- February 14, 2019
- Posted by: Stephen Azubuike
- Category: Case Law Blog
Ifeanyi Okeke Esq. v. Wale Ogunade Esq. Suit No. NICN/LA/432/2014, per Amadi J:
“This case once again shows the pain, hardship and difficulty which some young lawyers undergo in the hand of some senior colleagues, who ordinarily should encourage them. I commend the tenacity and dexterity of the Claimant in pursuing justice in this matter since 2012 up to this stage. In the same vein, I condemn the conduct of the Defendant in trying to wish away the earned salary of the Claimant in this suit.”
The above case involves a young legal practitioner who was unlawfully denied the salary he earned while in the employment of the Defendant. The National Industrial Court came to his aid and granted his claims. Click here for full details of our report of the case on 2nd November, 2017.
The Appellant filed an appeal in Appeal No. CA/L/29/2017 : OGUNADE vs OKEKE.
The Court of Appeal first of all considered it “most unfortunate” that the Defendant, now Appellant, contested the action filed at the NIC. According to Ogakwu, JCA:
“Most unfortunately, the Appellant contested the action and the matter went to trial and in its scarified judgement the lower court entered judgment for the Respondent.”
His Lordship also considered the appeal subsequently lodged by the Appellant as a sad development. Ogakwu said:
“Rather sadly, the Appellant, even though not contesting that the Respondent discharged his duties as a junior Counsel in Chambers for September 2012 and had not been paid the earned salary of N30,000.00, appealed against the Judgement of the lower Court.”
One interesting thing about the appeal filed by the Appellant is that the Appellant failed to seek leave of Court to file the appeal in line with the decision of the Supreme Court in Skye Bank v. Iwu. The Appellant tried, though unsuccessfully, to clothe the appeal with the garment of lack of fair hearing but the Court of Appeal was alert. Based on the preliminary objections filed by the Claimant, now Respondent, the Court of Appeal unanimously struck out the appeal, awarding a cost of N300,000 to the Respondent. Ogakwu JCA made some succinct remarks. Hear him:
“The Appellant has missed the mark in his attempt to drag the fair hearing principle into this matter. They have no place whatsoever given that the portion of the Judgment complained about does not betray any denial of fair hearing and the comments allegedly made by the lower Court in the course of the proceedings is not in the Record of Appeal. On the peculiar facts of this matter, the principles of fair hearing are helpless and completely dead; they are inapplicable and cannot afford the Appellant any slave, anodyne or paregoric.
It is not how a party christens a ground of appeal that determines what the ground is. The ground must be closely examined to see if it is what the Appellant alleges or claims that it is. Therefore, the character and nature of the ground of appeal is not what the party labels it, but what the court finds the ground to be upon an insightful examination.”
Who knows what the Appellant would do next in this dance of shame?
(DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, JCA)
This appeal is against the decision of the National Industrial Court of Nigeria, Lagos Judicial Division in SUIT NO. NICN/LA/432/2014: IFEANYI OKEKE, ESQ. VS. WALE OGUNADE, ESQ. delivered on 27th September, 2016. The Respondent herein, who was the Claimant at the lower Court, was employed as junior counsel in chambers by the Appellant herein at a monthly salary of N30, 000.00. As a result of persistent late payment of the salary, the Respondent informed the Appellant that he could no longer continue in the employment and demanded for his September 2012 salary, which as at 12th October 2012 had still not been paid. The Appellant failed to pay the earned salary for September 2012, consequent upon which the Respondent instituted proceedings at the lower Court, on 24th September 2014, claiming the following reliefs:
“1. The sum of N30, 000.00 being the Claimant’s salary for the month of September 2012 which the Defendant has vehemently refused to pay the Claimant despite repeated demands.
2. The sum of N200, 000.00 being the cost of instituting this action.”
Most unfortunately, the Appellant contested the action and the matter went to trial and in its scarified judgement the lower court entered judgment for the Respondent in the following terms:
“In sum, I order the Defendant to pay the Judgment sum of N30,000 and cost of N 80,000 awarded in this suit to the Claimant on or before October 30, 2016 failing which they shall attract 20 % interest per annum until fully liquidated”
Rather sadly, the Appellant, even though not contesting that the Respondent discharged his duties as a junior Counsel in Chambers for September 2012 and had not been paid the earned salary of N30,000.00, appealed against the Judgement of the lower Court. The Record of Appeal was transmitted, Briefs of Argument filed and exchanged. So here we are.
