UBA v. AYANGBADE
(2021)LCN/15715(CA)
In the Court of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, December 15, 2021
CA/YL/67/2021
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA APPELANT(S)
And
YUSUF MOSHOOD AYANGBADE RESPONDENT(S)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL DETERMINES THE COMPETENCE OF AN APPEAL
That the law is trite that the competence of an appeal is hinged on validity of notice of appeal. Therefore if the notice of appeal is not validly issued, then it can be said that no proper appeal has been validly filed. That this is because a notice of appeal being an originating process must be properly and validly issued. That if there is any defect in its issuance, the proceedings therein will affect the jurisdiction of the Court as it cannot be treated as mere irregularity. Learned counsel reiterated that since the notice of appeal is the originating process in all appeals, if it is defective, this Court ceases to have jurisdiction to entertain that appeal. Cited BROAD BANK (NIG) LTD V. ALH. S. OLA YIWOLA & SONS LTD (2001) 6 NWLR {Pt. 710} 742 at 745, IWUNZE V. FRN (2014) 2 {Pt. 1} M.J.S.C. 163 at 166 and NIGERIAN ARMY V. SAMUEL (2014) All FWLR {Pt. 720} 1287 at 1291. Urged the Court to resolve this issue in favour of the Respondent, dismiss this appeal as the Court lacks the requisite jurisdiction to hear and determine same. PER SANGA, J.C.A.
WHETHER OR NOT THE COURT CAN RE-WRITE THE AGREEMENT BETWEEN PARTIES
That it is trite law that the Court cannot re-write the agreement between the parties. Cited OBANYE V. U.B.N Plc (2018) 17 NWLR {Pt. 1648} 373 at 389. That the learned trial Judge was wrong when after refusing the Respondent’s relief (c) which the said Respondent seeking for his salaries and allowances during his suspension, proceeded to award to the same Respondent an unascertained amount. That it is trite law that Courts should desist from issuing vague orders. Cited AYOADE V. SPRING BANK Plc (2014) NWLR {Pt. 1396} 93 at 125 – 126. That based on the admission by the Respondent that he was on suspension and by the provision of Exhibit DA1, he was not entitled to any remuneration from the Appellant for service never rendered while on suspension. Cited SPRING BANK V. BABATUNDE (2011) LPELR -4975 (CA) 21. PER SANGA, J.C.A.
THE STANDARD OF PROOF IN CIVIL CASES
It is trite law that in civil suits the standard proof is on the balance of probabilities or preponderance of evidence. In other words, the Court will examine the evidence adduced by parties before reaching a decision as to which evidence the Court accepts and which it rejects. The evidence shall first be put on the imaginary scale of justice to see which is heavier, not by the number of witnesses called by a party but by the quality or probative value of the witnesses and the evidence they tendered. If the trial Court properly evaluated the totality of evidence laid before it then the appellate Court cannot interfere with that holding. But where the trial Court did not properly evaluate the evidence laid before it by not properly assessing the oral and documentary evidence adduced before it, then the appellate Court is in the same position as the trial Court to reappraise the evidence, ascribe probative value to it, weigh it on the imaginary scale of justice to determine the party in whose favour the weight of evidence tilts. See CHIEF FALADE ONISAODU & ANOR V. CHIEF ASUNMO ELEWUJU & ANOR (2006) LPELR – 2687 (SC), CHIEF SALAMI OLATUNDE & ANOR V. SALAMI AFOLABI ABIDOGUN & ANOR (2001) 18 NWLR {Pt. 746} 712 at 723, DANIEL BASSIL & ANOR V. CHIEF LASIS FAJEBE & ANOR (2001) 11 NWLR {Pt. 725} 592 at 608 – 609. PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The respondent as claimant filed Suit No. NICN/YL/03/2016 before the National Industrial Court of Nigeria, Yola Judicial Division, N. C. S. Ogbuanya J., presiding against the appellant as Defendant via an endorsed Writ of Summons and a Statement of Facts Establishing the Cause of Action both of which are dated 19th February, 2016 seeking for the following reliefs: –
A. A declaration that the suspension and purported dismissal of the claimant by the Defendant is wrongful, unwarranted, illegal, unconstitutional, null and void.
B. A Declaration that the employment of the claimant is valid and subsisting until same is validly determined by the Defendant.
C. The sum of N28,621,734.73… being the accrued earnings and entitlements from the Defendant as at 31st December, 2014.
D. 10% interest per annum commencing from February, 2013 till judgment and 10% interest per annum from judgment till liquidation.
E. The sum of N2,500,000.00 being legal expenses incurred by the claimant to recover the above-stated debt from the Defendant.
F. The cost of this Suit. (pages 1 – 9 of the Records).
The Defendant filed a Statement of Defence dated 11th July, 2016 containing 24 paragraphs wherein it denied liability by traversing the pleadings by the claimant seriatim at pages 34 – 37 of the Records. The claimant front loaded his testimony as a witness statement on oath at pages 11 – 16 of the Records. The Defendant also filed a written statement on oath of one Usman Olalekan its staff who testified as DW1 at pages 39 – 41 of the Records. Parties also filed their respective list of documents to be relied upon during trial.
With leave of the lower Court, the claimant amended his Writ of Summons and Statement of Facts on 13th January, 2017 wherein he added one relief thus: –
The sum N5,000,000 (Five Million Naira) being damages for wrongful suspension/dismissal of the claimant at page 145 of the record of appeal.
The matter went to trial. On 3rd November, 2017, the claimant entered the witness box and testified as CW1. Having adopted his written deposition on oath, he tendered the documents listed in the claimant’s list of documents dated 13/1/2017 at page 158 of the records without objection as follows: –
1. Claimant’s letter of employment dated 24/12/1999 – Exhibit CA1.
2. Claimant’s letter of confirmation of Appointment dated 21/1/2002 – Exhibit CA2.
3. Claimant’s letter of transfer dated 05/03/2010 – Exhibit CA3.
4. Claimant’s letter of promotion dated 29/2/2015 – Exhibit CA4.
5. Claimant’s Solicitor’s Letter dated 6/2/2015 – Exhibit CA5.
6. Reply letter from the Defendant to the claimant’s solicitor’s dated 6/3/2015 – Exhibit CA6A.
7. Claimant’s dismissal letter dated 3/5/2013 – Exhibit CA6B.
8. Defendant’s letter captioned: “Human Capital Management Head Office Annual Leave”; dated 23/1/2009 – Exhibit CA7.
CW1 was then cross-examined by his counsel who closed the Claimant’s case. (pages 305 – 308 of the Records).
On 9th November, 2017 Mr. Usman Olalekan the Area Control Officer, Yola Branch of the Defendant entered the witness box and testified for the Defendant as DW1. He also adopted his written deposition on oath dated 11/7/2016 and tendered four documents in evidence, without objection by the Claimant’s counsel, and they were marked as follows: –
1. Defendant’s HR Disciplinary Process and Policy 2010 – Exhibit DA1.
2. Minutes of Regional Bank Disciplinary Process and Policy 2010 – Exhibit DA2.
3. Minutes of the Corporate Office Disciplinary Committee dated 28/6/2013 – Exhibit DA3.
4. Claimant’s Dismissal Letter written by the Defendant dated 3/5/2013 – Exhibit DA4.
DW1 was then cross-examined by learned counsel to the Claimant and re-examined by his counsel who closed the Defendant’s case. (pages 310 – 314 of the Records).
Final written addresses were ordered to be filed and exchanged by the learned trial Judge and same were adopted on 13/4/2018. The learned trial Judge reserved judgment to a date to inform parties via hearing notice.
