MR. BENEDICT CHIDOBEM AJUZI v. FIRST BANK OF NIGERIA PLC (2016)

MR. BENEDICT CHIDOBEM AJUZI v. FIRST BANK OF NIGERIA PLC

(2016)LCN/8402(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/OW/265/2011

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

MR. BENEDICT CHIDOBEM AJUZI Appellant(s)

AND

FIRST BANK OF NIGERIA PLC Respondent(s)

RATIO

LABOUR LAW: CONTRACT OF SERVICE; DETERMINATION OF THE CONTRACT OF SERVICE BETWEEN PARTIES

The relationship of master and servant existing between the Appellant and Respondent in this Appeal is one of an ordinary master and servant governed by written contract not subject to statutory flavor. What this readily portends for the parties is that in construing the terms and conditions of the relationship, the parties practically have nowhere else to look for the determination of the terms of relationship but the written contracts existing between them. See KATTO vs. CBN (1999) 6 NWLR (PT. 607) 390 AT 405. See also OLANIYAN vs. UNILAG (Supra) cited by learned Respondent’s Counsel. In IFETA vs. SPDC (Supra) the Supreme Court, per MOHAMED, JSC had this to say on the subject:
In the determination of this issue, I need to emphasize the bindingness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of the contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are, invariably the guide to its interpretation. On this premises, the material question is: what did the parties in the instant case agree with respect to the termination of the contract of service?” PER. REDERICK OZIAKPONO?OHO, J.C.A

LABOUR LAW: TERMINATION OF EMPLOYMENT; WHETHER THE EMPLOYEE WAS DISMISSED WRONGFULLY AND WHAT THE PLAINTIFF MUST PLEAD IN CASE OF WRONGFULLL TERMINATION OF EMPLOYMENT

The Appellant’s claim at the Lower Court was apparently hinged on wrongful dismissal. But the question to address here is; was the Appellant’s dismissal wrongful? Perhaps, what should be borne in mind at all times is that a master can terminate the employment of his servant at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract of employment. Usually, the motive for such termination is irrelevant and so whenever it is dispensed with in the process of termination, no eyebrows are usually raised. See OSIANYA vs. AFRIBANK NIG. PLC (2007) 6 NWLR (PT. 1031) 565 in this regard.

Therefore, where an employee alleges wrongful termination or dismissal, the onus will usually be on him to prove wrongful termination or dismissal as the case may be. To do just this, the apex Court in the case of MOROHUNFOLA vs. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506 AT 519 stated that in case of wrongful or unlawful termination of employment, the Plaintiff must begin first by specifically pleading the following:
1. That he is employed by the Defendant
2. The terms and conditions of his appointment including duration and termination.
3. Who can appoint and remove him
4. The circumstances under which his appointment can be terminated and
5. That his appointment can only be terminated by a person or authority other than the Defendant.
In addition, it is also important to plead all relevant materials and facts upon which to hinge the Plaintiff’s claim to sustain his allegations of wrongful or unlawful termination of employment. Having done this, the Plaintiff is next required to call credible evidence in proof of the pleaded facts. In the case of AMODU vs. AMODE (1990) 5 NWLR (PT. 150) 356 AT 370, the Supreme Court, per AGBAJE, JSC had this to say on the subject:
“Since it is the Plaintiff’s case, that his dismissal by the Defendants is not in accordance with the terms and conditions of the contract of service, between them it is for the Plaintiff to plead and prove the conditions of service regulating the contract of service in question. It is also for the Plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him.” PER. REDERICK OZIAKPONO?OHO, J.C.A

LABOUR LAW: SUMMARY DISMISSAL; WHETHER AN EMPLOYER CAN SUMMARILY DISMISS HIS EMPLOYEE WITHOUT HAVING TO AWAIT THE OUTCOME OF A CRIMINAL TRIAL

Learned Appellants Counsel made heavy weather of the fact that the Appellant was arrested, charged to Court and tried for the offence of Armed Robbing and Stealing and that for that reason, his dismissal ought to have awaited the outcome of this trial at the Chief Magistrate Court, Igbosere Lagos. Perhaps, in answer to the claim of the Appellant in this connection, it may be necessary to refer to the decision of the Supreme Court on the issue in the case of OLANREWAJU vs. AFRIBANK (Supra) where the Court said as follows:
“It is not necessary nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee, he must be tried before a Court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.” What this position further portends for the parties is that despite the Appellants alleged involvement in criminality allegedly leading to the Respondents loss of approximately Five-Hundred Thousand ($500,000.00) United States Dollars to Armed Robbers, the Respondents could still go ahead to summarily dismiss the Appellant without having to await the outcome of a criminal trial so long as he is being dealt with for gross misconduct bordering on criminality as it had occurred in the instant case. See the case of ALHAJI YUSUF vs. UNION BANK PLC (1996) 6 NWLR (PT.457) 632. PER. REDERICK OZIAKPONO?OHO, J.C.A

