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SPDC v. EYURO & ORS (2020)

SPDC v. EYURO & ORS

(2020)LCN/15544(CA)

In The Court of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/AS/193A/2006

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED APPELANT(S)

And

1. MR. FELIX EYURO 2. TEDDYBELLS LIMITED 3. MICHARRY & COMPANY LIMITED RESPONDENT(S)

 RATIO:

PRINCIPLE OF FAIR HEARING (AUDI ALTERAM PARTEM RULE AND BROTHER OF NEMO JUDEX IN CAUSA SUA)

There is no doubt that the principle of fair hearing is of common law antiquity and has since the times of Locke and Edward Burns, been statutorily enacted into the raison detre of the Nigerian Legal system. In this wise, the audi alteram partem Rule and its twin brother of Nemo judex in causa sua has been incorporated into the fair hearing provision of Section 35-36 of the 1999 Constitution of the Federal Republic of Nigeria which provides thus:
“In the determination of his civil right and obligations, a person shall be entitled to a fair hearing within a reasonable time…?” MOHAMMED AMBI-USI DANJUMA, J.C.A.

DUTY OF COURT REGARDING CONTRACT BETWEEN PARTIES

The Court could not in the face of the above findings blow hot and cold by creating a contract that did not exist between the Appellant and the 1st Respondent. See Ajide V. Kelani (1985) SC 1. For the sanctity of Agreement, only parties to them can enforce same and it is only for the benefit of parties thereto. See Anjay (supra); See also Kelani Vs Ajide (1985) SC 1. MOHAMMED AMBI-USI DANJUMA, J.C.A.

EMPLOYER/EMPLOYEE RIGHT IN A BREACH OF SERVICE CONTRACT

​If an employer cannot be in breach of the right of fair hearing in a service contract for so determining it, I fail to see how a situation as in the instant case where there is no privity of contract of employment at all can be otherwise. The view that the importation of the doctrine to the instant relationship was an attempt to rewrite the contract cannot therefore, be faulted. See Omage JCA’s views in that line in Angels Spinning & Dyeing Ltd V. Ajah (Supra). It is apt and applicable. Indeed the right of an employer to suspend for the purpose of investigation is paramount and does not admit of the demand for the Rules of natural justice. See Shell Petroleum Development Co. of Nigeria Limited V. Lawson Jack (1998) 4 NWLR (pt 545) 241 @ 270 per Uwaifo JCA; Lewis V. Heffer & Ors (1978) 3 ALL ER 354 @ 365. MOHAMMED AMBI-USI DANJUMA, J.C.A.

DETERMINANT OF CONTRACTUAL AGREEMENT

Contractual obligations are not determined on the principles of sentiments, but on the proven Agreements, their terms and the relevant laws applicable. See Longe V. Union Bank Plc (2006) ALL FWLR (pt 313) 46 @ 72-74.
The binding decision in Shell Petroleum Development Co. of Nigeria Limited Vs. Lawson Jack and Angels Spinning & Dyeing Ltd Vs Ajah were cited to the trial Judge who failed to apply them. It was not right to so refuse to be bound. MOHAMMED AMBI-USI DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellant herein appeals against the decision of the Delta State High Court sitting at Warri delivered on the 6th of January, 2006 in Suit No. W/187/2002 granting part of the reliefs sought and against the Appellant as 1st Defendant as follows:
i) Declaration, that the 1st Defendant’s suspension of the plaintiff without pay on the unsubstantiated allegations of the 2nd Defendant without first hearing from him is a violation of his constitutional right to fair hearing.
ii) An order that the 1st and 3rd Defendant should pay to the plaintiff his salaries under Exhibit R3 for the period from and including March, 2002 to the duration of the said Exhibit R3 which is 30-11-2002. The above are reliefs claimed vide paragraphs 32 (b) and C of the statement of claim and amongst the 4 reliefs granted out of the 7 reliefs sought.

