THE COUNCIL, FEDERAL POLYTECHNIC OKO v. MR. CHUKWUDI UBA (2019)

THE COUNCIL, FEDERAL POLYTECHNIC OKO v. MR. CHUKWUDI UBA

(2019)LCN/12999(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/E/381/2015

JUSTICES:

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

THE COUNCIL, FEDERAL POLYTECHNIC OKO – Appellant(s)

AND

MR. CHUKWUDI UBA
(Substituted for late Mr. Emmanuel Ejidike Uba By Order of the Court on 25/1/2018) – Respondent(s)

RATIO

THE ESSENCE OF FAIR HEARING

It is important to note that the Appellant is challenging the judgment of the lower Court on the ground of lack of fair hearing and nothing more. Both sides are in agreement that the basic attribute of fair hearing is that the Court must hear both sides in the case; the Court must consider all material evidence and issues put before it before reaching a decision which may be pre-judicial to any of the parties in the case. In PAM & ANOR V MOHAMMED & ANOR (2008) LPELR-2895 (SC), the SC Per OGUNTADE, J.S.C (P. 28 A-E) observed:
”The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 11-12 S.C. 122; 7 NWLR (pt.164) 550. A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, otherwise, the action taken following the inquiry will be unconstitutional and illegal. See Ogundoyin v. Adeyemi (2001) 7 S.C. (pt.11) 98; (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atanda v. State (1988) 3 NWLR (pt. 85) 681.”
See also the recent case of UGO-NGADI V F.R.N. (2018) LPELR-43903(SC) where the Supreme Court per GALINJE, J.S.C (Pp18-19, F-E) summarized the principle thus:
“The right to fair hearing is a constitutional right enshrined in Section 36 of the Constitution and it is very essential to the propagation of justice. The basic attribute of fair hearing include:- (a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which prejudice may be to any party in the case; (b) That the Court gives equal treatment, opportunity and consideration to all concerned; (c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing; and (d) That having regard to all circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See Usani vs. Duke (2004) 7 NWLR (Pt.871) 116; Fagbule vs. Rodrigues (2002) 7 NWLR (Pt.765) 188; Adeniran vs. NEPA (2002) 14 NWLR (Pt.786) 30; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290.” PER IYIZOBA, J.C.A.

WHETHER OR NOT THE COURT IS BOUND TO EXPRESS ITS VIEW ON EVERY SINGLE POINT RAISED BY A PARTY

It must be noted that the Court is not bound to express its view on every single point raised by a party in order to accept that the party was given fair hearing. It is only where the point ignored is relevant and would affect the outcome of the judgment that the Appeal Court will intervene. In INYANG V. CHUKWUOGOR (2007) ALL F.W.L.R (PT 344)165 @ 188 the Court observed:
.. The Court is not bound by the submission of counsel and it is free to accept such submission or to reject or disregard them where it finds them not relevant to the determination of the case before it”.PER IYIZOBA, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the National Industrial Court Enugu in Suit No NIC/EN/113/2017 delivered on the 23rd day of June, 2015 Coram Ibrahim J.

THE FACTS:
The Respondent was a Chief Lecturer in the Department of Social Sciences, School of General Studies in the Appellant Polytechnic. Allegations were made against him by some students of illegal sale of text books and collection of money from students. The Appellant had a unit called SERVICOM charged with the responsibility of monitoring and handling such complaints. The Respondent appeared before SERVICOM to answer to the allegations, after which he was suspended from duty. The Respondent then wrote to the Rector and the Chairman of the Governing Council of the Appellant Polytechnic complaining about the suspension. He was summoned before the Joint Governing Council and the Academic Board Disciplinary Committee over the allegations. The outcome of the disciplinary committee process was a letter dated 28/07/10 retiring him from the service of the Appellant on grounds of old age and in public

interest; hence the institution of the suit claiming as follows:
(1) An order declaring as null and void and of no effect the retirement of the Claimant by the Defendant from the services of the Federal Polytechnic, Oko on the facts and circumstances of this case.
(2) An order setting aside the purported retirement of the Claimant as contained in the Defendant’s letter dated 29/07/10 for being wrong, unlawful, illegal, null and void and of no effect.
(3) An order reinstating the Claimant in the service of the Defendant.
(4) An order directing the Defendant to pay to the Claimant the full salary, allowances and entitlements from the month of June, 2010 until he retires properly from the services of the Defendant
(5) N1Million being general damages for breach of contract.

