UNITY BANK v. CHORI
(2021)LCN/15806(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, September 30, 2021
CA/A/463/2018
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
UNITY BANK PLC APPELANT(S)
And
BAKO N. CHORI RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “EMPLOYEE”
According to the Black Law’s Dictionary, an employee is “any person in service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed”. In other words, contract of employment can be oral. In an action for breach of contract of employment, the general principle is that the letter of appointment must be tendered as it is the document that the Court will look at in considering the rights and obligations of the parties especially where the reliefs sought are declaratory. The failure of a claimant to tender his letter of employment might be fatal to his case. See OBANYE V. UBN PLC (2015) LPELR-(CA).
Though letter of employment most often than not is required in proof of employment, nevertheless, it is also a settled principle of law that cases are decided on their own facts. Thus, the case sought to be relied upon must be on all fours with the present case. See MAI-KIRI V, YAHAYA (2018) LPELR-46595(CA). Therefore, the decision in one case is not applicable in another unless the two are similar in respect of their facts and circumstances. PER ONYEMENAM, J.C.A.
WHETHER OR NOT AN EMPLOYEE CAN BE DISMISSED AFTER HAVING PREVIOUSLY BEEN RETIRED
The issue herein is whether an employee can be dismissed after having previously been retired. It is important to note that both retirement and dismissal brings to an end the life of a contract of employment. Therefore, by implication, once either dismissal or retirement has taken place, the other cannot follow for the two serve the same purpose. I acknowledge however that, though the two serve the same purpose, that is, brings to an end the life of a contract of employment, there is a clear difference. Dismissal is punitive, and usually without any terminal benefits to the employee. The employee stands disgraced and held in ignominy. On the other hand, where an employee is retired, he receives his terminal benefits under the contract of employment. See EKEAGWU V. THE (NIG) ARMY & ANOR (2006) LPELR-7641(CA). Thus, whichever that comes first brings to an end the employment relationship and determines the nature of the employee’s exit. PER ONYEMENAM, J.C.A.
THE GENERAL PRINCIPLE THAT CASES ARE DETERMINED BASED ON THE RELIEFS SOUGHT BY PARTIES
The general principle of law is that cases are determined based on the reliefs sought. Thus a Court is duty bound to confine itself to issues raised by the parties. The Court has no power to deviate from the case of the parties or to speculate, otherwise it might find itself covered by the dust of conflict. See ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. EKWENEM (2009) LPELR-(SC); FRN V. MOHAMMED (2014); LPELR-(SC); NWAWUBA V. EZEABASIRIM & ORS (2018) LPELR-(CA). PER ONYEMENAM, J.C.A.
WHETHER OR NOT UNSIGNED DOCUMENTS ARE VALID
The general principle of law is that unsigned documents are invalid and has no evidential/probative value. It is totally worthless and incapable of conferring legal benefits. It does not have any efficacy in law. See ALI V. STATE (2021) 12 NWLR (PT.1789) 159 (SC); OROK V. ETA (2021) 12 NWLR (PT. 1790) 350 PARA G(CA); VISINONI V. BRAHAMS & ANOR (2015) LPELR-40405 (CA). This general rule however is not without exceptions. Similarly, computer generated documents are admissible subject to some conditions. Thus, when certain situations exist, a computer generated document and an unsigned document can be admissible. See KUBOR & ANOR V. DICKSON & ORS (2012) LPELR – (SC). See also ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) 5 NWLR PT. 1666 (P.464. PARAS F-G) LPELR-46541 (SC). The Apex Court in the referred case succinctly stated that:
“The legal requirement of signature on a document is to determine the document’s origin and authenticity with regard to its maker. So, where certain situations exist, an unsigned document could be admissible where oral evidence is presented to clarify the document and its authorship. In this case, the parties agreed that Exhibit L emanated from the Appellant and rendered it admissible. Therefore, the Court of appeal rightly found the document was admissible.”
See also BRILA ENERGY LTD V. FRN (2018) LPELR-(CA); SECTION 84 OF THE EVIDENCE ACT, 2011. PER ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court, Abuja, delivered in Suit No: NICN/ABJ/285/2013 by E. D. E. ISELE, J. on 14th October, 2016.
At the trial Court, the Respondent by a writ of summons dated and filed on 23rd October, 2013, sued the Appellant at the Abuja Judicial Division of the National Industrial Court of Nigeria for wrongful termination of his appointment. The several reliefs sought at the trial Court are as follows:
i. A DECLARATION that the purported dismissal of the claimant on the 1st day of August, 2012 is wrongful, null and void and of no effect whatsoever,
ii. A DECLARATION that the claimant was validly retired from the service of the defendant on 23rd July, 2012,
iii. AN ORDER of the Court directing the defendant to pay the claimant his retirement benefit of N8,000,000.00 only or any amount so calculated as the claimant’s entitlement.
iv. The sum of N50,000,000.00 (Fifty Million Naira) as general damages for defamation of character.
v. 10% interest on the sum of N58,000,000.00 (Fifty-Eight Million) from the date of judgment to the date the judgment sum is finally liquidated.
vi. Cost of this suit.
