OMAGBEMI v. FBN (2021)

OMAGBEMI v. FBN

(2021)LCN/15515(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, May 07, 2021

CA/E/487/2016

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EMMANUEL ORITSE GBUBEN OMAGBEMI APPELANT(S)

And

FIRST BANK OF NIGERIA RESPONDENT(S)

 

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court of Nigeria, sitting in Enugu coram Hon. Justice R. B. Haastrup delivered on 26th June, 2014 dismissing the claimant’s claim.

The appellant before this Court was the claimant before the trial Court while the respondent herein was the defendant. The claims of the claimant now appellant was that since his summary dismissal by the respondent is outside the purview of the Employees Handbook which is the contractual document, the said dismissal is ultra –vires, illegal, null and void and of no effect whatsoever. In paragraph 46 of the statement of fact at pages 16 and 17 of record of appeal, appellant prayed for the following reliefs before the trial Court: –
1. Declaration that the 36 months suspension is illegal, inhuman and contrary to Employee Hand book (Exhibit “A”) and again preposterous.
2. Declaration that the suspension and dismissal of the claimant is contrary to the Employee Handbook and therefore illegal, null and void and of no effect.
3. Declaration that the claimant is entitled to all the benefit due to him with the defendant.
4. An order of the Court to nullify the dismissal meted out on the claimant or in the alternative an order of Court converting the dismissal of the defendant to retirement.
5. An order of Court on the defendant to pay to the claimant all accrued benefits due to the claimants which is N163,782,621.29 as special and general damages and 10% of the judgment sum till the entire amount is paid up.
SPECIAL DAMAGES
1. Half salaries from July 2010 to February 2012 = N183,266.88 for one month.
Half salary for 18 months = 18 + N183,266.83 = N3,298,803.84.
2. Retirement benefits for 35 years = N25% of N4,398,405.12 = N1,099,601.28.
3. Gratuity for 35 years = N3,100,000.00
4. Annual leave for 2010, 2011 and 2012 = N120% of N4,398,405.12 = N527,808.16 = N1,583,425.84.
5. Pension fund as at 31st March, 2012 = N4,800,703
N3,298,803.84
+ N1,099,601.28
+ N3,000,000.00
+ N1,583,425.84
+ N4,800,790.33
TOTAL OF SPECIAL DAMAGES = N13,782,621.29
GENERAL DAMAGES FOR WRONGFUL DISMISSAL = N100,000,000.00

SPECIAL DAMAGES FOR WRONGFUL DISMISSAL = N13,782,621.29
GENERAL DAMAGES FOR WRONGFUL SUSPENSION = N50,000.000.00
SUM TOTAL = N163,782,621.29
10% of the judgment debt from the date of judgment till payment.

The facts leading to this appeal may be summarized thus: the appellant herein was employed on 1st February, 1977, and eventually rose to the rank of Manager in the respondent’s employment after series of promotions. He was summarily dismissed from the services of the respondent with immediate effect on 30th January, 2012 for gross misconduct namely: granting unauthorized overdrafts to customers. He challenged his dismissal at the trial Court contending that same is outside the purview of the employee’s handbook/tendered as Exhibit “CWIC” and therefore illegal, null and void, and of no effect whatsoever.

At the trial, the appellant testified as CW and the respondent also called a witness as DW. At the conclusion of the trial and in a reserved and considered judgment delivered on 26/6/2014, the trial Court dismissed the claims on the ground that the appellant was properly dismissed by the respondent. Dissatisfied, the appellant approached this Court through a notice of appeal filed on 15/7/2014. The said notice of appeal contains Eight (8) grounds of appeal at pages 210 – 221 of the record of appeal.

On the 18th day of February, 2021, date of hearing, learned counsel for the appellant, L. C. Izuogu adopted the brief of argument of the appellant filed on 5/5/2017 in which six issues were formulated for determination as follows: –
1. Whether the Court was right to dismiss the case when unauthorization has not been proved by the defendant?
2. Whether it was right to hold that employment condition reduced into a document between appellant and defendant is not that of statutory flavour.
3. Whether suspensions which is not in compliance with the handbook which is the governing document between the appellant and defendant is not illegal?
4. Whether dismissal which is not in compliance with the handbook which is the governing document between the appellant and defendant is not illegal?
5. Whether from the pleadings and evidence, it is right to find on an issue neither pleaded nor adduced in evidence?
6. Whether evidence of appellant which is not traversed nor subjected to cross-examination is not deemed admitted?

