C.B.N v. Dinneh (2021)

CENTRAL BANK OF NIGERIA

V.

UCHENNA GODSWILL DINNEH

SUPREME COURT OF NIGERIA

SC. 372/2010

NWALI SYLVESTER NGWUTA, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C.

JOHN INYANG OKORO, J.S.C. (Read the Leading Judgment)

CHIMA CENTUS NWEZE, J.S.C.

EJEMBI EKO, J.S.C.

FRIDAY, 22ND JANUARY 2021

ADMINISTRATIVE LAW – Misconduct – Allegation of againstemployee – Where misconduct alleged amounts to crime- Need for trial and conviction of employee by court of lawbefore disciplinary action – Rationale for.

AGENCY – Counsel – Authority of counsel to admit facts on behalfof client – Nature of – Admission so made – Whether bindingon client.

APPEAL – Appeal – When counsel should not file.

APPEAL – Appeal from Court of Appeal to Supreme Court -Grounds of appeal filed – Where on ground of fact – Failureof appellant to obtain leave of Court of Appeal or SupremeCourt – Effect of.

APPEAL – Appellant – Where alleges respondent did not prove at trial- Duty on to show ingredient of respondent’s case not proved.

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APPEAL – Concurrent findings of fact of lower courts – Settingaside of at the Supreme Court – Appellant seeking – Duty on -What appellant must show to succeed.

APPEAL – Court of Appeal – Decision of in appeal arising fromcivil jurisdiction of National Industrial Court – Finality of.

APPEAL – Grounds of appeal – Ground from which no issue isformulated – How treated – Whether deemed abandoned.

APPEAL – Leave to appeal – Appeal from Court of Appeal toSupreme Court – Where on ground of fact – Failure of appellantto obtain leave of Court of Appeal or Supreme Court – Effectof.

CONSTITUTIONAL LAW – Fair hearing – Duty on court to grantfair hearing to both parties to a suit.

CONSTITUTIONAL LAW – Fair hearing – Observance of duringtrial – Determinant of.

CONSTITUTIONAL LAW – Fair hearing – What amounts to.

COURT – Court of Appeal – Decision of in appeal arising from civiljurisdiction of National Industrial Court – Finality of.

COURT – National Industrial Court – Exclusive jurisdiction of overcivil causes and matters relating to or connected therewith -Source of – Scope of – Beginning of – Section 254C(1), 1999Constitution as amended by Act No.3 of 2010.

COURT – Record of court – Binding effect of on parties to an action.

EMPLOYMENT LAW – Civil cases based on employment matters- Appeal to Court of Appeal against decision of NationalIndustrial Court – Decision of Court of Appeal thereon -Finality of.

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EMPLOYMENT LAW – Employment matters – Civil causesand matters relating to or connected therewith – Exclusivejurisdiction of National Industrial Court in respect of -Source of – Scope of – Beginning of – Section 254C(1), 1999Constitution as amended by Act No.3 of 2010.

EMPLOYMENT LAW – Employment with statutory flavour – Actionof employer thereunder – When null and void.

EMPLOYMENT LAW – Misconduct – Allegation of against employee- Where misconduct alleged amounts to crime – Need for trialand conviction of employee by court of law before disciplinaryaction – Rationale for.

ESTOPPEL – Estoppel by conduct – Operation of – Effect of.

ESTOPPEL – Estoppel by conduct – Principle of – When and how itoperates – Section 169, Evidence Act, 2011.

EVIDENCE – Admission – Admission of counsel – Binding effect ofon client.

EVIDENCE – Admission – Effect of – Whether may operate asestoppel – Section 27, Evidence Act, 2011.

EVIDENCE – Admission – Fact admitted – Whether needs furtherproof.

EVIDENCE – Estoppel – Estoppel by conduct – Operation of – Effectof.

EVIDENCE – Estoppel – Estoppel by conduct – Principle of – Whenand how it operates – Section 169, Evidence Act, 2011.

EVIDENCE – Proof – Fact admitted – Whether needs further proof.

EVIDENCE – Proof – Failure of plaintiff to prove case – Allegationof on appeal – Duty on appellant to show ingredient of casenot proved.

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FAIR HEARING – “Heari ng” – “Opportunity to be heard” – Whenamount s to fair hearing.

FAIR HEARING – Observance of fair hearing during trial -Determinant of.

FAIR HEARING – Principle of fair hearing – Duty on court to grantfair hearing to both parties to a suit.

JUDGMENT AND ORDER – Decision of court – Court of Appeal -Decision of in appeal arising from civil jurisdiction of NationalIndustrial Court – Finality of.

JURISDICTION – National Industrial Court – Exclusive jurisdictionof over civil causes and matters relating to or connectedtherewith – Source of – Scope of – Beginning of – Section254C(1), 1999 Constitution as amended by Act No.3 of 2010.

LABOUR LAW – Civil cases based on employment matters – Appealto Court of Appeal against decision of National IndustrialCourt – Decision of Court of Appeal thereon – Finality of.

LABOUR LAW – Employment with statutory flavour – Action ofemployer thereunder – When null and void.

LABOUR LAW – Misconduct – Allegation of against employee -Where misconduct alleged amounts to crime – Need for trialand conviction of employee by court of law before disciplinaryaction – Rationale for.

LEGAL PRACTITIONER – Counsel – Admission of – Binding effectof on client.

LEGAL PR ACTITIONER – Counsel – Authority of – Scope of – Whethercan make compromise or admission on behalf of client.

LEGAL PRACTITIONER – Counsel – Authority of counsel to admitfacts on behalf of client – Nature of – Admission so made -Whether binding on client.

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LEGAL PRACTITIONER – Counsel – When should not file appeal.

PRACTICE AND PROCEDURE – Admission – Effect of – Whethermay operate as estoppel – Section 27, Evidence Act, 2011.

PRACTICE AND PROCEDURE – Admission – Fact admitted -Whether needs further proof.

PRACTICE AND PROCEDURE – Admission of counsel – Bindingeffect of on client.

PRACTICE AND PROCEDURE – Appeal – Appeal from Court ofAppeal to Supreme Court – Where on ground of fact – Failureof appellant to obtain leave of Court of Appeal or SupremeCourt – Effect of.

PRACTICE AND PROCEDURE – Appeal – Appellant – Wherealleges respondent did not prove at trial – Duty on to showingredient of respondent’s case not proved.

PRACTICE AND PROCEDURE – Appeal – Concurrent findings offact of lower courts – Setting aside of at the Supreme Court -Appellant seeking – Duty on – What appellant must show tosucceed.

PRACTICE AND PROCEDURE – Appeal – Grounds of appeal -Ground from which no issue is formulated – How treated -Whether deemed abandoned.

PRACTICE AND PROCEDURE – Appeal – Leave to appeal -Appeal from Court of Appeal to Supreme Court – Where onground of fact – Failure of appellant to obtain leave of Courtof Appeal or Supreme Court – Effect of.

PRACTICE AND PROCEDURE – Appeal – When counsel shouldnot file.

PR ACTICE AND PROCEDURE – Counsel – Authority of – Scopeof – Whether can make compromise or admission on behalf ofclient.

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PRACTICE AND PROCEDURE – Counsel – Authority of counselto admit facts on behalf of client – Nature of – Admission somade – Whether binding on client.

PRACTICE AND PROCEDURE – Court of Appeal – Decision of inappeal arising from civil jurisdiction of National IndustrialCourt – Finality of.

PRACTICE AND PROCEDURE – National Industrial Court -Exclusive jurisdiction of over civil causes and matters relatingto or connected therewith – Source of – Scope of – Beginningof – Section 254C(1), 1999 Constitution as amended by ActNo.3 of 2010.

PRACTICE AND PROCEDURE – Pleadings – Amendment of -Effect of – Whether original pleadings still defines issues beforecourt – Reference to by court in judgment – Whether permitted- Reliance on by court in judgment – Whether improper.

PRACTICE AND PROCEDURE – Pleadings – Amendment ofpleadings – Purpose of – When takes effect.

PRACTICE AND PROCEDURE – Pleadings – Fact admittedin original pleading – Repetition of in amended pleading -Where relied on by court – Whether amounts to using originalpleading.

PRACTICE AND PROCEDURE – Pleadings – Facts pleaded -Failure to deny – Effect of – Whether facts are deemed admitted.

PRACTICE AND PROCEDURE – Pleadings – Facts pleaded -Failure to present evidence thereon – How treated – Whetherfacts are deemed abandoned.

PRACTICE AND PROCEDURE – Record of court – Binding effectof on parties to an action.

WORDS AND PHRASES – Fair hearing – What amounts to.

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Issues:

1.Whether from the totality of the evidence adducedby the respondent, the Court of Appeal was right infinding for the respondent.

2.Whether a previous admission followed by anamendment wherein the earlier admission was resiledfrom can still be binding on a party.

Facts:

The respondent was an employee of the appellant. Anallegation was made by the appellant that documents relating tostatutory allocations in respect of Benue, Anambra, and Edo Stateswere forged. Queries were raised and served on the respondentand he duly responded to the same. A disciplinary committee wasset up to look into allegations made against the respondent in thequeries. The appellant was not satisfied with the explanation givenby the respondent. So the appellant dismissed the respondent fromits employment.

