MAINSTREET BANK REGISTRARS LIMITED v. CHIMEZIE SUNDAY AHAIWE
(2019)LCN/12548(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/AK/211/2017
RATIO
FUNDAMENTAL RIGHT: DENIAL OF FAIR HEARING
“It is in breach of the Appellant’s right of fair hearing as contended by it.
Another aspect of the breach of fair hearing is in the area of continuation of the trial or proceedings, even after the Appellant’s Counsel had at a stage lodged an appeal against a Ruling within the trial. The proceedings proceeded or continued to the adoption of Addresses and Judgment none – the less. An onlooker will clearly see that there was no dispassionate or even-handed Justice to both sides. See … I do see clearly that there was a denial of fair hearing in the matter leading to this appeal. See Nwokocha V. A.G. Imo State (2016) LPELR 40077 (SC).” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JURISDICTION: FUNDAMENTALS OF JURISDICTION
“That jurisdiction is fundamental and must be raised and determined at the earliest opportunity as, if a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
MAINSTREET BANK REGISTRARS LTD
(Substituted with Carnation Registrars, PLC) Appellant(s)
AND
CHIMEZIE SUNDAY AHAIWE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the National Industrial Court of Nigeria, delivered on the 25th May, 2017 in Suit Number NICN/366/2015.
The Respondent as Plaintiff had sued the Appellant herein at the National Industrial Court of Nigeria, Lagos Judicial Division vide a complaint and statement of facts filed on 24th July, 2015, seeking the following reliefs against the Appellant to wit:
a. The sum of N65,662,521.82 (Sixty Five Million, Six Hundred and Sixty Two Thousand, Five Hundred and Twenty One Naira, Eighty Two Kobo) being the unpaid Gratuity, Profit sharing for the year 2013, Performance Inducement Pay (PIP) 2014.
b. Interest on the sum of N65,662,521.82 at 15% from 15th September, 2014 until payment and thereafter until the judgment sum is liquidated with cost of this action” (Please see page 8 of the Records of Appeal)
For the complexity of the facts relevant for the determination of this appeal, I, having studied the record of appeal and in particular the summaries of the facts of this case as made by both Counsel in their Briefs of Argument do find that the compendium as set out by the Appellant is more encompassing; I, therefore, adopt same by reproducing it wholesale, as follows:-
c. The sum of N65,662,521.82 (Sixty Five Million, Six Hundred and Sixty Two Thousand, Five Hundred and Twenty One Naira, Eighty Two Kobo) being the unpaid Gratuity, Profit sharing for the year 2013 Performance Inducement Pay (PIP) 2014.
d. Interest On the sum of N65,662,521.82 at 15% from 15th September, 2014 until payment and thereafter until the judgment sum is liquidated with cost of this action” (Please see page 8 of the Records of Appeal)
The Appellant in response to the Respondent’s Complaint and Statement of facts filed its Statement of Defence and Counter Claim on 22nd September, 2015. The Respondent in reacting to the Appellant’s Statement of Defence filed a Reply to the Statement of Defence and additional Statement on oath on 2nd March, 2016.
In its Counter-claim, the Appellant claimed the following reliefs against the Respondent:
a. A Declaration that the Counter-claimant is entitled to recover the Toyota Prado Jeep with Registration number EKY 889 BE from the Defendant to Counter-claim.
b. AN ORDER compelling the Defendant to the Counter-Claim to return the Toyota Prado Jeep with Registration number EKY 889 BE to the Counter-Claimant same being the property of the Counter-Claimant.
c. AN ORDER for the sum of N3,500.00 per day from 4th September, 2014 till date of judgment being cost of alternative transportation expenses incurred by the Defendant to finance its new Managing Director/Chief Executive Officer.
d. Damages in the sum of N10,000,000.00 for detinue (wrongful detention of the said Toyota Prado Jeep)
ALTERNATIVELY AND ONLY IN THE ALTERNATIVE
a. AN ORDER directing the Claimant to pay the sum of N10, 095,000.00 being the value of the Counter-Claimant’s Jeep.
b. AN ORDER for the sum of N3,500.00 per day from 4th September, 2014 till date of judgment being cost of alternative transportation expenses incurred by the Defendant to finance its new Managing Director/Chief Executive Officer.
c. Interest on N10,095.000.00 at the rate of 15% from 4th September, 2014 until judgment is delivered and thereafter 10% until judgment sum is fully liquidated. (please see pages 70 ? 71 of the Records of Appeal).
d. Interest on N10, 095, 000. 00 at the rate of 15% from 4th September, 2014 until judgment is delivered and thereafter 10% until judgment sum is fully liquidated. (Please see pages 70-71 of the Records of Appeal)
On 29th October, 2015, the Respondent filed his Reply to the Statement of Defence and Defence to Counter-Claim. (Please see pages 136-143 of the Records of Appeal). The Respondent opened his case on 15th January, 2016 and during the trial of the suit, the Respondent testified in person by adopting his two depositions filed on 24th July, 2015 and 29th October, 2016 respectfully. The Respondent further tendered documents which were admitted and marked as Exhibit CS, Exhibit CS1, Exhibit CS2, Exhibit CS3, Exhibit CS, Exhibit CS, Exhibit CS6,Exhibit CS7, Exhibit CS8, Exhibit CS9, Exhibit CS10, Exhibit CS11, and Exhibit CS12. (Please see page 390 of the Records of Appeal)
During the cross examination of the Respondent, the Respondent mentioned the name of the Appellant’s Counsel (Dr. Charles Mekwunye) on an allegation on an issue that did not form part of facts pleaded by any of the parties and on which issues were joined in the pleadings. Dr. Charles Mekwunye is the Appellant’s Counsel in respect of several lawsuits pending in the lower Court and before other Honourable Judges of the National Industrial Court. But Dr. Charles Mekwunye was neither a party nor a counsel in this matter at the lower Court. The Respondent thereafter closed his case. (Please see 395 of the Records of Appeal)
On 25th April, 2016 the Appellant opened his defence and called one witness Mr. Oluwadare Akingbola (The acting Managing Director of the Appellant) who adopted and relied on his written deposition dated 2th September, 2015 and was cross-examined by the Respondent. The Appellant’s witnesses relied and tendered on 8 documents which were admitted and marked as follows: The Director’s Letter dated April 27, 2015 (Exhibit OA), Claimant’s Internal Memo to the Board of Directors (Exhibit OA1), Minutes of Meeting dated 11th December, 2013(Exhibit OA2), The Minutes of Meeting dated 11th December, 2013 (Exhibit OA3) and the Cash invoice for the Toyota Prado Jeep dated 22nd March, 2013, The receipt of purchase of the Prado Jeep dated 22nd March, 2013 and the Lagos State Government Motor Vehicle Administration Agency, Allocation of Registration Number dated 25/3113 (Exhibit OA4). The Appellant’s witness was crossed examined and thereafter closed its case and the case was adjourned to 29th June, 2016 for adoption of final written addresses by the parties. (Please See page 398 of the Records of Appeal).
On the 29th June, 2016 when the matter came up for the adoption of written addresses by the party, the Honorable Trial Judge suo motu raised the issue of subpoenaing the Appellant’s Counsel (Dr. Charles Mekwunye) to appear in Court and ‘clear’ his name in respect of the allegations made against him by the Respondent. The Honorable trial Judge asked Counsel to address him on this. And thereafter invoked the provisions of Section 44 of the National Industrial Court Act, 2006 and issued a Writ of Subpoena ad testificandum dated 14th July, 2016 commanding the Appellant’s Counsel (Dr. Charles Mekwunye) to attend in Court on 29th September, 2016 at 9.00am before Honorable Justice O.O. Oyewumi. (Please see pages 400 – 402 of the Records of Appeal)
Upon the service of the Writ of Subpoena ad testificandum on the Appellant’s Counsel (Dr. Charles Mekwunye) on 7th September, 2016, for him to appear in Court on 29th September, 2016, the Appellant’s Counsel (Dr. Charles Mekwunye) engaged Chief Emeka Ngige (SAN) to file it motion challenging the Writ of Subpoena ad testificandum served on him. Chief Emeka Ngige (SAN) filed an application dated and filed on 27th September, 2016 and brought pursuant to Order 11 Rule 1, Order 19 Rule 18 (1) of the National Industrial Court Rule, 2007, Section 192 of the Evidence Act, 2011, Rule 19 of the Rules of Professional Conduct for Legal Practitioner and under the inherent jurisdiction of the Court for the lower Court to set aside the subpoena. (Please see pages 240 -299 of the Records of Appeal)
In opposition to the Appellant’s Counsel (Dr. Charles Mekwunye) motion, the Respondent filed counter affidavit supported with a written address on 20th October, 2016 and on 25th October, 2016, and the Appellant’s Counsel (Dr. Charles Mekwunye) filed a further Affidavit in reply and Reply on Point of law to the Respondent’s Counter Affidavit. (Please see pages 323 – 333 of the Records of Appeal).
On 25th October, 2016, Chief Emeka Ngige (SAN) moved the Appellant’s Counsel (Dr. Charles Mekwunye) motion and adopted his written address in support and his further Affidavit and reply on point of law filed on 25th October, 2016. The honourable Court delivered his ruling against the Appellant’s Counsel (Dr. Charles Mekwunye) wherein the honourable trial Judge breached the fair hearing right of the Appellant’s Counsel (Dr. Charles Mekwunye) as guaranteed under Section 36 of the 1999 Constitution (as amended) when the honourable trial Judge suo motu discountenanced with and failed to consider the Appellant’s Counsel (Dr. Charles Mekwunye) Further Affidavit and the Reply on Point of law in support of the motion to set aside the subpoena. (Please see pages 334 – 335 of the Records of Appeal).