FACTS LEADING TO THE ISSUANCE OF THE WRIT OF SUMMONS
​The 1st Defendant Company entered into separate contracts with the 2nd and 3rd Defendants for the provision of services to its business operations. The contract with the 3rd Defendant is Exhibit R3 in this proceedings and it was for the supply of personnel to provide services in the photographic and video unit of the 1st Defendant. The 3rd Defendant employed and mobilized the Plaintiff to the 1st Defendant on terms contained in the letter of engagement admitted as Exhibit P. 1st Respondent was the Plaintiff in the lower Court.

While the 2nd and 3rd Defendants were performing their respective services, 2nd Defendant observed some acts of misconduct on the part of the Plaintiff and made written petitions to the 1st Defendant. In order to fully investigate the contents of the petition, 1st Defendant suspended the Plaintiff from work on its premises.

Following the suspension of Plaintiff, he commenced this action by a writ of summons issued on the 23rd day of July 2002. With the leave of the Court, the writ was amended to reflect the joinder of the 3rd Defendant. The amended writ of summons dated 23rd January, 2003 is at pages 8 to 9 of the records.

The Plaintiff filed and relied on the statement of claim dated 15th March, 2003 which is at pages 16 to 23 of the records. 1st Defendant with the leave of Court filed and relied ultimately on a further amended statement of Defence dated 13th September, 2004 contained at pages 48 to 50 of the records; the 2nd Defendant statement of Defence dated 20/10/02 is at pages 33 to 50 of the records while the 3rd Defendant statement of defence dated 7/10/03 is at pages 28 to 29 of the records.

Trial commenced before the learned trial Judge on 7/10/2003 with the Plaintiff testifying. He called no other witness. His evidence runs from page 63 of the record to page 81. At the close of his case, the 1st, 2nd and 3rd Defendants called a witness each, styled DW1, DW2 and DW3 in the record. Their respective evidence runs through pages 84 to 95 and 97 to 104 of the records.

At the close of Defence, learned Counsel for the parties addressed the Court and on 6/1/2005, the learned trial Judge delivered the judgment wherein reliefs 32(a), (b), (e) and (g) were granted and reliefs 32(c), and (f) were dismissed. Relief 32(d) was struck out. See pages 169 to 171.

​Dissatisfied with the two reliefs granted and as reproduced herein before, this Appellant has lodged the instant appeal upon 3 grounds as contained at pages 179-181 of the record of Appeal.

The 1st Defendant is the Appellant and the 2nd and 3rd Defendants are the 1st and 2nd respondents herein.

It is only the 1st Respondent that filed the 1st Respondents Brief of Argument in opposition to the Appeal whilst the 2nd and 3rd Respondents did not, thus conceding to the appeal.

Now, the Appellant, by its Brief of Argument dated 20-10-2006 and filed on 25-10-2006, but deemed filed within time by leave of this Court granted on 11-3-2020, submits the twin issues thus from the 3 Grounds of Appeal;
ISSUES
i) Was the Learned Trial Judge right in holding that the suspension of the 1st Respondent from work was a violation of Respondent’s right to fair hearing?
ii) Was the Learned Trial Judge right in ordering the Appellant to pay to 1st Respondent salaries and entitlements from March to November, 2002?

The 1st Respondents’ 2 Issues are similar to the Appellant’s except that the 1st Respondents Issue 2 is more encompassing and goes thus:
ISSUE 2
“Was the Learned Trial Judge right in granting relief 32 (b) there by declaring that the Appellant’s suspension of the 1st Respondent from work without pay and without first hearing from him was a violation of his right to fair hearing? (Grounds 1 and 3).”

ARGUMENTS
The Appellant after reproducing paragraphs 19 and 20 of the statement of claim contends that there was no dispute that the letter of suspension was delivered following the complaint of misconduct against the Appellant. Appellant admits the Exhibits J (the petition) and the letter of suspension, Exhibit L. Appellant insists that the 1st Respondent’s averment in paragraph 19 of the statement of claim was not admitted by the Appellant who denied all in paragraphs 5, 6 and 8 of its amended statement of Defence.

