A. O. BORISHADE V. NIGERIAN BANK OF NIGERIA LTD.

A. O. BORISHADE V. NIGERIAN BANK OF NIGERIA LTD.
CITATION: (2005) 3 iLAW/CA/PH/259/2001
OTHER CITATIONS:
Nigerian Coat of Arms
In The Court of Appeal
(Port Harcourt Judicial Division)
On Thursday, the 3rd day of March, 2005
Suit No: CA/PH/259/2001
Before Their Lordships
SLVANUS ADIEWERE NSOFOR
……. Justice, Court of Appeal
VICTOR AIMEPOMO OYELEYE OMAGE
……. Justice, Court of Appeal
MONICA BOLNA’AN DONGBAN-MENSEM
……. Justice, Court of Appeal
 Between
A. O. BORISHADE Appellants
 And
NIGERIA BANK OF NIGERIA LTD. Respondents
RATIO DECIDENDI
1
DAMAGES – AWARD OF DAMAGES: Reasons and main purpose of awarding damages
“The general position is that before damages can be awarded, there must be a wrong committed (Refer Adene v. Dantunba (1994) 4 SCNJ P. 150 at 151). The main purpose of awarding damages is to compensate the aggrieved party for the loss, injury or damages suffered by him. Thus the guiding principle in the award of damages is Restitution in interrogation. (Refer Maximum v. Owoniji (1994) 3 NWLR Pt. 331 Pg. 178 at 195.)” Per DONGBAN-MENSEM J.C.A. (Pp. 29-30, paras. F-A) – read in context
2
EVIDENCE – CROSS EXAMINATION: General nature and effect of a thorough cross-examination
“Cross-examination is a formidable tool in the hands of a diligent and skillful counsel. By the instrument of cross-examination, counsel can either totally demolish the Plaintiff’s case or fully develop the case of the Defendant and vice versa. When masterly administered, cross-examination actually brings forth the best form of evidence. Purposeful cross examination can drum up sacred truth from the stomach of an otherwise reluctant witness. When the core of the case is touched by cross-examination, the witness not only speaks with his mouth, his facial expression, his jaunty answers and gesticulations all go a long way to expose the unexpressed, the untold dark side of the whole story. A thorough cross-examination seeks to and indeed often elicits the best form of evidence, admission of the truth initially concealed by a carefully thought out testimony guided by the skillful hands of the witness’s learned Counsel. Advocacy is an art of skill and fact; this the learned counsel for the Respondent utilized to great advantage at the trial Court.” Per DONGBAN-MENSEM J.C.A. (Pp. 15-16, paras. C-A) – read in context
3
APPEAL – GROUND OF APPEAL: Effect of issue for determination not arising from grounds of appeal
“It is pertinent to comment on the respondent’s issue 2 & 3 in his brief; the respondent has besides issue one argued on issues 2 and 3 which the appellant did not file grounds of appeal. Since the respondent did not file any cross-appeal it is trite law that issue for determination must arise from grounds of appeal filed by the appellant. Any issue as formulated by the respondent as in issues 2 and 3, which are not rooted in the grounds of appeal filed by the appellant go to no issue. See Okpala v. Ibeme (1989) 2 NWLR (Pt.102) p. 208 at 221. It should be struck out.” Per OMAGE, J.C.A. (Pp. 47-48, paras. F-A) – read in context
4
EVIDENCE – LEGAL EVIDENCE: Condition under which legal evidence will be required
“In a superior Court of Record, once pleadings are ordered and issues have been joined, legal evidence is only required and adduced upon those issues which are contentious and controverted. Where allegations made are admitted by the person against whom they are made it becomes theatrical to proceed to adduce evidence to establish that which has already been admitted, unless of course such further evidence is vital for a particular’s reason.” Per DONGBAN-MENSEM J.C.A. (P. 29, paras. B-E) – read in context
5
CONTRACT – PARTY TO A CONTRACT: Whather a person who is not a party to a contract cannot make a claim in contract
“It is indisputable as a general rule that one who is not a party to a contract cannot make a claim in contract in respect thereof unless, of course, he is privy thereto or has acquired some legal interest, say by way of assignment of any rights thereunder. See (i) Danlop vs. Selfridge (1915) A.C. 847; (ii) Chuba Ikpeazu vs. A.C.B. Ltd. (1965) N.M.L.R. 374 and their other line of cases. The “Doctrine of privity of Contract” as a general rule is that a contract cannot confer or impose obligations on strangers to it. And as a general rule a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party thereto, even if the contract was made for his benefit and purports to give him the right to sue or to make him liable upon it. See Keighley, Maxsted & Co. vs. Durant (1901) A.C. 240 H.L.” Per NSOFOR J.C.A. (Pp. 33-34, paras. G-C) – read in context
6
LEGAL PRACTITIONER – STATEMENT OF COUNSEL: Whether a statement of counsel in the presence of his client unrepudiated constitute evidence binding on the client
“Counsels are the domini litis in the case(s) they are advocating or prosecuting before a Court. It was decide as long ago as in 1825 in Colledge vs. Horn 130 E.R. 459 that statements of counsel in the course of a trial in the presence of his client and unrepudiated at the time constitute evidence binding on the client.” Per NSOFOR J.C.A. (P. 33, paras. A-B) – read in context
7
LABOUR LAW – TERMINATION OF EMPLOYMENT: Whether a servant in a contract of services may claim for damages if the dismissal is wrongful
“To complete the circle, let it be said – scilicet – certainly, that at Common Law, in a master and servant relationship – a contract of services – the master may at any time dismiss the servant for any reason or for no reason but subject only to a claim for damages if the dismissal be wrongful.” Per NSOFOR J.C.A. (P. 34, paras. D-E) –read in context
8
LABOUR LAW – WRONGFUL DISMISSAL OF EMPLOYMENT: What must a plaintiff proof where he alleges unlawful dismissal of his employment
“It is an elementary principle of the rules of litigation that the plaintiff in the court below who alleges unlawful dismissal of his employment must prove that the dismissal was unlawful or fail. See Mba Ede v. Okufo (1990) 2 NWLR (Pt.150) 356 SC. At no stage in the proceedings in matters of this nature or on appeal does the defendant owe a duty to the plaintiff to prove any issue of the burden of the plaintiff to establish the plaintiff’s claim. If the plaintiff cannot succeed on the strength of his claim he should fail. Inyang v. Eshiet (1990) 5 NWLR (Pt.149) 178 CA.” Per OMAGE, J.C.A. (P. 44, paras. D-F) – read in context
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: (Delivering the Leading Judgment):  On the 24th May, 2001, the Hon. Justice, A. Acho Ogbonna of the Port Harcourt Judicial Division holden at Port Harcourt dismissed the suit of the Plaintiff/Appellant for the failure of the Plaintiff to prove his case as required by law. The learned trial Judge concluded the judgment in these terms:

“… am satisfied that the Plaintiff’s dismissal is not unlawful…”

The Plaintiff, herein after referred to as the Appellant, has come before this Court seeking a reversal of the decision of the trial Court.

Briefly, the suit of the Appellant before the trial Court was for wrongful dismissal by his employee, the Respondent.

