CLEMENT ABAYOMI ONITIJU V. LEKKI CONCESSION COMPANY LTD

_{APPEAL NO: CA/L/686/2013}

Court Of Appeal – Lagos Division

_{Areas Of Law
ACTION, APPEAL, CONSTITUTIONAL LAW, COUNTER CLAIM, COURT, FAIR HEARING, JURISDICTION, LABOUR LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE}

_{Summary Of Facts
The Claimant now Appellant who was employed by the Defendant now Respondent as a Manager, Information Technology was dismissed by a letter on grounds of gross misconduct in the forgery of procurement documents and siphoning of the Company’s fund. Prior to his dismissal, he was arrested and detained at the police station for fraud and forgery and was subsequently admitted to bail but was never queried or confronted with the allegations. The Appellant in consequence, instituted an action in the National Industrial court against the Respondent wherein he claimed a declaration that the purported dismissal by a letter is wrongful, unlawful, null and void, a declaration that the Claimant is still validly and contractually within the employment of the Defendant and therefore entitled to all salaries, earnings, bonuses and perquisites of office from the date of dismissal until a proper and lawful determination by the Defendant, an order directing the Defendant to pay the Claimant all his salaries, earnings, bonuses and perquisites of office amounting to Seven Hundred and Forty Two Thousand Six Hundred and Twenty Five Naira monthly until final determination of the suit and until he is properly and lawfully disengaged from the services of the Defendant. In a reaction by the Defendant/Respondent, a statement of defence and counter claim was filed wherein 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 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 amongst other reliefs were sought. After consideration of the evidence and arguments of the parties the court dismissed the claim and counter claim of both parties. The Appellant not satisfied with the outcome of the said judgment filed an appeal while the Respondent also filed a Cross-appeal challenging the dismissal of the counterclaim.}

_{Held
Appeal Allowed, Cross Appeal Dismissed}

_{Issues For Determination}

• _{Whether the Appellant’s fundamental right to fair hearing was infringed in the judgment of the lower court?}

_{Cross Appeal}

• _{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 was not infringed when  the lower court refused to allow their counter claim based on the evidence which the lower court had admitted?}

_{Rationes
PRELIMINARY OBJECTION – A PRELIMINARY OBJECTION MUST BE RESOLVED FIRST BEFORE THE MAIN APPEAL
“Given the state of the law that where a Preliminary Objection is raised 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”. PER S. C.OSEJI, J.C.A}

JURISDICTION OF COURT –CONSEQUENCES OF A DECISION OF COURT GIVEN IN ABSENCE OF JURISDICTION
_{“The issues of jurisdiction are 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 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 matter.” PER S. C.OSEJI, J.C.A}

APPEALS FROM THE NATIONAL INDUSTRIAL COURT – SECTION 243 (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 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. PER S. C.OSEJI, J.C.A}

GROUND OF APPEAL – EFFECT OF INCONSISTENCY IN THE PARTICULARS OF A GROUND OF APPEAL AND THE MAIN COMPLAINT IN THE 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.” PER S. C.OSEJI, J.C.A}

GROUND OF APPEAL –ESSENCE OF PARTICULARS OF ERROR IN A GROUND OF APPEAL
_{“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 reasoning, findings or observations in the judgment or ruling in question relating to the 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.” PER S. C.OSEJI, J.C.A}

GROUND OF APPEAL- A COMPETENT GROUND OF APPEAL CAN SUSTAIN AN APPEAL
_{“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.” PER S. C.OSEJI, J.C.A}

ISSUES BEFORE THE COURT –EFFECT OF A FAILURE TO CONSIDER ALL ISSUES PLACED BEFORE THE COURT
_{“It is a 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 pretext, 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..” PER S. C.OSEJI, J.C.A}

SUMMARY DISMISSAL – NECESSITY OF GIVING AN EMPLOYEE THE OPPORTUNITY TO BE HEARD BEFORE EXERCISING THE RIGHT OF DISMISSAL
_{“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 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.” PER S. C.OSEJI, J.C.A}

COUNTER-CLAIM – CAN A COUNTER CLAIM SUCCEED WHERE THE MAIN ACTION FAILS?
_{“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.” PER. S. C.OSEJI, J.C.A}

SPECULATIVE SUIT- WHEN IS A SUIT SPECULATIVE
_{“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 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; Ibrahim Vs The State (1986) 1 NSCC 230; Igabele Vs The S Tate (2006) 2 SCNJ 124.” PER. S. C.OSEJI, J.C.A}

Statute Referred To:
_{Constitution of the Federal Republic of Nigeria 1999 as amended}