Alhaji Rasaki Abiola Ekunola V. Central Bank Of Nigeria & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.

The plaintiff (appellant) has been employed by the 1st defendant/respondent in 1965 as a Technician and has risen to become Assistant Director, Building Engineering Services Department by the time of his dismissal in February 2000. He has filed this action against the defendants/respondents in the Federal High Court, Lagos claiming as per the amended statement of claim a number of declaratory and injunctive reliefs. Pleadings have been filed and exchanged between the parties. At the conclusion of evidence at the trial the plaintiff alone has testified in person and has tendered Exhibits ‘A’ to L1′ and the defendants have called two witnesses and have tendered Exhibits ‘M – M3’. The crucial documentary exhibits in this matter inter alia include:

‘(1) Exhibit ‘A’ – Letter of appointment dated 25/5/1965; Exhibit C – Letter of appointment to the post of Assistant Director dated 29/1/99; Exhibit D – Staff manual for Central Bank of Nigeria; Exhibit E – Query letter dated 19/3/99; Exhibit F – Response to the Query dated 23/8/99; Exhibit C – Letter of suspension dated 14/11/99; Exhibit K – Letter of Dismissal from the Bank’s Services dated 1/2/2000.

Exhibit M1 – Main report of the Central disciplinary committee held between 8th and 21st September 1999. Exhibits M-M3 report on Special Investigation for the period of October, 1998 – February 1999. Exhibit M3 – Report of the central Disciplinary Committee dated 14/9/1999.”

The parties have made written submissions as directed by the court. The trial court in its considered judgment has dismissed the plaintiff’s claim in its entirety; in doing so it has struck out the 2nd defendant/respondent in the matter.

Dissatisfied with the judgment the plaintiff has appealed the case to the Court of Appeal Lagos which in its judgment also has dismissed the appeal. Wherefore the instant appeal to this court as per the Amended Notice of Appeal filed on 28/10/2001 of 17 (seventeen) grounds of appeal. The plaintiff and the defendants are in this appeal the appellant and respondents respectively.

In accordance with the Rules of this court the parties have filed and exchanged their respective briefs of argument. The appellant has distilled 11 (eleven) issues for determination by this court as follows: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. They read as follows:

1. Whether the entire judgment is not perverse in law. This issue relates to ground one.
2. Whether the learned justices of the Court of Appeal were right when they affirmed the findings of the trial court and also held that the appellant was given a fair hearing by the 1st respondent who was alleged not to be involved in the disciplinary process. This issue relates to ground two.
3. Whether the learned justices of the Court below were right when they held that the evidence of DW2 debunked appellant’s case and that there was no truth in the appellant’s allegation that 2nd defendant usurped the powers of the 1st Respondent. This issue is relative to ground three.
4. Whether the learned Justices of the court below were right when they held that the 2nd Respondent was properly struck out from the suit. This issue relates to ground four of the Ground of Appeal.
5. Whether the learned Justices of the court below were right when they held that the 2nd respondent did not usurp the powers of the 1st respondent and that the appellant was given a fair hearing. This relates to ground five.
6. Whether the learned Justices of the court below properly appreciated the appellant’s case before affirming the findings of the trial court. This issue relates to ground six of the Ground of Appeal.
7. Whether the learned Justices of the Court below were right on the facts of the case when they held that “The complaint of lack of fair hearing by the trial judge has not been made out” and/or that the learned trial judge did not breach the “principle of fair hearing in not calling upon counsel to address him on the two issues formulated” suo motu. This issue relates to ground seven of the Grounds of Appeal.
8. Whether the learned Justices of the Court below were right when they held that the appellant’s complaint of composition of the Central Disciplinary committee is of no consequence and that the quorum was complete, Constitution of the committee can not be impugned and finally that the composition of the CDC and actions taken by the Director of Personnel are in accordance with Exhibit ‘D’
9. Whether the learned Justices of the Court below were right when they concluded on the basis of Exhibit ‘F’ alone that appellant knew that Exhibit E, G, L1 and J as well as the summoning of the appellant to the IDC emanated from 1st Respondent. This relates to ground ten.
10. Whether the conclusion of the learned Justices of the Court below are supported by the facts and evidence on record. This relates to ground eleven of the Grounds of Appeal.
11. Whether the learned Justices of the Court below were right when they held that the appellant was given every opportunity to exculpate himself from blame but he could not offer any tangible defence. Furthermore, the plaintiff never alleged lack of fair hearing against the Central Disciplinary Committee or/Inter-Departmental Committee set up by the Management of the 1st Defence…” This relates to ground 12 of the Grounds of Appeal.

