UMAR v. NVRI & ANOR CITATION: (2018) LPELR-45628(CA) In the Court of Appeal In the Jos Judicial Division Holden at Jos ON WEDNESDAY, 20TH JUNE, 2018 Suit No: CA/J/75/2017 Before Their Lordships: ADAMU JAURO Justice, Court of Appeal UCHECHUKWU ONYEMENAM Justice, Court of Appeal HABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal Between MRS. OMOLARA U. UMAR - Appellant(s) And NATIONAL VETERINARY RESEARCH INSTITUTE, VOM GOVERNING COUNCIL NVRI, VOM - Respondent(s) RATIO DECIDENDI (2018) LPELR-45628(CA)
Transcript
UMAR v. NVRI & ANOR
CITATION: (2018) LPELR-45628(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON WEDNESDAY, 20TH JUNE, 2018Suit No: CA/J/75/2017
Before Their Lordships:
ADAMU JAURO Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal
BetweenMRS. OMOLARA U. UMAR - Appellant(s)
AndNATIONAL VETERINARYRESEARCH INSTITUTE, VOMGOVERNING COUNCIL NVRI, VOM
- Respondent(s)
RATIO DECIDENDI
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1. ACTION - PLEADINGS: Whether parties are bound by their pleadings; effect of facts not pleaded"...As stated above, the first and second grounds of appeal of the Appellant raised questions touching on fundamental rights against the decision ofthe lower Court and as such can be filed as of right under the provisions of Section 243 (2) of the 1999 Constitution. They thus do not come withinthe purview of the preliminary objection of the Respondents. However, the question must still be asked whether, in the circumstances of this case,the complaint in the second ground of appeal is one that can be appropriately raised in this appeal. This is because the question of whether theSenior Staff Disciplinary Committee of the first Respondent, and before which the Appellant was invited to appear, was properly composed as toensure its impartiality and fairness was not one of the allegations of breach of fair hearing pleaded and led in evidence by the Appellant. It was anissue that arose during the cross examination of the second and third respondents' witnesses - this was when Counsel to the Appellant elicitedresponses suggesting that the person who accused the Appellant of insubordination was a member of the Senior Staff Disciplinary Committee thatdeliberated on her dismissal. ?Now, it is a firmly established principle of litigation that parties are bound by their pleadings and any fact thatemerges from matters that are not pleaded go to no issue and should be discountenanced - Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9NWLR (Pt 1358) 1. Thus, it has been held that evidence of un-pleaded facts elicited during cross-examination is of no use - Okwejiminor Vs Gbakeji(2008) 5 NWLR (Pt 1079) 172, Olora Vs Adegbite (2012) LPELR 7937(CA), Diamond Bank Plc Vs Monanu (2012) LPELR 19955(CA). Where anadversary desires to make use of evidence extracted under cross-examination, he must amend his pleadings to plead the facts - Essien Vs Effanga(2012) LPELR 8495(CA), Dalyop Vs Madalla (2017) LPELR 43349(CA). The Appellant did not amend her point of claim or her reply to the statement ofdefence to raise the issue of the impartiality of the Committee.It is correct that the Counsel to the Appellant raised and argued the point in his final written address, but it is settled law that parties are not allowedto raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does not substitutefor pleadings - Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011)LPELR-8143(SC). Similarly, the trial Courts and the appellate Courts are bound by the pleadings of the parties and a trial Court should not consideran issue not raised by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was notraised by the party on his pleadings before the lower Court - First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh(2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2NWLR (Pt 1391) 388. The lower Court did not make any finding on the point in the judgment and it is inappropriate for this Court to allow theAppellant raise the issue in this appeal. The second ground of appeal of the Appellant is thus also incompetent in this appeal and it is hereby struckout."Per ABIRU, J.C.A. (Pp. 22-25, Paras. F-G) - read in context
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2. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: When is leave required to appeal against the decision of the National Industrial Court; effect offailure to seek same"Now, civil appeals from the National Industrial Court are governed by the provisions of Sections 243 (2) and 243 (3) of the 1999 Constitution (asamended). The sections read:"An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights ascontained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.""An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the NationalAssembly:Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, suchappeal shall be with the leave of the Court of Appeal."The present position of the law on the interpretation of these provisions is that all civil decisions of the National Industrial Court are appealable to theCourt of Appeal and that while appeals on questions touching on fundamental rights against the decisions of the Court are as a matter of right,appeals on all other grounds against the decision must be with the leave of the Court of Appeal - Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24,Cocacola (Nig) Ltd Vs Akinsanya (2017) 17 NWLR (Pt 1593) 74, First Bank of Nigeria Plc Vs Agbakwuru (2018) LPELR 43639(CA), Babalola Vs AttorneyGeneral, Federation (2018) LPELR 43808(CA).The notice of appeal is the 'spinal cord' of an appeal and it contains the grievances of an aggrieved party against a decision taken by an inferiorCourt or tribunal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid andlawful commencement of an appeal. It contains what the subject matter of the appeal is - Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592,Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1.This present appeal was commenced by the notice of appeal of the Appellant filed on the 13th of January, 2017. The Appellant did not seek for orobtain the leave of Court to file the