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2 NWLR (Pt. 176) 721
JOSEPH DIEKOLA OGUNDERE, J.C.A. (Presided)
ALOMA MARIAM MUKHTAR, J.C.A. (Read the Leading Judgment)
YEKINI OLAYIWOLA ADIO, J.C.A.
INTERPRETATION OF STATUTE – ACTION Dismissal of employee under common law -Ground therefor.
PRACTICE AND PROCEDURE – APPEAL – Fresh point on appeal – Raising of – Condition precedent – Fresh point raised without leave – How treated.
PRACTICE AND PROCEDURE – APPEAL – Issues for determination – Need to relate to grounds of appeal – Failure to so do – Effect.
PRACTICE AND PROCEDURE – EVIDENCE – Documentary evidence – Failure to produce relevant document – Effect.
PRACTICE AND PROCEDURE – EVIDENCE – Unchallenged evidence – How treated.
EMPLOYMENT AND LABOUR – MASTER AND SERVANT – Dismissal of employee under common law – Ground therefor.
T.J. Daniel Esq. -for the Appellant.
Tokunbo Olafimihan – for the Respondent.
MUKHTAR, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice of Niger State, the plaintiff, who is now the respondent in this appeal and who was dismissed by the defendant/appellant Company from its employment, caused a writ of summons to be issued against it claiming some declarations and a sum total of N35,636 as special and general damages for wrongful termination. Pleadings were ordered and exchanged.
The gist of the plaintiffs claim against the defendant was that he was employed by the defendant, a limited liability company on 1/1/77 as a watchman. On 7/3/77 the plaintiff was given a permanent appointment of which he worked diligently and efficiently that his salary was increased twice in 1979, in appreciation of his contribution to the Company. The plaintiff was warned in writing vide a letter dated 29/8/79, which letter and act that led to the warning, the plaintiff averred was waived or condoned. However, the defendant terminated the plaintiff’s appointment summarily without proof of any misconduct against the plaintiff and without affording him a fair representation and fair hearing. The plaintiff claimed the dismissal was wrongful, and that he was made to sign a document under false pretence in 1981, which he being an illiterate signed prior to his dismissal. According to him his summary dismissal was motivate by bad faith and in breach of the provisions of recognition and procedural agreement and main collective agreement between the Nigeria Employer’s Association of Banks, Insurance and Allied institutions and the National Union of Banks, Insurance and Financial Institutions Employees. The plaintiff thus claimed a declaration that the dismissal was a violation of the above agreement, a declaration that it was against the rules of natural justice and is therefore null and void, and the following particulars of damages:
(a) Salary N1126 p. a. x 13 N14,638.00
(b) Housing Allowance N15.00 per month x 180.00
per annum x 13 N2,340.00
(c) Transport Allowance p.a. N192.00 x 13 N520.00
GENERAL DAMAGES for wrongful Termination N10,000.00
The plaintiff gave evidence.
The defendant alleged dereliction of duty on the part of the plaintiff by intermittently absenting himself from duty between 1977 and October, 1980 when he was summarily dismissed. The plaintiff was given warnings and queries for which he sent emissaries to beg the District Manager not to dismiss him. He subsequently wrote a letter of apology admitting his gross neglect of duty and agreed to his dismissal if he misbehaved again. According to the defendant the plaintiff’s dismissal was as a result of gross misconduct, and since he has not served 13 years on permanent basis he was not entitled to gratuity. Moreover, he was dismissed in accordance with the laid down article 5 of the collective agreement mentioned supra. The staff Manager of the defendant company, one Reginald Okelue Ekeanyanwu testified for the defendant.
Awoniyi, J., after reviewing and evaluating the evidence and submissions before him found in favour of the plaintiff and awarded him N11,832 as damages for wrongful dismissal. Aggrieved by the decision the defendant appealed to this court on the following grounds:
(a) The learned trial Judge erred in fact when he held as follows
“Having said this there is no shred of evidence before the court that the plaintiff thereafter committed any offence before being sacked . . . . . . . . . . . . . After all, there is no evidence before the court to show that the plaintiff did in fact, absent himself from duty for a prolonged period.”
