learned counsel brought to the notice of the court the appellant’s claims in paragraphs 37 and 41 of his further amended statement of claim and his evidence-in-chief on pages 15-16 of the record. He then posited that the basis of the appellant’s claim was’ both on the pleading and evidence, absolutely clear – his employment ought to be terminated rather than he being dismissed as in exhibit 15.
To keep the records straight, the learned counsel for the respondents proffered no submissions for them on that issue two.
ISSUE THREE
Learned Counsel for the appellant intimated the court of the holding of the court below to the effect that publication of exhibit 14, the alleged defamatory letter, to the employees of the first respondent was no publication since they were involved in the production of the offensive document. He then stoutly argued that the two cases, UKO v. MBABA (2001) 4 NWLR (Pt.704) 460 and ANAFE v. SANUSI (2001) 11 NWLR (Pt. 725) 542, on which the court relied on reaching that conclusion, never involved production of defamatory document but based on publication per se. He referred to the evidence-in-chief of the appellant on publication and Gatley on Libel and Slander’ 9th edition and, forcefully, argued that the appellant proved publication before the lower court. He placed reliance on the case of EJABULOR v. D.B. OSHA (1990) 5 NWLR (pt. 148) 1 at 21 on the law that liability for the publication of libel might arise either by participation or authorization. He recited paragraphs 35 and 36 of the appellant’s further amended statement of claim and paragraph 41 of the amended statement of defence and argued that the respondents admitted publication of exhibit 14 and no proof of same required under Section 75 of the Evidence Act.
To buttress the point, he cited the case of EJABULOR v. OSHA (supra). He observed that in addition to the unambiguous admission of publication, the appellant gave unchallenged evidence on it (publication). He pressed on the court to assess the damages for the libelous matter in exhibit 14 under the provision of section 16 of the Court of Appeal Act. On the strength of the above submissions, he, finally, urged the court to allow the appeal.
For the respondents, on that issue three, their learned counsel conceded that the respondents admitted publication among members of its staff. He, however, contended per contra that the second respondent and an unnamed official of the first respondent, who delivered the letter to the appellant, were not separate or distinct from the first respondent and so not third parties for purposes of publication. Learned counsel called those staff agents of the first respondent acting on the latter’s authority and in the course of their employment and would not have published the letters to themselves as third parties. He persisted that the admission of the publication was not such that would ground a suit of defamation. He cited the cases of: ODUTOTA v. PAPER SACK (NIG.) LTD. (2006) 12 SCNJ 188; EMIANFOR v. NIGERIAN ARMY (1999) 9 SCNJ 52 at 59. He held the view that the acts of those staff were those of the first respondent as their principal and no separation between them for purposes of publication in a libel suit. He added that an act of an agent acting within the scope of authority of a disclosed principal was, in law, that of his principal. He relied on the case of ATAGUBA & co. v. GURA (NIG.) LTD. (2005) 2 SCNJ 139. He urged the court to hold that publication was not proved.
In the alternative, learned counsel pressed the court to hold that the plea of justification made by the respondents in the lower court was sustained by the evidence therein; particularly as the appellant admitted’ under cross-examination, that he ordered withdrawals from a customer’s account without supporting cheques or other written authorisation. He invited the court to hold that the contents of the letter were true and correct and affirm the lower court’s decision on that ground, not on the ground the decision was made, pursuant to the respondents, notice filed under order 9 rule 2 of the court of Appeal Rules, 2007. He posited that the finding of guilt by the committee for unlawful withdrawals from the accounts of Alin Baffa and Sons Limited, a customer of the first respondent and loss of over N25M to it, was proof of the truth of the letter. He stated that truth was defence to libel. He placed reliance on the cases of: EDENOWO v. UKPONG (1999) 4 SCNJ 109 at 115; ILOABACHIE v. ILOABACHIE (200s) 5 SCNJ 284 at 299. On the basis of the foregoing arguments, learned Counsel urged the Court to dismiss the appeal.
For orderliness, I will take the resolutions of the three issues Seriatim, one after another. On this note, I will kick-off with resolving issue one. The fulcrum of this issue, which is the nucleus of this appeal, is on interpretation of documents tendered in the court below.
Interestingly, every court, either of first instance or appellate, has the mandate of the law to consider documentary evidence in any proceedings. In particular, where the construction of a document tendered in proceedings is called to question, as in the instant case, this court has the power to evaluate or re-evaluate them, see: FAGUNWA v. ADIBI (2004) 17 NWLR (Pt. 903) 544; ODUWOLE v. AINA (2001) 17 NWLR (Pt. 741) 1; F.A.T.B. LTD. v. PARTNERSHIP INVESTMENT CO. LTD. (2003) 18 NWLR (Pt. 851) 53; UBA PLC v. BTL IND. LTD. (2006) 19 NWLR (Pt. 1013) 61; AGBKOBA v. INEC (2008) 18 NWLR (Pt. 1119) 489.Here, the two pivotal documents that fall for re-appraisal are:
minutes of the meeting of the Committee, exhibit 12, and Employee Handbook, exhibit 16, and paragraphs 10.1 and 11(c) thereof respectively. The court is being invited to pronounce on their relationship vis-a-vis the appellant’s claims. For ease of reference and better appreciation, it is imperative to cull those two paragraphs from the exhibits verbatim ac literatim. Paragraph 10.1 of exhibit 12 reads:-
“10. Recommendation.
10.1 The Committee noted that Mr. Guibu acted unprofessionally and was found guilty as charged. It was also noted that the offence committed by him attracts summary dismissal but in view of his length of service (34 years), the Committee recommended that the sanction be mitigated to Termination of appointment. ”
In the same manner, Paragraph 11(c) of exhibit 16 states:-
“11. DISCIPLINARY PDROCEDURE
Management reserves the prerogative to discipline erring staff in accordance with the Bunk’s laid down rules and regulations. The following procedure applies:
(c) Depending on the gravity of the offence, the case could be referred to the Head Office Disciplinary Committee (HODC) or Human Capital Management Disciplinary Committee depending on the locution/grade of the affected employee. Subsequently, the employee may be let-off, cautioned verbally, issued caution letter, warned in writing or have his/her employment terminated/summarily dismissed depending on the decision of the Disciplinary Committee(s). ” To do justice to this nagging and central issue, a convenient starting place is to trash out the knotty point as to whether or not the Committee’s recommendation, encapsulated in paragraph 10.1 of exhibit 12, was a decision as envisaged by paragraph 11(c) of exhibit 16. This is because both learned counsel strongly expressed discordant views on it even as each made a heavy weather of his view point. Learned counsel for the appellant took the stance that the recommendation was the decision of the Committee whilst learned counsel for the respondents took an opposite and diametrically opposed stand. The court below aligned itself with the view of the learned counsel for the respondents.
To begin with, I buy in toto the definition of the word “recommendation”, as borrowed by the court below from the Black’s Law Dictionary 6th edition, page 1272, thus: “Recommendation refers to an action which is advisory in nature rather than one having any binding effect.” But, that is besides the issue. The stubbam point, begging to be resolved, is whether the Committee’s recommendation amounted to its decision in the circumstances of this case.
