➥ CASE SUMMARY OF:
J.E.A. Shuaibu V. Nigeria-arab Bank Ltd. (SC.68/1992, 24 April 1998)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Dismissal from employment.
Fair hearing.
Constitution of Court.
➥ CASE FACT/HISTORY
The appellant as plaintiff had brought an action against the respondent (then defendant) claiming inter alia the following reliefs, to wit: “(20) Whereof by reason of his dismissal, the plaintiff has suffered loss and damages and thereby claim as follows:- (i) A declaration that his dismissal is wrongful, unlawful, unconstitutional, contrary to the rules of Natural Justice, and the conditions of service as per the collective agreement and therefore null and void and of no effect whatsoever. (ii) A declaration that his dismissal being wrongful, unlawful and of no effect whatsoever, he is entitled to be reinstated to his job and to be paid the arrears of his salary and allowances from 31/8/88 till the date of judgment as per paragraph 18 above. (21) Alternatively, special Damages for wrongful dismissal as follows:- (a) Annual salary from 31/8/88 for 25 years which is the retirement age amounting to ₦525,200.00. (b) December bonus of ₦1745.33 for 25 years amounting to ₦43,633.25. (c) Leave Allowance of ₦1,047.20 for 25 years amounting to ₦26.180.00 (d) Housing Allowance of ₦6,000.00 for 25 years amounting to ₦150,000.00. (e) Transport Allowance of ₦300.00 per month for 25 years amounting to ₦90,000.00 (f) Entertainment Allowance of ₦600.00 for 25 years amounting to ₦15,000.00. Total for special Damages is ₦838,415.25 General Damages of ₦161.586.75 Grand Total = ₦1,000.000.00” At the end of the trial, the High Court Bauchi (Coram: Ike Okoye, J.) on 23rd February, 1990 awarded in appellant’s favour ₦155,000.00 special and ₦18,500 general damages.
Dissatisfied with the decision and the reliefs granted thereof to the plaintiff by the trial court, the defendant appealed to the Court of Appeal, Jos Division. In a considered judgment prepared and delivered by Ndoma-Egba JCA with which both Mukhtar and Okezie JJCA agreed, the appeal was allowed. The judgment of the trial court was set aside and order for dismissal of the plaintiffs claim was substituted. The plaintiff has now appealed to this court.
➥ ISSUE(S)
I. Whether the Court of Appeal was properly constituted in the hearing and determination of the appeal?
II. Whether the issue of cost arose as a ground of appeal before the Court of Appeal and whether it was even canvassed as an issue in that court?
III. Whether the Court of Appeal did not rely on facts unsupported, by evidence in coming to certain conclusions and if it did whether that did not occasion a miscarriage of justice?
IV. Was the Court of Appeal right on the pleadings and evidence to have concluded that in the circumstances of this case the appellant was given a fair hearing by the respondent before his summary dismissal?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPEARANCE OF ANOTHER JUDGE’S NAME IN THE RECORD IS AN ACCIDENTAL SLIP
‘The sudden appearance of the name of Adio JCA as delivering a concurring judgment must be without doubt a genuine mistake made in the course of compiling the record. Generally a court possesses the inherent power to amend its clerical slip in order to avert any misapprehension that may arise therefrom. This court has equally the inherent as well as statutory power under s. 22 of the Supreme Court Act, 1960 to correct such a slip made by the courts below. See Asiyanbi v. Adeniji (1967) 1 All NLR 82 and A.G. of Oyo State and Ors. v. Fairlakes Hotel Ltd. and Anor. (1988) 12 SCNJ (Pt. 1) at 12; (1988) (No.1) 5 NWLR (Pt.92) 1. What was recorded as concurring judgment of Adio JCA if excluded, would not affect the validity of the majority judgment or Ndoma-Egba and Okezie JJCA even if it were to be taken that Mukhtar JCA delivered a dissenting decision. See s. 258(3) of the 1979 Constitution (supra) and s. 9 of the Court of Appeal Act. 1976. The prime duty of any court in taking any decision is to do substantial justice. The wheel of justice could no longer be allowed to be clogged with technicalities. See Joseph Afolabi and 2 Ors. v. John Adekunle and 1 Or. (1983) 2 SCNLR 141 particularly at p. 149 where Aniagolu JSC delivering the lead judgment of the court with what Irikefe and Bello JJSC (as they then were) and Idigbe and Obaseki, JJSC all agreed, opined thus:- “…….it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in whirligig of technicalities, to the detriment of the determination of substantial issues between them.” See also Gwonto v. The State (1983) 1 SCNLR 142. In the light of the reasons above, I am unable to accept the argument of learned counsel for the appellant that because of the mix-up or accidental slip the judgment of the Court of Appeal is rendered incompetent, null and void.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE COMMENT ON COST WAS A PASSING REMARK