(b) The learned trial Judge erred in law when he applied the principle of natural justice in the determination of this suit.
(c) The learned trial Judge erred in law when he held that the plaintiff/respondent’s contract of employment with the Defendant/ Appellant is permanent until the Respondent reaches retiring age of 60 by relying solely on the uncontradicted evidence of the plaintiff.
(d) The learned trial Judge erred in fact and in law when he held as follows:
…………In his evidence before me he said that he is now working with the News Agency of Nigeria, Minna as a guard ….” (Italics mine)
(e) The learned trial Judge misdirected himself in law in the award of damage when he held as follows:
“….. Furthermore, the court must take into consideration the vagaries of life, and even the uncertainty of life itself. In the circumstances, I am of the opinion that six (6) years salary and allowances will meet the justice of this case by following the case of Adejumo (supra) and case of Uwagbanebi v. N.P.P.B. (1986) 3 NWLR (Pt.29) P489 cited to me by the learned counsel for the plaintiff …..”
(f) The learned trial Judge erred in law when he rejected ID I merely for the fact that the addressee is not indicated on the letter. (g) The learned trial Judge erred in law in awarding N11, 882.00 (six year; salary and allowances) special damages in favour of the plaintiff/respondent when there was no proof of such claim before the court.
Learned counsel for both parties filed and exchanged briefs of argument which they both adopted in the course of hearing the appeal and proffered oral argument. Appellant’s counsel also filed a reply brief. Issues formulated for determination by both counsel are basically the same, but I will for case of convenience adopt the appellant’s issue. Both Counsel adopted their briefs and proffered oral argument on the day of hearing the appeal.
The first issue is whether there was evidence before the court which justify the dismissal of the respondent by the appellant.
It is not in dispute that the Respondent absented himself from his place of work as a watchman on some occasions. Likewise, it is not in dispute that he was warned in writing by the appellant’s Personnel Manager, before his appointment was eventually terminated. The fact that he was warned in writing is covered by the respondent’s averment in his pleading when in paragraph (10) he averred:
“The plaintiff avers that he was previously warned by the Minna District Manager of the defendant particularly by a letter dated the 29th day of August, 1979 written by R.O. Ekeayanwu and avers that both the act that led to issuing a letter of warning and warning itself had been waived and or dealt with and or condoned by the defendant.”
In the appellant’s pleadings were also the following averments on absence from duty and related warnings and queries.
(5) The plaintiff has been intermittently absenting himself from duty between 1977 and October, 1980 when he was summarily dismissed.
(6) That the plaintiff was given warnings and queries as a result of which he sent emissaries to beg the District Manager not to dismiss him from the defendant company’s employment.
Abundant evidence were led to prove the supra averments as are illustrated below. The respondent himself when cross-examined on warning from the appellant said:
“I receive a letter of warning from the defendant company but the letter was returned to the District Manager. I did write to the defendant company begging for my previous absence from duty and laxity.”
The staff manager of the defendant company Mr. Ekeanyanwu testified as follows:
“At times, he would come to work and the month he would vamoose (sic). When I noticed this I called his people I know in this town to talk to him. I also issued queries and warning, he was still absenting himself from duty. As a result of this, I summarily dismissed him from duty on 15/8/80 . . . . . . . .
The last offence committed by the plaintiff before he was finally dismissed was that he absented himself from duty for a whole week.”
According to D.W.1, there were also oral warnings. Unfortunately the written warnings were burnt when their office was gutted by fire. I am of the firm belief that all the above pieces of evidence discloses dereliction of duty by the respondent in the form of unnecessary absence from duty and warnings and queries issued by the appellant as is required in the course of master-servant relationship. The evidence of these adduced by the appellant were not challenged by the respondent, and since it is trite law that evidence not challenged establishes facts before the court then the evidence is so accepted. See Omoregbe v. Lawani (1980) 3-4 S. C.108 relied on by counsel for the appellant, see also Nwabuoku v. Ottih (1961) All NLR 487; (1961)2 SCNLR 232.
