ECOBANK v. UDOH & ANOR
(2022)LCN/16406(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, April 29, 2022
CA/A/85/2020
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
ECOBANK NIGERIA LIMITED APPELANT(S)
And
1. UDUAK ETIM UDOH 2. ECOBANK NIGERIA PLC RESPONDENT(S)
RATIO:
THE SETTLED LAW ON THE COURT RAISING AN ISSUE SUMOTU WITHOUT GIVING THE PARTIES AN OPPORTUNITY TO BE HEARD
It is settled that a Court ought not to raise an issue suomotu, without giving the parties an opportunity to be heard thereon, this is more so, with regard to the party that may be adversely affected as a result of the point so raised. The reason forthis is that in our adversarial system of adjudication, Courts should be reluctant to raise issues suomotu, because litigation is not theirs but that of the parties. If a Court raises an issue suomotu it has removed itself from its exalted position of an independent arbiter. This does not mean that a Court of law is totally inhibited from raising issues suomotu. It can do so in relevant circumstances. For instance, a Court of law can raise an issue suomotu, if it is in the interest of justice to do so or where the issue raised will determine the fortunes of the case one way or the other.
There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable for the purpose of determining the case. Though a Court has the jurisdiction to raise an issue suomotu, it does not have the jurisdiction to resolve the issue suomotu. The Court must give an opportunity to the parties to react to the issue by way of address. In Chief OJE v. CHIEF BABALOLA (1991) 4 NWLR (PT. 185) 267, it was held that on no account should a Court raise a point suomotu, nomatter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties; see also STIRLING CIVIL ENGINEERING (NIG) LTD v. YAHAYA (2005) LPELR-3118(SC); SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR-46404(SC); AKEREDOLU v. ABRAHAM & ORS (2018) LPELR-44067(SC) AND ARAKA v. EJEAGWU (2000) LPELR-533(SC).
CIRCUMSTANCES IN WHICH A COURT CAN RAISE AN ISSUE SUO MOTO
In appropriate cases, the Court can raise an issue suo moto, for instance, where it is in the interest of justice to do so or where the issue raised will determine the fortunes of the case one way or the other. This often happens where the case cannot be determined one way or the other without resolving the issue. In such cases a Court is competent to raise an issue suo moto to enable it determine the case. Having said that, it has to be borne in mind that, though a Court has the jurisdiction to raise an issue suomotu, it does not have the jurisdiction to resolve the issue suomotu. It must give an opportunity to the parties to react to the issue by way of address; see CHIEF OJE v. CHIEF BABALOLA (1991) 4 NWLR (PT. 185) 267 MOHAMMED MUSTAPHA, J.C.A..
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court, Abuja, presided by Hon Justice R. B. Haastrup, delivered on the 21st of October, 2019.
FACTS IN BRIEF:
The 1st Respondent was employed by the Appellant, as an executive trainee on the 12th of September, 2006, and sometime in 2017 following a complaint of fraud from one of its customers, Casue Nigeria Ltd, that a cumulative sum of N60,000,000 was withdrawn, fraudulently, from its account, the appellant referred the matter to the police for investigation. In the cause of investigation, the police invited the 1st Respondent, along with one Ekenson Abai and some other employees. After the investigation, the police initiated criminal proceedings against the 1st Respondent at the Magistrate Court Uyo.
The Appellant in view of the criminal proceedings placed the 1st Respondent’s salary account on a no debit order restriction and placed him on indefinite suspension with half pay, pending the conclusion of the criminal proceedings.
The 1st Respondent instituted this action at the trial Court; where it was held among other things that the suspension of the 1st Respondent, pending the prosecution amounted to a constructive termination, especially without proof of any fraudulent transaction.
Dissatisfied, the Appellant appealed by a notice of appeal filed on the 4th of December, 2019 on the following grounds, shorn of their respective particulars:
GROUNDS OF APPEAL
GROUND 1:
The trial Court erred in law when the learned trial Judge made a finding suo moto that the Appellant’s suspension of the 1st Respondent pending conclusion of investigations amounted to a constructive termination without affording the parties any opportunity to address the Court in respect of the said issue.
GROUND 2:
The trial Court erred in law when the learned trial Judge held that the Appellant failed to prove that the 1st Respondent was involved in any fraudulent transaction, without affording the Appellant the opportunity to address the Court on the guilt or otherwise of the 1st Respondent.
