Rejoinder: Contrary To The Supreme Court Pronouncement In Magaji Vs. Nigerian Army (2008)8 Nwlr (Pt.1089)338, Photostat Copies Of Certified True Copies Of Public Documents Are Inadmissible In Law

The Photocopy of a Certified True Copy (CTC) of a Public Document does not Require Further Certification, and as such, is Admissible in Evidence as if it’s a CTC: Magaji v. Nigerian Army Remains a Good and Valid and the Subsisting Law and Precedent.

By Reginald A. Uzoechi, Esq.

This is a rejoinder to an article published on this platform, titled: “Contrary To The Supreme Court Pronouncement In Magaji Vs. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338, Photostat Copies Of Certified True Copies Of Public Documents Are Inadmissible In Law.” The said article was written by a learned friend, D. TELLA ATTONI, ESQ., and published on July 22, 2017. The title of that article is a summary of the submission of my learned friend and is said to be in line with the clear wordings of section 90 (1) (c) of the Evidence Act 2011.

While I commend my learned friend for a brilliant try to upturn a settled precedent and well-known principle of law and his erudite rendition on the subject matter, I rather do not find his arguments tenable and valid as to sustain his conclusion. More so, some of the authorities he cited were misapplied or do not qualify as a precedent in the circumstances of his submission.

My learned friend started his submission by postulating that:

‘…It should be noted that certified true copies of public documents are normally produced from the original public document and then certified by a public officer mandated by law to vouchsafe its authenticity, and issued upon the payment of statutory fees by an applicant. On the other hand, Photostat copies of certified true copies lack such quality/authenticity and are not vouchsafe by any public officer as having been produced from the said certified true copies they were purportedly produced from.’

The flaw in this postulation is that it failed to take cognisance or the fact that, the need for certification of a public document is to show that the said CTC is a true, actual and accurate copy of the original. See Gambari v. INEC & Ors. (2011) LPELR-9080 (CA). Once a document is certified, it satisfies the condition that it is an authenticated copy of the original, though a presumption which may be rebutted if the contrary is proved, see Kikiade & Ors. v. Alalade (2012) LPELR-7965 (CA). Thus, making further photocopies of the said CTC will not require further certification, because the very first certification shows that the document (photocopy) is an authentic copy of a public document and as good as the CTC in the eyes of the law. This is the principle expoused in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338.

Interesting, my learned friend contended that Magaji v. Nigerian Army (supra) is no longer the law because, according to him:

‘…after the said pronouncement [the pronouncement in Magaji v. Nigerian Army (supra)], the  apex court has gone ahead to consistently and firmly hold that in respect of  public documents, the only form of secondary evidence admissible in law are certified true copies of such documents and no other.’

He cited the cases of Udom v. Umana (NO. 1) (2016) 12 NWLR (PT 1526) 179 at 235, paras. B & C; Abdullahi v. F.R.N (2016) 10 NWLR (Pt. 1521)475 at 499, Paras A-B to establishing the principle that, ‘in the absence of the original document only such properly, certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence.”’

First, the principle in the above cases is not in any way in conflict, contrary or contradictory to the principle in Magaji v. Nigeria Army (supra), that the photocopy of a CTC of a public document does not require further certification. They are rather complimentary, because Magaji v. Nigerian Army (supra) is simply an authority that a photocopy of a CTC of a public document requires no further certification, and it is admissible as the CTC itself.

Secondly, the issue in the above cases is not whether a Photocopy of a CTC of a public document is admissible or not; or whether the photocopy of the CTC of a public document requires further certification. The issue is rather, whether the photocopy of a public document (not the photocopy of the CTC of a public document) is admissible. The Supreme Court rightly held that it is only the CTC and original of a public document that is admissible.

