BANK OF AGRICULTURE v. GORDY (2021)

BANK OF AGRICULTURE v. GORDY

(2021)LCN/15186(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, April 16, 2021

CA/YL/69/2020

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

BANK OF AGRICULTURE LIMITED APPELANT(S)

And

IYAMA P. GORDY RESPONDENT(S)

RATIO

ATTITUDE OF THE APPELLATE COURT REGARDING INTERFERENCE WITH EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

It is the duty of the learned trial Judge to evaluate evidence adduced before him. Where a trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the judgment of the trial Court can be supported by evidence. See EZE V. OKOLOAGU (2010) 3 NWLR (Pt. 1150)182; AKINOLA V. OLUWO (1962)1 SCNJ PAGE 352. PER BITRUS GYARAZAMA SANGA, J.C.A.

WHETHER ADMITTED FACTS NEED FURTHER PROOF

The law is trite that where facts are admitted they do not need to be proved any longer as they become binding on the party admitting them. In other words, where a fact is pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. See Chukwu V. Akpelu (2014)13 NWLR 359 at 371; Bunge V. Gov. of Rivers State (2006)12 NWLR (Pt. 995)573. PER BITRUS GYARAZAMA SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Respondent as Claimant instituted this Suit No. NICN/YL/10/2018 against the Appellant as Defendant before the National Industrial Court of Nigeria Yola Judicial Division, K. D. Damulak J., presiding by a complaint filed on 9th November, 2018 claiming for the following reliefs:-
A. A Declaration that the investigation and eventual dismissal of Claimant was done in bad faith, malicious, out of sentiments and emotions as the Claimant is not culpable after the said investigation.
B. A Declaration that the Claimant being subject to a head, who is her superior in the Yola Branch of the Defendant as at the period in question, cannot be held liable for the actions or inactions of the head or her superior as the case may be.
C. A Declaration that the Claimant cannot be held liable for the actions or inactions of activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the Manager of the bank there.
D. A Declaration that the Claimant is entitled to compensation from the Defendant for her wrongful dismissal from

office, the embarrassment caused as a result of the actions of the Defendant.
E. General damages or compensation in the sum of N30,000,000.00 (Thirty million naira) against the Defendant in favour of the Claimant for wrongly dismissing the Claimant in bad faith and for no concrete reason, causing the Claimant trauma, pains and other hardships.
F. The cost of this action. (pages 3 – 15 of the Records).

On being served with the Claimant’s processes, the Defendant filed a Statement of Defence containing a counter-claim on 13/2/2019. The Defendant counter-claimed against the Claimant as follows: –
A. The sum of (N16,308,869.83) Sixteen million, three hundred and eight thousand, eight hundred and sixty nine naira eighty three kobo being the total amount misappropriated by the Claimant while in the service of the Defendant between the year 2013 to 2016 through illegal withdrawal, withdrawals in cash of insurance premium and stamp duties.
B. The sum of (N41,088.95) Forty one thousand, eighty-eight naira ninety five kobo being furniture allowance collected by the Claimant for the year 2016/2017 which she has failed to repay.

Interest at the CBN approved rate per annum on these sums from March, 2017 until judgment.
D. 10% interest on judgment sum until final liquidation.
E. The sum of (N5,000,000.00) Five million naira being counsel’s professional fee for prosecuting this suit in addition to the handling cost of this suit. (pages 89 – 94 of the Records).

The Claimant then filed a Reply to the Defendant’s Statement of Defence to the Counter-Claim on 9th May, 2019. (pages 127 – 129 of the Records).

