IBEDC PLC v. ONIFADE & ANOR
(2022)LCN/16814(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/IB/155/2021
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC APPELANT(S)
And
1. OLUWADEMILADE PIUS ONIFADE (SUBSTITUTED BY THE ORDER OF COURT ON 15TH DAY OF OCTOBER, 2021) 2. NIGERIAN ELECTRICITY LIABILITY MANAGEMENT COMPANY LIMITED RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is fundamental and important, the apex Court said jurisdiction is the life wire of any adjudication and the over-riding importance of jurisdiction cannot be overstated. It is the life blood of any litigation before a Court properly so-called. It is so fundamental that when a Court has no jurisdiction, any action taken by that Court will be a nullity notwithstanding the fact that the proceeding was well conducted. See OSAKUE V. FEDERAL COLLEGE OF EDUCATION ASABA & ANOR (2010) 5 SCM 185, 201-202. SEE ALSO MADUKOLU V. NKEMDILIM (1962) 1 ANLR (PT. 4) 587 and AKERE & ORS V. GOV OF OYO STATE & ORS (2012) LPELR-7806(SC).
The jurisdiction of the lower Court is clearly circumscribed by the 1999 Constitution, relevant aspects of Section 254C provides thus:
“254 (1) Notwithstanding, the provisions of Sections 251, 257, 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 causes and matters –
(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;…
(k) relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”
The lower Court can only exercise jurisdiction if and only if the cause of action relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other related matter. PER NIMPAR, J.C.A.
CONDITION THAT MUST BE SATISFIED BEFORE THE COURT CAN EXERCISE JURISDICTION
Precedent also states that before the Court can exercise jurisdiction there must be a contractual relationship. Generally, employment is a contract or an agreement between parties, I had cause to describe it in the case of MAINSTREET BANK REGISTRARS LTD V. UKANDU (2017) LPELR-43646(CA) as follows:
“Contract of employment is founded on the twin pillars of services and wages, it is on these that a contract of employment rest. A contract of employment is either grounded in statute or common law in which case the employment letter stipulates the terms of contract. The apex Court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIG) LTD & ORS (2008) LPELR- 3052 (SC) described contract of employment in the following way:
“A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and the other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap 198) LFN, 1990.” PER NIMPAR, J.C.A.
THE POSITION OF LAW ON THE CATEGORIES OF EMPLOYMENT
It is also settled that there are different types and categories of employment as espoused by the apex Court in the case of LONGE V. FBN PLC (2010) 6 NWLR (PT. 1189) 7, thusly:
“…every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages benefits are usually contained in the expressed contract of service or implied into it by common law and custom. The nature of employment generally affect the terms of the contract of employment. There are three categories of contracts of employment as follows: (a) Purely master and servant relationship, (b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavour. In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract. In a contract with statutory flavour – the employment is protected by statute. In the event of termination of employment with statutory flavour, strict adherence must be had to the statute creating the employment for statutory provisions cannot be waived.” PER NIMPAR, J.C.A.
WHETHER OR NOT THE COURT CAN ACT ON SENTIMENTS
The cause of action cannot be imaginary or on sentimental basis, Courts don’t act on sentiments. See KALU vs. FRN (2016) LPELR (40108) 1 (SC) and POATSON GRAPHIC ARTS TRADE LTD & ANOR V. NDIC (2017) LPELR-42567(CA) wherein the Court held thusly:
“The justice administered in a Court is not abstract justice conceived by the judex. It is justice according to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations. HUEBNER vs. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT LTD (2017) LPELR (42078) 1 at 58 (SC).” Per OGAKWU, J.C.A. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court sitting in Ibadan and delivered by HON. JUSTICE J.D. PETERS on the 19th March, 2019 in Suit No.: NICN/AB/08/2015 wherein the lower Court held that 1st Respondent is an employee of the Appellant and 2nd Respondent and awarded the sum of N150,000,000.00 against the Appellant and 2nd Respondent as damages for the permanent injuries the 1st Respondent suffered when he worked for PHCN. The Appellant dissatisfied with the decision filed a Notice of Appeal on the 10th day of February, 2021 and an Amended Notice of Appeal dated 7th November, 2021 setting out 6 grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. The Appellant was the 1st Defendant at the National Industrial Court, Ibadan Division, the 1st Respondent’s deceased father was the original Plaintiff at the lower Court and after his demise he was substituted by order of the Court with the present 1st Respondent. The 2nd Respondent was the 2nd Defendant at the lower Court. The 1st Respondent instituted this action via a General Form of Complaint and Statement of Claim both filed and dated the 15th day of September, 2015 and sought the following reliefs:
a. Negligence for the failure of your company to put off the 11kva cable in safe condition to prevent it, from been harmful N50,000,000 (Fifty Million Naira).
b. Cost of pains suffered, burnt, serious bodily injuries and amputation of the hands N50,000,000 (Fifty Million Naira).
c. Loss of enjoyment of life amenities N250,000,000 (Two Hundred and Fifty Million Naira).
d. Permanent disability N500,000,000 (Five Hundred Million Naira). Total claim is N850,000,000 (Eight Hundred and Fifty Million Naira)
e. And also an interest on such damages at such rate for such periods as the Court shall think just.
f. Cost of litigation as assessed by the Honourable Court.
The 1st Respondent also contended that even though his appointment was terminated in September, 2013 and was paid all his severance benefits, he was never compensated for the injury he suffered during the course of his employment. In response, the Appellant alleged that the incident occurred more than a few years before it even came into existence and more importantly, long before it acquired an interest in the National Electric Power Authority and the Power Company holding of Nigeria (PHCN). The Appellant also raised a sole issue before the lower Court, which was that while some of the assets of the defunct PHCN were transferred to the Appellant, the privatization process did not include the transfer of liabilities to the Appellant as the 2nd Respondent is a VEHICLE created under the Electric Power Sector Reform Act to hold and manage all the legacy liabilities of the said PHCN. It was on this basis that the Appellant contended that the responsibility of discharging whatever liability is deemed to be owed to the 1st Respondent belonged solely to the 2nd Respondent. The Appellant and the 2nd Respondent filed their statement of defence separately on the 9th June, 2016 and 24th February, 2017 respectively. The matter proceeded to trial and the 1st Respondent called a sole witness and tendered 18 documents which were admitted as Exhibits CH1-CH18 while the Appellant also called a sole witness and tendered 1 document which was admitted as Exhibit D1. The 2nd Respondent did not call evidence but relied on the evidence of the 1st Respondent in defence of its case. After due consideration, the trial Court entered judgment in favour of the 1st Respondent and awarded the sum of N150,000,000.00 against the Appellant and 2nd Respondent as damages for the permanent injuries the 1st Respondent suffered. The Appellant aggrieved with the said judgment brought the instant appeal.
