Legalpedia Citation: (2014) Legalpedia (CA) 21115
In the Court of Appeal
Fri Nov 7, 2014
Suit Number: CA/L/814/2013
CORAM
TIJANI ABUBAKAR – JUSTICE, COURT OF APPEAL
YARGATA BYENCHIT NIMPAR – JUSTICE, COURT OF APPEAL
PARTIES
UNION BANK OF NIGERIA PLC APPELLANTS
AUGUSTINE ADELEKAN ARIBA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent instituted an action against the Defendant/Appellant at the National Industrial Court, Lagos seeking a declaration that his dismissal from the employment of the Defendant/Appellant was wrongful. The Plaintiff/Respondent also sought for payment of his redundancy benefits for 356 weeks covering 23years of service to the Defendant/Appellant and three months’ salary for the period of notice of his disengagement. Thought the claim of the Plaintiff/Respondent was for redundancy, the trial Court awarded retirement benefits in its judgment in favour of the Plaintiff/Respondent. Dissatisfied with the judgment of the trial Court, the Defendant/Appellant appealed to the Court of Appeal.
HELD
Appeal was partially upheld
ISSUES
Whether the Appellant was accorded right of fair hearing by the court below when the court in its Judgment ordered the Appellant to retire the Respondent from service with full benefit and pay the Respondent his retirement benefits with effect from 28/12/2009 when the issue of the Respondents retirement / retirement benefit were not raised and therefore not an issue before the court below and no case and/ or claim for retirement / retirement benefit was made by the Respondent.?
2. Whether the court below accorded the Appellant the right to fair hearing when in arriving at a decision in the case it filed/ refused to consider the Appellants case?
RATIONES DECIDENDI
RETIREMENT- MEANING OF RETIREMENT
“Retirement can simply be said to be the act of ending your working career with an organization. It can be voluntary or be a forced act of ending such a service.” PER NIMPAR JCA
REDUNDANCY- MEANING OF REDUNDANCY
“Redundancy was considered in P. A. N. V OJE (1997) LPELR -6331 (CA) where court held as follows:
“Redundancy in service in my view, is a mode of removing off an employee from service when his post is declared “redundant” by his employer. It is not a voluntary or forced retirement. It is not a dismissal from service. Itis a form unique only to its procedure where an employee is quietly and lawfully relieved ofhis post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefits enumerated by the terms of the contract to be payable to an employee declared “redundant.” PER NIMPAR JCA
REDUNDANCY AND RETIREMENT – DISTINCTION BETWEEN REDUNDANCY AND RETIREMENT
“The only similarity between redundancy and retirement is the fact that such a person is no longer in the service of the organization and
that such disengagement attracts financial benefits. The process leading to the cessation of service for the two are different. It therefore follows that one cannot plead one and be found to have proved the other. One cannot move from one to the other just like that, pleadings restrict any such movement.” PER NIMPAR JCA
UNNECESSITY OF LEAVE ON APPEAL ON FUNDAMENTAL RIGHT- APPEAL ON FUNDAMENTAL RIGHT ENVISAGED UNDER CHAPTER IV OF THE 1999 CONSTITUTION IS OF RIGHT
“Once a ground of appeal raises a question of fundamental right as envisaged by chapter IV of the 1999 Constitution, appeal from the national Industrial Court is of right and the need for leave is obviated. “ PER NIMPAR JCA
IMPROPRIETY OF COURT MAKING A CASE FOR THE PARTIES- COURT SHOULD NOT MAKE A CASE FOR A PARTY BUT ALLOW A PARTY TO MAKE HIS CASE OR FAILS.
“It is not part of the duty of court to make a case for a party. A party establishes his case or fails. The fair hearing aspect is founded on the binding nature of pleadings. In the AMERICAN CYNAMID COMPANY V VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (Pt 171) 15.” PER NIMPAR JCA
DETERMINATION OF THE NATURE OF GROUNDS OF APPEAL- NATURE OF GROUNDS OF APPEAL IS DETERMINED by A COURT AND NOT FROM THE SUBMISSION OF A COUNSEL
“A court of record would always determine the nature of grounds of appeal from the Notice of Appeal and not from the submission of counsel.” PER NIMPAR JCA
SCOPE OF FAIR HEARING-INSTANCES WHERE A DENIAL OF FAIR HEARING MAY OCCUR
“Fair hearing is Constitutionally provided for in Section 36(1) of the 1999 Constitution and it states thus:
“In the determination of his civil rights and obligations, including and questions or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence or impartiality.”
Section 36(1) comes under Chapter IV of the 1999 Constitution. Fair hearing is considered to be fair trial and they are synonymous as held in the case of MOHAMMED VKANO NATIVE AUTHORITY (1968) SCNLR 558 at 561 where the Supreme Court said thus:
“We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing.”
Fair hearing is fundamental to every trial and it could arise incidentally in the course of proceeding or directly. The court in the case of OYEYEMI VCOMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE&ORS (1992) 23 NSCC (Pt 1) 37 had this to say:
“But sometimes, the breach of right of hearing could arise incidentally in the course of the proceedings. For example, part of the proceedings could be vitiated by want of hearing, even though a good part thereof is properly conducted. When such is the case a court of justice cannot shut its eyes to the breach of the rule of fair hearing being a fundamental vice, the court will yet go into the matter though it has arisen incidentally…”
Furthermore, fair hearing also lies in the procedure adopted by the court in the determination of the case, See ORUGBO VUNA (2002) 9- 10 SC 61 PER NIMPAR JCA
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999
2. Association of Senior Staff of Banks Insurance and Financial Institutions (ASSBIFI) 2005.
3. National Industrial Court Act, 2006
4. Court of Appeal 2007
5. Companies and Allied Matter Act
5. Companies Proceeding Rules 1992