FEDERAL AIRPORTS AUTHORITY OF NIGERIA v. SYLVESTER G. NWOYE

 

FEDERAL AIRPORTS AUTHORITY OF NIGERIA v. SYLVESTER G. NWOYE

final
In The Court of Appeal
Ekiti Judicial Division
On Friday, the 20th day of January, 2012
Suit No: CA/AE/94/2010
 
Before Their Lordships
 
SOTONYE DENTON WEST    ……. Justice, Court of Appeal
CHIDI NWAOMA UWA    ……. Justice, Court of Appeal
TOM SHAIBU YAKUBU    ……. Justice, Court of Appeal
    
 
 Between

FEDERAL AIRPORTS AUTHORITY OF NIGERIA    Appellant
            
 
      And
                   
SYLVESTER G. NWOYE    Respondent
        
 

 


    
          
 COUNSEL:
                              
Igwe Kingsley Chime, Esq.    -For the Appellant

                              
Sir J. C. Okafor, Esq.    -For the Respondents


JUDGMENT:         

        
TOM SHAIBU YAKUBU, J.C.A.:
(Delivering the Leading Judgment): The Plaintiff/Respondent, had on 6th January, 2005 took out a Writ of Summons at the Federal High Court, Holden at Enugu, in Suit No: FHC/EN/CS/3/2005 against the defendant/appellant, wherein the former claimed and prayed for a declaratory and certain injunctive reliefs in connection with the plaintiff's employment with the defendant. The plaintiff/respondent's claim indicate that he had been in the employment of the defendant/appellant since 5th May, 1980 as an Assistant Technical Officer on Grade level 06, His appointment was confirmed by the appellant sometimes in 1982. He earned some six promotions between 1980 and 1999 in the employment of the appellant, the last being the position of Assistant Chief Electrical Superintendent in 1999, on salary Grade Level 13. He was allocated accommodation in the Staff Quarters of the appellant, where he lived with his family.

However, the relationship between the respondent and the appellant became sour when the latter prevented the plaintiff from performing his duties and began to withhold the salaries, entitlements and emoluments of the plaintiff/respondent. The latter made protests to the appellant in respect of the events in his employment with the appellant, to no avail. The defendant/appellant instead threatened to eject the respondent from the accommodation earlier given to him. The appellant filed an action at the Enugu State High Court, claiming the recovery of possession of the respondent's quarters/accommodation. The plaintiff/respondent then filed his own action aforementioned, at the Federal High Court, Enugu, against the appellant.

The Defendant/appellant, entered a conditional appearance to the claim and filed a Notice of Preliminary objection against the hearing of the claim, on the grounds that the plaintiff/respondent had been retired from the services of the appellant in 1999 and that the suit is statute-barred the same having been commenced more than twelve months after the retirement of the respondent from the services of the appellant.

The learned trial judge, A. Lewis-Allagoa, J, in his ruling on the appellant's preliminary objection, dismissed the same on 9th March,2007; on the ground that the action of the respondent being founded on a contract of employment, the limitation period of instituting it by the respondent under section 20 (i) of the Federal Airports Authority of Nigeria, Cap.F.5, Laws of Federation of Nigeria, 2004, was inapplicable to it.

Thereafter, the learned trial judge, on 24th October, 2007 dismissed the defendant/appellant's application for a stay of proceedings pending the determination of his appeal at the Court of Appeal, in respect of the dismissal of the Preliminary Objection on 9th March, 2007. The trial of the action at the Federal High Court, Enugu ended on 29th February, 2008 with the respondent's evidence-in-chief, which was adjourned to a further date for continuation. However, in the interval, the learned trial judge was transferred from Enugu to Ado-Ekiti Judicial Division of the Federal High Court and the learned trial judge A. Lewis Allagoo, J, was mandated to continue with the hearing of the suit No.FHC/EN/CS/312005, at the Ado-Ekiti Judicial Division of the Federal High Court, to conclusion.

The defendant/appellant challenged the Assignment Order/Fiat issued by the Chief Judge of the Federal High Court, which mandated A. Lewis Allagoa, J, to try the action in question, to conclusion at the Federal High Court, Ado-Ekiti where he had been transferred to. In his ruling on the defendant's application, the learned trial judge dismissed the same. This was on 16th July, 2009. Thereafter, the suit continued to hearing of the plaintiff's evidence, under cross-examination by learned counsel to the defendant. On 23rd September, 2009, the plaintiff called one other witness whilst the defendant called a witness. Some documents were tendered and admitted in evidence at the instance of both parties. Learned counsel to the parties, filed and exchanged their written addresses, as was ordered by the learned trial judge. In his judgment delivered on 14th January, 2010, the court below granted to the plaintiff/respondent some of the reliefs he claimed in the action, whilst two reliefs thereof, were each refused.

This appeal is against the judgment of A. Lewis- Allagoa, J, of 14th January, 2010. The appeal by the defendant was anchored on two grounds of appeal. They each say, to wit:-

''GROUND 1

ERROR OF LAW

The learned trial judge erred in law by proceeding to hear the suit when he has no jurisdiction.

PARTICULARS OF ERROR.

(a) The action is statute barred in that -

(i) The alleged prevention of the plaintiff from performing his duties occurred in April, 1999 while the suit was filed in January, 2005.

(ii) The plaintiff was retired in April, 1999 while the suit was filed in January, 2005.