The parties exchanged pleadings. The defence put forward by the Appellant is that the Respondent did not satisfactorily exculpate himself from the accusations and complaints of the students. He was made to appear before the disciplinary panel of the Appellant and was retired at the end on merciful grounds of old age and in the public interest. The

Respondent at the trial gave evidence as CW1 and tendered several exhibits. The Appellant called two witnesses DW1 and DW2 and also tendered several exhibits. Several adjournments were granted on the application of the Appellant. After the Appellant had called his witnesses whose written depositions he had front loaded, instead of closing his case, he asked for adjournment. At the next adjourned date, the Appellant’s counsel failed to attend Court but instead wrote asking for adjournment to which the Respondent objected. Given the number of adjournments already granted the Appellant; and taking into consideration that it had no other witness to call, the Court on the application of the Respondent closed the case of the Appellant and ordered written addresses. Written addresses were eventually adopted and judgment delivered in favour of the Respondent in the following terms:
(1) The retirement of the Claimant through the letter dated 28/07/10 is null and void and same is hereby set aside.
(2) The Claimant is hereby reinstated back into his employment with the Defendant and that he shall be paid his salary and all entitlements from June 20 until

he retires properly from the service of the defendant.

Dissatisfied with the judgment, the Appellant appealed by Notice of appeal containing 4 grounds of appeal out of which it distilled two issues for determination as follows:
1. Whether the learned trial Court, in arriving at its decision failed to apply the ambidextrous standard of justice required of him and thus violated appellant’s right to a fair hearing as guaranteed by Section 36 of the Constitution of Federal Republic of Nigeria, 1999 (As amended).
2. Whether the learned trial Court (sic judge) violated the Appellant’s right to a fair hearing as enshrined in Section 36 of the Constitution of Federal Republic of Nigeria 1999 (As amended)

The Respondent contending that the Appellant did not apply or obtain the leave of this Court to appeal on grounds other than want of fair hearing, adopted as the sole issue for determination in the appeal the Appellant’s issue whether the trial Court violated the Appellant’s right to fair hearing as enshrined in Section 36 of the constitution of the Federal Republic of Nigeria 1999.

APPELLANT’S ARGUMENTS:
On issue 1, learned counsel for the Appellant submitted that the trial Court failed to apply the ambidextrous standard of justice required by law before granting the reliefs sought by the Respondent and that this constitutes a breach of the Appellant’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution (as amended). Counsel cited the cases of KOTOYE V CENTRAL BANK OF NIGERIA & ORS (1989) 1 NWLR [PT.98] 419 @ 444 AND CHIEF KENON & ORS V CHIEF A. TEKAM & ORS [2001] FWLR [PT. 70] 1666 @ 1678 to contend that procedurally and substantively the trial Court failed to apply the principles of fair hearing when it failed to rule on all the material issues presented by the Appellant. Counsel submitted that the Appellant raised the issue of the effect of Exhibit A (the Respondent’s letter of appointment) which specifically provided that either of the parties can terminate the appointment by serving the other party one month’s notice in writing or by payment of one month’s salary in lieu of notice. He submitted that the Appellant was put at a juridical disadvantage by the failure of the trial Court to consider Exhibit A as the

exhibit clearly provides for the disengagement of the Appellant in a way other than what the trial Court considered. Counsel submitted that the Appellant in its Reply brief cited numerous cases which are on all fours with the instant matter but that the trial Court failed to pronounce on the import of those cases; but that the trial Court on the other hand made extensive use of authorities cited by the Respondent. Citing the case of OGUNDOYIN V ADEYEMI (2001)7 SCNJ 187 AT 197, 198, counsel submitted that this constitutes failure to observe the ambidextrous standard of justice required by law. Counsel submitted that the trial Court relied on submissions made by Dr. Chukwuma Ibe rather than that of Appellant’s counsel Dr. Chukwuemeka E. Ibe. Counsel further submitted that the trial Court reached a decision based on a fact not pleaded by the Defendant when it relied on Paragraph 3 (3) of the Second Schedule to the Federal Polytechnic Act; a point never canvassed by the parties in their pleadings nor in their evidence but in the Defendant’s written address. Counsel further submitted that the trial Court relied on authorities cited orally by the

Respondent at the end of his address without notice on the Appellant. Counsel submitted that the trial Court failed to consider the pleadings of the Appellant as contained in the Amended Statement of Defence (page 166 of the Record) where the Court listed the processes filed by the parties; and failed to mention the Appellant’s Amended Statement of Defence which was the bed rock of his defence.

