KEYSTONE BANK PLC v. KASSIM YIGGON
(2013)LCN/6661(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of December, 2013
CA/J/206/2005
RATIO
WHETHER A CLAIM OF UNLAWFUL DISMISSAL MAY BE DISMISSED WHERE THE PLAINTIFF HAS FAILED TO PROVE THAT THE DISMISSAL WAS UNLAWFUL
It is an elementary principle of the rules of litigation that the Plaintiff in the lower Court who alleges unlawful dismissal from his employment must prove that the dismissal was unlawful, and failure to do this will lead to such a claim being dismissed.
See: EDE VS. OKUFO (1990) 2 NWLR PART 150 PAGE 356.
In other words, if the Plaintiff cannot succeed on the strength of his claim he should fail. See:- INYANG VS. ESHIET (1990) 5 NWLR PART 149 PAGE 178.
See also Sections: 131, 132 and 133(1) of the Evidence Act, 2011 (as amended). Per JIMI OLUKAYODE BADA, J.C.A.
JUSTICE
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
KEYSTONE BANK PLC. Appellant(s)
AND
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Adamawa State High Court, Yola in SUIT NO. ADSY/5/04: KASSIM YIGGON VS. HABIB NIG. BANK LTD. (NOW KEYSTONE BANK PLC), delivered on the 8th day of June, 2005 wherein the trial Judge found in favour of the Respondent.
Briefly, the facts of the case are that the Respondent i.e the Plaintiff at the lower Court, by a Writ of Summons dated 30/1/2004, claimed the following reliefs against the Appellant i.e the Defendant at the lower Court.
“1. A declaration that the purported dismissal of the plaintiff as a staff of the Defendant Bank vide letter of 2nd October, 2003 in all circumstance of the case is unlawful, invalid, illegal, wrongful and void.
2. The sum of (N749.882,51) Seven Hundred and Forty Nine Thousand Eight Hundred and Eighty Two Naira Fifty One Kobo only, being the Plaintiff’s balance of staff provident Scheme (SPF) as at October, 2003.
3. The sum of (N99.950.76) Ninety-Nine Thousand, Nine Hundred and Fifty Naira, Seventy Six Kobo only, being the outstanding salary while on suspension.
4. The sum of N328.734.11 being outstanding annual leave days pay.
IN THE ALTERNATIVE
5. The Plaintiff claims the sum of N5,000.000.00 Five Million as general damages for wrongful dismissal.
6. Any further or better Orders.”
Pleadings were duly ordered and exchanged and both sides called witnesses. At the conclusion of hearing, the learned trial Judge found in favour of the Respondent.
The Appellant who is dissatisfied with the Judgment of the lower Court now appealed to this Court.
The learned Counsel for the Appellant formulated two issues for the determination of the appeal.
The issues are set out as follows:-
“1. Whether the dismissal of the Plaintiff/Respondent from the service of the Defendant/Appellant is not justifiable in view of the evidence adduced before the trial Court (Distilled from Grounds 1, 2, 3 & 4).
2. Whether it was proper for the trial Court to award to the Plaintiff/respondent the reliefs that were awarded in this matter” (Distilled from Grounds 5 & 6).
The learned Counsel for the Respondent formulated a lone issue for determination of the appeal.
The issue is set out as follows:-
“Whether the Plaintiff/Respondent based on preponderance of evidence has proved his case to warrant the trial Court to enter Judgment in his favour and grant the reliefs enumerated in the said Judgment”. (Distilled from Grounds 1 to 6).
At the hearing of the Appeal, the learned Counsel for the Appellant referred to the Appellant’s further amended brief of argument which was filed on 14/11/2013. He adopted the said brief as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondent in his own case also referred to the amended Respondent’s brief of argument filed on 18/11/2013. He said that a lone issue was formulated and that it relates to all the grounds of appeal. He adopted the said brief as his argument in urging that the appeal be dismissed. He urged this court to affirm the Judgment of the lower Court.
I have carefully examined the issues formulated for determination by Counsel for the parties, the issues are similar, however it is my view that the lone issue formulated on behalf of the Respondent is the strategic fulcrum of the appeal, I will therefore rely on the said lone issue formulated on behalf of the Respondent in the determination of the appeal.
“Whether the Plaintiff/Respondent based on preponderance of evidence has proved his case to warrant the trial Court to enter Judgment in his favour and grant the reliefs enumerated in the said Judgment”.(Distilled from Grounds 1 to 6).
The learned Counsel for the Appellant submitted that the burden of proving the case of wrongful dismissal before the trial Court is placed by law on the Respondent. He relied on the following Sections of the Evidence Act, 2011 (as amended).
– Section 131
– Section 132
– Section 133(1).