The respondent equally being dissatisfied with his dismissalfrom the appellant’s employment, commenced an action againstthe appellant and sought several reliefs. Principally, the respondentsought: a declaration that his dismissal from the appellant’semployment was illegal, ineffectual, and unconstitutional becauseit breached the respondent’s right to fair hearing and the rules andregulations governing the respondent’s contract of service with theappellant defendant; and an order reinstating the respondent tohis employment with the appellant. The respondent pleaded thegrounds upon which he could be dismissed from the appellant’semployment.

At the trial, the parties by their respective counsel, admittedsome facts as presented on the pleadings. Though the partiesamended their original pleadings, the appellant did not withdrawthe admission made by its counsel. Each party called one witnessand tendered documentary evidence by consent of their respectivecounsel. The respondent presented oral and documentary evidencethat he was on his annual leave approved by the appellant at thematerial time when the alleged misconduct he was accused of bythe appellant was committed, and the appellant did not refute thatevidence in any manner.

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In its judgment, the trial court held that the admission madeby the appellant’s counsel was binding and relevant in consideringthe case. It also held that the allegation of fraud and forgery onwhich the appellant dismissed the respondent from employment arecriminal in nature, and that the respondent could not be dismissedtherefor because the allegations were not proved before any court oflaw. In sum, the trial court found in favour and granted his claims.

The Court of Appeal dismissed the appellant’s appeal. So itappealed to the Supreme Court on seventeen grounds of appealfrom which it distilled two issues for determination. According tothe appellant, issue 1 covered grounds 2, 3, 6, 8 and 14 while issue2 was distilled from grounds 1, 5, 9 and 15.In effect, the appellantdid not formulate any issue from grounds 4, 7, 10, 11, 12, 13, 16and 17 of its grounds of appeal.

Held (Unanimously dismissing the appeal):

1.On Need for trial and conviction of employee forallegation of misconduct amounting to crime beforedismissal of such employee –

Where there is an allegation of criminal wrongsagainst a person, the jurisdiction to determine theallegation is vested in the courts and the exerciseof such jurisdiction cannot be usurped by anyadministrative tribunal. The reason is simple.Where there are serious allegations of fraud andforgery, the matter is beyond the power of anadministrative panel. It has to be pronouncedupon by the courts of law, as the allegations are ofserious nature requiring proper judicial processesin all their ramification. In this case, the respondentwas accused of misconduct amounting to criminaloffence. In the circumstance, the trial court and theCourt of Appeal rightly found that the respondentshould have been tried by the ordinary court beforehis dismissal from employment. [Dongtoe v. CivilService Commission, Plateau State (2001) 9 NWLR(Pt. 717) 132; Baba v. N.C.A.T.C., Zaria (1991) 5NWLR (Pt. 192) 388; A.C. v. INEC (2007) 12 NWLR

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(Pt. 1048) 220; Garba v. University of Maiduguri(1986) 1 NWLR (Pt. 18) 550; Sofekun v. Akinyemi(1981) 1 NCLR 135; F.C.S.C. v. Laoye [1989] 2NWLR (Pt. 106) 652; Esiaga v. University of Calabar(2004) 7 NWLR (Pt. 872) 366 referred to.] (P. 118,paras. B-E)

2.On When action of statutory employer is null and void –

Where an employer acts contrary to the termsand conditions of a contract of employment thatenjoys statutory flavour, such act is null andvoid. In this case, the appellant failed to adhereto the employment conditions for dismissing therespondent from its service. In the circumstance,the dismissal is wrongful. [C.B.N. v. Igwillo (2007)14 NWLR (Pt. 1054) 393 referred to.] (P. 121, paras.B-C)

3.On Scope of authority of counsel –

A counsel acting within the province of his authoritycan compromise or admit a fact at the trial and suchcompromise or admission is binding and effective.[Mosheshe General Merchant Ltd. v. Nigeria SteelProducts Ltd. (1987) 2 NWLR (Pt. 55) 110 referredto.] (P. 124, paras. C-D)

4.On Authority of counsel to admit facts on behalf ofclient –

A legal practitioner while acting as counsel has theimplied authority to make any admission of factswith proof of the particular facts and the admissionmay be binding if not retracted by the client beforejudgment. [Agi v. P.D.P. (2017) 17 NWLR (Pt. 1595)386; Chikere v. Okegbe (2000) 12 NWLR (Pt. 681)274; Adewunmi v. Plastex (Nig.) Ltd. (1986) 3 NWLR(Pt. 32) 767; Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118; Cappa & D’Alberto Ltd. v. Akintilo (2003) 9NWLR (Pt. 824) 49 referred to.] (P. 124, paras. B-C)

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5.On Binding effect on client of counsel’s admission –

An a dmission made by a counsel on behalf of a partyin a case is binding on that party. [Okesuji v. Lawal(1991) 1 NWLR (Pt. 170) 661; Ogboru v. Uduaghan(2011) 17 NWLR (Pt. 1277) 538 referred to.] (P. 124,para. A)

6.On Whether fact admitted needs further proof –

Facts admitted need not be proved or need nofurther proof. In this case, the facts pleaded by therespondent on when the appellant can dismiss himfrom employment under the terms and conditionsof respondent’s employment are deemed admittedby the appellant. In the circumstances, the factsadmitted needed no further proof. [Economides v.Thomopulos (1956) 1 FSC 7; Ejiogu v. NDIC (2001)3 NWLR (Pt. 699) 1 referred to.] (Pp. 121. para. D,123, para. H )

7.On Whether facts admitted need further proof –

By virtue of section 123 of the Evidence Act, 2011,no facts need be proved in any civil proceedingswhich parties thereto or their agents and/or counselagree to admit at the hearing, or which, before thehearing they agree to admit by any writing undertheir hand or which by any rule of pleading in forceat the time they were deemed to have admittedby their pleadings. A court may, however, in itsdiscretion, depending on the peculiar facts ofthe case, require the facts admitted to be provedotherwise than by such admission. (P. 123, paras.F-H)

8.On Effect of admission –

Section 27 of the Evidence Act 2011, provide thatthough admissions are not conclusive proof of thematters admitted, they may operate as estoppel. (P.132, paras. F-G)

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9.On When and how principle of estoppel by conductoperates –

Estoppel by conduct, a principle in equity, hasbeen codified and incorporated into the EvidenceAct 2011, which by its section 169 provides thatwhen one person has, either by virtue of an existingcourt judgment, deed or agreement, or by hisdeclaration, act or omission, intentionally causedor permitted another person to believe a thing tobe true and to act upon such belief, neither he norhis representative in interest shall be allowed, inany proceeding between himself and such personor such person’s representative in interest, to denythe truth of that thing. In this case, the appellant, asthe defendant, had previously admitted some factsmaterial to the case they were defending. Therefore,the appellant was estopped from subsequentlystating the contrary of those facts it admittedagainst its interest. (P. 132, paras. D-F)

10.On Effect of operation of estoppel by conduct –

The rule of estoppel by conduct in equity estops aparty from retracting an admission made by partyto the detriment of the opposing party who hadacted on such admission against interest. In thiscase, the appellant’s counsel made admissions ofsome material facts in issue at the trial court. Inthe circumstance, it was unconscionable for theappellant to subsequently retract the admissionand resile therefrom. (P. 132, paras. B-C)

11.On Binding effect of record of court on parties to anaction –

Parties are bound by the unchallenged record ofcourt. In this case, though the appellant amendedits statement of defence, the pleadings and trialcourt’s proceedings on record do not show thatthe appellant stated that it was withdrawing theearlier admission made by its counsel. [Magajiv. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338;Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt. 958)

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438; Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071)378 referred to.] (Pp. 126-127, paras. G-A)

12.On Effect of failure to deny pleaded facts –

Facts pleaded and not denied are deemed admitted.In this case, the respondent pleaded facts on whenhe can be summarily dismissed from the appellant’semployment, but the appellant did not deny the factspleaded. In the circumstances, the facts pleadedby the respondent are deemed admitted by theappellant. [Din v. A.N.N. Ltd. (1990) 3 NWLR (Pt.139) 392; Achilihu v. Anyatonwu (2013) 12 NWLR(Pt. 1368) 256 referred to.] (P. 121, paras. C-D)

13.On How facts on which no evidence was presented aretreated –

Facts pleaded on which no evidence is led insupport are deemed abandoned. In this case,even if the appellant pleaded anything in its finalamended statement of defence contrary to theearlier admission of its counsel that the respondentwas on leave when the alleged fraud occurred, theappellant’s sole witness did not give evidence on it.(P. 127, paras. G-H)

14.On Purpose of amendment of pleadings and whenamendment takes effect –

.Amendment to pleadings are ultimately to enablethe court decide the real issues in controversybetween the parties. It is to prevent the court fromgiving judgment in ignorance of the facts thatshould be known before the rights of the partiesare finally decided. Further, the amendment ofpleadings relates to the original pleadings and allamendments before the final amendments cease tobe pleadings to be relied on in the trial. [Oforishev. N.G.C. Ltd. (2018) 2 NWLR (Pt.1602) 35; Rotimiv. Macgregor (1974) 11 SC 133; Enigbokan v. A.I.I.Co. Nig. Ltd. (1994) 6 NWLR (Pt. 348) 1; Salami v.Oke (1987) 4 NWLR (Pt. 63) 1 referred to.] (P. 127,paras. A-C)

