UNION BANK OF NIGERIA PLC v. EMMANUEL ADEREWAJU SOARES (2012)

UNION BANK OF NIGERIA PLC v. EMMANUEL ADEREWAJU SOARES

(2012)LCN/5285(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of March, 2012

CA/L/396/2000

RATIO

CONTRACT: DUTY OF A COURT IN INTERPRETATION OF CONTRACT

Generally speaking, in a contract of employment, as in Exhibit ‘K’ in this case, parties are bound by the terms of the contract particularly where the terms of the contract are clear and unambiguous. Courts are not allowed to make or rewrite agreements between the parties. The only duty of the court is to interprete those clauses written in the contractual document. Where however, the terms of the contract are not clear and unambiguous, the court of law can move out of them and invoke the general rules of contract applicable to the nature of the contract of service.

See Osakwe v. Nigeria Paper Mills Ltd. (1998) 10 NWLR. (pt.568) 1; Calabar Cement Company Ltd. v. Daniel (1991) 4 NWLR. (pt.188) 750; Niger Dams Authority v. Chief Lajide (1976) 5 SC 207; Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (pt.9) 599; IDC v. Ajijala (1976) 2 SC 115. PER JOHN INYANG OKORO, J.C.A.

CONTRACT: FEATURES OF A CONTRACT AGREEMENT

One of the features of such a contract agreement is that the servant is expected always to be of good behavior and conduct by diligently serving the employer and protecting the employer’s property and to be in good working relationship with other employees. Should there be a breach of that agreement by any of the parties, each party has a right to terminate the agreement in accordance with the terms of the contract. Where there is no written agreement as to the period of notice of termination of contract of employment, the notice to be given must be reasonable notice but where the contract of employment stipulates the period of notice, the contract can be terminated based on such notice. PER JOHN INYANG OKORO, J.C.A.

LABOUR LAW: WHETHER THE COURT CAN IMPOSE AN EMPLOYEE ON AN UNWILLING EMPLOYER AND VICE VERSA

It is a general principle of our civil jurisprudence, and quite trite that a court will not impose an employee upon an unwilling employer. It is also true and I think commonsense dictates that an employer cannot also prevent an employee from resigning his employment for whatever reason. The position of the court in this kind of situation where an employer fires his employee is to determine whether due process was followed having regard to the terms of the contract of employment and that the employee is paid his entitlements in the circumstance. PER JOHN INYANG OKORO, J.C.A.

LABOUR LAW: CIRCUMSTANCES THE COURT WILL ORDER REINSTATEMENT

As I have stated above, as a general rule a court will not order specific performance of a contract of service. However, for a court to exercise its discretion to order specific performance or reinstatement, some special circumstances will have to be shown. Such special circumstances have been held to include where:

The contract of employment has a legal or statutory flavor thus putting it over and above the ordinary master and servant relationship; or
A special legal status as a tenure of public offices is attached to the contract of employment.

See Olaniyan v. University of Lagos (1985) 2 NWLR (pt.9) 599; NNPC v. Idaniboye-Oba (supra); Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40. PER JOHN INYANG OKORO, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

UNION BANK OF NIGERIA PLC – Appellant(s)

AND

EMMANUEL ADEREWAJU SOARES – Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal and cross appeal against the Judgment of the Lagos State High Court delivered by Hon. Justice Dolapo Akinsanya on 22nd January, 1999 wherein the learned trial Judge declared the dismissal of the Respondent by the Appellant irregular and wrongful and consequently awarded him his outstanding salary and allowances from October 1992 to July 13, 1993.

The Respondent, who was the Plaintiff at the court below was employed by the Appellant on October 8, 1979 as a Clerk and he worked in various departments of the Bank and rose to the position of an Officer before the dismissal later dated 14th October, 1992 was served on him.

Prior to the issuance of the letter of dismissal, the Respondent led what the Appellant termed “an illegal strike action” against the Appellant which lasted for six days despite being persuaded and warned by the Appellant’s management and the recognized parent body of the Appellant’s Employees Association to refrain from embarking on such a strike action. Following the dismissal of the Respondent and some other members of staff of the Appellant, they wrote Exhibit ‘M’ captioned “Letter of Apology” to the Appellant. Based on this letter of apology, the Appellant gave them an opportunity to resign their appointments so as to enjoy their gratuity and pension.

