AWULU v. POLARIS BANK LTD (2022)

AWULU v. POLARIS BANK LTD

(2022)LCN/16322(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, October 21, 2022

CA/KN/47/2021

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

MUHAMMED ABDULKARIM AWULU APPELANT(S)

And

POLARIS BANK LIMITED (FORMERLY SKYE BANK PLC) RESPONDENT(S)

RATIO

THE RIGHT OF AN EMPLOYER TO HIRE AND FIRE HIS STAFF

It should be stated that every employer has and retains the right power to fire his staff, just as he has the right and power to hire. But such power must be properly exercised, in compliance with the document of contract of employment. The authorities on this are replete. See the case of Organ & Ors Vs NLNG & Anor (2013) LPELR – 20942 (SC), where the Supreme Court said:
“…it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such an employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee. See Garuba v. Kwara Investment Co. Ltd. (2005) 5 NWLR (Pt 917) 160; Osisanya v. Afribank (Nig) Plc (2007) 6 NWLR (1031) 565.” Per MUHAMMAD, JSC
See also Olaniyan & Ors Vs UNILAG & Anor (1985) LPELR – 2565 SC:
“It is a well established principle of law which requires no citation of cases that a master is at common law entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all. This principle has dominated judicial decisions to such an extent that it was applied unreflectingly to cases where the right to dismiss at will ought to be rejected. In Oki v. Taylor Wall Tanjon (Nig.) Ltd. (1965) 2 All NLR. 45.” Per KARIBI-WHYTE, JSC
See again the case of Obanye Vs Union Bank of Nigeria Plc (2018) LPELR – 44702 (SC), where it was held:
“It is trite that where the contract of employment itself provides a procedure for the termination of the employment, the procedure as provided must be complied with to effectively bring the employment to an end. An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that is the employee’s only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. Thus, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only. The Court, except where the employment is especially protected by statute, cannot compel the employer to re-instate the dismissed employee. See Olarewaju v. Afribank (Nig.) Plc (2001) LPELR-2573 (SC), Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599, Osisanya v. Afribank (Nig) Plc (2007) LPELR-2809 (SC). In the instant case where the terms of employment provide for specific period of notice before termination or salary in lieu thereof, the only remedy available to the appellant is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was terminated and no more. See Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 890 and Gabriel Ativie v. Kabel Metal Nig. Ltd (2008) LPELR-591 (SC). In correctly applying the law to the facts of the instant case, the lower Court held:- “All that the appellant is entitled to is one month salary in lieu of notice and any other entitlements legitimately due to him at the time of termination of his employment and nothing more.” The foregoing being a correct and just enforcement of the terms of the contract between the parties must persist. See U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385 and Olaniyan & Ors v. Unilag (1985) 2 NWLR (Pt. 9) 599 and AG Ferrero & Co Ltd v. Henkel Chemicals Nig. Ltd (2011) LPELR-12 (SC).” Per MUHAMMAD, JSC. PER MBABA, J.C.A.

THE POSITION OF LAW WHERE AN EMPLOYER ALLUDERS TO COMMISSION OF CRIME BY ITS EMPLOYEE AND GIVES THAT AS HIS REASONF OR SACKING HIM

It must also be stated, that where an employer alludes to commission of crime by its employee and gives that as reason for sacking him, he (employer) has a duty to prove the commission of such crime, and to accord the staff opportunity to defend himself, (where the staff did not confess to such crime) or has denied the allegation. See the case of Yunusa Umar Gunda Vs University of Maiduguri (2014) LPELR – 23351:
“For as pointed out in University of Calabar v. Essien (1996) 10 NWLR Pt. 477 P.229 AT 262: “Where an employer dismisses or terminates the appointment of an employee on the ground of misconduct, all that employer needs to establish to justify his actions is to show that the allegation was disclosed to the employee. That he was given a fair hearing…and that the Disciplinary Panel followed the laid down procedure if any and accepted that he committed the Act after its investigation” CALABAR v. ESSIEN (SUPRA) AT PAGE 225.” The law is trite where an employer terminates the appointment of an employee on the ground of misconduct, the employer is only expected to be satisfied that there was misconduct established against the employee. If the employee disagrees, or challenges the termination of his appointment in a Court of law, the Court can only consider whether the employer complied with the relevant procedure in terminating the appointment or not. The Court cannot delve into the issue of whether the employee was guilty of the misconduct or not. To prove guilt of a person in doing an act is not within the province of the jurisdiction of a civil Court. Guilty, in its grammatical meaning has criminal elements of which only a criminal Court can adjudicate on. This Court in the case of Tamti v. NCSB (2009) 7 NWLR pt. 1141 p. 631 AT 658 did consider similar issue and said that: “The jurisdiction of the trial Court is determined by the claim of the plaintiff before the trial Court and in the instant case, the claim being for wrongful dismissal from service.” PER MBABA, J.C.A.

