CORAM

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ADAMU HOBON FHC

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PARTIES

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RUBBER RESEARCH INSTITUTE OF NIGERIA APPELLANTS

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SENIOR STAFF ASSOCIATION OF UNIVERSITIES TEACHING HOSPITALS, RESEARCH INSTITUTIONS (SSAUTHARIAI) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant in the course of carrying out a routine reconciliation of the nominal roll discovered that there was a ghost worker, which led to the management of the Appellant setting up an administrative panel to investigate the matter. This panel indicted Mr. Eugene Okoduwa, a Principal Executive Officer (Accounts)and this gave rise to the setting up of another panel to try four persons including Mr. Eugene Okoduwa (hereinafter referred to as PEO) for performing unauthorized duties, unauthorized use of the Appellant’s letterhead, forgery of his Head of Department signature and impersonation. The PEO was found liable by the first panel and it was recommended that he be warned and would not be entitled to salary increase for one year, while the second panel recommended that he be dismissed. The recommendation of the second panel was adopted by the Ministerial panel that reviewed the decisions of both panels. In the absence of the Governing Board, which was not in place then, the Minister of Agriculture approved the dismissal of the PEO and the Respondent declared a trade dispute as it was aggrieved by the dismissal of the PEO and accordingly notified the Minister of Labour. The Minister of Labour referred the dispute to the Industrial Arbitration Panel (IAP) for arbitration, which after considering the evidence before it, alongside the Exhibits, made the following awards: (a)That the PEO’s dismissal is wrongful and therefore null and void.(b)He should be reinstated forthwith to his duty.(c)And his arrears of salaries and allowance since his dismissal be paid to him forthwith. Aggrieved by this award, the Appellant filed a suit at the National Industrial Court and in its judgment the Lower Court upheld the awards made by the IAP, hence an appeal to this Court and the two grounds as contained in its Notice of Appeal are that the judgment is against the weight of evidence and against the principle of fair hearing.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the Appellant had a fair hearing in the light of the totality of the evidence led.

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RATIONES DECIDENDI

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DECISION OF COURT – WHETHER A COURT OF LAW BASE ITS DECISION ON SYMPATHY OR SENTIMENTS

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“The point I am laboring to make here is that the decision of the court should not be based on sentiment and similarly, a court should not allow itself to be blackmailed. In Poatson Graphic Arts Trade Ltd & Anor vs. NDIC (2017) LPELR 42576 (CA), this court per Ogakwu, JCA in pages 46-48 held:
“The justice administered in a Court is not abstract justice conceived by the judex. It is justice according to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations: Kalu vs. FRN (2016) LPELR (40108) 1 (SC) and Huebner vs. Aeronautical Industrial Engineering & Project Management Ltd (2017) LPELR (42078) 1 at 58 (SC). There is nothing discriminatory in the application of Section 44 of the NDIC Act, the said provision which provides that the limitation law will not apply to an action to recover the debt owed to a failed or failing bank cannot be extended to the Appellants in respect of the causes of action in their counterclaims. It is justice according to law. The circumstances of the NIGERIA PORTS AUTHORITY case relied upon by the Appellants are totally different from the instant case. In the said case, the rationale for the decision of the Apex Court is that since the Nigeria Ports Authority had cast the first stone by going to Court, they had waived their right to insisting that they be given pre-action notice before they can be sued on the counterclaim since they were already in Court with the defendant, whom they had dragged to Court. It is not a comparable situation in this matter. As already stated, the provisions of Section 44 of the NDIC Act inures in favour of the Respondent and they cannot be said to have waived their right in respect of the Appellants having failed to bring the action in respect of the causes of action in their counterclaims when the main action was filed. Facts are the fountainhead of the Law and the ratio decidendi in a case is not to be pulled out of context and given general application: Adegoke Motors vs. Adesanya (1989) 5 SC 41 at 130 and APC vs. INEC (2014) 11 SC 36 @216. I am therefore unable to agree with the Appellants that their right to freedom from discrimination was breached by the lower Court allowing the Respondents counterclaim to proceed while dismissing their counterclaims. Put simply, the Appellants were indolent in pursuing the causes of action in their counterclaims, which causes of action, I iterate, had accrued as at 1998 when the main action was commenced, but they chose not to pursue the same. Equity aids the vigilant, not the indolent.”
The apex court in the same regard in Umanah vs. NDIC (2016) LPELR-42556 (SC) per Nweze, JSC held:
“Having made the above observations, I must, quickly, add here that my sympathy for the appellant and his counsel is of no moment as the law brooks neither sentiment nor empathy, Suleiman v. C.O.P. Plateau State [2008] 21 WRN 1, 13; Udosen v. State [2007] 4 NWLR (Pt. 1023) 125, 137, Ezeugo vs. Ohanyere [1978] 6-7 SC 171; Oniah vs. Onyia [1989] 1 NWLR (Pt. 99) 514; Omole and Sons Ltd vs. Adeyemo [1994] 4 NWLR (Pt. 336) 48”See also Okpe vs. Fan Milk Plc & Anor (2016) LPELR-42562 (CA); Ezeugo vs. Ohanyere (1978) 6-7 SC 171.
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TECHNICALITIES – ATTITUDE OF COURTS TO TECHNICALITIES