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15.On Whether proper for court to refer to and rely onoriginal pleading after it had been amended –

There is nothing fundamentally wrong with a trialJudge merely referring to an original statementof claim or defence when there exists an amendedversion of the pleading. But there is everythingwrong with the trial Judge relying on an originalstatement of defence to arrive at the live issuesin a case where there exists an amended version.Once there is an amendment, the original pleadingno longer define the issues to be tried. In this case,although the appellant argued that the trial courtused the original statement of defence to decide thecase in spite of several amendments, the appellantfailed to refer specifically to the record or even thejudgment of that court where such was done. Inthe circumstance, the appellant’s argument was invacuum. [Salami v. Oke (1987) 4 NWLR (Pt. 63) 1referred to.] (P. 127, paras. C-F)

16.On Whether court’s reliance on admission in originalpleading repeated in amended pleading amounts toreliance on original pleading –

Where facts admitted by a party in an originalpleading is repeated in the final amended pleading,it cannot be said that the trial court used theoriginal pleading instead of the final amendedpleading. In this case, the appellant failed to showin its fourth amended statement of defence that theissues or facts which were admitted in the originalpleadings are no longer the issues calling for thedetermination by the court. In the circumstance,the Court of Appeal rightly affirmed the conclusionof the trial court that the admission made by theappellant’s counsel was binding and relevant inconsidering the case before it. (P. 127, paras. F-G)

17.On Duty on court to be fair to both parties to a case –

The principle of fair hearing imposes a duty onthe court to be fair to the both parties to a case.It, therefore, does not anticipate a standard of

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justic e which is biased in favour of one party, butprejudices the other. Above all, it is not a technicaldoctrine, but one of substance. [Ndu v. State (1990)7 NWLR (Pt.164) 550; Ogundoyin v. Adeyemi (2001)13 NWLR (Pt. 730) 403; Kotoye v. C.B.N. (1989) INWLR (Pt. 98) 418 referred to.] (P. 129, paras. E-G)

18.On Determinant for observance of fair hearing duringtrial –

The standard for determining the observance offair hearing in trials is not the question whetherany injustice has been occasioned on any party dueto want of hearing. It is rather the question whetheran opportunity of hearing was afforded to partiesentitled to be heard. [J.C.C. Inter Ltd. v. N.G.I. Ltd.(2002) 4 WRN 91 referred to.] (P. 129, paras. G-H)

19.On What amounts to fair hearing –

In order to be fair, a “hearing” or an “opportunityto be heard” in a judicial inquiry, must encompassa party’s right:

To be present all through the proceedings, to(a)hear all the evidence against him/her.

To cross-examine or otherwise confrontor contradict all the witnesses that testify(b)against him.

To have read before him, all the documents(c)tendered in evidence at the hearing.

To have disclosed to him the nature ofall relevant material evidence, includingdocumentary evidence, prejudicial to him,(d)except in recognised exceptions.

To know the case he has to meet at thehearing and have adequate opportunity to(e)prepare for his defence.

To give evidence by himself, call witnesses,if he likes, and make oral submission either(f)personall y or through counsel of his choice.

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[Nwanegbo v. Oluwole (2001) 37 WRN 101; Dawoduv. N.P.C. (2000) 6 WRN 116; Durwode v. State (2000)15 NWLR (Pt. 691) 467 referred to.] (P. 130, paras.A-D)

20.On Exclusive jurisdiction of National Industrial Courtover civil causes and matters relating to or connectedwith employment matters –

By section 254C(1) of the 1999 Constitution (asamended), particularly by the Act No.3 of 2010,the National Industrial Court of Nigeria has andexercises exclusive jurisdiction in civil causesand matters relating to or connected with labour,employment, matters arising from workplace, theconditions of service, dismissal of employees, – andmatters incidental thereto or connected therewith.In this case, the cause of action was the appellant’sdismissal of the respondent from employment formisconduct based on fraud and forgery. The issuewas whether the alleged dismissal of the respondent,whose employment with the appellant had statutoryflavour, was proper in law. That dispute, post the2010 alteration to the 1999 Constitution vide ActNo.3 of 2010, should have fallen to the exclusivejurisdiction of the National Industrial Court ofNigeria. (P. 131, paras. A-C)

21.On Finality of decision of Court of Appeal in appealsarising from civil jurisdiction of National IndustrialCourt –

Section 243(4) of the 1999 Constitution (as amended)provides inter alia that the decision of the Court ofAppeal in respect of any appeal arising from thecivil jurisdiction of the National Industrial Courtof Nigeria shall be final. In this case, the appellant’sappeal had been brought and filed in the SupremeCourt before the alteration of the 1999 Constitutionby the Act No.3 of 2010 took its effect. (P. 131, paras.E-F)

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22.On When counsel should not file appeal –

Counsel should not file an appeal if he has nothingimportant to argue on behalf of the appellant. Inthis case, counsel for the appellant treated theappeal with levity by filing seventeen grounds ofappeal and distilling two issues for determination,and in presenting argument of just a page and ahalf with double space typesetting on issue one. (P.117, paras. A-B)

23.On Duty on appellant who alleges respondent did notprove at trial –

An appellant who alleges that the respondentdid not prove his case at trial must show theingredients, which were not proved. In this case,the appellant alleged that the respondent did notprove his case, but failed to show the ingredients ofthe respondent’s case that were not proved. (P. 120,paras. E-F)

24.On What appellant seeking setting aside of concurrentfindings of fact by lower courts must show to succeed –

An appellant at the Supreme Court who seeksthe setting aside of the concurrent findings of atrial court and the Court of Appeal must presentcogent reasons why the Supreme Court should doso because the Supreme Court rarely interfereswith the concurrent findings of two lower courts.In other words, the appellant must expressly andcogently show that the findings are perverse. If hedoes not do so, the Supreme Court will not disturbthe findings of the lower courts. In this case, theappellant did not refute the respondent’s oral anddocumentary evidence that he was on annual leaveat the material time when the alleged misconducthe was accused of by the appellant was committed.[Iragunema v. R.S.H.P.D.A. (2003) 12 NWLR (Pt.834) 427; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127; O basuyi v. Business Ventures Ltd. (2000)5 NWLR (Pt. 658) 668 referred to.] (P. 117, paras.B-C)

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25.On Effect of failure to obtain leave to appeal ongrounds of fact in appeal from Court of Appeal toSupreme Court –

By virtue of section 233(2) & of the 1999Constitution, grounds of appeal based on facts areincompetent where filed without leave of court. Inthis case, grounds 1, 5, 9, and 15 of the appellant’sgrounds of appeal are complaints of pure facts filedwithout leave of court. In the circumstance, thegrounds of appeal and issue 1 formulated therefromby the appellant were incompetent and were struckout. (Pp. 131-132, paras. G-A)

26.On How ground of appeal from which no issue fordetermination is formulated is treated –

Any ground of appeal from which no issue fordetermination is distilled is deemed abandonedand liable to be struck out. In this case, the sevengrounds of appeal from which no issue was distilledwere abandoned and struck out. [Adelekan v.Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33; Alims(Nig.) Ltd. v. UBA Plc (2013) 6 NWLR (Pt. 1351)613; Udoechi v. Alinarat (2000) FWLR (Pt. 22)210; Sparkling Breweries Ltd. v. U.B.N. Ltd. (2001)15 NWLR (Pt.737) 539 referred to.] (P. 114, paras.G-H)

Nigerian Cases Referred to in the Judgment:

Achilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256

Action Congress v. INEC (2007) 12 NWLR.(Pt. 1048) 220

Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33

Adewunmi v. Plastex (Nig.) Ltd. (1986) 3 NWLR (Pt. 32) 767

Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378

Agi v. P.D.P. (2017) 17 NWLR (Pt. 1595) 386

Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118

Alims (Nig.) Ltd. v. United Bank for Africa (2013) 6 NWLR(Pt. 1351) 613

Baba v. NCATC Zaria (1991) 5 NWLR (Pt. 192) 388

CAPPA & D Alberto Ltd. v. Akintilo (2003).9 NWLR (Pt..824) 49

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Central Bank of Nigeria v. Igwillo (2007) 14 NWLR (Pt.1054) 393

Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) 274

Dawodu v. N.P.C. (2000) 6 WRN 116

Din v. African Newspapers of Nigeria Ltd. (1990) 3 NWLR(Pt. 139) 392

Dongtoe v. Civil Service Commission, Plateau State (2001) 9NWLR (Pt..717) 132

Durwode v. State (2000)15 NWLR (Pt. 691) 467

Economides v. Thomopuluss (1956) 1 FSC 7

Ejiogbu v. N.D.I.C. (2001) 3 NWLR (Pt. 699) 1

Enigbokan v. A.I.I. Company (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1

Esiaga v. University of Calabar (2004) 7 NWLR (Pt.872) 366

F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652

First Bank of Nigeria Plc v. J.S.A. Industries Ltd. (2007) AllFWLR.(Pt. 352) 1719

Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18)550

Iragunema v. Rivers State Housing & Property DevelopmentAuthority (2003) 12 NWLR (Pt. 834) 427

J.C.C. Inter Ltd. v. N.G.I. Ltd. (2002) 4 WRN 91

Jida v. Central Bank of Nigeria (2001) 5 NWLR (Pt. 705) 165

Kotoye v. C.B.N. (1989) I NWLR (Pt. 98) 418

Larmie v. Data Processing Maintenance & Services Ltd.(2005) 18 NWLR (Pt. 958) 438

