KEYSTONE BANK LTD v. CLARKE (2020)

KEYSTONE BANK LTD v. CLARKE

(2020)LCN/14004(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/293/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

KEYSTONE BANK LIMITED APPELANT(S)

And

1. JOSEPH ONORIOTAKPO CLARKE RESPONDENT(S)

RATIO

WHETHER OR NOT AN EMPLOYEE IS ENTITLED TO SALARY AND ENTITLEMENTS WHERE EMPLOYMENT IS WRONGFULLY TERMINATED

It is settled that where the employment is wrongfully terminated, the employee is entitled to salary and entitlements over the period of notice, in this case one month. It is certain that once an employer takes step to terminate a contract wrongfully, the contract still remains terminated, the Court cannot find otherwise, See CHIEF FUNSO OLOGUNDE VS. CARNAUD METAL BOX TOYO NIGERIA PLC (2002) LPELR-12216 (CA). PER NIMPAR, J.C.A.

WRONGFUL TERMINATION OF EMPLOYMENT

It is trite that wrongful termination remains a termination even from the date the wrong step was taken. See ATIVIE VS. KABEL METAL NIG LTD (2008) LPELR-591)(SC). PER NIMPAR, J.C.A.

WHETHER OR NOT THE RECORD OF PROCEEDINGS IN ANOTHER SUIT CAN BE USED TO CROSS-EXAMINE THE OTHER PARTY WITH A VIEW TO CONTRADICT BUT NOT AS EVIDENCE OF ITS OWN RIGHT

The Court below cannot make use of pleadings in a suit that did not go to trial as evidence to contradict the evidence properly before the Court. The record of proceedings in another suit can be used to cross examine the other side with a view to contradict but not as evidence of its own right. The evidence a Court should rely upon is the one duly presented before it. See KEKONG VS. STATE (2017) LPELR-42343 (SC) which held thus:
“There is a procedure in Section 232 of the Evidence Act, 2011 for admitting in evidence the previous statement in writing of a witness who is under cross-examination, if it is intended thereby to contradict him and impeach his credibility. Section 232 of Act gives the person cross-examining a witness two options. Bello, JSC, in AJIDE v. KELANI (1985) 3 NWLR (pt.12) 248 at 200 – 261, (1985) 16 NSCC (pt.2) 1298 at 1309, stated the options thus – “He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to witness and call his attention to those part of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence.” It is the duty of the person cross-examining a witness to comply with the conditions set out in Sections 232 of the Evidence Act, 2011 in order that the previous statement in writing of the witness becomes admissible in evidence for the purpose of contradicting the witness and thereby impeach his credibility. See KWAGHSHIR v. THE STATE (1995) 5 SCNJ 222 at 228; BALOGUN v.UKWA WEST LOCAL GOVT COUNCIL (2002) FWLR (pt. 100) 1287 SC. PER NIMPAR, J.C.A.

ESSENTIAL REQUIREMENTS FOR A CROSS-EXAMINER TO TENDER ANU PREVIOUS STATEMENT IN WRITING BY A WITNESS FOR THE PURPOSE OF CONTRADICTING THE WITNESS

Section 232 of Evidence Act, 2011 is intended to check the double-speak of a witness, who is prevaricating on an issue that he had made previous statement in writing on. There are essential requirements of the Section that the party cross-examining a witness, who intends to impeach the credit of the witness by showing that what the witness is presently saying contradicts his previous statement in writing, must comply with. That is, (a) the attention of the witness must be specifically drawn to those parts or portions of his previous statement in writing which are to be used for the purpose of contradicting him; (b) the witness must be reminded of what he had stated in the previous statement, and (c) he must be given an opportunity of making explanation on the apparent contradictions. From the authoritative stance of this Court those are the templates the cross-examiner shall comply with before he tenders any previous statement in writing by a witness for the purpose of contradicting the witness and impeaching his credibility. See MADUMERE vs. OKAFOR (1996) 4 NWLR (pt.445) 637; AMODU VS. THE STATE (2010) 2 NWLR (pt.1177) 47.” Per EKO, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court sitting in Uyo judicial division delivered by Hon. Justice O.A. OBASEKI-OSAGHAE on the 25th September, 2014 wherein judgment was entered in favour of the Respondent. Dissatisfied with the decision, the Appellant who was the defendant filed an Amended Notice of Appeal on the 9th August, 2019 deemed on the 23rd January, 2020 this was after an earlier Notice of Appeal was struck out pursuant to the judgment of the Apex Court in SKYE BANK VS. IWU (2017) 16 NWLR (Pt. 1590) 24 where leave to appeal was made a precondition to appeals from the Industrial Court on grounds other than fundamental rights. The Notice of appeal set out 7 grounds of appeal.