(iii) Section 20 of the Federal Airport Authority of Nigeria Act, Cap.F5, Laws of the Federation of Nigeria, 2004, provides that no action against the Defendant/Appellant….he unless it is commenced within twelve months next after the act complained of,

(iv) The facts of the case took place in Enugu while the suit was heard in Ado-Ekiti which has no territorial or geographical jurisdiction to hear the case,

GROUND 2-

ERROR OF MIXED LAW AND FACT

The entire judgment is against the weight of the evidence.

PARTICULARS

The plaintiff gave no evidence before the Court of Law, he arrived at the claims of N17,241,457.42 in unpaid arrears of salaries, et cetre, N30,000,000 in retirement benefits and N50,000,000 in general damages. "

The appellant formulated two issues for determination in the appeal. They are, namely.

ISSUE NO. ONE

Whether the Federal High Court sitting at Ado-Ekiti has substantive and geographical or territorial jurisdiction to hear and determine the matter or suit. This issue covers Ground one. But I will treat it as two sub-issues namely, whether the Federal High Court per se has jurisdiction to hear and determine the matter and also whether the Federal High Court sitting at Ado-Ekiti has geographical or territorial jurisdiction to determine the matter.

ISSUE NO. TWO

I will also treat this matter as two sub-issues; namely.

(i) Whether the plaintiff proved his monetary claim of the sum of N17,247,457.42 by his evidence in the witness box

(ii) Whether the plaintiff put in issue the validity or other wise of his retirement."

The respondent, on his part also formulated two issues for determination as follows:-

"7. Whether the learned trial judge of the lower court has the jurisdiction to entertain the suit.

2. Whether the Respondent cross -Appellant proved his case on the balance of probabilities and therefore entitled to judgment of the lower correct." It is noteworthy that the respondent cross-appealed against part of the judgment of the lower court vide his notice of cross-appeal dated 25/3/2010 but filed on 7/4/2010, predicated on 5 grounds of appeal as contained at pages 18-22 of the Supplementary Records of Appeal.

The Respondent/Cross-appellant identified three issues for determination on the cross-appeal, to wit:-

1. "Whether the learned trial judge was right when after holding that the purported retirement of the Respondent/Cross-Appellant was null and void still refused to expunge Exhibits M.N.O.P and a on the ground that their admissibility created issue estoppels and that the Exhibits amounted to an admission on the part of the Respondent/Cross-Appellant (grounds 1 and 2).

2. Whether the learned trial judge was right when, after holding that the Respondent/Cross-Appellant's employment was with statutory flavor, turned round to hold that the Respondent/Cross-Appellant was retired by the Appellant/Cross-Respondent even when the Appellant/Cross-Respondent did not comply with the disciplinary procedure stipulated in the Appellant/Cross-Respondent's staff condition of service (Grounds 3 and 4 of the Cross-Appeal)

3. Whether the learned trial judge was right to decline or refuse to grant the consequential reliefs sought by the Respondent/Cross-Appellant in reliefs 2 and 4 of Amended Statement of Claim even after holding that the employment of the Respondent Cross-Appellant was with statutory flavour and that the purported retirement of the Cross-Appellant was null and void (Ground 5 of the Cross-Appeal)"

Igwe Kingsley Chime, learned counsel to the appellant, at the hearing of the appeal, adopted and relied upon his brief of argument dated and filed on the 27th April, 2010. The respondent's brief of argument dated 25th November, 2010, with leave of court sought and obtained, was deemed filed on 12th May, 2011 by this court. The said brief of argument was in respect of the main appeal and also the cross-appeal herein and at the hearing of the appeal, the same was adopted and relied upon by Sir J. C. Okafor, (Esq.), learned counsel to the respondent/cross-appellant. In the said respondent's brief of argument, a notice of Preliminary objection which was dated 25th November, 2010 challenging the propriety of the appeal was raised and argued.

There are six (6) grounds upon which the Preliminary Objection is anchored, namely:-

"1) That the Notice of Appeal dated 14/1/2010 and filed on 14/1/2010 by the Appellant was not filed in the Registry of the lower Court where the Suit was filed (that is Federal High Court, Enugu) (see pages 267-268 of the Records) as provided in Order 6 Rule 2(1) of the Court of Appeal Rules, 2007 hut was filed in the Registry of the Federal High Court, Ado-Ekiti and it is therefore incompetent and the Court of Appeal Ilorin has no jurisdiction to entertain same. Also, the Appellant's brief of argument dated 27/4/2010 and filed on 27/4/2010 was not filed at the Registry of the appropriate Court of Appeal (that is Court of Appeal, Enugu).

2) That the Notice of Appeal dated 14/1/2010 and filed on 14/1/2010 by the Appellant wherein the Appellant is challenging the jurisdiction of the lower court to try this suit is an abuse of the process of court in that the Appellant had earlier filed a Notice of Appeal dated 26/3/2007 and filed on the same 26/3/2007 (see page 123 of the Records) challenging the jurisdiction of the said lower Court to entertain the suit on the ground that the suit is statute barred and the two appeals are pending at the same time and therefore the Court of appeal lacks the jurisdiction to entertain this appeal.

3) That the Appellant filed two grounds of appeal in his Notice of Appeal dated 14/1/2010 and filed on 14/1/2010 but in his Brief of Argument dated 27th day of April, 2010 and filed on 27th day of April, 2010, The Appellant formulated and argued four (4) issues for determination itemized as issues No. 1A, 18, 2A and 28 thereby making the issues for determination to be more than the grounds of appeal and this has rendered the appeal incompetent and the Court of Appeal lacks jurisdiction to entertain same.

