MUSA RAIMI OYEWOLE & ORS v. OLUKUNMI ADEDEJI
(2014)LCN/6821(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of February, 2014
CA/I/289/2008
RATIO
WORDS AND PHRASES: GROSS MISCONDUCT
Gross-misconduct is defined as a serious misbehavior in workplace: behavior in the workplace that is illegal or is such a clear and serious violation of company rules that the employee may be dismissed immediately. (Encarta Dictionaries)
“Gross Misconduct” in this appeal clearly refers to the alleged fraudulent tempering with trade customer’s account “fraudulent” is an element of criminality and cannot be treated as a “misconduct” merely determinable by the employer as contended by the learned Counsel for the Respondent.
By its conduct, it is clear that the dismissal of the Appellant was for an illegal conduct connoting criminality. The argument of the learned counsel for the Respondent at page 2 paragraphs 4.02-5.02 are untenable.
“Misconduct” is defined by the wrongful act of the servant and the response of the employer; these are what the court look at to determine whether there has been “gross misconduct” and whether there has been wrongful dismissal. The case of Anakism v. Union Bank of Nigeria Plc (1994) 1 NWLR (pt. 322) 557 @ 569 & UBN Ltd. v. Ogboh (supra). relied upon by the Respondent is distinguishable and are relevant in an aspect only of the case at hand. Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
MUSA RAIMI OYEWOLE & ORS Appellant(s)
AND
OLUKUNMI ADEDEJI Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Oyo State High Court holden at Ibadan per Hon. Justice M. L Abimbola (J), delivered on the 26th day of November, 2007 against the Appellants as Defendants and in favour of the Respondent as plaintiff.
The parties shall hereafter be referred to simply as Appellants and Respondent respectively.
The Respondent in a writ of summons sought the following reliefs:
(1) A declaration that the Plaintiff are entitled to statutory right of occupancy over a piece or parcel of land situate, lying and being at Fasoro Village Ibadan, the survey plan of which was filed as paragraph 3.
(2) An order of perpetual injunction restraining the defendant, his servants and any other person claiming through him or under him from committing further acts of trespass on the said land.
(3) Further order or other reliefs.
The case of the Respondent as garnered from his pleadings are that the land in dispute was originally settled upon by his grandfather named Fasoro several years after the cessation of the intertribal wars of those days.
On the contrary, the Appellants contend that the said land in dispute was granted to their grandfather named Babalola Akano by one Farinu, a junior brother to one Madam Aina who begat their grandfather.
Briefs were filed, exchanged and amended and the suit proceeded to hearing. Judgment was entered in favour of the Respondent but without an order of injunction as claimed. (See pages 83-97 of the record).
The Appellants felt agitated with the decision of the learned trial Judge and filed a notice of appeal which was subsequently amended with the leave of this court granted on the 27th January, 2011 and filed on the 1st February, 2011.
Pursuant to the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011, the Respondents incorporated and argued in his brief of argument a Notice of Preliminary Objection. He raised four grounds of objection and argued them seriatim as follows:-
First Ground of Objection
The first ground of objection is that the Appellant filed his Appellant brief of argument out of time and contrary to the provisions of Order 12 and Part 11 Third schedule of the Rules of the Court of Appeal, 2011. The Appellant failed to pay the penalties as prescribed therein. That for this reason the Appellant’s amended brief of argument dated the 15th February, 2011 but filed on the 11th April, 2011 is without any foundation and of no moment because it is trite that no one can put something on nothing and expect it to stay. (Refers Macfoy V. UAC (1962) AC 152 @ 160; Madukolu v. Nkemdilim (1962) 1 All NLR 595 @ 597; Onwugbufor v. Okoyi (1996) 1 NWLR (Pt.424) 252 @ 292).
It is the submission of the learned Counsel that the jurisdiction of this court is ousted by the failure to pay the penalty assessed at the sum of twelve thousand eight hundred naira (N12, 800.00) only for a delay of one hundred and eighty (180) days.
