MR. T.K. BALOGUN v. UNION BANK OF NIGERIA PLC (2016)

MR. T.K. BALOGUN v. UNION BANK OF NIGERIA PLC

(2016)LCN/8403(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/I/265/2012

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

MR. T.K. BALOGUN Appellant(s)

AND

UNION BANK OF NIGERIA PLC Respondent(s)

RATIO

LABOUR LAW: TERMINATION OF EMPLOYMENT AND DISMISSAL; DIFFERENCE BETWEEN TERMINATION OF EMPLOYMENT AND DISMISSAL

For the respondent, a distinction must be drawn between termination of employment and dismissal which respondent argues carry different connotations and import as respondent submits at Paragraph 4.4 – 4.7 of the respondent’s brief thus:
It is necessary to emphasis that the Appellant appointment was not terminated but dismissed. It is our submission that both terms are not the same and cannot be used as synonymous words. A ‘dismissal’ is different and distinguishable from a ‘termination?. A dismissal from employment carries such infamy that a termination does not carry. Whilst a terminated officer can be entitled to certain benefits, a dismissed officer is not entitled to any. See (i) Irem vs. Obubra District Council & Anor (1960) 1 N.S.C.C. 16 (ii) New Nigeria Bank Ltd vs. Francis Obe vs. Udiri (1986) 3 NWLR part 29 page 387 at 401.
As earlier submitted the contention of the Appellant is that his dismissal was not in accordance with the provision of part II (Section 1) of Article 4 of Exhibits 2. However, it is to be noted that the section relied upon by the appellant deals with termination of appointment and not dismissal.
Further without much ado the said section cannot and will not be applicable to an instance where an employee is dismissed as in the extant case. PER. NONYEREM OKORONKWO, J.C.A

LABOUR LAW: SUMMARY DISMISSAL; WHETHER GROSS MISCONDUCT IS ENOUGH TO SUSTAIN SUMMARY DISMISSAL
It is further submitted that the gross misconduct established against the Appellant is enough to sustain his summary dismissal from the employment of the Respondent without compliance with the procedure laid down in Exhibit 2 particularly part II Section I of Article 4.
As held in U.B.N. Ltd vs. Ogoh (1995) 2 NWLR part 380 pages 647 where an employee is guilty of gross misconduct, he could be lawfully dismissed summarily without Notice and without wages. PER. NONYEREM OKORONKWO, J.C.A

LABOUR LAW: GROSS MISCONDUCT; DEFINITION OF THE TERM GROSS MISCONDUCT
Gross misconduct was given judicial definition in UBN Ltd vs. Ogboh supra as Conduct of a grave and weighty character as to undermine the confidence which exists between the employee and his employer, or which works against the deep interest of the employer?.
Therefore it is submitted that the fact that the respondent had contended at trial that the Appellants employment was not guided by Exhibit 2 could not have prevented the trial judge from holding otherwise. The Respondent is not setting up a new case before your Lordships but supporting the decision of the trial judge which it is submitted in unassailable. PER. NONYEREM OKORONKWO, J.C.A

LABOUR LAW: COLLECTIVE AGREEMENT; WHETHER COLLECTIVE AGREEMENT CAN GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AND HOW COLLECTIVE AGREEMENTS ARE BINDING

No evidence was led by the appellant to show that he was a senior staff and thereby covered by the Collective Agreement made for the benefit of Senior Staff of NUBIFE. This cannot be assumed because it is a matter of evidence whether one is a Senior Staff or not. In the absence of any evidence oral or documentary, it is the normal terms of employment that must govern the relationship and where that does not exist, it is the common law as espoused in cases that must govern the relationship. What is more, the binding obligatory of collective Agreements is still fledgling and has not yet crystallized for it has been held in A. C. B. PIc. Vs. Nbisike (1995) 8 NWLR (pt 416) 725 that:
“Collective agreement made between one or more trade unions on the one side and one or more employer?s associations on the other are not generally intended to create legal relations except in the case of certain public boards or corporations. They are, at best a gentleman?s agreement, an extra legal document totally devoid of sanction.. They are products of trade unionist?s pressure. In other words, collective agreements are binding in honor only and their enforcement must depend on industrial and political pressure?.
and in A.C. B. Plc vs. Nwodika (1996) 4 NWLR where it was also held thus: A collective agreement is not by itself binding on the individual employee and the employee and the employer unless such a collective agreement is incorporated into the contract of service or adopted as part of the contract or conditions of service and in Afribank Nig. Plc vs. Osasanya (2002) NWLR (pt 642) 598 where it was said that: “Collective agreements, except where they have been adopted as forming part of the terms ofemployment, are not enforceable. The enforcement of such agreement is by negotiation between the parties to the agreement. PER. NONYEREM OKORONKWO, J.C.A

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appeal in these proceedings was against the judgment of the Oyo State High Court delivered by Hon. Justice W.K. Olaifa on 20/2/2012 wherein the claims of the appellant in relation to his employment were dismissed.

