Okwara Agwu & Ors V. Julius Berger Nigeria Plc (2019)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALUMJE, J.S.C.
The Appellants herein were staff of the Respondent before they were declared redundant. The Respondent had industrial problem with its workforce in Abuja, that led to the closure of its activities on the 16th June 1999. By a circular dated 28th of June 1999, the respondent informed its workers that payment of salaries, wages and redundancy benefit for the period ending on 15th June,1999 will be made on the 30th June,1999, 2nd of July 1999 and 3rd of July 1999. By paragraphs 9 and 10 of the said circular, the workers were further informed as follows: –
“9. In spite of the illegal strike which cancels payment in lieu of notice, the management has directed the grant of notice of payment to those declared redundant.
- Workers living in company’s Quarters have to vacate their quarters within a period of two days after payment.”
The Respondent’s workers felt threatened by the circular as they did not know who would be declared redundant. They collectively took out a writ of summons in a representative capacity on the 1st July, 1999 in which they claimed the following reliefs: –
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a) Perpetual injunction restraining the defendant, their (Sic) agents, servants, privies, howsoever described from forcefully ejecting the plaintiffs and members of their families from any of their official quarters/Residences.
b) An order of perpetual injunction restraining the defendant, their (Sic) agents, servants, privies howsoever described from declaring any of the plaintiffs redundant without first of all following the due process of the Law as stipulated in the various Acts and also the Constitution of the Federal Republic of Nigeria, 1999.
c) An order compelling the defendant company to pay the plaintiffs the sum of ten million naira (N10,000,000.00) only being the cost of hiring the services of a solicitor to pursue this matter consequent upon the threat to illegally declare the defendants (Sic, plaintiffs) redundant and to illegally force them out of their residence / official quarters.”This writ of summons was not accompanied with a statement of claim. The Appellants also filed a motion on notice on the 1st of July 1999, in which they sought for the following: –
“a) An interlocutory orders restraining the
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Defendant/Respondent, either by themselves, (Sic) servants, agents, privies assign, howsoever described from unlawfully ejecting or any other way interfering with the quiet possession occupation and use of the plaintiffs’/applicant’s official quarters located in the Federal Capital Territory and Suleja pending the final determination of the substantive suit before this Honourable Court.
b) An order of interlocutory injunction restraining the defendant, their (Sic, its) agents, servants and/ or any person howsoever describe from unlawfully declaring any of the plaintiffs/applicants redundant pending the final determination of the substantive suit before this Honourable Court.
c) An order of interlocutory injunction restraining the defendant, its servants, agents, privies however described from interfering with any of the rights and privileges due to the plaintiffs/applicants as workers/servants of the defendant company pending the final determination of the substantive suit pending before this Honourable Court.”
The writ of summons and the motion were served on the respondent on the 1st of July 1999. As a follow up, Mr. S. C. Peters, Learned
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Counsel for the Appellants’ wrote two letters dated the same 1st July 1999 to the Respondent, warning it of the consequences of declaring any of the workers redundant during the pendency of the suit and the motion on notice. The Respondent ignored the Court processes and went on to declare the Appellants’ redundant on the 2nd and 3rd July, 1999 and paid their entitlements which they collected. After a futile attempt to commit the Respondent for contempt of Court and invoking the interference of the police in the activities of the Respondent, Learned Counsel for the Appellant, by a motion on notice filed on the 4th of October 2000 at the High Court of the Federal Capital Territory, sought for the following reliefs:
“a). An order of the Honourable Court reinstating the plaintiffs/applicants to the employment of the Defendant/Respondent pending the final determination of the substantive suit pending before the Honourable Court.
b). An order of the Honourable Court deeming the plaintiffs/applicants as due employees of the Defendant Respondent at all times material to the commencement of this action.”
The defendant/Respondent opposed the application
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by filing counter affidavit. After resolving some preliminary issues, the motion was heard on the 26th April, 2000 and in a reserved and considered ruling delivered on the 30th May 2001, the trial court granted to the six Appellants only the reliefs sought on the following terms: –
“In the circumstances therefore, the declaration of redundancy against these plaintiffs/applicants which was made on the 2nd and 3rd July, 1999 after the filing of this action on the 1/7/99 amounts to the respondents taking into their hands a matter which is subjudice.
They are therefore deemed to be in the service of the defendant/respondent Julius Berger Plc until the final determination of the substantive suit. The application therefore succeeds on this ground and the Respondent is to afford the applicants all rights, duties, responsibilities and privileges of their offices to which they are entitled or responsible prior to the commencement of this suit. The plaintiffs/applicants shall, if they collected any terminal benefit refund same forth-with to the respondent and let the statusquo ante bellum be maintained pending the determination of the substantive suit.”