He also relied on the cases of:-
– OKOMU OIL PALM CO. LTD. VS. ISERHIENRHIEN (2001) 3 SCNJ PAGE 79 AT 89 LINES 18 – 24.
– KATO VS. CBN (1999) 6 NWLR PART 607 PAGE 390 AT 405.
He went further in his submission that the Respondent neither pleaded nor tendered the conditions of his service with the Appellant. He did not also show that the Appellant breached his contract of service in any way.
Learned Counsel for the Appellant urged this Court to set aside the decision of the lower Court. He referred to Exhibits “E” “G” and “L”. It was submitted on behalf of the Appellant that an employer is at liberty to hire and dismiss its staff so long as such dismissal/termination of appointment is done in accordance with the contract of service between the employer and the employee.
He relied on the case of:- FAKUADE VS. O A.U. (1993) 6 SCNJ PAGE 35.
Reference was made Article 4(iv) (a) of Exhibit “M” at page 42 of the Exhibits and also page 60 of the Record of Proceeding lines 26 to 28 where the Respondent admitted that he counter signed ten forged cheques.
Learned Counsel for the Appellant submitted that the action of the Respondent amounts to negligence and irregularity under Exhibit “L” and he is liable to dismissal. He went further that the Appellant has discharged the onus placed on her before the trial Court.
It was also argued on behalf of the Appellant that having accorded the Respondent fair hearing as required by the contract of service, the Appellant was at liberty to dismiss the Respondent.
He relied on the cases of:-
– LAYADE VS. PANALPINA (1996) 7 SCNJ PAGE 1 AT 10 LINES 36 – 43
– OLANREWAJU VS. AFRIBANK (2001) 7 SCNJ PAGE 493 AT 501
– YUSUF VS. UNION BANK (1996) DELTA STATE LAW REPORT PART 1 PAGE 31
The learned Counsel for the Appellant submitted further that there is no basis for the award of the reliefs granted to the Respondent. He stated that unchallenged evidence at a trial is deemed accepted and that the Court ought to act on it.
He relied on the following cases:-
– OMO VS. JUDICIAL SERVICE (2000) 7 SCNJ PAGE 17 AT 32 TO 34
– OFORLETE VS. THE STATE (2000) 7 SCNJ PAGE 162 AT 183
– FEDERAL UNIVERSITY OF TECHNOLOGY YOLA & ANOTHER S. SAMUEL DARAMOLA (UNREPROTED) APPEAL NO: CA/J/250/2001 DELIVERED ON 5/7/2005.
It was submitted further on behalf of the Appellant that a party that proves a case of wrongful termination of employment is only entitled to what he would have gotten under contract had his employment been termination properly.
– OLANREWAJU VS. AFRIBANK (2001) 7 SCNJ PAGE 493 AT 501
– YUSUF VS. UNION BANK (1996) DELTA STATE LAW REPORT PART 1 PAGE 31.
The learned Counsel for the Appellant submitted further that there is no basis for the award of the reliefs granted to the Respondent. He stated that unchallenged evidence at a trial is deemed accepted and that the Court ought to act on it.
He relied on the following cases:-
– OMO VS. JUDICIAL SERVICE (2000) 7 SCNJ PAGE 17 AT 32 TO 34
– OFORLETE VS. THE STATE (2000) 7 SCNJ PAGE 162 AT 183
– FEDERAL UNIVERSITY OF TECHNOLOGY YOLA & ANOTHER VS. SAMUEL DARAMOLA (UNREPORTED) APPEAL NO: CA/J/250/2001 DELIVERED ON 5/7/2005
It was submitted further on behalf of the Appellant that a party that proves a case of wrongful termination of employment is only entitled to what he would have gotten under contract had his employment been termination properly.
It was also contended on behalf of the Respondent that it is settled law that where a person is accused of criminal offence as in this case, fraud, his dismissal cannot stand unless the allegation is proved.
On the contention of the Appellant that the Plaintiff neither tendered nor pleaded his condition of service, learned Counsel for the Respondent in his response submitted that where there is otherwise ample evidence to establish terms of a contract of employment, failure to tender same by Plaintiff is not fatal.
He relied on the case of: SAVANAH BANK PLC VS. FAKOKUN (2002) 1 NWLR PART 749 PAGE 544.
It was also argued on behalf of the Respondent that there is nothing before the Court suggesting that the Respondent admitted the allegation leveled against him in Exhibit ‘F”.
He went further that in all the Exhibits written by the Respondent in response to the query, none of the letters contains admission of any allegation by the Respondent.
