Clement Abayomi Onitiju V. Lekki Concession Company Limited (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This appeal is against the judgment of the National Industrial Court delivered by J.T. AGBADU-FISHIM J. on the 25th Day of April 2013 wherein the Appellant?s claims as well as the Respondent?s counter claim were dismissed.
The facts of the case, in a nutshell is that the Appellant was by a letter dated 20-3-2009 offered an employment as Manager, Information Technology by the Respondent. He accepted the offer and commenced work on the 1-4-2009. After a probationary period of six months his appointment was confirmed with effect from October 2009. On the 16-8-2011 while about closing for the day?s work, the Appellant was summoned to the office of the Chief Security Officer (CSO) of the Respondent where he was informed that the Managing Director of the Respondent has directed that he should be arrested and taken to the police on the allegation of forgery and fraud against the company. He was eventually taken to Maroko Division of the Nigerian Police where he was detained for offence of fraud and forgery but admitted to bail on the 17-8-2011.
Prior to
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the arrest and detention, the Appellant was never queried or confronted with any issue of forgery or fraud by the Respondent. On the 18-8-2011, he received a letter dated 17-8-2011 purporting to dismiss him from the employment for gross misconduct in the forgery of procurement documents and siphoning of the company’s funds and this was done without being given any opportunity to defend himself over all the allegations which borders on criminality.
This prompted the Appellant to institute an action as Claimant in the National Industrial Court (Lower Court) against the Respondent wherein by an amended general form of complaint dated and filed on 19-12-2011 he claimed as follows:-
(i) A declaration that the purported dismissal of the Claimant by the Defendant vide dismissal letter dated 17th August 2011 is wrongful, unlawful, null and void and of no effect whatsoever.
(ii) A declaration that the Claimant is still validly and contractually within the employment of the Defendant of the and therefore entitled to all his salaries, earnings, bonuses and perquisites of office from 17th August 2011 until it is properly and lawfully determined by
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Defendant.
(iii) An order setting aside the dismissal letter dated 17th August 2011 issued by the Defendant to the Claimant.
(iv) An order directing the Defendant to immediately pay to the Claimant the sum of (N2, 970, 500.00) Two Million Nine Hundred and Seventy Thousand, Five Hundred Naira Only being his salaries for the months of August to November 2011.
(v) An order directing the Defendant to immediately pay to the Claimant all his salaries, earnings, bonuses and perquisites of office amounting to (N742, 625. 00) Seven Hundred and Forty Two Thousand, Six Hundred and Twenty Five Naira only per month from December 2011 until judgment is delivered in this suit and thereafter until he is properly and lawfully disengaged from the services of the Defendant.
?The Respondent reacted by filing a statement of defence and counter-claim wherein the following reliefs were also claimed:-
(i) The sum of N1, 808, 493.75 (One Million, Eight Hundred and Eight Thousand, Four Hundred and Ninety Three Naira and Seventy Five Kobo) being 25% of the sum of N7,233,975: 00 ( Seven Million, Two Hundred and Thirty Three Thousand, Nine Hundred and Seventy Five
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Naira) which the counter-Claimant paid to a company known as Messer Dunnibel Ventures Nigeria Limited in respect of a contract for the installation of IT framework accessories in the counter-Claimant?s new office.
(ii) An account by the Defendant to the counter-claim of all the other secret profits which the Defendant has made in respect of other transactions involving the counter-Claimant and other third parties while the Defendant to the counter-Claimant was in the employment of the counter-claim.
(iii) General Damages in the sum of N10,000,000: 00 (Ten Million Naira)
(iv) Cost of defending this action.
At the hearing of the suit in the Lower Court, the Appellant testified as CW1 and called no other witness while three witnesses testified for the Respondent in defence of the suit. At the conclusion of the trial and filing and exchange of written addresses which were subsequently adopted by the parties, the Learned Trial Judge delivered judgment on the 25th April 2013 wherein the Appellant?s claims as well as the Respondent?s counter claim were dismissed.
?The Appellant was not satisfied with the outcome of the said
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judgment and consequently filed a Notice of Appeal on the 21-5-2013. The Respondent also filed a Notice of Cross-appeal on the 28-5-2013 challenging the dismissal of the counterclaim.
Briefs of argument were subsequently filed by the parties who also adopted same at the hearing of the appeal on the 2-3-2016.
The Appellant?s brief of argument is dated and filed on 28-11-2013 but deemed on 4-6-14. It was settled by DAVID OGEBE ESQ. and the sole issue formulated for determination reads thus:-
?Whether the Appellant?s fundamental right to fair hearing was infringed in the judgment of the Lower Court.?
?In the Respondent?s Amended brief of argument filed on 29-12-2015 and settled by M.B GANIYU ESQ. the sole issue as formulated in the Appellant?s brief of argument was also adopted in making the necessary submissions.
The Appellant also filed a reply brief of argument on the 8-1-2016.
The hearing of the appeal was however preceded by the moving of the Notice of Preliminary Objection filed by the Respondent on the 10-6-2015.
Given the state of the law that where a Preliminary Objection is raised
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against the hearing of an appeal, it must be taken first and decided upon one way or the other before going into the main appeal, I will therefore resolve this Preliminary objection as a matter of priority. See APAPA VS INEC (2012) 8 NWLR (PT 1303) 409; JAIYEOLA VS ABIOYE (2003) 4 NWLR (PT 810) 397; OSUN STATE GOVERNMENT VS DALAMI (NIG) LTD (2003) 7 NWLR (PT 818) 72.
The said Preliminary Objection challenges the competence of the appeal and the jurisdiction of this Court to entertain same on the following grounds:-
(i) By virtue of the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as Amended, an appeal only lies to the Court of Appeal from the decision of the Lower Court; i.e The National Industrial Court on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999.
(ii) All the Grounds: i.e Ground Numbers 1, 2 and 3 along with their particulars which are contained in the Appellant?s Notice and Grounds of Appeal are not grounds of appeal which can be entertained by this honourable Court by virtue of the provisions of Section
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243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended as they do not raise any issue of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria, 1999.