THE MEASURE OF DAMAGES IN AN ACTION FOR WRONGFUL DISMISSAL

A successful party who faults his dismissal, can only be entitled to damages, which is what he was entitled to, if his disengagement had been properly done. See the case of Olgette Projects Ltd Vs Ufokiko (2021) LPELR – 56951 (CA), where it was held:
“As a general principle in law in an action for wrongful dismissal, the normal measure of damages is the amount the employee would have earned contract for the period until the employer could have terminated it, less the amount the employee could reasonably be expected to earn in other suitable employment because the dismissed employee, like any innocent party following the breach of contract by other party must take reasonable steps to minimize the loss. In WESTERN DEVELOPMENT CORPORATION V. ABIMBOLA (1966) LPELR 25344, the Supreme Court has held that if there be a dismissal without notice the employer must pay an indemnity, but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having being dismissed of makes it more difficult to obtain fresh employment. Thus, the measured damage for wrongful dismissal is prima facie the amount the plaintiff would have earned had he continued with the employment. However, where the defendant has a right to terminate the contract before the end of the term, damages should only be awarded to the end of the earliest period at which the defendant could have so terminated the contract.” Per SHUAIBU, JCA. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of the National Industrial Court of Nigeria, Kano State, in Suit No. NICN/KN/21/2013, delivered on 30th September, 2020, whereof the trial Court dismissed the claims of the Claimant; that it had failed.

At the trial Court, Appellant as Claimant had sought the following Reliefs:
(1) A declaration that the dismissal of the Claimant from the services of the Defendant for no cause and in outright disregard to any known norm, is unlawful, null and void.
(2) A declaration that the Claimant is a staff of the Defendant entitled to his salaries and allowances from date of purported dismissal i.e. 20th December, 2012 to date of judgment.
(3) An Order of Court quashing the purported dismissal of the Claimant conveyed in the Defendant’s letter of 20th December, 2012.
(4) An Order of the Court directing the Defendant to pay to the Claimant, the allowances from the date of the purported dismissal to date of judgment in the sum of N176,568.52 monthly and N13,976.40 monthly Pension Fund Administration contributions, yearly leave Allowance N114,000.00 and yearly 13th Month Allowance of N26,000.00
(5) An Order of the Court directing the Defendant to reinstate the Claimant or release the Claimant formally and pay him all benefits and emoluments which the Claimant is entitled to as a disengaged employee.
(6) An Order to the Defendant for payment of N500,000.00 legal fees. (See Pages 348 to 349 of the Records of Appeal).

After hearing the case and considering the evidence and addresses of Counsel, the Learned trial Judge held against the Claimant and dismissed his case, saying:
“Now, I find from the fact of this case and evidence put forward by the Claimant that he only succeeded in placing before the Court the terms of the contract of employment. However, I do find that he was unable to prove the manner in which the terms of contract were breached. I also find that looking at his pleadings and written address he did not point out or raise any other clauses that gave his claim against the Defendant a fighting chance of succeeding. The provisions of Clause 18.2 of Exhibit H did not help his case, it was rather framed to aid the Defendant. In this, the Defendant used in the cross-examination of the Claimant when he suspected the Claimant of involvement of fraud taking place at its Lagos Street branch Kano Office.
The law is that a purely master-servant relationship, like the one in this case which the relationship is purely contractual, termination of employment (which includes summary dismissal) by the employer cannot be wrongful except it is in breach of contract. See Eze Vs Spring Bank Plc (2011) LPELR-SC 69/1998; (2011) Vol. 12 (Pt 1) MJSC 1.
In the premises of the above findings and pronouncements of the law by the higher Courts, the case of the claimant fails and is hereby dismissed in entirety…” (See pages 361 of the Records of Appeal).

That is the decision appeal is against, as per the Notice and Grounds of Appeal on pages 362 to 365 of the Records of Appeal, disclosing 3 Grounds of Appeal. Appellant filed Brief of Argument on 25/1/22, which was deemed duly filed on 27/1/2022. He distilled 2 issues for the determination of the appeal, as follows:
1) Whether the Court below was right when it relied in (sic), the case of Abubakar Vs Joseph (2008) All FWLR (Pt 432) when it rejected the records of criminal proceeding evidence. (Grounds 3).
2) Whether the Court below was right when it held that Appellant’s dismissal by virtue of the provision of clause 18.2 of the Respondent’s Human Disciplinary Manual 2011 did not breached (sic) the contract, going by the strict construction of the provision. (Grounds 1 and 2).

The Respondent filed its brief of argument on 6/5/22 which was deemed duly filed on 9/5/22. The Respondent also distilled 2 issues for the determination of the appeal, as follows:
1) Whether the Appellant who was summarily dismissed by the Respondent in accordance with the lai (sic) down rules of Bank’s Human Capital Disciplinary Manual, 2011 and was held to have failed to prove the manner his terms of Employment were breached can successfully maintained this appeal. (Grounds 1 and 2)
2) Whether the trial Court was right in holding that the record of criminal matter, is inadmissible in this civil matter taking into cognizance the case of Abubakar Vs Joseph (2008) ALL FWLR (PT 432) amongst other authorities (Ground 3).

