Mekwunye v. Carnation Registrar’s (2021)

[2021]15NWLR1

Mekwunyev.CarnationRegistrarsLtd.

DR. CHARLES DUMBIRI MEKWUNYE

(Trading under the name and style

of Charles Mekwunye & Co.)

V.

1.CARNATION REGISTRARS LTD.

2.CHIMEZIE SUNDAY AHAIWE

COURT OF APPEAL

(AKURE DIVISION)

CA/AK/77/2019

RITA NOSAKHARE PEMU, J.C.A. (Presided and Read the Leading Judgment)

HAMMA AKAWU BARKA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A.

THURSDAY, 22ND JULY 2021

ACTION – Cases – On what must be decided.

APPEAL – Entry of appeal – Effect of.

APPEAL – Leave to appeal – Leave to appeal as interested party -Power of Court of Appeal to grant or refuse.

CONSTITUTIONAL LAW – Acts of National Assembly – Source of -Where inconsistent with provision of the Constitution – Effect.

COURT – Bench and Bar – Need for mutual respect between.

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COURT – Decision of court – When perverse.

COURT – Discretion of court – How exercised.

COURT – Discretion of court – Limit of.

COURT – Establishment of court – Purpose of.

COURT – Inherent jurisdiction of court – Meaning of.

COURT – Judge – Duty of to be impartial umpire.

COURT – Judge – Legal practitioner – Respective roles of.

COURT – Judge – Need for not to descend into arena of conflict- Need to possess values of prudence, honesty, equality andtransparency.

COURT – Judge – Quality of analytic and critical thinking of -Purpose of.

COURT – Jurisdiction of court – What determines.

COURT – Justice – Duty of court to do justice according to law andConstitution.

COURT – National Industrial Court – Powers of – Nature of.

COURT – Res – Duty of court to preserve.

COURT – Subpoena – Power of National Industrial Court to issue- How exercised.

COURT – Subpoena – Power of National Industrial Court tosummon any person to appear in court as witness or to producedocument – Section 44, National Industrial Court Act 2006and Order 19 rule 11, National Industrial Court Rules 2007.

EVIDENCE – Admission – Facts admitted – Whether need furtherproof.

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EVID ENCE – Privileged communication – Legal practitioner – Dutyon not to disclose communication made to him by client incourse of his employment – Section 192, Evidence Act 2011 andrule 19, Rules of Professional Conduct for Legal Practitioners2007.

EVIDENCE – Privileged communication – Legal practitioner -Whether can be compelled to disclose in court privilegedcommunication made to him by client.

EVIDENCE – Subpoena – Power of National Industrial Court toissue – How exercised.

EVIDENCE – Subpoena – Writ of subpoena ad testificandum -Purpose of – Whether for witness to come to court to answerto allegations made against him.

FAIR HEARING – Fair hearing – What it involves.

FAIR HEARING – Principle of fair hearing – Breach of – Allegationof – Where raised – Duty of appellate court.

FAIR HEARING – Principle of fair hearing – Breach of – Effect of.

.

FAIR HEARING – Right to fair hearing – How exercised – Need toexercise within confines of law.

FUNDAMENTAL RIGHTS – Fair hearing – Principle of – Breach of -Allegation of – Where raised – Duty of appellate court.

FUNDAMENTAL RIGHTS – Fair hearing – Principle of – Breachof – Effect of.

FUNDAMENTAL RIGHTS – Fair hearing – What it involves.

FUNDAMENTAL RIGHTS – Right to fair hearing – How exercised- Need to exercise within confines of law.

INTERPRETATION OF STATUTES – Construction of statutes- Principle gui ding – Need for court not to give extraneousinterpretation.

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JUDGMENT AND ORDER – Cases – On what must be decided.

JURISDICTION – Inherent jurisdiction of court – Meaning of.

JURISDICTION – Jurisdiction of court – What determines.

JUSTICE – Justice – Duty of court to do justice according to lawand Constitution.

LEGAL PRACTITIONER – Bench and Bar – Need for mutualrespect between.

LEGAL PRACTITIONER – Counsel-client relationship – Nature of- Duty of counsel to guard client’s secrets.

LEGAL PRACTITIONER – Judge – Legal practitioner – Respectiveroles of.

LEGAL PRACTITIONER – Privileged communication – Legalpractitioner – Duty on not to disclose communication madeto him by client in course of his employment – Section 192,Evidence Act 2011 and rule 19, Rules of Professional Conductfor Legal Practitioners 2007.

LEGAL PRACTITIONER – Privileged communication – Legalpractitioner – Whether can be compelled to disclose in courtprivileged communication made to him by client.

PRACTICE AND PROCEDURE – Admission – Facts admitted -Whether need further proof.

PRACTICE AND PROCEDURE – Appeal – Entry of appeal – Effectof.

PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Leaveto appeal as interested party – Power of Court of Appeal togrant or refuse.

PRACTICE AND PROCEDURE – Bench and Bar – Need for mutualrespect between.

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PRACTICE AND PROCED URE – Cases – On what must be decided.

PRACTICE AND PROCEDURE – Decision of court – Whenperverse.

PRACTICE AND PROCEDURE – Discretion of court – Howexercised.

PRACTICE AND PROCEDURE – Discretion of court – Limit of.

PRACTICE AND PROCEDURE – Establishment of courts -Purpose of.

PRACTICE AND PROCEDURE – Inherent jurisdiction of court -Meaning of.

PRACTICE AND PROCEDURE – Judge – Duty of to be impartialumpire.

PRACTICE AND PROCEDURE – Judge – Legal practitioner -Respective roles of.

PRACTICE AND PROCEDURE – Jurisdiction of court – Whatdetermines.

PRACTICE AND PROCEDURE – National Industrial Court -Powers of – Nature of.

PRACTICE AND PROCEDURE – Pleadings – Material facts – Needto be pleaded to be admissible in evidence.

PRACTICE AND PROCEDURE – Pleadings – Primary object of- Facts not pleaded – Whether court and parties can use tosupport pleadings.

PRACTICE AND PROCEDURE – Privileged communication -Legal practitioner – Whether can be compelled to disclose incourt privileged communication ma de to him by client.

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PRACTICE AND PROCEDURE – Privileged communication -Legal practitioner – Duty on not to disclose communicationmade to him by client in course of his employment – Section192, Evidence Act 2011 and rule 19, Rules of ProfessionalConduct for Legal Practitioners 2007.

PRACTICE AND PROCEDURE – Res – Duty of court to preserve.

PRACTICE AND PROCEDURE – Subpoena – Power of NationalIndustrial Court to summon any person to appear in courtas witness or to produce document – Section 44, NationalIndustrial Court Act 2006 and Order 19 rule 11, NationalIndustrial Court Rules 2007.

PRACTICE AND PROCEDURE – Subpoena – Power of NationalIndustrial Court to issue – How exercised.

PRACTICE AND PROCEDURE – Subpoena – Writ of subpoena adtestificandum – Purpose of – Whether for witness to come tocourt to answer to allegations made against him.

PRINCIPLES OF INTERPRETATION – Construction of statutes- Principle guiding – Need for court not to give extraneousinterpretation.

STATUTE – Acts of National Assembly – Source of – Whereinconsistent with provision of the Constitution – Effect.

STATUTE – Construction of statutes – Principle guiding – Need forcourt not to give extraneous interpretation.

WORDS AND PHRASES – Inherent jurisdiction of court – Meaningof.

WORDS AND PHRASES – “Shall” – Meaning of.

Issues:

1.Whether the trial court was right when it issued thewrit of subpoena ad testificandum on the appellant inthe circumstances it did.

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2.Whether the trial court breached the appellant’s rightto fair hearing when it relied on an allegation elicitedfrom a witness under cross-examination which didnot form part of facts pleaded by any of the parties tosubpoena the appellant to testify against his client.

3.Whether the trial court was right in making findingsagainst the appellant on a matter that was on appeal atthe Court of Appeal.

Facts:

The 2nd respondent instituted suit No. NICN/366/2015at the National Industrial Court of Nigeria against MainstreetBank Registrars Ltd. claiming the sum of N65,662,521.82 beingunpaid gratuity, profit sharing for the year 2013 and PerformanceInducement Pay (PIP) 2014. He also claimed interest on the sum at15% from 15th September 2014 until judgment was fully and finallyliquidated with cost of this suit.

The appellant is a Barrister and Solicitor of the Supreme Courtof Nigeria and was counsel to the 1st respondent in several lawsuits,pending and concluded, at the National Industrial Court.

According to the appellant, the 2nd respondent was the actingManaging Director of the 1st respondent in 2013. He terminated theappointment of over twenty members of the 1st respondent’s staff.He also instructed the appellant on behalf of the 1st respondent todefend the various suits instituted by some of the 1st respondent’ssacked employees.

The appellant was not a counsel in the 2nd respondent’s suit atthe trial court. During the cross-examination of the 2nd respondent,he mentioned the name of the appellant on an issue that did notform part of facts pleaded by any of the parties and on which issueswere not joined in the pleadings.

However, when the matter came up for adoption of writtenaddresses, the trial court suo motu raised the issue of subpoenaingthe appellant to appear in court to testify against the 1st respondentin respect of the allegations made against him by the 2nd respondent.The trial court asked counsel to address him on it. It thereafterinvoked the provisions of section 44 of the National IndustrialCourt Act 2007 and issued a writ of subpoena ad testificandumcommanding the appellant to attend court to clear his name.

On being served with the writ of subpoena ad testificandum,the appellant filed a motion on notice challenging same and praying

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the court to set it aside. The trial court in its ruling dismissed theappellant’s motion.

Dissatisfied with the ruling, the appellant, as an interestedparty appealed, to the Court of Appeal.

Held (Unanimously allowing the appeal):

1.On Exercise of discretion of court –

Judicial discretion and inherent powers of courtmust be exercised in the context of the justice ofthe particular case. For a judicial discretion to beproperly exercised, it must be founded upon thefacts and circumstances presented to the court fromwhich the court must draw a conclusion governedby law and nothing else. [Akingbola v. F.R.N. (2018)14 NWLR (Pt. 1640) 395; Arinze v. FBN Ltd. (2004)12 NWLR (Pt. 888) 663; Mainagge v. Ewamma(2004) 14 NWLR (Pt. 893) 323 referred to.] (P. 34,paras. F-G)

2.On Exercise of discretion of court –

In exercising discretion, a court is bound to adhereto certain principles as it is unwieldy and unjustto dispense discretion at random. The court’sdiscretion can mar or enhance justice. It is apowerful tool in the hands of a Judge. It should beexercised on sound basis of good reasons and thedemands of justice. [Usikaro v. I.O.C.T. (1991) 2NWLR (Pt. 172) 150 referred to.] (P. 35, paras. F-G)

3.On Exercise of discretion of court –

A judicious exercise of discretion of court meansproceeding from or showing sound judgment;having marked by discretion, wisdom and goodsense. There is the great emphasis on soundjudgment based on proper reasons connected withthe case in the judicial exercise of discretion. [Eroniniv. Iheuko (1989) 2 NWLR (Pt. 101) 46 referred to.](P. 45, paras. D-E)

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4.On When decision of court perverse –

There are several ways in which a decision of thecourt can be perverse. It is either the court

(a)ignored the facts or evidence; or

misconceived the thrust of the case(b)presented; or

took irrelevant matters into accountwhich substantially formed the basis of its(c)decision; or

went outside the issues canvassed by theparties to the extent of jeopardising the(d)merit of the case; or

committed various errors that faulted the(e)case beyond redemption.