Judgment was delivered on 6th July, 2018. (The entire judgment is at pages 321 to 353 of the record of appeal). The learned trial Judge meticulously and fastidiously considered and evaluated the gamut of evidence adduced during trial and reached the following decision: – “For clarity and avoidance of doubt, the terms of this Judgment are as follows: –
1. For the reasons advanced in the body of the judgment, the Claimant’s Relief (a) succeeds to the extent that the Claimant’s dismissal by the Defendant is hereby declared wrongful. Consequently, I hold that the Claimant is entitled to be reimbursed full payment of his withheld salaries and entitlements from February, 2013 to March, 2015, being the period covered by the suspension pending investigation and when he became aware of his subsequent wrongful dismissal. Defendant is hereby ordered to compute and pay to the Claimant his said entitlements, within two months from this judgment.
2. For reasons advanced in the body of the judgment, the Claimant’s Reliefs (b), (d), (e) and (g) are unsuccessful, and are hereby discountenance and dismissed.
3. For reasons advanced in the body of the judgment, the Claimant’s claim for accrued debt in the sum of N12,998,068.73… as at February, 2013 the Claimant was suspended by the Defendant, as part of the total sum of N28,621,734.73…. being claimed by the Claimant as his accrued earnings and entitlements since his suspension as per Relief (c) fails is hereby dismissed.
4. For the reasons advanced in the body of the judgment, the Claimant’s Relief (f) succeeds to the extent that the sum of N2,000,000.00.. damages is hereby awarded in favour of the Claimant against the Defendant for the wrongful dismissal. The Defendant is hereby ordered to pay same to the Claimant, within two months from this judgment.
5. All sums due and ordered to be paid shall be paid within two months of this judgment. Otherwise, any default shall attract 10% interest rate per annum until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.”
The Defendant was aggrieved by this decision so with leave of this Court it filed Notice of Appeal dated 17/7/2018 containing five grounds of appeal. An appeal number CA/YL/13/2019 was assigned to the notice of appeal. The Appellant then applied before the lower Court for an Order of Conditional Stay of Execution of its judgment delivered on 6th July, 2018 pending hearing and determination of the appeal. On 5/10/2018, the lower Court heard the motion for stay of execution and granted same with and order that the Appellant shall pay the judgment sum into an interest yielding account in the name of the Registrar of the lower Court pending the determination of appeal. In compliance with this order, the appellant paid into account No. 3002578892 UBA Plc, Yola Main Branch the sum of N15,611,103.74 in November, 2018 thus securing the res.
Pursuant to a motion filed by the Appellant on 28/2/2019 in Appeal No. CA/YL/13/2019, the original notice of appeal dated 17/7/2018 was struck out by this Court on 1/4/2019 for being incompetent. However, the appellant was granted leave and extension of time to appeal. On 5/4/2019 the Appellant filed Appeal No. CA/YL/106/2019. However, during hearing of the appeal (briefs having been filed and exchanged) the Respondent raised a preliminary objection to the competence of the appeal. This Court in its judgment delivered on 27/11/2020 upheld the objection and consequently struck out the appeal again. Undaunted, the Appellant filed an application on 30/11/2020 before this Court urging it to grant to it leave and extension of time to appeal. In its ruling delivered on 30/3/2021, this Court granted the application and issued an order for extension of time by 14 days to the Appellant to appeal the decision by the lower Court in Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayagbade V. United Bank for Africa Plc delivered on 6/7/2018. Leave was also granted the Appellant to appeal. (pages 370 – 371 of the record of appeal). Records of appeal were compiled and transmitted to this Court on 5th July, 2021.
The Appellant’s brief was filed on 23/7/2021. It was prepared by Chief Leonard Daniel Nzadon. Learned counsel formulated three issues for determination as follows: –
1. Whether the trial Court was not wrong when it held that compliance with Exhibit A is not condition precedent for the actuation of its jurisdiction and that the cause of action had arisen at the time the Respondent commenced this action before the trial Court (Ground 2).
2. Whether from the totality of the evidence before the trial Court was not wrong (sic) in holding that the Respondent had proved his case. (Grounds 1 and 3)
3. Whether the trial Court was not wrong in awarding to the Respondent an unascertained amount as is salaries and allowances having regard to its earlier finding that the Respondent did not prove his case to be entitled to his relief (c) sought for payment of his salaries and allowances to the tune of N28,621,734.73 during his suspension. (Grounds 4, 5 and 6)
The Respondent’s brief was settled by J. Olu Adebambo Esq. It was filed on 23rd August, 2021. Learned counsel to the respondent also filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016. The objection by the Respondent is premised on the following grounds: –
1. This Appeal No. CA/YL/202/2021 was filed during the pendency of Judiciary Union of Nigeria (JUSUN) nationwide strike when all Courts in Nigeria, including the National Industrial Court of Nigeria. (lower Court) were shut down.
2. That the Registrar of the lower Court could not validly and legally receive and endorse Court processes including the Notice of Appeal in this appeal during the period of JUSUN Nationwide strike between 6th April, 2021 to 14th June, 2021 when the Registry of the lower Court was shut down.
3. The Registrar of the lower Court who received and endorsed the notice of appeal on 6th April, 2021 for filing, lacks the competence and legal capacity to do so having regard to the fact that he is a member of JUSUN on strike and the provisions of Section 47(1) of Trade Union Act.
4. This Hon. Court has issued the Practice Direction (No. 1) 2021 exempting filing of Court processes including the Notice of Appeal dated 6th April, 2021 during the period of JUSUN Nationwide strike.
5. That this appeal is an abuse of Court process as this is the 3rd time the appellant/respondent would maintain or file defective notice of appeal in Suit No. NICN/YL/03/2016.
The Respondent urged the Court to strike out and/or dismiss this appeal for want of competence and for being an abuse of Court process.
Learned counsel to the Respondent encompassed and argued the notice of preliminary objection in their brief pf argument. He argued same as issue 1 at paragraphs 4.00 to 4.05 i.e. pages 4 to 5 of their brief of argument. Thus the respondent’s brief contained five (5) issues for determination as follows: –
1. Whether this appeal is not competent having regard to the fact that the Notice of Appeal was filed during the period of Judiciary Staff Union of Nigeria JUSUN Nationwide Strike on 6th April, 2021 and receipted on 7th April, 2021. (Distilled from the Respondent’s Notice of Preliminary Objection).
2. Whether the cause of action has not arisen when the claimant/respondent commenced this suit? (Ground 2)
3. Whether the dismissal of the claimant/respondent by the defendant/appellant is not wrongful? (Ground 3)
4. Whether the judgment/decision of the trial Court is perverse and not supported by the evidence before the Court? (Grounds 1 and 6)
5. Whether the judgment/order of the trial Court is not ascertainable? (Ground 5).
Chief Nzadon of counsel to the Appellant filed a Reply Brief on 14th July, 2021 wherein he countered the Respondent’s preliminary objection at paragraph 2.00 (page 2) to paragraphs 2.21 (page 12) of the said reply brief. Learned counsel to the Appellant also filed a counter-affidavit to the Respondent’s notice of preliminary objection on 30th September, 2021 containing 16 paragraphs and a list of additional authorities also dated 30/9/2021.
On 25th October, 2021 when this appeal was called up for hearing parties were absent. Learned counsel to the parties while adopting their respective briefs called this Court’s attention to the Respondent’s notice of preliminary objection. Mr. Adebambo of counsel to the respondent moved the Court in terms of their preliminary objection filed 27/9/2021. He submitted that they have argued same as issue 1 in their Respondent’s brief and urged the Court to uphold the arguments contained therein and strikeout or dismiss this appeal. Chief Nzadon for the Appellant responded that they have countered the Respondent’s preliminary objection at pages 2 – 12 of their reply brief, adopted same as their argument and urged the Court to dismiss the preliminary objection for lack of competence. He also called our attention to the counter-affidavit and list of additional authorities filed on 30th September, 2021.
Learned counsel to the Appellants then adopted their brief of argument filed on 23/7/2021 and reply brief filed on 14/9/2021 and urged the Court to allow this appeal and set aside the judgment of the trial Court delivered on the 6th July, 2018.
Adebambo Esq., learned counsel to the Respondents also adopted their submission in the Respondent’s brief filed on 23rd August, 2021 and urged the Court to dismiss this appeal and affirm the decision by the trial Court delivered on 6th July, 2018.