Arguing the appeal, Counsel for Appellant, Tohwo Oseruvwoja, Esq., on Issue 1, said the trial Court erred, when it rejected the record of criminal proceedings tendered through CW2 in evidence, relying on the case of Abubakar Vs Joseph (supra). Counsel said that the circumstances and facts in that authority were distinguishable from those of this case. He acknowledged that decided authorities are not to be applied across board and in all matters, without regard to the issues submitted. He relied on the case of Akeredolu Vs Abraham & Ors (2018) LPELR-44067 (SC).

Counsel said that the record of criminal proceeding rejected in evidence by the lower Court was relevant to the issue in the civil case, particularly in respect of the assertion of the Appellant, which he had a duty to prove; he said that there is no provision in the Evidence Act prohibiting the admissibility of the records of criminal proceedings in civil proceedings, if they are relevant to the dispute in the civil suit. He relied on the case of Ipigansi & Anor Vs INEC & Ors (2019) LPELR-48907 CA.

Counsel added that the record of criminal proceeding was relevant to Appellant’s case and should have been admitted. He said that the wrongly rejected document can be re-admitted and relied on the case of Michael & Anor Vs Aduloju (2018) LPELR-46312 CA.

On the Issue 2, Counsel said the trial Court was wrong to dismiss Appellant’s suit by virtue of Clause 18.2 of the Respondent’s Human Capital Disciplinary Manual 2011, that it did not breach the contract, going by the strict construction of the provisions. Counsel stated the law, that parties are bound by the terms of their contract and that the Court cannot read into such contract what was not within the contemplation of the parties. He relied on the case of Ahmed Vs CBN (2012) LPELR-9341 (SC), Matjon Nig. Ltd & Anor Vs Nasarawa State Govt. & Ors (2021) LPELR-54191 CA.

Counsel also said that when a dispute arises from contract between parties, it is the terms of the contract that is referred to guide the Court to interpret such contract. He relied on the case of ABC (Transport Co.) Ltd Vs Omotoye (2019) LPELR-47829 SC.

Counsel referred us to the crux of the case of Appellant, as pleaded in paragraphs 13, 14 and 19 of the statement of claim (pages 6-7 of the Records of Appeal).

He referred us to the letter of employment of Appellant (Exhibits B & D), and to Exhibit H (Respondent’s Human Capital Disciplinary Manual) as the documents required to determine the case of Appellant. He submitted that the dismissal of Appellant by means of Exhibit G was not in line with the provisions of Exhibit H. He said that Exhibit G (dismissal letter) had alleged gross misconduct against Appellant; that the document speaks for itself, and so no oral evidence can be allowed to add to, vary or alter the contents of the document. He relied on the case of Direct on PC Ltd Vs SOF TECH Ltd (2021) LPELR – 53493 CA.

Counsel said that from the context of Exhibit G, particularly, the opening paragraph (Page 21 of the Records), it was clear that Section 18.2 of Exhibit H was not applicable in the case of gross misconduct; that the relevant applicable provision was Section 24.2 of the document. Counsel said Appellant had denied ever being invited or investigated by the Respondent’s Disciplinary Committee; he said that these facts were not controverted by Respondent and were deemed admitted. He relied on LAU Vs PDP & Ors (2017) LPELR – 42800 (SC); Forte Oil Plc Vs Ogungbemile (2021) LPELR – 52919 CA to the effect that, facts, as averred to by the Appellant, remained unchallenged and uncontradicted, and are deemed admitted.

Counsel said Exhibit H provides the steps to be taken by the Respondent in any disciplinary measure against a staff; that the Respondent did not follow those steps, but dismissed Appellant, summarily, for what it called gross misconduct. Counsel said that the only circumstance in which a staff can be summarily dismissed without recourse to a Disciplinary Panel are outlined in Section 18.2 of the Exhibit H, which provides, as follows:
“Without recourse to DC, a staff shall be summarily dismissed for the following infractions:
(i) Unauthorized absence from duty as provided for in the staff handbook.
(ii) Manipulation of core banking application or other applications.
(iii) Confessional statement in cases of gross misconduct.”

Counsel added that in this case there was no evidence to justify the said summary dismissal for the alleged gross misconduct; that there was never any report or investigation report against Appellant, consequent upon alleged arraignment before Disciplinary Committee, to warrant the dismissal letter (Exhibit G). He added that Exhibits G & H cannot be read in isolation, but as a whole. He relied on FCMB Vs John Andy & Sons Co. Ltd (2021) LPELR – 53322 (CA); Ugiagbe Vs A.G. Edo State & Ors (2021) LPELR – 54861 (CA), to the effect that:
“When a statute directs that a certain procedure be followed before a person can be deprived of his right… Such procedure must be strictly followed, otherwise, the Court will declare void any act done not in accordance with the prescribed procedure.”

