UDOKWU v. ZENITH BANK PLC
(2021)LCN/15745(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, December 30, 2021
CA/A/1151/2018
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
CHINEKWU NNENNA UDOKWU APPELANT(S)
And
ZENITH BANK PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON ESTOPPEL
Furthermore, since the appellant is the mastermind of the admission of the said Exhibits DE – DE30, he is estopped from raising the issue on appeal. This is apt because a party is not allowed to profit from his own wrong and subject the due administration of justice to ridicule. See the cases of Oyerogba & Anor v. Egbewole Olaopa (1998) LPELR – 2878 (SC) and Agbogunleri v. Mr. John Depo & Ors (2008) LPELR – 243 (SC), where the Supreme Court held:
“It is pertinent for me to state that estoppel, generally, is that doctrine where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not. It is therefore a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. The Common law recognizes three kinds: 1) Estoppel by record or quasi by record; 2) Estoppel by deed and 3) Estoppel in Pais.”PER ADAH, J.C.A.
THE POSITION OF LAW ON APPEAL
I must say again that it is trite law that a party must be consistent in his case. An appeal is a continuation of the case of the appellant. It has long been settled that a party must be consistent in the presentation of his case. In the case of Nyako v. Adamawa State House of Assembly & Ors., (2016) LPELR- 41822 (SC), the Supreme Court held that:
“An appeal is not for retrying the action, rather it is rehearing on the record of appeal. The appeal Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice in much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding to discover the truth. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12).”
The appellant under our laws is not allowed to take a step and a position in his claim before the trial Court and come to the appellate Court to argue and urge the Court to overrule his earlier position which will be antithetical to the rule of equity that says he who comes to equity must come with clean hands and clear conscience. It is in the same light that the Supreme Court held emphatically in the case of Asaboro & Anor v. Pan Ocean Oil Corporation (Nig.) Ltd. & Anor., (2017) LPELR – 41558 (SC), that:
“It is settled law that a party should be consistent in the case he presents at the trial and appellate Courts as he is not allowed to present different cases before each hierarchy of Court as he desires. In other words, a party is not allowed in the presentation of his case before the Court to approbate and reprobate – see Intercontinental Bank Ltd v. Brifina Ltd (2012) All FWLR (Pt. 639) 1192 at 1206.” PER ADAH, J.C.A.
THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT
From the argument of the parties on this issue, the concern is on the evaluation of evidence as carried out by the trial Court. It is in the province of the trial Court to move in line with our rules and evaluate the evidence put before it by the parties. The trial Court is the master of the proceeding of the Court at the trial and its evaluation of the evidence before it except it is perverse, it cannot be lightly tampered with by the Court on appeal. In the case of CPC v. INEC & Ors. (2011) 18 NWLR (Pt. 1279) 493, the Supreme Court, per Adekeye, JSC, held as follows:
“The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence. The Court must ensure that it holds the string or scale of justice evenly balanced between the parties so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence. It is the trial Court which alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion.” PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court of Nigeria, coram: E.D.E. Isele, J., in Suit No: NICN/ABJ/340/2013, delivered on the 8th day of January, 2016.
The appellant as claimant at the lower Court by way of complaint dated the 16th day of December, 2013, instituted the motion giving rise to this appeal wherein she claimed the following reliefs:
a. A declaration that the purported termination of the claimant’s appointment contained in the defendant’s letter dated 11th day of February, 2013 and addressed to the claimant is unlawful, wrongful, ultra vires, void and of no legal effect as it is against natural justice.
b. An order setting aside the said purported termination of the claimant’s appointment as contained in the defendant’s letter dated 11th day of February, 2013.
c. An order directing the Defendant to pay forthwith to the Claimant the sum of N26,666,800.00 (Twenty-Six Million, Six Hundred and Sixty-Six Thousand, Eight Hundred Naira) as entitlements for her salaries, emoluments, allowances, remunerations, bonuses and other financial benefit due from the defendant to the claimant from the 19th day of July, 2010 being the date of her indefinite suspension without pay up to the date of judgment.
d. An order directing the defendant to pay forthwith to the claimant, interest on the said total entitlements of the claimant at the rate of 21% per annum from the 19th day of July, 2010 until payment. See 7 of the record of appeal.
The respondent filed a defence on the 21st of February, 2014, and counter-claim claiming the sum of N1,464,885.55 being unpaid balance on a personal loan and car loan taken out by the appellant whilst in the employment of the defendant. The appellant was subsequently granted leave to amend her statement of facts consequent upon which the appellant filed an amended statement of facts. The appellant also filed an amended written statement on oath and an amended list of document. In response to this, the respondent filed an amended statement of defence and counter-claim.
The matter was heard by Hon. Justice E.D Esele and judgment delivered on the 8th January, 2016, against the appellant. The appellant vide a Notice of Appeal filed on the 16th April, 2016, lodged an appeal against the judgment of the lower Court. An Amended Notice of Appeal was deemed filed on the 23rd of November, 2020, and a notice of Preliminary Objection by the respondent was filed on the 26th of November 2020.
Preliminary Objection
Learned counsel for the respondent raised a Preliminary Objection on the ground that the appeal is not competent. The grounds for the objection are as follows:
1. Ground 3 of the Amended Notice of Appeal does not rise from the judgment of the lower Court.
2. The Appellant did not seek leave to argue ground 3 as a fresh issue in this appeal.
3. Ground 3 of the amended notice of appeal as presently constituted is not competent.
4. An incompetent ground of appeal cannot stand the test of law.
The Notice of Preliminary Objection of the Respondent was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016 dated and filed on the 26th of November, 2020 and has therein raised a sole issue for consideration which is:
Whether ground 3 of the Amended Notice of Appeal as well as this issue for determination are competent and if not so whether the said grounds and issues ought not to be struck out.