(iii) Ground Number 1 purports to raise the issue of denial of fundamental right to a fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 to Appellant by the Lower Court, whereas all the particulars in support of the ground; i.e particular i, ii, iii, iv, v and iv do not relate to the ground as they all relate to the issues which had arisen between the Appellant and the Respondent before the Appellant filed his case in the Lower Court which issues the Appellant had already canvassed before the Lower Court and all of which issues the Lower Court had found unmeritorious, the grounds and the particulars do not therefore raise any point which is appealable to this honourable Court by virtue of the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
(iv) Ground number 2 purports to raise the issue of denial of fundamental right to a
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fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 to the Appellant by the Lower Court, whereas all the particulars in support of the ground; i.e particulars i, ii, iii, iv, v and vi do not relate to the ground. Particulars i and ii of ground 2 relate to the Lower Court?s review and analyses of the case made out before the Lower Court while particulars iii, iv, v, and vi of the ground raise the issues of the onus of proof, proof beyond reasonable doubt and failure to call particular witnesses all of which points are not appealable to this honourable Court by virtue of the provisions of Section 243(2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
(v) Ground number 3 purports to raise the issue of denial of fundamental right to a fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 to the Appellant by the Lower Court, whereas all the particulars in support of the ground; i.e particulars i, ii, iii, and iv do not relate to the ground. Particulars of ground 3 of the grounds of appeal i.e particular i, ii, iii and iv raise the issues of the
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content and the construction of the Appellant?s letter of employment, the content of the pleadings of the parties and prove beyond reasonable doubt all of which points are not appealable to this honourable Court by virtue of the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
(vi) All the arguments which the Appellant has canvassed in his brief of argument relating to points raised in particulars i, ii, iii, iv, v and iv of ground 1 of the Notice of grounds of appeal and in particulars i, ii, iii, iv, v and vi of grounds 2 contained in the Notice of Appeal as well as in particulars i, ii, iii and iv of in respect of ground 3 contained in the Notice of Appeal can not be entertained by this honourable Court as they are all on points which are not appealable to his honourable Court by virtue of the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended as they do not raise any issue of fundamental rights as contained in chapter IV of the constitution.
(vii) IN ADDITION TO, OR IN THE ALTERNATIVE TO GROUNDS i, ii, iii and iv, v and vi
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ABOVE, particulars i, ii, iii iv and v and vi of ground 1 of the Notice and grounds of appeal have no relationship with the said ground 1 and particulars i, ii, iii, iv, v and vi of ground of appeal number 2 contained in the notice and grounds of appeal of the Appellant have no relationship with the said ground 2 and particular i, ii, iii and iv of the ground of appeal number 3 contained in the Notice and grounds of appeal of the Appellant have no relationship with the said ground 3.
The argument in support of the said Preliminary Objection is contained in pages 4 to 16 of the amended Respondent/Cross-Appellant?s brief of argument filed on 29-12-2015.
Therein Learned Counsel for the Respondent referred to Section 243 (1) (2) (3) and (4) of the 1999 Constitution (as amended) to submit that it is clear that by virtue of the said provisions, this Court lacks the jurisdiction to entertain this appeal in so far as the Appellant raised issues other than that of fundamental human rights as contained in the 1999 Constitution as amended. He referred to the three grounds of appeal to argue that they were merely geared towards avoiding the limitation
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placed on the right of appeal against the decision of the Lower Court by raking up imaginary breach of fundamental right to a fair hearing.
He cited the case of NIGERIAN WESTMINISTER DREDGING & MARINE LTD VS JOHN ONOVO (unreported) judgment of this Court delivered on 14th day of May 2013. This, according to Learned Counsel, is a good example of the stance of this Court against attempts by litigants to lure it into entertaining appeals from the decisions of the National Industrial Court in respect of matters which ordinarily are not appealable by hinging their appeals on the breach of fundamental right to a fair hearing. See also COCA-COLA (NIG) LTD VS AKINSANYA (2013) 18 NWLR (PT 1386) 255 and LAGOS SHERATON HOTEL & TOWERS VS HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014) LPERL (23340) CA.
Learned Counsel urged this Court to strike out all the arguments of the Appellant in the Appellant?s brief.
He further referred to grounds 7 of the Preliminary Objection to submit that all the three grounds of appeal purports to raise the issue of denial of fundamental right of fair hearing under Section 36 of the 1999 Constitution
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to the Appellant by the Lower Court whereas all the particulars in support of the grounds of appeal do not relate to the three grounds of appeal but to issues that have arisen between the Appellant and the Respondent before the suit was filed in the Lower Court.
He further submitted that where the particulars of a ground of appeal are inconsistent with the main complaint in the ground of appeal then such ground should be struck out. He cited the case of ALI VS ALBISHIR (2008) 3 NWLR (PT 1073) 94; GLOBE FISHING IND. LTD VS COKER (1990) 7 NWLR (PT 162) 265; HONIKA SAWMILL (NIG) LTD VS HO FF. (1994) 2 NWLR (PT 326) 252 and BRIGGS VS C.L.O.R.S.N (2005) 12 NWLR (PT 938) 59.
He also urged the Court to strike out the sole issue formulated from the incompetent grounds of appeal because it has nothing to stand on.
The Appellant?s response is contained in pages 1 to 6 of the Appellant?s amended reply brief and cross-Respondent?s brief of argument filed on 8-1-16.
Therein, Learned Counsel for the Appellant argued that the Preliminary objection by the Respondent is greatly flawed and misconceived because the very subject of the
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Appellant?s substantive suit at the Lower Court was that he was dismissed for allegations of criminal offences without being given a right of fair hearing. He referred to paragraphs 11, 12, 13, 14 and 17 of the amended statement of facts in the Lower Court.
He added that it was the facts averred therein that issues were joined and contested in the Lower Court leading up to the judgment now on appeal and since the issue in contention in the Lower Court was on the denial of fair hearing it is invariably a question on fundamental rights as enshrined in the 1999 Constitution (as amended). Therefore, the Appellant is well within the confines of Section 243(2) and (3) of the 1999 Constitution as to entitle this Court to entertain this appeal.
Learned Counsel further contended that all the grounds of appeal clearly raised the issue of denial of fair hearing and the particulars in support relate properly to the grounds of appeal.
He added that they are all issues that offend the right of the Appellant to a fair hearing as enshrined in Section 36 of the 1999 Constitution. He cited the following cases in support. UZUDA VS EBIGAH (2009) 15 NWLR (PT
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1163) 1 at 21-24; TANKO VS UBA (2010) 17 NWLR (PT 1221) 80 and VICTINO ODDS LTD V OJO (2010) 8 NWLR (PT 1197) 486 at 501.
