RUBBER RESEARCH INSTITUTE OF NIGERIA v. SENIOR STAFF ASSOCIATION OF UNIVERSITIES TEACHING HOSPITALS, RESEARCH INSTITUTIONS
(2019)LCN/13243(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/L/624/2012
RATIO
FAIR HEARING: WHAT DOES IT ENTAIL
The law is settled that, a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case or call evidence. The right to a fair hearing is substantially a question of an opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived in a case. See: FBN PLC vs. TSA IND. LTD (2010) 4-7 SC (Pt.1) 242, BAMGBOYE vs. UNIVERSITY OF ILORIN (1999)6 S.C. (Pt.11)72; AWONIYI vs. THE REGISTERED TRUSTEE OF THE ROSICRUCIAN ORDER AMORC (NIGERIA) (2000)6 SC (Pt.1) 108; ARAKA vs. EJEAGWU (2000) 12 SC (PT.11) 99; OKAFOR vs. A.G. ANAMBRA STATE (1991) 7 SC (PT.11) 138 AND MOHAMMED vs. OLAWUNMI (1990) 4 SC 40 ………………………….PER TOBI EBIOWEI, J.C.A.
FAIR HEARING: WHEN A PARTY CANNOT BE RIGHTFULLY SAID TO COMPLAIN OF LACK OF FAIR HEARING
Indeed the apex Court made the point clearly in Bill Construction Co Ltd vs. Imani & sons Ltd/Shell Trustee Ltd (2006) 11-12 SC 90, Onnoghen, JSC (as he then was) held:
It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. What that Court is enjoined by the provisions of Section 33 of the 1979 Constitution to do is to create a conducive atmosphere for the parties to exercise their right to a fair hearing by holding the scales of Justice fairly but firmly without fear or favour, affection or ill will. Having provided the required atmosphere the duty on the Court stops there. It becomes the duty or choice of the party seeking to enforce his civil rights and obligations to utilize the opportunity so created. He cannot be compelled to do so. Where he decides to present his case in an acceptable mode and as required by the rules and substantive law, he would be heard. On the other hand, where he chooses not to present his case he cannot later be heard to complain that he was not heard, as in the instant case.”PER TOBI EBIOWEI, J.C.A.
TRADE DISPUTE: HOW TO DETERMINE WHETHER A MATTER IS A TRADE DISPUTE MATTER
The foregoing provision has been judicially construed in the case of NATIONAL UNION OF ROAD TRANSPORT WORKERS v. OGBODO AND ORS (1998) 2 NWLR (Pt 537) 189 per Tobi JSC (as he then was) as follows: “From the wording of Section 47, it is clear that the following ingredients are not only necessary but inevitable:
(a) there must be a dispute
(b) the dispute must involve a trade
(c) the dispute must be between
(i) employers and workers; or
(ii) workers and workers
(d) the dispute must be connected with
(i) the employment or non-employment; or
(ii) the terms of employment and physical condition of workers of any person.” His Lordship then proceeded to analyze the above factors thus: “The third classification concerns the parties in the trade dispute. The dispute must either be between employers and workers or between workers and workers or although the former is much more regular in terms of commencement of actions in Courts. The act does not provide for the definition of employer. It simply means a body of persons who employs a worker. The act defines worker’ as an employee, that is to say, any public officer or any individual or (other than a public officer) who has entered into works under a contract with an employer whether the contract is for manual labour, clerical work or otherwise express or implied, oral or written or whether it is contracted to render services or of apprenticeship.PER TOBI EBIOWEI, J.C.A.
Justice
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
RUBBER RESEARCH INSTITUTE OF NIGERIAAppellant(s)
AND
SENIOR STAFF ASSOCIATION OF UNIVERSITIES TEACHING HOSPITALS, RESEARCH INSTITUTIONS (SSAUTHARIAI)Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment): The matter on appeal arises from a dispute on the dismissal of one Mr. Eugene Okoduwa a member and officer of the Respondent’s union. He is indeed the secretary of the union. The Appellant carried out a routine reconciliation of the nominal roll and it was discovered that there was a ghost worker. This led to the management of the Appellant setting up an administrative panel to investigate the matter. This panel indicted the said Mr. Eugene Okoduwa, a Principal Executive Officer (Accounts). This led to the setting up of another panel to try four persons include Mr. Eugene Okoduwa (hereinafter referred to as PEO) for performing unauthorized duties, unauthorized use of the Appellant’s letterhead, forgery of his Head of Department signature and impersonation. This first panel found the PEO liable and made recommendations to warn him and denial of salary increment for one year. The second panel recommended the dismissal of the PEO. That was the punishment. This recommendation was reviewed by a Ministerial Panel which recommended the dismissal of the PEO. In the absence of
1
the Governing Board which was not in place then, the Minister of Agriculture approved the dismissal of the PEO that is Mr. Eugene Okoduwa. This did not go down well with the Respondent which declared a trade dispute and accordingly notified the Minister of Labour. The Minister of Labour referred the dispute to the Industrial Arbitration Panel (IAP) for arbitration. The IAP considered the evidence before it along with the Exhibits and the submissions in line with the law. It came up with the following decision which is called an award, using the language of arbitration:
1. That Mr. Eugene Okoduwa’s dismissal is wrongful and therefore null and void.
2. Mr. Eugene Okoduwa is reinstated forthwith to his duty.
3. Mr. Eugene Okoduwa’s arrears of salaries and allowance since his dismissal be paid to him forthwith.
This decision or award is on page 13 of the IAP award. The Appellant is unhappy and in fact saddened by this award. The natural thing to do was to approach the National Industrial Court which is the Court below. The matter was heard in the Lagos Division by a panel of 3 headed by Hon. Justice B.B. Kanyip. The 14 pages judgment
2
is found in pages 589-602 of the record of appeal. In the said judgment, their lordships upheld the award made by the IAP. At page 14 of the judgment (page 602 of the records) the lower Court held as follows:
On the whole and in agreement with the award of the IAP, we hold that the dismissal of Mr. Okoduwa is wrongful, null and void. We hereby order that Mr. Okoduwa be reinstated to his employment and his salary arrears be paid to him right from when he was wrongfully dismissed till date without any loss of seniority.”