‘Reading the excerpt above, I am in agreement with the learned counsel for the respondent that what was stated therein was a mere passing remark by Ndoma-Egba, J.C.A. It did not amount to a decision within S. 277(1) of the 1979 Constitution. It was emphasized in Wilson v. Osin (1988) 4 NWLR (Pt.88) 324 that it is not every pronouncement made by a Judge that can be made the subject of appeal, but only such that qualifies as a decision under S. 277(1) of the 1979 Constitution. The point is totally misconceived and is lacking in substance. See also A.G. Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172 and Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47. The remark complained of did not affect the decision of the Court of Appeal and no miscarriage of justice resulted. Both the ground of appeal and the issue culled therefrom fail.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[‘The learned Justice of the Court of Appeal after thoroughly considering the evidence came to the following unimpeachable conclusion in his judgment:- “It is not disputed that an Area Manager could only approve credit facilities to the limit of ₦50,000.00 while the respondent in his status, is confined to ₦1,500.00 ceiling. The use of an internal voucher instead of a cheque for the withdrawal of the sum of money complained of, was, undeniably, contrary to the prevailing Banking practice in the appellant’s establishment. The irregularity of the transaction was therefore total, and on the part of the respondent, grossly negligent and disquieting. The only defence raised by the respondent was a plea, in Military Parlance, of “superior order” of the Area Manager. Respondent could not resist the latter’s representation, even if it was apparently irregular and indefensible. The representations made, according to the respondent, by the Area Manager, (Abdulkadir) that he was the incumbent Chairman of the Company (Cottos) in virtue of his position in the appellant’s Bank and a Director of it (Cottos) were not true and the documents presented to the respondent in support of the claim were, accordingly to D.W.1, fictitious, a situation that could have been easily and quickly verified from the Head Office of the Bank in Lagos. From the evidence on record, it seems to me that there was some scheming, the respondent appears to have withheld the whole truth about the transaction in question.”’]
.
.
↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.
[FINDING OF COURT IS SUPPORTED BY EVIDENCE
‘The learned Justice of the Court of Appeal in his lead judgment came to the following conclusions and rightly too in my opinion – “There is yet another phase to Issue C in the appellant’s brief of argument. This is equally important in the determination of this appeal. It poses the question was the dismissal of the respondent wrongful? Exhibit C the collective agreement of Association of Banks, Insurance and Allied Institutions, etcetera is, at best, a “gentlemen’s agreement”; an extra-legal document totally devoid of sanctions. It is a product of trade unionist’s pressure. The respondent claimed both in his pleadings and in his evidence adduced in support of them, that the tenure and security of his employment with the appellant rest on Article (e) of Exhibit G. It reads: “Before either summary dismissal or warning letter is effected, the employee shall be given a query and afforded the opportunity of defending himself in writing except where the employee has absconded. There is no evidence that the appellant as an employee of labour subscribed to the foregoing. Even if Exhibit G had the quality and force of law as they say ‘properly so called’, that is, it was brought about by known process of law-making, then the provision of Article 4 (II) that an employee may be summarily dismissed’ for wilful disobedience of lawful order or serious negligence’ is noticeable. The respondent ought to have taken this into account in his pleadings and evidence. He appears to have conveniently avoided that.” “Respondent’s entire defence that he acted on the instructions of his Area Manager, Abdulkadir lacks credibility. With the duration of the experience in banking the respondent claimed for which he was amply compensated by rapid promotions, he ought to know the limitations of the authority of an Area Manager vis a vis that of the Management at the apex. The authority of the former is clearly