Facts relevant to this appeal are amenable to brief summary. The Respondent initiated a claim before the Court below wherein he sought the following reliefs:
a. A declaration that the claimant’s advice to resign his employment is null and void as it does not amount to termination of employment and was not done in accordance with his terms of employment.
b. A

declaration that the claimant remaining in the 1st defendant’s employ is entitled to all his salaries, allowances and entitlements.
c. An order directing the defendants to pay all outstanding salaries/Entitlements or benefits accruing to the claimant from June, 2009 till the determination of this suit and continuously so, until the Claimant’s employment is lawfully determined.
d. 10% interest on the Claimant’s salaries, allowances and entitlements calculated from June 2009 till when same is completely liquidated.
e. 10% interest on the judgment sum until completely liquidated.
f. N5,000,000.00 (five Million Naira) special damages.
g. N50,000,000.00 general damages.
h. An order directing the 1st defendant to give favourable reference to any company seeking and willing to employ the claimant.
i. At the determination of the Claimant’s employment, one-year salary as severance package should be paid to the claimant.
j. N5,000,000.00 (five Million Naira) being cost of this action.

The Respondent was an employee of the Appellant who was suspended from work arising from a fraud case in the

Appellant’s office. The matter was reported to the Police, he was arrested and later released after which he was not allowed to resume work. He was suspended from work through a letter of suspension on the 16th June, 2009. The Respondent was later discharged by the Police and through another memo he was advised to resign. He appealed the advice to resign and later went to Court and upon full trial, the Court below entered judgment and granted some of the reliefs against the Appellant thus this appeal.

The Appellant’s brief settled by BASSEY B. AMWANANE ESQ., was filed on the 9/8/2019 and it distilled 4 issues for determination as follows:
i. Whether the Court below was right in adjudging that the Respondent remained in the Appellant’s employment and was still entitled to salaries and allowances etc, from June 2009 till date of the Judgment (25/9/2014) even though the Respondent had accepted that he had not worked for the Appellant over the period, and even though the Respondent’s employment was one without statutory flavor.
ii. Whether the Court below was right when it awarded to the Respondent all salaries, allowances

and entitlements from June 2009 to the date of Judgment (25/9/2014) and from thence “until his employment is lawfully determined”.
iii. Whether the Court below, in coming to its Judgment, took irrelevant matters into account, and whether doing so occasioned a grave error and miscarriage of justice in this case.
iv. In view of the evidence before the Court below taken as a whole and in view of the law, is the Judgment of the Court below sustainable?

The Respondent’s Brief settled by SEUN AJOBIEWE, ESQ., was filed on the 17th September, 2019 and it also formulated 4 issues for determination namely:
a. Whether from the evidence before the Court there was sufficient evidence to prove that the Respondent’s employment with the Appellant had been terminated/dispensed with to deprive him of the reliefs sought at the lower?
b. We adopt the Appellant’s issue 2 but we distilled the said issue from grounds 2 and 4 of the Appellant’s amended notice of appeal. Whether the Court below was right when it awarded to the Respondent all salaries and allowances and entitlements from June, 2009 to the date of judgment

(25th September, 2014) and from thence until his employment is lawfully determined.
c. Whether the Court below, incoming into judgment took irrelevant matters into account and whether doing so occasioned miscarriage of justice in this case.
d. In view of the evidence before the Court below taken as a whole, and in view of the law, is the judgment of the Court sustainable?

Upon a careful perusal of the Amended Notice of Appeal, the Record of Appeal and the briefs of parties field and adopted at the hearing of the appeal, the Court is inclined to adopt the issues formulated by the Appellant to enable all areas of complaint to be fully addressed. They shall be resolved seamlessly.

APPELLANT’S SUBMISSIONS
Learned counsel to the Appellant submits that the relationship between the parties was ordinary master servant and it was therefore determinable by either party with or without cause. Counsel relied on OFORISHE vs. NIGERIAN GAS COMPANY LIMITED (2018) 2 NWLR (Pt. 1602) 35 @ 53-54 (paragraph H-A) and OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599.