4) That the issues for determination argued by the Appellant in his Brief of Argument did not arise from or relate to the grounds of appeal and is incompetent and the Court of Appeal lacks jurisdiction to entertain same.

5) That the grounds of appeal filed by the Appellant are vague, incompetent and does not arise from the ratio decidendi of the judgment appealed against and is therefore untenable.

6) That paragraph 2(b) of the issues for determination does not arise from the ratio decidendi of the decision appealed against and, being a fresh issue, for leave was obtained before the issue was argued and it is therefore incompetent, null and void."

Igwe Kingsley Chime, Esq., of learned counsel to the appellant at the hearing of the appeal, called our attention to a compendium of some documents which he had filed on 4th May, 2011. It was dated 3rd May, 2011 and it contains the following processes, namely:-

1) Appellant's Reply to the Preliminary Objection;

2) Counter-Affidavit in opposition to the Respondent's Preliminary Objection'

3) Appellant's Reply Brief and

4) Cross-Respondent's Brief of argument.

The court called the attention of Igwe Kingley Chime, to the fact that the processes named above, were filed some I days before the respondent's/cross-appellant's brief of argument on the main and cross-appeal was deemed filed by this court on 12th May, 2011. Thus, the aforementioned processes at the instance of the appellant were filed when the respondent's brief of argument and cross-appellant's brief of argument were not yet filed. In otherwords, the said processes at the instance of the appellant which were meant to react to the respondent/cross-appellant's briefs of argument, were earlier in time before the latter, a situation of one putting the cart before the horse! Regrettably, Igwe Kingsley Chime, learned counsel to the appellant did not take the hints from the court to regularise the filing of the processes in question which he had earlier filed on 4th May, 2011.

In effect, there is no Reply by appellant to the respondent's preliminary objection nor a counter affidavit to the said preliminary objection. Furthermore, there is no Appellant's Reply brief of argument nor a cross-Respondent's brief of argument in respect of the cross-appeal. Therefore, the appellant's Reply to the Preliminary Objection; the counter-Affidavit in opposition to the Respondent's Preliminary Objection; Appellant's Reply brief and the Cross-Respondent's brief of argument, are each discountenanced by the, in the consideration of the respondent's Preliminary Objection, the main appeal and the cross-appeal accordingly.

I shall now proceed to consider and determine the respondent's preliminary objection first. There are six grounds upon which the preliminary objection is erected and they have been reproduced earlier in this judgment. I will take and determine them one after the other.

The first ground is that the appellant's notice of appeal dated 14th January, 2010 was filed at the registry of the Federal High Court, Ado-Ekiti, instead of filing it at the registry of the Federal High Court, Enugu where the action was originally filed, and that rendered the notice of appeal, incompetent and therefore this court lacks the jurisdiction to entertain the appeal. Furthermore, that the appellant's brief of argument dated and filed on 27th April, 2010 at the Court of Appeal, Ilorin Registry ought to have been filed at the Court of Appeal registry, Enugu. Learned counsel submitted that by virtue of Order 6 Rule 2(1) of the Court of Appeal Rules, 2007, the lower court's registry, where the suit was filed was the Federal High Court Enugu and not the Federal High Court, Ado-Ekiti. Hence, the appellant's notice of appeal, according to learned counsel, ought to have been filed at the Enugu Federal High Court registry. Learned counsel, also submitted that an appeal is deemed to have been properly initiated upon the filing of the notice of appeal in the registry of the appropriate lower court. He referred to Yahaya Mohammed & 2 Ors. Vs. Julius Kayode (1997) 11 NWLR (pt.530) 584.

Learned counsel, furthermore submitted that even though the suit which was filed at the registry of the Federal High Court, Enugu was on an assignment order/fiat of the Chief Judge of the Federal High Court, heard and concluded at the Federal High Court, Ado-Ekiti, the appropriate registry of the lower court envisaged by Order 1 Rule 5 of the Court of Appeal, Rules 2007, is the registry of the lower court, where the action was filed. Learned counsel referred to Idris vs. Audu (2005) 1 NWLR (pt.908) 612 at p.634; Akinsipe vs. Adetoroye (1999) 9 NWLR (pt. 6171 162 and that rules of court must be obeyed by litigants.

He referred to Ekpan vs. Uyo (1986) 3 NWLR (pt.26) 63 and urged us to hold that the appellant's notice of appeal filed at the registry of the Federal High Court, Ado-Ekiti, is incompetent. It is the contention of the respondent too that the appropriate Court of Appeal registry where the appellant's brief of argument ought to have been filed was the registry of the Court of Appeal, Enugu since the suit was instituted at the Federal High Court, Enugu. Order 6 Rule 2 (1) of the Court of Appeal, Rules, 2007 says:

"All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called "the notice of appeal" to be filed in the registry of the court below which shall set forth the grounds of appeal………"

The term "Court below" or Lower Court" is defined by Order I Rule 5 of the same Court of Appeal Rules, 2007; to mean "any court or tribunal from which appeal is brought."