The Appellant’s Brief was filed on 17th May 2017 but deemed as properly filed on 14th November 2018. The Appellant nominated two issues for determination, as follows:
“1. WHETHER THE LOWER COURT ERRED IN LAW AND MISDIRECTED ITSELF WHEN IT ASSUMED JURISDICTION WHEN THERE IS NO CAUSE OF ACTION AS CONDITION PRECEDENT WAS NOT FULFILLED BY THE RESPONDENT.
2.WHETHER THE LOWER COURT ERRED IN LAW WHEN IT BREACHED THE APPELLANT’S RIGHT TO FAIR HEARING AS GUARANTEED UNDER SECTION 36 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED).”
The Respondent filed a preliminary objection on 4th December 2017 challenging the competence of the Appellant’s appeal. The preliminary objection was argued in the Respondent’s Brief which was filed on 4th December 2017 but deemed as properly filed on 14th November 2018. The Respondent crafted two issues for determination in the appeal, namely:
“1. Whether the lower Court wrongly assumed jurisdiction to entertain this suit.
2. Whether there is proof that the Appellant’s Right to fair hearing was breached by the lower Court.”
The Appellant filed a Counter Affidavit and Written Address in opposition to the preliminary objection on 15th February 2018. The Appellant further filed a Reply Brief titled, Reply on Points of Law on 15th February 2018 but deemed properly filed on 14th November 2018, wherein the Appellant replied to the issues raised in the preliminary objection argued in the Respondent’s Brief. I will consequently discountenance with the Appellant’s Counter Affidavit and Written Address filed in opposition to the Respondent’s preliminary objection, the Appellant having filed a Reply on Points of Law (Reply Brief), which is the proper process to file in reply to the submissions in the Respondent’s Brief.
At the hearing of the appeal, the Appellant and his counsel were absent, even though they were duly served with a hearing notice for the hearing of the appeal. In the circumstances, the court invoked the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016 to treat the appeal as having been duly argued by the Appellant, based on the Briefs he filed. The Respondent, who appeared in person, identified the processes filed by the parties and he formally abandoned Ground B of his preliminary objection and urged the court to dismiss the appeal.
THE PRELIMINARY OBJECTION
Our take-off point is the Respondent’s Preliminary Objection. It prays for an order dismissing the appeal and it is predicated on five grounds thus:
“a. The Appeal as presently constituted is incompetent for failure of the Appellant to seek leave of this Court before filing Notice of Appeal.
b.That the Appellant/Respondent failed to file Brief of Argument within time provided for in Order 19 Rules 2 and 10 of the Court of Appeal Rules, 2016 and did not seek leave of the Court to extend time.
c. Ground one of the Appeal did not arise from the Judgment of the lower Court appealed against by the Appellant.
d.Ground 2 of the Appeal did not arise from the Judgment of the lower court appealed against by the Appellant.
e.The issues raised by the Appellant did not emanate from the grounds of appeal, and the Appellant failed to indicate their derivation from the grounds of appeal.”
The Respondent having abandoned Ground B, the said ground is hereby struck out. The quiddity of the Respondent’s contention on the first ground of his objection is that the Appellant did not seek leave of court before filing his Notice of Appeal. Section 243 (2) and (3) of the 1999 constitution and the cases of L. S. H. & E. F. vs H. & P. S. S. A. (2015) ALL FWLR (PT 765) 340 at 358-359 and SKYE BANK vs. IWU (2017) 16 NWLR (PT 1590) 24 were referred to.
It was posited that the alleged statements which the Appellant credited to the lower Court as a violation of his right to fair hearing are not contained in the Records of Appeal which binds the litigants and the court vide NWORA vs. NWABUNZE (2012) ALL FWLR (PT 613) 1824 at 1838. It was maintained that since the material on which the Appellant predicted his complaint of breach of fair hearing, is not borne out by the Records, he could not appeal as of right and it was immaterial that he branded the ground, a ground of fair hearing. The case of IKPEMAKU vs. MAKOLOMI (2006) ALL FWLR (PT 319) 881 at 889was replied upon.
The Respondent’s argument on Grounds C, D and E of the preliminary objection is that the said grounds did not arise from the Judgment of the lower Court and that the issues distilled by the Appellant did not emanate from the grounds of appeal and the grounds from which the issues were distilled were not stated. The cases of OMONIYI vs. ALABI (2015) ALL FWLR (PT 774) 181 at 193, WASSAH vs. KARA (2015) ALL FWLR (PT 769) 1034 at1 049 among other cases were cited in support.
