BALOGUN v. UNION BANK

CITATION: (2016) LPELR-41442(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON WEDNESDAY, 23RD MARCH, 2016Suit No: CA/I/265/2012

Before Their Lordships:

HARUNA SIMON TSAMMANI Justice, Court of AppealOBIETONBARA O. DANIEL-KALIO Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal

BetweenMR. T.K. BALOGUN - Appellant(s)

AndUNION BANK OF NIGERIA PLC - Respondent(s)

RATIO DECIDENDI

(201

6) LP

ELR-41

442(

CA)

1. LABOUR LAW - COLLECTIVE AGREEMENT:Condition to be satisfied before a collectiveagreement can be binding"the binding obligatory of collective Agreements isstill fledgling and has not yet crystallized for it hasbeen held in A. C. B. PIc. Vs. Nbisike (1995) 8 NWLR(pt 416) 725 that:"Collective agreement made between one or moretrade unions on the one side and one or moreemployer's associations on the other are notgenerally intended to create legal relations exceptin the case of certain public boards or corporations.They are, at best a gentleman's agreement, anextra legal document totally devoid of sanction..They are products of trade unionist's pressure. Inother words, collective agreements are binding inhonor only and their enforcement must depend onindustrial and political pressure". and in A.C. B. Plcvs. Nwodika (1996) 4 NWLR where it was also heldthus: "A collective agreement is not by itselfbinding on the individual employee and theemployee and the employer unless such acollective agreement is incorporated into thecontract of service or adopted as part of thecontract or conditions of service". and in AfribankNig. Plc vs. Osasanya (2002) NWLR (pt 642) 598where it was said that: "Collective agreements,except where they have been adopted as formingpart of the terms of employment, are notenforceable. The enforcement of such agreementis by negotiation between the parties to theagreement."Per OKORONKWO, J.C.A. (Pp. 16-18,Paras. F-A) - read in context

(201

6) LP

ELR-41

442(

CA)

2. LABOUR LAW - DISMISSAL OF AN EMPLOYEE:Whether it is within the right of an employer todismiss an employee for misconduct"At common law, it is within the right of anemployer to dismiss an employee for misconductparticularly when the employee's conduct has beensuch that it would be injurious to the mastersbusiness to retain him. In such situation, it isundeniably the right of the master to dismiss suchemployee See Anglia Railway Co. vs. Lythgoe(1851) 10 CB 726; Pearce vs. Foster (1886) 17 QBD536; Boston Deep Sea fishing and Ice Co. vs. Ansell(1988) 39 Ch. D 339 at 367 at 368; Reading vs.Attorney General (1951) AC 507 and of course ourown Supreme Court in Maja vs., Stocco (1968) 1ALL WLR 141 where theprinciple crystallized thus: "Willful disobedience toLawful and reasonable orders, mismanagement ofthe master's business, conduct incompatible withor prejudicial to his masters business, takingadvantage of ones portion to enrich oneself at themasters expense to the detriment of the mastersbusiness are some, of the many acts that may giverise to instant dismissal of the servant by themaster."Per OKORONKWO, J.C.A. (Pp. 18-19, Paras.E-C) - read in context

(201

6) LP

ELR-41

442(

CA)

3. LABOUR LAW - DISMISSAL OF AN EMPLOYEE:Circumstances where an employee may besummarily dismissed"In my view, an employer cannot be expected toput up with a recalcitrant employee who no longerenjoys the confidence or intimacy of his employer.In such situation, an employer can rid himself ofsuch employee as the trial Judge found relying onArinze vs. First Bank of Nig. Plc (2004) ALL FWLR(277) at S.N Maliki vs. Micheal Imoudu Institute ofLabour Studies 2009. ALL FWLR (pt 491) 989 at1012."Per OKORONKWO, J.C.A. (Pp. 20-21, Paras. E-A) - read in context

4. LABOUR LAW - DISMISSAL OF AN EMPLOYEE:Whether a dismissed employee can claim wagesfor services not rendered"Finally, as the trial Judge found, a dismissedworker cannot claim for wages for services notrendered C.C.B. Nig. Ltd vs. Nwankwo (1993) 4NWLR (Pt. 286) 159."Per OKORONKWO, J.C.A. (P.21, Paras. D-E) - read in context

(201

6) LP

ELR-41

442(

CA)

