MR. EMMANUEL ONAMINI ODIBO v. FIRST BANK OF NIGERIA PLC
(2018)LCN/12072(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of October, 2018
CA/L/240/2011
RATIO
COURT AND PROCEDURE: WRONGFUL DISMISSAL
“For emphasis, see again Ekunola v. Central Bank of Nigeria and Anor. (2013) 15 NWLR (pt. 1377) 224 at 268 – 269, a case of summary dismissal on ground of fraud (as in this case) where the Supreme Court held inter alia that the appellant’s representation at the disciplinary committee set by the respondent and the recommendation of the disciplinary committee that the appellant be dismissed on ground of fraud accorded with the principle of fair hearing. See also Eze v. Spring Bank Plc (2011) 18 NWLR (pt.1278) 113. May I most respectfully add that this is a case where the appellant was awarded three (3) months salary in lieu of notice which, on the authority of the latest Supreme Court cases earlier referred to in the discussion especially Dudusola (supra) and John Oforishe (supra), might have been at the best the only remedy available or open to the appellant had the Court below held his dismissal wrongful…” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
MR. EMMANUEL ONAMINI ODIBO Appellant(s)
AND
FIRST BANK OF NIGERIA PLC Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the High Court of Justice of Lagos State (the Court below), whereby it dismissed in part the appellant’s claim for wrongful dismissal from employment of the respondent.
In outline, the appellant had been in the employment of the respondent between 1987 and 01.04.99 where he rose through the ranks to the post of deputy manager (mechanical) before his dismissal from employment on 01.04.99. It happened that a contract was awarded by the respondent to a company called M/S Jifex Limited to supply and install air-conditioning units amounting to N2,072,092. The air-conditioning units supplied as new ones turned out to be refurbished and did not conform to the contract. Upon certification by the appellant’s subordinate the air-conditioning units were installed. The respondent discovered that the air-conditioning units were refurbished and did not confirm to the contract. The respondent set up a disciplinary panel where the appellant was heard before the disciplinary panel found that the appellant’s role in the matter was fraudulent. The respondent dismissed the appellant from employment in a letter of dismissal without assigning any reason for the dismissal.
The appellant sued the respondent at the Court below for redress asking in the main that his summary dismissal from employment be declared wrongful, null, void and of no effect whatsoever as same was actuated by malice and predicated on wrongs not committed by the appellant; a declaration that the appointment of the appellant remained valid and extant unless otherwise subsequently determined by the respondent; a mandatory Order compelling the respondent to pay the appellant his entitlements and emoluments from April, 1999 to date of judgment at the Court below. Or, alternatively an Order reinstating the appellant to his post of deputy manager with payment of his salaries, allowances and other entitlements from April, 1999 to date of judgment at the Court below.
The Court below received oral and documentary evidence for and against the claim upon which it found in its judgment on the merit that the relief seeking a declaration that the summary dismissal was null and void was not proved; likewise, the reliefs claiming that the employment of the appellant remained valid entitling the appellant to payment of salaries and emoluments from the date of dismissal from employment to the date of judgment at the Court below. Similarly, the relief seeking for reinstatement of the appellant was found unsustainable and dismissed by the Court below.
The Court below proceeded to hold that in the absence of proven misconduct or crime coupled with the failure of the respondent to advance reason(s) for the dismissal of the appellant, the appellant was entitled to reasonable notice of determination of his employment or to payment of salary in lieu of notice.
The Court below further held in its judgment that since the respondent did not give reasons for the summary dismissal of the appellant from employment, the appellant was entitled to 3 months salary in lieu of notice assessed at N69,643.16k which it awarded to the appellant.