Appellant submitted that Employment is not an entitlement but a

contractual arrangement. The employee (or servant) gives a service to the employer (or master) in consideration of which the employer pays the employee the agreed remuneration. That there is no service given, then ordinarily and logically, no remuneration is earned and either party is completely at liberty to terminate the arrangement with notice of the requisite length or with the appropriate payment in lieu of the notice. And even if notice or the appropriate length of notice or payment in lieu thereof is given, the party in default would be liable only to pay such a sum as he would have paid if he had given the appropriate notice, but the termination, while “wrongful” will still be effectual. The Counsel refers to KABELMETAL NIG. LTD. vs. ATIVIE (2002) 10 NWLR (Pt. 775) 250 affirmed by the Supreme Court in ALTIVIE VS. KABELMETAL NIG. LIMITED (2008) LPELR-591 (SC).

Appellant reiterated the principle that no servant can be imposed by the Court on an unwilling master or employer, he cited the case of UNION BEVERAGES LTD. VS. OWOLABI (1988)1 NWLR (Pt 68) 128; UNION BANK OF NIGERIA VS. OGBOH (1995) 2 NWLR (380) 647; OLANIYAN & ORS VS.UNIVERISTY OF LAGOS

(1985) 2 NWLR (Pt 9) 599 and CHIEF FUNSO OLOGUNDE VS. CARNAUDMETAL BOX TOYO GLASS NIGERIA PLC (2002) LPELR-12216 (CA). The Appellant’s contended that it had terminated the Respondent’s service vide a letter dated 4th January, 2010, and tendered as EXHIBIT DI (also referred to as EXHIBIT DW 1) but the Respondent refused to sign for and acknowledge the same.

The Learned Counsel further argued that it was not open to the trial Court in those circumstances to find that the Respondent was still in the Appellant’s employment up to the date of the Judgment, 25th September, 2014. The most that the Respondent would have been entitled to, assuming without conceding that he was not given adequate notice or notice at all, and even if he had not himself resigned by conduct, would be salary in lieu of appropriate length of notice, he relied on the case of EMENITE LTD. VS. OLEKA (2005) 6 NWLR (Pt 921) 350. Appellant further argued that the Respondent has, in any case, not been working for the Appellant for these many years, as was shown and as admitted by him, it cannot be correctly said that he remained in the Appellant’s

employment, nor is he entitled to salaries for no work done. Appellant contended that the Respondent having acknowledged his cessation of employment described himself as having been rendered jobless under cross examination and said his dismissal was wrongful which means he admitted he had been terminated.

On issue two, the Appellant submitted that flowing directly from issue one that the respondent was no longer in the Appellant’s employment, then, he cannot be entitled to the award of salaries and allowances etc. In arguing issue two the Appellant stated that the Court below was in grave error when its ordered the Appellant to pay the Respondent all his salaries, allowances and entitlement up till the date of the judgment (25th September 2014), and from thence until his employment is lawfully determined. The employment had already been determined by the Appellant, as it was entitled to. That Even if it were to be the case that the Appellant had not terminated the contract, then the Respondent certainly had terminated it by his own conduct, by not going to work, relied on OLANIYAN vs. UNIVERSITY OF LAGOS (1985)2 NWLR (supra).
8

He further submitted that the Court below was erroneously swayed, at least in part by its finding that the Appellant did not write a letter terminating the Respondent’s employment. This was overlooking EXHIBIT D1 even though the respondent contended that he was not served while the Appellant maintained that the Respondent refused to acknowledge service of the same. The Appellant submitted that, the fact remain that there was a manifest intention to determine the contract, as evinced by the memo dated 17th December, 2009 (Exhibit CW7), secondly by Exhibit D1 and by the evidence of DW1 and PW1. Appellant contended that the Respondent understood and acknowledged that his employment had been determined but insisted that the Appellant did something wrong in dismissing him when he was not involved in the fraud; he thus only contended that the determination was wrongful.

The Counsel argued that it is crystal clear the Respondent is not entitled to the award and damages as the Court below made. Appellant questioned the basis in the law or fact for the award to the Respondent of salaries and allowances etc for work he has not done.

