⦿ CASE SUMMARY OF:
University of Ilorin Teaching Hospital Management Board & Anor v. Mrs. Abdulrahaman Yetunde Mariam (2016) – CA
by NSA PaulPipAr
⦿ TAG(S)
– Employment;
– Appeal from National Industrial court;
⦿ PARTIES
APPELLANTS
1. University of Ilorin Teaching Hospital Management Board;
2. University of Ilorin Teaching Hospital
v.
RESPONDENT
Mrs. Abdulrahaman Yetunde Mariam
⦿ CITATION
(2016) LPELR-41673(CA);
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Boloukuromo Moses Ugo, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
– Joseph S. Bamigboye, SAN.
* FOR THE RESPONDENT
– Y. A. Alajo, Esq.
AAA
⦿ FACT (as relating to the issues)
This appeal is against the judgment of the National Industrial Court of Nigeria in Suit No NICN/LA/356/2012 delivered on the 19th of June 2013. In that Court, the respondent, a Principal Nursing Officer in the employment of the appellants, in her statement of facts, claimed against her employers, the appellants:
1. A Declaration that the refusal, failure, or neglect of the Defendants to facilitate her promotion since January 2010 till date as well as her subsequent suspension is unlawful, malicious, arbitrary and oppressive in the extreme on the footing of which she is entitled to be assuaged in damages.
2. A Declaration that her purported query and subsequent suspension by the appellants was malicious and hence null and void, of no effect whatsoever and must therefore be retracted by them.
3. A Declaration that it will be unjust, inequitable and indefensible in law to allow the appellants to delay and/or deny the promotion due to her since 2010 regard being had to the fact that she has passed the requisite promotion interview and was/is not culpable for any malfeasance incidental to such delay or denial.
4. An order compelling the appellants to reinstate her and to forthwith facilitate her due promotion from January 2010 when she passed the 2010 promotion exam, and to pay all the accrued income arrears thereof.
5. The sum of N50 million as aggravated and/or exemplary damages for the career stagnation or retrogression, financial misfortune, untold agony and emotional distress caused by the appellants unjustified delay and/or denial of the promotion due to the claimant since January 2010, as well as her illegal suspension.
After hearing both sides, the trial judge gave judgment in favour of the Defendant (now Respondent), and concluded: “On the whole and for the avoidance of doubt, I declare and order for the claimant in the following terms. 1. The refusal, failure or neglect of the defendants to promote the claimant since January 2010 till date is unlawful, mala fide, arbitrary and oppressive. 2. The purported query and subsequent suspension of the claimant was issued maliciously against the claimant hence null, void, of no effect whatsoever and must therefore, be retracted by the defendants. 3. The defendants are to forthwith recall the claimant to work and promote her to the next rank with effect from 2010 and without any loss of income. 4. The defendants shall to the claimant, pay within 30 days of this judgment, the sum of Two Hundred and Fifty Thousand Naira 9 (N250, 000) only as general damages for unfair labour practices against the claimant.
Dissatisfied, the Plaintiffs (now Appellants) have appealed to this Court of Appeal.
⦿ ISSUE(S)
**PRELIMINARY OBJECTION
1. By virtue of S. 243(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended by Constitution of the Federal Republic of Nigeria (Third Alteration Act 2010)) this Court lacks jurisdiction to entertain this appeal.
2. Alternatively, the appeal is incompetent for failure of the appellant to seek requisite leave of this Honourable Court to file same.
⦿ HOLDING & RATIO DECIDENDI
[PRELIMINARY OBJECTION: UPHELD, AND THE APPEAL WAS STRUCK OUT]
1 & 2: ISSUE 1 & 2 OF THE PRELIMINARY OBJECTIONS WERE CONSIDERED TOGETHER AND WERE RESOLVED IN FAVOUR OF THE RESPONDENT
RULING:
i. There is no doubt that the appellants took special care to generously garnish each of their complaints in these grounds with the expression “breach of fair hearing”. They picked holes in every decision of the trial judge that did not go their way and labelled them lack of fair hearing, with the obvious intention of bringing their appeal within the provisions of Section 243(2) of the Constitution so as to confer jurisdiction on this Court to entertain it. I guess they thought they had succeeded in doing that.