The Appellant’s Counsel (Dr. Charles Mekwunye) being dissatisfied with the ruling of the lower Court on 25th October, 2016 (Please see page 336-341 of the Records of Appeal) filed an appeal on 1st November, 2016 challenging the ruling of the trial Court delivered on 25th October, 2016 in Appeal No. CA/L/11261/2016 – DR. CHARLES DUMBIRI MEKWUNYE V. CHIMEZIE SUNDAY AHAIWE & ANOR and on 14th November, 2016, he compiled and transmitted the Records of Appeal to the Court of Appeal and the appeal was entered as APPEAL No. CA/L/1261/2016- CHARLES DUMBIRI MEKWUNYE V. CHIMEZIE SUNDAY AHAIWE & ANOR. Upon filing of the Notice of Appeal and transmission of the Records of Appeal to the Court of Appeal, the Appellant’s Counsel (Dr. Charles Mekwunye) also filed a motion for stay of proceeding and execution on 23rd November, 2016 in the Court of Appeal and served same on the Register of the lower Court. And also filed a sworn affidavit of fact on 24th November, 2016 informing the lower Court that he has filed an appeal on 1st November, 2016 and has transmitted the Record of Appeal on 14th November, 2016 and has also filed a motion for stay of proceeding and execution on 23rd November, 2016 in the Court of Appeal (Please see pages 351-359 and 342 -350 of the Records of Appeal).
On 27th February, 2017 the parties adopted their written addresses and on 25th May, 2017 the honourable trial Judge delivered his judgment against the Appellant (Please see pages 366-387 of the Records of Appeal). wherein the Honourable trial Judge awarded the sum of N65,662,521.82 as terminal and retirement benefits to the Respondent contrary to Section 271 of the Companies and Allied Matters Act (CAMA), 2004 in particular and other provisions of CAMA, 2004 in breach of the Appellant’s fair hearing rights as guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
The Appellant being dissatisfied with the judgment of the lower Court have now appealed to this Court on grounds contained in the Appellant’s Notice of Appeal dated 7th August, 2017. (Please see pages 412-423 of the Records of Appeal).
At the hearing, the parties adopted their briefs of Argument. Appellant?s Brief filed on 28/9/17 and adopted raises 9 Issues for determination thus:
a. Whether the Honorable trial Judge has the jurisdiction to award the sum of N65,662,521.82 as terminal and retirement benefits to the Respondent contrary to Section 271 of the Companies and Allied Matters Act (CAMA), 2004 in particular and other provisions of CAMA, 2004 (distilled from ground 3.1)
b. Whether the Honorable trial Judge was right to dismiss the appellant’s counterclaim and refused to grant it the sum of N10,095,000.00 claimed by the appellant despite the fact that the respondent by his pleadings has admitted that the appellant paid the aforesaid sum of N10,095,000.00 for the purchase of Toyota Prado 2012 Model Jeep with registration number EKY 899 BE for its operations and also admitted that he took away the car and that the car is still in his custody. (Distilled from ground 3.2).
c. Whether the Honorable trial Judge was right when he relied on the statement of facts of Mr. Chester Onyemaechi Ukandu (who was not a witness in this matter) in his previous cases in which there are pending appeals before the Court of Appeal) in holding that the staff handbook (exhibit CS7) was issued to the Respondent by the Appellant and awarding damages against the appellant based on the handbook (exhibit CS7). (Distilled from ground 3.3)
d. Whether the Honorable trial Judge was right when he made findings on the Staff Handbook (Exhibit cs7) by awarding the sum of N65,662,521.82 to the Respondent contrary to Section 271 of CAMA, 2004 and the Evidence Act, 2011. (Distilled from ground 3.4).
e. Whether the Honorable trial Judge was right when he failed to allow the Appellant rely on the provisions of Acts of the National Assembly in defence of the case against it in breach of the constitutional fair trial rights of the appellant as guaranteed by Section 36 of the 1999 Constitution (as amended) (Distilled from ground 3.5)
f. Whether the Honorable trial Judge was right when he issued a writ of subpoena ad testificandum for Dr. Charles Mekwunye to testify against the Appellant on allegation of the Respondent elicited through cross-examination on matters not pleaded in violation of the provisions of Section 36 of the 1999 Constitution (as amended), Section 192 (1) of the Evidence act, 2011 and Rule 19 of the Rules of Professional Conduct for Legal Practitioners, 2007, and whilst this issue of subpoena was on appeal to rely on it to determine this suit. (Distilled from ground 3.6).
g. Whether the Honorable trial Judge was right when he made findings against the Appellant’s Counsel (Dr. Charles Mekwunye) who is not a party to this suit and on a matter that is on appeal in Appeal No. CA/L/1261-DR. Charles Dumbiri Mekwunye V. Chimezie Sunday Ahaiwe & Anor. (Distilled from ground 3.7).
h. Whether the Honorable trial Judge was right when he breached the fair trial right of the appellant when he relied on an allegation elicited from the respondent under cross examination which did not form part of facts pleaded by the parties and issues joined on pleadings as the basis to subpoena Dr. Charles Mekwunye (the appellant’s counsel) to appear and “clear his name”. (Distilled from ground 3.8)
i. Whether the Honorable trial Judge was right when he failed to rely on several witness statements on oath filed by the 2nd respondent which was in the Court’s file in evaluating the credibility of the testimony of the respondent that he was forced to make the written statement on oaths. (Distilled from ground 3.9)
ISSUE ONE
Arguing Issue One, the Appellant contended that the Respondent having claimed that he was the acting Managing Director of the Appellant and retired as such in 2014 as shown by Exhibit CS4 ?Notice of Voluntary Retirement dated 16th June, 2014) upon which retirement benefit was claimed, a determination of that fact entailed a recourse to the provisions of CAMA 2004 and the Articles of Association of the Appellant?s company and other relevant provisions of the law.
That to determine the Claimant/Respondent?s entitlement, it had to first be determined whether he was the Managing Director of the Appellant company; contending that this was not a matter within the jurisdiction of the National Industrial Court, but for the Federal High Court. That once a dispute would require the consideration and/or construction of the Articles of Association of the company and/or removal, retirement, powers and rights of Directions of a company, the Federal High Court would be seised of the jurisdiction to entertain the matter. Section 251 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The Learned Counsel argued that the superior Courts have held that any matters that would require even a limited or minute consideration of the Companies and Allied Matters Act or the Memorandum and the Articles of Association of a company comes within the purview of the jurisdiction of the Federal High Court. Chief T. J. Onomigbo Okpoko (2013) LPELR 2016 (CA) per Bage, JCA (as he then was) is relied upon as applying the settled position of the Supreme Court.
The Learned Counsel relies on the persuasive decision of Amadi, J in Kashim Abdul Rashid Olarenwaju v. Mainstreet Bank Microfinance Bank Ltd & 2 Ors NICN/LA/300/2014 of 17th March, 2015 so holding and transferring those claims outside jurisdiction to the Federal High Court, and hearing only the claims within jurisdiction.
The Learned Counsel argued further that by the provisions of Section 271 of CAMA, 2004 entitlements of Directors of Companies, terminal and/or retirement benefits ? ?It shall not be lawful for a company to make to any Director of a company, any payment by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, unless particulars with respect to the proposed payment and the amount have been disclosed to the members of the company and the proposal is approved by the company.
That the Court would have to determine whether the conditions were satisfied before assuming jurisdiction assuming it had jurisdiction which is not conceded. That the Plaintiff had not in the instant proved that the amount claimed as retirement benefit had been approved by the Board of Directors as well as the members in a general meeting (Annual General Meeting) of the Appellant. That the renumeration of a Director is provided in Section 268 (1) of CAMA, 2004 and is regulated by Section 271 CAMA earlier referred to.
That the Claimant’s claim falling squarely within S. 271 of CAMA 2004, and not having been fulfilled the award as made by the lower Court was unlawful and void.
On the above premise, therefore, it is contended that there was no way, the trial Court would so determine without the interpretation of the CAMA relating to the appointment, removal and benefits and all other entitlements thereunder the CAMA of a Managing Director or Director.
The Learned Counsel emphasised that for the non proof of the condition precedent for the entitlement to be paid, the award as made was unlawful. Refers to Aina V. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 119. per Niki Tobi JCA thus: ‘If the law requires the fulfilment of a pre-condition before a particular act or substantive or main act or action is to be done, non fulfilment of the precondition will be prejudicial to the party in default.’
That there was no pleading the fact or complaint stating the approval of the sum awarded; being a condition precedent for the entitlement. That the non proof was inimical to the case of the Respondent. Engineer Samuel Diden Yalaju-Amaye V. Associated Registered Engineering Contractors Ltd & Ors (1990) LPELR (Pt. 145) 422 per Karibi Whyte, JSC was further relied upon.
That the Court lacked jurisdiction and the hearing was in breach of fair hearing. Coca-Cola Nigeria Ltd & Co V. Mrs Titilayo Akinsanya (2013) 18 NWLR (Pt. 1386) 225 CA referred. That the Defendant/Appellant was entitled to take the benefit of the provision of Section 271 CAMA 2004 in defence of the claim.
That the Court should take Judicial Notice of the Constitution, all laws or enactments and any subsidiary legislation made under them having force of law now or previously in force in any part of Nigeria. Section 122 (2) Evidence Act.Ado Ibrahim & Co. Ltd V. Bendel Cement Co. Ltd (2007) LPELR 188 (SC).
That all Courts are enjoined by Section 74 of the Evidence Act Cap 112, LFN 1990 now Section 74, Act, LFN, 2004, Cap E14 to take Judicial Notice of all Legislations. That failure of the lower Court to take Judicial Notice of Section 271 of CAMA has resulted in miscarriage of justice against the Appellant thus.
That this issue be resolved in favour of the Appellant.
ISSUE TWO
On this issue, it was argued that the Appellant’s right to fair hearing was breached in that his counter claim was not considered. That the clearly undenied claims of the Defendant/Appellant in his affidavit were deemed admitted and his ownership of the Toyota Jeep and its value as claimed and the additional costs incurred in funding the daily transportation of the new Managing Director following the act of detinue or conversion of same by the Respondent was wrong. That the counter claim should be granted by this Court pursuant powers under Section 15 of the Court of Appeal Act, 2004 to grant the counter claim.
On Issue three (3), it was argued that the Court is not allowed to go outside the gamut of evidence and/or materials before it and shop for facts to use in deciding a case. Lawal Abdullahi Buba Wassah & Ors V. Tukshahe Kara & Ors (2014) LPELR 242 12 SC. See also Skye Bank Plc V. Chief Moses B. Akinpelu (2010) 9 NWLR (Pt. 1198) 179; Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) (Pt. 1798) 179; Oparaji V. Ohanu (1999) 9 NWLR (Pt. 736) 37 at 63; Sommer & Ors V. Federal Housing Authority (1992) 1 NWLR (Pt. 217) 548 at 557 – 588.