NOTICE OF PRELIMINARY OBJECTION
I have stated above that learned counsel to the Respondent argued their preliminary objection in their brief of argument under issue 1 which is: –
Whether this appeal is not incompetent having regard to the fact that the Notice of Appeal was filed during the period of JUSUN National Strike on 6th April, 2021 and paid for on 7th April, 2021.
In his submission, while arguing this issue learned counsel to the Respondent urged the Court to strike out this appeal for being incompetent as the notice of appeal filed in this Court on 7th April, 2021 was filed during the notorious Judiciary Staff Union of Nigeria (henceforth to be referred to as JUSUN) strike that commenced on 6/4/2021 and called off on 14/6/2021 during which all Courts in Nigeria were shut down. Learned counsel cited and quoted Section 47(1) of the Trade Union Act which defines “ceasation of work” and “refusal to continue to work”. That it is clear that there was “ceasation of work” and “refusal to continue to work” by all Staff of JUSUN between 6th April, 2021 to 14th June, 2021. Thus the Registrar of the lower Court being a member of JUSUN did not have the required competence to endorse or issue the Notice of Appeal on 6/4/2021 and lacks the capacity to receive payment and issue receipt of filing the said notice of appeal on 7/4/2021. That the President of this Court taking judicial notice of the JUSUN Strike issued a Practice Direction on the 11th June, 2021 exempting the filing of all Court processes and payments for the period of JUSUN Strike.
That the law is trite that the competence of an appeal is hinged on validity of notice of appeal. Therefore if the notice of appeal is not validly issued, then it can be said that no proper appeal has been validly filed. That this is because a notice of appeal being an originating process must be properly and validly issued. That if there is any defect in its issuance, the proceedings therein will affect the jurisdiction of the Court as it cannot be treated as mere irregularity. Learned counsel reiterated that since the notice of appeal is the originating process in all appeals, if it is defective, this Court ceases to have jurisdiction to entertain that appeal. Cited BROAD BANK (NIG) LTD V. ALH. S. OLA YIWOLA & SONS LTD (2001) 6 NWLR {Pt. 710} 742 at 745, IWUNZE V. FRN (2014) 2 {Pt. 1} M.J.S.C. 163 at 166 and NIGERIAN ARMY V. SAMUEL (2014) All FWLR {Pt. 720} 1287 at 1291. Urged the Court to resolve this issue in favour of the Respondent, dismiss this appeal as the Court lacks the requisite jurisdiction to hear and determine same.
In replying to this submission on issue 1 canvassed by learned counsel to the respondent, learned counsel to the appellant argued that:
A. Respondent cannot distil an issue for determination outside the grounds of appeal couched by the appellant. Cited NIGERIAN COMMUNICATION COMMISSION V. MOTOPHONE LTD & ANOR (2019) LPELR -47401 (SC). That the respondent neither filed a Cross-Appeal nor a Respondent’s Notice to grant him leave to raise issues outside the grounds of appeal already raised by the Appellant.
B. That if the Respondent wanted to challenge the competence of the Notice of Appeal, the proper procedure is to file a Notice of Preliminary Objection to that effect. Urged the Court to strike out this issue for lack of competence.
C. As for filing the Notice of Appeal during JUSUN Strike learned counsel to the Appellant submitted that it is this Court that granted leave to the Appellant to appeal giving them 14 days from 30/3/2021 to file their Notice of Appeal. That the Appellant obeyed the orders of this Court. That it is settled that orders of Court must be obeyed. Cited: A. G. ANAMBRA V. A.G. FRN & ORS (2005) LPELR -13 (SC).
D. That it is trite law that he who assert must proof. Cited GBADAMOSI V. JULIUS BEGER (NIG) LTD (2021) 5 NWLR {Pt. 1770} at 448. That the respondent who alleged that as at the date the Notice of Appeal was filed JUSUN was on strike and the registry of the National Industrial Court of Nigeria, Yola Division was shut down is duty bound to proffer evidence to prove this assertion. That it is trite law that findings of facts or conclusion arrived at by the Court must be based on solid evidence adduced before it or apparent on the records and not on mere speculation, possibilities, assertions or conjectures. Cited MINISTER OF INTERNAL AFFAIRS & ORS V. OKORO & ORS (2003) LPELR -7264 (CA) at 17 – 18.
That the respondent failed to present any evidence before the Court for the grant of this relief. Urged the Court not grant it.
E. Presumption of regularity as provided by Section 168(1) of the Evidence Act. That if there is no evidence to the contrary all acts carried out by an official are presumed to have been rightly and properly done, as expressed in the Latin Maxim: OMNIA PRAESUMUNTUR SOLEMNITER ESSE ACTA. Cited: OYEDELE V. ODUMOSU (2016) LPELR 41441 (CA) at 29.
F. That it is trite law that a litigant should not be made to suffer for the sin or mistake of the Court or its Registry. Cited EDE & ANOR V. MBA & ORS (2011) LPELR -8234 (CA) at 33 – 35.
G. That the current trend in adjudication is for the Court to do substantial justice to the parties before it at any given time and not allow technicalities however attractive to defeat the ends of justice. Cited EZE V. FRN (2017) LPELR -42097 (SC) at 20 – 21. That it is better to hear and decide a matter based on its merit than filing of objections that do not go to the substance of the appeal. Cited IBAKU V. EBINI (2010) 17 NWLR {Pt. 1222} 286 at 311. Learned counsel urged the Court to dismiss issue 1 of the respondent’s brief as it is incompetent.
FINDING ON PRELIMINARY OBJECTION
Order 10 Rule 1 of the Rules of this Court, 2016 provides thus: –
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with the registry within the same time.”
Preliminary objection is a special procedure whereby the respondent contests the competence of a suit and jurisdiction of the Court to hear and determine the suit. If upheld, it has the effect of terminating the life of the suit by its being struck out. In CHIEF EMMANUEL OSITA OKEREKE V. ALHAJI UMARU MUSA YAR’ADUA & ORS (2008) LPELR -2446 (SC), the apex Court per TABAI, JSC held at pages 46 – 47 thus: –
“A motion by which a Respondent challenges the competence of a suit and thus the jurisdiction of the Court, (otherwise called a Notice of Preliminary Objection) is a special procedure whereby the Respondent contests the competence of suit and jurisdiction of the Court and if upheld has the effect of terminating the life of the suit by its being struck out. See GALADIMA V. TAMBAI (2000) 6 SCNJ {Pt. 1} 196 at 207; (2000) 11 NWLR {Pt. 677} 1.”
See also CHIEF YAKUBU SANI V. OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL & ANOR (2008) LPELR -3003 (SC) per TOBI, JSC.
On the other hand, an issue raised on appeal, (as in this instance) is usually raised by way of question, it is a preposition of law or fact in dispute between the parties, necessary for the determination by the Court, a determination of which will normally affect the result of the appeal. See HON. JUSTICE C. C. NWAOGWUGWU V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS (2007) LPELR – 4254 (CA) per ADEKEYE, JCA (as he then was).
An issue must be derived or framed from the ground of appeal and the argument canvassed therein must be reconciled with the issue. In GABRIEL EMAIKWU ADAH V. JOHN OKOH ADAH (2001) LPELR – 68 (SC), the apex Court held thus: –
“… it is necessary to argue issues which have been framed from grounds of appeal rather than the grounds of appeal themselves. But in order to have the desired results, the issues formulated for the determination of an appeal must be based on the grounds or grounds of appeal filed by the parties. In other words, the issues must encompass the grounds of appeal otherwise any argument in support of an issue not adequately backed by a ground or grounds of appeal will be discountenanced and struck out by the Court. The authorities on this are legion, very clear and instructive. See Kano State Urban Development Board V. Fanz Construction Co. Ltd. (1990) 4 NWLR {Pt. 142} 1 48 – 49; Ayanboye V. Balogun (1990) 5 NWLR {Pt. 151} 392 at 404, Momodu V. Momoh (1991) 1 NWLR {Pt. 169} 608 at 621, Idise V. Williams International Ltd. (1995) 1 NWLR {Pt. 370} 142 at 150, Cross-River State Newspaper Corporation V. Oni (1995) 1 NWLR {Pt. 371} 270 284 – 285 …” per UWAIFO, JSC at pages 11 – 12.
