ISHEMBER JOB KALIBU v. THE BENUE STATE PLANNING COMMISSION & ORS
(2019)LCN/13085(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/MK/213/2014
Justices
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
ISHEMBER JOB KALIBUAppellant(s)
AND
1. THE BENUE STATE PLANNING COMMISSION
2. THE HONOURABLE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, BENUE STATE
3. THE CLERK OF BENUE STATE HOUSE OF ASSEMBLY
4. THE BENUE STATE HOUSE OF ASSEMBLY
5. THE EXECUTIVE GOVERNOR OF BENUE STATERespondent
RATIO
THE RIGHT TO FAIR HEARING
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees a persons right to fair hearing in the determination of his civil rights and obligations. One of the components of the right to fair hearing is that a party to litigation must be heard or must be given an opportunity to be heard before the determination of his civil right or obligation. The true test of fair hearing is –
the impression of a reasonable person who was present at the trial Court whether, from his observation, justice has been done in the case. Ademola, CJN, in Alhaji Ishiyaku Mohamad V Kano N.A. (1968) All NLR 411, 413.
In the instant matter, the original statement of facts which was filed on 4/9/2012 was by the order of Court made on 29/10/2013 amended. What was the effect of the amendment? In the case of Rotimi V MacGregor (1974) 11 and 12 SC (Reprint) 102, 116 Coker, JSC, quoted with approval the observation of Hodson, L J, in Warner V Sampson (1959) 1 Q.B. 297, 321 as follows:
I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried
Therefore the effect of an amendment is that it takes effect from the date of the original process. What stood before the amendment is no longer material before the Court and no longer defines the issues to be tried. See Uzodinma V Izunaso (2011) 17 NWLR (Pt. 1275) 30, 88, Bello v INEC (2010) 8 NWLR (Pt. 1196) and Okafor V Bende Divisional Union, Jos Branch (2017) 5 NWLR (Pt. 1559) 385, 407. PER EKANEM, J.C.A.
WHETHER OR NOT EVERY MISTAKE COMMITTED BY A JUDGE WILL LEAD TO A REVERSAL OF A JUDGEMENT
It is the law that it is not every mistake or slip committed by a Judge in his judgment that will result in the appeal being allowed, that will lead to the reversal of a judgment. It is only where the mistake made is substantial and has occasioned a miscarriage of justice that it becomes fatal to the judgment. Leaders of Company Ltd. Anor v. Bamaiyi (2010) LPELR-1771(SC); Adewumi & Anor. AG of Ekiti State & Ors (2002) LPELR-3160(SC); Okonji & Ors v. Njokanma & Ors (1999) LPELR-2477(SC); Sani v. State (2017) LPELR-43475 (SC). PER OTISI, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):At the National Industrial Court, Makurdi Judicial Division (the trial Court) the appellant filed a claim against the respondents numbered as NICN/MKD/12/2012. The claim was accompanied by a statement of facts establishing cause of action. In the course of the proceedings, the appellant applied, by way of a motion on notice, for leave to amend his statement of facts establishing cause of action. On 29/10/2013, the trial Court granted the application and also ordered that the amended statement of facts already filed be deemed as having been properly filed and served. The respondents filed a statement of defence to which the appellant responded by filing a reply.
After hearing and taking of addresses of counsel, the trial Court on 14/7/2014 dismissed the claim.
Aggrieved by the decision, the appellant filed an appeal to this Court by the means of a notice of appeal filed on 25/9/2014. The notice of appeal bears only one ground of appeal which, shorn of its particulars, reads:
The trial Court erred in law and occasioned a miscarriage of justice when it denied
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Appellant his constitutional right to fair hearing by ignoring the Amended Statement of Fact Establishing Cause of Action filed on 4th September, 2012.”
Parties filed and exchanged briefs of argument as follows:
(1) The appellants brief of argument filed on 1/12/2014.