Counsel also relied on the case of Akpamgbo Okadigbo & Ors Vs Chidi & Ors (2015) LPELR-24564 (SC).

Counsel said that the Respondent had pleaded that Appellant was dismissed for infracting on core banking applications, but that that did not agree with the reason stated in Exhibit G.

Counsel urged us to resolve the Issues for Appellant and to allow the appeal.

Responding, Counsel for the Respondent Emmanuel U. Awuaikyegh, Esq., (who settled the Brief), on Issue 1, said that the trial Judge was right to dismiss Appellant’s claim, because Appellant failed woefully to establish how his terms of employment were breached. Counsel relied on Exhibit H (the Human Capital Disciplinary Manual) and said that the dismissal was in tandem with the said document.

Counsel said that from the cross-examination of CW1 (pages 292-297 of the Records), it was clear that Appellant committed an act of gross misconduct by way of manipulation of core banking applications and values.

Counsel said that facts averred in pleadings must be substantiated and proved by evidence; that where that was not done, the averments are deemed abandoned; he said that pleadings have no mouth to speak, except by witnesses and where plaintiff fails to lead evidence of the pleadings, the same becomes moribund and dead at all times. He relied on Oluyede Vs Access Bank Plc (2015) 17 NWLR (Pt 1489) 596; Alao Vs Akano (2005) 11 NWLR (Pt 935) 160; Salisu Vs Amusan (2011) 18 WRN 135.

Counsel asserted that the parties were bound by Exhibit H, which provided the terms of their relationship and so must not be allowed to renege from the document. He relied on authorities, including West African Portland Cement Plc Vs Oduniyi (2005) ALL FWLR (Pt 264) 977; Ojo Vs Uni-Ilorin (2017) ALL FWLR (Pt 892) 1089; UBN Plc Vs SOARES (2012) 11 NWLR (Pt 550).

He also relied on Gateway Bank Nig Plc Vs Adebiyi Julius Abosede (2002) 1 WRN, to say that one who complains that his employment has been wrongfully terminated has the onus:
a) to place before the Court the terms of the contract said to have been breached and
b) prove in what manner the said contract were breached by the employer.

Counsel said Appellant was unable to establish his claim, just as the trial Court held. He added that from the evidence of DW1, Appellant was found manipulating core banking applications in the course of discharging his duties, and relied on Exhibits DW3, DW4 (a)(b)(c) saying that the same were in tandem with Section 18.2 of Exhibit H; he referred to evidence of some core operations and transfers by the Appellant, which DW1 said were not authorized and Appellant could not explain, satisfactorily. Counsel said that the fact-finding team had recommended dismissal of the Appellant, based on manipulation of the core banking applications by Appellant; that Appellant was caught by item (ii) of Section 18.2 of the Exhibit H; he said that the said article (section) 18.2 is an exception to article 24 of Exhibit H. He urged us to resolve the issue against the Appellant.

On Issue 2, whether the trial Court was right to hold that the criminal proceedings were not applicable to civil matter, Counsel answered in the affirmative.

Counsel restated what governs admissibility – whether a document is pleaded and is relevant; he added that a document could be relevant and yet, by operation of law, be inadmissible, by virtue of Section 2 of the Evidence Act 2011. He relied on Daniel Kekong Vs The State (2017) LPELR-42343 (SC).

Counsel said the documents which were rejected were records of criminal proceedings, which were inadmissible in law in civil proceedings. He relied on Adebowale Vs Robinson (2018) LPELR-44424 (CA).
Counsel urged us to resolve the Issues against Appellant too, and to dismiss the appeal.

RESOLUTION OF THE ISSUES
I shall consider this appeal on the two issues distilled by the Appellant and shall take them, together.
Was the trial Court right to dismiss Appellant’s case holding that by Article 18.2 of the Respondent’s Human Capital Disciplinary Manual, 2011, the Respondent did not breach the employment contract. And was the trial Court right to reject the criminal proceedings tendered by Appellant in support of his case?
A brief fact of this case at the lower Court, shows that Appellant was employed by the Afribank Nig Ltd in 2008 as a supervisor, and the said Afribank later, by way of merger, metamorphosed into Mainstreet Bank Ltd in 2011 and finally to Polaris Bank Ltd (Respondent). Appellant’s employment was subsequently confirmed by a letter dated 20/07/2012. The employment contract was governed by Respondent’s Human Capital Disciplinary Manual, 2011 (Exhibit H), which set out the terms of possible disciplinary action against any staff of the Respondent. On 20/12/2012, Appellant was issued with a letter of dismissal (Exhibit G), alleging “act of gross misconduct under the terms and conditions of the Bank’s Disciplinary Manual…”

Appellant took out the action, challenging his summary dismissal, saying that he did not commit any offence or any misconduct, whatsoever, to warrant the said dismissal; that the dismissal was unlawful, null and void; that he was never issued with any query or made to face any disciplinary committee over any allegation, whatsoever, and howsoever; he said that he wrote to protest the dismissal and pleaded for reconsideration of Respondent’s position, but same was ignored. He was paid his salary and entitlements for December 2012.