FREDERICK OZIAKPONO?OHO, J.C.A.(Delivering the Leading Judgment):
Before the High Court of Abia State sitting at Umuahia, BENEDICT CHIDOBEM AJUZIE brought an action against FIRST BANK OF NIGERIA PLC., claiming as per his Amended Statement of Claim the following reliefs:
1. A Order of the Honourable Court declaring as wrongful, the dismissal of the Plaintiff by the Defendant on the 11th day of May, 2007 and N499,000.00 (Four Hundred and Ninety-Nine Thousand Naira) damages in consequence thereof.
2. An Order of the Honourable Court reinstating the Plaintiff to his former position, as Senior Bank Officer (S.B.O) as at the 11th day of May, 2007.
3. An Order of the Honourable Court directing/mandating the Defendant by itself or its management, to pay to the Plaintiff the sum of N1,758,000.00 (One Million, Seven Hundred and Fifty-Eight Thousand Naira) being salary arrears deprived the Plaintiff from the month of April, 2007 to the month of June, 2009.
4. An Order of the Honourable Court directing/mandating the Defendant by itself or its management to continue to pay the Plaintiff the sum of N68,000.00 (Sixty-Eight Thousand

Naira) per month or as may be reviewed upwards by Defendant in line with the employment scheme from the month of July, 2008 until he is retired in accordance with the Bank’s?s regulations.
5. 10% interest being the prevailing bank rate on the N1,758,000.00 (One Million, Seven Hundred & Fifty-Eight Thousand Naira), that is to say, the sum N175,800.00 (One Hundred and Seventy-Five Thousand, Eight Hundred Naira) from the month of April, 2007 to and including the month of June, 2009.
6. An Order of the Honourable Court directing/mandating the Defendant Bank by itself or through its management to continue to pay the Plaintiff his monthly salary of N68,000.00 (Sixty-Eight Thousand Naira) or such reviewed salary until retirement or disengaged in line with the 1st Defendant Bank’s regulations.
AND/OR IN THE ALTERNATIVE:
An Order of the Court directing/mandating the Respondent Bank to retire the Plaintiff in line with the retirement and pension scheme applicable to Bank Employees without prejudice to the payment of the Plaintiff all accrued arrears of salary and benefits attached to his position.

Pleadings were duly filed and

exchanged between the parties. The Appellant as Claimant at the Lower Court adopted his written deposition on Oath and called no witnesses while the Respondent called a witness, one Mr. Obinna Ikonne, who also adopted his written deposition on Oath and called no other witnesses. A number of documentary Exhibits were tendered by the parties at the time of hearing. The Claimant tendered Exhibits A to L while the Respondent as Defendant tendered an Exhibit M, which is the Respondent?s Employees? Hand book. The learned trial Judge after hearing evidence and listening to the addresses of Counsel, in a well considered judgment entered judgment in favour of Defendants.
?
The facts of this case as can be gleaned from the averments of the parties in their respective pleadings are that the Claimant by Exhibits B and B1 was a staff of the Defendant who rose to the rank of Head Operations Support (HOS) in the Umuahia Branch of the Respondent. Part of the duties of the Head Operations Support in the Branch was to delegate any available driver to leave for the Airport to pick up those that went on ?specie? to Lagos. By ?Specie? in

Banking terminology it simply means; ?MONEY?. It also includes the movement of money (usually large sums) from one point to another. Under usual Banking practice and policy including the Respondent, specie are usually carried out with armed Police escorts.

On the 2nd day of June, 2006, the Claimant/Appellant ordered a driver to leave for the Airport at about 11:00am to convey the sum of Five Hundred Thousand ($500,000.00) United State Dollars equivalent of about Seventy Million (N70,000,000.00) Naira without any security or Police escort against normal practice (see Exhibit C). As it later turned out that fateful day, the driver was attacked and the money stolen. The Respondent reported the matter to the Police for their investigation and necessary action in accordance with the relevant laws of State. The Respondent, in addition and pursuant to the Disciplinary Procedure of the Respondent as contained in the extant employee handbook, Exhibit M or K issued a query to the Appellant which the Appellant replied, see Exhibit D. The Appellant was accordingly suspended in accordance with the employee?s Handbook, Exhibits K & M.
?
As

Police investigation continued, the Respondent proceeded with its own disciplinary procedure and invited the Appellant to appear before the disciplinary committee. See Exhibit G. At the end of the disciplinary committee session the Appellant was summarily dismissed from the employment of the Respondent. There were no reasons given why the Appellant was dismissed. The appeal to the Managing Director of the Respondent Exhibit H was not favourable to the Claimant. See Exhibit I. However, the result of the Police Investigation into the matter was that the Claimant/Appellant was charged to Court along with six (6) other persons with the Offence of Conspiracy to steal and also for stealing the said sum of $500,000 United States Dollars. On the 26-10-2007 the Appellant was discharged and acquitted of the criminal charges by the trial Magistrate?s Court.

