UMAR V NATIONAL VETERINARY INSTITUTE & ANOR

UMAR V NATIONAL VETERINARY INSTITUTE & ANOR


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT JOS

ON WEDNESDAY, 20TH JUNE, 2018


Appeal No: CA/J/75/2017
CITATION:

Before Their Lordships:

ADAMU JAURO, JCA

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


BETWEEN

MRS. OMOLARA U. UMAR

(APPELLANT)

AND

NATIONAL VETERINARY RESEARCH INSTITUTE, VOM
GOVERNING COUNCIL NVRI, VOM

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Pleadings – Effect of pleadings on parties

Whether parties are bound by their pleadings; effect of facts not pleaded

“…As stated above, the first and second grounds of appeal of the Appellant raised questions touching on fundamental rights against the decision of the lower Court and as such can be filed as of right under the provisions of Section 243 (2) of the 1999 Constitution. They thus do not come within the purview of the preliminary objection of the Respondents. However, the question must still be asked whether, in the circumstances of this case, the complaint in the second ground of appeal is one that can be appropriately raised in this appeal. This is because the question of whether the Senior Staff Disciplinary Committee of the first Respondent, and before which the Appellant was invited to appear, was properly composed as to ensure its impartiality and fairness was not one of the allegations of breach of fair hearing pleaded and led in evidence by the Appellant. It was an issue that arose during the cross examination of the second and third respondents’ witnesses – this was when Counsel to the Appellant elicited responses suggesting that the person who accused the Appellant of insubordination was a member of the Senior Staff Disciplinary Committee that deliberated on her dismissal. ?Now, it is a firmly established principle of litigation that parties are bound by their pleadings and any fact that emerges from matters that are not pleaded go to no issue and should be discountenanced – Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1. Thus, it has been held that evidence of un-pleaded facts elicited during cross-examination is of no use – Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Olora Vs Adegbite (2012) LPELR 7937(CA), Diamond Bank Plc Vs Monanu (2012) LPELR 19955(CA). Where an adversary desires to make use of evidence extracted under cross-examination, he must amend his pleadings to plead the facts – Essien Vs Effanga (2012) LPELR 8495(CA), Dalyop Vs Madalla (2017) LPELR 43349(CA). The Appellant did not amend her point of claim or her reply to the statement of defence to raise the issue of the impartiality of the Committee.

It is correct that the Counsel to the Appellant raised and argued the point in his final written address, but it is settled law that parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does not substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC). Similarly, the trial Courts and the appellate Courts are bound by the pleadings of the parties and a trial Court should not consider an issue not raised by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388. The lower Court did not make any finding on the point in the judgment and it is inappropriate for this Court to allow the Appellant raise the issue in this appeal. The second ground of appeal of the Appellant is thus also incompetent in this appeal and it is hereby struck out.”Per ABIRU, J.C.A. – read in context

B. APPEAL
2. Leave to Appeal – Conditions for seeking an appeal against decisions of the National Industrial Court

When is leave required to appeal against the decision of the National Industrial Court; effect of failure to seek same

“Now, civil appeals from the National Industrial Court are governed by the provisions of Sections 243 (2) and 243 (3) of the 1999 Constitution (as amended). The sections read:
“An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on 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.”
“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 present position of the law on the interpretation of these provisions is that all civil decisions of the National Industrial Court are appealable to the Court of Appeal and that while appeals on questions touching on fundamental rights against the decisions of the Court are as a matter of right, appeals on all other grounds against the decision must be with the leave of the Court of Appeal – Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24, Cocacola (Nig) Ltd Vs Akinsanya (2017) 17 NWLR (Pt 1593) 74, First Bank of Nigeria Plc Vs Agbakwuru (2018) LPELR 43639(CA), Babalola Vs Attorney General, Federation (2018) LPELR 43808(CA).
The notice of appeal is the ‘spinal cord’ of an appeal and it contains the grievances of an aggrieved party against a decision taken by an inferior Court or tribunal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1.
This present appeal was commenced by the notice of appeal of the Appellant filed on the 13th of January, 2017. The Appellant did not seek for or obtain the leave of Court to file the notice of appeal; she filed the appeal as of right. Thus, the question is whether the grounds in the notice of appeal raised issues touching on fundamental rights against the decision of the lower Court.
It is settled law that in ascertaining the complaint in a ground of appeal, the ground of appeal as formulated and the particulars thereto are to be read and construed together – Odukwe Vs Achebe (2008) 1 NWLR (Pt 1067) 40, Chidi Vs Consolidated Hallmark Insurance Plc (2018) LPELR 44384(CA). The notice of appeal of the Appellant contained three grounds of appeal. It is pertinent to reproduce the grounds of appeal with their particulars.

“Ground One

The learned trial Judge erred in law and misdirected itself when it held that:

‘In the instant case, I am of the opinion that the Claimant had ample opportunities to defend herself against the alleged offence of absenteeism but neglected the choice for reasons best known to her’
Particulars of Error and Misdirection

a. By the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the civil rights and obligations of a person is called for determination, such a person is 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 and impartiality.
b. The above constitutional provision requires that ample time and opportunity must be given to a party to prepare for his case after he has been adequately informed about the allegations leveled against him.
c. By Exhibits 1AF 1 and 2, the query letter and the letters of invitation to the Claimant by the Senior Staff Disciplinary Committee (SSDC) were never served on the Claimant.
?d. By the endorsement on the said Exhibit 1AF 1 and 2, the letter was only received by the Senior Staff Disciplinary Committee on 08 Jan 2008 after the said Committee had concluded its sittings and recommended the dismissal of the Appellant on the 7th of December, 2007.
e. The Senior Staff Disciplinary Committee without receiving any response as to the status of the invitation sent to the Appellant through Mr. Faramade concluded without proof that the Appellant refused to honour its invitation and thereafter recommended her dismissal.
Ground Two