The apex Court has spoken.
Learned counsel to the Respondent ought to know that a notice of preliminary objection is a special procedure that challenges the competence of a suit and/or the jurisdiction of a Court to hear and determine the suit, while an issue must emanate or be framed from ground(s) of appeal, yet he went ahead and canvassed issue 1 from a notice of preliminary objection rather than a ground or grounds of appeal. I have no option than to discountenance and strike out issue 1 formulated by the Respondent for being incompetent as held by the Supreme Court in ADAH V. ADAH (Supra). Therefore the said issue 1 formulated by the Respondent from a notice of preliminary objection is discountenanced and is hereby struck out. This appeal shall be considered and determine on its merits rather than on technicalities. Since the apex Court has made its pronouncement on this issue. I am bound to abide by it by virtue of the doctrine of stare decisis.
THE APPEAL:
In determining this appeal, I will consider the entire submission by learned counsel on issues canvassed then pronounce my decision on each issue seriatim. Issue 1 formulated by the Appellant is: Whether the trial Court was not wrong when it held that compliance with Exhibit A is not a condition precedent for the activation of its jurisdiction and that the cause of action had arisen at the time the Respondent commenced this action before the trial Court.
In his submission, while arguing this issue, learned counsel to the appellant gave the background facts that led to framing ground 2 of the notice of appeal upon which this issue was formulated. That during trial at the lower Court the appellant as defendant filed a notice of preliminary objection on 3rd March 2017 seeking an order by the trial Court to strike out or dismiss the suit for want of jurisdiction on the ground that the said suit filed by the respondent was premature because he did not exhaust the internal dispute resolution mechanism which he assented to before accepting the terms of his employment with the Appellant. The dispute resolution agreement was tendered in evidence during hearing before the lower Court and marked as Exhibit A. The preliminary objection was considered by the lower Court and by mutual consent of the parties the learned trial Judge reserved ruling to be delivered together with the Judgment. In his judgment at page 337 of the records, the learned trial Judge overruled the objection by the Appellant thus giving rise to framing of ground 2 of the notice of appeal from which this issue was formulated.
It is the contention by the Appellant that the lower Court was wrong when it overruled the notice of preliminary objection. That since there is a provision for dispute resolution prior to commencing the civil suit and same was not observed, then this suit is premature as a condition precedent was not observed. That the ability of a Court to adjudicate over a matter is a sinequa non for its jurisdiction. That where there are mandatory provisions as to how an aggrieved ex-employee is to pursue a remedy for a perceived wrong, same must be complied with. Cited the locus classicus on jurisdiction i.e. MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.
That before a Court can assume jurisdiction over a matter a party must first exhaust all conditions precedent and internal remedies available to him or else the instituted case is dead on arrival. That the internal remedies are put in place as safeguards to give the Appellant an opportunity to retrace its steps if the fault is its own rather than delving into litigation. Cited UNILORIN V. AKINOLA (2007) 17 NWLR {Pt. 1064} 547 at 586 – 587. That the Respondent’s option of resorting to the internal mechanism is as contained in the UBA GROUP STAFF HANDBOOK: Policy Document No: HRG: 001 Dated June 2010 which is contained in Exhibit ‘A’. That the Handbook was approved by the Board of Directors of the Appellant on 19/7/2010 and came into effect on 1/8/2010. That it is applicable to all employees and in limited circumstances ex-employees of the United Bank for Africa Group. That they placed reliance on paragraph 67 of Exhibit ‘B’ which learned counsel quoted verbatim. That the terms of settlement are clear and applicable to both serving and ex-employees like the Respondent.
That there are plethora of judicial authorities that frowns at failure by parties to exhaust available internal mechanism for dispute resolution. Cited PROFESSOR GREG I. ANYANWU V. UNIVERSITY OF JOS (2014) LPELR -22556 (CA), AKINTEMI V. ONWUMECHI (1985) 1 NWLR {Pt. 1} 68 at 85, UNIVERSITY OF ILORIN V. OLUWADARE (2006) 14 NWLR {1000} 751 at 781 – 782. Urged the Court to hold that the Respondent’s suit is incompetent as he “jumped the gun” since the jurisdiction of lower Court has not been invoked. Cited University of Jos V. IKEG WUOHA (2013) 9 NWLR {Pt. 1360} 478 at 494, DANIEL V. ADAMAWA STATE UNIVERSITY MUBI (unreported) Appeal No. CA/YL/07/2017 delivered on 7th December, 2017. Learned counsel urged the Court to resolve this issue in favour of the Appellant.
Issue two argued by the Appellant is: Whether from the totality of evidence before the Hon. Court, the trial Court was not wrong in holding that the Respondent had proved his case.
Learned counsel to the Appellant while arguing this issue submitted that the burden of proof is on the Respondent to prove his case that his dismissal was wrongful. Cited Section 133(1) of the Evidence Act. That the Respondent has to plead and prove the terms and conditions of his employment and show the Court which part of the terms and conditions of his employment has been breached by the Appellant. Cited AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD (2010) LPELR -3824 (CA). That the Respondent has failed to show the Court by way of proof which of these terms and conditions were breached by the Appellant. That it is when the Respondent discharges that burden then the burden shift to the Appellant to prove the reasons that justifies the dismissal. That the contention by the Respondent that he was suspended for no just cause for obeying the instruction of his superior officer was not supported by any proof. That the statement by the Respondent is an admission on his part that the private arrangement between him and his superior officer was without the knowledge of the Appellant. That where an employee obeys his superior or his officer’s instruction which turn out to be unlawful, he has no excuse for obeying those instructions. Cited AKINNIRANYE V. STANBIC IBTC & ORS (2014) LPELR -22250 (CA).
That the allegation against the Respondent is not only that he received oral instruction from his superior officer to credit N260,000.00 to a customer, it also involves an unauthorized vault lending of about N800,000.00 in respect of which the Respondent appeared before a Disciplinary Committee. Learned counsel referred the Court to Exhibit ‘DA’ at pages 43 – 44 of the Records. He submitted further that the Respondent cannot claim that he was not aware of his dismissal because it was on record that he was suspended since 2013 and he did not write or made enquiries about his suspension until 2015 via Exhibit ‘CA4’. That while on suspension, the Respondent did not deem it fit to report to the authority weekly as contained in Sections 13.2.1(iv) and 13.3.4 of Exhibit ‘DA1’ (pages 276 and 278 of the Records). That allegation against the Respondent is for unauthorized lending which is an act of misconduct or provided in Exhibit ‘DA1’, the punishment for which attracts instant dismissal. Cited ANAJA V. UBA Plc (2010) LPELR – 3769 (CA) 25 at 26. Learned counsel submitted that there could be no greater gross misconduct than using depositor’s money to pay a customer who has no fund in his account and thus without approval. That this act undermines the confidence that exists between Respondent and his employer. That it is against the interest of the Appellant and is an act of misconduct. That it is trite law that where an employer finds any act of misconduct by an employee; the sanction is summary dismissal. Cited NWOBOSI V. A.C.B. LTD (1995) 6 NWLR {Pt. 404} 658 at 681. Urged the Court to resolve this issue in favour of the Appellant. The third issue argued by the Appellant is: Whether the trial Court was not wrong in awarding to the Respondent an unascertained amount as his salaries and allowances having regard to its earlier finding that the Respondent did not prove his case to be entitled to his relief (c) sought for payment of his salaries and allowances to the tune of 28,621,734.73 during his suspension.