The learned counsel to the respondent pointed out that the appellant’s appeal as represented by the Amended Notice of Appeal dated the 1st of March, 2019 is essentially an appeal from the National Industrial Court, Abuja. He made reference to the case of Governing Board Rugipoly, Ondo State v. Ola (2016) 16 NWLR (Pt. 1537) 1 @ 21 Paras., F-G. He noted that ground three as contained in the Amended notice of appeal challenges the alleged dismissal of the appellant’s claim of unlawful termination of contract. My lord, no such claim was canvassed at the Court below and consequently there was no judgment on the alleged claim. He made reference to the declaration sought in the lower Court and submitted that its effect is that the ground of the notice of appeal does not arise from the judgment of the Court below and as such it is incompetent. He insisted that no claim for wrongful termination of contract was contested at the lower Court and urged the Court to hold same. Learned counsel to the respondent further submitted and urged this honourable Court to hold that the Appellant failed to seek leave to argue ground three as a fresh issue and that such ground remain incompetent.
He argued that issue one as distilled by the appellant was drawn from a combination of competent and incompetent grounds of appeal. He posited that the position of the law is fixed and provides that issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent grounds are in themselves not competent and liable to be struck out. – Dariye v. Federal Republic of Nigeria (2010) LPELR-4022 (CA), Geosource (Nig.) LTV v. Biragbara (1997) 5 NWLR (Pt. 506) 607.
Counsel to the respondent submitted that the issue two was distilled from the combination of grounds 6 and 7 of the Amended Notice of Appeal dated 1st March, 2019 is incompetent and is liable to be struck out by this honourable Court. He reiterated that the above submission is premised upon the principle of law that a ground of appeal must arise from the decision of the lower Court and that parties are not allowed to set up at the Court of appeal a case different from the case contested at the Court below without the leave of Court.
He argued that the appellant in ground 7 of the amended notice of appeal challenged the failure of the Court below to make a pronouncement on the alleged unlawful termination, but that the claims in the record of appeal has nothing to do with unlawful termination of appointment as they only reflected in the original claim and not the amended claim. Learned counsel to the respondent posited that the appellant limited his principal complaint to challenging whether the suspension of the appellant without pay as done by the respondent was done in accordance with dictates of natural justice.
He further submitted that the effect of the forgoing is that ground 7 of the Amended Notice of Appeal is not predicated on anything done by the trial Court. – Micmerah Int’l Agency Ltd v. A-Z Pet. Products Ltd (2012) 2 NWLR (Pt. 1285)592-593, Paras H-A, Napoleon S. Orianzi v. The Attorney- General, Rivers State & Ors (2017) LPELR 417 37 (SC), Paras D-F, Agbaka & Ors v. Amadi & Anor (1998) LPELR-231 (SC).
The learned counsel to the respondent urged the Court to so hold and to allow the preliminary objection.
In the instant appeal, it should be noted that the appellant argued the appeal on the basis of amended notice of appeal filed on 06/03/2019 and it was deemed properly filed and served on 23/11/2020. This amended notice of appeal has eight (8) grounds of appeal.
The Preliminary Objection of the respondent complained of grounds 3. After ground 3, there are five other grounds of appeal. It is necessary to point out here again that the object of Preliminary Objection is to challenge the competence of an appeal or the hearing thereof. The end result of a Preliminary Objection is to terminate the appeal at that stage. See Garba v. Mohammed & Ors., (2016) 16 NWLR (Pt. 1537) 114. Where however, there are minor defects in the appellant’s process or that there are some grounds or a ground of appeal that can sustain the appeal such as in the instant case, a motion on notice to strike out the incompetent grounds would be filed as most appropriate. In the case of SPDC (Nig.) Ltd v. Amadi & Ors. (2011) LPELR- 3204, the Supreme Court while considering when a Preliminary Objection should be or should not be filed held that:
“Preliminary Objections are filed against the hearing of an appeal and so once it succeeds, the appeal no longer exists. All often, we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a Preliminary Objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed. In this case, a Preliminary Objection was properly filed, because if it succeeds the appeal come to an end.” See NEPA v. Ango 2001 15 NWLR Pt. 737 p. 627.
It should be understood that a Preliminary Objection should not be used as a tool to delay hearing of the appeal or waste the valuable judicial time. A Preliminary Objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See Ndigwe v. Nwude 1999 11 NWLR Pt. 626 P. 314, NEPA v. Ango 2001 15 NWLR Pt. 737 P. 627. Nowadays, Preliminary Objections are filed once a respondent notices any error in the appellant’s processes. This is wrong. Where the respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the respondent ought to file a Motion on Notice to strike out the incompetent grounds and not a Preliminary Objection. See Muhammed v. Military Administrator, Plateau State 2001 16 NWLR Pt. 740 P. 524; NDIC v. Oranu 2001 18 NWLR Pt. 744 P. 183. Finally, and for emphasis, a Preliminary Objection is filed only against the hearing of the appeal and not against one or more grounds of appeal. See Odunukwe v. Ofomata (2010) 48 NWLR (Pt. 4225) 404.
Let me still re-enact the warning of this Court in the cases of Nwaiwu & Ors v. Gov. Imo State & Ors. (2013) LPELR- 20690 (CA), Ejimofor & Ors. v. Governor of Imo State & Ors. (2013) LPELR – 20690 (CA), Onuoha v. Ndubueze (2002) 2 NWLR (Pt. 750) P. 172 at 183; and say that counsel of the parties in the efforts by the Court to attain justices, should always assist in minimizing preliminary objections to the hearing of appeals properly filed before the Court. this will reduce the rigour of work judges are subjected to. It is ever helpful to the Court of counsel on either side avoid bugging down the Court with unnecessary preliminary objections, which can waste a lot of time of the Court which could otherwise be gainfully employed to resolve issues raised in appeal for determination.
