In that case, Ewerami claimed for a declaration that by reason on his wrongful dismissal by the defendant bank he was still in their employment.
The facts found by the trial Court which were not challenged was that plaintiff was employed by the defendant bank on 21st March, 1964. At the commencement of action in 1974, he was a member of the permanent staff of the defendant bank in the post of Archivist. On the 25th June, 1973, plaintiff received a letter from the defendant, transferring him from the Ring Road Branch, Benin City where he was then posted to their Jos Branch, he was to resume there on the 2nd July, 1973. Plaintiff was under subpoena to appear before the High Court Benin City on 2nd July, 1973 to testify in an action brought by the Customer of the defendant bank against the Bank. Then a catalogue of events followed.
An order of court was applied for and obtained restraining the defendant bank from transferring plaintiff to Jos till the suit in which he was subpoenaed to give evidence was disposed of. Plaintiff fell ill and was issued with sick leave certificate excusing him from duty. Unknown to plaintiff, defendant proceeded on the 3rd August, 1973 to transfer him to Jos. Meanwhile the Ring Road Branch of the defendant had stopped paying plaintiff’s salary. On the 25th September, 1973, plaintiff instructed a Solicitor to write to defendant bank. In their reply dated 13th November, 1973, plaintiff learnt for the first time that he had been instructed in another letter dated 3rd August, to proceed to Jos.
The defendant formed the view that plaintiff was guilty of gross insubordination by refusing to go on transfer to Jos.
Before the learned trial Judge the issue was whether plaintiff was lawfully dismissed by his employers for insubordination, or whether a case for dismissal had not made out in the absence of proof that he had received the letter of 3rd August, 1973 transferring him to Jos?
At the trial defendant did not offer any evidence.
Relying on the case made by the plaintiff, the trial Judge held that the purported dismissal of plaintiff from the employment of the defendant company was null and void. He accordingly declared that plaintiff was still in the employment of the defendant company.
Defendant company appealed. On appeal, this Court held that there was no material before the court from which it could hold that the plaintiff had been insubordinate by failing to proceed on transfer to Jos pursuant to a letter of August 3, 1973 from the defendant directing that he should do so. Their Lordships held that the onus of establishing the existence of this letter was on the appellant and that they had failed to do so. It was held that the learned trial Judge was right.