The Appellant was employed in 1980. He rose progressively through the ranks to the enviable position of a Branch Manager before his employment was terminated in 1991 at the instance of the Respondent upon some allegations of misconduct.

Before the trial Court, the Appellant sought the following reliefs:

i. A declaration that the purported dismissal of the Plaintiff from the service of the defendant as a Branch Manager Contained in the Defendants; letter reference AP/A, 420/320 dated 8th November 1991 is contrary to the provisions of the Collective Agreement between the plaintiff and Defendant.

ii. An order of Court setting aside the said letter of dismissal.

iii. A declaration that the Plaintiff is still an employee of the Defendant.

iv. An order of Court restraining the Defendant or its agents; from giving effect to the said letter of dismissal.

v. In the alternative:

The Plaintiff claims the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages for wrongful dismissal in that by a letter dated 18th November 1991 the Defendant purported to have dismissed the Plaintiff when the said letter is contrary to the Collective Agreement binding the Plaintiff and the Defendant.

At the conclusion of testimonies, the learned Counsel for each side addressed the Court. It was at this state that the learned Counsel for the Appellant withdrew reliefs 2, 3, & 4 of the suit.

The trial Court however considered all the five reliefs sought in arriving at its decision. Having raised the same issue before this Court, the said reliefs 2, 3, & 4 are considered abandoned. The appeal is therefore considered on reliefs one and five only.

Two issues were formulated for determination from the four grounds of Appeal filed.

The Defendant, herein after referred to as the Respondent formulated three issues for determination, urging this Court to dismiss the appeal. The respondent’s issues are:

i. Whether or not all or any of the admitted acts of the Appellant constituted misconduct, warranting summary dismissal.

ii. Whether or not in a master and servant relationship, declaratory and injunctive reliefs, are available remedies for alleged wrongful termination or dismissal.

iii. Whether the Appellant proved his alternative claim for damages.

Whereas the first and third issues formulated by the Respondent are similar to the Appellant’s two issues which clearly arise from the grounds of Appeal, the 2nd issue is alien to the grounds of appeal filed. The Respondents has filed no cross-appeal and cannot therefore formulate an issue outside the ground of appeal filed by Appellant (Refer Finnih v. Imade (1992) 8 NWLR Pt. 219 p. 511 & Globe Fishing Industry (1990) 1 NWLR Pt. 162 p.265 at 282). The said issue two formulated by the Respondent is accordingly hereby struck out as incompetent.

This appeal shall be determined on the two issues formulated by the Appellant.

The nub of the Appellant’s case is that the Respondent which was the employer for the Appellant is a master and servant relationship, gave reasons for the summary dismissal of the Appellant from its employment. The reasons as pleaded are:

“a. That the Plaintiff was guilty of misconduct

“b That the Plaintiff gave out unauthorized loans and a guarantee of the sum of N43 Million to me (sic) of its customer, AYAKI & CO.

“c That he unjustly enriched himself at the expense of the Bank (Paragraph 9, 11 & 12 of the statement of Defence pg. 20 of Records of Appeal referred).”

It is the case of the Appellant that as a servant of the Respondent, the Respondent could terminate the employment or render the Appellant redundant without giving any reasons. However, the Respondent having elected to give reasons which amounted to allegations made against the Appellant, was obliged to proof the allegations and also accord the Appellant an opportunity to defend himself. The Respondent did none of these, argues the learned Counsel for the Appellant. The Respondent thereby failed to show that the Appellant was dismissed in accordance with his terms of employment and also undermined the Appellant’s right to be heard.

The learned Counsel cited the cases of:

(i) Calabar Cement Company Ltd. v. Daniel (1991) 4 NWLR (Pt.188) 750 at 758 para C – D, and

(ii) Biishi v. JSC (1991) 6 NWLR (Pt. 197) 331 at 350 para. E.

What are the legal requirements for the determination of a master/servant relationship?

Case law has established that in a master/servant relationship there is a general power reposed in the employer to dismiss an employee for misconduct of any kind that can justify dismissal. (Refer Abukagbo v. African Timbers & Plywood Ltd. (1966) 2 All NLR 87, College of Medicine of University of Lagos v. Adegbite (1973) 3 SC 149).

In the case of B. A. Morohunfola v. Kwara State College of Technology (1990) 4 NWLR Pt. 145 p. 506 at 525 – 526.

The Supreme Court enumerated the facts a Plaintiff must poof in an action for wrongful termination of appointment. Among these are how the employer was appointed and the terms and conditions of his appointment which must clearly set out who can appoint and remove him. The circumstances under which the appointment can be terminated must also be clearly set out.

Where the employment is not formally regulated, it has been held that the master can terminate the contract with his servant at any time for good or bad reason or for none see (Refer C.A. Okosun v. Central Bank of Nigeria, (1996) 2 NWLR 429 p. 77 at pt. 86. Further, it was determined in the case of Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1, that it has been the policy of Courts in Nigeria to foist a servant on an unwilling master.

The rule of law is extant in a servant/master relationship of employment. Thus, where there exists conditions of service and a procedure for the termination of employment, a premature termination ought to follow the laid down procedure in the conditions of service. – (Refer Calabar Cement Co. Ltd. v. Daniel (1991) 4 NWLR Pt. 188 p. 750 at 760 and Emmanuel Chukwu and 1 Or v. Nigeria Telecommunications Ltd. (1996) 2 NWLR Pt. 430 p. 290 at 303.)

In the case of Union Bank of Nigeria Ltd. v. Chukwueb Charles Ogboh (1995) 2 NWLR Pt.380 pg. 647 at 669 the Supreme Court held that where an employee is guilty of gross misconduct he could be lawfully dismissed summarily without notice and without wages.

We shall now consider the issues formulated in this appeal, the argument proffered support in the light of the case law reviewed (supra) and of course, always keeping in mind the claim of the Appellant at the court of trial.

ISSUE ONE:

“Whether, on the pleadings, as well as the evidence, there was proof of the allegations made by the Respondent against the Appellant to justify his summary dismissal?”

for the Respondent, I should say up front on this issue, that we did earlier on struck out issue two of the Respondent’s issues which necessarily goes with the argument advanced in support thereof.

The learned Counsel for the Respondents however argued both issues one and two together. It is not the duty of this Court to sieve through the argument and fish out which aspect of the argument is proffered in support of which issue. The entire argument on both issues must therefore discountenanced:- (Refer Globe Fishing Industries (supra).

In support of this issue, the learned counsel for the Appellant submits the learned trial judge had no facts from the evidence adduced before him upon which to make the findings he made.

The part of the decision attacked under this issue and reproduced in the Appellant’s brief is also hereby reproduced for the case of reference. The trial judge held that – (Pg. 48 – 49 of Records).

“In Exhibit ‘E’, Plaintiff was said to have confirmed his involvement in signing a guarantee in favour of Ayaki and Company, he also confirmed that he had been issuing drafts on NNPC Account after the Federal Government Parastatals had withdrawn their deposits from Banks.