It should be borne in mind that Courts have since moved away from technicalities to the lane of doing substantial justice. This is now the preferred trend in our duty to enhance the swift and sound dispensation of justice.
In the instant case, even if ground 3 of the grounds of appeal is voided, there are other grounds with which this appeal can be truly determined. This notwithstanding, it is essential to say here that the Preliminary Objection complain only of a ground of appeal is not a competent Preliminary Objection. I therefore, hold that the Preliminary Objection in the circumstances of this appeal is hereby struck out. I shall now go into the merit of the case.
MAIN APPEAL:
Counsel for the appellant, Mr. Tochukwu Onyiuke, distilled two issues for determination of this appeal. These issues are:
1. Whether the lower Court was right when it entered judgment in favour of the Respondent dismissing the Appellant’s entire claim? Relating to Grounds 1, 2, 3, 4, 5 & 8 of the Appellants Notice of Appeal.
2. Whether the lower Court breached the Appellant’s constitutional/fundamental right to fair hearing as guaranteed by the 1999 Constitution? Relating to Grounds 6 & 7 of the Appellant’s Notice of Appeal.
The respondent’s brief, filed on 26th November, 2020 by Mr. John Erameh adopted the two issues for determination coined by the Appellant. The appellant filed a Reply Brief of Argument deemed on 14th October, 2021.
The issues distilled by the appellant and adopted by the respondent shall be considered for the resolution of the appeal.
Issue One:
This issue is – whether the lower Court was right when it entered judgment in favour of the respondent dismissing the appellant’s entire claim?
The counsel for the appellant noted that the burden of proof shall be discharged on the balance of probabilities in all civil proceeding- Section 131(1) and 134 of the Evidence Act, 2011. He stated that on the issue of unlawful suspension of the appellant, the decision of the lower Court that the appellant’s suspension was lawful is wrong. He also submitted that it is elementary law that for a document to be admissible, it must be pleaded. Counsel relied on Adeyefa v. Bamgboye (2013) 10 NWLR (Part. 1363)532 @ page. 545, paras. F-G, Oyediran v. Alebiosu II (1992) 6 NWLR (Part 249) 550; Monoprix (Nig.) Limited v. Okenwa (1995)3 NWLR (Part. 383) 325, Abubakar v. Chuks (2007) 18 NWLR (Part.1066) 386@page 416, Paras. E-F, Owonyin v. Omotosho (1061) 2 SCNLR 57, B. MANFAG. (Nig) Limited v. M/S.O.I. Limited (2007) 14 NWLR (Part 1053) 109 @ Page-151, Paras. CO, Abolarin v. Ogundele (2012) 10 NWLR (Part. 1308) 253 page. 276, paras. C-F, Shanu v. Afribank (Nig.) Plc (2003) 7 NWLR (Part. 795) 185.
Learned counsel for the appellant posited that both the appellant and the respondent were bound by their pleadings at the lower Court. He submitted that the introduction of Exhibit DE- DE30, during cross-examination had taken parties outside their pleadings and this negates the long rule of civil procedure counsel relied on Dalek (Nig.) Limited v. Ompadec (2007) 7 NWLR (Part. 1033) 402 @ page. 439, paras A-D. He argued that the reliance by the lower Court upon Exhibit DE-DE30 took the case outside the shores of parties’ pleadings and this Court ought to be guided by the rules of pleadings and admissibility not to fall into the same error occasioned by the lower Court. Learned counsel noted that the judgment of the lower Court reveals that the only evidence relied upon to find in favour of the respondent that there was lawful suspension without pay was Exhibit DE-DE30, and that if the said exhibit is expunged, the decision would be different. He reiterated this by submitting that if an appellate Court is of the opinion that without the inadmissible evidence, the decision must have been different, it will interfere. Counsel relied on AG Leventis (Nig.) Plc v. Akpu (2007) 17 NWLR (Part. 1063) 416 @ 440 paras. F-G.
In response to this, the learned counsel to the respondent submitted that it is pertinent to circle back to the trial and the circumstances leading to the admission of Exhibits DE-DE30. He posited that during the cross-examination of the respondent’s sole witness at the lower Court, the Appellant sought to tender a document as the Employee’s Handbook through the respondent’s witness, it objected on the basis that it was neither pleaded nor frontloaded. He pointed out that the trial Court ruled in favour of the Appellant and entered the document in evidence marking it as Exhibits DE-DE30. He submitted that both parties proceeded to place reliance on same to establish their respective contentions and that when the Appellant realized that the document does more harm than good to her case, she sought to renege from same, claiming that the document was never entered into evidence.
He submitted that there was no appeal against the above finding that the document (Exhibits DE-DE30) was introduced by the Appellant. Counsel relied on Commissioner for Finance, Imo State v. Kojo Motors Ltd (2018) LPELR 45075 (CA). Counsel further submitted that it was a question of whether it will be equitable to allow the appellant to resile from Exhibit DE-DE30 on the basis that same was not pleaded, the Appellant having positively argued at the lower Court that it was and led the lower Court to enter judgment relying on the said document. Learned counsel for the respondent submitted that it is a settled principle of law that a party should not be allowed to approbate and reprobate at the same time. Counsel relied on Abeke v. Odunsi & Anor (2013) LPELR-20640 (SC), Ohiaeri & Anor v Akabeze & Ors., (1992) LPELR-2360 (SC).
He urged the Court to find that to expunge Exhibits DE-DE30 in the light of the peculiar circumstances of this case will be inequitable.