The learned trial Judge erred in law and misdirected itself when it held that:

‘Further, the addition in her case of the offence of insubordination can equally be said to have been worsened because of the same attitude. A general denial in the Court of not banging the door and walking out of the office of the superior cannot be substantiated in the open Court alone having thrown out a better opportunity to defend herself before the Disciplinary Committee (no matter the composition and whether if insubordination formed part of the offences or not).’
Particulars of Error and Misdirection

?a. By the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the civil rights and obligations of a person is called for determination, such a person is 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 and impartiality.
b. The above constitutional provision requires the strict observance of the twin pillars of Natural Justice: audi altarem partem (hear both sides) and nemo judex in causa sua (no man should be a judge in his own case).
c. From the letter of dismissal (Exhibit JNZ 1), the Appellant was dismissed for alleged offences of absenteeism and insubordination against Mr. Zinkat, a superior officer.
d. The report of the Senior Staff Disciplinary Committee (Exhibit PM 3a-d) Mr. Zinkat who leveled allegation of insubordination against the Appellant and signed the purported letter of dismissal was a member of the Senior Staff Disciplinary Committee that sat and recommended the dismissal of the Appellant.

Ground Three

The learned trial Judge erred in law when it held that: ‘I am of the conviction that the Respondents have substantially followed the rules and are covered by Section 168 (1) & (2) of the Evidence Act, 2011 as amended.’
Particulars of Error

a. The procedure to be followed in the dismissal of a Public Servant as laid down by the Public Service Rules, 2008 and the Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria are to ensure that the Public Servant’s Right of fair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
b. The employment of the Appellant is governed by the Public Service Rules, 2008 and the Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria.
c. By the Public Service Rules 2008, the power of dismissal of an officer in the Appellant’s cadre exclusively within the powers of the Federal Civil Service Commission and such power cannot be delegated. d. The Appellant’s letter of dismissal never emanated from the Federal Civil Service Commission but from the National Veterinary Research Institute, Vom, Plateau State and signed by Mr. J. N. Zinkat, Head of Administration, for the Executive Director.

e. The conditions of service for Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria which governs the dismissal of an officer in the Appellant’s cadre, was equally not followed in the purported dismissal of the Appellant.”
?A close scrutiny of the three grounds of appeal shows that while the first and second grounds of appeal may pass as having raised questions touching on fundamental rights against the decision of the lower Court, the third ground of appeal did not raise any such question. The complaint in the third ground of appeal was against the finding of the lower Court that the Respondents complied with the terms and conditions of the employment of the Appellant in dismissing her. The finding has nothing to do with any question of fundamental right – issue of failure to follow laid down procedure for dismissal of an employee is an allegation of breach of contract of employment, and not one of breach of right of fair hearing. The attempt of Counsel to the Appellant to introduce the concept of fair hearing into the finding was merely to disguise it as an issue of fundamental rights. This Court has had cause to warn litigants and their Counsel against such attempts at disguising grounds of appeal in appeals against the decisions of the National Industrial Court. In Lagos Sheraton Hotel & Towers Vs Hotel and Personal Services Senior Staff Association (2014) 14 NWLR (Pt 1426) 45, the Court stated thus:

“Litigants who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope should be advised not to underestimate the sharp sense of perception and wisdom of the appellate Courts to sift the wheat from the chaff.” See also the cases of Governing Board of Rugi Poly, Ondo State Vs Ola (2016) 16 NWLR (Pt 1537) 1 and Helios Towers Nigeria Ltd Vs Adighije (2017) LPELR 42707(CA). The complaint contained in the third ground of appeal is not one that the Appellant could raise as of right and without having first sought for and obtained the leave of this Court. The third ground of appeal is thus incompetent.”Per ABIRU, J.C.Aread in context

3. Fresh Points on Appeal – Conditions precedent to raising a fresh issue on appeal

Whether leave of Court must first be sought and obtained before fresh point can be raised on appeal; effect of failure thereof

“…the complaint in the third ground of appeal is a fresh issue and it is elementary that fresh issues can only be raised on appeal with the leave of Court -Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1. The Appellant did not obtain leave to raise the fresh issue. The complaint in the third ground of appeal is thus again incompetent.”Per ABIRU, J.C.A. read in context

4. Issues for Determination – Effect of issues distilled from incompetent grounds or from a combination of competent and incompetent grounds of appeal

“The second issue for determination was formulated from the third ground of appeal which this Court had found to be incompetent and had struck out. As stated earlier, failure to follow laid down procedure for dismissal of an employee is an issue of breach of contract of employment and not one of fair hearing. The second issue for determination, having been formulated from an incompetent ground of appeal, is incompetent – Amadi Vs Orisakwe (1997) 7 NWLR (Pt 511) 161, Fagunwa Vs Adibi (2004) 7 SCNJ 322. The second issue for determination and the entire arguments canvassed thereon are hereby struck out – Agbaka Vs Amadi (1998) 11 NWLR (Pt 572) 16, Anagwu Vs Independent National Electoral Commission (2010) LPELR 9127(CA).

