CHIEF O. AKINFE & ORS. V. UNITED BANK FOR AFRICA PLC.
(2007)LCN/2227(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of February, 2007
CA/L/113/2001
RATIO
COURT JUDGMENT: EFFECT IN JUDGEMENT FOR IT TO BE REVIEWED ON APPEAL
However, the law is further settled that the failure of the court to properly evaluate the evidence before it has a direct effect in the judgment for it to be reviewed on appeal. See Okonkwo v. Onovo (1999) 4 NWLR (Pt. 597) 110 at p. 119 paras. B – D. See also: Oba Rufus Adejugbe & Anor v. Joseph Akanbi Ologunja (2004) 2 NSCR (vol.1); (2004) 6 NWLR (Pt. 868) 46. In Oba Rufus A. Adejugbe & Anor. v. Engr. Akanbi Ologunja the Supreme Court held: “It is the duty of a court of law to take the case of the parties dispassionately and evenly. It must examine and analyze the case of both parties as in the record. Where a court of law, trial or appellate, misconceives the case as contained in the record and reaches a conclusion in that misconception … This is clearly such a case” (Per Niki Tobi, JSC at page 76, para. E). See also Oyewale v. Oyesoro; (1998) 2 NWLR (Pt. 539) 663. PER DENTON-WEST, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
1. CHIEF O. AKINFE
2. MR. L. A. UZODINMA
3. MR. S. A. EGUNGBOHUN
4. MR. O. AKINRODOYE
5. CHIEF G. A. AMAZUE
6. CHIEF F. O. K. AJOKU
AND
1. O. A. LOT
2. V. A. WILLIAMS
3. ALHAJI H O. OLAMUYIWA
4. CHIEF G. O. IWU
5. ALHAJI R. A. OLUKOYA
6. P. A. O. UWAOMA
7. A. OGUNNUPE
8. AKINTOYE AKINWALE
9. O. O. OSIYEMI
10. AZUKA O. DIALI
11. R. O. ADENUGA
12. O. O. OSIMOKUN
13. CHIEF CHUKA IFEJIKA
14. ALHAJI M. O. ALLI
15. CHIEF I. O. OLOYEDE
AND
1. G. A. OLOWOSALE
2. CHIEF JOSEPH E. OBIDEGWU
3. ANTHONY IJEH
4. ALHAJI K. A. KOLEOSO
5. I. O. OYEBOLA
6. JOSEPH A.OKE
7. CHIEF A. A. BISI
8. E. K. FOLAYAN
9. E. M. OGUN (MRS.)
10. J. L. AFOLABI
11. G. I. OBOLI
12. M. A. DADA Appellant(s)
AND
UNITED BANK FOR AFRICA PLC Respondent(s)
DENTON-WEST, J.C.A. (Delivering the Leading Judgment): In the High Court of Lagos State, the plaintiffs (1-3 above) filed separate actions with very similar claims. The facts of the three separate actions emanated out of the same incidence of the same defendant.
The three suits were consolidated by the order of the trial court of 16th April, 1997 and the claims of the plaintiffs were treated at a go by the lower court.
The series of claims in the three different actions before consolidation are fashioned in the same manner/fashion, and followed the sequence below:
“(1) A declaration nullifying the retirement of the plaintiffs by the defendant same not being in cognizance of the defendant’s procedure/rules and so ineffectual by illegal.
(2) A declaration that the plaintiffs’ entitlements/emolument at retirement to be calculated on the basis of the new/ improved salary scale/structure of the defendant and on the previously salary scale upon which their emolument was calculated.
(3) An order compelling the defendant to comply with the declaration above.
(4) General and special damages of varying sums of money in all the three separate actions.”
On the 6th of October, 1999, the learned trial Judge delivered judgment in the consolidated suit and dismissed the claims of the plaintiffs.
By a notice of appeal dated 26th day of November, 1999, the plaintiffs appealed against the decision of the lower court (the High Court of Lagos State). By an application, motion on notice dated 30th January, 2001 the appellants applied to this court for departure from the Rules of Court and that the bundle of documents marked as ‘exhibit A’ should be adopted as the record of appeal. The said application was granted on the 15th of April, 2002.
The appellants filed it’s brief of argument on the 4th of February, 2002 and formulated three issues for determination therein.