He argued that there is no evidence offered to prove that the appellant’s suspension was wrongful or in contravention of the terms of her employment or at variance with any law in place that provides remedial benefits to which she is entitled. He insisted that it was never the appellant’s case that the respondent had no powers to suspend the appellant or to suspend the appellant without pay as she accepted the suspension and never challenged same during pendency of the suspension. The learned counsel noted that on the questions of what is the proper time limit for a suspension. What is the penalty for exceeding same? The pleadings and evidence led at the Court were silent on these crucial points and argued that the appellant bore the burden of proof and was enjoined by law to establish his case. Counsel relied on Section 132 of the Evidence Act, 2011.
Learned counsel to the respondent argued that the appellant’s employment had no statutory flavour and consequently is one of master and servant governed by the common law. He contended that the law is that under the principles of master and servant relationships, the employer has a right to suspend an employee for proper investigation and this right inures whether or not there is a regulation on same. Counsel relied on Odesanmi v. FHA (2006) LPELR-11599, Udemah v. Nigerian Coal Corporation (1991) 3 NWLR (Pt.180) 479 @ 486, NITEL Plc v. Akwa (2006) 2 NWLR (Pt. 964) 417.
He pointed out that the appellant admitted in her amended statement of facts to have been served with a query by the respondent, and that she was also availed an opportunity to appear and offer explanation before the respondent’s disciplinary committee which she took. He insisted that the effect of this is that the requirement of audi alteram partem had been complied with and urged this honourable Court to hold that the respondent met the dictates of natural justice in exercising its right to suspend the Appellant. Counsel relied on Imonikhe v. Unity Bank Plc (2011) LPELR-1503 (SC); Ayanru v. Mandilas LTD (2007) 10 NWLR (Pt.1043) P.477-478.
Learned counsel for the appellant argued that the lower Court threaded on a wrong premise when it failed to liken the facts and proceedings of the case giving rise to this appeal with the case of Ibrahim v. Zenith Bank. It was submitted by the counsel that the lower Court wrongly held that the two cases founded on the same set of facts, arising from the same transaction were not the same. He noted that it is correct that the National Industrial Court in Ibrahim v. Zenith Bank, held that the Defendant pleaded conditions of service but did not tender it and that the Court could not have acted outside the evidence before it. He referred to line 1 & 2, page 488 of the record of appeal. He further posited that their position in this appeal is that the document or facts leading to the document was not pleaded nor frontloaded yet the learned trial judge relied upon Exhibit DE-DE30 to enter judgment in favour of the Respondent. He submitted that there is no satisfaction of evidential burden in a situation where a document is pleaded but not tendered on one side as in the case of Ibrahim v. Zenith, and a document which was not pleaded but tendered and admitted on another side as in this appeal.
Learned counsel for the appellant noted that the position of law to the both situations is clear on the following effect to wit:
a. A trial Court or an appellate Court must not rely on a document not tendered as an exhibit before it – Nigeria Ports Plc v. B.P.PTE Limited (2013) 3 NWLR (Part. 1333) 454 @ Page. 490, Paras. A-B.
b. That for a document to be admissible, it must be pleaded. – Adeyefa v. Bamgboye (Supra) @ page.532.
He submitted that the lower Court ought to have held in this appeal that it would not rely on Exhibit DE-DE30, which was not pleaded as the Court did not rely on the said Exhibit DE-DE30 (conditions of service) in the case of Ibrahim v. Zenith Bank.
In response, learned counsel to the respondent urged the Court to find that the Court below would still have arrived at the same decision even if Exhibit DE-DE30, were expunged. He submitted that the decision of Ibrahim v. Zenith Bank Plc, of the National Industrial Court, Abuja was at best a persuasive authority and that the learned trial judge was not bound to follow same even if same were in all fours with the extant case. He urged this Honourable Court to hold and resolve issue one in favour of the respondent. On the question of whether or not the said suspension was unlawful, the learned counsel for the appellant submitted that apart from Exhibit DE-DE30, which was inadmissible, there was no oral or documentary evidence where it could be inferred that the Respondent could suspend the Appellant without pay. He noted that assuming without conceding that Exhibit DE-DE30, was rightfully admitted in evidence and forms part of the case of parties, Exhibit DE-DE30, is clear as to the power of the Respondent to suspend the appellant. He referred to paragraph 6.5, page 389 of the record of appeal and paragraph 21.4, page 409 of the record of appeal which deals with the suspension of staff of the Respondent. Learned counsel posited that there was no evidence before the lower Court that the appellant was standing a criminal charge or arrested/detained by the police for a criminal charge.
Learned counsel for the appellant argued that Exhibit F1-F10, clearly exonerated the appellant of any fraud and that there was also no evidence before the Court that the disciplinary committee of the respondent bank found the appellant responsible for the fraud or any document indicting the appellant after the disciplinary committee sat. He contended that there was no oral or documentary evidence indicting the respondent pursuant to the internal disciplinary investigation of the respondent or the police investigation. Learned counsel for the appellate submitted that the respondent failed to plead that there was any report from the disciplinary panel, it failed to plead that any decision of any committee was communicated to the appellant. He insisted that it is trite law that evidence on facts not pleaded goes to no issue. – Nsirim v. Onuma Construction co. (Nig.) Limited (2001) 7 NWLR (Part. 713) 742.
Counsel further argued that the evidence given by the Respondent at line 11 page 340 of the record of appeal as per the contents of the disciplinary report to the effect that the Appellant was not cleared by the disciplinary panel is inadmissible. He noted that by Section 25 of the Evidence Act,2011, oral evidence as to the contents of a document are not relevant unless and until the party proposing to prove them shows that he is entitled to secondary evidence of the contents of such document. Learned counsel to the appellant buttressed that all facts except the contents of the documents may be proved by oral evidence – Section 125 of the Evidence Act, 2011. He also contended that based upon the aforestated sections: it is only the production of the disciplinary report that will prove the respondent’s assertion that the appellant was not cleared. It was further submitted by the counsel that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. – Section 131 of the Evidence Act, 2011.
