KHALIL & DIBBO TRANSPORT LTD VS S.T. ODUMADE & ORS
June 25, 2025MR. MICHAEL A. OMO VS JUDICIAL SERVICE COMMITTEE OF DELTA STATE & ORS
June 25, 2025Legalpedia Citation: (2000) Legalpedia (CA) 18716
In the Court of Appeal
HOLDEN AT JOS
Wed Jul 12, 2000
Suit Number: CA/J/140/99
CORAM
JAAFARU MIKA’ILU
ISAIAH OLUFEMI AKEJU
PARTIES
LAWRENCE JIRGBAGH APPELLANTS
UNION BANK OF NIG. PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant, sued the Defendant/Respondent before the Vandeikya High Court of Benue State claiming amongst others, ” a declaration that both the suspension of the Plaintiff on 5th September, 1996 and purported dismissal from the services of the Defendant is illegal, null and void and of no effect whatsoever. The facts of this case show that the dispute arose out of master/servant relationship. The Appellant was employed by the Respondent on and was deployed as a co-note-counter staff with one Daniel Adejoh. Arising from some problems relating to a customer’s cash lodgment on 14/6/96 in the Respondent’s office, the Appellant was queried and subsequently suspended. On 24/5/96 a customer came to make lodgments with the Respondent in the sum of N221, 000.00 cash. The total from the breakdown in the teller came to N216, 000.00 instead of N221, 000.00 in physical cash that were supposed to have been received by the Appellant and one Daniel Adejoh. The sum of N5000 was discovered in the drawer used by the Appellant and Daniel Adejoh where the money was counted. Consequently, he was summarily dismissed for gross misconduct and the Appellant brought this action against his employer challenging his wrongful dismissal. The matter went to trial. The Appellant gave oral evidence and tendered exhibits. Three witnesses testified for the Defendant and tendered exhibits; written addresses as ordered by the trial court were filed. In a considered judgment, the trial court gave judgment in favour of the Defendant. The action was dismissed with N1, 000.00 costs to the Defendant. This appeal is against that decision.
HELD
Appeal Dismissed.
ISSUES
Whether upon the true and dispassionate construction of Article 4(iv) of Exhibit 1, the dismissal of the appellant by the respondent is lawful? Whether or not the lower court was right in dismissing the appellant’s claims before it?
RATIONES DECIDENDI
LABOUR LAW, PRACTICE AND PROCEDURE, LAW OF CONTRACT
WRONGFUL TERMINATION OF EMPLOYMENT – REMEDY AVAILABLE TO AN EMPLOYEE ON THE WRONGFUL TERMINATION OF HIS CONTRACT OF SERVICE
“It is not recondite that at common law the employer is obliged to follow any particular procedure in summarily dismissing his servant. But where, however, the dismissal is in breach of a fundamental term of the contract as by summary or by giving insufficient notice to terminate the contract, the servant has to accept the fact that the contract is at an end and his only remedy lies in suing for wrongful termination of his contract of service. See Vine V. National Dock Labour Board (1956) 3 ALL ER; Imoloame V. WAEC (1992) 9 NWLR (PT.265) 303; Ilodibia V. Nigeria Cement Co. Ltd. (1997) 7 NWLR (PT.512) 174; Harman L.J. in Denmark Productions Ltd. V. Boscobel Production Ltd. (1969) 1 QB. 699 said:
‘An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he would have earned to the end of the contractual period, he must sue for damages for the wrongful dismissal and must of course, mitigate those damages so far as he reasonably can’.
In other words, like in all matters subject to the law of contract the employer’s right of summary dismissal has to arise from the terms express or implied in the contract of employment.”
LABOUR LAW, LAW OF CONTRACT
MASTER/SERVANT RELATIONSHIP – EMPLOYER’S RIGHT OF SUMMARY DISMISSAL SUBJECT TO TERMS IN THE CONTRACT OF EMPLOYMENT
“The master/servant relationship being basically one founded in contract and subject to the vagaries of the ordinary law of contract, the employer’s right of summary dismissal can be circumscribed and this has been achieved by the incorporation of works rules as in this case by means of collective agreement being incorporated into the contract.”
LABOUR LAW
TERMINATION OF EMPLOYMENT – PRINCIPLES AND EXCEPTIONAL CIRCUMSTANCES WHERE FOLLOWING THE PROPER PROCEDURE FOR DISMISSAL OF AN EMPLOYEE MAY BE DISPENSED WITH
“Furthermore, a rationalisation of the cases in master/servant relationship reveal that much as an employer is not bound to follow a proper procedure in summarily dismissing an employee, there is a long line of decided cases identifying two or three exceptions where to properly and effectively terminate a contract of employment, the employer has to follow the proper procedure and the instant matter falls squarely into one of the three exceptions that is to say:
(1) Where the contract itself has made provisions for a procedure to be followed; that procedure has to be followed to effectively determine the contract.