Dissatisfied with part of the judgment of the Court below dismissing some of the legs of the claim (supra), the appellant filed a notice of appeal with four grounds of appeal. A brief of argument was filed by the appellant on 08.06.11 in which these issues were distilled for determination:
(i) Whether the learned trial judge was right under the law in dismissing the appellant’s declaratory relief of wrongful dismissal when the respondent failed to show cogent reason sustainable in law to warrant the summary dismissal, more especially as the respondent failed to discharge the burden placed on it by S. 138 (1) and (2) of the Evidence Act, 1990, to prove the alleged fraud beyond reasonable doubt. (This issue is tied to ground one of the notice of appeal at page 236-237-at the record).
(ii) Whether the learned trial judge was right under the law in dismissing the appellant’s monetary claims in paragraph 20 (ii) (iii) and (iv) of the Amended statement of claim dated 24th April, 2008 which were uncontradicted by any pleadings or evidence by the respondents. (This issue is tied to ground two of the Notice of appeal at pages 237-238 of the record).
(iii)Whether the learned trial judge was right under the law dismissing appellant’s prayer for N500,000.00 damages as claimed in paragraph 20 (v) of the Amended statement of claim dated 24th April, 2008 when the fraud, allegedly committed by the appellant upon which he was summarily dismissed from service by the respondent could not be sustained with evidence beyond reasonable doubt as required by S. 138 (1) and (2) of the Evidence Act, 1990 (This issued is formulated from ground three of the notice of appeal at page 236 of the record).
(iv) Whether the learned trial judge was right under the law when he held that “relief No 1 seeking a declaration that the summary dismissal of claimant is null and void therefore fails” without giving a reason for that conclusion. (This issue is formulated from ground four of the notice of appeal at page 238- 239 of the record).
The appellant referred to Exhibit A2, the letter of summary dismissal, and the Court of Appeal case of Abomeli v. Nigeria Railway Corporation (1995) 1 NWLR (pt.372) 451 at 466 and 488 to contend on the first issue (supra) that having not advanced any reason in Exhibit A2 for the dismissal of the appellant from the employment of the respondent the Court below should have held that the said dismissal was wrongful; more so, the criminal allegation of fraud against the appellant at the disciplinary panel investigating the matter was not proved beyond reasonable doubt, so without such evidence the investigative panel should not have found the appellant culpable as it did in Exhibit A18, its findings/recommendations; that the Court below found that the allegation of fraud was not proved beyond reasonable doubt upon which it concluded on the issue that the respondent lacked the competence to inquire into the criminal allegation of fraud for the purpose of meting out disciplinary action against the appellant citing in support Section 34(4) of the Constitution of the Federal Republic of Nigeria (1999 Constitution), Section 138(1) and (2) the Evidence Act Cap.112 Laws of the Federation 1990, and the cases of Biishi v. The Judicial Service Committee (1991) 6 NWLR (pt.197) 331 at 345, Agwasim and Anor. v. Ejivumerwerhaye and Anor. (2001) FWLR (pt.78) 1125 at 1139, Olarewaju v. Afribank Plc (2001) FWLR (pt.72) 2008 at 2016; and that having not particularised the misconduct in the pleadings the said omission is fatal and should be construed in favour of the appellant citing in support the case of Adelakun v. Aiyedade (1958) WNLR 49 at 51.
The appellant contended on the second issue (supra) that in light of the findings made by the Court below in its judgment in page 235 of the record of appeal (the record) that the appellant established by uncontroverted evidence that his total emolument was N278,572.00 per annum in line with paragraph 18 of the amended statement of claim and following the cases of African Continental Bank Ltd. v. Ewarami (1978) 11 NSCC 269 and Kabel Metal (Nigeria) Ltd. v. Gabriel Ativie (2001) FWLR (pt.66) 662 at 674 – 675 the Court below should have held that the dismissal of the appellant from employment was wrongful and ineffectual and entitled the appellant to his normal salaries and entitlements from the date of the dismissal until the date of judgment at the Court below.