Learned counsel therefore urged this honourable Court to take into consideration the contents of Exhibit F1-F10 exonerating the appellant from the fraud and the termination of the appellant’s employment on the grounds that her services were no longer needed (rather than finding her culpable in the fraud) to hold that there is a presumption that the appellant was exonerated by the said disciplinary report. He contended that there is therefore no justification for suspending the Appellant in the first place. – ACB Limited v. Ufondu (1997) 10 NWLR (Part. 523) 169 @ 177. He further submitted that the report of the Police by Exhibit F1-F10, completely exonerated the Appellant of any wrongdoing. – Yusuf v. V.O.N Limited (1996) 7 NWLR (Part. 463) 746 @ 753-754.
In response, learned counsel to the respondent argued that this issue is a new one being canvassed for the first time but assuming that it is not, their response is that the burden is on the appellant to have produced secondary evidence of the said document being the report of the disciplinary committee if she considered it relevant to her case and that her failure to do so cannot be aided by invoking Section 167(e) of the Evidence Act, 2011.
On the 3 years suspension before the appellant’s appointment was finally terminated, learned counsel for the Appellant submitted that it was absurd, oppressive and barbaric to suspend a staff for a period of 3 years without salary for an unjustified reason.
Learned counsel for the appellant contended that the jurisdiction of the National Industrial Court is not only invoked for the enforcement of mere contractual rights but preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. Counsel relied NTF Mills Limited v. The 2nd Punjab Tribunal Air 1957 SC 329. Counsel submitted that the National Industrial Courts in determination of employment contract will not only enforce the provisions of contract of employment but also the application of international best practices to employer/employee dispute in line with the Termination of Employment ILO Convention No. 158 of 1982. He also buttressed that by Sections 254C(1)(F) (H) and Section 7(6) of the National Industrial Court Act, 2006 can apply international standards or best practices in labour dispute whether or not the international standards have been domesticated by Section 12 of the 1999 Constitution as amended. He also referred to Aborishade Femi, Determination of Contract of Employment In Nigeria, South Africa And Zimbabwe, Page 9-10 And Pages 44-46.
In response to this, learned counsel to the respondent submitted that this is a new argument extraneous to the pleadings at the Court below and being currently introduced to this appeal without the leave of Court. He urged the Court to discountenance same.
On the question of what is status of the appellant from the date of suspension to the date of termination? The learned counsel to the Appellant submitted that the Appellant remains as staff of the Respondent until the contract of the employment is determined. – Adekunle v. Western Region Finance Corporation W.N.L.R 5.
Learned Counsel for the appellant argued that by the evidence of the respondent at paragraph 13 of its statement on oath at page 157 of the record of appeal, the respondent denied ever accusing the appellant for any fraud. He therefore asks the question, why was the appellant suspended if she was not accused of any fraud? He also asked whether the suspension of the appellant was within the provisions of Section 21.4 of the Respondent’s handbook Exhibit F1-F10. In response to this question, learned counsel submitted that the appellant was not suspended for any gross misconduct or fraud, therefore it is the appellant’s case and that the respondent suspended her without any justification. He urged the Court to discourage the barbaric labour practice which is not in line with international best practices. – Afolayan Aderonke v. Skye Bank NICN/IB/08/2015, unreported delivered on 17th May, 2017, Article 4 of the Termination of Employment ILO Convention No. 158 of 1982, Petroleum and Natural Gas Senior Staff Association of Nigeria V. Schlumberger Anadrill Nigeria Ltd. (2008) 11 NLLR (Part.29) 164, Angel Shipping & Dyeing Limited v Ajah (2000) 13 NWLR (Part. 685) 554), Para A.
Learned counsel to the appellant insisted that the appointment of the appellant was terminated without notice. In contending that an act which is invalid is of no effect, he argued that hence the termination is invalid; the appellant’s employment subsists until the respondent fulfils the requirement of termination. He insisted that the appellant’s employment must be deemed to subsist until the date of judgment of this honourable Court. Learned counsel to the appellant made reference to paragraph 16 of the appellant’s written statement of oath at page 30 of the record of appeal. He also made reference to Exhibit A & A1 which only expressly stipulated the length of notice required by the Appellant to resign her appointment but silent on the length of notice or payment required for the respondent to terminate the appellant’s employment.
He referred to Section 254 C (1)(F) (H) and Section 7(6) of The National Industrial Court Act, 2006 as well as Article 11 of the Termination of Employment ILO Convention No. 158 of 1982, and submitted that the respondent had clearly gone contrary to international best practices. Learned counsel to the appellant submitted that if this Honourable Court finds that it could rely on the Employee’s handbooks, a document which was not frontloaded or pleaded, it was pertinent for him to refer this honourable Court to paragraph 6.1 of the said handbook at page 388 of the record of appeal.
Learned counsel to the appellant pointed out that the appellant pleaded and led evidence that she attained the position of Assistant Branch Manager. He argued that this was not denied by the respondent and that the implication is that the respondent has breached the appellant’s contract of employment. Counsel relied on Chukwumah v. S.P.D.C Limited (1993) 4 NWLR (Part. 289) 512 at 536-7.
He also pointed out that the appellant was not paid salary in lieu of notice at the time she was given letter of termination, contending that it is therefore invalid and of no effect. Learned counsel submitted that the appellant’s employment subsists until the terms of employment are complied with in determining it and that the appellant is entitled to be paid her entitlement benefits until the date of determination by this Honourable Court. – Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Part.1157) 100 @ page 136, paras, F.H.