In appealing against the Lower Court?s judgment of the 28-2-2011 a total of two (2) Grounds of Appeal were filed, which without their particulars, are reproduced as follows:
GROUNDS OF APPEAL;
1.The Hon. Judge erred in law when he misapplied the law as it relates to Master and Servant

Relationship between the Appellant and the Respondent warranting the dismissal of the Appellant?s suit.
2. The Judgment of the Hon. trial Judge was perverse.

Parties in this appeal filed and exchanged their briefs of argument. The Appellant?s brief is dated the 19-6-2014 and filed 23-6-2014. It was settled by P. C. ADIGHIJE ESQ., On the part of the Respondent, the brief of argument is dated 14-7-2014 and filed on the 5-8-2014. The said brief was settled by J. I. OGAMBA ESQ. Two (2) issues were distilled for Court?s determination by the Appellant as follows:
1. Whether the learned judge did not misapply the law as it relates to MASTER AND SERVANT RELATIONSHIP between the Claimant Appellant and the Defendant/Respondent warranting the dismissal of the Claimant?s (Appellant?s) suit.
2. Was the judgment of the learned judge not perverse and therefore occasioned a miscarriage of justice?

Learned Respondent?s Counsel adopted the two issues nominated by Appellant?s Counsel for the determination of the Appeal. At the hearing of this Appeal on 4-2-2016 the parties adopted their respective briefs of

arguments. The Appellants Counsel adopted the Appellants brief and prayed this Court to allow the Appeal and set aside the judgment of the trial Court, while Counsel to the Respondents adopted their briefs and urged this Court to dismiss this Appeal and affirm the judgment of the Lower Court.

ARGUMENTS OF LEARNED APPELLANT’S COUNSEL;
ISSUE ONE;
Whether the learned judge did not misapply the law as it relates to MASTER AND SERVANT RELATIONSHIP between the Claimant Appellant and the Defendant/Respondent warranting the dismissal of the Claimant’s (Appellant’s) suit.

It was the contention of Appellant’s Counsel that the learned trial judge misapplied the law as it relates to Master and Servant in view of the facts of this case. Counsel said that the Appellant having been first suspended for an alleged misconduct and negligence by the Respondent was subsequently made to appear before a disciplinary committee set up by the Respondent where in his words, the Appellant was tried as if he were before a Court of law for offences of armed robbery and stealing and at the end of which he was summarily

dismissed without recourse to or consideration of the incidents leading to Appellant?s suspension and trial by the said committee. This according to learned Counsel is despite the fact that the Appellant was acquitted and discharged by a Court of competent jurisdiction on the same charges of armed robbery and stealing. Counsel referred Court to Exhibit ?F? and also to pages 33-38 and 107 Paragraph 5 lines 4 and 5 thereof of the Record of Appeal.

It was also contended by Counsel that the Respondent?s disciplinary committee should not have summarily dismissed the Appellant, having found as of a fact that a Court of competent jurisdiction had earlier discharged the Appellant of the said offences. Counsel cited the case of FEDERAL CIVIL SERVICE COMMISSION vs. J. O. LAOYE (1989) 2 NWLR (PT. 106) 652 in support.

It was further argued by Counsel that the Respondent?s disciplinary committee having tried the Appellant for robbery and stealing and also found him guilty, should not have summarily dismissed him without any cogent or express reasons in view of the fact that the Claimant was discharged and acquitted by the Chief

Magistrate Court, Igbosere. He said that the fact of his being found guilty by the Respondent bank?s disciplinary committee was elicited under cross-examination from the evidence of the DW1-MR OBINNA IKONNE who at page 112 of the Record especially Paragraph 5 lines 1 to 3 thereof stated thus: ?I am aware that the committee adjudged the Claimant guilty of conspiracy and stealing the money involved.? Counsel further said that this piece of evidence corroborated or lent credence to the oral evidence of the Appellant wherein at page 109 of the Records stated at Paragraph 15 line 5 and paragraph 20 lines 1 and 2 as follows: ?Before I was dismissed, I was invited to the head office to defend myself on the allegation of stealing the Bank?s money while we were in Court for the criminal case.?

Learned Counsel drew attention of Court to EXHIBIT ?G?, which was the letter of invitation by the Respondent?s disciplinary committee with the subject-matter: ?ARMED ROBBERY AND STEALING OF $500,000 (N62M) ON JUNE 2, 2006, MR. BENEDICT C. AJUZIE (S/N 11282).? He also drew attention to the Records where he

said that the exhibit was admitted in evidence as EXHIBIT ?G? at page 107 Paragraphs 15, lines 6-9 thereof. It was contended by Counsel that the letter of invitation (EXHIBIT ?G?) did not contain as its subject matter the reason for the suspension and the intended hearing or trial of the case against the Claimant/Appellant, that is to say: ?MISCONDUCT OR NEGLIGENCE?. According to learned Counsel the learned trial judge deliberately shut his eyes to the obvious fact that the acquittal of the Appellant by the Court amounted to an exoneration of the Appellant of whatever allegations that were leveled against him and which culminated in his suspension and eventual dismissal. Counsel cited the case of OLANREWAJU vs. AFRICAN BANK PLC (2001) 37 WRN 41 at 59.