In his claims endorsed on his statement of claim, the appellant sought the following reliefs against the respondent viz:
1. DECLARATION that the plaintiff?s suspension and subsequent dismissal from employment of the defendant vide a letter dated 11th June 2003 is wrongful, invalid unconstitutional and constitutes a breach to the plaintiff?s right to fair hearing and contract of employment.
2. DECLARATION that the plaintiff is entitled to all his pecuniary entitlements from 31st January, 2012 to 11th June, 2003 being the period of the plaintiff suspension and thereafter from the said date of dismissal until the judgment is delivered.
3. AN ORDER directing the defendant to pay to the plaintiff all his entitlements from 31st January, 2003 until the date of judgment and thereafter until the judgment is liquidated.

?The facts

of the case as could be gleaned from the pleadings and evidence and the findings of the Court were as follows:-
The appellant was employed by the respondent bank as a messenger in 1985 and over time rose to the position of chief clerk in the defendant bank by promotion. The appellant was issued with a number of query on account of incidents that the respondent considered misconduct. Some of these instances were identified by the trial judge from the evidence as including:
1. Knowingly over-drawing his account
2. Exceeding his medical bills
3. Taking medical care concurrently at different hospitals of Ibadan and Ijebu-ode against Bank?s Policy.
4. Absent from duty without permission
5. Negligence in performance of official duties.

The instances referred to above and borne out of evidence was found by the trial judge are shown in Exhibit 18 – 31 consequent upon these misconducts and particularly the event of 6/1/2002 wherein the appellant was alleged to have procured false invoices as purchase receipts for drugs for his wife shown on Exhibit 11 as the proximate cause, the respondent by letter of 15th February 2002

suspended the appellant from duty and subsequently by letter of 11th June 2003, respondent dismissed the appellant from its service.

Appellant’s contention was that his dismissal was in breach of the collective Agreement which his Union National Union of Bank, Insurance and Financial Institutions Employees (NUBIFE) has with the respondent.

After an extensive review of the facts and the documentary exhibits the learned trial judge held that the acts of the appellant as highlighted in Exhibits 18 – 31 could not be justified and could be harmful for the smooth operation of the respondent bank.

In the judgment, the trial judge said ?evidence before me portrays the plaintiff as a recalcitrant offender who was given queries, and warnings for his behavior during the period of his employment” and that where an employee misconduct undermines the relationship or confidence which existed or should exist between him and his employer, that was sufficient to get rid of such employee. For all the reasons given, the trial Court dismissed the claims of the appellant.

Being dissatisfied with the judgment, the appellant by notice of appeal filed

18/5/2012 lodged this appeal on three (3) grounds of appeal which read thus:
GROUNDS OF APPEAL
1. The learned trial judge erred in law when he dismissed the claimants case based on the evidence proffered by the Defendant when the said evidence are not cogent enough to disprove the Claimants case.
Particulars
(i) The Defendants lone witness was not privy to any of the facts and occurrences leading to the dismissal of the Claimant from the employ of the Defendant;
(ii) The Defendants witness merely gave evidence on what he was probably told;
(iii) The Defendants witness and the claimant only worked together for a year
(IV) The Defendants witness himself admitted that he is not in position to know what transpired between the claimant and the Defendant prior to the claimant?s move to Ibadan.
2. The learned trial judge erred in law by holding that the Defendant has not wronged the Claimant the by the dismissal.
Particulars
(i) The learned trial judge found as a fact that the employment of the Claimant was regulated by both Exhibits ?2? and ?32?;
?(ii) Exhibit 2 which is the

collective agreement stipulates the procedures under which a staff could be disciplined and or have his employment terminated;
(iii) There is nothing on record to show that the Defendant complied with the conditions laid down in Exhibit 2 before terminating the employment of the Claimant.
3. The learned trial judge erred in law when he holds that the Defendant based on ‘Exhibits 18 -31’ could justify the termination appointment of the Claimant
Particulars
(i) The procedures for terminating the appointment of staffs in the category of the claimant are not at large.
(ii) The Defendant by its defence clearly delimits the reasons that led to the dismissal of the Claimant;
(iii) The facts in Exhibits 18 – 31 were clearly beyond the scope of the reasons relied upon by the Defendant in terminating the appointment of the Claimant; and
(iv) Exhibit 18 – 31 are extraneous matters which has no bearing with the facts leading to the dismissal of the Claimant.

