MRS. ABIMBOLA BOLANLE V. ACCESS BANK PLC

Legalpedia Citation: (2015-11) Legalpedia 71467 (CA)

In the Court of Appeal

Holden at Lagos

Wed Nov 4, 2015

Suit Number: CA/L/943/2013

CORAM

UZO .I. NDUKWE-ANYANWU JUSTICE,COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI JUSTICE,COURT OF APPEAL

YARGATA BYENCHIT NIMPAR JUSTICE,COURT OF APPEAL

PARTIES

MRS. ABIMBOLA BOLANLE

 

APPELLANTS

ACCESS BANK PLC

 

 

RESPONDENTS

AREA(S) OF LAW

APPEALS, JUDGMENT, CIVIL PROCEDURAL LAW,  LABOUR LAW, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

This is an appeal against the judgment of the National Industrial Court, Lagos Division. The Appellant was employed by the Respondent as a Banking Executive. She was deployed to the Retail and personal Banking section at the Oshodi-Apapa Branch of the Respondent. Sometimes in January 2009 she received a letter from the Respondent placing her on suspension. The said suspension was not lifted until she received another letter wherein her appointment was terminated. Her grouse is that she is entitled to be paid salary for the months she was on suspension because the staff handbook does not envisage non- payment of salary to any staff for any period preceding termination of appointment. More so that in her own case the termination of her appointment did not arise from serious misconduct as set out in clause 1.7 of the staff handbook or as a result of prohibited acts set out in clause 5.10. This engenders the commencement of this suit in the lower court. Judgment in the suit was delivered by the Learned Trial Judge which judgment was partly in favour of the Appellant with respect to payment of three months salaries in lieu of Notice calculated on the basis of the terms of contract and not basic salary as was done by the Respondent. The claims with respect to payment of salary during the period of suspension and post judgment interest were however dismissed. The Appellant was aggrieved by the judgment and this prompted her to file a Notice of Appeal at this instant Court.

HELD

Appeal partly allowed.

ISSUES

• Whether the Learned Trial Judge in delivering his judgment committed a breach of fair hearing pursuant to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria in view of his not construing and placing any interpretation on clause 6.2 of the Staff Hand Book; holding that “there is no list of conducts which are termed serious misconduct” even when clause 5.10 specifically the issue of post judgment interest even when that was an issue before the court. (Grounds 1, 2, and 3)?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE FORMULATED BASED UPON, OR RELATE TO A GROUND OF APPEAL

It is now a settled principle of law that every issue for determination must be formulated or based upon, or relate to a ground of appeal. This is so whether such issue or issues were formulated by the Appellant or the Respondent. It does not however preclude the Respondent from couching an issue or issues in a manner favourable to his case, provided it is distilled from or derives from a ground or grounds of appeal. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

ISSUES FOR DETERMINATION – EFFECT OF ISSUES FOR DETERMINATION NOT BEING DERIVED FROM A GROUND OF APPEAL

It follows therefore that an issue for determination not derived from a ground or grounds of appeal is incompetent and liable to be struck out with the argument raised in support. See C.B.N VS DINNEH (2010) LPERL (8983) CA; EFFIONG BOB VS AKPAN (2009) ALL FWLR (PT 491) 894; TRIANA LTD VS UTB PLC (2009) 12 NWLR (PT 155) 313; MAGIT VS UNIVERSITY OF AGRICULTURE MAKURDI (2005) 19 NWLR (PT 959) 211. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

DECISION OF COURT – WHAT DETERMINES THE INTERVENTION OF THE APPELLATE COURT IN A DECISION BY THE LOWER COURT

It is the correctness of a decision and not necessarily the reason for the decision by a trial court that determines the intervention of the appellate court one way or the other.  See ODUKWE VS OGUNBIYI (1998)8 NWLR (PT 561) 339; JIKANTORO VS DANTORO (2004) 5 SCNJ. 152.  See also IBULUYA VS DIKIBO (2010)18 NWLR (PT 1225) 627 where the Supreme Court held that, it is firmly settled that an appellate court, will not set aside the decision of a lower court which is right and just merely because the trial judge gave wrong reasons for the decision.  The paramount consideration being whether the decision is right and not necessarily whether the reasons are right. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

ACTS OF SERIOUS MISCONDUCT – WHETHER OR NOT THE ACTS OF SERIOUS MISCONDUCT ARE LIMITED BY DEFINITION OR PRESCRIPTION

I need add here that the acts of serious misconduct is not limited by definition or prescription. Thus, in NWOBOSI VS ACB LTD (1995) 6 NWLR (PT 404)658.  It was held by the Supreme Court that wilful disobedience of a lawful and reasonable order of an employer by an employee is a definite act of misconduct which, at common law, attracts the penalty of summary dismissal since such wilful disobedience of lawful order is a reflection of a total disregard of an essential condition of contract of service namely that the servant must obey a proper, reasonable and lawful order of the master in default of which their contractual relationship cannot be expected to continue.  See also OSISANYA VS AFRIBANK (NIG) PLC (2007)6 NWLR (PT 1031) 565 and UTC (NIG) LTD VS SAMUEL PETERS (2009) LPELR (8426) CA.  Where it was held that an employer has a right to summarily dismiss an employee on grounds of misconduct or wilful disobedience. 

