ZENITH BANK PLC v. RITA UZOAMAKA IFEADI
(2019)LCN/12715(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/L/1343/2017
RATIO
APPEAL: WHERE AN ORIGINATING SUMMON IS DEFECTIVE
“That is, it is a valid initiating process such as the respondent’s complaint which confers the trial Court with the jurisdiction to hear and determine the action between her and the appellant. In other words, the question of the validity or defectiveness of an originating process, clearly raises a jurisdictional issue, because the Court has no jurisdiction to entertain and determine an invalid and incompetent action. Yakubu v. Federal Mortgage Bank of Nigeria Ltd (2014) LPELR- 24188 (CA) @ 17-18; (2015) 11 NWLR (pt. 1470) 232 @ 243; Okarika & Ors v. Samuel & Anor. (2013) LPELR- 19935 (SC); Dr. Tunji Braithwaite v. Skye Bank Plc (2012) LPELR-15532 (SC) @ p 21. Therefore, the validity of an originating process is sine qua non, to assumption of jurisdiction over any matter placed before the Court for adjudication.” PER TOM SHAIBU YAKUBU, J.C.A.
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED
“Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (pt. 84) pg. 508; Oloriode v Oyebi (1984) 1 SCNLR pg. 390, Ezomo v. Oyakhire (1985) 1 NWLR pt. 2 pg. 105; Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 2 SCNLR pg. 341, Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg. 175, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Adeleke v. OSHA (2006) 16 NWLR pt. 1006 pg. 608; Attorney General Anambra State v. A – G Federation (1993) 6 NWLR pt. 302 pg. 692, Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 22l. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal can be raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue.”PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK PLC – Appellant(s)
AND
RITA UZOAMAKA IFEADI – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling delivered by the National Industrial Court, holden at Lagos, which was delivered on 28th September, 2017. The respondent had instituted an action against the appellant and claimed that her dismissal from the services of the appellant, was unlawful, hence she claimed that she was entitled to special damages against the appellant. In opposing the claim, the appellant filed its statement of defence. It also contemporaneously, filed a Motion on Notice, seeking an order of the Court for the dismissal of the suit on the ground that there are defects in the respondent’s complaint, which rendered it incompetent and thereby robbing the Court of its jurisdiction to entertain the suit. The respondent, filed a counter- affidavit and a written address in her opposition to the appellant’s motion on notice aforesaid and also a reply to the appellant’s statement of defence. The appellant, in turn filed a reply on points of law to the respondent’s written address. In his ruling, the learned trial judge, dismissed the appellant’s application in its entirety, which precipitated this appeal.
In order to activate the prosecution of the appeal, the appellant’s brief of argument was dated and filed on 7th December, 2017. On the other hand, the respondent’s brief of argument was dated and filed on 19th January, 2018. Thereafter, the appellant’s reply brief was filled on 24th May, 2018.
The appellant’s learned counsel, formulated two issues for the determination of the appeal, namely:
Whether the fact that the Respondent’s Complaint did not contain any valid relief is not a sufficient ground for it to be struck out (Ground 1).
Whether the Respondent’s failure to comply with the mandatory requirement to front load her appointment letter as provided in Order 3 Rule 13 of the National Industrial Court Rules does not vitiate her suit (Ground 2).
The respondent’s learned counsel also nominated two issues for the resolution of the appeal, to wit:
Whether the Claimant’s action is initiated by due process and is valid.
Whether non front loading of the Claimant’s letter of employment vitiates the Claimant’s action.
Having perused the respondent’s complaint, the appellant’s motion on notice to dismiss it, the ruling of the learned trial judge in question, the appellant’s grounds of appeal and the issues formulated by each counsel herein, for determination of the appeal, I am satisfied with the two issues suggested by the respondent’s learned counsel for the resolution of the appeal. They are succinct and straight forward and shall be considered and determined one after the other.
I have thoroughly read the arguments canvassed by the respective counsel to the parties, in their briefs of argument, which I have elected not to rehash in this judgment. Nevertheless, when the occasion demands in the course of my consideration of the issues in the appeal, their submissions will be alluded to as deemed appropriate.
