FIRST BANK v. MOMOH
(2020)LCN/14304(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, June 29, 2020
CA/A/600/2018
Before Our Lordships:
Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
FIRST BANK PLC APPELANT(S)
And
IBRAHIM SANI MOMOH RESPONDENT(S)
RATIO
WHETHER OR NOT AN EMPLOYER CAN DISPENSE WITH THE SERVICES OF THE EMPLOYEE WITH OR WITHOUT ANY REASON
An employer-employee relationship is given life by the contract of employment that birthed the relationship, In this relationship, an employer has the right to end an employee’s employment because a willing employee cannot be forced on an unwilling employer. See ONDO STATE UNIVERSITY ANOR V. FOLAYAN (1994) LPELR 2673 (SC) and EZE V. SPRING BANK PLC (2011) LPELR 2892 (SC).
Flowing from this, the Court has stated the common law position that an employer can dispense with the services of the employee with or without any reason. See ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR 3544 (SC). However, the contract of employment which created the contractual relationship, the terms and conditions of service, the rules and regulations governing staff and the procedure for the termination must be adhered to. I am fortified by the decision of the Apex Court in LONGE V. FBN PLC (2010) LPELR – 1793 (SC) thus; “…In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract…” Per ADEKEYE, J.S.C. In the instant Appeal, it is not in dispute that there existed a contract of employment between both parties as seen in Page 5 Paragraph 4, Page 150 Paragraph 2, Exhibits B and C at Pages 28 and 29 of the Records. The termination of the employment or dismissal of an employee is allowed and will not be wrongful unless it is in breach of the terms and conditions laid out for termination or dismissal. This was the decision in OBANYE V. UNION BANK (2018) LPELR-44702, where the Apex Court held thus;
“…In a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual as in the instant case, a termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contracts…” Per GALINJE, J.S.C. PER DONGBAN-MENSEM, J.C.A.
WHETHER OR NOT THE ONUS OF PROOF IS ON THE EMPLOYEE WHO CHALLENGES THE TERMINATION OF HIS EMPLOYMENT
Where an employee challenges the termination of his employment, he bears the onus of proving the manner in which the terms and conditions were breached by the employer. See IBAMA V. SPDC (NIG) LTD (2005) LPELR-1381 (SC) and AMODU V. AMODE & ANOR (1990) LPELR-466. PER DONGBAN-MENSEM, J.C.A.
WHETHER OR NOT PLEADINGS MUST BE SPECIFIC AND DOCUMENTS SOUGHT TO BE RELIED ON MUST BE SPECIFICALLY PLEADED
It is true that pleadings must be specific and the documents parties seek to rely upon must be specifically pleaded. See AGBOOLA V. UBA PLC & ORS (2011) LPELR- 9353 (SC). From the above extract, the Respondent specifically pleaded the breach in procedure and went further to place the Appellant on Notice to produce the originals of the documents to be relied on. Photocopies of these documents were tendered by the Respondent. See Pages 463 – 464 of the Records. In civil proceedings, by virtue of Sections 131 and 132 of the Evidence Act, 2011, he who asserts must prove in order to discharge the burden of proof placed upon him and establish his claim. See JIMOH V. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018)17 LPELR-46329 (SC) and AKINBADE ANOR V. BABATUNDE & ORS (2017) LPELR-43463 (SC). The standard of proof is discharged based on the balance of probabilities which means that judgment is given to the party with the greater or stronger evidence. See INTERDRILL (NIG) LTD & ANOR V. UBA PLC (2017) LPELR-41907 (SC).
The success or failure of any party in a civil proceeding is hinged on the pleadings and supporting evidence presented before the Court. The duty of the Court, once pleadings has been settled and issues joined, is to assess and evaluate the totality of evidence led by both sides to decide the party with more preponderant evidence. This is achieved by placing the evidence from both sides on an imaginary scale to see which side the scale tilts in favour of. See YUSUF V. ADEGOKE & ANOR (2007) LPELR – 3534 (SC) and ATUYEYE & ORS V. ASHAMU (1987) LPELR – 638 (SC). PER DONGBAN-MENSEM, J.C.A.
DEFINITION OF A “COUNTER-CLAIM”
In a civil proceedings, a counterclaim is a claim made in rebuttal of the allegations against the Defendant. It contains statements that the Defendant could have made if the claimant had not already begun the action. The Apex Court in OROJA & ORS V. ADENIYI & ORS (2017) LPELR – 41985 (SC), held thus;
“…A counterclaim is an independent action where the parties in the main action are in reverse roles. The Plaintiff becomes the defendant, while the defendant becomes the plaintiff…” Per RHODES VIVOUR, J.S.C.