The hallmark in all these is that there has been amiscarriage of justice. [Udengwu v. Uzuegbu (2003)13 NWLR (Pt. 836) 136; Mini Lodge Ltd. v. Ngei(2009) 18 NWLR (Pt. 1173) 254 referred to.] (Pp.34-35, paras. G-A)

5.On Duty on legal practitioner not to disclosecommunication made to him by client in course of hisemployment –

By virtue of section 192 of the Evidence Act 2011,no legal practitioner shall at any time be permitted,unless with his client’s express consent, to discloseany communication made to him in the course andfor the purpose of his employment as such legalpractitioner by or on behalf of his client or to statethe contents or condition of any document withwhich he has become acquainted in the course andfor the purpose of his professional employment orto disclose any advice given by him to his client inthe course and for the purpose of such employment;provided that nothing in the section shall protectfrom disclosure:

any such communication made in(a)furtherance of any illegal purpose; or

any fact observed by any legal practitionerin the course of his employment as such;(b)showing that any crime or fraud has been

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committed since the commencement of hisemployment. (PP. 35-36, paras. H-C)

6.On Duty on legal practitioner not to disclosecommunication made to him by client in course of hisemployment –

By virtue of rule 19 of the Rules of ProfessionalConduct for Legal Practitioners 2007, except asprovided under sub-rule of the rule, an oral orwritten communication made by a client to his lawyerin the normal course of professional employment isprivileged. This connotes that a legal practitioner isforbidden to disclose any communication made tohim in the course of his employment for a party inthe normal course of professional employment. Bythe provision, a legal practitioner cannot state thecontent or condition of any document with whichhe has become acquainted in the course and forthe purpose of his professional employment. He isequally not permitted to disclose any advice givenby him to his client in the course and purpose ofhis professional employment. All oral and materialcommunications made by a client to his lawyer inthe normal course of professional employment areprivileged. [Abubakar v. Chuks (2007) 18 NWLR (Pt.1066) 386 referred to.] (Pp. 39-40, paras. G-C)

7.On Duty on legal practitioner not to disclosecommunication made to him by client in course of hisemployment –

It is the duty of counsel, having been trainedprofessionally to preserve his client’s confidenceand resultantly must not disclose any confidentialcommunication made to him by his client, withoutthe client’s knowledge and consent. The counsel/client relationship is sacrosanct and privileged. Inthe instant case, the trial court erred and breachedthe provisions of section 192(1) of the EvidenceAct 2011 and rule 19 of the Rules of ProfessionalConduct for Legal Practitioners 2007. (P. 41,paras. E-G)

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8.On Whether legal practitioner can be compelled todisclose in court privileged communication made tohim by client –

A legal practitioner cannot be compelled to discloseprivileged communication with his client to thepublic. A court of law is a public forum. (P. 40,paras. D)

9.On Nature of counsel-client relationship –

The counsel/client relationship is fraught andclothed with privilege. Privileged for communicationin relation to litigation, based upon the oath andhonour of a lawyer, who is duty bound to guard hisor her client’s secrets. (P. 39, paras. C-D)

Per PEMU, J.C.A. at page 41, paras. A-B:

“More so, the court knows that subpoenaingthe appellant to come to clear his name ofgrave allegation made against him by anotherperson when the ‘grave allegations’ were neverpleaded nor stated in the witness’ statementson oath is an anathema and antitheticalto our jurisprudence. It would amount tocompelling the appellant to disclose privatecommunication, (both oral and documentary)in a counsel/client relationship, before a publicforum.”

10.On Respective roles of Judge and legal practitioner –

The role of the Judge is distinct from that of thelegal practitioner. While the former interpretsthe law in an atmosphere of fair hearing, whichmust be judicially or judiciously exercised, thelegal practitioner, on the other hand, has a duty toprotect his client and not breach the trust reposedon him. (P. 40, para. E)

11.On Need for mutual respect between Bench and Bar –

Per PEMU, J.C.A. at page 41, para. D:

“A Judge has in its kitty enormous powers towield a nd no Judge becomes a Judge without

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being first a lawyer. It is a transition. Thereforemutual respect is expected between the barand the bench. Clients must not be given theleeway to subject legal practitioners to theirwhims and caprices.”

12.On Power of National Industrial Court to summon anyperson to appear in court as witness or to producedocument –

By virtue of section 44 of the National IndustrialCourt Act 2006, the court may issue a summonsfor bringing up any person under civil process tobe examined as a witness in any cause or matterpending or to be inquired into in the court. By virtueof Order 19 rule 11 of the National Industrial CourtRules 2007, now Order 38, rule 18 of the NationalIndustrial Court of Nigeria (Civil Procedure)Rules 2017, the court may of its own motion or onthe application of any party order any person toappear before the court as a witness, or to produceany document. The word “may” used in theprovisions of section 44 of the National IndustrialCourt Act 2006 and the provisions of Order 19 rule11 of the National Industrial Court Rules 2007 isdiscretionary. (Pp. 40-41, paras. G-C)

13.On Meaning of “shall” –

The word “shall” does not always mean “must”,a matter of compulsion. It could be interpreted,where the context so admits, to mean “may”.Whereas the word “may” is not always “may”. Itmay sometimes be equivalent to “shall”. [Ifezue v.Mbadugha (1984) SCNLR 427 referred to.] (P. 35,paras. E-F)

14.On Source of Acts of National Assembly and effectwhere inconsistent with provision of the Constitution –

All Acts, including the Evidence Act 2011, derivetheir source from the Constitution of the FederalRepublic of Nigeria 1999 (as amended). A portion of

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any law that is inconsistent with the provisions of theConstitution must to the extent of that inconsistencybe null and void. In the instant case, section 44 ofthe National Industrial Court Act 2006, and Order19 rule 11 of the National Industrial Court Rules2007 were to the extent of their inconsistency withsection 192(1) of the Evidence Act 2011 null andvoid. (P. 40, paras. F-G)

15.On Purpose of writ of subpoena ad testificandum –

A writ of subpoena ad testificandum is for a personto attend the court at a given date to give evidenceon behalf of a party, and not for a witness to cometo court to clear his name of grave allegationsmade against him by another witness, and whichevidence was elicited under cross-examination. Inthe instant case, summoning the appellant, a legalpractitioner for the purpose stipulated by the trialcourt amounted to a violation of section 192(1) ofthe Evidence Act 2011 and rule 19 of the Rules ofProfessional Conduct for Legal Practitioners 2007.(P. 39, paras. A-B)

16.On Purpose of writ of subpoena ad testificandum –

The purpose of the writ of subpoena ad testificandumis not to witch-hunt or hound counsel. It compels awitness to give evidence on behalf of a party in acase and not to clear allegations of crime againstsomeone, particularly counsel who has privilegedinformation and communication with a client, aswhatever the legal practitioner would say would bea travesty of the secret facts he is seised of. To allowthat would open up a floodgate for unscrupulousand mischievous litigants to dishonour their counseland make caricature of the legal profession. (P. 39,paras. E-F)

17.On Purpose of writ of subpoena ad testificandum –

The purpose of a subpoena ad testificandum is tocompel a witness t o either come to testify or produce

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a document on an issue (subpoena duces tecum). Inthe instant case, there was no application from anyof the parties to call the appellant. The trial courtsummoned the appellant suo motu. (P. 44, paras.G-H)

18.On Exercise of power of National Industrial Court toissue subpoena –

In as much as the National Industrial Court haspowers to call upon any person by subpoena, thepower is however discretionary, which must beexercised not only judicially but judiciously. Inthe instant case, what the trial court did by issuinga writ to the appellant to come to court to clearhimself of grave allegation was impervious tojudicial discretion. (P. 41, paras. B-C)

19.On Nature of powers of National Industrial Court –

The National Industrial Court Act 2006 and theNational Industrial Court Rules carry with themdiscretionary powers and are not to be givenmandatory flavour. (P. 39, para. D)

20.On What determines jurisdiction of court –

It is the statement of claim that confers jurisdiction.In the instant case, the respondents’ pleadings andstatement on oath made no allegation against theappellant. (P. 37, paras. A-B)

21.On Whether facts admitted need further proof –

Facts admitted need no further proof. [HonicaSawmill v. Hoff (1994) 2 NWLR (Pt. 326) 252referred to.] (P. 33, paras. F-G)

22.On Need for material facts to be pleaded to beadmissible in evidence –

Material facts must be pleaded to be admissible inevidence. Therefore, none of the parties is allowedto raise at the trial of a suit an issue of fact which hasnot been pleaded by him. Where such facts are not

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pleaded, they are in law inadmissible in evidence.Where inadvertently or wrongly admitted, they goto no issue and should be disregarded as irrelevantto issues properly raised by the pleadings. [Aminu v.Hassan (2014) 5 NWLR (Pt. 1400) 287; Ipinlaye (II)v. Olukotun (1996) 6 NWLR (Pt. 453) 148 referredto.] (P. 36, paras. C-E)

23.On Treatment of evidence on facts not pleaded –

In civil cases, issues are settled on the pleadings.Where evidence not pleaded is admittedinadvertently, such must be disregarded andexpunged, as the case may be. In the instant case,the trial court predicated its writ of subpoena onnothing, as the evidence elicited from the witnesswent to no issue as it was not pleaded, neither didthe parties join issues on it, and neither was theappellant called as a witness. [Idahosa v. Oronsaye(1959) SCNLR 407 referred to.] (P. 42, paras. G-H)

24.On Treatment of evidence on facts not pleaded –

Evidence in support of facts not pleaded goesto no issue, even where the other party does notobject. Evidence not pleaded cannot and will not beallowed at the trial of a suit, either at the instanceof the parties or the court itself. Such evidence isinadmissible and if erroneously admitted, must bediscountenanced and expunged. Where a witnessgives contrary evidence, the court would regardhis evidence as unreliable and same would go tono issue. In the instant case, there was no basis forthe trial court to castigate the legal practitionerin its ruling when it based its ruling on evidencenot pleaded. The trial court failed to disregardthe evidence of the 2 nd respondent which was notpleaded but chose to hound the appellant for noreason and on no basis. The facts constituting theground upon which the trial court issued the writof subpoena ad testificandum to the appellant toappear and clear his name of grave allegation`nsmade against him were extracted under cross-