On the issue of relief granted to the Respondent, reference was made to the evidence of DW1 at page 66 lines 7 to 10 of the record of appeal which is to the effect that the policy of the Bank is that where a staff is summarily dismissed as in the present case, he or she forfeits the Bank contribution to staff provident fund. And that it is only his or her contribution to the fund that would be left. He submitted that there is nothing in the Appellant’s condition of service, Exhibit “M” which states that a party is not entitled to the Banks pension contribution up to the last month he was dismissed.
On the general damages, he contended since the trial Court held that the dismissal was wrongful, he is entitled to the damages.
The learned Counsel for the Respondent finally urged this Court to affirm the Judgment of the lower Court and dismiss this appeal.
In civil claims the onus of proof is on the Plaintiff who must prove his claim.
It is an elementary principle of the rules of litigation that the Plaintiff in the lower Court who alleges unlawful dismissal from his employment must prove that the dismissal was unlawful, and failure to do this will lead to such a claim being dismissed.
See: EDE VS. OKUFO (1990) 2 NWLR PART 150 PAGE 356.
In other words, if the Plaintiff cannot succeed on the strength of his claim he should fail. See:- INYANG VS. ESHIET (1990) 5 NWLR PART 149 PAGE 178.
See also Sections: 131, 132 and 133(1) of the Evidence Act, 2011 (as amended).
In OKOMU OIL PALM CO. LTD VS. ISERHIENRHIEN (SUPRA) PAGE 89 LINES 18 – 24, the Supreme Court held among others that:-
“…….when an employee complains that his employment has been wrongfully terminated he has the onus (a) to place before the Court the terms of the contract of employment and (b) to prove in what manners the said terms were breached by the employer……..”
In this case it is on record that the Respondent did not tender before the lower Court the terms or condition of his service. I agree with the submission of the learned Counsel for the Appellant that since the Respondent did not plead or tender his conditions of service at the lower Court, he has not shown how the Appellant breached his contract of service.
The Respondent was summarily dismissed by the Appellant with a letter dated 2/10/2003. Which was tendered and marked as Exhibit “F”.
The contents of Exhibit “F” states as follows:-
“Habib Nigeria bank Limited
RC 50750
COR/SER/HRM/PC.CS.002/02/2003October 2, 2003
Mr. Kassim Yiggon,
Thru: The Manager,
Habib Nigeria Bank Limited,
Fufore Branch.
Dear Mr. Yiggon,
RE: REPORT OF YOUR INVOLVEMENT IN THE FRAUDULENT ACTS AT FUFORE BRANCH
Further to Regional Office Kano’s letter ROK/HRM/COR.PC.OF.06/FUR/2003 dated 10th April, 2003 on the underlisted:
1. Deliberate posting of N1.380m from CD 033 to another CD account CD 004 on 28th February, 2003.
2. Accommodating CD 033 on 5th March 2003 with a cash payment of N350,000.00 thereby creating a TOD of N344,145.56.
3. Countersigning dry positing by debiting CD 044 and crediting CDs 101, and 142 between 27/08/2002 to 31/01/2003 totaling N578,000.00.
4. Leaving the affairs of the Branch to the Head of Operations without supervision and your response to same, we write to advise that Management has reviewed the case and approved that you be summarily dismissed on account of fraud and misrepresentation to Management.
Accordingly, you are hereby summarily dismissed with effect from the date of this letter.
Meanwhile, your entitlements and liabilities are being worked out and same will be communicated to you.
Kindly acknowledge receipt.
Thank you.
SGN SGN
HAUWA HAMMAJO GARBA D. IBRAHIM
ASST. MANAGER (HRM) CONTROLLER (HRM)”
After the dismissal, the Respondent filed an action against the Appellant. In his testimony at the lower Court he denied that he committed the offence for which he was dismissed. He stated among others that he did not commit any offence as to warrant his summary dismissal (see page 52 of the Record of Appeal lines 14 to 16).
But under Cross Examination the Respondent stated among others as follows:-
“…………..It is true that in Exhibit “D” I admitted counter signing ten forged cheques on the next working day as presented to me by Head of Operations Umar Uba…………”
It is trite law that the Court does not make the contract for the parties, but only gives effect to the agreement between the parties. And in a case of wrongful dismissal, all that the employer needs to show to succeed is that the reasons for termination of appointment or dismissal are true where the employer has given reason, but the employer is not obliged to give any reason. See:- FAKUADE VS. O.A.U. (SUPRA).
The learned Counsel for the Appellant referred to Exhibit “M” i.e. the senior staff collective agreement between Nigeria Employers Association of Banks, insurance and Allied Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions.