In the appellant?s brief that followed, two main issues were raised for determination by the appellant. They are:
(i) Whether on the totality of the evidence in this case the learned trial

judge was right in dismissing the claim of the Appellant herein? Grounds 1 and 4.
(ii) Whether the learned trial judge was right in his conclusion that the Respondent herein was justified in the way and manner it dismissed the Appellant from its employment? Grounds 2 and 3.

The respondent in its brief adopted the issues formulated by the appellant.
The appeal would accordingly be considered along the issues formulated by appellant and expounded by the respondent.

On issue No: One (1)
Whether on the totality of evidence the learned trial judge was right in dismissing the claim of the appellant herein? Grounds 1 and 4.

The main argument of the appellant on this issue is encapsulated in the appellant?s argument at Paragraph 4.01 ? 4.02 thus:
The crux of the Appellant, case before the trial Court was that the Respondent did not comply with the provisions of the contract document binding both of them before he was dismissed from the services of the Respondent On its own part, the Respondents position is to the effect that, contrary to the position of the Appellant, it is the Appellants letter of appointment

i.e. Exhibit ?32? that governs the relationship between the parties as opposed to the Collective Agreement, Exhibit ?2?. The learned trial judge after carefully examining the case put forward by the parties held without any equivocation that both Exhibit 2 and Exhibit 32 are the bonds that guide the parties. The trial judge found thus:
“I agree with the claimants counsel that both Exhibits 2 and Exhibit 32 are the bonds that guide the plaintiff and Defendant in this case and not Exhibit 2 alone as nothing points to the discipline of staff in Exhibit 32 unlike in Exhibit 2.?
(See page 166 of the record).
The above being the case, we humbly submit that the only task before His Lordship is to determine whether in the light of the cases put forward by the parties (particularly the Respondent) it could be safely concluded that the Respondent acted within the confines of Exhibits ‘2’, and ’32’ while dismissing the Appellant from its services as parties are bound to honour the terms of contractual document legally entered into.
See: Green Finger Agro Ind. Ltd vs. Yusufu (2003) 12 NWLR (pt 835) pg. 488 @

515

Appellant?s argument seem to be that the employment of the appellant is regulated by Exhibit 2 which is the ?Main Collective Agreement between the Nigeria Employers Association of Bank, Insurance and Allied Institutions And The Association of Senior Staff of Banks, Insurance and Financial Institutions and not just Exhibit 32 which is the offer of employment and which as the trial Court found did not stipulate any condition or terms of employment.

any.
See (i) Irem vs. Obubra District Council & Anor (1960) 1 N.S.C.C. 16 (ii) New Nigeria Bank Ltd vs. Francis Obe vs. Udiri (1986) 3 NWLR part 29 page 387 at 401.
As earlier submitted the contention of the Appellant is that his dismissal was not in accordance with the provision of part II (Section 1) of Article 4 of Exhibits 2. However, it is to be noted that the section relied upon by the appellant deals with termination of appointment and not dismissal.
Further without much ado the said section cannot and will not be applicable to an instance where an employee is dismissed as in the extant case.
It therefore follows that the consideration of the provision of part II (Section 1) Article 4 of Exhibit 2 before arriving at decision by the trial judge was not only fair, just and accommodating but magnanism.

Notwithstanding, respondent argue that Exhibit 18 – 31 constitute acts of grave misconduct which could justify summary dismissal of an employee where misconduct or series of it has been proved, necessary it is not to specifically refer to any one instance as a justification or reason for the dismissal if evidence

points to such grounds and that it is not necessary for Exhibit 12 the appellant’s letter of dismissal to specifically refer to any instance.

Relying on Osagie Vs. New Nigeria Bank Plc. (2005) 3 NWLR (pt 913) 513 at 534 respondent argue that an employer can summarily dismiss for gross misconduct not provided for in the collective agreement and that a collective agreement did not dispense with an employer?s right of summary dismissal for gross misconduct.