5. L A B O U R L A W - T E R M I N A T I O N O FEMPLOYMENT: The required length of notice fortermination of a contract of service in the absenceof an agreement"by Section 91 of the Labour Act, 1990, andespecially considering the "letter of offer ofemployment" dated the 3rd July, 1985 (Exhibit 32),the relationship between the Appellant and theRespondent was that of a master and Servant, andwhich contract was a contract of service. The saidcontract (Exhibit 32), however does not contain theperiod of notice required for the termination of thecontract. The law therefore is that, where there is acontract of service which contains no provision fornotice required for termination, there is an impliedterm that the contract can only be terminated byreasonable notice. What is reasonable notice willdepend on the nature of the contract and thestatus of the employee in the organization."PerTSAMMANI, J.C.A. (P. 22, Paras. A-D) - read incontext

6. LABOUR LAW - DISMISSAL OF AN EMPLOYEE:Circumstances where an employee may besummarily dismissed"An employer can dismiss an employee in all casesof gross misconduct. See Arinze v. FBN Ltd (2004)12 NWLR part 888 p. 663."Per DANIEL-KALIO, J.C.A.(P. 24, Paras. D-E) - read in context

(201

6) LP

ELR-41

442(

CA)

NONYEREM OKORONKWO, J.C.A. (Delivering the

Leading Judgment): The appeal in these proceedings was

against the judgment of the Oyo State High Court delivered

by Hon. Justice W.K. Olaifa on 20/2/2012 wherein the

claims of the appellant in relation to his employment were

dismissed.

In his claims endorsed on his statement of claim, the

appellant sought the following reliefs against the

respondent viz:

1. DECLARATION that the plaintiff’s suspension and

subsequent dismissal from employment of the defendant

vide a letter dated 11th June 2003 is wrongful, invalid

unconstitutional and constitutes a breach to the plaintiff’s

right to fair hearing and contract of employment.

2. DECLARATION that the plaintiff is entitled to all his

pecuniary entitlements from 31st January, 2012 to 11th

June, 2003 being the period of the plaintiff suspension and

thereafter from the said date of dismissal until the

judgment is delivered.

3. AN ORDER directing the defendant to pay to the plaintiff

all his entitlements from 31st January, 2003 until the date

of judgment and thereafter until the judgment is liquidated.

The facts

1

(201

6) LP

ELR-41

442(

CA)

of the case as could be gleaned from the pleadings and

evidence and the findings of the Court were as follows:-

The appellant was employed by the respondent bank as a

messenger in 1985 and over time rose to the position of

chief clerk in the defendant bank by promotion. The

appellant was issued with a number of query on account of

incidents that the respondent considered misconduct. Some

of these instances were identified by the trial judge from

the evidence as including:

1. Knowingly over-drawing his account

2. Exceeding his medical bills

3. Taking medical care concurrently at different hospitals

of Ibadan and Ijebu-ode against Bank’s Policy.

4. Absent from duty without permission

5. Negligence in performance of official duties.

The instances referred to above and borne out of evidence

was found by the trial judge are shown in Exhibit 18 - 31

consequent upon these misconducts and particularly the

event of 6/1/2002 wherein the appellant was alleged to

have procured false invoices as purchase receipts for drugs

for his wife shown on Exhibit 11 as the proximate cause,

the respondent by letter of 15th February 2002

2

(201

6) LP

ELR-41

442(

CA)

suspended the appellant from duty and subsequently by

letter of 11th June 2003, respondent dismissed the

appellant from its service.

Appellant's contention was that his dismissal was in breach

of the collective Agreement which his Union National Union

of Bank, Insurance and Financial Institutions Employees

(NUBIFE) has with the respondent.

After an extensive review of the facts and the documentary

exhibits the learned trial judge held that the acts of the

appellant as highlighted in Exhibits 18 - 31 could not be

justified and could be harmful for the smooth operation of

the respondent bank.

In the judgment, the trial judge said “evidence before me

portrays the plaintiff as a recalcitrant offender who was

given queries, and warnings for his behavior during the

period of his employment" and that where an employee

misconduct undermines the relationship or confidence

which existed or should exist between him and his

employer, that was sufficient to get rid of such employee.

For all the reasons given, the trial Court dismissed the

claims of the appellant.

Being dissatisfied with the judgment, the appellant by

notice of appeal filed

3

(201

6) LP

ELR-41

442(

CA)

18/5/2012 lodged this appeal on three (3) grounds of appeal

which read thus:

GROUNDS OF APPEAL

1. The learned trial judge erred in law when he dismissed

the claimants case based on the evidence proffered by the

Defendant when the said evidence are not cogent enough

to disprove the Claimants case.

