DARNLEY ANIFOWOSHE v. WEMA BANK PLC
(2015)LCN/7891(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of June, 2015
CA/L/04/2014(R)
RATIO
LABOUR LAW: TERMINATION OF EMPLOYMENT; WHAT A CLAIMANT WHO SEEKS A DECLARATION THAT THE TERMINATION OF HIS APPOINTMENT WAS WRONGFUL MUST PROVE
Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should, therefore, be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356.
A claimant who seeks a declaration that the termination of his appointment was wrongful among other claims must prove the following material facts namely:
1. That he is an employee of the defendant.
2. The terms and conditions of his employment,
3. The way and manner, and by whom he can be removed. per. UZO I. NDUKWE-ANYANWU, J.C.A.
EVIDENCE: HEARSAY EVIDENCE; WHEN IS AN EVIDENCE A HEARSAY EVIDENCE AND WHETHER IS IT ADMISSIBLE
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. See Kala vs Potiskum (1998) 3 NWLR pt 540 pg 1. Generally, hearsay evidence is not admissible, see Agoda vs. Enamuotor (1999) 8 NWLR pt.615 pg 407. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
DARNLEY ANIFOWOSHE Appellant(s)
AND
WEMA BANK PLC Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 2nd day of January, 2014 and filed on 6th day of January, 2014 pursuant to Section 24(4) of the Court of Appeal Act 2004 and Order 7 Rule 10 (2) of the Court of Appeal Rules 2011, the Applicant prayed the court for;
“An order for extension of time within which to file the notice and grounds of appeal”
In support of the application is an affidavit of twenty-three (23) paragraphs deposed to by one Kemi Adeniji, a counsel in the chambers of Kola Adebiyi and Co, solicitors to the applicant. The relevant paragraphs of the affidavit are hereunder reproduced for easy reference as follows:
2. The Appellant in this case is a banker and was the former treasurer of the defendont between 2006 and 2009 and he now resides in Kampala Uganda. He is presently the Treasurer of Global Bank in Uganda, East Africa.
3. The Appellant sued the Respondent in the Court below for the sum of N23.3m in respect of four claims – 1. Failure to appoint him a Principal Manager on confirmation as agreed. 2. Suspension of his rights to a Toyota Car and a generator when he was eventually appointed a Principal Manager, 3. Compensation for the 108 working days annual vacation which he was unable to utilize while he was with the Defendant. 4. The termination of his appointment without adequate notice.
4. The court below dismissed the Appellant claims in its entirety in a judgment delivered by Justice Agbadu Fishim on 25th July, 2013. A copy of the said judgment is herein shown as exhibit 1.
5. I am aware that the lead counsel informed the claimant on phone on the same 25th July, 2013 the decision of the Court below was given. I am equally aware that he was not happy with the verdict and he instructed Mr. LA. Adebiyi to appeal.
6. Mr. Adebiyi suspended his vacation and applied for the certified true copy of the judgment of the Court below which he obtained on 2nd August, 2013.
7. Pursuant to the proposed appeal, Mr. Adebiyi filed a motion dated 9th August, 2013 on 13th August, 2013 praying the Court of Appeal to grant the claimant leave to appeal as prescribed by Order 7 Rule of the Rules of this Court and Section 243 of the 1999 Constitution as amended and same was assigned No. CA/L/679M/2013. A copy of the receipt of payment of the said application is herein shown as exhibit 2.
8. I am also aware that our decision to file an application for leave to appeal accords with the judgment of Ekiti Division of this Court in the unreported case of Local Government Commission, Ekiti State Vs Bamisaye in Suit No. CA/EK/71/M/2012 delivered on 15/2/2013.
9. I am aware that Mr. Adebiyi made enquiries about the date of hearing of the said motion from the Deputy Chief Registrar’s Office and was told that no date of hearing was likely to be fixed until after the 2013 annual vacation by the Court of Appeal.
10. Upon further enquiry of the date of hearing of the said application in late September, 2013, he was advised to apply in writing to the Deputy Chief Registrar and he did so by his letter dated 28th September, 2013, a copy of which is herein shown as exhibit 3. Unfortunately no date was fixed for the hearing of the said application until the three months expired on 24th October, 2013.