In my humble view, the recommendation of the Committee is equal to its decision. In holding this opinion, I employ, as a compass, the hallowed principle of law that a document is interpreted holistically and harmoniously in order to decipher or discern its purport. In this regard, I drum up support from the case of NIGERIAN ARMY v. AMINUKANO (2010) 5 NWLR (Pt. 1188) 429 at 457, wherein Muhammad, JSC, lucidly stated:-
“Although exhibit P45 is not an Act of Parliament or a piece of any Legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.”
See, also, ARTRA IND. NIG. LTD. V. N.B.C.L. (1998) 4 NWLR (Pt. 546) 357 or (1998) 3 SCNJ 97; UNILIFE DEV. CO. LTD. v. ADESHIGBIN (2001) 4 NWLR (Pt.704) 609 or (2001) 2 SCNJ 116.
Taking these binding authorities as indices, I have given a minute examination to all the portions of paragraph 10.1 of exhibit 12. I entertain no doubt, in my mind, that even though headed recommendation, the paragraph or passage evinces the decision of the Committee. This is more so when the Committee ought not to have used the words “decision” and “decided” otherwise it would have unwittingly usurped the ultimate powers of its appoint or, the first respondent. Besides, to my mind, a recommendation, no matter how couched, comes under the umbrella or canopy of a decision and an integral part of the latter. In holding this viewpoint, I take sanctuary under the provision of Section 318(1) of the 1999 Constitution which defines decision thus:- “”decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”. Granted that the Committee was not a court, I have the licence of the law to forage for the meanings of words that are not defined in an instrument and use them as beacons in construing a document before the court. By analogy, the case of C.C.B. LTD. v. ATTORNEY-GENERAL, ANAMBRA STATE (1992) 10 SCNJ 137 at 163-164 is in point.
Secondly, this, construction of documents, is an issue of law which is at the breast of a Judge and he can use same, any time the need arises, without the prompting of learned counsel, see OKOCHI v. ANIMKWOI (2003) 18 NWLR (Pt. 851) 1.
Thirdly, recommendation having been constitutionally categorized under decision, it loses whatever ordinary meaning ascribed to it. In the case of DAPIANLONG v. DARIYE (2007) 8 NWLR (Pt. 1036) 332 at 447, Aderemi, JSC, observed:- “…the arguments of the 1st respondent … have persuaded me to examine other relevant provisions of the Constitution…
Before I do that let me quickly remind myself that where words or expressions in the provisions have been legally or judicially defined or determined, their ordinary meaning will definitely give way to their legally or judicially defined meanings; that was the decision in Acme builders ltd. v. k.s.w.b. (1992) 2 SC 1; (1992) 2 NWLR (Pt. 590) 288. This is in conformity with the principle of Judicial Precedent or stare Decisis us it is called.”The word decision which includes recommendation, has been legally (constitutionally) and judicially defined, see YUSUF v. OBASANJO (2003) 15 NWLR (Pt. 843) 293; AWUSE v. ODILI (2002) 18 NWLR (Pt. 851) 116. It is for the fore-going reasons that I stick, tenaciously, to the view that recommendation is part of decision, in law, and, ipso facto, the recommendation of the committee was its decision in the circumstances of this case.
Having dispensed with this tangential and vexed point, I will now proceed to marry paragraph 10.1 of exhibit 12 with paragraph 11(c) of exhibit 16 with a view to discovering their connection with each other and ultimately on the appellant’s defunct employment. To start with, the parties are consensus ad idem that the Employee Handbook, exhibit 16, which wraps paragraph 11(c), is the written contract between the appellant and the first respondent. In particular, the first respondent, through its lone and star witness, DW1, admitted that in evidence, see page 27 of the record. Paragraph 11(c) of exhibit 16 incorporated the recommendation of the Committee as part and parcel of the contract between the appellant and the first respondent. By law, in construing contract involving more than one document, the documents must be read together, see CBN v. IGWILLO (2007) 14 NWLR (Pt. 1054) 393.
Before I plunge into the communal consideration of the two signal documents, I must observe that I agree, hook, line and sinker, with the learned counsel that in construing contractual documents, they must be given their ordinary and grammatical meanings. This is the position of the law. In the case of UBN LTD. v. NWAOKOLO (1995) 6 NWLR (Pt. 127) 127 at 154 Onu, JSC, stated:-
“It is trite that in the construction of documents, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. Accordingly, the words employed by them will be as construed and should be given their ordinary and plain meaning unless, of course, circumstance, such as trade usage or the like, dictate that particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties …. As a general rule therefore, words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses…”
See, also, ABALOGU v. SPDC LTD. (supra); AGBAREH v. MIMRA (2008) 2 NWLR (pt. 1071) 375; OLOFU v. ITODO (2010) 18 NWLR (Pt. 1225) 545.
The content of paragraph 11 (c) of exhibit 16 is plain, clear, precise and devoid of any ambiguity. On this score, it behoves one to apply this age long principle of interpretation of documents, in the absence of any trade usage or custom, to it. In this connection, the plain import of paragraph 11 (c) of exhibit 16 is, to my mind, that the punishment to be meted to any employee of the first respondent, like the appellant, must turn on the decision of a Committee. In the case in hand, it is the decision of the Committee, set up by the first respondent, which sat at its head office in Lagos on 16/8/2004 as shown in exhibit 12, paragraph 10.1 thereof that the first respondent must use, as a matter of compulsion, as the barometer for relieving the appellant of his employment.
The reason is not far-fetched. Since exhibit 16 constitutes the contract between them, then both parties are bound by its contents, inclusive of paragraph 11 (c) thereof. By the same token, the parties are, a extension, bound by the content of paragraph 10.1 of exhibit 12 which is an appendage to exhibit 16. Put starkly, the appellant and the first respondent must comply with the terms contained in the two documents even as this court lacks the vires to add or subtract from them. In the case of BAKER MARINE (NIG.) LTD. V. CHEVRON (NIG.) LTD. (supra), at pages 287-288 Ogbuagu, JSC, graphically re-echoed the law thus:-
“It has been stated and restated in a number of decided authorities that in the interpretation of contracts or documents, the basic principle of law, is that, it is not the duty of any court or tribunal, to make contracts for the parties … Contracts, as a rule are made by the parties thereto who are bound by the terms thereof and the courts are always reluctant to read into a contract terms on which there is no agreement …. In other words, a Court or Tribunal cannot write a new contract for the parties….”
See, also, IFETA v. S.P.D.C. (NIG.) LTD. (supra); AFROTECH TECH. SERVICES LTD. v. MIA & SONS LTD. (supra); AGBAREH v. MIMRA (supra); BEST (NIG.) LTD. v. B.H. (NIG.) LTD. (2011) 5 NWLR (Pt.1239) 95. It follows, on the premise of this state of the law, that the first respondent was willy-nilly bound to take into account the decision of the committee, as entrenched in paragraph 11 (c) of exhibit 16, in giving a marching order to the appellant in his employment. The first respondent must, without option, accept the decision of the Committee in which it mitigated the punishment for the appellant’s wrongs or misconducts from summary dismissal to termination on the grounds of longevity (34) years of his period of service to it. Anything short of these means that the first respondent went outside the four walls of their terms of contract as ordained in exhibits 12 and 16. Before the first respondent would have the latitude to ignore the decision, of the committee, in exhibit 12, the content of paragraph 11(c) of exhibit 16 must be varied, not by ignoring or sidetracking that decision as it did, but by another written agreement bilaterally agreed to by both parties. The reason is simple. In law, since the terms of their contract are in writing, exhibit 16, they can only be changed in writing, not viva voce or by conduct as exhibited by the first respondent, see CBN v. IGWILLO (supra); AGBAREH V. MIMRA (supra); BALTOL NIG.) LTD. v. NAVCON (NIG.) LTD. (2010) 16 NWLR (pt. 1220) 619. The point I am struggling to ram home is that the first respondent’s conduct, in summarily dismissing the appellant from its employment, as showcased in exhibit 15, in utter disregard to or contempt for the termination decision of the committee, flies in the face of the law.