notice of appeal; she filed the appeal as of right. Thus, the question is whether the grounds in the notice ofappeal raised issues touching on fundamental rights against the decision of the lower Court.It is settled law that in ascertaining the complaint in a ground of appeal, the ground of appeal as formulated and the particulars thereto are to beread and construed together - Odukwe Vs Achebe (2008) 1 NWLR (Pt 1067) 40, Chidi Vs Consolidated Hallmark Insurance Plc (2018) LPELR44384(CA). The notice of appeal of the Appellant contained three grounds of appeal. It is pertinent to reproduce the grounds of appeal with theirparticulars."Ground OneThe learned trial Judge erred in law and misdirected itself when it held that:'In the instant case, I am of the opinion that the Claimant had ample opportunities to defend herself against the alleged offence of absenteeism butneglected the choice for reasons best known to her'Particulars of Error and Misdirectiona. By the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the civil rights and obligationsof a person is called for determination, such a person is entitled to a fair hearing within a reasonable time by a Court or other tribunal established bylaw and constituted in such manner as to secure its independence and impartiality.b. The above constitutional provision requires that ample time and opportunity must be given to a party to prepare for his case after he has beenadequately informed about the allegations leveled against him.c. By Exhibits 1AF 1 and 2, the query letter and the letters of invitation to the Claimant by the Senior Staff Disciplinary Committee (SSDC) were neverserved on the Claimant.?d. By the endorsement on the said Exhibit 1AF 1 and 2, the letter was only received by the Senior Staff Disciplinary Committee on 08 Jan 2008 afterthe said Committee had concluded its sittings and recommended the dismissal of the Appellant on the 7th of December, 2007.e. The Senior Staff Disciplinary Committee without receiving any response as to the status of the invitation sent to the Appellant through Mr.Faramade concluded without proof that the Appellant refused to honour its invitation and thereafter recommended her dismissal.Ground TwoThe learned trial Judge erred in law and misdirected itself when it held that:'Further, the addition in her case of the offence of insubordination can equally be said to have been worsened because of the same attitude. Ageneral denial in the Court of not banging the door and walking out of the office of the superior cannot be substantiated in the open Court alonehaving thrown out a better opportunity to defend herself before the Disciplinary Committee (no matter the composition and whether ifinsubordination formed part of the offences or not).'Particulars of Error and Misdirection?a. By the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the civil rights and obligationsof a person is called for determination, such a person is entitled to a fair hearing within a reasonable time by a Court or other tribunal established bylaw and constituted in such manner as to secure its independence and impartiality.b. The above constitutional provision requires the strict observance of the twin pillars of Natural Justice: audi altarem partem (hear both sides) andnemo judex in causa sua (no man should be a judge in his own case).c. From the letter of dismissal (Exhibit JNZ 1), the Appellant was dismissed for alleged offences of absenteeism and insubordination against Mr.Zinkat, a superior officer.d. The report of the Senior Staff Disciplinary Committee (Exhibit PM 3a-d) Mr. Zinkat who leveled allegation of insubordination against the Appellantand signed the purported letter of dismissal was a member of the Senior Staff Disciplinary Committee that sat and recommended the dismissal ofthe Appellant.Ground ThreeThe learned trial Judge erred in law when it held that: 'I am of the conviction that the Respondents have substantially followed the rules and arecovered by Section 168 (1) & (2) of the Evidence Act, 2011 as amended.'Particulars of Errora. The procedure to be followed in the dismissal of a Public Servant as laid down by the Public Service Rules, 2008 and the Federal ResearchInstitutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria are to ensure that the Public Servant's Right of fair hearingas enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).b. The employment of the Appellant is governed by the Public Service Rules, 2008 and the Federal Research Institutes, Colleges of Agriculture andAllied Institutions of the Federal Republic of Nigeria.c. By the Public Service Rules 2008, the power of dismissal of an officer in the Appellant's cadre exclusively within the powers of the Federal CivilService Commission and such power cannot be delegated. d. The Appellant's letter of dismissal never emanated from the Federal Civil ServiceCommission but from the National Veterinary Research Institute, Vom, Plateau State and signed by Mr. J. N. Zinkat, Head of Administration, for theExecutive Director.e. The conditions of service for Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria whichgoverns the dismissal of an officer in the Appellant's cadre, was equally not followed in the purported dismissal of the Appellant."