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examination of the 2 nd respondent on an issue thatwas not pleaded by any of the parties. [Alhaji Otaru& Sons Ltd. v. Idris (1999) 6 NWLR (Pt. 606) 330;Emegokwue v. Okadigbo (1973) 4 SC 113; F.A.T.B.Ltd. v. Partnership Inv. Co. Ltd. (2003) 18 NWLR(Pt. 851) 35; Ezeniba v. Ibeneme (2004) 14 NWLR(Pt. 894) 617; Odunlami v. Nigerian Navy (2013) 12NWLR (Pt. 1367) 20; Yahaya v. Dankwanbo (2016)7 NWLR (Pt. 1511) 284; Onwuchekwa v. Ezeogu(2002) 18 NWLR (Pt. 799) 333; African Inn Bank Ltd.v. Asaolu (2005) LPELR- 11340; Sanni-Omotosho v.Obidairo (2014) LPELR 2306; Atolagbe v. Shorun(1985) 1 NWLR (Pt. 2) 360 referred to.] (Pp. 43,paras. B-G; 50, paras. A-B; 51-52, paras. G-A)

25.On Primary object of pleadings –

The primary object of pleadings is sacrosanct. It isto put the other party on notice. The court is notallowed to just pick up facts not pleaded to supportpleadings. The parties cannot do that either. (P. 44,paras. C-D)

26.On Effect of breach of principle of fair hearing –

Fair hearing lies in the procedure adopted in thedetermination of a case and not in the correctnessof the decision. Breach of fair hearing jettisonsany decision, however well arrived at. Where acourt arrives at a correct decision in breach ofthe principle of fair hearing, an appellate courtwill throw out the correct decision in favour of thebreach of fair hearing. In the instant case, the trialcourt tacitly breached the appellant’s fair hearingwhen it relied on the evidence of the 2 nd respondentelicited under cross-examination on an issue notpleaded to subpoena the appellant. [Orugbo v. Una(2002) 16 NWLR (Pt. 792) 175 referred to.] (P. 43,paras. G-H)

27.On Duty of court to do justice according to law andConstitution –

A court of law must, as a matter of compulsion,

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d o justice by procedure laid down by the law andindeed the Constitution which is the grundnorm ofNigerian body polity. It is a kangaroo court thatdoes justice not in accordance with the law andprocedure laid down, in the due dispensation ofjustice. (P. 44, para. A)

28.On Principle guiding construction of statutes –

The courts cannot arrogate to a statute anyextraneous interpretation which that statute doesnot represent. (P. 44, para. C)

29.On Need for Judge not to descend into arena ofconflict –

The Judge is the umpire and must not be seen tobe doing the cases for the parties. Neither shoulda Judge jump into the arena and allow its vision tobe beclouded with the dust of the conflict. (P. 44,para. D)

30.On Need for Judge to possess values of prudence,honesty, equality and transparency –

A Judge must possess core values of prudence,honesty, equality and transparency. The primaryduty of a Judge is to pursue justice and not toobstruct same. In the instant case, what the courtdid amounted to an attempt to create another actorin the legal space. (P. 44, paras. E-F)

31.On Limit of discretion –

Where the Constitution commands, discretionterminates. (P. 44, para. E)

32.On Meaning of inherent jurisdiction of court –

The inherent jurisdiction of court is a term ofwide significance meaning the reserve or fundof powers, a residual source of powers which thecourt may draw upon as necessary whenever itis just and equitable to do so and in particular toensure the observance of the due process of law,to prevent improper vexation or oppression, to do

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justice between the parties and to ensure a fair trialbetween them. (Pp. 44-45, paras. H-B)

33.On Purpose of establishment of courts –

Courts of law are established to guard jealouslythe civil rights of every citizen and to enforce at alltimes the inalienable right to fair hearing. [Odunsiv. Principal, Ijebu-Ode Grammar School (1982)OGSLR 229 referred to.] (P. 45, para. C)

34.On Purpose of analytic and critical thinking of Judge –

The quality of analytic and critical thinking a Judgemust put in to every matter is to ensure that justiceis carried out. (P. 45, paras. F-G)

35.On On what cases must be decided –

Cases must be decided on the issues on the record.If it is desired to raise other issues, they must beplaced on the record by amendment. In the instantcase, the parties’ pleadings were not amended toreflect the allegation of the 2 nd respondent againstthe appellant. (P. 45, paras. G-H)

36.On Exercise of right to fair hearing –

The right to fair hearing must be exercised withinthe confines of the law, regulatory and proceduralprovisions as may be applicable to the particularcase. [Ahmed v. Regd. Trustees, AKRCC (2019) 5NWLR (Pt. 1665) 300; Ekiyor v. Bomor (1997) 9NWLR (Pt. 519) 1 referred to.] (P. 46, para. A)

37.On Duty of appellate court where allegation of breachof principle of fair hearing is raised –

In an allegation of breach of fair hearing, the Courtof Appeal has a duty to scrutinise the proceedingsto see whether the result of the case would havebeen the same even if the breach of the principleof fair hearing had not occurred. A breach of fairhearing leads to the inevitable conclusion that anunfa ir method cannot produce a fair result. [Ahmedv. Regd. Trustees AKRCC (2019) 5 NWLR (Pt. 1665)

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300; Idokwo v. Ejiga (2002) 13 NWLR (Pt. 783) 156referred to.] (P. 46, paras. B-C)

38.On What fair hearing involves –

Fair hearing involves situations whether, havingregard to all the circumstances of a case, thehearing may be said to have been conducted in sucha manner that an impartial observer will come tothe conclusion that the court or tribunal was fairto all the parties to the proceedings. More so, tosomeone who was never part of the proceedings. Itis a trial conducted according to all the legal rulesformulated to ensure that justice is done to all theparties to a cause or matter. [Gov., Imo State v. E.F.Networking (Nig.) Ltd. (2019) 9 NWLR (Pt. 1676)95; Mil. Gov., Imo State v. Nwauwa (1997) 2 NWLR(Pt. 490) 675 referred to.] (P. 46, paras. C-E)

Per PEMU, J.C.A. at page 46, paras. E-H:

“In the instant case leading to this appeal,there was nothing in the pleadings reflectingexpressly or by necessary implication theallegations made by the 2 nd respondent incourt against the appellant at the trial, undercross-examination. Yet, the learned trialJudge issued a writ of subpoena inviting theappellant to explain what does not exist onthe pleadings as settled by the parties. Thisamounted to a tacit infringement on theappellant’s fundamental right to fair hearing.The learned trial Judge’s failure to expungethe evidence of 2 nd respondent elicited undercross-examination on the 18th of January2016 on an issue not pleaded, (but relied onas informing its issuance of a writ of subpoenaad testificandum) was an infraction of theappellant’s right to fair hearing.”

39.On Effect of entry of appeal –

Where an appeal has been entered, by which actthe recor d of appeal compiled in the lower court istransmitted to the registry of the Court of Appeal,

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the tria l court is functus officio and ceases to have anycontrol over the matter in question. In other words,the Court of Appeal will not share jurisdictionwith the trial court over any matter that has beenentered in the Court of Appeal. Any finding by thetrial court on a matter that has been entered in theCourt of Appeal is dead on arrival and lifeless. Suchfinding is perverse and a breach of the appellant’sright to fair hearing. In the instant case, the trialcourt, being seised of the fact that the matter hadbeen entered in the registry of the Court of Appeal,erred grossly by making a finding in respect of thesubject-matter of the pending appeal. Its findingson the judgment were perverse and calculated tooccasion to the appellant a miscarriage of justice.What the trial court did amounted to usurpingthe jurisdiction of the Court of Appeal and was inbreach of the appellant’s right to fair hearing. (P.48, paras. B-D)

Per PEMU, J.C.A. at page 50, para. F:

“As earlier observed in this judgment, therewas a pending appeal in respect of the matterwhich is the subject matter of this appeal.For the court below to deliver a ruling inthe face of an appeal which has been enteredis disrespectful to this court and same iscalculated to irritate it.”

40.On Duty of court to preserve res –

.The primary duty of all courts in their original andappellate jurisdiction is to preserve the res. Thisprevents the decision reached from being nugatory.[Kigo v. Holman (1980) 5 – 7 SC 60 referred to.] (P.48, para. F)

41.On Duty of Judge to be impartial umpire –

.A Judge is an impartial umpire. He is duty bound tobe. He is not expected to pass judgment lopsidedly.More so suo motu, particu larly in a situation where itsfindings are based on facts not pleaded. (P. 49, paras.F-G) .

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42.On Power of Court of Appeal to grant or refuse leaveto appeal as interested party –

The Court of Appeal possesses the discretionarypower to grant or refuse leave to appeal as aninterested party, even though the applicant is nota party in the suit. In the instant case, the Courtof Appeal granted leave to the appellant to enablehim appeal as an interested party. [A.P.G.A. v. Oye(2019) 2 NWLR (Pt. 1657) 472 referred to.] (P. 26,paras. D-E)

Nigerian Cases Referred to in the Judgment:

A.P.G.A. v. Oye (2019) 2 NWLR (Pt. 1657) 472

Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386.

African Inn Bank Ltd. v. Asaolu (2005) LPELR-11340

Ahmed v. Regd. Trustees AKRCC (2019) 5 NWLR (Pt. 1665)300

Akingbola v. F.R.N. (2018) 14 NWLR (Pt. 1640) 395

Alhaji Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (Pt. 606)330

Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287

Arinze v. F.B.N. Ltd. (2004) 12 NWLR (Pt. 888) 663

Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360

Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1

Emegokwue v. Okadigbo (1973) 4 SC 113

Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46

Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617

F.A.T.B. Ltd. v. Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt.851) 35

Gov., Imo State v. E. F. Networking (Nig.) Ltd. (2019) 9 NWLR(Pt. 1676) 95

Honica Sawmill v. Hoff (1994) 2 SCNJ 8

Idahosa v. Oronsaye (1959) SCNLR 407

Idokwo v. Ejiga (2002) 13 NWLR (Pt. 783) 156

Ifezue v. Mbadugha (1984) 1 SCNLR 427

Ipinlaiye (II) v. Olukotun (1996) 6 NWLR (Pt. 453) 148

Kigo v. Holman (1980) 5-7 SC 60

Mainagge v. Gwamma (2004) 14 NWLR (Pt. 893) 323

Mil. Gov., Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675

Mini Lodge Ltd. v. Ngei (2009) 18 NWLR (Pt. 1173) 254

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Odunlami v. N igerian Navy (2013) 12 NWLR (Pt. 1367) 20

Odunsi v. Principal Ijebu-Ode Grammar School (1982)OGSLR 229

Onwuchekwa v. Ezogu (2009) LPELR – 8267

Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175

Sanni-Omotosho v. Obidairo (2014) LPELR 2306

Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136

Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 150

Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284

Foreign Cases Referred to in the Judgment:

Berd v. Lovelace (1577) 21 E.R. 33 (CH)

Greendugh v. Gaskell (1833) 39 E.R. 618

Montreal Trust Co. v. Churchill Forest Industries (Manitoba)Ltd. (1971), 21 Dominion Law Reports (3rd Edition) 75

R. v. Chancellor of Cambridge University (1716) 1 STR 557

Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999 (asamended), (Third Alteration) Act, 2010, S. 254(c)

Constitution of the Federal Republic of Nigeria, 1999 (asamended), S. 36(6)

Evidence Act, 2011, S. 192

National Industrial Court Act, 2006, S. 44

Rules of Professional Conduct for Legal Practitioners, 2007,R. 19

Nigerian Rules of Court Referred to in the Judgment:

National Industrial Court (NIC) Rule, 2007, O. 19, rule 11

National Industrial Court Rule, 2017, O. 38 18

Book Referred to in the Judgment:

National Industrial Court Practice Direction, 2012, O. 5

Appeal:

This was an appeal against the ruling of the National IndustrialCourt which refused to set aside its writ of subpoena ad testificandumissued against the appellant. The Court of Appeal, in a unanimousdecision, allowed the appeal.