My learned friend pushed his argument a bit further by contending that, ‘…being later in time, the foregoing  judicial cases must take precedent over the decision in Magaji v. Nigerian Army (supra) which appears to be in conflict with them.’ He cited the case of Dahiru v. Kamale (2005) 9 NWLR (Pt. 929) 8 at page 41, para. C, where the point was made that when a lower court is faced with two conflicting decisions of the Supreme Court, the lower court  will  be  bound by the latest.

There is however, a prelude to the above principle which my learned friend missed out. That is that, when a relevant prior decision is not cited before the court, or mentioned in the judgment of the court, it must be assumed that the court acted in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per incuriam and not binding on a later court. See Badau & Anor v INEC & Ors. (2008) LPELR-3841(CA) p.26, paras. A-B.; (2008) All FWLR (PT.435) 1794.

Neither Udom v. Umana (supra) nor Abdullahi v. F.R.N (supra) made reference to or overruled Magaji v. Nigerian Army (supra) on the issue at hand. The position is also maintained that Magaji v Nigerian Army (supra) is not in conflict with the two cases mentioned above.

And, assuming, without conceding, that the decision of the Supreme Court in Magaji v Nigerian Army (supra) is in conflict with Udom v. Umana (supra) and Abdullahi v. F.R.N. (supra) on the issue at hand, then the two latter cases were held per incuriam, since they neither called up nor overruled Magaji v. Nigerian Army (supra).

The next point contended by my learned friend is that, ‘the said pronouncement in MAGAJI VS NIGERIAN ARMY (supra) was an obiter dictum. Consequently, the same has no binding effect on our lower courts.’ He relied on the case of Daily Times (Nig.) PLC. v. D.S.V.  LTD. (2014) 5 NWLR (Pt.1400) 327 at page 353, paras. A-B, on the meaning of obiter dictum, which ‘is a remark made or an opinion expressed by a judge- “by way”- that is, incidentally or collaterally, and not directly upon the question before the court…’

My learned friend submitted that a ‘careful study of  the decision in MAGAJI VS NIGERIAN ARMY (supra), reveals that the issue of  admissibility of a Photostat copy of a certified true copy of a  public document was not  raised  by any of  the parties as an issue for determination.’ It was his further contention that, ‘NIKI TOBI, JSC, who delivered the leading judgment in that case, made no pronouncement or declaration regarding the admissibility of  Photostat copies  of  certified true copies of  public documents . The only pronouncement made in respect of the said issue was the pronouncement made by OGBUAGU, JSC in his supporting judgment in which he pronounced that a photo copy of a certified true copy of a public document is admissible.’

My learned friend capped up his submission by calling in aid the case of Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (2016) LPELR-40205 (CA), where the Court of Appeal held that, ‘the decision  in MAGAJI VS NIGERIAN ARMY (supra) regarding the admissibility of  photostat copy of certified true copy of a public document was not a binding  declaration of the law on the subject as it was an obiter dictum and therefore not binding.’

From every indications, it is clear that this case of Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) is actually the principal authority that inspired my learned friend’s submission and the basis of the topic of his article.

With due respect to my learned friend, a pronouncement does not become an obiter dictum because the issue pronounced on was not ‘specifically raised for determination by any of the parties.’ Admittedly, ‘it is not everything stated in a decision that constitutes binding precedent. What is binding is the enunciation of the principles or the reasons upon which the question before the court was decided. Any other thing said by way of arriving at that decision is usually referred to as ‘obiter dicta’ which is not binding, though they may have persuasive efficacy. But where however, an obiter dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding.’ – Per Onnoghen, J.S.C. (now CJN) in Adedayo & Ors. v. PDP & Ors. (2013) LPELR-20342(SC); see also Clement v. Iwuanyanwu (1989) 3 NWLR (PT.107) 39.

Furthermore, the fact that a pronouncement was not specifically made in the lead judgment (but in the concurring Judgment) does not also make it an obiter dictum. At least, there is no known authority to that effect.