A counterclaim is governed by the same rules that regulates claims made by the Claimant except that it is part of the Defendant’s response to the claimant’s claim. Therefore, the Defendant in his counterclaim must prove his case by presenting evidence that supports the averments in the counterclaim. The duty of the trial Court with regards to the Counterclaim remains the same as the claim which is the assessment and evaluation of the evidence of both parties to the case. PER DONGBAN-MENSEM, J.C.A.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court, Abuja Division, delivered on the 3rd of June, 2016, Coram P. O. Lifu, (J) JP., wherein Judgment was entered against the Defendant, now Appellant, in favour of the Claimant, now Respondent.
The brief facts leading to this appeal as in the Appellant’s Brief of Argument are that;
The Respondent was employed by First Bank Plc in the year 1987 vide letter of employment dated 17th August 1987. That on the November 2007, he was served with two letters (Query); one dated Thursday, November 08, 2007 titled “Irregular Withdrawal from Dormant Savings” signed by “Cluster Control Manager”, Minna and another dated Friday, November 09, 2007 titled “Letter of Suspension; Re: Irregular Withdrawal from Dormant Savings Account at Bida Branch” signed by ‘Business Development Manager, Ahmad M. Ahmad”.
That part of the contents of the suspension letter is that the Respondent shall be entitled to half of his salary till the determination of the matter surrounding the savings/bank dormant and commission
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account. The Respondent was however required to report at the branch on daily basis and sign the staff attendance register.
That the half salary the Appellant initially paid to the Respondent was subject to the Respondent’s compliance with the terms of the letter of suspension which letter stated that the Respondent was to clock in and out of the office daily during the suspension period and while the investigation was ongoing, The Respondent failed to do this warranting that the Appellant stop the half salary payment.
That the Respondent was taken before an Administrative Panel of Enquiry in line with the Appellant’s Handbook vide Letter dated 31st March 2008. The Panel found the Respondent’s conduct unpardonable, Hence, the Respondent was summarily dismissed vide a Letter dated 16th May 2008.
That in line with the Appellant’s Handbook, the Respondent made an appeal against the summary dismissal but the appeal was dismissed as lacking merit. The Respondent instituted an action against the Appellant at the National Industrial Court, Abuja Division seeking the following;
i. A Declaration that his summary dismissal from the services of the
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Defendant by a letter dated 16th May, 2008 is illegal, null and void and of no effect.
ii. A Declaration setting aside the aforesaid letter dated 16th May 2008.
iii. A Declaration that his summary dismissal from the services of the Defendant by a letter dated 16th May 2008 was wrongful.
iv. An Order directing the Defendant to pay forthwith the Claimant’s personal money in his Account No.2202020000077 which was frozen or blocked at the instance of the manager at the Bida Branch of the Defendant since the year 2008 which amounted to N1,202,946.48 (One Million, Two Hundred and Two Thousand and Forty-Six Naira, Forty-Eight Kobo) including his salaries for the months of February to May 2008 with its accrued interest.
v. An Order directing the Defendant to pay to the Claimant all the salaries, allowances, emoluments due to him from the date of his suspension/dismissal to the date he would be due to retire from the services of the Defendant.
Or
i. An Order directing the Defendant to pay to the Claimant all his accrued entitlements as at the time of the dismissal having put in over 20 years in the service of the Defendant.
ii. An
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Order directing the Defendant to pay the Claimant the sum of (Five Hundred Million Naira) only as general damages for wrongful dismissal.
iii. An Order directing the Defendant to pay the Claimant the sum of N100,000,000.00 (One Hundred Million Naira) only aggravated general damages for wrongful dismissal.
iv. A Declaration that the Claimant is entitled under the Defendant’s Terms and Conditions of service and the Collective Agreement to the payment of gratuity based on the number of years served in the Defendant’s service and an Order for payment of same.
v. An Order directing that the Claimant be paid all his entitlements including the outstanding half salaries from November 2007 to January 2008; salaries from February to May 2008.
vi. The cost of filing this suit and the Claimant’s Solicitor’s fees.
That the Appellant Counterclaimed as follows;
i. The sum of N2,225,814.10 (Two Million, Two Hundred and Twenty-Five Thousand, Eight Hundred and Fourteen Naira, Ten Kobo) only being the outstanding balance unrecovered of the illegal withdrawals made by the Claimant from the dormant savings and commission account.
ii. The sum
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of N5,000,000.00 (Five Million Naira) only being legal (professional) fees to Defendant’s counsel.
iii. Interest on the total sum above at the rate of 10% from the date of judgment till full final liquidation.
iv. The cost of this Action.