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History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal wasbrought: Court of Appeal, Akure

Names of Justices that sat on the appeal: Rita NosakharePemu, J.C.A. (Presided and Read the Leading Judgment);Hamma Akawu Barka, J.C.A.; James Gambo Abundaga,J.C.A.

Appeal No.: CA/AK/77/2019

Date of Judgment: Thursday, 22nd July 2021

Names of Counsel: Alhaji Mohammed Sani Abbas,Esq. (with him, Olanrewaju Ogunyemi, Esq.) – for theAppellant

Oho Solomon, Esq. – for the 1st Respondent

O. O. Iranloye, Esq. – for the 2nd Respondent

National Industrial Court:

Name of the National Industrial Court: National IndustrialCourt, Akure.

Name of Judge: Oyewunmi, J.

Suit No.: NICN/LA/366/2015

Date of Ruling: Thursday 25th May 2017

Counsel:

Alhaji Mohammed Sani Abbas, Esq. (with him, OlanrewajuOgunyemi, Esq.) – for the Appellant

Oho Solomon, Esq. – for the 1st Respondent

O. O. Iranloye, Esq. – for the 2nd Respondent

PEMU, J.C.A. (Delivering the Leading Judgment): This appealis against the judgment of the National Industrial Court of Nigeria,holden in Akure, delivered on the 25th day of May 2017 in SuitNo. NICN/LA/366/2015 (Pages 366 – 387 of the record of appeal).

Synopsis of Facts Leading to this appeal

The 2nd respondent Chimezie Sunday Ahaiwe had institutedSuit No. NICN/366/2015 in the National Industrial Court of Nigeria,Lagos Judicial Division against Mainstreet Bank Registrars Ltd.

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This was done via a complaint and statement of facts filedon the 24th day of July 2015, whereby he claimed the sum ofN65,662,521.82 (Sixty five million, six hundred and sixty twothousand, five hundred and twenty one naira, eighty two kobo) beingunpaid gratuity, profit sharing for the year 2013 and PerformanceInducement Pay (PIP) 2014. He had also claimed interest on thesaid sum at 15% from September 15th 2014 until judgment is fullyand finally liquidated with cost of this suit.

The appellant, Dr. Charles Dumbiri Mekwunye (Trading underthe name and style of Charles Mekwunye & Co.) is a Barrister andSolicitor of the Supreme Court of the Federal Republic of Nigeria.He was counsel to the 1st respondent in respect of several lawsuits(pending and concluded) both in the lower courts and other courtsof the National Industrial Court. This in addition to some appealspending before this honourable court, leading to the decision beingappealed. These span over thirty-nine matters.

The appellant’s case is that the 2nd respondent was the actingManaging Director of the 1st respondent in 2013. He terminatedthe appointment of over twenty staff of the 1st respondent.He also instructed the appellant on behalf of the 1st respondent todefend the various suits instituted by some sacked employees of the1st respondent whose appointments were terminated. This he didby personally visiting the office of the appellant to give both oraland written instructions on the matters. He provided most of thefacts and evidence required for the defence of the 1st respondent.

The 2nd respondent had gone to the Registry of the NationalIndustrial Court on several occasions spanning over six monthsto depose to several written statements on oath in support of thedefence of the 1st respondent. This he did as a potential witness forthe 1st respondent.

Some of these written statements on oath are exhibited to theaffidavit in support of the appellants’ application filed on the 27thof September 2016, which is for an order setting aside the writ ofsubpoena ad testificandum issued by the trial court on the 14th ofJuly 2016, commanding the appellant to appear in court on 29thSeptember 2016, to testify against the 1st respondent.

During the cross-examination of the 2nd respondent, hementioned the names of the appellant on an issue that did not formpart of facts pleaded by any of the parties and which issues werenever joined in the pleadings.

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The 2nd respondent closed its case on the 25th of April 2016,and the 1st respondent opened its defence and called one witnesswho adopted and relied on the witness deposition dated 22ndSeptember 2015. He was cross-examined by the 2nd respondent.The 1st respondent then closed his case and the matter was adjournedfor adoption of final written addresses on the 29th of June 2016.

The appellant was not a counsel in this particular suit at thetrial.

Howbeit, when the matter came up for adoption of writtenaddresses on the 29th of June 2016, the honourable trial Judge suomotu raised the issue of subpoening the appellant to appear in courtto testify against the 1st respondent in respect of the allegationsmade against him by the 2nd respondent elicited under cross-examination, which did not form part of facts pleaded by the parties,and on which issues were not joined on the pleadings. The trialcourt asked counsel to address him on this. And thereafter wronglyinvoked the provisions of Section 44 of the National IndustrialCourt Act 2006 and issued a writ of subpoena ad testificandumdated 14th July 2016 commanding the appellant to attend court onthe 29th of September 2016 at 9:00 am before Honourable JusticeO. O. Oyewumi.

When this process was served on the appellant on the 7th ofSeptember 2016, he engaged the services of Chief Emeka Ngige(SAN) to file a motion challenging the said writ served on him.Upon which Chief Emeka Ngige brought an application dated andfiled on 27th September 2016, to which the 2nd respondent filedtheir counter affidavit supported with a written address on the 20thof October 2016. On the 25th of October 2016, the appellant fileda further affidavit in reply, and reply on point of law to the 2ndrespondent’s counter affidavit (Pages 323 – 335 of the record ofappeal).

Let me quickly state here that the matter had originated inLagos but the learned trial Judge was transferred to Akure JudicialDivision of the National Industrial Court.

On the 25th of October 2016, the appellant’s counsel movedhis motion and adopted his written address in support, and hisfurther affidavit and reply on point of law filed on the 25th ofOctober 2016.

The court delivered its ruling in favour of the 2nd respondentand against the appellant.

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The court below had suo motu discountenanced and failed toconsider the appellant’s further affidavit, and the reply on point oflaw in support of the motion to set aside the subpoena.

The appellant is dissatisfied with the ruling of the court below,and desirous to appealing same, filed a notice of appeal on the 1stof November 2016 challenging the court’s ruling of 25th October2016 in Appeal No. CA/L/1261/2016 – Dr. Charles DumbiriMekwunye v. Chimezie Sunday Ahaiwe & Anor.

He proceeded further to compile and transmit the record ofappeal on the 14th of November 2016, which appeal was enteredin the Court of Appeal as Appeal No. CA/L/1261/2016. In additionto these, the appellant filed a motion for stay of proceedings andexecution on the 23rd of November 2016. He filed a sworn affidavitof facts on the 24th of November 2016, indicating all the steps hehad taken – pages 351 – 359 and 342 – 350 of the record of appeal.

The law is trite that the Court of Appeal possesses thediscretionary power to grant or refuse leave to appeal as aninterested party, even though the applicant is not a party in the suit.

In the exercise of that discretion, this honourable court grantedleave to the appellant to enable him appeal as an interested party,as the order of writ of subpoena ad testificandum is directed at,and affected the right, status and interest of the appellant/interestedparty who is not even a party to the proceeding – A.P.G.A. v. Oye(2019) 2 NWLR (Pt. 1657) p. 472 at p. 491 – 495 paras. G-A, pages495 paras. A-D.

The bane of the appellant’s case is that the honourable trialJudge breached the fair trial right, of the appellant, when he reliedon an allegation elicited from the 2nd respondent under cross-examination which did not form part of facts pleaded by the partiesand on which issues were never joined in the pleadings, as thebasis to subpoene the appellant to appear to testify against the 1strespondent who is his client.

The appellant had sought leave of this honourable court toappeal as an interested party which leave was granted on the 22ndof January 2019.

The appellant has appealed the judgment of this court ongrounds contained in his notice of appeal filed on the 23rd of January2019 in compliance with the order of court dated 22nd January 2019(pages 1 – 8 of the supplementary record of appeal). The notice ofappeal was subsequently amended on the 1st of March 2019 by thishonourable court but deemed on the 22nd of March 2021.

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The appellant’s brief is predicted on, and filed pursuant to theamended notice of appeal encapsulating four grounds of appeal.

From records, the following is apparent:

The appellant filed a motion for leave to appeal as an interestedparty, which application is dated and filed on the 7th of August2017. The appellant was granted leave to so do on the 22nd ofJanuary 2019.

Record of appeal was compiled and transmitted on the 25th ofFebruary 2019.

The appellant filed a motion seeking leave to use, refer to andrely on the record of appeal already compiled and transmitted in themain Appeal No. CA/AK/211/2017 between Carnation RegistrarsLtd. v. Chimezie Sunday Ahaiwe for the hearing of the instant appealon the 1st of March 2019.

On the 3rd of November 2020, the appellant filed a motionseeking leave to compile and transmit the notice of appeal assupplementary record of appeal, which was granted accordingly onthe 22nd of March 2021.

Leave to amend the notice of appeal was also granted on the22nd of March 2021.

The appellant filed his brief of argument on the 9th ofNovember 2020, but same was deemed filed on the 22nd of March2021. It is settled by Alhaji Mohammed Sani Abbas, Esq.

Pertinent to note that the respondents filed no briefs ofargument despite the fact that at all material times, processes wereserved on them.

Noteworthy also is the fact that none of the respondentsappeared in court nor file any process in reply to all the appellant’smotions.

The appellant on the 15th of June 2021 filed a motion on noticefor an order of this honourable court that this appeal be heard anddetermined on the appellant’s brief of argument alone. The motionwas granted on the 22nd of June 2021. Again, the respondents werenot in court but were represented by counsel, who did not opposethe application.

The appellant argued his appeal and adopted the arguments inhis brief of argument on that day.

The appellant distilled four issues for determination fromthe grounds of appeal which I hereby reproduce verbatim:

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1.Whether the honourable trial Judge’s judgment was notperverse being contrary to section 192 of the EvidenceAct, 2011 and rule 19 of the Rules of ProfessionalConduct for Legal Practitioners, 2007, when he issuedthe writ of subpoena ad testificandum on the appellantto appear in court to clear his name on allegationelicited from 2nd respondent under cross-examinationwhich did not form part of facts pleaded by any of theparties. (Distilled from ground 3.1)

2.Whether the honourable trial Judge breached the fairhearing right of the appellant when he relied on anallegation elicited from 2nd respondent under cross-examination which did not form part of facts pleadedby any of the parties to subpoena the appellant totestify against his client. (Distilled from ground 3.2)

3.Whether the honourable trial Judge breached the fairhearing right of the appellant when he made findingsagainst the appellant on a matter that is on appealin Appeal No. CA/L/1261 – Dr. Charles DumbiriMekwunye v. Chimezie Sunday Ahaiwe & Anor.in violation of the provisions of section 36 of the1999 Constitution (as amended) thereby unlawfullycastigating the professional competence, and integrityof the appellant. (Distilled from ground 3.3)

4.Whether the honourable, trial Judge breached the fairhearing right of the appellant as enshrined under section36(1) of the 1999 Constitution when he suo motu perincuriam raised the issue of professional competenceof the appellant, and castigated the appellant whilstthere is a pending appeal on the subject matter withouthearing the appellant. (Distilled from ground 3.4)

Issue No.1

It is the appellant’s contention that the act of the honourabletrial Judge of compelling witness to come and testify or producedocument on an issue not before a court of law is perverse.