The appellant contended on the third issue (supra) that since his dismissal from employment was wrongful the Court below should have awarded the sum of N500,000 general damages claimed against the respondent on the premiss that the law presumes such damages to be the direct, natural and probable consequence of the act complained of and measured or assessed by the opinion of a reasonable man citing in support the cases of Tao and Sons Ltd. v. Governor of Oyo State (2011) 6 NWLR (pt.1242) 1, Savannah Bank (Nig.) Plc v. Fakokun (2002) 1 NWLR (pt.749) 544.
The appellant contended on the fourth issue (supra) that in light of the fact that the issue of fraud was not proved beyond reasonable doubt by the respondent the Court below should have granted the relief seeking a declaration that the summary dismissal of the appellant from the employment of the respondent was null and void; and that the Court below was wrong to confine instances of dismissal from employment being null and void to employment with statutory flavour ‘terminable by statute’ vide the holding of the Court below in its judgment in page 230 of the record; upon which the appellant urged that the appeal should be allowed.
The respondent framed these issues for determination in its brief of argument filed on 13.07.11:
”Issue One whether the learned Judge of the lower Court was right under the law in dismissing the Appellants declaratory relief of wrongful dismissal when the Respondent failed to show cogent reason sustainable in law to warrant the summary dismissal, more especially as the Respondent failed to discharge the burden placed on it by Section 138(1) and (2) of the Evidence Act 1990 to prove the alleged fraud beyond doubt.
Issue Two whether the learned trial judge was right under the law in dismissing the Appellant’s monetary claims in the Amended statement of Claims which were uncontradicted by the pleadings or evidence by the Respondent.
Issue Three whether the learned trial judge was right under the law dismissing Appellants prayer for N500,000.00 damages as claimed.
Issue Four whether the learned trial judge was right under the law when he held that ‘relief No1 seeking a declaration that the summary dismissal of the Claimant is null and void therefore fails’ without giving a reason for that conclusion”.
The respondent contended on issue one (supra) that there was no contract of employment between the appellant and the respondent and that even if there was such a contract it was a master and servant relationship entitling the respondent to determine it without giving any reasons as the respondent had done in Exhibit A2, the letter of dismissal; and that in view of the fact that no reason was given for the dismissal it is wrong to assume that the dismissal arose from the recommendation of the disciplinary panel in Exhibit A18 that the appellant had committed fraud citing in support the cases of Garuba v. K.I.C. (2005) 5 NWLR (pt.917) 160, Isheno v. Julius Berger (Nig.) Plc (2008) 6 NWLR (pt.1084) 582, S.P.D.C. Ltd. v. Olarewaju (2008) 18 NWLR (pt.1118) 1, Arinze v. F.B.N. Ltd. (2004) NWLR (pt.888) at 663 and Nwobosi v. A.C.B. (1995) 6 NWLR (pt.40) at 658.
After setting out the reliefs claimed by the appellant at the Court below as contained in pages 92 – 93 of the record, the respondent contended that the Court below considered first, whether the dismissal was wrongful, null and void and of no effect whatsoever as claimed in relief (i) of the amended statement of claim and held that the appellant failed to establish the said relief (i) of the amended statement of claim which it dismissed together with reliefs (ii) and (iii) thereof which the Court below held were dependent on relief (i) of the amended statement of claim.
Consequently, the respondent contended that the appellant was not entitled to payment of emoluments and salaries from the date of the dismissal from employment to the date of judgment at the Court below; that even if the dismissal was held to be wrongful the appellant was entitled to the amount he would have earned had the employment continued according to the contract of employment subject to the deduction accruing from any other employment which the employee in minimizing damages either obtained or should reasonably have obtained citing in support the case of S.P.D.C. Ltd. v. Olarewaju (supra).
The respondent also contended that damages can only be awarded if there was a contract of employment and the employer was in breach citing in support the case of Nwobosi v. A.C.B. (supra); and that the case of A.C.B. Ltd. v. Ewarami (supra) to the effect that in breach of contract of employment of personal service the employee is entitled to salaries and emoluments from the date of the determination of the employment to the date of judgment is contrary to the later decision of the Supreme Court in S.P.D.C. Ltd. v. Olarewaju (supra) and that the latter should prevail.
