Whether an Employer can Legally Dismiss an Employee Who he had Earlier Retired

UNITY BANK v. CHORI
CITATION: (2021) LPELR-55720(CA)

In the Court of Appeal
In the Abuja Judicial Division
Holden at Abuja

ON THURSDAY SEPTEMBER 30, 2021

Suit No: CA/A/463/2018

Before Their Lordships:
MOORE ASEIMO ABRAHAM ADUMEIN
Justice, Court of Appeal
UCHECHUKWU ONYEMENAM
Justice, Court of Appeal
ELFRIEDA OLUWAYEMISI WILLIAMS DAWODU
Justice, Court of Appeal

Between
UNITY BANK PLC – Appellant(s)
And
BAKO N. CHORI – Respondent(s)

LEADING JUDGMENT DELIVERED BY UCHECHUKWU ONYEMENAM, J.C.A.

The respondent was an employee of the Bank of the North, which alongside other eight banks was acquired by the appellant. The respondent later rose to the position of a manager in one of the branches of the appellant and worked as a branch manager. Sometime in 2012, the appellant alleged that one of her customers by name Tanko Mohammed applied for facility of N5 Million only and the sum of N10 Million was processed for him on the purported advice of the respondent as the branch manager with the understanding that he will give the respondent N5 Million to use and to later settle the account together. The respondent responded to the said allegation and nothing was heard about it again until after his purported retirement on July 23, 2012. The respondent by the policy of the bank was retired on ground of age along with 530 other staff. Pursuant to the said retirement, the entitlement of the respondent was calculated and paid into his account but was withdrawn by the appellant the same day on ground of error. The appellant thereafter on August 1, 2012 dismissed the respondent on ground of misconduct. Aggrieved, the respondent sued the appellant at the National Industrial Court for wrongful termination of his appointment seeking declaratory reliefs and orders. The appellant equally filed a counter claim.

The trial Court entered judgment in favour of the respondent and consequently, the counter claim of the appellant failed.

Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

Respondent’s counsel in response stated that the fact that the respondent was an employee of the appellant needs no further proof. He relied on SECTION 131 OF THE EVIDENCE ACT.

He argued that the appellant cannot validly contest the employment of the respondent as dismissal or retirement presupposed that there existed an employment, which could be validly ended either by termination or dismissal.

On issue two, appellant’s counsel contended that the trial judge made a different case for the respondent, which is not within the vire of the trial Court to make a case for the parties.

Respondent’s counsel argued that the trial Court did not make a case for the respondent as it merely granted the declaration sought which was to the effect that the respondent was already duly retired.

He argued that the procedure adopted by the appellant in dismissing the respondent before investigating or hearing the Respondent were clearly in breach of the rule against fair hearing. He cited the case of FEDERAL POLYTECHNIC EDE & ORS VS ALH LUKMAN ADEKOLA OYEBANJI, (2012) LPELR 19696 (CA).

On issue three, appellant’s counsel relying on the provisions of SECTIONS 84 (1) & (2) AND 258 OF EVIDENCE ACT, contended that the trial Court ought not to have relied on Exhibits D-D14 (the list of staff affected by the appellant’s new retirement policy) and Exhibit G (statement of account) which were purportedly gotten from the site of the Appellant as same were unsigned and hence, inadmissible for failure to comply with the provisions of the Evidence Act.

Respondent’s counsel contended that the fact that Exhibits D-D14 and G1 were computer generated documents does not make them inadmissible under SECTION 84 OF THE EVIDENCE ACT, 2011 as the appellant did not deny the fact that Exhibits D – D14 was generated from their website and circulated by them.

On issue 4, appellant’s counsel contended that the lag in delivering the judgment within 90 days from the date of adoption of final written addresses of the parties had impaired a proper evaluation of evidence by the learned trial Judge and as a result, the appellant had suffered a great deal of miscarriage of justice. He cited SECTION 294 (1) & (5) OF CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA 1999.

Respondent’s counsel argued that though a Court is enjoined to deliver its judgment within 90 days from the date of adoption of written addresses, a judgment shall not be a nullity merely because it was not delivered within 90 days unless a party can show that he has by reason of the judgment not being delivered within the 90 days suffered substantial injustice or miscarriage of justice. That the appellant has not shown any miscarriage of justice that will result to reversal or setting aside of the judgment.