Particulars

(i) The Defendants lone witness was not privy to any of the

facts and occurrences leading to the dismissal of the

Claimant from the employ of the Defendant;

(ii) The Defendants witness merely gave evidence on what

he was probably told;

(iii) The Defendants witness and the claimant only worked

together for a year

(IV) The Defendants witness himself admitted that he is not

in position to know what transpired between the claimant

and the Defendant prior to the claimant’s move to Ibadan.

2. The learned trial judge erred in law by holding that the

Defendant has not wronged the Claimant the by the

dismissal.

Particulars

(i) The learned trial judge found as a fact that the

employment of the Claimant was regulated by both Exhibits

‘2’ and ‘32’;

(ii) Exhibit 2 which is the

4

(201

6) LP

ELR-41

442(

CA)

collective agreement stipulates the procedures under which

a staff could be disciplined and or have his employment

terminated;

(iii) There is nothing on record to show that the Defendant

complied with the conditions laid down in Exhibit 2 before

terminating the employment of the Claimant.

3. The learned trial judge erred in law when he holds that

the Defendant based on 'Exhibits 18 -31' could justify the

termination appointment of the Claimant

Particulars

(i) The procedures for terminating the appointment of staffs

in the category of the claimant are not at large.

(ii) The Defendant by its defence clearly delimits the

reasons that led to the dismissal of the Claimant;

(iii) The facts in Exhibits 18 - 31 were clearly beyond the

scope of the reasons relied upon by the Defendant in

terminating the appointment of the Claimant; and

(iv) Exhibit 18 - 31 are extraneous matters which has no

bearing with the facts leading to the dismissal of the

Claimant.

In the appellant’s brief that followed, two main issues were

raised for determination by the appellant. They are:

(i) Whether on the totality of the evidence in this case the

learned trial

5

(201

6) LP

ELR-41

442(

CA)

judge was right in dismissing the claim of the Appellant

herein? Grounds 1 and 4.

(ii) Whether the learned trial judge was right in his

conclusion that the Respondent herein was justified in the

way and manner it dismissed the Appellant from its

employment? Grounds 2 and 3.

The respondent in its brief adopted the issues formulated

by the appellant.

The appeal would accordingly be considered along the

issues formulated by appellant and expounded by the

respondent.

On issue No: One (1)

Whether on the totality of evidence the learned trial judge

was right in dismissing the claim of the appellant herein?

Grounds 1 and 4.

The main argument of the appellant on this issue is

encapsulated in the appellant’s argument at Paragraph

4.01 – 4.02 thus:

The crux of the Appellant, case before the trial Court was

that the Respondent did not comply with the provisions of

the contract document binding both of them before he was

dismissed from the services of the Respondent On its own

part, the Respondents position is to the effect that, contrary

to the position of the Appellant, it is the Appellants letter of

appointment

(201

6) LP

ELR-41

442(

CA)

6

(201

6) LP

ELR-41

442(

CA)

i.e. Exhibit ‘32’ that governs the relationship between the

parties as opposed to the Collective Agreement, Exhibit ‘2’.

The learned trial judge after carefully examining the case

put forward by the parties held without any equivocation

that both Exhibit 2 and Exhibit 32 are the bonds that guide

the parties. The trial judge found thus:

"I agree with the claimants counsel that both Exhibits

2 and Exhibit 32 are the bonds that guide the plaintiff

and Defendant in this case and not Exhibit 2 alone as

nothing points to the discipline of staff in Exhibit 32

unlike in Exhibit 2.”

(See page 166 of the record).

The above being the case, we humbly submit that the only

task before His Lordship is to determine whether in the

light of the cases put forward by the parties (particularly

the Respondent) it could be safely concluded that the

Respondent acted within the confines of Exhibits '2', and

'32' while dismissing the Appellant from its services as

parties are bound to honour the terms of contractual

document legally entered into.

See: Green Finger Agro Ind. Ltd vs. Yusufu (2003) 12

NWLR (pt 835) pg. 488 @

7

(201

6) LP

ELR-41

442(

CA)

515

Appellant’s argument seem to be that the employment of

the appellant is regulated by Exhibit 2 which is the “Main

Collective Agreement between the Nigeria Employers

Association of Bank, Insurance and Allied Institutions And

The Association of Senior Staff of Banks, Insurance and

Financial Institutions and not just Exhibit 32 which is the

offer of employment and which as the trial Court found did

not stipulate any condition or terms of employment.