Pursuant to the rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the Appeal. The Appellant’s amended brief settled by DELE ADESINA (SAN) FCI ARB is dated 23rd February, 2022 and filed on the same day. The Appellant distilled 2 issues for determination as follows:
1. Having regard to the evidence before the lower Court particularly the clear, express, unambiguous and unequivocal admission of the 1st Respondent, whether the lower Court did not reach a perverse decision when it exercised its jurisdiction over the matter, improperly evaluated the evidence before it and came to the conclusion that the 1st Respondent is a staff of the Appellant. (Distilled from grounds 1, 2, 3 and 5)
2. Whether the lower Court did not breach the Appellant’s right to fair hearing when it failed to resolve the sole issue submitted by the Appellant before it, on whether the responsibility for the legacy liabilities of the defunct PHCN should be borne by the Appellant or the 2nd Respondent. (Distilled from grounds 4 and 6)
The 1st Respondent’s brief settled by JOSIAH O. OGUNWALE, ESQ dated 10th March, 2022 filed same day. The 1st Respondent formulated 2 issues for determination, as follows:
1. Whether the Honourable lower Court was right in assuming jurisdiction (Distilled from grounds 1,2,3 and 5)
2. Whether the Honourable lower Court breach the Appellant’s right to fair hearing at the lower Court. (Distilled from grounds 4 and 6).
The 2nd Respondent’s brief settled by DR. MUIZ BANIRE, SAN dated 14th March, 2022 filed same day. The 2nd Respondent formulated 2 issues for determination, as follows:
1. Whether the lower Court was right to have assumed jurisdiction over the instant suit with respect to the Appellant. (Distilled from grounds 1, 2 and 3)
2. Whether the lower Court was right when it entered judgment against the Appellant and the 2nd Respondent. (Distilled from grounds 5 and 6).
Thereafter the Appellant filed a Reply to the 1st and 2nd Respondent’s brief dated 1st April, 2022 and 30th March, 2022 respectively.
APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant contends that the law is trite that all Courts in Nigeria are creature of statutes as the entire scope of their jurisdiction is as prescribed by their establishing Sections in the Constitution and a Court must have jurisdiction throughout the entire proceedings, from the commencement of the suit to the conclusion, there must be no defect in the competence of the Court to hear the matter and deliver its judgment, as any defect will be fatal to the entire proceedings as held in GAFAR V. GOVT OF KWARA STATE (2007) ALL FWLR (PT. 360) 1415, FBN V. ABRAHAM (2008) 18 NWLR (PT. 1118) 172, BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246, ADESHOLA V. ABIDOYE (1999) 10-12 SC 109, UNIVERSITY OF ILORIN V. ADENIRAN (2007) 6 NWLR (PT. 1031) 498, MUSACONI V. ASPINALL (2013) 14 NWLR (PT. 1375) 438, MADUKOLU V. NKEMDILIM (1992) 2 SCNLR 341, SOKOTO STATE GOVERNMENT V. KAMDEX (2007) 7 NWLR (PT. 103) 466, KALEJAIYE V. L.P.D.C. (2019) 8 NWLR (PT. 1674) 365, ADELEKE V. INEC (2020) 11 NWLR (PT. 1724) 17, ONI V. FAYEMI (2020) 15 NWLR (PT. 1746) 59, UMERIEH V. APGA (2020) 4 NWLR (PT. 1713) 1 and TOYIN V. MUSA (2019) 9 NWLR (PT. 1676) 22. Continuing, the Appellant reproduced the evidence of the 1st Respondent under cross-examination as contained in page 986 of the Record to argue that the lower Court lost its jurisdiction to adjudicate on the 1st Respondent’s claim as a result of the 1st Respondent’s clear and express admission of the fact that he was never an employee of the Appellant neither has there ever been any contractual employment between the Appellant and the 1st Respondent and generally, the trial Court would have jurisdiction to adjudicate on the 1st Respondent’s claim as it relates to employer/employee only. That the 1st Respondent failed to meet the required condition precedent for instituting an action of this nature which is proving that there was employment relationship between the 1st Respondent and the Appellant, therefore, the trial Court ought to dismiss the case but went on to deliver a perverse decision. The Appellant relied on INNTRACO V. UBN (2020) 11 NWLR (PT. 1734) 138, ADUSEI V. ADEBAYO (2012) 3 NWLR (PT. 1288) 534, UBA V. JARGABA (2007) 11 NWLR (PT. 1045) 237, NAS LTD V. UBA PLC (2005) 14 NWLR (PT. 945) 421, AL-HASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) 230, THE ESTATE OLUSOLA POPOOLA V. ACCESS BANK PLC (2020) 16 NWLR (PT. 1751) 539, ONOVO V. MBAH (2014) 14 NWLR (PT. 1427) 391, JOHN DAVIDS CONST. CO. LTD V. RIACUS LTD (2019) 16 NWLR (PT. 1697) 143, MOROHUNFOLA V. KWARA TECH (1990) 4 NWLR (PT. 145) 506, MADUKOLU V. NKEMDILIM (SUPRA), APGA V. OHAKIM (2009) 4 NWLR (PT. 1130) 116, Section 20, 123 of the Evidence Act, 2011 and Section 254 (C) (1)(A-M) of the 1999 Constitution (as amended).
It was the argument of the Appellant that the lower Court failed in its duty to properly evaluate the evidence before it and make the appropriate findings because after the 1st Respondent admitted that his accident occurred while PHCN was still in existence and that he was never a staff or an employee of the Appellant, the trial Court ought to have excluded the Appellant by striking out its name or making a positive finding of fact that admission of the 1st Respondent was binding as it was made under cross-examination as held in MTN V. CORPORATE COMMS. INVESTMENT LIMITED (2019) 9 NWLR (PT. 1678) 427, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397, AMAEFULE V. STATE (2012) LPELR-7943, INNTRACO V. UBN(SUPRA), ADEBOWALE V. ADEMOLA (2021) 4 NWLR (PT. 1767) 399, AKPAGHER V. GBUUGU (2015) 1 NWLR (PT. 1440) 209, FREDRICK V. IGBEKWE (2019) 17 NWLR (PT. 1702) 467, ADETULA V. AKINYOSOYE (2017) 16 NWLR (PT. 1592) 492 and FAGUNWA V. ADIBI (2004) 17 NWLR (PT. 903) 544.
Furthermore, the Appellant submitted that the Appellate Court have held that every Court has a duty to act on evidence properly presented to it and also Section 15 of the Court of Appeal Act conferred power on the Court to evaluate the evidence not properly evaluated by the lower Court. The Appellant relied on AKPULE V. AGBEOTU & ORS (1999) LPELR-CA/B/141/99, ANPP & ANOR V. USMAN & ORS (2008) 12 NWLR (PT. 1100) 1, UMOGBAI V. AIYEMHOBA (2002) 8 NWLR (PT. 770) 687, ONWUKA V. EDIALA (1989) 1 NWLR (PT. 96) 182, B.L.L.S COMPANY LIMITED V. M.V. WESTERN STAR (2019) 9 NWLR (PT. 1678) 489, SADIKU V. A-G LAGOS STATE (1994) 7 NWLR (PT. 355) 235, IROM V. OKIMBA (1998) 3 NWLR (PT. 540) 19 and OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26.