The respondent argued on issue three (supra) that as the Court below had held that the dismissal was not wrongful and/or null and void the general damages of N500,000.00 claimed by the appellant failed.
The respondent contended on issue four (supra) that the Court below gave reason for dismissing the leg of claim of wrongful dismissal that the employment was for personal service without statutory flavour in which the employee cannot be imposed on the employer as held by the Supreme Court in the case of U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (pt.380) 647.
The respondent further contended that the Court below should not have awarded three (3) months salary in lieu of notice to the appellant as the appellant did not specifically claim the relief in the action at the Court below citing in support the cases of U.B.N. Ltd. v. Ogboh (supra) and Garuba v. K.I.C. (supra); upon which the respondent urged that the appeal should be dismissed.
The appellant filed a reply brief on 19.09.18, in which it was argued that as the Court below relied on Exhibit A18 to hold that the appellant’s dismissal from employment was based on the findings of the disciplinary panel to the effect that the appellant facilitated the fraud by suggesting to the contractors to install refurbished equipment which, according to the holding of the Court below, was not established beyond reasonable doubt, the Court below should have held without sentiments that the appellant established the claim of wrongful dismissal and should have granted the relief for wrongful dismissal sought by the appellant; more so, the respondent did not cross-appeal against the holding and that the facts in S.P.D.C. Ltd. v. Olarewaju (supra) are distinguishable from the facts in ACB Ltd v. Ewarami (supra).
The appellant urged in conclusion that the respondent who did not file respondent notice or cross-appeal cannot canvass that the award of three (3) months salary in lieu of notice made by the Court below in favour of the appellant should be set aside citing in support the case of In Owners of MV ‘Arabella’ v. Nigeria Agriculture Insurance Corp. (2008) 4 – 5 SC (pt. 11) 189 at 218.
In my considered opinion, the issues formulated by the appellant are appropriate for the determination of the appeal. I intend to be guided by the said issues in the discourse. The Court below held that because the letter of dismissal, Exhibit A2, did not contain the reason(s) for the dismissal of the appellant from employment of the respondent the appellant was entitled to three (3) months salary in lieu of notice. There was no respondent notice to vary the decision, nor did the respondent challenge the said holding by way of cross-appeal. The attempt by the respondent to have the holding in question reversed in the present appeal is therefore untenable. The said holding, whether rightly or wrongly, subsists vide Nwabueze v. The People of Lagos State (2018) 11 NWLR (pt. 1630) 201 at 218 and 222 following Leventis Technical v. PetroJessica (1999) 6 NWLR (pt. 605) 45, Iseru v. Catholic Bishop (1997) 3 NWLR (pt. 495) 517, Dabo v. Abdullahi (2005) 7 NWLR (pt. 923) 181 and In Owners of MV ?Arabella? v. Nigeria Agricultural Insurance Corp (supra) cited by the appellant.
A judgment is to be read harmoniously; not by instalment or piecemeal as would appear to be the case with the appellant who construed the judgment of the Court below in his arguments in the appeal contrariwise which should not be the case vide Adegbuyi v. A.P.C. (2014) ALL FWLR (pt. 761) 1486 at 1501 following Adebayo v. A.- G., Federation (2008) ALL FWLR (pt. 412) 1195 and Mbani v. Bosi (2006) 11 NWLR (pt. 991) 400 at 417 following Akaighe v. Idama (1964) ALL NLR (Reprint) 317 at 322.