Learned counsel for the respondent, U. D. Maurice Esq., adopted the brief of argument of the respondent filed on 1/2/2019 but deemed filled on 18/2/2021 and in turn formulated three issues for determination thus:
1. Whether the allegations against the appellant was such that warrants his dismissal under the provisions of Exhibit “CWIC” as held by the trial Court?
2. Whether the trial Court was right in holding that the employment condition reduced into a document (Exhibit “CWIC”) is not that of statutory flavour?
3. Whether the trial Court was right in dismissing the case when unauthorization of the loans has not been proved by the Bank?

Upon careful consideration of the above formulations vis-à-vis the record of appeal, the three issues of the respondent are preferred for being brief and concise. Even then, the second issue of the respondent can conveniently be subsumed into the first issue. I shall therefore utilize the respondent’s first and third issues in the determination of this appeal.
ISSUE ONE
​Whether the allegation against the appellant was such that warrants his dismissal under the provisions of Exhibit CWIC as held by the trial Court.

Learned counsel for the appellant contended that the respondent having agreed that the handbook Exhibit “CWIC” is the document governing its relationship with appellant and thus the guidelines therein must be strictly complied with in the appointment and discipline of its staff. Counsel submitted that the relationship between the appellant and the respondent has statutory flavor and not master servant relationship as erroneously held by the trial Judge. He cited and relied on the decision in C.B.N. V IGWILLO (2007)147 LRCN 913 at 931.

It was also contended that the mode of suspension is spelt out in item 14.4 at page 5, Exhibit “CWIC” and so also the period of suspension. Counsel submitted that the offence for which the appellant was suspended is not founded in the said item 14.4 of Exhibit “CWIC” and it is also wrong to suspend the appellant more than once on an issue. Thus, the suspension of appellant according to the learned counsel being an aberration of Exhibit “CWIC” is illegal.

Counsel submitted further that in view of the offences and penalties listed in item 14.5 of the Handbook, Exhibit “CWIC”, the offence allegedly committed even if established, does not attracts summary dismissal. He referred to AMAECHI V INEC (2008) 158 LRCN 1 at 44 and U.N.T.H.M.B. V NNOLI (1994) 8 NWLR (prt.363) 404 in contending that the respondent cannot go outside the handbook.

On the part of the respondent, learned counsel for the respondent contended that the allegation of granting unauthorized loans to customers is not only grave and weighty as to undermine the confidence which exist between the employer and employee but it is also injurious to the business of the bank and therefore properly fits in as a gross misconduct whose punishment is dismissal. He relied on clause 5.4 of Exhibit “CWIC”.

On the nature of the relationship between appellant and respondent, counsel submitted that notwithstanding the fact that the trial Court held that same is not one of statutory flavor but the Court strictly followed and complied with the provision of item 5.4 of Exhibit “CWIC” in holding that the appellant’s conduct of granting unauthorized loan is a breach of the credit discipline of the Bank whose punishment is dismissal.

There are various categories of contracts of employment. They are as follows: –
(a) Those regarded as purely master and servant,
(b) Where a servant is said to hold office at the pleasure of the employer, and
(c) Where the employment is regulated or governed by statute often referred to as having statutory flavour.

An employment is said to have a statutory flavour when the appointment and termination or discipline of employee is governed by statutory provision. In other words, where the contract of service is governed by provision of statute or where the condition of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. Such contract of employment has a statutory flavour. See LONGE V F.B.N. PLC (2010) 6 NWLR (prt.1189)1, IMOLOAME V W.A.E.C. (1992) 9 NWLR (prt.265) 303, OLANIYAN V UNIVERSITY OF LAGOS (1985)2 NWLR (prt.9) 599 and SHITTA-BEY V FEDERAL PUBLIC SERVICE COMMISSION (1981)1 SC 40.

In paragraphs 2 – 5 of the statement of facts at page 5 of the record of appeal, appellant averred as follows:-
2. The defendant is a Public Limited Company which is a bank that transacts business with people, sole or corporate and under which the claimant has served till he rose to the level of the branch manager of the defendant.
3. On the February 2012, the defendant served a letter of dismissal on the claimant which letter was dated 30th January, 2012 with reference HCM/C/& ER/HODC 2012/115 and purported it to be in line with the disciplinary procedure of the defendant’s Handbook.
4. The allegation against the claimant was negligence or improper performances of duty in that money given out to customers on loan have not been recovered and that some of such loans were not properly serviced.
5. The offences interpretation and penalties for various offences are set down from pages 52 to 60 of the Employee Handbook dated March, 2007. The said Handbook is annexed as Exh. “AA”.