The brief fact of the case is that the Respondent was an employee of the Bank of the North which alongside other eight banks was acquired by the Appellant. The Respondent later rose to the position of a manager in one of the branches of the Appellant and worked as a branch manager. Sometime in 2012, the Appellant alleged that one of her customers by name Tanko Mohammed applied for facility of N5 Million only and the sum of N10 Million was processed for him on the purported advice of the Respondent as the branch manager with the understanding that he will give the Respondent N5 Million to use and to later settle the account together. The Respondent responded to the said allegation and nothing was heard about it again until after his purported retirement on 23rd July, 2012. The Respondent by the policy of the bank was retired on ground of age along with 530 other staff as contained in Exhibits D-D14 wherein the name of the Respondent was Number 91 on the list. Pursuant to the said retirement, the entitlement of the Respondent was calculated and paid into his account but was withdrawn by the Appellant the same day on ground of error. The Appellant thereafter on 1st August, 2012 dismissed the Respondent on ground of misconduct.
The trial Court on 14th October, 2016 delivered its judgment and held as follows:
“Having held as such above, it is hereby declared that the purported retrospective dismissal of the Defendant dated 1st August, 2012 is unlawful and therefore of no effect. It is hereby ordered that the claimant who was validly retired from the Defendant’s service on 23rd July, 2012 cannot subsequently be dismissed on 1st August, 2012. The defendant is hereby ordered to pay the claimant the amount standing as his retirement benefit of the claimant at N8,000,000. The 3rd and 5th head of claim of the claimant is refused. Judgment is entered for the claimant. The counter-claim of the defendant fails as a consequence. Both counter claims were not particularized and properly pleaded, they were not proven. The Defendant is to comply with this order within thirty days failing which interest on the awarded sum shall begin to run at the rate of 10% per annum.”
The Appellant dissatisfied with the decision of the trial Court, approached this Court by a Notice of Appeal filed on 23rd April, 2018. Counsel on both sides filed their relevant processes as required by the rules of the Court and the appeal was heard on 7th July, 2021.
ABDULRAZAQ S. GOBIR ESQ., with JOSEPH AROME ESQ., and ABDULLAHI ABUBAKAR ESQ., appeared for the Appellant, he adopted and relied on the Appellant’s brief of argument and Appellant’s reply brief of argument filed on 28th June, 2018 and 6th October, 2018 respectively. He urged the Court to allow the appeal.
IYAJI PATRICK OJEKA ESQ., appeared for the Respondent, he adopted and relied on the Respondent’s brief of argument filed on 24th July, 2018 and urged the Court to dismiss the appeal.
In the Appellant’s brief of argument settled by ABDULRAZAQ S. GOBIR ESQ., 5 issues were formulated for determination as follows:
1) Whether the Respondent proved that he was an employee of the Appellant and that he was duly retired on 23rd July, 2012 after putting 31 years in the service of the Appellant?
2) Whether the Respondent’s case was not for a wrongful dismissal and that he was not required to prove the conditions of his employment particularly when the Respondent sought for declarations that the purported dismissal was wrongful, null and void and of no effect and that he has validly retired from the service of the Appellant.
3) Whether the trial Court was not wrong when he admitted and relied on inadmissible documents to found for the Respondent
4) Whether failure of the trial judge in delivering judgment in the case about 180 days after adoption of addresses had not impaired a proper evaluation of evidence and law thereby occasioning injustice on the Appellant.
5) Whether the failure to communicate notice of judgment date to appellant when Respondent was communicated to, did not breach rules of fair hearing thereby rendering the judgment a nullity.
In the Respondent’s brief of argument, IYAJI PATRICK OJEKA ESQ., for the Respondent adopted the five issues for determination raised by the Appellant.
Upon careful examination of the 5 issues raised by the Appellant which same were adopted by the Respondent, I have the view that adopting the five issues raised by the Appellant will substantially determine this appeal as same touches on all the areas of her complaint. I shall therefore determine this appeal on the referred five issues.
SUBMISSIONS ON ISSUE ONE
Whether the Respondent proved that he was an employee of the Appellant and that he was dully retired on 23rd July, 2012 after putting 31 years in the service of the Appellant?
ABDULRAZAQ S. GOBIR ESQ., for the Appellant contended that the Respondent failed to present his letter of employment even after admitting that he was issued with a letter of employment to enable the learned trial Judge know if any condition of employment has been breached as is the requirement in a case relating to a wrongful dismissal of an employee. He relied on Patrick Ziideh V. River State Civil Service Commission (2007) vol 4, MISC at 150 Pp 161-162 paras F-A.
The learned counsel contended that where findings of trial Court are not supported by evidence, such findings are said to be perverse. He submitted that the findings of the trial Court at the instant case is perverse as same were speculative and not supported by evidence as there was no evidence that the Respondent joined the service of Appellant on 30th November, 1981. He relied on Osuji V Ekeocha (2009) 7 MJSC (pt II) at 74 particularly at 110; Ujam V. I.M.T (2007) 2 NWLR (Pt 1019) 470 CA; Section 131 (1) & (2) of Evidence Act.
The learned counsel also submitted that the learned trial Judge ought to have taken the refusal of the Respondent to present his letter of employment to mean that if he had presented the letter, the content therein would have been against him. He relied on Okunzua V. Amosu (1992) 6 NWLR (Pt 248) 416 at 435 A-H; Ottih V Nwanekwe (1990) 3 NWLR (Pt 140) 550 at 562 E-F; Section 167 (d) of Evidence Act.
IYAJI PATRICK OJEKA ESQ., for the Respondent in response to this issue submitted that the principle is settled that he who asserts must prove and facts admitted need no further prove. He further submitted that the fact that the Respondent was an employee of the Appellant needs no further proof. He relied on BUNGE VS GOVERNOR OF RIVER STATE (2006) 12 NWLR (PT. 995) 573 @ 599 – 600; KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) 3 NWLR (PT. 1182) 618-668 PARAS C-O; Section 131 of the Evidence Act.