On issue three, the Appellant

argued that some of the factors which evidently weighed heavily on the mind of the Court and persuaded it were, when critically assessed, irrelevant. One of such matters is the question of “the missing five million naira.” It is true that the Respondent had invested considerable energy in pleading the controversy regarding this matter. The Appellant, on the other hand, declined to join issues on it, the Respondent’s disavowal of responsibility for the missing sum and instead was at pains to stress that matter which was quite different from the inherent and ordinary right of the Appellant, or, in fact the Respondent to terminate the employment. Appellant submitted that the fact remains that the missing N5,000,000.00 is irrelevant to the facts in this Appeal. The suit before the Court below was not a prosecution to determine an issue joined between the parties concerning, the guilt or responsibility of the Respondent with regards to the N5,000,000.00 said to be missing. Responsibility of this sum did not come for determination and the Court below had no basis making any findings in that regard.

The Appellant’s Counsel submitted

further that the Court below was in grave error when it gave consideration to and ultimately upheld the Respondent’s contention that he was not given fair hearing. In the determination of a contract of employment, unless the employer assert the determination of disciplinary consequence, fair hearing is not required. The contractual relationship is inherently determinable by either party for any reason or no reason either by resignation or termination, in the instant case, the Appellant pleaded EXHIBIT D1 which shows that Respondent’s employment was terminated because ”the bank no longer requires your service” the Appellant did not go beyond that. And the Court below could not correctly go beyond that. And therefore there was no basis for the finding or conclusion that the Respondent was denied fair hearing because the issue did not arise to be determined. He relied on the case of DAODU vs. UNITED BANK FOR AFRICA (2003) LPELR-5634 (CA).

Appellant arguing further submitted that in the instant case Exhibit CW2 entitled either of the parties to unilaterally terminate the contract with one month notice hence Appellant was entitled to

terminate as it did by Exhibit D1. Appellant contended that inapplicable factors weighed heavily on the mind of the Court below and led it into error which occasioned a miscarriage of Justice.

Continuing to argue issue four, the Counsel to the Appellant submitted that evidence before the Court below shows that the Respondent was advised to resign; he refused to do so and stopped attending work. The Appellant then wrote EXHIBIT D1 terminating his employment because his services were no longer required and the respondent refused to acknowledge service. Appellant admitted disputation as to whether Exhibit D1 was served on the Respondent and whether he refused to acknowledge service thereof but there is no doubt that the Appellant clearly evinced its decision to terminate. Also that it is clear that the Respondent was aware of the letter of termination but insisted that the determination was wrongful or since the Respondent in the alternative, had himself determined the contract by conduct, then there is no basis or justification for the employment contract to still subsist at the date of Judgment and beyond.

In submitting further the Counsel stated

that the effect of the judgment of the Court below would be that an employee (Respondent) would be forced on an unwilling employer (Appellant) and that is only done in employment with statutory flavor. He cited CHUKWUMAH vs. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (1993)4 NWLR (Pt. 289) 512 where the Supreme Court held that reinstatement will not be ordered, even for employment protected by statute, except in certain specific cases. Such forced reinstatement, which is in essence what the Court below ordered, is simply not available in ordinary master-servant relationships such as in the instant case. Relied on BANKE vs. AKURE NORTH LOCAL GOVERNMENT (2015) 6 NWLR (Pt.1455) 400.

The Appellant submitted that the Court below erred in its Judgment as a whole and that when the evidence is considered against the background of the legal principle then the Judgment is against the weight of evidence, and is also unsupportable in law.

RESPONDENT’S SUBMISSION:
The Respondent on issue one submitted that the relationship between the parties is a master servant relationship but the Respondent’s employment can only be terminated in

accordance with the Respondent’s letter of employment tendered as EXHIBIT CW2 and the Appellant staff handbook which contained sanctions (EXHIBIT CW10). He argued that the fact in issue both at the lower Court and this Court is “whether the Respondent’s employment was terminated” and until this question is answered and settled, the issue of whether the termination was wrongful can be determined and the question of compensation commensurate to the Respondent to be determined, as to do otherwise would amount to placing the cart before the horse and planting grains without tilling the ground.