The main grouse of the appellant in issue 1, against the respondent’s action is that her complaint did not contain cognizable reliefs that are grantable by the Court. And that the reliefs are invalid, such that the jurisdiction of the Court cannot be activated in determining the respondent’s action. Furthermore, learned appellant’s counsel, contended that relief (b) of the complaint, borders on special damages, which were not particularized. Arguing per contra, respondent’s learned counsel submitted that there is no defect in the respondent’s complaint that would have deprived the trial Court of its jurisdiction over the action.
Resolution:
Unquestionably, the initiation and commencement of an action in Court vide a valid writ of summons or as in the instant case, a valid complaint, is fundamental and goes to the root of the action because it is a condition precedent for the activation of the Court’s jurisdiction over the action. That is, it is a valid initiating process such as the respondent’s complaint which confers the trial Court with the jurisdiction to hear and determine the action between her and the appellant. In other words, the question of the validity or defectiveness of an originating process, clearly raises a jurisdictional issue, because the Court has no jurisdiction to entertain and determine an invalid and incompetent action. Yakubu v. Federal Mortgage Bank of Nigeria Ltd (2014) LPELR- 24188 (CA) @ 17-18; (2015) 11 NWLR (pt. 1470) 232 @ 243; Okarika & Ors v. Samuel & Anor. (2013) LPELR- 19935 (SC); Dr. Tunji Braithwaite v. Skye Bank Plc (2012) LPELR-15532 (SC) @ p 21. Therefore, the validity of an originating process is sine qua non, to assumption of jurisdiction over any matter placed before the Court for adjudication.
The law has remained well settled to the effect that: Jurisdiction is the authority that a Court has in order to decide any matter laid before it or even take cognizance of matters presented before it in a formal way for its decision on such matters. Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quintessence of jurisdiction to adjudication, the Supreme Court in a plethora of decided authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR – 9716 (SC); (2010) 3 SCNJ (Pt. 11) 441 at 453 – 454, re-echoed the law succinctly, per Adekeye, JSC that:
“Jurisdiction is a term of comprehensive import embracing every kind of judicial action.
It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (pt. 84) pg. 508; Oloriode v Oyebi (1984) 1 SCNLR pg. 390, Ezomo v. Oyakhire (1985) 1 NWLR pt. 2 pg. 105; Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 2 SCNLR pg. 341, Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg. 175, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Adeleke v. OSHA (2006) 16 NWLR pt. 1006 pg. 608; Attorney General Anambra State v. A – G Federation (1993) 6 NWLR pt. 302 pg. 692, Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 22l. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal can be raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue.”
The eminent jurist and revered Mohammed Bello, C.J.N. (now of blessed memory) in the judicial words on marble on jurisdiction, in Chief Utuedo Utih & 6 Ors v. Jacob U. Onoyivwe & 5 Ors (1991) 1 SCNJ 25 at 49, had stated that:
“Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.”
The reason for this analogy is not farfetched. It is because the life of the flesh is in the blood.
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In other words, jurisdiction is the life in the action, placed before the Court, for adjudication.
In Madukolu & others v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNLR 341 at 587 – 590, the Federal Supreme Court held on jurisdiction and the competence of a Court thus:
“Put briefly, a Court is competent when –
a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
These three conditions stated above must co-exist before the Court can be vested or clothed with proper competence and jurisdiction. The Military Administrator Benue State & 20 Ors. v. Captain Clement Abayilo (Rtd) (2001) FWLR (Pt.35) page 604, (2001) 5 NWLR (Pt. 705) 19: Ishola v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR (Pt. 352) 506:
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Matari v. Dan Galadima (1993) LRCN 335, (1993) 3 NWLR (Pt. 281) 266; A-G., Anambra State v. A-G. Federation (1993) 6 NWLR (Pt. 302) page 692; Odofin v. Agu (1992) 3 NWLR (Pt. 229) page 350.