penultimate. In summary, any act outside the scope of an employee’s duties in his employer’s establishment which is prejudicial to the latter’s interest is wilful misconduct, considering the nature of the business and service in which his master is bound to provide to the customers. Applying the principles stated to the situation of the present appeal, the respondent did not prove his mettle to the end. If he did earlier, he subsequently soiled it. I now return to the point made by learned counsel for the appellant at the trial of this case that the terms and conditions of service of the respondent are neither statutory nor based on the constitution. These are controlled by Common Law and on Exhibit “A”. Under both, the misconduct exhibited by the respondent in this case justifies instant dismissal. In Professor Dupe Olatunbosun v. NISER (1988) 3 NWLR, (Pt. 80) 24 at page 31, the Supreme Court defined misconduct as follows: “Under Common Law and statute law disobedience of lawful order from any servant high or low, big or small is viewed with seriousness such conduct normally and usually attracts the penalty of summary dismissal as disobedience ranks as one of the worst forms warrant (sic) summary dismissal it is enough that the conduct of the servant of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant.” See also Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt. 62) page 577 at 579 where the Supreme Court held thus: “There is no fixed rule of law defining the degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of a grave and weighty character as to underline the confidence which should exist between him and the master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to premeptorily (sic) dismiss the employee irrespective of the condition of service.” The lead authorities I have cited are consistent with the definition of Maclyne in his impressive Book on “Unfair Dismissal” 2nd Edition at page 229. The Author stated: “There is no fixed Rule of Law defining the degree of misconduct which will justify summary dismissal. The conduct complained of has to be looked at in the context of (a) the nature of the business (b) the normal circumstances which prevail at the particular establishment and (c) the employees position. If the conduct, judged in the light of the above circumstances is seen as a deliberate flouting of the contractional conditions then summary dismissal is justified.” These are findings well supported and justified by the evidence with which I find no reason to interfere. See Joshua Ogunleye v. Babatayo Oni (1990) All NLR 341; (1990)2 NWLR(Pt.135) 45 and Tanbani Majamma v. The State (1964) NNLR 205.’]
.
.
.
✓ DECISION:
‘For the reasons stated above I find no merit in this appeal. I affirm the judgment of the Court of Appeal. The appeal is dismissed with ₦10,000.00 costs to the respondent.’
➥ FURTHER DICTA:
⦿ THE DECISION OF A COURT IS DETERMINED BY THE MAJORITY OF ITS MEMBERS
This fact did not occasion any miscarriage of justice bearing in mind that at least two members of the panel who heard the appeal (Ndoma-Egba and Okezie, JJ.C.A.) expressed the opinion that the appeal had merit and allowed it. Section 258(3) of the Constitution of the Federal Republic of Nigeria, 1979 provides that a decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members. There was a mistake somewhere and as I had said earlier, it did not lead to any miscarriage of justice. — Ogwuegbu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Wali, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
Mr. M.A.O. Okulaja.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ DEFINITION OF MISCONDUCT
In Professor Dupe Olatunbosun v. NISER (1988) 3 NWLR, (Pt. 80) 24 at page 31, the Supreme Court defined misconduct as follows: “Under Common Law and statute law disobedience of lawful order from any servant high or low, big or small is viewed with seriousness such conduct normally and usually attracts the penalty of summary dismissal as disobedience ranks as one of the worst forms warrant (sic) summary dismissal it is enough that the conduct of the servant of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant.” See also Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt. 62) page 577 at 579 where the Supreme Court held thus: “There is no fixed rule of law defining the degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of a grave and weighty character as to underline the confidence which should exist between him and the master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to premeptorily (sic) dismiss the employee irrespective of the condition of service.”
➥ REFERENCED (OTHERS)