The learned counsel contended that the Appellant cannot validly contest the employment of the Respondent as dismissal or retirement presupposed that there existed an employment which could be validly ended either by termination or dismissal. Thus, the age or date of employment was not relevant in the circumstance, the Appellants having already generated Exhibits D-D14 and also calculated the Respondent’s entitlement. He cited ABEKHE VS ALPHA MERCHANT BANK PLC (2017) ALL FWLR (PT. 914) P. 971 @ 1004 PARAS A-B; Section 1 (a) of the Evidence Act 2011.
ABDULRAZAQ S. GOBIR ESQ., in his reply submitted that the Appellant never admitted the employment of the Respondent for it to require no further proof for admissions must be clear, precise and unequivocal. He relied on Coker V. Olukoga (1994) 2 NWLR (pt 329) 648 at 662C.
He further submitted that the Respondent must succeed or fail on the strength of his proof and not on “admission”, weakness or otherwise of the Appellant’s case. He relied: N.B.N Ltd V. UC Holdings Ltd (2004)19 NWLR (Pt 891) 496 at 459 paras G.
RESOLUTION OF ISSUE ONE
The quarrel of the Appellant herein inter alia is that the trial Court erred in law when it held that the Respondent was an employee of the Appellant despite the Respondent’s failure to tender his letter of employment. According to the Black Law’s Dictionary, an employee is “any person in service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed”. In other words, contract of employment can be oral. In an action for breach of contract of employment, the general principle is that the letter of appointment must be tendered as it is the document that the Court will look at in considering the rights and obligations of the parties especially where the reliefs sought are declaratory. The failure of a claimant to tender his letter of employment might be fatal to his case. See OBANYE V. UBN PLC (2015) LPELR-(CA).
Though letter of employment most often than not is required in proof of employment, nevertheless, it is also a settled principle of law that cases are decided on their own facts. Thus, the case sought to be relied upon must be on all fours with the present case. See MAI-KIRI V, YAHAYA (2018) LPELR-46595(CA). Therefore, the decision in one case is not applicable in another unless the two are similar in respect of their facts and circumstances.
From the record of proceedings before this Court and by the argument of counsel on both sides, it is not in contention that Exhibits D-D14 were generated from the sight of the Appellant and its authorship is not in contention. It is also not in contention that the Respondent was retired by the Appellant on 23rd July, 2012, whether duly or in error; and that his gratuity was calculated and paid into his account, although the same was withdrawn by the Appellant. It is again also not in controversy that the Respondent was subsequently purportedly dismissed by the Respondent on 1st August, 2012. The referred undisputed facts obviously presuppose the existence of employer-employee relationship. Hence, the cases cited by the learned counsel for the Appellant cannot be said to be on all fours with the present case. While in the cases cited by the learned counsel, the conditions of the employment were in issue, in the instant case, the issue is whether the Respondent can be dismissed after having been retired. It is irrational to even think of retiring or dismissing someone who is not your employee. The actions of the Appellant in Exhibits A, C1 C2, C3, D-D14, F1, F2, and F3 and the admissions of the Appellant that she paid the Respondent his gratuity whether in error or not presuppose the existence of employer-employee relationship. I reiterate that from the totality of the evidence on the records, the issue of breach of condition of service was not in issue. In issue in the case that led to this appeal is whether the Respondent can validly be dismissed after having been retired by the Appellant. I therefore hold the principle of law requiring that the Respondent prove his employment by tendering his letter of employment does not apply herein. Without further belaboring this issue, I lean on the settled law that facts admitted need no further proof. See KOMOLAFE V. FRN (2018) LPELR-(SC); BARAU & ORS V. CONSOLIDATED TIN MINES LTD & ORS (2019) LPELR- 46806 (CA); MBA V. MBA (2018) LPELR-44295(SC); SECTION 123 OF THE EVIDENCE ACT, 2011.
In all I firm, that in an action such as this, where the Respondent’s condition of service was not in issue, it goes with the settled principle of law that the Appellant having admitted that it employed the Respondent and went ahead to retire him, the Respondent did not need to prove his employment and the admitted fact required no further prove. Accordingly, I hold that the trial Court was right to find that the Respondent proved that he was in the employment of the Appellant.
Now, on the second leg of this issue, whether the Respondent was duly retired after putting 31 years of service in the employment of the Appellant. I make bold to say that from the records of appeal before this Court, this case is not one of wrongful/unlawful dismissal stricto-sensu. The issue herein is whether an employee can be dismissed after having previously been retired. It is important to note that both retirement and dismissal brings to an end the life of a contract of employment. Therefore, by implication, once either dismissal or retirement has taken place, the other cannot follow for the two serve the same purpose. I acknowledge however that, though the two serve the same purpose, that is, brings to an end the life of a contract of employment, there is a clear difference. Dismissal is punitive, and usually without any terminal benefits to the employee. The employee stands disgraced and held in ignominy. On the other hand, where an employee is retired, he receives his terminal benefits under the contract of employment. See EKEAGWU V. THE (NIG) ARMY & ANOR (2006) LPELR-7641(CA). Thus, whichever that comes first brings to an end the employment relationship and determines the nature of the employee’s exit.
In this case, the Respondent had earlier been retired on 23rd July, 2012 before the purported dismissal on 1st August 2012.