On issue 2, counsel submitted that the trial Court violated the Appellant’s right to a fair hearing contrary to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by failing to consider relevant documents namely the Amended statement of defence which the Appellant applied to use and which application was granted, and further depositions on Oath of Appellant’s witnesses. Learned counsel in conclusion prayed this Court to allow the appeal, to set aside the Judgment of the lower Court and to dismiss the Respondent’s claims because the trial Court violated the Appellant’s right to fair hearing.

RESPONDENT’S ARGUMENTS:
On Respondent’s sole issue, whether the trial Court

violated the Appellant’s right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), learned counsel submitted that the trial Court did not in any way breach the fundamental rights of the Appellant. He opined that the Court considered the case of the parties and all the materials placed before it and that the Appellant was given fair hearing. Counsel submitted that the Appellant duly presented their defence by calling two witnesses; Mr. Anthony Umeozor DW1 and Mrs. Lauretta Onyemaechi DW2 whose depositions and further or additional statements were adopted and were well considered by the Court in the judgment. Learned counsel submitted that the trial Court applied all the principles of fair hearing before ruling on all the material issues presented by all the parties.

Counsel submitted that the further statement on oath of the Appellant’s first witness (DW1) was, contrary to the contention of the Appellant considered by the Court; that the trial Court heard the parties and considered all the exhibits before it which included Exhibit “A” and all the relevant authorities cited by the

parties before determining the rights of the parties. On the argument of the appellant that the trial Court made use of the authorities submitted orally by the respondent when adopting his final written address, counsel submitted that the cases were cited in the presence of the Appellant’s counsel and that nothing stopped the appellant’s counsel from citing his own cases in rebuttal. Counsel argued that the law permits the Appellant’s counsel in response to file additional authority and serve same on the respondent. He opined that the act of the Respondent cannot be interpreted to amount to denial of fair hearing for after all the Court could have on its own found and made use of the authority.

On the argument of the appellant, that the learned trial judge relied on the processes filed by Dr. Chukwuma Ibe, instead of Dr. Chukwuemeka E. Ibe (which is the correct spelling of the name of the appellant’s counsel), learned counsel submitted that it was a mere typographical error. Counsel submitted that the error can easily be corrected and has not given rise to any miscarriage of justice.

Counsel submitted that the parties were

in agreement that the employment of the respondent enjoyed statutory flavour. He submitted that such employment can only be terminated in the manner prescribed by the statutory provision; and cannot be determined by the giving of requisite notice as in the letter of appointment, Exhibit A.

Learned counsel submitted that there is no material difference between the Appellant’s statement of defence and the amended statement of defence; that the only new thing introduced in the amended statement of defence was the inclusion of the Respondent’s statutory declaration of age. Counsel submitted that there was no dispute regarding the age of the Respondent and so it was not an issue in controversy between the parties. Counsel opined that whether the lower Court referred to the pleading as Amended Statement of Defence or Statement of Defence is of no consequence and occasioned no miscarriage of justice. Counsel in conclusion submitted that the trial Court applied all the principles of fair hearing before ruling on all the material issues presented by all the parties. He urged the Court to resolve the lone issue in favour of the respondent and against the appellant.

RESOLUTION:
It is important to note that the Appellant is challenging the judgment of the lower Court on the ground of lack of fair hearing and nothing more. Both sides are in agreement that the basic attribute of fair hearing is that the Court must hear both sides in the case; the Court must consider all material evidence and issues put before it before reaching a decision which may be pre-judicial to any of the parties in the case. In PAM & ANOR V MOHAMMED & ANOR (2008) LPELR-2895 (SC), the SC Per OGUNTADE, J.S.C (P. 28 A-E) observed:
”The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex

in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 11-12 S.C. 122; 7 NWLR (pt.164) 550. A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, otherwise, the action taken following the inquiry will be unconstitutional and illegal. See Ogundoyin v. Adeyemi (2001) 7 S.C. (pt.11) 98; (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atanda v. State (1988) 3 NWLR (pt. 85) 681.”
See also the recent case of UGO-NGADI V F.R.N. (2018) LPELR-43903(SC) where the Supreme Court per GALINJE, J.S.C (Pp18-19, F-E) summarized the principle thus:
“The right to fair hearing is a constitutional right enshrined in Section 36 of the Constitution and it is very essential to the propagation of justice. The basic attribute of fair hearing include:- (a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which prejudice may be to any party in the case; (b) That the Court gives equal treatment, opportunity and consideration to all concerned; (c) That the proceedings be heard in public and all concerned shall be informed of and