Counsel argued that the learned trial judge was in agreement with the ratio decidendi in LAOYE?S case when he stated thus:
?It is also good law that an employer after reporting a crime to the police involving the employee can still proceed under disciplinary procedure against the employee. But when crime alleged has been taken to Court prudence and good

judgment requires that the employer should be patience to allow the law runs its full course. This is so because as opined by the venerable OPUTA JSC in LAOYE?S case supra at page 706, paragraph G.
?We operate a system which presumes a man innocent until he is proved guilty. Our system arrogates to the Court the burdensome duty of pronouncing this guilt, after proof of such guilt in open Court, where the facts are subjected to the acid test of effective cross-examination. To do otherwise will constitute an unwarranted attack on our system of Criminal Justice.?
See part of the judgment at page 152 paragraphs 4, 5 & 6 thereof.
?
Counsel further argued that the only reason for which the learned trial Judge did not hold that the dismissal of the Appellant was wrongful was because the letter of dismissal in EXHIBIT ?A? did not contain any reason or reasons for the said dismissal. Learned Counsel said that this was a summersault from the Court?s earlier position where the Court agreed that the Appellant?s discharge and acquittal by a Court of competent jurisdiction was sufficient. Apart from this, Counsel

said that from the evidence of the DW1 under cross examination it was obvious that the Appellant was dismissed on the basis of the guilty verdict against him by the Defendant Bank’s disciplinary Committee.

Learned Counsel contended that the crux of the matter in this Appeal is the misapplication of the principle of summary dismissal without proffering a reason in a Master and Servant Relationship where the employment is not governed by statutory flavor. Counsel urged the Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Was the judgment of the learned judge not perverse and therefore occasioned a miscarriage of justice?

It was the submission of learned Counsel that the judgment of the learned trial judge was perverse. According to Counsel, the Learned judge placed the onus of producing and tendering the record of proceedings of the Disciplinary Committee of the Respondent’s Bank on the Appellant, despite the fact that the Respondent’s sole witness -DW1: MR. OBINNA IKONNE admitted that the Appellant was tried on allegations bordering on serious criminal allegations of stealing and/or

Robbery. It was argued by Counsel that what is admitted in law needs no further proof and he cited the case of EDOSOMWAN vs. GBEY-FUN (1996) 36 LRCN 432 at 450 SC in support.

It was further argued by Counsel that the Court did not take into consideration the fact that the Respondent, through the DW1 admitted under cross-examination that the Chairman of the Respondents Bank disciplinary committee found the Appellant guilty of the criminal offences of conspiracy to steal and stealing of the latters money. See p. 122, Paragraph 5 of the Records. As far as Counsel is concerned this was enough to decide the matter in favour of the Appellant. Counsel said that the learned judge at page 153 of the Records erroneously stated that the Appellant did not produce the proceedings of the disciplinary committee to enable the Court know what transpired before it, whether it purported to try the criminal allegation made or merely confined itself to the procedure set out in the handbook.

It was further contended by Counsel that the contents of the letter of dismissal of the Claimant as contained in EXHIBIT A, derogates from the obvious

revelations which emanated from the proceedings of the disciplinary committee of the Respondent vis-? -vis the requirements of fair hearing as enshrined under Section 36 of the 1999 Constitution. Counsel said that the proper thing to have been done in law is that where the allegation against a person, which apart from being a misconduct warranting disciplinary proceedings, also constitutes a serious criminal offence, the prosecution of the person for the alleged serious criminal offence must be undertaken and conducted before disciplinary proceedings, if any, are subsequently instituted against him in view of Section 36 of the 1999 Constitution. In this connection, Counsel cited the cases of; ALOYSIUS BIISHI vs. THE JUDICIAL SERVICE COMMITTEE & ANOR (1991) 6 NWLR (PT. 197) 331; GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550 at 729 (per NNAEMEKA-AGU JSC) and F.C.S.C & 2 ORS vs. J. O. LAOYE (1989) 2 NWLR (PT. 106) 652.

Counsel also contended that there was a miscarriage of justice against the Appellant when the learned judge made a wrong finding that the summary dismissal letter (EXHIBIT A) was rightly

issued when the Respondent, seised of the facts still went ahead simultaneously in trying Appellant in its own disciplinary committee resulting in divergent verdicts to wit; ACQUITTAL by the Court and FINDING OF GUILT by the committee. Counsel urged the Court to allow the Appeal and set aside the decision of the trial Judge as same was perverse.