?A close scrutiny of the three grounds of appeal shows that while the first and second grounds of appeal may pass as having raised questionstouching on fundamental rights against the decision of the lower Court, the third ground of appeal did not raise any such question. The complaint inthe third ground of appeal was against the finding of the lower Court that the Respondents complied with the terms and conditions of theemployment of the Appellant in dismissing her. The finding has nothing to do with any question of fundamental right - issue of failure to follow laiddown procedure for dismissal of an employee is an allegation of breach of contract of employment, and not one of breach of right of fair hearing. Theattempt of Counsel to the Appellant to introduce the concept of fair hearing into the finding was merely to disguise it as an issue of fundamentalrights. This Court has had cause to warn litigants and their Counsel against such attempts at disguising grounds of appeal in appeals against thedecisions of the National Industrial Court. In Lagos Sheraton Hotel & Towers Vs Hotel and Personal Services Senior Staff Association (2014) 14 NWLR(Pt 1426) 45, the Court stated thus:"Litigants who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the Constitution by seemingly waving the magic wand of fairhearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court onmatters falling outside the allowed scope should be advised not to underestimate the sharp sense of perception and wisdom of the appellate Courtsto sift the wheat from the chaff." See also the cases of Governing Board of Rugi Poly, Ondo State Vs Ola (2016) 16 NWLR (Pt 1537) 1 and HeliosTowers Nigeria Ltd Vs Adighije (2017) LPELR 42707(CA). The complaint contained in the third ground of appeal is not one that the Appellant couldraise as of right and without having first sought for and obtained the leave of this Court. The third ground of appeal is thus incompetent."Per ABIRU,J.C.A. (Pp. 12-21, Paras. B-A) - read in context
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3. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought and obtained before fresh point can be raised on appeal;effect of failure thereof"...the complaint in the third ground of appeal is a fresh issue and it is elementary that fresh issues can only be raised on appeal with the leave ofCourt -Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1. The Appellant did not obtain leave to raise thefresh issue. The complaint in the third ground of appeal is thus again incompetent."Per ABIRU, J.C.A. (P. 22, Paras. C-E) - read in context
4. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of issues distilled from incompetent grounds or from a combination of competent andincompetent grounds of appeal"The second issue for determination was formulated from the third ground of appeal which this Court had found to be incompetent and had struckout. As stated earlier, failure to follow laid down procedure for dismissal of an employee is an issue of breach of contract of employment and not oneof fair hearing. The second issue for determination, having been formulated from an incompetent ground of appeal, is incompetent - Amadi VsOrisakwe (1997) 7 NWLR (Pt 511) 161, Fagunwa Vs Adibi (2004) 7 SCNJ 322. The second issue for determination and the entire argumentscanvassed thereon are hereby struck out - Agbaka Vs Amadi (1998) 11 NWLR (Pt 572) 16, Anagwu Vs Independent National Electoral Commission(2010) LPELR 9127(CA).The first issue for determination was formulated from both the first and second grounds of appeal and the complaints in the two grounds of appealwere argued together. This Court has found that the second ground of appeal is incompetent. The law is that where an issue for determination isformulated from both a competent ground of appeal and an incompetent ground of appeal and argued together, the issue for determination and thearguments canvassed thereon would be struck out as the Court is not invested with the duty of sifting the arguments so proffered and distinguishingthe one related to the competent ground of appeal from those related to the incompetent ground of appeal - Korede Vs Adedokun (2001) 15 NWLR(Pt 736) 483, Kadzi International Ltd Vs Kano Tannery Co Ltd (2004) 4 NWLR (Pt 864) 545, Federal Housing Authority Vs Odusanwo (2007) 9 NWLR(Pt 1039) 360. The first issue for determination and the arguments canvassed there under are also hereby struck out."Per ABIRU, J.C.A. (Pp. 26-27,Paras. D-F) - read in context
5. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court"It is settled law that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and it isbinding on and conclusive between the parties. It cannot be re-examined by this Court - Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor ofEkiti State Vs Olayemi (2016) 4 NWLR (Pt 1501) 1, Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1528) 32 and Mancha Vs Emukowate (2017) LPELR43113(CA)."Per ABIRU, J.C.A. (P. 31, Paras. A-D) - read in context
6. CONSTITUTIONAL LAW - BREACH OF RIGHT TO FAIR HEARING: Duty of a party alleging breach of right to fair hearing"...it is trite law that a party alleging that he was denied fair hearing must plead the specific actsof such denial - Ejeka Vs The State (2003) 7 NWLR (Pt 819) 408, Olatunbosun Vs Annenih (2008) LPELR 8582(CA)."Per ABIRU, J.C.A. (Pp. 21-22, Paras.F-A) - read in context
7. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did not utilize it can bring anaction for breach of fair hearing"Now, it is not in doubt that an administrative panel, such as the Senior Staff Disciplinary Committee, is required by law to, in the discharge of itsduty, observe the principles of fair hearing - Hart Vs Military Governor, Rivers State (1976) 11 SC, 211, Falomo Vs Lagos State Public ServiceCommission (1977) All NLR 102, Gyang Vs Commissioner of Police (2014) 3 NWLR (Pt 1395) 547.?The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court or tribunal tocreate a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of theCourt or tribunal to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It isnot part of the business of a Court or tribunal to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to takeadvantage of or utilize the environment created by a Court or tribunal to exercise his right of fair hearing, he cannot turn around to complain of lackof fair hearing - Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302)366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45. The question whether a party has been afforded anopportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to beapplied in each case is an objective one based on the impression of a reasonable and fair minded observer at the hearing - Action Congress ofNigeria Vs Lamido (2012) 8 NWLR (Pt 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14 NWLR (Pt 1321) 488.?It is clear from the above stated unchallenged findings of fact of the lower Court that the Respondents did all that was reasonably expected of