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The Respondent was thoroughly dissatisfied with the ruling of the trial Court. Being aggrieved, it appealed to the Court of Appeal (the lower Court) and submitted one issue for determination of its appeal in the following words: –
“Whether or not the trial Court in granting the order of interlocutory injunction exercised its judicial discretion properly or acted in wrong principle.”
The Appellants herein were also dissatisfied with certain aspect of the ruling. They also filed an appeal at the lower Court. The two appeals which were filed at the Court of appeal Abuja Division were transferred to the Kaduna Division of the Court of Appeal and were renumbered as CA/K/250/2003 and CA/K/260/2003.
The two appeals were heard by a panel of Justice s of the lower Court comprising of Mary Peter-Odili JCA (as he then was) who presided and J. T. Tur and O. F. Ogbuinya JJCA. In their unanimous judgment delivered on the 9th day of May 2011, the two appeals were allowed. The ruling and orders of the learned trial Judge were set aside. The suit was remitted to the trial Court to be heard by another Judge.
It is against the judgment of the
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lower Court that this appeal is brought to this Court. In their amended notice of appeal, filed on the 2nd of November 2011, the Appellants raised fourteen grounds of Appeal.
Parties filed and exchanged briefs of argument. At page 7 of the Appellant’s brief of argument settled by S.C. Peters Esq., of Counsel to the Appellants, the following issues are submitted for determination of this appeal: –
“(i) Whether the Court of Appeal was correct in Law to have dismissed the Appellants preliminary objection against the Respondent’s appeal at the Court below.
(ii) Whether their Lordships, the Learned Justices of the Court of Appeal were correct in the circumstances of the appeal JUSTICES to have set aside the decision of the learned trial Judge and ordered for a retrial of the substantive suit before another Judge on the ground that the learned trial Judge decided the substantive suit of the appellants as endorsed on their writ of summons before the trial Court when it is obvious that the Respondent took Laws into its hand in order to foist upon the trial Court a fait accompli by declaring the appellants redundant during the pendency of the
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Appellants suit and motion on notice seeking for injunctive orders to restrain the respondent from declaring the appellants redundant pending the determination of the substantive suits.
(iii) Whether the Court of Appeal was correct in the circumstances of the appeal before it to have held that the learned trial Judge went beyond the reliefs sought on the motion paper thereby becoming a Father Christmas.
In his argument on issue one, Learned Counsel for the Appellant submitted that the respondents appeal at the lower Court was incompetent, as such the lower Court lacked the jurisdiction to hear and determine same. According to the Learned Counsel, the 1st ground of appeal before the lower Court was vague and against a decision that was not made by the trial Court. It is Learned Counsel’s further submission that the sole issue formulated at the lower Court was predicated on the first ground of appeal. Learned Counsel made reference to the views of this Court in a number of cases that an appeal must always be against the ratio decidendi of the decision against which the appeal lies and contended that an appellant’s ground of appeal must therefore
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be a matter of legal obligation specifying either in the main ground on particulars of errors thereof, the judicial reasoning of the Court below that the appellant perceived to be erroneous to the extent that the final orders of the lower Court is rendered invalid. In aid Learned Counsel cited Saraki v Kotoye (1992)9 NWLR (Pt. 264)156 at 183-184 paras H-C, Dakolo v Rewane -Dakolo (2011)16 NWLR (Pt.1272) 22 at 53 Paras C-D, Aderounmu v Olowu (2000)4 NWLR (Pt.652) 242 at 265-266 Paras F-C.
In his reply, Learned Counsel for the respondent submitted that the 1st ground of appeal to the lower Court disclosed a reasonable complaint against the ruling of the Learned trial Judge. According to the learned Counsel, the ground is brief, precise, simple, clear and easy to understand, as such it is not vague. Learned Counsel cited several authorities in aid of his submissions. In course of this judgment, I will make reference to some of these authorities.
For a start, I wish to set out the alleged offending ground one as endorsed on the notice of appeal to the Court of appeal as follows: –
“The Learned trial Judge erred in Law when he delved into and determined
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issues or matters in the substantive suit when considering an interlocutory matter before him and thereby prejudged the merit of the substantive suit.
Particulars:
- The principal relief claimed by the Respondents in their writ of summons was for an injunction restraining the Appellant from declaring the Respondents redundant without following the due legal process for doing so.