All these acts of the plaintiffs, one can say without mincing words, constitutes gross misconduct as they (ended to undermine the operations of the Defendant. As a Branch Manager Plaintiff was conversant with the guidelines for granting facilities to customers, and where those guidelines are breached that will be tantamount to disobedience of lawful order by a servant and such a conduct attracts summary dismissal.

Learned Counsel for the Plaintiff had argued that exhibits ‘H’ is not a bank guarantee but a mere local purchase order. This argument cannot be sustained because the exhibit carries an endorsement which is authenticated by the signature of the Manager and Accountant of the Port Harcourt Branch of the defendant. The document speaks for itself.”

The learned counsel for the Appellant portends in this finding of the trial court, that no evidence was adduced as to guidelines for granting facilities and that no guidelines were tendered before the Court. It is also the submission of Counsel on exhibit H, that the extent of the authority of the Appellant was not placed before the trial court. The learned trial judge therefore based his decision purely on speculation, declared the counsel.

Counsel expatiates that Exhibit H was a document of a company other than a bank, thus it was neither prepared by the bank nor was it made on the letter headed paper of the Bank and could neither by content nor description, qualify as a Bank Guarantee. Counsel refers to the definition of a Bank Guarantee in the Black’s Law Dictionary 6th Edition 705 and then dismissed the issue of a Bank Guarantee as preposterous and unsustainable.

Counsel also submits that no evidence was produced on the alleged unjust enrichment leveled against the Appellant. There having been neither an investigation nor a trial leading to a conviction of the Appellant. Counsel cites in support section 138(i) of the Evidence Act Cap. 112 LFN 1990 and the case of Jim Nwobodo v. C. Onoh and Ors. (1984) 1 SC NLR P1 at 27 para. G.

I have perused the testimonies of the only two witnesses, one each for either side and the judgment of the trial court. The Respondent, as rightly submitted to by the learned counsel to the Appellant, tendered no guidelines for the granting of facilities to the customers of the Respondent Bank. Equally, no direct evidence was adduced by the Respondent to support the findings of the trial court: (pg. 49 of Records).

“… where those guidelines are breached that will be tantamount to disobedience of lawful order by a servant and such conduct attracts summary dismissal….”

Those where are inferential findings the deductive postulations of the trial Judge.

I also agree with the learned Counsel to the Appellant that the evidence adduced in support of the allegations of unjust enrichment goes to no issue as it falls far below the expected standard of proof either in criminal or in civil proceedings.

I must hasten to add that most of the facts in support of the findings of the learned trial judge were aduced from the mouth of the Appellant under cross-examination.

Cross-examination is a formidable tool in the hands of a diligent and skillful counsel. By the instrument of cross-examination, counsel can either totally demolish the Plaintiff’s case or fully develop the case of the Defendant and vice versa.

When masterly administered, cross-examination actually brings forth the best form of evidence.

Purposeful cross examination can drum up sacred truth from the stomach of an otherwise reluctant witness. When the core of the case is touched by cross-examination, the witness not only speaks with his mouth, his facial expression, his jaunty answers and gesticulations all go a long way to expose the unexpressed, the untold dark side of the whole story.

A thorough cross-examination seeks to and indeed often elicits the best form of evidence, admission of the truth initially concealed by a carefully thought out testimony guided by the skillful hands of the witness’s learned Counsel.

Advocacy is an art of skill and fact; this the learned counsel for the Respondent utilized to great advantage at the trial Court.

The trial judge had dutifully recorded the cross-examination in the question and answer type of proceedings. Part of the cross-examination is hereby reproduced for emphasis and the case of reference. (from pages 23, 24, 25, 27, 28 and 29 of the Records of this appeal. Enumeration is mine for purposes of clarity).

5. “Q. As a Branch Manager you granted so many facilities to customers.

“A. Yes.

6. “Q. You were recalled and requested to recover the unauthorized facilities you granted.

“A. Yes.

7. “Q. By the time you were served the letter of dismissal you had not completely recovered all the facilities you grant.

A. I had not.

8. Q. To you knowledge some of those facilities are still un-recovered.

A. I will not know.

9. Q. You know the Bank is distressed because of bad debts.

A. It is as a result of bad management.

10. Q. Do you know the bank is distressed.

A. I know.

11. Q. You were one of the several managers of the bank.

A. I was

12. Q. As a branch manager you were one of those charged with the management of your branch.

A. I was heading the management of Port Harcourt Branch which was one of the best braches.

13. Q. It was during your tenure that N.N.P.C. withdraw its account.

A. It was during my tenure that NNPC withdrew it accounts from all banks.

14. Q. What was the effect of that withdrawal from the Commercial bank?

A. It led to liquiding problem and some banks which were badly managed got distressed.

15. Q. Had you any authority to give any guarantee to a customer to pay N43,000,000.00 for goods to be supplied to it without reference to your head office.

A. I had no right to give a guarantee.

16. Q. Did you on behalf of the bank write a letter in favour of your customers guaranteeing the payment of goods worth N43,000,000.00.

A. I did not write any letter of guarantee.

17. Q. Did you write a letter that Ayaki was in a position to pay N43,000,000.00.

A. I supported Ayaki’s proposal involving 50% of N43,000,000.00 which is 21,500,000.00 I say the it was a conditional proposal. I know it was bound to fail because the other party could not have accepted it.

18. Q. On whose behalf were you acting.

A. The Defendants.

19. Q. Did you seek any approval from the head office.

A. The District Manager recommended the customer and insisted. I should go ahead even though I told him the matter would not succeed.

20. Q. This is the proposal.

A. It is.

21. Q. The original was sent to whom.

A. The customer took away the original.

22. Q. The photocopy you are holding is what you kept after the customer took the original away.

A. Yes.

23. Q. As a result of the proposal you signed, you were queried by the head Office.

A. Yes.

24. Q. You know you had no authority to give out loans to customers.

A. I had no written authority.

25. Q. The leave of authority to give out loan was a company policy not restricted to you alone.

A. Yes it was a policy of the company.

26. Q. Do you know a customer Samesokey & … Nig. Ltd.

A. Yes.

27. Q. You gave a John to this Company.

A. I did.

28. Q. Did you seek the approval of the Head Office before you gave the loan.

A. I did need to seek Head Office approval.

29. Q. You were queried and suspended for giving loan to this customer others.

A. I was not queried, but there was a letter complaining about giving out loans without authority.

30. Q. You were asked by defendant to make written explanation.

A. Yes I did.

31. Q. After the written explanation, the defendant suspended you.

A. Yes, to pave way for investigation.

32. Q. Who carried out the investigation

A. Inspectors from the Head Office.

33. Q. The investigation found out that you gave out facilities to other customers without authority.

A. Yes.

34. Q. Was there a verbal authority to you.

A. None.

By section 75 of the Evidence Act, that which is admitted needs no further proof and he who admits is estopped from denying that which is admitted. (Refer Ojiegbu v. Okwaranyia (1962) 1 All NLR 605 at 607).

Upon this is added the uncontroverted testimony of the only witness for the Respondent. The DW1 testified to the effect that the Appellant was “queried on the guarantee he gave on behalf of the bank without authorization. The Management was not satisfied with his answers and he was put on suspension. He was later recalled to recover the loans and advance he gave out. He came back but did not recover any of the loans, so he was dismissed. (Refer pg. 29 – 30 of Records).