11. When we were not heard on our application for leave to appeal before 24th October, 2013, we commenced preparation for application for extension of time to apply for leave to appeal, leave to appeal and extension of time to file notice and grounds of appeal as required by the rules of this Court.
12. We were about filing the said application in November 2013 when we got notice of the unanimous decision of the full panel of this Court in the unreported case of Coca Cola Nigeria Limited & Ors Vs Mrs. Titilayo Akinsanya in Suit No.CA/L/712/2012 delivered in Lagos on 4th July, 2012 which restricted the right of appeal from the National Industrial Court to the Court of Appeal.
13. It was after we got and studied the Coke Cola’s case that we decided that breach of fair hearing which was a particular of error in our application for leave to appeal dated 9tn August, 2013 is better made a ground of appeal. The failure to appeal within time is not deliberate. It is due to circumstances beyond our control.
14. As regards the claims of the plaintiff stated in paragraph 3 of this affidavit, it is pertinent to state that the plaintiffs friend, Mr. S. N. Uche (CW1) gave evidence by written deposition for the plaintiff as required by the rules of the Court below. He was also cross examined by the defendant.
15. CW1 stated in paragraph I of his deposition that he was briefed of the fact of this case in the evening of 9th September, 2009 in Festac, Lagos by the plaintiff and that the claimant showed him the documents, CWI also referred to and tendered 21 documents in his deposition including plaintiffs letters of appointment, confirmation and termination and his applications for annual leave between 2006 and 2009.
16. Apart from the evidence of CW1, the plaintiff also made a deposition in line with the evidence of CW1 and tendered the same 27 documents. He made the deposition before a Notary Public in Kampala. Although he did not appear for the trial, his name is on the list of witnesses filed in the Court below.
17. The defendant joined issue with the claimant in the statement of defence and in its representative’s evidence in respect of the four claims. The defendant also tendered the letter of appointment as well as the plaintiff application for annual leave. It is also pertinent to state that out of the 27 documents tendered by the claimant, 73 were written by the defendant and 3 were written by the claimant to the defendant”
18. In an unfortunate judgment delivered on 25th July, 2013, the learned trial judge held that the entire evidence of Mr S. N. Uche (CW1) along with the 21 documents are hearsay, inadmissible and expunged same from the record on the ground that the claimant who related the facts to CW1 was not called for testimony and cross examination. He dismissed the plaintiff’s case without considering the merits.
19. The learned trial Judge also ignored the affidavit and evidence of the claimant which he deposed to before a Notary Public in kampala-apparently because he did not appear at the trial.
Attached to the supporting affidavit are four (4) exhibits.
The learned counsel for the Respondent opposed this application.
The processes filed are:-
1. A notice of preliminary objection filed on 20th day of January, 2014,
2. A 15 paragraphs Counter affidavit in opposition to the Appellant/Applicant’s motion on notice dated 2nd day of January, 2014.
Written addresses were filed and exchanged by counsel to both parties pursuant to the orders of this court. The Applicant’s written address is dated and filed on the 20th day of February, 2015. At page 3 paragraph 3 of the said written address, the applicant formulated a sole issue for determination and it read thus:-
“Whether the court should grant the applicant an extension of time within which to appeal as a right under Section 243 (2) of our Constitution or even to send the case back to the Lower Court for retrial.”
On the other hand, the Respondent’s written address is dated and was filed on 6th day of March, 2015. The Applicant filed its reply on 18th day of March, 2015.
Before dwelling into the arguments of counsel as per their respective address, it is important at this point to deal first with the preliminary objection raised by counsel for the Respondent.
The preliminary objection of the Respondent is founded on the following grounds:-
1. An appeal by the Appellant/Applicant in the circumstances of the decision in Suit No: NICN/LA/265/L2 to be purportedly appealed against when the extension of time is granted, is incompetent as same runs foul of the provisions of Section 9 of the National Industrial Court Act and Section 5 (2) (3) and (4) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010.