Learned Counsel also submitted that particulars of a ground of appeal are simply aimed at projecting the reason for the ground complained of and furthermore that defective particulars are now treated as irregularities in so far as the ground contains enough material showing the Appellant?s complaint as recently held by the Supreme Court in OMISORE VS AREGBESOLA (2015) 15 NWLR (PT 1482) 205 at 257 to 258.
He added that the case of WESTMINISTERS DREDGING & MARINE LTD VS ONOVE Supra cited by the Respondent is inapplicable because it was based on alleged bias by the trial Court. This Court was then urged to dismiss the preliminary objection.
The issues of jurisdiction is the bedrock of adjudication by a Court of law and as such, it is basically considered expedient to resolve same before proceeding to consider the matter presented to the Court on the merit. It therefore goes with saying that the determination of a matter by a Court is a nullity if done without jurisdiction, no matter how well or proper the proceeding
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was conducted.
The jurisdiction of a Court to entertain a matter is therefore fundamental to the extent that if a Court has no jurisdiction to hear and determine a case, the proceeding is a nullity ab initio.
See GALADIMA VS TAMBAI (2000) 6 SCJN 190; A.G LAGOS STATE VS DOSUNMU (1989) 6 SC (PT 11) page 1; OWUAMA VS OBASI (2011) 1 NWLR (PT 1228) 431; AGBITI VS NIGERIAN NAVY (2011) 4 NWLR (PT 1236) 175; AJAO VS ALAO (1986) 5 NWLR (PT 45) 802, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341; OKUDO VS STATE (2011) 3 NWLR (PT 1234) 209; OBIUWEUBI VS C.B.N (2011) 7 NWLR (PT 1247) 465. In A.G RIVERS STATE VS A.G AKWA-IBOM STATE (2011) 8 NWLR (PT 1248) 31, the Supreme Court held at page 165 that:-
?When a Court?s jurisdiction is challenging by the defence, being a threshold issue, the Court must first be competent before it can proceed to adjudicate on the case on the merits. The reason being that jurisdiction is a radical and crucial question of competence.
Either the Court has jurisdiction to hear the case or it has not. It is very expedient for a Court to examine and determine whether it has jurisdiction before proceeding any further in a
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matter.?
In the instant case, the Respondent is challenging the jurisdiction of this Court to entertain the appeal because the grounds of appeal have no bearing with fundamental right which is the only ground for which an aggrieved party can appeal as of right from the decision of the National Industrial Court to this court ? under Section 243 (1) (2) and (3) of the 1999 Constitution (as amended).
The said Section 243 (2) and (3) of the 1999 Constitution (as amended) reads thus:-
243(2) ?An appeal shall lie from the decision of the National Industrial Court as of questions of fundamental rights as contained in chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.?
The above set out
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provisions are to my mind, very clear and devoid of any ambiguity. My understanding of same is that except for the right of appeal under Section 243 (2) therein, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any cause or matter in which jurisdiction is conferred on the National Industrial Court shall only be as prescribed by an Act of the National Assembly. Provided however that where such Act or law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal on any other matter, such appeal shall be with the leave of the Court of Appeal.
In other words, except for the provisions of Section 243(2) wherein an aggrieved party can appeal as of right to this Court, on questions of fundamental rights as contained in chapter IV of the 1999 Constitution at it relates to matters upon which the National Industrial Court has jurisdiction; an appeal on any other matter shall only be as prescribed by an Act of the National Assembly.
As it currently stands, no such Act of the prescribed National Assembly has been enacted to what other causes or matters in
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which an appeal shall lie from the decision of the National Industrial Court. See also LAGOS SHERATON HOTELS AND TOWERS VS HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014) LPELR (23340) CA.
Now, on the issue whether the Appellant?s complaint in this appeal borders on fundamental human rights. The ideal port of call is the Notice of Appeal in order to ascertain the nature of grievance presented to this Court for resolution. The three grounds of appeal contained therein are herein below reproduced shorn of their particulars:-
GROUND ONE
The Learned Trial Judge erred in law when His lordship deliberately ignored and/or failed to consider valid and fundamental issues placed before the Court for determination by the Appellant thereby denying the Appellant?s right to a fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
GROUND TWO
The Learned Trial Judge erred in law when His Lordship made out a case for the Respondent over and beyond its pleading before the Court and held that the Respondent had proved with credible evidence that the Appellant was guilty of
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acts ?capable of eroding the confidence of his employer as to continue to work with him?; of not being honest in his dealings as far as his conduct was concerned; ?working against the deep interest of the employer? (page 25-26 of the judgement) and that the Appellant did ?commits an act which is injurious to the business of the employer and is incompatible in the breach of the Appellant?s constitutionally guaranteed right to receive a fair hearing as contained in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
GROUND THREE
The Learned Trial Judge erred in law when His lordship again made out a case for the Respondent in pages 25 ? 26 of the judgment of the Lower Court as follow ?also, in a master and servant relationship such as in the instant case there is a general power reposed in the employer to dismiss an employee for misconduct? has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer and misconduct is what the employer makes it out to be. It could be a series of disobedient
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actions, acts of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution? and thereby infringed upon the Appellant?s constitutional right to a fair trial.?
In my humble view, ground one of grounds of appeal speaks clearly for itself and further elucidated in the particulars in support and a combination of which shows nothing but the Appellant?s grievance which bears on the failure of the Lower Court to address the issue whether he was given any opportunity for explanation over the allegation of forgery of documents, siphoning of funds belonging to the company or engaging in fraudulent activities.
The letter of summary dismissal as shown in page 15 of the Record of appeal speaks for itself and the content is herein below set out thus:-
PERSONAL & CONFIDENTIAL
17th August, 2011
CLEMENT ABAYOMI ONITIJU
3 Olusola Taiwo Avenue
Olorunda Estate
Alapere, Ketu.
Lagos.
Dear Yomi,
SUMMARY DISMISSAL
We refer to your of employment dated 1st April 2009.
Following an investigation into
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various procurements made by you as the Manger IT department, we have uncovered evidence that indicates that you have committed a series of frauds in the company. You are hereby summarily dismissed, with effect from today 17th August, 2011, from the employment of Lekki Concession Company (?LCC?) for gross misconduct in forgery of procurement documents and siphoning of the company?s funds.
Kindly submit your LCC identification card, and any other LCC items in your possession.