The trial Court agreed with the position of the Respondent, who by DW1, said that Appellant was not a loyal staff, because he was involved in acts of gross misconduct, bothering on conspiracy and fraud, which led to his summary dismissal, after a thorough investigation of the conspiracy and fraud.

On Appellant’s contention, that the Respondent did not follow the due procedure set down in Exhibit H, before his dismissal, Respondent insisted that Appellant was not entitled to appear before the Disciplinary Committee, before his summary dismissal, because of his offence of gross misconduct- (See pages 352-353 of the Records of Appeal).

I think the problem the learned trial Court failed to resolve, before reaching its conclusion, in the circumstances, was as to how the Respondent came to establish that Appellant was involved in acts of gross misconduct, bothering on conspiracy and fraud, if Appellant was not confronted with the alleged acts, and made to defend himself, and/or appear before the Disciplinary Committee, elaborately, provided for by the Human Capital Disciplinary Manual, before the summary dismissal, especially where Appellant said he was never queried, and he never committed any offence!

The DW1 had said (among other things) that Appellant was, summarily, dismissed based on the following particulars of fraud:
(a) That the claimant was indicted in fraudulent withdrawal of ₦14.5 Million and conversion of accrued interest on fixed deposit No. LD1029901734 of Alhaji Manir Adamu, a customer of Lagos Street branch, Kano in January, 2012.
(b) He prepared, signed and imputed the reversal of ₦50 Million proceeds of cheques deposited in favour of Alhaji Mani from Sundry Creditor accounts and credited the customer’s fixed deposit account No. LD1029901734 with ₦40 Million instead of ₦50 Million.
(c) He credited the remaining ₦10 Million to one Hajia Hadiza Mustapha’s son account No. 03070909764418 hence aiding and abetting fraud. Hajia Hadiza Mustapha was a Team Head of retail Unit of the Defendant’s branch where the claimant was until his dismissal. She was investigated by the relevant law enforcement agency, charged to Court, tried and sentenced and had since been dismissed from the employment of the Defendant like the claimant. (See pages 352 and 353 of the Records of Appeal).

The above were serious criminal allegations against the Appellant, which required proof and substantiation by the Respondent. Appellant needed to be confronted with them and afforded opportunity to defend himself before being punished, or blackmailed.

The trial Court, on page 353 of the Records of Appeal, had observed:
“However, in reply to the Defence, the claimant has stated that he was never involved in any act of misconduct, conspiracy or fraud, whatsoever. He also insisted that when the fraud committed by Hajia Hadiza Mustapha was discovered, the Defendant wrote the Economic and Financial Crimes Commission (EFCC) who carried out a discreet investigation into the case, and completely exonerated the claimant from the alleged crimes. The culprit and (sic) Hajia Hadiza Mustapha was convicted and sentenced.”

The findings by the trial Court should have made it circumspect and wary in acceding to Respondent’s blackmail of the Appellant, especially as the documents relating to the EFCC findings and the charge in the case were before it. The documents relating to the criminal trial of Hajia Hadiza Mustapha was what Appellant sought to be admitted, and was tendered by CW2 (a Registrar of High Court, Kano) but was rejected by the trial Court, on the strong objection of the Respondent’s Counsel, who did not want the records to come in. (See pages 306 to 314 of the Records of Appeal, on the tendering of the Documents and the lengthy ruling of the trial Court on the application to tender the documents).

Of course, it is commonsensical that, if Appellant had been indicted, in any way, on the alleged conspiracy and fraudulent withdrawals, which were investigated by the EFCC, culminating in the arrest, trial and conviction of Hajia Hadiza Mustapha, the Respondent would have been happy to place same, before the Court, and that the effort made by the Appellant to subpoena the Registrar of the High Court Kano (CW2) to tender the documents of criminal proceedings of the criminal trial, would have been applauded by the Respondent, if Appellant was involved in and/or indicted in the crimes!

Respondent therefore blocked the said documents knowing same to have exposed their lies against Appellant. But the Respondent still had a duty to plead and produce such records, to establish the accusation of Appellant, if there was truth on it!

