OLABODE ADEWUNMI v. NIGERIAN EAGLE FLOUR MILLS
(2014)LCN/6822(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of February, 2014
CA/I/337/2009
RATIO
WORDS AND PHRASES: GROSS MISCONDUCT
Gross-misconduct is defined as a serious misbehavior in workplace: behavior in the workplace that is illegal or is such a clear and serious violation of company rules that the employee may be dismissed immediately. (Encarta Dictionaries)
“Gross Misconduct” in this appeal clearly refers to the alleged fraudulent tempering with trade customer’s account “fraudulent” is an element of criminality and cannot be treated as a “misconduct” merely determinable by the employer as contended by the learned Counsel for the Respondent.
By its conduct, it is clear that the dismissal of the Appellant was for an illegal conduct connoting criminality. The argument of the learned counsel for the Respondent at page 2 paragraphs 4.02-5.02 are untenable.
“Misconduct” is defined by the wrongful act of the servant and the response of the employer; these are what the court look at to determine whether there has been “gross misconduct” and whether there has been wrongful dismissal. The case of Anakism v. Union Bank of Nigeria Plc (1994) 1 NWLR (pt. 322) 557 @ 569 & UBN Ltd. v. Ogboh (supra). relied upon by the Respondent is distinguishable and are relevant in an aspect only of the case at hand. Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
JUSTICES:
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
OLABODE ADEWUNMI – Appellant(s)
AND
NIGERIAN EAGLE FLOUR MILLS – Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice per Hon, Justice M.A Adegbola (J) delivered on 21/10/2008, wherein the learned trial judge dismissed part of the Appellant’s claim.
The brief facts of the case at the trial are as follows:- That the Appellant was employed by the Respondent as a senior manager in 1994 where he worked up to 2006 when his employment was abruptly determined. The Appellant was alleged in a query to have tempered with the trade debtors account of the company. The Appellant’s prompt reply to the query denying any wrong doing was rejected. One Mr. Gbenga Aro the then sales Manager of the Respondent is alleged to have confronted the Appellant at a management meeting of his alleged criminal activities in consonance with the said Mr. Gbenga Aro. It is instructive that the said Mr. Gbenga Aro testified for the Respondent as DW1 in the suit of the Appellant as Plaintiff, from which this appeal arose. The learned trial judge in a considered judgment of 44 pages dismissed all the heads of claim of the Appellant on wrongful dismissal.
His lordship however, awarded to the Appellant his entitlement in contribution to the National Housing Fund and the Pension Schemes. The counter-claim of the Respondent as defendant was however successful.
The Appellant who was Plaintiff shall hereafter simply be referred to as Appellant and the Defendant shall be referred to simply as Respondent.
A total of 18 grounds of appeal were filed with particulars; with the order of this court 6 additional grounds were added to the 12 grounds originally filed.
On the 21st November, 2013, when this appeal was heard, the learned counsel for the Appellant, Oladipo Olasope with A. A. Momoh adopted and relied on the brief of the Appellant dated the 29th September, 2010 and filed on the 30th September, 2010.
Olanrewaju Osinaike Esq. with Temitope Oyeyemi Esq. also adopted and relied on the brief of argument of the Respondent dated the 27th October, 2010 and filed on the same date.
The Appellant formulated 6 issues for determination in response of which the Respondent formulated 3 issues.
The Appellant’s issues are as follows:-
1. Whether the Defendant was justified in dismissing the Appellant from its employment when the allegations against the Appellant were criminal in nature.
2. Whether the Appellant was afforded a fair hearing before his employment was terminated.
3. Whether the learned trial judge was right in relying solely on the evidence of Mr. Gbenga Aro (DW1) in finding that the Appellant was guilty of fraudulent activities.
4. Whether the learned trial judge was right in holding that a case of gross misconduct had been proven against the Appellant.
5. Whether the learned trial judge was right in holding that the Appellant was made to confront his accuser.
6. Whether the learned trial judge was right in his approach by believing a witness solely and not giving reasons why he did so and why he disbelieved another one.
The Respondent’s 3 issues are as follows.
1. Whether in view of the available materials and the state of the law, the trial court was right in dismissing the Appellant’s claim.
2. Whether the Respondent observes the rule of natural justice in the particular circumstances of this case.
3. Whether in view of the uncontroverted evidence of DW1, the Appellant’s admission on record and the state of the law, the trial court was right in granting the defendant’s counter claim.
This appeal shall be determined on the three issues formulated by the Respondent which issues fully incorporate those of the Appellant. The issues shall however be taken in the reversed form as follows:- Issue 3, 2, 1.
Issue three
Whether in view of the uncontroverted evidence of DW1, the Appellant’s admission on record and the state of the law, the trial court was right in granting the defendant’s counter claim.
The learned Counsel for the Respondent has urged the court to strike out ground 12 of the amended ground of appeal as having been abandoned. The reason is that no issue was formulated on the said ground. (Refers: Ezenwa V. Oko (2008) 3 NWLR (pt. 1075) p. 610 @ 624).