Others accepted this condition and resigned. The Respondent however refused to resign. Rather, he filed the suit giving birth to this appeal. The claim of the Respondent was for the following reliefs:-

“(a) A declaration that the Defendant’s dismissal of the Plaintiff from its employment is unlawful, illegal, null and void and of no effect whatsoever same having been done contrary to the rules of natural justice and the provision of the main collective agreement.

(b) The sum of N2,438,006.62 (two million, four hundred and thirty eight thousand and six naira, sixty two kobo) being damage for breach of contract of employment by the Defendant in its letter to the Plaintiff dated 14th December, 1992.

ALTERNATIVELY

(d) An order that the Defendant do pay the Plaintiff all his outstanding salaries and entitlements from 1st October, 1992 to the date of Judgment”.

At the trial, the Respondent testified for himself while two witnesses testified for the Appellant. The Respondent had, during the trial admitted that as a senior staff of the Bank he could not belong to the Association of Banks & Insurance Employees. He also admitted belonging to a splinter group of the union that embarked on the strike action which splinter group was not recognized by the Appellant or by the parent body of the union.

At the end, the learned trial Judge reviewed the evidence at her disposal and entered Judgment in favour of the Respondent, finding his dismissal as irregular and wrongful and awarding him all his outstanding salaries and entitlements from 1st October, 1992 till 13 July 1993 with costs of N3,500.00 to the Respondent.

Dissatisfied with the said Judgment, the Appellant filed a Notice of Appeal on 22nd February, 1999 which notice has four grounds of appeal. Thereafter, the Appellant filed an Amended Notice of Appeal on 5th November, 2001 with the leave of court. Five issues are distilled for the determination of this appeal. The five issues are:-

“1. Whether the learned trial Judge was right in holding that Exhibit E governs the terms and conditions of employment of the Respondent

2. Whether Exhibit K or Exhibit E govern the Respondent’s terms and conditions of employment.

3. Whether the trial Judge was right in awarding the Respondent 9-1/2 (nine and a half) months salary and entitlements within the said period even it the Respondent’s appointment was wrongly terminated which the Appellant refutes.

4. Whether the trial Judge was right in holding that the Respondent’s dismissal was irregular having not afforded the Respondent the opportunity to defend himself in writing.

5. Whether the Defendant/Appellant was right in dismissing the Plaintiff/Respondent for gross misconduct”.

The learned counsel for the Respondent however distills four issues for the determination of this appeal to wit:-

“(a) Whether the learned trial Judge was right in applying the terms of the Collective Agreement (Exhibit E) to the facts of this case.

(b) Whether the learned trial Judge was right in holding that the dismissal of the Respondent was wrongful and irregular.

(c) Whether the learned trial Judge was right in awarding the Respondent his accrued salary and allowances from 1st October, 1992 to 13th July, 1993.

(d) Whether the learned trial Judge was right in refusing to order the reinstatement of the Cross Appellant and payment of his outstanding salaries and entitlements”.

The learned counsel for the Appellant has argued issues one and two together, three alone and then four and five together. I shall determine this appeal based on the five issues formulated by the Appellant and in the manner the issues were grouped and argued.

Arguing issues one and two, the learned counsel for the Appellant submitted that the learned trial Judge was wrong when she held that Exhibit E, the Collective Agreement constitutes part of the contract of service agreement between the Appellant and the Respondent. He posits that what regulates the relationship between the Appellant and Respondent is Exhibit K made on 21/1/80 executed by both parties.

Furthermore, that since the Respondent did not sign Exhibit E, he cannot enforce same even though it was made for his own benefit. He cites and relies on Union Bank v. Edet (1993) 4 N.W.L.R. (pt.287) 288 and submits further that there is no priority of contract between the parties based on Exhibit E. He concluded on this issue that it is only Exhibit K that regulates the relationship between the Appellant and the Respondent also citing the case of College of Medicine, University of Lagos v. Adegbite (1973) 5 SC. 149 at 162. He urged the court to resolve issues one and two in favour of the Appellant.

In his response, the learned counsel for the Respondent submitted that Exhibit “E” was binding on both parties on the ground that it was incorporated into the service contract. He referred to the third paragraph of Exhibit ‘A’ in respect of the submission. He contends that since the Letter of Appointment (Exhibit A) specifically alluded to the Collective Agreement, it can safely be concluded that Exhibit ‘E’ has been incorporated into the service contract. Referring to paragraph two of Exhibit ‘F’, he opined that Exhibit ‘E’ was binding on the management and staff of the Bank. That having declared, without any duress or mistake that the “conditions that may attract summary dismissal” had been set out in the Collection Agreement, the Appellant is estopped from denying the applicability of Exhibit ‘E’.