Yours faithfully,
For: Lekki Concession Company Limited
Feyi Durojaiye Jobalo Oshikanle
Head, Human Head Legal
Resources & Admin
Cc: Finance Department
Paragraph (1) of the letter is self explanatory to the effect that an investigation was carried out into various procurements made by the Appellant as Manager IT department and the said investigation revealed that the Appellant committed series of fraud in the company.
?The Appellant complaint is that he was never given any query concerning the issue, neither was he made to appear before any panel of investigation or even asked to comment or react to
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the allegations and this has led to a breach of right to fair hearing. This was clearly averred to in paragraphs 8, 9, 10, 11, 12, 13, and 14 of the amended statement of facts at pages 5 and 6 of the Records.
The Appellant brought this appeal because the issue whether or not he was given a fair hearing by the Respondent on such heinous allegation was not discussed or considered by the Lower Court.
As per grounds (2) and (3) and the particulars in support of same. It seems to me that they are not hinged on any breach of fundamental rights of the Appellant but rather on the evaluation of evidence and finding of facts by the Learned Trial Judge. I cannot therefore but agree with the submission of the Learned Counsel for the Respondent that particulars (i) and (ii) of grounds 2 relate to the review and analysis of the case presented before the Lower Court while particulars (iii), (iv), (v), and (iv) raises the issue of onus of proof, proof beyond reasonable doubt and failure to call a particular witness. The same goes for ground 3 which particulars do not relate to the ground of appeal being that they mainly raised the issue of the content and the
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construction of the Appellant?s letter of employment, proof criminal allegation beyond reasonable doubt and manner of interpretation of a contract.
These are indeed issues outside the scope of fundamental right and do not relate to any ground of appeal. Where the particulars of a ground of appeal are inconsistent with the main complaint in the ground of appeal such ground ought to be struck out. See FEDERAL HOUSING AUTHORITY VS KALEJAIYE (2010) 19 NWLR (PT 1226) 147.
Particulars of error alleged in a ground of appeal, are intended to highlight the complaint against the judgment or appeal. They specify the error or misdirection alleged in order to clarify the mode of canvassing the complaint of the Appellant with a view to demonstrating the flow in a particular or relevant aspect of the judgment. See DIAMOND BANK LTD VS PARTNERSHIP INVESTMENT CO. LTD (2009) 18 NWLR (PT 1172) 67; OSASONA VS AJAYI (2004) 18 NSCQR 40.
It follows therefore that the particulars of error or misdirection alleged in relation to a ground of appeal should be the specific reasonings, findings or observations in the judgment or ruling in question relating to the
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error or misdirection complained of. They are expected to enumerate the error or misdirection in the judgment or ruling. See GLOBE FISHING INDUSTRIES LTD VS COKER (1990) 7 NWLR (PT 162) 265; AMUDA VS ADELODUN (1997) 5 NWLR (PT 506) 480.
In the instant case having found that all the particulars in support of ground 2 and 3 are at variance with the said grounds they are consequently rendered incompetent. See ADEROUNMU VS OLOWU (2001) 2 SCJN 180 and FEDERAL HOUSING AUTHORITY VS KALEJAIYE Supra; OSASONA VS AJAYI Supra.
I am not unaware of the recent decision of the Supreme Court cited by the Learned Counsel for the Appellant on the current state of the law on the status of particulars in support of a ground of appeal. That is the case of OMISORE VS AREGBESOLA (2015) 15 NLWR (PT 1482) 205 wherein at page 257 of the report, it was held per NWEZE JSC that:
?The answer to the objectors? invitation is predictable. The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to grounds of appeal with the fastidious details prescribed
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by the rules of this Court that would render such a ground incompetent. This is, particularly, so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded.?
The above stance of the Supreme Court no doubt accord with substantial justice as opposed to blind adherence to technicalities. It is however distinguishable from the instant case where all the particulars are found not to relate to the two grounds of appeal in question and the said two grounds are devoid of enough particulars to warrant this Court to justify a holding that they are competent within the con of the aforementioned authority of the Supreme Court.
Nonetheless, the ground 1 of the Notice of Appeal having been found to be competent, can sustain this appeal given the trite law that an appeal can be sustained by even one valid ground of appeal. See ALHAJI ATIKU ABUBAKAR VS ALHAJI UMARU MUSA YAR?ADUA & ORS (2008) 1 SCNJ 549.
?This is moreso that the said ground 1 is the fulcrum of the Appellant?s grouse against the decision of
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the Lower Court which is that the Lower Court did not address or consider the Appellants claim that he was not given the opportunity of a fair hearing by the Respondent before he was dismissed and thus constitutes a breach of his fundamental right to fair hearing under Section 36 of the 1999 Constitution (as amended).
The above issue formulated by the Appellant and adopted by the Respondent also derive solely from and relates strictly to the said surviving ground of appeal and as such will be considered accordingly.
The appeal therefore seems justified and within the ambit of Section 243 (2) of the Constitution (as amended) and I have no hesitation to so hold that this Court under the circumstance has the requisite jurisdiction to hear and determine this appeal. The Respondent?s preliminary objection is accordingly dismissed.
On the main appeal, the Appellant as earlier stated formulated a sole issue for determination as follows:-
?Whether the Appellant?s fundamental right to a fair hearing was infringed in the judgment of the Lower Court.?
?The said sole issue was also adopted by the Respondent in the Amendment
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Respondent/Cross Appellant?s brief of argument filed on 29-12-2015. This appeal will therefore be considered on the basis of the said sole issue for determination.
Arguing on the said issue, Learned Counsel for the Appellant submitted that the judgment of the Lower Court grossly violated the Appellant?s fundamental right to a fair hearing as enshrined in Section 36 of the 1999 Constitution (as amended) in the following three specific areas:-
(1) The Lower Court completely ignored all the issues and legal arguments on behalf of the Appellant and made no determination on the points.
(2) The Lower Court descended into the arena and made out a case for the Respondent, and
(3) The Lower Court failed to evacuate a single shred of evidence nor gave reasons for its decision.
On the first point, which is relevant to this appeal, Learned Counsel for the Appellant submitted that the case before the Lower Court as revealed in the Amended Statement of facts, the evidence adduced at the hearing and the final written address was that he was dismissed on the allegation of forgery of procurement documents and siphoning of the
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company?s funds without being first confronted with the evidence and given an opportunity to defend himself. Rather he was arrested in the office on 6-8-2011 and immediately handed over to the police from whom he heard about the allegation for the first time and upon release from police custody the next day he was served with a letter of dismissal, dated 17-8-2011 in his house.