It is clear from the above that the contract of service in the present case is governed by the Handbook and not governed by the provision of any statute and or regulation derived from statutory provisions. In the case of KWARA STATE JUDICIAL SERVICE COMMISSION V TOLANI (2019)7 NWLR (Prt. 1671) 382, the Supreme Court has held that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are: –
(a) The employer must be a body set up by the Constitution or statute, and
(b) The statute or regulations made pursuant to the Constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.

In the instant case, both the above two ingredients are absent. Unlike in the case of C.B.N. V OHIKU (2020) LPELR – 51274 (CA) and C.B.N. V IGWILLO (supra) cited and relied by counsel on both sides, the regulations contained in the Handbook Exhibit “CWIC” was not derived from any statutory provisions which might have invest the respondent with legal status higher than ordinary one of master and servant.

In effect, the relationship between the parties as rightly held by the trial Court is that of master and servant which is governed by the terms under which parties agree.

Where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed. Ordinarily and consistent with common law principle, the Court will not impose an employee on an employer. Thus, termination of a contract of service even if unlawful brings an end the relationship of master and servant, employer and employee. See GARUBA V K.I.C. LTD & ORS (2005) LPELR – 1310 (SC). Where there is a written contract of employment between master and servant, the duty of the Court is to determine the rights of the parties under the contract.

From the state of pleadings and evidence adduced at the trial, parties are ad idem that the handbook, Exhibit “CWIC” regulates their relationship. The only area of contention is whether the terms are strictly complied with in bringing the relationship to an end. Whereas the appellant contends that it was clause 14.4 that regulates his disciplinary action, the respondent maintained that the allegation leveled against the appellant attracts summary dismissal pursuant to clause 5.4 of the said Handbook. It is pertinent to state here that clause 5.4 of the respondent’s handbook in my view deals with what may be described as a mission or vision of the respondent. The said clause 5 states as follows: –
“The Bank requires that its employees be very proactive, responsive and have a delivery mindset in attending to the needs of its customers.”

Clause 14.4 of the handbook on the other hand deals with suspension while clause 14.5 thereof relates to summary dismissal. For the sake of clarity, clause 14:4 of the handbook provides:
Suspension.
“An employee may be placed on suspension with pay (1/2 basic salary and full housing utility transport allowance and medical facilities). The period of suspension shall range from one month to six months as may be determined and such period shall be recognized determining the length of employment with the bank. Other conditions regarding suspension are:
– If any employee is suspected of dishonesty, or any other serious misconduct, he/she may be suspended from duty for a period of not exceeding six months during which investigation shall be concluded.
– If the investigations are not concluded within six months, the employee shall remain suspended until such a time that investigation are concluded.
– An employee on suspension shall be required to report each working day for 2 hours an official designated by the Bank and shall sign to indicate compliance.
– If after investigations he/she is exonerated, he/she shall be recalled, the balance of his/her basic salary and any other entitlements shall be paid from the date of suspension. If, however the employee is found guilty, he/she shall be dealt with, in accordance with the Bank’s disciplinary procedures.
– If an employee is suspected of a criminal offence by the police, he/she may be suspended accordingly.
14:5 Summary Dismissal.
“An employee may be summarily dismissed for certain acts of gross misconduct or negligence.”

Gross misconduct relates to serious behavior on the part of an employee such as dishonesty, gross negligence, malicious damage, theft etc. In OLATUNBOSUN V NISER (1988) 3 NWLR (prt 80) 24 at 31, the Supreme Court defined misconduct as follows: –
“Under common law and statute law, disobedience of lawful order from any servant, high or low, big or small is viewed with seriousness, such conduct normally and usually attracts the penalty of summary dismissal as disobedience ranks as one of the worst forms warrant (sic) summary dismissal.”
See also SHUAIBU V NIGERIA ARAB BANK LTD (1998) LPELR – 3067 (SC).

I have stated earlier that the relationship of the parties in this case is not governed by statute and the procedure for employment and discipline here is derived from the Handbook, Exhibit “CWIC”. In other words, the employment has no statutory flavour. The respondent’s handbook which regulates their relationship also provides for six months suspension, only where investigation is concluded. And the handbook provides for summary dismissal for certain acts of gross misconduct or negligence of varying degrees. Therefore, the first issue is resolved against the appellant.

ISSUE TWO
Whether the trial Court was right in dismissing the case when unauthorization of the loans has not been proved by the Bank?