The Appellant urged the Court to allow this appeal and set aside the judgment of the lower Court as it affects the Appellant therein.
ISSUE TWO
In arguing this issue, the Appellant submits that the lower Court failed in its duty to observe the constitutional right to fair hearing of the Appellant when it failed, refused and neglected to make a pronouncement and determine one way or the other, the sole issue raised and submitted by the Appellant for determination before the lower Court because it is trite that a Court, not being a final Court has a duty to pronounce or decide on every issue submitted to it for determination as provided in Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), UNILORIN V. ADENIRAN (SUPRA), A.G. LEVENTIS V. AKPU (2007) 17 NWLR (PT. 1063) 416, KATTO V. CBN (1991) 9 NWLR (PT. 214) 126, OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26, DAKWANG V. NJC & ORS (2011) LPELR-CA/J/224/2008(1), MARINE MANAGEMENT ASSOCIATE INC V. NIGERIAN MARITIME AUTHORITY (2012) 3 NWLR (PT. 1333) 506, NATIONAL INSURANCE COMMISSION V. AMINU (2012) 8 NWLR (PT. 1302) 330.
Continuing, the Appellant submits that the lower Court’s failure to make a decision on the sole issue raised by the Appellant constitutes a gross and violent breach of the Appellant’s constitutionally guaranteed right to fair hearing, therefore, the proper order to make is an order setting aside the entire proceedings and judgment of the lower Court as held in X.S(NIG) LTD V. TAISEI (W.A) LTD (2006) 15 NWLR (PT. 1003) 533, UDUMA V. ARUNSI (2012) 7 NWLR (PT. 1298) 55, WILSON V. OSHIN (2000) 9 NWLR (PT. 673) 442, OSHAFUNMI V. ADEPOJU & ANOR (2014) LPELR-23073(CA), FIRST BANK OF NIGERIA PLC V. TSA INDUSTRIES LTD (2010) 15 NWLR (PT. 1216) 247, OLATUBOSUN V. N.I.S.E.R.C (1996) 6 SCNJ, 38, OKAFOR V. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659, OYEYEMI V. COMM, L.G. KWARA STATE (1992) 2 NWLR (PT. 226) 661, OLUMESAN V. OGUNDEPO (1996) 2 NWLR (PT. 433) 628, OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587, IGOIN V. AJOKO (2021) 17 NWLR (PT. 1804) 90, IDAKWO V. EJIGA (2002) 13 NWLR (PT. 789) 166, NEWSWATCH COMM LTD V. ATTAH (2006) 12 NWLR (PT. 993) 145, SALU V. EGEIBON (1994) 6 NWLR (PT. 348) 23, CEEKAY TRADERS LTD V. G.M.C LTD (1992) 2 NWLR (PT. 222) 132, NDUKAUBA V. KOLOMO (2005) 4 NWLR (PT. 915) 411 and OKAFOR V. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659.
The Appellant reproduced paragraph 7-10 at page 61 of the record to submit that during cross-examination the 1st Respondent admitted that upon privatization, all the staff of PHCN were disengaged and the 1st Respondent was not re-engaged by the Appellant, therefore, had the trial Court performed its duty to pronounce on the sole issue of the Appellant, it would have considered Sections 8 and 10 of the Electric Power Sector Reform Act as well as Exhibit D1 to hold that it is the 2nd Respondent that should be liable and not the Appellant. Furthermore, the Appellant urged the Court to grant the reliefs contained in paragraph 4 of the Notice of Appeal dated 7th December, 2021 and allow this appeal.
1ST RESPONDENT’S SUBMISSION
ISSUE ONE
The 1st Respondent submits that it is trite that parties are bound by their pleadings and any evidence which is not derived from facts pleaded goes to no issue and oral evidence cannot vary documentary evidence as held in ANDREW AYEMWENRE ESQ., V. FESTUS EVBUOMWAN (2019) LPELR-47213 (CA), EMEGOKWUE V. OKADIGBO (1973) 4 SC 113, OGBODA V. ADULUGBA (1971) 1 ALL NLR (PT.1) 71, ADIKE V. OBIARERI (2002) FWLR (PT. 131) 1907, ARIJE V. ARIJE & AMP ORS (2018) LPELR-44193, EFIOK & AMP ORS V. ANI AMP & ORS (2013) LPELR-21400. Continuing, the 1st Respondent relied on Exhibits Doc C16, C17, C19 and C20 to submit that he has established that he was the staff of both the Appellant and the 2nd Respondent because it is he who hires that can fire and the Appellant rely on the oral evidence of the 1st Respondent during cross-examination with intent to vary the content of a written document which is against the law. The 1st Respondent relied on ANDREW AYEMWENRE ESQ., V. FESTUS EVBUOMWAN (SUPRA), EFIOK & AMP ORS V. ANI AMP & ORS (SUPRA), SHENA SECURITY CO LTD V. AFROPAK (NIG) LTD & ORS (2008) 9 SCM 169 and IYERE V. BENDEL FEED & FLOURMILL LTD (2008) 12 SCM (PT. 1) 66.
It was the argument of the 1st Respondent that the issue of jurisdiction raised by the Appellant is purely academic as Section 254C (1)(a)(b) and (f) of the 1999 Constitution had settled it and by Exhibits Doc C16, C17, C19 and C20, the 1st Respondent employment with the Appellant has been established, therefore, the trial Court rightly assumed jurisdiction. The 1st Respondent referred the Court to MOBIL PRODUCING NIG UNLTD V. EFFIONG (2013) ALL FWLR (PT. 673) 1942, CHIEF MRS. F. AKINTOLA & ANOR V. MRS. C.F.A.D SOLANA (1986) 4 SC 141, OIL FIELD SUPPLY CENTER LTD V. JOSEPH LLYOD JOHNSON (1987) 2 NWLR (PT. 58) 625, SALAWU AJIDE V. KADIRI KELANI (1985) 3 NWLR (PT. 12) 248, BANK OF THE NORTH LTD & ANOR V. HARUNA ALIYU (1997) 7 NWLR (PT. 612) 622, HENNESSY V. KEATING (1908) 421 L.TR 169, PAYTON & CO V. SNELLING LAMPARD & CO (1901) AC 308, NIGERIA MERCHANT BANK PLC V. MRS. F.F. ONABOLU (1999) 12 NWLR (PT. 630) 302 and ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129.
The 1st Respondent contends that the Appellant did not deny that Exhibits Doc C16, C19 and C20 originated from it, therefore, the Appellant cannot rely on the oral evidence of the 1st Respondent to vitiate the content of the documents as held in BFI GROUP CORP V. BUREAU OF PUBLIC ENT (2013) ALL FWLR (PT. 676) 444, OLUJINLE V. ADEAGBO (1988) 2 NWLR (PT. 75) 238, APROFIM ENGR. CONST. NIG LTD V. BIGOURET (2012) ALL FWLR (PT. 622) 1740 and ALLI V. ALESINLOYE (2000) 4 SCNJ 264.