I do not think that in the event of the far reaching consequences of upholding the respondents’ preliminary objection to the instant sixteen grounds of appeal but ground 7 that it serves any useful purpose to set out the immediate sixteen grounds of appeal in extenso so challenged by the respondents by way of preliminary objection here vis-a-vis the issues raised for determination in the appeal itself; unless and until firstly their respective fates as competent grounds of appeal have been decidedly settled one way or the other as most of them speaking pre-emptorily are bound to fall by the way side upon the backdrops of the frontal objection taken by the respondents for their non-compliance with Section 233(3) of the 1999 Constitution as amended. The provisions of section 233(3) supra require that every ground of appeal not involving questions of pure law shall lie from the decision of the Court of Appeal to this Court not as of right but with leave of court (of either the court below or this court) where the ground of appeal involves questions of mixed law and facts or facts simplicita. See: Ehinlanwo v. Oke & 2 Ors. 6-7 SC (Pt.11) 123. In reply to the preliminary objection the appellant has filed a reply brief which has been deemed so filed and served on 21/1/2013.

The respondents however have before now given a notice of preliminary objection wherefore they have contended that sixteen grounds of appeal out of the seventeen grounds of appeal raised in this appeal (i.e. but ground 7) are incompetent being at best grounds of appeal on mixed law and facts or facts simplicita for which no leave of court has been firstly sought and obtained as prescribed by section 233(3) of the 1999 Constitution as amended. In that vein, simply put, that this court has no jurisdiction to entertain all the grounds of appeal raised in this appeal but ground 7 as contained in the amended Notice of Appeal – in the premises, it is trite law that an appeal will be sustained by one competent ground of law contained in the Notice of Appeal. The respondents have incorporated their preliminary objection against the said sixteen grounds and the arguments thereon in their respondents’ brief of argument adopted at the oral hearing of the appeal. The appellant has responsed to the preliminary objection in the appellant’s reply brief of argument deemed so filed and served on 21/1/2013 and I will grapple with this question anon.

I must observe that based on a plethora of authorities, an appellate court will take a point of law raised by way of preliminary objection as a threshold question provided it will be decisive of the question of competency of the appeal. See: Foko v. Foko (1968) NMLR 441 and the court will rightly strike out any grounds of appeal that is ex facie bad or incompetent. See: Ogbonnaya Wosu v. Reuben Ugwuzor 7 ENLR 47. That said, I now proceed to examine the case for and against the preliminary objection raised in this matter.

The respondents’ case on the preliminary objection is contained in their amended respondents’ brief of argument deemed so properly filed and served on 2/5/2012 and is succinct and it is to the effect that all the grounds of appeal from one to seventeen excepting ground seven are grounds of mixed law and facts or facts, simplicita. They contend that the said grounds have complained in the major of failure of the lower court to properly appraise, or evaluate or assess the evidence on the record leading to the only conclusion in dismissing of the plaintiff’s claim the lower court having failed to do so. Relying on Ogbechie & Anor. v. Onochie & ors. (1986) 2 NWLR (Pt.23) 48 they have proffered that these grounds of appeal having raised questions of mixed law and facts or facts simplicita for which no leave of court has been firstly sought and obtained as prescribed by Section 233(3) supra are incompetent and consequently, that this court has been robed of the power to entertain any of them. They have singled out ground 8 of the pack to specifically argue that the alleged denial of fair hearing before the Disciplinary Committee of the Central Bank of Nigeria coupled with the failure of the court below to evaluate the evidence on the record, which in that regard the appellant has construed as amounting to a denial of fair hearing have stemmed from a total misconception of the purport and import of the principles of fair hearing as contemplated in Section 36(1) of the 1999 Constitution as amended albeit as interpreted as per the decision in the case of Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt.262) 64 and that these surmises will only properly arise where such denial of fair hearing has occurred before a court or tribunal established by law and not before an ordinary, Standing Disciplinary Committee of the central Bank of Nigeria indeed for being an adhoc committee in every respect, not being a court or tribunal established by law. They have conceded that only ground 7 is a competent ground of law complaining of denial of fair hearing by the trial court as affirmed by the lower court.

In the alternative, that is to say, without any prejudice to the foregoing argument, the respondents have raised two issues for determination in the appeal itself in the event of being overruled on the preliminary objection as follows:

Issue No.1

“Whether the Justices of the Court of Appeal were right that the appellant was not denied fair hearing by the approach of the learned trial Judge in formulating issues for determination without calling Counsel to address it.”