ARGUMENT by LEARNED RESPONDENT’S COUNSEL;
ISSUE ONE;
Learned Counsel began by drawing attention to the fact that the relationship between the Appellant and the Respondent is one of ordinary master and servant relationship governed by written contract not subject to any statutory flavor or restrictions or limitations. In this type of contract, he said that the duty of the Court will be to construe and apply the terms, conditions and provisions of the contract without more. Counsel cited the case of OLANIYAN vs. UNIVERSITY OF LAGOS (2004) 15 WRN 44 AT PP. 72 in support. It is next submitted by Counsel that in the instant case what the Court is enjoined to construe is Exhibit K or M, the Employee Handbook to determine whether in terminating the employment of the Appellant, the Respondent followed the

terms or procedure agreed upon by the parties and that its only where the employer in terminating or dispensing with the services of an employee does so without due regard to the terms and conditions of the contract of employment between the parties that problems arise. Counsel cited the case of SAMUEL ISHENO vs. JULIUS BERGER NIG. PLC (2008) 23 WRN 35 @ 62 LINES 10-20 in support.

Learned Counsel further submitted that in a contract of master and servant devoid of statutory flavor such as this, the master can terminate the contract of employment at any time and for any reason or for none at all. Counsel cited the cases of OLARENWAJU vs. AFRIBANK (2001) 37 WRN 41 @ 59 OLANIYAN vs. UNIVERSITY OF LAGOS (SUPRA) @ P. 72 (15) and WAEC vs. OBISESAN (2008) 26 WRN 120 @ 135 25-45, 137 in support.

According to learned Counsel, the claim of the Appellant at the Court below is principally for wrongful dismissal of the Appellant and if when proved would have entitled him to damages. He said that the onus of proving wrongful dismissal is therefore on the Appellant and not for the Respondent to show that the dismissal of the Appellant was not wrongful. Counsel

cited the case of DAODU vs. UBA (2004) 29 WRN 53 @ 7 where this Court stated thus.
“A servant who complains that his employment has been wrongful brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He has to prove the contract of service which is the bedrock as Defendant does not need to prove that the termination was wrongful.”
See also OKOMU OIL PALM LTD vs. ISERHIENHIEN (2001) 21 WRN 162.

Learned Counsel contended that all through the Paragraphs of the Amended Statement of Claim at pages 94-101 of the records, there is no where the Appellant pleaded the misapplication or non-application of the terms of the contract between the parties warrant allegation for wrongful dismissal. Counsel further said that the Appellant also failed to lead any evidence in proof of wrongful dismissal. For the avoidance of doubt, Counsel said that the Respondent in its pleadings pleaded the procedure agreed upon by the parties for terminating the contract of a staff of the bank to show that the Respondent strictly followed the laid down procedures. See paragraph 9 of the Statement of Defence at

page 81 of the records in this connection.

Learned Counsel also contended that it is for the Appellant who alleges that his employment has been wrongfully terminated to plead and prove via credible evidence the facts constituting the alleged wrongful dismissal. He added that this is in consonance with our law, under Section 133 (1) & (2) of the Evidence Act, 2011. Counsel further contended that this burden does not shift to the Defendant. He cited the case of ORJI vs. D. ORJI ILE MILLS (NIG.) LTD (2010) 5 WRN 32 @ 50-51 in support. Learned Counsel further argued that since the Appellant is invoking the hands of the law to declare that his dismissal was wrongful, the onus is on him to plead and to prove the aspects of the contract of employment violated by the Respondent which onus he did not discharge. Counsel cited the case of KWARA STATE C.S.C vs. ABIODUN (2010) 14 WRN 52 @ 101, where this Court relied on the Supreme Court decision in IBAMA vs. SPDC (NIG.) LTD (2005) 17 NWLR (PT. 954) 364 and said:
“the onus is on an employee who alleges the wrongful termination of his employment or his wrongful dismissal by his employers to place

before the Court the terms of the contract of employment before proceeding to prove the manner of its breach by the employer and that it is not duty of the Defendant to do so.”
See also AMODU vs. AMODU (1990) 5 NWLR (PT. 150) 55 @ 370.

Learned Counsel insisted that Appellant did not plead and prove the aspect of the terms of the contract of employment breached by the Respondent and the manner of its breach and that it is neither the duty of the Respondent nor that of the Court to conjecture same or fill the gap for the Appellant. Counsel said that the Appellant merely placed exhibit K before the Court but shut his eyes to the aspect of the contract of employment allegedly violated by the Respondent.

In addition, Counsel said the Appellant, at the Court below, did not establish that the disciplinary committee set up by the Respondent tried him for felonious offences of Armed Robbery and Stealing which led to his dismissal. Counsel further said that this fact was not established at the Court below as was found by the Court at page 150 of the record. For this reason, Counsel said that the Appellant neither impeached the

proceedings of the disciplinary committee nor did he plead and prove that setting up of the disciplinary committee was contrary to the agreement or contract of service between the parties as outlined in Exhibits K or M. It was further insisted upon by Counsel that the onus remained on the Appellant and will never shift until discharged. Counsel added that the Appellant did not discharge this burden and that the letter of dismissal which would have helped the Appellant bore no reason for the dismissal. Counsel submitted that the cause of action in this suit is the letter of dismissal which gave no reason for the dismissal of the Appellant. According to Counsel the law is trite that in a contract of master and servant devoid of statutory flavor, the master can terminate the contract with the servant at any time and for any reason or for none. He cited in support the following cases; OLANREWAJU vs. AFRIBANK (2001) 37 WRN 41 @ 59; OLANIYAN vs. UNIVERSITY OF LAGOS (SUPRA) AT P. 72 and WAEC vs. OBIASESAN (2008) 26 WRN 120 @ 135.