Furthermore, the 1st Respondent submits that the issue of jurisdiction raised by the Appellant is purely an academic exercise without substance, therefore, it cannot stand and also urged the Court to resolve issue one against the Appellant.
ISSUE TWO
The 1st Respondent submits that it is trite Courts are not allowed to speculate but to act only on evidence before them as held in SEISMOGRAPH SERVICE (NIG) LTD V. OGBENI (1978) 3 SC and ARCHIBONG V. ITA (2004) 1 SC (PT. 1) 108 and the issue raised by the Appellant at the lower Court was purely academics as the Appellant had no counter-claim before the lower Court against the 2nd Respondent upon which such issue can be resolved. Continuing, the 1st Respondent argued that it was the 2nd Respondent who had a counter-claim however, the lower Court dismissed it and it is trite law that a counter-claim is a separate action between parties to determine right of party if exist as held in YAKUBU V. UBA PLC (2012) ALL FWLR (PT. 611) 1468, DRAGETANOS CONSTRUCTION NIG LTD V. FAB MADIS VENTURES LTD (2012) ALL FWLR (PT. 616) 441 and LEKWOT V. JUDICIAL TRIBUNAL (1997) 8 NWLR (PT. 515) 22. Furthermore, the 1st Respondent submits that the lower Court having found that the Appellant had a master-servant relationship with the 1st Respondent and the Appellant fully participated in the proceeding, issue of fair hearing being raised by the Appellant is an afterthought. The 1st Respondent urged the Court to resolve issue two against the Appellant.
2ND RESPONDENT’S SUBMISSION
ISSUE ONE
In arguing this issue, the 2nd Respondent restated the importance of jurisdiction of Court as held in MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374, SKENCONSULT V. UKEY (1981) 1 SC 6, OHAKIM V. AGBASO (2010) 19 NWLR (PT. 1226) 172, BELGORE V. FRN (2021) 3 NWLR (PT. 1764) 503, DURWODE V. STATE (2000) 15 NWLR (PT. 691) 467, COCA-COLA NIG LTD V. AKINSANYA (2017) 17 NWLR (PT. 1593) 74 and CBN V. OODO (2021) 18 NWLR (PT. 1801) 461 to contend that the argument of the Appellant that the trial Court lack jurisdiction to entertain the case of 1st Respondent is misplaced as the Court cannot discountenance the oral testimony of the 1st Respondent because Exhibits C13, C14 and C17 which were tendered by the 1st Respondent obviously connotes that the 1st Respondent was engaged by the Appellant, otherwise, the Appellant would not have disengaged the 1st Respondent from it services and it is trite that documentary evidence is the best form of evidence SALZGITTER STAHU GMBH V. TUNJI DOSUNMU IND. LTD (2010) ALL FWLR (PT. 529) 1024, AKINBISADE V. STATE (2006) 17 NWLR (PT. 1007) 184 and DIVINE IDEAS LTD V. UMORU (2007) ALL FWLR (PT. 380) 1468. Continuing, the 2nd Respondent submits that besides oral evidence of the 1st Respondent cannot contradict Exhibit C14 (letter of acceptance) and C17 (letter of disengagement) because based on the provision of Section 128(1) of the Evidence Act, 2011, it is trite law that oral evidence cannot be used to contradict documentary evidence. The 2nd Respondent relied on OBIAZIKWOR V. OBIAZIKWOR (2008) 8 NWLR (PT. 1090) 551, AGBAREH V. MIMRA (2008) 2 NWLR (PT. 1071) 378 and SAVANNAH BANK (NIG) LTD V. SALAMI (1996) 8 NWLR (PT. 465) 131.
The 2nd Respondent submits that considering Exhibits C14 and C17 before the Court, the contention of the Appellant that the lower Court lacked the jurisdiction to entertain the instant suit upon the oral admission of the 1st Respondent that he was never engaged by the Appellant is completely lacking in merit and therefore, urged the Court to resolve this issue against the Appellant.
ISSUE TWO
The 2nd Respondent submits that the trial Court was wrong to hold that the 1st Respondent was the staff of both the Appellant and the 2nd Respondent at the same time because the Appellant was the one that disengaged the services of the 1st Respondent as result of the Appellant’s takeover of the assets and liabilities of PHCN, thereby assuming all the liabilities of the staff and the 2nd Respondent did not call any witness because the documentary evidence Exhibits C13, C14, C16, C17 and D1 tendered by the 1st Respondent and the Appellant had established the case of the 2nd Respondent as the law is trite that documentary evidence is the best form of evidence SALZGITTER STAHU GMBH V. TUNJI DOSUNMU IND. LTD (2010) ALL FWLR (PT. 529) 1024, AKINBISADE V. STATE (2006) 17 NWLR (PT. 1007) 184, DIVINE IDEAS LTD V. UMORU (2007) ALL FWLR (PT. 380) 1468, EZOMO V. N.N.B PLC (2007) ALL FWLR (PT. 368) 1032 and GOVERNOR OF OGUN STATE V. MR. ADEGBOYEGA ADEOLA COKER (2008) ALL FWLR (PT. 406) 1900.
It was the argument of the 2nd Respondent that upon privatization of PHCN, the Appellant took over the core assets of the PHCN while the 2nd Respondent was purposely established to take over the non-core assets of PHCN which implies that the Appellant automatically takes over the benefit and burden of PHCN and the position of the law is that when a company takes over another company, the company that takes over automatically takes over the burden and benefit of the company that was taken over, therefore the trial Court ought to have entered judgment against the Appellant alone and the Court is urged to resolve this issue in favour of the 2nd Respondent.
APPELLANT’S REPLY TO 1ST RESPONDENT
The Appellant argued that the 1st Respondent tendered his letter of disengagement to distract the trial Court from his express and unambiguous admission that he was an employee of the PHCN and was never engaged by the Appellant as the letter of appointment dated 5th June, 2013 clearly shows that the letter was issued by the Power Holding Company of Nigeria and not the Appellant, therefore the Appellant cannot bear liability of the 1st Respondent, however, the trial Court failed to make a decision on the defence raised by the Appellant and that amounts to denial of fair hearing as held in KAKIH V. PDP (2014) 15 NWLR (PT. 1430) 347 and AGU V. EZENWA (2020) 10 NWLR (PT. 1732) 233.
The Appellant relied on ADEDOYIN V. A.P. (2014) 11 NWLR (PT. 1419) 415, OFORISHE V. NIGERIAN GAS LTD (2018) 2 NWLR (PT. 1602) 35 and SALE V. STATE (2020) 1 NWLR (PT. 1705) 05 to argue that the statement of a witness under oath is a valid evidence before the Court which the Court has a duty to act on and Counsel submission cannot take place of evidence before the Court, therefore the 1st Respondent’s admission cannot be discountenanced because it was an admission against the interest of the 1st Respondent. The Appellant relied on OGBU V. STATE (2003) FWLR (PT. 147) 1102 and UZIM V. STATE (2019) 14 NWLR (PT. 1693) 419.