The jurisdiction of the Court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. Where however, an action is commenced by Originating summons as it is in the instant case, then it is the reliefs sought as well as the averments in the affidavit in support of the originating summons that would be examined to discern if the Court has jurisdiction.
These would be relied on if the facts placed before the Court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue. This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the Courts. A-G., Oyo State v. NLC (2003) 8 NWLR (Pt. 821) 1; Akande & 2 Ors. v. Busari Alagbe & Anor, (2001) FWLR (Pt. 38)
9
page 1352, (2000) 15 NWLR (Pt. 690) 353; A – G, Federation v. Guardian Newspaper Ltd. & 5 Ors. (2001) FWLR (Pt. 32) 93, (1999) 9 NWLR )Pt. 618) 187; Messrs N. V. Scheep & Anor. v. The MV’S Araz & Anor. (2000) FWLR (Pt. 34) 556, (2000) 15 NWLR (Pt. 691) 622; NEPA v. Atukpor (2001) FWLR (Pt. 20) 626. (2000) 1 NWLR (Pt. 693) 96; General Sani Abacha & 3 Ors. v. Chief Gani Fawehinmi (2000) FWLR (Pt. 4) 557, (2000) 6 NWLR (Pt. 660) 228; Okulate & 4 Ors V. Awosanya & 2 Ors. (2000) 2 NWLR (Pt. 646) 530-536.
The respondent, in her complaint at the Court below, prayed for the following reliefs, to wit:
a. A DECLARATION that the purported dismissal from my employment by the defendant’s letter dated March 11, 2016 is null, void and of no effect.
b. The sum of N18,560,000.00 (Eighteen Million Five Hundred and Sixty Thousand Naira) been arrears of my salary, leave and housing allowance due me from March, 2016 to February,2017 and proration of the said amount from March,2017 until judgment.
c. The Honda Civic Car being my official car and the sum of N50, 000,000.00 (Fifty Million Naira) as a severance package for me as a Senior Manager.
My Lords, I must confess that I have not seen any contradiction in the reliefs claimed by the respondent. Does it not follow that if relief (a) is granted, then relief (b) is consequent upon the alleged wrongful dismissal? So, wherein lies the contradiction in terms of reliefs (a) and (b)? I fail to see none. The two reliefs, that is, (a) and (b) clearly dovetail into each other and not mutually exclusive of each other. With respect to the appellant’s contention that there are no particulars to the alleged special damages in relief (b), that is an issue as to proof of special damages at the trial of the action, which has nothing to do with the validity of the respondent’s complaint. And with respect to relief (c), which is distinct and clear, is it not for the respondent to prove her entitlement thereto, at the trial? It seems to me that the appellant’s motion on notice which was targeted at the dismissal of the respondent’s action at the Court below, was more of putting the cart before the horse.
I say so, because at the interlocutory stage when his Lordship was considering the appellant’s application to dismiss the respondent’s complaint, he could not have judiciously considered the merits of the case. The law has been well established to the effect that the Court must be wary when considering an interlocutory application, not to venture into determining any substantive issue in the action before it. The essence of the principle is to avoid prejudging the substantive matters at the interlocutory proceedings. This is borne out of good and common sense because at that stage, no hard evidence would have been proffered by the parties and/or their witnesses in respect of the action before the Court. There are unbroken chain of authorities on this principle that only a few will suffice: Onyesoh v. Nnebedun (1992) 3 SCNJ 129; Kotoye v. Saraki (1994) 7 NWLR (pt. 357) 414 @ 462; F.S.B. International Bank Ltd v. Imano Nig. Ltd (2000) 11 NWLR (pt.679) 622 @ 639; Attor. Gen. Anambra State v. Okeke (2002) 12 NWLR (pt.782) 575.
I am of the considered and firm opinion that the learned trial judge was not in error in his decision to the effect that the respondent’s complaint was properly laid before him as it was validly constituted and neither invalid nor incompetent, hence he possessed the jurisdictional competence to consider and determine it. Therefore, issue 1 is resolved against the appellant.