Indisputably, the suit No.FHC/EN/CS/312005 was filed by the respondent as plaintiff at the registry of the Federal High Court, Enugu on 6th January, 2005. The said suit was being heard at the Federal High Court, Enugu by A. Lewis Allagoa, J, and with his transfer from the Enugu Federal High Court, the Hon. Chief Judge of the Federal High Court, issued an assigning Order/Fiat to A. Lewis-Allagoa to hear the said suit to its completion at the Federal High Court, Ado-Ekiti, This order was complied with by the learned trial judge and he gave judgment on the suit on 14th January, 2010 at the Federal High Court, Ado-Ekiti.

The Appellant's notice of appeal made pursuant to Order 6 Rule 2 of the Court of Appeal Rules, 2007 says namely:-

"TAKE NOTICE that the Defendant/Appellant being dissatisfied with the decision of Federal High Court sitting at Ado-Ekiti contained in the judgment of Hon. Justice A. L. Allagoa on 14th day of January, 2010, in suit No.FHC/EN/CS/3/2005, S. C. Nwoye and FAAN doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4."

It is crystal clear to me that the judgment being appealed against as per the notice of appeal of the appellant filed on 14th January, 2010 in respect of suit No.FHC/EN/CS/3/2005 was that of Hon. Justice A. L. Allagoo, J, who sat and gave that judgment at the Federal High Court, Ado-Ekiti. The learned trial judge did not go back to Enugu Federal High Court to give judgment on the suit in question on 14th January, 2010. Hence, the judgment in question and for which the notice of appeal by the appellant relates is the judgment that was delivered at Ado-Ekiti Federal High Court and not that of the Federal High Court, Enugu. It follows therefore, that the court below from where the appeal arose to this court, is the Federal High Court, Ado-Ekiti. It cannot be said that the appellant's notice of appeal, arose from or emanated from the judgment of the Federal High Court, Enugu and delivered by A. L. Allagoa, J on 14th January, 2010 because that was not a factual situation.

This court, in Bayero vs. Mainasara & Sons Ltd. (2007) All FWLR,(pt.399 at p.1304 had held that:

"There is no doubt that a Notice of Appeal is by the rule required to be filed at the Registry of the Lower Court from where the appeal emanated."

I must say that though the suit FHC/EN/CS/312005 was filed at the registry of the Federal High Court, Enugu the intervention by the Hon. Chief Judge of the Federal High Court, through the Assignment Order/Fiat issued to A. L. Allagoa, J to hear the suit to completion at the Federal High Court, Ado-Ekiti and which order was complied with by A. L. Allagoa, J. was an irreversible intervening factor which relocated the said suit to Ado-Ekiti from Enugu Federal High Court. And at the risk of repetition, I say again, that the judgment on the suit No. FHC/EN/CS/3/2005 delivered by the learned trial Judge, on 14th January, 2010 is the judgment now appealed against by the appellant. It would have been incomprehensible for the appellant to have filed the notice of appeal in question at the registry of the Federal High Court, Enugu when A. L. Allagoa, J, did not give any judgment in respect of the suit No.FHC/EN/CS/3/2005 on 14th January, 2010 at the said Federal High Court, Enugu.

I am of the considered opinion that the appellant's notice of appeal, filed at the registry of the Court below, that is the Federal High Court, Ado Ekiti on 14th January, 2010, is competent. The preliminary objection on this ground fails.

I also considered the submission of learned counsel to the Respondent/Cross-appellant in respect of the filing of the appellant's Brief of argument dated 27th April, 2010 and filed on the same date at the Registry of the Court of Appeal, Ilorin and not at Enugu Court of Appeal Registry, since the suit was filed at the registry of the Federal High Court, Enugu. Learned counsel therefore contented that the said brief of argument is incompetent and this court lacks the jurisdiction to entertain the appeal.

I am afraid; there is no force in this submission. The Court of Appeal is one by virtue of section 237 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), to wit:-

''237 (1) – There shall be a Court of Appeal"

There is one and only one Court of Appeal of Nigeria. There are no two or three or more Court of Appeal in Nigeria. And curiously and amazingly, the cross-appellant, filed his own brief of argument dated 25th November, 2010 at the Court of Appeal, Registry, Ilorin on 14th December, 2010. Is it acquiescence to the filing of the appellant's brief of argument in question at the Court of Appeal, Registry Ilorin?

The oneness of the Court of Appeal of Nigeria is clearly demonstrated in the instant appeal. The Notice of Appeal by the appellants was filed at the Federal High Court registry Ado-Ekiti; both appellant's and respondent's/cross-appellant's briefs of argument were filed at the Court of Appeal registry, Ilorin where the appeal was to be heard, but the appeal and cross-appeal were both heard and now being determined at the Court of Appeal, Ado-Ekiti.

For the foregoings, the preliminary objection on this ground fails in its entirety.