The first issue for determination was formulated from both the first and second grounds of appeal and the complaints in the two grounds of appeal were argued together. This Court has found that the second ground of appeal is incompetent. The law is that where an issue for determination is formulated from both a competent ground of appeal and an incompetent ground of appeal and argued together, the issue for determination and the arguments canvassed thereon would be struck out as the Court is not invested with the duty of sifting the arguments so proffered and distinguishing the one related to the competent ground of appeal from those related to the incompetent ground of appeal – Korede Vs Adedokun (2001) 15 NWLR (Pt 736) 483, Kadzi International Ltd Vs Kano Tannery Co Ltd (2004) 4 NWLR (Pt 864) 545, Federal Housing Authority Vs Odusanwo (2007) 9 NWLR (Pt 1039) 360. The first issue for determination and the arguments canvassed there under are also hereby struck out.”Per ABIRU, J.C.A. read in context

5. Unappealed Findings of Court – Effect of unappealed decisions of court

“It is settled law that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and it is binding on and conclusive between the parties. It cannot be re-examined by this Court – Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor of Ekiti State Vs Olayemi (2016) 4 NWLR (Pt 1501) 1, Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1528) 32 and Mancha Vs Emukowate (2017) LPELR 43113(CA).”Per ABIRU, J.C.A. read in context

C. CONSTITUTIONAL LAW
6. Breach of Right to Fair Hearing – Obligations of a party alleging breach of right to fair hearing

Duty of a party alleging breach of right to fair hearing

“…it is trite law that a party alleging that he was denied fair hearing must plead the specific acts
of such denial – Ejeka Vs The State (2003) 7 NWLR (Pt 819) 408, Olatunbosun Vs Annenih (2008) LPELR 8582(CA).”Per ABIRU, J. .A. read in context

7. Right to Fair Hearing –

Whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing

“Now, it is not in doubt that an administrative panel, such as the Senior Staff Disciplinary Committee, is required by law to, in the discharge of its duty, observe the principles of fair hearing – Hart Vs Military Governor, Rivers State (197 ) 11 SC, 211, Falomo Vs Lagos State Public Service Commission (1977) All NLR 102, Gyang Vs Commissioner of Police (2014) 3 NWLR (Pt 139 ) 47.
?The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court or tribunal to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court or tribunal to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court or tribunal to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court or tribunal to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45. The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the hearing – Action Congress of Nigeria Vs Lamido (2012) 8 NWLR (Pt 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14 NWLR (Pt 1321) 488.

?It is clear from the above stated unchallenged findings of fact of the lower Court that the Respondents did all that was reasonably expected of them to bring to the attention of the Appellant the allegations against her and that her matter was before the Senior Staff Disciplinary Committee and that she was required to attend before the Committee to defend the allegations against her. The Appellant voluntarily and bluntly refused to know the allegations against her and to attend before the Senior Staff Disciplinary Committee to defend herself. This Court must say that it is bemused at the complaint of lack of fair hearing chanted by the Appellant in the lower Court. What did she expect the Respondents to do when she absented herself from work for over two years without permission and without any explanation and then refused to collect letters of query and of invitation to her to appear before the disciplinary committee to explain her actions? Folded their arms and waited for her, Her Majesty, until she had

their time and descended from her high throne to answer them? Even if the first Respondent was owned by the father of the Appellant, that will be asking for too much.
The behavior of the Appellant, as found by the lower Court, was totally irresponsible and highly condemnable. The amazing thing is that she had the temerity, after exhibiting such behavior, to complain of lack of fair hearing. The doctrine of fair hearing is not a “one way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court or the relevant administrative panel. In Okocha Vs Herwa Ltd (2000) 15 NWLR (Pt 690) 249 at 258 G-H, Oguntade, JCA, (as he then was) made the point thus:

“It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed.” The point was re-echoed by Tobi, JSC, in Newswatch Communication Ltd Vs Atta (2006) FWLR (Pt 318) 580 at 600-601 thus:
“Counsel, quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of a case before the Court. Some resort to it as a magic wand that cures all ills of the litigation. A good number of Counsel resort to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both appellant and respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. This will be injustice.”

?A party who voluntarily makes himself unavailable and stays away from attending before an administrative panel or Court after all reasonable efforts have been made to get him to attend before the panel, cannot turn round to assert lack of fair hearing – Ezechukwu Vs Onwuka (2016) LPELR 26055(SC), Eze Vs Federal Republic of Nigeria (2017) LPELR 42097(SC), Darma Vs Eco Bank Plc (2017) LPELR 41663(SC).

The complaint of the Appellant of lack of fair hearing in the circumstances of this case was downright frivolous and totally misconceived. The finding of the lower Court that Respondents did all that was reasonable to accord the Appellant fair hearing cannot be faulted. This appeal against that decision of the lower Court lacks merit and it is hereby dismissed.”Per ABIRU, J.C.Aread in context


LEAD JUDGMENT DELIVERED BY ABIRU, J.C.A.


This appeal is against the judgment of the National Industrial Court sitting in its Jos Judicial Division and delivered by H o n o r a b l e J u s t i c e R . H . G w a n d u i n S u i t N o NICN/JOS/50/2013 on the 15th of December, 2016. The Appellant was the claimant in the lower Court and her claims against the Respondents, as defendants, were for:

i. A declaration that the unwanted stoppage of her salary since October 2007 was unconstitutional and a flagrant violation of her as a public servant.

ii. A declaration that her purported dismissal from the service of the first Respondent by the Respondents without due process or fair hearing was ultra vires, null, void and of no effect whatsoever and also constituted a flagrant breach of her fundamental rights and that consequently, she is still in the employment of the first Respondent.

iii. A declaration that her purported dismissal by Respondents without compliance with the provisions of the Public Service Rules and/or the Conditions of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions, both of the Federal Republic of Nigeria was wrongful, unconstitutional, null, void and of no effect whatsoever.