For this reason, Counsel submitted the reliance placed by Appellant on the case of FEDERAL CIVIL SERVICE COMMISSION & 2 ORS vs. LAOYE

(1989) 2 NWLR (PT. 106) 652 is of no moment as in LAOYES case the dismissal letter contained reasons for it being sequel to the query and answer. But that in the instant case, though there is evidence of the allegation of crime, query and answer and prosecution in the Magistrate’s Court and subsequent acquittal, the dismissal letter did not contain any reason. Apart from this, the contract under consideration in LAOYES case (supra) is that with statutory flavor while the contract under consideration herein is of ordinary master and servant.

It was further contended by Counsel that it is neither the law nor is it a requirement that the employer in a master/servant relationship should abide by the outcome of a Court proceeding involving the servant. On this issue, Counsel cited the case of OLARENWAJU vs. AFRIBANK (SUPRA) at page 58, rightly relied upon by the Court below at page 152 of the record, the Supreme Court stated the law that:
“It is not necessary nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee, he must be tried before a Court of law where the

accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.”

Counsel also cited in support, the case of ALHAJI YUSUF vs. UNION BANK OF NIG. LTD (1996) 6 NWLR (PT., 457) per WALI, JSC where the Supreme Court held that:
“It is not necessary nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his service under common law the employee must be tried before a Court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. I may go further to say that Section 33 (supra) has no application to the facts of this case (per Kastina Alu JSC at P. 55).
Against this backdrop Counsel drew attention to the fact that the Appellant stated in his statement on oath that the disciplinary committee summoned him for negligence and violation of normal banking practice. See Paragraph 7 at page 19 of the Record.

In reaction to the submissions of learned Appellants Counsel Respondents Counsel conceded that it is good law that an employer after reporting a

crime to the police involving the employee can still proceed under disciplinary procedure against the employee except when crime is alleged. But he quickly drew a distinction here that the Respondent in the instant case did not mention any reason for terminating the contract of Appellant. He said that in the case of OLANREWAJU vs. AFRIBANK (SUPRA) the Supreme Court stated in very similar circumstances as follows;
“No reason was given for the dismissal of the Appellant the master can terminate the contract with his servant at any time and for any reason or for none. The letter of dismissal did not allege the commission of the crime…for which he was dismissed. The Court cannot go outside the letter Exhibit D.”

In all Counsel submitted that the Appellant admitted on oath, that the Respondent’s disciplinary committee did not try the Appellant on serious criminal allegations of stealing and/or Robbery and nowhere in the Respondent’s pleadings at page 76 through 79 did the Respondent plead this fact. Also that the Appellant at Paragraph 7 of his evidence on oath at page 19 of the records admitted that he was accused of negligence

and violation of normal banking practice of the Respondent and not for proceedings of the disciplinary committee as well as the aspects of the employee handbook that was violated by the Respondent to make the termination wrongful. In addition, the termination letter which is the cause of action did not present any reason for the dismissal and the Appellant who did not discharge the burden foisted upon him by the state of the pleadings and evidence on record. Counsel therefore urged this Court to resolve issue one against the Appellant.

ISSUE TWO;
It was the submission of learned Counsel that the judgment of the Learned Trial Judge was not perverse and did not occasion a miscarriage of justice on the Appellant. It was further submitted by Counsel that it is the reliefs sought by the Claimant at the Court below that determines the nature of legal evidence required to substantiate the claim and that if the appropriate evidence is not led, the Court will not grant the relief sought and the judgment thereby will not be said to be perverse in the circumstances.

Learned Counsel contended that a judgment of a Court said to be perverse when it goes

contrary to the weight of legal evidence before the Court or when the judge in his judgment refuses or fails to apply the relevant law to the issue. Counsel said that evidence before the Court should logically go to substantiate the reliefs sought by the Claimant and unequivocally establish that the Claimant is in fact entitled to the reliefs sought. On this account Counsel cited the cases of OSIGWE vs. UNIPETROL (2005) 6 WRN 97 @ 118 LINES 5-20 where ADEKEYE, JCA relying on MOGAJI vs. ODOFIN (1978) 4 SC 91 mentioned the five factors which are considered in determining the weight of evidence as:
a) Admissibility
b) Relevance
c) Credibility
d) Conclusiveness and
e) Probability of the evidence of which the weight of evidence of both parties is determined.