The respondent himself tendered the company’s main collective agreement Exh. ‘5’ which he said he obtained as a member of the Union concerned. In this document are clauses that deal with procedures of summary dismissal of an employee Exh. ‘5’ reads:
“The law provides that employees may be summarily dismissed for certain offences covered by the broad headings of gross misconduct, such offences includes –
(vi) Prolonged and/or frequent absence from work without leave or reasonable cause.
Where an offence has been committed which merits summary dismissal a first and last or a second and last warning letter may be issued and the fact that the warning is a final one will be made clear in the letter.
I have reproduced the relevant clause to the circumstance of the case at hand. The respondent’s absence from work for one week illustrates his breach of article 5 sub-paragraph (vi) of Exh. ‘5’ supra. Having breached the clause the provision for summary dismissal as provided by the article is evocable by the appellant. In fact learned counsel for the appellant went further than the provision of the supra article to add that even under common law absence from work by an employee is gross-misconduct which entitles the employer to dismiss, and referred to Halsbury’s Laws (3rd Edition) Vol.25 at page 40. I have no iota of doubt in my mind that evidence was adduced to prove the respondent’s gross-misconduct. My answer to the issue above is thus in the affirmative, and I subscribe to appellant counsel’s complaint that the learned trial Judge erred in fact when he held: –
‘…there is no shred of evidence before the court that the plaintiff thereafter committed any offence before being sacked …….. Ground No. (1) of appeal supra therefore succeeds. The next issue for determination is whether the principle of natural justice is applicable to summary dismissal of the respondent under article 5(c) Exh. ‘5’ Employers of Association of Banks, Insurance and Allied Institutions and the National Union of Banks, Insurance and Financial Institutions employees which both appellant and respondent are members respectively. In dealing with this issue I do not think it is necessary to reproduce the provisions of article 5 (vi) of Exh. ‘5’ under which the respondent was dismissed again as I have already reproduced it above. Learned counsel for the appellant argued that since the appellant is a limited liability company, and having consideration of Exh.’5′, the contract of employment between the parties is that of ordinary master – servant relationship, and fair hearing cannot be imported or implied into the contract of ordinary master – servant relationship. He placed reliance on idge v. Baldwin 1963 2 All E.R. 66, and Olaniyan v. University of Lagos (1985)2 NWLR (Pt.9) page 599 at 612. Counsel further submitted that the principle of fair hearing was not incorporated into paragraph ‘C’ sub-paragraph (vi) of the article supra. Learned counsel for the respondent argued that the respondent was not queried about his absence from work, and since he was not so queried before he was dismissed the appellant acted against the principles of natural justice and good conscience particularly that of fair hearing. He also relied on Olatunbosun v. Nigeria Institute of Social and Economic Research Council (1988)3 NWLR (Pt.80) page 25; Taiwo v. Kingsway Stores Limited (1950)19 NLR 122, and the Olaniyan case supra.
Before discussing this issue in full I consider it imperative that I go back to appellant’s submission on the incorporation or not of the principle of fair hearing into article (5) supra. It is not in dispute that the said Exh.’5′ is the agreement that bound the appellant and the respondent, and it is very clear from the wordings in (vi) that prolonged or frequent absence from work is one of the offences that constitute gross- misconduct. Having held as I have done earlier in this judgment that prolonged absence of the respondent has been adequately proved, that to my mind prima facie qualified the appellant to discipline the respondent by virtue of the said provision supra. If my assumption is correct, the pertinent question to ask is, does the provision automatically oust the principle of fair hearing? Before I attempt an answer to this question I would like to examine the explanation given at the end of the offence laid down under paragraph (c) above. It reads:
“Where an offence has been committed which merits prerogative of dismissal a first and last warning letter may be issued and the fact that the warning is a final one will be made clear in the letter.”
Apparently the requirement above was complied with as is evidenced by D.W1’s evidence both in examination-in-chief and cross-examination. Unfortunately the inability to provide these letters was caused by tragic circumstance, which I said earlier on was explained by D.W. 1. The letter of dismissal was not produced by the respondent either, due, according to him to its loss. Both parties therefore could not produce the very crucial documents relevant to the case. If the respondent had tendered the letters, then the riddle of the existence of warnings would have probably been solved. As a passing remark, I find it rather intriguing that the other documents like the increment letters were intact and produced by the appellant with the exception of what I consider to be the most crucial document to the case. I am satisfied from the evidence of D.W. 1 that the respondent was warned several times before he was dismissed.