The second ground of the preliminary objection is to the effect that the appellant had earlier, on 26th March, 2007 filed a Notice of Appeal, challenging the jurisdiction of the Court below and again filed the Notice of Appeal dated 14th of January, 2010, also challenging the jurisdiction of the court below. Learned counsel contended that the pendency of the two appeals – one at the Court of Appeal, Enugu and the other at the Court of Appeal, Ilorin (now here at Court of Appeal, Ado-Ekiti) amounts to an abuse of the process of this court. He relied on some authorities, to wit: – N.I.M.B. Ltd., vs. U.B.N. Ltd. (2007) 12 NWLR (pt.888) 599; Senator M. Ali vs. Senator U. Albishir & 3 Ors. (2008) 3 NWLR (pt.1073) 94 at p.140; Edet Obot Nyah vs. Udo Okon Noah (2007) 4 NWLR (pt.1024) 320; Okorodudu vs. Okoromadu (1977) 3 SC 21; Saraki vs. Kotoye (1992) 9 NWLR (pt.264) 156; Okafor vs. Attorney General Anambra State (1991) 6 NWLR (pt.200) 659; Adesokan vs. Adegorolu (1991) 3 NWLR (pt.1791 283; Alhaji Madi Mohammed Abubakar vs. Bebeji Oil and Allied Products Ltd. & 2 Ors. (2007) 18 NWLR (pt.1066) 319 at pp.377 – 378; Miss Nkeiru Nuzegwu Amobi vs. Mrs. Grace O. Nzegwu & Ors. (2005) 12 NWLR (pt.938) 120 at 143 and urged us to dismiss this appeal.

I have perused the Notice of Appeal dated 26th March, 2007 which was filed on the same date against an interlocutory decision (ruling) of the learned trial judge – A. L. Allagoa, J which was delivered on 9th March , 2007. There was only one ground of appeal therein. It says:

"The learned trial judge erred in law when he held that the decision of the Supreme Court given in an entirely different case can be used to over rule the express provision of the statute Law applicable to this case."

The appellant's notice of appeal dated and filed on the 14th January, 2010 was against the final judgment of A. L. Allagoa, J., on the same action, In the circumstances herein, it cannot be said that the appeals at the instance of the appellant amounts to an abuse of the process of the Court.

The authorities are settled on the point that an appellant may file more than one notice of appeal in one appeal, in so far as he does so within the period he is required so to do. See Integrated Data Services vs. Adewunmi (2006) All FWLR (pt.292) 145 at p.154; Ifekandu vs. Ezegwu (2008) All FWLR (pt.432) 1 10 at p.117; Savannah Bank of Nigeria Plc vs. Central Bank of Nigeria (2009) All FWLR (pt.481 ) 939 at p.969.Indeed, in inappropriate situations, where a party improperly uses the judicial process, intentionally in order to irritate and annoy his opponent, it can be said that such amounts to an abuse of the process of the court. see African Re-Insurance Corp. vs. JDP Construction Nig. Ltd., (2003) 2-3 SC.47 or (2003) 13 NWLR (pt.838) 609 at pp.635 – 636 per Niki Tobi, JSC. However, as I have shown earlier, the earlier appeal filed in March , 2007 was against an interlocutory decision whilst the appeal filed later in January, 2010 was against the final judgment of the same trial judge in the same action. I am therefore of the considered opinion that, on the premise, there is no abuse of the process of this court. The preliminary objection, on this ground is misconceived and lacking in merit and so it fails.

The third ground of the preliminary objection is that the issues for determination which the appellants formulated in his brief of argument, dated and filed on 27th April, 2010 are four in all in respect of the two grounds of appeal. In other words, that the issues for determination are more than the grounds of appeal, hence the appeal is incompetent. Learned counsel referred to chief Sunday Ogunyade vs. Solomon O. Oshunkeye & Anor (2007) 15 NWLR (pt.1057) 218 at p.240: Clement Obijiaku vs. Offiah (1995) 7 NWLR (pt.409) 510; Gemar shipping Inc. vs. M/T "Cindy Gaia" & 4 ors. (2007) 4 NWLR (pt.1024) 222 at pp.235 236; Industrial Training Fund & Anor vs. Nigeria Railway Corp. (2007) 3 NWLR (Pt.1020) 28 at p.46; Senator (Chief) Olayinka Omilani & Anor vs. Chief Adetunji Omisore & Anor (2007) 3 NWLR (pt.1020) 177 at p.206; Yadis Nig Ltd. vs. Great Nigeria Insurance Co. Ltd., (2007) 14 NWLR (pt.1055) 584 at p.591 and other authorities, on the issue.

I had earlier in this judgment reproduced the issues formulated for determination on the appellant's briefs of argument. The appellant first formulated two issues for determination, one for each ground of appeal. He later, split each of the two issues into two and itemized them as issues Nos. 1A and 18 for Ground one and Nos. 2A and 2B, for Ground Two. That is, two issues were formulated and argued in respect of ground one whilst two issues were formulated from ground two. It is the splitting of each of the two issues into two each which proliferated the two issues into four, which is wrong and not allowed, because issues for determination must not outnumber the grounds of appeal, in an appeal.

One issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, but two issues for determination cannot be distilled from one ground of appeal. This court, in M. O. Sekoni vs. UTC Nig. Plc. (2006) 8 NWLR (pt.982) 283 at p.298 paras. B – G, per Salami, JCA (as he then was) put it clearly that:

"It is not permissible to canvass and tender argument by tripling the two issues. Having divided into three the alleged two issues formulated and canvassed them separately it is not possible to consider the appeal properly and fairly. It is not the business of the court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the Appellant's brief of argument. See generally Bereyin vs. Gbobo (1989) 1 NWLR (pt.97) 372, 389; Korode v. Adedokun (2001) 15 NWLR (pt.796) 483 and Nwadike vs. Ibekwe (1987) 4 NWLR (pt.67) 718; (1987) 72 S.C.14"

The supreme Court, affirming the position of the law more recently in ALH. ADEKUNLE TERIBA VS. AYODELE TIAMIYU ADEYEMO (2010) 4 SCNJ 59 at 67, said that it is not proper to proliferate issues for determination to outnumber the grounds of appeal. Thus, a ground of appeal is not to be split into a number of issues and that whilst an issue can be distilled from one or more grounds of appeal, the issues for determination must never be more than the grounds of appeal, but if so, the grounds of appeal and the issues for determination become incompetent and liable to be struck out.Unarguably, the splitting of the two issues formulated for determination on each ground of appeal, into four issues for determination in respect of the two grounds of appeal by the appellant has damnified the two grounds of appeal. They are each incompetent and consequently, they are ordered as struck out. In effect, the appellant's appeal is rendered incompetent and liable to be struck down. It is accordingly struck out, for being incompetent.