2. By the provisions of the National Industrial Court Act, an appeal against the decision of the National Industrial Court SHALL LIE ONLY as of right (and not with leave of any court) to the Court of Appeal, ONLY (and solely) on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria,1999.
3. The Appellant/Applicant in his Motion on Notice as well us the exhibited proposed grounds of appeal failed to genuinely satisfy the requirements of the law as laid down in Section 9 of the National Industrial Court Act as well as Section 5 (2) (3) and (4) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. Act No. 3.
4. That in consequence of grounds 1, 2 and 3 above, this Honourable court lacks the requisite jurisdiction to entertain the Appellant/Applicant’s Motion on Notice dated 2nd of January, 2014 for extension of time in this case as well as any appeal emanating from the proposed grounds of Appeal exhibited by the Appellant/Applicant, and as such, the Appellant/Applicant’s Motion on Notice for extension of time within which to file the notice and grounds of appeal and the proposed grounds of appeal are liable to be dismissed in-limine.
Arguments in support of the preliminary objection are included in the respondent’s written address at page 3 and 4 paragraphs 3.00 – 3.15. It is the contention of learned counsel for the respondent that by the combined effect of Section 9 of the National Industrial Court Act and Section 5(2) (3) and (4) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 and Section 243 (2) (3) and (a) of the 1999 Constitution [as amended) there is no right of appeal against the final decision of the National Industrial Court except on issues of Fundamental Human Right. It is the contention of the learned counsel that the appeal in this case does not involve fundamental human rights and since the court has no jurisdiction over the appeal itself then the court cannot extend time within which such an appeal can be brought. It is, therefore, his conclusion that the application for extension of time is incompetent.
The applicant did not address the preliminary objection in his reply.
In arguing the motion, learned counsel for the applicant submitted that according to Order 7 Rule 10 (2) of the Court of Appeal Rules 2011, there are two (2) conditions an applicant must satisfy to enable the court grant the application for extension of time within which to appeal. They are:-
1. The applicant must have good and substantial reasons for failure to appeal within time and
2. The grounds of appeal must be substantial and arguable.
As regard the 1st condition, learned counsel for the applicant relied on his affidavit in support of the application particularly paragraph 2-13 reproduced above and submitted that since the reasons given for the delay is attributed to the fault of counsel, such negligence of counsel should not be visited on the client. He thus urged the court to grant the extension of time.
As regard the 2nd condition, counsel relies on the proposed notice of appeal attached to his application as exhibit 4 and submits that the grounds of appeal therein raised issues of Fundamental Right occasioning miscarriage of justice. Those grounds, counsel contended, are substantial, arguable, and worthy of being entertained by this court. He relied on the authorities of Avong v K.R.P.C Limited (2002) 14 NWLR (Pt 788) 508 and Brossette Manufacturing Nigeria Ltd v. M/S Olailemobola Ltd 3 Ors (2007) 5 SC 84. He prayed the court to grant his application.
On the other hand, the learned counsel for the Respondent submitted that the applicant has not satisfied the 2 conditions. On the 1st condition, counsel contends that the affidavit evidence of Kemi Adeniji has not disclosed good and substantial reasons for the Applicant’s failure to appeal within time. He described the reasons stated by the Applicant in paragraph 12 and 13 of the affidavit as well as the reasons elucidated in paragraph 4.4 and 4.5 of the applicant’s written address as self-induced and self-serving. Counsel also submits that since the 3rd Alteration Act in 2010, the law has been that there is no right of appeal from the National Industrial Court to the Court of Appeal except on issues of Fundamental Human Right. He, therefore, argued that the applicant being ignorant of the law till the pronouncement/decision in Coca-Cola v Akinsanya (supra) cannot justify the delay. On the 2nd condition, counsel submitted that there was no denial of fair hearing through out the trial. The parties had the opportunity of presenting their cases before the court after which the Lower Court evaluated the evidence, to come to the conclusion that the evidence of the applicant was hearsay. Also counsel argues that the two cases referred to by the Applicant’s counsel ie:- 1) Avong v. K.R.P.C. Limited (supra) and 2) Brossette Manufacturing Nigeria Ltd v M/S Olailemobola Ltd 3 ors are against the Applicant’s submission. In case No. 1, counsel submits that the trial court summarily rejected the document tendered by a party. In this present case, parties were given opportunities of presenting their cases before the trial court and it was after which the trial judge reached a conclusion that the evidence is hearsay. In case No. 2, Tobi JSC held that where a trial judge correctly expunged an Exhibit earlier admitted, that exercise of that judicial power does not and cannot amount to a denial of fair hearing. Counsel, therefore, submits that the Applicant’s ground of appeal does not prima facie show good cause why the appeal should be heard because there is no denial of fair hearing where a trial judge correctly expunges evidence after the trial in his judgment. He thus urged this court to dismiss the application with substantial cost.