It was contended that this piece of evidence as contained in the paragraphs 13-14 of the statement of facts was not challenged or contradicted under cross-examination by the Respondent and the evidence of DW1 also attests to the fact that the Appellant was not given opportunity for any explanation or reaction by the Respondent.
These set of facts were presented to the Lower Court and supported by the case of OKWARANYIA VS EKE (1996) 3 NWLR (PT 436) 335 but this important issue was not considered by the Learned Trial Judge in the judgment.
Learned Counsel also referred to number of authorities cited in the final written address to support the Appellant?s case but they were not addressed or considered by the Lower Court in reaching its decision. They include
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YUSUF VS UNION BANK OF NIGERIA LTD (1996) 6 NWLR (PT 457) 632 at 644; KOTOYE VS CBN (1989) 1 NWLR (PT 98) 448; SPDC LTD VS OLARENWAJU (2008) 18 NWLR (PT 118) 1 at 22; OLATUNBOSUN VS NISER (1988) 1 NSCC (Vol 1) 1045.
It was thus submitted that inspite of the authorities cited and submissions made in the final written address, the Learned Trial Judge simply ignored and made no determination of the issues raised contrary to the settle principle of law that a Court is duty bound to consider and determine all issues placed before it by a litigant and failure to so do will amount to a denial of fair hearing to the litigant as held in TANKO VS UBA PLC (2010) 17 NWLR (PT 1221) 80 at 93-94; UZUDA VS EBIGAH and DUZU VS YUNUSA (2010) 10 NWLR (PT 1201) 80.
Learned Counsel also posited that ironically the case of YUSUF VS UBN (Supra)?relied on by the Lower Court clearly emphasised the principle that a party must be heard first on allegations of misconduct or criminality before the right to a summary dismissal can be exercised. This Court was then urged to allow the appeal.
Responding on the issue, Learned counsel for the Respondent first embarked on an
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analysis of what constitutes a well written judgment and the test to be applied. He cited a number of case in support and this includes, UBA PLC VS S.A. F. P.U (2004) 3 NWLR (PT 861) 50; DUMEL NIGERIA LTD VS NWAKHOBA (2009) ALL FWLR (PT 461) 857-858.
He also referred to the issue formulated in the Respondent and Appellant?s final written addresses at the Lower Court and detailed the summarising, the findings and reasonings made by the Learned Trial Judge in the judgment as shown in page 219 to 340 of the Record.
He then submitted that the assertion by the Appellant that the Lower Court completely ignored all the issues and legal arguments proffered on behalf of the Appellant and failed to analyse any piece of evidence whether oral or documentary runs contrary to the decision of the Lower Court.
On the case of YUSUF VS UBN LTD, relied on by the Appellant he contended that in the said case the Supreme Court in dismissing the appeal and affirming the decision of this Court held that the act of the Appellant therein was an act of misconduct which clearly entitled the Respondent in the case to dismiss the Appellant summarily as it did.
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Learned Counsel further referred to the case of AFRICAN NEWSPAPERS LTD VS AKANO (2012) ALL FWLR (PT 605) 345 at 357-358 where the Court relied on YUSUF VS UBN LTD Supra on the proposition that an employer can dismiss its employee summarily for an act of misconduct which amounts to dishonesty. He proceeded to quote extensively from the said case per decision of IKYEGH JCA at pages 357 to 358 of the Report on the principle that prosecution before a Court of law in the circumstances is not a sine qua non before an employer can exercise the right of summary dismissal.
It was further submitted by Learned Counsel that the issue whether the Appellant was given a fair hearing by the Respondent is not an issue recognisable or applicable to this Court. It is only recognisable before the Lower Court and the Appellant had presented it before the Lower Court which determined same against the Appellant.
This Court was then urged to dismiss the appeal.
The Appellant?s response to the Respondent?s brief of argument is at pages 6 to 12 of the Appellant?s amended reply brief and cross-Respondent?s brief of argument filed on 8-1-16. The
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submissions therein have been perused and will be addressed in this judgment as the need arises.
Now the Appellant?s complaint is that the Lower Court failed or ignored to address the issue relating to his claim that the act of the Respondent in dismissing him summarily from its employment without giving him the opportunity to react or comment on the allegation of misconduct in forgery of procurement funds is a breach of the right to fair hearing as enshrined in Section 36 of the 1999 Constitution (as amended) and which claim the Respondent never denied.
I have perused the said judgment of the Lower Court with particular reference to its findings, reasoning and conclusion.
My first observation however is that contrary to the Appellant?s assertion, the Lower Court did not entirely ignore all the issues and arguments raised by the Appellant in the pleadings, evidence and written address.
They were all carefully reviewed and summarised in the judgment including that of the Respondent. The query should rather be whether an important issue pertaining to the Appellant?s claim was not considered in the judgment.
I however,
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observe that nowhere in the said judgment did the Learned Trial Judge consider or make any finding of fact on the Appellant?s allegation that he was not given any opportunity to respond or comment on the allegations against him but was arrested in his office on the orders of the chief executive of the Respondent and taken straight to the police station where he was detained till the next day. Upon release, the next day, he received a letter dated 17-8-2011 wherein he was said to have been dismissed summarily without much do.
The Learned Trial Judge rather concentrated emphasis on the right of an employer to dismiss an employee summarily on the ground of gross misconduct and that the act of the Appellant qualifies as acts of gross misconduct deserving of a summary dismissal. For instance, in the judgment at page 339 of the Record the Learned Trial Judge held as follows:-
After a careful consideration of the argument of the parties, and the process filed as well as all the documents frontloaded, two issues call for the determination of this Court. These are:
(1) Whether the Claimant is entitled to the grant of the reliefs sought in this
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case.
(2) Whether the Defendant is entitled to the reliefs sought in the counter claim.
As regards the first issue, the Claimant claims before this Court is that his dismissal was wrongful, null and void as he was not afforded fair hearing before he was dismissed. The Defendant on the other hand insists that its action was in line with the terms of the employment of the Claimant and the applicable law regulating their relationship. The case of the Defendant is that the Claimant has breached his terms of employment by committing fraud argues that Claimant?s letter of employment did not lay down any procedure that the Defendant should follow in dismissing the Claimant for misconduct.