There was thus ample evidence upon which the trial Court acted.

Finally on the issue of the provisions for dismissal, the Appellant’s learned Counsel contends that the Appellant pleaded and proved Exhibit A which he claims contained the terms and conditions of his employment with the Respondent. The trial Court erroneously, argues Counsel, rather relied on Exhibit K tendered the Respondent.

Exhibit A is the 1988, while Exhibit K is the 1990 Collective Agreement between the Nigeria Employers Association of Bank, Insurance and Allied Institution and the National Union of Banks, Insurance and Financial Institutions Employees.

The learned trial Judge found that Exhibit A which the Appellant relied upon was no longer the operative agreement.

It appears reasonable to infer the Exhibit K was tendered by the Respondent not necessarily in proof of the terms of the condition of service but to establish that Exhibit a was obsolete and no longer in use, having been replaced by Exhibit K:

The Appellant admitted under cross-examination that the terms of service are subject to periodic review. It should therefore not be surprising that the 1988 Collective Agreement had evolved into the 1990 version.

The learned trial judge found no provisions for summary dismissal in the 1990 Collective Agreement and so held. The Appellant tendered no letter of appointment.

We had reviewed, in the course of this judgment, some case law on the master/servant, relationship and found it held severally, that where there exist no formal agreement regulating the relationship between the master/servant, then either of them has a right to terminate the relationship. The Courts are incompetent to compel to continuation of the relationship (Refer O.O. Oyedele v. Ife University Teaching Hospital Complex Management Board (1990) 6 NWLR Pt. 154 p. 194at 199.

It appears a settled practice that an employer is at liberty to prematurely terminate the employee’s appointment for the misconduct of the employee. (Refer Union Bank of Nigeria Ltd. v. Ogboh (supra).

There has been no clear definition under the law of this nation as to what constitutes misconduct. The Supreme however gave a definition of “Gross misconduct” as conduct of a grave and weight character as to undermine the confidence which should exist between the employee, and his employer. (Refer U.B.N. Ogboh (supra).

Misconduct, in the circumstance, is what the employer makes it out to be; could be a series of disobedient actions, acts of insubordination (see Teliat A.O. Sule v. Nigeria Cotton Board (1995) 2 NWLR Pt. 5 P. 17 at 28) absenteeism, embezzlement or some conduct considered detrimental to the corporate existence of an institution as in the instant case.

Upon the facts before the trial Court, the question of conditions/terms of services and the issue of compliance or non-compliance herewith is mere cosmetic balderdash, gibberish.

Under cross-examination, the Appellant acknowledged that he knew his employer, a banking institution was – distressed, a condition he attributed to poor management. He was a Branch Manager and therefore part of the bad administration; of course, the Appellant exonerated himself and claimed that Port Harcourt, which he managed was the best branch. No certificate nor medal of a merit award for best managerial skills was tendered in evidence in support of this self-proclamation.

Whatever the conditions of service regulating a master/servant relationship, I fail to see any rational employer which/who would applaud and condone the actions of a managerial staff who engages in activities clearly detrimental to the continued existence of the employer.

The Appellant has admitted giving out loan facilities over and above his capacity to give without the approval of the Head Quarters. He has also admitted using his employer’s official stamp, his signature and that of the Accountant in their respective capacities as Manager and Accountant to commit the Bank to a guarantee of N43,000,000.00/N21,000,000.00 without the authorization of the Head office (Refer Exhibit H).

The Appellant knew he had no power to do such but claims he did that upon the insistant request of some other official. The said official was not called up as a witness, albeit a hostile witness.

There was a clear indication from the answers of the plaintiff to question; under cross-examination, that there was a policy and some form of regulation as to the granting of facilities; these the Appellant totally ignored.

The Appellant was simply reckless, he therefore earned the summary dismissal. His conduct was clearly inimical to the corporate existence of his employers, as correctly found by the trial judge.

His exercises knew no bounds. He contended overdraft facilities even to the former customers of the bank who no longer maintained accounts with the Bank. The appellant failed to recover the facilities he granted even when he was allowed a year period of grace.

The facts before the Court were such that the trial Court was well equipped to described the conduct of the appellant as amounting to gross misconduct which is deserving of an extreme major. A summary dismissal was an adequate quick response to curbing the excesses of the Appellant in the circumstances.

I find no wrong done in the exercise of this essential power of the employer.

The learned trial Court was right.

Issue one therefore fails.

ISSUE TWO:

“Whether, on the facts before the lower Court, it can be said the Appellant is not entitled to damages for his dismissal.”

In view of our finding on issue one, it would appear rather academic to delve into this issue. However, not being the Court of last resort, we shall address the issue briefly for whatever it is worth.

It is the submission of the learned Counsel to the Appellant that the allegation made against the Appellant amounted to crimes for which the Respondent had to prove him guilty before the Court or Tribunal. Counsel submits that the Respondent “must at least set up an investigating panel to try the allegations against the Appellants and grant him fair hearing” in favour of the Appellant. Counsel cites the following cases to buttress his submission:-

(i) YESUFU AMADA GARBA & ORS. VS. THE UNIVERSITY OF MAIDUGURI (1986) 2 SC 128; at 187 line 4.

(ii) BABA VS. NCATC (1991) 5 NWLR (Pt.192) 388 at 418 para E – F;

(iii) SOFEKAN VS. AKINYEMI (1980) 5 SC 1.

(iv) BIISHI VS. J.S.C. (1991) 6 NWLR (Pt. 197) 331 at 334 Para 8.

and section 33(5) of the Constitution of the Federal Republic of Nigeria 1979 which was then applicable.

It is further the postulations of the learned Counsel that “gross misconduct”, to warrant a summary dismissal ought to have been established to be a conduct of grave and weighty character as to determine the confidence which should exist between the employee and his employer or working against the deep interest of his employer.

The Respondent, argues Counsel, must lead evidence in proof of the gross misconduct including defining the scope of the Appellant’s authority and of which the Appellant abused. (Refers UBN LTD. V. OGBOH (1955) 2 NWLR Pt. 380; 647 (SC) at 669 paras F – G). Counsel submits that there was no evidence on record establishing that as a Bank Manager, the Appellant could not without more give credit facilities to Bank customers. Counsel further argues that Exhibit H which the learned trial judge found as “speaking for itself” was not a Bank Guarantee; having been prepared on the headed paper of Ayaki & Sons; Counsel submits that little evidential value or weight should have been attached to Exhibit H. The said Exhibit submits Counsel should not have been served as the nail with which the coffin of the alleged gross misconduct was nailed. Upon these facts argues the learned counsel, the Appellant’s contract of service was wrongfully terminated.

The Appellant concedes that his contract of employment, not being one with statutory flavour, a dismissal can only attract damages and not reinstatement for wrongful dismissal.

Also concedes that a servant cannot be forced on an unwilling master not is specific performance usually ordered of a contract of personal service.

Counsel relies on the following cases:

(i) ABOMELI v. NRC (1995) 1 NWLR Part 372, 451 (CA); at 471 paras. C – D.