Furthermore, the Appellant submits that the 1st Respondent argued that the defence raised by the Appellant was academic and speculative and relied on PLATEAU STATE V. AGF (2006) 3 NWLR (PT. 967) 346, however, it is clear that the defence raised by the Appellant does not fall within the definition of an academic issue because the defence was substantive and the lower Court was obliged to make a decision one way or the other, an obligation which it did not perform. The Appellant urged the Court to resolve the two issues formulated by the Appellant for determination in favour of the Appellant.
APPELLANT’S REPLY TO 2ND RESPONDENT
PRELIMINARY POINT
The Appellant submits that the 2nd Respondent’s argument demonstrated two very clear points which are: A gross misapprehension of the case of the Appellant and a desperate attempt by the 2nd Respondent to escape, avoid and/or evade, the liability for which the 2nd Respondent was created to be responsible for, therefore, the 2nd Respondent argument has fallen short of the standards expected of a legal practitioner as held in OSHIOMOLE V. AIRHIAVBERE (2013) 7 NWLR (PT. 1353) 376. The Appellant summarized the undisputed and uncontroverted points in the case and urged the Court to discountenance the 2nd Respondent’s argument as contained in its brief in its entirety.
The Appellant argued that the 2nd Respondent’s argument that the Court should not rely on the clear and unambiguous admission made by the 1st Respondent under cross-examination because the admission was not made by the 1st Respondent or that the Appellant was mischaracterizing the evidence given by the 1st Respondent himself in the witness box, is misconceived and against the established principle of law that admission against interest is relevant and admissible evidence against the party making the admission as held in OJIEGBE V. OKWARANYIA (1962) ALL NLR 605, IBRAHIM V. SHAGARI (1983) 2 SCNLR 176, ONOVO V. MBA (2014) 14 NWLR (PT. 1427) 391, JOHN DAVIDS CONST CO. LTD V. RIACUS LTD (2019) 16 NWLR (PT. 1697) 143 and Section 125 of the Evidence Act, 2011.
Continuing, the Appellant submits that the 2nd Respondent heavily relied on Exhibits C14 and C17 claiming that the oral evidence of the 1st Respondent cannot vary the contents, however, the oral evidence in question here is not the oral evidence to discredit a document tendered by an adverse but it was evidence elicited from a party under cross-examination, therefore, it is trite that any statement oral or written made by a party in a civil proceedings, and which statement is adverse to his case is admissible against him in the proceedings as evidence against him of the truth of the facts ascertained in the statement as held in ODI V. IYALA (2004) 8 NWLR (PT. 875) 283, SEISMOGRAPH SERVICE LTD V. OGBENEGWEKE (1976) 9-10 SC, AKINTOLA V. BALOGUN (2000) NWLR (PT. 642) 553, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 and INNTRACO V. UBN (2020) 11 NWLR (PT. 1734) 138. The Appellant submitted that it is trite that when a party fails to proffer argument in reply to those made by his opponent, the defaulting party is taken as having admitted those arguments at held in DONALD V. SALEH (2015) 2 NWLR (PT. 1444) 529, OLLEY V. TUNJI (2013) 10 NWLR (PT. 1362) 275, GOLDEN CONSTRUCTION LTD V. STATECO NIG LTD (2014) 8 NWLR (PT. 1408) 171 and MOROHUNFOLA V. KWARA TECH (1990) 4 NWLR (PT. 145) 506.
According to the Appellant, upon the privatization, the Appellant took over the core assets of the PHCN, however, there was no liability of PHCN that was transferred to any of the distribution companies rather the 2nd Respondent was created to manage the legacy liabilities as seen in Exhibit D1. Furthermore, the Appellant submits that it is trite that arguments cannot take the place of evidence no matter how presented as held in NIGER CONSTRUCTION V. OKUGBENI (1987) 4 NWLR (PT. 67) 787, OBODO V. OLOMU (1987) 3 NWLR (PT. 59) 111, CHABASAYA V. ANWASI (2010) 10 NWLR (PT. 1201) 163, AJAYI V. TOTAL (2013) 15 NWLR (PT. 1378) 423, DIVINE IDEAS LTD V. UMORU (2007) ALL FWLR (PT. 380) 1468 and AKINBISADE V. STATE (2006) 17 NWLR (PT. 1007) 184. The Appellant urged the Court to resolve the two issues formulated by the Appellant for determination in this appeal in favour of the Appellant.
RESOLUTION
I have carefully considered the Notice of Appeal, the Record of Appeal and the briefs of learned Counsel in the appeal and from the issues donated by the respective parties, the Court shall adopt the issues distilled by the Appellant for determination in this appeal, that way, the grievances of the Appellant shall be fully determined.
ISSUE ONE
The Appellant asked that having regard to the evidence before the lower Court particularly the clear express, unambiguous and unequivocal admission of the 1st Respondent, whether the lower Court did not reach a perverse decision when it exercised its jurisdiction over the matter, improperly evaluated the evidence before it and came to the conclusion that the 1st Respondent is a staff of the Appellant.
There is an element of jurisdiction referred to in this issue. The Appellant contended that it is clear from the record that there was no employment relationship between the Appellant and the 1st Respondent and the 1st Respondent admitted that he was not employed by the Appellant. The Appellant was created in 2013 while the cause of action arose in 2010. Therefore, going by the accepted principles of employment law, there was clear absence of accepted features as named by the Appellant and other observed facts as follows:
i. There was no employment relationship as a condition precedent and sine qua non to the exercise of the trial Court’s jurisdiction being an Industrial Court;
ii. Facts admitted need no proof;
iii. Evidence procured under cross-examination is as valid and authentic as evidence procured under examination in Chief.
iv. A Court of law is duty bound to and can only act on all pieces of cogent and verifiable evidence properly admitted during the trial in reaching its decision.
Jurisdiction is fundamental and important, the apex Court said jurisdiction is the life wire of any adjudication and the over-riding importance of jurisdiction cannot be overstated. It is the life blood of any litigation before a Court properly so-called. It is so fundamental that when a Court has no jurisdiction, any action taken by that Court will be a nullity notwithstanding the fact that the proceeding was well conducted. See OSAKUE V. FEDERAL COLLEGE OF EDUCATION ASABA & ANOR (2010) 5 SCM 185, 201-202. SEE ALSO MADUKOLU V. NKEMDILIM (1962) 1 ANLR (PT. 4) 587 and AKERE & ORS V. GOV OF OYO STATE & ORS (2012) LPELR-7806(SC).
The jurisdiction of the lower Court is clearly circumscribed by the 1999 Constitution, relevant aspects of Section 254C provides thus:
“254 (1) Notwithstanding, the provisions of Sections 251, 257, 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 causes and matters –
(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;…
(k) relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”
The lower Court can only exercise jurisdiction if and only if the cause of action relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other related matter.