In response of which the learned Counsel for the Appellant, stated that
“the present Counsel was brief after the filed was withdrawn… and there is no note that the Counsel had incurred any penalty…in order not to delay the hearing of this appeal any further, the penalty assessed at N12,800.00 by the Counsel to the Respondent has been paid and receipt attached to this Brief of Argument”
The response of the learned Counsel constitutes an admission to the defect in the Appellant’s brief. The receipt not having been annexed nor exhibited as alluded to by the learned Counsel, the Appellant’s brief is defective and cannot be a proper instrument for the determination of this appeal.
Second Ground of Objection
That the original statement of defence dated 21st February, 2002 at pages 39-41 of the record of appeal was filed and signed by Abiodun O. Bamiteko & Co. and not signed by a Legal Practitioner recognized in Nigeria under sections 2 (1) and 24 of the Legal Practitioners Act, Cap L11 Laws of the Federation of Nigeria 2004. The said statement of defence is therefore incompetent and should have been struck-out by the trial court when writing his judgment, therefore, making this case undefended ab initio. (Refers Okafor v. Nweke (2007) 5 SCM 180 186-187; Oketade v. Adewunmi (2010) 2-3 SC, (Pt.1) 140 @ 147).
In response, the learned counsel for the Appellant admits this fundamental defect but seeks refuge under an amendment of the said process made on the 9th day of January, 2006. The learned Counsel submits that once an amendment is ordered what stood before an amendment of whether a writ of summons of the pleadings is no longer material before the court and no longer defines the issues to be tried. The learned counsel cites a plethora of cases among which are, Alhaji (Chief) Sunmonu Agbabiaka v. Akibu Okanlawon Saidu & Ors (1998) 7 SCNJ 305 @ 320; Osita C. Nwosu v. Imo State Environmental Equitation Authority (1990) 4 SCNJ 97 @ 114, Enigbekan v. American International (1994) 18B LRCN 285 @ 314)
It is necessary to allude to the provisions of order 18 Rule 3 (2) of the Court of Appeal Rules, 2011 which requires that cases cited and rely upon must include the summary of decisions in such cases. Making out a long list of cases without a summary of such is therefore not in compliance with the said rules.
It is further the submission of Counsel that the Respondent having failed to raise the issue of competence at the trial court are taken to have waived their rights to complain.
The learned Counsel for the Appellant is clearly mistaken on the effect of amendment on a process, amendment does not remove a fundamental defect. It is the learned Counsel for the Respondent who is right in submitting that
“…no amendment can cure an incompetent process of court which is void ab initio like the original statement of defence in question and therefore the so-called Amended Statement of defence in this case is of no moment…
The legal parlace is that you cannot put something on nothing and expect it to stand. (Refers Macfoy v. UAC (1962) AC 152 @ 160, Nduba v. Appio (1993) 5 NWLR (Pt.292) 201 @ 219, Africa Mining Coy Ltd v. NIDB Ltd (2000) 2 NWLR (Pt.640) 618 @ 629).
The argument of the learned Counsel for the Appellant in paragraph 2.03 in the Appellant Reply Brief and on the authority of the cases cited therein is insupportable by the said cases which are applicable only when the original process amended suffered from no fundamental defect. The issue raised in this leg of objection is one that can be raised at any stage being one that hinges on the jurisdiction of the court. In the case of Military Governor of Ondo State & Ors v. Kolawole & 4 Ors (2008) 4-5 SC (Pt.11) 158 @ 172, the Supreme Court held that:-
“it is trite that the issue of jurisdiction by whatever name and under any shade, can be raised at any stage, it can be raised viva voce or the court can raise it suo moto”
(See also Nigerian Deposit Insurance Corporation (NDIC) v. Nigerian Bottling Company (NBC) (2002) 7 NWLT (Pt.766) 272 @ 292, 293-294).
A party or parties cannot by, with consent confer jurisdiction on the court.