have access to such place of hearing; and (d) That having regard to all circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See Usani vs. Duke (2004) 7 NWLR (Pt.871) 116; Fagbule vs. Rodrigues (2002) 7 NWLR (Pt.765) 188; Adeniran vs. NEPA (2002) 14 NWLR (Pt.786) 30; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290.”
See also the numerous authorities referred to by both learned counsel in their respective briefs.

The issue of fair hearing is guaranteed by the Constitution and cannot under any circumstances be circumvented. But once the opportunity is created for fair hearing, a litigant who fails to take advantage of the opportunity cannot turn round to argue that he was not given fair hearing. See NEWSWATCH COMMUNICATIONS LTD V. ALHAJI ATTA (2006) 4 S. C. (PT II) 114 @ 128-9, where NIKI TOBI, JSC (of blessed memory) stated that it is the duty of the Court to create an atmosphere, or environment for fair hearing of a case, but not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment, by involving

himself in the fair hearing of a case. Fair hearing was said not to be for the weakling, the slumberer, the indolent or the lazy litigant, but for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. See also BILL CONSTRUCTION COMPANY LTD V. IMANI & SONS LTD. SHELL TRUSTEES LTD. (2007) ALL FWLR (PT. 348) 806 @ 817-8.

There appears to be no basis for the Appellant’s claim of not being given fair hearing in this matter. The first point raised by the Appellant is that the trial judge in his judgment did not consider Exhibit A, the letter of appointment which provided that either party can terminate the employment by serving the other one month’s notice in writing or by payment of one month salary in lieu, and the numerous cases cited in the Reply brief on the point while the judge made extensive use of authorities cited by the Respondent; and that the trial judge thereby failed to accord the Appellant fair hearing. Contrary to the contention of the appellant that particular issue concerning Exhibit A was properly considered in the judgment showing that fair hearing was indeed

accorded both sides. In his judgment at pages 174 -175 of the Record, the learned trial judge observed: .I have to state that the employment of the Claimant is one with statutory flavour. The Defendant itself has admitted to this. But I do not agree with the submission of the defendant’s learned counsel that statutory flavor is not a magic wand to be used anyhow. To the learned defendant’s counsel even if his employment is one with statutory flavour a notice or payment of salary in lieu of notice by the employer should bring the employment to an end. Learned counsel in his reply on points of law relied on the case of Adebayo Sunday Joseph & 2 Ors vs Kwara State Polytechnic (2013) WRN 106 @ 130 in asserting that the Claimant cannot be forced on the Defendant. The only thing that should be pointed out to learned counsel is that the dictum cited which states that you cannot reinstate a dismissed employee applies only to private contract of employment. In other words, the correct position of the law is that in a situation where the employment is one with statutory flavour, the Court can order

reinstatement if the termination was not in accordance with the procedure stipulated in the statute. Thus the statutory employer cannot just wake one morning and hand over a notice of termination to the employee in an employment with statutory flavour. It must be on the basis of misconduct which must be fully investigated by the appropriate body and established before the employment can be brought to an end. See U.N.T.H.M.B. VS NNOLI (1994), supra cited and relied upon by learned claimant’s counsel. See also the case of OLORUNTOBA-OJU VS ABDUL-RAHEEM (2009) LPELR-2596(SC) PP.63-66, the Supreme Court held amongst others, that:
Where a contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision.
This clearly puts to rest the point made by learned defendant’s counsel that the giving of the notice by the employer to the employee would terminate the contract because they had agreed to that.

It is thus clear beyond peradventure that everything concerning Exhibit A and the Appellant’s submissions thereon were fully considered by the learned trial judge save that he did not mention the exhibit by name. There is no basis for the Appellant’s claim that it was not given fair hearing on this issue.

On the argument that the trial judge relied on the submissions made by Dr. Chukwuma Ibe instead of that of the Appellant’s counsel, Dr. Chukwuemeka E. Ibe, I am happy to note that the appellant conceded that it was a mistake. That surely can never be a ground for setting aside the judgment of a trial Court. It is a mere typographical error which can be easily corrected.