(ii) IWUCHUKWU v. NWUZU (994) 7 NWLR Part 350 (SC); at 411 para F -G;

(iii) ONDO STATE UNIVERSITY v. FOLAYAN (1994) 7 NWLR Part 354 1 (SC); at page 34 paras E – F.

It is the further submission of the learned Counsel that if Appellant was wrongfully dismissed, although cannot be reinstated he is entitled to damages. Now, by the facts of this case, argues Counsel, the Appellant had claimed the sum of N500,000.00 as general damages. Considering the way and manner he was treated, submits Counsel, the Appellant ought to be awarded the sum claimed.

It is the case of the Respondent per his learned Counsel, that the Appellant neither pleaded nor did he lead any evidence on how be arrived at the damages of N500,000.00 he claimed.

The Appellant did not also plead nor lead evidence on the terms of his appointment as to the required length of notice which would have determined the quantum of damages due to the Appellant in lieu of notice, if his dismissal were held to be wrongful (Refers: Imoloame v. WAEC (1992) 4 NWLR Pt. 265 p. 303 at 316 para E – F, 319, para A – B., Akinfosile v. Mobil Oil Nigeria Ltd. (1969) Nigerian Commercial Law Reports (NCLR) 253 at 259.

Counsel submits that the Appellant failed to prove the alternative claim of N500,000.00 damages, having failed to produce the material averments and evidence upon which the assessment of damages could have been based (Refers Amodu v. Amode & Anor (1990) 5 NWLR Pt. 150 P. 356 at 367.

Further, Counsel submits that having failed to prove that his dismissal was wrongful, the Appellant is not entitled to any damages.

In a nutshell, the learned counsel for the Appellant wants damages paid to the Appellant for the failure of the Respondent to prosecute and secure a conviction or acquittal for the Appellant before his dismissal. The Appellant must also be compensated for the error of the learned trial Judge in holding that Exhibit H was a Bank Guarantee and thereby according it undue weight. Counsel also wants compensation paid to the Appellant for the failure of the Respondent to adduce evidence establishing that as a Bank Manager, the Appellant could not without more, give credit facilities to Bank customers.

Exhibit H, has clearly endorsed on the very first page in the following manner:

“Note:-

“50% of total amount of (21,500.00k twenty one million five hundred thousand naira only) to be released to you. Bankers as soon as the ship berths in Port Harcourt with the sugar while the balance total would b e released midway to the discharge of the ship. Provided the originals of the shipping documents were dispatched to reach and Bankers – National Bank of Nigeria Limited, Port Harcourt, before the arrival of the carrying vessel into Port Harcourt for berthing.”

Directly underneath this is stamped “for National Bank of Nigeria Limited Port Harcourt” signed “Manager” on top and “Accountant” below, on the said Exhibit.

The Appellant did not deny signing the document without authority so to do. He said “I supported Ayaki’s proposal involving 50% of 43,000,000.00 which is N21,500,000.00. I say that it was a conditional proposal. I know it was bound to fail because the other party could not have accepted it.”

On the issue of investigation; and fair hearing, the testimony of the Appellant is apposite and part of which is hereby reproduced:-

On page 22 of the Records of this Appeal, the Appellant, while testifying as the PW1 stated as follows, inter alia:-

“… I was not given any query before I was dismissed”. The very next sentence of the witness is a direct contradiction of the above allegation. He said “on 12/6/90, I was sent for to the Head Office in Lagos and given a query”. He next tendered the query which was admitted as Exhibit ‘C’. He continued thus “…. On the 14/6/90. I was given another query” he also tendered the said letter which was admitted as Exhibit E. The Appellant also said he answered the query. The Appellant also stated that by “Exhibit E”… I was suspended from work…” It was also the testimony of the Appellant that he answered the query said he “………I denied the issue of guarantee to Ayaki in my reply and also explained why we sold draft to N.N.P.C. even though they were no longer our customer…”

By the above testimony of the Appellant, one wonders what further investigation was required. The Appellant had admitted under cross-examination, that he was asked to go on suspension to ‘pave way for investigation. “He knew who carried out the investigation.” “Inspectors from the Head Office, was his answer as to who carried out the investigation (Refer pg. 27 of Records).

In the case of Alh. Abdullahi Baba v. Nigerian Civil Aviation & Anor. (1991) 5 NWLR Pt. 192 p. 388 at 418, the Supreme Court held that the setting up of an Investigation Panel is sufficient if the persons involved are allowed to state their case which could be either by oral evidence, submission or by written presentation.

All allegations made against the Appellant were addressed to him to which he gave answers. He was even allowed time to recover some of the facilities he gave out without authority.

A Court of law is not a theater where all the scenes of a play are fully acted out of necessity for purposes of entertainment.

In a superior Court of Record, once pleadings are ordered and issues have been joined, legal evidence is only required and adduced upon those issues which are contentious and controverted. Where allegations made are admitted by the person against whom they are made it becomes theatrical to proceed to adduce evidence to establish that which has already been admitted, unless of course such further evidence is vital for a particular’s reason.

Admission is the best form of evidence, why adulterate such pure evidence by deductions? There was ample evidence before the trial Court to enable it arrives at the decision it did and rightly so.

The general position is that before damages can be awarded, there must be a wrong committed (Refer Adene v. Dantunba (1994) 4 SCNJ P. 150 at 151).

The main purpose of awarding damages is to compensate the aggrieved party for the loss, injury or damages suffered by him.

Thus the guiding principle in the award of damages is Restitution in interrogation. (Refer Maximum v. Owoniji (1994) 3 NWLR Pt. 331 Pg. 178 at 195.)

What wrong that the Appellant suffered? The Appellant failed to establish that his dismissal was wrongful. He also failed to establish any damages due to him. The trial Court found no damages established. The Appellant is therefore entitled to no award of damages.

This issue also fails.

The entire appeal is devoid of merit and hereby dismissed. The decision of the Court of trial is accordingly affirmed.

A cost of N5,000.00 is awarded to the Respondent against the Appellant.

SYLVANUS ADJEWERE NSOFOR, J.C.A.: I have had the privilege of reading before now in draft the leading judgment just delivered by my Lord, Dougban-Mensem, J.C.A.

I am in complete agreement with the conclusion and the valid reasons for the conclusion. I shall, however, permit myself to add a word or two of my own by way of an emphasis to add a coda to fortify my support of the conclusion.

The relationship between the parties to this appeal arose ex contractu. The facts of the case are rather straightforward. They have been clearly set out and with good grace. Nonetheless, I may refer to some of the facts if only to make my hereunder comment(s) intelligible.

Now, the claims by the plaintiff herein the appellant, endorsed on the writ were as follows:

“(i) A declaration that the purported dismissal of the plaintiff from the service of the Defendant as a Branch Manager contained in the Defendant’s letter reference AP/A.420/302 dated 18th November, 1991 is contrary to the provisions of the Collective Agreement between the plaintiff and the Defendant.

(ii) As Order of Court setting aside the said letter of dismissal.

(iii) A declaration that the plaintiff is still an employed of the Defendant.