Ground 12 of the Appeal states that:-
“The learned Trial Judge erred in law in granting the Counter-Claim of the respondent when for the circumstances of the case, there was no evidence to support the grant of the Counter-Claim”.
No issue was however raised on the said ground nor was any argument incorporated on the said ground. The Appellant did not file a Reply brief either.
Appeals are argued on issues raised from the grounds of appeal. (See Longe v. FBN Plc (2010) 6 NWLR (pt.1189) p 1 @ 55) It follows therefore that when no issue is formulated on a ground of appeal, the said ground is, deemed abandoned and therefore discountenanced in the consideration of the appeal. Such is the fate of ground 12 on which no issue was formulated in this appeal. Accordingly issue three formulated by the Respondent is hereby discountenanced too.
Issue two
Whether the Respondent observes the rule of natural justice in the particular circumstances of this case. (Issues 2 & 5 of the Appellant).
The learned Counsel submits that the Appellant was denied fair hearing by his employer which thereby infringed upon the rules of natural justice in terminating the employment. This infringement, submits the learned Counsel, lies in the testimony of Mr. Gbenga Aro as DW1 that he held meeting with the management in the absence of the Appellant who was thereby denied the right to confront Mr. Gbenga Aro before his employment was terminated. Learned counsel cites page 150 at which the learned trial judge referred to exhibit I in reference to a memo of the 19th January, 2006. The learned counsel submits that the learned trial judge came to a wrong conclusion about the said exhibit I which infact referred to a meeting between the Appellant and his assistant general manager. That nowhere was it shown that the Appellant had a meeting with the management and had the opportunity to confront Mr. Gbenga Aro. This he submits amounts to lack of fair trial. (Refers FCSC v. Laoye (1989) 3 NWLR (PT. 147) @ 95, Baba v. NCATC (1991) 5 NWLR (PT.192) 388 @ 415).
Learned Counsel further refers to page 12 of the record where Mr. Gbenga Aro stated that he presented some cheques to confront the Appellant at a meeting, the said cheques were however not tendered in court confirming that no meeting was infact held where the Appellant was made to confront his accuser Mr. Gbenga Aro. Learned Counsel submits that the failure to afford the Appellant fair hearing in a process leading to his dismissal renders the exercise a nullity and a fundamental infringement of the principle of fair hearing.
Counsel urges the Court to set aside the judgment of the trial court as the Appellant was not afforded fair trial.
On the issue of fair hearing the learned counsel for the Respondent refers this court to pages 147 lines 29-33 and page 148 lines 1-9 of the records that the trial court observed the rule of natural justice.
Learned counsel submits that the contention and cases cited in paragraph 6 of the Appellant brief of argument are not applicable to the circumstances of this case. Counsel cites the dictum of Oputa JSC in Adingun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 678 @ 758 to the effect that
“I should not be understood as saying that in every administrative inquiry there ought to be oral hearing or that the absence of such oral hearing ipsa facto offends the rules of natural justice or means a denial or natural justice. No, far from that”
Learned Counsel also submits that the contention in paragraphs 7.00, 7.01 & 7.03 of the Appellant’s brief of argument was misconceived as the authorities are not applicable to the circumstances of this appeal. (Refers Nwosu v. Uche (2005) 17 NWLR (pt. 955) 574 @ 590).
Counsel further refers this court to page 149 lines 7-10 of the records and submits that the trial Judge adopted the proper approach by giving cogent reasons for believing the evidence of Mr. Gbenga Aro.
Contrary to the findings and conclusion of the learned trial judge at page 140 of the records that a definite claim for wrongful dismissal is not included in the reliefs contained in the writ of summons, paragraphs 21, 22 & 23 of the further amended statement of claim unequivocally raised the issue of wrongful dismissal. These paragraphs which were copiously reproduced in the 44 pages Judgment of the learned trial Judge which are hereby also reproduced for the ease of reference:-
“(21) the plaintiff will contend at the trial that the purported dismissal is wrong, irregular and unlawful as he was not made to confront his accusers.
(22) the plaintiff will also contend at the trial that the procedure adopted in the purported dismissal runs contrary to the rules of natural justice. Furthermore he was not found guilty of any offence before the purported dismissal.
(23) The plaintiff will also contend that the grounds for the said dismissal cannot be justified in fact and in law.”
The thrust of the grievances of the Appellant is that he was not “managerially” granted the opportunity to confront his accuser with his allegations/confessions before his employment was terminated. This fact is replete from the nature of communication between the management and the Appellant leading up to his summary dismissal. The exercise as recorded by the learned trial judge is at pages 142-145 and is hereby reproduced at Page 142-145 of the records (As reproduced by the learned trial Judge)
“In the evidence the plaintiff stated that he was given a query to which he promptly reacted. The query dated 19th January, 2006 which exhibit H in these proceedings reads:
“Mr. Olabode Adewunmi
Senior Manager Marketing
NEFM
QUERY
Tampering with Trade Debtors Customer’s Account.
In reply to the query given to the Senior Manager (sales) Mr. Gbenga Aro on the above caption he confirmed that you Mr. Olabode Adewunmi with him fraudulently tampered with trade debtors accounts.
