CORAM

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CHIDI NWAOMA UWA, JUSTICE COURT OF APPEAL

BITRUS G. SANGA, JUSTICE COURT OF APPEAL

JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL

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PARTIES

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BARRISTER SUSANA S. ELAM

APPELLANTS 

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1.  ADAMAWA STATE JUDICIAL SERVICE COMMISSION

2.  THE GOVERNOR ADAMAWA STATE

3.  THE HON. ATTORNEY GENERAL ANDCOMMISSIONER FOR JUSTICE ADAMAWA  STATE

4.  JUSTICE ISHAYA BANU (CHIEF JUDGE  ADAMAWA STATE)

5.  BARRISTER MOHAMMED BABAYOLA AHMED

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, COURT, PRACTICE AND PROCEDURE, STATUTE, CONSTITUTIONAL LAW, JURISDICTION, WORDS AND PHRASES

 

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SUMMARY OF FACTS

This is an appeal against the decision of the National Industrial Court of Nigeria, Yola division Coram: K.D. Damulak, J., wherein the Appellant as Claimant at the trial Court, challenged her compulsory retirement by the 1st Respondent as Secretary, Adamawa State Judicial Service Commission, which decision of her retirement was conveyed vide a letter with reference No. ADS/JSC/S. 28/VOL.2 dated 7th November, 2018. The Appellant’s originating summons challenged her compulsory retirement in which eight (8) questions were raised for determination.  The trial court in its judgment did not resolve the eight questions raised on the basis that the Appellant did not exhibit the Adamawa State Judicial Service Commission Regulation, 1980 and the Appellant’s letter of appointment as Secretary Adamawa State Judicial Service Commission to the originating summons. The trial Court then dismissed the suit and the fifteen (15) reliefs claimed by the Appellant. The Appellant was dissatisfied with the decision of the trial Court thus this appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. “Whether the lower court did not err in law thereby occasioning a miscarriage of justice when it failed to resolve or determine the questions raised in the originating summons upon the ground that the Appellant did not frontload the Adamawa State Judicial Service Commission Regulation 1980

2. Whether the lower court did not err in law thereby occasioning a miscarriage of justice when it failed to resolve or determine the questions raised in the originating summons upon the ground that the Appellant did not frontload her appointment letter.

3. Whether on a resolution of the 8 questions raised for determination in the originating summons, the Appellant did not establish by her affidavit evidence the various violations or infracture complained of by her.

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION TO AN APPEAL – NEED TO HEAR AND DETERMINE FIRST

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“Where a preliminary objection has been raised challenging the competence of an appeal as in this case, same has to be determined first before any other step could be taken if need be.  Where the preliminary objection succeeds, the appeal ends there.  The essence of the preliminary objection is to terminate the appeal.  For this reason, I shall determine the preliminary objection before taking any further step in the determination of the appeal.  See, EKEMEZIE VS. IFEANACHO & ORS (2019) LPELR – 46518 (SC) PP. 12 – 13, PARAS. C – A, TOYIN VS. MUSA & ORS (2019) LPELR – 49328 (SC) P. 8, PARA. E, FBN VS. T.S.A. INDUSTRIES LTD (2010) LPELR – 1283 (SC) P. 13, PARAS. B – E, KIMSA VS. SIMON (2020) LPELR – 52333 (CA) PP. 6 – 7, PARAS. E – F and OSANYANBI & ORS. VS. LASISI & ORS (2019) LPELR – 47389 (SC) P. 8, PARAS. B – C.” – Per UWA, JCA

 

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APPEAL FROM NATIONAL INDUSTRIAL COURT TO COURT OF APPEAL – WHEN LEAVE OF COURT TO APPEAL IS REQUIRED TO BE OBTAINED

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“The Respondents’ preliminary objection challenged the competence of the Appellant’s grounds of appeal and the appeal as a whole for not having sought and obtained the leave of Court before filing the grounds of appeal which were said to be of mixed law and facts thus, making the appeal incompetent.  It is apt at this point to reproduce Section 243(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Section 243(3) provides thus:

“An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal 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.”