Respondent submitted that his employment was never terminated by the Appellant and this fact was rightly held by the lower Court, he referred to page 301 of the record of appeal. Respondent contended that the Appellant through EXHIBIT CW13 dated 29th January, 2009 wrote to the Respondent to stay all legal action as regards his intention to seek legal redress and did not in the said letter mention the fact that the Respondent’s employment had been terminated, only for the Appellant through its lone witness to tender EXHIBIT DW1 dated 4th

January, 2009 which purport to terminate the employment of the Respondent, he referred to paragraph 5 of page 301 of the Record of Appeal. He submitted that in Suit HU/35/2010 at High Court, Uyo. The Appellant’s lone witness alleged that it served the Respondent with the letter of termination dated 4th January 2010, and further stated that one month salary in lieu of notice was paid to the Respondent, he refers to page 335 of the record of appeal. He argued that when the witness was asked to go through Exhibit CW6, the statement of the salary account of the Respondent with the Appellant to see if any lodgment was made by the Appellant from May 2009 when the Respondent was suspended to January 4th 2010 when the Respondent instituted suit HU/35/2010, DW1 confirmed that no money was paid into the account. This allegation was totally different from the Appellant’s defence/allegation in its statement of defence at National Industrial Court, where it alleged that the Respondent was served with letter of termination Exhibit DW1 but the Respondent refused to acknowledge same, that the only reason why one month salary in lieu was not paid is because the

Respondent is still in possession of its Staff ID card. He further argued that it is trite that parties are not allowed to approbate and reprobate, he referred to the case of NECO VS. TOKODE (2011) 5 NWLR (Pt. 1239) 45 @ 72. He argued that when Appellant’s lone witness was asked under cross examination where, when, which date, place and through which means the Respondent was served with letter of termination Exhibit DWI, the Respondent having stopped coming to work when he was placed on suspension in May 2009. Respondent informed the Court that DW1 stated in all his answers that he is not aware. He referred to paragraph 4 of page 257, paragraph 8 & 9 page 258 and 335 of the record respectively. He also cited the case of AKANDE VS. ADISA (2012) 15 NWLR (Pt. 1324) 538 and that the law is clear and well settled on averment not supported by evidence, such averment is deemed abandoned. He submitted that there was no evidence before the Court to show when and where the appellant served the Respondent with Exhibit DW1.

The Respondent further argued that the burden of proof is always on the party who asserts the affirmative of a fact or issue and is

trite that a party who asserts a state of facts must prove the existence of such facts. He referred to OLADIPO VS. MOBA LGA (2010) 5 NWLR (Pt. 1186) 117.

The Counsel argued further that assuming but not conceding the Exhibit DW1 was made before litigation but was never served on the Respondent, can that be said to amount to termination of employment? He stated further that the same way Respondent was given employment letter, the same way it is required of the employer to serve the employee. And that assuming but not conceding that the Appellant terminated the Respondent by constructive notice as its being contended by the appellant who relied on a plethora of cases, he argued but that there is no evidence before the Court to show that the Appellant paid the respondent any money in lieu of notice. He refers to Exhibit CW6 at pages 186-194 of the Record of Appeal.

The Respondent agreed that a master can terminate the employment of his servant at anytime and for any reason or for no reason at all, provided the termination is in accordance with the terms of the contracts. He cited the case of OSISANYA VS. AFRIBANK NIG. PLC (2007) 6 NWLR (PT. 1031) 565

That the Appellant barring the Respondent from coming into its premises since he was suspended cannot by any figment of imagination act as constructive notice of termination of his employment He cited the case of N.B.C PLC VS. EDWARD (Supra). He submitted that an employee whose employment has not been terminated cannot be said to be forced on employer.In arguing issue two, the respondent submitted that the Court was right in holding that the respondent is still in the employment of the appellant and still entitled to all his salaries and allowances until his employment is determined. That the lower Court evaluated the evidence sought to be used to prove Appellant’s allegation that it terminated the employment of the Respondent. The Counsel to the Respondent submitted further that it logically follows that an employee whose employment has not been terminated is entitled to his salaries and allowances, especially if it’s the appellant that stopped him from coming to work as was the case in N.B.C PLC VS. EDWARD (supra). He further added that it is trite law that a party cannot succeed in its own illegality and cited case of MEKAOWULU VS.UKWA WEST LOCAL GOVT COUNCIL

(2018) LPELR-43807 and TERIBA VS. ADEYEMO (2010) LEPLR-3143 SC; (2010) 13 NWLR (Pt.1211) 242.

Continuing argument with regards to issue three, the Respondent submitted that that the trial Court did not take irrelevant matters into account in arriving at Judgment and that judgment was based on the issues placed before it which is from the pleadings of the parties. The counsel cited the case of OSAFILE VS. ODI (1985) 1 S.C 37. Respondent went further to state that the trial Court was right to have held that it was the fraud incidence in the missing 5,000,000.00 which took place at the Appellant’s Abak road branch office in Uyo that led to the Respondent placed on suspension and subsequently being served with a memo advising him to resign his employment with the Appellant, the Respondent refers the Court to EXHIBIT CW5 at page 105 of the record.