Would you please explain within 12 hours of the receipt of this letter your involvement in this matter.
List of credit customers attached but not, exhaustive.
Yours faithfully.”
Signed.
The plaintiff promptly replied to the query on the same date 19th January 2006 thus:
“from Marketing Manager
To: Ass. General Manager (Administration)
Re: Query Tampering with Trade Debtors Customary’ Account.
I deny this allegation. I had extensive discussion with Mr. Aro after our meeting this morning as to what warranted this implication.
The summary was that he said the Northern transporters came to him on Tuesday and accused me of being the behind his travail. That I encouraged and stampeded them to expose him to the Deputy General Manager. He also said some of the Marketing officers told him same.
I believe this is just to indict me for my official activities which was misconstrued.
Thank You.
Olabode Adewunmi.”
Again on 23rd January 2006 another query was issued to the plaintiff in the following manner.
“Mr. Olabode Adewunmi
Senior Manager (Marketing)
NEFM
Ibadan
Re: Tampering with Trade Debtor
Customers’ Account
We refer to our letter of 19th January, 2006 and your subsequent reply of the same date on the above subject.
The Senior Manager (Sales) Mr. Gbenga Aro has now given us documents to show that the sum of N562,500 and N1,000,000 passed through him to your account on January 6th and May 5th 2003 respectively. These sums totaling N1,552,500 form part of the proceeds of the fraudulent manipulation of customers accounts.
We request from you immediately your detailed explanation to these transactions.
Yours faithfully
Signed.
On the same day the plaintiff replied the second query thus:
“From: Marketing Manager
To: Ass. General Manager
Re: – Tampering with Trade Debtors
Customers’ Account
With reference to your letter dated 23rd January 2006 I can readily recall that there was a time he gave me N1,000,000 to help him pay my cousin who was building him a project, the same was handling mine.
I introduced them to each other.
I cannot readily remember the N562,500 unless he furnishes me further but I guess it may be for the same purpose. However you must realize that hitherto we were good friends and we did assist one another.
Attached is a photocopy of the relevant bill of quantities for the project at my disposal.
Thank You.
Olabode Adewunmi.”
The defendant reacted on 24th January, 2006 in the following manner:
“Mr. Olabode Adewunmi
Senior Manager (Marketing)
NEFM
Ibadan
Re: Tampering with Trade Debtor Customer’s Account
Reference to your reply to this office query of 19th January 2006 denying the allegation of tampering with Trade Debtors Account with the Senior Manager (sales) Mr. Gbenga Aro, I wish to inform you that management is not satisfied with your reply, hence there is need to further investigate the matter.
Consequently you are hereby suspended from office for 7 days with effect form Wednesday 25th January 2006.
Yours faithfully
Wale Jolose
AGM Admin.”
On 31st January, 2006 by Exhibit O the plaintiff was informed thus:
“Mr. Olabode Adewunmi
Senior Manager (Marketing)
NEFM
Ibadan.
Dear Mr. Adewunmi
DIMISSAL
Further to our letter of 24th January, 2006 we regret to inform you that you are hereby dismissed from the services of the company with effect from January 2001 for gross misconduct.
You are requested to handover all company’s properties in your hand to your head of Department within 7 days.
Wishing you all the best.
Yours faithfully.
Wale Jolaoso
AGM (admin)”
The management held a hide and seek inquisition from which a few facts were extracted and flung at the Appellant with executive fiat demanding replies. The Appellant obediently responded to the letters sent to him. The case of Adingun & ors v. A.G. Oyo State & Ors (1987) 1 NWLR (pt.53) 678 @ 758 clearly held that the rules of natural justice must be observed in an administrative enquiry. Such was not done in the proceedings leading up to the dismissal of the Appellant. A procedure where an accuser is shielded from the accused all through the inquiry is certainly not one in compliance with natural justice. Presence and direct confrontation has a lot of impact and produce different results from a one sided inquisition by an executive of his subordinate.
In the case of Imonikhe v. Unity Bank Plc (2011) LPELR-1503 (SC), the Apex Court per Rhodes-Vivour JSC held @ Pp. 27-28 that, the natural justice principle of “Audi alteram partem is a maxim denoting basic fairness.
It is a canon of natural justice that has its roots in the Old Testament. The Good Lord heard Adam before he passed sentence. It simply means hear the other side.”
In the same case Onnoghen JSC who prepared the lead judgment @ p. 21 held that:-
“It is trite law that he who asserts the affirmative has the duty to prove same. There is no duty, generally, on a party to prove the negative”.
This is relevant in this appeal in that it was Mr. Gbenga Aro who affirmatively asserted that he stole the Respondent’s money over a certain period of time in consonance with the Appellant. The Appellant was merely asked to comment within a specified time. If he were under any form of interrogation, he should have been allowed sufficient/reasonable time to respond to the allegation before his hasty dismissal. The learned Counsel to the Appellant raised the issues of discrepancies in the documents forwarded to the Appellant as evidence of his misdeeds. Counsel submits that some of the customers denied the alleged payments credited to them.