With these said, one is yet to come to terms as to how the Court of Appeal arrived at the conclusion (which conclusion by learned friend bought hook, line and sinker) that the pronouncement of the Supreme, per Ogbuagu JSC, in Magaji v. Nigerian Army (supra) concerning the admissibility of the photocopy of the CTC of a public document and that such document needs no further certification, is an obiter dictum.

A critical examination of the said pronouncement of the Supreme Court in Magaji v. Nigerian Army (supra) vis-à-vis the entire decision will help one determine its status as an obiter dictum or a ratio decidendi.

The said pronouncement was made by Ogbuagu, JSC while treating issue No. 4 raised for the determination of the appeal before the Supreme Court. The said issue 4 reads:

‘Whether the lower Court was right when it upheld the admissibility of the purported statement of the appellant which was alleged to have been obtained under duress and was rendered from the bar.’ (This issue was said to have been distilled from Grounds 8 & 9 of appeal).

In addressing the issue, Ogbuagu, JSC observed that:

‘The application to tender the said document was made pursuant to Rule 57 of the Rules of Procedure (Army) 1972, M/M, 1972 which reads as follows:

“…A written statement which is admissible in accordance with the provision of section 9 of the Criminal Justice Act, 1967, as modified by the Court Martial Evidence Regulation 1967 shall be handed to the Court by the prosecutor or the accused as the case may be without being produced by a witness.”’

The learned law lord observed that the above provision has answered to the issue and went ahead to add that:

‘… However, I have already stated that if the purpose of calling as a witness is just to tender a document, a trial court may dispense with the personal appearance of the person who recorded the contents of the document such as the Investigator in the instant case. Exhibit 1 although a photocopy is/was certified. It is now settled that photocopies of documents, must be certified. See Section 111/112 of the Evidence Act. In the case of Daily Times Ltd. v. Williams (1986) 4 NWLR (Pt.36) 52 referred to by the court below as IHEONU v. FRA WILLIAMS, it was held that a photocopy of certified document, is admissible. So this authority also puts to rest, the complaint in the appellant’s brief about the admissibility of the appellant’s Statement or Exhibit 1. As a matter fact, in the case of International Bank Nig. Ltd. v. Dabiri & 2 Ors. (1998) 1 NWLR (Pt. 583) 284 @ 297, C.A, it was held that photocopies of a Certified True Copy needs no further certification under section 111 (1) of the Evidence Act [now section 104 (1) of the Evidence Act 2011.]’

How could such pronouncement be said to be an obiter dictum? The pronouncement of Ogbuagu, JSC, above is not an obiter dictum. It was a pronouncement made while resolving an issue raised for the determination of the appeal. It was a pronouncement made as part of the reasons for the decision in that appeal. It qualified as a binding precedent. See Adedayo & Ors. v. PDP & Ors. (supra).

Again, a critical review of the decision in Ministry of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe & Ors. (1969) ANLR 48 clearly discloses that there is not definite pronouncement that a photocopy of a CTC of a public document is inadmissible or that it requires further certification. The decision, in relation to the issue at hand, only pronounced “that in the case of public document the only type of secondary evidence permissible is a certified true copy and none other This is the same position the Supreme Court took in the two later decisions of Udom v. Umana (supra) and Abdullahi v. F.R.N (supra) cited by my learned friend; which decisions have been shown to be complimentary and not in conflict with Magaji v. Nigerian Army (supra).

The Court of Appeal made it clear in Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) that, if not for it’s observation that the pronouncement of Ogbuagu, JSC in Magaji v. Nigerian Army (supra) regarding the admissibility of a photocopy of a CTC of a public document, is an obiter dictum; it would have been bound by the said decision/pronouncement in Magaji v. Nigerian Army (supra).

With due respect to the learned law lords, that conclusion of the Court of Appeal that the said pronouncement of Ogbuagu JSC in Magaji v. Nigerian Army (supra) is an obiter dictum, is in itself a misadventure and reached per incuriam and cannot be binding. This is because that decision in Magaji v. Nigerian Army (supra), by all standards of judicial precedent, is binding on the Court of Appeal. But the Court of Appeal decided to dodge the binding effect of that decision by declaring the specific pronouncement in issue as an obiter dictum.