Learned counsel to the appellant submitted that in a successful claim for wrongful termination, where the contract provides for the length of notice, the party claiming wrongful termination is entitled to terminal benefits by way of the period’s salary and any other legitimated entitlements to which he may be entitled at the time the employment was put to an end. – Mobil Oil (Nig.) Limited v. Assan (2003) 6 NWLR (Part.816) 311 @ page. 318, paras. E-G. He made reference to page 131 -134 of the record of appeal. At page 135 of the record of appeal, the appellant claimed the sum of N16,517,045.03 (Sixteen Million, Five Hundred and Seventeen Thousand, Forty-Five Naira). He contended that the appellant having proved her case is entitled to the said sum and urged this Court to grant the appellant’s claim.
Learned counsel for the appellant insisted that apart from the terminal benefits, the appellant is also entitled to damages for breach under the general law of damages which claimed. – Swiss-Nigerian Wood Industries Limited v. Bogo (1970) N.C.L.R 423 at 430, Halsbury’s Laws of England, Volume 20 Para 218.
He also pointed out that the appellant is also claiming the interest at the rate of 21%. E.A Limited Industries v. Nerfund (2009) 8 NWLR (Part.114).
Learned counsel submitted that the award of pre-judgment interest must be as agreed by the parties, and that a bank has power to charge compound interest on loans or other advances granted to a customer even where there was no express agreement on the rate of interest to be charged. – Hausa v. FBN Plc (2000) 9 NWLR (Part 671) 64 @page 71, Para. E, U.B.N Limited v. Salami (1998) 3 NWLR (Part. 543) 538.
Learned counsel for the appellant posited that the appellant is also claiming the cost of litigation vide her originating processes, and the claim for cost is based on the reckless impunity of the respondent to give effect to terms and conditions of contract of the employment between them which require the Respondent to avail the appellant a reasonable notice of termination of employment. – ARTICLE 11 of the Termination of Employment ILO Convention No. 158 OF 1982 OR EXHIBIT DE-DE30 in the event that this Honourable Court finds that the said exhibit was rightly admitted. See A.C.B. Limited v. Ajugwo (2012) 6 NWLR (Part. 1295) 97 @ P. 130, Paras. E-F.
He finally urged this Honourable Court that in the event that it finds merit in the appellant’s claim, the appellant is entitled to the cost of N1,000,000.00 (One Million Naira) in view of the overriding circumstances of this matter and resolve this issue in favour of the appellant.
In response, the counsel for the respondent submitted that the claim of the appellant not given notice of termination or paid salary in lieu of notice was not raised at the lower Court and accordingly was rightly dismissed. He contended that the appellant had no particular claim for salary in lieu of notice which made this claim a new issue on appeal being canvassed without the leave of Court. He therefore urged the Court to dismiss same. Learned counsel to the respondent referred this Court to pages 329 and 384 of the records of appeal where the Appellant admitted to being indebted to the Respondent. He further noted that in Exhibit DA, it is clearly shown that after the tabulation of the appellant indebtedness including her terminal benefits, the sum of N1,464,885.55 was still owed to the respondent. He urged the Court to discountenance the appellant claim for salary in lieu and to resolve issue one in favour of the respondent.
This issue portrays a very interesting and funny development in the instant case. This appeal was inaugurated and argued in an outlandish manner on the contention that Exhibits DE to DE30 were not pleaded by either the appellant nor the respondent in their case at the trial Court. In the first place, it is noteworthy that it is the appellant as claimant who tendered Exhibits DE – DE30 at the trial Court the Handbook of the respondent which she was part of the document of her contract of employment. See the record of proceedings of the trial Court at page 341 of the record of appeal. This fact was also called up by the trial Court in its judgment at pages 353 to 354 of the record of appeal. The record before this Court shows clearly that it was the appellant while cross-examining the 1st DW, that introduced the Handbook which he later tendered as Exhibit. The learned counsel for the respondent opposed the admission of the said document on the ground that it was not pleaded. The Court at the instance of the law clearly is beyond reproach that any evidence outside the pleadings is not allowed. Yet the appellant overruled the objection and admitted the Handbook as Exhibits DE – DE30. Now that the Exhibit so admitted did not favour the case of the appellant he took up this appeal to complain that the Exhibits were not pleaded and that the trial Court ought not to have admitted the said Exhibits because it was not pleaded. This no doubt, is an abuse of the process of the Court.
Furthermore, since the appellant is the mastermind of the admission of the said Exhibits DE – DE30, he is estopped from raising the issue on appeal. This is apt because a party is not allowed to profit from his own wrong and subject the due administration of justice to ridicule. See the cases of Oyerogba & Anor v. Egbewole Olaopa (1998) LPELR – 2878 (SC) and Agbogunleri v. Mr. John Depo & Ors (2008) LPELR – 243 (SC), where the Supreme Court held:
“It is pertinent for me to state that estoppel, generally, is that doctrine where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not. It is therefore a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. The Common law recognizes three kinds: 1) Estoppel by record or quasi by record; 2) Estoppel by deed and 3) Estoppel in Pais.”
I must say again that it is trite law that a party must be consistent in his case. An appeal is a continuation of the case of the appellant. It has long been settled that a party must be consistent in the presentation of his case. In the case of Nyako v. Adamawa State House of Assembly & Ors., (2016) LPELR- 41822 (SC), the Supreme Court held that:
“An appeal is not for retrying the action, rather it is rehearing on the record of appeal. The appeal Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice in much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding to discover the truth. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12).”