It was contended that in the instant case, the trial Judge expressly and heavily relied on his findings in his previous decisions, which are all pending on appeal at the Court of Appeal, to admit and rely on the disputed staff handbook to award the sum of N65,662,521.82 against the Appellant contrary to the provisions of the Evidence Act on the admissibility of documents and the case of Securities and Exchange Commission V. Abilo Oboboso, Appeal No. CA/A/388/2013 delivered on 21st December, 2016 that ‘the National Industrial Court is bound to enforce and ensure the observance of the provisions of the Evidence Act’.
That the cases relied on were decided per incuriam as therein the National Industrial Court had decided that it was not bound by the Evidence Act and therefore admitted and relied on the documents including the disputed staff handbook, which were inadmissible under the Evidence Act. That the cases were wrongly decided and are in appeal to this Court.
That Ikenye V. Ofunne (1985) 2 NWLR (Pt. 5) 1 that it is not the function of a trial Judge to by the exercise of its ingenuity supply evidence or arrive at a decision not upon the evidence tested by cross examination.
That the cases relied on were not pleaded by any of the parties nor were the facts in the previous cases admitted in evidence. None of the parties in the previous cases was called as a witness in this case. Relying on those cases was a departure from the pleadings of the parties.
On Issue Four. It was argued that the trial Judge was wrong to make findings on the documents (Exhibits CS7 and CS12) tendered and relied upon by the Respondent contrary to Section 271 of CAMA 2004 and the provisions of the Evidence Act 2011 without making findings of facts and law and pronouncing on the various objections raised by the Appellant as to their relevance and/or admissibility in breach of the Appellant?s right of fair hearing as guaranteed by Section 36 of the 1999 Constitution (as amended).
The purported handbook (Exhibit CS7) was not incorporated into the contract of employment of the Respondent to regulate the relationship between the Appellant and the Respondent.
It was also contended that the Respondent having admitted during his cross-examination on 18th, January, 2016, that the purported handbook was not approved by the Respondent, the lower Court cannot rely on same to award the sum of N65,662,521.21 against the Appellant. That there was no issue to the Respondent, the said staff handbook; contended that the onus and burden was on he who asserts that judgment be given in his favour upon stated facts to prove that those facts infact exists. Bulet International Nigeria Ltd & Anor V. Dr. Mrs Omonike Olaniyi & Anor (2017) LPELR 42, Section 131 (1) Evidence Act also relied on. That that was in breach of the Evidence Act and Section 36 of the Constitution.
On Issue No. 5, it was argued that the refusal of the Court to rely on the defence provided by Section 271 of CAMA, 2004 when it awarded sums of money as disengagement/terminal benefit was in breach of the Appellant?s right to fair hearing.
The case of Timipre Sylva V. INEC & Ors (2015) LPELR 2447 (SC) where the Supreme Court stated: ‘A person cannot be said to have been given fair hearing if he is not allowed to rely on the provisions of an Act of parliament as an answer to the case against him. It is not necessary that for the Act to confer a right of Defence on anyone. The defence is encompassed in the provision relating to fair hearing in Section 36 (1) of the Constitution’.
That Exhibit CS7 (the purported staff handbook) was no longer a credible and conclusive evidence to be relied upon as it was not approved and the said Exhibit CS7 in draft had been withdrawn by the Appellant?s Board of Directors on the 11th December, 2013. That the Respondent had also admitted in cross examination that Exhibit CS7 (Staff Handbook) was not approved by the Board of Directors of the Appellant and cannot be operational until approved (page 392 of the Record of Appeal relied upon in support of this fact). That the trial Court was, therefore bound by the Evidence Act and cannot on its own discretion admit and evaluate documentary evidence.
Relies on Securities and Exchange Commission V. Abilo Uboboso Appeal No. CA/A/388/2013 of where this Court held that the National Industrial Court is duty bound to enforce and ensure the observance of the provisions of the Evidence Act.
That failure to observe the laws of evidence in the determination of the civil rights and obligations of the Appellant herein in the admission of Evidence was in breach of Section 36 (1) of the Constitution, 1999 and that the decision is null and void. That as in this case, where a decision is based upon inadmissible evidence, the decision is perverse, Olayinka V. State (2007) 9 NWLR (Pt. 1040) page 561 at 577 par H. And Gbafe V. Gbafe (1996) LPELR 1316 also in (1996) 6 NWLR (Pt. 455) 417 where it was held: ‘A finding of fact that is not supported by evidnce is perverse and can be properly reversed by an appellate Court’ per Adio, JSC at P. 17, paras C ? D).
On Issue six, it was argued that the purpose of a subpoena ad testificandum is to order a witness to appear in Court and to testify on behalf of any of the parties to the proceedings. That the purpose of a subpoena ad testificandum is not to enable a witness ?to appear and clear his name of grave allegations” made against him by a witness under cross-examination on an issue that was not pleaded by the parties.
That the trial Court was not exercising criminal jurisdiction and that there are ways of commencing criminal proceedings and certainly not by a subpoena. That the trial Judge lacked the jurisdiction under Section 44 of the National Industrial Court Act, 2006 and Order 19 Rule 11 of the National Industrial Court Rules, 2007 upon which he ordered the subpoena for the reasons it stated.
That a person subpoenaed is a witness, who is to go into the witness box and to testify on oath or Affirmation and is liable to be cross-examined. Mr. J. O. Famakinwa V. University of Ibadan & Anor (1992) 7 NWLR (Pt. 225) 1992 refers.
The Learned Counsel contended further, that even if the subpoena was properly issued, for the purpose, it cannot apply to the Appellant. The Counsel relies on Section 192 (1) Evidence Act and Rule 19 of the Rules of Professional Conduct for Legal Practitioners, 2007.
That the Appellant’s Counsel had represented it in several cases (6 Nos.) listed in the Appellant’s Brief of Argument on page 27 thereof which have been concluded and which are on appeal. That the Counsel cannot be compelled to disclose any advice he may have given to his client in the course and purpose of employment; Alfred Crumpton Amusement Machines Ltd V. Customs and Excise Commission (No. 2) (1972) All ER 353; Abubakar V. Chuks (2007) 18, per Onnoghen JSC; per Horn V. Robert Richard (1963) NLR 67 at 68 on 2 ALL NLR 40. Holden, CJ (North) relied upon.
That the issue of the subpoena ad testificandum will lead to the Appellant?s Counsel, Dr. Charles Mekwunye to be compelled to disclose priviledged communication with his client to the public in all the matters pending in the Court of Appeal and other matters still pending at the lower Court in contravention of Section 192 (1) of the Evidence Act, 2011 and Rule 19 of the Rules of Professional Conduct for Legal Practitioners, 2007.
Canada (Attorney-General) V. Federation of Law Societies of Canada (2015) SCC (2015) 1 SCR 401 and ?A guide to Good Professional Conduct for Solicitors, 3rd Edition, Protecting the Priviledged Communication-Oral or in Writing of a Solicitor/Legal Practitioner with his Client prior to and in the course of proceedings?.
That the Issue Six be resolved in favour of the Appellant as the protection of the Rule of law is founded upon the legal profession which should not be destroyed.
ISSUE SEVEN
On this Issue, it was observed that the Appellant’s learned Counsel (Dr. Charles Mekwunye) having filed an appeal against the Ruling delivered on 25th October 2016 in Appeal No. CA/L/1261/2016 Dr. Charles Dumbiri Mekwunye V. Chimezie Sunday Ahaiwe & Anor and Record of Appeal compiled and transmitted and Appeal entered as Appeal No. CA/L/1261/2016 – Charles Dumbiri Mekwunye V. Chimezie Sunday Ahaiwe & Anor and Motion for Stay of Proceedings and Execution filed on 23rd November, 2016 in the Court of Appeal and served on the Registrar of the lower Court and Affidavit of fact having been filed intimating the lower Court of an Appeal filed. That upon the filing of the Notice of Appeal against the Ruling of 25th October, 2016, the lower Court had lost the jurisdiction to make any findings or Ruling on issues on appeal. That the Court of Appeal will share no powers with the trial Court once a matter has been appealed. VAB Petroleum Inc. V. Momah (2013) LEPLR 1977 (SC).
That the lower Court had a duty to preserve the res so as to ensure that the appeal is not rendered nugatory. United Spinners Nigeria Ltd V. Chartered Bank Limited (2001) LPELR (2001) all NLR 598 3410 SC Wali, JSC relying on Kigo V. Holman (1980) 5 – 7 SC 60 A.
That on the above, the lower Court had breached its duty to preserve the subject of the appeal and usurped the jurisdiction of the Court of Appeal by making a finding on a matter that is pending on appeal in breach of the Appellant?’ right to fair hearing. That this had led to a perverse decision against the Appellant when the Court held that:
‘It is therefore left with no option but to accept the version of the Respondent that it was the discussion with Dr. Mekwunye that led to his sudden retirement’.
The Learned Counsel relying on the Supreme Court decisions in Mohammed V. Olawunmi & Ors (1993) LPELR 1898 (SC); Isaac Madubuagu V. Dr. Mudiaga Odje & Ors (1985) 10 SC 267 at 268 ? 269 and Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) page 310 at 323, contended that the lower Court was bound by the decisions of the Courts higher in hierarchy to it and therefore its disregard of its decisions or processes filed in the higher Courts was condemnable and impertinent.
ON ISSUE EIGHT
It is submitted here that the allegation elicited against the Appellant?s Counsel (Dr. Charles Mekwunye) under cross-examination which did not form part of facts pleaded which issues were joined on pleadings. That it goes to no issue and cannot form the basis upon which to issue the writ of subpoena ad testificandum on the Appellant’s Counsel (Dr. Charles Mekwunye) to ‘appear and clear his name’. Evidence on facts not pleaded should be ignored as they go to no issue.
George V. Dominion Flour Mills Ltd (1963) 1 All NLR 71; Emegokwue V. Okadigbo (1973) 4 SC 113; Okagbue V. Romaine (1982) 5 SC 133; Adekeye & ors V. Adesina & Ors (2010) LPELR 103 (SC); Atanda V. Ajani (1989) 3 NWLR (Pt. 111) P. 511 at 531 par B.
Having reproduced the evidence in cross-examination of the 1st Respondent relating to the Appellant?s Counsel, it was submitted that, that piece of evidence goes to no issue and should be expunged, since it was not pleaded and wrongly admitted. That fair hearing lies in the procedure followed in the determination of the case; It was the procedure followed and not on whether the decision is right or wrong. Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, decision will be set aside in favour of fair hearing. Orugbo V. UNA (2002) 9 ? 10 SC 61 per Tobi, JSC, 16 ? 17 pars A – D.