The learned trial Judge who found that there were discrepancies in the “…23 pieces of documents” failed to take cognizance that the said documents infact emanated from the Respondent. The desire of the Respondent to cover up its incompetence led to the incomplete procedure adopted in dismissing the Appellant. The learned trial Judge found no miscarriage of justice in this fact and was rather content with glossing over of the discrepancies as “…an in-house matter within the administrative set up of the defendant company of which the customers are not supposed to be in the know”? A good proposition but at whose expense? The Appellant was made the victim!
The Respondent having initiated an internal inquiry should have done a thorough job of it. No doubt, it is not in the interest of the company to continue harboring persons of questionable character. It is however incumbent on the company to do its house clearing in accordance with the dictates of the law.
The executive letter Exhibit ‘O’ addressed to the Appellant in terms of Exhibit ‘R’, the terms and condition of service which the learned counsel to the Respondent holds tenaciously to, could pass if nothing had preceded it. Alas, an inquiry/inquisition on terms of “fraudulent tempering” had preceded the letter of termination. The cat had been let out of the bag; the Appellant was a prime suspect! (See FCSC V. Laoye (1984) 3 NWLR (Pt.106) P. 652)
Whereas the learned trial Judge was right in holding that it could not render as null and void the decision of the Respondent, it was wrong to have failed to hold that the Respondent wrongfully dismissed the Appellant. It is correct to hold that the court cannot impose a willing employee on an unwilling employer. (Refers: UBN v. Chinyere (2010) 10 NWLR (Pt. 1299) p 453 @ 472). The employer however has a duty to ensure that it does not, enigmatically raise its executive stick in oppression of the employee. Equity, fair play and equal treatment are what constitute justice, which we all clamour for. This principle finds express in Genesis Chapter 3 verses 26 & 27 (Holy Bible) where the Lord God Almighty, after creating “all things” created man and woman in his own image and gave them authority to rule and dominate all things” not all the humans. The relationship between other humans all of whom were created in the image of God is to be governed by negotiation not domination nor ruler ship! The instrument of association relied upon by the Respondent which is Exhibit ‘R’ paragraph 23 provides for a summary dismissal for “gross misconduct”.
Gross-misconduct is defined as a serious misbehavior in workplace: behavior in the workplace that is illegal or is such a clear and serious violation of company rules that the employee may be dismissed immediately. (Encarta Dictionaries)
“Gross Misconduct” in this appeal clearly refers to the alleged fraudulent tempering with trade customer’s account “fraudulent” is an element of criminality and cannot be treated as a “misconduct” merely determinable by the employer as contended by the learned Counsel for the Respondent.
By its conduct, it is clear that the dismissal of the Appellant was for an illegal conduct connoting criminality. The argument of the learned counsel for the Respondent at page 2 paragraphs 4.02-5.02 are untenable.
“Misconduct” is defined by the wrongful act of the servant and the response of the employer; these are what the court look at to determine whether there has been “gross misconduct” and whether there has been wrongful dismissal. The case of Anakism v. Union Bank of Nigeria Plc (1994) 1 NWLR (pt. 322) 557 @ 569 & UBN Ltd. v. Ogboh (supra). relied upon by the Respondent is distinguishable and are relevant in an aspect only of the case at hand.
In the case of Adingun & Ors v. A. G. Oyo State & Ors (1987) 1 NWLR (pt. 53) 678 @ 758, the Apex court held:-
“A hearing can be on Oral evidence or written documents submitted by the parties interested in the inquiry or whose civil rights and obligations will be affected by the inquiry. Dr Agiri’s Commission qualifies as an Administrative Tribunal (See Wednesbury Corporation v. Ministry of Housing and Local Government No. 2 (1966) 2 QB. 275) and is bound to observe the Rules of Natural Justice. The fact that it is an administrative tribunal does not exempt it from observing the principles of audi alteram partem nemo judex in causa sua enshrined in the Rules of Natural Justice. The principles constitute the bastion of fairness and are equally enshrined in section 33 (1) of the Constitution of the Federal Republic 1979, Audi alteram partem or hear the other side is a very dominant principle and pervades the system of adjudication in dispute in both primitive and civilized world. I agree with counsel for all parties that hearing of parties to a dispute need not be oral. It could be on written document. See: (1) The Queen v. director of Audit (W.R) and Ors. (1961) All N.L.R. 659 at 660. (2) Hart v. Military Governor, Rivers State Public Service Commission and Attorney-General (1976) 11 S.C. 211. (3). Adedeji v. Police Service Commission (1968) N.M.L.R 102. But all the parties must be heard on written documents. If the tribunal decides to have in addition an oral hearing, all the parties affected must be given an opportunity of an oral hearing. There is no doubt that where parties cannot adequately due to illiteracy put their thoughts into writing an oral hearing may be beneficial. In this context, I agree with the views of the U.S. Supreme Court in the case of Goldberg v. Kelly 397 US 254 at 268 to 269 (1970)” per Obaseki, JSC (Pp.46-47)
In the case under review, there was no tribunal so called. The Appellant was therefore denied fair hearing contrary to the principles of natural justice.
