Emeka Nwana V Federal Capital Development Authority (2007)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C

This appeal is against the decision of the lower court, Court of Appeal, Kaduna Division) given on 10/01/94 upholding as proper the termination of the appellant’s appointment as Principal Administrative Officer in the employ of the respondent. The appellant was the plaintiff and the respondent, the defendant, in the trial court.

In his claim before the High Court the plaintiff has claimed as follows:

“1. A declaration that his purported termination from the employment of the Federal Capital Development Authority (F.C.D.A.) vide letter reference No. PC/888/132 dated 11th of April, 1989 is null and void and of no effect whatsoever.

2. An order directing the defendant to re-instate the plaintiff to his status as a Principal Technical Officer without prejudice to entitlements and promotions which might have accrued to him during the period of his termination.
3. A declaration that the letter reference No. PC/888/132 dated 11th April, 1989 as far as it purportedly terminates his appointment with retrospective effect is null and void.
4. A declaration that the purported termination of his appointment vide letter reference No. PC/888/132 dated 11th April, 1989, violates his fundamental rights as entrenched in section 33(1) and (4) of the Constitution of the Federal Republic of Nigeria, therefore null and void.”

The lower court in its decision, has held as at page 103 of the record that the trial court is right in refusing to grant any of the reliefs sought before it and therefore right in dismissing the suit in its entirety as having no merit. Before reaching this conclusion on a lone issue raised suo moto in this case by the lower court it has observed at page 93 of the record that there is nothing on the record to show that the exhibits in this matter have been forwarded to it the lower court.

Aggrieved by the decision, the appellant has appealed to this court and has raised six grounds of appeal. On 30/01/2007, at the oral hearing of this appeal before us both sides have adopted and relied on their respective briefs of argument filed on 4/11/03 and 2/12/03 respectively. The appellant on his part in his brief of argument has distilled four issues for determination, which the respondent in its brief of argument has adopted. The four issues are as follows:

“1. Whether it is correct for the Court of Appeal to decide a case which was essentially documentary without seeing the exhibits (relates to ground 1)

2. Whether the Court of Appeal was right to have formulated an issue for determination and base it’s decision on the issue when it does not arise from the grounds of appeal I filed by the appellant (relates to ground 2)
3. Whether the Court of Appeal was right to have speculated on character and content of exhibits which were not placed before it, especially ‘H’ (relates to grounds 3, 4 and 5).
4. Whether the Court of Appeal was right when it held that the appellant’s appointment is not the type that enjoys statutory flavour. (relates to ground 6).”

The facts of this case are not in dispute. It is common ground that until the appellant’s appointment with respondent was terminated he served as Principal Administrative Officer in the employ of the respondent. He, amongst other things, was charged with having absented himself from duty without leave and for putting up fraudulent claims for journeys to and from Enugu on medical appointments. The immediate facts and circumstances of this appeal are that the trial court having failed to forward the exhibits admitted in evidence along with the record that the lower court nonetheless proceeded to determine the appeal on an incomplete record of appeal based on a lone issue it raised suo moto.The appellant arguing issue one in his brief of argument has challenged the lower court for having determined the appeal on an incomplete record, and has therefore, reiterated that its decision has thereby occasioned a miscarriage of justice: See Engineering Enterprise v. Attorney-General of Kaduna State (1987) 2 NWLR (Pt. 57) 381. He also has taken the point that the lower court has acted in error in determining suo moto the sole issue on which it has based its decision without hearing the parties and that the sole issue has no roots in the grounds of appeal filed by the appellant. The appellant has clearly distilled six issues for determination and the respondent has unequivocally adopted them in its brief of argument. See: University of Calabar v. Essien (1996) 12 SCNJ 304 at 326; (1996) 10 NWLR (Pt. 477) 225; Obawol v. Williams (1991) 12 SCNJ 415 at 430; Ejudu v. Obi (1992) 1 SCNJ 234 at 243; Irom v. Okimba (1998) 2 SCNJ 1 at 5; (1998) 3 NWLR (Pt. 540) 19; Umaru v. Abdul-Mutallabi (1998) 7 SCNJ E 203 at 214; (1998) 11NWLR (Pt. 573) 247.

The appellant has again specifically challenged the lower court’s decision for not pronouncing on the criminal aspect of the matter pertaining to fraud and for speculating particularly on the character and content of exhibit H that is FCDA Manual, one of the exhibits tendered in the case. See: Panalpina v. Wariboko (1975) 2 SC 29; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 294; Abacha v. Fawehinmi (2000) 16 NWLR (Pt.660) 228 at 274.