(2) The respondents brief of argument filed on 28/1/2013 and deemed duly filed and served on 4/3/2015.
(3) Appellants reply brief filed on 5/3/2015.
At the hearing of the appeal on 5/3/2019, the appellant, appearing in person, adopted the briefs filed by him and urged the Court to allow the appeal.
David Atum Esq. (Director Legal Department, Benue State House of Assembly) adopted respondents brief of argument in urging the Court to dismiss the appeal.
In the appellans brief of argument, a single issue is formulated for the determination of the appeal, viz;
Whether the constitutional right to fair hearing can be validly denied a person in the determination of his civil rights and obligations by a Court established under the Nigerian Constitution?
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In the respondents brief of argument the following three issues are presented for the determination of the appeal:
3.01 Whether considering the judgment delivered by the trial Court on the 14th of July 2014, it can rightly be said that the said judgment was based on an Abandoned Original Statement of Facts and not on the Amended Statement of Facts of the Appellant at the trial Court.
3.02 Whether upon proper appraisal and holistic views of the judgment of the trial Court delivered on the 14th July, 2014, it can rightly be said that the Appellant was denied fair hearing.
3.03 Whether the judgment of the trial Court delivered on the 14th of July, 2014 in this case, Hon. Justice Waziri Abali occasioned any miscarriage of justice.”
It is to be noted that out of only one ground of appeal in the notice of appeal, respondents counsel formulated three issues. One ground of appeal can not give birth to more than one issue. Where that occurs, it is said to amount to proliferation of issues. The brief of argument of the respondents suffers from proliferation of issues. On the other hand, the lone issue formulated by appellants counsel is academic and imprecise.
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Consequently, I shall undertake the formulation of issue for the judicious and proper resolution of the appeal, and for the sake of precision. See Okonkwo V Okoye (2009) 6 NWLR (Pt. 1137) 350, 363 and Okeke V State (2016) 7 NWLR (Pt. 1512) 417, 434.
The lone issue for the determination of the appeal is:
Was the appellant denied fair hearing by the trial Court?
Appellant submitted that where a Court proceeds to determine a case already abandoned by a litigant, it can be rightly be said that such a litigant neither received a fair hearing nor was he heard as prescribed by law. He referred toNwokoro V Onuma (1990) 3 NWLR (Pt. 136) 22, Okonkwo V Okonkwo (1998) 10 NWLR (Pt. 571) 554 and Adeogun V Fasogbon (2011) All FWLR (Pt. 576) 485. He referred to the record of appeal to show that the trial Court granted an application to amend the statement of facts and also deem the amended statement of facts as properly filed and served. He contended that the original claim therefore stood abandoned and only the amended claim represents appellants claim. In support of his position, he referred
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to and relied on several cases includingRotimi V MacGregor (1974) 11 SC 114.
It was his position that a grave miscarriage of justice was occasioned when the judgment of the trial Court was devoted solely to the abandoned claim in complete disregard of the order of amendment. Thus, he stated, the case of appellant was not considered by the trial Court. He then pointed out what he termed as few instances of grave miscarriage of justice in the judgment of the trial Court. He argued that a judgment that fails to address his claim should not be allowed to bind him.
Continuing, he contended that the reproduction of appellants final address in the judgment of the trial Court did not compensate for the non consideration of appellants amended pleading and evidence. He urged the Court to set aside the judgment of the trial Court and re hear appellants case pursuant to Section 15 of the Court of Appeal Act.
On his part, respondents counsel submitted that it could not be rightly canvassed that the judgment of the trial Court was based on appellans abandoned original statement of facts. He stated that in
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several parts of the judgment, the trial Judge made copious references to the amended statement of facts. He proceeded to set out such references and added that the trial Judge did not make reference to paragraph 31(e) of the abandoned original statement of facts, contrary to the assertion of appellant. He referred to paragraph 35(b) of the amended statement of facts which is as follows:
In the absence of Benue House of Assembly Commission and the purported termination be 3rd Defendant on the 25/07/2012 of claimants appointment as a legislative staff intern is null, void and of no effect,”
and argued that it presupposes the existence or otherwise of the Commission. He therefore posited that there was nothing erroneous in the holding of the trial Court that the establishment of the Commission is the preserve of the Benue State Government.
