Hon. Yargata Byenchit Nimpar,JCA

“A Court Can Rely On Its Previous Ruling On A Particular Point, When Relevant In The Determination Of An Issue. This Is More So, Where The Court Had Earlier Resolved Same Issues Raised By A Party In Earlier Proceedings”

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
On Friday, the 24th Day of November, 2017

Before Their Lordships
Joseph Shagbaor lkyegh
Ugochukwu Anthony Ogakwu
Abimbola Osarugue Obaseki-Adejumo
Justices, Court of Appeal

MainStreet Bank Registrars Ltd ……. Appellant

Awe Olugbenga ………. Respondent

(Lead Judgement delivered by Hon. Yargata Byenchit Nimpar,JCA)


The Respondent filed a claim against the Appellant at the National Industrial Court (NIP seeking inter alia, a declaration that the purported termination of his employment was invalid, wrongful, and in breach of his terms of employment with the Appellant The Appellant denied liability, and the matter proceeded to trial. The Court entered judgement for the Respondent. Dissatisfied, with the decision, the Appellant filed this appeal.

Issues for Determination
(1) Whether the Honourable trial Judge was nght to adopt his erroneous finding of facts in his previous decisions, as his finding of facts and judgement in this case, in breath of the Appellant’s right to fair hearing;

(2) Whether the Honourable trial Judge was right, when he suo motu, made out a case in this matter different from the case submitted to it by the parties for adjudication, in breath of the Appellant’s right to fair hearing;

(3) Whether the Honourable trial Judge was n t, when he refused to consider any of the issues raise in the Appellant’s Reply on Points of Law in response to the Respondent’s Fing Written Address, in the final judgement of 30th September, 2015, in breath of the Appellants right to fair hearing;

(4) Whether the Honourable trial Judge was right, when he made findings on the documents (Exhibit A04, A03 & A09) tendered and relied on by the Respondent by admitting and/or placing full evidential value on the documents contrary to the provisions of the Evidence Act, 2011, without making any findings of facts and pronouncement on the objections raised by the Appellant as to their relevance and/or admissibility in breath of the Appellant’s right to fair hearing;

(5) Whether the trial Court was right to hold that the Respondent’s employment was wrongfully terminated, and to award damages in the sum of N172,660.52 as two months gross salary to the Respondent, a relief not sought by the Respondent in breath of the Appellant’s right to fair hearing; and

(6) Whether the trial Court was right to rely on “the purported handbook” and the photocopies of the Appellant’s minutes of the Board of Directors meeting with extraneous attachments, in awarding the sum of N550,7781.25, a relief not sought by the Respondent.

The summary of the Appellant’s argument, was that every decision must be based on the peculiar circumstances and facts surrounding it, and that failure of the Court to consider the peculiar facts of the suit before relying on its earlier judgements, constituted a breath of its right to fair hearing. It was submitted that, the trial Judge was wrong to suo motu make out a case different from the case submitted by the parties.

The Respondent, on his part, contended that the trial Court dealt with the issues raised by the Appellant, and that every Judge has a style of writing in so far as the case is properly resolved.

Court’s Judgement and Rationale
Resolving the issues, the Court noted that the decision of IHESI v ARINZE & ANOR (2007) 5 NWLR (Pt 1027) 241 relied upon by the Appellant, was distinguishable from the instant case where the trial Court relied on its previous decisions of UKANDU v MAINSTREET BANK REGISTRARS LIMITED (UNREPORTED) SUIT NO. NICN/LA/335/2013 and ABIMBOLA v MAINSTREET BANK REGISTRARS LIMITED (UNREPORTED) SUIT NO. NICN/LA/317/2013 delivered on 27th May, 2015. Here, the issues and the documents for evaluation were the same, so as the principal witness. Hence, the trial Court could not be faulted as a Court can rely on its previous ruling on a particular point, when relevant in the determination of an issue. This is more so, where the Court had earlier resolved same issues raised by a party in earlier proceedings.

On whether an erroneous finding is a breath of fair hearing, the Court observed that fair hearing was used in the instant case as a cancer with no definite shape or identity, as every perceived wrong was tagged as breath of fair hearing even when the Appellant had been given an opportunity to be heard. Fair hearing is giving equal opportunity to parties to be heard in litigation before the Court, and where parties are given opportunity to be heard but fail to use it, they cannot complain of breach of the right of hearing. DINGYADI v MEC

(2010) LPELR -952 SC. The Court held that the Appellant was not denied fair hearing, as it fully right in the trial and with the Court’s unfettered rig,ht to rely on any material in arriving at its judgement, the findings relied on by the trial Judge was permissible, so as to save judicial time and avoid repetition.