That at the close of the case, the trial Court gave judgment in favour of the Respondent. Being dissatisfied with the decision of the Court, the Appellant fled a notice of Appeal against the decision and raised Four (4) Grounds of Appeal.
The parties in this appeal shall simply be referred to as Appellant and Respondent.
Being dissatisfied with the decision of the learned trial Court, the Appellant filed a Notice of Appeal of Four (4) Grounds on 01/06/18. The Record of Appeal was transmitted to this Court on 25/06/18 and deemed on 30/04/20. The Appellant’s Brief of Argument dated 28/11/18, was filed on 05/12/18 and was deemed properly filed on 30/04/20 while the Respondent’s Brief of Argument was filed on 29/04/20 and was deemed properly filed on 30/04/20. Prisca Ozoilesike Esq., of learned Counsel to the Appellant distilled three (3) issues for determination to wit;
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- Whether the trial Court was right when it held that Appellant was bound to give the reason for the summary dismissal in the Letter of Dismissal and that even if the reasons as given in Exhibits 11, 019 and 021 the Letter of Suspension and Query Letter are taken to be the reason for the summary dismissal that Appellant was required to justify those reasons. (Grounds I and II of the Notice of Appeal).
2. Whether the learned trial Judge was right when it held as follows;
“2. The Defendant is hereby directed to pay one month salary in lieu of notice of termination to the Claimant including his outstanding half salaries from November 2007 to January 2008 and the salaries from February 2008 to May 2008.
3. All entitlements including gratuity payable to terminated staff shall be paid to Claimant in accordance with the provisions of the staff handbook and Defendant’s policy.” (Ground V of the Notice of Appeal).
3. Whether the trial Court was right when it held that there is no explanation credible enough to justify Appellant’s freezing of the Respondent’s personal account with Appellant and when he failed to make an Order for recovery of the illegal withdrawals
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by the Respondent as contained in the Counter-Claim. (Ground IV of the Notice of Appeal).
Similarly, the learned Counsel to the Respondent, A. O. F. Philip, Esq., distilled three (3) issues for determination to wit;
i. Whether the Respondent has proved his case against the Appellant. (Grounds 3 and 5 of the Notice of Appeal).
ii. Whether the Respondent’s dismissal by the Appellant is wrong. (Grounds 1 and 2 of the Notice of Appeal).
iii. Whether the Appellant has proved its counter-claim against the Respondent. (Ground 4 of the Notice of Appeal).
From the grounds of Appeal and the issues formulated for determination, the complaint of the Appellant can be adequately resolved under two issues to wit;
1. Whether the learned trial Court was right when it held that Respondent has proved its case in part against the Appellant and granted part of the reliefs sought by the Respondent.
2. Whether the Appellant proved its counter-claim against the Respondent.
ISSUE 1
Whether the learned trial Court was right in granting part of the reliefs sought by the Respondent after it held that Respondent has established and proved
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his case in part against the Appellant.
Prisca Ozoilesike, Esq. of learned Counsel to the Appellant submits that the findings of the learned trial Court that the Respondent had established and proved his case in part was founded on the reasoning that the Appellant did not give reason for the summary dismissal of the Respondent in the letter of summary dismissal. That the learned trial Court reasoned that the burden of proof shifted to the Appellant when the Respondent denied the allegation for which he was summarily dismissed. Further submits that the Respondent failed to lead evidence in proof of wrongful dismissal. Relies on AMODU V. AMODE (1990) 5 NWLR (PT. 150) 356.
Learned Counsel states that there is no provision in the contract of employment that stipulates that the letter of dismissal must provide a reason or justification for the dismissal. That the law is trite that the reasons for the dismissal of a staff from the service may not be given in the letter of dismissal. Relies on OLANIYAN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 9) 559.
Further states that it is not necessary for the guilt of an employee to be determined by a Court
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before an employer can summarily dismiss his employee and that an allegation of gross misconduct against a servant can be determined by mere issuing of queries and the response. That the law requires the Respondent is accorded fair hearing and the procedure laid down is followed before the dismissal, Relies on FALOMO V. LAGOS STATE PUBLIC SERVICE COMMISSION (1977) SC 51, BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PTI 622) 290, MR. BENEDICT CHIDOBEM AJUZIE V. FIRST BANK OF NIGERIA PLC (2016) LPELR – 40459 (CA) and IMONIKHE V. UNITY BANK PLC (2011) LPELR – SC 68/2003.
