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  • New Nig. Bank Plc v. Imonikhe
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  • 2002-09-02
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New Nig. Bank Plc v. Imonikhe

NEW NIGERIA BANK PLC

V

B. A. IMONIKHE

COURT OF APPEAL

( BENIN DIVISION )

RAPHAEL OLUFEMI ROWLAND, JCA ( Presided )

SAKA ADEYEMI IBIYEYE, JCA ( Read the Lead Judgment )

KUMAI BAYANG AKAAHS, JCA

CA/B/301/98

MONDAY, 10TH DECEMBER, 2001

ACTION - Cause of action - Meaning of

APPEAL - Arguing an appeal - Need for counsel to rely on issues formulated rather than grounds of appeal

APPEAL - Grounds of appeal - Particulars of errors in law - Essence of

APPEAL - Notice of appeal - Preliminary objection thereto - Need to deal with before going into the substance of the appeal

APPEAL - Notice of appeal - When defective - Instances of

LABOUR LAW - Master and servant - Dismissal of employee - Whether employer has obligation to award financial compensation - Duty of employer to make refund of payments made by dismissed employee into any financial schedule

LABOUR LAW - Master and servant - Termination of appointment - When will not be declared wrongful

LABOUR LAW - Termination of employment - Pleading of plaintiff therein -  Material facts required

PLEADINGS - Averments in pleading - When deemed abandoned

PLEADINGS - Functions and nature of

PLEADINGS - Plaintiff in an action for unlawful termination - Pleading thereof - Required material facts therein

PRACTICE AND PROCEDURE - Pleadings - Averments in pleading - When deemed abandoned

PRACTICE AND PROCEDURE - Pleadings - Functions and nature of

WORDS AND PHRASES - ‘Cause of action’ - Meaning of

Issues:

1.            Whether on the basis of the plaintiff/respondent’s evidence before the court below, he made out relevant cause of action. If the answer is in the negative, whether the case of the plaintiff/respondent ought not to have been dismissed.

2.            Whether the learned trial Judge was right to completely ignore consideration of the relevant case of the defendant/appellant, which was specifically made out at pages 60 and 61 of the record namely, that the plaintiff/respondent woefully failed to plead and prove breach of his conditions of service with the defendant/appellant.

3.            Whether the plaintiff/respondent was dismissed in conformity with his conditions of service, that is, exhibit P. 18 (not copied in the Record of Appeal).  If the answer is in the affirmative, whether there was breach of the conditions of service on the part of the defendant/appellant.

4.            Whether the plaintiff/respondent’s mere averment touching on alleged charge of fraud by the defendant/appellant against the plaintiff/respondent in his evidence, could legally constitute a basis for the judgment of the court below.

5.            Whether the award of the total sum of N187,413.88, if warranted, is not excessive.

Facts:

The plaintiff/respondent commenced this suit against the defendant/ appellant for wrongful dismissal from the defendant/appellant’s bank.  He pleaded that his dismissal was contrary to the principle of natural justice and fair hearing because fraud was alleged against him.  The matter was not reported to the Police and he was not charged to court.  He was also not invited nor appeared before the Disciplinary Committee set up to look into the matter.  At the conclusion of trial, the trial court found for the plaintiff/ respondent and set aside the letter of dismissal.  Aggrieved, the appellant appealed to the Court of Appeal.