Legalpedia Citation: (2025-01) Legalpedia 80187 (CA)

In the Court of Appeal

HOLDEN AT JOS

Fri Jan 24, 2025

Suit Number: CA/J/262/2022

CORAM

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Abiodun Azeem Akinyemi Justice of the Court of Appeal

PARTIES

INDUSTRIAL TRAINING FUND GOVERNING COUNCIL

APPELLANTS

WILLIE THOMAS AUGUSTINA

RESPONDENTS

AREA(S) OF LAW

EMPLOYMENT LAW, PRACTICE AND PROCEDURE, JUDICIAL DISCRETION, INTERPRETATION OF STATUTES, CIVIL PROCEDURE, CONTRACT LAW, ADMINISTRATIVE LAW

SUMMARY OF FACTS

The Respondent, a staff of the Appellant (Industrial Training Fund Governing Council), was granted three years overseas study leave without pay from September 1, 2015 to August 2018 at her request. At the end of this period, she failed to return to work. The Appellant wrote to remind her that her study leave period had ended and demanded that she return to work. Instead of returning, the Respondent requested an extension of her study leave, claiming that the University had extended the period of her course beyond the time originally anticipated. The Appellant demanded official documentary proof from the University confirming this extension in order to decide whether to grant her request. When she allegedly did not produce the required proof, the Appellant terminated her employment.

The Respondent claimed that she had supplied the proof as requested. She contended that the Appellant ought to have given her either one month’s notice or one month’s salary in lieu of notice of termination, but the Appellant insisted she was not entitled to it, having absconded from duty. The Respondent then instituted a suit challenging her termination by filing an Amended Originating Summons on October 21, 2019. The National Industrial Court, Jos Division, delivered judgment in favor of the Respondent on February 25, 2021. Dissatisfied with this judgment, the Appellant brought this appeal.

HELD

1. The appeal succeeded in part.
2. The judgment of the National Industrial Court, Jos Division in Suit No: NICN/JOS/17/2019 delivered on February 25, 2021, was set aside.
3. The case was remitted back to the Jos division of the National Industrial Court to be heard by another judge.
4. The Appellant and the Respondent were ordered to file their respective pleadings before the lower Court to enable the re-hearing.
5. Parties were ordered to bear their respective costs.

ISSUES

1. Whether the learned trial judge was right when he applied Order 3 Rule 2(2)(a) of the National Industrial Court Rules, 2017, to hold that he had jurisdiction to entertain this case?
2. Was the learned trial judge right when he held that the Respondent is entitled to one-month notice in lieu, whereas she absconded from duty?
3. Whether the learned trial judge was right when he held that the Respondent’s employment with the Appellant is one with statutory flavour?
4. Whether the Respondent is entitled to the reliefs granted by the learned trial judge?

RATIONES DECIDENDI

ORIGINATING SUMMONS – WHEN APPROPRIATE FOR COMMENCING AN ACTION:

“Generally,
an action for breach of a contract of employment is commenced by Writ of
Summons rather than by Originating Summons. See NITEL V UGBE (2002) 3 NWLR (PT 753)
186. This is because almost invariably the facts are materially in conflict and
there is always the need for oral evidence to establish matters such as the
status of the employee, the nature of the relationship between the employer and
the employee and the facts and circumstances leading to a breakdown of the
relationship, necessitating the parting of ways in the disagreeable manner that
has; led to litigation.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

ACTIONS FOR BREACH OF EMPLOYMENT CONTRACT – PROPER MODE OF COMMENCEMENT:

“In
N.E.P.A. V AROBIEKE (206) 7 NWLR (PT 979) 245 and also JACK V UNIVERSITY OF
AGRICULTURE, MARKURDI (2004) 5 NWLR (PT 865) 208, actions for breach of
contract of employment which were brought by Originating Summons under the
Fundamental Rights (Enforcement) Procedure Rules, were held by this Court to
have been wrongly instituted, the Court holding that they ought to have been
brought by means of Writ of Summons.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

NATIONAL INDUSTRIAL COURT RULES – INTERPRETATION OF ORDER 3 RULE 2:

“Where
the suit involves ONLY an interpretation of any of the fundamental rights
provisions of Chapter IV of the 1999 Constitution, it shall be commenced by
Originating Summons pursuant to Order 3 Rule 2(2)(a) of the National Industrial
Court Rules, 2017. Where the suit involves BOTH the interpretation and
application of any of the provisions of the fundamental rights provisions of
Chapter IV of the 1999 Constitution, it shall be commenced by Complaint,
pursuant toOrder 3 Rule 2 (2)(b) of the National Industrial Court Rules,
2017.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

ORIGINATING SUMMONS – WHEN FACTS ARE MATERIALLY IN CONFLICT

“Indeed,
a perusal of the averments contained in both the Affidavit in Support of the
Originating Summons and the Counter-Affidavit of the parties shows that the
facts are materially in conflict. For example, while at paragraph 3(i) of the
Affidavit in Support of the Amended Originating Summons (page 57 of the Record
of Appeal), the Respondent claimed to have submitted to the Appellant
documentary proof of the extension of her study by the University, via Exhibit
F attached therewith, the Appellant at paragraph 25 of its Counter-Affidavit,
(page 172 of the Record of Appeal) claimed that the Respondent refused to
furnish it with any such proof as requested. This is not an interpretational
issue, but one of disputation about a material fact in the affidavits which can
only be resolved by oral evidence.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