This is the unanimous judgment of the lower Court. Once again the Appellant is unhappy with the judgment filed a notice of appeal to this Court. This is found in pages 586-588 of the records. The two main grounds of appeal are that the judgment is against the weight of evidence and against the principle of fair hearing. This was filed on 18/6/12. The Appellant is represented by Dr. N.A. Inegbedion while the Respondent was represented by Ranti Ajeleti Esq., the briefs were settled by the counsel stated above for the Appellant and the Respondent. The Appellant brief was filed on 16/6/14 but was adopted on 15/4/19. The
3
Respondent’s brief was adopted on the same day. It was filed on 16/10/14. I will now look at the submissions in the briefs, starting with that of the Appellant. The sole issue raised for determination is mainly based on ground 2, which is, whether the Appellant had a fair hearing in the light of the totality of the evidence led. The main thrust of the appeal is that the IAP based its award on Annexures Z1-Z8 which are documents that the Respondent attached to their written address which the Appellant had no opportunity to respond to. This position the lower Court did not agree with and so, the Appellants case is that it was denied fair hearing. Counsel referred to Section 36 (1) of the 1999 Constitution of Nigeria and ANPP vs. INEC (2010) All FWLR (Pt.420) 1347; Oshiomhole & Anor vs. Federal Government & Anor (2005) 3 WRN 142; Bank of the North Ltd vs. Bamidele (2004) 47 WRN 112; Ilomuanya vs. Ilomuanya (2004) 39 WRN 27. Since those documents were annexed to the address, they cannot be evidence as counsel address cannot take the place of evidence. He referred to Ogunsanya vs. The State (2011) All FWLR (Pt. 590) 1203; Nzeribe vs. Anyim (2009) FWLR
4
(pt 488) 378 and Ojo vs. The Federal Republic of Nigeria (2009) All FWLR (pt 494)1461. It is also the submission of counsel that by Section 48 of the Trade Dispute Act and the cases of Kalango & Ors vs. Dokubo (2003) 15 WRN 32 and National Union of Electricity Employees & Anor vs. Bureau of Public Enterprises (2010) All FWLR (Pt.525) 201 the matter before the Court which is on the dismissal of Mr. Eugene Okoduwa is not a trade dispute matter. The lower Court misunderstood and misapplied the two cases cited above, counsel submitted.
Counsel went on to raise issues of failure to determine jurisdiction raised in the lower Court, resolving each of the misconduct complained against the PEO and not acknowledging the act as a Ministerial act. Finally, it is submitted that the IAP did not base the award on properly evaluated evidence before it and therefore the appeal should be allowed and the award of IAP and the decision of the lower Court be set aside. He referred to Savannah Bank of Nigeria Plc vs. CBN (2009) All FWLR (Pt.481) 939 and Henshaw vs. Effanga (2009) All FWLR (Pt.466) 1896; Mobil Producing Nig. Unlimited & Anor vs. Udo (2009) All FWLR
5
(Pt.482) 1177.
The Respondent adopted the sole issue raised for determination by the Appellant. On the issue of fair hearing, it is the submission of counsel to the Respondent that bearing in mind the principle of fairing hearing the right of the Appellant to be heard was not violated. The Appellant had the opportunity to raise an issue or defence to the documents annexed to the address. It is submitted that the documents are not strange to the Appellant as some of the documents emanated from them. Counsel referred to Chidoka vs. First City Finance Company (2013) All FWLR (Pt. 659)1024; Ajibade vs. State (2013) All FWLR (Pt.687) 71. On the issue of whether the matter is a trade dispute matter and the interpretation of Kalangos case and that of National Union of Electricity Employees, it is the firm submission of counsel that the matter falls under trade dispute matters as it deals with the dismissal of Mr. Okoduwa. Counsel submitted that the appeal should be dismissed and the decision of the lower Court should be upheld.
Looking at the grounds of appeal and the issues formulated by the counsel, there seem to be two major issues involved in this
6
appeal. These are firstly, whether the Appellant was denied fair hearing when the IAP decided to look at annexures Z1- Z8 which was made part of the address of the Respondent for which the Appellant made no representation and secondly whether the matter involved is really a trade dispute matter. I will deal with these issues one after the other. Before I go into the real issues, let me say that this is a very sensitive matter as the whole working carrier of Mr. Okoduwa is about to hit the rock, depending on the decision of the Court, subject however to any of the parties exercising the right of appeal. It is a big shame for a person to have worked so hard only to end his working life with a dismissal. Everyone in Civil service is looking forward to retiring with gratuity and pension. Once a person is dismissed, he forfeits his retirement benefits. In spite of the negative reality of dismissal, there should be no sentiment when a person does an act that deserves dismissal. The point I am laboring to make here is that the decision of the Court should not be based on sentiment and similarly, a Court should not allow itself to be blackmailed. In Poatson Graphic
7
Arts Trade Ltd & Anor vs. NDIC (2017) LPELR 42576 (CA), this Court per Ogakwu, JCA in pages 46-48 held:
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