It was a further submission of learned counsel that it is grossly misleading to contend that a Collective Agreement cannot be enforced in Nigeria citing and relying on the case of Chukwumah v. Shell Development Company of Nigeria Limited (1993) 4 NWLR (Pt.289) 512. Emphasizing on the decision of the Supreme Court on the above case, he submitted that a Venture Agreement incorporated into a service contract can be enforced by the parties to the Agreement, also citing the cases of A.C.B. v. Nwodika (1996) 4 NWLR (pt.443) 470 at 487; Abalogu v. The Shell Petroleum Development Co. Nig. Ltd. (1999) 8 NWLR (Pt.613) 12 at 20; Union Bank Ltd. v. Edet (supra). The learned counsel for the Respondent urged this court to resolve this issue against the Appellant.

Generally, the document which regulates the relationship between an employer and employee is the service agreement or the contract of service and not a collective agreement. But that is not all to it. A collective agreement, standing alone is not binding on an individual employee and the employer unless such a collective agreement is incorporated into the contract of service or adopted as part of the contract or condition of service. See A.C.B. v. Nwodika (Supra); Union Bank Ltd. v. Edet (Supra); Shuaibu v. Union Bank of Nigeria Plc (1995) 4 N.W.L.R. (pt.388) 173.

The Supreme Court in the case of Dr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nig. Ltd. (1993) 4 NWLR (Pt.288) 512 held that an extraneous agreement, not entered into by the parties to a contract of service, cannot be made the basis of an action by an employee unless it is incorporated into the contract of service of such employee.

In the instant case, the issue under consideration is whether the court below was right to hold that the Collective Agreement ie Exhibit ‘E’ was binding on the Appellant and Respondent herein. The learned trial Judge after reviewing all the exhibits tendered including Exhibit ‘E’ the said Collective Agreement, said on page 141 – 142 of the Record of Appeal as follows:

“When Exhibits A, K, E, and F are taken together, I have no doubt in my mind that they are all relevant and constitute the contract and other documents consisting of rules and regulations which are binding on the parties to the contract”.

For purpose of clarity, Exhibit ‘A’ alluded to in the Judgment of the learned trial Judge is the Appointment Letter which the Appellant wrote to the Respondent. Exhibit ‘K’ is the Service or Contract Agreement while Exhibit ‘E’ is the Collective Agreement. Exhibit ‘F’ is an addendum to Exhibit ‘E’.

In the Appointment Letter ie Exhibit ‘A’ given to the Respondent since 1979 by the Appellant, it is stated in paragraph three thereof.

“Other conditions of service will be as laid down in the contract of service agreement and also the Collective Agreement currently in force”.

According to the learned counsel for the Respondent, the above paragraph means that the Collective Agreement has been incorporated into the Contract of Service Agreement which would make the Collective Agreement binding on both parties. The learned trial Judge upheld this argument. But I think otherwise. That paragraph, to my understanding merely informs the Respondent of the two documents guiding his employment. The first is the Contract of Service Agreement which the Respondent later signed with the Appellant which is Exhibit ‘K’ in this case.

The other document is the Collective Agreement signed between the Nigeria Employers Association of Banks, Insurance and Allied Institutions on the one part, and the Association of Senior Staff of Banks, Insurance and Financial Institutions, on the other part. As I stated earlier, Exhibit ‘F’ is an addendum to Exhibit ‘E’. Clearly, these are two sets of agreements. If Exhibit ‘E’ has been incorporated into Exhibit ‘K’, it should be stated in Exhibit ‘K’ that Exhibit ‘E’ has been so incorporated. There is no such clause or paragraph in Exhibit ‘K’ giving such a suggestion.

The Respondent had also relied on the second paragraph of Exhibit ‘F’ which states that:-

“However, both the Nigeria Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) have now reached an agreement on the conditions that may attract summary dismissal”.