Magaji v. Nigerian Army (2008).8 NWLR (Pt. 1089) 338

Morohunfola v. Kwara State College of Technology (1990) 4NWLR (Pt. 145) 506

Mosheshe General Merchant Ltd. v. Nigeria Steel ProductsLtd. (1987) 2 NWLR (Pt. 55) 110

Ndu v. State (1990) 7 NWLR (Pt.164) 550

Niko Engineering Ltd. v Akinsina (2005) All FWLR (Pt. 292)307

Nwanegbo v. Oluwole (2001) 37 WRN 101

Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658)668

Oforishe v. Nigerian Gas Co. (Nig.) Ltd. (2018) 2 NWLR(Pt.1602) 35

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Ogboru v. Uduaghan (2011) 17 NWLR (Pt. 1277) 538

Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403

Ogunyade v. Oshinkeye (2007) 15 NWLR (Pt. 1057) 218

Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661

Rotimi v. Macgregor (1974) 11 SC 133

Salami v. Oke (1987) 4 NWLR.(Pt. 63) 1

Savannah Bank (Nig.) Plc v. Fakokun (2002) 1 NWLR (Pt.749) 544

Shuaibu v. Union Bank of Nigeria Plc (1995) 4 NWLR (Pt.388) 173

Sofekun v. Akinyemi (1980) LPELR (SC) 23-26

Sofekun v. Akinyemi (1981) 1 NCLR 135, (1980) 5-7 SC

Sparking Breweries Ltd. v. Union Bank Ltd. (2001) 15 NWLR(Pt.737) 539

Tunbi v Opawole (2000) 2 NWLR (Pt. 644) 275

Udoechi v. Alinarat (2000) FWLR (Pt. 22) 210

Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127

Union Bank v. Ogboh (1995) 2 NWLR (Pt. 380) 647

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999, (asamended) by Act No. 3 of 2010, Ss. 36(1), 233(2)(3); 243(4);254C(i)

Evidence Act, 1990, Ss. 26, 27

Evidence Act, 2011, Ss. 123, 169

Public Officers Protection Act, 1990, S. 2

Appeal:

This was an appeal against the decision of the Court of Appeal,which dismissed the appellant’s appeal against the judgment of theFederal High Court. The Supreme Court, in a unanimous decision,dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Nwali SylvesterNgwuta, J.S.C. (Presided); Olukayode Ariwoola, J.S.C.;John Inyang Okoro, J.S.C. (Read the Leading Judgment);

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Chima Centus Nweze, J.S.C.; Ejembi Eko, J.S.C.

Appeal No.: SC.372/2010

Date of Judgment: Friday, 22nd January 2021

Names of Counsel: Aminu Suleiman, Esq. – for theAppellant

L. O. Fagbemi, SAN settled the Respondent’s brief

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Abuja

Names of Justices that sat on the appeal: Uwani MusaAbba Aji, JCA (Presided) Jimi Olukayode Bada, JCA;Ayobode Olujimi Lokulo-Sodipe, JCA (Read the leadingJudgment)

Appeal No.: CA/A/121/08

Date of Judgment: Monday, 1st February 2010

Names of Counsel: B. Aluko-Olotan, SAN (with him,F.V. Okolo, Esq) – for the Appellants

L.O. Fagbemi, SAN (with him, O.A. Dare and B. A.Oyun, Esq) – for the Respondents

High Court:

Name of the High Court: Federal High Court, Abuja.

Name of the Judge: Chikere, J.

Suit No.: FHC/ABJ/CS/355/2003.

Date of Judgment: Thursday, 13th December, 2007

Counsel:

Aminu Suleiman, Esq. – for the Appellant

L. O. Fagbemi, SAN settled the Respondent’s brief

OKORO, J.S.C. (Delivering the Leading Judgment): This is anappeal against the judgment of the Court of Appeal sitting in Abujadelivered on 1st February, 2010 wherein the court below dismissedthe appeal of the appellant which is also the appellant in this appeal.The facts leading to this appeal are as hereunder stated:-

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The appellant was the defendant in an action instituted beforethe trial Federal High Court, Abuja division by the respondent asplaintiff challenging his dismissal from the employment of theappellant. The respondent, prior to his dismissal had risen to theposition of senior supervisor in the Foreign Operations Departmentof the Bills Office. In 2003, an allegation was made by the appellantthat documents relating to statutory allocations in respect of Benue,Anambra and Edo States were forged. Queries were raised andserved on the respondent and he duly responded to the same.Disciplinary Committee was set up to look into allegations madeagainst the respondent in the queries and the appellant not beingsatisfied with the explanation given by the respondent, proceededto dismiss him. The respondent equally being dissatisfied with theway and manner in which he was dismissed from the employmentof the appellant, commenced this action challenging his dismissal.

Record of appeal shows that parties duly filed and exchangedpleadings. The pleadings were also amended severally by theparties. The respondent as plaintiff ended his pleadings with afurther amended statement of claim dated 19th November, 2004filed on the same date pursuant to the leave of the trial FederalHigh Court granted on the aforementioned date. Reply to thefourth further amended statement of defence dated 21st February,2007 and filed on the same date. The appellant likewise ended hispleadings with a fourth further amended statement of defence dated12th December, 2006 and filed on 21st February, 2007 pursuant tothe leave of the trial Federal High Court granted on 16th February,2007.

At the trial, each party called one witness and tendered severalpieces of documentary evidence by consent of their respectivecounsel. Parties by their respective counsel, also admitted somefacts as presented on the pleadings in the course of trial beforethe learned trial Judge. After the parties adopted their respectivewritten addresses, the trial court delivered its judgment and thereingranted the claims of the respondent.

There is need to bring to the fore, the reliefs and claims of therespondent at the trial court. In the statement of claim dated 25thJuly, 2003 filed along with the writ of summons on 29th July, 2003,the respondent claimed the following reliefs against the appellant:-

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“1. Declaration that the dismissal of the plaintiff from hisemployment with the defendant on 20th June, 2003 isillegal, ineffectual and unconstitutional for the breachof the plaintiffs right to fair hearing; and the rules andregulations governing his contract of service with thedefendant.

2.Declaration that the dismissal of the plaintiff from hisemployment with the defendant on 20th June, 2003 foroffences, acts and or omission which occurred duringthe period when he was on annual leave and not onduty is wrong and unlawful, null and void.

3.An order reinstating the plaintiff back to hisemployment with the defendant.

4.An order directing the defendant whether by itself, itsservants, agents, privies or assigns howsoever to payto the plaintiff the latter’s salaries, emolument andentitlements from July, 2003 until the plaintiff is re-instated.

5.An order of injunction restraining the defendantwhether by itself, its servants, agent and/or privieshowsoever from ejecting the plaintiff from thedefendant’s quarters at Block D6 Flat 44 (Intermediateand Junior) Garki, Abuja.”

The reliefs the respondent claimed against the appellant in thefurther amended statement of claim are:-

“1. Declaration that the dismissal of the plaintiff from hisemployment with the defendant on 20th June, 2003 isillegal, ineffectual and unconstitutional for the breachof the plaintiffs right to fair hearing and the rules andregulations governing his contract of service with thedefendant.

2.Declaration that the dismissal of the plaintiff from hisemployment with the defendant on 20th June, 2003 foroffences, acts and or omission which occurred duringthe period when he was on annual leave and not onduty is wrong and unlawful, null and void.

3.An order reinstating the plaintiff back to hisemployment with the defendant.

“Alternatively”

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An order direct (sic) at or against the defendantto pay to the plaintiff his salary and otheremoluments mentioned in paragraph 58 abovefor the remainder of 13 years which the plaintiffwould have served but for the wrongful actionof the defendant mentioned in the statement ofa.claim.

Further order directed at or against the defendantfor the immediate payment to the plaintiff thelatter’s gratuity and pension benefit calculatedas if the plaintiff has retired at the age of 60years and as if he has served the defendant forb.35 years.

An order directed at or against the defendantfor the payment of all other entitlement tothe plaintiff as obtain (sic) or applicable inthe policy, practice and or tradition of thec.defendant..

4.An order directing the defendant whether by itself, itsservants, agents privies or assigns howsoever to payto the plaintiff the latter’s salaries, emolument andentitlements from July, 2003 until the plaintiff is re-instated.

5.An order of injunction restraining the defendantwhether by itself, its servants, agents, and/or privieshowsoever from ejecting the plaintiff from thedefendant’s quarters at Block D6 Flat 44 (Intermediateand junior) Garki, Abuja.”

The appellant, being dissatisfied with the judgment of thelearned trial Judge, which granted the claims of the respondent,appealed against the said judgment to the Court of Appeal. Thecourt below, after hearing the appeal, dismissed same for lacking inmerit. The appellant has further appealed to this court.

In a notice of appeal filed on 11th March, 2010 and found onpage 701 of the record, the appellant filed seventeen grounds ofappeal out of which it has distilled two issues for the determinationof this appeal. The two issues are:-

1.Whether from the totality of the evidence adducedby the respondent, the Court of Appeal was right infinding for the respondent.

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2.Whether a previous admission followed by anamendment wherein the earlier admission was resiledfrom can still be binding on a party.