(iv) An Order of Court restraining the defendant or his agents from giving effect to the said letter of dismissal.

(v) The plaintiff claims the sum of N500,000.00 as general damages for wrongful dismissal in that by a letter dated the 18th November, 1991 the defendant, purported (sic) when the said letter is contrary to the Collective Agreement binding the plaintiff and the Defendant.”

The parties filed their respective pleadings. The case was contested and fought on the issues joined by them on original Statement of Claim filed on the 8th of January, 1992, and the original Statement of Defence, undated, but filed on the 26th March, 1993.

Now, it becomes necessary to refer to and carry the principle allegations of fact forming the foundation of the Claim, the cases belli, the fons et origo of the action. Paragraphs 3, 6 and 17 of the Statement of Claim are relevant. They read:-

“3. The plaintiff was employed by the Defendant in May, 1980 as a junior management (sic). In November, 1980, the appointment of the plaintiff was confirmed.

5. The plaintiff avers that the conditions of service with the Bank, including the mode and termination of employment, dismissal and other allied situations are contained in a booklet issued by the Bank and titled Collective Agreement. The plaintiff’s condition of service with the Bank is contained in the said Collective Agreement.

17. However, on the 18th November, 1991 the Defendant by a letter reference AP/A.420/302 purported to have summarily dismissed the Plaintiff with immediate effect from the employment of the Bank.”

Now, how did the Statement of Defence deal with and answer the allegations in or by Statement of Claim? Perhaps, it is necessary to say straightway, – qui dicit unius negat alterius – that by not denying paragraph 17 of the Statement of Claim at supra, the defendant admitted it. It was not denied that the Defence wrote the letter. AP/A.420/302 (Exhibit B) dated the 18th November, 1991.

Paragraph 3 of the Statement of Defence is relevant. I shall carry it. It reads:-

“3. The defendant denies paragraph 4, 5, 6, of the Statement of Claim and shall put the plaintiff to the strictest proof thereof.”

Needless stating that the parties, each, led evidence in line with its pleadings and closed its case accordingly.

I shall pause here for a while for a comment or two for the purposes of clarity and elucidation.Counsels are the domini litis in the case(s) they are advocating or prosecuting before a Court. It was decide as long ago as in 1825 in Colledge vs. Horn 130 E.R. 459 that statements of counsel in the course of a trial in the presence of his client and unrepudiated at the time constitute evidence binding on the client.

Now, as the record of Appeal demonstrates, on the 6th of November 2000, the plaintiff was present in Court. The counsel to the plaintiff, I. A. Adedipo Esq was appearing for the plaintiff. Part of the minutes in page 38 of the Record of Appeal read:-

“Counsel applies to strike out reliefs (ii) (iii) and (iv) in paragraph 20 of the Statement of Claim.”

What extent reliefs claims then before the Court were reliefs (i) and (v) (supra).

Now, I incline to ask this:

Q:- Having abandoned the three heads of claim (i.e. (ii), (iii), and (iv), ut supra, would or could the facts pleaded in support of those heads of claim and the evidence advanced in line with and in support of them be allowed to stand? Put rather nakedly, would they not be discountenanced, disregarded and discounted? And evidence of a fact or facts unpleaded goes to no issue. Needless citing any decided cases for an authority for the proposition.

I shall again pause here for a while for a comment for the purposes of completeness and fullness. It is indisputable as a general rule that one who is not a party to a contract cannot make a claim in contract in respect thereof unless, of course, he is privy thereto or has acquired some legal interest, say by way of assignment of any rights thereunder. See (i) Danlop vs. Selfridge (1915) A.C. 847; (ii) Chuba Ikpeazu vs. A.C.B. Ltd. (1965) N.M.L.R. 374 and their other line of cases. The “Doctrine of privity of Contract” as a general rule is that a contract cannot confer or impose obligations on strangers to it. And as a general rule a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party thereto, even if the contract was made for his benefit and purports to give him the right to sue or to make him liable upon it. See Keighley, Maxsted & Co. vs. Durant (1901) A.C. 240 H.L.

To complete the circle, let it be said – scilicet – certainly, that at Common Law, in a master and servant relationship – a contract of services – the master may at any time dismiss the servant for any reason or for no reason but subject only to a claim for damages if the dismissal be wrongful.Now, having pointed it out ut supra, that the action arose, ex contractu, the question immediately arising and of the first importance becomes thus:-

Q. What is (or where is) the contract which the plaintiff, employed as a “Junior Management” in May, 1980, by the defendant wants enforced? “The problem for a Court of Construction” said Lord Tomlin, “must always be so to balance matters that without the violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains.” See Hillas & Co. vs. Arcos (1932) All E.R. Rep. 494 at 499.

Now, testifying as P.W.1. (Mr. Olufemi Anthony Borishade) at page 21 of the Record of Appeal stated inter alia

“I was employed by the Defendant in 1980 and the appointment was confirmed in November, 1980. The employment was guided by the General Condition of Banks and Insurance Companies usually called Collective Agreement. This is a copy of the Collective Agreement.”

“Counsel seeks to tender it and there is no objection. Collective Agreement Booklet admitted as Exhibit A.”

Continuing, P.W. 1 (plaintiff) further testified still at page 21 of the Record of Appeal:-

“In 1991 the Bank wrote me a letter of dismissal. This is the letter of dismissal…. The letter dated 18/11/91 admitted and marked Exhibit B.”

The parties are bound by their respective pleadings. On the plaintiff’s avowal, it is from Exhibit A (and no more) that it ought to be discovered whether or not Exhibit B was wrongful. Indeed!

I have seen and read Exhibit A. It (Exhibit A) is:

“MAIN COLLECTIVE AGREEMENT

BETWEEN

THE NIGERIA EMPLOYERS ASSOCIATION OF BANKS, INSURANCE AND ALLIED INSTITUTIONS

AND THE

ASSOCIATION OF SENIOR STAFF OF BANKS, INSURANCE AND FINANCIAL INSTITUTION.”

Now, the all important question becomes this:-

Is (or was) Olufemi Anthon Borishade (herein the appellant) a party to Exhibit A? If not, could he, as the law stands, enforce any right(s) therein or assume any obligation under it even if Exhibit A be made for his benefit?

Ans:- Armed with and guided by the principle of law above discussed, my quick, short and unhesitating answer is a capital No.

Not being a party to Exhibit A, it is my judgment that he cannot sue in breach of the contract contained in Exhibit A based on Exhibit B. Put it other words, it was incumbent on him (P.W.1), being the claimant at law, to establish the terms and admission of the engagement with the defendant (National Bank of Nigeria Ltd.) itself a legal persona, the terms of which Exhibit B by the Respondent herein, breached.

In my view of the Records of Appeal, I am, ad unum, with the learned trial Judge when he wrote in page 49 of the Record of Appeal, inter alia.

“I am satisfied that plaintiff failed to prove his case as required by law. I am also satisfied that the plaintiff’s dismissal is not unlawful. The suit is therefore dismissed.”

The above findings are unimpeachable. They are unassailable. They have not been impeached. They have not been successfully assailed. Yes!