The net effect of the foregoing is that the decision of the lower court endorsing that unjustifiable conduct of the first respondent, with all due reverence’ has no backing of the law. In a common legal language, that affirmation is caught in the intractable web of perverse decision. A perverse decision is one that ignores the facts and evidence before a court, see Udengwu v. uzoegbu (2003) 13 NWLR (pt. 836)136. I am afraid, the perversion snowballs into a miscarriage of justice in that it is potent enough to tilt this issue in favour of the appellant. In the eyes of the law, “a miscarriage of justice can only be said to present itself to a court of law when that court, after examination of the entire case, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained of, see AMADI NNP. (2000) 10 NWLR (pt.674) 76 at 111, per Karibi-Whyte, JSC; AKPAN v. BOB (2010) 17 NWLR (pt.1223) 421 at 479, per Muhammad, JSC; GBADAMOSI v. DAIRO (2007) 3 NWLR (pt.1021) 282; AKAYEPE v. AKAYEPE (2009) 11 NWLR (pt.1152) 217. I hold the considered view that but for the error in the construction of these documents, the appellant would have earned a more favourable result in the lower court. In the light of the foregoing reasons, I have no difficulty in resolving this issue (one) in favour of the appellant.
Having done away with issue one, I now delve into the consideration of issue two, id est, whether the court below was correct in stating that the appellant’s claims were neither for wrongful termination nor for wrongful dismissal. For a dispassionate examination of this issue’ paragraphs 41 and 50 of the appellant’s further amended statement of claim, contained on pages 42 and 44 of the record respectively, are of note and I reproduce them in the manner following:
“41. The plaintiffs claim against the Defendants is under the following sub-headings:-
(i) Damages for wrongful Dismissal from 1st Defendant’s employment being six months in lieu of Notice.
(ii) payment of the amount found to be due to the Plaintiff as Accrued Pension after 34 years service in the employment of 1st defendant in lump sum or payment of pension monthly for the rest of the lifetime of the plaintiff.
(iii) payment of Gratuity or “Leaving Service Benefits” after 34 years service in the employment of the 1st Defendant.
(iv) payment of pay for performance for the years 2003 to 2004.
(v) Damages against the 1st and 2nd Defendants jointly and severally for defamation and libelous publication.
50. WHEREUPON the plaintiff claims against the defendants as follows:-
(i) Six months pay in lieu of Notice … N452,634.00
(ii) Accrued pension converted to lump sum … N2,511,511.00 or in the alternative N63,543.14 per month for the rest of plaintiff life.
(iii) Gratuity or “Leaving Service Benefits” … N8, 316, 017.94
(iv) Pay for performance for the year 2003-2004 N4,500,0000.00
TOTAL = N15,780,162.94
(vi) The plaintiff also claims against the Defendants jointly and severally damages for libel limited to 5 Million naira.”
A careful perusal of these two paragraphs amply demonstrates that whereas paragraph 50 indicates, in the main, the appellant’s monetary claims, paragraph 41 points to the various heads under which he makes his claims. I cannot locate from these critical paragraphs, even with an eagle eye of a court, where the appellant anchored his claim to wrongful retirement. It is crystal clear to me that the appellant’s main claim is grounded on wrongful dismissal from his employment with the first respondent.
Beyond those two paragraphs, I have given an intimate reading to all other paragraphs of the appellant’s further amended statement of claim. This is to fulfil the law that a court must give an all-embracing examination to all the paragraphs of any pleadings so as to garner a flowing story of a party’s case, see OKOCHI v. ANIKWOI (supra).
Again, I cannot fathom out where the appellant, from the copious averments in his pleadings, premised his claim that he ought to have been retired.
Those were not all. The learned counsel for the respondents, in his infinite wisdom, did not respond to the submissions of the learned counsel for the appellant on this point. In law, that is a costly failure. The telling effect of that failure to answer to the appellant’s counsel’s submissions is that the respondents are deemed to have admitted them. On this principle of law, I draw on the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (pt. 1209) 518 at 586, where Onnoghen, JSC, held:-
“It is clear from the issues formulated and argued by learned senior counsel for the 1st and 2nd respondents in their brief of argument do not include argument on appellant’s said issue No. 8.
It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting party. I therefore, in the circumstance, hold that the 1st and 2nd respondents by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellant.”
it follows that the respondents played into the hands of the appellant, on this issue, when they failed to join issues with the arguments of the appellant therein. This omission, whether intention or inadvertent, makes the appellant hold an ace on this issue.
Against the backdrop of these reasons, I am justified to hold that the lower court, with due deference erred when on page 255 of the record, it found that: “The plaintiff’s claim is not based on wrongful dismissal or wrongful termination of appointment. His claim is based on the promise (sic) that he ought to have been retired instead of being dismissed or terminated”. Like in issue one, this is a perverse finding with all its destructive features. In the end, I resolve this issue (two) in favour of the appellant.
I will proceed to focus on issue three whether the court below was right to hold that publication of libel was not prove by the appellant. In attending to this stubborn issue, the averments in paragraphs 35, 36 and 37 of the appellant’s further amended statement of claim, on pages 41-42 of the record, and paragraphs 40 and 41 of the respondents’ statement of defence, on page 69 of the records, come in handy. They respectively state:-
“35. On or about the 20th day of October, 2005, the 1st defendant through the 2nd defendant published amongst members of its staff the allegation to the effect that the plaintiff made unauthorized withdrawals from its customer one ALIN BAFFA & SONS LIMITED’S account.
36. The 2nd Defendant in his letter dated 20th October, 2005 wrote words about the plaintiff to the effect that:
“RE: UNAUTHORISED WITHDRAWAL OF THE SUM OF N25,779, 657.50 FROM ACCOUNT NO.2152050002455 BELONGING TO ALIN BAFFA & SONS LIMITED
We refer to previous correspondence on the above subject and advise that the bank’s inquiry into the allegation of unauthorized transaction on the account of the above mentioned customers of our Kano (Main) Branch, leveled against you, reveal that on 18/9/2000, 3/5/2001, 19/6/2001, 29/2/2002 and 19/6/2002 you made unauthorized withdrawal of the sums of N2,714,000.00, N12,000,000.00 N9,125,657.50, N1,200,000.00 and N740,000.00 respectively from the customers’ account totaling N25,779,657.00.
The bank’s investigation further reveal that you utilized the withdrawals you made on 3/5/2001 and 19/6/2001 both totaling N21,125,657.00 to purchase two units of masfa House type at Gwarinpa housing Estate, Abuja.
In view of the need for the Bank to promptly repair the customers’ account and put this unfortunate matter behind it, we here demand from you an immediate refund of the total sum of N25,779,657.50 which you unlawfully withdrew from the customers, account within twenty-one (21) days of this letter.”
37. The said words in their ordinary meaning, mean or are understood to mean that the plaintiff is a dishonest bank employee who withdraws money form the bank’s customers’ accounts and misappropriates them. The plaintiff is a fraudulent person who embezzles money belonging to the bank’s customers.