The applicant’s counsel in his reply on the issue of lateness submitted that the coca-cola’s case is a landmark decision which was published on 30th day of December, 2013 in part 1386 of Nigeria weekly Law Report. It became available to readers at the end of January, 2014. Counsel, therefore, submits that the fact they could get a CTC of the said judgment before its publication was industrious on their part. Thus, they were not indolent in prosecuting this appeal.
On the issue of substantiality of the ground of appeal, counsel recapitulated the grounds of appeal and reemphasized that the grounds of appeal deals with the denial of fair hearing and, therefore, substantial to justify extension of time within which to appeal. He thus urged the court to discountenance the Respondent’s arguments and grant this application.
The motion on notice is for extension of time to file a notice and Grounds of Appeal. The Appellant is desirous of appealing against the judgment of the Lower Court (Nigerian Industrial Court). The Appellant in this case had filed a suit in the Nigerian Industrial Court for a claim against his employer, the Respondent.
It appears there had been an employment contract between the parties in which the terms and conditions of employment of the employee are provided. Union Bank of Nig Plc vs Edit (1993) 4 NWLR Pt.287. Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should, therefore, be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356.
A claimant who seeks a declaration that the termination of his appointment was wrongful among other claims must prove the following material facts namely:
1. That he is an employee of the defendant.
2. The terms and conditions of his employment,
3. The way and manner, and by whom he can be removed.
It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these. See Nig Gas Co Ltd vs Dudusola (supra).
The claim of an employee against his employer is a personal one. The employee cannot prove his claim by proxy. This was what the Appellant tried to do. The Appellant filed his depositions on oath but failed to appear in court to testify. One Mr S. N. Uche testified as CW1 and tendered several documents on behalf of the Appellant. The claimant/Appellant closed its case. The learned trial judge gave its considered judgment refusing all the claims of the Appellant.
The learned trial judge held as follows
“that the CW7 herein testified to the facts as related to him by the claimant. The primary purpose of the Rule against hearsay evidence is to secure the right to fair hearing”.
The Defendant is entitled in the circumstances of this case to cross examine the claimant who related all the facts deposed to by CW1.
The court referred to the case of JAMB vs Nkemka (No 2) (2002) ALL FWLR pt.381 pg.1763.
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said”
Alao Kala vs Potiskum (1998) 3 NWLR pt 540 pg 1.
The trial judge continued:
“in the instant case, the evidence of Mr. S. N. Uche as contained in his statement of witness on oath was utter hearsay as Mr Darnley Anifowose who related the information to him was not called to testify nor to be cross examined. There is no doubt that CW1 testified in order to establish the truth of what is contained in the statement on oath. His evidence is therefore hearsay. Consequently, the evidence of CW1 being inadmissible evidence is hereby expunged. That being the case, there is no evidence to establish the claimant’s case before this court. The effect of this is that the claimant has failed to prove his claim against the defendant, I so find and hold”.
This is what the trial judge held in his considered judgment. Hearsay evidence is an evidence which does not derive its value solely from the credit given to the witness himself but which lasts also, in part, on the veracity and competence of some other person. Thus where a third party relates a story to another as proof of the contents of a statement, such story is hearsay. See Judicial Service Committee vs Omo (1990) 6 NWLR pt.157 pg 407.
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. See Kala vs Potiskum (1998) 3 NWLR pt 540 pg 1.
Generally, hearsay evidence is not admissible, see Agoda vs. Enamuotor (1999) 8 NWLR pt.615 pg 407.