I, too, do affirm the judgment by the Court below (A. Acho Ogbonna, J) in Suit No. PHC/633/91 on the 24th day of May, 2001 and do hereby dismiss the appeal accordingly. It is for my above reason and for the other reasons more fully detailed in the leading judgment of my Lord that I did agree with him that the appeal was wholly and entirely unmeritorious. I do abide by and endorse the consequential Orders contained in the lead judgment.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: I have read before now the led judgment delivered in this appeal by my learned brother, DONGBAN-MENSEM, JCA.

I am in agreement with the conclusion therein expressed. I however, state here my own understanding and opinions on the issues formulated in the appeal. I need therefore to restate the facts of the case in the court below in order to express here my reasoning on the issues and conclusions thereon.

In this appeal the appellant’s brief is deemed filed on 24/6/02, and adopted in this court on 26/1/05. The appellant seeks a reversal of the judgment of the Rivers State High Court delivered on 24th May, 2001 in which the claim of the appellant as the plaintiff was dismissed with costs of N3,000.00 in favour of the defendant/respondent.

Here are the facts of the case. The appellant as the plaintiff in the court below had issued a writ of summons in the High Court, Rivers State sitting at Port Harcourt and claimed from the defendant thus:-

(i) A declaration that the dismissal of the plaintiff from the service of the defendant as a branch manager contained in the defendant’s letter reference A1/A420/320 dated 18/11/91 is contrary to the provisions of the collective agreement between the plaintiff and defendant.

(ii) An order of court setting aside the said letter of dismissal.

(iii) A declaration that the plaintiff is still an employee of the defendant.

(iv) An order of court restraining the defendant or its agents from giving effect to the said letter of dismissal.”

In the alternative.

“The plaintiff claims the sum of N500,000.00 as general damages for wrongful dismissal in that by a letter dated 18th November, 1991 the defendant purported to have dismissed the plaintiff when the said letter is contrary to the collective agreement binding the plaintiff and the defendant.”

After pleadings had been exchanged the trial judge took evidence from both the plaintiff and the defendant. In its defence the defendant denied that the dismissal of the plaintiff was unlawful and should not be restrained the defendant deposed that the plaintiff was a former servant of the defendant to provide service, the defendant found that the plaintiff while in its employment acted wrongfully while in the service of the defendant in that the plaintiff/appellant granted unauthorized loans and guarantee of the sum of N43 million to a customer Ayaki; that the plaintiff unjustly enriched himself at the expense of the bank. That the plaintiff was query for granting such unauthorized loan and because his response was unsatisfactory he was suspended from work. Thereafter the plaintiff was recalled from suspension and directed to recover the debts to the bank arising from the unauthorized loans granted by the plaintiff. The defendant testified that the plaintiff refused and claimed only the sum of N900,000.00 from N436,211.28 by reason of which the defendant found that the plaintiff refused to carry out lawful authority upon all of which reasons the defendants averred that it lawfully dismissed the plaintiff from its service.

At the hearing of the suit, the plaintiff did not tender his letter of appointment deposed that he was appointed as a junior management staff in 1980 in the service of the defendant under a collective agreement of bank employees and the bank exhibit A. He said he rose gradually until 8th August 1986 when he was promoted a Branch Manager in Port Harcourt. He said he had promotions, and salary increments. The defendant in the court below did not deny these. On 12/6/90, plaintiff said he received a query asking him to explain why he signed a guarantee on behalf of a customer of the bank. He said he received another query on 14th June, 1990, he received another query from the headquarters of the bank asking (a) why he issued bank draft to NNPC who had withdrawn their accounts from the bank, and (b) why he signed a bank guarantee for one of the customers of the bank exceeding his mandate. He said he replied to the two queries. Though he was suspended, he was recalled he said to recover the debts created by the overdrafts granted by him to the customers. The appellant as the plaintiff said by the terms of the collective agreement between the workers including himself and the defendant, unless a worker of the bank is guilty of misconduct, he cannot be dismissed. In his submission thereafter, his dismissal by the defendant is contrary to the provisions of the collective agreement exhibit “A” tendered by the plaintiff. He seeks the order of court to set aside the said letter of dismissal and reinstate him to the employment of the defendant/respondent.

At the hearing at the address stage, the plaintiff abandoned reliefs 2, 3 and 4 of his claim and urged the court below to strike out same. It is the submission of the defendant that the current collective agreement between the defendant and its senior employees is exhibit K which is dated 1990; not exhibit “A”. The plaintiff/appellant said he had never seen exhibit “K”.

In his finding and judgment in the court below, the trial judge, Justice Acho Ogbonna, held as follows:

“Having considered all the issues raised in his case. I am satisfied that the plaintif failed to prove his case as required by law. I am also satisfied that the plaintiff’s dismissal is not unlawful. The suit is therefore dismissed… there will be out of pocket expenses of N3,000.00 to the defendant.”

It is against this decision that the plaintiff has filed this appeal of four grounds from which he distilled the issues as follows for determination of the appeal:

(1) “Whether on the pleadings as well as the evidence there was proof of the allegations made by the respondent against the appellant to justify his summary dismissal.

(2) Whether on the facts before the lower court it can be said that the appellant is not entitled to damages for his dismissal.”

In the respondent’s brief, it is to be noted that the respondent did not file a cross-appeal, he formulated the following issues-

(1) “Whether or not all or any of the admitted acts of the appellant constituted misconduct, warranting summary dismissal.

(2) Whether or not in a master and servant relationship, declaratory and injunctive reliefs are available remedies for alleged wrongful termination or dismissal.

(3) Whether the appellant proved his alternative claim for damages.”

Issues 2 and 3 of the respondent’s brief do not arise from the grounds of appeal of the appellant. Issue one only tentatively so; when the evidence at trial is considered. In the absence of the cross-appeal by the respondents issues 2 and 3 are incompetence and are struck out.

On the issues formulated by both parties the appellant’s issue one is in the submission in the body of the argument of issue one that the incongruity of the issue formulated with the ground of appeal will be made manifest. It discloses in the argument an issue not determined in the judgment of the court below. The issue challenges not the judgment of the court; it introduces a fresh issue on appeal. Here it is on page 5 of the appellant’s brief, the appellant raised what he called “Preliminary” and wrote-

“In seeking to justify the act of summary dismissal of the plaintiff, the defendant gave three major reasons for his grave sanction of its employee; the reasons given are as follows:-

(a) That plaintiff was guilty of misconduct;

(b) That plaintiff gave out unauthorized loans and guarantee of the sum of N43 million to one of the customers Ayaki & Co;

(c)  That he unjustly enriched himself at the expense of the Bank.

The appellant proceeded to ask the following however since the Respondent chose to base its defence on these allegations pleaded and testified above, then the onus of proof of those allegations rest on it and his proving these allegations. The respondent owes appellant the duty of allowing him a fair hearing.”

See page 6 of the brief. At law, at the commencement of hearing of a claim the onus of proof is on the plaintiff not on the defendant. In the instant appeal in the court below the onus of proof of the wrongful or unlawful dismissal of the plaintiff was on the plaintiff not the defendant, That onus does not shift on appeal.