It is contended that from the state of the pleadings, the onus of proof rests on the 1st respondent who asserted the right to fair hearing and its breach. That until that onus is discharged, no burden shifted to the Appellant who in the instant matter had not admitted the plaintiff 1st Respondent’s averment of culpability in any violation of fundamental right to fair hearing as alleged.
Seismograph services Nigeria Limited Vs. Mark (1993) 7 NWLR (pt 304) 203; Ojo V. Gharoro (2006) ALL FWLR (pt 316) 197, IMANA V. ROBINSON (1979) ALL NLR 1.

That the Exhibits ‘A’ ‘B’ and ‘C’ being a letter for interview for short-term contract dated 21-3-1997, Exhibit B – ‘contract staff identity card’ and Exhibit ‘C’ – a Drivers permit dated 13-3-2000 did not constitute a binding term of contract let alone the breach of fair hearing.
Learned Counsel, reproducing part of the Judgment at page 61 of the record thus:
“The Court has irresistibly come to the conclusion and holds that by the terms of Exhibits R to 123 and P, plaintiff was a staff of 3rd Defendant mobilized and provided to the 1st Defendant to provide service to 1st defendant in the photographic and video unit of the 1st Defendant. The Issue is in the circumstances resolved that the 3rd Defendant is the Employer of the plaintiff under the contract between 1st and 3rd Defendant as shown in Exhibit R to R3 and P.”

That having so held as above, the learned trial judge was in error in holding that the issue of fair hearing was sacrosanct and in proceeding to raise and applying it suo motu without hearing the parties. Ebbah V. Ogodo (1984) 4SC 84 @ 112. The Court was not a knight errant looking for skirmishes all about the place. Gabari V. Ilori (2003) ALL FWLR (pt 177) 1559; Eigbejale V. Oke (1996) 5 NWLR (PT 447) 128, State Vs. Oladimeji (2003) 7 SC 108 @ 112 also cited.

It is contended that the letter of suspension is not a disciplinary measure against the 1st respondent; and that the trial Court was wrong to have read words into the document. Amizu V. Nzeribe (1989) 4 NWLR (pt 118) 755 @ 771-772. That as the Court had rightly held, the 1st Respondent not being an employee of the Appellant had no contract of employment warranting any right of fair hearing under any contract of service. The learned counsel also relies on Angels Spinning & Dyeing Ltd Vs Ajah (2000) ALL FWLR (pt 23) 1332 @ 1345 to contend that in the absence of a term in the contract of service, the question of the breach of fair hearing was of no moment. That the contract of Employment must be interpreted strictly. That suspension from work pending the conclusion of investigation was not in breach of the right of fair hearing.
Shell Petroleum Development Co. of Nigeria Limited V. Lawson – Jack ​(1998) 4 NWLR (pt 545) 241 @ 270 per Uwafo JCA; Lewis Vs. Heffer & Ors (1978) 3 ALL ER 354 & 365 per Lord Denning M. R., Mallock V. Aberdeen Corporation (1971) 2 ALL RTA @ 1294. That even if Exhibit L – suspending the Appellant was wrongful, all the Court could do was to set it aside or ignore it and proceed to enforce the agreement between the 1st Respondent and the 3rd Respondent.

In the same token, that Exhibit P and R3 was between the Appellant and 3rd Respondent only. That the 1st Respondent cannot enforce it even if it was made for his benefit and that 3rd Respondent made no claim on it against the Appellant for salaries and allowances. Makwe Vs Nwukor & Anor (2001) 14 NWLR pt 733 at 356, (2007) 7 SCNJ 84 @ 96, Negbenegbor V. Negbenebor (1971) ALL NLR (Reprint) 213 Ikpeazu V. African Continental Bank Ltd (1965) NMLR 374. It was also argued that the 3rd Respondent’s witness, the DW3 only made a feeble attempt at denying its liability to pay the 1st Respondents salary and allowances as in cross-examination he stated that “Apart from the payment of salaries and allowances the 3rd Defendant did not provide anything to the plaintiff”. That having held that the 3rd Respondent was the employer of the 1st Respondent, the assertion of the DW3 in evidence in chief has no leg to stand on; that the learned trial judge was left with the evidence of the DW1, the Evidence of DW3 in cross examination and Exhibit P which establishes the fact that 3rd Respondent is liable to pay to the 1st Respondent salary and allowances. That the order that the Appellant and 3rd Respondent should pay to the 1st Respondent, salary and Allowances from March to November, 2002 cannot be justified as it was perverse and had occasioned a miscarriage of justice to the Appellant. That this Court should hold that it is the 3rd Respondent per the evidence led that should pay the salaries and allowances under the contract Exhibit P. Ebbah V. Ogodo (1984) 4 SC 84 relied and urged that the Issue 2 be resolved in favour of the Appellant.