Precedent also states that before the Court can exercise jurisdiction there must be a contractual relationship. Generally, employment is a contract or an agreement between parties, I had cause to describe it in the case of MAINSTREET BANK REGISTRARS LTD V. UKANDU (2017) LPELR-43646(CA) as follows:
“Contract of employment is founded on the twin pillars of services and wages, it is on these that a contract of employment rest. A contract of employment is either grounded in statute or common law in which case the employment letter stipulates the terms of contract. The apex Court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIG) LTD & ORS (2008) LPELR- 3052 (SC) described contract of employment in the following way:
“A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and the other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap 198) LFN, 1990.”
It is also settled that there are different types and categories of employment as espoused by the apex Court in the case of LONGE V. FBN PLC (2010) 6 NWLR (PT. 1189) 7, thusly:
“…every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages benefits are usually contained in the expressed contract of service or implied into it by common law and custom. The nature of employment generally affect the terms of the contract of employment. There are three categories of contracts of employment as follows: (a) Purely master and servant relationship, (b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavour. In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract. In a contract with statutory flavour – the employment is protected by statute. In the event of termination of employment with statutory flavour, strict adherence must be had to the statute creating the employment for statutory provisions cannot be waived.”
The 1st Respondent relied on documentary evidence which are Exhibits C16, C17, C19 and C20 to submit that he has established that he was a staff of both the Appellant and the 2nd Respondent because it is he who hires that can fire while the Appellant relied on the oral evidence of the 1st Respondent during cross-examination with intent to vary the content of a written document which is against the law. The Exhibits named above are not in the name of the Appellant so failing to deny same is not relevant because the documents speak for themselves. The said documents are dependent on the Electric Power Sector Reform Act and PHCN was a holding company established to handle the unbundling of NEPA and the alleged Appellant’s name in the said Exhibits are not the same as the current Appellant, the Appellant as sued is a PLC while the alleged name of the Appellant in the Exhibits represents a successor limited liability company and does not bear PLC. The name on the Exhibits is a vehicle or successor company under the control of PHCN as a holding company, and before the coming into existence of the Appellant. See Section 7 and 8 of the Electric Power Sector Reform Act.
The two cannot be the same, therefore the argument of the 1st Respondent is misplaced, it is too pedestrian to use that argument as a valid legal point. To further contend that answers given under cross-examination cannot be used is preposterous.
The lower Court found that the 1st Respondent was an employee of the Appellant without any letter of employment and in disregard of the provisions of the Electric Power Sector Reform Act. That was a serious error on the part of the lower Court. Meanwhile, throughout the alleged period of the 1st Respondent’s employment, the Appellant was not in existence as PLC, it was Limited Liability owned by Federal Ministry of Finance and the liability was allegedly in existence before the Appellant came into existence. Without a contractual relation of employment, the Appellant ordinarily cannot be liable to a party whom it had no contractual relationship. The only way the Appellant can be liable will flow from the unbundling statute that generated or created the Appellant. If the law transfers any liability to the Appellant, then it will be liable otherwise, liability cannot arise.
Looking at the Electric Power Sector Reform Act, 2005, it provided for the formation of a holding company and PHCN was the product and it has the power to take over from NEPA all functions, liabilities, assets and staff of NEPA and to establish such other companies like the Appellant. The Appellant was so established and was initially held by the Federal Government, See Section 8 of the Electric Power Sector Reform Act, however, the Act also provide for a transfer order to specifically describe employees, assets, liabilities and rights to be handed over to successor companies like the Appellant, see Section 10(5) of the Act. The transfer of liabilities was also specifically mentioned in Section 10 of the Electric Power Reform Act, 2005. On the issue of employees, Section 5 provides thus:
“(1) With effect from the initial transfer date, every person employed by the Authority immediately before that date shall be transferred to the service of either the Commission or the initial holding company, on terms not less favourable than those enjoyed by him immediately prior to his transfer.
(2) The service rendered by an employee transferred pursuant to Subsection (1) of this Section to the Authority shall be deemed to be service with the initial holding company for the purpose of determining employment-related-entitlements as specified in relevant laws of employment in Nigeria.
(3) Until such time as conditions of service are drawn up by the initial holding company or the Commission, as the case may be:
(a) the terms and conditions of service applicable to employees of the Authority shall continue to apply to every person transferred to the initial holding company or to the Commission as if every such person were still in the service of the Authority; and
(b) the initial holding company shall continue to contribute towards a pension scheme to which the Authority was contributing in respect of persons in the employ of the Authority, prior to the initial transfer date.
The Act also went on to limit the time and nature of liabilities to be transferred to the Appellant, Section 14 of the Act says:
An action or other proceeding shall not be commenced against a transferee in respect of any employee, asset, liability, right or obligation that had been transferred to the transferee if, had there been no transfer, the time for commencing the action or other proceeding would have expired.
Now, when the Appellant was incorporated as limited liability company and transformed into the Appellant, the claim of the 1st Respondent was not part of the liabilities transferred. The injury had occurred but there was no Court case pending and none was transferred within the time allowed by the Act, see Section 3(8) of Electric Power Sector Reform Act. The injury occurred in 2010, the 1st Respondent’s employment was terminated in 2013 by PHCN and IBEDC as owned by the Federal Government, he initiated the action in 2015 while the Appellant took over the responsibility of Distribution of Electricity in 2013 after the 1st Respondent had been disengaged and listed liabilities duly transferred. The 1st Respondent under cross-examination said:
“I am aware that the power sector was privatized, I am aware that as a result of that all staff of PHCN including myself were disengaged. After privatization 1st Defendant engaged its own new staff. I was not engaged by the 1st Defendant because of my disability. I have never worked for the 1st defendant.”
I am of the humble opinion that issue of transferred liability in terms of a pending action was not in existence when the Appellant took over some employees and liabilities from the holding company’s successor. More so, there was no contractual relationship between the Appellant and the 1st Respondent by the time he sued for negligence. If there was no contractual relationship and the time limited for transfer of liability concerning staff/employers provided by law had expired, where then would liability arise? Therefore, if liability were to arise from the fact that the Appellant was a successor company, the Electric Reform Act limited the period the liability could exist and after which it would be extinguished. See Section 14 of Act.
The window period allowed for the 1st Respondent to enjoy the principle of transferred liability expired before the action was instituted. Therefore, the lower Court failed to legally connect the Appellant with the cause of action/claim in which it entered judgment against the Appellant.
The cause of action cannot be imaginary or on sentimental basis, Courts don’t act on sentiments. See KALU vs. FRN (2016) LPELR (40108) 1 (SC) and POATSON GRAPHIC ARTS TRADE LTD & ANOR V. NDIC (2017) LPELR-42567(CA) wherein the Court held thusly:
“The justice administered in a Court is not abstract justice conceived by the judex. It is justice according to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations. HUEBNER vs. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT LTD (2017) LPELR (42078) 1 at 58 (SC).” Per OGAKWU, J.C.A.