iv. A declaration that with the coming into effect on the 1st day of January, 2004 of the Conditions of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria, her employment was no longer regulated by the Public Service Rules of Nigeria, but by the new Conditions of Service.

v. A declaration that her employment as a public servant was not only permanent and pensionable, but cannot be determined without due process of law prior to her attaining a retirement and pensionable age.

vi. An order directing the Respondents to forthwith reinstate her to her employment on a position/rank equivalent to that occupied by her colleagues of the same status, years in service, qualifications and grade as at the date of judgment.

vii. An order directing the Respondents to pay to her all her salaries, benefits, entitlements, increments and allowances at the rate and sums accrued and due to her and which have been enjoyed by her colleagues of equivalent rank, years of service, qualification and status from the date of stoppage of same by the Respondents up until the date of judgment.

viii. The sum of N1 Million as damages for wrongful dismissal.
ix. An order directing the Respondents to her costs of this action including legal fees paid to her Solicitors in the sum of N1.5 Million or any further sums that may accrue from the commencement of this suit until final judgment.

The Appellant was employed by the first Respondent as a Clerical Assistant in 1982 and she rose through the ranks to the position of Senior Executive Officer (Accounts) as at February, 2007 when she was posted to the Ibadan Outstation of the first Respondent and during the course of her employment, she served as the Treasurer of the NVRI Staff Co-operative Thrift and Credit Society between 2001 and 2007. It was her case that in June 2007 she received a letter of invitation requesting her to come to headquarters of the first Respondent in Vom and offer explanations on the report of the audit carried out into the activities of the NVRI Staff Co-operative Thrift and Credit Society during her tenure as Treasurer and that she obtained permission from her superiors at the Ibadan Outstation and proceeded to Vom to honor the invitation. It was her case that while she was in Vom, attending to the audit issues, the Respondents unilaterally stopped her salaries and emoluments with effect from October 2007 without any explanations and that this was contrary to the terms of her conditions of service and that all her attempts, including letters of complaint written to the Chairman of the second Respondent and officers of the overseeing Ministry, did not bring her any succor.

It was the case of the Appellant that while still seeking an amicable resolution of the issues regarding the stoppage of her salaries, she received a letter addressed to her by the Respondents and dated the 2nd of September, 2009 dismissing her from the employment of first Respondent. It was her case that the entire actions of the Respondents were wrongful, ultra vires and in flagrant breach of terms of her conditions of service as the appropriate disciplinary procedural steps were not followed before her dismissal and that she would contend that her appropriate terms of services was the Conditions of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria which came into effect in January, 2004, not the Public Service Rules of Nigeria relied upon by the Respondents in dismissing her. It was her case that the actions of the Respondents were in bad faith and were done in flagrant breach of her right to fair hearing as she was not given an opportunity to defend herself over the allegations against her and that she was compelled to seek the assistance of her Solicitors to redeem her rights and her Solicitors charged her the sum of N1.5 Million and out of which she made N800,000.00 as part payment.

The Respondents admitted that the Appellant was employed by the first Respondent as a Clerical Assistant in 1982 and that she rose to the position of Senior Executive Officer (Accounts) as at February, 2007 and was posted to their Ibadan Outstation and that during the course of her employment, the Appellant served as the Treasurer of the NVRI Staff Co-operative Thrift and Credit Society between 2001 and 2007. The Respondents further admitted that the Appellant was sent a letter of invitation requesting her to come to the headquarters in Vom to offer explanations on the report of the audit carried out into the activities of the NVRI Staff Co-operative Thrift and Credit Society during her tenure as Treasurer and that she was released by her superior officer to attend to the invitation. It was the case of the Respondents that the audit exercise for which the Appellant was invited was completed before the end of August 2007 and she was expected to return to her station in Ibadan before the end of August 2007, but that the Appellant never returned to her station nor did she make herself available at the headquarters in Vom.

It was the case of the Respondents that letters of query were written and addressed to the Appellant through the Ibadan office as well as letters of invitation to her to attend before the Senior Staff Disciplinary Committee to answer the allegations absenteeism from duty and gross insubordination leveled against her but she refused to show up to receive them and that when she was eventually showed up at the Ibadan Office on the 30th of October, 2007, she bluntly refused to collect the letters. It was their case that again when the Appellant was sighted at the headquarters in Vom, the Head of Administration called her into his office and brought the letters of query and invitations to her attention and made to serve them on her, but that the Appellant again refused to collect the letters and walked out of the office and slammed the door on the Head of Administration in the presence of junior staff members. It was their case that they stopped the salaries of the Appellant with effect from October, 2007 because of her failure to report for duty, which is a serious offence under her terms of employment.

It was the case of the Respondents that the Appellant was also reached on the telephone and requested to attend before the Senior Staff Disciplinary Committee to answer the allegations against her and she refused to turn up thereat and that the formal complaints against the Appellant were contained in the letters of query and letters of invitation to appear which she refused to collect or acknowledge. It was their case that the Senior Staff Disciplinary Committee submitted a report at the conclusions of the deliberations and which report was further considered by an Internal Management Committee of the Respondents on the 13th of February, 2008 and that the report of the Disciplinary Committee and the recommendations and minutes of the meeting of the Internal Management Committee as well as the allegations against the Appellant were forwarded to the Minister of the Federal Ministry of Agriculture and Water Resources, their parent Ministry. It was their case that the Honorable Minister considered all the processes and documents on the matter and recommended the dismissal of the Appellant vide a letter dated the 24th of July, 2009 and consequent on which a letter of dismissal was addressed to the Appellant. It was their case that they took steps within reasonable means to and did comply with the terms and conditions of service of the Appellant and that it was rather the Appellant that breached the terms and conditions of her employment and that the Appellant was given more than a ample opportunity to defend herself but she woefully failed to take advantage of them.