40. paragraphs 35 and 36 of the statement of claim are admitted.
41. The Defendants admits (sic) paragraph 37 of the statement of claim and states (sic) that the words in their natural and ordinary meaning are true in substance and in fact. At the trial of this the Defendants shall rely on facts already pleaded herein and documents in suppose (sic) thereof.”
It stems from the averments in these paragraphs that the appellant alleged that the respondents made libelous publication against him as reproduced in paragraph 36 above. The offensive publication was admitted in evidence as exhibit 14. in paragraph 40 of the statement of defence, the respondents, in undiluted terms, admitted that they made the publication. They, however pleaded in paragraph 41 above that the content of exhibit 14 was true in fact and in substance.
With that unequivocal admission of the publication, the appellant was, in law, relieved of the legal burden of proof to establish publication, the linchpin defamation, of the offensive letter, see DAIRO v. UBN PLC (27) 16 NWLR (Pt.1059) 99. The raison d’etre for his exculpation from that burden of proof is plain enough. The law is settled that what is admitted needs no further proof, see, SECTION 75 OF THE EVIDENCE ACT, CAP. E14, LAWS OF THE FEDERATION OF NIGERIA, 2004, EJABULOR v. OSHA (supra); OLOFU v. ITODO (supra); IYERE v. B.F.F.M. LTD. (2008) 18 NWLR (Pt. 1119) 300; JOLASUN v. BAMGBOYE (2010) 18 NWLR (Pt. 1225) 285. It follows that the evidence of publication of the letter, given by the appellant under examination-in-chief on page 13 of the record, to all intents and purposes, amount to surplus to requirements in that he takes all the benefits arising from the respondents’ admission. Taking refuge under these settled principles of law, I hold the humble view that the lower court, with all due respect, goofed in the realm of law when it found that the appellant never proved publication of the libellous letter.
Be that as it may, that unwavering admission, with all its harmful effects on the respondents’ case, merely renders barren victory to the appellant. The respondents filed respondent’s notice pursuant to Order 9 of the Court of Appeal Rules, 2011. I had already noted, at the dawn of this judgment, that their respondents’ notice was filed on 19/07/2010. It was adopted by their learned counsel who informed the court that the arguments thereon were factored into their brief of argument. On page 21, paragraphs 5 .3 .07 and 5.3.08 of their brief of argument, submissions were made in respect of it, the notice. In the argument, learned counsel for the respondents urged the court to affirm the decision of the court on another ground. That, of course, is the whole essence of respondent’s notice, see ARISONS TRADING & ENGINEERING CO. LTD. v. MIL. GOVERNOR, OGUN STATE (2009) 15 NWLR (pt. 63) 26.
The contention of the respondents in the notice and the arguments thereon were that their assertions in exhibit 14, about unauthorized withdrawal of the whopping sum of about N25.7M Naira belonging to Alin Baffa and Sons Limited by the appellant, were true. The averments to that effect are contained in paragraphs 41 and 44 of their statement of defence. In the legal realm, the respondents elected a defence of justification. The vexed question, begging for solution now, is: did the respondents prove that defence of justification?
I have given a clinical examination to the evidence of DW1, the respondents’ singular witness, contained on pages 24-27 of the record, and read same with a fine tooth comb. I cannot see my way clear where the witness gave pungent evidence of justification as pleaded in paragraphs 41 and 44 of their respondents’ statement of defence.
In law, pleading is the skeleton while evidence gives flesh to it. Where no evidence is offered in respect of a pleading, as is the case here, the pleading is deemed abandoned and worthless, see CAMEROON AIRLINES v. OTUTUIZU (2011) 4 NWLR (Pt. 1238) 512.
Nevertheless, that abandonment of the respondents’ pleading, on the plea of justification, is a mere flash in a pan for the appellant. I have justifiable grounds for this view. The appellant, under examination-in-chief, denied the allegation in exhibit 14. However, under cross examination, on pages 18-19 of the record, he made a volte face when he answered:-
” … see exhibit 6. Copies of this were given to them. I gave verbal instructions to the staff to debit the account of Alh. A. Baffa following the customer’s verbal instruction to me. It is correct that on two occasions I verbally instructed one Mohd, a staff of the Bank to debit the account of Alh. A. Baffa to the tune of N2,860,000 on 03/05/2002 and N200,000 on 27/06/2002. I know AIh. (Imar Abdulhamid. I accepted every-thing as stated in exhibit 6. I never denied anything..”
To my mind, these responses from the appellant, under cross-examination, smack of his admission of part of the allegations in exhibit 14. on page 2 of exhibit 6, which he admitted the content wholesale, the author, staff of the first respondent, roped him in as the officer who gave him the oral instructions to make the withdrawals. The fact that the appellant added that he gave the verbal instructions, following the customer’s verbal instructions to him, cuts no ice with me to think otherwise. One may ask, could the said customer, a bosom friend of the appellant, give him instruction and turn round to petition against him for the withdrawals? I think not. I hold this view having regard to the fact that the allegations were duly investigated by the prying eyes of prominent officers in the first respondent. I draw the inference that the customer would not have given the appellant verbal instructions and make a U-turn to hound him out of office. The law allows me to draw the inference, see OKOYE OKONKWO v. AGBOGUA KPAJIE (supra); AKPAN v. BOB (supra).
To round off the issue of the appellant’s admission, under cross-examination, it is trite law that any piece of evidence obtained from a witness, under the furnace or crucible of cross-examination, by an adversary beefs up the opponent’s case without his necessity to call a witness on the point. The only rider is that that evidence, which are procured from cross-examination, must be covered by the opponent’s pleadings. In the case of AKOMOLAFE v. GUARDIAN PRESS LTD. (2010) 3 NWLR (Pt. 1181) 338 at 351, Onnoghen, JSC, held:-
“On the issue as to whether both parties called evidence in support of their pleadings as held by the lower court, it is settled law that evidence elicited from a party or his witness(es) under cross-examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case. There is however a cutch to his principle. The exception is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.”
See, also, GAJI v. PAYE (2003) 5 NWLR (Pt. 923) 583. As already observed, the respondents duly pleaded justification in paragraphs 41 and 44 of their statement of defence and can properly take shelter under the decision in AKOMOLAFE’s case (supra).
For a good measure, on this defence of justification, exhibit 12 tendered by the appellant counts against him here. In paragraphs 9 and 10.1 of that exhibit, the Committee made far-reaching conclusions on the unprofessional practices, the appellant engaged in, which come within the remit of exhibit 14. The said exhibit 12 is a double-edged sword and the appellant sinks and swims with its contents. Being a process or document before the court, the law permits me to use it, see Agbareh V. Mimra (supra). In all, I return a positive answer to the earlier query the defence of justification was established by the respondents.