There was no contract of employment between the parties to warrant the decision. Therefore, the lower Court fell into error and because there was no contract of employment from which the lower Court could exercise jurisdiction and because the period limited for legal remedies during the transition period had lapsed by time the claim was filed, the lower Court erred in holding that there was a relationship and it also had no jurisdiction.
A fundamental feature of jurisdiction mentioned in MADUKOLU V NKEMDILIM (SUPRA) is missing. The jurisdiction spelt out under Section 254C (1) (A-M) of the Constitution relates to labour disputes arising from existing employer/employee relationship which has no place in the alleged relationship between the parties because the condition precedent to the exercise of jurisdiction is the existence of an employer/employee relationship and which is founded on a letter of employment. See MOROHUNFOLA V KWARA TECH (1990) 4 NWLR (Pt. 145) 506 at 521. No letter of employment issued by the Appellant nor contract of service was tendered by the 1st Respondent. I find that the trial Court erred when the Judge held that the 1st Respondent had a contract of service with the Defendants under which he sustained permanent injury. That finding was indeed perverse, it ignored the law and evidence before the Court, because it was not founded on evidence before the Court, not on any precedent or any contract of service. The 1st Respondent’s argument that a contract of employment could be oral and relied on SHENA SECURITY CO. LTD V AFROPAK (NIG) & ORS (2008) 9 SCM 169 at 180, that is trite but in this case the 1st Respondent averred it here that he had a written contract so that argument of oral contract existing between the parties cannot stand. The Judge lacks the power to generate a contract of service where none exists.
The contract of service between the 1st Respondent and PHCN had terminated and cause of action extinguished by law and therefore cannot be revived by the personal opinion of the Judge.
The 1st Respondent slept on his right and only sued when the right of action between him and PHCN had expired by provision of the law, this has the same effect as a limitation of action legislation, the right may expired. It is trite that Limitation Law either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whatever effect it has depends on the particular statute. A Limitation Law forecloses the right of a litigant to enforce a cause of action which he had but for the stipulated time for bringing the action which had become extinguished by effluxion of time. See the case of AMOLEGBE & ORS V. THE REGISTERED TRUSTEES OF THE UNITED AFRICAN TRUSTEES METHODIST CHURCH & ORS.
The overriding purpose of limitation laws is expressed in the Latin phrase – interest rei publicae ut sit finis litium, that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of a particular case. Another factor is the desirability of preventing Plaintiffs from prosecuting stale demands, and protecting Defendants from disturbance after a long lapse of time when they have grown accustomed to their position or lost the evidence to defend it. See EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649, where KALGO, JSC, stated that:
“Where an action is statute barred, a Plaintiff, who might have had a cause of action, loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed.”
See also AMADI V. INEC (2012) LPELR-7831(SC) and OTERI HOLDINGS LTD V. OLUWA & ORS, wherein it was held as follows:
“The purport and essence of a limitation law is that where a Statute of Limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed.” In other words, a limitation law prescribes a period within which an action must be commenced, and so, a Plaintiff, who might otherwise have had a cause of action, loses the right to enforce it by judicial process, as the period of time laid down by the limitation law for instituting such an action has elapsed. See the case of OBA J. A. AREMO II V. ADEKANYE & AMP; ORS (2004) 13 NWLR (PT 891) 572 SC, wherein this Court held that the rationale or justification for the existence of statutes of limitation, includes:
That long dormant claims have more of cruelty than justice in them that a defendant might have lost the evidence to disprove a stale claim and that persons with good causes should pursue them with reasonable diligence.” PER AUGIE, J.S.C.
And the case of ACN & ANOR V. INEC & ORS (2013) LPELR-19991(CA) wherein the Court held:
“Let me state by way of a restatement of the general position of judicial authorities on the application of provisions of limitation laws or statutes, including the Constitution. The general position of the law is that where a statute of limitation prescribes a period within which an action should be brought or maintained, legal proceedings cannot be properly and validly instituted or maintained after the expiration of the prescribed period. Thus, an action instituted or pending after the expiration of the prescribed or limited period is said to be statute barred in law. See Egbe v. Adefarasin (1987) 1 SCNJ 1, Adimora v Ajufo (1986) 1 NSCC 1005 at 1006, (86) 6 SCNJ, 18, Fadare v Attorney General, Oyo State (1982) 4 SC 1, (82) NSCC 52 at 60, Aremo II v Adekanye (2004) ALL FWLR (224) 2113 at 213, Osun State Gov. v Dalami (2007) ALL FWLR (365) 438.” Per GARBA, J.C.A (as he then was).
The Electric Power Reform Act empowered the holding company to create certain companies for different sectors of the holding company to take charge of those areas but they were held or controlled by PHCN until final transfer to buyers of the successor companies who turned them to PLC. All the processes and transformation of the holding company and the successor companies are regulated by the Electric Power Sector Reform Act and it was not considered by the trial Judge in addressing the issue of liability and if any existed.
Flowing from the provision of the Electric Power Sector Reform Act and the evidence before the Court, the 1st Respondent failed to establish his case.
Assuming there was a liability against the Appellant and 1st Respondent, should the 1st Respondent as Claimant initiate his claim under the common law tort of negligence as an employee? Why did he not come under Employee’s Compensation Act which governs compensation to employees for injuries sustained at the place of work? In any case, this is a mere passing comment. The lower Court cannot exercise its powers under the rules of Court in disregard of an Act of the National Assembly. He is bound to take cognizance of it.
I resolve issue one in favour of the Appellant.
ISSUE TWO
Whether the lower Court did not breach the Appellant’s right to fair hearing when it failed to resolve the sole issue submitted by the Appellant before it, on whether the responsibility for the legacy liabilities of the defunct PHCN should be borne by the Appellant or 2nd Respondent.
Before the lower Court, the Appellant formulated a sole issue for determination as follows:
“Whether on the evidence before this Court, the 1st defendant is liable to the claimant’s; in other words, if this Court finds that the claimant is entitled to compensation or damages, whether it is the 1st defendant who is liable to pay such compensation or damages to the claimant.”