The respondent filed its brief of argument on the 24th of September, 2002 and formulated three issues for determination. The issues formulated by the respondent aptly absorbs the issues formulated by the appellants and are properly distilled out of the three grounds raised by the appellants in the notice of appeal.
The appellants in the treatment of issues started by considering the preliminary point of whether the lower court was right to have consolidated the three actions at the lower court. The appellants relied on Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197 at p. 222, paras. B – E; Imam Lawal Lediju v. Dairu Odulaja (1943) 17 NLR 15; and Attah v. Nnacho (1964) 1 All NLR 313 at 316-7.
The appellants concluded that the lower court was right to have consolidated the suits. The consolidation of the three suits from which this present appeal has arisen was not an issue or subject of the judgment which is herein appealed against. Also, consolidation of the cases cannot rightly be said to emanate or be distilled from the grounds of appeal in the notice of appeal. The appellants also did not list the consolidation of the cases at the lower court as one of its issues for determination. Therefore, I find the argument on the issue of consolidation to be extrinsic and irrelevant to this appeal, same is incompetent and accordingly discountenanced.
Issue number one formulated by the appellants is:
“Whether the defendant having revoked the plaintiffs’ notice of retirement and the plaintiffs having proceeded on retirement leave could validly terminate their appointment by service of withdrawal of service notices on them. If the answer is in the negative whether the plaintiffs are entitled to their retirement benefits under the new enhanced salaries and allowances structure.”
In the argument of this issue, the plaintiffs contend that the respondent having served the appellants with notices of retirement could only defy same by subsequently withdrawing their services. The appellants cited examples from the service of PW1 and DW1 to buttress these facts.
The appellants commenced arguments by defining the several ways by which an employee’s service could be terminated, to wit:
a – by dismissal
b – by termination; and
c – by retirement
The appellants relied on the case of Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572 at 605, paras. D – E in price of the fact that once the conditions for retirement have all been fulfilled the pension or gratuity becomes vested/dine and cannot afterwards become revoked/impaired.
The appellants also laid emphasis on the Notice of Retirement and even reproduced same. The appellants stated that the said exhibit was contrast between the recipient and the author (the bank/respondent). The appellants went further to define the phrase; “Pension and retirement”. The appellants further cited the case of Hill v. C.A. Parsons & Co. Ltd. (1971) 3 All ER 1345 at 1350 in support of its argument.
The respondent in its treatment of the first issue formulated which is the same in con with issue number one of the appellants started by rightly pointing out that the issue (number one) is not applicable to all of the appellants, but only those who have reached the retirement age and also had such provision in their contract of service with the respondent. Thus only six of the appellants who were plaintiffs in suit No. LD/3503/95 at the lower court are affected by the present issue.
The respondent stated that since the court must limit itself to pleaded facts before it and since parties are bound by their pleadings only the six appellants could proffer the argument under issue number 7 in the present appeal. The respondent relied on African Continental Seaways Ltd. v. N.D.R.G. Ltd. (1977) 5 SC 235.
The respondent averred that the affected appellants having been served with notice of retirement and having proceeded on leave were still employees of the respondent and thus the respondent was not hindered or impaired in anyway in its power to fire them or terminate their employment.
In my consideration of the present issue, I am of the firm view that the appellants or their learned counsel have misconstrued exhibit 4 (NOTICE OF RETIREMENT). In my judicial view, it is a letter of reminder, conveying three simple pieces of messages;
a – Congratulating the recipient on his/her 60th birthday
b – Reminding/advising the recipient of the age of retirement and outstanding leave.
c – Complimenting/acknowledging the meritorious/dedicated service of the recipient.
I do not see how this single letter can be ambiguous as to become an issue, unless of course the letter has introduced a new term of employment or contract which is clearly not the case. It simply reminds the employee of a previously/mutually agreed term of contract and does not by itself terminate or determine the contract.
I agree with the respondent that the argument of the appellants on this issue is controversial; if indeed the appellants must be deemed to have retired by the notice of retirement served on them such that the respondent could no longer terminate their employment how then can the restructuring of the respondent salary scale affect such retired members of staff. See Mr. P. J. Effiong v. Dr. Inih A. Ebong (2006) 18 NWLR (Pt. 1010) p. 109; Abalogu v. SDPC (Nig.) Ltd. (2003) 6 SC (Pt. 11) 19; (2003) 13 NWLR (Pt. 837) 308 re-affirmed; Ibama v. S.P.D.C. (Nig.) Ltd. (2005) 10 SC 62; (2005) 17 NWLR (Pt. 954) 364.