In his submission on this issue, learned counsel to the Appellant argued that the Supreme Court defined suspension in LONGE V. FBN Plc (2010) NWLR (sic) {Pt. 1189} 1 at 60 where it held thus: –
“Suspension is usually a prelude to dismissal from an employment. It is the state of affairs which exists while there is contract in force between the employer and employee. But while there is neither work being done in pursuance of neither it nor remuneration being paid, suspension is neither a determination of contract of employment nor dismissal of the employee. It operated to suspend the contract rather than terminate the contractual obligations of the parties to each other.”
Learned counsel submitted that based on the complaint and statement of facts of the Respondent, it is clear that he was suspended in February, 2013 and the salaries and allowances he was claiming was that of the period from 2013 to December, 2015 when he was on suspension. That the Respondent admitted as much in his statement on oath and under cross-examination at page 306 of the Records. Learned counsel to the Appellant submitted further that the policy of the Appellant as contained in Exhibit ‘DA1’ clearly provides for suspension as a sanction for misconduct. Quoted Appellant’s policy under Sections; 13.4.1; 13.6.1; 13.6.2; 13.6.3 and 13.6.4. That notwithstanding these express provisions, the learned trial Judge awarded to the Respondent his salaries and allowances during the period of his suspension contrary to the binding agreement between the parties. That it is trite law that the Court cannot re-write the agreement between the parties. Cited OBANYE V. U.B.N Plc (2018) 17 NWLR {Pt. 1648} 373 at 389. That the learned trial Judge was wrong when after refusing the Respondent’s relief (c) which the said Respondent seeking for his salaries and allowances during his suspension, proceeded to award to the same Respondent an unascertained amount. That it is trite law that Courts should desist from issuing vague orders. Cited AYOADE V. SPRING BANK Plc (2014) NWLR {Pt. 1396} 93 at 125 – 126. That based on the admission by the Respondent that he was on suspension and by the provision of Exhibit DA1, he was not entitled to any remuneration from the Appellant for service never rendered while on suspension. Cited SPRING BANK V. BABATUNDE (2011) LPELR -4975 (CA) 21.
That even if the Respondent is entitled to any payment in case of wrongful termination or dismissal, it is settled law that the measure of damages in a case of wrongful dismissal of employment without statutory flavour, as in the instant case, is the period of notice as provided by the terms of the contract between the parties. Cited OBANYE V. U.B.N. Plc (Supra) at 373 at 390 – 391. Urged the Court to resolve this issue in favour of the Appellant, allow this appeal, dismiss the Respondent’s case at the trial Court and set aside the judgment delivered by the lower Court on 6th July, 2018.
Apart from issue one which I pronounced upon in my findings on the Respondent’s preliminary objection wherein I discountenanced and struck it out, learned counsel to the respondent distilled four issues which are similar to those canvassed by the Appellant. I will also consider the submission by learned counsel while arguing the issues seriatim before making my findings known. Issue 2 formulated by the Respondent is: Whether the cause of action has not arisen when the claimant/respondent commenced this suit? In his submission, while arguing this issue learned counsel to the Respondent defined “a cause of action” as a group of operative facts giving rise to one or more bases for suing a factual situation that entitles the person to obtain remedy in Court from another person. Cited ONIFADE V. FATODU (2008) ALL FWLR {Pt. 401} 917 at 919, OMOTUNDE V. OMOLEYE (2005) ALL FWLR {Pt. 260} 146 at 148.
That on 6/2/2015, the respondent wrote to the appellant complaining about the ill-treatment meted out to him in the course of service wherein he stated his grievances and demanded for his outstanding entitlements. (pages 25 – 26 of the Records). That the appellant in reply dated 6/3/2015 wrote, inter alia, thus: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“… your client (Respondent) is not an employee of the Bank and so is not entitled to any payment from the Bank.” (page 27 of the Records).
That this reply by the appellant created a dispute and factual situation which entitles the respondent to seek remedy from a Court of law. It also gave rise to civil rights and obligation fit for determination by a Court of law. Thus a cause of action arose for the immediate intervention by the Court. As for the submission by the Appellant that the Respondent did not exhaust the remedy of internal dispute resolution as provided by paragraph 6.7 of the Exhibit ‘B’ of an employee or ex-employee taking his grievances to the Head of Human Capital Management and if not successful resort to a Mediation centre of Court connected Multi-Door Court House or any Alternative Dispute Resolution Centre, learned counsel to the Respondent replied that by its reply vide letter dated 6/3/2015 (which I quoted above) the appellant foreclosed any possible mediation or resolution of the matter.
That the respondent resides at Yola where there is no Court connected Multi-Door Court House not only at Yola but in the six States that constitutes the North-East region. That since the appellant’s reply has raised a cause of action between the parties, the most appropriate forum left for the respondent to ventilate his grievances is the Court of law. That it is trite law that access to Courts is a constitutionally guaranteed right which can only be abrogated by a clear provision of the constitution. Cited: G.E.C. LTD V. DUKE (2007) ALL FWLR {Pt. 387} 782 at 789;, AIKABELI V. AFRICAN PETROLEU PLC (2001) 6 NWLR {Pt. 708} 93 at 95, AMADI V. NNPC (2000) 10 NWLR {Pt. 674} 76.
Learned counsel submitted further that it is the claims of the respondent that determines the cause of action and thus the jurisdiction of the Court to entertain the suit. That it is not the rules of Court that vests jurisdiction in the Court rather it is the statute creating the Court or the constitution that vests jurisdiction on the Court. Cited UDOKPO V. ARCHIBONG (2013) ALL FWLR {Pt. 659} 1144 at 1152. That the trial Court being a creation of the Constitution has the exclusive jurisdiction to entertain any dispute relating to labour matter as in the instant case by virtue of Section 254 C (1) of the 1999 Constitution. That this exclusive jurisdiction conferred on the trial Court cannot be shared, circumscribed or depleted by the provision of the appellant’s Internal Handbook. Cited ADEJUGBE & ANOR V. ADULOJU & ORS (2018) LPELR – 45860 (CA), ONYEKWULUJE V. BENUE STATE GOVERNMENT (2015) 16 NWLR {Pt. 1484} 40, DA KIM & ANOR V. HON. JUSTICE EMEFO & 6 ORS (2001) FWLR {Pt. 66} 7290 and OWOSENI V. FALOYE (2005) LPELR – 2856 (SC). Learned counsel urged the Court to resolve this issue in favour of the Respondent.
The next issue formulated by the learned counsel to the Respondent is: Whether the dismissal of the claimant/respondent by the Defendant/Appellant is not wrongful?
In arguing this issue learned counsel submitted that from the totality of the facts and evidence before the trial Court, it is abundantly clear that the dismissal of the respondent by the appellant is wrongful. That the respondent has led both oral and documentary evidence in support of his case and tendered various documents admitted as exhibits to buttress his claims before the Court as reflected at pages 11 – 29 of the Records.
Learned counsel quoted paragraphs 11 and 19 and paragraphs 6 and 17 of the statement of defence. He also quoted paragraph 13.3 the minutes of meeting of the Disciplinary Committee before which the Respondent appeared in respect to alleged misapplication and unauthorized vault lending. That the said Disciplinary Committee’s recommendation completely-exonerated the respondent of any wrongdoing at page 5 of the report thus: –
“This is an established case of vault lending by the BOM-Moshood Yusuf… though it was not with fraudulent intent and there was no loss of funds to the Bank….” (page 47 of the Records).
That paragraphs 13.3.6 of Exhibit ‘DA1’ provides thus:
“Where a staff is completely exonerated either at the instance of investigations or DC decision, the suspension shall be withdrawn, and such staff shall be reimbursed with his/her withheld salaries for the period on suspension.”
That inspite of the decision of the appellant’s Disciplinary Committee completely exonerating his client, the appellant in total and flagrant violation/breach of its terms of employment did not withdraw the respondent’s suspension; did not reimburse his withheld salaries, but wrongfully dismissed him from his employment. That the holding by the Disciplinary Committee that the respondent:
“… should be dismissed from the service of the Bank in line with GMD’s approval and HR Disciplinary Process & Policy of August 2020 to serve as a deterrent to others.”