The remaining grounds 4, 5 and 6 of the preliminary objection, to my mind, are no longer of essence as it will be an academic exercise to still consider them when the appeal itself has been found to be incompetent. This court does not have the luxury to spend precious judicial time in considering or embarking on an academic exercise which has no practical or utilitarian value.

The preliminary objection succeeds on ground 3 and the appellants notice of appeal dated and filed on 14th January, 2010 is ordered as struck out.

Now to the cross-appeal by the respondent. The notice of the cross-appeal was dated 25th March, 2010 but filed on 7th April, 2010. The cross-appeal was erected on five grounds of appeal and from them, three issues were formulated for determination in the cross-appellant's brief of argument dated 25th November, 2010 but filed on 14th December, 2010 and deemed by this court, as properly filed and served on 12th May, 2011; were earlier reproduced in this judgment.

Arguing issue one, learned counsel to the cross-appellant submitted that the admission in evidence of Exhibits M.N.O.P and Q was in error because they were photocopies whereas what was pleaded by the cross respondent were the originals of those documents and that where the original of a document is lost and a party wishes to rely on secondary evidence thereof, such secondary evidence must be pleaded. He referred to Echo Enterprises Ltd., vs. standard Bank of Nigeria Ltd., (1989) 4 NWLR (pt.116) 506 at p.516. He submitted that parties are bound by their pleadings and so they cannot make a case different from the one set up in their pleadings. He referred to Buhari vs. Obasanjo (2005) 2 NWLR (pt.910) 34; and that where inadmissible evidence was admitted in evidence, the court has a responsibility to expunge such evidence from the records. He referred to Nzoku vs. Eme (1973) 5 SC 293; Eze vs. Atasie (2ooo) 10 NWLR (pt.676) 470; property Development Ltd. vs. Attorney General of Lagos State (1976) 7 SC 15; Alhaji Kabiru Abubakar & Anor vs. John Joseph & Anor (2008) 13 NWLR (pt.1104) 307 at pp.3332 -333; Amobi vs. Amobi (1996) 8 NWLR (pt.469) 638; Olowofoyeku vs. Attorney General Oyo State (1996) 10 NWLR (pt.477) 190; Zenon Petroleum & Gas vs. Idrisiyya Ltd., (2006) ? NWLR (Pt.982) 221.

Furthermore, learned counsel submitted that there was no basis for the admission in evidence of Exhibits M, N, O, P & C and even after they were admitted in evidence and the learned trial judge found that the alleged retirement of the cross-respondent was null and void, he ought to have expunged the said exhibits from the records and that the said exhibits did not amount to an admission of his retirement, though they were written by the cross-appellant so the question of waiver did not arise against the cross-appellant. He relied on Adeniyi vs. Governing Council of Yaba College of Technology (2003) 6 NWLR (pt.300) 426 at p,462; Military Administrator of Benue State vs. Ulegede & Anor (2001) 17 NWLR (pt.741) 194 at 222 – 223.

In respect of issue two, learned counsel submitted that since the learned trial judge found and held that the plaintiff/cross-appellant's employment was "with statutory flavor", and he was allegedly retired by the cross- respondent who did not comply with the conditions of service stipulated in Exhibit "L", and that ip so facto, the alleged retirement was a nullity, the same learned trial judge ought not to have utilized Exhibits, M. N. O. P. & Q, to validate the nullity.

Regarding issue three, learned counsel submitted that the learned trial judge having granted relief one (1) of the plaintiff's amended claim, to the effect that he was still in the service of the cross-respondent, ought not to have refused prayer/reliefs 2 and 4 of the said claim' more so as the learned trial judge had found and held that the retirement of the cross-appellant was null and void.

Learned counsel therefore submitted that, with the grant of relief 1, it meant that the plaintiff/cross-appellant was still in the employment of the cross-respondent and the consequentiar orders prayed for in reliefs 2 and 4 were to give efficacy to relief 1. He referred to Hon, Muyiwa Inakoju & 17 Ors. Vs. Hon. Abraham Adeolu Adeleke (2007) 4 NWLR (pt.1025) 427 at pp. 708 – 709; Obayagbona vs. Obazee (1920) 5 SC 247; Odofin vs. Agu (1992) 3 NWLR (pt.229) 350; Fundak Engineering Ltd., vs. McArthur (1995) 4 NWLR (pt.392) 640; SCOA (Nig) Plc. vs. Mohammed (2004) 4 NWLR (Pt.862) 20; Akinbobola vs. Plisson Fisko (Nig) Ltd., (1991) 1 NWLR (pt.617) 116. He urged us to invoke our powers under section 15 of the court of Appeal, Act and grant reliefs 2 and 4 of the plaintiff's/Gross-appellant's amended statement of claim, and that the cross-appeal be allowed.