It is unfortunate to note at this juncture that of all the decisions reviewed by my learned friend in his article, it is only the Court of Appeal decisions that are actually conflicting with each other on the admissibility of the photocopy of a CTC of a public document.

It is not surprising because the Court of Appeal has been ‘judicially notice’ for handing conflicting decisions. One of such conflicting decisions is on the issue of whether appeal lies from the decision of the National Industrial Court of Nigeria to the Court of Appeal as of right or only on grounds of breach of fundamental right under chapter four of the 1999 Constitution of Nigeria. The conflict lingered until the Supreme Court settled the issue in a decision on a case stated, that appeal lies as of right to the Court of Appeal from the decision of the National Industrial Court of Nigeria. See Skye Bank Ltd. v. Iwu, suit No. SC/885/14, delivered on Friday June 30, 2017.

Only recently again, the Court of Appeal held in GTB PLC v. Abiodun (2017) LPELR-42551 (CA), that ‘a written statement on oath that lacks the specific words of swearing cannot suffice in law and such statement on oath is invalid and cannot be relied on at the trial for its not compliance with the Oath Act.’ The Court of Appeal however, forgot that there is it’s earlier decision where it drew a distinction between Affidavit and Written Statement on Oath and held that, ‘…where a statement on oath is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath in court before the judex prior to the maker and subsequent cross-examination.’ See Uduma v. Arunsi & Ors. (2010) LPELR-9133 (CA).

The list of conflicting decisions of the Court of Appeal is rather endless. It was for this reason that the immediate past Chief Justice of Nigeria, Mahmud Mohammed, CJN (Rtd), at the 2015 Annual Conference of the Court of Appeal noted that:

‘…We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal. Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials.’

Let’s come back to the issue at hand. While the Court of Appeal in Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) held that the decision in Magaji v. Nigerian (supra) regarding the admissibility of photocopy of a certified true copy of a public document is not a binding declaration of the law on the subject as it was an obiter dictum and therefore not binding; the same Court of Appeal in a latter case of Ifeanyi B. Esione v. Philip Isiofia(2016) LPELR-41060 (CA), held that:

‘…the argument as to the admissibility of a photocopy of a certified true copy of a document has now been settled by the Supreme Court. The apex Court in its wisdom has now established that photocopy of a certified true copy of a document is admissible with or without any need for re-certification. The above position was reiterated by the Apex Court, per Ogbuagu, JSC, in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338…’

The Court went ahead to quote the relevant dictum of Ogbuagu, JSC as has been replicated above.

As has been noted, the decision of the Court of Appeal in Ifeanyi B. Esione v. Philip Isiofia (supra) is later in time to the decision in Bredero Nig. Ltd. v. Shyantor Nig. Ltd. & Ors. (supra). Consequently, if my learned friend’s submission, that a later-in-time decision takes precedence in a situation of conflict, is anything to go by, then the Court of Appeal’s decision in Ifeanyi B. Esione v. Philip Isiofia (supra) overrides and supercedes the decision in Bredero Nig. Ltd. v. Shyantor Nig. Ltd. & Ors. (supra).

Flowing from the foregoing, and as far as judicial precedent is concerned, the case of Magaji v. Nigerian Army (supra) remains the authority that the photocopy of a CTC of a public document does not require further certification and is admissible as the CTC itself. Not until the Supreme Court overrules itself on that, it remains a good and valid law, and the subsisting precedent on that point and subject matter.

Reginald A. Uzoechi, Esq. is a Research Assistant at the National Industrial Court of Nigeria. He can be reached on reginalduzoechi@nigerianbar.ng.