Learned Appellant’s counsel also complained that the trial judge reached a decision based on a fact not pleaded by the Respondent when it relied on paragraph 3(3) of the second Schedule to the Federal Polytechnic Act. This again is a misconception of the facts. In paragraph 15 of the Statement of Claim the Claimant/Respondent pleaded that his appointment enjoys statutory flavour. This averment certainly makes relevant every provision of the

Federal Polytechnic Act which is the Statute governing the employment of the Respondent and which statute made his employment one with statutory flavour. All the sections and schedules of the Statute are thus pleaded and relevant.

On the authorities cited by the Respondent’s counsel after the adoption of his written address, these authorities were cited in the presence of appellant’s counsel. This happens sometimes. Nothing stopped counsel from submitting further authorities even after the judgment had been reserved. The law actually permits him to file additional authority and serve same on the respondent. As pointed out by Respondent’s counsel, the trial judge could have come up with the authorities without his attention being called to them by the Respondent. It is always helpful to the Court if its attention is called to relevant cases that could assist in arriving at the justice of a case. If the Appellant came across any authorities that contradicted those cited by the Respondent, he should have filed them and served the Respondent. If he had, the Court would certainly have looked at them. This cannot constitute a ground for

claiming that the Appellant was not given fair hearing.

It is true that in his judgment at page 166 of the Record, the learned trial judge referred to the processes filed by the Appellant as the Statement of Defence, list of witnesses, witness statement on oath, list of documents to be relied upon and copies of the documents to be relied upon. The learned trial judge apparently forgot that he had earlier granted the prayer of the Appellant to amend his pleading giving rise to an Amended Statement of Claim. However, the only new thing introduced in the Amended Statement of Defence was the Respondent’s statutory declaration of age. There is no dispute as to the age of the Respondent. It was not an issue in controversy between the parties. I agree with learned counsel to the Respondent that whether the lower Court referred to it as Amended Statement of Defence or Statement of Defence, it has not occasioned any miscarriage of justice to the Appellant. Learned counsel to the Respondent correctly stated the law that it is not every mistake or error in judgment that will result in the

appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that the appellate Court is bound to interfere. See ONAMADE & ANOR V. AFRICAN CONTINENTAL BANK LTD. (1997) 1 NWLR (PT. 480) 123; ONAJOBI V. OLANIPEKUN (1985) 4 SC (PT. 2) 156.

A careful reading of the judgment of the trial Court will reveal that the trial Court heard the parties and considered all the exhibits and all the relevant authorities cited by the parties before determining the rights of the parties.

It must be noted that the Court is not bound to express its view on every single point raised by a party in order to accept that the party was given fair hearing. It is only where the point ignored is relevant and would affect the outcome of the judgment that the Appeal Court will intervene. In INYANG V. CHUKWUOGOR (2007) ALL F.W.L.R (PT 344)165 @ 188 the Court observed:
.. The Court is not bound by the submission of counsel and it is free to accept such submission or to reject or disregard them where it finds them not relevant to the determination of the case before it”.

The judgment of the trial Court is in my

view unimpeachable. The Appellant having failed to see any valid ground on which to base its appeal resorted to all these light weighted complaints about denial of fair hearing. The Appellant was given fair hearing. The appeal is lacking in merit. It is hereby dismissed with costs assessed at N50, 000.00 in favour of the Respondent and against the Appellant.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I totally endorse the reasoning and conclusion therein.

Fair hearing is about opportunity. Once parties are given necessary opportunities to present their respective cases, the Court has done its part.
No party is permitted to hold the Court to ransom or keep a trial hanging indefinitely at its pleasure.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Chinwe Eugenia

Iyizoba, JCA just delivered. I agree with the reasoning and conclusion contained therein.

For the detailed reasons adumbrated in the lead judgment, I too, therefore, find no merit in this appeal and I accordingly dismiss it. The judgment of the trial Court is hereby affirmed. I abide myself by the consequential orders.

Appearances:

C. E. Asogwa, Esq. holding the brief of Chukwuemeka Ibe, Esq. For Appellant(s)

F. A. N. Okeke, Esq. For Respondent(s)

Appearances

C. E. Asogwa, Esq. holding the brief of Chukwuemeka Ibe, Esq. For Appellant

AND

F. A. N. Okeke, Esq. For Respondent