The matter proceeded to trial and the lower Court heard Counsel to the parties on their final written addresses and at the conclusion of which it entered judgment granting the first prayer of the Appellant on suspension of her salary, and it ordered the Respondents to pay her salaries and entitlements from October 2007 until her dismissal in September 2009, and it refused the other claims sought. The Appellant was dissatisfied with the judgment and she caused her Counsel to file a notice of appeal containing three grounds of appeal and filed on the 13th of January, 2017 against it.

In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 19th of April, 2017 on the 20th of April, 2017. Counsel to the Respondents filed a brief of arguments dated the 26th of October, 2017 on the 27th of October, 2017 and this Court deemed the brief of arguments as properly filed on the 16th of January, 2018, and the Respondents raised and argued a notice of preliminary objection in the brief of arguments. Counsel to the Appellant filed a reply brief of arguments dated the 12th of December, 2017 and the reply brief of arguments was deemed properly filed by this Court on the 16th of January, 2018. At the hearing of the appeal, Counsel to the parties argued the preliminary objection and relied on and adopted the arguments contained in their respective briefs of arguments.

The case of the Respondent on the notice of preliminary objection is that the suit of the Appellant before the lower Court was for wrongful dismissal and that the dismissal of the Appellant was found by the lower Court to be proper and that this appeal is against that finding of the lower Court and that by the provisions of Section 243(3) of the Constitution of the Federal Republic of Nigeria (as amended) the appeal could only have been filed with the leave of Court and which leave was not obtained by the Appellant. Counsel stated that the framing of the grounds of appeal to suggest that matter in the lower Court was a fundamental rights matter did not change the nature of the appeal from being against the finding of the lower Court that the dismissal of the Appellant by the Respondents was lawful. Counsel stated that where leave is required for the filing of an appeal and leave is not obtained, the appeal as filed is incompetent and he referred to the case of Idris Vs Agumagu (2015) 13 NWLR (Pt 1477) 441. Counsel urged the Court to uphold the notice of preliminary objection and to strike out the appeal.

In response, Counsel to the Appellant stated that part of the complaints of the Appellant before the lower Court was that her dismissal was done without the Respondents giving her a fair hearing and was thus in breach of her fundamental rights and that, as can be seen from the grounds of appeal, it was on this complaint that the Appellant hinged the present appeal. Counsel stated that by the provisions of Section 243 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) appeals from the decision of the lower Court lie as of right to this Court on questions of fundamental rights as contained in Chapter IV of the Constitution as it relates to matters over which the lower Court has jurisdiction and he referred to the case of Skye Bank Plc Vs Iwu (2017) 6 SC (Pt 1) 1. Counsel stated that a complaint against a breach of fair hearing is a matter of fundamental rights within the provisions of Chapter IV of the Constitution and that the complaints of the Appellant in this appeal are on fair hearing and she thus did not need leave of Court to appeal. Counsel urged the Court to dismiss the notice of preliminary objection.

Now, civil appeals from the National Industrial Court are governed by the provisions of Sections 243 (2) and 243 (3) of the 1999 Constitution (as amended). The sections read:

“An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on 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.”

“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 present position of the law on the interpretation of these provisions is that all civil decisions of the National Industrial Court are appealable to the Court of Appeal and that while appeals on questions touching on fundamental rights against the decisions of the Court are as a matter of right, appeals on all other grounds against the decision must be with the leave of the Court of Appeal – Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24, Cocacola (Nig) Ltd Vs Akinsanya (2017) 17 NWLR (Pt 1593) 74, First Bank of Nigeria Plc Vs Agbakwuru (2018) LPELR 43639(CA), Babalola Vs Attorney General, Federation (2018) LPELR 43808(CA).

The notice of appeal is the ‘spinal cord’ of an appeal and it contains the grievances of an aggrieved party against a decision taken by an inferior Court or tribunal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1.

This present appeal was commenced by the notice of appeal of the Appellant filed on the 13th of January, 2017. The Appellant did not seek for or obtain the leave of Court to file the notice of appeal; she filed the appeal as of right. Thus, the question is whether the grounds in the notice of appeal raised issues touching on fundamental rights against the decision of the lower Court.

It is settled law that in ascertaining the complaint in a ground of appeal, the ground of appeal as formulated and the particulars thereto are to be read and construed together – Odukwe Vs Achebe (200 ) 1 NWLR (Pt 1067) 40, Chidi Vs Consolidated Hallmark Insurance Plc (2018) LPELR 44384(CA). The notice of appeal of the Appellant contained three grounds of appeal. It is pertinent to reproduce the grounds of appeal with their particulars. “Ground One

The learned trial Judge erred in law and misdirected itself when it held that:

‘In the instant case, I am of the opinion that the Claimant had ample opportunities to defend herself against the alleged offence of absenteeism but neglected the choice for reasons best known to her’ Particulars of Error and Misdirection

a. By the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the civil rights and obligations of a person is called for determination, such a person is 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 and impartiality.

b. The above constitutional provision requires that ample time and opportunity must be given to a party to prepare for his case after he has been adequately informed about the allegations leveled against him.

c. By Exhibits 1AF 1 and 2, the query letter and the letters of invitation to the Claimant by the Senior Staff Disciplinary Committee (SSDC) were never served on the Claimant.

d. By the endorsement on the said Exhibit 1AF 1 and 2, the letter was only received by the Senior Staff Disciplinary Committee on 08 Jan 2008 after the said Committee had concluded its sittings and recommended the dismissal of the Appellant on the 7th of December, 2007.

e. The Senior Staff Disciplinary Committee without receiving any response as to the status of the invitation sent to the Appellant through Mr. Faramade concluded without proof that the Appellant refused to honour its invitation and thereafter recommended her dismissal.