For the respondent, a distinction must be drawn between

termination of employment and dismissal which respondent

argues carry different connotations and import as

respondent submits at Paragraph 4.4 - 4.7 of the

respondent's brief thus:

It is necessary to emphasis that the Appellant appointment

was not terminated but dismissed. It is our submission that

both terms are not the same and cannot be used as

synonymous words. A 'dismissal' is different and

distinguishable from a 'termination’. A dismissal from

employment carries such infamy that a termination does

not carry. Whilst a terminated officer can be entitled to

certain benefits, a dismissed officer is not entitled to

8

(201

6) LP

ELR-41

442(

CA)

any.

See (i) Irem vs. Obubra District Council & Anor (1960)

1 N.S.C.C. 16 (ii) New Nigeria Bank Ltd vs. Francis Obe

vs. Udiri (1986) 3 NWLR part 29 page 387 at 401.

As earlier submitted the contention of the Appellant is that

his dismissal was not in accordance with the provision of

part II (Section 1) of Article 4 of Exhibits 2. However, it is

to be noted that the section relied upon by the appellant

deals with termination of appointment and not dismissal.

Further without much ado the said section cannot and will

not be applicable to an instance where an employee is

dismissed as in the extant case.

It therefore follows that the consideration of the provision

of part II (Section 1) Article 4 of Exhibit 2 before arriving at

decision by the trial judge was not only fair, just and

accommodating but magnanism.

Notwithstanding, respondent argue that Exhibit 18 - 31

constitute acts of grave misconduct which could justify

summary dismissal of an employee where misconduct or

series of it has been proved, necessary it is not to

specifically refer to any one instance as a justification or

reason for the dismissal if evidence

9

(201

6) LP

ELR-41

442(

CA)

points to such grounds and that it is not necessary for

Exhibit 12 the appellant's letter of dismissal to specifically

refer to any instance.

Relying on Osagie Vs. New Nigeria Bank Plc. (2005) 3

NWLR (pt 913) 513 at 534 respondent argue that an

employer can summarily dismiss for gross misconduct not

provided for in the collective agreement and that a

collective agreement did not dispense with an employer’s

right of summary dismissal for gross misconduct.

In this regard, respondent argue in relation to the

collective agreement Exhibit 2 and the gross misconduct of

the appellant at Paragraph 4.18 - 4.20.

It is further submitted that the gross misconduct

established against the Appellant is enough to sustain his

summary dismissal from the employment of the Respondent

without compliance with the procedure laid down in Exhibit

2 particularly part II Section I of Article 4.

As held in U.B.N. Ltd vs. Ogoh (1995) 2 NWLR part 380

pages 647 where an employee is guilty of gross

misconduct, he could be lawfully dismissed summarily

without Notice and without wages.

Gross misconduct was given judicial definition in UBN Ltd

vs.

10

(201

6) LP

ELR-41

442(

CA)

Ogboh supra as

“Conduct of a grave and weighty character as to

undermine the confidence which exists between the

employee and his employer, or which works against

the deep interest of the employer”.

Therefore it is submitted that the fact that the respondent

had contended at trial that the Appellants employment was

not guided by Exhibit 2 could not have prevented the trial

judge from holding otherwise. The Respondent is not

setting up a new case before your Lordships but supporting

the decision of the trial judge which it is submitted in

unassailable.

On issue No. 2 is whether it is the collective agreement or

the contract of employment Exhibit 32 that governs the

employment. This in my view has been adequately

canvassed by the parties in arguing the main issue No. one

In conclusion the appellant by way of summary itemized

what he conceives as errors of the trial Court as follows:

Your Lordships are humbly urged to allow this appeal

based on the following reasons:

(i) The Respondent in this case failed to disprove the fact

that it is bound to comply with the dictates of Exhibit ‘2’

before it can

11

(201

6) LP

ELR-41

442(

CA)

lawfully terminate the appointment of the Appellant;

(ii) The Respondent failed, to demonstrate that the

termination of the appointment of the Appellant was

justifiably carried out by it;

(iii) The learned trial judge relied on extraneous matters to

wit: Exhibit ’18 to ‘31’ in coming to a conclusion that the

termination of the appointment of the Appellant by the

Respondent is justified;

(iv) The Respondent having failed to properly terminate the

appointment of the Appellant, the Appellant ought to be

entitled to his claim particularly the one for monetary

entitlements which incidentally the Respondent did not

frontally disprove.