As for whether or not the respondent was given a fair hearing I think his evidence on forgiveness already reproduced supra answers the question. So also does D.W.1’s evidence that the respondent sent emissaries to him to plead on his behalf. I think all these presupposes the respondent was given fair hearing, otherwise he would not have admitted his misconduct to the extent of seeking forgiveness and sending emissaries to intervene on his behalf. What is more this later piece of evidence was not discredited by the respondent. The letter tendered but rejected is also a clear testimony of the events that have preceded the above situation.
In my opinion, even though the Olatunbosun’s case supra was predicated on the importance of the principle of fair hearing of which the appellant was deprived, it is distinguishable with the case at hand, bearing in mind the factors I have enumerated above. On the other hand in the Olaniyan case the crux of the evidence was that the relevant section i.e. S.17(1)(c) of the University of Lagos Act of 1976 which stipulated the procedure to be followed for the removal of any officer was not complied with.
I believe the appellant in this case complied with the stipulated requirement for summary dismissal as laid down in Exh.5, and find that the trial Judge erred when he found:
“The evidence adduced before me by the contending parties clearly show that the plaintiff was denied his constitutional right of fair hearing.”
Ground of appeal No.(2) supra which is covered by this issue must according to my reasoning succeed.
Issue No.(3) is whether from the terms and conditions of contract of the respondent as in Exhibit ‘5 ‘, his contract is not terminable until the retiring age of 60. This issue is married to ground No. (3) of appeal supra. The learned trial Judge, as the judgment reveals based his finding of the retiring age of the respondent as 60 years on the unchallenged evidence of the respondent. The relevant portion of the judgment reads, inter alia as follows:
“It is pertinent to state that the plaintiff in his evidence before me stated that he was 47 years old when he was wrongfully dismissed from the employment of the defendant company and he still has 13 years to stay with the defendant company. This evidence of the plaintiff was not contradicted by Mr. Ekeanyanwu in his evidence before me . . . . . . . . . . . . . . . . . .
I therefore accept the evidence of the plaintiff that he was 47 years old when he was dismissed and he still has 13 years to serve the defendant company before attaining the retiring age of 60 years.”
Indeed I would also add that the respondent was not cross-examined on the supra evidence in a bid to challenge or discredit it. It was therefore as good as being admitted to be true position of thing on the retiring age of employees of the company. See Nwabuoko v. Ottih supra. Moreso, the evidence bear relevance to the facts pleaded and the issues joined as enjoined by Uche Omo, J.C.A. in Omoregie v. Omigie (1990) 2 NWLR (Pt. 130) page 29. See also Nwogo v. Njoku (1990) 3 NWLR (Pt.140) page 570.
I am of the view that the learned trial Judge’s findings on the above is perfectly in order, in view of the state of the pleading and evidence, even if Exhibit ‘5’ does not show that the respondent’s contract of employment is permanent until the retiring age of 60. This is not to say that I agree that the employment is not terminable when reasons arises that could lead to such, as embodied in the said Exhibit ‘5 ‘. All I am saying is, on the material before the court he was well within the ambit of that claim to consider that aspect of the case the way he did. The right to dismiss and the age of retiring are two separate issues. This ground of appeal for what it is worth is to my mind devoid of any merit and should fail.
Whether ID I (letter of undertaking written by the respondent) is admissible, whether it was wrongly rejected by the court below is issue No.(4). The defendant pleaded the above mentioned letter in paragraph (7) of their statement of defence add led evidence for its proper identification by the plaintiff himself, and there was proper laying of foundation for the tendering of it, as is reflected on pages 56/57 of the record of proceeding. When it eventually came to be tendered through D.W.1 it was objected to on the ground that it was not addressed to anyone. The objection was upheld on that ground and the letter was rejected. Counsel’s argument now is that there is no rule of evidence or law which disallows the admission of a letter in evidence on the basis that the addressee is not indicated on the face of the letter. Counsel submitted orally in court that the rejection of Exh. ID 1 occasioned miscarriage of justice because the appellant was relying on that piece of evidence as his defence to the proceeding to show that the Respondent had been absenting himself from work frequently, the Exhibit was an admission Respondent counsel’s argument is that the letter goes to no issue as it is a matter relating to what took place earlier. He further made oral submission that the rejection would have made no difference to the decision of the lower court.