Where justification is proved, as a shield to an action on defamation, as in this case, it is a complete defence that absolves the alleged defamer from any liability. The rationale for this is understandable. The tort of defamation, be it libel or slander, is an allegation of injury to a person’s character, integrity and reputation built around him. If the defamatory imputation is proved not to be untrue, all the claims about the party’s person and personality will be extinguished in the eyes of the public. In the case of ILOABACHIE v. ILOABACHIE (supra)/(2005) 13 NWLR (pt. 943) 695 at 736, Akintan, JSC, observed:-
“One of the defences available to a defendant in an action for libel is that of justification. It is therefore a complete defence to an action for libel or slander that the defamatory imputation is true. The truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to o character free from that imputation if he has no right to it. He cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to and as such the allegation in a defence that the words complained are true is therefore called a plea of justification. A defence of justification is therefore a complete bar to any relief sought by a party who complains of defamation. It is appropriately described in the Latin Maxim: “damnum absque injuria”. Until it is clearly established that an alleged libel is untrue, it will not be clear that any right at all has been infringed.”
See, also, EDENOWO v. UKONG (supra).
On account of the fact that the plea of justification was proved by the respondent, I will not hesitate in resolving this issue (three) in favour of them (the respondents).
Before I pass the final verdict in this judgment, it will be recalled that I resolved issue one, the mainstay of this appeal, in favour of the appellant. I have no reason to disturb that resolution. The implication of that resolution is not a moot question. It is that the appellant was wrongfully dismissed from his employment with the first respondent.
The appellant’s employment ought to have been terminated by the first respondent. The two employment terms, dismissal and termination, even though both put an end to employer-employee contractual relationship, are not coterminous. In the case of JOMBO v. P.E.F.M.B. (2005) 14 NWLR (Pt. 945) 443 at 467, Oguntade, JSC, drew the dichotomy between them this way:-
“Termination” of “Dismissal” of an employee by the employer translates into bringing the employment to an end. Under a termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate or bring un employment to an end is mutual in that either may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee.”
Since the appellant’s dismissal from the employ of the first respondent was wrongful, the measure of damages accruable to him (the appellant) is the amount he would have earned if his employment were duly terminated with notice, see S.P.D.C. LTD. v. OLARWAJU (2008) 18 NWLR (Pt. 1113) 1; S.S. CO. LTD. v. AFROPAK (NIG.) LTD. (2008) 18 NWLR (Pt. 1118) 77; EKEAGWU v. NIGERIAN ARMY (2010) 16 NWLR (Pt. 1220) 419.
The appellant gave an avalanche of evidence in a bid to prove his entitlements to wrongful dismissal and other benefits claimed in paragraph 41 (i)-(iv) of his further amended statement of claim, see pages 13, 15, 16, 17 and 18 of the record. Curiously, the respondents never offered any tinge or modium of evidence to neutralise those of the appellant’s. In essence, his evidence remained unchallenged by the respondents. The law gives me the imprimatur to believe and act on an uncontroverted evidence, see IYERE v. B.F.F.M. LTD. (supra); ARABAMBI v. ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) 1; CAMEROON AIRLINES v. OTUTUIZU (supra).
Moreover, the appellant was never cross-examined on his testimonies regarding his claims. The respondents’ failure, through their learned counsel, to cross-examine the appellant on his evidence on his claims, means, by law, that they have admitted all his testimonies on those claims, see GAJI v. PAYE (supra). This is more so when the evidence come within the province of his pleadings.
On the whole, for the reasons advanced herein, the appellant’s appeal succeeds in part. Consequently, it will be partly granted.
Accordingly, I grant the appellant’s claims in paragraphs 41(i)-(iv) and 50(i)-(iv) of his further statement of claim. The order of the court below dismissing those claims is set aside. For the avoidance of doubt, the appellant’s claim for N5M Naira for defamation, embedded in paragraphs 41 (v) and 50(v) of his further statement of claim, is dismissed. The order of the court below in that regard is affirmed. The parties shall bear their respective costs of prosecuting and defending the partially successful appeal.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: The fulcrum of the Appellants case was the refusal of the 1st Respondent to adhere to the prescription given by paragraph 11(c) of the 1st Respondent’s Handbook received in evidence as Exhibit 6 in it’s determination of the Appellant’s employment with it. Rather than abide by the dictates of its Head office Disciplinary committee that investigated the Appellant’s alleged misdeeds’ as stipulated in the said Exhibit 6, the 1st Respondent unconscionably, jettisoned the advice and summary’s dismissed the Appellant from its employment contrary to their terms and conditions’ Paragraph 11(c) has been fully set out in the leading judgment but, I am tempted to refer to it’s aspect which specified that the way and manner a staffs employment would come to an end would depend primarily on the nature of recommendation made by the Disciplinary committee. In the Appellant’s case, the Head Office Disciplinary Committee’ after its deliberation, recommended that the employment be terminated. The 1st Respondent ought to have complied with the procedure laid down in its Handbook that formed part of the conditions of employment of the Appellant. See Nigeria Airways Ltd. vs. Okutubo (2002) 15 NWLR Part 790 p. 376, where it was opined that, where the contract itself has made provisions for a procedure to be followed, it is only reasonable that that procedure has to be followed. This is usually the case where the collective agreement laying down the steps to be followed by management in a dismissal has been incorporated in the contracts of employment of the workers. It was further stressed in the aforementioned case that noncompliance with laid down procedure would ground an action in damages. On this note, the 1st Respondent was in grave error to have disregarded or rejected the recommendation of the Head office Disciplinary committee. The trial court was, therefore’ wrong in its interpretation of the contents of paragraph 11(c) of Exhibit 6 not to have given them, their plain and grammatical meanings.
On the issue touching on publication of libel, it may be necessary to mention hereat, the decision of the Supreme Court in Sketch publication & others vs. Alhaji Azeez Ajagbemokeferi (1986) 2 SCNJ p. 140 where it was held that a statement is not ordinarily libellous because the plaintiff feels he was harassed, annoyed or irritated. The court must satisfy itself first that a case for libel has been established by the Plaintiff before it goes on to consider any defence whatsoever which the Defendant has put up in answer to the libel. Oputa, J.S.C., said thus:
“Seen in this light, one can then appreciate the point being made in the issue for determination as formulated in the Appellant’s Brief:
“Whether having regard to the facts of this case was the defence of fair comment available to the Defendants?”
The answer should be that having regard to the evidence of P.W.2, P.W.3 and P.W.4 and even the evidence of the Plaintiff himself, no defamation had been established and therefore no defence of fair comment or any other is necessary… The Plaintiffs case foundered on failure to prove that Exhibit B was defamatory of the Plaintiff.
This has to be established before the defence of fair comment can even arise”.
Now, determining this matter, it is settled law that a defamatory imputation consists of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See Edem vs. Orpheo Nig. Ltd. (2003) 13 NWLR Part 838 p. 537, per Iguh J.S.C. at 558.
The essence of libel is that the libelous material exists in a permanent form. However, publication is a different matter, for what exists in a permanent form is not “published” until it is made known. Every time it is made known to another person publication takes place. It is to be noted that the ingredients to be proved in a libel suit as were outlined in Union Bank of Nigeria vs. Oredein and Ors (1992) 4 NWLR Part 247 p.355 are as follows:
(a) That the publication must be in writing.
(b) That the publication must be false.
(c) That the publication must have been published to some other person aside the Plaintiff and the Defendant.
(d) That the publication referred to the Plaintiff and was defamatory of him in that;
i. it lowered him in the estimation of right thinking members of the society; or
ii. it exposed him to hatred, ridicule or contempt; or
iii. it injured his reputation in his office, trade or profession; or
iv. it injured his financial credit.
(e) That the publication was made by the Defendant.
It is only if the above had first been determined in favour of the Plaintiff that the further question of Whether or not the defences put forward by a Defendant are maintainable.