Issue one
Whether in view of the available materials and the state of the law, the trial court was right in dismissing the Appellant’s claim. (Issues 1, 3, 4 & 6 of the Appellant)
It is the submission of the learned Counsel for the Appellant that the relationship between the two parties is that of master and servant, the learned Counsel concedes that in such a relationship, the employer can determinate the employment of the servant for no stated reason. However, Counsel maintains that where the employer states the reason for the termination and such is challenged he must proof the allegation which constitute his reasons. By Exhibit O in the instant appeal being the letter of dismissal, the reason stated are:-
“Grounds of gross misconduct for fraudulently tempering with trade debtors accounts” this thereby places the onus squarely on the Respondent to establish that the Appellant has been found guilty of gross misconduct, posits the learned Counsel who cites the case of Fakunde v. OAU (1993) 6 SCNJ (Pt.1) 35 @ 40 in support.
It is further the submission of learned Counsel that the allegation of fraudulently tampering with trade debtors accounts being criminal in nature, the Respondent must prove beyond reasonable doubt as stipulated by section 138 (1) Evidence Act. (See also the case of Agbin v. Ogbeh (2006) ALL FWLR (pt. 329) page 941)
This burden, maintains the learned Counsel, was not discharged, the Respondent having relied solely on the evidence of one Mr. Gbenga Aro an accomplice in the alleged fraud. It is the submission of Counsel that Mr. Gbenga Aro who had openly confessed to his fraudulent activities against the Respondent is alone bound by his confession. (Refers Nsofor v. State (2005) ALL FWLR (pt. 242) 397 @ 417-418). The evidence of Mr. Gbenga Aro could not suffice as proved beyond reasonable doubt against the Appellant nor the uncorroborated evidence of Mr. Gbenga Aro as proof beyond reasonable doubt against the Appellant. Mr Gbenga Aro having, confessed to criminal activities in the said Respondent’s organization is a tainted and unreliable witness whose evidence should have been rejected.
That his lordship of the trial court acted in error to have relied solely on the Evidence of Aro in dismissing the claims of the Appellant. (Refers Yohanna v. FRN (2002) FWR (Pt.90) 1433 @ 1441).
The commission of crime having been alleged, the standard of proved should have been higher though in a civil matter. (Refers Agbin v. Ogbeh (2006) ALL FWLR (Pt.329) page 941)
Counsel further submits that although exhibit H (the letter of query) bears a list of names showing how much of the customers money were allegedly misappropriated by the Appellant, notably Ahmed Afolabi who paid N840,000.00, Sukura Bakery alleged to have paid N6,400,000.00 none of these witnesses testified in court. Further that inspite of the submission of Exhibits G-G22 by the Appellant to disprove the allegation and in which said exhibits Ahmed Afolabi and Sukura Bakery, inter alia each denied having pain in the money to the company and specifically admitting to owning the company. The Appellant was held liable. This, submits the learned Counsel goes to show in details that the allegation was not proved and the learned trial judge was wrong in holding exhibits G-G22 as establishing a case against the Appellant, Counsel concludes that Exhibits G-G22 which consist of contradictory figures were insufficient to establish a case beyond reasonable doubt. Learned Counsel cites the evidence of DW1 and DW2 who materially contradicted each other on the figure allegedly misappropriated in that while the DW1 alleged eighteen (18) million naira, DW2 alleges thirty-five (35) million naira as having been misappropriated. The learned Counsel for the Appellant cites paragraph 23B of the Appellant’s amended statement of claim but the said paragraph bears no such averments as referring to DW1 and DW2.
Appellant submitted that evidence of parties was not weighed together before the conclusion in the instant matter. That the evidence of Mr. Gbenga Aro should not be believed as he equally had interest to be served in the matter. Counsel further states that, the Appellant and Mr. Gbenga Aro should have faced trial together as their evidence should be viewed with caution as the statement and evidence of the Appellant tendered as Exhibit 1 and 17 made it clear to the Respondent of his victimization by Mr. Gbenga Aro, (Refers Yohanna, V. FRN (2002) WLR PT. 90, 1433 @ 144.) That Mr. Gbenga Aro having shown to be guilty of stealing company’s fund, his evidence is not credible and court ought not to rely on it.
The approach of the learned Counsel for the Respondent in reply to the issues raised and argued by the Appellant in issues 1, 3, 4 and 6 is a reference to Exhibit ‘O’ and Exhibit ‘R’ clause 21.3 respectively reproduced at pages 11 and 141 of the record for this appeal. The learned Counsel maintains that the argument of the learned Counsel for the Appellant in paragraph 5.00-5.06 is misconceived and otiose in that exhibit ‘O’ shows that the Appellant was dismissed for “gross misconduct” and not for “gross misconduct for tampering with trade debtors account” as contended by the Appellant. That is it clear that Exhibit ‘O’ does not border on or reflect crime or criminality. Counsel purports that the learned trial judge was right in his observation at page 145 of the record as follows:-
“From the exchange of correspondence between the plaintiff and the defendant as depicted above. It is crystal clear that the defendant case is that it dismissed the plaintiff from its employment for gross misconduct”
Thus, maintains the learned Counsel “misconduct” is what an employer considers to be ‘misconduct’ and in a master/servant relationship, a dismissal cannot be declared null and void and of no effect whatsoever.