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“A court should not also succumb to blackmail. In Usman vs. Tamadena & Co Ltd & Ors (2015) LPELR-40376 (CA) Abba Ali, JCA (as he then was) drove home this point on page 20 in these words:
“I am in agreement with the decision of the learned trial judge that Courts are instituted to do justice and it will be an abandonment of the Courts responsibility to succumb to a blackmail of a counsel to take backward step in the administration of substantial justice by allowing counsel to rely on technicality to shore up their case. See Okoye V. Nwulu (2001) 11 NWLR (PT. 724) 362 at 366. The heydays of technicality are now over because the weight of judicial authorities today shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case See Akpkiniovo V. Agas (2004) NWLR (PT 881) 39a at 422 423; and Egolum v. Obasanjo (SUPRA) .” –

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FINDINGS OF FACTS BY LOWER COURT – ATTITUDE OF THE APPELLATE COURT TO THE FINDINGS OF FACTS BY THE LOWER COURT

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“I will not to interfere with the findings of facts by the lower court except if such finding does not correspond with the evidence before the court. See Yiwa vs. Tata (2018) LPELR-446699 (CA); Iwuoha & Anor vs. Nipost Ltd & Anor (2003)8 NWLR (Pt.822) 308”.

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DENIAL OF FAIR HEARING – WHETHER A PARTY WHO FAILED TO UTILIZED THE OPPORTUNITY TO PRESENT HIS CASE, CAN BE HEARD TO COMPLAIN OF A DENIAL OF FAIR HEARING

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“A fair hearing is said to be denied when a person is denied the opportunity of presenting his case freely and equally as the other party. Once a court gives the party in a case the opportunity to present his case, that same person cannot complain of the denial of fair hearing if he does not take advantage of it or the court does not make a pronouncement on all the issues raised. What is important here is whether the party was given the opportunity to present his case. Once this is done it is his choice whether to take advantage of it or not. If by choice or wrong strategy of litigation, he decides not to take advantage of that opportunity, he is counted to have lost it and he cannot complain later that he was denied fair hearing. Let me quickly look at a few cases to buttress this point. It is a trite principle that really does not need to be supported by any authority but since the Appellant made a big issue of it, I will refer to a few cases on the point. In APC vs. Nduul & Ors (2017) LPELR-42415 (SC), the apex court per Bage, JSC at page 35 held:
“Whether a hearing can be said to be fair if any of the parties to proceedings is denied an opportunity to be heard or present his case or call evidence. Certainly not. The law is settled that, a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case or call evidence. The right to a fair hearing is substantially a question of an opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived in a case. See: FBN Plc vs. Tsa Ind. Ltd (2010) 4-7 SC (Pt.1) 242, Bamgboye vs. University Of Ilorin (1999)6 S.C. (Pt.11)72; Awoniyi vs. The Registered Trustee Of The Resicucion Order AMOC (Nigeria) (2006)6 SC (Pt.1) 108; Araka vs. Ejeagwu (2001) 12 SC (PT.11) 99; Okafor vs. A.G. Anambra State (1991) 7 SC (PT.11) 138 And Mohammed vs. Olawunmi (1990) 4 SC 40 …..”
Indeed the apex court made the point clearly in Bill Construction Co Ltd vs. Imani & sons Ltd/ Shell Trustee Ltd (2006) 11-12 SC 90, Onnoghen, JSC (as he then was) held:
“It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. What that court is enjoined by the provisions of Section 33 of the 1999 Constitution to do is to create a conducive atmosphere for the parties to exercise their right to a fair hearing by holding the scales of justice fairly but firmly without fear or favour, affection or ill will. Having provided the required atmosphere the duty on the court stops there. It becomes the duty or choice of the party seeking to enforce his civil rights and obligations to utilize the opportunity so created. He cannot be compelled to do so. Where he decides to present his case in an acceptable mode and as required by the rules and substantive law, he would be heard. On the other hand, where he chooses not to present his case he cannot later be heard to complain that he was not heard, as in the instant case”.
See also Onigha Ogar Onah vs. Chief (Sir) Linus E. Okom (2001) 8 NWLR (Pt.1301) 169”.-