It must be emphasised that it is not every statement of which causes damage to a Plaintiff that gives rise to a cause of action. The statement, to found an action in libel, must be false and defamatory of the Plaintiff.
Oxford Advanced Learner’s Dictionary, 7th Edition at p. 849 defines libel as, “the act of printing a statement about somebody that is not true and that gives people a bad opinion of the person”. It is worthy to note that all the ingredients must be proved, where any of the ingredients is lacking, then no publication has been proved.
The question is, ‘was’, the Appellant able to prove all the ingredients before the trial Court, particularly the falsity of the alleged publication. The Appellant was shown the alleged publication which was received in evidence as Exhibit 6, and, he said he accepted everything as stated therein.
The next question is; if the Appellant admitted the contents of Exhibit 6, where, then, perched the falsehood in the publication? By admitting the contents, could one validly assert he had proved all the ingredients required for the case of defamation to succeed? The answer is certainly ‘NO’. The evidence adduced by the Appellant before the trial Court is devoid of any proof of falsity of the alleged defamatory words published. Therefore, since the Appellant was unable to establish that the said publication was false, it would be preposterous to say that the case of publication was indeed made out by him.
It is for this reason and the full reasons contained in the leading judgment that I, too, partially allow this appeal. I abide by all the consequential orders made in the leading judgment.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading an advance copy of the judgment delivered by my Lord Obande Ogbuinya, JCA. Though I agree with the summary of the facts, I do not agree with the conclusions arrived at for the reasons I now give.
The plaintiff instituted/his action against the defendants on 9/11/2005. In the course of proceedings the Statement of Claim was amended. The last amendment is titled “Further Amended Statement of Claim” which was filed with leave of court on 18/6/2006. The defendants relied on the statement of defence filed on 27/10/2006.
The last position held by the plaintiff when he was dismissed from the services of the Respondent as pleaded in paragraph 3 of the Further Amended Statement of claim was General Manager and Regional Coordinator with Head office in Lagos. The Further Amended Statement of Claim revealed whatever the Plaintiff/Appellant’s grievances against the defendants.
“28. The Plaintiff avers and will contend at the trial that the Relationship of the parties is governed/regulated by a booklet Produced by the 1st Defendant which controls and governs the relationship of the 1st Defendant and its employees like the Plaintiff. The Plaintiff will rely on the said booklet to its full term and effect at the trial of this suit.
29. There are acts which are described in the said booklet as acts of gross misconduct for which an employee can be summarily dismissed from the employment of the Defendant. The Plaintiff will contend at the trial that none of the allegations made against him before the Committee was prove and this was the finding of the committee set up by the Defendant. The Plaintiff further avers that offence known and called “unprofessional practice” and “carefree acts” are unknown in the booklet governing the relationship of the parties’
30. The Plaintiff has never at anytime acted in breach of the terms, expressed or implied of his employment with the 1st Defendant. On or about the 25th November, 2004 the 1st Defendant sent a letter written under the hand of one Evans Woherem who was the Chairman of the Head office Disciplinary Committee dismissing the Plaintiff. The reason for the dismissal was not stated in the letter and neither is the plaintiff aware till date of his offence warranting dismissal from the 1st Defendant’s employment. The Plaintiff will lead evidence of his age and year of service before his purported dismissal. The Plaintiff will further lead evidence on the period or length of service required of him to retirement. The Plaintiff will contend at the trial that the decision in Mr. Evans Woherem’s letter is contrary to the recommendations of the committee headed by him and there is no indication whatsoever in the said letter, that the decision of the Committee was reviewed or altered by any other body and or Management of the 1st Defendant.
31. The Plaintiff will contend at the trial of this action that his dismissal from the employment of the 1st Defendant was against the principles of Natural Justice in that no particulars of the acts described as “unprofessional practice” or “carefree attitude” by the 1st defendant’s officials’ was given to the plaintiff, nor are the aforementioned offences mentioned anywhere in the employee Handbook as offences that attract summary dismissal.
32. The Plaintiff avers that the said acts if any, were not acts Meriting Summary dismissal according to the 1st Defendant’s Employee’s Hand book and the Recommendations of the Defendant’s HEAD OFFICE DISCIPLINARY COMMITTEE which recommended termination of appointment and not Summary dismissal of the Plaintiff from the employment of the 1st Defendant. The Plaintiff will rely on the Minutes of the meeting of the Head Office Disciplinary Committee held on Monday 16th August, 2004 and the 1st Defendant’s Employee’s Handbook to their full term and effect at the trial of this action”.
The plaintiff/Appellant followed by claiming jointly and severally damages for libel in the sum of N5 million based on the following pleaded facts set out in the Further Amended Statement of Claim as follows:
“35. On or about the 20th day of October, 2005, the 1st defendant through the 2nd defendant published amongst members of its Staff the allegation to the effect that the Plaintiff made unauthorized withdrawals from its customer one ALIN BAFFA 7 SONS LIMITED’s account.
The 2nd defendant in his letter dated 20th October, 2005 wrote words about the Plaintiff to the effect that:-
“RE:UNAUTHORISED WITHDRAWAL OF THE SUM OF N25,779,657.55 FROM ACCOUNT NO.2152050002455 BELONGING TO ALIN BAFFA & SONS LIMITED We refer to previous correspondence on the above subject and advise that the Bank’s inquiry into the allegation of unauthorized transactions on the account of the above mentioned customers of our Kano (Main) Branch, leveled against you, reveal that on 18/9/200, 3/5/2001, 29/2/2002 and 19/6/2002 you made unauthorized withdrawal of the sums of N2,714,000.00, N12,000,000.00. N9, 125,657.50, N1,200,000,00 and N740,000.00 respectively from the customers’ account totaling N25,779,657.50.
The Bank’s investigation further reveal that you utilized the withdrawals you made on 3/5/2001 on 3/5/2001 and 19/6/2001 both totaling N21,125,657.00 to purchase two units of Masfa House type at Gwarinmpa Housing Estate’ Abuja.
In view of the need for the Bank to promptly repair the customers’ account and put this unfortunate matter behind it. we here demand from you an immediate refund of the total sum of N25,779,657,50 which you unlawfully with drew from the customers account within twenty-one (21) days of this letter ” ‘
The Plaintiff/Appellant sought the following reliefs in paragraph 50 of the Further Amended Statement of Claim:
“WHEREUPON the Plaintiff claims against the Defendants as follows:
i). Six months pay in lieu of Notice…N452,634,00
(ii) Accrued pension converted to lump sum N2,511,511.00 or in the alternative N63,543.14 per month for the rest of Plaintiff’s life.
(iii) Gratuity or “Leaving Service Benefits” N8,316.017.94
(iv) Pay for performance for the year 2003 to 2004 … N4,500,000.00
Total = N15,780,162.94
(v) The plaintiff also claims against the Defendants jointly and Severally damages for libel limited to 5 Million Naira Dated this …day of September 2006.”
The Defendants/Respondents denied liability in a 45 paragraph statement of Defence filed on 27/10/2006. The matter proceeded to trial. The parties gave evidence. Thereafter learned counsel addressed the Court before the plaintiff/Appellant’s claim was dismissed by the learned trial judge. The issues for determination have already been set out in the lead judgment. I do not need to reproduce them. The appeal involves the construction of the contract documents governing the relationship between the parties.