The law in this regard is that where there is an allegation of crime against an employee, the employer cannot dismiss the employee based on that allegation until the conclusion of a criminal trial. Where however as in this case, the employee was dismissed for ?gross misconduct? as contained in the Claimant?s letter titled ?Summary Dismissal? then the matter will be viewed differently. In this case, the issues against the Claimant are
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that of forging of ……supply documents, inflation of prices and supply of invoices with non existent addresses, including using his personal computer to generate quotations e.t.c. Surely this conduct is against the business interest of his employer. Where an employee as in this case commits an act which is injurious to the business of the employer and is incompatible with the faithful discharge of his duties, it is justifiable for the employer and is incompatible with the faithful discharge of his duties, it is justifiable for the employer to dismiss him. See UZONDU V. UBN (2009) 5 NWLR (PT. 1133) 14, UNDERWATER ENGINEERING CO. LTD & ANOR V. DANISHA DUBEFON (1995) 6 SCNJ 55, ANSELIM I. OSAKWE V. NIGERIAN PAPER MILL LTD (1998) 7 SCJN 222.
I have looked at the processes and exhibits frontloaded by the parties in this case, I have also listened to the witnesses of the defendant and the testimony of the Claimant as well as the written submission of the parties. I am of the considered view that there is sufficient evidence to show that the Claimant was not honest in his dealings as far as his conduct was concerned. It is trite law that where an employee
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complains that his employment has been wrongful brought to an end, the onus is on such an employee to place before the Court the terms of the contract of his employment with his employer and to prove in what manner the terms have been breached. The terms and condition of an employment are the bedrock upon which any claim premised on such employment must squarely rest. In the instant case, the Claimant averred that his dismissal was unlawful, wrongful, null and void and of no effect without proving the terms and conditions that had been breached by the Respondent. See AZENABOR V BAYERO UNIVERSITY KANO (2009) 17 NWLR, PT. 1169 99, AKINFE V. UBA PLC (2007) 10 NWLR (PT. 104) 185, MOMOA V. CBN (2007) 14 NWLR (PT. 1055) 504, ZIDEH V. R.S.C.S (2007) 3 NWLR (PT. 1022) 554.
After evaluating the totality of evidence before me, my finding is that the Defendant has been able to establish by credible evidence that the Claimant?s behaviour is capable of eroding the confidence of his employer as to continue to work with him. I therefore believe the evidence of the Defendant as against that of the Claimant.
Further at page 340 of the record the Learned Trial
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Judge further held that:-
It is trite law that an employer?s right of summary dismissal must arise from the terms expressed or implied in the contract of employment. See JIRGBAGH V. UBN PLC (2011) 2 NWLR PT. 696 P. 13. Also, in a master and servant relationship such as in the instant case there is a general power reposed in the employer to dismiss an employee for misconduct of any kind.
What constitutes is not clearly spelt out, but ?gross misconduct? has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer and misconduct is what the employer makes it out to be. It could be a series of disobedient action, acts of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution. See AZENEBOR V. BAYERO UNIVERSITY KANO (2009) 17 NWLR (PT 1169) At 102, BORISHADE V. NBN LTD (2007) 1 NWLR (PT. 1015) 217. Equally in EZE V . SPRING BANK PLC (SUPRA) the Supreme Court held that working against the deep interest of the employer as the Claimant has done in the instant case amounts to
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gross misconduct entitling an employer to summarily dismiss the employee. To warrant summary dismissal, it suffices that the conduct of the employee as in the instant case is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee. See AJAYI V. TEXACO NIG. LTD (1987) 3 NLWR (PT. 62) 577, SULE V. NIGERIAN COTTON BOARD (1985) 2 NWLR (PT. 5) 17.
In my considered view, the Defendant has been able to establish that the Claimant committed acts of gross misconduct which goes to the root of his contract. The Defendant was therefore right to have summarily dismissed the Claimant. In the circumstance, I therefore find and hold that the Claimant is not entitled to the reliefs sought in this case.
From the above set out portion of the judgment of the Lower Court, it is clear as per the complaint of the Appellant that the issue of breach of fair hearing in the process of the dismissal of the Appellant was nowhere considered one way or the other by the Learned Trial Judge notwithstanding the fundamental nature of such claim when raised before a Court and supported by evidence which was
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not challenged on controverted during cross-examination.
The learned counsel for the Respondent had in paragraphs 7.2 and 7.3 of page 36 of the Amended Respondent/Cross Appellant Brief of argument sought to justify the holding of the Lower Court by submitting as follows:-
?In the first instance, the issue as to whether the Appellant was given a fair hearing by the Respondent before he was dismissed by the Respondent is not an issue which is cognisable or appealable to this Court. The issue is only cognizable before the Lower Court and the Appellant had presented the issue before the Lower Court and the Lower Court has determined the issue adversely to the Appellant.
The jurisdiction of this Honourable Court as stipulated in Section 243 of the Constitution of the Federal Republic of Nigeria 1999 is to hear appeals.. from the decision of the National Industrial Court ? on questions of fundamental rights as contained in chapter iv of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction?.. which means the only issue on which this Honourable Court has jurisdiction on
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this appeal is whether the Lower Court gave the Appellant a fair hearing in determining his case and we have demonstrated that the Lower Court gave the Appellant a fair hearing in determining the case presented by the Appellant before the Lower Court.?
It seems to me, from the above set out submission, that just as in the case of the Lower Court, the Respondent also misconstrued the Appellants complaint to the effect that he was denied a fair hearing because he was not given the opportunity to defend himself on the allegation of forgery and fraud before he was dismissed. The fair hearing complained about here is not based on the con that he would have been tried and convicted by a trial Court for the alleged offence before he can be dismissed. This unfortunately formed the basis for the decision of the Lower Court against the Appellant, coupled with the stance that where an employee is dismissed for gross misconduct then the employer will be justified. Hence it held at page 340 of the record that in a master and servant relationship such as in the instant case, there is a general power reposed in the employer to dismiss an employee for
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misconduct of any kind.
The Lower Court however did not in any part of the judgment engage in any discourse on whether the Appellant was at any time before his dismissal confronted either personally or through correspondence, with the allegation of forgery and fraud made against him and obtain an explanation, before he was arrested and dismissed the next day. The Appellants averment in paragraphs 8 to 14 of the pleadings at pages 5 to 6 of the Record as well as his evidence in Court attest to this fact which was not challenged or controverted or even discredited during cross examination.