Learned Counsel to the Appellant submits that even if the Respondent had proved that his dismissal was unlawful, he was not entitled to the reliefs granted by the learned trial Court because the Respondent did not prove his entitlement to those reliefs. Further submits that the evidence before the Court should logically go to substantiate the reliefs and should unequivocally establish that the Claimant is in fact entitled to the reliefs sought. Cites MOGAJI V. ODOFIN (1978) 4 SC 91 referred to in OSIGWE V. UNIPETROL (2005) 6 WRN 97 @ 118.
Further submits that the claim for half month
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salaries for the stipulated period and the relief of one month salary which are claims in special damages ought to fail because special damages must be specifically pleaded and strictly proved because it is exceptional in its nature such that the law will not infer from the nature of the act which gave rise to the claim, Relies on XTOUDOS SERVICES NIG. LTD. V. TAISEI (WIA) LIMITED (2006) 15 NWLR (PT. 1003) 533 and urges this Court to resolve this issue in favour of the Appellant.
A. O. F. Philip, Esq. of learned Counsel to the Respondent submits that in labour matters especially master-servant relationship which deals with termination of employment or dismissal of employee, the onus is on the employee to prove that the termination or dismissal of his appointment was wrongful cites COLLEGE OF LAGOS UNIVERSITY V. DR. ADEGBITE (1973) 5 SC 149. That where an employee or former employee complains of a breach of the conditions of service by wrongful termination or dismissal by an employer or former employer, the manner of breach of the conditions of service or terms of the contract of employment must be proved. Cites F.M.F. LTD. V. EKPO (2004) 2 NWLR (PT. 856)
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100.
Further submits that under common law, an employer can terminate the employment of the employee at any time for any reason or no reason at all.
That the exception to this is when it comes to dismissal where recourse or compliance with the terms and conditions of service is made, Relies on ABOMELI V. NIGERIAN RAILWAY CORPORATION (1995) 1 NWLR (PT. 372) 451.
States that where the employer fails to follow the laid down procedure for dismissing an employee that the dismissal is construed as a termination of contract or service and that the Court can void same and hold that the contract still subsists. Relies on U.T.C. NIGERIA LTD V. PETERS (2009) LPELR- 8426 (CA).
Further states that the Respondent was not informed of the decision of the Panel nor did the Appellant tender the proceedings or report of this panel before the trial Court and that this implies that it would have been unfavourable to the Appellant. Urges the Court to invoke the provision of Section 167 (d) of the Evidence Act 2011 against the Appellant.
It is the submission of learned Counsel that in the determination of every contract of employment/ parties are bound
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by the terms and conditions that regulates or guides their master-servant relationship as contained in the contract. That the Appellant in dismissing the Respondent did not state the reason for the dismissal or justify the dismissal and that the determination of contract of employment under the master-servant can only be done without any reason when it is “termination” but not “dismissal”.
Further submits that the Court cannot force a willing servant on an unwilling master, however, the Court can step in where the master terminates or dismisses an employee contrary to the terms and conditions of service. That where the master terminates or dismisses the servant in a manner not warranted by the particular contract in respect of any particular case, such a master will be liable to pay damages for the breach. Relies on AMODU V. DR. AMODE & ANOR (1990) 5 NWLR (PTC 150) 356, THE NIGERIAN PRODUCE MARKETING BOARD V. A. O. ADEWUNMI (1972) NSCC 662 and OLAREWAJU V. AFRIBANK NIG. PLC (2001) 13 NWLR (PT. 731) 691.
Submits that by Paragraph 14.5 of the First Bank Employee Handbook (See Exhibit ISM 04 at Pages 254 – 255 of the Records) an employee found
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guilty of a misconduct and summarily dismissed forfeits all his terminal benefit and that it accords natural justice such a person should have knowledge of the act of misconduct that warranted his summary dismissal.
Further submits that the Appellant claimed to have dismissed the Respondent based on an allegation of Fraud and that this would not avail the Appellant as the Respondent was discharged and acquitted on the same allegation by the Chief Magistrate Court, Minna Judicial Division bringing into operation the Doctrine of Estoppel. Cites NIKAGBATSE V. OPUYE (2010) 14 NWLR (PT. 1213) 50, MAKUN & ORS V. F.U.T MINNA & ORS (2011) 18 NWLR (PT. 1278) 190 and Section 173 and 174 (1) of the Evidence Act 2011.
It is the case of the Respondent that Relief 4 was pleaded to the effect that at the time of freezing his account, the sum of One Million, Two Hundred and Two Thousand, Nine Hundred and Forty Six Naira, Forty Eight Kobo (N1,202,946.48) was the amount in his Account and all attempts made to access the account proved abortive. That the Appellant admitted that the Respondent’s account was blocked which is an admission against interest that
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the Respondent is allowed to take benefit of same. Relies on ONISAODU V. ELEWUJU (2006) 13 NWLR (PT. 998) 517 and N.A.S. LTD V. UBA PLC (2005) 14 NWLR (PT. 945) 421.