The Appellant’s brief was filed on the 5th of February, 2020; it is settled by Olayinka I. Arasi Esq., of counsel; the 1st Respondent’s brief was filed on the 13thof March, 2020; by Charles Chimezie Ihearindueme Esq., of counsel, it was deemed properly filed on the 24th of February, 2022. The reply brief was filed on the 13th of October, 2021; the 2nd respondent did not file any process.
The following issues were formulated on behalf of the Appellant from the grounds of appeal and adopted by the 1st Respondent:
ISSUES FOR DETERMINATION
i. Whether the trial Court erred in law when it suomotu held that the Appellant’s suspension of the 1st Respondent pending conclusion of investigations amounted to constructive termination of employment?
(Distilled from Ground 1 of the Notice of Appeal)
ii. Whether the trial Court erred in law when it held that the Appellant failed to prove that the 1st Respondent was involved in any fraudulent transactions?
(Distilled from Grounds 2 of the Notice of Appeal)
ISSUE ONE:
Whether the trial Court erred in law when it suomotu held that the Appellant’s suspension of the 1st Respondent pending conclusion of investigations amounted to constructive termination of employment?
(Distilled from Ground 1 of the Notice of Appeal)It is submitted for the appellant that Courts are bound to ensure that parties are afforded the opportunity to be heard before any finding affecting them is made, in line with the provisions of Section 36 (1) of the Constitution of the Federal Republic, as amended.
That also it is the responsibility of the Court to determine a matter based on issues before it and the reliefs sought, and not to raise issues on behalf of a party, the Court was referred to OJO OSAGIE v. ADONRI (1994) 6 NWLR part 349 and EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (1960) NGSC 1.
That even though the claim of the 1st Respondent was simply that his continued suspension by the appellant was null and void, and also that the 1st Respondent’s post no debit order on his account be lifted, the trial Court suo moto found that the Appellant’s exercise of its right of discipline by suspending the 1st Respondent amounted constructive termination of his employment, on the basis of which it went ahead to make orders directing that the Appellant pay the 1st Respondent one month salary in lieu of notice, without affording the parties the opportunity of addressing the Court on the issue. It is submitted that the trial Court by its action raised a defence for the 1st Respondent, hurting the interest of the appellant in the process by infringing on its right to fair hearing; the Court was referred to KUTI v. BALOGUN (1978) 1 SC53 page 30-31 and A.G. LEVENTIS NIG. PLC v. AKPU (2007) 6 S.C part 1 page 239.
That the parties did not pray the Court to determine whether the 1st Respondent’s suspension amounted to termination, as to warrant any payment of salary in lieu of notice, especially when the 1st Respondent gave contradictory statements to the police as to his involvement in the allegation that gave rise to his suspension.
Learned counsel contends that even if the issue of termination was raised at trial or that the parties had the opportunity to address the Court on it, the appellant operated within the ambit of the law in suspending the 1st respondent up to the time the trial Court delivered its judgment; learned counsel recommended to the Court the authority of LONGE v. FBN PLC (2010) 6 NWLR part 1189 page 1.
That the Appellant did not state any intention to terminate the employment of the 1st Respondent; and that suspension is a disciplinary power exercisable by an employer over his employee in a situation of misconduct, and from the evidence, the Appellant has every justification to believe that the 1st respondent had a case to answer in the allegation of fraudulent tampering with the account of a customer.
That the suspension of the 1st Respondent was to ensure thorough investigation of the allegation and prevent influence, pending the possible prosecution, and it is wrong for the trial Court to interpret it as amounting to constructive termination; learned counsel referred ETAJATA v. OLOGBO (2007) 16 NWLR part 1061 page 554 and OMENKA v. MORISON IND. PLC (2000) 13 NWLR part 683 page 147.
Learned counsel further contends the findings of the trial Court was issued in violation of the Appellant’s right to fair hearing, perverse and therefore liable to be declared null and void.
In response, it is submitted for the 1st Respondent that the trial Court was wrong to have concluded suo moto that the appellant’s suspension of the 1st Respondent pending the conclusion of investigation amounted to a constructive termination of his employment, thereby terminating the employment of the 1st Respondent by a relief not sought by any of the parties. That in addition the trial Court did not give any of the parties the opportunity to address it on that issue, before delivering its decision; OSOKOYA v. ONIGEMO (2018) ALL FWLR part 942 page 424.
It is further submitted that the termination of the 1st respondent’s employment is a relief not sought by any of the parties; as such the Court ought not have granted same; DIBAL v. EGUMA (2018) ALL FWLR part 935 page 1386. Learned counsel further contends that the award of one month’s salary in lieu of notice was faulty in law, because he is entitled to salary up to the termination of his employment.