The appellant under our laws is not allowed to take a step and a position in his claim before the trial Court and come to the appellate Court to argue and urge the Court to overrule his earlier position which will be antithetical to the rule of equity that says he who comes to equity must come with clean hands and clear conscience. It is in the same light that the Supreme Court held emphatically in the case of Asaboro & Anor v. Pan Ocean Oil Corporation (Nig.) Ltd. & Anor., (2017) LPELR – 41558 (SC), that:
“It is settled law that a party should be consistent in the case he presents at the trial and appellate Courts as he is not allowed to present different cases before each hierarchy of Court as he desires. In other words, a party is not allowed in the presentation of his case before the Court to approbate and reprobate – see Intercontinental Bank Ltd v. Brifina Ltd (2012) All FWLR (Pt. 639) 1192 at 1206.”
From these authorities, it is very clear that this issue should be resolved in favour of the respondent. The issue is accordingly resolved in favour of the respondent.
Issue Two:
This issue is – whether the lower Court breached the appellant’s constitutional/fundamental right to fair hearing as guaranteed by the 1999 Constitution?
Counsel for the appellant submitted that this issue is drawn from Ground 6 & 7 of the appellant’s Notice of Appeal, on the lower Court to evaluate evidence and determine issue of unlawful termination of the appellant. He argued that the judgment of the lower Court touched heavily on the unlawful suspension but did not make any determination of whether there was unlawful termination of contract. He also insisted that there was conflict of interest in the holding of the lower Court as captured at page 297 of the record of appeal without giving parties the opportunity to address it on same which influenced the mind of the lower Court to dismiss the appellant’s claim.
Learned counsel for the appellant argued that from the judgment, it is clear that the lower Court did not make any pronouncement as regards to issue 2 raised in the Appellant’s written address. Counsel relied on N.I.C v. Aminu 8 NWLR (Part. 1302) 330 @ page.365, Paras. E-F, S.C.C (Nig.) Limited v. Anya (2012) 9 NWLR (Part. 1305) 213 @ page. 226, Para. E- F. He contended that the failure of the lower Court to consider and make a pronouncement in respect of issue 2 raised in the appellant’s written address constitutes a breach of the appellant’s right to fair hearing.
Learned counsel for the appellant submitted that the breach of the appellant’s right to fair hearing has occasioned a miscarriage of justice. He pointed out that the appellant led evidence as to the termination of her contract of employment by the respondent and tendered her letter of termination of employment which was admitted in evidence as Exhibit C. He contended that however there was nowhere in the judgment of the lower Court where it was evaluated. He also submitted that if the lower Court evaluated the said evidence which was not converted, it would have come to the irresistible conclusion that there was an unlawful termination of contract. Counsel relied on Ekerete v. UBA (2005) 9 NWLR (Part. 930) 401 @ 419, Para. C, Akuburo v. Mobil Oil (Nig.) Plc (2012) 14 NWLR (Part. 1329) 42 @ page. 84, paras, C-E, Molabi v. MS.W Limited (2012) 17 NWLR (Part.1329) 286 @ page 300, paras. E-F.
Learned counsel for the appellant contended that the lower Court raised the issue of conflict of interest without giving parties an opportunity to address it and that it swayed its mind to enter judgment in favour of the Respondent. – Akere v. Governor Oyo State (2012) 12 NWLR (Part1314) 240 @ page. 295, paras. D-F. He submitted that the Court ought not to have considered the issue in favour of the appellant.
Learned counsel to the appellant urged this Court to allow this appeal and set aside the judgment of the lower Court.
In response, learned counsel for the respondent argued that both parties were availed uncluttered opportunities to ventilate their cases before the Court below and that the Court adopted the issues as canvassed by the parties in determining the case.
He argued that it was clear in the record of appeal that the trial Court found that the contract of employment between the appellant and the respondent comprised of 2 documents to wit, Exhibits A-A1 & DE-DE30. He posited that Exhibits A-A1 was the letter of offer of employment dated 29th of April, 2002 and the said document provides as also observed by the trial Court in its evaluation of evidence.
Learned counsel to the respondent insisted that there was never a case of wrongful termination before the Court but rather what was before the Court was a case of indefinite suspension that violated the rules of natural justice. He argued that the trial Court below had no obligation to determine the issue of wrongful termination as same did not form the substratum of any of the claims sought before the Court below particularly in light of the amended statement of claim. Counsel relied on Osolu v. Osolu (2003) SCNJ 162.
Learned counsel to the respondent submitted that the issue raised by the appellant that the Court below raised the issue of “conflict of interest” and resolved same without recourse to the parties was unless one chooses to argue on semantics, wrong. He insisted that it was pleaded in their amended statement of defence and the issue of conflict of interest between the Appellant as staff of the Respondent and her relationship with PAVILION MOTORS LTD beneficiaries of the fraud in the respondent was also argued in their final written address. Learned counsel to the respondent argued that it was wrong for the Appellant to contend that the trial Court raised the issue of conflict of interest suo motu and proceeded to resolve same without first availing the parties the opportunity of addressing him on it. He urged this Court to resolve issue two in favour of the respondent and to dismiss this appeal as lacking in merit with substantial cost in favour of the respondent.
The appellant filed a reply brief in reaction to the Respondent’s Notice of Preliminary objection and also in reaction to the argument of the respondent in its brief of argument.
Learned counsel to the appellant submitted that from the pleadings, wrongful termination of the appellant was in issue contrary to the respondent’s argument that there was no claim for wrongful termination of contract making ground 3 of the notice of appeal incompetent. He insisted that the respondent and the appellant joined issues as to the termination of the appellant’s employment. Counsel to the appellant submitted that pleadings define with clarity and precision the issues or questions which are in dispute between the parties and fall to be decided by the Court. He further submitted that pleadings deal mainly with facts. – Olufosoye v. Olorunfemi (1988) 1 NSCC at 28, Fidelis Nwadialo On Civil Procedure In Nigeria 2nd Edition, (2000) University of Lagos Press at page 3030.