As far as I can understand, the above quotation has to do with the Collective Agreement and no more. There is nothing to suggest that it is part of the Contract of Service Agreement signed between the Appellant and the Respondent. As was clearly stated earlier in this Judgment, an extraneous agreement as in Exhibit ‘E’ not entered into by the parties to a contract of service, cannot be made the basis of an action by an employee unless it is incorporated into the Contract of Service Agreement of such an employee. There is nothing to suggest that this has been done in the circumstance of this case. For the avoidance of doubt, it is in the Contract of Service Agreement that the clause of incorporation of the Collective Agreement can be found. The Letter of Appointment was written sometime in 1979 whereas the Contract of Service Agreement was signed on 21/1/80. Had the parties wanted the Collective Agreement to be part of the Contract of Service Agreement, it could have been so stated in the agreement. Not having been incorporated into the Contract of Service Agreement (Exhibit ‘K’), the Collective Agreement (Exhibit ‘E’) was therefore not a binding document between the Appellant and the Respondent and therefore not a basis for the activation of the Jurisdiction of the court. See Abafogu v. Shell Petroleum Development Co. Ltd. (1999) 8 N.W.L.R. (pt.613) 12; A.C.B. v. Nwodika (supra); Union Bank Ltd. v. Edet (supra).

I hold the view therefore that the learned trial judge was wrong to have held that Exhibit ‘E’, the collective Agreement was binding on the parties there being no evidence that the Collective Agreement was incorporated into the Contract of Service Agreement. I resolve issues one and two in favour of the Appellant.

The submission of the Appellant on issue three is that the learned trial Judge erred by awarding the Respondent 9-1/2 months salary with all the fringe benefits within the said period as damages for wrongful dismissal. He contends that the measure of damages recoverable for dismissal or termination of employment is determined by what the employee would have earned over a period of notice required for determination, citing the cases of N.O.M. Limited v. Daura (1996) 8 N.W.L.R. (Pt.468) 601 ; Western Nigeria Development Corporation v. Abimbola (1966) All NLR 150 at 132.

The learned counsel for the Appellant further submits that since the Contract of Employment (Exhibit ‘K’) entitles the Respondent one month’s notice before the termination of his appointment, the Respondent is entitled to only one month salary in lieu of notice together with the fringe benefits within the one month relying on the case of Obo v. Commissioner of Education, Bendel State (1993) 2 N.W.L.R. (pt.273) 46. It is his further contention that parties are bound by the terms of their contract and that courts will not rewrite contract for the parties citing and relying on these cases, viz: Calabar Cement Company v. Daniel (1991) 4 NWLR (pt.t88) 750; Niger Dams authority v. Chief Lajido (1976) 5 SC 207.

In conclusion, learned counsel submitted that the Respondent is not entitled to any salary in lieu of notice having been dismissed on grounds of gross misconduct placing reliance on the case of Osakwe v. Nigerian Paper Mills Ltd. (1998) 10 NWLR (pt.568) 1, adding that, should this court hold that the Respondent was wrongfully dismissed, he is entitled to one month salary with entitlements within the said one month which is in accordance with Exhibit ‘K’. In support of this argument, he cites the case of Nwobosi v. ACB Ltd. (1995) 6 NWLR (pt.404) 658. He urged this court to resolve this issue in favour of the Appellant.

In his submission, the learned counsel for the Respondent stated that what the Respondent claimed was his “outstanding salaries and entitlements from 1st October 1992 to the date of Judgment, but what the Appellant conceded was that damages be awarded “from the time the appointment was terminated by dismissal notice and the time the action was filed”. He opined that having made such concession, it is too late in the day to withdraw same as the Appellant cannot be allowed to approbate and reprobate. He urged this court to resolve this issue against the Appellant.

In the instant case, clause 7 of Exhibit ‘K’, the contract of Service Agreement states as regards period of notice as follows:-

“Notwithstanding anything herein contained either the Bank or the Official may determine this agreement at any time giving to the other one calendar month’s notice in writing in that behalf but the Bank shall have the right to pay to the Official one month’s salary in lieu of such notice”.

The agreement of the parties herein as encapsulated in paragraph seven of Exhibit ‘K’ reproduced above is quite clear and unambiguous to the effect that each party wishing to terminate this agreement shall give the other one calendar month’s notice but that the bank ie Appellant herein shall have the right to pay to the Official one month’s salary in lieu of notice. I need to emphasize that in a contract of service, parties are bound by the terms of the contract. There is a clear distinction between termination of a contract of employment and a dismissal. Termination gives the parties the right to determine the contract at any time by giving the prescribed period of notice. Dismissal on the other hand, is a disciplinary measure which carries no benefits. See Adeko v. Ijebu-Ode District Council (1962) 1 SC NLR 349.