themto bring to the attention of the Appellant the allegations against her and that her matter was before the Senior Staff Disciplinary Committee and thatshe was required to attend before the Committee to defend the allegations against her. The Appellant voluntarily and bluntly refused to know theallegations against her and to attend before the Senior Staff Disciplinary Committee to defend herself. This Court must say that it is bemused at thecomplaint of lack of fair hearing chanted by the Appellant in the lower Court. What did she expect the Respondents to do when she absented herselffrom work for over two years without permission and without any explanation and then refused to collect letters of query and of invitation to her toappear before the disciplinary committee to explain her actions? Folded their arms and waited for her, Her Majesty, until she hadtheir time and descended from her high throne to answer them? Even if the first Respondent was owned by the father of the Appellant, that will beasking for too much.The behavior of the Appellant, as found by the lower Court, was totally irresponsible and highly condemnable. The amazing thing is that she had thetemerity, after exhibiting such behavior, to complain of lack of fair hearing. The doctrine of fair hearing is not a "one way traffic concept" for thebenefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party hasdisplayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court or the relevant administrative panel. InOkocha Vs Herwa Ltd (2000) 15 NWLR (Pt 690) 249 at 258 G-H, Oguntade, JCA, (as he then was) made the point thus:"It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the otherparties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed." The pointwas re-echoed by Tobi, JSC, in Newswatch Communication Ltd Vs Atta (2006) FWLR (Pt 318) 580 at 600-601 thus:"Counsel, quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble onthe merits of a case before the Court. Some resort to it as a magic wand that cures all ills of the litigation. A good number of Counsel resort to theprinciple even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one ofthe parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in thecontext of both the plaintiff and the defendant or both appellant and respondent. The Court must not invoke the principle in favour of one of theparties to the disadvantage of the other party undeservedly. That will not be justice. This will be injustice."?A party who voluntarily makes himself unavailable and stays away from attending before an administrative panel or Court after all reasonableefforts have been made to get him to attend before the panel, cannot turn round to assert lack of fair hearing - Ezechukwu Vs Onwuka (2016) LPELR26055(SC), Eze Vs Federal Republic of Nigeria (2017) LPELR 42097(SC), Darma Vs Eco Bank Plc (2017) LPELR 41663(SC).The complaint of the Appellant of lack of fair hearing in the circumstances of this case was downright frivolous and totally misconceived. The findingof the lower Court that Respondents did all that was reasonable to accord the Appellant fair hearing cannot be faulted. This appeal against thatdecision of the lower Court lacks merit and it is hereby dismissed."Per ABIRU, J.C.A. (Pp. 31-36, Paras. D-D) - read in context
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HABEEB ADEWALE OLUMUYIWA ABIRU,
J.C.A. (Delivering the Leading Judgment) This appeal
is against the judgment of the National Industrial Court
sitting in its Jos Judicial Division and delivered by
Honorab le Ju s t i ce R . H . Gwandu i n Su i t No
NICN/JOS/50/2013 on the 15th of December, 2016. The
Appellant was the claimant in the lower Court and her
claims against the Respondents, as defendants, were for:
i. A declaration that the unwanted stoppage of her
salary since October 2007 was unconstitutional and a
flagrant violation of her as a public servant.
ii. A declaration that her purported dismissal from
the service of the f irst Respondent by the
Respondents without due process or fair hearing was
ultra vires, null, void and of no effect whatsoever and
also constituted a flagrant breach of her fundamental
rights and that consequently, she is still in the
employment of the first Respondent.
iii. A declaration that her purported dismissal by
Respondents without compliance with the provisions
of the Public Service Rules and/or the Conditions of
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Service for Federal Research Institute, Colleges of
Agriculture and Allied Institutions, both of the
Federal Republic of Nigeria was wrongful,
unconstitutional, null, void and of no effect
whatsoever.
iv. A declaration that with the coming into effect on
the 1st day of January, 2004 of the Conditions of
Service for Federal Research Institute, Colleges of
Agriculture and Allied Institutions of the Federal
Republic of Nigeria, her employment was no longer
regulated by the Public Service Rules of Nigeria, but
by the new Conditions of Service.
v. A declaration that her employment as a public
servant was not only permanent and pensionable, but
cannot be determined without due process of law
prior to her attaining a retirement and pensionable
age.
vi. An order directing the Respondents to forthwith
reinstate her to her employment on a position/rank
equivalent to that occupied by her colleagues of the
same status, years in service, qualifications and grade
as at the date of judgment.
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vii. An order directing the Respondents to pay to her
all her salaries, benefits, entitlements, increments
and allowances at the rate and sums accrued and due
to her and which have been enjoyed by her colleagues
of equivalent rank, years of service, qualification and
status from the date of stoppage of same by the
Respondents up until the date of judgment.
viii. The sum of N1 Million as damages for wrongful
dismissal.
ix. An order directing the Respondents to her costs of
this action including legal fees paid to her Solicitors
in the sum of N1.5 Million or any further sums that
may accrue from the commencement of this suit until
final judgment.