RESOLUTION OF ISSUE ONE:
The question is, can a Court justifiably raise an issue suo moto, and proceed to resolve it, without giving the parties an opportunity to address it on the issue? The answer is a resounding no.
It is settled that a Court ought not to raise an issue suomotu, without giving the parties an opportunity to be heard thereon, this is more so, with regard to the party that may be adversely affected as a result of the point so raised. The reason forthis is that in our adversarial system of adjudication, Courts should be reluctant to raise issues suomotu, because litigation is not theirs but that of the parties. If a Court raises an issue suomotu it has removed itself from its exalted position of an independent arbiter. This does not mean that a Court of law is totally inhibited from raising issues suomotu. It can do so in relevant circumstances. For instance, a Court of law can raise an issue suomotu, if it is in the interest of justice to do so or where the issue raised will determine the fortunes of the case one way or the other.
There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable for the purpose of determining the case. Though a Court has the jurisdiction to raise an issue suomotu, it does not have the jurisdiction to resolve the issue suomotu. The Court must give an opportunity to the parties to react to the issue by way of address. In Chief OJE v. CHIEF BABALOLA (1991) 4 NWLR (PT. 185) 267, it was held that on no account should a Court raise a point suomotu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties; see also STIRLING CIVIL ENGINEERING (NIG) LTD v. YAHAYA (2005) LPELR-3118(SC); SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR-46404(SC); AKEREDOLU v. ABRAHAM & ORS (2018) LPELR-44067(SC) AND ARAKA v. EJEAGWU (2000) LPELR-533(SC).
Once a Court embarks on such an adventure, the proceeding at the end would be in breach of the parties’ right to fair hearing; see ARAKA v. EJEAGWU (supra), and the decision reached is liable to be set aside. I agree with the Appellant and the 1st respondent, both of whom have vehemently condemned the proceeding at the trial Court; the trial Court ought not to have suo moto raised the issue of the suspension of the 1st respondent, a relief which was not sought by either of the parties; and to compound matters, the trial Court proceeded to determine the issue on its own, without giving the parties an opportunity to address it on the issue.
In appropriate cases, the Court can raise an issue suo moto, for instance, where it is in the interest of justice to do so or where the issue raised will determine the fortunes of the case one way or the other. This often happens where the case cannot be determined one way or the other without resolving the issue. In such cases a Court is competent to raise an issue suo moto to enable it determine the case. Having said that, it has to be borne in mind that, though a Court has the jurisdiction to raise an issue suomotu, it does not have the jurisdiction to resolve the issue suomotu. It must give an opportunity to the parties to react to the issue by way of address; see CHIEF OJE v. CHIEF BABALOLA (1991) 4 NWLR (PT. 185) 267.
It is a novelty for both the appellant and the 1st respondent, as gladiators, to agree that the trial Court was wrong to have raised and resolved the issue of the 1st Respondent’s suspension suo moto; thus creating a pleasant conundrum for the Court. The resolution of which requires that the issue be resolved in favour of both parties, or since the 1st Respondent’s position is the same with that of the Appellant, his agreement be seen as a concession. Either way, the result is that the appeal cannot proceed, for lack of fair hearing.
Section 36 of the 1999 Constitution, as amended, guarantees the right to fair hearing, which embodies the twin pillars of the rule of natural justice, i.e. audi alteram partem and nemo judex in causa sua. This constitutional guarantee requires that a person be entitled to a fair hearing in the determination of his civil rights and obligations. Fair hearing necessarily requires that a person be given a hearing before a decision affecting his rights and obligations is reached. At the risk of repetition, it has to be said, again, at least for emphasis, that a Court is bound by the issues raised by the parties and has no business raising an issue not raised by the parties and resolving the same without affording the parties a hearing on the said issue so raised suomotu by the Court; See ASESA v. EKWENEM(2009) 6-7 SC (PT 11) 5,ASUQUO v. EYO (2013) ALL FWLR (PT 707) 764 and DALEK NIG LTD v. OMPADEC (2007) 2 SCNJ 218. The lower Court effectively breached the parties’ right to fair hearing, as enshrined by the constitution and definitely occasioned a miscarriage of justice.
It is for this reason that issue one is split between both the 1st Respondent and the appellant. The appeal succeeds, atleast in part.
At this point, the appropriate thing to do, in my considered opinion, is to refer back the matter to the chief judge of the National Industrial Court, for a rehearing of the matter by another judge.
