Civ.App.No 71/99                                                                         

(CIVIL DIVISION)

BETWEEN

STANDARD CHARTERED BANK (S,L.) LTD                     - APPELLANTS

AND J.A. FOREWA                                                               - RESPONDENT

CORAN:-

Hon. Mrs.  Justice V.A.B,Wright                       - J.A.

Hon. Mr.    Justice N.D. Alhadi                        - J.A,

Hon. Mr.    Justice F.C. Gbow                          - J.A.

DR. ADE RENNER THOMAS FOR APPELLANTS

E.E.C.SHEARS- MOSES ESQ., FOR RESPONDENTS

JUDGEMENT DELLVERED THE 16TH DAY OF APRIL, 2000 F,C. GBOW J.A.

There are three grounds of Appeal filed herein "by the Anpellants/Defendants, Standard Chartered Bank (S.L.) Ltd. These are the grounds —

(1) That the Learned Trial Judge misdirected himself as to the evidence adduced before him in holding that there was no agreement between the Defendants/Appellanta and the Plain-tiff/Respondent relating to NOTICE to be given by the Defendant to the Plaintiff. (g) That the Learned Trial Judge erred in Law in holding that in the absence of an Agreement, the Plaintiff/Respondent was entitled to 12 months salary in lieu of notice. (3) That the said judgement dated 11th July, 1995 was against the weight of the evidenced.

I need not outline the facts of this case at this stage... The facts will be revealed as I go along.

In his arguments before this court learned counsel for the Appellants among other things, said that there was ample evidence.

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before the Learned Trial Judge as to the required notice to terminate the Plaintiff's employment.. In support of this argument Counsel referred us to Page 41, Lines 17- 20 of the record. He also referred to Pages 45 and 52 for the evidence of DW 2, all in an effort to prove that the Plaintiff/Respondent was entitled to only one Month's Notice or salary in lieu which was paid him - Vide Exh "C1".

Indeed, under cross examination at Page 41 of the record, the Plaintiff told Counsel that it was true that as a permanent si?aff, if he wanted to leave his employment he would give his rmployers a Month's Notice. At Page 53 of the record, DW 2 Ayodele Randall conditions of service either party could terminate an employees service by giving a month's notice or a month's salary in lieu . I do not know what terms and conditions of service this witness was referring to because the plaintiff's Letter of Appointment which should contain the terms and conditions of his employment was not tendered in evidence . The Plaintiff told the court below that he had misplaced it. The Appellants who should have produced a copy of the said letter never produced it even though a notice to, produce was served on the Appellants.

Exhibit "E" the Collective Agreement between the Appellants and the Respondent' s Trade Union does not apply to the Plaintiff. Even DW 2 Appellants own witness told the court that this Exhibit; did not apply to the plaintiff because at the time that he was terminated he was already a Senior Member of Staff - A Manager.

Under Paragraph 7 Sub-Paragraphs (3) and (5) of this Exhibit, one month' s notice is required for the termination of employment in the case of employee serving probation period , and these who have been confirmed in their employment except in cases of summary dismissals. In either case a month's salary in lieu of notice may be paid.

If this Exhibit "E" does not apply to the plaintiff and the

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Plaintiff's Letter of employment is not available to the court, how can the court know the duration of the notice to be given to the plaintiff. It is my view that the Respondents letter of appointment ought to have been made available to the court. The amount of notice required for terminating the plaintiffs service should be contained in that letter. In the absence therefore, of any document showing the period of notice required for terminating the plaintiff's employment, I cannot accept Learned Counsel for the Appellants/Defendants' submission that there was uncontro-verted evidence before the Learned Trial Judge as to the notice required for terminating the plaintiff's service.

In my humble opinion what the plaintiff said about one month's notice under cross examination, and also what PW 2 and DW 2 said about the so-called one month's notice were what generally would prevail in normal circumstances.

The case that we are dealing with here, is not merely a question of termination of service. It is a question of wrongful dismissal. Learned Counsel for the Appellants himself conceeded in his closing address that it was unfair that the plaintiff was given only one month's notice; but Counsel also made the remarks that that was a question of moral which he was not concerned with. He was only concerned with law - pure law.

Counsel even suggested that the Legislature should look into this aspect of the law with a view to making amendments in the interest of justice. I differ with Learned Counsel in this observation. My own position is that the issue before us is not one of morals. What is in issue is whether the plaintiff's termination was wrongful. In considering this issue various elements come into play. The amount of notice is just one element.

In Exh "C1" the Appellants had assigned reasons for terminating the plaintiff's employment, the reasons being negligence and misconduct. The question is did the plaintiff's behaviour amount

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to negligence or misconduct .Did the appellants lead any evidence to convince the learned Trial Judge that the plaintiff was negli-gent,was there any evidence of misconduct? Having thoroughly read the record of proceedings I find the evidence lead against the plaintiff most inadequate.