The cross-appellant's issues, 1, 2, and 3 are so inextricably interwoven that I think that I should consider them together and I so do.

Exhibits M, N, O, P and Q, were letters written by the cross-appellant to some officials of the cross-respondent, wherein, he applied for the payment of his outstanding and unpaid allowances; retirement benefits, etc. The said letters were pleaded at paragraph 8 of the defendant's/cross-respondent's statement of defence dated 6th May, 2005.

The plaintiff/cross-respondent at paragraph 2 v. of his Reply to the defendant's statement of defence, denied the letter of his alleged retirement but not the existence of the letters in respect of his application for his unpaid salaries and retirement benefits, but that those letters did not amount to an admission by the plaintiff of his retirement from the services of the defendant/cross-respondent. It was those letters that were admitted in evidence and marked as Exhibits M. N. O. P & Q by the court below at its proceedings on 24th September, 2009. See pages 306 to 307 of the records of appeal.

The reason for objecting to the admissibility in evidence of those documents at the court below, by learned counsel to the plaintiff/cross-appellant was certainly not because they were photocopies of the original, so they were secondary evidence. His objection was that the DW1 through whom the documents were being tendered in evidence was not the maker thereof. He was overruled by the learned trial judge and the said documents were duly admitted in evidence. The ground canvassed by the learned counsel to the plaintiff/cross-appellant here now was that the documents were photocopies which were not pleaded in the statement of defence. The learned trial judge's position on those documents was that they were pleaded by the defendant/cross-respondent and they were not denied by the plaintiff/cross-appellant and so they were "deemed to be admitted."

To my mind, if the Cross-appellant had any quarrel against the admission in evidence of those documents, it should have been against the finding by the learned trial judge that the said documents were admitted by the plaintiff/cross-appellant. It is too late in the day for the cross-appellant to complain against the admission in evidence of those documents, on the ground that they were secondary evidence.

I therefore fail to see any merit in learned counsel's submission on that ground. I am satisfied that Exhibits M, N, O, P and Q were rightly admitted in evidence by the learned trial judge.

However, are Exhibits M, N, O, P and Q evidence of admission by the plaintiff/cross-appellant of his purported retirement? The learned trial judge found that "the Defendants having failed to comply with Exhibit L, the conditions of service of the Defendant's company in the purported retirement of the plaintiff that retirement is null and void, the law in the case of UNION BANK OF NIGERIA LTD. VS. CHUCKWUETO CHARLESS OGBONNA (1995) 2 NWLR (pt.380) 647 at 664 per Belgore, JSC as he then was, is that "Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other manner inconsistent with the relevant statute is null and void and of no effect". Thus, the learned trial judge having proceeded on a sound footing on the law, ought not to have made a volt de face when he held that the making of Exhibits M, N, O, P and Q by the plaintiff/cross-appellant amounted to his admission that he indeed was retired. The law and logic in circumstances of this case, is that a legal step taken by a person cannot validate an illegal step/action taken by another person. Therefore, the fact that the cross-appellant made Exhibits M, N, O, P and Q in respect of his unpaid salaries, allowances and retirement benefits could not have validated his purported retirement which was declared null and void by the court below.

The law was well stated by his Lordship, Karibi-Whyte, J.S.C. in ADENIYI VS. GOVERNING COUNCIL OF YABA COLLEGE OF TEGHNOLOGY (2003) 6 NWLR (Pt.300) 426 at p.426 thus:

"The consequence or acceding to this (learned counsel's) arguments is to convert an ultra vires act committed in breach of an enabling statutory provision into a valid act. The compulsory retirement of Appellant on grounds of misconduct under section 12(1) is void.

So also in MILITARY ADMINISTRATOR OF BENUE STATE VS. O. P. ULEGEDE & ANOR (2001) 17 NWLR (pt.741 ) 194 at pp. 222 – 221 the Supreme Court reiterated the same principle of the law that: the acceptance by the Respondent of payment of three month's salary in lieu of notice of retirement did not amount to acceptance of the invalid and void retirement nor did it stop the Respondent from challenging the purported retirement.

I resolve issue one in favour of the cross-appellant only to the extent that the learned trial judge was clearly in error when he held that Exhibits M, N, O, P & Q was an admission by the cross-appellant that he was retired by the cross-respondent. However, I wholly resolve issue two in favour of the cross-appellant.

The grant of reliefs 1, 3 and 5 of the amended statement of claim meant that the plaintiff/cross-appellant was still in the employment of the defendant/cross-respondent. The court below, rightly in my view, refused to grant reliefs 2 and 4 for the reasons stated thereunder. However, the learned trial judge ought to have considered the alternative reliefs (i) and (ii) of the amended statement of claim, to wit:

"In the event that the Defendant being unwilling to take or regard the plaintiff as its employee, the plaintiff claims:

i. The sum of N30,000,000 (Thirty Million Naira) being his retirement benefits as a Senior Staff of the Defendant who put in over 25 years in Service and was on grade level 13 as at January, 1999.

ii. The sum of N50,000,000 (Fifty Million Naira) general damages for severe mental and emotional agony, living below poverty level white suffering the plaintiff's deprivation and inconvenience as a result of joblessness cause (sic) (caused) by the Defendant's unwillingness to retain the plaintiff in its employment."