According to the learned counsel for the appellant, issue 1covers grounds 2, 3, 6, 8 and 14 while issue 2 is distilled fromgrounds 1, 5, 9 and 15.What this means is that the appellant did notformulate any issue from grounds 4, 7, 10, 11, 12, 13, 16 and 17.Ishall return to this anon.

In the same vein, learned Senior counsel for the respondent L.O. Fagbemi, SAN, also distilled two issues for determination. Atthe hearing, the learned Silk was absent though duly served withhearing notice. His brief of argument was deemed adopted and theappeal deemed argued by him. The substance of the two issuesformulated by the respondent is the same with that of the appellantbut the issues are couched differently as follows:-

1.Whether the Court of Appeal was not correct to haveupheld the conclusion of the trial court that the express/unequivocal admission made by appellant counsel isbinding and whether in the face of such admission,which was not specifically withdrawn by counsel,plaintiff/respondent is obliged to prove facts alreadyadmitted.

2.Whether considering the facts and circumstances ofthis case as well as the evidence before the trial court,the Court of Appeal was not right in affirming thejudgment of the trial court in favour of the respondent.

According to the brief of the respondent, issue one is distilledfrom grounds 1, 5, 9 and 15 while issue two is distilled from grounds6, 8, 14 and 17.As I observed earlier, no issues were distilled fromgrounds 4, 7, 10, 11, 12, 13 and 16 in the notice of appeal. The Lawis trite that any ground of appeal which no issue for determinationis distilled from, is liable to be struck out. Such ground of appeal isdeemed abandoned. See Adelekan v. Ecu-Line NV (2006) 12 NWLR(Pt. 993) 33, Alims Nig. Ltd v. United Bank for Africa (2013) 6NWLR (Pt. 1351) 613, Udoechi v. Alinarat (2000) FWLR (Pt. 22)at 210, Sparking Breweries Ltd & anor v. Union Bank Ltd. (2001)7 SCNJ 321, (2001) 15 NWLR (Pt.737) 539. Accordingly, grounds4, 7, 10, 11, 12, 13 and 16 which no issues have been distilled from,are hereby struck out having been abandoned.

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The learned senior counsel for the respondent gave noticeof preliminary objection in their respondent’s brief. Part of theobjection is that the grounds of appeal I have already struck outhave been abandoned urging the court to strike out same. I havealready done that and there will be no need to consider it again.There are sundry complaints about other grounds of appeal buthaving considered them vis-a-vis the issues for determination; it ismy view that the interest of justice will better be met if the appealis heard and decided on the merit. For instance ground eleven issaid not to have arisen from the judgment. The said ground 11 wasabandoned and struck out as no issue was even distilled from it.Thus, the preliminary objection is upheld in part. I shall thereforedetermine this appeal based on the two issues donated by theparties.

Issue 1

Appellant’s issue 1 is the respondent’s issue 2.In hissubmission, the learned counsel for the appellant, Modupe Aiyejina,Esq argued that the burden was on the respondent as plaintiff toshow or prove breach of the terms of the employment i.e. that themanner of his dismissal was not in accordance with the contractof employment and that the employment enjoyed statutory flavorwhere the employee seeks reinstatement relying on Morohunfolav. Kwara State College of Technology (1990) 4 NWLR (Pt. 145)506, Union Bank v. Ogboh (1995) 2 NWLR (Pt. 380) 647 and Jidav. Central Bank of Nigeria (2001) 5 NWLR (Pt. 705) 165. That allthe earlier admissions which the lower court held on to, are notavailable for it to utilize and rely upon. It is his contention that itis only the last pleadings of the parties that define the issues in thecase and not the earlier pleadings which by law had ceased to beapplicable.

He submitted further that the evidence of the respondent didnot attempt to prove any of the ingredients of wrongful dismissal.He urged this court to resolve this issue in favour of the appellant.

In response, the learned senior counsel for the respondentsubmitted that where the dismissal of an employee is based on anallegation of crime, such as allegation must first of all be provedbefore the dismissal can stand, relying on Shuaibu v. Union Bankof Nigeria Plc (1995) 4 NWLR (Pt. 388) 173. It is his furthersubmission that though an employer is not bound to give any

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reason for lawfully terminating a contract of service, the employermust however give reasons for summarily dismissing the servant,citing Savannah Bank (Nig.) Plc v. Fakokun (2002) 1 NWLR (Pt.749) 544 at 560.

The learned Silk reasoned that the appellant, having given thereason for the dismissal of the respondent as “grave misconduct”, theappellant has a duty to justify the reason given for the respondent’sdismissal from service. He contends that from the totality of thedocumentary and oral evidence before the court, it is clear that thealleged impropriety which was raised against the respondent tookplace at a time when he was on his annual leave duly approvedby the appellant in exhibit D. He opined that exhibit D was neverchallenged by the appellant. According to him, unchallengedpieces of evidence remain correct and reliable, relying on the caseof Ogunyade v. Oshinkeye (2007) 15 NWLR (Pt. 1057) 218 at 242and 246..

Furthermore, learned Senior counsel submitted that theallegation of fraud and forgery which formed the basis of theappellant’s conclusion on the alleged “grave misconduct” whichallegations are criminal in nature, were not proved before the court.

He submitted that contrary to the appellant’s contention, byparagraph 34 of the amended statement of claim, the respondentas plaintiff pleaded the grounds upon which he can be dismissedfrom service. That the respondent also adduced credible evidenceincluding exhibit G to prove his case. That the appellant, being acreation of statute, the employment of his employees is one whichenjoys statutory flavour and that where an employer acts contrary tothe terms and conditions of a contract that enjoys statutory flavour,such act is null and void, citing and relying on Central Bank ofNigeria v. Igwillo (2007) 14 NWLR (Pt. 1054) 393.

Finally, learned counsel submitted that since the trial court asconfirmed by the court below, made use of documentary evidencein reaching his decision, it is highly erroneous for the appellantto contend that declarations were made or granted on the basis ofadmission and not evidence. Learned senior counsel then urged thecourt to resolve this issue in favour of the respondent.

Resolution:-

Let me observe at the outset that the learned counsel for theappellant in this appeal appears to have treated this appeal with

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levity. Imagine filing seventeen grounds of appeal and distillingtwo issues for determination but the argument on issue one is just apage and a half with double space typesetting. I doubt if he has donejustice to his client’s case. Counsel should not file an appeal if he hasnothing serious to tell the court. This appeal is against the concurrentfindings of the two courts below and for an appellant to upturn sucha judgment there must be cogent reasons to do so because the lawis trite that this court rarely interfere with the concurrent findingsof the two courts below. See Iragunema v. Rivers State Housing& Property Development Authority & Ors. (2003) 12 NWLR (Pt.834) 427, Ukaegbu & Ors. v. Ugoji & Ors. (1991) 6 NWLR (Pt.196) 127. An appellant seeking to upturn the concurrent findings ofthe two courts below must expressly and cogently show that thesefindings are perverse. Outside that, this court will not disturb theconcurrent findings of the two courts below. See Obasuyi & anor v.Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668.

In this issue, the only argument the learned counsel forthe appellant made relates to his issue No.2 relating to effect ofadmissions made by a party before an amendment of pleading iseffected. This argument shall be considered in issue 2.What is leftof the appellant’s argument in issue 1 is that the evidence of theplaintiff did not attempt to prove any of the ingredients of wrongfuldismissal.

Looking at the judgment of the court below appealed against,four fundamental issues were discussed and settled. They relateto whether the respondent proved his case before the trial FederalHigh Court. The issues are:-

1.That fraud and forgery are criminal offences leveledagainst the respondent by the appellant which must beproved beyond reasonable doubt.

2.That the respondent was on leave at the time the allegedoffences were committed in the office of the appellant.

3.That the employment of the respondent enjoyedstatutory flavour, and

4.That the respondent proved his case not only on theadmission by the appellant but also on both oral anddocumentary evidence placed before the trial court.

In his argument on issue 1, the learned counsel for the appellantdid not touch any of these fundamental issues in the case.

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My Lords, may I consider the allegation of fraud and forgeryleveled against the respondent by the appellant. The two courtsbelow emphatically held that the allegation of fraud and forgerywhich formed the basis of the appellant’s conclusion on thealleged act of “grave misconduct” which allegations are criminalin nature, were not proved before any court of law. This court hasheld emphatically in several cases that where there is an allegationof criminal wrongs against a person, the jurisdiction to determinethe allegation is vested in the courts and the exercise of suchjurisdictions cannot be usurped by any administrative tribunal. SeeDongtoe v. Civil Service Commission, Plateau State & Ors. (2001)9 NWLR (Pt..717) 132, Baba v. Nigeria Civil Aviation TrainingCentre, Zaria & anor (1991) 5 NWLR (Pt. 192) 388. The reasonis simple. Where there are serious allegations of fraud and forgery,the matter is beyond the power of an Administrative Panel. It hasto be pronounced upon by the courts of law, as the allegations areof serious nature requiring proper judicial processes in all theirramification. See Action Congress & Anor v. INEC (2007) 12NWLR.(Pt. 1048) 220, Garba v. University of Maiduguri (1986)1 NWLR (Pt. 18) 550, Sofekun v. Akinyemi (1981) 1 NCLR 135,(1980) 5-7 SC.