Failure to expunge the evidence of the Respondent elicited in cross-examination on 18-1-16 on unpleaded issue constitutes a denial of its constitutional right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
ON ISSUE NINE
Whether the Honorable trial Judge has the jurisdiction to award the sum of N65,662,521.82 as terminal and retirement benefits to the Respondent contrary to Section 271 of the Companies and Allied Matters Act (CAMA), 2004 in particular and other provisions of CAMA, 2004.
It was submitted that the Respondent had on different days over several months sworn to several witness statements on oath and the Court was entitled to look at the contents of its file or records in consideration of the credibility of the witness in relation to the statements on oath sworn in those six (6) cases. That where contradictory evidence by way of oral testimony or by way of written statements are made, the Courts should treat same as unreliable and same should go to no issue. MSC Ezemba V. S. O. Ibeneme & Anor (2004) 14 NWLR (Pt. 894) 617.
Referring to the testimony of the Respondent at his cross-examination on 18th January, 2016 wherein he said he was forced to testify against the former employees of the Appellant by the Appellant?s Counsel (Dr. Charles Mekaunye) contrary to the Respondent?s several witness statements on oath in the record of the lower Court.
Odunlami V. The Nigeriam Navy (2013) LPELR ? 2070 (SC) wherein the Supreme Court, per Rhodes Vivour, JSC at page 30 – 31 paras F – C stated inter alia:
‘If a witness gives evidence on oath which contradicts his previous statement in writing his evidence should be treated as unreliable.’
The Courts should look at its record and refer to it in the consideration of any matter before it. West African Provincial Insurance Co. Ltd (1987) 2 NWLR (Pt. 56) 299; Osafile V. Odi Co. Ltd (No. 1) (1990) 3 NWLR (Pt. 137) 130; Agbaisi V. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt. 594) 170; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187 all referred to in Agbareh V. Mimra (2008) 2 NWLR (Pt. 1071) 378 at 410 – 411 paras H – BA.
Finally it was submitted on the authorities supra and Usman V. Baba (2013) LPELR 22136 CA that the legal effect of the conflicting evidence with previous statements or evidence of the same witness has rendered the evidence unreliable and must be rejected as the witness? credibility has been affected.
It is therefore contended that the credibility of the Respondent has been destroyed and his evidence given under cross examination which did not form part of pleaded facts upon which issues were joined on pleadings and Judgment based thereon contrary to the Evidence Act, 2011 and in breach of the fair hearing right of the Appellant cannot stand. We have been urged to uphold the appeal and to set aside the Judgment of the lower Court of 25th May, 2017 awarding the Respondent the sum of N65,662,521.82 and to allow the counter claim pursuant to Section 15 of the Court of Appeal Act.
On his part, the Respondent framed six (6) Issues for determination thus:-
1. Whether the Honorable Court in the exercise of its statutory power can judicially adjudicate over employee/employer matter on payment of severance benefit owed by the Appellant to the Respondent?
2. Whether the Honourable trial Court is not entitled to dismiss Appellant claim on Detinue when title in the Prado Jeep was jointly financed by the Appellant and Respondent?
3. Whether a Court of law can take judicial notice of its proceedings and judgment especially when the Appellant is a party on those issues which the Court is taking notice of judicially?
4. Whether any constitutional breach had occurred at the trial Court that warrant miscarriage of justice?
5. Whether a counsel is immune from Court process competent jurisdiction, when there exist allegation of crime in-action of his duty?
6. Whether Appellant Counsel who had the privilege to clear the allegation of crime under cross-examination can validly or reasonably complain of a breach of fair hearing when he elect to ignore the Court to clear the allegation made raised?
Arguing its Issue No. 1 the Respondent contended that the National Industrial Court has exclusive jurisdiction to adjudicate on Employer/Employee matter on payment of severance benefit owed the Respondent by the Appellant. That the claim was for the recovery of N65,662,521.82 being unpaid Gratuity, profit sharing for the year 2013 and the Performance Inducement (PIP) 2014 and interest at 15% with cost.
The Learned Counsel contended that it is the claim that determines the jurisdiction of a Court and not the Defence as put up. That it is the entitlement that was the claim and not a question of the breach in the operations of the company as argued by the Appellant. That it is the cause of action that determines the jurisdiction of the Court; and that the Respondent retired as Acting Director and that this was not in dispute at the trial. That reliance on Section 271 of CAMA was therefore misplaced as the said Section relates to a Director and not to an Acting Director.
Section 254(C) of the 1999 Constitution was reproduced and contended that only the National Industrial Court can adjudicate exclusively thereon, the claim excluding even the Federal High Court.
It is argued that it is the Originating Process such as the Writ of Summons, Statement of Claim and the Supporting Affidavit that are considered in determining the jurisdiction of the Court to entertain a matter. Adeyemi V. Opeyori (1976) 9 – 10 SC 31; AG Anambra State V. AG Federation (1993) 6 NWLR (Pt. 302) 692; AG Lagos State V. AG Federation (2014) All FWLR (Pt. 740) 1296 at 1375 per Kekere-Ekun, JSC; that whenever a Court is faced with the interpretation of a constitutional provision, the Constitution must be read as a whole in determining the object of the particular provision. This places a duty on the Court to interprete related Sections of the Constitution together. Rabiu V. Kano State (1980) 8 – 11 SC 130, 85; Associated Discount House Ltd V. Amalgamated Trustees Limited (No. 2) (2007) FWLR 1781. That the object of the constitution is that the National Industrial Court should exercise the jurisdiction to adjudicate. That jurisdiction is fundamental and must be raised and determined at the earliest opportunity as, if a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508.
That only the National Industrial Court has the jurisdiction to adjudicate over the Respondent?s claim to recover the unpaid gratuity and severance benefit – Section 253C of the Constitution referred; and that the Federal High Court lacked the jurisdiction to so do. That Section 271 CAMA does not apply to the Appellant who resigned as Acting Managing Director.
That the appeal on want of jurisdiction was misguided, wrongful and liable to fail and should be dismissed with costs.
ISSUE TWO
Whether the Honourable trial Court is entitled to dismiss the claim as Appellant?s title in the subject matter was jointly financed by the Appellant and the Respondent.
The Appellant had made Declaratory Claims and an Order for the recovery Toyota Prado Jeep from the Respondent, the payment of N3.500 per day from 4th September, 2014 till date of judgment as well as payment of N10 Million damages for loss of use.
It is contended that though the Respondent filed a Defence to the claim, the Appellant did not file any Reply in Defence, thereby deemed to have admitted the facts. Page 198 ? 203 of the Record and the Section 75 of the Evidence Act and Saliu V. Egeibon (1994) 6 NWLR (Pt. 348) 23 referred to. That it is on record that the Board of the Appellant approved a Toyota Camry, 2013 as the status car of the Respondent and not a Toyota Prado Jeep which was jointly financed and bought by the Appellant and Respondent. The Counsel pointed out how on 22nd March the Appellant and Respondent jointly paid to Elim Nigeria Limited the sum of N10,095,000.00 for one unit of Toyota Prado Jeep, 2012 Model and Elim Motor official Receipt and cash invoice dated 22-03-13 found on the pages 145 – 146 of the Record referred.
It was further pointed out that a report of the purchase of the status car was made to the Chairman of the Board on April 8th 2013, and of the equity contribution of N405,000 to purchase the Toyota Prado Jeep. See (Page 148) of the Record. That the proof of title among other means is by production of receipt. See Uwah V. Uwah (2014) All FLR (Pt. 760) 219. That the receipt in respect of the Toyota Prado Jeep Registration No. EKY 899 BE has Elim Motors Nigeria Official Receipt dated 22/03/13 Mainstreet Bank Registrar Ltd/CS Ahaiwe as purchaser of the Toyota Prado jeep, thus showing the owner as Respondent and Appellant jointly. That the claim in detinue was rightly dismissed and should fail on appeal now.
That the Plaintiff must only succeed on the strength of his case and not on the weakness (if any) of the Defendant; Section 133 ? 135 of the Evidence Act, UNIBEN V. Kraus Thompson Organisation Ltd (2007) All FWLR (Pt. 362) 1910. That there was no evidence at the trial Court to sustain the claim and it was rightly dismissed.
That facts not denied is deemed admitted and joint ownership of the Toyota Prado Jeep not denied, is deemed admitted. See Bankole V. Adeyeye (2014) All FWLR (Pt. 721) 11570.
Finally, on the question of detinue, Counsel referred to A.I.L.L V. Afri Bank Nig. Plc (2014) All FWLR (Pt. 716) 498 wherein the Supreme Court stated:-
‘In an action for detinue, the gist of the action is the Plaintiff’s chattel which he has the immediate right to posses after the Plaintiff has demanded its return?. Kosile V. Folarin (1989) 3 NWLR (Pt. 107) 1; Shonekan V. Smith (1964) 1 All NLR 168; Adegbaiye V. Loyinmi (1986) 5 NWLR (Pt. 43) 655.
That the joint title to the Toyota Prado Jeep, makes the Appellant?s sole claim to possession a gold digging exercise and should be dismissed.
ON ISSUE 3,
That the National Industrial Court can take Judicial Notice of its judgments and proceedings especially if they have not been set aside and the facts are consistent with the matter under consideration.
The Learned Counsel referred to Sections 73 (3) and 74 of the Evidence Act. Hon. Justice Raliat Elelu Habeeb Chief Judge of Kwara State V. A.G. Federation & 2 Ors (2012) All FWLR (Pt. 629) 1011, 1041 where the Supreme Court referred to its other judgment in Mobil Producing (Nig) Unlimited V. Monokpo; Katto V. CBN; Ladoja V. INEC (2007) All FWLR (Pt. 378) 1116.
That Judicial Notice under Section 73 (3) and 74 Evidence Act on Judicial Notice of Laws, enactment and subsidiary legislations, Global Soap & Detergent Industries Ltd V. NAFDAC (2011) All FWLR (Pt. 599) 1025 exists and so also Judicial Notice of facts which in the exercise of its powers, it may refuse to take Notice unless such person produces the necessary material or if he has informed himself properly. Osafile V. Odi (1990) 3 FWLR (Pt. 137).