Ground Two

The learned trial Judge erred in law and misdirected itself when it held that:

‘Further, the addition in her case of the offence of insubordination can equally be said to have been worsened because of the same attitude. A general denial in the Court of not banging the door and walking out of the office of the superior cannot be substantiated in the open Court alone having thrown out a better opportunity to defend herself before the Disciplinary Committee (no matter the composition and whether if insubordination formed part of the offences or not).’

Particulars of Error and Misdirection

a. By the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where the civil rights and obligations of a person is called for determination, such a person is 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 and impartiality.

b. The above constitutional provision requires the strict observance of the twin pillars of Natural Justice: audi altarem partem (hear both sides) and nemo judex in causa sua (no man should be a judge in his own case).

c. From the letter of dismissal (Exhibit JNZ 1), the Appellant was dismissed for alleged offences of absenteeism and insubordination against Mr. Zinkat, a superior officer.

d. The report of the Senior Staff Disciplinary Committee (Exhibit PM 3a-d) Mr. Zinkat who leveled allegation of insubordination against the Appellant and signed the purported letter of dismissal was a member of the Senior Staff Disciplinary Committee that sat and recommended the dismissal of the Appellant.

Ground Three

The learned trial Judge erred in law when it held that:

‘I am of the conviction that the Respondents have substantially followed the rules and are covered by Section 168 (1) & (2) of the Evidence Act, 2011 as amended.’

Particulars of Error

a. The procedure to be followed in the dismissal of a Public Servant as laid down by the Public Service Rules, 2008 and the Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria are to ensure that the Public Servant’s Right of fair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

b. The employment of the Appellant is governed by the Public Service Rules, 2008 and the Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria.

c. By the Public Service Rules 2008, the power of dismissal of an officer in the Appellant’s cadre exclusively within the powers of the Federal Civil Service Commission and such power cannot be delegated.

d. The Appellant’s letter of dismissal never emanated from the Federal Civil Service Commission but from the National Veterinary Research Institute, Vom, Plateau State and signed by Mr. J. N. Zinkat, Head of Administration, for the Executive Director.

e. The conditions of service for Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria which governs the dismissal of an officer in the Appellant’s cadre, was equally not followed in the purported dismissal of the Appellant.”

A close scrutiny of the three grounds of appeal shows that while the first and second grounds of appeal may pass as having raised questions touching on fundamental rights against the decision of the lower Court, the third ground of appeal did not raise any such question. The complaint in the third ground of appeal was against the finding of the lower Court that the Respondents complied with the terms and conditions of the employment of the Appellant in dismissing her. The finding has nothing to do with any question of fundamental right – issue of failure to follow laid down procedure for dismissal of an employee is an allegation of breach of contract of employment, and not one of breach of right of fair hearing. The attempt of Counsel to the Appellant to introduce the concept of fair hearing into the finding was merely to disguise it as an issue of fundamental rights. This Court has had cause to warn litigants and their Counsel against such attempts at disguising grounds of appeal in appeals against the decisions of the National Industrial Court. In Lagos Sheraton Hotel & Towers Vs Hotel and Personal Services Senior Staff Association (2014) 14 NWLR (Pt 1426) 45, the Court stated thus:

“Litigants who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope should be advised not to underestimate the sharp sense of perception and wisdom of the appellate Courts to sift the wheat from the chaff.”

See also the cases ofGoverning Board of Rugi Poly, Ondo State Vs Ola (2016) 16 NWLR (Pt 1537) 1 and Helios Towers Nigeria Ltd Vs Adighije (2017) LPELR 42707(CA). The complaint contained in the third ground of appeal is not one that the Appellant could raise as of right and without having first sought for and obtained the leave of this Court. The third ground of appeal is thus incompetent.

Additionally, reading through the records of appeal, particularly the pleadings of the parties, the written addresses of Counsel to the parties and the judgment of the lower Court, the complaint of the Appellant in the third ground of appeal, that the Respondents breached her conditions of service by the first Respondent issuing her letter of dismissal, instead of the Federal Civil Service Commission, was not raised in the lower Court. The Appellant pleaded the alleged incidences of non-compliance with the Public Service Rules, 2008 and the Federal Research Institutes, Colleges of Agriculture and Allied Institutions of the Federal Republic of Nigeria, against the Respondents in paragraph 16 of her amended points of claim filed in the lower Court, and this complaint was not one of them. And it is trite law that a party alleging that he was denied fair hearing must plead the specific acts of such denial – Ejeka Vs The State (2003) 7 NWLR (Pt 819) 408, Olatunbosun Vs Annenih (2008) LPELR 8582(CA).

Further, the issue was not raised by the Counsel to the Appellant in his final address and neither was it pronounced upon by the lower Court. The issue that was raised by Counsel and pronounced upon by the lower Court was on whether it was Governing Board of the first Respondent, and not the Management Board, that had the exclusive power to dismiss the Appellant. Nothing was said about the Federal Civil Service Commission. Thus, the complaint in the third ground of appeal is a fresh issue and it is elementary that fresh issues can only be raised on appeal with the leave of Court –Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1. The Appellant did not obtain leave to raise the fresh issue. The complaint in the third ground of appeal is thus again incompetent.

The notice of preliminary objection of the Respondents succeeds in part. The third ground of appeal is hereby struck out.