I disagree, of course it is very relevant as it buttress their allegation upon which the whole pivot of their defence lies. Moreso, as they relied upon clause (vi) of Exhibit ‘5’ already reproduced supra. In order to prove that their act of dismissal was within the purview of Exhibit `5′ it was pertinent that they produce a letter admitting previous acts of absenteeism, since such letter was available. Now, to the content of the letter itself, which I deem necessary to reproduce. It reads:
ID 1 TENDERED BUT REJECTED
“I, Mr. Muritala Omolayo do accept my fault that I have not been coming to work regularly and doing my work efficiently I am now begging for forgiveness.
I promised that such laxity will never occur again, and if it does I regard my appointment terminated with the company.
I agree that it contains no addressee but then can one really describe it as a letter? In my view ID 1 was nothing other than a note of undertaking rather than a letter, which was signed by the undertaker i.e. maker, and for which he accepted responsibility without mincing words. He admitted writing it and begging for leniency when he gave evidence. It is not as though he feigned ignorance on the content or existence of the note. No. I also fail to see where it offends S 90 of the Evidence Law either. It is my opinion therefore that the learned trial Judge erred in law when he rejected ID 1. The supra ground of appeal No. (6) to which the issue relates thus succeeds.
Another issue is whether there was breach of contract of employment of the respondent with the appellant. This issue, to the best of my understanding is not covered by any of the grounds of appeal. As such the argument goes to no issue. Learned counsel may have meant both to be married to each other, but the arguments and submission on. the issue does not tally with the ground.
Issue No.(6) is whether the respondent’s contract of employment is subject to Section 11 of the Labour Act, 1974. Issue No. (7) is what should be the measure of damages if the contract of employment of the respondent was in fact breached. Both issues are related to grounds of appeal Nos. (5) and (7). Issue No. (6) was never raised in the lower court and it formed no basis of any of the findings, I therefore see no reason why it should be raised for the first time before this court and without its leave. Even though learned counsel for the respondent has not raised any objection, I consider it wrong to raise such fresh issue now, and would thus strike out the relating ground of appeal i.e. (5) supra. See Edokpolo v Sem Edo (1984) 4 NWLR (Part 116) page 473 and Dweye and 2 Ors. v. lyomahan and 3 Ors. (1983) 8 S.C.76.
On the issue of damages learned counsel for the appellant argued that since the respondent has mitigated his damages, he is not entitled to damages, and even if he is entitled to anything he is entitled to only nominal damages. He placed reliance on Reid v. Explosive Co. (1887) 19 Q.B.D.264; Brace v. Calder 1895 2 Q.B.D.253 and Olatunbosun v. NISER (1988) 3 NWLR (Part 80) page 25. Counsel further submitted that the standard of proving special damages as the one awarded to the respondent is strict and cited Imana v. Robinson (1979) 3-4 S.C.I. Counsel for the respondent, however, argued that the court arrived at its reasonable assessment based on the unchallenged evidence of loss of earning. Having found and held that the dismissal of the respondent from the employment was justified and lawful, I believe it will be an exercise in futility to embark on the discussion of the issue of damages. Whatever the outcome of such discussion is, the respondent will not automatically be entitled to damages, based on the supra finding. It has already been overtaken by event, so to speak. In the light of the above reasoning, in the final analysis the appeal is bound to succeed, and it so succeeds. I assess costs of N500.00 in favour of the appellant, bearing in mind what was awarded against the appellant in the lower court.
OGUNDERE, J.C.A.: I had the privilege of a preview of the lead judgment of my learned sister, Mukhtar, J.C.A., with which I am in complete agreement including the orders made therein.
ADIO, J.C.A.: I have had the advantage of a preview of the judgment just delivered by the Hon. Justice Mukhtar, J.C.A., with which I agree.