Submits that the ground on which the trial court issued the writof subpoena ad testificandum on the appellant was for the appellantto appear and clear his name of grave allegations made againsthim by the 2nd respondent elicited under cross-examination, on anissue which is not pleaded by either of the parties, and on which

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no issue was joined in the pleadings by the parties – referring topages 179 of the record of appeal. Submits that the issuance of thesubpoena on the appellant is gravely erroneous. More so, to cometo court, to testify against his client (1st respondent). That same isa violation of the provisions of Section 192(1) of the Evidence Act2011, and Rule 19 of the Rules of Professional Conduct for LegalPractitioners, 2007.

Submits that the text of the writ of subpoena ad testificandumon the appellant is for the purpose to “appear in court and clear hisname” of grave allegations made against him in violation of theprovisions of Section 192(1) of the Evidence Act 2011 and rule 19of the Rules of Professional Conduct of Legal Practitioners 2007.That the appellant cannot act on the said writ without divulgingprivileged information between him and the 1st respondent. Thata lawyer is duty bound to, guard his or her client’s secrets, citingBerd v. Lovelace (1577) 21 E.R. 33 (CH); Greendugh v. Gaskell(1833) 39 E.R. 618 (cases which highlight the sacred doctrine ofcounsel-client privilege principle); Abubakar v. Chuks (2007) 18NWLR (Pt. 1066) p. 386.

The appellant submits that a subpoena is not used tocommence a criminal proceeding against anyone under our law andConstitution. That issuance of writ of subpoena ad testificandumon the appellant to “appear and clear his name” of grave allegationsmade against him by a witness under cross-examination, is unknownto our jurisprudence. He urges this honourable court to so hold.

Submits that the court below sitting as a civil court cannotexercise criminal jurisdiction, except on contempt on the face ofthe court which is not the case in the instant circumstances.

The writ was in effect issued to the appellant to answer toquestions that never arose, nor were joined in the pleadings of theparties in the suit.

He submits that by the express provisions of section 254(c)of the Constitution of the Federal Republic of Nigeria (ThirdAlteration) Act 2010, the National Industrial Court has no criminaljurisdiction to investigate allegations of crime made against aperson. Neither is there such jurisdiction conferred on it by any Actof the National Assembly.

That the writ falls short of the format in any criminal chargewhich in essence should set forth the, relevant offence in suchmanner and with such particulars as to the time and place at which

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the offence is alleged to have been committed, and the personagainst whom and the property in respect of which the offence isalleged to have been committed, as may be reasonably sufficient toinform the accused of the nature of the charge against him.

In the absence of this, the appellant submits, that the writ ofsubpoena issued against the appellant is in contravention of theprovisions of section 36(6) and 36(12) of the Constitution of theFederal Republic of Nigeria 1999, and therefore null and void, ifthe purpose is for the appellant (and as ruled by the court below) tocome and “clear his name”.

That the purpose of a writ of subpoena ed testificandum isnot to enable a witness to “appear and clear his name” of graveallegations made against him by a witness under cross-examination,but it is a writ to compel a witness to give evidence on behalf of aparty in a case, and not to clear any allegations.

The court below, he submits therefore lacked jurisdiction toissue the writ as he did.

He submits that assuming (but without conceding) that thecourt below issued the subpoena for a proper purpose, it cannothowever apply to an interested party/appellant by virtue of theprovisions of Section 192(1) of the Evidence Act 2011 and rule 19of the Rules of Professional Conduct for Legal Practitioners 2007.

He submits that this is because a Legal Practitioner is notpermitted to disclose any communication made to him in the courseof his employment for a party. The Legal Practitioner cannot statethe content or condition of any document with which he has becomeacquainted in the course and for the purpose of his professionalemployment. He is not permitted to disclose any advice givenby him to his client in the course and purpose of his professionalemployment. Neither can he be subpoenaed to come to court totestify against his client.

The appellant submits that although he was not a counselin this matter at the trial court, he has been the 1st respondent’scounsel in several matters in the trial court, some of which havebeen concluded at the trial court but continued on appeal.

That issuance of writ of subpoena ad testificandum on theappellant will make him be compelled to disclose privilegedcommunication with his client to the public and all these matters,some of which are still in the Court of Appeal and some of whichare still pending in the lower court. That this contravenes the

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provisions of section 192(1) of the Evidence Act 2011, and Rule 19of the Rules of Professional Conduct for Legal Practitioners, 2007.

The appellant in conclusion contends that the court below isin breach of the above stated provisions of the law. This is becausedecidedly a Legal Practitioner cannot be subpoenaed to discloseany communication made to him in the course of his employmentfor a client.

He urges this honourable court to so hold.

In resolving this issue, I deem it necessary to reproduceverbatim paragraph 2.2 – 2.3 of the appellant’s brief of argument -spanning pages 4 of 33 to page 6 of 33.

“2.2 The appellant is a Barrister and Solicitor of theSupreme Court of the Federal Republic of Nigeria, andthe counsel to the 1st respondent in respect of severallawsuits pending in the lower court and other courtsof the National Industrial Court and some appealspending before this court at all the material timesleading to the decision being appealed against namely:

2.3 In The National Industrial Court

A. Before Honourable Justice O. O. Oyewumi

1.Suit No. NICN/421/2013 – InnonwanBenson v. Mainstreet Bank RegistrarsLtd.

2.Suit No. NICN/511/2013 – AmusaWasiu v. Mainstreet Bank RegistrarsLtd.

3.Suit No. NICN/518/2013 – GodspowerJulius v. Mainstreet Bank RegistrarsLtd.

4.Suit No. NICN/515/2013 – AweOlugbenga v. Mainstreet BankRegistrars Ltd.

5.Suit No. NICN/517/2013 – KehindeAbimbola v. Mainstreet Bank RegistrarsLtd.

6.Suit No. NICN/335/2014 – ChesterOnyemaechi Ukandu v. MainstreetBank Registrars Ltd.

7.Suit No. NICN/422/2013 – TimotopeOshinuga v. Mainstreet Bank RegistrarsLtd.

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B. Before other Judges in the National IndustrialCourt

1.Suit No. NICN/512/2013 – AmooAbidemi Shadiat v. Mainstreet BankRegistrars Ltd.

2.Suit No. NICN/510/2013 – JosephOjugbana v. Mainstreet Bank RegistrarsLtd.

3.Suit No. NICN/LA/518/13 – GodspowerJ. v. Mainstreet Bank Registrars Ltd.

4.Suit No. NICN/LA/514/13 – EKPUDIC. V Mainstreet Bank Registrars Ltd.

5.Suit No. NICN/LA/516/13 -Evukowhiroro E. v. Mainstreet BankRegistrars Ltd.

6.Suit No. NICN/LA/417/13 – Barde v.Mainstreet Bank Registrars Ltd.

7.Suit No. NICN/LA/456/13 – UbongNnah v. Mainstreet Bank RegistrarsLtd.

8.Suit No. NICN/LA/558/13 – ObukohwoJuliet O. v. Mainstreet Bank RegistrarsLtd.

9.Suit No. NICN/LA/530/13 – OkoloAdeyinka L. v. Mainstreet BankRegistrars Ltd.

10.Suit No. NICN/LA/424/13 – DonatusOnuigbo v. Mainstreet Bank RegistrarsLtd.

11.Suit No. NICN/LA/558/13 – ObukohwoJuliet O. v. Mainstreet Bank RegistrarsLtd.

12.Suit No. NICN/LA/513/13 – Udoh F. E.v. Mainstreet Bank Registrars Ltd.

13.Suit No. NICN/LA/416/13 – Chilaka v.Mainstreet Bank Registrars Ltd.

14.NICN/LA/509/13 – Enyeribe Benjaminv. Mainstreet Bank Registrars Ltd.

15.NICN/LA/512/13 – Amoo A. A. v.Mainstreet Bank Registrars Ltd.

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16.NICN/LA/519/13 – Ngozi B. M. v.Mainstreet Bank Registrars Ltd.

17.NICN/LA/420/13 – Opurum v.Mainstreet Bank Registrars Ltd.

18.NICN/LA/419/13 – Uzegbu v.Mainstreet Bank Registrars Ltd.

19.NICN/LA/418/13 – Egbu v. MainstreetBank Registrars Ltd.

Before the Court of Appeal

1.CA/L/39/2015 – Mainstreet BankRegistrars Ltd. v. Egbu

2.CA/L/994/2015 – Mainstreet BankRegistrars Ltd. v. Amusa Wasiu

3.CA/L/275M/17 – Mekwunye v.Mainstreet Bank Registrars Ltd. &Anor.

4.CA/L/895/2017 – Mainstreet BankRegistrars Ltd. v. The President of theNational Industrial Court & Anor.

5.CA/AK/160/2017 – Mainstreet BankRegistrars Ltd v. Adeola

6.CA/L/2017 – Inowan Benson v.Mainstreet Bank Registrars Ltd.

7.CA/L/275M/17 – Dr. Mekwunye v.Mainstreet Bank Registrars Limited &Anor.

8.CA/L/389/17 – Mainstreet BankRegistrars Limited v. Egbu”

These facts remain unchallenged and uncontroverted, and aretherefore deemed admitted by the respondents. Decidedly, factsadmitted need no further proof – Honica Sawmill v. Hoff (1994) 2SCNJ 8 at 90-105, (1994) 2 NWLR (Pt. 326) 252.

Issue No. 1 in the appellant’s brief of argument is herebyreproduced viz:

“Whether the honourable trial Judge’s judgmentwas not perverse being contrary to section 192 ofthe Evidence Act, 2011 and rule 19 of the Rules ofProfessional Conduct for Legal Practitioners 2007,when he issued the writ of subpoena ad testificandumon the appellant to appear in court to clear his name on

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allegation elicited from 2nd respondent under cross-examination which did not form part of facts pleadedby any of the parties. (Distilled from ground 3.1)”

First and foremost, the appellant was never a party to the suitin the court below in Suit No. NICN/366/2015.

The 2nd respondent had instructed the appellant to defendvarious suits instituted by some of the staff of the 1st respondentwhich appointments had been terminated. The 2nd respondent hadgone to the Registry of the National Industrial Court in Ikoyi, Lagos,on several different days spanning over six months, to depose toseveral witness statements on oath in support of the defence of the1st respondent. He swore to several affidavits on various differentdates as a potential witness for the 1st respondent – Pages 240 to299 of the Record of appeal.