The cross-appellant urged us to invoke our powers under section 15 of the Court of Appeal Act and grant him reliefs 2 and 4 of the amended statement of claim. I do not think it is expedient to accede to the invitation by the cross-appellant and grant him reliefs 2 and 4. However, I think the alternative reliefs i) and ii) of the amended statement of claim are worthy of my consideration.

Irrefutably, the plaintiff/cross-appellant, having served the cross-respondent for a period of 25 years cannot be shoved out of his employment and not be paid his disengagement entitlements by the defendant. It would be unconscionable to so do. However, how did the cross-appellant arrive at the sum of N30,000,000.00 (Thirty Million Naira) being his retirement benefits? There is no evidence to that effect.

In any event, the cross-appellant an – employee cannot be forced on the cross-respondent – the employer, as there has been no love lost between them since 1999. See Ex-Capt. Charles Ekeagwu vs. The Nigerian Army & Anor (2010) 6 SCNJ 22 at p.36.

The Plaintiff/Gross-appellant is entitled to his rightful retirement benefits, in accordance with his condition of service as provided for in Exhibit L and he shall be so paid by the defendant/cross-respondent.

In the circumstances of this case, I think it is inequitable to grant the alternative relief ii) of the amended statement of claim, for general damages. The same is accordingly refused.

In the end, the cross-appeal succeeds in part only. Cost of N30,000.00 is awarded to Respondent/Cross-appellant.

 

 

SOTONYE DENTON WEST, J.C.A.: I have the privilege of reading this judgment in draft. Tom Shaibu Yakubu, J.C.A, in his characteristic way had left no stone unturned in respect of the issues for determination in this appeal, and I am in attunement with his reasonings thereof. However, I would like to observe that the issue of jurisdiction has turned out to be a resort of some sort to a litigant who has lost in the lower court. In this appeal, the Defendant/Appellant even though they objected to the issue of jurisdiction in the lower court and was overruled nevertheless, fully participated in the action to its ultimate conclusion, giving the impression that they believe in the power of the Court or Judge to entertain the action which of course it does, for jurisprudentially, the Federal High Court is one and the same throughout the Country as by virtue of Section 249 of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that:-

(1) There shall be a Federal High Court.

"(2) The Federal High court shall consist of -

(a) A chief Judge of the Federal High court; and

(b) Such member of Judges of the Federal High Court as may be prescribed by an Act of the National-Assembly."

From the foregoing, one could glean that the Federal High Court, Enugu or the Federal High Court, Ado-Ekiti is one and the same. I know it is mandatory that Courts decide the issue of jurisdiction before proceeding to consider any other matter. The lower court did exactly that as indeed jurisdiction is a threshold matter and fundamental to the competence of the Court to hear and determine a suit when the Appellant challenged the assignment order/fiat given to a Lewis Allagoa, J., by the Chief Judge of the Federal High Court to try the action in this appeal here in Ado-Ekiti to its conclusion since he had been transferred from Enugu to Ado-Ekiti Division of the Federal High Court. Lewis Allagoa, J., dismissed application challenging his jurisdiction to hear the action on 16th July, 2009. The Appellant did not appeal if dissatisfied but now that he lost in the action, he now resorted to lack of jurisdiction plea by the trial court when by his action he had acquiesced and submitted to the jurisdiction of the court.

See: THE ATTORNEY GENERAL OF LAGOS STATE VERSUS DOSUNMU (1989) 3 WLR. PT.111.

AMERICAN INTERNATIONAL INSURANCE VERSUS CEEKAY TRADING LTD. (1981) 5 S.C. 50.

UTIH & ORS VERSUS ONOYIVWE & OTHERS (1991) 1 NWLR (PT.166).

OBIUWEUBI VERSUS CENTRAL BANK OF NIGERIA NWLR, 465.

Therefore, jurisdiction is important and should not just be toyed with by parties who are not successful in the lower court, as "Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit.

Where a court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that courts decide the issue of jurisdiction before proceeding to any other matter. See: BRONIK MOTORS LTD AND ANOTHER V. WEMA BANK LTD. 1983 1 SCNLR P.296.

OKOYA V. SANTILLI 1990 2 NWLR PT.131 P.172.

MADUKOLU V NKEMDILIM 1962 l ANLR PT.1 P.587.

Consequently, and from the well considered judgment of my brother, Tom Shaibu Yakubu, I hereby abide by the order made therein.

 

CHIDI NWAOMA UWA, J.C.A.: I have read before now the judgment of my learned brother Tom Shaibu Yakubu, JCA. I agree with his reasoning and conclusion arrived at in sustaining the preliminary objection on the issues formulated and split into sub issues being more than the grounds of appeal. In this case, there were two grounds of appeal from which the two issues were formulated, each issue was then split into two sub issues.

The principle governing the formulation of issues for determination is that a number of grounds could where appropriate be formulated into a single issue but, it is undesirable to split the issues in a ground of appeal, that is two or more issues from a single ground of appeal as was done in this case. See the cases of LABIYI V. ANRETIOLA (1992) 8 NWLR (PT.258) 139 and OGUNONZEE v. STATE (1997) 8 NWLR (PT.518) 566 at 579.

The issues so formulated are incompetent and rightly struck out along with the appeal,

I agree with the order granting the Respondent /cross appellant's alternative relief sought, and order refusing the award of general damages. I also hold that the cross appeal succeeds in part. I abide by the order made as to costs in favour of the Respondent/ cross appellant.