Further states that Reliefs 6 and 7 are within the discretion of the Court based on the evidence placed before it and that the Statement of Claim pleaded what he has suffered as a result of the unlawful dismissal by the Appellant. Relies on F.M.F. LTD V. EKPO (2004) 2 NWLR (PT. 856) 100.
Maintains that the Appellant’s submission that the Respondent did not produce any evidence to buttress his annual salary as at the time of his dismissal was ill-fated because the Appellant had admitted this fact at Paragraph 33 of their Statement of Defence in Page 143 of the Records. That the law is settled that allegations made in pleadings or affidavit must be specifically traversed or denied and that where this is not done, those allegations are deemed admitted. Relies on BALONWU V. OBI (2007) 5 NWLR (1028) 488 and urges the Court to resolve the issue in favour of the Respondent.
An employer-employee relationship is given life by the contract of employment that birthed the relationship, In this
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relationship, an employer has the right to end an employee’s employment because a willing employee cannot be forced on an unwilling employer. See ONDO STATE UNIVERSITY ANOR V. FOLAYAN (1994) LPELR 2673 (SC) and EZE V. SPRING BANK PLC (2011) LPELR 2892 (SC).
Flowing from this, the Court has stated the common law position that an employer can dispense with the services of the employee with or without any reason. See ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR 3544 (SC). However, the contract of employment which created the contractual relationship, the terms and conditions of service, the rules and regulations governing staff and the procedure for the termination must be adhered to. I am fortified by the decision of the Apex Court in LONGE V. FBN PLC (2010) LPELR – 1793 (SC) thus; “…In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract…” Per ADEKEYE, J.S.C. In the instant Appeal, it is not in dispute that there existed a contract of employment between both parties as seen in
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Page 5 Paragraph 4, Page 150 Paragraph 2, Exhibits B and C at Pages 28 and 29 of the Records. The termination of the employment or dismissal of an employee is allowed and will not be wrongful unless it is in breach of the terms and conditions laid out for termination or dismissal. This was the decision in OBANYE V. UNION BANK (2018) LPELR-44702, where the Apex Court held thus;
“…In a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual as in the instant case, a termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contracts…” Per GALINJE, J.S.C.
Where an employee challenges the termination of his employment, he bears the onus of proving the manner in which the terms and conditions were breached by the employer. See IBAMA V. SPDC (NIG) LTD (2005) LPELR-1381 (SC) and AMODU V. AMODE & ANOR (1990) LPELR-466.
The Appellant submits that the Respondent failed to plead the terms of the contract breached by the employer, this submission does not hold water as the Respondent in his statement of claim,
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at Paragraph 42, page 13 of the Records stated that;
“The Claimant also states that the Defendant in dismissing him from its employment did not follow the procedure or comply with the Defendant’s Terms and Conditions of Service, First Bank Handbook, First Bank of Nigeria PLC Employee Code of Conduct and Ethical Standard Guidelines… The Defendant is put on notice to produce the original of these documents.”
It is true that pleadings must be specific and the documents parties seek to rely upon must be specifically pleaded. See AGBOOLA V. UBA PLC & ORS (2011) LPELR- 9353 (SC). From the above extract, the Respondent specifically pleaded the breach in procedure and went further to place the Appellant on Notice to produce the originals of the documents to be relied on. Photocopies of these documents were tendered by the Respondent. See Pages 463 – 464 of the Records.
In civil proceedings, by virtue of Sections 131 and 132 of the Evidence Act, 2011, he who asserts must prove in order to discharge the burden of proof placed upon him and establish his claim. See JIMOH V. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018)17
LPELR-46329 (SC) and AKINBADE ANOR V. BABATUNDE & ORS (2017) LPELR-43463 (SC). The standard of proof is discharged based on the balance of probabilities which means that judgment is given to the party with the greater or stronger evidence. See INTERDRILL (NIG) LTD & ANOR V. UBA PLC (2017) LPELR-41907 (SC).
The success or failure of any party in a civil proceeding is hinged on the pleadings and supporting evidence presented before the Court. The duty of the Court, once pleadings has been settled and issues joined, is to assess and evaluate the totality of evidence led by both sides to decide the party with more preponderant evidence. This is achieved by placing the evidence from both sides on an imaginary scale to see which side the scale tilts in favour of. See YUSUF V. ADEGOKE & ANOR (2007) LPELR – 3534 (SC) and ATUYEYE & ORS V. ASHAMU (1987) LPELR – 638 (SC).