The 2nd and 3rd Respondents filed no Brief. The 1st Respondent in his Brief of argument dated 16th October, 2009 and deemed filed on 11-3-2020, on his Issue 2, his learned counsel submitted that the trial Judge’s prime position of listening to witnesses, observing their demenour and coming to a conclusion on the evidence led should not be disturbed on Appeal. Auta V. Olaniyi (2003) 38 WRN 144 @ 162 Oduyemi, JCA Ebba Vs Ogodo (2003) 41 WRN 70 at 80, ESD JSC. That by the terms of the contract the 3rd Respondent was ordered by the Appellant to stop the 1st Respondent’s salaries; and it did just that; that the Court, therefore, rightly held that they were liable to pay the 1st Respondents salary and Allowances for the period claimed.

That a Court should grant reliefs based on the case made out per the claims, relying on Madam Helen Obulor & Ors Vs. Linus Weso Oboro (2001) 8 NWLR (pt 714) 25 @ 32 D-I, and Jacob Ovenseri V. Ojo Osagie & Ors (1998) 7 SCNJ 118 @ 195 Abu V. Kuyabana (2001) 44 WRN 113 @ 123 – 124. That the case was proved on the balance of probabilities.

Counsel concedes that there was no privity of contract between the Appellant and 1st Respondent as relating Exhibit R3 between Appellant and 3rd Respondent alone. However submits that the reasoning of the Appellant on the enforceability of Exhibit R3 against the Appellant and 3rd Respondent alone was contradictory and wondered why it cannot be enforced between Appellant and 1st Respondent.

That the Appellant had acted as the Agent of the 1st Respondent in transferring the 1st Respondent’s services to the 3rd Respondent, as contracts of service are not transferable without consent. That the doctrine of privity of contract was in applicable in the circumstances. That there was a glaring wrong committed against the 1st Respondent by both Appellant and 3rd Respondent.

The Counsel urges the application of the Maxim “Ubi jus ibi remedium” – i.e. where there is a right a corresponding remedy is provided. Bello Vs AG Oyo State (1986) 5 NWLR (pt 45) 828 @ 837. That it will be inequitable to leave the 1st Respondent without remedy after Appellant has benefited from his services and exercised a disciplinary power under Exhibit R3.

That the trend now is that fair hearing is a right of an employee sought to be disciplined – Adeniran Vs. NEPA (2001) 47 WRN 145. That in employment matters, parties are bound by the terms of the contract and where for instance no right to suspend is included, any purported suspension is null and void – ACB V. Sebastine E. Ufondu (1997) 10 NWLR (pt 528) 169 @ 177 D-E.

That there was nothing on the contract that gave the Appellant the right to suspend and/or even with or without pay. That there was the presumption of correctness of the finding of facts made by the trial Court and that the onus was on the Appellant to prove otherwise. INEC & Anor Vs Ray (2004) 14 NWLR (pt 892) @ 122 G-H; Ejowhomu V. Edok-Eter Mandillas (1986) 5 NWLR (pt 39) 1 relied on. Counsel urged that this issue be resolved against the Appellant and the Appeal be dismissed with costs against the Appellant and the trial judgment be affirmed.