In conclusion, he has taken the point that the lower court could not have resolved the issue of whether his appointment has statutory flavour without adverting to the exhibits numbered as exhibits ‘A’ to ‘l’ inclusive and, the Civil Service Rules. The court is urged to allow the appeal and order a retrial of the appeal by the lower court. The respondent in paragraph 3.4 of its brief of argument has conceded that the lower court has made a grave error by going ahead despite its critical observation on the incompleteness of the record to determine this matter without availing itself of the opportunity of seeing the said exhibits particularly exhibit ‘H’ – the FDCA

Management Manual. It nonetheless has invoked the provisions of section 227(2) of the Evidence Act, 1990 on wrongful exclusion of admissible evidence to, submit that the outcome of the appeal would have been the same had evidence so excluded been admitted; See: Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417 at 421. It has also argued that it is a slip which has not, all the same, occasioned a miscarriage of justice. See: Akpan v. Otong (1996) 10 NWLR (Pt. 476) 108 at 112; Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180 at 194; Onajobi v. Olanipekun (1985) 4 SC (Pt. 11) 156; (1985) 4 NWLR (Pt. 2) 156; and Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267.

The respondent on issue 2 has conceded that it is not the duty of the Court of Appeal to formulate issues for determination for appellants as in this case especially so where the issue does not arise from the grounds of appeal filed by the appellant. The respondent has however argued that this course has to be taken in the interest of justice and should not be defeated by mere technicality.On issue 3, the respondent has contended that the appellant having admitted the charges raised against him, the respondent has no need to go to court to pursue the criminal aspect of the charge as it has become unnecessary.

The respondent on issue 4 has stoutly refuted the contention that the appellant’s appointment has statutory flavour. It has made the point that the character of an appointment as well as the status of an employee as in the instant matter is determined by the contract of employment between the parties. See: Fakuade v. O.A. U. Teaching Hospital Management Board (1993) 5 NWLR (Pt. 291) 47 at 63. The court is urged to dismiss the appeal as there is after all no miscarriage of justice to warrant an order of retrial. If I may reiterate, at the oral hearing of this appeal before us on 30/01/2007, the appellant and the respondent have adopted and relied on their respective briefs of argument in the case. As can be seen, issues one and two deal with the question which are central to resolving at this stage the singular questions in controversy in the instant appeal. That is to say – the propriety of deciding this case without the exhibits and the propriety, or otherwise of formulating the lone issue that does not arise from the appellant’s grounds of appeal without hearing the parties. The other two issues i.e. issues 3 & 4 have raised questions which as canvassed in the appellant’s brief of argument will otherwise lead to discussing the substantive questions in the case itself and indeed the merits & demerits of the appeal rather prematurely as will become obvious in the course of this judgment. See: E. D. Tsokwa & Sons Co. Ltd. v. C.FA.O. (Nig.) Ltd. (1993) 5 NWLR (Pt. 291) 120.

I have therefore decided not to take issues 3 & 4 not being relevant to the immediate resolution of the questions thrown up under issues 1 and 2 as aforestated but to shelve the two issues and let sleeping dogs lie in view of the final order contemplated in this matter. Issues 3 & 4 are therefore shelved for now. See Adenuga v. Odumeru (2001) 2 NWLR (Pt. 696) 184; (2001)1 SC (Pt. 1) 72 at 79. I think that issue one in particular is focused essentially on the documentary exhibits, that is to say, exhibits ‘A’ to ‘I’ formally introduced as evidence in this matter at the trial and properly in the custody of the trial court. In this regard the documentary exhibits before the trial court according to the record consist of the following exhibits “A”, “B”, “C”, “D”, “E”, “F”, “G”, “H” and “I”. The matter of excluding these exhibits from the record has been contended to be a grave error, just as not forwarding them to the lower court and reaching a decision in the appeal without adverting to them. These omissions form the basis of the complaints against the decision of the lower court. I have to emphasize further the importance of these exhibits by being more definite. In this regard exhibit ‘A’ is the letter of appointment while exhibit ‘B’ is the letter of confirmation of the appellant’s appointment; exhibit ‘C’ is the letter of promotion of the appellant to Higher Technical Officer on grade level 08; exhibit ‘D’ is the letter of termination of appointment while exhibit ‘E’ is the letter of invitation to the appellant to appear before Disciplinary Committee; exhibit ‘F’ is appellant’s letter of admission of committing the offence, exhibit ‘G’ is the Disciplinary Committee’s reoport while exhibit ‘H’ is the FCDA Management Manual. Finally, exhibit ‘I’ is the query given to the appellant. That such material documentary evidence have to be left out in compiling of the record of appeal albeit in this case of master and servant relationship is a telling evidence of the strength of the appellant’s case in this matter.