I further agree that the precedents/cases cited by the appellants are not helpful to the appellants’ case. The law is trite that he who hires can fire. I find no hindrance or impairment in the power of the respondent to withdraw the services of the appellants. Gamba v. Kwara Investment Co. Ltd. (2005) 1 SC (Pt. 11) 80, (2005) 5 NWLR (Pt. 917) 160; Jombo v. P.F (Mgt. Board) (2005) 7 SC (Pt. 11) 30; (2005) 14 NWLR (Pt. 945) 443. Issue number one is hereby resolved in favour of the respondents and against the appellants.
Issue number two formulated by the parties is:
“Whether the trial Judge properly evaluated and duly considered all the evidence before him to have concluded that the plaintiffs had not proceeded on retirement leave and that their termination was therefore valid.”
The law is settled; that the court has a duty to properly evaluate the evidence before it in its consideration of issues and would fail not to do so. However, the law is further settled that the failure of the court to properly evaluate the evidence before it has a direct effect in the judgment for it to be reviewed on appeal. See Okonkwo v. Onovo (1999) 4 NWLR (Pt. 597) 110 at p. 119 paras. B – D. See also: Oba Rufus Adejugbe & Anor v. Joseph Akanbi Ologunja (2004) 2 NSCR (vol.1); (2004) 6 NWLR (Pt. 868) 46.
In Oba Rufus A. Adejugbe & Anor. v. Engr. Akanbi Ologunja the Supreme Court held:
“It is the duty of a court of law to take the case of the parties dispassionately and evenly. It must examine and analyze the case of both parties as in the record. Where a court of law, trial or appellate, misconceives the case as contained in the record and reaches a conclusion in that misconception … This is clearly such a case” (Per Niki Tobi, JSC at page 76, para. E). See also Oyewale v. Oyesoro; (1998) 2 NWLR (Pt. 539) 663.
In the absence of such a misconception or failure to consider a relevant pleading I do not see why this court should alter the findings of the lower court. The evidence of Mr. Akinridoye clearly avers that he had commenced his retirement leave before he was subsequently served with a withdrawal of service but nothing in his evidence suggests that same was the one of all the appellants. The contention of the appellants therefore that the witnesses testified on behalf of all the appellants does not avail them because the witness could have as well in such representative capacity told the court if it were true that same applied to all the appellants.
In view of the above and my earlier consideration and resolution of issue number one above I don’t see how it would have affected the judgment of the lower court if it had find expressly that Mr. Akinridoye or any other appellant had commenced retirement leave. Nonetheless I find that the learned trial Judge properly evaluated the evidence before the court and I shall refrain from altering same. However, I must observe that exhibits 24, 25 and 26 were admitted in error, being inadmissible in law. The case of Susano Pharm. Co. Ltd. v. SOL Pharm. Ltd. (2000) 4 NWLR (Pt. 651) page 60 cited by the respondent does not help its case at all, in my view it faults its case and helps the case of the appellants. It seems apparent that the interest of the maker of the document (the respondent) is not simply official as perceived in the precedent cited.
The last issue raised by both parties is:
“Whether the defendant properly terminated the plaintiffs’ appointment by paying 3-months salary in lieu of notice”
The appellants concluded the same issue as follows:
“Whether the defendant bank was right to have cut down the length of notice due to the plaintiffs from 12 months to 3 months and still went ahead to pay them three months salary in lieu of notice.”
I do not see how this last issue can hold sway considering the failure of the two issues before it. I am not sure that the appellants are not construing the facts of the case to suit their desires instead of stating the facts as simply as they are.
I agree with the respondent as I had earlier observed in my treatment of issue number one that: The notice of retirement served on the appellants is nothing but a reminder of their retirement date. A fact not applicable to all of the appellants.
Also, the appellants ought to realize that the notice of retirement is distinct and different from the notice of termination of contract. Nothing in exhibit 4 enjoins the respondent to give 12 months notice of termination. See Nigeria Airways Ltd. v. Okutubo (2002) 15 NWLR (Pt.790) 376; Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417; Iderima v. R.S.C.S.C. (2002) 1 NWLR (Pt. 749) 715; Iloabachie v. Philips (2002) 14 NWLR (Pt.787) 264. I therefore do not see the relevance of all the authorities cited on the issue of breach of contract.