This fundamental issue of lack of the opportunity of being heard before being dismissed from his employment was presented to the Lower Court for redress but it was virtually ignored while it embarked on analysing the power of an employer to dismiss an employee for gross misconduct. I cannot therefore but agree with the Appellant that the Learned Trial Judge in the judgment delivered on 24-4-2013 completely ignored and made no mention or consider one way or the other the very crucial and fundamental issue of lack of fair hearing raised by the Appellant. It is a
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statutory responsibility of all Courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity. In other words, where a party has been denied fair hearing, the entire proceedings, no matter how well conducted will amount to a nullity. See SAMBA PETROLEUM LTD VS UNITED BANK FOR AFRICA PLC. (2010) 5-7 SC (PT 11)22; LEADERS & CO. LTD (PUBLISHERS OF ?THIS DAY?) VS BAMAIYI (2010) 12 SC (PT IV)55 NDUKAUBA VS KOLOMO (2005) 1 SCM 114; OVUNWO VS WOKO (2011) 6-7 SC (PT 1) PAGE 1; OLAGUNYI VS OYENIRAN (1995-1996)ALL NLR 494. In OSAFILE VS ODI (1990) 5 SC (PT 11) page 1. It was held by the Apex Court that, a Court is bound to consider the case validly presented to it by parties before it. A refusal to do so on any pre, except on a ground of law will amount to a denial of the right to hear such party, a ground fundamental to the administration of justice, the breach of which is fatal.
What is more, learned counsel for the Respondent had at pages 28 to 30 of the Respondent?s brief of argument engaged in an analysis of the
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case of YUSUF VS UBN LTD supra to support the stance of the Lower Court that an act of misconduct entitles the Respondent to dismiss the Appellant summarily. While I do not in any way dispute this aspect of the decision of the Supreme Court in YUSUF VS UBN LTD. I also want to bring to the fore that in the said case, the Supreme Court did not also ignore the necessity for an employee to be heard before such right of dismissal will be exercised. Hence, it was also held in the said case that, to satisfy the rule of natural justice, and fair hearing, a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to enable him to make representation in his own defence. This no doubt is consistent with the earlier decision of the Apex Court in ADENIYI VS GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993-1994) ALL NLR page 1 wherein it was held inter alia, that it is a fundamental precondition which is not negotiable, that a person accused of wrong doing must be confronted with the accusation before any action involving detriment to him can be legally taken.
?On the whole, it is my finding and I
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so hold that the Lower Court failed or ignored to consider the fundamental and crucial issue of lack of fair hearing presented to it for determination by the Appellant and this on its own constitutes a breach of the right to a fair hearing and thus vitiates the whole decision of the Lower Court.
This appeal therefore succeeds and it is accordingly allowed.
The judgment of the National Industrial Court delivered on the 25th day of April 2013 By J.T. AGBADU-FISHIM is hereby set aside.
It is ordered that this suit be remitted back to the Lagos Division of the National Industrial Court for an accelerated retrial before another Judge.
N50,000 cost is awarded against the Respondent.
CROSS APPEAL
The notice of Cross appeal was filed on the 28-5-2013 and it contains a sole ground of appeal.
The cross Appellant?s brief of argument is dated 22-9-2014 but filed on 29-12-2015.
A sole issue was formulated from the single ground of appeal as follows:-
?Whether the cross Appellant?s right to a fair hearing as guaranteed to the cross Appellant by Section 36 of the Constitution of the Federal Republic of Nigeria
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1999 as amended was not infringed when the Lower Court refused to allow their counter claim based on the evidence which the Lower Court had admitted?
The cross Respondent did not formulated any issue for determination of the cross appeal but proffered argument in his reply brief in response to the submissions made by the cross Appellant. It will therefore be taken that the cross Respondent adopted the issue as raised by the cross Appellant and I also adopt the said issue to consider this cross appeal.
Arguing on the sole issue as formulated, learned counsel for the cross Appellant submitted that on the evidence and the law, the Respondent was able to establish its counter claim in the Lower Court having been able to show that the Appellant made secret profit from the contract which was awarded to DUNNIBEL VENTURES (NIG) LTD.
He referred to the Respondent?s evidence before the Lower Court regarding the Appellant?s request for a 25% kick back from one Proficient Technologies and systems Limited which company quoted for supplies of Some I.T services to the Respondent but which contract was eventually awarded to DUNNIBEL VENTURES (NIG)
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LTD because one ABIODUN ODEBODE, an agent of Proficient Technologies refused to accede to such request for a kick back by the Appellant. Therefore the DUNNIBEL VENTURES having been awarded the contract to the tune of N7,233,975, at the instance of the Appellant, it is assumed that he must have collected the 25% kick back from DUNNIBEL VENTURES having signed two job completion certificates in favour of the company.
It was then submitted that the position of the law is that the Principal is entitled to claim from the bribed agent the amount of the bribe payment, vide READING VS A.G. (1951) AC 507 at page 517. He added that in the circumstance the Respondent is entitle to recover the sum of N1,808,493,75 being the bribe money which the Appellant received from DUNNIBEL VENTURES which consists of 25% of the total sum of N7,233,975 paid as contract sum to DUNNIBEL VENTURES by the Respondent.
He contended further that the refusal of the Lower Court to enter judgment for the cross Appellant based on the available evidence contravenes the cross Appellant?s right to fair hearing.
This Court was then urged to allow the Appeal.
The learned
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counsel for the Appellant/Cross Respondent replied to the above submission at pages 12 to 15 of the Appellant?s amended reply brief and cross Respondent?s brief of argument filed on 8-1-16.
Therein, it was submitted that the sole issue formulated for determination by the cross Appellant does not at all arise from or relate to the sole ground of cross appeal raised in the notice of cross-Appeal dated 28-5-2013. He added that the said Notice of Cross-appeal deals with failure to consider the case of the cross-Appellant and apply the relevant case law thereby denying the cross-Appellant her right to a fair hearing. But the amended sole issue for determination agrees with the finding of the Court and claims that judgment ought to have been entered on the counterclaim based on admitted evidence. It was further argued that both are diametrically opposed and based on different principles of law that once an issue is raised which does not relate to any ground of appeal same will be deemed incompetent and struck out on the authority of AJAYI VS TOTAL (NIG) PLC (2013)15 NWLR (PT 1378)423 AT 436-437.
Furthermore, that on the absence of a valid issue
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formulated from a ground of appeal, the said ground of appeal must be deemed abandoned and stuck out. He cited the case of MAOBISON INTERLINK ASSOCIATED LTD VS UTC (NIG) PLC (2013)9 NWLR (PT 1359) 197. He then urged this Court to dismiss the Appeal on that ground.