In the instant case, the learned trial Judge after holding that the dismissal was wrongful, ordered the Appellant to pay to the Respondent 9-1/2 months salary and allowances in the following words:

“I have closely looked at the Plaintiff’s lengthy list itemizing his damages. He did not specifically prove them but the Defendant’s counsel has conceded that damages awarded should be from the time the appointment was terminated by dismissal notice and the time action was filed in court.

I therefore make a declaration that the Defendant’s dismiss at of the plaintiff as per its letter dated 14/10/92 was irregular and wrongful. On the measure of damages where the employer terminates the employee’s employment without notice, the employee is entitled to one month salary in lieu of notice including all his benefits accruable within the period. Also where the employee is dismissed and the court finds the dismissal to be wrongful, then the employee is entitled to one month’s salary. Where an employee is rightly and justifiably dismissed by his employer, no damages would be awarded. See Oladapo Maja v. Leandro Stocco (1968) All NLR 142or the reason already mentioned. The Defendant shall pay to the Plaintiff all his outstanding salaries and entitlements in all their ramifications from 1st October, 1992 until 13th July, 1993. Cost of N3,500.00 is awarded to the plaintiff and against the Defendant”.

From the Judgment of the learned trial Judge, the only reason why the Appellant was ordered to pay the salaries for 9-1/2 months was because counsel for the Appellants had conceded that the Respondent be paid for such a period. I am quick to point out that learned counsel was not a party to the agreement between the Appellant and the Respondent. Therefore, he cannot even in his submission alter the terms of the contract between the parties. Although the learned trial Judge did not state when the learned counsel made the concession, it is my view that such concession merely flies on the face of Exhibit ‘K’ the Contract of Service Agreement between the parties. The Apex Court has clearly stated that the measure of damages for wrongful dismissal is, prima facie, the amount the Plaintiff would have earned had he continued in the employment but where the Defendant had the right to terminate the contract before the end of the term, then damages should only be awarded to the end of the earliest period at which the Defendant could have so terminated the contract. See Western Nigeria Development Corporation v. Abimbola (1966) All NLR 150. Even as the learned trial Judge found that the dismissal of the Respondent was wrongful in this case, it is my view that the measure of damages he could have awarded was for only one month in lieu of notice as contained in Exhibit ‘K’ the Contract of Service Agreement. The court below was therefore in grave error in awarding damages unilaterally for 9-1/2 months without recourse to the agreement between the parties. This issue is again, resolved in favour of the Appellant.

The learned counsel for the Appellant argued issues four and five together and I intend to resolve them accordingly. It was the submission of learned counsel for the Appellants that the Respondent, having admitted that having been promoted as a Senior Staff of the Bank, he could not belong to the Association of Banks, Insurance Employees, yet he a participated in the strike action organized by a splinter group of the union against the directive of the parent union. He opined that this amounted to gross misconduct which attracted summary dismissal. He relies on these cases: Nwobosi v. ACB (1995) 6 NWLR. (pt.404) 658; Maja v. Stocco (1968) All NLR 142; Ajayi v. Texaco Nig. Ltd. (1987) 3 NWLR (pt.62) 577; Sule v. Nigerian Cotton Board (1985) NSCC (pt.11) 807.

Learned counsel further stated that the Respondent’s letters to the Appellant ie Exhibits ‘M’ & ‘N’ which are Letters of Apology show that he knew the gravity of his action and as such the Appellants were right to summarily dismiss him. On the issue as to whether or not the Respondent was given fair hearing, he submitted that when Appellant confronted the Respondent and others with their misconduct, they apologized meaning that they committed wrong doing. That the other employees accepted to resign in order to collect gratuity and pension but the Respondent refused and opted to come to court. He urged this court to hold that the Respondent was properly dismissed and that the court below was wrong to hold otherwise. He urged further that these issues be resolved in favour of the Appellant.

In his reply, the learned counsel relied on Exhibit ‘E’ the Collective Agreement to submit that the Respondent had right to take part in the strike. Therefore, according to him, the court below was right to have declared the dismissal wrongful particularly as the Respondent was not given time to make representation. He urged this court to resolve these issues against the Appellant.

