Legalpedia Citation: (2024-12) Legalpedia 24560 (CA)

In the Court of Appeal

Holden At Lagos

Tue Dec 13, 2022

Suit Number: CA/LAG/CV/996/2020

CORAM

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

PARTIES

BRUNEL LOGISTICS AND GLOBAL SOLUTIONS LIMITED

APPELLANTS

KINGSLEY EGBUNA

RESPONDENTS

AREA(S) OF LAW

Not Available

SUMMARY OF FACTS

This appeal is against the Judgment of the National Industrial Court of Nigeria delivered by Honourable Justice I. G. Nweneka on 28/04/2020 in Suit No. NICN/LA/672/2018. Dissatisfied with the said judgment, the Appellant sought and obtained the leave of this Court before filing the Notice of Appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the decision of the learned trial Judge in assuming jurisdiction to entertain this suit in disregard of the parties’ choice of law and jurisdiction is justified in law?
2. Whether the Appellant’s dismissal of the Respondent for gross misconduct was unlawful, unfair and contrary to the principles of natural justice?
3. Whether the learned trial Judge was right to award the Respondent all his accrued salaries and allowances as of 30th November, 2018 including two months’ salary in lieu of notice, accommodation, furniture and leave allowance for the whole of 2018 beyond the period of employment which was not earned?
4. Whether the dismissal of the Appellant’s counterclaim breached Section 36 of the Constitution and occasioned a miscarriage of justice on the Appellant
5. Whether the learned trial Judge’s order of indemnity from liability from a foreign judgment and order in favour of the Respondent is valid and supported by law?

RATIONES DECIDENDI

TERMS OF AGREEMENT – PARTIES ARE BOUND BY THEIR TERMS OF AGREEMENT

It is elementary law that parties are bound by the terms of their agreement to which they willingly and without coercion entered into. This is based on the settled principle expressed as Pacta sunt servanda. Where the existence of an agreement is established, such agreement necessarily binds the parties thereto. Neither the parties nor the Court is legally allowed to read into the agreement terms on which the parties did not agree. By law, every Court is bound to give effect to the clear provisions of a contract. See A.G. Ferrero & Company Ltd. vs. Henkel Chemicals Nigeria Ltd (2011) LPELR-12 (SC) Pg. 17-18, Paras. C – A; Dr. Useni Uwah & Anor vs. Dr. Edmundson T. Akpabio & Anor (2014) LPELR – 22311 (SC) Pg. 18, paras. C – F. In this case, both parties are on the same page that their relationship is governed by the provisions of the Written Statement of Terms and Conditions of Employment dated 1st December, 2014 (the “Original Contract”) and the Variation of the Written Statement of Terms and Conditions of Employment executed on 28th September, 2018 (the “Variation Contract”). Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

INTERPRETATION OF TERMS OF CONTRACT – TERMS OF CONTRACT ACTS AS A GUIDE WHERE THERE IS A QUESTION WITH RESPECT TO AN ALLEGED BREACH

Therefore, if, as we have in this case, any question should arise with respect to an alleged breach, the terms in any documents which constitute the contract are, invariably the guide to its interpretation. On this premises, the material question is: what did the parties in the instant case agree with respect to the choice of law and jurisdiction. Clause 24 of the Variation Contract reads:

“All and any disputes relating to these terms and this document shall be exclusively subject to English law and jurisdiction”

Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

AUTONOMY OF PARTIES TO CHOOSE WHAT LAW WILL GOVERN THEIR RELATIONSHIP – WHETHER OR NOT THIS AUTONOMY IS ABSOLUTE

Indeed, Nigerian law generally recognizes parties’ autonomy to choose the law that will govern their relationship. However, this autonomy is not absolute; there are permissible instances in which the Court will intervene. Nevertheless, the rationale for parties’ autonomy as to their choice of law was aptly captured by the author of David Maclean on Morris: The Conflict of Laws, 5th Edition, at page 321 to 322 to the effect that “the power of the parties to select the law which is to govern their contract, the principle of “party autonomy” can be seen as the conflict of laws aspect of freedom of contract or of the market economy.” The Learned author continued:

“In so far as parties are free to enter into whatever contractual bargains they think fit, that freedom is not complete unless they can choose the law by reference to which their agreement will be construed. In practical terms, by an express selection of the proper law, the parties relieved the Court of the difficult task of approaching it when the facts were nicely balanced between two systems of law….”

Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

PARTIES’ AUTONOMY – COURTS ARE TO HONOUR THE INTENTION OF PARTIES AS TO THEIR CHOICE OF LAW

Indeed, Nigerian law generally recognizes parties’ autonomy to choose the law that will govern their relationship. However, this autonomy is not absolute; there are permissible instances in which the Court will intervene. Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

PARTIES’ AUTONOMY – RATIONALE FOR PARTIES AUTONOMY

Nevertheless, the rationale for parties’ autonomy as to their choice of law was aptly captured by the author of David Maclean on Morris: The Conflict of Laws, 5th Edition, at page 321 to 322 to the effect that “the power of the parties to select the law which is to govern their contract, the principle of “party autonomy” can be seen as the conflict of laws aspect of freedom of contract or of the market economy.”