The Appellant was employed by the first Respondent as a
Clerical Assistant in 1982 and she rose through the ranks
to the position of Senior Executive Officer (Accounts) as at
February, 2007 when she was posted to the Ibadan
Outstation of the first Respondent and during the course of
her employment, she served as the Treasurer of the NVRI
Staff Co-operative Thrift and Credit Society between 2001
and 2007. It was her case that in June 2007 she
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received a letter of invitation requesting her to come to
headquarters of the first Respondent in Vom and offer
explanations on the report of the audit carried out into the
activities of the NVRI Staff Co-operative Thrift and Credit
Society during her tenure as Treasurer and that she
obtained permission from her superiors at the Ibadan
Outstation and proceeded to Vom to honor the invitation. It
was her case that while she was in Vom, attending to the
audit issues, the Respondents unilaterally stopped her
salaries and emoluments with effect from October 2007
without any explanations and that this was contrary to the
terms of her conditions of service and that all her attempts,
including letters of complaint written to the Chairman of
the second Respondent and officers of the overseeing
Ministry, did not bring her any succor.
It was the case of the Appellant that while still seeking an
amicable resolution of the issues regarding the stoppage of
her salaries, she received a letter addressed to her by the
Respondents and dated the 2nd of September, 2009
dismissing her from the employment of first Respondent. It
was her case that the entire actions of the Respondents
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were wrongful, ultra vires and in flagrant breach of terms
of her conditions of service as the appropriate disciplinary
procedural steps were not followed before her dismissal
and that she would contend that her appropriate terms of
services was the Conditions of Service for Federal Research
Institute, Colleges of Agriculture and Allied Institutions of
the Federal Republic of Nigeria which came into effect in
January, 2004, not the Public Service Rules of Nigeria
relied upon by the Respondents in dismissing her. It was
her case that the actions of the Respondents were in bad
faith and were done in flagrant breach of her right to fair
hearing as she was not given an opportunity to defend
herself over the allegations against her and that she was
compelled to seek the assistance of her Solicitors to
redeem her rights and her Solicitors charged her the sum
of N1.5 Million and out of which she made N800,000.00 as
part payment.
The Respondents admitted that the Appellant was
employed by the first Respondent as a Clerical Assistant in
1982 and that she rose to the position of Senior Executive
Officer (Accounts) as at February, 2007 and was posted to
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their Ibadan Outstation and that during the course of her
employment, the Appellant served as the Treasurer of the
NVRI Staff Co-operative Thrift and Credit Society between
2001 and 2007. The Respondents further admitted that the
Appellant was sent a letter of invitation requesting her to
come to the headquarters in Vom to offer explanations on
the report of the audit carried out into the activities of the
NVRI Staff Co-operative Thrift and Credit Society during
her tenure as Treasurer and that she was released by her
superior officer to attend to the invitation. It was the case
of the Respondents that the audit exercise for which the
Appellant was invited was completed before the end of
August 2007 and she was expected to return to her station
in Ibadan before the end of August 2007, but that the
Appellant never returned to her station nor did she make
herself available at the headquarters in Vom.
It was the case of the Respondents that letters of query
were written and addressed to the Appellant through the
Ibadan office as well as letters of invitation to her to attend
before the Senior Staff Disciplinary Committee to answer
the allegations absenteeism from duty
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and gross insubordination leveled against her but she
refused to show up to receive them and that when she was
eventually showed up at the Ibadan Office on the 30th of
October, 2007, she bluntly refused to collect the letters. It
was their case that again when the Appellant was sighted
at the headquarters in Vom, the Head of Administration
called her into his office and brought the letters of query
and invitations to her attention and made to serve them on
her, but that the Appellant again refused to collect the
letters and walked out of the office and slammed the door
on the Head of Administration in the presence of junior
staff members. It was their case that they stopped the
salaries of the Appellant with effect from October, 2007
because of her failure to report for duty, which is a serious
offence under her terms of employment.
It was the case of the Respondents that the Appellant was
also reached on the telephone and requested to attend
before the Senior Staff Disciplinary Committee to answer
the allegations against her and she refused to turn up
thereat and that the formal complaints against the
Appellant were contained in the letters of query and
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letters of invitation to appear which she refused to collect
or acknowledge. It was their case that the Senior Staff
Disciplinary Committee submitted a report at the
conclusions of the deliberations and which report was
further considered by an Internal Management Committee
of the Respondents on the 13th of February, 2008 and that
the report of the Disciplinary Committee and the
recommendations and minutes of the meeting of the
Internal Management Committee as well as the allegations
against the Appellant were forwarded to the Minister of the
Federal Ministry of Agriculture and Water Resources, their
parent Ministry. It was their case that the Honorable
Minister considered all the processes and documents on
the matter and recommended the dismissal of the Appellant
vide a letter dated the 24th of July, 2009 and consequent on
which a letter of dismissal was addressed to the Appellant.
It was their case that they took steps within reasonable
means to and did comply with the terms and conditions of
service of the Appellant and that it was rather the
Appellant that breached the terms and conditions of her
employment and that the Appellant was
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628(
CA)
given more than a ample opportunity to defend herself but
she woefully failed to take advantage of them.