Constructive Dismissal under Nigerian Labour Law by A. I. Iortyaver

Termination of employment

Dismissal (referred to informally as firing or sacking) is the termination of employment by an employer against the will of the employee. Though such a decision can be made by an employer for a variety of reasons, ranging from an economic downturn like the economic recession currently being experienced in Nigeria to performance-related problems. On the part of the employee, being fired has a strong stigma in many cultures and organizations.

To be dismissed, as opposed to quitting voluntarily (or being laid off), is often perceived as being the employee’s fault or under performance. Finding new employment may often be difficult after being fired, particularly if there is a history of being fired from previous jobs, if the reason for firing is for some serious infraction, or the employee did not hold the job very long. Job seekers will often not mention jobs that they were fired from on their resumes; accordingly, unexplained gaps in employment are often regarded as a red flag in a resume by most employers.

An employee whose employment is terminated in ad variance with the terms of his/her employment is entitled to damages against his/her employer. The supreme court  Per KARIBI-WHYTE, J.S.C . (Pp. 21-22, para. G held in Imoloame v. W.A.E.C. (1992) NWLR (Pt. 265)303 thus”It is well settled that in cases of wrongful dismissal “the measure of damages is prima facie the amount the plaintiff would have earned had the employment continued according to contract subject to a deduction in respect of any amount accruing from any other employment which the plaintiff, in minimizing damages, either had obtained or should reasonably have obtained

Often times due to the fear of being liable to an employee for damages or other remedies either provided by the law or in the terms of employment, some employers create an unbearable working environment to force the employee to resign in order to exonerate themselves against any liability by an employee. This action by the employer creating a hostile working environment to force an employee to resign out of his/her volition is called constructive dismissal.

By way of definition, constructive dismissal simply means a Situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. In such cases, the employee retains the right to seek legal compensation as having being dismissed constructively.
Also, Constructive dismissal occurs where an employee terminates his employment in response to his employer’s treatment of Him. Although there has been no actual dismissal, the treatment is sufficiently bad that the employee is entitled to regard himself having been dismissed. Examples of constructive dismissal include:

  1. reduction in pay or not being paid at all.
  2. being demoted without good reason.
  3. allegation of poor performance which are unfounded.
  4. disciplinary proceedings which are manifestly unreasonable.
  5. a complete change in the nature of your job.
  6. harassing or bullying.
  7. been forced to work in breach of health and safety law.

In order for an employee claiming constructive dismissal to succeed he/she must prove as enumerated by Lord Denning in Western Excavating v. Sharp [1978] 1 All ER 713.

  1. A repudiatory breach on the part of the employer. This may be an actual or anticipatory breach, but must be sufficiently serious to justify the employee resigning.
  2. An election by the employee to accept the breach and treat the contract as at an end.
  3. The employee must resign in response to the breach
  4. The employee must not delay too long in accepting the breach, as it is always open to an innocent party to waive the breach and treat the contract as continuing (subject to any damages claim that they may have)

A Court handling a matter of constructive dismissal will also need to satisfy itself that the employee did not delay too long in resigning. Western Excavating v. Sharp [1978] 1 All ER 713. The facts of the case are thus: An employee (Mr. Sharp) worked for the company and one of his terms of contract was that if he worked extra time he could have time off in lieu. He then went on to take an afternoon off work to partake in a card game which led to his dismissal. He appealed the dismissal and was reinstated but with a 5 day pay suspension in its place. Without these 5 days pay he was in financial difficulty and attempted to get his employers to pay his accrued holiday pay in advance and when they refused that he asked for a loan of £40. The welfare officer explained they couldn’t loan that amount but suggested that Mr. Sharp should see him again to discuss the details. Mr. Sharp was not happy with this and so resigned. He then claimed for constructive unfair dismissal at the tribunal.