This is not the end of the problems with the grounds of appeal of the Appellant. As stated above, the first and second grounds of appeal of the Appellant raised questions touching on fundamental rights against the decision of the lower Court and as such can be filed as of right under the provisions of Section 243 (2) of the 1999 Constitution. They thus do not come within the purview of the preliminary objection of the Respondents. However, the question must still be asked whether, in the circumstances of this case, the complaint in the second ground of appeal is one that can be appropriately raised in this appeal. This is because the question of whether the Senior Staff Disciplinary Committee of the first Respondent, and before which the Appellant was invited to appear, was properly composed as to ensure its impartiality and fairness was not one of the allegations of breach of fair hearing pleaded and led in evidence by the Appellant. It was an issue that arose during the cross examination of the second and third respondents’ witnesses – this was when Counsel to the Appellant elicited responses suggesting that the person who accused the Appellant of insubordination was a member of the Senior Staff Disciplinary Committee that deliberated on her dismissal.

Now, it is a firmly established principle of litigation that parties are bound by their pleadings and any fact that emerges from matters that are not pleaded go to no issue and should be discountenanced – Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1. Thus, it has been held that evidence of un-pleaded facts elicited during cross-examination is of no use – Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Olora Vs Adegbite (2012) LPELR 7937(CA), Diamond Bank Plc Vs Monanu (2012) LPELR 19955(CA). Where an adversary desires to make use of evidence extracted under cross-examination, he must amend his pleadings to plead the facts – Essien Vs ffanga (2012) LPELR 8495(CA), Dalyop Vs Madalla (2017) LPELR 43349(CA). The Appellant did not amend her point of claim or her reply to the statement of defence to raise the issue of the impartiality of the Committee.
It is correct that the Counsel to the Appellant raised and argued the point in his final written address, but it is settled law that parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does not substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC). Similarly, the trial Courts and the appellate Courts are bound by the pleadings of the parties and a trial Court should not consider an issue not raised by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388. The lower Court did not make any finding on the point in the judgment and it is inappropriate for this Court to allow the Appellant raise the issue in this appeal. The second ground of appeal of the Appellant is thus also incompetent in this appeal and it is hereby struck out.

This leaves the first ground of appeal as the only viable ground of appeal. Counsel to the Appellant formulated two issues for determination in the appeal. These are:

i. Whether from the totality of the evidence before the lower Court, the Appellant was not denied her right to fair hearing by the Senior Staff Disciplinary Committee.

ii. Whether the failure of the Respondents to follow the laid down procedure for the dismissal of a senior staff in the Appellant’s cadre does not amount to a denial of the Appellant’s right of fair hearing.

The second issue for determination was formulated from the third ground of appeal which this Court had found to be incompetent and had struck out. As stated earlier, failure to follow laid down procedure for dismissal of an employee is an issue of breach of contract of employment and not one of fair hearing. The second issue for determination, having been formulated from an incompetent ground of appeal, is incompetent – Amadi Vs Orisakwe (1997) 7 NWLR (Pt 511) 161, Fagunwa Vs Adibi (2004) 7 SCNJ 322. The second issue for determination and the entire arguments canvassed thereon are hereby struck out – Agbaka Vs Amadi (1998) 11 NWLR (Pt 572) 16, Anagwu Vs Independent National Electoral Commission (2010) LPELR 9127(CA).

The first issue for determination was formulated from both the first and second grounds of appeal and the complaints in the two grounds of appeal were argued together. This Court has found that the second ground of appeal is incompetent. The law is that where an issue for determination is formulated from both a competent ground of appeal and an incompetent ground of appeal and argued together, the issue for determination and the arguments canvassed thereon would be struck out as the Court is not invested with the duty of sifting the arguments so proffered and distinguishing the one related to the competent ground of appeal from those related to the incompetent ground of appeal – Korede Vs Adedokun (2001) 15 NWLR (Pt 736) 483, Kadzi International Ltd Vs Kano Tannery Co Ltd (2004) 4 NWLR (Pt 864) 545, Federal Housing Authority Vs Odusanwo (2007) 9 NWLR (Pt 1039) 360.

The first issue for determination and the arguments canvassed there under are also hereby struck out.

The core complaint that the Appellant took before the lower Court was that her dismissal by the Respondents was in flagrant breach of the terms and conditions of her service as the appropriate disciplinary procedural steps were not followed before her dismissal. The Appellant pleaded the specific acts of breach as (i) no report of any alleged misconduct was made against her; (ii) no query was issued and served on her; (iii) no notice of allegation was served on her; (iv) no formal charge of any specific misconduct was alleged against her and/or served on her; (v) no acknowledgement of any charge was obtained from her; and (vi) no arrangement was made for her to defend herself of any allegation.

The case of the Respondents in response was that the Appellant was working in their Ibadan outstation at the times material to this case and that she abandoned and absented herself from the office from the end August 2007, after answering to audit queries about her tenure as treasurer of the Staff Cooperative Society, without permission or without offering any explanation. It was their case that letters of query were written and addressed to the Appellant through the Ibadan office as well as letters of invitation to her to attend before the Senior Staff Disciplinary Committee to answer the allegations of absenteeism from duty and gross insubordination leveled against her but she refused to show up to receive them and that when she eventually showed up briefly at the Ibadan Office on the 30th of October, 2007, she bluntly refused to collect the letters.

It was the case of the Respondents that again when the Appellant was sighted at their headquarters in Vom, the Head of Administration called her into his office and brought the letters of query and invitations to her attention and made to serve them on her, but that the Appellant again refused to collect the letters and walked out of the office and slammed the door on the Head of Administration in the presence of junior staff members. It was their case that the Appellant was also reached on the telephone and requested to attend before the Senior Staff Disciplinary Committee to answer the allegations against her and she refused to turn up thereat and that the formal complaints against the Appellant were contained in the letters of query and letters of invitation which she refused to collect or acknowledge.