That Judicial Notice refers to facts which a Judge is called upon to receive and acts upon either from his own information or from sources to which it is proper for him to refer; it also refers to facts which the Courts mandatorily takes as proved by operation of law, the vehicle or agency of conveyance, notwithstanding. That once a fact is Judicially Noticed, it is taken as proved, thereby dispensing with further proof of the very fact. SPDC (Nig) Plc V. Dino (2007) All FWLR (Pt. 362) 1942 at 1957.
That the trial Court rightly took Judicial Notice of the cases it referred to, from information available to it. That the Courts under the constitution have enormous power, wide and inherent was uncalled for, as he was not a party in the proceedings NICN/LA/366/2015, and the Judgment did not relate to him.
That the Appellant was merely using the Judicial Process improperly and wrongfully to occasion injustice, by complaining about a breach of his constitutional right. FRN V. Dairo (2015) All FWLR (Pt. 776) 486.
That having consented to the issuance of the subpoena on Dr. Mekwunye to appear to clear serious allegations made against him during the trial he was estopped and cannot use that procedure as a sword to manipulate judicial process.
That the appeal was not properly constituted as Dr. Mekwunye was not a party and the Judgment does not relate to him. Madukolu V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 and Alh Barakat Alafia V. Gbode Ventures (Nig) Ltd (2016) All FWLR (Pt. 838) 838.
It was also argued that the Appellant was making a different case from what he stated at the trial and that attempt to rely on Affidavit evidence not adopted by the other side and which was not pleadings, was an attempt to over rech the Respondent.
That the Counsel, Dr. Mekwunye, was in breach of the Rules of Professional Conduct for legal practitioners in appearing for the Appellant.
ON ISSUE 5
It was argued that Dr. Mekwunye as Counsel for the Appellant had misconducted himself professionally such that no Court will allow him or anybody to under whatever guise overreach, mislead or apply the judicial process to defraud other persons or cause miscarriage of justice. Longe V. First Bank of Nigeria, (2010) All FWLR (Pt. 525) @ 258 @ 288 and to state that the conduct of the Appellant and Dr Charles Mekwunye was to defraud ex-staff and deprive them the benefit of their lawful benefit.
The Counsel asked whether the Court should close its eyes to serious allegations of crime made against Dr. Charles Mekwunye who, it is alleged, misconducted himself in the discharge of his duties. Section 15(3) (e), (f) and (g) of the Rules of Professional Conduct for Legal Practitioners, 2007 and Section 44 of the National Industrial Court Act, on the powers of the Court to issue a Summons for bringing up any person under civil process to be examined as a witness in any cause or matter pending or to be inquired into the Court were referred to.
It was contended that there was no immunity for a Counsel who had done despicable acts in violation of professional ethics and the law. The cases of Joe Best Estate Devt. & Property Limited V. Nzegwu (2015) All FWLR (Pt. 797) 753, Braithwaite V. Dalhatu (2016) All FWLR (Pt. 846) 202; Williams V. Akintunde (1995) 3 NWLR (Pt. 381) 101, 115 and that the Appeal was a vice Ogboru & Anor V. Uduagban and Ors (2014) All FWLR (Pt. 719) 1041.
That the appeal was frivolous, as the supoena was not issued to compel disclosure of confidential information between Dr. Mekwunye and the Appellant, his client, but to clarify allegations made against him in respect of affidavit sworn against the ex-staff of the Appellant.
On this issue, the Respondent concluded that the instant appeal was a clear case of abuse of judicial process intended to irritate and maim the integrity of the Court; Relies on Harriman V. Harriman (1989) 5 NWLR (Pt. 119) 6; Papersack (Nig.) Ltd. V. Odutola (2011) 10 NWLR (Pt. 1255) 244; That this should be seen from the wholistic reading of the legislations. Referred to Sundry decisions on the need to read a statutory provision as a whole in interpreting same, with a view to understanding and giving effect to the legislative intent.
A.D.H Ltd V. Amalgamated Trustee Ltd. (2007) All FWLR (Pt. 392) 1781; Tukur V. Governor of Gongola State (1989) 4 NWLR (Pt. 117); Lawal V. G.B. Ollivant (1972) 2 SC 124; Toriola V. Williams (1982) 7 SC 27; Somaonu V. Oladokun (1996) 8 NWLR (Pt. 467) 387; Nnoye V. Anyichie (2005) All FWLR (Pt. 23) 604) (2005) 1 SC (Pt. 11) 96; Ansaldo Nig. Ltd V. National Provident Fund Management Board (1991) 2 NWLR (Pt. 174) 392, (1991) 3 SCNJ 22; Idehen V. Idehen (1991) 6 NWLR (Pt. 198) 383.
ON ISSUE SIX
The Learned Counsel argued that the Appellant?s Counsel had the opportunity to clear the allegations under cross-examination but neglected to do so. That the affidavit evidence does not form an issue at the trial or part of trial and that reasonable opportunity had been offered the Appellant?s Counsel and he cannot complain of any breach of the right of fair hearing.
Latisco Pet (Nig) Ltd V. UBA (Plc) (2009) 3 NWLR (Pt. 1127) 22, Kraus Thompson Org. Ltd V. University of Calabar (2004) All FWLR (Pt 209) 1148; Adegoke V. Adibi (1992) 5 NWLR (Pt. 242) 410; Atanda V. Lakanmi (1974) 3 SC 109; Odiase V. Agho (1972) SC 71 1972 1 All NLR (Pt. 1) 170; Oje V. Babalola (1991) 4 NWLR (Pt. 185) 267.
On the premise of the above, it was submitted that the appeal on breach of fundamental right must fail and should be dismissed with costs.
On the whole, we have been urged to dismiss the appeal on unpaid severance benefit due to the Respondent and to uphold the entire Judgment of the trial Court ? on the summation of the reasons thus:
1. That it is only the National Industrial Court that has jurisdiction exclusively in labour, employment, employer, employee related or incidental matters including payment or non payment of benefit or any other entitlement of any employee.
2. Judgment of a competent Court is a case law and every Court is judicially empowered to take judicial Notice of its records and judgments that have not been set aside.
3. Parties and the Courts are bound by pleadings and no one would be allowed to use the judicial process to occasion a miscarriage of justice.
4. Where every party in a proceedings were given the opportunity to present their case without hindrance and tender documentary evidence before Judgment, none can complain of denial of fair hearing.
5. A Court is judicially empowered to issue warrant or process including subpoena on any person to appear before it to clear allegation made at a trial against him.
6. A party that failed, neglected or ignored Court process or invitation is estopped in law and cannot be heard to complain of breach of his Fundamental Right.
7. No Counsel has immunity from appearing in Court when allegation of criminal fraudulent misconduct is made against him in relation to the discharge of his professional conduct which have tendency to occasion miscarriage of justice.
REPLY ON POINTS OF LAW
Replying on points of law, the Appellant, by its Appellant’s Reply Brief of Argument filed on 26/4/18 and adopted at the hearing on 23/10/18 submitted that the Respondent failed to address and to contradict the following issues raised by the Appellant in its Brief of Argument, to wit:-
a. That the purpose of a Subpoena ad testificandum is to order a witness to appear in Court and give testimony on behalf of any of the parties to the proceedings. The purpose of Writ of subpoena ad testificandum is NOT to enable a witness to “appear and clear his name” of grave allegations made against him by witness under cross examination on an issue that was NOT pleaded by the parties.
b. That the testimony of the Respondent elicited during cross examination and all the allegations made against Dr. Charles Mekwunye, the Appellant’s Counsel were not pleaded and therefore go to no issue.
c. That the Court cannot convert its civil jurisdiction to criminal jurisdiction to try the Appellant’s Counsel for criminal offences via subpoena, with the honourable Court being the prosecutor, Jury and judge at the same time.
d. That the Honourable trial Judge breached the appellant’s right to fair hearing when he failed to expunge the evidence of the Respondent elicited under cross examination on 18/1/2016 on an issue that was not pleaded but relied on it to place liability on the Appellant.
e. That the Appellant paid the sum of N10,095,000.00 for the purchase of Toyota Prado 2012 Model Jeep with registration number EKY 899 BE for its official operations, which was admitted by the Respondent in its pleadings;
f. That the Car was registered in the name of the Appellant and the Appellant did not transfer ownership of the Toyota Prado 2012 Model Jeep with registration number EKY 899 BE to the Respondent;
g. That the Respondent breached the Car Ownership Scheme that all cars are to amortize after 4 (four) years of its purchase with the right of purchase at net book Value or 10% of cost whichever is lower, assuming but not conceding that the Staff handbook was applicable.
h. That the Car ownership Scheme will not apply to the Toyota Prado 2012 Model Jeep with registration number EKY 899 BE as the car was just 18 months as at the time the Respondent resigned his appointment with the Appellant and took away and detained the car;
i. That the Appellant did not approve the Staff handbook (Exhibit CS7) or delegated its powers to anyone to approve, print/reprint and issue same to any of its staff.
j. That MR. CHESTER ONYEMAECHI UKANDU (the former Managing Director) was not called as a witness in this suit to substantiate the fact that the staff hand book was approved by the management of the Appellant.
k. That the Respondent had sworn several witness statements on oath in the Court affirming that the Board of Directors of the Appellant did not approve any staff handbook:
l. That the Respondent failed to discharge the burden of proof on him that the staff handbook form part of the contract of employment with the Appellant and inclusive of Issues iv, v and ix.
This failure, Counsel submitted, amounted to a deemed concession to the points made by the Counsel for the Appellant. Olley V. Tunji (2013) NWLR (Pt. 1362) pp. 289 (SC) relied upon.
That the Respondent?s arguments were academic and a misconception that had not addressed the issues raised in the appeal.
On Jurisdiction, it is contended that the jurisdiction of a Court is not determined solely on the Claimant?s claim as an exception exists to the effect that jurisdiction may be raised at any stage, whether at trial or appeal stage. The Court may then consider what process has been filed. See Akingbola V. FRN (2015) 10 NWLR (Pt. 1468) 579 Pg. 602 par. 10, p 603 par. E.
That the entirety of the case including the Defence must be looked at in determining whether a Court has jurisdiction. That it is not limited to a consideration of the claim alone. See James V. INEC (2015) 12 NWLR (Pt. 1474) 538.