In dismissing the Appellant’s suit the learned trial judge held at page 255 lines 24-27 and page 256 lines 1-13 of the printed record as follows:
“The Plaintiff’s claim is not based on wrongful dismissal or wrongful termination of appointment. His claim is based on the premise that he ought to have been retired instead of being dismissed or terminated “.
The learned senior Advocate of Nigeria appearing for the appellant agreed with the above holding of his Lordship at pages 3-4 of the Appellant’ Brief when he submitted as follows:
“The Appellant as Plaintiff in the High Court sued the 1st Defendant for wrongful dismissal from its employment and for all the various sums of money that would have been due to him as an employee of the 1st defendant who served the 1st Defendant for more than 34 years before his dismissal from the employment of the 1st defendant. The claim of the Appellant at the trial is not for wrongful dismissal per se. It is a claim against the 1st defendant for dismissing the Appellant from its employment rather than terminating his appointment in accordance with the decision of its Head Office Disciplinary Committee. The Appellant contended at the trial that if this was done, he would have been entitled to Pension, Gratuity, pay for performance e.t.c
2. It is more appropriate to take a look at the claims made by the Plaintiff at the trial. The writ of summons dated 9th November, 2005, and the further Amended Statement of Claim dated 18th September, 2006 spells out the terms of the claim of the Plaintiff. In the Further Amended Statement of Claim dated 18th September, 2006; the Plaintiff expatiated and explained fully the basis of his claim against the Defendants. The claim shows that it is not a claim for wrongful dismissal simpliciter. It is a claim based on the premises that as at the time of his dismissal from service by the 1st Defendant, the Plaintiff has served the 1st Defendant for 34 years (thirty four years). When therefore the plaintiff stated in the following paragraphs of the further Amended Statement of Claim that he was wrongfully dismissed by the 1st Defendant the basis of his claim was explicitly explained by the averments contained in the further Amended Statement of Claim particularly in paragraphs 30 and 41 “.
When pleadings are amended what stood before the Court as pleading no longer defines the issues in controversy. The trial has to be conducted, in this case. On the Further Amended Statement of Claim. The amendment takes effect from the date of the original statement of claim filed in this case on 09-11-2005. See Wayne vs Ekwunife (1992) 12 SCNJ 99 at 110; Akintola vs Solano (1936) 2 NWLR (Pt.24) 598 and Jatau vs Ahmed (2003) FWLR (Pt.151) 1887 at 1890. Therefore, the evidence adduced at the trial in this case is at variance with the reliefs claimed in paragraph 50(i)-(iv) of the Further Amended Statement of Claim and goes to no issue. The reliefs claimed should be supported by the pleadings. See Ishola vs UBN Ltd (2005) All FWLR (Pt.258) 1202 at 1213 paragraph 66A-D”. And the judgment must also relate to the pleadings. See Incar Nig. Ltd vs Benson Transport Ltd (1975) 3 SC 117; Fashanu vs Adekoya (1974) 6 SC 83 at 91.
In my humble view it does not lie within the province of an employee to determine the kind of disciplinary measures or punishment that should be inflicted on him where it is established that he has failed to work in terms of his conditions of service to the satisfaction of the employer. Exhibits 12, 14, 15 and 16 have to be construed together to arrive at the decision whether the dismissal of the appellant was right or wrong. See Sapara vs University College Hospital Board Management (1988) SCNJ (pt 2) 82 per Karibi-Whyte JSC at p.102 where His Lordship held that:
“It is an accepted proposition of law that where there is an existing contract, and a new document supporting and giving effect to the rights under the contract is drawn up, the rights of the parties must be construed in terms of the original contract. see Beasly v Hattwood Estates Ltd (1960) 2 All E. R 314 at pp. 322 – 323. It is important to appreciate the fact that where there is a second contract dependent upon the original contract and giving effect to it, the two must be read together to ascertain the extent of the rights of the parties in the original contract. The effect of a subsequent agreement dependent on the original wilt depend upon the extent to which it alters the terms of the original contract. It may constitute a variation in which case the original contract still stands, or a rescission which substitutes another for the original contract”.
The Plaintiff/Appellant pleaded from paragraphs 28-32 the documents that governed his contractual relationship with the 1st defendant/respondent. They have to be read together to arrive at the intention of the parties. In Ihezukwu vs university of Jos & ors (1990) 21 NSCC (pt.3) 80 at 88 the Supreme Court further held in that case that:
“…the contract is to be construed in accordance with its express terms and that no term is to be implied which is not rendered reasonably necessary to carry out the main intention of the parties.”
At page 137 paragraphs 10.1 of the Disciplinary Committee’s proceedings the following entries appear:
“10. RECOMMENDATION
10.1 The committee noted that Mr. Gujba acted unprofessionally and was found guilty us charged. It was also noted that the offence committed by him attracts summary dismissal but in view of his length of service (34 years), the Committee recommended that the sanction be mitigated to termination of appointment”.
The appellant was found to have acted unprofessionally and merited instant or summary dismissal. What the committee did was to invoke human sympathy in favour of the appellant/colleague due to the fact that he had put in 34 years of service with the 1st defendants/respondent. To “recommend” is to tell somebody that something is good or useful or that somebody would be suitable, for instance, for a particular job etc. Thus a “recommendation” is an official suggestion about the best thing to do in a given circumstance.
See oxford Advanced Learner’s Dictionary, 6th edition page 927. Where the Disciplinary Committee proffered suggestions based on humanitarian grounds, it was left for the Management of the 1st defendant to examine the circumstances and determine what disciplinary action would fit the situation. My humble view is that the recommendations of the Disciplinary Committee had no binding effect on the 1st defendant. The appellant admitted during cross-examination to have committed the offences alleged at pages 18 lines 8 to page 19 lines 1-25 of the printed record as follows:
“cross-Examination – It is correct that the real problem with my former employers started with petitions written by one Alh. A. Baffa against me. There were a total of four of such petitions. The petitions were all attached to the queries that I was given by the 1st defendant. I responded to each and every allegation. My responses were in writing. I remember 08-07-2004, that I attended a meeting at Prince Hotel convened at the instance of the 1st defendant. The petitioner Alh. A. Baffa was at the meeting. He repeated all his allegations orally and in my presence at the meeting. I defended myself orally in every allegation at the meeting. I see Exhibit “11”. From it there were 9 people present at the said meeting, six of them or as were employees of the 1st defendant. I know all the persons named at page I of the Exhibit “12” at paragraph 5.0. They are the employees of the 1st defendant. They appeared before the head office for certain offences. I am not aware that they were sanctioned. They were all my subordinate officers. All of them were queried by the 1st defendant. I cannot remember if the replies to their queries were given to me. I see Exhibit “6”. Copies of this were given to me. I gave verbal instructions to the staff to debit the account of Alh. A. Baffa following the customer’s verbal instruction to me. It is correct that on the two occasions I verbally instructed one Moh’d, a staff of the bank to debit the account of Alh. A. Baffa to the tune of N2,860,000.00 on 03-05-2002 and N200,000 on 27-06-2002. I know Alh. Umar Abdulhamid. I accepted everything as stated in Exhibit “6”. I never denied anything.