Third Ground of Objection
The third ground of objection is that the submission of learned Counsel for the Appellant in paragraphs 2.04-2.13 and 4.01-4.02 of the Appellant’s Amended brief of Argument dated 15th February, 2011 and filed on the 11th of April, 2011 but deemed filed 19th November, 2013 are not grounded in law and/or equity. It is the submission of learned Counsel for the Respondent that the said arguments are not anchored on any of the three grounds of appeal contained on the notice of appeal.
The learned Counsel for the Appellant cites grounds two and three of the Appellant’s amended notice of appeal in response; which learned Counsel submits question the entire decision of the learned trial Judge and therefore covers the preliminary issue.
Grounds three and four are to be taken together.
Grounds three and four are intertwined. I agree with the submission of the learned Counsel for the Respondent that the Appellant cannot approbate and reprobate particularly so in an issue which they had conceded to the decision of the learned trial Judge.
It is instructive to note that the argument that the third ground of objection is premised on what the learned Counsel for the Appellant has termed “Preliminary issue” The said grounds two and three upon which the said preliminary issue is hinged are hereby reproduced with their particulars for the ease of reference:-
“GROUND 2
The learned Trial Judge erred in Law in granting the Declaration of title sought by the Plaintiff in view of the uncontroverted evidence of the defendants that the Land in dispute was an absolute grant to their forefathers.
PARTICULARS
1. There is no evidence of proof of payment of Isakole by the defendants primogenitors or by the present defendants now or in the time past to the plaintiff and the Honourable court so held.
2. Even if the defendants primogenitors and or the present defendants are tenants of the Plaintiff, Declaration of title are not available to the Plaintiff, as the Law is trite that such a customary tenant hold the Land in perpetuity.
3. Evidence of Long possession which the lower court found on behalf of the Defendant is 9/10 evidence of ownership.
4. Granting of Plaintiff’s claim of declaration of title and holding that the defendants are customary tenants without claim for forfeiture is with due respect double talk and can cause mayhem moreso when there is no evidence of payment of Isakole and how much should be paid by the tenant as Isakole.
GROUND 3
The judgment is against the weight of evidence
PARTICULARS
(1) Having held that the Plaintiff’s evidence of payment of Isakole by Babalola and after him his son is not so convincing enough, the learned trial Judge should have agreed with the Appellant that the grant of the Land in dispute was an absolute grant to the Appellants progenitors.
(2) Since no Isakole has been paid in the past by Babalola and any of his siblings after him such cannot be fixed now”.
The particulars of the said grounds which have been reproduced (supra) have no semblance with the argument under the preliminary issue argued.
Appeals are argued on issues formulated from the grounds of appeal which must clearly identify the aspect of the decision being challenged. Further, arguments in the briefs cannot be sub-divided into preliminary issue and main issue unless, there is a notice of preliminary objection.
The learned Counsel for the Appellant having not filed nor incorporated a notice of preliminary objection in the Appellant’s brief of argument, cannot be heard in argument on a preliminary issue outside the issues formulated from the notice of appeal.
An issue for determination is a brief statement of the line of argument to determine an appeal which must always be rooted in the ground of appeal. In the case of Ibrahim v. Ojomo (2004) 1 S.C (Pt.11)136. The Supreme Court held that
“an issue for determination is a point so crucial that when decided one way or the other affect the faith of the appeal. It is a point that when decided in favour of a party, he is entitled to win the appeal”. (See also Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130, Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275)
Issues on the decision of the learned trial Judge which have not being complained about under the grounds of appeal are deemed accepted and affirmed by the parties against whom the decision is made. In the case of Shittu v. Fashawe (2005) 7 SC (pt.11) 107 pages 114 – 115. The apex court declared that
“Issues for determination must fall within the scope or ambit of the ground of appeal; and any issue for determination falling outside the ambit or scope of the grounds of appeal is incompetent”.
Similarly, in the case of Adelusola v. Akinde (2004) 5 S.C (pt.11) 71 it was held that:-
“Issue for determination whether filed by Appellant or Respondent must be tailored to the real and crucial issues in controversy”.