Some key issues which the Appellant anchored the dismissal of the Respondent are that he attended union meetings without the permission of his employer when he was not even supposed to be a member of the union. This fact is contained on page 58 lines 8 – 22 of the Record of Appeal where the Respondent stated that having been promoted as a Senior Staff of the Bank, he could not belong to the Association of Banks, Insurance Employees. This is moreso as the group which embarked on the strike was a splinter group of the union. What this means is that the union recognized by the Bank did not sanction this strike action. It follows that the parent body of the Association from where the splinter group emanated did not also sanction the strike action. The Respondent was warned by his employer through a circular, Exhibit ‘O’ to desist from the illegal strike. The National body also pleaded with the Respondent to shelf the strike action but all these pleas fell on deaf ears as he called out the staff and locked his employer’s place of business for six days with all the attendant consequences including loses. This, in my opinion amounted to a gross misconduct entitling his employer to summarily dismiss him from service. The Respondent knew or ought to have known the enormity of his action of leading a splinter group not recognized by the parent union and his employer on a strike action which paralysed activities in various branches of his employer.

In Emmanuel Nwobosi v. African Continental Bank Ltd (Supra) the Supreme Court held that the principle of law is well settled that willful disobedience of a lawful and reasonable order of an employer by an employee is of a definite act of misconduct which, at common law, attracts the penalty of summary dismissed since such willful disobedience is a reflection of a total disregard of an essential condition of a contract of service, namely, that the servant must obey a proper, reasonable and lawful order of the master in default of which their contractual relationship cannot be expected to continue. I think every employee who wishes to keep his job must bear this in mind. See Maja v. Stocco (Supra); Sule v. Nigerian Cotton Board (Supra).

The conduct of an employee which constitutes gross misconduct, without much ado, attracts summarily dismissal. Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee. See Olanyan v. University of Lagos (1985) 2 NWLR (Pt.5) 17; Sule v. Nigerian Cotton Board (Supra).

In the instant case, I think the conduct of the Respondent of forming an illegal association and using same to paralyse the work of his employer in spite of several pleas including that of the main and recognized union, and the Respondent himself, being a Senior member of Staff and not being entitled to belong to this union, was a grave act of misconduct which attracted summary dismissal without any benefits at all. The learned counsel for the Respondent had submitted that the Respondent was not given an opportunity to make representations and yet the Respondent wrote Exhibits ‘M’ and ‘N’ which are apologies to the Appellant which, based on the said letters of apologies, gave the Respondent and his other colleagues an opportunity to resign so as to enjoy gratuity and pension. Others accepted this window of opportunity but the Respondent rejected the offer. There were indeed some discussions and negotiations which produced a result which the Respondent rejected.

I had earlier in this Judgment held that it is Exhibit ‘K’ and not ‘E’ that governs the relationship between the Appellant and Respondent in this case. The learned counsel for the Respondent based his submission on Exhibit ‘E’. This is erroneous as the Respondent is not a party to Exhibit ‘E’ which is the Collective Agreement. Therefore, his arguments based on the said exhibit are hereby discountenanced.

It is my well considered opinion that the court below was wrong in holding that the dismissal of the Respondent was wrongful. The Respondent committed acts of gross misconduct which attracted summary dismissal. This issue is therefore resolved in favour of the Appellant. Having therefore resolved all the five issues in favour of the Appellant, it is crystal clear that this appeal is meritorious and is hereby allowed. The Judgment of the High Court Lagos State in suit no.LD/2097/93 delivered on 22nd January, 1999 by D. F. Akinsanya, J., is hereby set aside. In its place, I hold that the dismissal of the Respondent was lawful and regular. Also, the Respondent, being guilty of gross misconduct, he is not entitled to any damages at all. I shall make no order as to costs.

CROSS APPEAL

This Cross Appeal also stems from the Judgment of the Lagos State High Court delivered on 22nd January, 1999. The learned trial Judge, having held that the dismissal of the Cross Appellant was wrongful, failed and/or refused to order reinstatement of the Cross Appellant. The Cross Appellant then filed Notice of Cross Appeal on 21st April, 1999 which said notice contains two grounds of appeal. The learned counsel for the Cross Appellant has formulated one issue for determination to wit:-

“Whether the learned trial Judge was right in refusing to order the reinstatement of the Cross Appellant and payment of his outstanding salaries and entitlements”.

The learned counsel for the Cross Respondent also adopted the lone issue as distilled by the Cross Appellant for the determination of this Cross Appeal.