The learned trial Judge was right as endorsed by the courtbelow when he held that:-

“The exhibits as reduced in this judgment especiallythe queries in exhibit – and Exhibit ‘H’ deal with fraudthat – that is, attempted fraud on the statutory revenueallocation in favour of Benue, Anambra and EdoStates Governments and forgery involving statutoryallocation to Benue State Government for the monthof October, 2002 respectively.

Fraud and forgery are criminal offences and the law isthat same must be proved beyond reasonable doubt bythe accuser. See F.C.S.C.V. v. Laoye (1989) 2 NWLR(Pt. 106) 652 at 657 ratios 9, 10 and 11.

“When anyone is accused of a criminal offence, heshould in the interest of truth and justice and his owninterest be tried by the ordinary court of the land. Nohush inquiry will take the place of open trial. The rightof fair hearing includes and comprehends and includes

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the right to be heard in open court in defence of one’scharacter and good name, when accused of misconductamounting to a criminal offence.”

Here, plaintiff is accused of misconduct amounting tocriminal offence. He ought to be tried by the ordinarycourt before dismissal. I am bound by the abovedecision of the Supreme Court and I hold that havingnot been so tried, the dismissal is a nullity and of noeffect.” (see pages 470 – 471 of the record).

To the above decision which was affirmed by the lower court,the appellant kept mum. Clearly, the appellant appears to haveaccepted this decision in good faith.

The second fundamental fact raised in this issue by the learnedsenior counsel for the respondent is that since the respondent was onhis annual leave at the time of the alleged fraud and forgery, it wasnot possible that he took part in the crime. This view was acceptedby the two courts below. As was rightly contended by the learnedsilk for the respondent, how can an employer proceed to dismiss anemployee for an alleged fraud and forgery which occurred whenthe employee was on leave. Since the offences were committed inthe appellant’s office, the respondent had no opportunity to committhe offence having been on leave.

The learned trial Judge had this to say on the issue:-

“Furthermore, the plaintiff had stated and tendereddocuments to the effect that he was on annual leave atthe material time. The defendant did not breath a wordor tender document to refute this. The option open tocourt is to believe the case of the plaintiff that he wason leave and know nothing about the alleged crime.”(page 4 71 of the record)

The court below, endorsed the above decision of the trial courtin the following words:-

“The lower court apart from holding on the veinstated above, however also held to the effect that asthe respondent had shown that he was on leave whenthe misconduct bordering on criminality he wasaccused of was committed and not only tendereddocuments to the effect but as the appellant never

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refuted this in any manner it (i.e. lower court) hasno option than to believe the respondent that heknew nothing about the alleged crime.”.

The learned trial Judge made it clear that the appellant “did notbreath a word or tendered document to refute this”. The court belowalso held that “appellant never refuted this in any manner”. I stillwonder why the appellant, in the face of these unchallenged andunequivocal evidence of the respondent and the acceptance by thetwo lower courts that the respondent had no opportunity to committhe offences alleged since he was on annual leave, still came tothis court. When the respondent pleaded and proved that he was onannual leave without any response by the appellant on the issue, it(the appellant) ought to have thrown in the towel. I still cannot seethe reason why the appellant filed this appeal in this court.

The other aspect of this issue which the learned silk for therespondent highlighted has to do with the statutory flavor of therespondent’s employment. The appellant did not say anything onthis. Appellant seems to have accepted the concurrent findings ofthe two lower courts that the respondent’s employment enjoyedstatutory flavor. There is therefore no need to dwell on this than toadopt the concurrent findings of the two lower courts on this issue.See Central Bank of Nigeria v. Igwillo (2007) 14 NWLR (Pt. 1054)393.

And finally on this issue, the appellant alleged in his brief thatthe respondent did not prove his case. Sadly, learned counsel for theappellant did not bring out the ingredients which were not proved.A sweeping allegation of this nature in an appeal of this magnitudedoes not fly at all. The appellant alleged that the respondent onlyrelied on its admission. But is this true? The record of appeal speaksto the contrary. By paragraph 34 of the amended statement of claim,the respondent as plaintiff pleaded the ground upon which he canbe dismissed from service thus:-

“34.Plaintiff pleads that by the terms and conditions ofhis employment, he can only be summarily dismissedfrom service if he:-

is convicted of a criminal offence except(a)conviction for traffic offences;

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is guilty of stealing, fraud, forgery, corruption(b)or any other grave misconduct;

is absent from duty without permission for one(c)month; and

is caught for or admits to perpetrating any criminal(d)offence.”

The truth is, where an employer acted contrary to the termsand conditions of a contract of employment that enjoys statutoryflavour, such act is null and void. See Central Bank of Nigeria v.Igwillo (supra). The record of appeal shows that the appellant nevercontested the above conditions as stated by the respondent. Theyare deemed admitted. See Din v. African Newspapers of NigeriaLtd. (1990) 3 NWLR (Pt. 139) 392, Achilihu & Ors. v. Anyatonwu(2013) 12 NWLR (Pt. 1368) 256.

Thus, having admitted the said conditions, there was noneed for further evidence in proof thereof. See Economides v.Thomopuluss (1956) 1 FSC 7.The appellant failed to adhere tothose conditions in dismissing the respondent from its service. Cansuch dismissal stand? The answer is No.

Quite apart from that, the respondent tendered documentaryevidence in exhibits A, B, C, D, E, F, G and H. The record showsthat some of the exhibits formed the basis of the decision of thelearned trial Judge as affirmed by the court below. It was thereforewrong for the appellant to allege that judgment of the trial courtwas not based on any evidence but on admission. It is on this notethat I resolve issue 1 against the appellant.

Issue Two

The appellant’s issue No.2 is the respondent’s issue No. 1.Learned counsel for the appellant submitted that it is a breach of theconstitutional right of a litigant to prevent him from conducting hiscase the way he likes it or to consider the case put forward by him.He contended that an abandoned or amended brief or admissionsor any part thereof that is not repeated in a latter brief is uselessand not worthy of consideration because it ceases to define issuesbetween the parties when the amendment is made, relying on Tunbiv Opawole (2000) 1 SCNJ page 1, (2000) 2 NWLR (Pt. 644) 275.He further opined that the law is settled that all amendments dateback to the time of commencement of the action and urged thiscourt to so hold.

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According to learned counsel for the appellant, the courtbelow was wrong in the view it took that tantamount to stating thatthe admissions of 6/4/2004 were still in force. That any process orany declaration made by the counsel for the defendant (appellant)prior to the time of making the 4th Further amended statement ofdefence which was filed on 21/2/07, ceased to be binding from thatdate.

Learned counsel argued further that the latest pleadingsupercedes any earlier pleadings. That there was paragraph 1 ofeach of the pleadings by the appellant (defendant) in which hedenied all the averments in the respondent pleadings except thosethat were expressly admitted in the current process or pleadingsand thereby precluded consideration of any other admission outsidethose contained in the process or pleading.

Learned counsel concluded by stating that the Court of Appealerred in considering the contents of an amended pleading, the resultbeing that the trial was rendered a mistrial and a nullity. He urgedthe court to resolve this issue in favour of the appellant and setaside the judgment of the lower court.

In response, the learned senior counsel for the respondentsubmitted that it has become an established principle of law in ourjurisprudence that facts admitted need no further proof and thatan admission made by a counsel on behalf of a party to a case, isbinding on that party, relying on these cases: Ejiogbu v. N.D.I.C.(2001) 3 NWLR (Pt. 699) 1, Cappa & D’Alberto Ltd, v. Akintilo(2003).9 NWLR (Pt..824) 49 at 69 – 70.The learned silk also citedsection 123 of the Evidence Act, 2011. The learned senior counselalso opined that counsel when acting within the province of hisauthority can compromise or admit a fact and such compromise oradmission is binding and effective, relying on Mosheshe GeneralMerchant Ltd v. Nigeria Steel Products Ltd. (1987) 2 NWLR (Pt.55) 110 at 121. He contended that the admission made by theappellant’s counsel on behalf of the appellant in the course ofconducting its case on the 6th July, 2004 proceeding of the trialcourt is also binding on the appellant.

Referring to the trial court proceedings of 1/6/2004 and6/7/2004 regarding certain admissions made by the learned senior

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counsel for the plaintiff in that court, B. Aluko-Olokun, SAN,.hesubmitted that the admissions made by the appellant’s counsel,being direct and relevant are binding on the defendant/appellantand that none of the parties can argue against the facts which theyhad admitted.

Learned silk further submitted that although pursuant to theleave of trial court granted on 16th February, 2007, the defendant/appellant’s 4th further amended statement of defence was filed on21/2/2007, the only difference between the two is the introductionof a new paragraph 13 which only pleaded lack of jurisdiction onthe part of the trial court to entertain the case on the basis of section2 of the Public Officers Protection Act, 1990.

Learned senior counsel further submitted that there wasnowhere in the pleadings or proceedings before the trial courtwhere the appellant stated that it was resiling from or withdrawingthe earlier admissions made by its counsel. That it was the duty ofthe appellant to show that the facts admitted in the earlier pleadingswere no longer the issue in the amended pleadings but that he failedwoefully to do so.