(2) Where a statute regulates the appointment and dismissal of a servant, the requirements of the statute must be complied with. In that case, the master/servant relationship has what is known as a ‘statutory flavour’. See Federal Civil Service Commission V. Laoye (1989) 2 NWLR (PT.106) 652,(1989) 45 CAJ 146 and 160. Imoloame V. WAEC (1992) 9 NWLR (PT.265) 303.
(3)The other third category affects holders of offices involving public function. Here, the rules of natural justice must be complied with in the dismissal. See Shanks V. Plumbing Trade Union 15/1167 unreported cited in Leary v. National Union Of Vehicle Builders (1971) CH. D 34 Per Megarry J.
As regards where the contract has provided for its termination but the procedure was not followed, the servant cannot treat the contract as still subsisting as the contract stands repudiated by the act of wrongful dismissal and the servant’s only remedy is in damages for wrongful dismissal. See Vine V. National Dock Labour Board (1956) 3 ALL ER 939 where Lord Keith said:
‘If the master wrongful dismisses the servant either summarily or by giving insufficient notice the employment is effectively terminated’.
See Imoloame V. WAEC (supra) and Nnoli V. Unth Mgt. Bd (1994) 13 KLR 163, (1994) 8 NWLR (PT.363) 376; the Supreme Court has observed thus:
‘Where the procedure is not followed it is incapable of terminating the employment relationship, and the servant could be granted a declaration. See also Vidyo-daya University v. Silva (1964) 3 AER 865. Vine v. National Dock Labour Board (Supra)’.
As regard the second exception as stated above even though it was never in issue that the appellant’s contract of employment was not regulated by statute the appellant has asked to be reinstated as if it was. The implications of employment with statutory flavour was fully explored by Karibi- Whyte JSC in the case of Imoloame V. WAEC supra where he said:
“It is now accepted that where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”.
See Adedeji V. Police Service Commission (1968) NMLR 102; Shitta-Bey V. Federal Public Service Commission (1981) 1 SC 40, Olaniyan V. University (1985) 2 NWLR (PT.9) 599. In this class of cases, the court invariably is prepared to reinstate the servant by granting declarations and injunctions.
On the third exception: In this respect, I refer to the case of Shanks V. Plumbing Trade United Cited In Leary V. National Union Of Vehicle Builders (supra). The only issue in the motion in that case was for the removal from office of district secretary of a union. Having made out a prima facie case that he was likely to succeed in the action. Buckley J. said:
‘It has been submitted on behalf of the Union that this is a case in which the court ought not to grant the relief sought because that will be tantamount to specific performance of a contract of employment. It seems to me that every different considerations apply when one is dealing with an elected officer whom somebody other than those who elected him is seeking to remove him from office, than apply in the ordinary case of employer and employee. In the circumstance, I propose to grant the plaintiff the injunction he seeks until judgment in the action.’”
Any dismissal of a servant under right class of employment must accord with the rules of natural justice.”
INTERPRETATION OF STATUTE
RULES OF INTERPRETATION –RULES OF CONSTRUCTION OF CLEAR AND UNAMBIGUOUS WORDS IN A DOCUMENT
“The first principle of the rules of construction and it is trite is that where words used in a document are clear and unambiguous their ordinary meaning should prevail. Wilson V. A.-G. Bendel State And Ors (1985) 1 NWLR (PT.4) 572; (1985) NSCC (VOL. 16) 191.”
JUSTICE, PRACTICE AND PROCEDURE, LAW OF EVIDENCE,
NATURAL JUSTICE – WHETHER THE REQUIREMENT OF NATURAL JUSTICE DEMAND ORAL HEARING
“In Hart V. Military Government of Rivers States And Ors (supra); Fatai William JSC rightly in my view observed that “natural justice does not require that the hearing be oral.”
LAW OF EVIDENCE, JUSTICE, PRACTICE AND PROCEDURE
ORAL HEARING – CONSIDERATIONS FOR THE GRANTING OF A RIGHT TO ORAL HEARING TO SATISFY THE REQUIREMENT OF NATURAL JUSTICE
“The right to oral hearing as a matter of procedure for satisfying the requirement of natural justice has to depend on the facts of the particular case as it is bound to differ from case to case.”