In this regard, respondent argue in relation to the collective agreement Exhibit 2 and the gross misconduct of the appellant at Paragraph 4.18 – 4.20.
It is further submitted that the gross misconduct established against the Appellant is enough to sustain his summary dismissal from the employment of the Respondent without compliance with the procedure laid down in Exhibit 2 particularly part II Section I of Article 4.
As held in U.B.N. Ltd vs. Ogoh (1995) 2 NWLR part 380 pages 647 where an employee is guilty of gross misconduct, he could be lawfully dismissed summarily without Notice and without wages.
Gross misconduct was given judicial definition in UBN Ltd vs.

Ogboh supra as
?Conduct of a grave and weighty character as to undermine the confidence which exists between the employee and his employer, or which works against the deep interest of the employer?.
Therefore it is submitted that the fact that the respondent had contended at trial that the Appellants employment was not guided by Exhibit 2 could not have prevented the trial judge from holding otherwise. The Respondent is not setting up a new case before your Lordships but supporting the decision of the trial judge which it is submitted in unassailable.

On issue No. 2 is whether it is the collective agreement or the contract of employment Exhibit 32 that governs the employment. This in my view has been adequately canvassed by the parties in arguing the main issue No. one

In conclusion the appellant by way of summary itemized what he conceives as errors of the trial Court as follows:
Your Lordships are humbly urged to allow this appeal based on the following reasons:
(i) The Respondent in this case failed to disprove the fact that it is bound to comply with the dictates of Exhibit ?2? before it can

lawfully terminate the appointment of the Appellant;
(ii) The Respondent failed, to demonstrate that the termination of the appointment of the Appellant was justifiably carried out by it;
(iii) The learned trial judge relied on extraneous matters to wit: Exhibit ?18 to ?31? in coming to a conclusion that the termination of the appointment of the Appellant by the Respondent is justified;
(iv) The Respondent having failed to properly terminate the appointment of the Appellant, the Appellant ought to be entitled to his claim particularly the one for monetary entitlements which incidentally the Respondent did not frontally disprove.

Similarly, the respondent in conclusion justified the conclusions of the trial judge as follows:
(i) The leaned trial judge rightly held that Exhibits 2 and 32 govern the contract of Appellant?s employment
(ii) The learned trial judge rightly held that the dismissal of the Appellant was justified as gross misconduct was established against him vide Exhibit 18 -31.
(iii) The learned trial judge rightly held that the dismissal of the appellant complied with the

provisions of Exhibit 2.
(IV) The evidence contained in Exhibit 18-31 are not extraneous matter as erroneously contended by the Appellant but admissible relevant facts in the determination of the Appellant?s claim.
(v) That the evidence of D. W. relied upon by the trial Judge is not hearsay but relevant and admissible being evidence of a corporate sole.

In resolving the issues in this appeal, I think it is appropriate determine to firstly what instrument or Law or agreement that governs the transaction between the parties herein while the appellant maintains that his employment is governed by Exhibit 2 which is the collective agreement between the Workers Union aforesaid and the employers association of those affected worker. The respondent seems to argue that it is the pure contractual agreement Exhibit 32 that should govern.

Exhibit 32 dated 3rd July, 1985 by which appellant was employed reads thus:
3rd July, 1985
STAFF: PRIVATE & CONFIDENTIAL
Mr. Tirimisiyu Kolawole Balogun,
43 Atikori Street, Oke-Moje,
Ijebu Igbo,
Dear Mr. Balogun,
OFFER OF EMPLOYMENT,
We refer to your

application and recent interview and are pleased to advise that this Bank is prepared to offer you employment as a Messenger.
EMULUMENTS: Basic Salary -#1,746 p. a.
House Allowance -#240 p.a.
Transport -#240 p.a.
PROBATIONARY PERIOD: 6 months or subject to satisfactory performance.
If you are prepared to accept this offer, which will remain open until a month from date of this letter, please sign and return the attached copy of this letter and at the same time, indicate when you will report for duties.
Yours sincerely,
MANAGER.

It can be seen that Exhibit 32 contains no conditions of service, no terms of employment and is merely an offer of employment subject to acceptance or otherwise.