Since the two cannot exist side by side nor follow each other, the first in time which is the retirement prevails having ended the contract of employment already. An employer cannot legally dismiss an employee who she had earlier retired since after his retirement he ceases to be his employee.
Accordingly, I fail to fault the trial Court for determining the case based on the facts and circumstances. I hold that the trial Court was right when it held that the Appellant having been duly retired the Respondent could not subsequently dismiss him. Issue 1 is resolved in favour of the Respondent.
SUBMISSIONS ON ISSUE TWO
Whether the Respondent’s case was not for a wrongful dismissal and that he was not required to prove the conditions of his employment particularly when the Respondent sought for declarations that the purported dismissal was wrongful, null and void and of no effect and that he had validly retired from the service of the Appellant.
ABDULRAZAQ S. GOBIR ESQ., for the Appellant on this issue contended that the trial judge made a different case for the Respondent and this is not within the vire of the trial Court to make a case for the parties. He submitted that the trial Court closed its eyes to Exhibit C1 & C2 and arrived at a perverse judgment, he urged the Court to allow the appeal. He relied on the case of Sanni V Ademiluyi (2003) vol. 6 MJSC.
IYAJI PATRICK OJEKA ESQ., for the Respondent on this issue submitted that the trial Court did not make a case for the Respondent as it merely granted the declaration sought which was to the effect that the Respondent was already duly retired.
The learned counsel contended that even if the argument of the Appellant that the case of the Respondent was predicated on denial of fair hearing and wrongful dismissal, the procedure adopted by the Appellant in dismissing the Respondent before investigating or hearing the Respondent were clearly in breach of the rule against fair hearing. He cited the case of FEDERAL POLYTECHNIC EDE & ORS VS ALH LUKMAN ADEKOLA OYEBANJI, (2012) LPELR 19696 (CA); NWANEGBO VS OLUWOLE (2001) 37 WRN 101, OAWOOU VS N.P.C (2000)6 WRAI 116; OURWOLE VS THE STATE (2001)7 WRN 50. He urged the Court to resolve the issue in favour of the Respondent.
ABDULRAZAQ S. GOBIR ESQ., for the Appellant in response to the argument of the Respondent submitted that fair hearing in administrative inquiry cannot be equated with a judicial trial. The query issued and the response to query is a proof that there was no breach of fair hearing. He cited Imonikhe V. Unity Bank Plc (2011) 12 NWLR (pt 1262) 624 at 648 paras F-G.
RESOLUTION OF ISSUE TWO
The contention of the Appellant herein is that, the case of the Respondent at trial was for wrongful dismissal and the learned trial Judge erroneously made a different case for the Respondent. The general principle of law is that cases are determined based on the reliefs sought. Thus a Court is duty bound to confine itself to issues raised by the parties. The Court has no power to deviate from the case of the parties or to speculate, otherwise it might find itself covered by the dust of conflict. See ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. EKWENEM (2009) LPELR-(SC); FRN V. MOHAMMED (2014); LPELR-(SC); NWAWUBA V. EZEABASIRIM & ORS (2018) LPELR-(CA).
The reliefs sought in every suit are as contained on the face of the originating process. For the purpose of emphasis, I refer to the reliefs sought as earlier reproduced above. From the reliefs sought, it is apparent that the case is not that of a wrongful dismissal per se, rather, that of a void act. It is important to state herein that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. See Kwara State Judicial Service Commission V. Tolani (2019) 7 NWLR (Pt.1671) 382; Onwusukwu V. Civil Service Commission (2020) 10 NWLR (Pt. 1731) 179. The action at the trial Court not being against a wrongful dismissal, the Respondent does not have to prove the conditions of his employment. Herein, the employee had been retired, thus, any subsequent termination or dismissal of his employment is null and void, as there is no dismissal or termination after retirement. What the employer herein did was a nullity.
I firm that the issue herein is not that of wrongful dismissal but an act of the Appellant which is a nullity. I resolve the issue in favour of the Respondent.
SUBMISSIONS ON ISSUE THREE
Whether the trial Court was not wrong when he admitted and relied on inadmissible documents to found for the Respondent.
ABDULRAZAQ S. GOBIR ESQ., for the Appellant on this issue contended that the trial Court ought not to have relied on Exhibits D-D14 and Exhibit G which were purportedly gotten from the site of the Appellant as same were unsigned and hence, inadmissible for failure to comply with the provisions of the Evidence Act. He relied on the case of Jinadu V. Esunronbi (2005) ALL FWLR (Pt 251 at 349; Sections 84 (1) & (2) and 258 of Evidence Act.
The learned counsel submitted that the thrusting of the authorship of Exhibits D-D14 and G1 and the reliance on same had occasioned miscarriage of justice on the Appellant. He urged the Court to resolve the issue in favour of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
IYAJI PATRICK OJEKA ESQ., for the Respondent on this issue contended that the fact that Exhibits D-D14 and G1 were computer generated documents does not make them inadmissible under Section 84 of the Evidence Act 2011 as the Appellant did not deny the fact that Exhibits D – D14 was generated from their website and circulated by them. Thus, they did not deny the authorship, neither did they object to the admissibility at the trial Court. Hence, by their conduct, they consented to the admissibility. He relied on the case of LONGE VS FIRST BANK OF NIG, PLC. (2006) 3 NWLR (PT. 967) 228 @ 280 PARAS C-O; AGAGU VS DAWODU (1990) 7 NWLR (PT. 160) P. 56. The learned counsel further submitted that application of the provisions of the Evidence Act at the National Industrial Court is not mandatory. He relied on Section 12 (1) of the National Industrial Court Act 2006.