(ii) The interlocutory injunction prayed for by the respondents was for their reinstatement as employees of the appellant, pending the determination of the substantive suit.
(iii) The first three of the 5 questions for determination posed by the Learned trial Judge in his Ruling upon which he made far reaching findings and conclusions pre-empted and determined prejudicially the very issues or questions to be eventually determined by him in the substantive suit.
(iv) The trial judge went to the extent of also making finding and conclusion that there was no valid declaration of redundancy because no list of those affected was prepared and published and thereby substantially prejudged the issued (Sic, issue) to be determined by him in the substantive suit.”<br< p=””
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Learned Counsel for the Appellant’s argument that the lower Court was wrong in dismissing the Appellant’s preliminary objection against the Respondent’s appeal is predicated on two grounds, to wit:
- The first ground of appeal from which the sole issue for determination of the appeal before the lower Court was formulated did not arise from the decision of the trial Court and clearly did not challenge the ratio decidendi of that decision.
- The first ground of appeal is vague and intensely academic and outside the scope of what the learned trial Judge decided.
The first arm of the argument of the Learned Counsel for the appellant is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of Law in respect of which there can hardly be a departure. See Egbe v Alhaji (1990)1 NWLR (Pt.128) 546, Saraki v Kotoye (1992)9 NWLR (Pt.264)156. For every general rule there is an exception, in order to accommodate certain unforeseen circumstances. Where a ground of appeal questions the jurisdiction of a Court, it does
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not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi. In Kalejaiye v LPDC & 1 Or (unreported Appeal No.SC.429/2015) delivered on 15th March, 2019 the issue of change in the quorum of the LPDC was not the ratio of the decision of the LPDC, yet it was the only ground upon which the appeal was determined by this Court.
The ground of appeal against which the Appellants hinge their argument complained that the lower Court had no jurisdiction to decide substantive matter at interlocutory stage. This Court in a number of decisions has held that Courts are not allowed to delve into or decide the main complaint at an interlocutory stage. See FSB International Bank Nig. Ltd v Imano Nig. Ltd(2000)11 NWLR (Pt.679) 620 at 639, A.G. Kwara State & Anor. v Lawal & Ors (2017) LPELR-4234 (SC); Egbe v Onogun (1972) 1 All NLR (Pt.1)95, Ojukwu v Governor of Lagos State (1986)3 NWLR (Pt.26)35, Olaniyi v Aroyehun (1991)5 NWLR (Pt.194)652, Madubuike v Madubuike (2001)9 NWLR
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(Pt.719)698 at 707.
Before the trial Court were substantive suit initiated by writ of summons and a motion on notice which were filed on the 1st of July 1999. Both processes prayed for injunctive orders restraining the Respondent from declaring the Appellants redundant and ejecting them from their official quarters. The motion of 4th of October, 2000 sought for reinstating the Appellants and deeming them as employees of the Respondent. Clearly the writ of summons, and the motion of 1st July 1999 as well as the motion of 4th October 2000 sought to perpetuate the Appellants on their jobs. The language used in the three process is a matter of semantics, as there does not seen to be so much difference in the prayers. It is therefore not out of place if any of the parties complained that the trial Court decided the claims endorse on the writ when it ruled on the application of 4th October, 2000. As I have stated elsewhere in this judgment, the first ground of appeal at the lower Court being a jurisdictional question, or issue, same can be raised at any stage of proceedings including the appellate Court for the first time. See Nwankwo & Ors v. Yar’adua &
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Ors (2010)12 NWLR (Pt.1209) 518. In FHA v Kalejaiye (2010)19 NWLR (Pt.1226)149 at 164 para b, this Court, per Rhodes Vivour JCS said:-
“The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time.”
Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised, the Court is bound to examine whether it is spurious or genuine ground. In the instant case, the lower Court was right when it overruled the preliminary objection in order to consider the complaint embedded in the first ground of appeal.
The second arm of the appellants’ complaint is that the first ground of appeal is vague and intensely academic. The Respondent’s notice of appeal at pages 119 – 123 of the record is undated and discloses no date of filing. However, by the Court of Appeal Rules at the relevant period no ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted,
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save the general ground that the judgment is against the weight of evidence. Any ground of appeal or any part thereof which is not permitted under the rule maybe struck out by the Court of its own motion or on application by the respondent. Vague is defined by the Black’s Law Dictionary 9th Edition to mean ‘imprecise, not sharply outlined, indistinct, uncertain.’ A vague ground of appeal was defined by this Court in the case of Lagga v Sarhuna (2008) 16 NWLR (Pt.1114)427 at 471-472 paras H-B as follows: –
“A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive inexact and complains about matters peripheral to the live issues.”