The Appellant’s employee handbook, at Paragraph 14, Page 49 of the handbook, Page 252 of the Records, provides the disciplinary procedures before the termination of employment thus;
“…When an employee fails to perform his/her work satisfactorily or commits an act
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of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours…”
The right to a fair hearing, as entrenched in the constitution, requires that individuals who would be affected by the decision of a judicial enquiry must be given notice of the case, an opportunity to answer and to present their own case. See OGUNDOYIN & ORS V. ADEYEMI (2001) LPELR-2335 (SC). The principle of fair hearing demands that the procedure for the termination of employment is adhered to and the employee is given enough information about the allegation against him to aid in the preparation of his defence. In the instant appeal, the Exhibits clearly show that the Respondent was given fair hearing before his summary dismissal as the disciplinary procedure was adhered to, See Exhibits 010 (the Respondent’s response to the query), 011/019 (the letter of suspension by the Bank) and 021 (query from the bank to the Respondent) at Pages 30 – 32 and 166 of the Records. This was acknowledged by the learned trial Court when it rightly found that;
“…The Claimant was afforded fair hearing contrary to the
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claim of the Claimant Counsel He was given a query of which there was a reply. There was a disciplinary panel of which there was a presentation in defence and after the dismissal the Claimant made an appeal within 30 days as stipulated by the handbook and other exhibits but the appeal was turned down by the Defendant bank…” See Page 499 of the Records.
The Respondent has argued that the Appellant dismissed the Respondent based on an allegation of Fraud which would not avail the Appellant as the Respondent was discharged and acquitted on the same allegation by the Chief Magistrate Court, Minna Judicial Division bringing into operation the Doctrine of Estoppel. It is clear from the Records of proceedings that the Respondent’s summary dismissal from employment was in 2008 while the Judgment of the Chief Magistrate Court, Minna was delivered in 2011 about three (3) years after the dismissal. See Exhibit 08 at Page 34 (Summary Dismissal Letter) and Exhibit 016 at Page 40 – 48 of the Records (Judgment of the Chief Magistrate Court). The criminal proceeding at the Chief Magistrate Court was between the State and the Respondent and was prosecuted by the
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State.
Where an employee is found guilty of committing misconducts by a duly constituted panel of enquiry, it is not mandatory for an employee to first be tried by the Court before the employer can summarily dismiss the employee from service under the common law. An employer has the discretion to either prosecute the erring employee in a Court or summarily dismiss him. This was the decision of the Apex Court in OLAREWAJU V. AFRIBANK NIG PLC (2001) LPELR 2573 (SC), thus;
“It seems to me clear that the actions or conduct of the appellant could constitute;
(i) fraud, or
(ii) dishonesty or
(iii) irregular practices in respect of cash, vouchers, records, returns on customer’s account and foreign exchange transactions.
We must bear in mind that the present case is one of master and servant with written and express terms of employment Where therefore an employee has been found guilty by a disciplinary committee of any of the misconducts highlighted above, the master has a choice- either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. In
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other words prosecution before a Court of law, in the circumstances is not sine qua non for summary dismissal…” Per KATSINA- ALU.
The facts of the abovementioned case is similar to the facts in the instant appeal/ this Court is bound by this decision.
It is important to state that an employer is not bound to give reasons for the termination of the employee’s contract of employment, but where he gives reasons he must justify such reasons. See SPDC LTD V. OLAREWAJU (2008) LPELR- 3046 (SC). There is no evidence on record to show that the Appellant stated a reason for the summary dismissal, what is evident is that the Respondent was aware of the reason for his dismissal, was given an opportunity to defend himself and even exercised his right of appeal against the decision of the disciplinary committee; a procedure prescribed by the Appellant’s employee handbooks See Exhibits 010, 011/019 and 021 at Pages 30 – 32 and Exhibit 022 at Page 281 of the Records.
It is also evident that the Appellant’s Employee Code of Conduct and Ethical Standard Guidelines states the offences for which an employee can be summarily dismissed from service of
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the Bank as gross misconduct which includes but not limited to “…attempts (successful or unsuccessful) to defraud the Bank or its customers…”. See Page 106 of the Records.
The Respondent being aware of all these facts, in his letter appealing against the summary dismissal made an undertaking to repay the money from his salary if allowed to continue his service to the Appellant which is an admission of guilt and an action provided for by the Appellant’s handbook. See Exhibit 022 at Page 281 of the Records.
As already stated, the employer has the unrestricted right to the termination of employment of his employee with or without reason, the exercise of discretion is on the employer with regards to whether or not to give reasons.