Issues having been joined, the matter went to trial. The Claimant entered the witness box and testified as CW1 on 20/6/2019. During the testimony in chief, she tendered several documents in evidence which were marked as Exhibits IPG1 to IPG14 respectively. Thereafter learned counsel to the Defendant cross examined the witness. (pages 166 – 168 of the Records). Mallam Auwal Ibrahim entered the witness box as DW1 and testified on behalf of the Defendant. In his testimony in chief DW1 tendered two documents in evidence which were marked as Exhibits AI1 and AI2 respectively. Thereafter he was cross-examined by learned counsel to the Claimant

and discharged. The learned trial Judge ordered for final written addresses to be filed and exchanged. On 23rd September, 2019, Final Written Addresses by learned counsel to the parties were adopted and the learned trial Judge adjourned for judgment. Judgment was delivered on 2nd December, 2019. Having reviewed the facts of the case before him, the testimonies of witnesses and the submission by learned counsel contained in their respective Final Written Addresses, the learned trial Judge reached the following conclusion: –
“For the avoidance of doubt, it is held that the case of the Claimant succeeds and the counter-claim of the Defendant fails and it is hereby declared and ordered as follows: –
1. “It is hereby declared that the dismissal of the Claimant was contrary to the terms of employment and wrongful.
2. It is hereby declared that the Claimant, being subject to and having acted under a head, who is her superior in the Yola Branch of the Defendant as at the period in question cannot be held liable for transactions without approval or authorization.
3. It is hereby declared that the Claimant cannot be held liable for the actions

or activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the Manager of the Bank there.
4. That the dismissal of the Claimant is hereby remitted to termination with effect from 15/3/2017, the date of the dismissal.
5. The Defendant is hereby ordered to calculate and pay to the Claimant two months basic salary in lieu of notice.
6. The Defendant is hereby ordered to calculate and pay to the Claimant here terminal benefits, having served for 17 years and 4 months.
7. The Defendant is hereby ordered to pay to the Claimant the sum of N100,000.00 as cost of this action.”

The Defendant was aggrieved with this decision by the learned trial Judge, its counsel filed a Notice of Appeal containing four grounds of appeal on 14/2/2020, which shorn of their particulars, reads thus: –
1. The trial Court erred in law when it held “that the dismissal of the Claimant was contrary to the terms of employment and wrongful”.
2. The trial Court erred in law when it held “that Claimant being subject to and having acted under a head, who is her superior in

the Yola Branch of the Defendant as at the period in question, cannot be held liable for transactions without approval or authorization”.
3. The trial Court erred in law when it held “that the Claimant cannot be held liable for the actions or activities that transpired at the Ganye Branch of the Defendant before she was posted to the said branch to take over as the Manager of the Bank there”.
4. The trial Court erred in law when it held that “the defendant has no evidence of misappropriation of N16,308,869.83 or any other sum against the Claimant apart from the report of disciplinary panel which found that there was no evidence to establish that the Claimant directly benefited from financial infraction in the Branch office”.
The Appellant sought for the following relief:
“An Order of Court setting aside the decision of the National Industrial Court of Nigeria, Yola Division in Suit No. NICN/YL/10/2018 and grant the Appellant’s counter claim.”

The Record of Appeal was compiled and transmitted to this Court on 8th July, 2020. J. A. Udeagbala Esq., filed the Appellant’s brief of

argument on 21st August, 2020. Learned counsel formulated three issues from the four grounds of appeal as follows: –
1. Was the trial Court right in holding that Respondent’s dismissal was contrary to the terms of employment and wrongful? (Ground 1).
2. Whether the trial Court was right when it substituted its own views for the views of the Appellant’s disciplinary committee and thereby reversing the Respondent’s dismissal to termination of appointment? (Grounds 2 and 3).
3. Was the trial Court right in holding that there is no evidence of misappropriation against the Respondent? (Ground 4)

Learned counsel to the Respondent, J. E. Okonkwo Esq., filed the Respondent’s brief of argument dated 23/9/2020 on 14/10/2020 but deemed properly filed and served on 9/11/2020. Learned counsel also formulated three issues for determination as follows:
1. Whether the trial Court was right when it held that based on the facts of this case and the provision of the handbook under which the Claimant was dismissed, the dismissal of the Claimant is accordingly contrary to the provisions of the employer’s handbook and terms of

employment as the evidence shows that everything she did was by the approval or authorization of the branch manager. (Ground 1)
2. Whether from the facts and circumstances of this case, it can be said that the trial Court substituted its own views for the views of the Appellant’s disciplinary committee in reversing the Respondent’s dismissal to termination of appointment. (Grounds 2 and 3).
3. From the facts and circumstances of this case, was the trial Court right in holding that there is no evidence of misappropriation against the Respondent. (Ground 4)

Upon being served with the Respondent’s brief, learned counsel to the Appellant filed a Reply brief on 30/10/2020 but deemed as properly filed and served on 9/11/2020.

