Mrs Joy Nkiruka Esezoobo V. Nigeria Social Insurance Trust Fund Management Board & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of Hon. Justice A.O Ajakaiye sitting at the Federal High Court, Lagos Judicial Division delivered on the 7th day of April, 2009.The facts that led to the appeal are as follows:

The Plaintiff now Appellant had by an Originating Summons asked the trial court certain questions; claimed certain declaratory reliefs together with an Order for perpetual injunction and asked for an Order reinstating the Appellant to her lawful employment. Precisely, the Plaintiff claimed inter alia as per her originating summons the following principal relief:

A DECLARATION that the Plaintiff’s employment with the 1st Defendant at its Lagos Zonal office is service in the public service of the Federation and is by S. 172 and S. 173 of the Constitution of the Federal Republic of Nigeria and S. 4 of the Pension Act Cap 346 LFN 1990 as well as the conditions of service of the 1st Defendant guaranteed up to the retiring age of 60 years.

The Appellant had supported her Originating Summons with a 35 paragraph affidavit. The Respondents in reaction had filed a 20 paragraph counter-affidavit. Parties were ordered to file written addresses and after adoption of their respective written addresses, the learned trial judge adjourned the case for judgment. On the return date however, the trial judge did not deliver judgment, rather, he delivered a Ruling holding that the matter ought not have been commenced by Originating summons but by writ of summons and ordering the filing of fresh pleadings.

The Appellant being dissatisfied with this Ruling has brought this appeal. The Appellant has secured an Order granted on the 1st of April, 2011 to have the appeal heard on the Appellant’s brief alone. The Appellant’s brief is dated and filed on the 31st of July, 2009.

Appellant’s counsel, E. Andrew Otokhina Esq. identified four issues for determination as follows:

1. Whether the learned trial judge was right when he failed to deliver judgment after parties’ final addresses but rather a ruling on a matter not agitated by the parties and if by that the learned trial judge did not exceed the jurisdiction of the court and occasion a miscarriage of justice. This issue relates to ground one of the grounds of appeal
2. Whether the learned trial judge was right when he held that the suit ought not to have been commenced by originating summons by virtue of Order 2 Rule 2 (a) & (b) of the Rules of court. This issue relates to ground 2 of the grounds of appeal
3. Whether the learned trial judge did not err in law when he held that “The case can not be determined in the form by which it was commenced” on the ground that “the affidavit and counter affidavit of the parties reveal substantial disputes of fact” and ordered parties to file pleadings within 14days. This issue relates to grounds 3 & 4 of the grounds of appeal
4. Whether the entire ruling with the order of pleadings is not improper invalid, and against public interest and administration of justice having regard to S. 6 (6) (b), S. 36 (1) of the 1999 Constitution. This issue relates to ground 5 of the grounds of appeal.

I have gone through the issues raised by the learned Counsel to the Appellant and I am of the firm view that the issues arising from this appeal can be fused into just two issues which are as follows:

1. Whether the trial court can raise the issue of inappropriateness of Form of Commencement of action on a date reserved for Judgment and
2. Whether in this case the trial judge was right to have held that the action ought not to have been commenced by Originating Summons

The above issues are hereby adopted for the determination of this appeal

ISSUE ONE

Appellant’s counsel submitted that the learned trial judge erred in law when after the adoption of written addresses by counsel, he delivered a ruling on matters not agitated by the parties instead of delivering judgment. Counsel submitted that when an action is commenced by Originating Summons, the affidavit/counter affidavit constitutes the pleadings. He cited Fawehinmi v. The President (2006) NWLR Pt. 1054. Counsel submitted that it was wrong for the court to raise this issue suo motu when it had not been canvassed by the parties in open court. Counsel cited Adeniran v. Alao (2001) 18 NWLR Pt. 745 Pg. 361.

Counsel argued that the implication for an order for final addresses and adoption of same is that both parties have closed their cases, evidence has been concluded and parties are agreed on facts and evidence. Counsel averred that no dispute exists as between the parties and only issues of law were left for the lower court to resolve. Counsel argued that within the meaning of Section 294 (1) of the 1999 Constitution and on the authority of Fawehinmi v. The President (supra), the case before the trial court witnessed the conclusion of evidence and final addresses and it therefore became mandatory for the lower court to carry out a perusal of issues raised by the parties and to deliver judgment. Counsel cited Eagle Super Pack Nig. Ltd vs. A.C.B. Plc (2006) 19 NWLR Pt. 1013 Pg. 20 at 37; Enekwe v. I.M.B Nig. Ltd (2006) 19 NWLR Pt. 1013 Pg. 146 at 17-175.

Counsel further argued that what the trial court could do in an appropriate case where any issue arises for clarification is to call for oral evidence from deponents of the affidavits to clarify the point in accordance with the Evidence Act. Counsel argued that when issues are appreciated and properly addressed by the parties within the four corners of the parties affidavit evidence and the respective submission made by the parties, it is improper for the court to go outside the case and do its own bidding. Counsel cited Dairo v. UBA Plc (2007) 16 NWLR Pt. 1059 Pg. 99 at 139.

Counsel further argued that the question as to whether or not there is substantial dispute is one that should be taken timeously either by the other party who disputes some facts and desires to cross-examine on certain issues or by the trial judge suo motu who needs to be satisfied on some facts through oral evidence.