That this holding is a complete and total departure from the respondent’s term of employment as it did not made mention of any provision of Exhibit ‘DA1’. Cited OLANIYAN V. UNIVERSITY OF LAGOS (1985) 1 NWLR {Pt. 9} 599 at 612 – 613. That dismissing the respondent “as a deterrent to others” is undoubtedly ultra vires, null and void. Cited RE: MBAMALU (2002) FWLR {Pt. 85} 246 at 251. That a dismissal of an employee is wrongful when his employment terminated in breach of the contract of employment. Cited ISHENO V. JULIUS BERGER (NIG) Plc (2008) ALL FWLR {Pt. 415} 1632 at 1636. That “dismissal as a deterrent to others” contradicts the reason given by the appellant in the letter of dismissal issued to the respondent for “gross misconduct” since same is not within the definition of gross misconduct as contained in paragraph 17.3.1 of Exhibit ‘DA1’. (pages 289 – 290 of the Records). Cited I.H.A.B.U.H.M.B. V ANYIP (2011) 12 NWLR {Pt. 1260} 1 at 6.
That the purported dismissal of the respondent based on the recommendation of the appellant’s Disciplinary Committee has occasioned miscarriage of justice to the respondent. Cited the authority of OGUNTAYO V ADELAJA (2009) ALL FWLR {Pt. 495} 1626 at 1633 where the apex Court defined the term “miscarriage of justice”. That the official supervisor of the respondent Mr. Innocent Achor (ACM), a principal actor/originator of the allegation against the respondent which led to the setting up of the Committee was an active member of the appellant’s Disciplinary Committee, thereby making him a judge in his own cause. That when the appellant became aware of this “aberration” no step was taken to remedy the injustice meted out to the respondent. Instead, the appellant further affirmed the purported dismissal of the respondent. Cited the Supreme Court authority of THE ESTATE/EXECUTORS OF THE ESTATE SANNI ABACHA V. EKE SPIFF (2009) All FWLR {Pt. 467} 1 at 8.
That the purported letter of dismissal marked as Exhibits CA6B and DA4 by the lower Court was not served or communicated to the respondent until his solicitors wrote the letter dated 6/2/2015 which necessitated the reply by the appellant dated 6/3/2015. He quoted the testimony of his client in his witness deposition on oath at pages 12 – 14 of the record of appeal and Exhibit CA5 paragraph 2 at page 25 of the records. That the appellant made a belated attempt to rebut the respondent’s evidence at paragraph 17 of the deposition of DW1 at page 41 of the Records. That there is no proof of service of the purported letter of dismissal on the respondent by the said Dispatch Rider of the appellant neither the dispatch rider nor Business Manager of the Appellant’s Yola main Branch was called to give evidence in this regard before the trial Court. That attaching the letter is a confirmation that it was never served on the respondent. Cited POWER HOLDING CO. V OFFOELO (2012) 12 M.T.S.C. {Pt. II} 106 at 115. Urged the Court to upheld the decision by the trial Court at pages 347 of the Records and resolve this issue in favour of the respondent.
The fourth issue argued by the respondent is: Whether the judgment/decision of the trial Court is perverse and not supported by the evidence before the Court?
In answer to this issue, learned counsel to the Respondent submitted that the judgment by the trial Court is supported by evidence and is not perverse. He referred to paragraphs 11 and 19 of the averments of the respondents and at paragraph 23 he gave analysis of his outstanding salaries, allowances and other entitlements/benefits as at the end of December, 2014. Learned counsel reviewed the evidence of his client and submitted that the respondent in discharging the legal burden on him has by cogent, credible and unchallenged evidence through his 37 paragraphs Statement on Oath established his case. That the Appellant did not traversed paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 16, 24 and 25 of the respondent’s pleadings which are deemed admitted and it is trite law that facts admitted need no further proof. Cited ALI V. ALBISHIR (2008) ALL FWLR {Pt. 415} 1681 at 1686 and AKANINWO V. NSIRIM (2008) All FWLR {Pt. 410} 610 at 622. That paragraphs 7, 11, 12, 18, 19, 20, 21, 22 and 23 of the respondent’s pleadings were not specifically denied. That they were denied through a general traverse which does not amount to denial in law. Cited CHAIRMAN, MORO L.G.A. V LAWAL (2008) All FWLR {Pt. 440} at 701.
That the appellant specifically traversed paragraphs 15, 17, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of the respondent’s pleading but failed to support its averments with evidence. That the respondent has established these facts by both oral and documentary evidence before the Court. That the respondent tendered Exhibits CA5, CA6A & 6B and CA7 to prove his case. That the appellant’s Exhibits DA1, DA2, DA3 and DA4 further reinforce the respondent’s case. That the appellant having failed to challenge or contradict the respondent’s evidence has admitted or conceded to the claims of the respondent. Learned counsel submitted that the findings and decision by the trial Court is supported by the evidence before it and same is not perverse as the respondent has established that his purported dismissal by the appellant is wrongful, unconstitutional, ultra vires, null and void. Urged the Court to uphold the decision by the trial Court and resolve this issue in favour of the respondent.
The fifth issue formulated and argued by the respondent is: Whether the judgment amount awarded by the trial Court is not ascertainable? Learned counsel submitted that the judgment by the trial Court is express, clear, unequivocal and leaves no one, including the appellant, in doubt as to what is due to the respondent. Tha the holding by the learned trial Judge that the appellant shall “compute and pay to the claimant his said entitlements from February, 2013 to March, 2015 being the period covered by the suspension pending investigation and when he became aware of his subsequent wrongful dismissal” is most appropriate in the circumstances of the case since the trial Court has earlier declared the purported dismissal of the respondent to be wrongful. That since the appellant has in its employment other employees of the same cadre with the respondent (i.e. Senior Banking Officer/Branch Operation Manager SBO/BOM) who receive same salary and allowances with the respondent, the appellant cannot claim ignorance of what the salary and allowances of the respondent would be between February, 2013 and March, 2015. Cited G.M.O. NWORAH & SONS Co. LTD V AKPUTA (2010) ALL FWLR {Pt. 524} 86 at 91.
That in compliance with the decision of the trial Court the appellant has computed and deposited the sum of N15,611,103.74 into an interest-yielding account of the Registrar of the trial Court without further ado. That the N2,000,000.00 damages for wrongful dismissal cannot be said to be unascertainable. Learned counsel urged the Court to resolve this issue in favour of the respondent, affirm the decision by the lower Court and dismiss this appeal.
FINDINGS:
The first issue canvassed by the Appellant is: Whether the trial Court was not wrong when it held that compliance with Exhibit A is not condition precedent for the actuation of its jurisdiction and that the cause of action had arisen at the time the Respondent commenced this action before the trial Court.
I have narrated the background facts that led to the formulation of this issue in the body of this judgment above. The appellant drew the attention of this Court to the provisions contained in Exhibit ‘A’ which is the UBA GROUP STAFF HANDBOOK: POLICY DOCUMENT No. HRG: 001 Dated June, 2010, paragraph 6.7 titled: “UBA Group and Ex-Employee Dispute”. The said paragraph at pages 117 to 118 of the Records thus: –
“Stage I
If after leaving the employment of the Group an ex-employee has any claim or grievances against the Group he/she shall be required in the first instance to report the matter to the Head of Human Capital Management for resolution”.
“Stage II
If the matter is not satisfactorily resolved within 90 days. The matter may be referred to mediation at any Court connected multi-door Courthouse or any other alternative Dispute Resolution Centre or forum for resolution.”
It is this provision for mediation that led the learned counsel to the appellant to ask these questions:-
1. Why did the Appellant went to such extent to protect its corporate image and goodwill if not to avoid complaints like the instant one before the Court?
2. Why would the Respondent who as a staff and later Senior Banking Officer, agreed to be bound by these conditions and guidelines be allowed to breach same?