The appellant’s contention here is that the respondent having made allegation of granting unauthorized loan which the appellant denied, the respondent has duty to prove the said facts which are within their knowledge. Counsel referred to the averments in paragraphs 10, 13 and 20 of the statement of facts to submit that since by the pleadings and evidence, the respondent could not prove that the loans granted out were unauthorized, there is nothing upon which the appellant could be disciplined.

In response, the respondent contended that it is not the duty of the Bank to prove that the loans were unauthorized but that of the appellant. In aid, counsel relied on Section 132 of the Evidence Act and the cases of GBAFE V GBAFE (1996) 6 NWLR (prt 455) 432 and DASIBEL V ISHAYA (1996)1 NWLR (prt 426) 626 to submit that he who asserts must prove and where the respondent discovered from her records that the loans were unauthorized, and said so, the burden of proof shifts to the appellant to prove that the loans were authorized.

​Counsel submitted further that the appellant failed to discharge the burden of proving that the loans were authorized and thus the trial Court was right in dismissing his claims.

The burden of proof in civil cases has two distinct meanings that is:
(a) The burden of proof as a matter of law and the pleadings usually referred as legal burden of establishing a case.
(b) The burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static, the burden of proof in the second sense that is evidential burden of proof may oscillate constantly accordingly as one scale of the evidence or the other preponderates. Thus, the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice-versa as the case progresses. See ANWADIKE & ANOR V ANWADIKE & ORS (2019) LPELR-46970 (CA).
Sections 131 and 132 of the Evidence Act state:
“131 (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Be it noted that the appellant’s claim as contained in the statement of fact is that the loans given out were not unauthorized, the onus of proof in my view rested on the appellant upon whom the burden to show authorization. The next germane issue is did the appellant discharged that burden? In paragraphs 29 and 33 of the statement of fact, appellant averred that: –
29. The claimant maintains that even upon the explanation in Exhibit “5”, it is clear the allegations begin and ends without following the rules by grating unauthorized overdraft which by the Exhibit “AA” is not a ground for dismissal. The offence falls into item 34 or 28 at pages 59 and 60 of Exhibit “AA” which is punished by a warning letter or compulsory resignation or written caution to the Branch manager and mandate officer. There is no place for dismissal for that said offence in that book Exh. “AA” hence the dismissal is illegal.
33. The claimant maintains that at best the allegation of the defendant falls into negligence (improper performance of duty which falls into offences and penalties) at No. 34 page 59 of the Employee Handbook. The explanation makes it clear that the allegation falls squarely within item 34 in page 59 of the Employee Handbook. The penalty is warning letter or compulsory resignation depending on the degree of the offence.”

The appellant at the trial relied on Exhibit CWIE which is an explanation on granting of unauthorized loans, addressed to the internal Audit team of the respondent’s bank following a query issued to him. The said reply to the query not being tied to any provision of the Employees handbook cannot be regarded as an authorization of the loans. Similarly, the appellant alleges that his dismissal was wrongful and the onus rests squarely on his shoulders. I agree with the trial Judge that the appellant has to show and satisfy the Court from the terms of his employment the way and manner those terms were breached. It is thus a misconception to assume that this burden is shifted to the respondent. The appellant in this present case has failed woefully to prove that the loans he granted were authorized and that he was wrongly dismissed from the employment of the respondent. I therefore cannot but endorse the findings of the learned trial Judge that the appellant was properly dismissed and therefore not entitled to any reliefs claimed. I also resolved issue two against the appellant.

Having resolved all the two issues against the appellant, the result is that the appeal fails and it is accordingly dismissed. The judgment of the trial Court is hereby affirmed. The parties shall bear their respective costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment by my learned brother MUHAMMED LAWAL SHUAIBU, J.C.A. The Appellant, bound by the terms of his contractual employment as in the employees handbook tendered as Exhibit “CWIC” particularly Article 14.5 thereof on summary dismissal, could not have resiled therefrom to transmute into an “Emperor” in the grant of unauthorized loans.
I endorse the reasoning and conclusion in my learned brother’s lead judgment in dismissing the instant appeal as the Appellant could not rebut the presumption of the authorized loans as sought to via Exhibit CWIE.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the judgment just delivered by my learned brother, MUHAMMED LAWAL SHUAIBU, JCA and I agree that the appeal has no merit and should be dismissed.

For the detailed reasons in the judgment, I too dismiss the appeal.

​I abide by all other orders in the judgment including the order as to costs.

Appearances:

L. C. Izuogu For Appellant(s)

M. A. Maurice For Respondent(s)