The Appellant in his Reply on Points of Law crafted five issues as arising for determination on the preliminary objection as follows:
“1. WHETHER THE APPELLANT APPEAL IS INCOMPETENT FOR FAILURE TO SEEK LEAVE OF THIS COURT BEFORE FILLING (sic).
- WHETHER THE RESPONDENT NOTICE OF PRELIMINARY OBJECTION DATED THE 30TH DAY OF NOVEMBER, 2017 IS COMPETENT BEFORE THIS HONOURABLE COURT.
- WHETHER GROUND ONE & TWO OF THE APPELLANT’S NOTICE OF APPEAL ARISE FROM THE JUDGMENT OF THE LOWER COURT APPEALED AGAINST.
- WHETHER THE ISSUES FOR DETERMINATION RAISED BY THE APPELLANT DID EMANTE FROM THE GROUNDS OF APPEAL.
- WHETHER THE APPEALLANT’S [sic] BRIEF OF ARGUMENT WAS FILED OUT OF TIME, AS PROVIDED IN THE RULES OF THIS HONOURABLE COURT.”
The Appellant submits on the first issue he distilled that by Section 243 (2) of the 1999 Constitution, he can appeal as of right on questions of fundamental rights and that the comments made by the lower Court during the trial breached his right to fair hearing. The cases of STEPHEN vs. GOVERNMENT OF ONDO STATE (2015) ALL FWLR (PT 801) 1379 and UNION BANK vs. ARIBA (2015) ALL FWLR (PT 763) 1868 were called in aid.
The Appellant’s issue number two relates to the competence of the preliminary objection relative to Ground B of the preliminary objection which the Respondent abandoned. The Appellant’s issue number five is also in respect of the abandoned Ground B. the said two issues number based on the abandoned Ground B of the preliminary objection are therefore otiose.
The conspectus of thru Appellant’s submissions on his issue numbers three and four is that his Grounds of Appeal arise from the Judgment of the lower Court as it relates to whether the Respondent’s action at the lower court was competent. It was asserted that the purpose of a ground of appeal is to give notice to the respondent of the issues contended on appeal and that once that purpose is served, the ground cannot be said to be defective vide AJOBENA VS. MUJAKPERUO (2015) ALL FWLR (PT 779) 1005.
RESOLUTION OF THE PRELIMINARY OBJECTION
The first contention in the preliminary objection is that the Appellant could only appeal with leave of Court and that having failed to obtain leave of Court, that the appeal was incompetent. The ex cathedra pronouncement of the apex Court in SKYE BANK vs. IWU (2017) LPELR (42595)1 at 64-66 has settled the legal position and established that appeals lie from the decisions of the National Industrial Court to this Court. In criminal cases, the appeals lie as of right and with leave of Court in respect of any other grounds or questions that do not involve fundamental rights.
I have insightfully considered the Grounds of Appeal at pages 95 and 96 of the Records. The Appellant has rightly submitted that the purpose of a ground of appeal is to explain to a respondent the issue contended on appeal. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2000) 13 NWLR (PT 1157) 83 and AMADI vs. NWANYINKWO (2012) LPELR (19682) 1 at 19. The issue contended in Ground One of the Notice of Appeal is on the applicability of the Labour Act to the Respondent’s action. It is the Appellant’s position that the Respondent is a worker as defined in Section 91 of the Labour Act and that not having given the requisite period of notice under Section 11 (2) (b) of the Labour Act before quitting his job, he could not approach the lower Court with his grievance and that the condition precedent not having been fulfilled the lower Court was wrong to have entertained the matter.
It is limpid that there is nothing in the above Ground One which raises, even if obliquely, the question of fundamental rights which is the only ground on which the Appellant can appeal as of right by the provisions of Section 243 (2) and (3) of the 1999 Constitution: SKYE BANK vs. IWU (supra). The Appellant did not obtain leave to appeal on the said Ground, it is therefore incompetent. See UMANAH vs. NDIC (2016) LPELR (42556) 1 at 17-18 (SC), CHROME AIR SERVICES LTD VS. FIDELITY BANK (2017) LPELR (43470) 1 at 21-22 and AKINYEMI vs. ODU’A INVESTMNENT CO. LTD (2012) LPELR (8270) 1 at 37-38. A ground of appeal which is ex facie bad or incompetent will be struck out: EKUNOLA vs. CBN (2013) LPELR (20391) 1 at 16 (SC).