3. Why is the Respondent now dispensing with this fair, fast and reliable process of dispute resolution that protects both parties?
Learned counsel to the appellant cited several judicial authorities that frown on a party who failed to exhaust all available dispute resolution mechanism before resorting to litigation. That where, as in the instant suit, such a course of action took place the respondent has “jumped the gun” thus the jurisdiction of the Court was not invoked. On the other hand learned counsel to the respondent blames the appellant for not allowing the respondent to resort to arbitration or out of Court settlement by its letter dated 6th March, 2015 wherein it replied the solicitors to the Respondent thus: –
“… your client (Respondent) is not an employee of the Bank and so is not entitled to any payment from the Bank”. (page 27 of the Records).
It is obvious that this reply by the appellant did not give room for any Court connected Multi-Door Court House Mediation as provided by Exhibit ‘A’. Thus the respondent asked:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
What internal mechanism of the appellant is available to the respondent in the circumstance?
It is my opinion, that considering the tone and content of appellant’s letter dated 6/3/2015 marked as Exhibit CA6A and Exhibit DA4 which is at page 27 of the Records all avenues for internal resolution mechanism were foreclosed by the appellant. For avoidance of doubt, I reproduce contents of Exhibit CA6A hereunder: –
“LEGAL SERVICES DIVISION
3RD FLOOR
UBA HOUSE
LSD/LS2/LO/0467/2015
6th March, 2015
Olu Adebambo & Associates,
The Moon Chambers,
No. 21 Abekuta Street,
Anifowashe, Ikeja
Lagos State.
Dear Sir,
RE: DEMAND FOR PAYMENT OF N28,621,734.73 – ALLEGEDLY BEING EARNINGS & ENTITLEMENT – MR. YUSUF MOSHOOD AYANGBADE
We refer to your letter dated 6th February, 2015 on the above matter.
We have investigated your client’s allegations and our investigations revealed that your client did not disclose the entire facts of this matter to you.
Please be informed that an allegation of gross misconduct was leveled against your client in the course of his employment with the Bank. Your client appeared before a Disciplinary Committee where it was established that your client was involved in gross misconduct.
Consequently, your client was dismissed on 3rd May, 2013. A copy of his letter of dismissal is attached herewith.
In view of the foregoing, your client is not an employee of the Bank and so is not entitled to any payment from the bank.
Please advise your client accordingly.
Yours faithfully,
Per pro: UNITED BANK FOR AFRICA PLC
SGN
Lola Osungbesan Sam Adikamkwu
SGN
Legal Services General Council.”
This letter clearly raised a cause of action by the cavalier attitude displayed when it waved aside all entreaties by the Respondent’s solicitors in their letter dated 6th February, 2015, at pages 25 – 26 of the Records and marked as Exhibit CA5 by trial Court. The appellant having shut out all avenues for negotiation cannot be heard to be attempting to resort to an option of mediation in its effort to resolve the dispute between the parties as contained in the “UBA GROUP STAFF HANDBOOK: Policy Document No. HRG:001 dated June 2010 marked as Exhibit A”. The learned trial Judge was therefore correct in his judgment when in referring to Exhibit ‘A’ at page 337 of the Records held thus:
“Such unwanted restrictive provision is liable to be struck down. Accordingly, I find and hold that the provisions of paragraph 6.7 of the UBA Group Staff Handbook Policy Document No: HRG: 001 dated June, 2010, constitutes an improper obstacle in the way of the Claimant, being an ex-employee of the Defendant, to accessing the Court to ventilate and litigate his dispute with the Defendant, his ex-employer, before this Court, and as such, I hereby affirm the competency of this suit and hasten to invoke the jurisdiction of the Court to entertain same.”
It is trite that dispute resolution mechanisms are made to serve a good purpose by reducing litigation if possible. It is not meant to oust the jurisdiction of the Court as held by the apex Court in L. O. OWOSENI V. JOSHUA IBIOWOTISI FALOYE & ANOR (2005) LPELR -2856 (SC) thus: –
“It is important to stress that laws which prescribe that some procedural steps be taken to resolve a dispute before embarking an actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the Court. Indeed, if such laws attempt to do so, they would be in conflict with the provisions of the Constitution. Such laws afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before recourse is heard to the Court. In other words, they serve the purpose of preventing actual litigation in Court where it is possible or desirable to resolve the dispute.” Per OGUNTADE, JSC at pages 47–48 paragraphs C – A.
See ADEJUGBE & ANOR V. ADULOJU & ORS (2018) 1 LPELR -45869 (CA) and H.R.H. IGWE KRIS ONYEKWULUJE & ANOR V. BENUE STATE GOVERNMENT & ORS (2015) LPELR -24780 (SC).
It is also trite law that by the provision of Section 6(6) (b) of the 1999 Constitution citizens of Nigeria has the inalienable right to seek redress in a Court of law which cannot be taken away even if an alternative remedy to resolving the dispute is available. See B. I. AIKABELI V. AFRICAN PETROLEUM PLC (2004) LPELR – 12510 (CA), CAPTAIN E. C. C. AMADI V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2000) LPELR – 445 (CS), ALHAJI TIJJANI DAGAZAU & ANOR V. BORKIR INTERNATIONAL COMPANY LIMITED (1999) LPELR – 13366 (CA). Thus Exhibit DA1, cannot override the provision of the Constitution. I so hold. The lower Court was right when it held that compliance with Exhibit DA1 is not a condition precedent to activating its jurisdiction and the cause of action had arisen when the respondent commenced this action before the said lower Court. I resolve this issue in favour of the Respondent.
The second issue that was formulated and argued by learned counsel to the Appellant is: Whether from the totality of the evidence before the Hon. Court, the trial Court was not wrong in holding that the Respondent had proved his case.
I have considered the submission by learned counsel on this issue where the Respondent reframed the issue by splitting it into issues 3 and 4 in his brief. The bone of contention between parties before the lower Court is the dismissal of the Respondent by the Appellant. I also considered the documentary and oral evidence adduced by the parties before the trial Court. It is trite law that in civil suits the standard proof is on the balance of probabilities or preponderance of evidence. In other words, the Court will examine the evidence adduced by parties before reaching a decision as to which evidence the Court accepts and which it rejects. The evidence shall first be put on the imaginary scale of justice to see which is heavier, not by the number of witnesses called by a party but by the quality or probative value of the witnesses and the evidence they tendered. If the trial Court properly evaluated the totality of evidence laid before it then the appellate Court cannot interfere with that holding. But where the trial Court did not properly evaluate the evidence laid before it by not properly assessing the oral and documentary evidence adduced before it, then the appellate Court is in the same position as the trial Court to reappraise the evidence, ascribe probative value to it, weigh it on the imaginary scale of justice to determine the party in whose favour the weight of evidence tilts. See CHIEF FALADE ONISAODU & ANOR V. CHIEF ASUNMO ELEWUJU & ANOR (2006) LPELR – 2687 (SC), CHIEF SALAMI OLATUNDE & ANOR V. SALAMI AFOLABI ABIDOGUN & ANOR (2001) 18 NWLR {Pt. 746} 712 at 723, DANIEL BASSIL & ANOR V. CHIEF LASIS FAJEBE & ANOR (2001) 11 NWLR {Pt. 725} 592 at 608 – 609.
The Respondent at paragraphs 11 & 19 of his averments deposed, inter alia, that: –
“11. That sometimes in February 2013, I was suspended from work by the defendant for no just cause without salary and other entitlements”.
“19. That I have served the defendant meritoriously since 1999 and the defendant unjustly stopped my salary and other allowances since February 2013 and refused/failed to pay my other entitlements and benefits.”
It is response to this allegation the appellant pleaded at paragraph 6 of its statement of defence that: –
6. The Defendant denies paragraph 11 of the statement of facts and in answer …. Averse that based on the report from investigations unit on the misapplication and unauthorized lending of N800,395.00 from the vault by the Claimant, the then Branch Operations Manager and Galadima Yakubu the Cash Officer of Yola Main Business Officer, the Claimant was placed on suspension in line with the Defendant’s Group H.R. Disciplinary Process and Sanction Policy Section 13.3.1 pending investigation of the case. The policy is hereby pleaded.