Further, fair hearing is the courts right to rule against a party after having considered its case. A court of law has no legal duty to confine itself only to authorities cited by the parties; UNOGBO v UNA (2002) 16 NWLR (Pt.792) 175 at 211-212, but can include its own decision which it considers relevant. It follows that the arguments of the Appellant, were frivolous and misconceived.

there was nopleading in support of Pre-action notice; thus, the findings of the trial Court on the issue of Pre-action notice, not being the case of the parties, was wrong and same was set aside. A court, cannot raise issues suo

On the second issue, the Appellate Court agreed that motu and resolve same, without affording the parties an opportunity to address the Court thereon. Therefore, the trial Court erred, by including the issue of pre-trial notice in its finding on jurisdiction. Nonetheless, this did not occasion a miscarriage of justice to the Appellant, as the issue of jurisdiction is covered by the Constitution and not the Companies and Allied Matters Act relied on by the Appellant.

Parties had joined issues on the minutes of meeting of the Board of Directors, which the Appellant had asked the Court to take judicial notice of. Hence, to say the decision of the court was perverse because a copy of the minutes was tendered by theRespondent, was untenable. The Appellant who had adopted the answers to cross-examination in the UKANDU’S case, cannot turn around to complain when the Court also relied on its findings on similar issues in those cases.

Deciding the third issue, it was observed that the trial Court reviewed all preliminary issues raised by the Appellant in its Reply on Points of Law, which was similar to those raised in U’S and ABIMI3OLA’S cases, where the trial Court adopted the findings in the judgement. The Appellant who had invited the Court to take judicial notice of the records, cannot challenge the adoption of the Court’s findings therein.

On the fourth issue regarding admissibility of some documents in contravention of the Evidence Act, the Appellate Court stated that there is no rule ofpractice that says that the Court must make specific findings on each statement of counsel. Admissibility is founded on relevance and pleadings, the test which was met by the Respondent – OKONJI v NJOKANMA (1999) 14 NWLR (PT.683) 250. Though what is required to be tendered as documentary evidence is the original, the same law a situation where the original may not be availab , such that a party can use secondary evidence, so far as the necessary foundation is laid — Section 87 of the Evidence Act. Having complied with the above, the Evidence Act was not flouted in any way. By the decision of the Court of Ape the lower Court it is bound to observe the provisions of the Evidence Act contrary to Section 12 of the NI C Act. SECURITIES AND EXCHANGE CONMHSSION v ABILO UBOBOSO CA/A/388/2013 (Unreported) and delivered on 21st December, 2016. The trial Court evaluated all the exhibits, and the fact that the finding did not benefit the Ap. -Rant, did not mean they were not evaluated.

Deciding issues five and six, their Lordships held that it is settled that a Court cannot give what was not for bu a Claimant. NIGERIAN AIR FORCE v SHEKETE (2002) 18 NWLR (PT.798) 129. However, the Apaellate Court justified the two months’ salary awarded to the Respondent, even though the handbook stipulated a month’s salary in lieu of notice as in this case, the Appellant terminated the employment of the Respondent by letter giving only one day notice. Thus, failure to pay the one months salary in lieu of notice was a breath of the term of employment, and payment after such alleged termination, is wrongful. Also, going by the handbook which had been approved by the Board, the Respondent was entitled to terminal benefits having served for 5 years, which the trial Court computed. The terminal benefits includes gratuity – JULIUS BERGER (MG) PLC v NWAGWU (2006) 12 NWLR (Pt995) 518. The trial Court considered all evidence before it, and arrived at a just decision which the Appellate Court could not interfere with. By the way, a Court has the power to make consequential orders, and that cannot be offensive in anyway. USIOBAIFO v USIOBAIFO (2005) 3 NWLR (PT.913) 665. The award of sum of N550,781.25 was justified and well founded.

On this note, the Court found that the appeal lacked merit, and same was dismissed with costs of N100,000.00 against the Appellant in favour of the Respondent.

Appeal Dismissed.


Dr. Charles Mekwunye with Cyril Onyeogaziri and John Ochada for the Appellant.

Paul I. Okoh with B. N. Chukwu for the Respondent.

Reported by Opthnum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMIR))

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