Counsel submitted that even if the perception of the appellant is true that the trial Court erred, it is not every error that can affect a decision. He submitted that fair hearing is not a cut and dry principle which parties can in the abstract, apply to their comfort and
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convenience. He re iterated that the trial Court did not ignore appellants amended statement of facts. He set out what he termed as proofs of his stand.
In his reply, appellant posited that the respondents by their argument confirmed that the amended claim was not heard by the trial Court.
Resolution
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees a persons right to fair hearing in the determination of his civil rights and obligations. One of the components of the right to fair hearing is that a party to litigation must be heard or must be given an opportunity to be heard before the determination of his civil right or obligation. The true test of fair hearing is –
the impression of a reasonable person who was present at the trial Court whether, from his observation, justice has been done in the case. Ademola, CJN, in Alhaji Ishiyaku Mohamad V Kano N.A. (1968) All NLR 411, 413.
In the instant matter, the original statement of facts which was filed on 4/9/2012 was by the order of Court made on 29/10/2013 amended. What was the effect of
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the amendment? In the case of Rotimi V MacGregor (1974) 11 and 12 SC (Reprint) 102, 116 Coker, JSC, quoted with approval the observation of Hodson, L J, in Warner V Sampson (1959) 1 Q.B. 297, 321 as follows:
I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried
Therefore the effect of an amendment is that it takes effect from the date of the original process. What stood before the amendment is no longer material before the Court and no longer defines the issues to be tried. See Uzodinma V Izunaso (2011) 17 NWLR (Pt. 1275) 30, 88, Bello v INEC (2010) 8 NWLR (Pt. 1196) and Okafor V Bende Divisional Union, Jos Branch (2017) 5 NWLR (Pt. 1559) 385, 407.
It was contended by appellant that the learned Judge based his judgment on the original statement of facts which, as stated above, had been amended. He submitted that it amounted to not considering his case thus amounting to denial of fair hearing. Respondents counsel took a contrary stance, asserting that the trial Court made copious references to the amended statement of facts.
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At page 260 of the record of appeal (that is page 2 of the judgment) the learned trial Judge at the commencement of his judgment set out the prayers of the appellant as contained in the original statement of facts. His Lordship made no reference to the fact that there was an amendment of the statement to rejig some old reliefs and incorporate a new one.
The references to the amended statement of facts by the learned trial judge at pages 262, 266, 267, 268 and 270 of the record of appeal (pages 4, 8, 9, 10 and 12 of the judgment) are but a summary of the submissions of appellant and not His Lordships assessment of the case of the appellant.
It is at page 278 of the record of appeal that the learned trial judge, in determining whether or not the suit of the appellant was caught by the Public Officers Protection Law of Benue State, referred to paragraphs 24, 25 and 26 of the amended statement of facts. His Lordship thereafter decided that the claim was not caught by the said limitation law. This point is not an issue in this appeal so I will not consider it any further.
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It is obvious that the trial Court referred to the abandoned or original statement of facts in its judgment. This is clear from what is set out as the reliefs in the introductory part of its judgment. The reliefs set out therein were quoted verbatim from the abandoned statement of facts and not the amended statement of facts. At page 282 of the record, the trial Court stated as follows:
Reliefs (b) and (e) the claimant wants the Court to declare that in the absence of a Benue State House of Assembly Service Commission, the termination of claimants appointment by 3rd defendant is null and void
As for the declaration for establishment of Benue State House of Assembly Commission, that is the preserve of the Benue State Government, and has nothing to do with this Court. Therefore the reliefs (b) and (e) also fails.”