A criminal proceeding may not be admissible in a civil trial, but I think, where the same is tendered to show that one was never an accused person, or was never indicted in an alleged criminal wrongdoing, the same is relevant and admissible, to establish that fact. See the case of Ipigansi & Anor Vs INEC & Ors (2019) LPELR-48907 CA, where this Court held:
“I agree with the argument of Learned Counsel for the appellants that it was wrong for the trial Court to have rejected exhibits 69 and 69(1) because they are records of criminal proceedings. It is not in dispute that they are certified true copies. There is no provision in the Evidence Act 2011 prohibiting the admissibility of the record of criminal proceedings in Civil Proceedings, if they are relevant to the dispute in the civil suit. As relevant evidence whose admissibility is not expressly prohibited by the Evidence Act 2011, or any other legislation, they are admissible in evidence by virtue of Ss. 1, 2 and 6 of the Evidence Act, which provides thus:
1. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant, and of no others:
a) the Court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.
2. For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies. Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.
6. (1) Any fact is relevant which shows or constitutes motive or preparation for any fact in issue or relevant fact. (2) The conduct, whether previous or subsequent to any proceeding-
(a) of any party to any proceeding, or an agent to such party, in reference to such suit or proceeding or in reference to any fact in issue in it or a fact relevant to it; and
(b) of any person an offence against whom is the subject of any proceeding, is relevant in such proceedings if such conduct influences or is influenced by any fact in issue or relevant fact.
(3) The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements, but this provision shall not affect the relevance of statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant.
S.135(1) of the Evidence Act envisages that the commission of a crime by a party to a civil proceedings such as an election petition, can be in issue in such civil proceedings and prescribes what should be the standard of proof of the allegation. It provides that- (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
See Din v. African Newspapers Nig Ltd (1990) LPELR – 947 (SC).
The decision of the Supreme Court in Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 353 was an obiter dictum and did not consider the provisions of Ss. 1, 2 and 6 of the Evidence Act and so is not applicable here to determine if certified true copies of previous criminal proceedings that are relevant to the issue in a civil proceedings cannot be admitted in evidence in the civil proceedings by virtue of Ss. 1, 2 and 6 of the Evidence Act 2011.
The decision of the Tribunal expunging exhibits 69 and 69(1) from evidence before it is hereby set aside.”

The Respondent had dismissed the Appellant, summarily, as per Exhibit G, stating as follows:
“SUMMARY DISMISSAL
We refer to your arraignment before the Disciplinary Committee and your representations which were found to be unsatisfactory. Your actions constituted an act of gross misconduct under the terms and conditions of the Bank’s Disciplinary Manual which guides your employment with the bank.
Management has decided to summarily dismiss you from the services of the Bank with immediate effect. You are to surrender the Bank’s properties in your possession including your identity card…” see page 21 of the Records of Appeal.

Of course, the Respondent did not state any relevant section or portion of the Bank’s Disciplinary Manual, which Appellant was in breach of, and/or which justified his summary dismissal for gross misconduct. And, with the admission of DW1 “that the Claimant was not entitled to appear before the Disciplinary Committee, before the summary dismissal, because of his offence of gross misconduct…” (Page 353 of the Records of Appeal). It means, the opening Paragraph of Exhibit G (Dismissal Letter) was completely false, which alleged Appellant’s “arraignment before the Disciplinary Committee and your representations which were found to be unsatisfactory.”! Appellant was never arraigned before any Disciplinary Committee!

Article 18.2 of the Respondent’s Human Capital Disciplinary Manual, states as follows:
“SUMMARY DISMISSAL
Without recourse to a DC, a staff shall be summarily dismissed for the following infractions:
(i) Unauthorized absence from duty as provided for in the staff handbook.
(ii) Manipulation of core banking application or other applications.
(iii) Confessional statement in cases of gross misconduct.”

The Respondent merely alleged act of gross misconduct against Appellant, but never situated same on any of the infractions in Article 18.2 of the Respondent’s Human Capital Disciplinary Manual, or any specific provision of Exhibit H. That, in my view, was a wrongful act by the Respondent and a gross violation of the employment contract.

It should be stated that every employer has and retains the right power to fire his staff, just as he has the right and power to hire. But such power must be properly exercised, in compliance with the document of contract of employment. The authorities on this are replete. See the case of Organ & Ors Vs NLNG & Anor (2013) LPELR – 20942 (SC), where the Supreme Court said:
“…it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such an employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee. See Garuba v. Kwara Investment Co. Ltd. (2005) 5 NWLR (Pt 917) 160; Osisanya v. Afribank (Nig) Plc (2007) 6 NWLR (1031) 565.” Per MUHAMMAD, JSC
See also Olaniyan & Ors Vs UNILAG & Anor (1985) LPELR – 2565 SC:
“It is a well established principle of law which requires no citation of cases that a master is at common law entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all. This principle has dominated judicial decisions to such an extent that it was applied unreflectingly to cases where the right to dismiss at will ought to be rejected. In Oki v. Taylor Wall Tanjon (Nig.) Ltd. (1965) 2 All NLR. 45.” Per KARIBI-WHYTE, JSC
See again the case of Obanye Vs Union Bank of Nigeria Plc (2018) LPELR – 44702 (SC), where it was held:
“It is trite that where the contract of employment itself provides a procedure for the termination of the employment, the procedure as provided must be complied with to effectively bring the employment to an end. An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that is the employee’s only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. Thus, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only. The Court, except where the employment is especially protected by statute, cannot compel the employer to re-instate the dismissed employee. See Olarewaju v. Afribank (Nig.) Plc (2001) LPELR-2573 (SC), Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599, Osisanya v. Afribank (Nig) Plc (2007) LPELR-2809 (SC). In the instant case where the terms of employment provide for specific period of notice before termination or salary in lieu thereof, the only remedy available to the appellant is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was terminated and no more. See Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 890 and Gabriel Ativie v. Kabel Metal Nig. Ltd (2008) LPELR-591 (SC). In correctly applying the law to the facts of the instant case, the lower Court held:- “All that the appellant is entitled to is one month salary in lieu of notice and any other entitlements legitimately due to him at the time of termination of his employment and nothing more.” The foregoing being a correct and just enforcement of the terms of the contract between the parties must persist. See U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385 and Olaniyan & Ors v. Unilag (1985) 2 NWLR (Pt. 9) 599 and AG Ferrero & Co Ltd v. Henkel Chemicals Nig. Ltd (2011) LPELR-12 (SC).” Per MUHAMMAD, JSC