It is also the submission of learned counsel that non-signing of documents does not render it inadmissible but only goes to the weight to be attached to it. He cited AGBAHOMOVO V. EDUYEGBE (1999) 3 NWLR ‘(PT. 594) 1, 170 AT 183.
RESOLUTION OF ISSUE THREE
On whether evidential value can be attached to Exhibits D-D14 and Exhibit G being a computer generated evidence and the same unsigned. I bring to note that evidential value is the legal weight which a Court attaches to evidence. It is determined by admissibility. The general principle of law is that unsigned documents are invalid and has no evidential/probative value. It is totally worthless and incapable of conferring legal benefits. It does not have any efficacy in law. See ALI V. STATE (2021) 12 NWLR (PT.1789) 159 (SC); OROK V. ETA (2021) 12 NWLR (PT. 1790) 350 PARA G(CA); VISINONI V. BRAHAMS & ANOR (2015) LPELR-40405 (CA). This general rule however is not without exceptions. Similarly, computer generated documents are admissible subject to some conditions. Thus, when certain situations exist, a computer generated document and an unsigned document can be admissible. See KUBOR & ANOR V. DICKSON & ORS (2012) LPELR – (SC). See also ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) 5 NWLR PT. 1666 (P.464. PARAS F-G) LPELR-46541 (SC). The Apex Court in the referred case succinctly stated that:
“The legal requirement of signature on a document is to determine the document’s origin and authenticity with regard to its maker. So, where certain situations exist, an unsigned document could be admissible where oral evidence is presented to clarify the document and its authorship. In this case, the parties agreed that Exhibit L emanated from the Appellant and rendered it admissible. Therefore, the Court of appeal rightly found the document was admissible.”
See also BRILA ENERGY LTD V. FRN (2018) LPELR-(CA); SECTION 84 OF THE EVIDENCE ACT, 2011.
There are no controversies from the records of appeal before this Court, particularly pages 13 to 26 and 38 of the records, that, Exhibits D-D14 and G1 are the list of staff affected by the Appellant’s new retirement policy and the statement of account was gotten from the website of the Appellant. The contention of the Appellant herein is that, the said Exhibits D-D14 and G1 are not admissible because the same are computer generated and not signed. Furthermore, from the records of appeal before us, it is not the argument of the Appellant that Exhibits D-D14 and G1 did not emanate from the site of the Appellant as the same were already admitted in evidence and need no further proof. The only area of disagreement between the parties is on its admissibility since it is computer generated and not signed.
By the provisions of Section 84 of the Evidence Act and from the above authorities referred, and particularly for the fact that the Appellant has not denied making the exhibits; the exhibits though unsigned and undated are admissible.
I resolve the issue in favour of the Respondent.
SUBMISSIONS ON ISSUE FOUR
Whether failure of the trial judge in delivering judgment in the case about 180 days after adoption of addresses had not impaired a proper evaluation of evidence and law thereby occasioning injustice on the Appellant.
ABDULRAZAQ S. GOBIR ESQ., for the Appellant on this issue contended that the lag in delivering the judgment within 90 days from the date of adoption of final written addresses of the parties had impaired a proper evaluation of evidence by the learned trial Judge and as a result, the Appellant had suffered a great deal of miscarriage of justice. He cited Section 294 (1) & (5) of Constitution of Federal Republic of Nigeria 1999.
The learned counsel submitted that the learned trial Judge also failed to advert his mind to the fundamental law that since the Respondent’s principal reliefs are declaratory, he cannot rely on default of defence or even admission of the Appellant if any, but he must prove his case with acceptable evidence. He relied on Kwajaffa & Ors V. Bank of North (2004) vol 8 MJSC at 106 particularly at 122 para G and urged the Court to resolve the issue in favour of the Appellants.
IYAJI PATRICK OJEKA ESQ., for the Respondent on this issue contended that though a Court is enjoined to deliver its judgment within 90 days from the date of adoption of written addresses, a judgment shall not be a nullity merely because it was not delivered within 90 days unless a party can show that he has by reason of the judgment not being delivered within the 90 days suffered substantial injustice or miscarriage of justice. He relied on Section 294 (1) & (5) of the 1999 Constitution (as amended).
The learned counsel submitted that in the instant case, the Appellant has not shown any miscarriage of justice that will result to reversal or setting aside of the judgment. He relied on JOHN SHOY INTL LTD & ANOR VS ABUJA ENVIRONMENTAL PROTECTION BOARD & 3 ORS (2013) 8 NWLR (PT. 1357) 625 @ 629; FUMUOOH VS ASORO (1991)9 NWLR (PT. 241) 210 @ 220.
The learned counsel further submitted that the learned trial Judge has not accepted any evidence that is not acceptable and same has been proved on preponderance of evidence as is required in civil cases. He relied on IBIYEYE V. FOJULE (2006)3 NWLR (PT.968) 640 @ 622 PARA B-C.
RESOLUTION OF ISSUE FOUR
The principle of law is well settled that every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. SEE ALI V. STATE (2021) 12 NWLR (PT. 1789) 159 (SC); JENRADE V. SANI (2021) 13 NWLR (PT. 1792) 111 (CA); UYO LOCAL GOVT. V. AKWA DOM STATE GOVT. (2021) 11 NWLR (Pt 1786) 1 (CA); SECTION 294(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED), Thus, a judgment of a Court is to be delivered within 90 days from the date of adoption of the final written addresses.