A holistic perusal of the judgment of the Court below which is in pages 225 to 235 of the record disclosed that the Court below dismissed the leg of claim that the dismissal was wrongful, null and void because there was no written contract of service and that the employment did not have statutory flavour upon which the Court below refused to grant the reliefs of general damages, reinstatement of the appellant into the post of deputy manager, and the award of salaries and emoluments from the date of the dismissal of the appellant from the service of the respondent to the date of judgment at the Court below.
To make itself explicit, the Court below held in its judgment in pages 230 – 232 of the record thus:
”Relief no.i seeking a declaration that the summary dismissal of Claimant is null and void therefore fails. It is hereby dismissed.
Relief no.ii seeks a declaration that the employment of the claimant remains valid.
Relief no.iii seeks an order compelling the defendant to pay the salaries of the claimant from the time of dismissal until-the termination is validly done.
As these two reliefs are dependent on the success of relief no.i which relief has failed, the said relief nos. ii and iii must also fail as you cannot put something on nothing and expect that it will stand, it will fall. Per LORD DENNING MR in MC FOY Vs UAC LTD (1961) 3 AER 1169 @ 1172.
Relief nos. ii and iii therefore be find are hereby dismissed.
Relief no. iv seeks all Order of reinstatement of the claimant to his position in the defendant bank before the dismissal
As stated earlier on in this judgment, there is no written contract of employment for the claimant to rely on but the common law position on the matter is settled. It is that Courts of law are aversed to imposing an employee on an unwilling employer except in cases where the employment is under statute.
See the case of REGISTERED TRUSTEES OF PPFN Vs SHOGBOLA (SUPRA) See also the case of GARUBA Vs K I C LTD & 2 ORS cited by the defendant supra.
In that case, OGUNTADE JSC in his lead judgment at pp 179-180 adopted with approval of the dicta of KARIBl-WHYTE JSC inCHUKWUMAH Vs SHELL PETROLEUM (1993) 4NWLR (Pt 289) 512 at 560 where he stated inter alia thus:
“It is a well established principle of the common law and of Nigerian law that ordinarily a master is entitled to dismiss his servant from his employment for good or bad reasons or for 110 reason at all. The common law recognizes and respects the sanctity of contracts”
In the ordinary case and following the common law principle, termination of contract of service even if unlawful brings to an end the relationship of master and servant which cannot continue in the absence of mutuality.”
Relief no iv seeking a reinstatement of the Claimant therefore fails. It is hereby dismissed.
With relief nos (i) – (iv) dismissed, it leaves relief no. 5 for consideration.
It is a claim for N500.000.00 general damages.
Then the Court below went ahead to consider the issue of the award of N500,000 general damages in its judgment in pages 233 – 234 of the record where it discussed, observed, commented and concluded that by Exhibit A18 the allegation of fraud, a criminal offence, formed the basis of the appellant’s dismissal from the employment of the respondent which if proved would clearly justify summary dismissal of the appellant.
These came after the Court below had dismissed the relief of a declaration that the dismissal of the appellant from the employment of the respondent was wrongful, null and void as well as the relief of reinstatement of the appellant to the post of deputy manager held by him before his dismissal from service together with the relief of an Order for payment of salaries and emoluments to the appellant from the date of the dismissal to the date of judgment at the Court below. The Court below further held in its judgment in page 234 of the record, perhaps, for the avoidance of doubt, that:
”I have already held that the Claimant was not entitled to a declaration that his dismissal was wrongful; there can therefore be no damages awarded.”