Let me state that even though the Appellant clothed the said Ground One with the garb of jurisdiction, there is no genuine question of jurisdiction raised in the said Ground. The jurisdiction of a court is statutory and in this regard Section 254C of the 1999 Constitution gives the lower court exclusive jurisdiction to entertain civil causes and matter relating to or connected with, inter alia, labour, employment and matters incidental thereto or connected therewith. Whether the Respondent is a worker within the meaning of the Labour Act and whether he terminated his employment relationship within the terms of the Labour Act has absolutely nothing to do with the reliefs he claimed, which is for salary earned for the month of September 2012; and it has nothing to do with the undoubted jurisdiction of the lower Court to entertain the relief. It is therefore a woolly issue of jurisdiction. Paucis verbis, the Appellant did not obtain leave of Court to appeal on the said Ground. Ground One of the Notice of Appeal is bad and incompetent. It is hereby struck out.
With regard to Ground Two of the Grounds of Appeal. By all odds, it appears to raise the issue of fair hearing, the complaint therein being that the lower Court in the course of the proceedings made comments like “you senior lawyers are wicked”, “is he not entitled to his salary?”, “Have your people settled or I will award heavy cost against the losing party”; in consequences of which the Appellant was not given the opportunity to present his case. Howbeit, it is hornbook law that Records of Appeal binds the court and the parties. The Records of Appeal is the Holy Grail of the case. The appeals are heard and decided on the basis of the Records and an appellate court has no jurisdiction to go outside the Records of Appeal to examine matters and draw conclusions which are not supported by the Records. See ONWUKA vs. ONONUJU (2009) 11 NWLR (PT 1151) 174, OLUFEAGBA vs. ABUR-RAHEEM (2009) 18 NWLR (PT 1173) 384, GARUBA vs. OMOKHODION (2011) 14 NWLR (PT 1269) 145 and AGBAREH vs. MIMRA (2008) LPELR (43211)1 at 21.
There is nothing in the Record of Appeal which bears out the complaint raised in Ground Two about the words allegedly used by the lower Court complained about therein. There is a presumption of authenticity and correctness which enures in favour of the Records of Appeal: HASKE vs. MAGAJI (2009) ALL FWLR (PT 461) 887 at 904, NUHU vs. OSELE (2003) 18 NWLR (PT 852) 251 at 272 and AGBAREH vs. MIMRA (supra). The Appellant has not challenged the genuineness of the Records of Appeal and not having done so, since the allegation of comments allegedly made by the lower Court is not borne out by the Records, this Court cannot make findings on issues outside the Record of Appeal: NWORA vs. NWABUNZE (supra) at 1836.
The Appellant further complains in the said Ground Two that the third but last paragraph on the Judgment reinforced the fact that he was not given the opportunity to present his case as a result of which his right to fair hearing was breached. In the said portion of the Judgement at page 94 of the Records, the lower Court stated as follows:
“This case once again shows the pain, hardship and difficulty which some young lawyers undergo in the hand of some senior colleagues, who ordinarily should encourage them. I commend the tenacity and dexterity of the claimant in pursing justice in this matter since 2012 up to this stage, in the same vein I condemn the conduct of the defendant in trying to wish away the earned salary of the claimant in this suit.”
There is nothing in the above periscope on which a complaint of the Appellant having been deprived the opportunity to present his case can be anchored. Undoubtedly, it is alluring to raise the dust about deprivation of the right to fair hearing given the effect of the breach of the right in the litigation process. However, it can only be raised and avail a litigant when in fact the right had been denied.
The denomination of the apex Court in this regard in ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 23-24 is most instructive. Hear Tobi, JSC of blessed memory:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
See also KOLO vs. COP (2017) LPELR-42577 (SC) and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT 1053) 109 at139.
Furthermore, in MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT1089) 338 or (2008) LPELR (1814) 1 at 40, Tobi, JSC observed as follows:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
See also ORUGBO vs. UNA (2002) 16 NWLR (PT 792) 175 at 211 and 212.