A cross appeal was filed against the judgment of Hon Justice R.B. Haastrup on the 21st of October, 2019 five grounds. The grounds shorn of their respective particulars are as follows:
GROUNDS OF APPEAL:
GROUND ONE:
The honourable trial Court erred in law when it held to the effect that: “… I hold that this honourable Court lack the jurisdiction to entertain the claimant’s reliefs v and vi on libel and defamation and claimant’s claims in this regard are refused and accordingly dismissed as this honourable Court lack the jurisdiction to entertain same”
GROUND TWO:
The honourable trial Court erred in law when it held that the 1st cross- respondent has the power to suspend the cross-appellant and that he cannot complain because the admission of guilt discharges the burden of proof placed on the complainant which issue of admission of guilt was raised suomotu by the trial Court without affordingparties the opportunity to address the said issue.
GROUND THREE:
The honourable trial Court equally erred in law when it suomotu without affording parties the opportunity to be heard held that: “The indefinite suspension of the claimant vide Exhibit CW6, in my respectful view amounted to constructive dismissal or termination of his employment from service” and as a result went ahead to terminate the employment of the cross-appellant.
GROUND FOUR:
The honourable trial Court was in error when it suomotu raised and relied on Exhibit CW9C (statement of account) to order the cross- respondents to pay the cross-Appellant his salaries from the month of November, 2017 to the month of May, 2018 which it held was the period covered by Exhibit CW9C as the cross-Appellant has not been able to show that the cross-respondents had continued to pay his salaries after May, 2018 and cannot in the circumstance be entitled to any sums of money claimed after the month of May, 2018.
GROUND FIVE:
The judgment is against the weight of evidence.
The main appeal and cross-appeal are separate and distinct appeals. However, there are instanceswhere the two appeals are intertwined with each other such that a decision in one dispose off the other, as it is in this case; See OWENA MASS TRANSPORT COY. LTD. v. IMAFIDON (2011) LPELR – 4810 (CA) AT 24 – 25 (C-A), where this Court held that:
“The cross-appeal is in law a separate and independent appeal from the main appeal. See UNITY BANK PLC & ANOR v. MR. EDWARD BOUARI (2008) 7 NWLR (PT. 1086) 372 AT 413, PARA. F – G, where the Supreme Court, per TOBI, JSC stated the position of the law thus: “Learned counsel for the appellants argued that the Court of Appeal was wrong in dismissing the cross-appeal summarily without making finding on the issues of law that were raised in the brief of argument. While I concede that a cross appeal is an independent appeal, having a Life of its own in the appellate process, it could have some affinity with the main appeal as they criss-cross. There are instances where a decision of the main Appeal affects and in fact disposes of the crux or fulcrum of the cross appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate Court to go over the argument raised by thecross Appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate Court has the option to dismiss a cross-appeal summarily. ” See also UNILORIN TEACHING HOSPITAL v. ABEGUNDE (2013) LPELR-21375 (CA) AT 50-51 (F-G).
In the instant case, the main issue in both the main appeal and cross-appeal is whether the Appellant’s suspension of the 1st Respondent pending the conclusion of investigation amounted to constructive termination of his employment, which is a relief not sought by either of the parties, and whether the trial Court was right, to have raised and resolved the issue without giving the parties an opportunity to address it on the issue.
Both parties are ad idem on this issue. In view of the fact that the parties agree that the trial Court denied them fair hearing, as a consequence the cross appeal no longer a live issue. It has been rendered otiose.
Accordingly, the matter is referred back to the Chief Judge of the National Industrial Court for reassignment to another judge.
PETER OLABISI IGE, J.C.A.: I agree.
HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by mylearned brother Mohammed Mustapha JCA, was made available to me in draft before now.
Having also perused the records and accorded on insightful consideration to the submissions of learned counsel, I am at one with my learned brother in the lead judgment, that a trial Court cannot raise and determine an issue suomotu without seeking the parties to address him on the issue raised, as doing so is akin to denying the parties the right to be heard.
In the event, I agree that the appeal is meritorious and ought to be allowed. I also agree that the case remitted to the President of the National Industrial Court, for assignment to another judge aside justice A. B. Haastrup.
I make no order as to costs.
Appearances:
G. O. Ivhador, with him, Umer Faruq Hussain For Appellant(s)
Ihearindueme Charles – for 1st Respondent
A. Q. Abass – for 2nd Respondent For Respondent(s)