When read as a whole, as is the case with the judgment of a Court, the decision of the Court below refusing to Order reinstatement of the appellant into his former post of deputy manager as well as for payment of salaries and emoluments by the respondent to the appellant from the date of dismissal from employment to the date of judgment at the Court below together with the refusal to award the general damages of N500,000 claimed by the appellant was justified upon the authorities (supra) cited in the excerpt (supra) of the judgment of the Court below read together with the cases (supra) cited by the respondent. See further the fairly recent case of John Oforishe v. Nigerian Gas Company Ltd (2018) 2 NWLR (pt. 1602) 35 at 53 – 54 per the lead judgment prepared by Rhodes- Vivour, J.S.C., thus:
”contracts of master and servant without statutory flavor are classified as ordinary contract of service. Such contracts are governed by an employee handbook where the conditions of service are spelt out. The master can terminate the service of the employee with, or without reasons, intention and motive for termination of employment is never considered by the Courts. They are irrelevant. Termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with. In contracts with statutory flavor where the termination of employment of an employee is found to be wrong, the Court may order specific performance of the contract, injunction or reinstatement. These are not available to employees whose appointments are terminated in simple contracts of master and servant. The remedy for unlawful termination of employment is to sue for damages and the employee must mitigate those damages. See Olatunbosun v. NISER Council (1988) 19 NSCC (Pt. 1) p. 1025; (1988) 3 NWLR (Pt. 80) 25.”
See also the judgment prepared by Galinje, J.S.C., in page 61 thereof thus:
”Under the common law, an employer is entitled to bring appointment of his employee to an end for any reason or no reason at all. So long as the employer acts within the terms of the employment, his motive for doing so is irrelevant.
In case of a breach of the terms of the employment, the employee’s remedy lies in damages calculated on the basis of what he would have earned for the period of notice agreed for ending the employment. See Commissioner of Works, Benue State v. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407; WNDC v. Abimbola (1966)
I All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (1972) II SC III; Chukwumah v. Shell Petroleum Dev. Co. of Nigeria Ltd. (1993) 4 NWLR (Pt. 298) 512.
In addition, see the case of Dudusola v. Nigeria Gas Company Limited (2013) 10 NWLR (pt. 1363) 423 at 438 thus:
“In this case, no contract of service has been presented before the Court. It has not been shown that the employment of the appellant had statutory flavor so as to bind the respondent to comply with the condition of service. However, from the evidence presented at the trial it is quite clear that the relationship between the appellant and the respondent is that of a mere master and servant relationship. It is trite that the master has unfettered right and liberty to terminate or dismiss his servant’s employment at any time and for any reason or for no reason at all provided the terms of the contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the Court will have no business with such motive but will only give effect to the contract of service between the parties. See Taiwo v. Kingsway Stores Ltd. (1950) NLR 122; Nwangwu v. Nzekwu (1957) SCNLR 61; and Fakuade v. OA.U.TH.(1993) 5 NWLR (Pt. 291) 47 at 58. It is trite law, that a willing servant cannot be imposed on an unwilling master.”
For emphasis, see again Ekunola v. Central Bank of Nigeria and Anor. (2013) 15 NWLR (pt. 1377) 224 at 268 – 269, a case of summary dismissal on ground of fraud (as in this case) where the Supreme Court held inter alia that the appellant’s representation at the disciplinary committee set by the respondent and the recommendation of the disciplinary committee that the appellant be dismissed on ground of fraud accorded with the principle of fair hearing. See also Eze v. Spring Bank Plc (2011) 18 NWLR (pt.1278) 113.
May I most respectfully add that this is a case where the appellant was awarded three (3) months salary in lieu of notice which, on the authority of the latest Supreme Court cases earlier referred to in the discussion especially Dudusola (supra) and John Oforishe (supra), might have been at the best the only remedy available or open to the appellant had the Court below held his dismissal wrongful.
In that wise, the 1978 Supreme Court case of A. C. B. Ltd. v. Ewarami (supra) cited by the appellant is undermined by the later contrariwise Supreme Court cases cited (supra) in the discussion vide Osakue v. F.C.E., Asaba (2010) 10 NWLR (pt.1201) 1 at 36, Obiuweubi v. C.B.N. (2011) NWLR (pt.1247) 465, Samcase Nig. Ltd. v. Gidado (2014) 14 NWLR (pt.1479) 231 at 263 to the effect that in the event a lower Court such as this Court is faced with conflicting decisions of the Supreme Court on a point it should follow the latest decision(s). I think the Court below was palpably fair to the appellant in awarding him three (3) months salary in lieu of notice in the circumstances.