The learned Counsel submits that premised upon Exhibits ‘O’ and ‘R’ it is clear that the learned trial Judge considered the totality of the evidence before him and rightly declared at page 139 lines 16-27 of the records as follows:-
“Having held that the relationship between the plaintiff and the defendant in this case is that of master and servant I am afraid the foregoing reliefs claimed by the plaintiff in the first limb of the writ of summons cannot be granted by the court. This is because in a master and servant relationship a dismissal of the employee cannot be declared null and void and of no effect whatsoever. The employee’s remedy is in damage where the termination of the appointment or dismissal is held to be wrongful.
Similarly the law is now settled that the court cannot impose a servant on an unwilling master and the court is without power to grant the plaintiff in a master and servant relationship a declaration that his employment with the defendant was still subsisting after his dismissal”
The Respondent cites the decision of the Supreme Court in Chukwuma v. Shell Petroleum Development Company Nigeria Limited (1993) 4 NWLR (Pt.289) 512 @ 560 per Karibi-Whyte JSC.
It is correct, as submitted to by the learned Counsel for the Respondent, that “gross misconduct” is what the employer deems a certain conduct to be. However, the query issued to the Appellant and the evidence of the DW1, the Respondent’s “star” witness in the suit of the Appellant clearly exposes what the Respondent concealed under the title of “Gross misconduct”. “Gross misconduct” has earlier been defined in the judgment, but for emphasis, “gross misconduct” is defined as a behavior in a work place that is term “gross misconduct”, Illegal or such a clear and serious violation of the company rules that the employee may be dismissed immediately. The Appellant having known exactly what “gross misconduct” he is dismissed for, felt aggrieved and went to court for redress. Having headed that part, the Respondent is expected to go the whole hog. Further, the learned trial judge also having stepped outside the realm of technical justice, should have gone the whole hog to determine the suit of the Appellant in accordance with substantial justice.
The Respondent did not file a Respondent’s Notice nor a Cross Appeal against the decision of the learned trial judge. It cannot therefore wish away a part of the decision of the learned trial judge which resulted in an erroneous decision about the wrongful dismissal of the Appellant. Although the leaned trial judge, held correctly, that the decision of the employer cannot be rendered null and void nor can the court impose a willing employee on an unwilling employer, it failed to determine if the ‘exposed’ reason for the termination of the Appellant’s employment met the requirement of the law.
Before Exhibit ‘O’ there was Exhibit ‘H’, at page 4 of the records in which the Appellant was issued a query requiring him to respond within 12 hours to the allegation of Mr. Gbenga Aro that the Appellant connived with him in “Tampering with the trade Debtor Customer Account”. This was the commencement of the inquisition which led to the dismissal of the Appellant.
The grouse of the Appellant is that he was not allowed to confront Mr. Aro at the committee meeting. All he received were letters/queries alleging that Mr. Gbenga Aro had indicted him, why were the duo not brought together to confront each other? Why has Mr. Gbenga Aro, a self-confessed fraudster against the Respondent been turned into a star witness for the Respondent? The learned Counsel for the Appellant refers to Mr. Gbenga Aro as a tainted witness.
In the case of Oluwole Akindipe v. The State (2012) LPELR – 9345 (SC)– the Supreme Court defined a tainted witness as one whose evidence must be corroborated is one who either has an interest to serve or is an accomplice. (See per Onnoghen JSC.)
A tainted witness can be defined as that person who, as a witness is not spontaneous, but is calculating. He has clearly set out a scheme to mislead the court by his answers which are targeted at a desired outcome.
Such a witness most certainly must be watched closely and everything he says must be put to test. In a situation such as this, a tainted witness often speaks out of malice and he pours out venom as lethal as that of a serpent. Such is a witness whose testimony in court must be treated with extra judicial caution and the instrument of corroboration of such a statement should be unimpeachable.
In the instant appeal, Mr. Gbenga Aro is both a tainted witness who has an interest to serve and is a shielded (procured witness).
A witness like Mr. Gbenga Aro, who confessed to stealing the company’s money who has been shown under cross examination to have amassed a lot of wealth, is one whose evidence needs heavy and independent corroboration.
What the learned trial judge held on to as corroboration is a nebulous statement which could mean anything and should most certainly not be a piece of evidence upon which a man’s fate should be decided.
The said statement which was admitted as Exhibit I is hereby reproduced for the purpose of emphasis and the ease of reference. Page 142-143 of the records as follows:-
“from Marketing Manager
To: Ass. General Manager (Administration)
Re: Query Tampering with Trade Debtors Customers’ Account. I deny this allegation. I had extensive discussion with Mr. Aro after our meeting this morning as to what warranted this implication.
The summary was that he said the Northern transporters came to him on Tuesday and accused me of being the behind his travail. That I encouraged and stampeded them to expose him to the Deputy General Manager. He also said some of the Marketing officers told him same.