Learned counsel to the appellant argued that though the lower Court referred to the issue of wrongful termination of the appellant’s contract of employment in its judgment, the lower Court had a duty to pronounce on whether the appellant’s contract was wrongfully terminated or not, since it was an issue in line with the appellant’s final written address. He contended that it was consequent to this failure that the appellant raised ground 3 in her amended notice of appeal. He submitted that dispute between parties to a suit are always based on facts on which issues are joined and that it’s the function of the Court to make findings of fact based on these issues, as it was clearly pleaded. – Okenwa v. Military Governor Military (1996) 6 SCNJ at 235 at 236, Onamade v. ACB (1997)1 SCNJ 65 at 87- 88, Adegbite v. State (2018) 5NWLR (Part.1612) 183 @ part 211, Para. B.
Learned counsel to the appellate argued that the cases of Micmerah Int’l Agency Limited v. A-Z Petroleum Products Limited, Napoleon S. Orianzi v. The Attorney General, Rivers State & Ors., in the respondent’s brief of argument are not applicable to the facts of this case.
On the respondent’s brief of argument that it is the burden of the appellant to produce secondary evidence of the report of the disciplinary committee, the learned counsel to the appellant contended that it is baseless and misconceived and will not apply to the circumstances of this suit. He argued that the issue of secondary evidence cannot come up because the appellant never at any point received a copy of the report of investigation. He referred this Court to the cross-examination of DW1 at page 338 of the record of appeal, where DW1, admitted that the appellant was not sent the report.
Learned counsel to the appellant pointed out the argument of the respondent that the lower Court resolved the issue of the unlawful termination of contract as being wrong. He posited that the question is that if the lower Court adopted the issues formulated by patties including issue 2 as formulated by the appellant as shown in the record of appeal, where in the judgment did the lower Court evaluate the evidence relating to wrongful termination and arrive at a decision? He submitted that the decision of the Court could not have been a decision on wrongful termination of the appellant’s contract as it fell short of what a decision ought to be in the light of the evidence available and also in the light of issue 2 raised by the appellant in her final written address. He referred this Court to Saraki v. F.R.N (2018) 16 NWLR (Part.1646) 405 @ page 448, Pacas. B-E; 457, Paras. B-D; 463, Paras. E.G.
Learned counsel to the appellant submitted that the lower Court failed to analyse the evidence as relating to unlawful termination of the appellant’s contract and urged this honourable Court to finally allow this appeal and set aside the judgment of the lower Court.
From the argument of the parties on this issue, the concern is on the evaluation of evidence as carried out by the trial Court. It is in the province of the trial Court to move in line with our rules and evaluate the evidence put before it by the parties. The trial Court is the master of the proceeding of the Court at the trial and its evaluation of the evidence before it except it is perverse, it cannot be lightly tampered with by the Court on appeal. In the case of CPC v. INEC & Ors. (2011) 18 NWLR (Pt. 1279) 493, the Supreme Court, per Adekeye, JSC, held as follows:
“The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence. The Court must ensure that it holds the string or scale of justice evenly balanced between the parties so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence. It is the trial Court which alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion.”
This position of the law as eloquently stated by the Supreme Court governs this case. In the instant case, the trial Court took time to evaluate the evidence adduced before it, and came up with the conclusion that the claim of the appellant be allowed in part. The analysis given by the trial Court is faultless. This issue is equally resolved in favour of the respondent.
From the foregoing therefore, I come to the conclusion that there is no merit in this appeal. The appeal is dismissed.
The judgment of the trial Court in Suit No: NICN/ABJ/340/2013, delivered on 8th January, 2016, is accordingly affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.
I agree with the decisions in the leading judgment and abide by all the consequential orders therein.
YARGATA BYENCHIT NIMPAR, J.C.A.: The judgment just delivered by my learned brother STEPHEN JONAH ADAH, JCA was made available to me before now and I agree with his reasoning and conclusion that the appeal is devoid of any merit and deserves to fail. The Appellant contended that there was nowhere in the judgment of the lower Court where the evidence tendered by the Appellant was evaluated. He also submitted that if the lower Court evaluated the said evidence which was not converted, it would have come to the irresistible conclusion that there was an unlawful termination of contract.
The law is trite that the duty of evaluation of all material and relevant pieces of evidence are the primary responsibility of the trial Court. In other words, ascription of probative value or weight to such evidence is the function of the trial Court which saw, heard and watched the demeanour of witnesses while they testified. See the case of KARIBO & ORS V. GREND & ANOR (1992) LPELR-1667(SC) and ATUYEYE & ORS V. ASHAMU (1987) LPELR-638(SC).
It is clear from the record of the appeal that the trial Court evaluated the evidence placed before it when it concluded that the claim of the Appellant be allowed in part. The whole evaluation done by trial Court is faultless and the Court would not intervene as it is trite law that where such a Court of trial has justifiably evaluated the evidence, it is not the business of the Appellate Court to substitute its own views for that of the trial Court.
What the Appellate Court is called upon to do when faced with such is to ascertain whether or not there is evidence upon which the trial Court acted. Once there is such evidence, the appellate Court will not intervene even if it feels that if the facts were before it, it would not have come to the same decision as the trial Court. See the case of EWUGBA V. STATE (2017) LPELR-43833 (SC) and ATTAH V. STATE (2010) NWLR (PT.1201) 190 AT 217.
In view of the above additional discussions, I am in full agreement with the lead judgment of learned brother STEPHEN JONAH ADAH, JCA which I have had the advantage of reading in advances, I also hold that the appeal is unmeritorious and therefore it is dismissed. I abide by the consequential orders made in the lead judgment.
Appearances:
Tochukwu Onyiuke, Esq. For Appellant(s)
John Erameh, Esq. For Respondent(s)