This principle of law is not without exception, the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of Section 294(1) of the 1999 Constitution (as amended) unless the Court exercising jurisdiction by way of appeal from or review of that decision (in the instant case, the Court of appeal) is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. Thus, judgment delivered outside ninety days is not ipso facto nullity. A judgment delivered after 90 days is not automatically invalidated as long as no miscarriage of justice has ensued. See ALIMI V. KOSEBINU (2016) 17 NWLR (PT. 1542) 337 (SC); JENRADE V. SANI (2021) 13 NWLR (PT. 1792) 111 (CA); SECTION 294(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED).
For an appeal for failure to deliver a judgment within time to succeed, the onus is on the party appealing to prove that a miscarriage of justice was occasioned as a result of the delay. See OKOYE V. MBAYA (2020) 8 NWLR (PT. 1726) 383 (CA). In the instant case, the Appellant has not placed anything before the Court to prove that he has suffered any miscarriage of justice or that the delay has impaired the judgment of the Court. The Appellant did not adduce evidence of miscarriage of justice occasioned to him in any respect. I therefore hold that although the trial Court did not deliver its judgment within 90 days since the said failure did not occasion a miscarriage of justice, the judgment of the trial Court is not vitiated.
Therefore, I resolve the issue in favour of the Respondent.
SUBMISSIONS ON ISSUE FIVE
Whether the failure to communicate notice of judgment date to Appellant when Respondent was communicated to, did not breach rules of fair hearing thereby rendering the judgment a nullity.
ABDULRAZAQ S. GOBIR ESQ., for the Appellant on this issue contended that the learned trial Judge violated his own order and breached rule of fair hearing when it delivered judgment on 14th October, 2016 without communicating to the Appellant but only to the Respondent even when the learned trial Judge himself reserved judgment and made order that the date of judgment would be communicated to the parties. He relied on Order 21 Rule 1 of National Industrial Court Rules 2007.
The learned counsel submitted that the failure to adhere to the rules of the Court amounted to a breach of fair hearing and thus occasioned miscarriage of justice. He relied on the case of Idakwo V. Ejiga (2002) MJSC vol. 12 at 81 Pp 88-89 and urged the Court to set aside the judgment of the trial Court.
IYAJI PATRICK OJEKA ESQ., for the Respondent on this issue argued that the assertion that the judgment date was communicated to the Respondent’s counsel alone is erroneous as both parties were informed via a telephone call and the Respondent who is Resident outside jurisdiction merely got a lawyer to hold his brief.
The learned counsel submitted that assuming the Appellant was not communicated the date of judgment, it is not a reason to nullify a judgment as parties do not come to Court on the date of judgment to do any other thing other than listen to the judgment. It may amount to mere irregularity which has no effect on the substance of the judgment or jurisdiction of the Court. He relied on CHIME V. CHIME (2001) 5 NSCQR @ 277 and (2001) 2 SCM @ 16 (SC). The learned counsel finally submitted that there is no breach of fair hearing as there was nothing to be heard and urged the Court to dismiss the appeal.
RESOLUTION OF ISSUE FIVE
Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. It is a fundamental principle and it is two-fold. See NDUKWE V. U.B.N PLC (2021) 4 NWLR (PT. 1765) 165 (SC); AGBABIAKA V. F.B.N. PLC (2020) 6 NWLR (PT. 1719) 77 (SC); ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC); SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED). A right to fair hearing is basically centered on the opportunities for parties to present their case before the Court.
The issue before this Court is not the opportunity to present a case but the opportunity to receive judgment. I have carefully perused the records of proceedings of the Court as contained in the records of appeal, specifically, at page 71 of the Records of Appeal, both parties concluded their final written addresses and the case was reserved for judgment. The learned trial Judge specified that the date of judgment would be communicated to the parties. ORDER 21 (1) of the National Industrial Court Rules 2007 provides thus:
The Court shall, after trial, deliver judgment in open Court and shall direct the judgment to be entered. Provided that where the Court reserves judgment at the hearing, parties to the suit shall be served with notice to attend the Court on the day of judgment.
There is nothing before this Court to show that the judgment notice was served or that it was not served. There is no affidavit of service from the trial Court nor an affidavit of non-service by the Appellant. The only information available to this Court is that the date of judgment was communicated to both parties via phone call. It is worthy to note that the fair hearing constitutional provisions are designed for both parties in the litigation in the interest of fair play and justice. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. See ADAMU V. FRN. (2020) 2 NWLR (PT. 1707) 129 (SC).
Though it is not commendable for the learned trial Judge to have proceeded to deliver judgment without enquiring if the date was communicated to both parties, this however, cannot be said to have occasioned any miscarriage of justice as parties to a suit attend the judgment date merely to receive the judgment and nothing more. The most any party can do at the delivery of judgment in Court is to take random notes. Accordingly, the delivery of a judgment by a Court without serving a party with judgment notice though not desirable does not violate a party’s right to fair hearing since no party is meant to be heard on the merit of a case at the point of judgment delivery. I hold that there was no breach of fair hearing.
I resolve this issue in favour of the Respondent.
All the issues formulated for determination of the appeal by the Appellant have been resolved against the Appellant in consequence, this appeal is devoid of merit and it is accordingly dismissed. The judgment of the National Industrial Court of Nigeria sitting in Abuja delivered on 14th October, 2016 in Suit No. NICN/ABJ/285/2013; is hereby affirmed.