RESOLUTION OF ISSUES
ISSUE ONE
Issue one raises the question whether the Appellant breached the 1st Respondent’s right to fair hearing. There is no doubt that the principle of fair hearing is of common law antiquity and has since the times of Locke and Edward Burns, been statutorily enacted into the raison detre of the Nigerian Legal system. In this wise, the audi alteram partem Rule and its twin brother of Nemo judex in causa sua has been incorporated into the fair hearing provision of Section 35-36 of the 1999  Constitution of the Federal Republic of Nigeria which provides thus:
“In the determination of his civil right and obligations, a person shall be entitled to a fair hearing within a reasonable time…?”
The 1st Respondent was engaged in a contract of personal service, no doubt by a system of outsourcing as disclosed by the evidence and documents i.e exhibits…
There was no direct contract between the Appellant and the 1st Respondent to warrant the existence of a privity of contract, the evidence of RW3 in cross-examination is that apart from the payment of salaries and allowances, the 3rd Respondent did not do any other thing.
There was a contract effectively supported by “consideration” in the nature of payment of salaries and allowances to the 1st Respondent by the 3rd Respondent and sending him forth to the Appellant for services. The 3rd Respondent did not say it acted as the Agent of a disclosed principal who in any case can only be sued and recovery made there from as indemnity after the finding of liability for breach against the agent.
​In this matter, the control over the 1st Respondent was only as relating to the manner/conduct in the premises/work place of the Appellant and funds for payments and allowances remitted to the 3rd Respondent for its services of providing the employee i.e the 1st Respondent. That being so, the trial Court was right in its finding of facts that the terms of Exhibits R to R3 and P shows the plaintiff (now 1st Respondent as a staff of the 3rd Defendant mobilized and provided for the 1st Defendant to provide services to the 1st Defendant in the photographic and video unit of the 1st Defendant.
The Court could not in the face of the above findings blow hot and cold by creating a contract that did not exist between the Appellant and the 1st Respondent. See Ajide V. Kelani (1985) SC 1. For the sanctity of Agreement, only parties to them can enforce same and it is only for the benefit of parties thereto. See Anjay (supra); See also Kelani Vs Ajide (1985) SC 1.
The 1st Respondent ought to have proceeded against the 3rd respondent alone. On the other hand, it is the 3rd Respondent who may sue or claim indemnity or set forth from the Appellant herein if the facts and law permit, and not any other.
The 1st Respondent’s services were simply no longer needed by the Appellant who as 1st Defendant had written to the 3rd Defendant/Respondent i.e the contractor that had engaged him. The disengagement was clearly expressed as including the cessation of the payment of salaries and allowances. Whether the 1st Respondent’s services were transferred or rolled back to 3rd Respondent, did not derogate from the evidence of the respondent’s DW3 – that the plaintiff – 1st Respondent was not a party to the umbrella contract NOWOO244 in terms of Exhibits R, R1 – R3. What is more, the trial Court clearly made out a case for the 1st Respondent as the 1st Respondent’s complaint was against the suspension based on the complaint – Exhibit ‘J’. That this is so is clear from the Judge’s finding reproduced in part thus: “Counsel in the case did not focus their contention on the breach of the rule of fair hearing but rather focused their address on the right to discipline the plaintiff on the complaint of Exhibit J”.
The 1st Respondent was, in any case, not on trial or investigation and therefore, the question of the breach of a right of fair hearing was in-applicable. It is more so in this case that parties did not address the Court or even raise it. The trial Court had no business raising the issue suomotu and determining it without the input of the parties/counsel. Appellant’s learned counsel is right in arguing as he did that the learned trial judge had no business raising and determining the issue suo motu without hearing the parties. Ebbah V. Ogodo (1984) 4 SC 84 @ 112.
I also agree with the Appellant’s counsel when he argued that to read into the Exhibit L what was not there was wrong. The trial Court had the benefit of the submissions on the case of Angels Spinning & Dyeing Ltd Vs. Ajah (2000) ALL FWLR (pt 23) 1332 at 1345 which is directly in point and binding on the trial Court.
​If an employer cannot be in breach of the right of fair hearing in a service contract for so determining it, I fail to see how a situation as in the instant case where there is no privity of contract of employment at all can be otherwise. The view that the importation of the doctrine to the instant relationship was an attempt to rewrite the contract cannot therefore, be faulted. See Omage JCA’s views in that line in Angels Spinning & Dyeing Ltd V. Ajah (Supra). It is apt and applicable. Indeed the right of an employer to suspend for the purpose of investigation is paramount and does not admit of the demand for the Rules of natural justice. See Shell Petroleum Development Co. of Nigeria Limited V. Lawson Jack (1998) 4 NWLR (pt 545) 241 @ 270 per Uwaifo JCA; Lewis V. Heffer & Ors (1978) 3 ALL ER 354 @ 365. If the suspension was done by the 3rd Respondent i.e. Employer then the equitable consideration of pay could arise, but without prejudice to the exercise of the right of suspension. This is so, as a contract between parties, except where it is specifically agreed, the principles of administrative law including those of natural justice do not apply. It is the terms that will apply. See Mallock V. Aberdeen Corporation (1971) 2 ALL ER 1278 @ 1294, per Lord Wilberforce.
​Upon the pleadings of the 1st Respondent, only a driver’s permit and an identification card was issued to him; even then the card was retrieved and replaced from time to time. It is clear that the 1st Respondent did not qualify for any of the 2 reliefs sought in paragraphs 32 (d) and (e) for the declaration of his “staff hood” or status or employment with the Appellant and entitlement – to a claim for salary and allowances for the period of suspension.
There was no tripartite contract proved by the 1st Respondent herein, having him as a party thereto, which was proved to have been breached without a hearing given to him. Relief 32 (b) as a declaratory relief did not warrant its grant merely upon its assertion in pleadings and the evidence of the plaintiff’s witness that went to no issue; as it was not supported by any credible documentary evidence or unrebutted parol evidence.
Pleadings alone do not constitute evidence or proof. The learned Appellant’s counsel was right both at the trial Court and in this Court that the findings of facts based on evidence led cannot be jettisoned in favour of making a case for the 1st Respondent/plaintiff. He that asserts must prove. See Sections 131, 132 and 133 of the Evidence Act 2011.
​Contractual obligations are not determined on the principles of sentiments, but on the proven Agreements, their terms and the relevant laws applicable. See Longe V. Union Bank Plc (2006) ALL FWLR (pt 313) 46 @ 72-74.
The binding decision in Shell Petroleum Development Co. of Nigeria Limited Vs. Lawson Jack and Angels Spinning & Dyeing Ltd Vs Ajah were cited to the trial Judge who failed to apply them. It was not right to so refuse to be bound.