Exhibit “M” governs the employment of the Respondent. This is supported by Exhibit “A” i.e. The letter of appointment and the evidence of the Respondent under cross-examination at page 54 of the Record of Appeal,
Article 4 (iv)(a)(b) & (c) of Exhibit “M” states as follows:-
“SUMMARY DISMISSAL
a. An Employee may be summarily dismissed for certain acts of Gross-misconduct. Such acts include proven cases of:-
i. Theft, fraud, dishonesty, defalcation and irregular practices in respect of cash, vouchers, records, returns or customer’s account and foreign exchange transactions;
ii. Willful disobedience of a lawful order OR serious negligence;
iii. Drunkenness or taking drugs other than for medical reasons, rendering the Employee unfit to carry out his or her duties;
iv. Intentionally divulging confidential information in breach of any “Declaration of Secrecy”;
v. Conviction for a criminal offense;
vi. Prolonged and/or frequent absence from work without leave or reasonable cause;
vii. Fighting and assault or engaging in disorderly behaviors during working hours on the office premises or within its immediate surroundings;
viii. Deriving any benefit in the course of his official duties which place him in such a position that his personal interest and his duty to the Employer or to any customer of the Employer are in conflict;
ix. Failure to report promptly any irregularity on the part of any other Employee after having knowledge of such irregularity;
x. Abusive or insulting language or behavior to any client which is prejudicial to the business interests of the Employee; and
xi. Any other offenses which may be agreed upon between the Association and the Union from time to time.
b. Where an offence has been committed which merits summary dismissal but where the Member Company does not exercise its prerogative of dismissal a “first and last” or a “second and last” warning letter may be issued and the fact that the warning is a final one will be made clear in the letter.
c. Before either summary dismissal or warning letter is effected, the Employee shall be given a written query and afforded the opportunity of defending himself in writing except where the Employee has absconded”.
A careful reading of the said Article 4(iv) (a) of Exhibit “M” set out above showed that the dismissal of the Respondent is in accordance with the agreement i.e. (the section stated above).
I have shown earlier where the Respondent admitted counter signing ten forged cheques.
It is my view that the Respondent was required to counter sign cheques for him to exercise supervisory role over the activities of the head of operations who presented the cheques him.
In this case, when the Respondent counter signed the cheques without verification it means he subscribed to the irregularity/fraud perpetrated with the cheques.
Also in Exhibit “L” and under cross examination the Respondent admitted posting N1.38 Million to a wrong account as per Exhibits “K1” and “K2”. This in my view amounts to negligence on the part of the Respondent.
It was submitted on behalf of the Respondent that where a person is accused of criminal offence as in this case, fraud, his dismissal cannot stand unless the allegation is proved.
In OLANREWAJU VS. AFRIBANK (SUPRA) PAGE 510 LINES 18 – 24. The Supreme Court held among others as follows:-
“Where therefore an employee has been found guilty by a disciplinary committee of any of the gross-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 this case under consideration, the Respondent was queried and he responded. In his response and in his testimony under cross examination he admitted counter signing forged cheques numbering ten in all.
He also admitted posting N1.38 Million into a wrong account.
In my humble view, with the admissions of the Respondent referred to above, he could be summarily dismissed.
See: ALHAJI YUSUF VS. UNION BANK OF NIGERIA LTD. (1996) DELTA STATE LAW REPORT PART 1 AT PAGE 31.
Consequent upon the foregoing, I am of the view that the dismissal of the Respondent by the Appellant was done in accordance with the contract between the parties and the Appellant has not breached the said contract. Infact the Appellant justified the dismissal of the Respondent.
In view of my finding above that the dismissal of the Respondent is justified, it is not proper for the trial Court to award the Respondent the reliefs that were awarded to him.
This issue is therefore resolved against the Respondent.
In the result, it is my view that there is merit in this appeal and it is allowed.
The Judgment of the lower Court delivered on the 8th day of June, 2005 is hereby set aside. In its place the Plaintiff’s claim in Suit No: ADSY/5/005 between KASSIM YIGGON VS. HABIB NIG. BANK LTD (NOW KEYSTONE BANK PLC) is hereby dismissed.
There shall be costs assessed at N100,000.00 in favour of the Appellant and against the Respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I have had a preview in draft of the Judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, J.C.A., and I agree with him that, for the reasons stated in the said Judgment, which I hereby adopt, this Appeal should be, and is hereby, allowed with costs in favour of the Appellant which I fix at N100,000.00.
ADAMU JAURO, J.C.A.: I have read before now, the judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, J.CA. I am in complete agreement with the reasoning and conclusion contained in the sell articulated judgment to the effect that the appeal is meritorious.
I adopt the said judgment as mine and hereby allow the appeal. The judgment of the lower Court delivered on the 8th day of June, 2005, is hereby set aside; and the plaintiff’s claim is hereby dismissed. I abide by consequential orders made, including order as to costs.
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Appearances
Mr. Mahmud AhmedFor Appellant
AND
Mr. S.N. NzonzoFor Respondent