The above is obviously a reference to reliefs (b) and (e) in the original statement of facts and not the amended statement of facts. In the original statement of facts, reliefs (b) and (e) state:-b. A DECLARATION that in the absence of the Benue State House of Assembly Commission, the purported termination of
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the appointment of the 2nd Claimant by the 3rd Defendant vide letter dated 25th July, 2012 is null, void and of no effect.
e. A DECLARATION that the establishment of the Benue State House of Assembly Commission is long overdue.
In the amended statement of facts prayers (b) and (e) read:
b. A DECLARATION that in the absence of the Benue State House of Assembly Commission and the expiration of the internship period specified in the Letter of Appointment of the Claimant dated 28th February, 2008, the purported termination by the 3rd Defendant on 25th day of July 2012 of claimants appointment as a legislature Staff Intern is null, void and of no effect
e. A DECLARATION that the exclusion of the Claimant from the terms stated in the appointment letter dated 28th February, 2008 executed by the 5th Defendant and addressed to all the Legislative staff interns is discriminatory and unjustified same not being in accordance with any Law.”
I have underlined portions of the prayers quoted above to show the difference between prayers b and e in the original and amended statements of facts. It was on the basis of the
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above, among others, that the appellant contended that the trial Court did not consider his case thus amounting to a denial of fair hearing.
In the case of Nwokoro v Onuma supra, cited by appellants counsel, at the Court of Appeal, appellants counsel adopted his amended brief of argument. In its judgment, the Court of Appeal referred to the original appellants brief of argument, unaware or oblivious of the fact that it was the amended appellants brief of argument that was adopted. It dismissed the appeal. At pages 32 33 of the report, Karibi – Whyte, JSC, opined that-
A party is entitled as of right to the consideration of his case before the Court. Thus where the Court has relied on the case abandoned by the litigant in the determination of his grievance before it, it will not only be a misuse of the expression that he has been given a fair hearing, it will also be more accurate to say that he was not heard at all
That the appellant had a hearing in the instant case cannot be disputed. What is being disputed is that the hearing was fair to appellant as he conceived his case, and on the case he
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presented. It was the result of an error by the Court itself that appellants case was considered on the arguments he had already abandoned. The effect of the error was that the case presented by the appellant was not considered. It is difficult to conceive that a reasonable man who present at the trial and observing would agree that justice had been done in the case to the appellant.”
Appellant urged this Court to apply the case of Nwokoro v Onuma supra to this case for the reason that the trial Court did not hear him, having considered his case on the abandoned statement of facts, instead of the amended statement of facts. In the case of Adeogun v Fasogbon (2011) All FWLR (Pt. 576) 485, one of the issues for determination was whether in determining the cross appeal of the appellant, the Court of Appeal was right in relying on the notice of cross appeal that had been abandoned. After reviewing the record, the Supreme Court, per Chukwuma Eneh, JSC, observed at page 503 that-
Nonetheless, from the abstract of the record it has also been unequivocally demonstrated that the lower Court
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notwithstanding the accidental slips in referring to the abandoned original notice of cross appeal instead of the amended notice of cross appeal has all the same dealt with the appellants case by considering all the material issues as raised for determination in this matter as per the appellants brief of argument.”
The Supreme Court therefore refused to vitiate or fault the decision of the Court of Appeal solely on that ground. This was based on the time honoured position of the law that it is not every slip or error in a decision that will lead to its reversal except it results in miscarriage of justice and also that every case must be viewed from its peculiar facts and circumstances. See page 501 of the report. See also Okonkwo v Okonkwo (1998) 10 NWLR (Pt. 571) 554.
In this instance, at page 278 of the record of appeal, the learned trial judge in holding that the case of the appellant was not caught by the Public Officers Protection Law of Benue State, referred to paragraph 24, 25 and 26 of the amended statement of facts.