BRIEF FACTS OF THE CASE
The facts, in brief that led to filing this suit from the perspective of the Respondent was that she was punished with a dismissal letter from the Appellant’s office for the actions or inactions of her superior one Wakil Liman, now deceased, branch Manager Yola Branch who was her head in the office for financial infractions discovered while she was subject to the said Wakil

Liman and also for infractions that occurred at the Ganye Branch of the Appellant even before she was transferred there, wherein she was queried. From the response of her query, the Appellant constituted a disciplinary committee to look into the Respondent’s response. After inviting and hearing the Respondent they came up with their observation to the effect that there was no evidence against the Respondent (Claimant) to show that she directly benefitted from the infraction and thereby recommended that she be terminated from her employment. Rather than terminate her employment, the Appellant then proceeded to dismiss her. Aggrieved by her dismissal, she instituted this action at the National Industrial Court of Nigeria, Yola Division.

On its part, the Appellant’s defence was that following the report of an investigative committee set up by the Appellant to look into the accounts of Yola Branch office between 2013 – 2016, the claimant was queried over some infractions discovered during the investigation. Following her response to the querya disciplinary committee was set up by the Appellant which found that Respondent contravened

paragraph 6.5.2 of the Employees Handbook (Exhibit IPG 3) and recommended her dismissal to the management of the Appellant and she was thus dismissed from the service of the Appellant on March 15th, 2017.

In determining this appeal, I will adopt the issues as framed by learned counsel to the Appellant. Learned counsel to the Appellant made his submissions on issues 1 and 2 together which I will also do likewise:
1. “Was the trial Court right in holding that Respondent’s dismissal was contrary to the terms of employment and wrongful.” Distilled from ground 1.
2. “Whether the trial Court was right when it substituted its own view for the Appellant’s Disciplinary Committee and thereby reversing the Respondent’s dismissal to termination.” Distilled from Grounds 2 and 3.

Learned Counsel to the Appellant submits that the dismissal of the Respondent was done in accordance with the terms of her employment therefore, it is neither contrary to the terms of her employment nor wrongful. He referred to paragraph 6.10; 6.7; 6.7.1; and 6.5.2(d) of the employee Handbook and relies on AKINFE V UBA PLC (2007) 10 NWLR

(Pt. 1041) 186 AT 200; KATTO V CBN (1999) 5 SC (Pt. 11) 21 AT 25; (1999)6 NWLR (Pt.607) 390. That following the report of the audit committee set up by the Appellant and the response of the Respondent to her query, the panel recommended among others the dismissal of the Respondent from service. Learned counsel contends that the decision of the trial Court that the dismissal of the Respondent was wrongful and not in accordance with terms of contract of her employment is misconceived because what can make a dismissal wrongful as erroneously held in this particular case is non-compliance with Exhibits IPG1 and IPG3. Cited D. A (NIG) AIEP LTD V. OLUWADARE (2007) 7 NWLR (Pt. 1033) 336 AT 361.

He submits that the trial Court is attempting to be sentimental in a matter where its duty is to consider the legality or otherwise of the Appellant’s decision and not its correctness. That there are basically three ways an employment can be brought to an end. He relied on AKINFE V UBA PLC (SUPRA) 195; EKUNOLA V CBN & ANOR (2013) 4-5 SC (Pt. V)43 AT 87 and submit further that one basic principle of master and servant relationship is that an employer can summarily

dismiss/terminate the employment of his servant for gross misconduct.

That the trial Court exceeded its jurisdiction when it decided to substitute its view for that of the disciplinary committee duly constituted by the Appellant by reversing the dismissal of the Respondent to termination and ordering Appellant to pay her damages and benefits. He cited page 168 lines 25-30 of the record and OSAKWE V. NIGERIA PAPER MILL LTD (1998) 7 SC (Pt. 11) 108 AT 116. Learned counsel contends that though the trial Court held that the dismissal of the Respondent was wrongful, but the testimony of the Respondent under cross-examination proves the contrary.