That an overview of the whole case must be looked at, including the Defence. Diamond Ltd V. Ugochukwu (2016) 9 NWLR (Pt. 1517( 197 at 206 ? 207 per Onnonghen, JSC.
That Section 271 of Companies and Allied Matters Act 2004 (CAMA, 2004) was raised at the trial Court as not having been complied with; that the Court could have, even suo motu raised Section 271 of CAMA as relating to its jurisdiction.
The Learned Counsel argued that the Court resolved without jurisdiction whether the Respondent retired or resigned his employment as Acting Managing Director of Appellant.
Whether the Respondent can claim or is entitled to his benefits from the Appellant as Acting Managing Director?
Whether the Respondent has met the conditions precedent to payment of retirement benefits of a director as required by Section 271 of the CAMA, 2004.
The Learned Counsel contended that all of the above Issues are founded and can be decided under the provisions of the memorandum and Articles of Association of the Appellant and the provisions of the Companies and Allied Matters Act, Cap C20 LFN, 2004 (CAMA 2004).
That these are matters exclusively within the jurisdiction of the Federal High Court. See Section 252 (e) of the Constitution of the Federal Republic of Nigeria, 1999. Also Section 258 and 271 of CAMA 2004.
That the purport of the prohibition of any compensation to any Director of a company is to protect the members of the company from the greed of the managers. The shareholders, would have to approve first.
The Learned Counsel submitted that even if the National Industrial Court (the Court below) had jurisdiction, the Respondent had to prove that he had met the condition for the payment of the terminal benefits to him as provided under Section 271 CAMA. That the argument that the Respondent was only an Acting Managing Director was of no moment as a Director was a Director. Bernard Ejiofor Longe V. First Bank of Nigeria Plc, (2010) LPELR, 1793 SC.
That it was not within the purview of the lower Court to consider or interpret these laws as it had no jurisdiction under S. 254 (1) of the 1999 Constitution. That the use of the word ‘Notwithstanding’ in Section 254C had not derogated from Section 251 (1) of the Constitution which also has, ‘Notwithstanding’.
That the introduction of Section 254C into the Constitution has not taken away the jurisdiction of the Federal High Court to entertain matters bordering on the operations and management of companies under CAMA, 2004, neither has it taken away the jurisdiction of the State High Court under Section 272 of the Amended CFRN, 1999.
The Learned Counsel referred to the unreported Ruling in Kashim Olarewaju V. Mainstreet Microfinance Bank Limited & Anor. Suit No. NIC/LA/300/14 (date and certified copy not provided as indicated) and contended, that in a matter of claim of terminal benefits as a Director, the NIC had no jurisdiction; rather, that, it is the Federal High Court that has jurisdiction.
That the Respondent was all through held out as Managing Director and more so there was no difference between an Acting Managing Director and a Managing Director. That Section 271 CAMA, cited to the Court, but ignored was applicable.
The Learned Counsel submitted that the failure to file a Reply to the Respondent?s Statement of Defence to the Counter Claim was of no moment as it was not necessary if intended to merely deny the averments contained in the statement of Defence. Aziz Akeredolu & Ors V. Lasisi Akinremi & Ors (1989) 3 NWLR (Pt. 108) 164 at 172. Dr. Rasaki Oshodi & Ors V. Yisa Useni Eyifunmi & Anor (2000) 13 WLR 298 at 326; Kalu V. Agu & Ors (2014) LPELR 22849 CA referred. That the Toyota Prado 2012 Model Jeep, with Registration Number EKY 899 BE for the Respondent?s operations was purchased with N10,095.000. co-finance by the Appellant’s name which fact was admitted by the Respondent?s pleadings. Registered in Appellant?s name and ownership of same had not been transferred to the Respondent. That where there is a Registration of a motor vehicle in the Register of motor vehicles in the name of a person, as in the present case, it is prima facie evidence of ownership by that person. Lasisi Ogunmuyiwa V. Solanke (1956) 1 FSC 53; (1956) SCNLR; Adebunmi V. Abdullahi (1997) LPELR 2210 (SC).
That the parties did not jointly purchase the prado jeep as the Respondent had even admitted in paragraph 13 of his Reply to Statement of Defence (see pages 136 – 141 of the Record of Appeal) that the Appellant paid the sum of N10,095.000 to purchase the prado jeep. That the Receipt for the purchase from Elim Motors Nigeria Limited shows N10,095,000 (pages 132 – 133 of the Record of Appeal) shows the payment of N10,095,000 for the purchase of the jeep.
That admitted facts need no further proof. Relies on Alhassan & Anor V. Ishaku & Ors (2016) LPELR 40083 (SC); Minister, FMR V. ERH (Nig) Ltd (2010) 12 NWLR (Pt. 1208) 26.
That the Prado Jeep purchased for official purpose as admitted by the Respondent and was registered in the Appellant’s name cannot be unlawfully detained and without consent and independently claimed ownership of by the Respondent.
Argues that the Respondent cannot hold on to the Toyota Prado jeep and was bound to return it to the Appellant or pay the equivalent in value of purchase of N10,095,000. And to also pay the sum expended in providing alternative transportation for the New Managing Director. That the decision of the lower Court to the contrary was perverse. The Counsel also argued that reliance on previous decisions must be done in the con of pleaded facts, circumstances and the applicable laws and issues.
That the wholesale reliance on its other proceedings and judgments by the trial Court as accepted by the Respondent was wrong and had occasioned a miscarriage of Justice. Ikeanyi V. ACB Ltd (1997) 2 NWLR (Pt. 489) 509 or (1997) LPELR 1469 (SC) applying Metalimpex V. Leventis & Co. Ltd (1976) 2 SC 91; Shell BP Ltd V. Abedi (1974) 1 All NLR (Pt. 1) 13; Alhaji Ogunlowo V. Prince Ogundare (1993) 7 NWLR (Pt. 307) 610 at 624 on the need for evidence in proof or disproof of facts be confined to pleadings and so also the Courts must limit themselves to issues raised in pleadings was emphasised; as to do otherwise will amount to a denial of fair hearing.
That not confining itself to the pleadings of the parties and the address of Counsel was erroneous; That its previous cases relied upon was done wrongfully as the cases were not pleaded nor were the facts therein those cases admitted in evidence in the trial, leading to this appeal. That none of the parties in those previous cases was called as a witness in this case; that the Record of proceedings and Rulings in its decision suo motu relied upon were never tendered in evidence by any of the parties.
Finally, that the Respondent had severally sworn to witness statements on oath that the Board of Directors of the Appellant did not approve any staff handbook.
Refers to Ezemba V. Ibeneme (2004) All FWLR (Pt. 223) 1786 at 1810 E – G that NO witness who has given on oath two materially inconsistent evidence is entitled to the honour of credibility, such a witness does not deserve to be treated as truthful, per Edozien, JSC.
That the Court shopped for evidence from its previous Rulings and proceedings to rely on a staff Handbook which Respondent had said was not approved. (page 392 of the Record). That it was a breach of right to fair hearing. It was also contended that every breach of fair hearing occasions a miscarriage of justice. That the entirety of the proceedings and the decision reached becomes a nullity. See ANPP V. INEC (2004) 7 NWLR Pt. 871, page 76; All Peoples Party V. Ogunsola (2002) 5 NWLR (Pt. 761) page 484.
That there was clear cut miscarriage of justice in the refusal to grant the counter claim that had been proved. That it was a perverse decision. Amadi V. NNPC (2000) 6 SC (Pt. 1) 66; Unilorin V. Akinola (2014) LPELR 232 75 SC; Gbeneyei & Ors V. Isiayie & Ors (2014) LPELR 23216 (CA).
That Dr. Charles Mekwunye, as an interested party had filed an appeal and applied for stay of execution after a motion to set aside the Writ of Subpoena ad testificandum was dismissed.
That the trial Court no longer had jurisdiction to delve into the matter, an appeal having been entered, and the appeal based almost solely on the issue of subpoena before the Court. The Right of fair hearing had been breached. In Mohammed V. Olawunmi (1993) 4 NWLR (Pt. 287) 254 before higher Court., Held ought not to hear matter … in Nwora & ors V. Nwabueze & Ors (2011) LPELR 23008 SC held that Judicial Notice of all processes filed before it as the instant supplementary record and ought that assuming jurisdiction where none exist is a breach of fair hearing. Garba V. University of Maiduguri.
On this imputation of criminality of fraud alleged and infraction of the Rules of Professionality Conduct, it is contended that they have not been pleaded and evidence of same goes to no issue and; that such evidence if wrongly admitted must be expunged. CDC Nig. Ltd V. SCOA Nig. Ltd (2007) Vol. 30 WRN 81 at 118 – 119 lines 45 – 5 SC.
That the address of Counsel cannot amount to evidence to establish an allegation of crime against an adversary in a civil proceedings. Nwanosike & Anor V. Udenze & Anor (2016) LPELR 4050 (CA).
That it is uncomplimentary of the Respondent’s Counsel to have used derogatory words alleging dishonesty on the part of the Appellant’s Counsel where there was nothing to show that his conduct was such. Saeby Jernstoberi Maskin Fabri A/S V Olagun Interprises Ltd (1999) 14 NWLR (Pt. 637) page 128 @ 143 G – H.
That the allegation of crime was a very serious attack on the integrity of the Counsel where there was no concrete, compelling evidence relied upon in making the allegation. That where allegation of crime is made in a civil proceedings, it must be proved beyond reasonable doubt. Onoyom V. Egari (1999) 5 NWLR (Pt. 603) 416.
It was also contended upon this Court that the Appellant’s Counsel be protected and the submission of the Respondent on this be disregarded and to in very clear terms condemn the language of the Respondent’s Counsel which is unbecoming of a junior member of the bar to his senior. That he cannot give evidence in a matter and cannot accuse his professional colleague of a crime in his Respondent’s Brief without lawful evidence substantiating it.
It was also submitted that the protection under Section 192 (1) of the Evidence Act, 2011 and Rule 19, of the Rules of Professional Conduct for Legal Practitioners 2007, are for the client and that Counsel cannot be compelled to come and testify in the guise of clearing his name. That the facts in the testimony in cross-examination was not pleaded by the parties.
That the protection under Section 192 Evidence Act and Rule 19, Rules of Professional Conduct of Legal Practitioners is based on the impossibility of conducting legal business without professional assistance and on necessity in order to render that assistance effectual, and for securing free and unreserved intercourse between the two. See Jones V. Great Central Railing (1910) AC 5.