The above issue, and the argument submitted by the appellant in his issue one is not contained in the decision of the court below. Therefore besides the attempt to shift the onus of proof on the respondent as the plaintiff whose onus it is to prove his claim or fail. See Section 137 of the Evidence Act, Cap 119, Laws of the Federation of Nigeria; the appellant in this appeal has formulated an issue not founded on the ratio decidendi of the judgment of the court below. The ground of appeal in issue one, required proof of the allegations, made by the respondent against the appellant, and demanded thereon the justification by the respondent of the dismissal of the plaintiff. It is an entirely new cause of action, which did not arise in the judgment of the court below. The ground of appeal, and the argument in proof of the ground of the issue formulated did not arise in the judgment of the court below. In fact the appellant’s argument is a consequence of the decision given by the court below. It is not the decision of the court below. Because the ground of appeal in ground one does not challenge the ratio decidendi; in this appeal it presents a new issue on the judgment of the court below, it is therefore incompetent and void, It should be struck out; it is struck out. See Ogunbiyi v. Ishola (1996) 6 NWLR (Pt 452) 12; 22-23 (ii) Egbe v. Alhaii (1990) 1 NWLR (Pt. 128) 546, 590; (iii) Oba v. Egberongbe (1998) 8 NWLR (Pt 615) 488, 498 (iv) Igube v. Ezenwa (1999) 6 NWLR (Pt 606) 228,234.

Further on issue one of the appellant, by its tenure and theme assuming it is a valid issue, which it is not, it places the onus of proof on appeal on the respondent. Generally and as a matter of law, no fresh evidence is taken on a matter on appeal except with the leave of court. The question must be asked, on the argument of the appellant when after the close of evidences on the court below, is the respondent to present to the court below the evidence of conviction of the appellant to enable the respondent justify the dismissal as asked by the appellant? No such occasion or opportunity exists in that trial because the plaintiff did not raise it at the trial. To countenance the issue raised by the appellant is to rehear a different claim by the plaintiff, which was not canvassed and determined by the court below; this is unacceptable on appeal. The onus of proof in a civil claim is on the plaintiff who must prove his claim or fail. It is an elementary principle of the rules of litigation that the plaintiff in the court below who alleges unlawful dismissal of his employment must prove that the dismissal was unlawful or fail. See Mba Ede v. Okufo (1990) 2 NWLR (Pt.150) 356 SC. At no stage in the proceedings in matters of this nature or on appeal does the defendant owe a duty to the plaintiff to prove any issue of the burden of the plaintiff to establish the plaintiff’s claim. If the plaintiff cannot succeed on the strength of his claim he should fail. Inyang v. Eshiet (1990) 5 NWLR (Pt.149) 178 CA.

In the instant appeal in the court below the plaintiff did not canvass a lack of hearing. Evidence was given that exhibit E being query on 12th June 1990 was issued by the defendant to the plaintiff which the plaintiff said he answered promptly; how then does the issue of fair hearing arise? Fair hearing or denial of it was not raised at the hearing in the court below.

This is another instance of the appellant raising a fresh issue on appeal without an application for the leave of court to do so. The ground one and the issue of the defendant/respondent thereon is incompetent; it is stuck out. See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) at 431. The respondent thereby has nothing to respond to.

On issues 2, 3 & 4, the appellant at the address stage in the court below applied that they be struck out. The court below should have made a specific order striking out the issues. There is no process of compelling plaintiff/appellant to submit evidence or canvass the reliefs previously sought now abandoned. I want now to deal with alternative claim of the appellant. The alternative claim of the appellant in his brief, reads-

“Whether on the facts before the lower court it can be said that the appellant is not entitled to damages for his dismissal.”

The appellant’s clams to the alternative reliefs he sought is founded on the plank of argument which demands an investigating panel, and condemns the judgment of the court below for not insisting on an investigating panel which would find the appellant liable in the absence of which the appellant demand a claim for damages. On this issue the ruling of the curt below is this:

“Regarding the alternative claim it can only succeed where there is proof. There is no such proof. The court below dismissed it.”

The alternative claim is a subterfuge for presenting two simultaneous claims. There is indeed no evidence before the court below to support the alternative claim. However, as is in the previous case on issue one, it is in evidence that the appellant’s averment in the issue did not arise in the judgment of the court below are the issue should be struck out for incompetence. Exhibit A on the alleged collective agreement has been shown to contain no provisions relating to the plaintiff’s status at the time of his dismissal. It was inapplicable. The allegation issue therefore struck out. However, on the alternative claim I wish to add that the measure of damages in a contract is the extent of a failure of consideration on the part of the defendant. This does not apply in a contract of employment of a servant with a master where there is no statutory flavour. See yeomen Credit v. Latter (1961) 2 All E.R  P. 244, (ii) Unegbu v. Medland E Ltd. (1980) 6 NWLR (Pt.156) 306. The contract of employment between the plaintiff/appellant and the defendant/respondent ended when the defendant/respondent determined it by dismissal by exhibit B. It was a contract of a master and servant, the respondent being the master. As an employee of the plaintiff, the respondent owes no obligation to the appellant to retain the appellant in its employ. It can determine the contract of employment at any time. (1) Taiwo v. Kingsley Stores Ltd. 19 NLR 122 (ii) Abe v. Nigersol Construction Coy Ltd. (1972) 2. University of Ife Law Report (Pt. 2) particularly as the appointment if the appellant has no benefit of a statutory flavour Udemah v. Nig. Coal Corporation (1991) 3 NWLR at 479. While it is true that when a master gives a reason for determination of an employment of its servant, it must be a good reason, the obligation to do so does not remove from the employer the right to dispense with the services of an employee. In this case the reasons for dismissal are founded on good and lawful grounds. The determination of appellant’s employment is therefore lawful.

Consequently no damages are awarded to the employee upon dismissal of his service with his employers. See Union Bank v. Ogboh (1991) NWLR (Pt.167) (ii) Mohammed v. Alli (1989) 2 NWLR (Pt.103) 349 at 363.

In sum there is no viable issue to be considered by appellate court in the appeal of the appellant to favour him with judgment or consideration of the issues. There is therefore no valid issue before this court to which there respondent can reply. The appeal is incompetent. It is dismissed.

It is pertinent to comment on the respondent’s issue 2 & 3 in his brief; the respondent has besides issue one argued on issues 2 and 3 which the appellant did not file grounds of appeal. Since the respondent did not file any cross-appeal it is trite law that issue for determination must arise from grounds of appeal filed by the appellant. Any issue as formulated by the respondent as in issues 2 and 3, which are not rooted in the grounds of appeal filed by the appellant go to no issue. See Okpala v. Ibeme (1989) 2 NWLR (Pt.102) p. 208 at 221. It should be struck out. The respondent’s two issues are struck out.

There is no proper appeal before the court. The issues in the appeal having been determined it is in my view that the appeal should not only to be struck out, it is to be dismissed. The appeal is dismissed.

Appearances
I.A. Adedipe Esq;
U. Oyaghiru (Mrs.)
Ofalona Esq
For the Appelants
E.B. Ukiri Esq;
M.E. Nwosuegbe and
F.O. Okeri Esq
For the Respondents