These decisions of the Apex court adequately take care of the argument canvassed for and against ground four of the objection.
The Notice of Preliminary objection raised and contested by the Appellant has revealed features which render the determination of this appeal on the merit totally unjustifiable.
The issue of jurisdiction raised has not been adequately countered by the Appellant. As stated (supra) in the cause of considering the preliminary objection, the Appellant’s Amended brief of argument is incompetent. Further, the statement of defence which led to the determination of the suit of the Respondent was also incompetent having not been filed by a person known to law. This was in contravention of the Legal practitioner’s Act, Cap. L11 Laws of Federation of Nigeria, 2004, (see also the case of Okafor v. Nweke (2007) 5 SC 190 @ 186-187, Ogundele v. Agiri (2010) ALL FWLR (Pt.507) 1 @ 27-28, First Bank of Nigeria Plc v. Alhaji Salmanu Maiwada & Ors (2012) LPELR.
The definition of waiver, as issue raised by the Appellant cited from the Black’s Law Dictionary is not applicable to the facts in consideration. An incompetent process creates null rights therefore; the issue of the waiver of a right does not arise.
Jurisdiction is a threshold matter which can determine a suit on appeal in limine. (Refers Nigerian National Petroleum Corporation (NNPC) & 1 Anor v. Chief Stephen Orhiowasele & Ors (2013) 13 NWLR (Pt. 1371) page 211 @ 214-2155).
The principles for determination of jurisdiction as stated in several cases including the case of Nigerian National petroleum Corporation (NNPC) & 1 anor v. Chief Stephen Orhiowasele & ors (2013) 13 NWLR (Pt.1371) page 211 @ 214-2155 relying on Madukolu V. Nkemdilim (1962) 2 SCNLR 314 are as follows:-
“The principles which guide a court in determining whether or not it has jurisdiction are:
a. That the subject matter of the case is within its jurisdiction.
b. That there is no feature in the case which prevents the court from exercing its jurisdiction and
c. That the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Two of the ingredients which rob the court of jurisdiction have been shown to exist in this appeal and this court is thereby bereft of the competence to hear and determine the appeal. The appeal is accordingly hereby struck out.
I make an order of N30, 000.00 to the Respondent and against the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I have read before now the judgment delivered by my learned brother M. B. Dongban-Mensem, J.C.A.
I agree with the reasoning and conclusion arrived at in holding that this Court lacks the competence to hear and determine this appeal and the order striking out the appeal.
Where the originating processes in the trial court are incompetent, the trial is a nullity and any appeal as in this case, arising therefrom is also incompetent and cannot be heard and determined by this Court. I also strike out the appeal and abide by the order made as to costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my Lord Monica Bolna’an Dongban-Mensem J.C.A. While I agreeing with my lord, I wish to make a little contribution.
The original statement of Defence in the lower court was signed by a law firm. Now Okafor & Ors vs. Nweke & Ors (2007) 10 NWLR Part 1043 p.521 and other cases that have since followed it, have made it crystal clear that a law firm is not a legal practitioner and therefore cannot practice as one by for example, filing a legal process in its name in court. In spite of the law as now enunciated in those cases, Counsel still put forward the unhelpful argument that an amendment of a legal process in court signed by a law firm cures the process. That is not the case. The process filed by a law firm is incompetent and an amendment cannot help it. It is as nothing and it is now a legal cliche that one cannot put something on nothing and expect it to stand.
Counsel still espousing the argument that an amendment of a legal process signed by a law firm can help such process should perish the thought as they would only end up in a cul-de-sac. The best thing to do in such a situation is to file a fresh process signed by a Legal Practitioner and withdraw the one filed by the law firm.
Having expressed my humble view above, I will only add that I agree that the appeal here should be struck out. I abide by the award of cost awarded in the lead judgment.
Appearances
Prince A. A. Oloyede Ashanike with Mrs. Vivian AnyiFor Appellant
AND
Ogundamola Okunade (Mrs.)For Respondent