The above provision is to the effect that where an appeal from the National Industrial Court of Nigeria is premised on questions of fundamental rights as contained in Chapter IV of the Constitution in respect of matters in which the National Industrial Court has jurisdiction, appeal to this court would be as of right.  The Appellant in her originating summons before the trial Court raised eight (8) questions for determination by the court.  The questions raised are interwoven as rightly argued by the learned counsel to the Appellant bordering on complaints of the breach of her fundamental rights especially her right to fair hearing as guaranteed by Section 36(1) of the Constitution.  It is noteworthy that the reliefs sought by the Appellant on the determination of the questions sought at the trial court are tied to the breach of the Appellant’s fundamental rights as claimed to have been breached. The provision of Section 243 (2) of the Constitution is clear, it is to the effect that once the nature of the case before the trial court borders on the fundamental rights of the claimant, an Appellant would not need to seek the leave of this court to appeal irrespective of whether the grounds of appeal are of facts or mixed law and facts.” – Per UWA, JCA

“… In the case at the trial court, the court failed to interpret the constitutional provisions relied upon by the Appellant as well as the Adamawa State Judicial Service Commission Regulation, 1980 which is the crux of the appeal. No findings were made by the trial Court.  The appeal cannot therefore be termed as of mixed law and facts and of law, it is squarely on law and did not require the leave of this Court before appeal. See, METAL CONSTRUCTION (WEST AFRICA) LTD vs. MIGLIORE & ORS (1990) LPELR – 1869 (SC) PP. 2830, PARAS. E – A, ADENIYI & ORS vs. OYELEYE & ORS (2013) LPELR – 21387 (CA) PP. 63 – 65, PARAS. F – C; OBECHIE vs. ONOCHIE (1980) 2 NWLR (PT. 23) and BOARD OF CUSTOMS vs. BARAU (1982) 10 S.C. 48.” – Per UWA, JCA

 

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QUESTION OF LAW AND QUESTION OF FACT – DEFINITIONS AND DIFFERENCES BETWEEN QUESTION OF LAW AND QUESTION OF FACT

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No finding of fact was made on the questions raised and no finding of fact was pronounced by the trial court.  The “question of law” and “question of fact” was well defined in ANOGHALU & ORS VS. ORAELOSI & ANOR (1999) LPELR – 496 (SC) PP. 16 – 19, PARAS. F – A.  See, also EHINLAWO VS. OKE & ORS (2008) LPELR – 1054 (SC) PP. 37 – 38, PARAS. G – B and in UGBOAJA VS. AKITOYE SOWEMIMO & ORS (2008) LPELR – 3315 (SC) P. 17, PARAS. C – E his lordship, Onnoghen, JSC (as he then was) defined “question of fact”, distinguishing same from “question of law”.  Questions of law on the other hand include rules of law applicable to some issues.  Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by the argument of counsel to the parties in the matter.  The interpretation of documents is a question of law whereas an appeal on matters of fact allows investigation at the hearing of the appeal, of the evidence and the proper inferences from it. Whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved justify or permit by the rules of law a particular decision or disposal of the case before the court.  In the case at the trial court, the court failed to interpret the constitutional provisions relied upon by the Appellant as well as the Adamawa State Judicial Service Commission Regulation, 1980 which is the crux of the appeal. No findings were made by the trial Court.  The appeal cannot therefore be termed as of mixed law and facts and of law, it is squarely on law and did not require the leave of this Court before appeal. See, METAL CONSTRUCTION (WEST AFRICA) LTD vs. MIGLIORE & ORS (1990) LPELR – 1869 (SC) PP. 2830, PARAS. E – A, ADENIYI & ORS vs. OYELEYE & ORS (2013) LPELR – 21387 (CA) PP. 63 – 65, PARAS. F – C; OBECHIE vs. ONOCHIE (1980) 2 NWLR (PT. 23) and BOARD OF CUSTOMS vs. BARAU (1982) 10 S.C. 48.” – Per UWA, JCA

 

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ON WHETHER AN ENACTMENT NEED NOT BE EXHIBITED

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“At the trial court, the court failed to determine questions raised by the Appellant before the court for determination on the basis that the Appellant failed to exhibit the Adamawa State Judicial Service Commission Regulation, 1980, for this reason dismissed the Appellant’s case while relying on Order 3 Rule 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.  The Regulation was not before the court and the lower court did not state the basis on which it arrived at its decision that the Regulation was an instrument that needed to be pleaded and frontloaded or exhibited in the affidavit in support of the originating summons.  No doubt any document subject of construction may pass as an instrument as rightly argued by the learned counsel to the Appellant but, not all instruments shall be frontloaded or exhibited. On the interpretation of Order 3 Rule 17, I agree with the submissions of the learned counsel to the Appellant that where an instrument is an enactment or by law, there would be no need to exhibit same. …”