Respondent argued that the trial Court was right in reaching that decision because the parties joined issues on this fact, and the trial Court was able to further resolve this issue by making reference to Exhibit CW5, EXHIBIT CW7 the memo advising the Respondent to resign his

employment with the Appellant dated 17th December,2009 which was sequel to his recall from the suspension and which was hinged on the fraud incidence that occurred. The Counsel further argued that the trial Court was right to have held that from the evidence before it the Respondent was not culpable for the fraud incidence based on Exhibit CW8, the police investigation report which supports oral evidence and makes such oral evidence become credible. NDULUE VS. OJIAKOR (SUPRA) 311@ 315; UKEJE V UKEJE (2014) 11 NWLR (Pt.1418) 384.

Respondent contended that all the trial Court did was to make a finding as to whether it was the fraud incident that led to the Respondent’s suspension and advise to resign and the Court further held that the Respondent was absolved of any wrong doing by the police investigation report.

The Respondent further submitted that it is true no Court can imposed an employee on an unwilling master but on account of breach of fair hearing, the principle of Audi alteram partem requires that a party be heard before a decision is taken on any issue he stands accused, he is of the firm view and opinion that the Appellant has

misconstrued the position of the law as it relates to fair hearing in EZE vs. SPRING BANK PLC (2011) 18 NWLR (Pt. 1278) 113 and by virtue of Article 1 of the EXHIBIT CW10 due process was not followed by the Appellant. Citing ADEOGUN VS. FASHOGBON (2011)8 NWLR (Pt. 1250) 427.

The Respondent on issue four submitted that the judgment of the lower Court is not against the weight of evidence. This assertion is based on the fact that civil cases are tried based on the preponderance of evidence and balance of probabilities which required the Court to place the evidence adduced each party on an imaginary scale and sees whose party’s evidence is heavier. NEWSBREED ORGANIZATION LTD. VS. J.E ERHOMOSELE (2006) 5 NWLR (Pt. 974) and AKANDE VS. ADISA (SUPRA) 538.

The lower Court did not make an order for re-instatement rather held that the Respondent’s employment has not been terminated and until respondent’s employment is terminated he is still an employee of the Appellant. He urged the Court to dismiss the appeal.

The Appellant in reply further submitted that the admission that the relation was simple master/servant in means the relationship

could be determined by any of the parties with or without cause. On the submission that the employment can only be terminated in accordance with the Respondent’s letter of employment and staff hand book (Exhibit CW2 and CW10) is erroneous. He went further to argue that the case of ATIVIE VS. KABELMETAL NIG. LTD. (supra) which held that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to the employee who is wrongfully terminated is the award of salary in lieu of the period of notice.

On the considerable energy in trying to show that the Appellant’s pleading in the earlier case, suit no HU/35/2010 is inconsistent with the pleading in this suit, Appellant stated that it is absolutely irrelevant and totally immaterial that suit HU/35/2010 did not adjudicate anything and pleading in an earlier un-adjudicated suit do not and cannot constitute estoppel.

On Respondent’s issue two, the Appellant said the Respondent introduced a new point when he said that the Appellant stopped the Respondent from coming to work without

terminating his appointment. Appellant submitted that it is nowhere in the pleadings where the Respondent alleged that he was prevented by the Appellant from coming to work. The Appellant argued that the Respondent was served with an advice to resign which he declined to comply with.

And on the issue of fair hearing Appellant submitted that the Court below on the Respondent’s alleged innocence regarding fraud weighed heavily on the mind of the Court causing it to ignore the most primary point of the nature of employment, the fact that the respondent’s guilt or innocence was not in issue in this case.

Appellant submitted that in considering weight of evidence the focus is not the quantity of evidence but its quality, relevance and cogency having regards always to the state of pleadings, the onus of proof and the state of the law on the question in issue that the fact that the respondent tendered 17 documents while appellant tendered just one is irrelevant in determining the weight of evidence. It finally urge the Court to allow the appeal.

RESOLUTION:
The challenge raised by the Appellant is fundamental on the orders made by the

trial judge in determining the claims of the Respondent. The relationship between the parties was a simple master servant relationship governed by the letter of Appointment and the handbook tendered as Exhibit CW2 and CW10. The relationship was strictly regulated by these two documents and the law on master and servant. See OLANIYAN & ORS VS. UNILAG & ANOR. (supra) which held:
“Contracts of employment like all other contracts their creation and termination are both subject to the general principles governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated.”