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DENIAL OF FAIR HEARING – WHETHER THE FAILURE OF A COURT TO PRONOUNCE ON ALL ISSUES BEFORE IT AMOUNTS TO DENIAL OF FAIR HEARING

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“Let me just add quickly that a court failure to decide or pronounce on all issues before it does not amount to a denial of fair hearing provided the parties were all given opportunity to present their case and address on the issues”. See: Amona & Ors vs. Incorporated Trustee of Omadino &Ors (2004) LPELR 12610 (CA); Bamiayi vs. State (2001) 4 SC (Pt.1) 18”.-

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TRADE DISPUTE- DEFINITION AND DETERMINATION OF DISPUTE THAT QUALIFIES AS TRADE DISPUTE

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“To qualify as a trade dispute, the dispute must be connected to the employment or non- employment to the terms of employment or physical condition of work of the person. This is the provision of Section 47 of the Trade Dispute Act. This dispute which relates to employment or non-employment or the terms of the employment must have as parties the employer and the worker or between worker and worker. The apex court made this clear in National Union of Electricity Employee & Anor vs. B.P.E. (2010) I FWLR (Pt.516) 2461, the apex court held:
“What is the meaning of trade dispute the term “trade dispute” has been statutorily defined by Section 47 of the Trade Dispute Act Cap 432 thus:”trade dispute means any dispute between employers and workers or between workers and workers, which is connected with employ mentor non-employment, or the terms of employment and physical conditions of work of any person” for emphasis. The foregoing provision has been judicially construed in the case of National Union Of Road Transport Workers v. Ogbodo And Others (1998) 2 NWLR (Pt 537) 189 per Tobi JSC(as he then was) as follows:”From the wording of Section 47, it is clear that the following ingredients are not only necessary but inevitable:
(a) there must be a dispute
(b) the dispute must involve a trade
(c)  the dispute must be between
(i) employers and workers; or
(ii) workers and workers
(d)   the dispute must be connected with
(i) the employment or non-employment; or
(ii) the terms of employment and physical condition of workers of any person.” His Lordship then proceeded to analyze the above factors thus: “The third classification concerns the parties in the trade dispute. The dispute must either be between employers and workers or between workers and workers or although the former is much more regular in terms of commencement of actions in courts. The act does not provide for the definition of employer. It simply means a body of persons who employs a worker. The act defines worker’ as an employee, that is to say, any public officer or any individual or (other than a public officer) who has entered into works under a contract with an employer whether the contract is for manual labour, clerical work or otherwise express or implied, oral or written or whether it is contracted to render services or of apprenticeship. Applying the foregoing analysis which with respect I uphold, mutatis mutandi to this case, it goes beyond argument that it is inapplicable vis-à-vis the facts and circumstances here. The reasons are not too farfetched. It is noteworthy that there is no employer/employees relationship between the parties to this suit. The respondent is not the employer of the appellants. Nor are the appellants the workers in the respondent company. This state of affairs is common to the parties; so that the instant dispute is not between employer/employees. Even then the dispute is not also between workers and workers in the plaintiff company or in NEPA neither is it an inter/intra union dispute. The pertinent question is whether in the absence of such a relationship a trade dispute can result from the disagreement against privatizing NEPA. It is certain that where none of the relationships as outlined above i.e. as cognizable under Section 47 do not exist so as to bring the matter of the disagreement between the parties here within its ambit of a trade dispute it goes without more that such disagreement as in this case cannot qualify as a trade dispute. In my view, compliance with the provisions of Section 47(supra) is indispensable not only to make an industrial action qualify as a  trade dispute but also to enable the employees to claim a right to strike and so non actionable within the provisions of Section43(1) of the Trade Union Act. The other side of the coin is to consider whether the subject matter here is connected with the employment or non-employment or terms of employment and physical condition of work of any person. The words “connected with” in the above abstract from NURTW vs. Ogbado (supra) has also been judicially construed and as culled from the said cited case; his Lordship has stated that; “The expression ‘connected with’ has been subjected of some controversy in the English courts. In Valentine v Hyde (1919) 2ch. 729, Ashbury J. held that the dispute must be connected with the employment or non-employment, and not a dispute about some entirely different subject matter, non-settlement of which may result in employment or non-employment .”
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“CONNECTED” – DEFINITION OF THE WORD “CONNECTED”