Every instruction I received from Alh. A. Baffa as alleged in Exhibit “6” was oral. And I gave oral instructions to the bank officers. Alh. A. Baffa or his agent(s) were the beneficiaries of these transactions. I see Exhibit “12”. It shows that all the officers who acted on my verbal instructions were punished. I paid cheques into the account of Alh. A. Baffa. The cheque was for N12. 000,000.00. This was my commercial building loan from the 1st defendant. I am not aware that the petitioner Alh. A. Baffa complained that I was collecting N700,000.00 monthly on this N12,000,000.00. I never paid money into A.A. Baffa’s account claiming to be my deceased brother’s money. I made an agreement with the said Alh. Baffa regarding my late brother’s money. I gave Alh. Baffa N7,000,000. I appointed him a trustee for this money. He was to keep the money in his account. I was not charging Alh. Baffa N700,000.00 for any money in his account. I was charging interest on the children’s account at the 19% which is profit sharing in Islam. Exhibit “3” is my answer to the query in respect of savannah Beverages account with the 1st Bank. Exhibit “1” is not a document used by the 1st Bank. It was strictly between me and Ali Baffa. The total amount covered by Exhibit “6” involving oral instructions amount to about N25,000,000. I see Exhibit “11” at page 124 under recommendations (witness reads out the portion). After this meeting I attend another meeting at the head office, Lagos of the disciplinary committee. The meeting held on 16-08-2004. At the meeting the allegations were laid against me and I defend myself. I see Exhibit “12” at paragraph 9.0-10. It was after Exhibit “12” that I received a letter of dismissal.”
No one sets out to prove what has been admitted by a party in the proceedings. See Olale vs Ekwelendu (1939) 7 SCNJ 181.
I adopt in toto the views of His Lordship at page 255 lines 11-27 to page 256 lines 1-3 as follows:
“To my mind Mr. Eigbedion’s position accord more with common sense and the import of recommendation. The Black’s Law Dictionary, 6th edition at page 1272 defines the word thus; “Recommendation refers to an action which is advisory in nature rather than one having any binding effects. ”
Paragraph 10 of Exhibit “12” is titled “Recommendation” it follows from this that whatever is contained therein is only advisory in nature and has no binding effect. Exhibit “6” refers to “decision of the Committee.” The decision of the committee in paragraph 10.1 of Exhibit “12” is that the defence of the committee by the plaintiff attracts summary dismissal.
They went further in the latter part of the paragraph to make a recommendation. In my view this is ultra vires the committee vis-a-vis clause 11.C of Exhibit “16”. Being ultra vires the committee such an act cannot bind the defendant. What is more, paragraph 11.C Exhibit “16” talks of termination/summary dismissal. The Plaintiff’s claim is not based on wrongful or wrongful termination of appointment. His claim is based on the promise that he ought to have been retired instead of being dismissed or terminated.
Again there is nothing in either Exhibit “16” or Exhibit “12” that mentions retirement. Assuming that the plaintiff is right and paragraph 10.1 binds the defendant, it talks of termination of employment. ”
Learned Senior Advocate of Nigeria has not persuaded me how and why I should interfere with the reasoning of the learned trial Judge. Clause 11C of the Handbook provides inter alia as follows:
“11(c) Depending on the gravity of the offence, the case could be referred to the Head Office Disciplinary Committee (HODC) or Human Capital Management Disciplinary Committee (HCMDC) or any of the Regional Disciplinary Committee depending on the location/grade of the affected employee. Subsequently, the employee may be let off, cautioned verbally, issued caution letter, warned in writing or have his/her employment terminated/summarily dismissed depending on the decisions of the Disciplinary Committee(s).”
The above provision vests an absolute discretion on the 1st defendant/Respondent to determine the kind of disciplinary measures to be taken against an erring employee. This is dependent on the gravity of the offence couple with the recommendations of the Disciplinary Committee. Both must be read together. But the decisions of the Committee can by no stretch of interpretation or imagination, over-ride the powers of the 1st defendant’s Management to dismiss the appellant. There was no room for termination of the appellant’s employment in this circumstance where the appellant acted in breach of his professional duties with the 1st defendant/Respondent. Only honest and truthful men and women should works in financial institution because such employees must be trust worthy if not they can ruin the economy of this nation. Dismissal was the most appropriate remedy in this circumstance. I again uphold the reasoning of the learned trial Judge at page 256 lines 14-26 and page 257 lines 1-10 of the printed record to wit: “The plaintiff has also raised the issue of the fact that Exhibit “15”, the letter of dismissal does not state any reasons for the dismissal. It is correct in law that while an employer does not have to give any reasons for termination of employment save for the requisite notice or payment in lieu thereof, in the case of dismissal they have an obligation not only to state the reasons but to insure that the employee goes through all the laid down disciplinary procedure that will lead to dismissal. I have seen Exhibit “15”. It does not state any reason for the dismissal on the face of it. However, I agree with the learned Counsel to the defendant that Exhibit “15” should not be read in isolation in the circumstance of this case. The evidence before the Court which the plaintiff does not dispute is that he was issued queries to which he was replied. After the reply, an investigative panel was set up to which he was invited after which the Head Office Disciplinary Committee before whom he appeared was also set up. The plaintiff up to Exhibit “15” dismissing him was well aware of the allegations against him to which he even gave written responses. Failure to include the exact words used in Exhibit,76, in Exhibit “15” in my view is not fatal enough as to defeat the ends of justice.
Unauthorized transaction as used in Exhibit “14” in my view can qualify as any other act of misconduct’ as well as “irregular practice in paragraph 11.5 (a) of Exhibit “16”. The important consideration is that the plaintiff right from the out set when he received the first query letter up to when he was dismissed knew exactly what the allegations against him were. He defended himself orally twice and in writing. I find that the plaintiff cannot be heard to complain that he does not know the reason for his dismissal.”
The appellant knew why he was dismissed from the 1st defendant/Respondent employment. Where reasons are given for dismissal of an employee they must be justified if challenged by the employee. see Nigeria Produce Marketing Board vs Adewunmi (1972) 11 SC 111; Sule vs NCB (1985) 2 NWLR (Pt.5) 17 and Wilson vs Attorney-General of Bendel State (1985) 2 SC 191.
The appellant’s employment was not governed by any statute hence he cannot be heard to complain that his right to fair hearing was breached. See Olatunbosun vs NISER Council (1988) 3 NWLR (Pt.80) 25 There the Supreme Court, held that to warrant Summary dismissal it is enough that the Conduct of the servant is of such a grave and weighty character as to undermine the relationship of confidence which exists between master and servant. The appellant admitted the allegations against him. The staffs he acted in concert with had been disciplined by the 1st defendant. Why not the appellant? Appellant breached the confidence reposed in by a master in his servant, when he was clandestinely operating the account of a customer in the manner admitted.
Learned Counsel to the appellant has already submitted that the appellant’s claim is not founded on wrongful dismissal. A party is only entitled to the reliefs claimed. See Nigerian Housing Development Society vs Mumuni (1977) 2 SC 57/91; Eqri vs Uperi (1973) 5 SC 293 at 300 and Ekpenyong vs Nyun (1975) 2 SC 71. If the claim is not founded on wrongful dismissal, what then is the foundation of the suit and this appeal? I see none.
On my part the learned trial Judge was right in dismissing all of the plaintiff/appellant’s claims. I dismiss this appeal and affirm the judgment of the learned trial Judge. I award N20,000.00 costs to the 1st defendant/Respondent.
Appearances
Olajide Ayodele, SAN.For Appellant
AND
Sylvester Eigbedon, Esq.,For Respondent