When it reached the court of appeal however Lord Denning took a different approach to the matter and the Court reversed the decision of the tribunal and held that Mr. Sharp had not been constructively dismissed at all. Lord Denning went on to state,

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct”

While this principle has been enshrined in the labour enactments of other jurisdictions and thus has a statutory backing, the principal enactment governing labour related matters in Nigeria i.e labour Act (CAP L 1 LFN 2004) does not have any statutory backing regarding constructive dismissal in the Nigerian labour law. However all hopes are not lost with the creation of the National Industrial Court under Section 254 A (1)  third Alteration of the 1999 Constitution of the Federal Republic Of  Nigeria (2011 as amended) Which creates the national industrial Court and vest it with jurisdiction under section 254 C (1) to entertain labour related matters.

Section 7 of the National Industrial Court Act 2006 provides that Court shall have and exercise exclusive jurisdiction in civil cases and matters-

(a)     relating to….

(i)        labour, including trade unions and industrial relations; and

(ii)       Environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto….

Subsection 6 provides thus:

 The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.

This provision is a great relief and of wide scope to enable the court in the exercise of its duty to apply best international labour practices in its administration of justice. The court in the case of Miss Ebere Ukoji  V Standard Alliance Life Assurance Co. Ltd  (Suit No: NICN/LA/48/2012) held thus:

 Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behavior has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country, but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident. The court held the conduct of the respondent as amounting to a constructive dismissal.

At times, an employer may behave badly but his conduct will not amount to him making your position untenable. For instance, non-payment of salaries maybe as a result of an ailing economy which, will not suffice as a good ground at that time. Each case is however decided based on the facts and circumstances surrounding it.

Conclusively, the doctrine of constructive dismissal by virtue of the powers conferred on the National Industrial Court Act can effectively be applied under the Nigerian legal system, even though not enshrined in any statute, as was done by the Court in Ebere’s case (supra).This is a welcome development in the Nigerian Labour Law jurisprudence.

Source: The Nigeria Lawyer

Regulatory Compliance: Statutory books of a Company and requisite statutory filings/returns: Statutory books of a Company and requisite statutory filings/returns

regulatory-compliance-chartThe Companies and Allied Matters Act CAP C20 LFN 2004 (CAMA) is the principal legislation governing company law and practice in Nigeria. The Administration of the Companies and Allied Matters Act is undertaken by the Corporate Affairs Commission which is empowered for the administration of Companies from incorporation to post incorporation compliance, winding up and dissolution.

Statutory Books of a Company: For purpose of disclosure and transparency, the CAMA requires every incorporated company in Nigeria to maintain the following statutory books for ease of administration:

  1. Register of Members
  2. Register of Interest in shares
  3. Register of Charges
  4. Register of Debenture holder
  5. Minute books
  6. Register of Director’s Shareholdings
  7. Register of Directors and Secretaries
  8. Accounting records.

These statutory books may be made and kept by the company in bound books or loose leaves or electronically provided adequate precaution is taken to guard against falsification of records. The essence of maintaining these statutory books is to offer members of the company or any other persons an opportunity to inspect the records of a company and be aware of its state of affairs. The statutory books need to be updated periodically in line with the current realities of the business. A company’s failure to maintain these statutory records is an offence under the law, thus the company and its defaulting officers shall be liable to pay a default fine.

Statutory filing/returns: The Corporate Affairs Commission must be notified of the occurrence of certain events/activities of a company by way of filing notices to the Commission within specified time frames. These filings are intended to inform the Commission of changes in the internal structure of the organization and decision making.

  1. Every company resolution must be filed with 15 days of its issuance. S 237(1) of CAMA
  2. Every Court order concerning the company must be filed within 14 days of issuance.
  3. The particulars of change of directors and secretaries must be filed within 14 days of such changes. S 292 (5)
  4. Registration of charges on the company’s assets must be done within 90 days
  5. Return of allotment of shares must be filed within one month of any allotment of shares
  6. Annual returns must be filed within 42 days of Annual General Meeting.
  7. Notice of Appointment of auditors must be filed within one week of such appointment.
  8. Notice of Removal of Auditors must be filed within 14 days of removal.