Learned Counsel submits further that Respondent admitted having caused losses of the Appellants assets, and the Appellant’s management decided on appropriate punishment as contained in the Employee Handbook binding on the Appellant and Respondent. He referred to paragraph 3.5.7 of Exhibit AI1 at page 83 of the record and cited OSAKWE V. NIGERIA PAPER MILL LTD (SUPRA) at PAGE 118. Finally, learned counsel submitted that the Respondent showed cross incompetence when she admittedly allowed the pilferage of

the property of the Appellant under her care thereby causing a huge loss of about N16,308,869,83 (Sixteen Million, Three Hundred and Eight Thousand, Eight Hundred and Sixty Nine Naira, Eighty Three Kobo).

In his submission on these issues, learned Counsel for the Respondent argued that his client was tried under Section 6.5.2 (d) of the Employee Handbook. The evidence before the Court by DW1 is that the Claimant was a deputy manager who did everything on the directives of the Branch Manager and submits further that the Appellant admit this much in framing the query issued to the Respondent and in the testimony of DW1 under cross-examination. He referred to pages 195 and 196 of the records. That the learned trial Judge based his judgment on the weight of evidence and issues canvassed before him on the merit. Cited: LAWAL V. DAWODU & ANOR (1972) LPELR – 1701 (SC) PAGE 26. That Appellate Courts are not concerned with whether the reasons for the decision of a Court is correct, but whether the decision itself is correct. When the decision is correct, an appellate Court will not interfere even if reasons adduced for arriving at the decision are

wrong. Cited: MOHAMMED V. MIN., F.M.E.H & U.D (2018) 16 NWLR (Pt. 1644) AT 179 AND 191.

Counsel further submits that the facts in KATTO V. CBN (1999) 5 SC (Pt. 11)21 at 25; (1999) 6 NWLR (Pt. 607) 390 cited and relied upon by the Appellant can be distinguished from the instant case since it deals with wrongful termination of employment in regards to contract of employment. That the instant case deals with the dismissal of an employee for the actions or inactions of her superior. The Respondent only followed the instruction of her superior officer all through these transactions which is the norm in any civil or military society as the case may be. He referred to pages 120-124 of the record. Learned counsel submitted that the trial Court in its wisdom never ordered the Appellant to restore the respondent back to her employment, but rather that the letter of dismissal be remitted to termination of her employment and made an order that her entitlements for working for over seventeen years be paid to her. He relied on NEPA V EL-FANDIU (supra) at 988.

Learned counsel submitted further that the action of the Appellant by dismissing the Respondent is not

only absurd and strange, but also falls short of the principles of natural justice. He relied on EZE V SPRING BANK PLC (2011) LPELR – 2892 (SC). Counsel contend that the authority of AKINFE V. UBA Plc (Supra) cited by the Appellant’s Counsel is of no moment to this appeal and urged this Court to distinguish same. That the Appellant’s witness (DW1) while being cross examined admitted clearly that the reason for dismissing the Respondent was as a result of the actions and inactions of her superior officer. He referred to page 195 of the record and cited: MILITARY GOVERNOR V. NWAUWA (1997) 2 SCNJ 60 AT 75 relied on by Appellant’s Counsel. Learned counsel to the Respondent submitted that the trial Court never at any point sit on appeal in respect of the matter placed before it since it never tampered with the final findings of the disciplinary committee. That one of the major grudge the Respondent had with the Appellant was making her responsible for the infractions that occurred at Ganye Cash Center, even before she was transferred there. While she was the head, she still had a superior that superintended over her activities and never had

any challenge with transactions personally conducted by her.

That the case of OSAKWE V. NIGERIAN PAPER MILL LTD (supra) cited by the Appellant is distinguishable from this case because in that case, the appellant admitted to personally committing the infraction alleged against him, whereas in the instant case, the Respondent was vilified for abiding by the instruction of her superior. He referred to page 39 of the record and contends further that the Respondent was trained to obey her superiors at all times in order not to be accused of insubordination. The Respondent apologized to placate the Appellant which is not an admission as insinuated by learned counsel to the Appellant.