The matter proceeded to trial and the lower Court heard
Counsel to the parties on their final written addresses and
at the conclusion of which it entered judgment granting the
first prayer of the Appellant on suspension of her salary,
and it ordered the Respondents to pay her salaries and
entitlements from October 2007 until her dismissal in
September 2009, and it refused the other claims sought.
The Appellant was dissatisfied with the judgment and she
caused her Counsel to file a notice of appeal containing
three grounds of appeal and filed on the 13th of January,
2017 against it.
In arguing the appeal before this Court, Counsel to the
Appellant filed a brief of arguments dated the 19th of April,
2017 on the 20th of April , 2017. Counsel to the
Respondents filed a brief of arguments dated the 26th of
October, 2017 on the 27th of October, 2017 and this Court
deemed the brief of arguments as properly filed on the 16th
of January, 2018, and the Respondents raised and argued a
notice of preliminary objection in the brief of arguments.
Counsel to the Appellant filed a
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CA)
reply brief of arguments dated the 12th of December, 2017
and the reply brief of arguments was deemed properly filed
by this Court on the 16th of January, 2018. At the hearing
of the appeal, Counsel to the parties argued the preliminary
objection and relied on and adopted the arguments
contained in their respective briefs of arguments.
The case of the Respondent on the notice of preliminary
objection is that the suit of the Appellant before the lower
Court was for wrongful dismissal and that the dismissal of
the Appellant was found by the lower Court to be proper
and that this appeal is against that finding of the lower
Court and that by the provisions of Section 243(3) of the
Constitution of the Federal Republic of Nigeria (as
amended) the appeal could only have been filed with the
leave of Court and which leave was not obtained by the
Appellant. Counsel stated that the framing of the grounds
of appeal to suggest that matter in the lower Court was a
fundamental rights matter did not change the nature of the
appeal from being against the finding of the lower Court
that the dismissal of the Appellant by the Respondents was
lawful. Counsel stated that where
10
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8) LP
ELR-45
628(
CA)
leave is required for the filing of an appeal and leave is not
obtained, the appeal as filed is incompetent and he referred
to the case of Idris Vs Agumagu (2015) 13 NWLR (Pt
1477) 441. Counsel urged the Court to uphold the notice
of preliminary objection and to strike out the appeal.
In response, Counsel to the Appellant stated that part of
the complaints of the Appellant before the lower Court was
that her dismissal was done without the Respondents
giving her a fair hearing and was thus in breach of her
fundamental rights and that, as can be seen from the
grounds of appeal, it was on this complaint that the
Appellant hinged the present appeal. Counsel stated that by
the provisions of Section 243 (2) of the Constitution of the
Federal Republic of Nigeria 1999 (as amended) appeals
from the decision of the lower Court lie as of right to this
Court on questions of fundamental rights as contained in
Chapter IV of the Constitution as it relates to matters
over which the lower Court has jurisdiction and he referred
to the case of Skye Bank Plc Vs Iwu (2017) 6 SC (Pt 1)
1. Counsel stated that a complaint against a breach of fair
11
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8) LP
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CA)
hearing is a matter of fundamental rights within the
provisions of Chapter IV of the Constitution and that the
complaints of the Appellant in this appeal are on fair
hearing and she thus did not need leave of Court to appeal.
Counsel urged the Court to dismiss the notice of
preliminary objection.
Now, civil appeals from the National Industrial Court are
governed by the provisions of Sections 243 (2) and 243 (3)
of the 1999 Constitution (as amended). The sections read:
“An appeal shall lie from the decision of the National
Industrial Court as of right to the Court of Appeal on
questions of fundamental rights as contained in
Chapter IV of this Constitution as it relates to matters
upon which the National Industrial Court has
jurisdiction.”
“An appeal shall only lie from the decision of the
National Industrial Court to the Court of Appeal as
may be prescribed by an Act of the National
Assembly:
Provided that where an Act or Law prescribes that an
appeal shall lie from the decisions of the National
Industrial Court to the Court of Appeal, such appeal
shall be with the leave of the Court of Appeal.”
The present position of the law on the
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CA)
interpretation of these provisions is that all civil decisions
of the National Industrial Court are appealable to the Court
of Appeal and that while appeals on questions touching on
fundamental rights against the decisions of the Court are as
a matter of right, appeals on all other grounds against the
decision must be with the leave of the Court of Appeal –
Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24,
Cocacola (Nig) Ltd Vs Akinsanya (2017) 17 NWLR (Pt
1593) 74, First Bank of Nigeria Plc Vs Agbakwuru
(2018) LPELR 43639(CA), Babalola Vs Attorney
General, Federation (2018) LPELR 43808(CA).
The notice of appeal is the ‘spinal cord’ of an appeal and it
contains the grievances of an aggrieved party against a
decision taken by an inferior Court or tribunal. It is the
foundation upon which an appeal is based. It is the
originating process which sets the ball rolling for the
proper, valid and lawful commencement of an appeal. It
contains what the subject matter of the appeal is –
Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150)
592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421,
Dingyadi Vs Independent National Electoral
Commission (No 1)
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8) LP
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628(
CA)
(2010) 18 NWLR (Pt 1224) 1.
