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UBA PLC v. AYANGBADE (2020)

UBA PLC v. AYANGBADE

(2020)LCN/15612(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, November 27, 2020

CA/YL/106/2019

 

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

 

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

YUSUF MOSHOOD AYANGBADE RESPONDENT(S)

 

RATIO:

JURISDICTION OF THE COURT TO HEAR AND DETERMINE A CASE
It is the law that a Court is competent when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. Where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings are conducted. See Madukolu v. Nkemdilim (1962) 1 All NWLR 587 and Umanah v. Attah (2006) 7 NWLR (Pt. 1009) 503. JAMES SHEHU ABIRIYI, J.C.A.

DEFECT OF NOTICE OF APPEAL

A notice of appeal is the foundation of every appeal. Any defect therein will render the entire appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See Uwazurike v. A-G. Fed. (2007) 8 NWLR (Pt. 1035)1. JAMES SHEHU ABIRIYI, J.C.A.

THE EFFECT OF AN INCOMPETENT APPEAL

Where a preliminary objection to an appeal succeeds there would be no need for the Court to go further to consider the argument in support of the issues for determination in the appeal. See Uwazurike v. A.G. Fed. (supra). In the instant case, it is clear that the trinity prayers were granted by the Court through an interlocutory application in an incompetent Appeal No. CA/YL/13/2019. Apart from this, they were granted in the incompetent appeal No. CA/YL/13/2019 struck out by the Court. Having struck out appeal No. CA/YL/13/2019 for being incompetent, that appeal was no longer available to the Court to grant the trinity prayers. JAMES SHEHU ABIRIYI, J.C.A.

 

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 6th July, 2018 in the National Industrial Court of Nigeria holden at Yola. The Respondent was the claimant while the Appellant was the defendant in the National Industrial Court (the Court below).

The Respondent was a staff of the Appellant and was dismissed from service after some disciplinary action. The Appellant said the Respondent was dismissed for misconduct.
The Court below entered judgment in favour of the Respondent.

The Appellant appealed to this Court but the Appeal No CA/YL/13/2019 was struck out on application by the Appellant on 1st April, 2019. At the same time, the Appellant was granted extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal. Consequently, the Appellant filed a notice of appeal on 5th April, 2019. The notice of appeal contains six grounds of appeal.

From the six grounds of appeal, the Appellant presented three issues for determination in its brief of argument filed on 18th July, 2019.

​Although, the Respondent filed a notice of preliminary objection on 11th September, 2020, he nevertheless filed a Respondent’s brief of argument on 29th July, 2020. The Respondent submitted four issues for determination. The 5th issue is on the notice of preliminary objection.

The notice of preliminary objection is brought upon the following grounds:
“1. This appeal is a product of an incompetent appeal in Appeal No. CA/YL/13/2019 which was struck out by this Hon. Court on 1st April, 2020 based on the appellant (sic) motion on notice filed on 28th February, 2019.
2. The application for leave to file this appeal and order for extension of time to file same was predicated on the incompetent Appeal No. CA/YL/13/2019.
3. This Hon. Court having struck out Appeal No. CA/YL/13/2019 on 1st April, 2019 lacks the jurisdiction to make consequential order extending time and granting leave to the appellant to file this appeal.
4. That the jurisdiction of this Hon. Court to make further order extending time and granting leave to the appellant to file this appeal has ceased at the point the Appeal No. CA/YL/13/2019 was struck out.
5. That this appeal is incompetent by reason of same being a product of an incompetent appeal in Appeal No. CA/YL/13/2019 and consequently this Hon. Court lacks the jurisdiction to entertain same.”

In support of the preliminary objection is an affidavit of five paragraphs to which is annexed a couple of exhibits.
The Appellant filed a counter affidavit of 13 paragraphs to which it annexed one exhibit.

Arguing the preliminary objection as issue 5, learned counsel for the Respondent submitted that the incompetent notice of appeal upon which the Court granted the Appellant leave on 1st April, 2019 can only give birth to an incompetent appeal thereby making the instant appeal incompetent.