The question Counsel therefore posed here is whether the Appellant led the appropriate evidence to substantiate his claim before the Court below in establishing a deficiency in any of the factors stated here above. To answer this question, Counsel urged the Court to take a closer look at the Appellant’s claim before the Lower Court and juxtapose thereto the evidence led to

substantiate the claims in order to determine whether the judgment of the Court below was perverse. It is submitted that for the Appellant to prove and establish that his dismissal was wrongful, he needed to have pleaded and proved via credible evidence the contract of employment and then show the aspects of the contract of employment that was violated by the Respondent. These he failed to do. Again, Counsel said that this burden is eternally foisted on the Appellant and that he failed to discharge same. Counsel cited the case of DAODU vs. UBA (2004) 29 WRN 53 @ 71 where this Court stated the law thus:
“A servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He has to prove the contract of service which is bedrock of his case. It is not the duty of the employer as Defendant to prove that the termination was not wrongful.”
See OKOMU OIL PLAM LTD vs. ISERHIENHIEN (2001) 21 WRN 161.
SECTION 133 (1) AND (2) OF THE EVIDENCE ACT, 2011 (SUPRA)
And ORJI vs. D. ORJI ILE MILL (NIG.) LTD (SUPRA).

On the question

of damages claimed by Appellant, Counsel said that damages for wrongful dismissal is determined on the basis of what the employee should have earned over the period of Notice required to lawfully terminate the employment. Counsel referred this Court to the case of ATANDA vs. H. SAFFEIDINE TRANS. LTD (2008) 37 WRN 185 @ 197 (15-30) AUGIE, JCA said:
In a contract of employment that is not governed by statute, where an employer breaches the contract in terminating the employee’s appointment, the employee’s remedy lies in damages calculated on the basis of what the employee could have earned for the period of notice agreed upon for ending the employment.”
See also DAODU vs. UBA PLC (2004) 29 WRN 53 where at page 70-71 this Court per ADEBOYE, JCA also restated the law thus:
“where an employer breaches the contract in terminating the employee’s appointment, the employee’s remedy lies in damages calculated on the basis of what the employee could have earned for the period of notice agreed upon for ending the employment where it has not statutory flavor.”

It was submitted by Counsel that no evidence

as to the period of Notice was led at the Lower Court and what’s more no evidence at all was led to substantiate all other claims for damages. It was equally submitted by Counsel that in this case, no Notice was required to be given to summarily terminate or dismiss the Appellant from service. See the terms of engagement exhibit M or K at page 67 of the records where it clearly provides that:
No Notice shall be given in the case of summary dismissal. In the event of summary dismissal all terminal benefits shall be forfeited to the bank

Consequence upon the agreement to do away with the issue of Notice, in this specie of dismissal, Counsel argued that there is no basis for the computation of damages which cannot be claimed.
Learned Counsel drew attention part of the Appellant’s reliefs 2, 3, 4, 5 as well as the alternative reliefs, which he said are colourations of claim for specific performance. In this regard, Counsel posed the question as to whether the Hon. Court can grant a relief for specific performance of contract of service devoid of statutory flavor? It was submitted that the equitable remedy of specific

performance would not be decreed in the case of a contract of service. He said that equitable remedy includes any remedy the effect of which would lead to the specific performance of such a contract, Counsel cited the Learned Author, PROF. E. E. UVIEGHARA in LABOUR LAW IN NIGERIA . 81 stating that the only exception to this principle is in contract of service with statutory flavor which is a special circumstance to the general principle.
See also OMIDIORA vs. FED. CIVIL SERVICE COMMISSION (2008) 53 WRN 53 @ 69 LINES 35-40, the Court of Appeal per OGUNWUMIJI, JCA said:
“In law, the Courts will not enforce specific performance of the mere contract of service employment under common law. There is a wide difference between unlawful termination of appointment with statutory flavor and that of master/servant relationship under common law.”

Counsel also cited the case of UZONDU vs. UBA PLC (2009) 3 WRN 97 @ 109 where the Court held that:
Where there is wrongful dismissal of employee, the relief for specific performance is not available to such employee as the employer is only liable to pay damages.
See also

NIG. GAS CO. LTD vs. DUDUOSOLA (2005) 36 WRN 36 @ 68 and OLARENWAJU vs. AFRIBANK (SUPRA) AT 59, where the Supreme Court said to the effect that:
“The Court cannot compel an unwilling employer to reinstate a servant it has dismissed.”
Counsel urged this Court to resolve issue two against the Appellant and affirm the judgment of the Court below.

RESOLUTION OF APPEAL;
The facts of this case already reproduced in this judgment readily remind this Court of the well-informed observations of ONNOGHEN, JSC in IFETA vs. SHELL PETROLEUM DEVELOPMENT COMPANY LTD (2006) 7 MJSC 12 AT 149 when the noble Lord said:
If legal practitioners come to terms with this true position of the law on the subject, clients money and the Court’s time would be saved by their honestly advising their clients accordingly and probably settling the matter out of Court by demanding only what is legally due to their client from the employer in breach. In practice however, we see these simple cases of ordinary master and servant being turned into imaginary monsters in which compensation amounting to millions of Naira and claimed and sometimes

re-instatement in addition, as in the instant case. So you have the client saddled with enormous bills in instituting and presenting such cases of wrongful termination of employment from the High Court right up to this Court only at the end to be told the bitter truth which his counsel could have told him much earlier and would have saved cost.”

between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of the contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are, invariably the guide to its interpretation. On this premises, the material question is: what did the parties in the instant case agree with respect to the termination of the contract of service?”