The Appellant has missed the mark in his attempt to drag the fair hearing principle into this matter. They have no place whatsoever given that the portion of the Judgment complained about does not betray any denial of fair hearing and the comments allegedly made by the lower Court in the course of the proceedings is not in the Record of Appeal. On the peculiar facts of this matter, the principles of fair hearing are helpless and completely dead; they are inapplicable and cannot afford the Appellant any slave, anodyne or paregoric.
It is not how a party christens a ground of appeal that determines what the ground is. The ground must be closely examined to see if it is what the Appellant alleges or claims that it is. Therefore, the character and nature of the ground of appeal is not what the party labels it, but what the court finds the ground to be upon an insightful examination. See NNUBIA vs. INTERCONTINENTAL BANK (2015) LPELR (24783) 1 at 12 and TOTAL INTERNATIONAL LIMITED vs. AWOGBORO (1994) LPELR (3261) 1 at 17-18. In OSAYABAMWEN vs. IRORO (2016) LPELR (40804) 1 at 16-17, I had the privilege of stating the legal position in these words:
“….. a ground of appeal does not become on a question of customary law merely by the ground being christened, as has been done in this case, to be an error in customary law. See AJUWA vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) LPELR (8243) 1 at 24, OKUWUAGBALA vs. IKWUEME (2010) LPELR (2538) 1 at 20-21 and NWADIKE vs. IBEKWE (1987) 2 NSCC 1219. The determining factor in ascertaining the nature or character of the ground is the real issue or complaint raised in the ground. The cognomen of the ground is not a determinant. See ABIDOYE vs. ALAWODE (2001) LPELR (35) 1 at 12, OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT 23) 484 at 488 and TOTAL INTERNATIONAL LTD vs. AWOGBORO (1994) LPELR (3261) 1 at 17.”
The law has not changed. The Appellant by the mere assertion that the ground raises the issue of fair hearing does not ipso jure make it so. The hood definitely does not make the monk! Ground Two of the Grounds of Appeal is not a valid ground raising the breach of the right of fair hearing as the complaint in that regard is not borne out by the Record of Appeal or the periscope from the Judgment of the lower court at page 94 of the Records.
The Appellant’s Ground of Appeal are not grounds on which he could have appealed as of right. They are grounds in respect of which leave of court was necessary before an appeal can be lodged against the decision of the lower Court on such grounds: SKYE BANK Vs. IWU (supra). I iterate that the Appellant did not obtain leave of Court to appeal on any of the grounds of appeal. The concomitance is that the said grounds of appeal are incompetent. In law, issues for determination in an appeal can only be validly formulated from valid and competent grounds of appeal. When a ground of appeal is incompetent, any issue for determination based on the incompetent ground goes to no issue and should be struck out as incompetent. An issue for determination derives its support from the ground of appeal and cannot exist independently of the ground of appeal. It automatically collapses when the ground of appeal ceases to exist. An appellate court will not entertain any argument or submission on issues not covered by competent, valid and subsisting ground or grounds of appeal. See AGBAKA vs. AMADI (1998) LPELR (231) 1 at 8 (SC), PDP vs. INEC (2014) LPELR (23808) 1 at 28 (SC), EGBE vs. ALHAJI (1990) 1 NWLR (PT 128) 546, AGUNDO vs. GBERBO (1999) 9 NWLR (PT 617) 71 and CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD vs. EKPO (2008) LPELR (825) 1 at 54-55. Accordingly, the incompetent Grounds of Appeal and the issues distilled therefrom are hereby struck out.
The preliminary objection therefore succeeds. The success of the preliminary objection and the striking out of the Grounds of Appeal and the issues distilled therefrom necessarily connotes that there is nothing left to be urged or argued in the appeal. In the circumstances, the appeal is hereby struck out for being incompetent. The decision of the lower Court subsists. The Respondent is entitled to the costs of this appeal which I assess and fix at N300, 000.00.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA
I have had the advantage of reading in draft the Judgement just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA in this appeal. I agree with the succinctly delivered reasoning and conclusion thereat.
I also hold that the appeal is incompetent and it is accordingly struck out.
In effect, the Judgement of the lower Court in this case subsists.
I abide by the order as to costs in the Lead Judgment.
EBIOWEI TOBI, JCA.
I read in draft the Lead Judgment just delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA. I agree with His Lordship that the preliminary objection raised by the Respondent on incompetence of the appeal succeeds. I abide by the order of cost.
Appellant served with hearing notice but absent and not represented by Counsel.
Respondent appeared in person.