Muhammad JSC (as he then was who read the lead judgment, at page 456 paras D – G said:-
“A vague ground of appeal is that which is imprecise, not cogent, not concise, it is inaccurate, verbose, large, rigmarole, vague, which is capable of making the Appeal Court or the respondent to the appeal not to understand what it exactly connotes, although Order 8 Rule 2 (3) and (4) of the Supreme Court Rules require a ground of appeal to be precise and accurate, that does not mean that any
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slight non-compliance thereof shall render the ground incompetent.
The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. All the rules relating to formulation or drafting of ground of appeal are primarily designed to ensure fairness to the other side. No Court should rely on mere technicalities to shut out an intending appellant.”
Arising from the authority of Lagga v Sarhuna (Supra), it is plain that substantial Justice should not be sacrificed on the altar of technicalities or irregularities where such irregularities have not occasioned a miscarriage of justice. The essence of a ground of appeal is to give notice to the adverse party of what he is expected to encounter at the appellate Court.
Once it is clear and fully understood by the opponent, it cannot be declared incompetent. The Appellants have not complained that they did not understand what the ground meant. I have read through the first ground of appeal at the lower Court and I find that it is clear unambiguous and it did not mislead the Appellants
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herein. The lower Court was therefore correct in Law to have dismissed the Appellant’s preliminary objection against the Respondent’s appeal at the lower Court. The first issue is resolved against the appellant.
The second issue for determination of this appeal looks untidy and prolix or verbose. The lower Court found at pages 474 to 475 of the record that the trial Court in considering the application before it, construed Exhibit A, a document which was challenged in the writ of summons which commenced the substantive suit. Also quoted in the same pages are areas where the lower Court found that the trial Court determined substantive issues at interlocutory stage. The Law is settled that in dealing with any interlocutory application the Court should not delve into the substantive issues. A Court must avoid the determination of a substantive issue at interlocutory stage. It is never proper for a court to make pronouncement in the course of interlocutory proceedings on issues capable of prejudging the substantive issues before the Court. See Consortium MC v NEPA (1992) NWLR (Pt.246) 132, Barigha v PDP & 2 Ors (2012) 12 SC (Pt.v) 1, Mortune v Gimba
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(1983) 4 NCLR 237 at 242. I do agree with the lower Court that the trial Court in deciding the interlocutory application before it went on to comment extensively on the substantive matter that were sought for in the writ of summons. In an interlocutory matter, Courts are enjoined to talk less in the determination of the prayers submitted for resolution. Where the prayers overlap with the substantive claims, it is safer to refuse such application and order for the hearing of the substantive matter. I am of the firm view that the Justices of the lower Court were correct when they set aside the decision of the trial Court and ordered for a trial of the substantive suit before another Judge. The second issue is resolved against the appellant.
The 3rd issue for determination has raised nothing substantially new from the second issue. It has been well covered in the determination of the second issue. The learned trial Judge in his ruling clearly went beyond the reliefs sought on the motion paper by advocating that the Respondent took the Laws into its hands in order to foist upon the trial Court a fait accompli by declaring the appellants redundant during the
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pendency of the Appellant’s suit. The issue of declaration of the Appellants redundant was the subject matter of the writ and the motion filed on the 1st of July, 1999. The Court of Appeal was right when it held that the trial Judge went beyond the reliefs sought on the motion paper. Although there was a pending suit before the trial Court in which the Appellants sought for injunctive orders to restrain the Respondent from declaring the Appellants redundant, no injunctive order had been made by the time the Appellants were declared redundant. The Respondent was aware of the pending suit, by reason of the service of the Court processes on it. Since it failed to stay action pending the determination of the suit, the best option opened to the appellant was to initiate contempt proceedings against the Respondent.
The Respondent is a public liability company. The Appellants were its employees. A Court will not compel an unwilling employer to retain employees it does not need. The only thing a Court can do is to order for payment of all entitlement of the employees, based on the provisions of the contract of employment. I think the order made by the trial Court
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for deeming the Appellant as the employees of the Respondent was beyond its powers, and the lower Court was right when it set those orders aside. This issue is also resolved in favour of the Respondent and against the Appellants.
Having resolved all the three issues submitted for the determination of this appeal against the appellants, this appeal shall be and it is hereby dismissed. Parties shall bear their respective costs.
SC.197/2011