Similarly, the respondent in conclusion justified the

conclusions of the trial judge as follows:

(i) The leaned trial judge rightly held that Exhibits 2 and 32

govern the contract of Appellant’s employment

(ii) The learned trial judge rightly held that the dismissal of

the Appellant was justified as gross misconduct was

established against him vide Exhibit 18 -31.

(iii) The learned trial judge rightly held that the dismissal of

the appellant complied with the

12

(201

6) LP

ELR-41

442(

CA)

provisions of Exhibit 2.

(IV) The evidence contained in Exhibit 18-31 are not

extraneous matter as erroneously contended by the

Appellant but admissible relevant facts in the

determination of the Appellant’s claim.

(v) That the evidence of D. W. relied upon by the trial Judge

is not hearsay but relevant and admissible being evidence

of a corporate sole.

In resolving the issues in this appeal, I think it is

appropriate determine to firstly what instrument or Law or

agreement that governs the transaction between the

parties herein while the appellant maintains that his

employment is governed by Exhibit 2 which is the collective

agreement between the Workers Union aforesaid and the

employers association of those affected worker. The

respondent seems to argue that it is the pure contractual

agreement Exhibit 32 that should govern.

Exhibit 32 dated 3rd July, 1985 by which appellant was

employed reads thus:

3rd July, 1985

STAFF: PRIVATE & CONFIDENTIAL

Mr. Tirimisiyu Kolawole Balogun,

43 Atikori Street, Oke-Moje,

Ijebu Igbo,

Dear Mr. Balogun,

OFFER OF EMPLOYMENT,

We refer to your

(201

6) LP

ELR-41

442(

CA)

13

(201

6) LP

ELR-41

442(

CA)

application and recent interview and are pleased to advise

that this Bank is prepared to offer you employment as a

Messenger.

EMULUMENTS: Basic Salary -#1,746 p. a.

House Allowance -#240 p.a.

Transport -#240 p.a.

PROBATIONARY PERIOD: 6 months or subject to

satisfactory performance.

If you are prepared to accept this offer, which will remain

open until a month from date of this letter, please sign and

return the attached copy of this letter and at the same time,

indicate when you will report for duties.

Yours sincerely,

MANAGER.

It can be seen that Exhibit 32 contains no conditions of

service, no terms of employment and is merely an offer of

employment subject to acceptance or otherwise.

On the other hand, Exhibit P2 is the main collective

Agreement made between the Nigeria Employers

Association of Banks, Insurance and Allied Institutions and

The association of Senior Staff of Banks, Insurance and

Financial Institution. The subjects of the Union are Senior

Staff of the bodies referred to and in Article 1 of the

collective Agreement it is provided thus:

In compliance with the provision of Section 22 of

14

(201

6) LP

ELR-41

442(

CA)

Trade Union (Amendment) Decree 1978 – Decree No. 22 of

1978, The Nigeria Employers Association of Banks,

Insurance and Allied Institutions (herein after called the

“Association”) accords the association of Senior Staff of

Banks, Insurance and Financial institutions (herein after

called the "Union”) full recognition as the sole collective

bargaining agent authorized to negotiate on behalf and to

represent all senior staff engaged in the various

establishment described in group 27 at page 155 of the

Federal Republic of Nigeria extra ordinary Gazette, Volume

65, No. 6 dated Lagos – 8th February, 1978, except those

employees whose responsibilities could conflict with their

loyalty to their companies and the aspirations of the Union

namely:

(i) Members of the board of Directors

(ii) (ii) Managing Directors

(iii) General Managers

(iv) Deputy and Assistant General Managers

(v) Employees in the management Group who by virtue of

their position would normally represent management on

issues concerning the senior staff association

(vi) Other employees who may by themselves decide not to

belong to

15

(201

6) LP

ELR-41

442(

CA)

the Senior Staff Association and so state it in writing,

provided that such members shall cease to be represented

by the Union.

(vii) Secretaries, or persons holding similar positions and

are attached to I, ii, iii, and iv above.

Exhibit 32 referred to above is the offer of employment as a

messenger. Later, by letter of 22nd March 2001, appellant

was upgraded to the rank of clerk with effect from 28th

December 2000. This did not show whether appellant

became a Senior Staff covered by Exhibit 32 the Main

Collective Agreement.