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“The word used in section 47 of the Trade Dispute Act is “connected with employment or non-employment or terms of employment”. The word connect is an English word which has a straight forward and common usage. There is no hiding meaning of the word. To connect means to ” join, or fasten together, as by something intervening; to associate; to combine; to unite or link together; to establish a bond or relation between.” For the purpose of the issues, in this case, the most appropriate definition will be that connection must link together and be interwoven. The legal definition is not radically different from the ordinary English definition. In SPDC (Nig.) Ltd vs. Isaiah & Ors (2001) 11 NWLR (Pt.723) 168, the Supreme Court per Ogwegbu JSC in defining the word “connected” said:
“The verb “connected” is defined in Black’s law dictionary, 6th ed. As joined united by the junction, by an intervening substance or medium by dependence or relation, or by order in a series” –

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PARTICULARS OF A GROUND OF APPEAL- PURPOSE OF PARTICULARS OF A GROUND OF APPEAL

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“The apex court brought out the purpose of particulars in the ground of appeal in these words in Waziri & Anor vs. Geidam & Ors (2016) LPELR-40660 (SC) per Peter-Odili, JSC held:
“The functions which particulars to a ground of appeal are required to perform are to highlight the grouse of the Appellants against the judgment on appeal. They are specifications of errors and misdirection which show the complaint the Appellants is screaming about and the line of thought the Appellants are going to canvass in their Brief of Argument. What is fundamental is that in the ground of appeal and the particulars which are really explanatory notes what is in contest is left open and exposed so that there is no attempt at an ambush or a giving of room to which the Respondent would say he was left in the dark of what he was to defend on appeal or that they are unable to understand or appreciate the complaint in the said ground”
The particulars of the ground of appeal are met to compliment the grounds of appeal. The particulars are not met to be argued separately as a ground of appeal. In this regard, any particular which does not correspond with the grounds of appeal will not be considered to be discussed as a ground. This court in Ushie vs. Edet & Anor (2010) 6 NWLR (Pt.1190) 386 per Orji- Abadue, JCA held:
“It is trite law that a party who wishes to rely on any ground of appeal in an appeal must raise such ground specifically and clearly as a ground of appeal in his notice of appeal or cross-appeal. He must not raise it as a particular to a ground of appeal because particulars of a ground of appeal are complements to and dependent on the grounds of appeal. Consequently, once particulars of aground of appeal speak a different language outside the contemplation of ground of appeal, they are more particulars of the relevant ground and go to no issue. See Anammco vs. First Marina Trust Ltd (2000) 1 NWLR Part 640 p. 309. The purpose of aground of appeal is to give to the Respondent notice of the exact complaint the appellant has against the decision. Therefore, a ground of appeal should be drawn up with the greatest legal skill, accuracy, elegance, and expertise which a solicitor must muster. Particulars of error to a ground of appeal must flow from the ground of appeal and must support it. Particulars not so related are incompetent and ought to be disregarded. If all the particulars to a ground of appeal are unrelated to the ground, the latter is incompetent and ought to be struck out. See, also Cross River Basin & Rural Development Authority vs. Sule (2001) 6 NWLRPart 708 p. 194.
In the present appeal, it seems clear that particulars Nos. 2, 9 and 10 which centered on theNotice of Preliminary Objection not mentioned in any form in ground NO.1 of the grounds of appeal, are totally unrelated to the said ground. In the light of the decision in Cross River Basin & Rural Development Authority vs. Sule (supra), particulars Nos. 2, 9 and 10 to the ground NO.1 of the grounds of appeal, and, all the arguments in the brief relating thereto as advanced under issue NO.1 for determination are hereby discountenanced.” –

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PARTICULARS OF GROUND OF APPEAL- PURPOSE OF PARTICULARS OF A GROUND OF APPEAL

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“It settled law that the purpose or function of particulars of a ground of appeal is to support the points already raised in the ground of appeal. This honourable court in FMC, Idi-Ekiti & Ors V Isaac Olukayode (2011) LPELR-4150(CA), per UWA, JCA (P.29,PARAS. B-D) thus;
“it is trite that particulars of a ground of appeal are there to support and explain further, the complaint raised in the ground of appeal. The particulars are therefore not to be seen the same way as the grounds”. –

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CASES CITED

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None

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999|Trade Dispute Act, 2004|

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