The contract governed by Exhibit CW2 stipulated that the contract can be determined by the giving of one Month Notice or payment in lieu of Notice. No notice to terminate the appointment evinced by Exhibit CW2 was tendered which therefore means that the contract was not determined according to contract. The trial Court found that the contract was not determined at all and in its judgment stated that the Respondent be paid his entitlement until the contract is determined. However, the

relationship between the parties had gone sour and was severed wrongfully. The Respondent cannot deny the fact that he was no longer wanted in the employ of the Appellant when it advised him to disengage (see Exhibit C5). Respondent also admitted this fact when he sought a relief requesting for a letter of recommendation to enable him gain another employment. And furthermore, going by the established principle that an employee cannot be imposed on an unwilling employer, the trial Court erred in holding that the employment subsisted and was yet to be determined. The Respondent admitted not having worked for the Appellant since June 2009. The fact that the contract was not determined according to law does not ipso facto mean it was not determined (albeit wrongly). If so, there was no contract in existence from the facts established which were not disputed that the Respondent was suspended, recalled but and was advised to disengage. The period of Notice in the contract of service was 30 days and the Appellant tendered Exhibit D1, a letter of termination which the Court below discountenanced because it was not acknowledged by the Respondent. The Appellant asserted

that the Respondent refused to accept it and refused to hand over his Identity card for payments of terminal benefits to be made. With all these facts, the Court cannot close its eyes to the fact that the relationship was not cordial as to conclude that the Respondent was still in the employ of the Appellant even after judgment. If that were so, why was the suit instituted?
It is settled that where the employment is wrongfully terminated, the employee is entitled to salary and entitlements over the period of notice, in this case one month. It is certain that once an employer takes step to terminate a contract wrongfully, the contract still remains terminated, the Court cannot find otherwise, See CHIEF FUNSO OLOGUNDE VS. CARNAUD METAL BOX TOYO NIGERIA PLC (2002) LPELR-12216 (CA). It is the wrongful action of the Appellant that gave the Respondent a cause of action. It is contradictory for the Respondent to assert he is still in the employment of the Appellant and still claim the reliefs he did before the trial Court.
In wrongful termination, the only remedy available to the Respondent has been crystallized by law and not open to the discretion of the

trial Court. The Respondent admitted the letter dated 18th December, 2009 advising him to disengage. That cannot be a commendation letter to spur him to remain in service. Obviously, the Respondent heeded the advice and instituted the action having stayed away from work; he also described himself in his evidence as jobless and admitted under cross examination that his employment had been terminated wrongfully. If so, on what basis did the Court below find that he was still in the employment even after judgment? It is trite that wrongful termination remains a termination even from the date the wrong step was taken. See ATIVIE VS. KABEL METAL NIG LTD (2008) LPELR-591)(SC).
The Court below awarded the Respondent all his salaries and allowances up till lawful termination at an undetermined time. The handbook which regulated the relationship apart from one month’s notice also made provision for suspension of a staff for various reasons. The fact of suspension was admitted by both sides, the Respondent was recalled, at the point of recall, the Respondent was entitled to his outstanding salaries and allowances up to the point of recall, however, at the

point Exhibit C5 was served on the Respondent, the employment came to an end even though wrongfully. At that point, the Respondent is entitled to all his salaries and allowances up to time he took out the writ which was 18th December, 2012. It is on record that the Respondent was on suspension from May 2009. Therefore, the salaries should run from May, 2009 to December 2009. The Respondent shall also be entitled to one month’s salary in lieu of notice for the wrongful termination without notice.

credibility. Section 232 of Act gives the person cross-examining a witness two options. Bello, JSC, in AJIDE v. KELANI (1985) 3 NWLR (pt.12) 248 at 200 – 261, (1985) 16 NSCC (pt.2) 1298 at 1309, stated the options thus – “He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to witness and call his attention to those part of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence.” It is the duty of the person cross-examining a witness to comply with the conditions set out in Sections 232 of the Evidence Act, 2011 in order that the previous statement in writing of the witness becomes admissible in evidence for the purpose of contradicting the witness and thereby impeach his credibility. See KWAGHSHIR v. THE STATE (1995) 5 SCNJ 222 at 228; BALOGUN v.UKWA WEST LOCAL GOVT COUNCIL