It was submitted that when a case is struck out, it is no longer on the cause list of the Court for any order to be properly made which could confer any lawful right or impose any obligation on the parties therein. The Court was referred to Waziri v. Ali (2009) All FWLR (Pt. 465) 1712 at 1714.

​It was submitted that appeal No. CA/YL/13/2019 having been struck out on 1st April, 2019 cannot be the foundation for granting leave to the Appellant to file this appeal. It was again submitted that the Court having struck out the original incompetent Appeal No. CA/YL/13/2019, the appeal was no longer on the cause list of the Court for the order granting extension to apply for leave to appeal, leave to appeal and extension of time within which to appeal.

Replying, learned counsel for the Appellant submitted that this Court is funtus officio in respect of any issue that emanated from the motion on notice filed on 28th February, 2019. It was submitted that leave having been granted to the Appellant, the only option left for the Court is to decline jurisdiction to hear the preliminary objection.

Assuming without conceding that the Honourable Court is inclined to entertain the preliminary objection, it was the contention of learned counsel for the Appellant that the Respondent having conceded to a particular procedure cannot afterward complain of same. It was submitted that the Respondent did not object to the granting of the application. It was submitted that where the opposite party consents to a particular procedure adopted in Court, he cannot afterward complain of the same procedure. The Court was referred to SPDC (Nig.) Ltd v. Edamkue & Ors (2009) LPELR – 3040 (SC) page 31 – 32.

Arguing the main appeal, learned counsel for the Appellant on issue 1 pointed out that the Appellant in the Court below sought for an order striking out or dismissing the Respondent’s claim because the cause of action had not arisen and the Court below dismissed the preliminary objection. It was submitted that before a Court can assume jurisdiction over a matter, a party must first exhaust all conditions precedent otherwise the action is dead on arrival. The Court was referred to Anyanwu v. University of Jos (2014) LPELR – 22556 CA, Akintemi v. Onwumechili (1985) 1 NWLR (Pt. 1) 68 at 85 and University of Ilorin v. Oluwadare (2006) 14 NWLR (Pt. 1000) 751 at 781.

On issue 2, it was submitted that the burden of proof was on the Respondent to prove his case of wrongful dismissal. To this end, he had to plead and prove the terms and conditions of the employment had been breached. The Respondent in this case failed to show what these terms and conditions that were breached are, it was submitted.

​The allegation against the Respondent, it was submitted, was for unauthorized lending which is an act of gross misconduct. It was submitted that where an employer finds any act of misconduct by an employee, the sanction is summary dismissal. The Court was referred to Nwobosi v. A.C.B. Ltd (1995) 6 NWLR (Pt. 404) 658 at 681. It was submitted that the violation by the Respondent of the terms and conditions of this employment and the policy in relation to the Appellant amounted to an act of misconduct as the law is well founded that an employer is entitled to dismiss its employee for any act of misconduct.
The Respondent, it was submitted, is not entitled to any compensation.

On issue 3, it was submitted that the Court below awarded to the Respondent his salaries and allowances during the period of his suspension contrary to the agreement between the parties. It was also submitted that the Court below was wrong when after refusing the Respondent’s relief C proceeded to award to the Respondent an uncertain amount.

​It was submitted that on the admission of the Respondent that he was on suspension and in the light of Exhibit DA1, the Respondent was not entitled to any remuneration from the Appellant for service he did not render when he was on suspension.

Even if the Respondent was entitled to anything, it was argued, the measure of damages in a case of wrongful dismissal of employment without statutory flavour as in the instant case is the period of notice as provided by the terms of the contract between the parties.

Respondent on issue 1 submitted that on the evidence before the Court below the dismissal of the Respondent by the Appellant was wrongful. It was submitted that the Respondent led evidence in support of his case. It was submitted that inspite of the decision of the Disciplinary Committee completely exonerating the Respondent, the Appellant did not withdraw the suspension but rather dismissed him from its employment.