Parties to this appeal are to bear their respective costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of previewing the judgment just delivered by my brother, Uchechukwu Onyemenam, JCA. I agree with the reasoning and conclusions of my learned brother.
On issue 4, learned counsel for the appellant stated that counsel adopted their respective written addresses in the lower Court on the 27th day of July, 2016 but that “the judgment was not delivered until 14th October, 2016, a period of about 180 days”. Learned counsel then argued, inter alia, that:
“…by the provision of Section 294(1) & (5) of the Constitution of the Federal Republic of Nigeria, 1999 as (amended), the learned trial judge was under a duty to deliver his judgment within 90 days from the date of adoption of final address (sic) by the parties.”
Section 294 Sub-sections (1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide respectively, as follows:
“294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
“294 (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In the case of Chief Yenge Saatsaha Thaddeus v. Guaranty Trust Bank Plc (unreported, Appeal No. CA/A/209/2017 delivered on Monday the 31st day of May, 2021), this Court considered the provisions of Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and held, inter alia, as follows:
“The above constitutional provision has been considered by the Supreme Court in many cases. The flow of judicial reasoning of the apex Court seems to be that every Court should comply with the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). However, where the issue of failure to comply with the said section of the Constitution arises, the failure per se will not automatically vitiate or nullify the judgment. In such a situation, it has been admonished that the appellate Court should examine the judgment and even where it was not delivered within the time stipulated by the Constitution, the judgment should not be treated as a nullity, if no miscarriage of justice has been occasioned to the appellant. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 and Kalu v. lgwe (2002) 5 NWLR (Pt. 761) 678.”
Learned counsel for the appellant argued that “the lag in delivering the judgment had impaired a proper evaluation of evidence by the learned trial judge and as a result, the appellant had suffered a great deal of miscarriage of justice”. I do not think that the memory of the learned trial judge was blurred or impaired by the delay in delivering the judgment of the trial Court within the period specified by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The main reason is that the evidence before the trial Court was substantially documentary and in its evaluation the credibility of each of the witnesses, who testified, was hardly in issue.
In this case, only two witnesses testified – the respondent and one Adamu Habib Abdullahi – who testified on behalf of the appellant. A total of 38 (thirty-eight) exhibits, namely: Exhibits A, B, C, C2, C3, D, D1, to D14, E, E1 to E13, DA, DA1, DB and DC were tendered by the witnesses. The evidence before the trial Court was essentially documentary.
The law is that: “Where the question is the weight and relevance of the documentary evidence placed before an appellate Court, the Court is in a good a position as the trial Court to examine also the entire documentary evidence placed before the trial Court, and draw its own inferences and come to its own conclusion” – per Ogbuagu, JSC in Mr. Moses Bunge & Anor. v. The Governor of Rivers State & 5 Ors. (2006) 12 NWLR (Pt. 995) 573 at 629.
See also the cases of Alhaji Alaru A. Salako v. Chief Olatunji Dosunmu (1997) 8 NWLR (Pt. 517) 371; Universal Insurance Company Limited v. T.A. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt. 565) 340; Ali Pindar Kwajaffa v. Bank of the North Limited (1999) 1 NWLR (Pt. 587) 423; Roderick Oneh & Ors. v. Veronica Obi & Ors. (1999) 7 NWLR (Pt. 611) 487 and F.S.B. International Bank Ltd. v. Imano (Nig.) Ltd. (2000) 11 NWLR (Pt. 679) 620.
I have examined the documentary evidence, tendered before the trial Court, and I agree completely with the decision of the learned trial judge.
On issue 5, learned counsel for the appellant referred to Order 21 Rule 1 of the National Industrial Court Rules, 2007 and contended, inter alia, that:
“… the learned trial judge took final addresses on 27th April, 2016 and reserved judgment to a date to be communicated to the parties, the learned trial judge violated his own order and breached rule of fair hearing when it delivered judgment on 14th October, 2016 without communicating to the appellant but only to the respondent who was represented in Court by P.O. Iyaji. Respondent’s counsel could not have been present in Court, if no notice was communicated to him.”
I agree with the learned counsel for the respondent when he contended as follows:
“We humbly submit that delivery of judgment by the learned trial judge does not involve any proceedings that any of the parties will participate which the exercise will violate the rule against fair hearing. Whether any of the parties is present or not, the judge is at liberty to delivery its judgment and does not infringe any parties right to fair hearing.”
Assuming, without conceding, that the learned counsel for the appellant would have been present in Court on the date the judgment was delivered, if he had received a hearing or judgment notice, his presence (the presence of the appellant’s counsel) in Court would not have made any difference. The learned counsel was not by his presence in Court to alter, change or influence the content of the judgment but to hear or witness the pronouncement of the judgment by the learned trial judge and, after the final decision or pronouncement by the Court, to express his compliments to the Court, if he so wants, or at worse to express his intention to appeal against the decision.
It is a settled principle of law that once a Court makes its final decision or pronouncement on a case, cause or matter that Court becomes functus officio, which means that the Court is “without further authority or legal competence because the duties and functions of the original commission have been fully accomplished” – Black’s Law Dictionary, Deluxe Ninth Edition, page 743.
After delivering its judgment, the only post-judgment jurisdiction, which the Court can exercise, includes the following:
1. The Court has inherent jurisdiction to set aside its judgment if it is null or invalid:-
See Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC 6; Salami Odofin v. Abraham Olabanji (1996) 3 NWLR (Pt. 435) 126; Alhaji Taofeek Alao v. African Continental Bank Ltd. (2000) 9 NWLR (Pt. 672) 264 and All Progressives Congress v. Engineer George T.A. Nduul (2018) 2 NWLR (Pt. 1602) 1.