This present appeal was commenced by the notice of
appeal of the Appellant filed on the 13th of January, 2017.
The Appellant did not seek for or obtain the leave of Court
to file the notice of appeal; she filed the appeal as of right.
Thus, the question is whether the grounds in the notice of
appeal raised issues touching on fundamental rights
against the decision of the lower Court.
It is settled law that in ascertaining the complaint in a
ground of appeal, the ground of appeal as formulated and
the particulars thereto are to be read and construed
together – Odukwe Vs Achebe (2008) 1 NWLR (Pt
1067) 40, Chidi Vs Consolidated Hallmark Insurance
Plc (2018) LPELR 44384(CA). The notice of appeal of the
Appellant contained three grounds of appeal. It is pertinent
to reproduce the grounds of appeal with their particulars.
“Ground One
The learned trial Judge erred in law and misdirected itself
when it held that:
‘In the instant case, I am of the opinion that the Claimant
had ample opportunities to defend herself against the
alleged offence of absenteeism but neglected the choice
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8) LP
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628(
CA)
for reasons best known to her’
Particulars of Error and Misdirection
a. By the provisions of Section 36 (1) of the Constitution of
the Federal Republic of Nigeria 1999 (as amended), where
the civil rights and obligations of a person is called for
determination, such a person is entitled to a fair hearing
within a reasonable time by a Court or other tribunal
established by law and constituted in such manner as to
secure its independence and impartiality.
b. The above constitutional provision requires that ample
time and opportunity must be given to a party to prepare
for his case after he has been adequately informed about
the allegations leveled against him.
c. By Exhibits 1AF 1 and 2, the query letter and the letters
of invitation to the Claimant by the Senior Staff Disciplinary
Committee (SSDC) were never served on the Claimant.
d. By the endorsement on the said Exhibit 1AF 1 and 2, the
letter was only received by the Senior Staff Disciplinary
Committee on 08 Jan 2008 after the said Committee had
concluded its sittings and recommended the dismissal
15
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628(
CA)
of the Appellant on the 7th of December, 2007.
e. The Senior Staff Disciplinary Committee without
receiving any response as to the status of the invitation
sent to the Appellant through Mr. Faramade concluded
without proof that the Appellant refused to honour its
invitation and thereafter recommended her dismissal.
Ground Two
The learned trial Judge erred in law and misdirected itself
when it held that:
‘Further, the addition in her case of the offence of
insubordination can equally be said to have been worsened
because of the same attitude. A general denial in the Court
of not banging the door and walking out of the office of the
superior cannot be substantiated in the open Court alone
having thrown out a better opportunity to defend herself
before the Disciplinary Committee (no matter the
composition and whether if insubordination formed part of
the offences or not).'
Particulars of Error and Misdirection
a. By the provisions of Section 36 (1) of the Constitution of
the Federal Republic of Nigeria 1999 (as amended), where
the civil rights and obligations of a person is called for
16
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8) LP
ELR-45
628(
CA)
determination, such a person is entitled to a fair hearing
within a reasonable time by a Court or other tribunal
established by law and constituted in such manner as to
secure its independence and impartiality.
b. The above constitutional provision requires the strict
observance of the twin pillars of Natural Justice: audi
altarem partem (hear both sides) and nemo judex in causa
sua (no man should be a judge in his own case).
c. From the letter of dismissal (Exhibit JNZ 1), the
Appellant was dismissed for alleged offences of
absenteeism and insubordination against Mr. Zinkat, a
superior officer.
d. The report of the Senior Staff Disciplinary Committee
(Exhibit PM 3a-d) Mr. Zinkat who leveled allegation of
insubordination against the Appellant and signed the
purported letter of dismissal was a member of the Senior
Staff Disciplinary Committee that sat and recommended
the dismissal of the Appellant.
Ground Three
The learned trial Judge erred in law when it held that:
‘I am of the conviction that the Respondents have
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8) LP
ELR-45
628(
CA)
substantially followed the rules and are covered by Section
168 (1) & (2) of the Evidence Act, 2011 as amended.’
Particulars of Error
a. The procedure to be followed in the dismissal of a Public
Servant as laid down by the Public Service Rules, 2008 and
the Federal Research Institutes, Colleges of Agriculture
and Allied Institutions of the Federal Republic of Nigeria
are to ensure that the Public Servant’s Right of fair hearing
as enshrined in Section 36 (1) of the Constitution of the
Federal Republic of Nigeria 1999 (as amended).
b. The employment of the Appellant is governed by the
Public Service Rules, 2008 and the Federal Research
Institutes, Colleges of Agriculture and Allied Institutions of
the Federal Republic of Nigeria.
c. By the Public Service Rules 2008, the power of dismissal
of an officer in the Appellant’s cadre exclusively within the
powers of the Federal Civil Service Commission and such
power cannot be delegated.
d. The Appellant’s letter of dismissal never emanated from
the Federal Civil Service Commission but
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8) LP
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628(
CA)
from the National Veterinary Research Institute, Vom,
Plateau State and signed by Mr. J. N. Zinkat, Head of
Administration, for the Executive Director.
e. The conditions of service for Federal Research Institutes,
Colleges of Agriculture and Allied Institutions of the
Federal Republic of Nigeria which governs the dismissal of
an officer in the Appellant’s cadre, was equally not followed
in the purported dismissal of the Appellant.”