It was submitted that the dismissal of the Respondent by the Appellant was not in consonance with the terms of employment. It was submitted that a dismissal as a deterrent to others was not part of the terms of contract of employment.

​It was submitted that the Appellant should not be allowed to benefit from its failure to follow its own rules or policy book in terminating the employment of the Respondent in a bid to damage or destroy the hard earned reputation or career of the Respondent. The dismissal of the Respondent on the recommendation of the Disciplinary Committee has occasioned a miscarriage of justice to the Respondent in the circumstance, it was contended. The Appellant, it was further argued, acted in gross violation of the constitutional rights of the Respondent.
There was no proof of service of the letter of dismissal on the Respondent, it was submitted.

On issue 2, learned counsel for the Respondent submitted that the Appellant had foreclosed all avenues of internal resolution of the dispute going by the contents of its letters. That after foreclosing or frustrating the internal mechanism of resolving the dispute, the Appellant could not suddenly turn round in Court to say that the Respondent had not explored the internal mechanism before going to Court. In the light of the foregoing, the case is competent, it was submitted.

On issue 3, learned counsel for the Respondent submitted that the judgment of the Court below is supported by evidence and is not perverse having regards to the facts and evidence before the Court. The Appellant having failed to challenge the evidence of the Respondent had admitted the claim of the Respondent, it was submitted.

It was submitted that there was no evidence of payment of entitlements to the Respondent by the Appellant since the suspension of the Respondent.
It was submitted that the authorities relied upon by learned counsel for the Appellant as regards measure of damages in wrongful termination of contract of employment are distinguishable from the facts of this case.

On issue 4, learned counsel for the Respondent submitted that the judgment of the Court below leaves no one in doubt as to what was due to the Respondent. That the Appellant cannot claim ignorance of what the salary and entitlements of the Respondent would be between February, 2013 and March, 2015.

It is the law that a Court is competent when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. Where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings are conducted. See Madukolu v. Nkemdilim (1962) 1 All NWLR 587 and Umanah v. Attah (2006) 7 NWLR (Pt. 1009) 503.

A notice of appeal is the foundation of every appeal. Any defect therein will render the entire appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See Uwazurike v. A-G. Fed. (2007) 8 NWLR (Pt. 1035)1.

Where a preliminary objection to an appeal succeeds there would be no need for the Court to go further to consider the argument in support of the issues for determination in the appeal. See Uwazurike v. A.G. Fed. (supra). In the instant case, it is clear that the trinity prayers were granted by the Court through an interlocutory application in an incompetent Appeal No. CA/YL/13/2019. Apart from this, they were granted in the incompetent appeal No. CA/YL/13/2019 struck out by the Court. Having struck out appeal No. CA/YL/13/2019 for being incompetent, that appeal was no longer available to the Court to grant the trinity prayers
In the circumstance, the order of the Court granting the Appellant extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal is a nullity and can be set aside by the same Court.
The preliminary objection by the Respondent is upheld.
The order of the Court in appeal No. CA/YL/13/2019 granting the Appellant extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal is hereby set aside and the Appeal No. CA/YL/106/2019, United Bank for Africa v. Yusuf Moshood Ayangbade is struck out.
No costs awarded.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother, JAMES SHEHU ABIRIYI JCA. I agree with his reasoning and conclusion arrived at in striking out this appeal, I adopt same as mine and strike out the appeal.
I abide by all other orders including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft copy of the lead judgment delivered by my learned brother Abiriyi JCA. I agree with the reasoning and the conclusion therein. The preliminary objection of the Respondent is hereby upheld by me.
I abide by all the consequential orders and the order as costs contained in the judgment.

Appearances:

HUSSAINI G. MAIDAWA, ESQ., with him, H. OMEH, ESQ, T. J. OJO, ESQ. and F. A. HENNY, ESQ. For Appellant(s)

JOHNSON OLU ADEBAMBO, ESQ., with him, KENNETH BABUNA BATHODO, ESQ. For Respondent(s)