 

I am however not unmindful of the law that where there exists a condition of service between the employer and the employee, the provisions are binding on them and any disciplinary measure must follow the laid down procedure.  See UTC (NIG) LTD VS SAMUEL PETERS (supra). PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

CONTRACT OF EMPLOYMENT –WHETHER OR NOT CLAIMS NOT DERIVED FROM A CONTRACT OF EMPLOYMENT CAN BE JUSTIFIED

The Appellant’s stance can only be plausible if the contract of employment had so specifically stated that an employee on suspension shall be entitled to be paid salary during the said period of suspension. Thus in the absence of such express provision Clause 1.7 can only be interpreted to mean salary earned or derived from an employees labour or active participation in the employer’s productive process and to view it otherwise will amount to defeating the whole purpose of discipline by granting an erring employee a paid but undeserved holiday for his or her act of misconduct as rightly argued by the Respondent’s counsel. The bottom line here therefore is that the Appellant’s claim for arrears of salaries from January to July 2009 when she was suspended from work is not derived from her contract of employment and cannot be justified. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

POST- JUDGMENT INTEREST – THE DERIVATION OF THE SOURCE OF POST-JUDGMENT INTEREST

On the issue of post-judgment interest. The award of post judgment interest is substantially statutory and mostly derived it’s source in the Rules of Court and in the instant case the applicable Rule of Court is the National Industrial Court Rules. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA 

POST- JUDGMENT INTEREST – THE AWARD OF POST-JUDGMENT INTEREST LIES AT THE DISCRETION OF THE TRIAL COURT

The award of post-judgment interest lies entirely at the discretion of the trial court upon delivery of judgment and the maximum percentage of interest that could be awarded on the judgment debt is as prescribed in the Rules of the Court concerned. See HIMMA MERCHANTS LTD ALIYU (1994) 5 NWLR (PT 347) 667. EKUNIFE VS WAYNE (WEST AFRICA) LTD (1989) 4 NWLR (PT 122) 422; UNITY BANK PLC VS DENCLAG LTD (2012) 18 NWLR (PT 1332) 293. In AKUDO VS GUINESS (NIG) PLC (2012) 15 NWLR (PT 1322) 150 at 164, this court in interpreting the relevant provisions of the Edo State High Court (Civil Procedure) Rules on the award of post-judgment interest held inter alia as follows:-

“by virtue of Order 40 Rule 7 of Edo State High Court (Civil Procedure) Rules, it is entirely in the discretion of the court to award interest, however, the maximum interest that can be awarded on judgment debt is 10% per annum from the date of the judgment until the whole judgment debt is liquidated.”

See also BERLIET (NIG) LTD VS KACHALLA (1995) 9 NWLR (PT 420) 478.

 

From the above cited authorities, one point is made clear to the effect that by the relevant Rules of Court, the award of post-judgment interest is made at the discretion of the trial court except that if the court decides to make such award, it must not be above the maximum or below the minimum percentage prescribed in the Rules. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

POST- JUDGMENT INTEREST – WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WHERE A LOWER COURT EXERCISES ITS DISCRETION ON THE AWARD OF POST-JUDGMENT INTEREST

The lower court in its wisdom had opted not to make any pronouncement or award any post-judgment interest. Unless an appellate court comes to the conclusion that the exercise of discretion by a trial court was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it cannot interfere, even if such appellate court might have exercised the discretion differently. See SARAKI VS KOTOYE (1990) 4 NWLR (PT 1430 144; UNIVERSITY OF LAGOS VS OLANIYAN (1985)1 NWLR (PT 1) 156; ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD. (1992) 7 SCJN 47. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

POST JUDGMENT INTEREST CLAIM – THE POSITION OF THE LAW WHERE THE TRIAL JUDGE FAILS TO PRONOUNCE ON POST JUDGMENT INTEREST CLAIM

However, let me just add a few thoughts on the failure if the trial judge to pronounce on the post judgment interest claim of the appellant. In the case of OGED OVUNWO & ANOR V. IHEANYICHUKWU WOKO & ORS (2011) LPELR-2841 (SC), THE court held as follows

“…every judge reserves the right as to his own style of writing judgment whether sitting at the trial or appellant level of the courts. All the same, what must be recognized as settled law is the duty to pronounce judgment on all issues placed before the judge for resolutions. Without over simplifying this duty every judgment has to state the fact of the case, state the points at issue requiring the court to pronounce on them, then the court’s decision with the reason for the same.”

 

It is for this reason that I agree with my learned brother that the trial court ought to have touched in the claim of the appellant for the post judgment interest or at least given reason for its refusal. It did neither. PER – YARGATA BYENCHIT NIMPAR JCA

CASES CITED

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria 1999 (as amended)

National Industrial Court Rules 2007

Edo State High Court (Civil Procedure) Rules

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