It must also be stated, that where an employer alludes to commission of crime by its employee and gives that as reason for sacking him, he (employer) has a duty to prove the commission of such crime, and to accord the staff opportunity to defend himself, (where the staff did not confess to such crime) or has denied the allegation. See the case of Yunusa Umar Gunda Vs University of Maiduguri (2014) LPELR – 23351:
“For as pointed out in University of Calabar v. Essien (1996) 10 NWLR Pt. 477 P.229 AT 262: “Where an employer dismisses or terminates the appointment of an employee on the ground of misconduct, all that employer needs to establish to justify his actions is to show that the allegation was disclosed to the employee. That he was given a fair hearing…and that the Disciplinary Panel followed the laid down procedure if any and accepted that he committed the Act after its investigation” CALABAR v. ESSIEN (SUPRA) AT PAGE 225.” The law is trite where an employer terminates the appointment of an employee on the ground of misconduct, the employer is only expected to be satisfied that there was misconduct established against the employee. If the employee disagrees, or challenges the termination of his appointment in a Court of law, the Court can only consider whether the employer complied with the relevant procedure in terminating the appointment or not. The Court cannot delve into the issue of whether the employee was guilty of the misconduct or not. To prove guilt of a person in doing an act is not within the province of the jurisdiction of a civil Court. Guilty, in its grammatical meaning has criminal elements of which only a criminal Court can adjudicate on. This Court in the case of Tamti v. NCSB (2009) 7 NWLR pt. 1141 p. 631 AT 658 did consider similar issue and said that: “The jurisdiction of the trial Court is determined by the claim of the plaintiff before the trial Court and in the instant case, the claim being for wrongful dismissal from service.”

I have already held that the employer has the right to hire and fire his employee, and it is not in the habit of a Court to force a servant on an unwilling employer. Thus, even where an employee was wrongfully terminated or dismissed from service, the Court cannot reverse the dismissal, except in the case of an employment with statutory flavour (i.e. employment in the civil service or public service of the Nation, State or Local Government). See Eze Vs Spring Bank Plc (2011) LPELR – 2892 (SC).

A successful party who faults his dismissal, can only be entitled to damages, which is what he was entitled to, if his disengagement had been properly done. See the case of Olgette Projects Ltd Vs Ufokiko (2021) LPELR – 56951 (CA), where it was held:
“As a general principle in law in an action for wrongful dismissal, the normal measure of damages is the amount the employee would have earned contract for the period until the employer could have terminated it, less the amount the employee could reasonably be expected to earn in other suitable employment because the dismissed employee, like any innocent party following the breach of contract by other party must take reasonable steps to minimize the loss. In WESTERN DEVELOPMENT CORPORATION V. ABIMBOLA (1966) LPELR 25344, the Supreme Court has held that if there be a dismissal without notice the employer must pay an indemnity, but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having being dismissed of makes it more difficult to obtain fresh employment. Thus, the measured damage for wrongful dismissal is prima facie the amount the plaintiff would have earned had he continued with the employment. However, where the defendant has a right to terminate the contract before the end of the term, damages should only be awarded to the end of the earliest period at which the defendant could have so terminated the contract.” Per SHUAIBU, JCA