In paragraph 17 of its pleadings, the Defendant denied the Claimant’s paragraph 18 of his pleadings which is in pari materia with paragraph 19 of his averments thus: –
17 The Defendant denies paragraph 18 of the Statement of Facts and in response in further answer states that all the Claimant’s entitlements were paid up unto the time of his dismissal from the Defendants’ service.
This pleading was buttressed by the averment of the Appellant’s sole witness Mr. Usman Olalekan who testified as DW1 when he testified on oath at page 40 of the records that: –
15. That all the Claimant’s entitlements were paid up unto the time of his dismissal from the Defendant’s service.
The same Appellant while replying to the Respondent’s solicitor’s letter wrote thus: –
“In view of the foregoing, your client is not an employee of the Bank and so is not entitled to any payment from the Bank.” (page 140 of the Records).
It is obvious that the Appellant is prevaricating. In one breath, it pleaded and supported same with testimony of its witness who swore that the respondent’s entitlements were paid up to the time of his dismissal, in another breath it is saying that the said Respondent is not entitled to any payment since his dismissal on 3/5/2013. Mr. Olalekan added to the conundrum when he stated under oath that:
17: The Claimant was dismissed by the Defendant for an act of gross misconduct (vault lending) and the dismissal was duly communicated to the claimant via the Business Manager of Yola Main Branch who confirmed that his dispatch rider delivered same at the Claimant’s house in Yola. (page 40 of the Records).
Neither the Business Manager of the Defendant’s Yola main branch nor the dispatch rider was called to corroborate this mere ipse dixit of Mr. Olalekan (DW1). It is common knowledge that dispatch riders do collect an endorsement by the recipient of the document they delivered which can be exhibited to the Court during trial as evidence of receipt of the said document. DW1 did not attempt to tender such endorsement which the dispatch rider collected from the Respondent after he collected the said letter of dismissal. The only action the Appellant took to serve the Respondent with the letter dismissing him from its employment was to attach the said letter dated 3rd May, 2013 to the letter addressed to respondent’s solicitors dated 6th March, 2015. That is after his solicitor wrote the Appellant, inter alia, that: –
“It is about 2 (two) years now that the (Respondent) has been suspended from office and he has not received any information from the bank either lifting the suspension or terminating his employment.” (page 25 of the Records).
In POWER HOLDING COMPANY OF NIGERIA, PLC V. MR. I.C. OFFOELO (2012) LPELR -19717 (SC), the apex Court per MUHAMMAD, JSC held thus: –
“The respondent in my view, is justified in his defence that he was not communicated the retirement. Even if he was, I think the communication was not done in accordance with the regulation as contained in Exhibit A. Proper communication of a message in law has its importance. Where there is a failure to communicate (a break in communication or lack of communication) the whole purpose of the message is completely defeated. If any step or action is taken by the issuing authority inspite of the fact of non-communication (non-service), the step or action taken goes to naught and amount to a nullity in law.”
See also AFRICAN CONTINENTAL BANK LTD V.P.C. EWARAMI (1978) LPELR -201 (SC) per IRIKEFE, JSC.
I have considered the evidence adduced before the lower Court by the parties and it is my finding that having weighed same on the imaginary scale of justice, it is clear as crystal that it preponderates in favour of the Respondent’s case. Therefore considering the evidence adduced before the trial Court, it is my finding that the lower Court took the right decision when it held that the Respondent proved his case on balance of probability. This issue is resolved in favour of the Respondent.
The third issue formulated by the Appellant and argued by the learned counsel to the parties is: Whether the trial Court was not wrong in awarding to the Respondent an unascertained amount as his salaries and allowances having regard to its earlier finding that the Respondent did not prove his case to be entitled to his relief (c) sought for payment of his salaries and allowances to the tune of N28,621,734.73 during his suspension.
This issue was couched as a result of the holding by the learned trial Judge at page 353 of the record of appeal that:-
“For the reasons advanced in the body of the judgment, the Claimant’s Relief (a) succeeds to the extent that the Claimant’s dismissal by the Defendant is hereby declared wrongful. Consequently, I hold that the Claimant is entitled to be reimbursed full payment of his withheld salaries and entitlements from February, 2013 to March 2015, being the period covered by the suspension pending investigation and when he became aware of his subsequent wrongful dismissal. Defendant is hereby ordered to compute and pay to the Claimant his said entitlements, within two months from this judgment.”
The main grouse of the Appellant with this order is the phrase; “to compute and pay to the Claimant his said entitlements, from February 2013 to March 2015, being the period covered by the suspension pending investigation and when he became aware of his subsequent wrongful dismissal”. Learned counsel to the Appellant referred to this order as “unascertained amount as his salaries and allowances”. The appellant chose to ignore the fact that this order is based on the finding by the learned trial Judge that “the Claimant’s dismissal by the Defendant is hereby declared wrongful”. Since the Claimant’s dismissal was declared wrongful then it logically follows that he is entitled to a remedy since Ubi jus ibi remedium, which is a principle of justice of universal validity couched in Latin and available to all legal system involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the plaintiff has established a right. See ALIU BELLO & ORS V. ATTORNEY GENERAL OF OYO STATE (1986) LPELR 764 (SC).
Learned trial Judge, after pronouncing that the Respondent was wrongfully dismissed by the Appellant provided a remedy for the wrongful dismissal which is the full payment of his withheld salaries and entitlements from February 2013 to March 2015 when he was on suspension. The Respondent was a staff of the Appellant since 1999. He was on the payroll of the Appellant collecting salaries and allowances till February, 2013 when he was suspended by the said Appellant. It is correct to assume the Appellant have in its employment other employees of the same cadre with the respondent who are paid the same salaries and allowances.
Therefore it is my finding that the salaries and other entitlements of the Respondent from February, 2013 to March, 2015 can be computed and paid to him by the Appellant as a liquidated money demand which can easily be ascertained and paid to the said Respondent. I so hold.
I also took note of the fact that the Appellant has already computed and deposited into an interest yielding account of the Registrar of the trial Court the said amount as ordered by the lower Court in the sum of N15,611,103.74. In OLADIPO MAJA V. MR. COSTA SAMOURIS (2002) LPELR -1824 (SC), the apex Court per IGHU, JSC held thus: –
“A liquidated money demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever therefore the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges of other positive data, it is said to be ‘liquidated’ or made clear. Again, where the parties to a contract, as part of the agreement between them fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a ‘penalty’ and it is payable by the party in default.”
It is my finding on this issue that the judgment order issued by the lower Court in respect to the salaries and entitlements of the Respondent from February, 2013 to March, 2015 is clear, unambiguous and ascertainable. This issue is also resolved in favour of the respondent.
It is the judgment of this Court that this appeal lacks merit and it is hereby dismissed. The judgment delivered by the trial Court on 6th July, 2018 in Suit No. NICN/YL/03/2016 is affirmed by me. The Respondent is entitle to costs which I assess at N100,000.00.
CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the leading judgment just delivered by my learned brother BITRUS GYARAZAMA SANGA, JCA, I agree with his reasoning and conclusion arrived at in the preliminary objection and the main appeal. I have nothing to add.
The appeal is dismissed for lacking in merit and the decision of the lower Court delivered on 6th July, 20016 in Suit No. NICN/YL/03/2016 is here affirmed.
I abide by the order made by my learned brother in the leading judgment as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by learned brother, BITRUS GYARAZAMA SANGA, JCA. I agree entirely with the decision my learned brother arrived at in the lead judgment. I adopt the judgment as mine with nothing further to add.
Appearances:
CHIEF LEONARD DANIEL NZADON For Appellant(s)
J. OLU ADEBAMBO, ESQ. For Respondent(s)