An imperative duty has been placed on the trial and penultimate Court to consider, make findings and pronounce on material questions canvassed before them by the parties. See BELLO & ORS V. A.G. OYO STATE (1986) LPELR-764(SC) and JOEL & ORS V. ESIKOMITEBA & ORS (2018) LPELR-49123(CA) wherein the Court held thusly:
“It is established that a Court has a duty to pronounce on all material issues raised before it. However failure to pronounce on all issues raised is not necessarily fatal to the decision of the Court where no miscarriage of justice has been occasioned to the party complaining. See UNITED BANK OF NIGERIA VS NWAOKOLO (1995) 6 NWLR (PT.400).” Per AKEJU, J.C.A. Agreed that Section 36(1) of the 1999 Constitution provides for fair hearing and several authorities that held that a Court should decide issues on the merit so that it will give the Appellate Court the opinion of the trial Court to allow it resolve it without having to remit the case for the resolution of the issue. See HONEYWELL FLOUR MILLS PLC V. ECOBANK (2018) LPELR-45127 (SC) and UDUMA V. ARUNSI & ORS (2010) LPELR-9133(CA):
“Courts of trial and even penultimate Courts have been urged to ensure that as much as possible cases are determined on the merit to obviate the need to send cases back for retrial when they are found to be wrong on the issue of jurisdiction by an appellate Court. See AGBO v. THE STATE (2006) 1 SCNJ 332, MRS. EVANGELINE FOMBO v. RIVERS STATE HOUSING (2005) 5 SCNJ 213, DIOKPA FRANCIS ONOCHIE v. FERGUSON ODOGWU (2006) 2 SCNJ 96. It is only the apex Court which enjoys every other Court in the lower hierarchy is obliged to consider all issues presented before it properly and give an opinion notwithstanding its decision that there is absence of jurisdiction. This is because a full trial of the issues on the merit obviates the need to send cases back for retrial and lessens the waste of valuable financial and human resources. See ALIDU ADAH v. NYSC (2004) 7 SCNJ 374.” Per OGUNWUMIJU, J.C.A (as he then was).
However, the Court below did not adopt any issue distilled by the parties but instead formulated 2 issues from all the issues formulated by all the parties before the lower Court thus:
“1. Whether the case of the Claimant is barred by the provision of the Public Officers Protection Act, Cap P41, Laws of the Federation, 2004.
3. Whether the claimant is entitled to damages for the injury.”
It is also trite that the Court has unfettered right to redraft issues for determination without losing the essence of the main question to be determined. See FRN V. BORISADE (2015) LPELR-24301 (SC) and ADEWALE & ANOR V. A.G. OF LAGOS STATE & ORS (2021) LPELR-54828(CA) wherein the Court held thusly:
“It is settled law that a Court is entitled to reformulate issue or issues in order to give it clarity and bring to the fore the main issues in contention in an appeal. Therefore, where parties have proliferated grounds of appeal and issues for determination in such a way that the issues germane to the determination of the appeal have been obscured, the Court can reformulate the issues. See the case of…” Per UMAR, J.C.A in …
I have viewed the issue for determination by the Appellant and issue 2 formulated by the Court and I find that the arguments proffered by the Appellant can be conveniently determined under the said issue 2 formulated by the Court. The situation frowned upon by the apex Court is where the Court completely ignores the issue formulated and none is formulated by the Court to substitute what the party has presented for determination. Where the issue formulated by the Court is determined, there cannot be any allegation of denial of fair hearing. The complaint here is unfounded the Court having considered the essence of the sole issue of the Appellant under issue 2. The Court is not under any obligation to swallow issues formulated by parties, it can formulate its own issues. The issue donated by the Appellant was determined thus this appeal, because the trial Court on the issue found the Appellant liable and therefore the question of Appellant’s liability was resolved. There was no denial of fair hearing in this case. I find against the Appellant under this issue.
Having considered both issues formulated for determination by the Appellant and having resolved the main issue in favour of the Appellant, the appeal is meritorious and the judgment of National Industrial Court of Nigeria delivered on the 19th March, 2019 by HON. JUSTICE J. D. PETERS is hereby set aside.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading the draft of the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.
I agree with the reasoning and conclusions of my learned brother and I hereby allow this appeal in the manner set out in the leading judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. My learned brother has exhaustively and admirably considered and resolved all the issues in this appeal. I only wish to emphasise the settled position of law that a Court of law must have the requisite jurisdiction before it can adjudicate on any matter.
The Appellant is one of the successor companies to the Power Holding Company of Nigeria (PHCN) which was unbundled by the Federal Government of Nigeria in its privatisation drive. It was incorporated to distribute electricity. The evidence on record is that the original 1st Respondent (now deceased) was not at any time an employee of the Appellant. Indeed, his appointment with the Power Holding Company of Nigeria (PHCN) was terminated in September, 2013 and he was paid all his severance benefits. His case is that he was not compensated for injuries suffered by him in the course of his work and that the Appellant who acquired some of the assets of Power Holding Company of Nigeria certainly acquired liabilities too.
There is evidence on record that the 1st Respondent did not institute any action against the Power Holding Company of Nigeria before it was dissolved. It therefore does not accord with reason that his compensation will form part of liabilities transferred to the Appellant. In any event, a community reading of the provisions of Sections 10(5), (7) and 14 of the Electric Power Sector Act, 2005 makes it clear that an action which has not been transferred to the Appellant shall not be commenced against it in respect of any employee, asset, liability, right or obligation.
The jurisdiction of the National Industrial Court (the lower Court), extends to the exclusion of any other Court in civil cases and matters relating to or connected to any labour, employment, the conditions of service of labour, employee, worker and matters incidental thereto or connected therewith. The jurisdiction further extends to civil cases and matters relating to or connected with the conditions of service including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. See Section 254C of the 1999 Constitution of the Federal Republic of Nigeria (as amended); COCACOLA NIGERIA LIMITED VS. AKINSANYA (2017) 17 NWLR (PT. 1593)74, SKYE BANK NIGERIA PLC VS. IWU (2017) 16 NWLR (PT. 1590)24.
It is clear from the foregoing that the key to activating the jurisdiction of the National Industrial Court is the existence of an employment relationship between the parties. In this case, there is none. The lower Court therefore lacked jurisdiction to hear and determine the action as it did.
The fundamental nature of jurisdiction is that it does not exist in vacuum because all Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or some specific statute. No Court can assume jurisdiction unless empowered by the Constitution or a statute. A trial conducted without jurisdiction is a waste of precious judicial time. The whole proceedings no matter how well conducted and decided would ultimately be declared a nullity. See BOKO vs. NUNGWA (2019) 1 NWLR (PT. 1654) 395, NIGERIAN NATIONAL PETROLEUM CORPORATION VS. ORHIOWASELE (2013) 13 NWLR (PT. 1371)211, OSOH VS. UNITY BANK PLC (2013) 9 NWLR (PT. 1358)1.
In UMANAH VS. ATTAH (2006) 17 NWLR (PT. 1009)503 AT 525, PARAGRAPHS E-F, the Supreme Court, per Tobi, JSC held as follows:
“Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principles to repair it because lack of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike it out. No more and no less. The position of the law is as hard and as strict as that.”
The proceedings of the lower Court and the judgment predicated thereon are null and void. The lower Court lacked jurisdiction to hear and determine the 1st Respondent’s case.
It is for the foregoing and the fuller reasons given in the leading judgment that I also hold that this appeal has merit. It is accordingly allowed. I abide by the consequential order in the leading judgment.
Appearances:
Ademola Adesina, with him, I. Obasunloye and M.O. Ishola. For Appellant(s)
J. O. Ogunwale, with him, L. O. Raheem – for 1st Respondent.
Oluwaseun Sofonwa holds the brief of Adebayo Badmus – for 2nd Respondent. For Respondent(s)