Before I proceed to consider this issue, it is desirable to restatethe law as it affects the issues of perversity of rulings/judgmentsof courts; the term “May” in statutes and/or rules; pleadings, andcertain provisions of the Evidence Act 2011 particularly Section192 of same, and the term “Inherent power” of a court. Also, theprovisions of Section 44 of the National Industrial Court Act 2006,and the provisions of Order 19, Rule 11 of the National IndustrialCourt (NIC) Rules 2007 (now Order 38 rule 18 of the NIC Rules2017).

Decidedly, judicial discretion and inherent powers of courtmust be exercised in the context of the justice of the particularcase. For a judicial discretion to be properly exercised, it must befounded upon the facts and circumstances presented to the courtfrom which the court must draw a conclusion governed by law andnothing else – Akingbola v. F.R.N. (2018) 14 NWLR (Pt. 1640) p.395 at p. 416 paras. F-G; Arinze v. F.B.N. Ltd. (2004) 12 NWLR (Pt.888) p. 663; Mainagge v. Gwamma (2004) 14 NWLR (Pt. 893) p.323.

There are several ways in which a decision of the court canbe perverse. It is that the court ignored the facts or evidence, or itmisconceived the thrust of the case presented, or took irrelevantmatters into account which substantially formed the basis of itsdecisions, or went outside the issues canvassed by the parties to theextent of jeopardizing the merit of the case, or committed variouserrors that faulted the case beyond redemption.

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The hallmark in all these is that there has been a miscarriage ofjustice – Edwin Chukwudulue Udengwu v. Simon Uzuegbu (2003) 7SCNJ 145 at 153, (2003) 13 NWLR (Pt. 836) 136; Mini Lodge Ltd.v. Ngei (2009) 18 NWLR (Pt. 1173) 254 at 287 paras. F-H.

The word “May” used in the provisions of section 44 of theNational Industrial Court Act 2006 and the provisions of Order 19rule 11 of the National Industrial Court Rules 2007 (now Order 38rule 18 of the NIC Rules) is discretionary.

Let me reproduce verbatim the provisions of section 44 of theNational Industrial Court Act 2006:

“The court may issue a summons for bringing up anyperson under civil process to be examined as a witnessin any cause or matter pending or to be inquired into inthe court.” (Italics for emphasis)

The provision of Order 19 rule 11 of the National IndustrialCourt Rules 2007 (now Order 38, rule 18 of the 2017 Act) is that:

“The court may of its own motion or on the applicationof any party order any person to appear before the courtas a witness, or to produce any document.”

(Italics for emphasis)

Decidedly, “a Judge must not alter the material of which it iswoven, but he can and should iron out the creases.”

Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481.

In Ifezue v. Mbadugha & Anor. (1984) LPELR 1437 (SC),(1984) SCNLR 427 – the apex court observed that it is now tritethat the word “shall” does not always mean “must” a matter ofcompulsion. It could be interpreted, where the context so admits tomean ‘may’. Whereas the word “may” is not always ‘may’. It maysometimes be equivalent to shall.

In exercising discretion, a Judge is bound to adhere to certainprinciples as it is unwieldy and unjust to dispense discretion atrandom. The courts’ discretion can mar or enhance justice. It is apowerful tool in the hands of a Judge, but it should be exercised onsound basis of good reasons and the demands of justice – Usikarov. I.O.C.T. (1951) 2 LRCN 54 [reported as Usikaro v. Itsekiri LandTrustees (1991) 2 NWLR (Pt. 172) 150.

Section 192 of the Evidence Act has this to say:

“No Legal Practitioner shall at any time be permittedunless with his clients’ express consent to disclose anycommunication made to him in the course and for thepurpose of his employment as such Legal Practitioner

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by or on behalf of his client or to state the contents orcondition of any document with which he has becomeacquainted in the cause and for the purpose of hisprofessional employment, or to disclose any advicegiven by him to his client in the course and for thepurpose of such employment; provided that nothing inthis section shall protect from disclosure:

Any such communication made in furtherancea.of any illegal purpose;

Any fact observed by any legal practitioner inthe course of his employment as such; showingthat any crime or fraud has been committedb.since the commencement of his employment.”

It is a cardinal rule of pleadings that material facts to beadmissible in evidence must be pleaded. Therefore none of theparties is allowed to raise at the trial of a suit an issue of fact whichhas not been pleaded by him.

Therefore, where such facts are not pleaded, they are in lawinadmissible in evidence. And where inadvertently or wronglyadmitted, go to no issue and should be disregarded as irrelevant toissues properly raised by the pleadings – Aminu 7 Ors. v. Hassan &Ors. (2014) LPELR 22008 (SC), (2014) 5 NWLR (Pt. 1400) 287;Ipinlaiye (II) v. Olukotun (1996) 6 NWLR (Pt. 453) 148 at 165-166.Where:

“… Evidence proffered at trial in proof of the materialfacts alleged in the pleading is at variance with them,then such evidence must be disallowed or overlookedsince they tend to prove matters not pleaded i.e.matters not in issue; and it is in this sense that suchevidence (like evidence which really has not referenceto facts actually pleaded) are said to ‘’go to no issue”.- Okagbue & Ors. v. Bomaine (1982) LPELR 2421(SC), (1982) 5 SC 133.

Having set out and restated the principles of law regardingall above issues, it is for this court, in considering the merit of thisappeal to see how they apply to the issues in this appeal.

I had reproduced facts in the appellant’s brief of argument asto how he had represented some parties in all those cases.

An incisive perusal of the pleadings in suit No. NICN/366/2015indicates the following facts.

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First and foremost, no where is the names of the appellant/applicant in the present appeal, Dr. Charles Dumbiri Mekwunyementioned in the pleadings of the parties. Neither is any of theallegations against him pleaded. It is the statement of claim thatconfers jurisdiction. The claimants pleadings, and his statement onoath filed on the 24th of July 2015 made no allegation against theappellant – page 8 of the record of appeal.

His list of documents made no mention of any document fromthe appellant – page 59 of the record of appeal.

In a verifying affidavit deposed to on the 24th of July 2015,one Ifeoma Ukandu, Legal Practitioner said he is in the law firmof O. O. Iranloye & Co. Solicitors retained by the claimant in theprosecution of the case – page 66 of the record of appeal. Indeed,one Mrs. Olusola Oyebowale signed the statement of defence. Thestatement of defence and counter claim made no mention of theappellant – pages 67-71 of the record of appeal. The defendant’switness statement on oath filed on the 30/8/2017 did not mention theappellant – pages 72-74 of the record of appeal. Only one witness,Mr. Oluwadare Akingbola was listed as witness for the defence -page 75 of the record of appeal. The appellant was not called as awitness.

Noteworthy is that no where in the claimants final addressdated 16th June 2016 did he mention the appellant – pages 225-237of the record of appeal.

The writ of subpoena ad testificandum issued on the 14th ofJuly 2016 against Dr. Charles Dumbiri Mekwunye of Plot 13ANiger Street, Off Aso Road, Parkview Estate Ikoyi Lagos – pages238-239 of the record of appeal, to appear on the 29th of September2016 at 9 am, but same was served on hill on the 7th of September2016.

The appellant filed a motion to set aside the said writ datedand filed 27th of September 2016 – pages 245-247 of the record ofappeal.

Paragraphs 17 and 18 of the counter affidavit to the applicationto set aside the writ dated 20th of October 2016 is instructive. Ihereby reproduce same verbatim:

Paragraph 17:

“That the subpoena ad testificandum issued and servedon the appellant was to enable appellant disclose therole he played in relation to statement on oath which

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though filed but was not adopted by the claimant Icourt as he opted out of the defendants’ employmentvoluntarily rather than testifying on oath to lie ….

Paragraph 18:

“That nothing is before the court to show that theaccusation made by the claimant on oath against theappellant will breach either the Evidence Act or theConstitution, rather it will enable the appellant presenthis own side of defence if any to the allegation madeagainst him in line with the Constitution and Rules ofProfessional Ethics.”

It is on record that the further affidavit filed by the appellantwas discountenanced by the court because the Rules of the NationalIndustrial Court (Order 5 of their Practice Direction 2012) do notallow it.

From records at the proceeding of the 28th of October 2015,the claimant was cross-examined – page 393-396 of the record ofappeal. The facts elicited thereby were never pleaded. The result isthat, that part of the evidence goes to no issue.

In the ruling of the court of 25th of October 2016, he observedthus inter alia:

“… Appellant is not invited before this court contraryto his position as evidenced on his application totestify or divulge client-counsel communication, thecourt is aware that that is privileged. Rather, it is anopportunity for him to clear the adverse evidence onrecord.” – Pages 334-335 of the record of appeal.

The fact that the court below dismissed the appellant/applicant’sapplication is erroneous and a tacit denial of the appellant’s right tofair hearing.

From records, the purpose for which the learned trial Judgeissued the writ of subpoena ad testificandum on the appellant wasfor him to “clear the adverse evidence on record” – page 335 of therecord of appeal.

From record, the 2nd respondent in NICN/366/2015 hadmade grave allegation against the appellant in this appeal, evidenceelicited under cross-examination, and on an issue that was notpleaded by the parties and on which no issue was joined in thepleadings by the parties. Clearly, any decision or order made basedon such is perverse in all its ramifications.

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The writ of subpoena ad testificandum is to a person toattend the court at a given date, to give evidence on behalf of aparty, and not for a witness to come to court to clear his name ofgrave allegations made against him by another witness, and whichevidence was elicited under cross-examination.

The appellant is a legal practitioner of repute whose name isin the Rolls of the Supreme Court of Nigeria. Summoning him forthe purpose stipulated by the lower court amounted to a violationof section 192(1) of the Evidence Act, and rule 19 of the Rules ofProfessional Conduct for Legal Practitioners 2007, more so as hisrelationship with the 2nd respondent in NICN/266/2016 is that ofcounsel/client.

The counsel/client relationship is fraught and clothed withprivilege. Privilege for communication in relation to litigation, andthat based upon the oath and honour of a lawyer, who was dutybound to guard his or her clients secrets – Berd v. Lovelace (1577)21 E.R. 33 (CH).

What the court below did is alien to our jurisprudence and ananathema. The National Industrial Court Act 2006 and the Rulesof that court carry with them discretionary powers and are not tobe given mandatory flavor. The purpose of the writ of subpoenaad testificandum is not to witch-hunt or hound counsel. It compelsa witness to give evidence on behalf of a party in a case, and notto clear allegations of crime against someone, particularly counselwho has privileged information and communication with a client.It is expected that whatever the Legal Practitioner would say wouldbe a travesty of the secret facts he is seised of. To allow that wouldopen up a floodgate for unscrupulous and mischievous litigants todishonour their counsel and make caricature of the legal profession.

Assuming (but without conceding) that the learned trialJudge issued the subpoena rightly, it still cannot be in order. Thisis because the provisions of section 192(1) of the Evidence Act2011 and Rule 19 of the Rules of Professional Conduct for LegalPractitioners 2007 is apt.

Specifically Rule 19 of the Rules of Professional Conduct forLegal Practitioners 2007 has this to say:

“Except as provided under sub-rule of this rule,all oral or written communication made by a clientto his lawyer in the normal course of professionalemployment is privileged.”