ii. From the foregoing, therefore, it is clear that the test of fair hearing under Section 36(1) of Chapter IV of the Constitution is whether the person complaining of its breach, in this case the appellants, was denied access to Court or other relevant tribunal to ventilate his grievance and whether the tribunal/Court or Judge who tried the case denied him/her a fair opportunity of presenting his case. Such denial can be, for instance, unfairly denying a party an adjournment as it happened in Alsthom S.A. & Anor v. Chief Dr. Olusola Saraki (supra) and Salu v. Egeibon (1994) 6 NWLR (PT 348) 23 or being high-handed in the case to the detriment of the party complaining. The appellants here have not complained of such in their four grounds of appeal; on the contrary, they freely elected to call one witness in the trial who also testified without any restraint. Through that witness they tendered, again without restraint or interference from the Court, necessary documents to sustain their defence. They also crossexamined the respondent to their satisfaction when she testified, which all mean the first part of the rule of fair hearing audi alteram partem was not breached. They have not also alleged bias against the trial Judge, which again means the other part of the rule nemo judex in causa sua was not breached. Indeed all they have tried to do and succeeded in doing in their grounds of appeal is to scream denial of fair hearing wherever the trial Judge did not share their view in any of their contentions with the respondent. They seem not to understand, even as I believe they actually do but are pretending not to, that it is the province of the trial Judge as an adjudicator to agree or disagree with the contentions of disputants before him as he appreciates them. To them “fair hearing” only means a hearing where the Court agrees with all their arguments regardless of their merit., anything else is unfair 36 hearing within their understanding of Section 36(1) of the 1999 Constitution for which a right of appeal lies to this Court under Section 243(2) of the same Constitution.
iii. For instance, how can the Court’s decision that there is no fine distinction between the two appellants as to affect the Court’s jurisdiction by their joinder (which is appellants’ complaint in ground 1); or the admissibility and use of Exhibit 13, the judgment of the Federal High Court, which is (their complaint in Ground 2 of the appeal); or the Court’s decision, after taking evidence, that the respondent be reinstated (which again is their complaint in Ground 3 of the appeal); or their ground 4 where they complained of the award of damages properly claimed, be interpreted to conjure issues of breach of fair hearing? I really cannot see it.
⦿ REFERENCED
– 243(2) of the 1999 Constitution;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
In other words, for an appeal to properly lie to this Court from the decision of the National Industrial Court under this Section, (a) Questions of fundamental rights must arise in the appeal; (b) Such questions of fundamental right must be those contained in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, as amended; and (c) Even at that, it is not every complaint against the decision of the National Industrial Court about breach of Fundamental Right contained in Chapter IV of the Constitution that appellate jurisdiction is conferred on the Court of Appeal, the breach in question must relate to matters over which jurisdiction is already conferred on the National Industrial Court (either by Section 254C of the 1999 Constitution (as amended by the Third Alteration Act of the Constitution) which spells out the jurisdiction of that Court, or by some other Act of the National Assembly conferring jurisdiction on it, of which in the latter case, the appeal has to be with the leave of the Court of Appeal. – Ugo, J.C.A. UniIlorin v. Yetunde (2016)
This Court must, and in fact has a constitutional duty to, consider the objection on its merit and substance regardless of any ineptitude or inelegance in the manner it may have been presented. – Ugo, J.C.A. UniIlorin v. Yetunde (2016)
The focus of this Court and the Supreme Court has always been on the questions or complaints raised in the grounds of appeal to this Court of Appeal and not relief or claim in the trial Court as contended by the respondent’s counsel. – Ugo, J.C.A. UniIlorin v. Yetunde (2016)
* SUBSTANTIVE
I think litigants also ought to realize by now that the National Industrial Court is specially established to provide an avenue for speedy resolution and disposal of industrial and allied disputes. That is the obvious intention of the provisions of Section 243(2) and (3) and Section 9(1) and (2) of the National Industrial Court Act 2006 circumscribing the right of appeal from that Court to this Court to only complaints of breach of a party’s fundamental right by that Court in the course of adjudication of disputes and further making the decision of this Court on such appeals final. It is the same intention speedy resolution and disposal of industrial and allied disputes with less emphasis on technicality that underpins Section 12(2) (a) and (b) of the National Industrial Court Act 2006 providing that the Superior Court of record that that Court is may regulate its practice and procedure as it thinks fit and that though it shall be bound by the Evidence Act, but unlike other superior Courts, it may depart from it (Evidence Act) in the interest of justice. It is indeed a peculiar Court with peculiar jurisdiction. – Ugo, J.C.A. UniIlorin v. Yetunde (2016)