It is in this connection, that I find myself unable to disagree with the Respondent’s Counsel that the documents of contract to construe in this case are Exhibit K or M; which are the employee handbook containing the contract between the parties. It was the contention of learned Respondent’s Counsel that the Respondent followed strictly, the terms and conditions agreed upon between the parties in determining the employer/employee relationship which existed between them.

The Appellant’s claim at the Lower Court was apparently hinged on wrongful dismissal. But the question to address here is; was the Appellant’s

dismissal wrongful? Perhaps, what should be borne in mind at all times is that a master can terminate the employment of his servant at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract of employment. Usually, the motive for such termination is irrelevant and so whenever it is dispensed with in the process of termination, no eyebrows are usually raised. See OSIANYA vs. AFRIBANK NIG. PLC (2007) 6 NWLR (PT. 1031) 565 in this regard.

appointment can be terminated and
5. That his appointment can only be terminated by a person or authority other than the Defendant.
In addition, it is also important to plead all relevant materials and facts upon which to hinge the Plaintiff’s claim to sustain his allegations of wrongful or unlawful termination of employment. Having done this, the Plaintiff is next required to call credible evidence in proof of the pleaded facts. In the case of AMODU vs. AMODE (1990) 5 NWLR (PT. 150) 356 AT 370, the Supreme Court, per AGBAJE, JSC had this to say on the subject:
“Since it is the Plaintiff’s case, that his dismissal by the Defendants is not in accordance with the terms and conditions of the contract of service, between them it is for the Plaintiff to plead and prove the conditions of service regulating the contract of service in question. It is also for the Plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him.”

Arising from this position, learned Respondent’s Counsel contended that all through the paragraphs of the

Amended Statement of Claim of the Appellant at pages 94-101 of printed records there is nowhere the Appellant pleaded the misapplication or non-application of the terms of the contract between the parties to warrant his allegation of wrongful dismissal. Learned Counsel also contended that the Appellant, in addition failed to lead any evidence proof of wrongful dismissal. Having carefully examined the printed records in this case, I am unable to disagree with learned Respondent’s Counsel on the issue when he said that the Appellant did not plead and prove the aspects of the terms of the contract of employment breached by the Respondent in the process of determining his employment. I am also unable to disagree that Appellant did not also fail to establish that the disciplinary committee set up by the Respondent tried him for felonious offences of Armed Robbery and Stealing and which led to his dismissal.
It would be recalled that in the instant case, the letter of termination of employment with, which the Appellant was allegedly wrongful dismissed, bore no reason for the dismissal of the Appellant. Against the background of the

fact that this was an ordinary master and servant Relationship devoid of any statutory restriction, I cannot help but to hold that the Respondents action in so doing is in consonance with the fact that the master is not bound to give reasons as he could fire for whatever reason or no reason at.

What this

position further portends for the parties is that despite the Appellants alleged involvement in criminality allegedly leading to the Respondents loss of approximately Five-Hundred Thousand ($500,000.00) United States Dollars to Armed Robbers, the Respondents could still go ahead to summarily dismiss the Appellant without having to await the outcome of a criminal trial so long as he is being dealt with for gross misconduct bordering on criminality as it had occurred in the instant case. See the case of ALHAJI YUSUF vs. UNION BANK PLC (1996) 6 NWLR (PT.457) 632.

Arising from the foregoing, I simply find myself unable to agree with learned Appellants Counsel that the termination of the employment of the Appellant was not lawfully done. I am also unable to agree with the learned Appellants Counsel that the Judgment of the learned trial Judge was perverse. In essence, this appeal is devoid of any merit and it is accordingly dismissed with cost N50,000.00 against the Appellant. The Judgment on the O. A. K. OGWE, J. of the Abia State High Court, sitting at Umuahia and delivered on the 28-2-2011 is hereby affirmed.

ITA GEORGE?MBABA, J.C.A.:I had the privilege of reading, in draft, the lead judgment of my learned brother, FRED O. OHO, JCA, just delivered and I agree completely, with his reasoning and conclusions, which are succinct, and perfectly disposed of all the issues donated for the determination of the appeal.
I too dismiss the appeal and abide by the consequential orders therein.

PETER OLABISI IGE, J.C.A.:
I have had the privilege of reading in advance the judgment of my Learned Brother OHO, JCA., just delivered.
I agree with the judgment.

Appearances

P. C. Adighije, Esq.For Appellant

AND

J. I. Ogamba, Esq.For Respondent