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The above connotes that a legal practitioner is forbiddento disclose any communication made to him in the course ofhis employment for a party in the normal course of professionalemployment. As rightly stated by the appellant in paragraph 4:14of his brief of argument – the legal practitioner by the said provisioncannot state the content or condition of any document with whichhe has become acquainted in the course and for the purpose of hisprofessional employment. He is equally not permitted to discloseany advice given by him to his client in the course and purpose ofhis professional employment – Abubakar v. Chuks (supra).

It is my view that all oral and material communications madeby a client to his lawyer, and in the normal course of professionalemployment are privileged.

Noteworthy is that the appellant was not a counsel in thematter the subject matter of this appeal, but he had been counselto the 1st respondent in several matters in the trial court some ofwhich were referred to earlier in this judgment.

It is imperative to note that the Judge being a repository ofthe law, is expected to know that a legal practitioner cannot becompelled to disclose privileged communication with his client tothe public. A court of law is a public forum.

The role of the Judge is distinct from that of the LegalPractitioner. While the former interprets the law in an atmosphereof fair hearing, which must be judicially or judiciously exercised,the Legal Practitioner on the other hand has a duty to protect hisclient and not breach the trust reposed on him.

It is pertinent to note that all acts derive their source from theConstitution of the Federal Republic of Nigeria 1999 (more so theEvidence Act 2011) and a portion of any law that is inconsistentwith the provisions of the Constitution must to the extent of that’inconsistency be null and void.

Therefore, section 44 of the National Industrial Court Act2006, and Order 19 rule 11 of the National Industrial Court Rules2007 are to the extent of its inconsistency with Section 192(1) ‘Ofthe Evidence Act 2011, null and void.

The learned trial Judge, being seised of the facts of the case,and that there is nowhere in the pleadings of the parties that alludeto unbecoming behavior of the appellant, that makes mention ofthe allegations of the 2nd respondent against the appellant, onewonders why the court had to issue the writ as it did!

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More so, the court knows that subpoening the appellant to cometo clear his name of grave allegation made against him by anotherperson when the “grave allegations” were never pleaded nor statedin the witness’ statements on oath is an anathema and antitheticalto our jurisprudence. It would amount to compelling the appellantto disclose private communication, (both oral and documentary) ina counsel/client relationship, before a public forum.

Let me reiterate that in as much as the National IndustrialCourt has powers to call upon any person by subpoena, this power ishowever discretionary, which must be exercised not only judiciallybut judiciously. What the lower court did by issuing a writ to theappellant to come to court to clear himself of grave allegation isimpervious to judicial discretion and I so hold.

This may be a forum where I can amply sound a word ofcaution.

A Judge has in its kitty enormous power’s to wield, andno Judge becomes a Judge without being first a lawyer. It is atransition. Therefore mutual respect is expected between the barand the bench.

Clients must not be given the leeway to subject legalpractitioners to their whims and caprices.

In this particular instance, the appellant had taken pains tostate that he had represented one of the parties for a period of time,and that the 1st respondent had gone to the Registry of the NationalIndustrial Court to depose to a motley of facts. In as much as clientsmay be ignorant of the consequences of what they engage in mosttimes, it is the duty of counsel, having been trained professionallyto preserve his client’s confidence and resultantly must not discloseany confidential communication made to him by his client, withoutthe client’s knowledge and consent.

The counsel/client relationship is one which is sacrosanct andprivileged.

The sum of it, is that I am of the view that the learned trialJudge erred and breached the provisions of section 192(1) of theEvidence Act 2011 and rule 19 of the Rules of Professional Conductfor Legal Practitioners 2007, and I so hold.

There is no doubt that the judgment of the learned trial Judgewas grossly perverse in the circumstances of the case.

This issue is resolved in favour of the appellant and against therespondents.

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Issue No.2

“Whether the honourable trial Judge breached the fairhearing right of the appellant when he relied on anallegation elicited from 2nd respondent under cross-examination which did not form part of facts pleadedby any of the parties to subpoena the appellant, totestify against his client. (Distilled from ground 3.2)”

The appellant in arguing this issue submits that the allegationelicited from the 2nd respondent against the appellant undercross-examination which did not form part of facts pleaded by theparties, and on which issues were never joined in the pleadingswhich therefore goes to no issue, and this cannot form the basis onwhich the honourable trial Judge can issue the writ of subpoena adtestificandum on the appellant to “appear and clear his name”.

That in this instant case, the 2nd respondent testified duringcross-examination as follows:

“Charles Mekwunye then report me to the GMD whocompelled me to sign and that it was not going to beused when Mekwunye on 16/9/14 sent a letter to me tocome to NIC to testify, I elected to go to Head officeand submitted my letter of resignation rather thancome to court and lie against people” – page 395 of therecord of appeal.

The appellant submits that these facts were never pleaded.And that evidence led in support of facts not pleaded should bediscountenanced.

It is apparent that it was the facts elicited from the 2ndrespondent under cross-examination that prompted the learned trialJudge to subpoene the appellant to come clear himself of “graveallegations”.

There is no gainsaying that in civil cases, issues are settledon the pleadings. This settled law is cast-in-stone. – Idahosa v.Oronsaye (1959) 4 FSC 166, (1957) SCNLR 407.

Where evidence not pleaded is admitted inadvertently, suchmust be disregarded and expunged (as the case may be).

In the instant case, as gleaned from page 395 of the recordof appeal, the 2nd respondent testified, answering questions put tohim in cross-examination thus:

“Charles Mekwunye then report me to the GMD whocompelled me to sign and that it was not going to be

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used. When Mekwunye on 16/9/14 sent a letter to meto come to NIC to testify, I elected to go to head officeand submitted my letter of resignation rather thancome to court and lie against people…”

The tenor of this piece of evidence leaves much to be desired.First and foremost, why was this facts not pleaded? Where is theso-called letter which was alleged to have been sent to him by theappellant? And why was it not pleaded?

These lacunae should have operated on the mind of thelearned trial Judge, who should not have accepted such evidence.I am however, peeved that it did. The learned trial Judge oughtnot to have issued the writ of subpoena ad testificandum on theinterested party (appellant) based on such allegations which remainunsubstantiated. The learned trial Judge predicated its writ onnothing, as the evidence elicited from the witness goes to no issueas it was not pleaded, neither did the parties join issues on it, andneither was the appellant called as a witness.

There was no basis for the learned trial Judge to castigate thelegal practitioner in its ruling when he based his ruling on evidencenot pleaded. Even where the other party does not object, the corpusof legal authorities point to the fact that evidence in support of factsnot pleaded go to no issue. Alhaji Otaru & Sons Ltd. v. Idris (1999)6 NWLR (Pt. 606) 330; Emegokwue v. Okadigbo (1973) 4 SC 113;F.A.T.B. Ltd. v. Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt. 851)p. 35 at p. 46.

Indeed, when the learned trial Judge relied on the evidence ofthe 2nd respondent elicited under cross-examination on the 18th ofJanuary 2016, on an issue that was not pleaded, and subpoened theappellant, it was a tacit breach of the appellant’s right to fair hearing.More so, when the appellant was subtly castigated regarding hisprofessionalism as counsel, which castigation was ill founded.

Fair hearing lies in the procedure adopted in the determinationof a case and not in the correctness of the decision. Breach of fairhearing jettisons any decision, however well arrived at.

In Orugbo v. Una (2002) 9-10 SC; (2002) 16 NWLR (Pt. 792)175, the Supreme Court had observed inter alia that;

“…Where a court arrives at a correct decision in breachof the principle of fair hearing, an appellate court willthrow out the correct decision in favour of the breachof fair hearing …”

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A court of law must as a matter of compulsion, do justice byprocedure laid down by the law and indeed the Constitution whichis the grund norm of our body polity. It is a kangaroo court that doesjustice not in accordance with the law and procedure laid down, inthe due dispensation of justice.

When the learned trial Judge issued the writ on the appellantto come clear himself of grave allegations, same sounded like asummons from an administrative panel of enquiry particularly as itwas ill founded. I dare say that if this kind of gesture is encouraged,it would amount to a feat that would resonate for generations tocome in the annals of legal history. It would amount to mutilatingthe very fabric on which the legal profession prides in.

The courts cannot arrogate to a statute any extraneousinterpretation which that statute does not represent. The primaryobject of pleadings are sacrosanct, and is to put the other party on,notice. The court is not allowed to just pick up facts not pleadedto support pleadings. The parties cannot do that either. The Judgeis the umpire and must not be seen to be doing the cases for theparties. Neither should a Judge jump into the arena and allow itsvision to be beclouded with the dust of the conflict.

The danger in allowing such would be incalculable.

Where the Constitution commands, discretion terminates.

A Judge must possess core values of prudence, honesty,equality and transparency. The primary duty of a Judge is to pursuejustice and not to obstruct same. What the court did in the instantcircumstance amounted to an attempt to create another actor in thelegal space.

It would amount to sacrificing legal practitioners on the alterof vagrancy on part of some unscrupulous clients. To allow samewould amount to a paradigm shift in the legal and judicial arena.Courts, in my view should not allow themselves to be used as fillybusters.

At the expense of repetition, the purpose of a subpoena adtestificandum is to compel a witness to either come to testify orproduce a document on an issue (subpoena duces tecum). In thiscase, there was no application from any of the parties to call theappellant. It was the court that summoned the appellant suo motu.

The inherent jurisdiction of court is a term of wide significancedefined as being:

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“the reserve or fund of powers, a residual source ofpowers which the Court may draw upon as necessarywhenever it is just and equitable to do so and inparticular to ensure the observance of the due processof law, to prevent improper vexation or oppression, todo justice between the parties and to ensure a fair trialbetween them.” – Jacob “The I. J. of the Court 1970 -Current Legal Problems Vol. 23 page 57.

This definition was adopted and applied by the Court of Appealof Manitoba in Montreal Trust Co. v. Churchill Forest Industries(Manitoba) Ltd. (1971), 21 Dominion Law Reports (3rd edition)75.

It is necessary to restate that the courts of law are establishedto guard jealously against the civil rights of every citizen, and toenforce at all times the inalienable right to fair hearing. Odunsi v.Principal Ijebu-Ode Grammar School (1982) OGSLR 229 at 232.

A judicious exercise of discretion of court means proceedingfrom or showing sound judgment; having marked by discretion,wisdom and good sense. There is the great emphasis on soundJudgment based on proper reasons connected with the case in thejudicial exercise of discretion – Eronini v. Iheuko (1989) 2 NWLR(Pt. 101) p. 46 adopted in Dr. Lentley’s Case (1723); R. v. Chancellorof Cambridge University (1716) 1 STR 557 it was observed that“Even God himself did not pass sentence upon Adam before he wascalled upon to make his defence,”

It was Justice J. R. Midha of the New Delhi High Court whoon his farewell speech had this to say inter alia:

“In the court of Justice, both the parties know the truth,it’s the Judge who’s on trial.”

It is pertinent that the quality of analytic and critical thinking aJudge must put in to every matter is to ensure that justice is carriedout.

Cases must be decided on the issues on the record, and if it isdesired to raise other issues, they must be placed on the record byamendment. The parties’ pleadings in the case in question was notamended to reflect the allegation of the 2nd respondent against theappellant in this appeal.