In the court below, the CW1 testified as a friend of the Appellant and tendered several documents to prove the claim of the Appellant. The question to ask is whether the evidence and the documents obtained is admissible?
Ordinarily, admissibility of evidence is governed by Section 6 of the Evidence Act. Once a piece of evidence is relevant, it is admissible in evidence, irrespective of how it was obtained. Fawehinmi vs NBA (No 2) (1989) 2 NWLR pt.105 pg 538, B.O.N vs Saleh (1999) NWLR pt 618 pg 33; Anozie vs Obichere (2006) 3 NWLR pt 981 pg 145, FBN Plc vs Jibo (2006) 9 NWLR Pt 985 pg 261.
The only evidence elicited in this case is that of CW1 who intended to prove the case for the Appellant. Employment issues are personal issues that can only be proved by the parties i.e employee or Employer.
The Appellant is the only one that can testify as to his employment with the Respondent. The Appellant needed to plead his employment with the Respondent. The contract between the Appellant and the Respondent is a personal one. The Appellant is the one who was terminated. The Appellant was the one who was allegedly short changed by the Respondent. Only the Appellant can prove his employment with the Respondent. The Evidence of CW1 given and the documents tendered in proof of the Appellant’s claim does not help the Appellant.
The evidence of CW1 is hearsay evidence as held by the trial judge. Evidence that was wrongly admitted is not legal evidence and the court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The court cannot rely on such evidence in reaching its ultimate decision. Any finding or decision based on such inadmissible evidence would be perverse see Olayinka vs State (2007) 9 NWLR Pt.1040 pg 561. Where a piece of evidence which is inadmissible at all in law is wrongly admitted in evidence, the proper thing for the trial court to do is to discountenance it completely when writing its judgment even if admitted by consent. Hyppolite vs Agharevba (1998) 11 NWLR Pt.575 pg 598; Agbi vs Ogbeh (2006) 11 NWLR Pt.990 pg 67.
The trial judge was right in expunging the hearsay evidence of CW1 and the documents he tendered.
However, even if the trial judge did not expunge the wrongly received evidence, the Court of Appeal has the inherent jurisdiction to do so. This can be done irrespective of the fact that counsel did not object as in this case. See Onochie vs Odogwu (2006) 6 NWLR Pt.975 pg 65, Dogaci of Dene vs Dagaci of Ebwa (2006) 7 NWLR Pt.979 pg.382.
The trial Judge was, therefore, right to have expunged the hearsay evidence of CW1 and the documents tendered. The Appellant can, therefore, not complain of fair hearing. The Appellant was given ample time for his claim, while he chose to rely on CW1 to prove his claims against his employers.
The Appellant was given all the opportunity to present his case in the court below but he failed to do so. The Appellant can, therefore, not complain that he was not given a fair hearing because the evidence of CW1 was expunged.
The Appellant’s fundamental rights were, therefore, not breached. The Appellant/Applicant’s application for extension of time to appeal against the judgment of the National Industrial Court is misconceived. There is no right of appeal from the Nigerian Industrial Court to the Court of Appeal except in those cases relating to question of Fundamental Human Rights. See Coca Cola vs Akinsanya (2013) 18 NWLR pt 1386 pg 255.
There is no question of Fundamental Rights breached in the Appellant’s case. Therefore, the right of appeal does not lie here. The Appellant has no right of appeal.
The application for extension of time to appeal against the judgment of Lower Court [National Industrial Court) is, therefore, refused and hereby struck out.
Cost is assessed at N50,000 to the Respondent.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the succinct Ruling prepared and delivered by my learned brother Ndukwe-Anyanwu, JCA.
I agree entirely with the reasoning and conclusion and adopt the Ruling as my own with nothing useful to add.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft the ruling just delivered by my learned brother, U. I. NDUKWE-ANYANWU, JCA and am in complete agreement with the reasoning and conclusion arrived at in the lead ruling. I also refuse the application and abide by the consequential orders made therein.
Appearances
I. A. AdebiyiFor Appellant
AND
Abidemi Oladigbolu, Ayodeji AdedejiFor Respondent