No evidence was led by the appellant to show that he was a

senior staff and thereby covered by the Collective

Agreement made for the benefit of Senior Staff of NUBIFE.

This cannot be assumed because it is a matter of evidence

whether one is a Senior Staff or not. In the absence of any

evidence oral or documentary, it is the normal terms of

employment that must govern the relationship and where

that does not exist, it is the common law as espoused in

cases that must govern the relationship.

What is more, the binding obligatory of collective

Agreements is still fledgling and has not yet crystallized for

it has been

16

(201

6) LP

ELR-41

442(

CA)

held in A. C. B. PIc. Vs. Nbisike (1995) 8 NWLR (pt

416) 725 that:

"Collective agreement made between one or more trade

unions on the one side and one or more employer’s

associations on the other are not generally intended to

create legal relations except in the case of certain public

boards or corporations. They are, at best a gentleman’s

agreement, an extra legal document totally devoid of

sanction.. They are products of trade unionist’s pressure. In

other words, collective agreements are binding in honor

only and their enforcement must depend on industrial and

political pressure”.

and in A.C. B. Plc vs. Nwodika (1996) 4 NWLR where it

was also held thus:

“A collective agreement is not by itself binding on the

individual employee and the employee and the employer

unless such a collective agreement is incorporated into the

contract of service or adopted as part of the contract or

conditions of service”.

and in Afribank Nig. Plc vs. Osasanya (2002) NWLR (pt

642) 598 where it was said that:

"Collective agreements, except where they have been

adopted as forming part of the terms of

17

(201

6) LP

ELR-41

442(

CA)

employment, are not enforceable. The enforcement of such

agreement is by negotiation between the parties to the

agreement.”

In the appellant case, besides not showing by evidence or

definition that appellant was a senior staff it was neither

shown on Exhibit 32 nor Exhibit P1 that appellant was or

became a senior staff or that Exhibit P2 the collective

agreement applied to appellant.

As it is, neither the offer of Employment letter Exhibit 32

nor the Collective Agreement Exhibit 2 is helpful in

determining the case of the appellant. In the circumstance

therefore, recourse must be had to the common law as the

governing norm of the relationship and this seem to be

what the learned trial Judge did in this case without

express mention.

At common law, it is within the right of an employer to

dismiss an employee for misconduct particularly when the

employee’s conduct has been such that it would be

injurious to the masters business to retain him. In such

situation, it is undeniably the right of the master to dismiss

such employee

See Anglia Railway Co. vs. Lythgoe (1851) 10 CB 726;

Pearce vs. Foster (1886) 17 QBD 536; Boston

18

(201

6) LP

ELR-41

442(

CA)

Deep Sea fishing and Ice Co. vs. Ansell (1988) 39 Ch.

D 339 at 367 at 368; Reading vs. Attorney General

(1951) AC 507 and of course our own Supreme Court in

Maja vs. Stocco (1968) 1 ALL WLR 141 where the

principle crystallized thus:

"Willful disobedience to Lawful and reasonable orders,

mismanagement of the master's business, conduct

incompatible with or prejudicial to his masters business,

taking advantage of ones portion to enrich oneself at the

masters expense to the detriment of the masters business

are some, of the many acts that may give rise to instant

dismissal of the servant by the master.

The trial Judge had regards to the various acts of

misconduct shown in Exhibits 18 - 31 and was of the view

that such conduct could not be justified and could be

injurious to the business of the respondent’s bank. At page

169 of the record, the trial Judge said:

"It is trite that it is not in all cases that gross misconduct

involving dishonesty bordering on criminality should be

taken to Court vide Sec 36(1) 1999 Constitution as

amended. In this case the plaintiff’s explanations were

rejected on cases bothering on over-drawing his act,

19

(201

6) LP

ELR-41

442(

CA)

exceeding medical bill, taking medical care concurrently at

different hospitals against bank policy absence from duty

without permission and conduct incompatible or prejudicial

to the defendants business. In my view it is not necessary

to take to criminal prosecution before dismissing the

plaintiffs as the conduct of the plaintiff has affected the

relationship of confidence which should exist between the

plaintiff and the defendant See Arinze vs. FBN Ltd

(2004) 12 NWLR (Part 888)663 at 665 ratio 1. The

defendant gave the plaintiff fair hearing by asking him for

explanations which explanations were rejected by the

defendant before dismissal. Defendant might not give any

reason to dismiss in cases of Master and servant”.