I believe this is just to indict me for my official activities which was misconstrued.
Thank you.
Olabode Adewunmi.”
The evidence of a tainted witness cannot be effectively corroborated by such tenuous statement which has been demonstrated to be cable of different interpretation. Mr. Olasope of learned Counsel for the Appellant has submitted at page 11 of the Appellant’s brief that the said statement refers to a different scenario.
I cannot help but wonder why the management avoided a direct and joint meeting between the Appellant and Mr. Gbenga Aro? The Appellant was inundated with letters as implicating responses by Mr. Gbenga Aro but was not invited to a meeting where he could meet with Mr. Gbenga Aro in the presence of the management board. Little wonder then that the Appellant has maintained assiduously that he was denied fair-hearing by the management before his employment was terminated. He was only asked to respond to an alleged confession and the production of documents by Mr. Gbenga Aro at a separate inquisition behind the Appellant. The management termed it “further Investigation” Exhibit… Dated ….. This means the Appellant was under investigation and the main source of information was a tainted witness who was officially shielded from the Appellant! The Appellant was therefore denied the opportunity to confront his accuser before the deciding body which was the management committee.
The finding of the learned trial judge that the Appellant failed to cross-examine the DW1 Mr. Gbenga, Aro is made in error and contradicts the facts as clearly evidenced in the record of proceedings. The DW1 was extensively cross-examined by the learned Counsel to the Appellant. Cross-examination at page 76-77 of the records is as follows:-
“Cross examination by Olasope.
I travelled business class once I have only one filling station as at the time I left the employment of the defendant. I had an office in Apata. I bought a franchise of Mr. Biggs in Apata then. The building which Mr. Biggs occupies in Apata belongs to me. I also have a property at Alalubosa GRA which I was constructing then. There is supermarket called Necley’s Supermarket in Oluloye Estate which belong to my wife. The building housing the chemist does not belong to me but to one Mr. Owoade. I paid about six million naira from the National Bank to pay for Mr. Bigg’s franchise. The loan was a debenture secured on the Apata property which I own. I know where the plaintiff lives. It is a rented apartment in Bodija.
I went alone the first time I confessed to the General Manger. I did not give document to the management showing one fraudulent activities. I know a query was also issued to Mr. Adewunmi as a result of some admissions which he made. I did not see the query given to Mr. Adewunmi. The Plaintiff. Now shown to me is Exhibit J. it is the query addressed to the Plaintiff.
My reply to the query issued to me exhibit S I admitted that the fraudulent activities of the two of us involved Eighteen Million Naira.
When I was dismissed from the defendant Company none of my properties were seised. I was not prosecuted.
I remember Mr. Banjoko to whom I sent money through the Plaintiff once- when I travelled abroad. I gave one Million Naira to him. I did not buy any foreign exchange from Mr Banjoko. I was head of sales department in charge of sales of the products.
The Plaintiff was in charge of marketing the products. All the proceeds did not first come to my accounts I now say the proceeds first go to me later I gave him his own share. It was cash that was brought to me. My entitlement when I left the employment of the defendant would have been twenty-two million naira. It is not true that Mr. Adewunmi the Plaintiff was the one who was ask to carry out the exercise that led to the discovery of tampering with trade debtors’ account. Both of us were given the mandate to carry out the exercise and when the general manager noticed that he was not receiving enough reports from us he-Chief Dokpesi the DGN took over the exercise from us.
Both myself and the plaintiff distributed the forms which were used for the exercise.
It is not true that only Mr. Adewunmi was mandated to carry out the exercise, but I have a similar letter/instruction sent to me.
That will be all for the witness.”
Part of the averment’s of the Defendant in the statement of defence at page 26-27 of the records paragraphs went as follows:-
“12. The defendant company immediately issued a query to MR. GBENGA ARO the senior manager of the defendant company. A copy of the said query will be relied upon at trial.
15. The reply of the senior sales manager indicted the plaintiff to the extent that both in concert fraudulently tampered with the trade debtor’s accounts. The defendant shall at trial rely on the said letter.
16. The Plaintiff was pursuant to this disclosure Issued with a query to explain his own side of the allegation. The defendant shall at trial rely on a copy of the said query and give the Plaintiff notice to produce the original.
17. Both the Plaintiff and MR. GBENGA ARO the senior sales manager in the defendant company were made to confront each other and with some facts available by MR. GBENGA ARO showing clearly that both the Plaintiff and the senior sales manager were sharing proceeds realized from this criminal deal. The defendant shall at trial rely on all documents, cheques, statement of account of MR. GBENGA ARO showing all transfers to the plaintiff’s account.
25. The defendant states that from the investigation carried out both the plaintiff and the senior sales manager have been perpetuating this fraud years before it was finally discovered.
27. The defendant gave the plaintiff all opportunities to state the side of his story and gave due consideration to his response both to the query issued him and open confrontation between the plaintiff and MR. GBENGA ARO the senior sales manager.”