2. A Court of record can ex debito justitiae set aside its own judgment if or where it becomes so obvious that it was fundamentally defective or that it was given without jurisdiction. See Obimonure v. Erinosho (1966) 2 SCNLR 228; (1966) 1 All NLR 250; Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC 6; Okafor v. Okafor (2000) 11 NWLR (Pt. 677) 21 and Ichie Josiah Madu v. Humphrey Mbakwe (2008) 10 NWLR (Pt. 1095) 293.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
A Court can set aside a judgment of a Court of co-ordinate jurisdiction where:-
a. the originating process, such as writ of summons or application, was not served on the adverse or other party; or
b. the action is tainted with fraud; or
c. the Court lacks jurisdiction to entertain the action.
See Lawal v. Dawodu (1972) 8 – 9 SC 83; Oyubu v. Akpobarejo (1998) 4 NWLR (Pt. 546) 422; Nen Ltd. v. Boniface Asiogu (2008) 14 NWLR (Pt. 1108) 582.
By this appeal, the appellant has duly exercised his constitutional right and the issue of the inability of the appellant’s counsel to be present in Court, when the trial Court delivered or pronounced its judgment, is of no useful significance.
It is trite that the essence of fair hearing, as an indispensable requirement of justice, is that an adjudicating authority, to be fair and just, must hear both sides by giving them ample opportunity to present their cases. See Union Bank of Nigeria Ltd. v. Benjamin Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Thomas Eniyan Olumesan v. Ayodele Ogundepo (1996) 2 NWLR (Pt. 433) 628; Godwin Ekiyor v. Chief Frukama Bomor (1997) 9 NWLR (Pt. 519) 1 and Simon Ezechukwu v. I.O.C. Onwuka (2006) 2 NWLR (Pt. 963) 151.
Fair hearing is an important concept of natural justice as expressed in the ancient but still modern maxim: Audi alteram partem, which was described by Willes, J; in Cooper v. Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180; 143 ER 41 as a rule “of universal application, and founded on the plainest principles of justice” and which had been cited, with approval, in many cases including: Ridge v. Baldwin (1964) A.C. 40; Durayappah v. Fernando (1967) 2 A.c. 337 and Wiseman v. Borneman (1971) A.C. 297.
In the case of Union Bank of Nigeria Plc v. Awmar Properties Ltd. (2018) 10 NWLR (Pt. 1626) 64 at 86, per Rhodes-Vivour, JSC; the Supreme Court held that:
“Audi alteram partem means please hear the other side.”
See also Prince Biyi Poroye & Ors. v. Senator A. M. Makarfi & Ors. (2018) 1 NWLR (Pt. 1599) 91.
It Is now well-settled that audi alteram partem is an important pillar on which the principle of fair hearing stands. On the attributes of fair hearing, the Supreme Court elaborately stated in the case of Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc (2020) 6 NWLR (Pt. 1719) 77 at 100, per Abba Aji, JSC; as follows:
“The time honoured principle of fair hearing has, for time immemorial, been entrenched in our laws. The cardinal principle of fair hearing are twofold(s) and are expressed in the following maxims
(a) “Audi alteram partem” meaning that the Judge before whom the complaint or grouse is taken must hear the two parties to the dispute, and
(b) “Nemojudex in cause” meaning that there should be no evidence of bias, so that one should not be a Judge in one’s own cause. The Constitution of the Federal Republic of Nigeria 1999 (as amended), had entrenched by its Section 36, the principle of fair hearing under those provisions which clearly give the criteria of fair hearing which are as follows:-
(i) That the Court shall hear both sides to a case and also must consider the case of both parties too.
(ii) That the Court must also hear all material issues before reaching its decision which may be prejudicial to any party in the case.
(iii) The Court must give equal treatment opportunity to all the parties.
(iv) That the proceedings shall be held in public and a concerned shall have access and be informed of such place of public hearing.
(v) In every material decision of the case, justice must be seen to have been manifestly done and not merely done. The appellant who has slept over his case cannot complain of denial of fair hearing. Fair hearing is a 2 way traffic and for the benefit of the parties involved in the contest and not only for one. He who comes to equity must have clean hands.”
In this case, the trial Court complied with the very important principle of fair hearing by affording both the respondent and the appellant ample opportunity or time to present their respect cases conducting the proceedings in public and not displaying any bias or symptom of bias before adjourning the case for judgment.
Therefore, the question of breach by the trial Court of the appellant’s right to fair hearing does not arise.
It is for the above reasons and the more elaborate reasons given by my learned brother that I also dismiss the appeal.
I abide by all the orders made by my learned brother, including the order as to costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother, Hon Justice Uchechukwu Onyemenam, JCA.
I am in complete agreement with the reasoning and conclusion contained therein and I also dismiss the appeal for lacking in merit. I therefore affirm the judgment of the National Industrial Court of Nigeria sitting in Abuja delivered on 14th October, 2016 in Suit No. NICN/ABJ/285/2013.
I make no order as to costs
Appearances:
ABDULRAZAQ S. GOBIR, ESQ. with him, JOSEPH AROME, ESQ., and ABDULLAHI ABUBAKAR ESQ. For Appellant(s)
IYAJI PATRICK OJEKA ESQ. For Respondent(s)