Concerning the representation by Exhibit 18 -31, the trial

Judge said "they speak for themselves. In the replies given

by the claimant, he admitted the misconduct and begged

for forgiveness.”

In my view, an employer cannot be expected to put up with

a recalcitrant employee who no longer enjoys the

confidence or intimacy of his employer. In such situation,

an employer can rid himself of such employee as the trial

Judge

20

(201

6) LP

ELR-41

442(

CA)

found relying on Arinze vs. First Bank of Nig. Plc

(2004) ALL FWLR (277) at S.N Maliki vs. Micheal

Imoudu Institute of Labour Studies 2009. ALL FWLR

(pt 491) 989 at 1012.

The arguments of the appellant were submissions tenable

for wrongful termination and are inappropriate for

dismissal for misconduct.

As I have demonstrated in this appeal there is no evidence

that appellant came under the protection of the collective

Agreement Exhibit P2 not having been shown to be a senior

staff of the respondent neither did Exhibit 32 appellants

offer of employment, offer any assistance. As it is, it is the

common law that must be resorted to in determining the

dispute arising in this case under appeal and the trial Judge

in my view, did a good work of it.

Finally, as the trial Judge found, a dismissed worker cannot

claim for wages for services not rendered C.C.B. Nig. Ltd

vs. Nwankwo (1993) 4 NWLR (Pt. 286) 159.

The appeal accordingly lacks merit and is dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned

brother, Nonyerem Okoronkwo, JCA, gave me in advance

a draft of the judgment just delivered.

My learned brother

(201

6) LP

ELR-41

442(

CA)

21

(201

6) LP

ELR-41

442(

CA)

has adequately considered and resolved the two issues

raised for determination in this appeal. I only wish to add

that, by Section 91 of the Labour Act, 1990, and especially

considering the "letter of offer of employment" dated the

3rd July, 1985 (Exhibit 32), the relationship between the

Appellant and the Respondent was that of a master and

Servant, and which contract was a contract of service. The

said contract (Exhibit 32), however does not contain the

period of notice required for the termination of the

contract. The law therefore is that, where there is a

contract of service which contains no provision for notice

required for termination, there is an implied term that the

contract can only be terminated by reasonable notice. What

is reasonable notice will depend on the nature of the

contract and the status of the employee in the organization.

In the instant case, the Appellant was a lowly staff

employed as a messenger in 1985; though it was contended

that he however enjoyed some promotions in the course of

his service.This fact is however not an issue in this appeal.

The contention of the Appellant is that, his dismissal

breached his right to

22

(201

6) LP

ELR-41

442(

CA)

fair hearing and the contract of employment. There is

however no terms in the letter of employment (Exhibit 32)

in terms of terms of conditions of service and how the

employment could be terminated. Such terms and

conditions are however stipulated in PART II pages 6-9 of

the Main Collective Agreement Exhibit 2. Therein, the

procedure to be followed include caution, warning,

suspension and finally, summary dismissal. These

procedures were observed by the Respondents as evidence

by Exhibits 4, 5, 6, 7,8,11 and 12. It is therefore clear that

the Respondent unequivocally observed the disciplinary

procedure stipulated by the "Main Collective Agreement"

(Exhibit 2) before summarily dismissing the Appellant. It

cannot therefore be validly and justifiably argued that the

Respondent breached the Appellant's right to fair hearing

or any terms/conditions of his employment when dismissing

him from its employment.

I therefore agree with my learned brother that this appeal

has no merit. It is accordingly dismissed. The judgment of

the Oyo State High Court delivered on the 20th day of

February, 2012 is hereby affirmed.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had

the

23

(201

6) LP

ELR-41

442(

CA)

privilege of a preview of the judgment of my learned

brother Nonyerem Okoronkwo JCA and I agree with my

lord's reasoning and conclusions.

Exhibits 2 and 3 tendered before and admitted by the lower

Court do not articulate the contractual relationship

between the parties as it relates to termination of

employment or dismissal. The fall back position therefore is

the common law. The learned trial judge found that the

Appellant committed acts of gross misconduct. An employer

can dismiss an employee in all cases of gross misconduct.

See Arinze v. FBN Ltd (2004) 12 NWLR part 888 p.

663. I find no merit in the appeal. I dismiss it.

24

(201

6) LP

ELR-41

442(

CA)