Furthermore, the learned silk contended that a general traversewithout more, does not amount to a denial but is deemed to be anadmission, relying on First Bank of Nigeria Plc v. J. S. A. IndustriesLtd. (2007) All FWLR.(Pt. 352) 1719 at 1734. That there mustbe an express and specific denial by the appellant, citing NikoEngineering Ltd v Akinsina & Ors. (2005) All FWLR (Pt. 292) 307..He then urged the court to resolve this issue against the appellant.

Resolution of issue 2

It is elementary jurisprudence that no facts need be proved inany civil proceedings which parties thereto or their agents and/orcounsel agree to admit at the hearing, or which, before the hearingthey agree to admit by any writing under their hand or which byany rule of pleading in force at the time they were deemed to haveadmitted by their pleadings. It is also correct that a court may, in itsdiscretion, depending on the peculiar facts of the case, require thefacts admitted to be proved otherwise than by such admission. Seesection 123 of the Evidence Act, 2011.

In other words, facts admitted need no further prove. See Ejioguv NDIC (2001) 3 NWLR (Pt. 699) 1.

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The law is also well settled that an admission made by acounsel on behalf of a party in a case, is binding on that party. SeeMadam Alice Okesuji v. Fatai Alabi Lawal (1991) 1 NWLR (Pt.170) 661, Ogboru & anor v. Uduaghan (2013) LPELR – 20805(SC), (2011) 17 NWLR (Pt. 1277) 538..In fact the law is trite thata counsel while functioning as such has the implied authority tomake any admission of facts with proof of the particular facts andthe admission may be binding if not retracted by the client beforejudgment. See Joe Odey Agi, SAN v. P.D.P. (2016) LPELR – 42578(SC),.(2017) 17 NWLR (Pt. 1595) 386; Chikere & Ors. v. Okegbe& Ors. (2000) 12 NWLR (Pt. 681) 274, Adewunmi v. Plastex (Nig.)Ltd. (1986) 3 NWLR (Pt. 32) 767, Akanbi v. Alao (1989) 3 NWLR(Pt. 108) 118, Cappa & D’Alberto Ltd. v. Akintilo (2003) 9 NWLR(Pt. 824) 49 at 69- 70.

I agree entirely with the learned Senior counsel for theRespondent that counsel when acting within the province of hisauthority can compromise or admit a fact at the trial and suchcompromise or admission is binding and effective. See MoshesheGeneral Merchant Ltd. v. Nigeria Steel Products Ltd. (1987) 2NWLR (Pt. 55) 110 at 121..

In this appeal, I had stated earlier that both parties madecertain amendments to their pleadings. The pleadings of theplaintiff/respondent upon which his case proceeded to hearing isthe amended statement of claim dated 8th December, 2003 whilethat of the defendant/appellant is the 4th amended statement ofdefence dated 1st December, 2003. By the pleadings, both partiesjoined issues and the case proceeded to trial.

On pages 388 – 389 of the record of appeal, during the trialon 1st June, 2004, the plaintiff/respondent commenced givingevidence. This is what transpired on that date:-

“PW swears on the Holy Bible and speaks English. Mynames are Uchenna Godswill Dinneh, I live at BlockD6 CBN Quarters Garki, Abuja.

L. O. Fagbemi, SAN informs court that parties haveagreed that paragraphs 1 to 29 of the amended statementof claim are admitted by the defendant. B. O. Aluko-Olokun, SAN – We concede admitting paragraphs 1 -29 of the amended statement of claim. L. O. FagbemiSAN – We are also tendering the following documentsby consent namely:

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1.Letter of 8/5/03 written by the defendant to plaintiff -Exhibit A;

2.Plaintiff reply dated 12/5/03 – Exhibit B

3..Defendant’s letter to plaintiff dated 13/1/03 – Exhibit C

4.Plaintiff reply to letter of 13/1/03 dated 14/1/03 -Exhibit D

5.Plaintiffs application for annual leave dated 4/11/02 -Exhibit E

6.Defendant’s approval dated 12/11/02 – Exhibit F

7.Staff manual of defendant – exhibit G

B. Aluko – Olokun, SAN – confirms that the abovedocuments marked exhibits A, B, C, D, E, F, G, and Hare tendered by consent of both parties.

8.Letter of dismissal dated 12/6/02 – Exhibit H.

Witness identifies exhibit A as the query issued to himby the defendant on allegation of fraud on the statutoryrevenue allocation. I have put in 23 years in the serviceof defendant before exhibit H was issued. I haveanother 12 years more to put in before I can retire.

L. O. Fagbemi SAN – applies for an adjournment B.Aluko-Olokun, SAN, – does not appose.”

Again, on 6/7/2004, the learned Senior counsel for theappellant made the following further admissions in thecourse of the proceedings of that day as captured onpages 392 – 393 of the record of appeal thus:-

“B. Aluko-Olokun, SAN – informs court that counselon both sides have agreed to the facts as follows:-

The defendant admits all the averments inthe statement of claim except the followingi.paragraphs 40 to 5O thereto.

ii. With respect to paragraph 58 of the statementof claim, the defendant admits that the terminalsalary and other entitlements of the plaintiff areas stated therein, but deny that.he is entitled tosame from the day he was dismissed.

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iii. The defendant seeks to withdraw paragraph 7 ofthe further amended statement of defence.

iv..The plaintiff well admits paragraphs 2, 3, 4, 5, and6 of the further amended statement of defence.

v. Counsel states that the matters denied by thedefendants tendered by consent be deemed asduly read by consent.

vi..That case on both sides are deemed to be closed..

L. O. Fagbemi, SAN – I confirm what my brother silkhas just announced to court. Although plaintiff hasbeen in the witness box, I have no more question toput to him and I believe my brother silk has none eitherfor him. May I ask for a date for address.”

The record also shows that on 16/2/2007, the trial court grantedleave to the appellant to further amend its statement of defence. Thusthe defendant’s 4th further amended statement of defence was filedon 21/2/2007. Learned senior counsel for the respondent submittedin paragraph 6.11 of their brief of argument that the only differencebetween the defendants 4th amended statement of defence and theprevious one, is, the introduction of a new paragraph 13 which onlypleaded lack of jurisdiction on the part of the trial court to entertainthe case on the basis of section 2 of the Public Officers ProtectionAct, 1990. There is no response from the appellant on this issue asit did not file a reply. What this means is that the said argument,not being challenged, is deemed admitted. That being the case,the argument of the learned counsel for the appellant that havingamended his pleadings, with the final 4th further amended statementof defence filed on 21/2/2007, the admission made on the basis ofthe earlier pleadings were no longer relevant and binding is of nomoment.

As was observed by the learned counsel for the respondent, I findthe line of argument by the learned counsel for the appellant highlyerroneous. Looking at the record, there is nowhere in the pleadingsor proceedings before the trial court where the appellant stated thatit was resiling from or withdrawing the earlier admission made byits counsel. It is elementary jurisprudence that parties are boundby the unchallenged record. See Magaji v. Nigerian Army (2008) 8NWLR (Pt. 1089).338, Larmie v. Data Processing Maintenance &Services Ltd. (2005) 18 NWLR (Pt. 958) 438; Chief S. O. Agbareh

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& anor v. Dr. Anthony Mimra & Ors. (2008) LPELR – 43211 (SC),(2008) 2 NWLR (Pt. 1071) 378.

The law is trite that amendment to pleadings are ultimately toenable the court decide the real issues in controversy between theparties. It is to prevent the court from giving judgment in ignoranceof the facts that should be known before the rights of the partiesare finally decided. It is trite law that the amendment relates to theoriginal pleadings and all amendments before the final amendmentsseize to be pleadings to be relied on in the trial. See Oforishe v.Nigerian Gas Company Ltd. (2017) LPELR – 42766 (SC), (2018)2 NWLR (Pt.1602) 35; Rotimi & Ors. v. Macgregor (1974) 11 SCpage 133, Enigbokan v. A.I.I. Company Nig. Ltd. (1994) 6 NWLR(Pt. 348) 1, Salami v Oke (1987) 4 NWLR (Pt. 63) page 1..

From the plethora of authorities of this court, there seems tobe nothing fundamentally wrong with a trial Judge merely referringto an original statement of claim or defence when there exists anamended version of the pleading. But there is everything wrongwith the trial Judge relying on an original statement of defence toarrive at the live issues in a case where there exists an amendedversion. Once there is an amendment, the original pleading will nolonger define the issues to be tried. See Salami v. Oke (supra).

In the instant case, although the learned counsel for theappellant argued that the trial court used the original statement ofdefence to decide the case in spite of several amendments, he failedto refer specifically to the record or even the judgment of that courtwhere such was done. His argument was in vacuum. Where thefacts admitted by a party in the original pleading is repeated in thefinal amended pleading, it cannot be said that the trial court usedthe original pleading instead of the final amended copy.

For instance, the learned senior counsel for the appellant hadadmitted that the respondent was on annual leave at the time thealleged fraud and forgery occurred. Throughout the argument ofcounsel for the appellant, he did not breath a word on the issue ofwhether respondent was on leave during the period or not. Even ifthe appellant pleaded anything contrary to its earlier admission, didits sole witness give evidence on it? The answer is in the negative.The law is trite that any facts pleaded which no evidence is led insupport are deemed abandoned. But in the instant case, there wasno pleading on the issue and no evidence. And yet, learned Silk for

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the appellant at the trial court had admitted this fact as pleaded bythe respondent.