With respect to issue 2, the learned appellant’s counsel contended to the effect that the failure by the respondent to front load her letter of appointment was fatal to her claim. He stoutly placed reliance on Order 3 Rule 13 of the National Industrial Court Rules, 2017, which provides, thus:
Where the Claimant is challenging the termination of appointment, the suspension or dismissal of the Claimant therefrom, the Complaint shall be accompanied by the Claimant’s letter of appointment, (if any) together with a letter of confirmation of appointment, letter(s) of promotion where applicable, notice or letter of suspension, termination of appointment or dismissal, and all other documents the Claimant wishes to rely upon at the trial of the suit. The accompanying documents shall be exhibited along with the statement on oath as bundle of exhibits in support of the Claimant’s claim before the Court.
The respondent’s learned counsel, on his part, submitted to the effect that, with the qualification of the phrase, ‘(if any)’ after the provision, that requires the front loading of the Claimant’s letter of appointment, it was not obligatory on the Claimant to front load such a document, if she has none.
Resolution:
In his ruling, the learned trial judge, at page 87 of the record of appeal held, inter alia:
I find that Rules 8 has been complied with. Rule 13 is predicated upon whether the Claimant has the document referred to. That is why the words ‘if any’ is used in the Rule which is to take care of the different form of employment including oral employment. Furthermore, the document does to the issue of evidence and definitely not the competency of the compliant.
Now, without splitting hairs as to whether or not the word ‘shall’ used in Rule 13, with respect to front loading of an appointment letter, by the Claimant is mandatory or not, the question that should agitate one’s mind, is: if the Claimant was not given an appointment letter, what was she to front load? Furthermore, will that not be an issue to be trashed out at the trial? I find comfort with the decision of the learned trial judge, to the effect that, any question with respect to the document in question, ‘goes to the issue of evidence and definitely not the competency of the complaint.’ The law has remained very well settled that pleadings certainly, does not constitute evidence. Just see:Estate of General Sani Abacha (Deceased) v. S.D. Eke-Spiff & Ors. (2009) 7 NWLR (pt. 1139) 97 @ 129, 141 & 143; Newbreed Organization Ltd v. Erhomosele (2006) 5 NWLR (pt.974) 499 @ 545.
In the circumstances, I do not find any merit in the contention of the learned appellant’s counsel to the effect that the non-front loading of the Claimant’s appointment letter affects the validity and competency of her complaint. The effect of the availability or otherwise of the said document on the Claimant’s suit depends upon the manner of her appointment and this is better left to be trashed out at the trial, perhaps by parole evidence. In sum, this issue is resolved against the appellant. Having resolved the two issues discussed in this appeal, against the appellant, it only remains for me to conclude that the appeal has no onions. It is grossly lacking in merits, hence it is accordingly dismissed.
The ruling rendered by O.A. Obaseki-Osaghae, J., at the National Industrial Court, holden at Lagos, in re ? Suit NO: NICN/L/184/2027, on 28th September, 2017, is hereby affirmed.
Costs of the appeal is assessed at N200, 000.00 only, in favour of the respondent against the appellant.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and agree with the reasoning and conclusion contained therein. I adopt the Judgment as mine with nothing further to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the leading judgment of my learned brother, TOM SHAIBU YAKUBU. JCA which has just been delivered in which this appeal was dismissed
I agree with the analysis and resolution of the two (2) issues set down for determination of the appeal of the Respondent which adequately captured the essence of the complaints of the Appellant against the judgment of the lower Court.
I am in full agreement with the reasoning and the conclusion reached that this appeal lacks merit as the application which the Appellant filed in the lower Court and the Ruling of which was challenged by this appeal, was nothing but a strategy by the Appellant to ?short circuit? the proceedings before the lower Court in order to obtain judicial remedies which are supposed to be granted only after evidence is taken in a full trial via a preliminary objection
I agree that the appeal lacks merit and should be dismissed. I also abide with the consequential orders as to costs because, the appeal is frivolous and was time wasting.
Appearances:
Miss Tosin Kachikwu with her, Miss Chinyere NnajiFor Appellant(s)
For Respondent(s)