See also New Nigeria Newspapers Ltd Vs Atoyebi (2013) LPELR – 21489 CA and Obanye Vs UBN Plc (supra), where the Supreme Court held:
“The narrow issue in this appeal is the measure of damages recoverable for wrongful termination of employment. The law is settled that an employer who has the right to hire also has the right to fire. The employer has an unfettered right to terminate the employee’s employment. He may terminate for good or bad reason or for no reason at all. The motive for exercising the right does not render the exercise ineffective. See: Shitta-bey v. Federal Public Service Commission (1981) SC 40 AT 56; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Olarewaju v. Afribank Nig. Plc. (2001) 13 NWLR (Pt. 731) 691 Dudusola v. Nigeria Gas Co. Ltd. (2013) 10 NWLR (Pt. 1363) 423. What is essential is that the firing must be done in accordance with the terms and conditions of the employment. See: Organ & Ors v. N.L.N.G. Ltd & Anor. (2013) 16 NWLR (Pt. 1381) 506, Garuba v. Kwara Inv. Co. Ltd. (2005) 5 NWLR (Pt. 917) 160, Osisanya v. Afribank (Nig.) Plc (2007) 6 NWLR (Pt. 1031) 565. In an employment with statutory flavour, where the procedure for employment and discipline, including dismissal, are clearly spelt out in the relevant statute, the employer must comply strictly with its provisions in terminating the employment or in dismissing the employee. Any other manner of terminating the employment which is inconsistent with the statute is null and void and of no effect. See: Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25; Comptroller General of Customs & Ors. v. Gusau (2017) 4 SC (Pt. II) 128. In other cases where the employment is governed by the agreement of the parties, removal by way of termination of appointment or dismissal must be in accordance with the terms agreed upon. Failure to comply with the terms renders the termination wrongful but not null and void. The only remedy available to an employee in an ordinary master and servant relationship for wrongful termination of employment is a claim for damages. The rationale being that a servant, though wiling, cannot be foisted upon an unwilling master. See: U.B.N. Ltd v. Ogboh (1995) 2 NWLR (Pt. 380) 647 AT 664; Ibama v. S.P.D.C (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364; Olarewaju v. Afribank Nig. Plc. (supra). Where the parties have agreed that the contract of employment may be terminated by either party upon the giving of notice or the payment of the equivalent salary for the period of notice, the measure of damages for wrongful termination or dismissal is the amount the servant would have earned over the period of notice. See; Dudusola v. Nigeria Gas Co. Ltd. (supra); Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512; Fakuade v. O.A.U.T.H (supra); Osisanya v. Afribank (Nig.) Plc. (supra). In the instant case, by virtue of Article 4(ii) (d) of Exhibit P19, the collective agreement, the appellant was entitled to one month’s salary in lieu of notice. The effective date of termination of his appointment, as rightly found by the Court below, was 28th November, 2003 when he was served with the termination letter dated 30/10/2003. The evidence showed that he had worked for the month of November, 2003 and had therefore earned the salary he was paid for that month. The Court below was right when it held that he was entitled to one month’s salary in lieu of notice and any other entitlement legitimately due to him at the time of termination of his employment and nothing more.”
Per KEKERE-EKUN, JSC

I therefore see merit in this appeal, as I fault the decision of the Learned trial Court, dismissing the case of the Appellant. His dismissal was wrongful and so null and void. But Appellant is only entitled to damages in the context of sum of money he was entitled to by way of formal disengagement.

I have not been able to find any guide in Exhibit H, as to the amount of time each party was to give as notice of termination of appointment. Exhibit H, has elaborately, provided for disciplinary measures, (which Respondent observed in the breach in respect of the Appellant). But it failed to disclose the length of notice to be given for withdrawal of service.

The Article 17.6 (V) (VI) of the Exhibit H states:
(v) “Employees whose contract of employment is determined by resignation or termination shall be entitled to receive terminal benefits, as provided in the staff handbook.
(vi) Staff dismissed from the Bank’s employment shall forfeit all accrued benefits, in line with the staff handbook.”

Unfortunately, the said terminal benefits are not stated in Exhibit H, nor in the letters of Appointment or of Confirmation. That appears to be a serious omission.

Article 3.1 (Guiding principles and philosophy) of Respondent’s Exhibit H says on, “Fairness”
“Sanctions shall not be imposed on an employee without formal query and reasonable time for response. The employee’s response to the query shall, as much as possible, be in writing and shall be signed by the employee. Every employee appearing before a disciplinary committee shall be given the opportunity of fair hearing, except where the employee declines an invitation.”

The above provisions were breached in respect of the Appellant, as he was never queried and/or brought before any Disciplinary Committee or Panel, and this was admitted by the DW1. He was therefore entitled to all the terminal benefits of a disengaged staff.

I therefore set aside the decision of the lower Court and enter judgment for the Appellant, as per the claim at the lower Court. The Respondent shall pay all the entitlements accrued to him as terminal benefits, as envisaged in Exhibit H, Article 17.6 (V). The Appellant shall also be paid his salary and allowances for 3 months, in lieu of notice of termination of his employment, at the rate of N176,568.52 per, month.

The Respondent is hereby ordered to pay the Appellant all that he was/is entitled as a disengaged staff of Respondent.

The Respondent shall also pay the cost of this appeal, assessed at Five Hundred Thousand Naira (N500,000.00) only to Appellant.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, Ita G. Mbaba JCA. I completely agree with the reasons ably marshalled by my brother for allowing the appeal. I have nothing to add. I adopt his judgment as mine and allow the appeal and set aside the judgment of the decision of the National Industrial Court of Nigeria.
I abide by all the consequential orders contained in the lead judgment including that as costs.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother ITA GEORGE MBABA, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the decision of the trial Court and abide by all other consequential orders as contained in the lead judgment.