The Learned author continued:

“In so far as parties are free to enter into whatever contractual bargains they think fit, that freedom is not complete unless they can choose the law by reference to which their agreement will be construed. In practical terms, by an express selection of the proper law, the parties relieved the Court of the difficult task of approaching it when the facts were nicely balanced between two systems of law….”

 

It therefore remains to be said that every Court in this country is under obligation to honour the intention of the parties as per their choice of law provided same is not contrary to public policy. This is the position that has been judicially approved by the Apex Court in SONNAR NIGERIA LTD VS. PARTENREEDERI M.S. NORDWIND (OWNERS OF THE SHIP MV. NORDWIND) (SUPRA) in which Eso, JSC (of blessed memory) cited with approval the English Court decision in THE ELEFTHERA (1969) 2 ALL ER 641. In that case, Oputa, JSC, held

“I take it that the Liberian Company, the Chaterer, that issued the Bill of Lading was at that time in possession and control of the ship M.S. Nordwind. It is trite law that in shipping matters, the Bill of Lading evidences a contract between the shipowner and the shipper or consignee of cargo. On the authority of Baumwoll Manufactur Von Carl Scheiller v. Furness (H.L.) (1893) A.C.8, and Allied Trading Co. Ltd. v. G.B.N. Lines (1985) 2 N. WL.R. 74 the Liberian Company was for the purposes of this case the “ship-owner”. What then is the relevance of German law to a Liberian “ship-owner” and a Nigerian shipper? I see none. It is also conceded that when the intention of parties to a contract, as to the law governing the contract, is expressed in words, this expressed intention in general and as a general rule determines the proper law of the contract. But to be effective the choice of law must be real, genuine, bona fide, legal and reasonable. It should not be capricious and absurd. Choosing German law to govern a contract between a Nigerian shipper and a liberian “shipowner” is to my mind capricious and unreasonable.”

Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

THE PRINCIPLE OF PARTIES’ AUTONOMY – FACTORS DETERMINING WHETHER THE COURT WILL ASSUME JURISDICTION AGAINST PARTIES’ AUTONOMY

In the leading judgment, Eso, JSC, after considering the peculiar facts of the case before him, and the decision of Brandon J., in THE ELEFTHERIA (SUPRA) held that it will be a total loss of action by the plaintiffs, if effect is given to the principle of Pacta Sunt Servanda and that justice could not be served in the case by holding the Appellants therein to having the action taken only in German Court. It is thus obvious that provisions relating to choice of law and Court in an agreement is not absolute; where permissible, it may not be enforced by a Nigerian Court.

In this wise, in determining whether to exercise its discretion to stay proceedings in the matter before it or enforce parties’ choice of law and Court agreement, Nigerian Courts have been guided by the Brandon J. Test judicially approved by the Supreme Court in Sonnar’s case, as follows:

1. In what country is the evidence on the issues of fact situated or more readily available, and the effect of that on the relative convenience and expense of trial as between the Nigerian Court and the foreign Court;

1. Whether the law of the foreign Court applies and if so, whether it differs from Nigerian law in any material respects;

1. With what country either party is connected, and how closely;

1. Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages;

1. Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would-

1. be deprived of security for that claim;

1. be unable to enforce any judgment obtained;

iii. be faced with a time-bar not applicable in Nigeria;

1. for political, racial, religious or other reasons be unlikely to get fair trial.

Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

PRINCIPLE OF PARTIES’ AUTONOMY – WHO BEARS THE BURDEN OF SATISFYING THE COURT TO ASSUME JURISDICTION

It must be said that a plaintiff has the burden of satisfying the Court it should assume jurisdiction and refuse to enforce the choice of law and jurisdiction agreed by the parties. See JFS INVESTMENT LTD VS. BRAWAL LINE LTD (2010) 18 NWLR (PT 1225) 495. Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

SUBSTANTIVE AND PROCEDURAL JURISDUCTION – WHETHER OR NOT THEY CAN BE WAIVED BY A PARTY

I must say that the submission made by the Appellant’s counsel that the Appellant is at liberty to raise the issue of jurisdiction at any time; and cannot be deemed to have waived its right, shows a clear misapprehension of the distinction between issues bordering on the substantive jurisdiction and procedural jurisdiction of a Court. As my learned brother, Abiru, JCA, held in the case of ZENITH BANK VS. ABAZU & ORS (2021) LPELR – 55677 (CA),

“there is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at any time. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it, are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. It is matters of substantive jurisdiction that can be raised at any time and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction. Matters of procedural jurisdiction can be waived by a party.”

Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

JURISDICTION – A LITIGANT CANNOT CONFER JURISDICTION ON A COURT WHERE A STATUTE OR CONSTITUTION DID NOT.

In ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (PART 1594) 181, the Supreme Court held:

“A litigant may submit to a procedural jurisdiction of the Court, but no litigant can confer jurisdiction on the Court where a Statute or the Constitution says that the Court does not have jurisdiction. Thus, while substantive jurisdiction of the Court cannot be waived, a party can waive a matter relating to procedural jurisdiction of the Court, and this is usually determined from reliefs sought in the process…”

Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

PROCEDURAL JURISDICTION – WHETHER OR NOT ENTERING AN UNCONDITIONAL APPEARANCE MEANS WAIVER OF RIGHT TO CHALLENGE JURISDICTION

In this case, there is no question that the Appellant’s objection was basically a challenge to the procedural jurisdiction of the Court rather than a challenge to its substantive constitutional or statutory jurisdiction to entertain the said suit. The Appellant has by entering unconditional appearance and its participation in the trial of the Respondent’s claim and its own claim, waived its right to challenge and insist that the choice of law and jurisdiction clause in the Variation Contract be enforced. In all, the trial Court rightly assumed jurisdiction in this case. The decision of the trial Court cannot therefore be faulted. I endorse it and order that parties in this appeal queue behind the decision as it is sound and represents the justice of the case. This issue is resolved against the Appellant. Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

SUMMARY DISMISSAL – WHETHER OR NOT AN EMPLOYEE SHOULD BE SUMMARILY DISMISSED

It is settled that an employee cannot be dismissed for a specific misconduct, whether gross misconduct or otherwise, in the absence of adequate opportunity afforded to him to justify or explain same. See YUSUF VS. UNION BANK (1996) 6 NWLR (PART 457) 632, where the Supreme Court, per Wali, JSC held that before an employer can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. Indeed, from the perspective of the decisions on the powers of an employer to dismiss summarily his employee for gross misconduct, the propelling keystone is the preservation of the constitutional right of fair hearing. See ARINZE VS. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (PART 639) 78. Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

FINDINGS OF COURT – WHETHER OR NOT AN APPELLATE COURT CAN DISTURB THE FINDINGS OF A TRIAL COURT THAT IS BASED ON A PROPERLY EVALUATED EVIDENCE

The law is trite that an appellate Court cannot disturb the findings of a trial Court where the Court has properly evaluated the evidence led and considered the relevant principles of law. Findings of fact by the trial Judge involve both perception and evaluation. It is clear in this case that the trial Court evaluated the evidence led, both oral and documentary, made its findings before applying the provisions of the relevant law to the findings and then concluded that the summary dismissal of the Respondent is wrongful, unfair and contrary to the principles of natural justice. I have no justifiable reason to interfere with the findings and conclusion reached. In the circumstance, this issue is resolved against the Appellant. Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

ADMISSIBILITY – ADMISSIBILITY OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION IN LINE WITH PLEADING OF ADVERSE CROSS-EXAMINING PARTY

This evidence, though elicited under cross-examination, was in line with the pleadings of the Respondent and in law, evidence elicited under cross-examination in line with the pleading of the adverse cross-examining party is not only admissible in evidence but also good evidence on which a Court can rely and act to make relevant findings on material facts in a case. In addition, this piece of evidence constitutes admission on the part of the Appellant and no further proof will be required. See ADEOSUN vs. GOV OF EKITI STATE & ORS (2012) LPELR – 7843 (SC) Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

COUNTER CLAIM – MEANING OF COUNTER CLAIM

A counter claim is a claim by the defendant against the plaintiff in the said proceedings. A counterclaim is a claim which must be proved to the satisfaction of the Court as required by law. Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

ONUS OF PROOF – WHO BEARS THE ONUS OF PROOF IN A COUNTER CLAIM

The onus of proof which lies on the Plaintiff to prove his claim is also on the Defendant to prove the averments in his counterclaim against the Plaintiff or he will fail in his claim. For all intents and purposes, it is an independent action in which the defendant counterclaimant is in the position of the plaintiff and therefore has the burden of proving the counterclaim for the counterclaimant to be entitled to judgment. In substance, it is a cross-action in the same proceedings. See MAOBISON INTER-LINK ASSOCIATED LTD V. U.T.C. NIGERIA PLC (2013) LPELR – 20335 (SC). Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

SPECIAL DAMAGES – SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND PROVED

It is noteworthy that the above reliefs sought by the Appellant are in the realm of special damages, which is required by law to be specifically pleaded and strictly proved. To succeed, the Appellant must satisfy the Court as to how the sum claimed was quantified; and adduce credible evidence in support of same. See ONYIORAH VS. ONYIORAH & ANOR (2019) LPELR – 49096 (SC). Per-MUHAMMAD IBRAHIM SIRAJO, JCA.

CASES CITED

Not Available

STATUTES REFERRED TO

National Industrial Court Act, 2006

Evidence Act 2011

Constitution of the Federal Republic of Nigeria 1999 (as amended)

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