That even the Respondent’s Counsel conceded in paragraphs 3 and 4 of page 16 of the Respondent’s Brief that Appellant’s Counsel was summoned to come and clear his name of allegations against him.
That the subpoena was issued for a wrong purpose; and therefore, void. Relying on the subpoena for the Judgment was a miscarriage of Justice. That the evidence led in cross- examination ought to have been expunged and not doing so amounted to a miscarriage of Justice. Relies on Menakaya V. Menakaya (2001) 16 NWLR (Pt. 738 203 (SC) to contend that the decision arrived at without any evidence in support was void and equally the majority decision of the Court of Appeal which affirmed the void decision was a nullity.
That the exercise of discretion must be guided by the evidence adduced. On the whole, the Appellant urged that the appeal be allowed and the Judgment of the lower Court of 25th May, 2017 granting retirement benefits to the Respondent unlawfully and contrary to clear and binding provisions of Section 271 of CAMA, 2004 be set aside and the counter claim be granted.
RESOLUTION OF ISSUES IN THE APPEAL.
Having studied the record of appeal and the respective briefs of argument filed and argued, which I have guardedly summarised in all the facts as raised by the respective counsel for the parties, I do think that the crucial issues for the determination of this appeal are four (4): to wit;
1. Whether the Honourable trial Court Judge had the jurisdiction to entertain the suit instituted and to award Judgment as he did at the trial Court.
2. Whether if the Court had jurisdiction, the Respondent/plaintiff had proved its case at the trial Court to be entitled to judgment.
3. Whether or not there was a breach of fair hearing.
4. Had the Appellant proved its counter claim?
The Appellant’s Issues.
Issue one, which in the main borders on the jurisdictional challenge against the trial Court; all other issues i.e. issues 2 to 9 raise the question of breach of fair hearing; and can be subsumed under that canopy; though they shall be addressed seriatim in respect of the specific genre of violation leading to the alleged breach.
I should point out that the Respondent?s Issue No. 1 concerns Jurisdiction and therefore, is covered by the issue One of the Appellant and my nominated Issue No. 1 Issue 2 of the Respondent relates to whether the Appellant or Respondent had proved its case. Issues 3 and 4 of the Respondent are covered by the issue on whether there was fair hearing.
ISSUE ONE (JURISDICTION)
That Appellant had contended that the learned trial Court – i.e. the National industrial Court had no jurisdiction to try the matter i.e. the suit leading to this appeal, on the ground that the claims of the Respondent was hinged upon his status as an Acting Managing Director of a company who was claiming a specified entitlements. According to the Learned Counsel, the interpretation of the Companies and Allied Matters vis-a-vis the provisions of the Companies Articles and memorandum of Association must be necessarily gone (delved) into to be able to arrive at a decision on the entitlements as claimed; for this, the learned Counsel contends that Section 251 of the Constitution has provided an answer by locating the exclusive jurisdiction thereof in the Federal High Court.
The Respondent argues otherwise per contra.
It is trite and long settled that the fundamental principle is that jurisdiction is determined by the Plaintiff’s demand and not by the Defendant’s answer, which as in this case is that an interpretation of the applicable laws i.e the Companies and Allied Matters Act 2004, Section 271 thereof and the procedure of trial at the trial Court, coupled with the available evidence did not support the claim of the Plaintiff/Respondent. It is not the Defence that donates jurisdiction to the Court. See Attorney-General Federation V. Attorney General Abia State (2001) 89 LRCN 2413 at 2447 where Wali, JSC referring to Izekwe & Ors V. Nwadozie 14 WACA, 361 as cited by the Hon. Attorney-General of the Federation, particularly at page 363 where the guiding principle is stated thus:
‘in the first place, it is a fundamental principle that jurisdiction is determined by the Plaintiff’s demand and not by a Defendant’s answer, which as in this case only disputes the existence of the claim but does not alter or affect its nature. In other words ordinarily it is the claim and not the defence which is to be looked at to determine the jurisdiction’. Adeyemi V. Opeyori (1976) 10 NSCC 455 at 467 per Idigbe also refers.
Now, what were the claims at the trial Court?
For the answer, a peep at pages 1 to 8 of the record of Appeal provides the answer. Therein is the Writ of Summons and the Statement of Facts as filed at the trial Court. The Respondent as Claimant had claimed at page 2 of the Record and page 8 thereof thus:
‘Whereof the Claimant claims against the Defendant the sum of N65,662,521.82 being the unpaid gratuity profit sharing for the year 2013 and performance inducement pay (PIP) 2014.
Claimant also claim interest on the N65,662,521.82 at 15% from September 15th, 2014 until Judgment and thereafter until the Judgment debt is fully and finally liquidate (sic) with cost of this suit’.
Now, what does the law say about the Jurisdiction of the National Industrial Court at the time relevant (when the suit was filed) Section 254 (c) (1) of the Constitution provides as follows:-
254C – (1) Notwithstanding the provisions of Section 251, 257 and 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.
(a) Relating to or connected with any labour, employment, trade unions, Industrial relations and matters arising from work place, the conditions of service, including health safety, welfare of labour employee, worker and matters incidental thereto or connected therewith;
(iii) dispute relating or connected with personnel matter arising from any free trade zone in the Federation or any part thereof.
(k) relating to or connected with disputes arising from payment or non payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlements of any employee, worker, political or public office holder, Judicial officer or any civil of public servant in any part of Nigeria and matters incidental thereto?.
From the plenitude of the powers of the National Industrial Court as can be seen from the relevant applicable portions of the Constitution reproduced supra, it is obvious and crystal clear that the National Industrial Court had the jurisdiction, indeed exclusive one to adjudicate the Respondent/Claimant?s action at the trial Court.
Indeed the Constitutional endowment of power bestowed lavishly upon it, for good reasons makes it ex abundanti cautela, that notwithstanding the provisions of Sections 251, 257 and 272 of the Constitution, it shall exercise the powers enumerated therein the Constitution.
It should be noted that the Sections 251, 257 and 272 relate to the jurisdictions of the Federal High Court of the Federal Capital Territory and the State High Courts respectively. This, therefore, means that the National Industrial Court has the exclusive jurisdiction over those genre or species of matters notwithstanding the parties involved as donated to the Federal High Court or the other high Courts of the Federal Capital Territory of State High Court. The invocation and interpretation of the Companies and Allied Matters Act CAMA 2004 or its applicability without more cannot be the determinant of jurisdiction. That legislation can be invoked, interpreted and applied as appropriate and applicable by the National Industrial Court, which is a superior Court of Record. Its applicability does not de-robe an otherwise competent Court with jurisdiction.
For the aforesaid, It is my settled view that the trial National Industrial Court had jurisdiction.
Issue One is resolved in favour of the Respondent and against the Appellant.
ISSUE 2
Whether the Respondent as Claimant had proved its case at the trial Court.
The entirety of the claims to entitlement in gratuity or retirement benefits, etc were predicated upon the content of the Staff Handbook of the Appellant Company.
The said Staff Handbook – Exhibit CS7 was tendered in evidence by the Respondent and upon same Respondent founded his claims. The Respondent at the hearing could not tender his letter of employment (as he stated at page 389 of the Record of Appeal) during the hearing in cross-examination that … I don’t have the original copies of my letter of employment and review of salary structure because I can?t locate them when I relocated from Ketu to Gbagada?. The simple and trite law is that in a civil claim, a Plaintiff succeeds on the strength of his case and not on the weakness of the opponent’s case.
The Plaintiff, now Respondent had predicated his claim of entitlement upon his conditions of service as allegedly contained in the Staff Handbook of the Appellant Company.
However, it is plain from page 392 – 393 of the Record of Appeal that the Staff Handbook was not proved to have been approved by the Board of the Respondent Company, to warrant its invocation and applicability to the relationship between the parties herein.
It is also clear from pages 393 – 396, that the Staff Handbook containing the contract between the parties upon which the entitlements were claimed had not been approved by the Appellant?s Board of Directors.
On that basis, the award of Judgment as entered was unfounded and had no basis. The Plaintiff/Respondent had not proved his claims.
If I must say more, a perusal of Section 271 of the CAMA 2004 shows that a Director cannot be paid any of the benefits stated therein except upon the Resolution of the Board of Directors of the Company Approved by the members of the company. The Appellant’s Board and members had not been shown to have approved any of the entitlements as claimed; The Respondent, as Claimant, did not prove that. To make matters worse, the Respondent’s Counsel in his address before us said that Respondent was only an ‘Acting Managing Director’.
By the Interpretation Act 1990, an Acting Director is of the same meaning and as to functions/powers and meaning as a Substantive Director. In any case, Respondent was a Managing Director. See his ipsit dixit on page 394 last paragraph, line 3 of the Record of Appeal where he stated in part thus:-
‘… I was asked as Managing Director to retrench 29 staff and they were no paid their due benefits …’.
Where was the proof of the right to go with the status car, which Respondent said the letter of appointment provided for and which was not tendered.
The Respondent’s case is one, unfortunately benefit of legal evidence or proof.
ISSUE 3
On whether there was breach of fair hearing, it is obvious that there was.
The Plaintiff/Respondent had made some claims to entitlement and relies on a Staff Handbook and testified to alleged actions on documents by a Counsel to the Appellant. The trial Court believed the evidence and relied on Rulings and Judgment earlier on given with reference to the Staff Handbook and evidence of the alleged role of Counsel. The law is that for a fair dispensation of Justice, the Plaintiff reserved the right to and would have called the said Counsel as a witness and who may be cross-examined. Indeed, even the Defendant/Appellant had the right to call the said Counsel as a witness. None of the parties did.
The Court suo motu did by a subpoena. That was an unfair descent into the arena of litigation by a Court that ought to be an umpire. It was not a contempt case or criminal trial of Counsel. At the worst, the Court could suo motu on its discretion or upon motion order the joinder of a person in this case the Counsel to Defendant/Appellant if his presence was necessary for the Court to determine effectually and completely and settle all the questions involved in the matter or cause. Oladeinde & Ors V. Oduwole (1962) NWLR 41 at 44 and Attorney-General of Bendel State V. Attorney-General of Federation & 22 Ors (1981) 10 SC 1 referred to in Attorney-General of Federation V. AG of Abia State & Ors (2001) 89 LRCN 2413 at 2462 AB.