DUTY OF TRIAL JUDGE – EXAMINATION OF AFFIDAVIT EVIDENCE:

“His
lordship did not refer or advert his mind to the contents of both the Affidavit
in Support of the Originating Summons and the Counter-Affidavit. My lords, I
opine, most respectfully, that the learned trial judge erred in adopting this
approach. In my humble view, his lordship ought to have extended his
searchlight to the contents of both the Affidavit in support of the Originating
Summons and the Counter-affidavit. The Affidavit in support of the Originating
Summons and the Counter-affidavit of the parties represented their respective
pleadings in the case and are the major materials to be considered by the Court
in deciding whether the facts are hostile or not.” – Per ABIODUN AZEEM
AKINYEMI, J.C.A.

FAIR HEARING – CONSIDERATION OF EVIDENCE FROM BOTH PARTIES:

“Besides,
by limiting his consideration to the issue formulated for determination by the
Respondent alone, without recourse to the content of Counter-Affidavit of the
Respondent, the learned trial judge unwittingly tilted the scale of justice
unfairly against the Appellant and deprived the Court itself of the opportunity
of having a full and balanced view and appreciation of the entire case before
lt.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

JUDICIAL CONSIDERATION – NEED FOR COMPREHENSIVE REVIEW OF MATERIALS:

“Throughout
his consideration of the issue of whether or not the facts were in conflict,
(pages 218-219 of the Record of Appeal) the learned trial judge did not make
the slightest reference to the contents of both the Affidavit in Support of the
Originating Summons and the Counter-Affidavit. If he had, I believe that he
would have reached a different conclusion.” – Per ABIODUN AZEEM AKINYEMI,
J.C.A.

COMMENCEMENT OF ACTION BY WRONG PROCEDURE – NOT FATAL TO THE CASE:

“The
Appellant prays that the judgment of the lower Court should be set aside and
the Respondent’s claim be dismissed. That cannot be, for the law is settled
that the commencement of an action by a wrong procedure is not fatal. Rather,
the proper order to make in such an instance is to direct that the matter be
heard by pleadings. See ADEYELU II V AJAGUNGBADE III (2007) 14 NWLR (PT 1053)
1, EKANEM V REGISTERED TRUSTEES, CCGS (2023) 6 NWLR (PT. 1879) 43.” – Per
ABIODUN AZEEM AKINYEMI, J.C.A.

APPELLATE COURT’S ROLE – AVOIDING REPETITION OF TRIAL COURT’S ERROR:

“That
being the case, it is needless for me to resolve the other issues in this
appeal, as that would amount to repeating the error of the lower Court. The
conflict in the affidavit evidence must first be resolved by oral evidence
founded upon pleadings, before the rest of the issues in the case, principally,
whether the termination of the Respondent’s employment by the Appellant was
wrongful or not, can be properly decided.” – Per ABIODUN AZEEM AKINYEMI,
J.C.A.

RESOLUTION OF FACTUAL CONFLICTS – PROPER FORUM

“The
duty to resolve the conflict through oral evidence belongs to the lower Court
rather than this Court.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

RESPONDENT’S FAILURE TO FILE BRIEF – EFFECT ON APPEAL:

“The
failure of the Respondent to file a Respondent’s brief does not however mean
that the appellant’s appeal will automatically succeed. He will only succeed or
fail on the strength of his case as this Court has a duty to consider the
appeal based on the applicable legal principles before reaching a conclusion
regarding its success or failure. See ECHERE V EZIRIKE (2006) 12 NWLR (PT 994)
386; NIGERIAN AGIP OIL LTD V AZER (2022) 3 NWLR (PT 1816) 173, BARNAX ENG CO
(NIG) LTD V GOVERNMENT OF RIVERS STATE (2024) 9 NWLR (PT 1943) 301 @ 326.”
– Per ABIODUN AZEEM AKINYEMI, J.C.A.

PROPER APPLICATION OF COURT RULES – JURISDICTION OF NATIONAL INDUSTRIAL COURT

“In
the instant case, neither the interpretation nor the application of any of the
provisions of Chapter IV of the 1999 Constitution of the Federal Republic of
Nigeria is involved, going by the content of the Respondent’s Originating
Summons and the Affidavit in Support. Consequently, I agree with learned
counsel for the Appellant that the suit was wrongly commenced by way of an
Originating Summons.” – Per ABIODUN AZEEM AKINYEMI, J.C.A.

COMPLAINT PROCEDURE – WHEN APPROPRIATE UNDER NATIONAL INDUSTRIAL COURT RULES:

“To
my mind, this suit ought to have been commenced by way of a Complaint pursuant
to Order 3 Rule 2(1) of the National Industrial Court Rules, 2017. I find and
hold therefore, that the learned trial judge was wrong when he held that the
action fell under Section 254C(1)(d) of the 1999 Constitution and was properly
commenced by way of Originating Summons pursuant to Order 3 Rule 2(2)(a) of the
National Industrial Court rules, 2017.” – Per ABIODUN AZEEM AKINYEMI,
J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• National Industrial Court Rules, 2017
• Staff Regulations and Conditions of Service of the Industrial Training Fund

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