On the other hand, Exhibit P2 is the main collective Agreement made between the Nigeria Employers Association of Banks, Insurance and Allied Institutions and The association of Senior Staff of Banks, Insurance and Financial Institution. The subjects of the Union are Senior Staff of the bodies referred to and in Article 1 of the collective Agreement it is provided thus:
In compliance with the provision of Section 22 of

Trade Union (Amendment) Decree 1978 ? Decree No. 22 of 1978, The Nigeria Employers Association of Banks, Insurance and Allied Institutions (herein after called the ?Association?) accords the association of Senior Staff of Banks, Insurance and Financial institutions (herein after called the “Union?) full recognition as the sole collective bargaining agent authorized to negotiate on behalf and to represent all senior staff engaged in the various establishment described in group 27 at page 155 of the Federal Republic of Nigeria extra ordinary Gazette, Volume 65, No. 6 dated Lagos ? 8th February, 1978, except those employees whose responsibilities could conflict with their loyalty to their companies and the aspirations of the Union namely:
(i) Members of the board of Directors
(ii) (ii) Managing Directors
(iii) General Managers
(iv) Deputy and Assistant General Managers
(v) Employees in the management Group who by virtue of their position would normally represent management on issues concerning the senior staff association
(vi) Other employees who may by themselves decide not to belong to

the Senior Staff Association and so state it in writing, provided that such members shall cease to be represented by the Union.
(vii) Secretaries, or persons holding similar positions and are attached to I, ii, iii, and iv above.

Exhibit 32 referred to above is the offer of employment as a messenger. Later, by letter of 22nd March 2001, appellant was upgraded to the rank of clerk with effect from 28th December 2000. This did not show whether appellant became a Senior Staff covered by Exhibit 32 the Main Collective Agreement.

What is more, the binding obligatory of collective Agreements is still fledgling and has not yet crystallized for it has been

held in A. C. B. PIc. Vs. Nbisike (1995) 8 NWLR (pt 416) 725 that:
“Collective agreement made between one or more trade unions on the one side and one or more employer?s associations on the other are not generally intended to create legal relations except in the case of certain public boards or corporations. They are, at best a gentleman?s agreement, an extra legal document totally devoid of sanction.. They are products of trade unionist?s pressure. In other words, collective agreements are binding in honor only and their enforcement must depend on industrial and political pressure?.
and in A.C. B. Plc vs. Nwodika (1996) 4 NWLR where it was also held thus:
?A collective agreement is not by itself binding on the individual employee and the employee and the employer unless such a collective agreement is incorporated into the contract of service or adopted as part of the contract or conditions of service?.
and in Afribank Nig. Plc vs. Osasanya (2002) NWLR (pt 642) 598 where it was said that:
“Collective agreements, except where they have been adopted as forming part of the terms of

employment, are not enforceable. The enforcement of such agreement is by negotiation between the parties to the agreement.?

In the appellant case, besides not showing by evidence or definition that appellant was a senior staff it was neither shown on Exhibit 32 nor Exhibit P1 that appellant was or became a senior staff or that Exhibit P2 the collective agreement applied to appellant.

As it is, neither the offer of Employment letter Exhibit 32 nor the Collective Agreement Exhibit 2 is helpful in determining the case of the appellant. In the circumstance therefore, recourse must be had to the common law as the governing norm of the relationship and this seem to be what the learned trial Judge did in this case without express mention.

At common law, it is within the right of an employer to dismiss an employee for misconduct particularly when the employee?s conduct has been such that it would be injurious to the masters business to retain him. In such situation, it is undeniably the right of the master to dismiss such employee
See Anglia Railway Co. vs. Lythgoe (1851) 10 CB 726; Pearce vs. Foster (1886) 17 QBD 536; Boston

Deep Sea fishing and Ice Co. vs. Ansell (1988) 39 Ch. D 339 at 367 at 368; Reading vs. Attorney General (1951) AC 507 and of course our own Supreme Court in Maja vs. Stocco (1968) 1 ALL WLR 141 where the principle crystallized thus:
“Willful disobedience to Lawful and reasonable orders, mismanagement of the master’s business, conduct incompatible with or prejudicial to his masters business, taking advantage of ones portion to enrich oneself at the masters expense to the detriment of the masters business are some, of the many acts that may give rise to instant dismissal of the servant by the master.

The trial Judge had regards to the various acts of misconduct shown in Exhibits 18 – 31 and was of the view that such conduct could not be justified and could be injurious to the business of the respondent?s bank. At page 169 of the record, the trial Judge said:
“It is trite that it is not in all cases that gross misconduct involving dishonesty bordering on criminality should be taken to Court vide Sec 36(1) 1999 Constitution as amended. In this case the plaintiff?s explanations were rejected on cases bothering on over-drawing his act,

exceeding medical bill, taking medical care concurrently at different hospitals against bank policy absence from duty without permission and conduct incompatible or prejudicial to the defendants business. In my view it is not necessary to take to criminal prosecution before dismissing the plaintiffs as the conduct of the plaintiff has affected the relationship of confidence which should exist between the plaintiff and the defendant See Arinze vs. FBN Ltd (2004) 12 NWLR (Part 888)663 at 665 ratio 1. The defendant gave the plaintiff fair hearing by asking him for explanations which explanations were rejected by the defendant before dismissal. Defendant might not give any reason to dismiss in cases of Master and servant?.