My Lords, it is my well considered opinion that the appellant,having failed to show in its 4th amended statement of defence thatthe issues or facts which were admitted in the original pleadingsare no longer the issues calling for the determination by the court,a subsequent admission carried out will in no way diminish theefficacy of the earlier and subsisting admission. I hold that the Courtof Appeal was in order in affirming the conclusion of the learnedtrial Judge that the admission made by the appellant’s counsel wasbinding and relevant in considering the case before it. Accordingly,this issue is resolved against the appellant.

Having resolved the two issues against the appellant, I holdthat this appeal is devoid of any scintilla of merit and deservesan order of dismissal. Appeal is accordingly dismissed. I affirmthe judgment of the Court of Appeal delivered on 1st February,2010. Cost of this action is accessed at N500,000 in favour of therespondent to be paid by the appellant.

Appeal dismissed.

NGWUTA, J.S.C.: I have had a preview of the lead judgment justdelivered by my learned brother, Okoro, JSC and I adopt the reasonsfor the conclusion that the appeal is bereft of merit. ConsequentlyI also dismiss the appeal.

I also adopt the consequential orders including order as tocosts.

Appeal dismissed

ARIWOOLA, J.S.C.: I had the privilege of reading in draft thelead judgment of my learned brother, Okoro, JSC just delivered. Iam in agreement with the reasoning therein and conclusion arrivedthereat, that there is no merit in the appeal and should be allowed.I too will dismiss it.

Appeal allowed

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NWEZE, J.S.C.: I had the advantage of reading, before now,the draft of the leading judgment which my Lord, Okoro, J.S.C,delivered now. I agree with His Lordship that this appeal, beingunmeritorious, should be dismissed.

The very essence of the respondent’s complaint was hinged onthe violation of a fundamental principle, namely, his right to a goodname. As it is often said, a good name is better than riches. In FCSCv. Laoye (1989) 2 NWLR (Pt. 106) 652, the irrepressible judicialactivist, the ever-indomitable Kayode Eso, J.S.C.,.announcedmagisterially and with clinical finality that:

When anyone is accused of a criminal offence, heshould, in his own interest, and, in the interest of truthand justice, be tried by the ordinary courts of the land.No hush inquiry will take the place of open trial. Theright to fair hearing comprehends and includes theright to be heard in the open court in defence of one’scharacter and good name, when accused of misconductand offence.

True, the provision of section 36 of the 1999 Constitution,relating to fair hearing, is truly far-reaching. The requirements offair hearing are ubiquitous. The basic criteria and attributes of fairhearing have been outlined in case law. The rationale of all suchbinding authorities on the matter is that fair hearing imposes anambidextrous standard of justice in which the court must be fair toboth sides of the conflict, Ndu v. The State (1990) 7 NWLR (Pt.164)550, 578; Ogundoyin v. Adeyemi (2001) 33 WRN 1, 13-14; (2001)13 NWLR (Pt. 730) 403.

It, therefore, does not anticipate a standard of justice which isbiased in favour of one party, but prejudices the other. Above all,it is not a technical doctrine, but one of substance, Ogundoyin v.Adeyemi (supra) at pp. 14 – 15; Kotoye v. C.B.N. (1989) I NWLR(Pt. 98) 418, 448.

The touchstone for determining the observance of fairhearing in trials is not the question whether any injustice has beenoccasioned on any party due to want of hearing. It is rather thequestion whether an opportunity of hearing was afforded to partiesentitled to be heard, J.C.C. Inter Ltd. v. N.G.I. Ltd. (2002) 4 WRN91, 104.

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In order to be fair, therefore, “hearing” or “opportunity to beheard” in a judicial inquiry, must encompass a party’s right:

To be present all through the proceedings, to hear all the(a)evidence against him/her.

To cross-examine or otherwise confront or contradict all the(b)witnesses that testify against him;

To have read before him, all the documents tendered in(c)evidence at the hearing;

To have disclosed to him the nature of all relevant materialevidence, including documentary evidence, prejudicial to(d)him, except in recognised exceptions;

To know the case he has to meet at the hearing and have(e)adequate opportunity to prepare for his defence;

To give evidence by himself, call witnesses, if he likes, andmake oral submission either personally or through counselof his choice, Nwanegbo v. Oluwole (2001) 37 WRN 101;Dawodu v. N.P.C. (2000) 6 WRN 116; Durwode v. The State(f)(2001) 7 WRN 50; (2000) 15 NWLR (Pt. 691) 467.

Against this background, I agree with the reasoning of the lowercourts that the allegations of fraud and forgery, based on which, theappellant wove the alleged act of “grave misconduct” against therespondent, were unproven in a competent forum, namely, the courtof law. Surely, our extant jurisprudence still favours the view thatonly the courts, and not administrative tribunals, are vested.withthe requisite jurisdiction to determine allegations of crime as inthe instant case, FCSC v. Laoye (supra); Baba v. NCATC Zaria andAnor (1991) 5 NWLR (Pt. 192) 388; Sofekun v. Akinyemi (1980)LPELR (SC) 23-26; E; Garba v. University of Maiduguri [1986]1 NWLR (Pt. 18) 550; Esiaga v. University of Calabar (2004)LPELR 1169 (SC) 22- 23; F-A, (2004) 7 NWLR (Pt.872) 366 andso on.

It is for these, and the more detailed, reasons in the leadingjudgement that I shall dismiss this appeal. I abide by theconsequential orders in favour of the respondent.

Appeal dismissed.

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EKO, J.S.C.: I should, prefactorily, make certain clarificationsabout this appeal as they pertain to the jurisdiction of this court viz- a – viz the trial court qua the National Industrial Court of Nigeria.By section 254 of the 1999 Constitution, as amended; particularlyby the Act No.3 of 2010, the National Industrial Court of Nigeriahas and exercises exclusive jurisdiction in civil causes and matters“relating to or connected with labour, employment – and mattersarising from workplace, the conditions of service – and mattersincidental thereto or dismissal of the plaintiff/respondent by theconnected therewith”.

At the trial Federal High Court the cause of action was thedefendant/appellant for misconduct predicated on fraud andforgery. The bone of contention was whether the alleged dismissalof the respondent, whose employment with the appellant hadstatutory flavour, was proper in law. That dispute, post the 2010alteration to the Constitution vide the Act No.3 of 2010, shouldhave fallen to the exclusive jurisdiction of the National IndustrialCourt of Nigeria. The plaintiff/respondent at the trial court foughthis dismissal from office majorly on his employer not following theterms of his employment in his dismissal.

At the time this appeal was brought and filed in this court on 11thMarch, 2010, this court could still entertain appeals on employmentdisputes or discipline. Not subsequently though. Section 243 ofthe same 1999 Constitution, as amended, has in sub-sectionthereof provided inter alia that “the decision of the Court of Appealin respect of any appeal arising from any civil jurisdiction of theNational Industrial Court of Nigeria shall be final.” The savinggrace for this appeal is the fact that it had been brought and filed inthis court before the alteration of the Constitution by the Act No.3of 1999 took its effect. Now, this appeal: The respondentfiled notice of preliminary objection which was not moved on theday the appeal was heard. Both the respondent and his counsel wereabsent when the appeal was heard. Accordingly, the preliminaryobjection abandoned shall be, and is, hereby struck out.

I observe, however, that issue 1 as formulated by the appellantfrom Grounds 1, 5, 9 & 15 is predicated on complaints of pure facts.On authority of Section 233(2) & of the Constitution I have mystrong doubts about the competence of issue 1 and the grounds ofappeal from which it was culled, as no previous leave was sought

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and obtained for the appellant to raise such issue of pure fact in thissecond tier appeal. For this impunity and obvious insubordinationto section 233 of the Constitution I shall strike out the offensiveissue 1 and the grounds of appeal on which it is predicated. Thesaid issue 1, and the grounds on which it is premised, shall be andare hereby struck out.

The proceedings at pages 392 – 393 of the record whereat B.Aluko-Olokun, SAN of counsel for the defendant/appellant hadmade admissions of some material facts in issue at the trial courton 6th July, 2004 clearly make it unconscionable for the said seniorcounsel and/or his client to subsequently retract the admission andresile therefrom. The rule of estoppel by conduct in equity wouldestop, and estops, a party from such retraction to the detrimentof the opposing party who had acted on such admission againstinterest. Estoppel by conduct, a principle in equity, had since beencodified and incorporated into the Evidence Act, 2011 as Section169 that provides –

  1. When one person has, either by virtue of anexisting court judgment, deed or agreement, orby his declaration, act or omission, intentionallycaused or permitted another person to believea thing to be true and to act upon such belief,neither he nor his representative in interest shallbe allowed, in any proceeding between himselfand such person or such person’s representativein interest, to deny the truth of that thing.

The appellant, as the defendant, having previously admittedsome facts material to the case they were defending was estoppedfrom subsequently stating the contrary of those facts admittedagainst their interest. Sections 26 and 27, respectively of theEvidence Acts of 1990 and 2011, provide that though admissionsare not conclusive proof of the matters admitted; they may operateas estoppel.

In the judgment just delivered, my learned brother, JohnInyang Okoro, J.S.C, reached the opinion and conclusion that theappeal is not meritorious. I agree entirely. I hereby adopt the orderas to costs.

Appeal dismissed.

Appeal dismissed

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