An employee seeking a relief on the grounds that the termination of his employment was wrongful bears the onus of placing the terms and conditions breached before the Court and proving same. See IWUCHUKWU V. NWIZU ANOR (1994) LPELR-1566 (SC).
The principle guiding the grant of reliefs is simple, any party seeking such relief must not only plead specifically but also lead evidence upon which the relief is either
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granted or denied See UNIJOS V. IKEGWUOHA (2013) LPELR- 20233 (SC). The Respondent failed to lead evidence to support his allegation that due process was not followed and it is duty of the Court in civil proceedings is to ensure that only proven claims are granted. The Appellant adhered to the fair hearing principle in the termination of the Respondent’s employment. There is no evidence to show that there was any breach of the procedures for the termination of employment by the Appellant to support the declaration that the termination of the Respondent’s employment was wrongful and the setting aside of the Respondent’s dismissal.
Therefore, the learned trial Court erred when it granted part of the reliefs sought by the Respondent in the absence of evidence to support it.
I resolve this issue in favour of the Appellant.
ISSUE 2
Whether the Appellant has proved its counter- claim against the Respondent.
Learned Counsel to the Appellant submits that one of the penalties for the offence of dishonest/fraudulent malpractice against the bank is recovery of the outstanding indebtedness to the bank and the bank is entitled to withhold the
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money in the Respondent’s Account with it to recover the amount. That the Record of Court shows that apart from the mere denial of the money claim against him in the Reply to the Statement of Defence and Counterclaim, the Respondent did not adduce any evidence to substantiate his claim that the letter was not signed by him and the issue of signing was never raised nor was the sole witness cross-examined on that point.
Learned Counsel urges the Court to hold that sufficient evidence was adduced by the Appellant to justify a finding for the Appellant with regards to the Claim for recovery of the illegal withdrawals made by the Respondent from the dormant accounts.
Learned Counsel to the Respondent submits that by the operation of the law, a counterclaim is an independent action and must comply with the Rules of Court. That in a Counterclaim, the Claimant becomes the Defendant while the Defendant becomes the Claimant thus the Counterclaim must specifically plead the material facts sought to be relied upon and lead evidence in proof of same and that in civil proceedings, pleadings must be accompanied with evidence. Relies on AMAECHI V. I.N.E.C. (2008)
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5 NWLR (1080) 227.
Further submits that there was no witness statement on oath as evidence in support of the counterclaim and no evidence was led in support of the counterclaim. That assuming without conceding that the Appellant has led evidence in support of its counterclaim, the counterclaim is still bound to fail because the Appellant has woefully failed to establish their case as a counterclaim is an independent claim which must be strictly proved.
Learned Counsel urges the Court to hold that the trial Court was right in dismissing the counterclaim.
In a civil proceedings, a counterclaim is a claim made in rebuttal of the allegations against the Defendant. It contains statements that the Defendant could have made if the claimant had not already begun the action. The Apex Court in OROJA & ORS V. ADENIYI & ORS (2017) LPELR – 41985 (SC), held thus;
“…A counterclaim is an independent action where the parties in the main action are in reverse roles. The Plaintiff becomes the defendant, while the defendant becomes the plaintiff…” Per RHODES VIVOUR, J.S.C.
A counterclaim is governed by the same rules that
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regulates claims made by the Claimant except that it is part of the Defendant’s response to the claimant’s claim. Therefore, the Defendant in his counterclaim must prove his case by presenting evidence that supports the averments in the counterclaim. The duty of the trial Court with regards to the Counterclaim remains the same as the claim which is the assessment and evaluation of the evidence of both parties to the case.
The Appellant tendered Exhibit 021 at Pages 30 and 166 of the Records. It is pertinent to state that Exhibit 021 is the memo from the cluster control Manager to the Respondent containing a list of irregular withdrawals from the dormant savings account. It is also observed that Exhibit 021 at Page 166 of the Records has attached to it a computer printout of the unauthorized withdrawals while Exhibit 021 at Page 30 of the Records does not. The learned trial Court, at Pages 469 – 470 of the Records, after listening to the arguments of both parties overruled the objection raised by the Respondent and admitted the document in evidence.
The Appellant also tendered a letter from the Respondent appealing his summary dismissal, which the
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learned trial Court admitted in evidence as Exhibit 022. See Page 281 of the Records. In this letter, the Respondent undertakes to “pay all the amount back to the Bank” if given another opportunity to continue his service to the bank.
This undertaking is an admission of guilt. Where there is an admission of guilt, the burden of proof having been discharged by the Accused does not rest on the accuser. See DONGTOE V. CIVIL SERVICE COMMISSION PLATEAU STATE & ORS (2003) LPELR-959(SC) and TORRI V. NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR-8142 (SC).