“… I am of the considered view that if the trial court had requested that the Regulation be frontloaded or a hard copy brought if in doubt as to the reproduced sections of the Regulation, the Appellant could have filed a further affidavit or given a hard copy to the court.  The court on its own, could also have examined the regulation from any of the parties or on its own research, a copy would have been easily made available to the trial court.  The case of the Appellant ought not to have been dismissed without hearing same on the merits.” – Per UWA, JCA

 

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WHERE COURT RAISES ISSUES SUO MOTU – DUTY TO HEAR PARTIES THEREON

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“Also, the parties at the trial court did not raise the issue as to whether the Regulation in question is an enactment that needed to be frontloaded or not.  The trial court ought to have raised it and allowed the parties to express their views, backed up by law before a decision on it in the judgment of the trial court.  See, SADIKU VS. A – G LAGOS STATE (1994) 7 NWLR (PT. 355) 235, UDOGU VS. EGWUATU (1994) 3 NWLR (PT. 330) 120, NNAMANI VS. NNAMANI (1996) 3 NWLR (PT. 438) 591, ADEOSUN VS. BABALOLA (1972) NSCC VOL. 7401; (1972) 5 S.C. 292, EIGHAJALE VS. OKE (1996) 5 NWLR (PT. 447) 120 and BAJOGA VS. GOVT. OF FEDERAL REPUBLIC OF NIGERIA & ORS (2007) LPELR – 8924 (CA) PP. 25 – 31, PARAS. E – B.  If the trial court had called the parties to address it on whether the Regulation is an instrument that ought to have been frontloaded, that way, it would be clearer whether the appellant erred or not in not frontloading the Regulation, the trial court instead failed to determine the issues raised on the merits and dismissed the Appellant’s case for not frontloading the regulation and her letter of appointment.  The court is not permitted to raise an issue suo motu in its judgment and take a decision on those basis without hearing from the parties.” – Per UWA, JCA

 

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FRONTLOADING OF DOCUMENTS AT THE NATIONAL INDUSTRIAL COURT – MODE OF COMMENCEMENT OF ACTION AT THE NATIONAL INDUSTRIAL COURT WHERE FRONTLOADING IS NECESSARY

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“On the Appellant’s issue two, the trial court’s failure to determine the questions raised by the Appellant in her originating summons for the reason that her appointment letter was not frontloaded or annexed to the affidavit in support of the original summons; was argued to be erroneous.  There was nothing in the Appellant’s affidavit in support of the originating summons to show that the Appellant was issued an appointment letter as Secretary Judicial Service Commission which she was expected to have frontloaded.  I am at one with the submissions of the learned counsel to the Appellant that the letter of appointment would need to be frontloaded where a case is fought on the basis of a statement of claim or pleadings where parties would lead oral and documentary evidence in court and not in an action commenced by originating summons.  Order 3 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides the different ways an action could be commenced at the trial court.  The Appellant would have been required to frontload her letter of appointment if any, if the action was commenced by way of complaint and not by originating summons as in the present case.  Order 3 Rule 13, of the Rules of the trial court 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.”

From the above rule, only an action brought by complaint is mentioned all other actions are excluded which includes an action brought via the originating summons procedure, Order 3 Rule 1.  Therefore, it is clear that the requirement that the appointment letter be frontloaded is limited to an action brought by complaint; no other meaning can be read into Order 3 Rule 13 of the Rules of the trial court, 2007.  The mention of an action by complaint naturally by simple interpretation excludes all other actions as requiring frontloading of documents.  Also, in an action brought by complaint where the appointment letter would be required to be frontloaded applies to where an appointment was given thus, the use of the words “if any”.  In this case, the Appellant has made out that she was not given an appointment letter when she was appointed Secretary Judicial Service Commission of Adamawa State and had nothing to tender even if the matter was instituted via complaint.

The Respondents exhibited Exhibit JSCVIII which was an internal memo sent to the Chief Registrar signed by the 4th Respondent, the said exhibit is not an appointment letter but, a notification of the Appellant’s appointment.  The Respondents did not refute the fact that Exhibit JSCVIII is a notification of the Appellant’s appointment.  On the other hand, the Respondents did not make out that the Appellant was given an appointment letter and did not exhibit any to prove that there was an appointment letter given to the Appellant.  I hold that the Appellant need not have frontloaded a letter of appointment since there was nothing to show that she had one and her action was via originating summons procedure not by complaint.  The trial court ought not to have dismissed the Appellant’s action for the reason that she did not frontload her appointment letter.” – Per UWA, JCA

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. National Industrial Court of Nigeria (Civil Procedure) Rules, 2017

 

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