The Appellant's evidence in a nutshell was that after the plaintiff had come down to Freetown from Makeni on Annual Leave an inspector from Head Office went and carried out investigations in Makeni Branch. At that time one Mr. Vonjo, now deceased was Acting as Manager at that Branch. The inspectpr discovered that certain Vouchers and Cheques had been suppressed .' Suppression of Cheques is a practice which is frowned upon by the Bank. It is an irregularity according to the inspector. When the inspector returned to Head Office a committee was set up by the Bank to Investigate the conduct of the plaintiff because Mr. Vonjo the Acting Manager had told the inspector that these cheques were suppressed by the plaintiff and that the plaintiff had told Mr. Vonjo, to hold on to these cheques until the client's funds were in credit and he could then reverse the affected cheques. Following the investigations which took place in the office of the Personnel Manager, it was decided thai the Plaintiff's employment should be terminated with immediate effect.

There is evidence that the results of the committee's investigations were never commumicated to the plaintiff before he was terminated. There is also evidence that Mr. Vonjo was the first to be interviewed before the plaintiff was called in." He was separately interviewed .He was never given an opportunity to hear from the horse's mouth i.e., from Mr. Vonjo's mouth.

The plaintiff denied the allegations. Mar, Vonjo never made the allegations in the presence of the plaintiff. The plaintiff's own case in a summary form was as follows:-

He had worked for the Appellants for 27 years

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1965 - 1992 During that period he had risen from Clerk to Manager. He had worked in almost all the Appellants' Branches in the Country,' He had never through out all those years received from Management any query letter alleging negligence, misconduct or any other form of misbehaviour on his part. His last posting was Makeni where he had been confirned as a Senior Manager" See Exhibit "A". While in Makeni he took his Annual Leave on the 6th of October 1992. His reliever, Late Tommy Vonjo got to Makeni before he the plaintiff left on the 13th of the same October for Freetown to join his family. On the 19th of October he received a letter from the Managing Director inviting him to meet him in his Office." Exhibit "B" was the invitation letter" The letter reads "Dear Mr. Forewa, We refer to our letter dated 4th March, 1992 and are pleased to advise that as a result of the satsifaotory manner in. which you have conducted your duties as Branch Manager, Makeni Branch during the past 6 months, you have been confirmed in the M. 19 Grade with effect from 1st July, 1992.

Your salary however remains payable at the Annual rate of Le2,682819 i.e. M.19 NOTCH 1.

May we take the opportunity to congratulate you on your confirmation and we trust we will continue to count on your support as a Member of the Banks Management Team.'

Yours sincerely

There was evidence from the plaintiff that there was an Internal Auditor in the Makeni Branch, through out the Plaintiff's stay there. The Auditors duty among others was to report

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immediately in a query form, to Head Office in Freetown, if he discovered any irregularity or discrepancy on anomaly after examining and scrutinising all vouchers and cheques in the Makeni Branch.' This was to be done on a daily basis.

What could the Internal Auditor have "been up to, not to have despatched any query to Head Office about cheques and voucher allegedly suppressed by the plaintiff. Why wasn't this Internal Auditor also investigated by the Bank.'

Why didn't the Appellants issue a, query to the plaintiff before instituting a full scale investigation resulting in his instant termination.

Why were the plaintiff and Tommy Vonjo never present together in the investigating room so that they could confront each other. Why were the cheques and the vouchers not with the investigating committee at the time they were interviewing the plaintiff." DW 2 Ayodele Randall who was a member of the committee told the court under cross examination that the vouchers and ahequea were not with them at the time they were conducting their investigations in the Personnel Managers' Office when the plaintiff was with them.

It is curious to say the least, that the Appellants moved with such lightening speed to terminate the Respondent's service following the investigations. The investigations took place on the 21st of October 1992. Barely two days later, on the 23rd of October, the plaintiff was served with a termination letter, Exhibit "C1". It is interesting to note that only three months earlier, on the 10th July 1992, while the plaintiff was still in Makeni, a beautiful letter of commendation had been written to him by the Appellants. This letter is Exhibit "A" which I have already referred to.

The difficulty in this appoal with regard to the notice given to the plaintiff is that the notice of one month or salary

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in lieu was not based on the terms and conditions of the plain-

tiffs' employment. As I have already mentioned, the Respondents' letter of appointment was not made available to the court, In the absence of that letter the Learned Trial Judge properly substi-tuted. for the one month, a period which he considered reasonable in the circumstances;

Page 490 it is stated that if no custom or stipulation as to NOTICE exists, and if the contract of service is not one which can be regarded as a yearly hiring, the service is terminable by reasonable notice. According to the Footnotes to Paragraph 945 of this edition, six months ,to twelve months have been allowed as reasonable notice,                                                                               

IN GRAUNDY vs. SUN PRINTING AND PUBLISHING ASSOCIATION (1916)

3 TLR 77 C.A. twelve months notice was held to be a reasonable notice.

Having carefully read the Learned Trial Judges' Judgement I would hold that the twelve months notice which he considered reasonable is reasonable, considering all the circumstances of this case. The Appeal is accordingly dismissed, with costs both in this court and the court below. 15 be Taxed

(Signed) F.C. Gbow - J.A

I agree................Hon/Mrs.Justice V.A.D. Wright -:J.A.

I agree...............Hon. Mr. Justice N.D. Alhadi - J.A.

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Justice N.D. ALHADI:

I have had the privilege of a review of the judgment just delivered by my Learned Brother F.C. Gbow, J.A.

I agree with the entire judgement. I also dismiss the appeal,

Justice N.D. Alhandi,JA.