(2002) FWLR (pt. 100) 1287 SC. Section 232 of Evidence Act, 2011 is intended to check the double-speak of a witness, who is prevaricating on an issue that he had made previous statement in writing on. There are essential requirements of the Section that the party cross-examining a witness, who intends to impeach the credit of the witness by showing that what the witness is presently saying contradicts his previous statement in writing, must comply with. That is, (a) the attention of the witness must be specifically drawn to those parts or portions of his previous statement in writing which are to be used for the purpose of contradicting him; (b) the witness must be reminded of what he had stated in the previous statement, and (c) he must be given an opportunity of making explanation on the apparent contradictions. From the authoritative stance of this Court those are the templates the cross-examiner shall comply with before he tenders any previous statement in writing by a witness for the purpose of contradicting the witness and impeaching his credibility. See MADUMERE vs. OKAFOR (1996) 4 NWLR (pt.445) 637; AMODU VS. THE STATE (2010) 2 NWLR

(pt.1177) 47.” Per EKO, J.S.C
In this case, it was not even judgment that was relied upon but the pleadings which did not go through trial. I have said it earlier, the Court below could at best have only allowed the Respondent to use such pleadings to cross examine the Appellant but not for its use as evidence to decide the claim before it. Both parties understood from their actions, pleadings and evidence that there was no relationship. All the Court below was expected to do was to determine at what point the outstanding salaries should be computed. It was wrong to award salaries beyond the obvious terminal act by the Appellant and to take it beyond judgment. With the facts before the Court below, it is not judicious to award salaries until employment is terminated and beyond judgment. Usually, even, when it is justified to make the award to include the period of litigation, then everything terminates at judgment stage and cannot go beyond judgment. The award beyond the date the claim was filed is wrong and must be set aside.
Furthermore, the Court wrongly made a pronouncement on the criminal allegation that gave rise to the sour relationship. The

trial judge lacks the competence to determine an allegation of crime which in any case, must have been proved beyond reasonable doubt. Therefore, the question of Appellant not joining issues with the Respondent on the allegation of fraud is of no moment.
The contention of the Respondent that he was not given a hearing in the determination of his employment is part of what makes the determination of employment wrongful. If he were given a hearing, then he cannot also allege wrongful termination or dismissal because the basic protocol towards termination or dismissal would have been observed. Even if the Respondent was not given fair hearing, the quantum or amount of months of salaries and allowances to award cannot go beyond judgment in particular cases. It also cannot include years of litigation in a normal Master/Servant relationship. At the point the Respondent had a cause of action and initiated proceedings the matter became crystallized. The salaries and allowances cannot include the period of litigation when the employment was not one with statutory flavor. The Court below erred in awarding salaries including all the years from 2012 to 2014. The

award for the period of litigation and beyond judgment is hereby set aside.
Flowing from above, there a wrongful termination of employment and the reason for it is no longer relevant. The Respondent is therefore entitled his salaries from the time he was placed on suspension to when he was advised to disengage and to date he filed the suit. This was when he also stopped going to work and the salaries were also not forthcoming, that is to say he is entitled to his salaries as disclosed in Exhibit his last promotion letter from June, 2009 up until December 2012, this also includes when the action was initiated. That is when the cause of action arose and one month’s salary as payment for the period in lieu of Notice. The employment was terminated by constructive notice and actions which both sides understood and acquiesced to. The Court cannot therefore insist on the existence or issuance of a letter of termination. Failure to have a valid letter of termination justifies the wrongfulness in determining the relationship for which the law has settled what such an employee should be entitled to. It is payment for the period of notice to make it a lawful

termination, however, as in this case, the Respondent was not paid while on suspension, he is entitled to his salaries during the period of suspension.

The Appeal is partially successful and the judgment delivered by Hon. Justice Obaseki-Osaghae delivered on the 25th September, 2014 is hereby set aside I hereby set aside all other awards made by the Court below and award to the Respondent the following:
i. Salaries and allowances in the terms of Exhibit from June, 2009 to December, 2019 when the suit was initiated.
ii. Thereafter, one month’s salary in lieu of Notice.

I make no order as to Cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I AGREE.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading the judgment just delivered by my learned brother, Yargata B. Nimpar, J.C.A. I agree with the reasons given and the conclusion hereby reached.

I too allow the appeal in parts and abide by the consequential orders.

Appearances:

BASSEY B. AMWANANE ESQ., For Appellant(s)

SEUN AJOBIEWE, ESQ., For Respondent(s)