Arguing this issue, the learned counsel for the Cross Appellant submitted that a contract of service in a commercial institution like the Union Bank Plc is not in the nature of a contract of personal service of a driver or cook. That while no court will order a cook to continue to work for a master who has determined his appointment, nothing prevents the court from granting a declaration that the contract still subsists where a University or a Bank has dismissed a staff illegally or wrongfully. He cites and relies on the cases of Dr. Adesagun Banjo v. University of Ibadan (1977) OYSHC (pt.11) 182 at 208 – 211; Shitta Bay v. Federal Civil Service Commission (1981) 1 SC 40, Laoye v. Federal Civil Service Commission (1997) 2 NWLR (pt.106) 52; Olaniyan v. University of Lagos (1985) 2 N.W.L.R (pt.9) 599; amongst others.

Conceding that Nigerian courts have been very reluctant to order the reinstatement of staff who have been removed from a bank on the ground that such appointment has not been backed by statute, he however faults such line of thinking. He submits that employment of a bank staff also enjoys statutory flavor referring to the following statutes:-

1. Companies and Allied Matters Act (cap 59) Laws of the Federation, 1990.

2. Labour Act

3. Banking Act

4. Trade Unions Act

5. Trade Disputes Act.

He urged this court to hold that the above Acts regulate the employment of the cross Appellant which makes it to have statutory flavour. He urged this court to resolve this issue in favour of the Cross Appellant.

In his reply, learned counsel for the Cross Respondent submitted that a court will not impose an employee on an unwilling employer just as no employer can prevent an employee from resigning from his employment. He relies on the case of NNPC v. Idoniboye-Olu (1996) 1 NWLR (pt.427) 655. He further submitted that a court will only order reinstatement where special circumstances exist as in where the contract of employment has a legal or statutory flavor thus putting it over and above the ordinary master and servant relationship or a special legal status such as a tenure of public office is attached to the contract of employment. He also cites the cases of Olaniyan v. University of Lagos (supra) and Shutta-Bay v. Federal Public Service Commission (Supra).

Learned counsel urged this court to hold that the contract of service of the Cross Appellant does not have statutory flavor. That the Cross Appellant in his pleadings and at the trial before the lower court did not plead which statute governed his employment with the Cross Respondent nor did he lead evidence on the issue. It is his view that the Cross Appellant cannot therefore urge the court to grant his prayer on it. He submits further that the learned trial Judge was right in refusing to order reinstatement of the Cross Appellant. He refers to the cases of Union Beverages Ltd. v. Owolabi (1998) 1 NWLR (Pt.88) 128; Ajayi v. Texaco Ltd. (1987) 3 NWLR (pt.62) 577. He urged this court to hold that the cases cited by the Cross Appellant in his brief are inapplicable to the facts of this case.

On the issue of salary and entitlements, he submitted that the court is to confine itself to the terms of the contract of service between the parties referring to the case of Udemah v. Nigeria Goal Corporation (1991) 3 NWLR. (Pt.180) 477 and Ihezukwu v. University of Jos (1990) 4 NWLR (pt.146) 598. He further states that Exhibit ‘K’ stipulates one month notice or a month’s salary in lieu of notice with entitlements of the said month where the court finds the dismissal to be wrongful.

Finally, he urged this court to hold that courts can only order reinstatement on statutory bodies like the Government or Universities and not Banks. He urged this court to resolve this issue against the Cross Appellant.

In view of my decision in the main appeal that the Respondent/Cross Appellant’s dismissal was lawful and regular, it appears to me that the said decision has knocked off the substratum of the Cross Appeal. The whole argument on the lone issue in the Cross Appeal hinges on the Judgment of the lower court that the dismissal of the Cross Appellant was unlawful. If I should stop here and hold that this Cross Appeal has become spent and academic, I would still have satisfied my conscience that I have performed my duties to the fullest. But for the avoidance of doubt and probably the enhancement of knowledge, I shall take the arguments to their logical conclusions.

1. The contract of employment has a legal or statutory flavor thus putting it over and above the ordinary master and servant relationship; or

2. A special legal status as a tenure of public offices is attached to the contract of employment.

See Olaniyan v. University of Lagos (1985) 2 NWLR (pt.9) 599; NNPC v. Idaniboye-Oba (supra); Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40.

In the instant case, no special circumstances have been disclosed to warrant a declaration being made in favour of the Respondent/Cross Appellant even if his dismissal was wrongful. He did not plead and lead evidence that his employment is governed by any statute. Although the learned counsel for the Cross Appellant listed some statutes in their brief, none of those statutes was named as the one governing the Cross Appellant’s contract of service.