The Respondent denied the Appellant’s claims and failed to present any evidence in support of his defence or rebut the counterclaim of the Appellant. In civil proceedings, the burden of proof does not rest on one party, but keeps shifting among the parties, See Sections 131 – 134 of the Evidence 2011and UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR- 46333.
It was the duty of the Respondent, in discharging the evidential burden of proof on him, to present evidence to support his averments. In EKWEOZOR & ORS V. REG. TRUSTEES OF THE SAVIOUR’S APOSTOLIC CHURCH OF NIG. (2020)
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LPELR-49568 (SC), the Apex Court per PETER-ODILI, J.S,C. stated thus;
“…it needs reiteration that the burden of proof in civil cases has two distinct facets; the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden, While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates… “(Emphasis Supplied).
The failure of the Respondent to give evidence to support the statement of defence at the trial Court is an abandonment of the defence. In MILITARY GOV. OF LAGOS STATE ORS V. ADEYIGA & ORS (2012) LPELR-7836 (SC), the Apex Court stated that;
“…In the absence of evidence to support the statement of defence, the pleadings of the defendants/appellants were abandoned The defence is deemed abandoned for all time.
See: Okechukwu V. Okafor 1961 2 SCNLR p. 369…” Per RHODES-VIVOUR, J.S.C.
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The Respondent also failed to cross examine the Appellant’s witness on the evidence adduced. See Pages 472 – 474 of the Records. In civil proceedings, where a party fails to cross examine a witness on a material point or evidence, such evidence being unchallenged is admitted as the truth. I am guided by the decision of the Apex Court in PASCUTTO V. ADECENTRO (NIG) LTD (1997) LPELR 2904 (SC) thus;
“… In any civil proceedings where a party’s evidence is not challenged by cross-examination, that evidence, unless there are compelling legal or procedural reasons for rejection, must be admitted as the truth. The respondent’s evidence as plaintiff, entirely based on his averments in the statement of claim, was not challenged in cross- examination. As civil matters in our High Counts are based on pleadings and evidence in support, parties must be up to the task in cross-examination on issues arising in examination-in-chief…” Per BELGORE, J.S.C.
Evidence abounds exhibiting the unauthorized, illegal withdrawals made by the Respondent which remain unrebutted and unchallenged. The Respondent did not present evidence to support his defence or
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refute the evidence of Appellant and prove his own assertion.
Also in evidence is Exhibit 022, the letter of appeal from the Respondent to the disciplinary committee of the Appellant where the Respondent undertakes to repay the sums if allowed to continue his service to the Appellant. As stated earlier, this is an admission of guilt. The Appellant proved its counterclaim against the Respondent.
I resolve this issue in favour of the Appellant,
Having resolved the two (2) issues for determination in this appeal in favour of the Appellant. I find that this appeal has merit and is hereby allowed The decision of the learned trial Court, Coram P.O. Lifu, (J), (JP) delivered on the 3rd of June, 2016, is hereby set aside.
The Counterclaim of the Appellant succeeds. The Respondent shall repay the outstanding balance unrecovered from the illegal withdrawals made by the Respondent from the dormant savings and commissions accounts being the sum of N2,225,814.10 (Two Million, Two Hundred and Twenty-Five Thousand, Eight Hundred and Fourteen Naira and Ten Kobo) at the interest rate of 10% from the date of this judgment till final liquidation.
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A cost of N30,000.00 (Thirty Thousand Naira Only) is awarded to the Appellant and against the Respondent. It is hereby so ordered.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had a preview of the Judgment delivered by my learned brother, Monica B. Dongban-Mensem, PCA.
The reasoning and conclusion reached by him on the two issues for determination in favour of the Appellant cannot be faulted.
On a calm consideration of the evidence on record, the Respondent was unable to prove wrongful dismissal, while on the other hand the formidable evidence produced by the Appellant in support of its counterclaim was not countered by the Respondent as he failed to present any evidence in support of his defence or to rebut the counterclaim against him.
It is in the above premise as expounded in great detail by his Lordship in the lead Judgment that I too allow this appeal and set aside the Judgment of the trial Court delivered on 3rd June, 2016.
I abide by his Lordship’s consequential orders which flow from the setting aside of the Judgment of the trial Court.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned
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brother; MONICA DONGBAN-MENSEM, PCA. I agree with the reasoning, conclusion and orders therein.
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Appearances:
PRISCA OZOILESIKE, ESQ. For Appellant(s)
O. F. PHILIP, ESQ. For Respondent(s)