Findings on issues 1 and 2:
Before delving into the main contention of the parties, it will be apt at this stage to make a distinction between termination and dismissal of employment. In both cases of termination and dismissal, the employment of an employee is brought to an abrupt end, albeit with varying consequences. Where a contract of employment is terminated simpliciter, the employee is accorded the privilege of receiving the terminal benefits provided for under

the terms of contract of the employment thereof. Characteristically, the right to terminate a contract of employment is mutually inclusive since either party may exercise it at will. Conversely, dismissal of an employment, more often than not, results in a loss of terminal benefit and it equally carries an unpleasant ‘opprobrium’ to the employee. See F.B.N PLC V. MMEKA (2015) 6 NWLR 507 AT 520; JOMBO V. PETROLEUM EQUALIZATION FUND (MANAGEMENT BOARD) (2005) 7SC (Pt. 2) 30 AT 43.

I have considered the oral and documentary evidence tendered and admitted at the trial, and the decision by the lower Court. The crux of the matter in justifying the respondent’s dismissal of the Appellant was that the employee Handbook Exhibit IPG3 was complied with and that the disciplinary committee recommended her dismissal. A careful consideration of the recommendations of the Disciplinary committee, which according to the Appellant recommended the Respondent’s dismissal, is key to determining this issue, it states thus:
“Recommendations by the Committee
The Staff was arraigned under Section 6.5.2 (d) and (I) of the Bank’s

Condition of Service which attracts dismissal from the service of the bank.
However, in view of the fact that there was no evidence to establish that she directly benefitted from the financial infractions in the branch office, management may, at its discretion under the prerogative of mercy, terminate her appointment from the services of the bank.” (page 124 of the record of appeal).
However the Appellant’s Counsel in paragraph 4.03 at page 9 of his Brief of Argument submit thus:
“The panel recommended among others the dismissal of the Respondent from the service of the Appellant. Pursuant to this recommendation, the management of the Appellant issued the Respondent with Exhibit IPG13, dismissing her from its services.”

From the above reprint of the Committee’s recommendation, it is clear that they recommended in clear terms that there was no evidence to show that the Responded benefited from the infraction and based on their findings recommended that the Respondents employment be terminated. While the Committee recommended the termination of the Respondent’s employment, the Appellant went ahead to dismiss

the Respondent from service. Upon considering the distinction in the definition between termination and dismissal of employment above, it is obvious that they are two distinct terms with different consequences which cannot be swapped one for the other as in the instant case. Upon considering the above quotations at page 124 of the record of appeal vis-à-vis the submission by learned counsel in the Appellant’s Brief of Argument, it is clear that the Appellant is attempting to mislead this Court. Learned Counsel who is supposed to be a Minister in the Temple of Justice to assist the Court in the administration of justice is not expected to go to any length to mislead the Court in order to secure victory for his client.
The trial Court held at page 197 of the record of appeal that:
“In the opinion of this Court, the just remedy for the Claimant in the circumstance of this case is an order remitting her dismissal to termination with her terminal benefit to be paid and it is so ordered from the date of her dismissal.”
The recommendations of the Committee states as follows:
“However, in view of the fact there was no

evidence to establish that she directly benefitted from the financial infractions in the branch office, management may, at its discretion under the prerogative of mercy, terminate her appointment from the services of the bank. “
See page 83 of the record of appeal.

The order issued by the trial Court was based on the recommendation of the Disciplinary Committee reproduced above. It is therefore obvious that the said trial Court only reinforced the recommendation of the said disciplinary committee set up by the Appellant. It is said that the Appellant refused or neglected to abide by the said recommendations. It is therefore absurd to suggest that the trial Court substituted its view for that of the Appellant. The trial Judge did not usurp the functions of the committee in any way, he was only enforcing the civil rights and obligation of the Respondent which the Appellant tried to suppress by dismissing the Respondent instead of terminating her employment as recommended by the Committee it set up for that purpose.