Not having joined the Counsel as, indeed possible but not done, the Court could not have validly proceeded as a way out to seek to compel the Counsel, Dr. Mekwunye, for the Appellant to testify. That would be in violent transgression of the privilege of Counsel and his client which is protected by law.
Ekpeto V. Wanogho (2005) Vol. 123 LRCN 170 at 186; Abubakar V. Chuks (2008) Vol. 154 LRCN page 35 UJJ and 36 AEE.
Where Aderemi, JSC stated thus:-
‘It has become well entrenched principle that no Counsel or Solicitor shall accept a brief where it is clear that the services to be rendered flow out of or are closely connected with the previous services he had rendered to the opposing side. So also it is that a solicitor is not permitted to disclose the contents or condition of any document with which he has become acquainted in the course of and for the purpose of such employment.
This privilege is that of the client and not of the legal practitioner and as such, if can only be waived by the client. The right of confidentiality guaranteed by this provision is absolute. This is because even the Courts cannot generally, compel Counsel to disclose information given to him by his client in confidence’. See also Section 170 of the Evidence Act, 2004.
To the extent that this protection of client and his Counsel are statutorily enshrined and violated, there was a descent into the abyss of unfair hearing and unfair trial therefore?
The power or discretion under S. 44 of the National Industrial Court Rules/Act must be exercised with circumspection. It was not so done in the instant case. In the same token, Rulings and/or previous decisions of the trial Court that were not pleaded or tendered in evidence or where, as here, evidence in those trials/proceedings tendered and relied upon could not have been validly and justly referred and relied upon to come to a decision one way or the other but so believed and relied; there is no gainsaying then that this deviation leading; into the issuance of a subpoena ad testificandum on Dr. Mekwunye, Appellant?s Counsel and the series of ?Compeller? abortive applications, in the interim, before the Judgment appealed herein, surely, was an unprocedural and unwarranted dabble into unfair hearing; parties, nay their Counsel cannot waive the requirement of the law as it will be against public policy. See Ariori’s case 1983 SC 1.
Justice must not only be done. It must be seen to have been done. The impression of a dispassionate onlooker is key. See Somoye V. Kano NA (1961) NWLR at page 402. That on record not, No objection to a subpoena on Dr. Mekwunye to state his own side of the case” cannot confer legitimacy on the Court to so compel the Counsel in the circumstance. That the Counsel was helpless is obvious, in my view, from the fact that the Judge suo motu threw up that fact of address or light or clearing his (Defendant/Appellant’s Counsel) name on allegation of criminality raised in cross-examination. There was no prosecution of that Counsel or Counsel as a party at the trial. Indeed, Iranloye, Esq. for the Respondent had informed the Court of the need for the Appellant’s Counsel to come with e-mails between him and Chairman of the Defendant and e-mails to the Claimant in addition to affidavit and roles he played. Nothing can be further from the procedure of proving the genre of the claim, as filed.
Furthermore, there was no claim against unfair dismissal or retirement. It was a voluntary retirement; so, wherein was the relevance of why the Respondent retired and the reason thereto as appertaining the claim; the subject of this appeal or claims at the trial?
‘There was the contention that the trial Court had admitted in evidence some Rulings and Judgments from proceedings in other matters already concluded between the Appellant and other persons and relied on the reasons for the decisions thereon and the fact of reliance on the Staff Handbook of the Appellant to arrive at a decision in this matter, by being so influenced by those documents and cases.
It is clear from the Judgment that the trial Court admitted Rulings and Judgments in previous cases and some of which are on appeal. The law is that parties shall have their contending grievances determined only upon relevant and pleaded admissible evidence.
For this reason, evidence whether oral or documentary, which is wrongly admitted as Exhibit ought to be expunged from the record of the Court. However, if wrongly retained, the Court, must not consider and rely on it at the Judgment.
To do otherwise, will amount to a breach of the right of fair hearing. See Brossette Ltd M/S Ola Ltd (2008) Vol. 154 LRCN 64, at 69.
That is exactly, what the learned trial Judge is guilty of. See pages 380 to 383 of the Record. Where-in he relied on the evidence of a witness in Suit No. NICN/LA/335/2013 Mr. Chester Onyemechie Ukandu V. Mainstreet Bank Registrars Limited delivered on 27th May, 2015 to find in favour of the existence of the Staff Handbook and other benefits as awarded other former employees.
It is clear that reliance on those other cases and the evidence of witnesses thereat was perverse. It is against the evidence led viva voce in this case at the trial Court. This evidence/Record which ought to have been expunged suo motu, or at best not relied upon, are hereby expunged by me, for being admitted wrongly and indeed prejudicially acted upon.
It is in breach of the Appellant’s right of fair hearing as contended by it.
Another aspect of the breach of fair hearing is in the area of continuation of the trial or proceedings, even after the Appellant’s Counsel had at a stage lodged an appeal against a Ruling within the trial. The proceedings proceeded or continued to the adoption of Addresses and Judgment none – the less. An onlooker will clearly see that there was no dispassionate or even-handed Justice to both sides. See …
I do see clearly that there was a denial of fair hearing in the matter leading to this appeal. See Nwokocha V. A.G. Imo State (2016) LPELR 40077 (SC).
This Issue is resolved in favour of the Appellant. Even at the risk of repetition and verbosity, I do re-iterate that the trial Judge?s reliance on Exhibit SC7 – the Staff Handbook which had been testified to as having been withdrawn by the Appellant?s Board of Directors on 13th December, 2013, and in respect of which the Respondent clearly stated that it had not been approved by the Board (see page 392 of the Record of Appeal) amounted to the usage of a piece of inadmissible and irrelevant evidence. The Court was bound to admit only admissible and relevant evidence. To use an irrelevant and inadmissible evidence as done herein, was perverse and amounted to a breach of fair hearing. See Olayinka v State (2007) 9 NWLR (Pt. 1040) 561 at 577; Gbafe V. Gbafe (1996) LPELR 1316; (1996) NWLR (Pt. 455) 417.
A decision based upon a document not forming part of and which is not incorporated as part of the terms of Employment of the Respondent with the Appellant, was a clear breach of the right of fair hearing, being contrary to the terms of contract or indeed being a decision predicated upon unknown and inapplicable terms.
On the 4th Issue whether the Appellant had proved its counter claim, it is clear from the evidence led that the receipt of the purchase of the Prado Jeep claimed by the counter Claimant/Appellant was in its name. The Respondent’s assertion that it was a joint property because his name is indicated on the purchase receipt jointly with the Appellant is nothing but a farce, he admitted that the appellant paid the sum of N10,095,000 for the purchase. The receipts bear the said amount, it is trite that facts admitted need no further proof. Chukwu & Ors V. Akpelu (2013) LPELR 21864; Alhassan & Ano V. Ishaku & Ors (2016) LPELR 40083 SC.
The Appellant’s contention that the Counter Claim was proved and holding on to and using the Prado Jeep was wrong cannot be assailed. The Appellant’s Reply brief is unassailable on this score. Being the officer who coordinated the purchase would simply explain why the Respondent allowed his name on the documents. This explains why he stated in cross-examination at page 394 that the receipt was made both in his name and the Defendant Bank and because the previous car was so written even when he was not the Managing Director.
An act/indication of convenience as done in respect of the previous car did not make him the owner or joint owner of the car in question. Indeed by his admission, at the time of leaving the Bank, the car was not yet 4 years to be covered by the benefits provided in the untendered letter of appointment and the un-approved Staff Handbook.
Where then can a defence exist against the Defendant in his counter-claim in detinue and Consequential Damages as Counter Claimant claimed?
I do not see, rather, it is obvious that any un-authorised retention or detention of the Toyota Prado Jeep amounted to the tort of detinue. Appellant had proved its Counter Claim in detinue, and damages, therefore.
I cannot end this opinion without pointing out that it appears from page 400 of the record of appeal that the ‘Respondent contributed or added about N500k for the purchase’ of the Prado and that it has not been refunded. What is N500k as testified to in cross-examination in the defence of the counter claim? There is also no exactitude by the use of the word or adverb ‘about’.
That leaves any reference to the existence of a specific sum to be adjudged as an entitlement to the Respondent a vacuous one. It will be speculative to so find for any specific entitlement even by that evidence disclosed in Defence. The hand of a Court of dispassionate administration of justice would, in the circumstance, not be on a firm legal terra to find for the Respondent in any sum or entitlement as none was proved, even in the allegedly added sum; which, not surprisingly, from the Respondent?s cross-examination, had not been refunded. The inference to draw is that there was no such addition and hence no refund was made.
This issue is resolved in favour of the Appellant.
Having resolved the three (3) issues articulated as the encompassing issues and in particular the 3rd Issue to the effect that there was a breach of fair hearing occasioning miscarriage of Justice, the inevitable conclusion is that there was no trial, properly so-called in law, conducted.
Accordingly, the Appeal is allowed and the entirety of the proceedings and Judgment in Suit No. NICN/LA/366/2015 between Chimezie Sunday Ahaiwe AND Maintreet Bank Registrars Ltd (Substituted with Carnation Registrars Plc by Order of Court Made —- on and delivered on 25th May, 2017 by the National Industrial Court of Nigeria, sitting at Akure per His Lordship Hon. Justice O. O. Oyeyemi is set aside and quashed.
2. A retrial is however, ordered before another judge of the National Industrial Court as shall be designated by the honourable President of the National Industrial Court.
Costs:- parties shall bear their respective costs of prosecution and defending this appeal.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I read in draft form, the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I agree with his reasoning and final conclusions reached after a painstaking considerations of the issues articulated by both parties.
I have nothing more useful to add.
This appeal is allowed by me also. I abide by all the consequential orders contained in the lead judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Mohammed Ambi -Usi Danjuma, JCA,. I agree entirely with the reasoning and conclusion reached therein. His lordship had taken his precious time to thoroughly and painstakingly deal with all the issues canvassed by the learned counsel for the feuding parties. I do not have anything useful to add. I adopt same as mine. The appeal is meritorious, and it is accordingly allowed by me. I abide by all consequential orders made therein including the order as to costs.
Appearances:
Dr. Charles Mekwunye, Esq. with him, Ibezim E. Nwonu, Esq. and John Ochada, Esq.For Appellant(s)
O. O. Irandoye, Esq.For Respondent(s)