Accordingly, I am of the considered opinion that the reasoning of the Court below did not afflict the decision it rightly arrived at as to cause obvious miscarriage of justice to the appellant, therefore I am unwilling to tamper with the judgment of the Court below vide Ukejianya v. Uchendu (1950) 13 W.A.C.A. 45 at 46 thus-
”It seems to me, however, that what this Court (Appellate Court) has to decide is, whether the decision of the judge was right; not whether his reasons were. It is only if the misdirection had caused him to come to a wrong decision that it would be material.”
See also Taiwo v. Sowemimo (1982) 5 S.C. 60 at 74 ? 75, Ndayako and Ors. v. Dantoro and Ors. (2004) 13 NWLR (pt. 689) 157 at 196.
In the result, I see no merit in the appeal and hereby dismiss it and affirm the decision of the Court below. Parties to bear their costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of a preview of the lead judgment just delivered by my learned Brother, Joseph Shagbaor Ikyegh JCA and I am in complete agreement with the lucid reasoning and impeccable conclusions reached therein, which I hereby adopt as mine.
In law, an employment founded on master-servant relationship for personal service without any statutory flavor does not enjoy the relief of reinstatement. The Courts are thus very reluctant and in fact lack the competence to force a willing servant upon an unwilling master in a contract of employment for personal service without statutory flavor. see UBN Ltd V. Ogboh (1995) 2 NWLR (Pt. 380) 647.
The above appears to me to be the precarious position the Appellant had found himself in his employment relationship with the Respondent and there seems to be no reasons whatsoever for the Court below to have held otherwise and contrary to the settled position of the law as applicable to the circumstances in which the Appellant, who had been in the employment of the Respondent from 1987 until 1999 when he was dismissed, had found himself in this appeal.
I am also to add that in the circumstances of this appeal, taking into consideration the facts as put forward in the pleadings and evidence of the parties and the findings appealed against, the decision of the Court below awarding three months salary in lieu of notice the Appellant, for whatever it is worth, being a decision of the Court below against which there is neither an Appeal nor Cross Appeal or a Respondent’s Notice must be allowed to stand since whether rightly or wrongly it remains the position which both parties must abide by and let it be.
Indeed, no amount of legal submissions, no matter how brilliant, can persuade an appellate Court to set aside a finding against which there is no appeal or cross appeal or Respondent’s notice by either of the parties to an appeal. Decided authorities on this settled position of the law are legion! See Owners of M. V. Arabella V Nigeria Agriculture Insurance Corp. (2008) 4 – 5 SC (Pt.”) 189@ p. 217. See also Nwabueze V. The People of Lagos (2018) 11 NWLR (Pt.1630) 201 @ p. 218; Leventis Technical V. petro Jessica Enterprises (1999) 6 NWLR (Pt. 605) 45; lseru V. Catholic Bishop (1997) 3 NWLR (Pt. 495) Dabo V. Abdullahi (2005) 7 NWLR (Pt. 923) 181.
It is in the light of the above few comments of mine and for the fuller reasons adroitly marshaled out in the lead judgment that I hold too that this appeal bereft of any merit is liable to be dismissed and is hereby also dismissed by me too. I shall abide by the consequential Orders made in the lead judgment.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH.
My lords, I am of the view that the said judgment has adequately dealt with the substance of the Appellant’s appeal against the decision of the Court below which in my opinion, was in line with the established principles, and extant judicial decisions on causes of action founded on breach of contract of employment or for unlawful or wrongful dismissal or termination.
I have nothing useful to add. I agree with the lead judgment and abide with the decision made that both parties should bear their respective costs.
Appearances:
L. O. Ogbebor, Esq.For Appellant(s)
Mr. B. OyedejiFor Respondent(s)