Concerning the representation by Exhibit 18 -31, the trial Judge said “they speak for themselves. In the replies given by the claimant, he admitted the misconduct and begged for forgiveness.?

In my view, an employer cannot be expected to put up with a recalcitrant employee who no longer enjoys the confidence or intimacy of his employer. In such situation, an employer can rid himself of such employee as the trial Judge

found relying on Arinze vs. First Bank of Nig. Plc (2004) ALL FWLR (277) at S.N Maliki vs. Micheal Imoudu Institute of Labour Studies 2009. ALL FWLR (pt 491) 989 at 1012.

The arguments of the appellant were submissions tenable for wrongful termination and are inappropriate for dismissal for misconduct.

As I have demonstrated in this appeal there is no evidence that appellant came under the protection of the collective Agreement Exhibit P2 not having been shown to be a senior staff of the respondent neither did Exhibit 32 appellants offer of employment, offer any assistance. As it is, it is the common law that must be resorted to in determining the dispute arising in this case under appeal and the trial Judge in my view, did a good work of it.

Finally, as the trial Judge found, a dismissed worker cannot claim for wages for services not rendered C.C.B. Nig. Ltd vs. Nwankwo (1993) 4 NWLR (Pt. 286) 159.

The appeal accordingly lacks merit and is dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Nonyerem Okoronkwo, JCA, gave me in advance a draft of the judgment just delivered.

My learned brother

has adequately considered and resolved the two issues raised for determination in this appeal. I only wish to add that, by Section 91 of the Labour Act, 1990, and especially considering the “letter of offer of employment” dated the 3rd July, 1985 (Exhibit 32), the relationship between the Appellant and the Respondent was that of a master and Servant, and which contract was a contract of service. The said contract (Exhibit 32), however does not contain the period of notice required for the termination of the contract. The law therefore is that, where there is a contract of service which contains no provision for notice required for termination, there is an implied term that the contract can only be terminated by reasonable notice. What is reasonable notice will depend on the nature of the contract and the status of the employee in the organization. In the instant case, the Appellant was a lowly staff employed as a messenger in 1985; though it was contended that he however enjoyed some promotions in the course of his service.This fact is however not an issue in this appeal.

?The contention of the Appellant is that, his dismissal breached his right to

fair hearing and the contract of employment. There is however no terms in the letter of employment (Exhibit 32) in terms of terms of conditions of service and how the employment could be terminated. Such terms and conditions are however stipulated in PART II pages 6-9 of the Main Collective Agreement Exhibit 2. Therein, the procedure to be followed include caution, warning, suspension and finally, summary dismissal. These procedures were observed by the Respondents as evidence by Exhibits 4, 5, 6, 7,8,11 and 12. It is therefore clear that the Respondent unequivocally observed the disciplinary procedure stipulated by the “Main Collective Agreement” (Exhibit 2) before summarily dismissing the Appellant. It cannot therefore be validly and justifiably argued that the Respondent breached the Appellant’s right to fair hearing or any terms/conditions of his employment when dismissing him from its employment.

I therefore agree with my learned brother that this appeal has no merit. It is accordingly dismissed. The judgment of the Oyo State High Court delivered on the 20th day of February, 2012 is hereby affirmed.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the

privilege of a preview of the judgment of my learned brother Nonyerem Okoronkwo JCA and I agree with my lord’s reasoning and conclusions.

Exhibits 2 and 3 tendered before and admitted by the lower Court do not articulate the contractual relationship between the parties as it relates to termination of employment or dismissal. The fall back position therefore is the common law. The learned trial judge found that the Appellant committed acts of gross misconduct. An employer can dismiss an employee in all cases of gross misconduct. See Arinze v. FBN Ltd (2004) 12 NWLR part 888 p. 663. I find no merit in the appeal. I dismiss it.

Appearances

Sunbo Durowoju (Mrs.) with him,
olateju Kazeem (Miss) and Mariam OlanipekunFor Appellant

AND

K.A. Adeleke, Esq.For Respondent