All of the Respondent’s statement of defence, particularly paragraphs 17, 25 & 27 aver that the Appellant and DW1, Mr. Gbenga Aro are made to confront each other
“with some facts made available by Mr. Gbenga Aro showing clearly that both the Plaintiff and the senior sales manager were sharing proceeds realized from the criminal deal. The defendant shall at the trial rely on all documents, cheques, statements of account of Mr. Gbenga Aro showing all transfers to the plaintiff’s account…”
The details of the confrontation as to the date, time and venue are not stated which omission confirm the case of the Appellant that he was not given an opportunity to confront his accuser.
The Appellant adduced evidence to show that the DW1-Mr. Gbenga Aro was an unreliable witness. The numerous side businesses of the witness were listed as evidence of his flamboyant life style as opposed to the thrift life style of the Appellant.
The learned trial Judge turned a blind eye to all these facts and found the evidence of Mr. Gbenga Aro more reliable than that of the Appellant. No evidence was adduced to challenge nor deny the DW1’s extra possessions. None was adduced to contradict the Appellant’s austere life style.
Page 118-Lists side businesses of Mr. Gbenga Aro who made the Appellant believed that the sources of money Mr. Gbenga Aro gave him to transmit for his building were genuine. Those businesses were listed at page 118 (a) of the judgment of the trial court. They are:-
“1. Mr. Biggs at Apata which he knows Mr. Gbenga Aro had to put down N12, 000.000 (Twelve Million Naira) cash before he got loan from the National Bank
2. Another Mr. Biggs in the offing at Mokola.
3. A petrol station at Osogbo
4. Several building properties.
5. Supermarket with Mr. Gbenga Aro’s wife called Nelleys at Oluyole Estate which building was bought by them”
In view of these omissions, the decision of the learned trial Judge is perversed. The dismissal of the Appellant was wrongful.
The decision of the learned trial Judge is hereby set aside in part. His lordship was however correct in holding that the relationship between the Appellant and the Respondent is that of master and servant. It follows therefore, that the reliefs
(a) Declaration that the purported dismissal of the plaintiff from the employment of the defendant is irregular, unlawful, illegal, unfair, unconstitutional, null and void and of no effect whatsoever.
(b) An order reinstating the Plaintiff to his employment as the senior manager (Marketing).
(c) Injunction restraining the defendant from publishing a disclaimer notice or any other notice whatsoever in the national newspapers, are unenforceable against the Respondent not, being reliefs available in a master and servant relationship. (See Osisanya v. Afribank Plc (2007) All FWLR (Pt.360) 1480 @ 1492 where the Supreme Court per Katsina-Alu held that:-
“…that in a matter of master/servant relationship, a dismissal of the employee by the employer can not be declared null and void and of no effect whatsoever. The employees remedy is in damages where the termination of the employment/dismissal is held to be wrongful…”
This court cannot also make an order requiring the Respondent to pay the Appellant his salaries and entitlement till age 60 years, the employment not being one with a statutory flavor. Further and better still, the Appellant is an able bodied man who can either gainfully employ himself or find another viable employment else where.
I have found that the dismissal of the Appellant is wrongful for reasons already stated. The Appellant is therefore entitled to damages for the hasty dismissal without an opportunity to confront his accuser (see Olatunbosan v. NISER (1998) 3 NWLR (pt. 80) @ 25).
The decision of the learned trial Judge is hereby set aside except in term of the award made to the Appellant refunding his contribution to the Housing and Pension Schemes.
There is uncontroverted evidence before the trial court that the Appellant earned a total of three million, one hundred and forty-four thousand seven hundred and fifty naira (N3, 144,750.00). By the exhibit R, the Appellant is entitled to one month salary in lieu of notice. If the sum of N3, 144,750.00 is divided into the 12 months which make up an annum, the Appellant is entitled to the sum of two hundred and sixty-two thousand, sixty-two naira fifty kobo (N262, 062.50) (Exhibit R) in lieu of notice. It is accordingly hereby ordered that the Respondent pays to the Appellant forthwith, the sum of two hundred and sixty-two thousand, sixty-two naira fifty kobo (N262, 062.50) (Exhibit R). The Respondent shall also pay to the Appellant, the sum of two hundred and sixty-two thousand, sixty-two naira fifty kobo (N262, 062.50) as compensation for the wrongful dismissal. The Respondent shall also pay in damages 5% interest of the Appellant’s one month salary from the date of his wrongful dismissal until the date judgment was delivered in this court.
A cost of N30, 000.00 is awarded to the Appellant against the Respondent.
It is hereby so ordered.
CHIDI NWAOMA UWA, J.C.A.: I have read in draft the judgment just delivered by my learned brother M. B. DONGBAN – MENSEM, J.C.A.
I agree with the decision and abide by the orders made as to costs therein.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the benefit of reading in draft, judgment of my Lord Monica Bolna’an Dongban-Mensem J.C.A. I agree with the conclusion reached.
Appearances
Oladipo Olasope Esq. with A. A. Momoh Esq. For Appellant
AND
Olanrewaju Osinaike with Temitope Oyeyemi For Respondent