LABOUR LAW, COURT, PRACTICE AND PROCEDURE, LAW OF CONTRACT
TERMINATION OF CONTRACT OF EMPLOYMENT – CIRCUMSTANCES WHEN A COURT MAY NOT ENQUIRE INTO THE CORRECTNESS OF THE DIRECTOR’S DECISION TO DISMISS AN EMPLOYEE
“In Diggle V. Ogston Motors Co. (1955) 84 LJKB 2165 where employment was made subject to ‘your carrying out your duties to the satisfaction of the directors’ (as in the above cited case). It was held that the court could enquire into the question whether reasonable board of directors could honestly have come to the conclusion that they were not satisfied with the employer’s work. If the answer to that was in the affirmative then the court could not enquire further into the correctness of the director’s decision that they were not satisfied with the employer’s work.”
COURT, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE
FINDINGS OF FACT – CIRCUMSTANCES WHEN AN APPELLATE COURT WOULD NOT INTERFERE WITH THE FINDINGS OF A TRIAL COURT
“And not having found the findings in any way to be perverse this court is precluded from interfering with them as they fall within the exclusive preserves of the trial court to determine. This court has no intention to interfere with the findings. see Narumal And Sons (Nig.) Ltd. V. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (PT. 106) 730 at 742; Silli V. Mosoka (1997) 10 NWLR (PT.479) 98.”
LABOUR LAW, PRACTICE AND PROCEDURE
SUMMARY DISMISSAL – WHETHER AN EMPLOYEE SHOULD BE PROSECUTED FIRST BEFORE BEING DISMISSED SUMMARILY
“The decision in Garba V. University Of Maiduguri (1986) 1 NSCC (VO.17) 245, at 248 (1986) 1 NWLR (PT.18) 550 has often been cited in support of the proposition. In that case the Supreme Court has stated a much quoted passage relating to S.33 of the Constitution 1979. Briefly, some students of the University of Maiduguri who engaged in a rampage that caused much property damage, arson, looting were expelled. The Senate met and handed down the expulsion order without first having the students tried in regular courts for the criminal offences arising out of their misconduct. And it held thus that:
“There is no doubt that in the context in which the term ‘misconduct’ is used in section 17 of the Act, the complaints, to wit arson, wilful destruction of properties, looting and assaults made against the appellants fell within the definition, and the Vice Chancellor can expel a student if he is satisfied that he is guilty of misconduct but where the misconduct alleged involved crimes against the state it is no longer a matter for internal discipline but a matter for a court or tribunal vested with judicial powers to try such offences. It is only after conviction by a proper court for these offences that the Vice-Chancellor can proceed to exercise his disciplinary powers and expel the students if he so wishes.’”
LABOUR LAW, PRACTICE AND PROCEDURE
SUMMARY DISMISSAL – WHETHER AN EMPLOYEE MAY BE DISMISSED SUMMARILY EVEN WHERE HIS MISCONDUCT IS CRIMINAL IN CONTENT
“The trend in judicial opinion now is that the decision in Garba is no impediment to summary dismissal of a servant for gross misconduct even where the misconduct approximates to a criminal offence provided the exercise was conducted against the backdrop of the provision of S. 33(4) of the Constitution 1979. But where the servant has owned up as to his misconduct he could be proceeded with without more. See Federal Civil Service Commission V. Laoye (1989) 2 NWLR (PT.L06) 652 per Eso JSC. In Yusuf V. Union Bank Of Nigeria Ltd. (1996) 6 NWLR (PT.457) 632 Onu JSC stated thus:
‘On the issue of fair hearing before an employer can dispense with the services of his employee, under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal even where the allegation for which the employee is being dismissed involve accusation of crime’.
Wali, JSC in his leading judgment in the same matter also stated in like manner. However, at common law, it is open to an employer to dismiss the employee summarily even where his misconduct is criminal in content. See Tomlinson V. LM.S.R.Y CO. (1944) 1 ALL ER 537.”
INTERPRETATION OF STATUTE
‘INCLUDE’ – INTERPRETATION OF THE WORD ‘INCLUDE’ WHEN USED IN A DOCUMENT
“When the word ‘include’ is used in a document it has the effect of extending the scope of the concept covered by the terms mentioned: See Okesuji V. Lawal (1991) 1 NWLR (PT.170) 661;(1991) 2 SCNJ and Nafiu Rabiu V. The State (1981) 1 NCLR 293,(1980) FNLR 509 AT 524; (1981) 2 NCLR 293.”
LABOUR LAW, COURT, PRACTICE AND PROCEDURE, LAW OF CONTRACT
CONTRACT OF SERVICE – WHETHER THE COURT WILL GRANT SPECIFIC PERFORMANCE FOR BREACH OF CONTRACT OF SERVICE
“It is settled law that the courts will not grant specific performance for breach of contract of service.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Act 2004|