A close scrutiny of the three grounds of appeal shows that
while the first and second grounds of appeal may pass as
having raised questions touching on fundamental rights
against the decision of the lower Court, the third ground of
appeal did not raise any such question. The complaint in
the third ground of appeal was against the finding of the
lower Court that the Respondents complied with the terms
and conditions of the employment of the Appellant in
dismissing her. The finding has nothing to do with any
question of fundamental right – issue of failure to follow
laid down procedure for dismissal of an employee is an
allegation of breach of contract of employment, and not
19
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8) LP
ELR-45
628(
CA)
one of breach of right of fair hearing. The attempt of
Counsel to the Appellant to introduce the concept of fair
hearing into the finding was merely to disguise it as an
issue of fundamental rights. This Court has had cause to
warn litigants and their Counsel against such attempts at
disguising grounds of appeal in appeals against the
decisions of the National Industrial Court. In Lagos
Sheraton Hotel & Towers Vs Hotel and Personal
Services Senior Staff Association (2014) 14 NWLR (Pt
1426) 45, the Court stated thus:
“Litigants who seek to circumvent or evade the
provisions of Section 243 (2) and (3) of the
Constitution by seemingly waving the magic wand of
fair hearing or breach of fundamental right with the
main motive of having access to appeal against a
decision of the National Industrial Court on matters
falling outside the allowed scope should be advised
not to underestimate the sharp sense of perception
and wisdom of the appellate Courts to sift the wheat
from the chaff.”
See also the cases of Governing Board of Rugi Poly,
Ondo State Vs Ola (2016) 16 NWLR (Pt 1537) 1 and
Helios Towers Nigeria Ltd Vs Adighije (2017) LPELR
20
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8) LP
ELR-45
628(
CA)
42707(CA). The complaint contained in the third ground of
appeal is not one that the Appellant could raise as of right
and without having first sought for and obtained the leave
of this Court. The third ground of appeal is thus
incompetent.
Additionally, reading through the records of appeal,
particularly the pleadings of the parties, the written
addresses of Counsel to the parties and the judgment of the
lower Court, the complaint of the Appellant in the third
ground of appeal, that the Respondents breached her
conditions of service by the first Respondent issuing her
letter of dismissal, instead of the Federal Civil Service
Commission, was not raised in the lower Court. The
Appellant pleaded the alleged incidences of non-compliance
with the Public Service Rules, 2008 and the Federal
Research Institutes, Colleges of Agriculture and Allied
Institutions of the Federal Republic of Nigeria, against the
Respondents in paragraph 16 of her amended points of
claim filed in the lower Court, and this complaint was not
one of them. And it is trite law that a party alleging that he
was denied fair hearing must plead the specific acts
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CA)
of such denial – Ejeka Vs The State (2003) 7 NWLR (Pt
819) 408, Olatunbosun Vs Annenih (2008) LPELR
8582(CA).
Further, the issue was not raised by the Counsel to the
Appellant in his final address and neither was it
pronounced upon by the lower Court. The issue that was
raised by Counsel and pronounced upon by the lower Court
was on whether it was Governing Board of the first
Respondent, and not the Management Board, that had the
exclusive power to dismiss the Appellant. Nothing was said
about the Federal Civil Service Commission. Thus, the
complaint in the third ground of appeal is a fresh issue and
it is elementary that fresh issues can only be raised on
appeal with the leave of Court –Oseni Vs Bajulu (2009)
18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9
NWLR (Pt 1198) 1. The Appellant did not obtain leave to
raise the fresh issue. The complaint in the third ground of
appeal is thus again incompetent.
The notice of preliminary objection of the Respondents
succeeds in part. The third ground of appeal is hereby
struck out.
This is not the end of the problems with the grounds of
appeal of the Appellant. As stated above, the first and
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CA)
second grounds of appeal of the Appellant raised questions
touching on fundamental rights against the decision of the
lower Court and as such can be filed as of right under the
provisions of Section 243 (2) of the 1999 Constitution. They
thus do not come within the purview of the preliminary
objection of the Respondents. However, the question must
still be asked whether, in the circumstances of this case,
the complaint in the second ground of appeal is one that
can be appropriately raised in this appeal. This is because
the question of whether the Senior Staff Disciplinary
Committee of the first Respondent, and before which the
Appellant was invited to appear, was properly composed as
to ensure its impartiality and fairness was not one of the
allegations of breach of fair hearing pleaded and led in
evidence by the Appellant. It was an issue that arose during
the cross examination of the second and third respondents’
witnesses – this was when Counsel to the Appellant elicited
responses suggesting that the person who accused the
Appellant of insubordination was a member of the Senior
Staff Disciplinary Committee that deliberated on her
dismissal.
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CA)
Now, it is a firmly established principle of litigation that
parties are bound by their pleadings and any fact that
emerges from matters that are not pleaded go to no issue
and should be discountenanced – Reptico S. A. Geneva Vs