On the 2nd Issue, whether the learned trial judge was right in ordering the Appellant to pay to the 1st Respondent salaries and entitlements from March to November, 2002, it was argued that it was a wrong decision for the reasons that; the 1st Respondent was not a party to Exhibit R3 between the Appellant and the 3rd Respondent.

Primarily, with the resolution of Issue one to the effect that the 1st Respondent was not a staff of the Appellant and was after all not entitled to a declaration of breach of fair hearing, the Issue 2 becomes a fait accompli; that the Appellant was not under any obligation to pay the 1st Respondent any entitlements.

All these contentions are well founded.

​On the whole, the appeal succeeds and is allowed. The decision and orders of the trial Court as affecting the Appellant is set aside. I award no costs.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother M. A. DANJUMA JCA. I am in agreement with his reasoning and final conclusions. This appeal is meritorious. It is allowed. The judgment of the trial Court delivered on 6th January, 2006 in suit no W/187/2002 is hereby set aside. I abide with the order as to cost in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now a draft copy of the judgment delivered by M. A. DANJUMA, JCA and I agree with the reasoning and conclusions in the judgment except to emphasis that it is trite that he who asserts must prove, see Section 131 of Evidence Act, 2011.

Having failed to establish the foundation of his claim by the evidence of the terms of employment, the claim was bound to fail.

​I hold that the appeal succeeds and is allowed. The decisions and orders of the trial Court are set aside. I abide by the order on costs.

Appearances:

C. A. Ajuyah, Esq. For Appellant(s)

Jonathan Ekperusi Esq. – for 1st Respondent:
2nd Respondent: Filed no Brief and not represented
Roselyn Akponido Esq. – for 3rd Respondent. For Respondent(s)