In that case, the issue on which the learned trial Judge decidedwas not pleaded, and the issue not having been pleaded, he was, inmy opinion not entitled to take such a course as he did.

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The right to fair hearing must be exercised within the confinesof the law, regulatory and procedural provisions as may be applicableto the particular case – Ahmed v. Regd. Trustees AKRCC (2019) 5NWLR (Pt. 1665) p. 300 at p. 313 paras E; Ekiyor v. Bomor (1997)9 NWLR (Pt. 519) p. 1.

In an allegation of breach of fair hearing, this court has a dutyto scrutinize the proceedings to see whether the result of the casewould have been the same even if the breach of the principle offair hearing had not occurred. A breach of fair hearing leads to theinevitable conclusion that an unfair method cannot produce a fairresult. Ahmed v. Regd. Trustees AKRCC (supra) at p. 314 paras.D-E; Idokwo v. Ejiga (2002) 13 NWLR (Pt. 783) p. 156.

Decidedly, the term “fair hearing” has been judiciallyinterpreted to involve situations whether having regard to all thecircumstances of a case, the hearing may be said to have beenconducted in such a manner that an impartial observer, or the manin the Balogun market street Lagos, will come to the conclusion thatthe Court or Tribunal was fair to all the parties to the proceedings.More so, to someone who was never part of the proceedings. It is atrial conducted according to all the legal rules formulated to ensurethat justice is done to all the parties to a cause or matter – GovernorImo State v. E. F. Networking (Nig.) Ltd. (2019) 9 NWLR (Pt. 1676)p. 95 at 111 – 112 paras. G-A; Military Governor of Imo State v.Nwauwa (1997) 2 NWLR (Pt. 490) p. 675.

In the instant case leading to this appeal, there was nothingin the pleadings reflecting expressly or by necessary implicationthe allegations made by the 2nd respondent in court against theappellant at the trial, under cross-examination. Yet, the learned trialJudge issued a writ of subpoena inviting the appellant to explainwhat does not exist on the pleadings as settled by the parties.

This amounted to a tacit infringement on the appellant’sfundamental right to fair hearing. The learned trial Judge’s failureto expunge the evidence of 2nd respondent elicited under cross-examination on the 18th of January 2016 on an issue not pleaded,(but relied on as informing its issuance of a writ of subpoena adtestificandum) was an infraction of the appellants right to fairhearing. Evidence not pleaded cannot and will not be allowed atthe trial of a suit (either at the instance of the parties or the courtitself). Such evidence is in-dismissible and if erroneously admitted,must be discountenanced and indeed expunged.

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At the expense of repetition, the learned trial Judge erred bygiving credence to the evidence elicited from the 2nd respondentduring cross-examination as a basis for summoning the appellant,and I so hold.

It is sad that the learned trial Judge ignored all laid downauthorities by superior courts to arrive at her erroneous decision.This court has no option but to set aside the order of refusal of thecourt below to set aside the writ.

This issue is answered in the affirmative and same is resolvedin favour of the appellant and against the respondents.

Issue No.3

“Whether the honourable trial judge breached thefair hearing right of the appellant when he madefindings against the appellant on a matter that is onappeal in Appeal No. CA/L/1261 – Dr. CharlesDumbiri Mekwunye v. Chimezie Sunday Ahaiwe &Anor. in violation of the provision of section 36 of the1999 Constitution (as amended) thereby unlawfullycastigating the professional competence, and integrityof the appellant.” (Distilled from ground 3.3).

On the 25th of May 2017, the learned trial Judge deliveredjudgment in respect of Suit No. NICN/LA/366/2015 betweenChimezie Sunday Ahaiwe v. Mainstreet Bank Registrars Ltd.

It is the appellant’s contention that he had filed an appealchallenging the ruling of the trial court delivered on the 25th ofOctober 2016 in Appeal No. CA/L/1261 – Dr. Charles DumbiriMekwunye v. Chimezie Sunday Ahaiwe & anor.

Specifically, on the 14th of November 2016, the appellantcompiled and transmitted the record of appeal to the Court ofAppeal. The Appeal was entered. The appellant/interested partyalso filed a motion for stay of proceedings and execution on the23rd of November 2016 in the Court of Appeal. He filed a swornaffidavit of facts on the 24th of November 2016, informing thecourt below that he had filed an appeal on the 1st of November2016 challenging the ruling of the trial court delivered on the 25thof October 2016, and had transmitted the record on the 14th ofNovember 2016. That he had indeed filed a motion for stay ofproceedings and execution on the 23rd of November 2016, in theCourt of Appeal – pages 342-365 of the record of appeal.

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That in the instant case, the appellant filed a notice of appealon the 1st of November 2016 challenging the ruling of the courtbelow delivered on the 25th of October 2016. That as a result ofthis, the trial court lost jurisdiction to make any findings on theissue of the subpoena which had been submitted to the Court ofAppeal for adjudication.

It seems to me to be the case that where an appeal has beenentered by which act the record of appeal compiled in the courtbelow is transmitted to the Registry of the Court of Appeal, thecourt below is functus officio and ceases to have any control overthe matter in question. In other words, the Court of Appeal will notshare jurisdiction with the court below over any matter that hasbeen entered in the Court of Appeal.

Any finding by the court below on a matter that has beenentered in the Court of Appeal is dead on arrival and lifeless.Indeed, such finding is perverse and a breach of the appellant’sright to fair hearing and I so hold.

The court below being seised of the fact that the matter hadbeen entered in the registry of the Court of Appeal erred grosslyby making a finding in respect of the subject matter of the pendingappeal.

Its findings on the judgment is perverse and is calculated tooccasion to the appellant, miscarriage of justice.

Indeed, the act of the court below in castigating the appellantin its judgment of, the 25th of October 2016 when the facts relatingto the matter is still subjudice is highly deprecated.

The primary duty of all courts in their original and appellatejurisdiction is to preserve the res.

This prevents the decision reached from -being nugatory. Kigov. Holman (1980) 5-7 SC 60 A.

What the learned trial Judge did amounted to usurping thejurisdiction of the Court of Appeal, when it made findings on amatter that is pending on appeal, and that in breach of the appellant’sright to fair hearing.

Noteworthy is that the court below had come to the followingconclusions in its judgment in respect of Appeal No. CA/AK/211/2017:

“It is therefore left with no option ‘but to accept theversion of the respondent that it was the discussionwith Dr. Mekwunye that led to his sudden retirement”

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How did the court below arrive at this? I know not. Even sothere is nothing to show that the retirement of the respondent Mr.Chimezie Sunday Ahaiwe was in issue before the court below.

From the length and breadth of all these, it seems to me thatthe learned trial Judge did not grasp ‘the issues in this case, becauseif he had, he would have arrived at a different conclusion and thatmakes his Judgment and ruling utterly perverse.

This issue is answered in the affirmative and same is resolvedin favour of the appellant and against the respondent.

Issue No.4

“Whether the honourable trial Judge breached thefair hearing right of the appellant as enshrined undersection 36(1) of the 1999 Constitution when he suomotu and per incuriam raised the issue of professionalcompetence of the appellant, and castigated theappellant whilst there is pending appeal on the subjectmatter without hearing the appellant.” (Distilled fromground 3.4)

I had touched on the issue of a pending appeal in consideringissue No.3.

The 2nd respondent stated facts under cross-examination,which facts were not pleaded by parties in the case, neither werethere statements on oath based on these facts.

It is therefore worrisome for the court below to make findingstouching on the professional competence of the appellant. Whatwas the basis for that? None. Indeed the appellant was representedin court by Chief Ngige SAN, on the date of the hearing of themotion to set aside the order, and this amounted to him beingpresent in court.

A Judge is an impartial umpire. He is duty bound to be. Heis not expected to pass judgment lopsidedly. More so suo motu,particularly in a situation where its findings are based on facts notpleaded. If the so-called allegations made during cross-examinationwere important, those facts would have been glaringly indicated inthe pleadings, but they were not.

The court below’s registry is aware, and indeed it is on recordthat the 2nd respondent had on different occasions and over severalmonths gone to the registry of the National Industrial Court andsworn to several witness statements on oath. The court below hada duty, in the face of this, to peruse its record and refer to these

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actions of the 2nd respondent, and his attendant credibility or lackof it, viz-a-viz his subsequent testimony in court.

If the court below had taken that route, it would have discoveredthat the 2nd respondent is not a witness of truth.

Decidedly, where a witness gives contrary evidence, the courtwould regard his evidence as unreliable and same would go to noissue – M.S.C. Ezemba v. S. O. Ibeneme & Anor. (2004) 14 NWLR(Pt. 894) p. 617.

The 2nd respondent did not state that he was forced to testifyagainst the former employees of the 1st respondent by the appellantin his several witness statements on oath at the earliest opportunity.

Rhodes-Vivour JSC (Retired) put it succinctly in Odunlami v.The Nigerian Navy (2013) LPELR-20701 (SC), (2013) 12 NWLR(Pt. 1367) 20 when he observed:

“If a witness gives evidence on oath which contradictshis previous statement in writing, his evidence shouldbe treated as unreliable.”

The court below failed to disregard the evidence of the 2ndrespondent which was not pleaded but chose to hound the appellantfor no reason and on no basis.

Failure of the court below to consider the several witnessstatements on oath filed in its registry before admitting and relyingon facts elicited under cross-examination from the 2nd respondenton an issue which was alien to the pleadings as they stand, andusing same as a basis of compelling the appellant to come to courtto answer to allegations against him, offends the provisions of theEvidence Act 2011 and a breach of the right of fair hearing of theappellant and I so hold. As earlier observed in this judgment, therewas a pending appeal in respect of the matter which is the subjectmatter of this appeal. For the court below to deliver a ruling in theface of an appeal which has been entered is disrespectful to thiscourt and same is calculated to irritate it.

This issue is resolved in favour of the appellant and against therespondent.

The totality is that the appeal succeeds and same is allowed.

The judgment of Honourable Justice O. O. Oyewunmidelivered on the 25th of May 2017 at the National Industrial CourtAkure in Suit No. NICN/366/2015 is hereby set aside as beingnull and void particularly in respect of the honourable trial Judge’sunconstitutional, unlawful and prejudicial statement in respect ofDr. Charles D. Mekwunye (appellant/interested party) viz:

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“This court is left with no choice by the scenariopainted supra, than to find from the only fact on recordthat the statement made by CW on oath is true positionof what transpired between him and Dr. Mekwunye,thereby leading to his abrupt retirement from theservices of the defendant.

That the court ordered for issuance and service of asubpoena ad testificandum on Dr. Charles Mekwunyeto appear in court to state his own side of the storyand particularly as counsel to clear his name of thisweighty allegation against him.

That instead of Dr. Mekwunye to appear in court tocomply with the order of this court, he chose to shyaway from it by judicial process urging the court tostrike out its subpoene:”

No order as to costs.

BARKA, J.C.A.: I agree.

ABUNDAGA, J.C.A.: I have read the draft of the judgmentdelivered by my learned brother, Rita Nosakhare Pemu, JCA.

His Lordship was exhaustive in the consideration of thearguments…

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