It is also my finding that the trial Court did not sit on the matter on appeal as contended by the Appellant’s Counsel

but rather made a review of the committees report. It is the duty of the learned trial Judge to evaluate evidence adduced before him. Where a trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the judgment of the trial Court can be supported by evidence. See EZE V. OKOLOAGU (2010) 3 NWLR (Pt. 1150)182; AKINOLA V. OLUWO (1962)1 SCNJ PAGE 352. There is therefore, no basis to interfere with the findings by the trial judge. I therefore resolve issues 1 and 2 against the Appellant and in favor of the Respondent.

Issue Three:
“Was the trial Court right in holding that there is no evidence of misappropriation against the Respondent?” Distilled from ground 4.

Learned Counsel for the Appellant submits that facts admitted need no further proof. He relied on Section 23 of the Evidence Act, Cap E14, Laws of the Federation 2011.

Learned counsel to the appellant submitted that in her statement of complaint as pleaded and tendered in Exhibit IPG6B, the Respondent admitted that her actions had affected the corporate image of the Appellant and pleaded for forgiveness. Also that in Exhibit IPG7, the Respondent regretted that she unwittingly took decision that resulted in the bank loosing funds and pleaded for leniency from the Appellant. He referred to pages 39 and 64 of the record.

Counsel submits further that parties are bound by their pleadings. Similarly, the Court is also bound by pleadings. Pleadings are the engine room of litigation and what is admitted need not to be proved. He relied on UNION BANK OF NIGERIA V. AYODARE & SONS (NIG) LTD. (2007) 4-5 SC 42 AT 68 AND AGBANELO V. DANTORO (2004) 5 SC (Pt. 11) 1 AT 15.

Counsel submits further that the Respondent took furniture advance loan to the tune of N41,088.95 (Forty one thousand, eighty eight naira ninety five kobo). That it is a loan and not a benefit or grant hence the Appellant is entitled to recover same from the Respondent. The relationship between the Respondent and the Appellant is guided by Exhibits IPG1 and IPG3, hence

Respondent is bound by the agreement duly entered by the parties under those documents. He relied on D. A (NIG) LTD AIEPL LTD V. OLUWADARE (SUPRA) PAGE 59.

In response, learned Counsel to the Respondent submits that facts admitted need no further proof. He relied on Section 123 of the Evidence Act, 2011 and submitted that the Appellant by their own evidence (Exhibit AI2) stated that there is no evidence to establish that the Respondent directly benefited from the financial infractions in the branch office. Similarly, the Appellant’s lone witness under cross-examination stated clearly that the Respondent was dismissed from service for what she allowed her superior do. He relied on BAALO V. FRN (2016) LPELR – 40500 (SC). It is his contention that Respondent followed instructions given to her by her superior and there is nowhere in Exhibit IPG7 wherein the Respondent ever mentioned that she took any decision.

Counsel submits that the Appellant at the trial Court referred to the Furniture advance Loan as furniture allowance which the Respondent maintained that herself and all staff members of the Appellant enjoyed that allowances on a

yearly basis. Upon failure at the trial Court, the Appellant now decided to change the name to Furniture advance loan instead of furniture Allowance. Such attitude by the Appellant is tantamount to approbating and reprobating before this Court. He relied on NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822 (SC) (PAGE 70-72).

Appellant’s Counsel filed a reply brief submitting wherein he submitted, inter alia, that the Respondent failed to plead the fact that all decisions and actions she took were as instructed by her late branch manager.

Findings on issue 3:
The law is trite that where facts are admitted they do not need to be proved any longer as they become binding on the party admitting them. In other words, where a fact is pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. See Chukwu V. Akpelu (2014)13 NWLR 359 at 371; Bunge V. Gov. of Rivers State (2006)12 NWLR (Pt. 995)573.