In fact both at common law and even in this country the power to arbitrarily dismiss those in one’s employment is a power exercised in a great degree unfortunately over a vast number of persons like the artisans, the drivers, the house-helps, and indeed the down-trodden who are involved in menial duties usually do not have recourse or access to redress at law. Nevertheless employer must observe and adhere to the conditions under which an employee is hired before such an employee could be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee.
In the final analysis, I find no merit in this appeal and I accordingly dismiss same. I affirm the judgment of the lower court. Each party to bear its costs.
GARBA, J.C.A.: My learned brother, Denton-West, JCA had availed me of a draft of the lead judgment written by her. For all the reasons contained therein, I agree that the appeal lacks merits and should fail. It does and I dismiss same with order that each party to bear each the costs thereof.
MUKHTAR, J.C.A.: I have had a preview of the lead judgment of my learned brother Sotonye Denton-West, JCA. I agree with the reasoning and conclusion reached therein that this appeal is devoid of merit and ought to be dismissed.
The issue as to whether the three cases filed by the plaintiffs/appellants separately at the lower court, were properly consolidated does not arise from any of the grounds of appeal. Without much ado that issue is a non starter and ought to be discountenanced as every issue raised and argued must be properly distilled from a ground of appeal.
On the second issue the appellants having alleged that their retirement or termination from the service of the respondent was illegal, they were under a legal duty to not only prove the terms of the contract of their employment but to further show that their retirement was in breach of such terms or conditions of employment. In other words, the terms and conditions of their employment with the respondent is the bedrock upon which any claims premised on such employment must squarely rest. The notice of retirement relied upon by the plaintiffs/appellants to base their claim against the respondent was not a contract document. It is a simple notice and no right or obligation can be rightly founded on it. The Supreme Court was apt on this issue in the case of Katto v. CBN (1999) 5 SC (Pt. II) 21 at p. 25; (1996) 6 NWLR (Pt. 607) 390 where Uwaifo, JSC in the lead judgment observed that
“It is the law that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these. The principle has been laid down by this court in many cases including specifically Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356, followed in Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at 412. In Amodu v. Amode (supra), Agbaje JSC who read the leading judgment observed at page 370:
” … it appears clear to me that since it is the plaintiffs’ case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question.”
To this Wali, JSC added at p. 373;
“The terms of the contract of service is the bedrock of the appellant’s case.”
As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties.”
The appellants having failed to base their claims on the contract of employment did not establish any right against the respondents. The new conditions for retirement which are not incorporated in the appellants’ letter of appointment are inapplicable to their contract of service with the respondent. The ground of appeal based on such unestablished unaccrued rights has to fail.
When it is alleged that a trial court fails to properly evaluate evidence or that its judgment is not based on the weight of evidence, the appellant has to go a mile further to show which admissible pieces of evidence the lower court rejected or inadmissible evidence it relied upon and the extent if at all, to which such misdirection in law has resulted in a miscarriage of justice in the matter. This court as an appellate court will have as much right as the trial court to re-evaluate such evidence as was wrongly rejected or admitted and make a finding thereon. The Supreme Court in Nteogwuile v. Otuo (2001) 6 NSCQR 1032 at 1050; (2001) 16 NWLR (Pt. 738) 58 per Ogwuegbu, JSC in the lead judgment held:
“I have earlier in this judgment said that the Court of Appeal has the same right to come to decisions on issues of fact as well as law as the trial Judge. In such a situation, the appellate court must:
(i) recognize the onus on the appellant to satisfy it that the decision of the trial Judge is wrong.
(ii) recognize the essential advantage enjoyed by the trial Judge in seeing the witness and watching their demeanours; and
(iii) bear in mind that in cases which turn on the conflicting testimony of witnesses and belief to be reposed in them, an appellate court can never recapture the initial advantage of the trial Judge who saw and believed them.”
Unless appellants have discharged that onus placed on them, there will be no basis upon which the findings of the lower court will be tempered with.
The three issues raised in this case having been resolved against the appellants, the appeal consequently fails and is accordingly dismissed. The judgment of the lower court is affirmed. I similarly make no order as to cost.
Appeal dismissed.
Appearances
Kolawole Abiri, Esq.For Appellant
AND
Ademola EkundayoFor Respondent