An employment is said to have a statutory flavor when the appointment and termination of same are governed by statute. It is only in this circumstance that a declaration that the contract still subsists will be made. In other circumstances, it is rarely made. See P. C. Imoloame v. West African Examination Council (1992) 9 NWLR. 303; Bankole v. NBC (1969) 2 All NLR 371. All the cases cited by the cross Appellant showing where reinstatement was ordered relate to contract of employment with Universities and Statutory bodies in which the courts interpreted the provisions in the relevant statutes vis-a-vis the employment of any of their staff either terminated or dismissed. The Cross Appellant herein is not in that category.

As regards the payment of salaries and entitlements, I have already dealt with this in the main appeal but suffice it to say that where a court is to consider issue of damages for wrongful dismissal, the court is bound by and should confine itself to the terms of the contract of service. In the instant case, Exhibit ‘K’ stipulates one month notice or a month’s salary in lieu of notice with entitlements of the said month. This is the only obligation the Appellant/Cross Respondent owes to the Respondent/Cross Appellant should the court hold that he was wrongly dismissed. Any other obligation outside this is irregular, unlawful, null and void. See Udemah v. Nigerian Coal Corporation (1991) 3 NWLR (pt.180) 477; Ihezuchu v. University of Jos (1990) 4 NWLR (pt.146) 598. This court has decided in the main appeal that the Cross Appellant’s dismissal was lawful and regular, therefore, he was not entitled to any payment whatsoever. The inevitable outcome of this issue is that it does not avail the Cross Appellant at all.

Having therefore resolved the lone issue in this Cross Appeal against the Cross Appellant, this Cross Appeal lacks merit and is hereby dismissed. The decision of the lower court which refused to order reinstatement of the Respondent/Cross Appellant is hereby upheld. I also make no order as to costs in the Cross Appeal.

KUMAI BAYANG AKAAHS, J.C.A.: I read before now the illuminating judgment of my learned brother, Okoro JCA. It is the law that once there is no privity of contract between the parties, a party cannot enforce such a contract. There was no privity of contract between the appellant and the respondent in respect of Exhibit “E” even if it was made for his benefit. The learned trial Judge was wrong to hold that Exhibit E was binding between the appellant and the respondent. It was this erroneous view taken by the trial Judge that led to the award of 9-1/2 months salary and fringe benefits in favour of the Respondent whereas Exhibit K entitles the respondent to one month’s notice or a month’s salary in lieu of notice. The respondent’s employment had no statutory flavor, consequently even where his employment was wrongly terminated, the measure of damages would be limited to the period which he was entitled to be served notice. The respondent breached the terms of his employment by embarking on strike, hence his dismissal was not wrongful and so he was not entitled to any payment whatsoever.

As his employment lacked statutory flavor, he was not entitled to be reinstated. The lower court was right to refuse making an order for his reinstatement.

The main appeal succeeds and it is allowed. The cross-appeal fails and is dismissed accordingly.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the privilege of a preview of the Judgments in the Appeal and cross appeal, most eloquently prepared by my lord Okoro JCA and I agree with the conclusions and orders made absolutely and adopt same as mine. I cannot add anything more useful other than think, with respect, that the terms of the collective Agreement would appear to have been incorporated into the service agreement Exhibit E, as can be inferred from the third paragraph of Exhibit “A” (The service agreement). However, the facts of the case and evidence led is to my mind such that has made the applicability of the said collective Agreement a hollow and distant cry, as the Respondent was not only a non member of the recognized Association of Employees but of a splinter group (on his admission) and was, therefore, on an illegal or wrongful frolic of his own in the committal of acts in breach of his duty to his employer. His dismissal was justified and his Cross Appeal against same and prayer for reinstatement and payment of accrued entitlement had no basis.

Accordingly, I align myself with my learned brother, Okoro JCA, in concurring that the Appeal has merit while the Cross Appeal is devoid of any merit and must fail. I abide by the consequential orders relating to the payment of an entitlement of only one month’s salary in lieu of one month’s Notice in favour of the Respondent/Cross Appellant and the non award of costs in the respective appeal and cross appeal.

Appearances

O. E. Ezeogu Esq.For Appellant

AND

O. K. Salawu Esq.For Respondent