On issue five, appellant’s counsel contended that the learned trial Judge violated his own order and breached the rule of fair hearing when it delivered judgment without communicating to the appellant but only to the respondent even when the learned trial Judge himself reserved judgment and made order that the date of judgment would be communicated to the parties.

The respondent’s counsel in response argued that the assertion that the judgment date was communicated to the respondent’s counsel alone is erroneous as both parties were informed via a telephone call. He further argued that assuming the appellant was not communicated the date of judgment, it is not a reason to nullify a judgment as it amounts to a mere irregularity. He relied on CHIME V. CHIME (2001) 5 NSCQR @ 277 and (2001) 2 SCM @ 16 (SC).

REPLY

The appellant’s counsel in reply to the respondent’s counsel on issue one, submitted that the appellant never admitted the employment of the respondent for it to require no further proof.

Appellant’s counsel in response to issue two submitted that fair hearing in administrative inquiry cannot be equated with a judicial trial.

RESOLUTION OF ISSUE
In resolving issue one, the Court stated that from the facts of the instant case most of which is not in contention and one of which is that Exhibits D-D14 were generated from the sight of the appellant and its authorship, presuppose the existence of employer-employee relationship.

That the principle of law requiring that the respondent prove his employment by tendering his letter of employment does not apply in the instant case.

The Court stated that the appellant having admitted that it employed the respondent and went ahead to retire him, the respondent did not need to prove his employment and the admitted fact required no further proof. See MBA V. MBA (2018) LPELR-44295(SC).

On the second leg of the issue, which is whether the respondent was duly retired after putting 31 years of service in the employment of the appellant, the Court explained that both retirement and dismissal brings to an end the life of a contract of employment.

The Court further explained that though the two serve the same purpose, there is a clear difference. That dismissal is punitive, and usually without any terminal benefits to the employee. On the other hand, where an employee is retired, he receives his terminal benefits under the contract of employment. See EKEAGWU V. THE (NIG) ARMY & ANOR (2006) LPELR-7641(CA).

The Court then stated the fact that the respondent in the instant case had earlier been retired on July 23, 2012 before the purported dismissal on August 1, 2012.

That since the two cannot exist side by side nor follow each other, the first in time, which is the retirement, prevails having ended the contract of employment already. The Court further stated that an employer cannot legally dismiss an employee who she had earlier retired since after his retirement, he ceases to be his employee.

Thus, the Court held that the trial Court was right when it held that the appellant having been duly retired the respondent could not subsequently dismiss him.

On issue two, the Court explained that from the reliefs sought by the respondent at the trial Court, the case is not that of a wrongful dismissal per se, rather, that of a void act. That being a void act, which is different from mere wrongful dismissal, the respondent need not prove the conditions of his employment.

On issue three, the Court explained that by the provisions of SECTION 84 OF THE EVIDENCE ACT and particularly for the fact that the Appellant has not denied making the exhibits; the exhibits though unsigned and undated are admissible.

On issue four, the Court explained that the principle of law that states that every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses is not without exception. That the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of SECTION 294(1) OF THE 1999 CONSTITUTION (AS AMENDED) unless the Court exercising jurisdiction by way of appeal from or review of that decision (in the instant case, the Court of appeal) is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. This the Court held that the appellant failed to prove and thus, the judgment of the trial Court is not vitiated.

On issue five, the Court stated that though the trial judge was wrong to have proceeded to deliver judgment without enquiring if the date was communicated to both parties, this however, cannot be said to have occasioned any miscarriage of justice as parties to a suit attend the judgment date merely to receive the judgment and nothing more. That the delivery of a judgment by a Court without serving a party with judgment notice though not desirable does not violate a party’s right to fair hearing since no party is meant to be heard on the merit of a case at the point of judgment delivery. Thus, the Court held that there was no breach of fair hearing.

HELD
The appeal was dismissed and accordingly, the judgment of the National Industrial Court was affirmed.
APPEARANCES:
ABDULRAZAQ S. GOBIR, ESQ., with him,
JOSEPH AROME, ESQ. – For Appellant(s) and
ABDULLAHI ABUBAKAR, ESQ.
IYAJI PATRICK OJEKA, ESQ -For Respondent(s)

Compiled by LawPavilion


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