Arguing on the merit of the cross-appeal, Learned Counsel submitted that it lacks merit because the Lower Court never made any finding of fact that the cross Respondent committed any specific act of forgery, fraud or dishonesty, neither is there any part of the judgment where it was stated that the cross-Respondent collected the sum of N1,808,493,75 from anybody that will justify a refund to the cross-Appellant.
He added that the entire counter claim in the Lower Court was based on deductions, and speculations on the part of the cross-Appellant and a Court of law does not act a speculations and deductions. He relied on the case of IVIENAGBOR VS BAZUAYE (1999)9 NWLR (PT 620) 552 AT 561.
This Court was then urged to dismiss the cross-appeal
First on the preliminary point raised by the cross-Respondent that the sole issue raised by the cross-Appellant does?not relate to the ground of
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appeal.
I am minded to reproduce the said sole ground of cross-appeal together with the particulars herein below viz:-
GROUND NUMBER ONE
The Learned Trial Judge erred in law in dismissing the counter-claim of the cross-Appellant.
PARTICULARS
i.?The Learned Trial Judge failed to consider at all or failed to consider properly the case of the cross-Appellant as presented and also failed to apply or apply properly the relevant case law which were cited before the Lower Court thereby denying the Appellant its right to a fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
ii. It was the failure to give the cross- Appellant a fair hearing as stated in particular (i) above that led to the wrongful dismissal by the Lower Court of the cross-Appellant?s counter-claim.?
The sole issue formulated there from as set out in the cross-Appellant brief of argument reads as follows:-
Whether the cross-Appellant?s right to a fair hearing as guaranteed to the cross-Appellant by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended
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was not infringed when the Lower Court refused to allow their counter-claim based on the evidence which the Lower Court had admitted
Firstly, it is my humble view that the particulars in support of the sole ground of cross-appeal are not inconsistent with the said ground and they did nothing than to provide a clearer picture of what the ground of appeal is all about in terms of explaining the cross-Appellants grievance with the judgment appealed against. The particulars as given therein are therefore not strangers to the ground of appeal which they support.
The same goes with the issue formulated for determination which I find to properly relate to, and derived from the ground of appeal which borders on the failure of the Lower Court to allow the counter claim based on the evidence made available by the cross Appellant. Whether the said evidence is worth the while is another issue entirely when the merits of the cross appeal is addressed.
Now on the issue in contention in the cross-appeal. The cross Appellant had asserted in paragraph 10.3 of the brief of argument that having arrived at the correct decision that indeed the
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cross-Respondent did engage in various acts of impropriety against the cross Appellant and consequently dismissed the cross-Respondent?s claim, the natural consequence would have been to grant the Respondent counter claim.
The point must be noted that a counter claim is an independent action on its own and as such its success or failure does not depend on that of the main claim. In other words, where there is a counter claim or a cross action and the plaintiff in the main action fails, it does not necessarily follow, that the counter claim must succeed unless findings are made in favour of the counter Claimant that entitles him to succeed. See MOMODU OLUBODUN VS OBA ADEYEMIL LAWAL (2008)6-7 SC (PT 1) page 1; ANWOYI VS SHODEKE (2006)6 SCNJ 1.
In the instant case, the Learned Trial Judge made the following findings and conclusion at page 341 of the Record:-
?As to whether the defendant is entitled to the reliefs sought in the counter-claim, I agree with the argument of the Claimant?s counsel that the defendant did not lead evidence to specifically prove the counter claim. In OKOLO V. UBN (1998) 2 NWLR PT.L 539 at page 625, the
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Court of Appeal held that a counter claim enjoys an independent existence from the main suit from which it was raised and so the failure of the plaintiff?s suit does not affect the defendant?s counter claim and vice-versa. But it is important therefore that the counter claim must be properly pleaded and proved because the pleadings of a counter claim is governed by the same rules as those of the statements of facts and so must be proved before the counter Claimant will get judgment in his favour where the counter claim is not proved it must fail. In the instant case, the counter claim of the defendant was not proved and so it must fail and I so hold. The defendant is not entitled to the reliefs sought in the counter claim.?
The above finding of the Lower Court is no doubt correct and agreeable to me and it is consistent with the facts averred to in paragraph 10 of the cross-Appellant?s statement of defence/counterclaim as well as the submissions made in paragraphs 10.5 to 10.7 of the cross-Appellant?s brief of argument.
In other words from the story as told by the cross-Appellant at the Lower Court and confirmed in the
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cross-Appellant?s brief of argument, the allegation about the cross-Respondent receiving the sum of N1,808,493,75 as 25% of the contract awarded to DUNNIBEL VENTURES (NIG) LTD is not supported by any fact but based on mere deduction and speculations arising from the suspicion that having unsuccessfully demanded for the same percentage as kickback from PROFICIENT TECHNOLOGIES, the cross-Respondent must have succeeded in receiving the same amount from DUNNIBEL VENTURES. The cross-Appellant did not provide any proof before the Lower Court to show that any amount was paid as bribe to the cross-Respondent. Therefore to base the counter claim solely on it borders on pure speculation and puerile deduction which unfortunately is not allowed in law.
A suit is speculative if it is based on speculation, that is to say, not supported by facts or very low on facts but very high in guesses. A Court of law is not established to adjudicate on guesses but on facts and any suit based on such act of speculation deserves nothing but a dismissal. See PLATEAU STATE VS A.G. FEDERATION (2006) SCNJ 1.
The Courts do not speculate on possibilities, they act an
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actualities. Courts do not speculate or conjecture because it is dangerous to do so in the absence of admissible evidence. See EJEZIE VS ANUWU (2008) 4 SCNJ 113; ODONIGI VS OYELEKE (2001)4 SCM 127; IBRAHM VS THE STATE (1986) 1 NSCC 230; IGABELE VS THE S TATE (2006) 2 SCNJ 124.
In the circumstance, I hold that the Lower Court acted rightly in dismissing the counter-claim. This issue is therefore resolved against the cross-Appellant.
Accordingly, I hold that this cross-appeal lacks merit and it is accordingly dismissed. The judgment of the Lower Court dismissing the counter claim is hereby affirmed. N50, 000 cost is awarded against the cross-Appellant.
Other Citations: (2016)LCN/8607(CA)