To adequately resolve this issue and answer the question raised therein, it is of importance to cite the response

by the Respondent to Exhibit IPGB at page 39 of the Records which states thus:
“So when he came to Yola as branch head, it was to me another opportunity to learn from a veteran. I assumed he had adequate experience and knowledge on the right procedure, so I took many instructions from him without questioning. Regrettably, this is one of such instructions.
Having had an experience earlier in 2008 while working in Bauchi branch in which my then manager termed me as being insubordinate. I learnt the hard lesson of questioning my superiors.
I regret that my action might have affected the corporate image of the bank and plead with your esteemed office to tamper justice with mercy.”

I do not agree with learned counsel to the Appellant that there was admission of financial misappropriation by the Respondent against the Appellant. From the above quoted reply by the Respondent, she was apologising because the act of taking instructions from her superior have affected the corporate image of the bank. When a document is read, it has to be read as a whole in order to make sense and achieve the purpose for which it was brought out. A party

is not allowed to just cut out or paraphrase or paragraph which favours his case to the detriment of conveying the actual meaning. As stated above ‘regrettably this is one of them’. No wonder even the Disciplinary Committee set up by the Appellant to investigate and make recommendations on the necessary action to take on the Respondent made the following findings:
“However, in view of the fact that there was no evidence to establish that she directly benefitted from the financial infractions in the branch office, management may, at its discretion under the prerogative of mercy, terminate her appointment from the services of the bank.”
See page 123 of the record of appeal.

The trial Judge held at page 192 of the record that:
“In this case, the documents shall aid us better in determining the issues. In an internal memo dated 22/9/2016 and titled audit observation, Exhibit IPG6A, the Defendant wrote the Claimant as follows:
‘We observe that as the head of retail banking Yola Branch, you allowed yourself to be used to suppress the internal controls of the bank by allowing the withdrawal in cash the sum

of N6,963,125.00 and N3,656,750.00 respectively as Insurance Premium and stamp duty. You should justify your action why disciplinary action should not be taken against you for such avoidable lapses.’
It is noteworthy that the accusation here is that of allowing herself to be used, implying she is not the perpetrator but was used. The question was how was she used? Her response to this may throw some light. On 23/9/2016, the Claimant responded as follows:
‘The late manager Alh Wakil Liman was the first manager that trained me as a new staff in the then Peoples Bank … So when he came to Yola as Branch Head, it was to me another opportunity to learn from a veteran. I assumed he had adequate experience and knowledge on the right procedure, so I took many instructions from him without questioning regrettably, this is one of such instructions.
Having had an experience earlier in 2008 while working in Bauchi branch in which my then manager termed me as being insubordinate. I learnt the hard lesson of questioning my superiors. I regret that my action might have affected the corporate image of the bank and plead with your esteemed office

to tamper justice with mercy as I promise that this can never happen again. (Underlining supplied for emphasis).
It is this response that defendant says is admission of the accusation.“

From the evidences adduced and the findings of the trial Court, it is clear that there is nowhere the Respondent admitted the allegations of financial infractions made against her and I so hold. To further fortify this position, the sole witness of the Appellant testified that the Respondent was punished for all she allowed her superior to do. See page 170 of the record. The Appellant contended that the Respondent took furniture advance loan to the tune of forty one thousand, eighty eight naira, ninety five kobo which Appellant intends to recover. However, from the counter-claim of the Appellant it referred to it as “furniture allowance for the year 2016/2017”. According to the Respondent, it is an allowance paid to each staff of the Appellant annually. The trial judge rightly found that the Respondent cannot be justifiably asked to refund furniture allowance legitimately paid to her before her dismissal. I agree with the reasoning and conclusion by

the learned trial Judge in that respect. This issue is also resolved in favour of the Respondent.

Upon resolving the three issues formulated by the Appellant in favour of the Respondent, it is my judgment that this appeal is bereft of merit. It is hereby dismissed. The judgment by the lower Court delivered on 2nd February, 2019 in Suit No. NICN/YL/10/2018 is affirmed by me. The Respondent is entitled to cost which I assessed at N100,000.00 against the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother BITRUS GYARAZAMA SANGA JCA. My learned brother has exhaustively dealt with the issues therein. I adopt the judgment as mine and abide by the consequential orders including the order as to costs.

Appearances:

A. UDEAGBALA, ESQ. For Appellant(s)

E. OKONKWO, ESQ. For Respondent(s)