The lower Court found as a fact in the judgment that the Appellant indeed voluntarily absented herself from work from the end of August, 2007 until her dismissal in September 2009. The lower Court found as a fact that letters of query were indeed written and addressed to the Appellant through the Ibadan office as well as letters of invitation to her to attend before the Senior Staff Disciplinary Committee to answer the allegations of absenteeism from duty and gross insubordination leveled against her but that she refused to show up to receive them. The lower Court found as a fact that on the 19th of October, 2007 that the Appellant was sighted at the headquarters of the Respondent in Vom and that the Head of Administration called her into his office and brought the letters of query and invitations to her attention and made to serve them on her, but that the Appellant again refused to collect the letters and walked out of the office and slammed the door on the Head of Administration in the presence of junior staff members. The lower Court found as a fact that when the Appellant showed up briefly at the Ibadan Office on the 30th of October, 2007, she also bluntly refused to collect the letters.

The Appellant did not appeal against these findings of fact made by the lower Court. It is settled law that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and it is binding on and conclusive between the parties. It cannot be re-examined by this Court – Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor of Ekiti State Vs Olayemi (2016) 4 NWLR (Pt 1501) 1, Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1528) 32 and Mancha Vs Emukowate (2017) LPELR 43113(CA).

Now, it is not in doubt that an administrative panel, such as the Senior Staff Disciplinary Committee, is required by law to, in the discharge of its duty, observe the principles of fair hearing – Hart Vs Military Governor, Rivers State (1976) 11 SC, 211, Falomo Vs Lagos State Public Service Commission (1977) All NLR 102, Gyang Vs Commissioner of Police (2014) 3 NWLR (Pt 1395) 547.

The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court or tribunal to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court or tribunal to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court or tribunal to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court or tribunal to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR ( t 1307) 45. The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the hearing – Action Congress of Nigeria Vs Lamido (2012) 8 NWLR (Pt 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14 NWLR (Pt 1321) 488.

It is clear from the above stated unchallenged findings of fact of the lower Court that the Respondents did all that was reasonably expected of them to bring to the attention of the Appellant the allegations against her and that her matter was before the Senior Staff Disciplinary Committee and that she was required to attend before the Committee to defend the allegations against her. The Appellant voluntarily and bluntly refused to know the allegations against her and to attend before the Senior Staff Disciplinary Committee to defend herself. This Court must say that it is bemused at the complaint of lack of fair hearing chanted by the Appellant in the lower Court. What did she expect the Respondents to do when she absented herself from work for over two years without permission and without any explanation and then refused to collect letters of query and of invitation to her to appear before the disciplinary committee to explain her actions? Folded their arms and waited for her, Her Majesty, until she had their time and descended from her high throne to answer them? Even if the first Respondent was owned by the father of the Appellant, that will be asking for too much.

The behavior of the Appellant, as found by the lower Court, was totally irresponsible and highly condemnable. The amazing thing is that she had the temerity, after exhibiting such behavior, to complain of lack of fair hearing. The doctrine of fair hearing is not a “one way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court or the relevant administrative panel. In Okocha Vs Herwa Ltd (2000) 15 NWLR (Pt 690) 249 at 258 G-H, Oguntade, JCA, (as he then was) made the point thus:

“It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”

The point was re-echoed by Tobi, JSC, in Newswatch Communication Ltd Vs Atta (2006) FWLR (Pt 318) 580 at 600-601 thus:

“Counsel, quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of a case before the Court. Some resort to it as a magic wand that cures all ills of the litigation. A good number of Counsel resort to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both appellant and respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. This will be injustice.”

A party who voluntarily makes himself unavailable and stays away from attending before an administrative panel or Court after all reasonable efforts have been made to get him to attend before the panel, cannot turn round to assert lack of fair hearing – Ezechukwu Vs Onwuka (2016)
LPELR 26055(SC), Eze Vs Federal Republic of Nigeria (2017) LPELR 42097(SC), Darma Vs Eco Bank Plc (2017) LPELR 41663(SC).

The complaint of the Appellant of lack of fair hearing in the circumstances of this case was downright frivolous and totally misconceived. The finding of the lower Court that Respondents did all that was reasonable to accord the Appellant fair hearing cannot be faulted. This appeal against that decision of the lower Court lacks merit and it is hereby dismissed.The judgment of the National Industrial Court sitting in its Jos Judicial Division and delivered by H o n o r a b l e J u s t i c e R . H . G w a n d u i n S u i t N o NICN/JOS/50/2013 on the 15th of December, 2016 is hereby affirmed. The Respondents are awarded the cost of this frivolous and vexatious appeal in the sum of N100,000. . These shall be the orders of the Court.

JAURO, J.C.A.

I had the advantage of reading in advance the lead judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I am in complete agreement with the reasoning and conclusion contained therein, to the effect that the appeal is lacking in merit. I join my brother in dismissing the appeal.

ONYEMENAM, J.C.A.

I have had the opportunity of reading in draft copy the leading judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I am in agreement with the reasoning and conclusion reached therein that the appeal lacks merit. I hereby dismiss the appeal and affirm the judgment of the National Industrial Court, Jos Judicial Division delivered on 15 December, 2016 by R.H. Gwandu, J. in Suit No. NICN/JOS/50/2013.

I abide by the order of cost made in the leading judgment.

Appearances:

Simon Mom with him, Emmanuel Hassan For Appellant(s)

M. K. Habila with him, J. Y. Davou F o r Respondent(s)