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Furthermore, I have read both the original statement of facts and the amended statement of facts at pages 4 12 and pages 189 198, respectively, of the record of appeal. It is clear to me that what is new in the amended statement of facts may be summarized as follows:
1. Discrimination against the appellant by reason of the fact that all the interns have been absorbed except him. See paragraphs 26 31 of the amended statement.
2. Purported disengagement of the appellant paragraph 24 of the amended statement.
3. Insertion in relief b of the words, and the expiration of the internship period specified in the Letter of Appointment of the Claimant dated 28th February 2008.
4. A new prayer 35 (e), namely;
A declaration that the exclusion of only the Claimant from the terms stated in the appointment letter dated 28th February, 2008 executed by the Defendant and addressed to all the Legislative Staff Interns is discriminatory and unjustified same not being in accordance with any law.”
At page 280 of the record, the trial Judge found that serving the appellant letter of disengagement on 25/7/2012 after the expiration of the period of internship
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(in March 2010) was in order. This was apparently a response by the trial Court to the case set out in the amended statement of facts regarding the disengagement of the appellant. Whether or not the decision is right is not an issue in this appeal, but it deals with the issue/s raised in paragraphs 24 and 35(b) of the amended statement of facts.
At page 281 of the record, the trial Judge stated-
The claimant pleaded that he was discriminated against, and his colleagues in the same programme have been absorbed into the civil service, except himself. Well, he who alleges must prove
It is therefore my opinion that the claimants appointment was terminated justifiably.”
Certainly, the trial Judge was referring to the averments of the appellant in paragraphs 26, 27, 28, 29, 30, 31 and 35(e) of his amended statement of facts that his disengagement was discriminatory and unjustified.
In the light of the above, it is my humble view that though the trial Court erred in referring to the original statement of facts in its judgment, the error did not result in the case of the appellant as set out in his
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amended statement of facts not being considered. This is because the learned trial judge dealt with all the issues that arose from the said process. The appellant can not therefore rightly say that he was not heard and that he was denied fair hearing. Any reasonable person who was present at the trial Court and observing would not be amused by the slip of the trial Court but would agree that justice has been done to the appellant. See Adeogun V Fasogbon supra.
I therefore enter a negative answer to the lone issue for determination and resolve it against the appellant.
The appeal is without merit and I therefore dismiss it. I affirm the decision of the trial Court
The parties shall bear their costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother, Ekanem, J.C.A.
The reasoning and conclusion are in consonance with my views on the issues raised in the Appeal, which thereby leads me to adopt the reasoning and conclusion as my own.
Thus, for those reasons given in the lead Judgment, I also dismiss the Appeal. I endorse the consequential orders made therein, inclusive of the order as to costs.
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ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Joseph Eyo Ekanem, JCA dismissing this appeal. I am in agreement with the reasoning and conclusions therein.
It is the law that it is not every mistake or slip committed by a Judge in his judgment that will result in the appeal being allowed, that will lead to the reversal of a judgment. It is only where the mistake made is substantial and has occasioned a miscarriage of justice that it becomes fatal to the judgment. Leaders of Company Ltd. Anor v. Bamaiyi (2010) LPELR-1771(SC); Adewumi & Anor. AG of Ekiti State & Ors (2002) LPELR-3160(SC); Okonji & Ors v. Njokanma & Ors (1999) LPELR-2477(SC); Sani v. State (2017) LPELR-43475 (SC). The Appellant has not shown that there was any miscarriage of justice occasioned to him by the slip of the trial Judge.
The appeal is without merit. I also dismiss the appeal and affirm the judgment of the lower Court.
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Appearances:
Ishember Job KalibuFor Appellant(s)
David Alum, Esq. (Director, Legal Department, Benue State House of Assembly) with him, J. A. Okwe, Esq.For Respondent(s)
>
Appearances
Ishember Job KalibuFor Appellant
AND
David Alum, Esq. (Director, Legal Department, Benue State House of Assembly) with him, J. A. Okwe, Esq.For Respondent