Where a company is in default of filing any of the above returns, it is liable to pay penalty for default and in some cases, the company is required to apply to the court for extension of time within which the notice/return may be filed with the Commission.

Conclusion: The Company Secretary is the compliance officer of any organization and is tasked with the responsibility of ensuring compliance with the rules and regulations affecting the company. The company secretary shall ensure that the statutory books are properly maintained and also prepare and file all requisite notices and statutory returns to the Corporate Affairs Commission within the specified time frame. Thus the appointment of the Company Secretaries is important for all organization to promote prompt compliance with regulatory requirements, which in turn alleviates the company management to focus on achieving sustainable success.

Admissibility of Original Copy of a Public Document

 

 KASSIM v. STATE (2017) LPELR-42586(SC)

INTRODUCTION

The Evidence Act provides that where a secondary evidence of a public document is to be tendered in evidence, only the certified true copy will suffice. There have been questions as to what happens if the original public documents are available. Will same be held admissible in evidence?

EKO J.S.C while delivering the leading judgment rightly observed as follows “…suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy”

He then went further to say  “Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification”

OGUNBIYI, J.S.C supported the lead judgment to the effect that original of public documents are admissible in evidence when he said: “By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible.”

Further, KEKERE-EKUN, J.S.C, in her own contribution was also in support of the admissibility of the original copy of a public document. In her words, “With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case.”

BRIEF FACTS OF THE CASE

The appellant, in a one count charge dated 15th February, 2012, was alleged to have committed an offence of culpable homicide punishable with death under Section 221(b) of the Penal Code (Cap 105) Laws of Kano State 1991. The charge against him (appellant) was that on or about 15/1/2009 at about 1600 hrs at Hotoro quarters, Kano he stabbed one Akaraja Musbahu with a knife in his back till he died, with the knowledge that death would be the probable consequence of his act.

The appellant pleaded not guilty to the charge whereupon the prosecution called four witnesses as PW1 – PW4 and the appellant gave evidence in defence of the charge without calling any additional witness.

Among the pieces of evidence tendered by the prosecution are Exhibits 1, the Medical Report and Exhibits 2 & 3 respectively the appellants extra judicial statements which are confessional in nature. The original copy of these documents were tendered and admitted in evidence by the court.

In a considered judgment of the High Court of Kano State delivered by Hon. Justice Wada Abubakar Omar on 19th November 2013, the appellant was found guilty of the offence as charged, convicted and sentenced to death by hanging. The learned trial judge however took cognizance of the age of the appellant among other circumstances and recommended him for prerogative of mercy by the Governor of Kano State.

Dissatisfied with the aforesaid judgment, the appellant lodged an appeal against same to the Court of Appeal. In their judgment delivered on 20th day of March, 2015, the learned justices of the Court below affirmed the judgment of the trial Court. Hence the further appeal now before this Court.

It is Appellant’s contention that Exhibit 1, being medical report from government hospital and Exhibits 2 and 3, the documents from Nigeria Police are Public in nature within Sections 102, 104 and105 of Evidence Act 2011 for the purpose of being used in Court and as such, only their certified true copies are admissible in evidence by the operation of Sections 85, 86(1), 88, 89(1) (e) & (f), 90(1)(c), 102(a)(iii), 103, 104(1), (2) & (3) and 105 of the Evidence Act, 2011. In other words, that the originals of Exhibits 1, 2 & 3 tendered and admitted in evidence at the trial Court, being inadmissible, were wrongly admitted in evidence. The learned counsel for the appellant therefore urged that no weight and probative value should be attached to Exhibit 1, 2 & 3, that were wrongfully admitted in evidence, the documents being inadmissible anyway.

ISSUES FOR DETERMINATION

The following issues were adopted by the court:

i. Whether Exhibits 1, 2, & 3 are inadmissible in law for failing to satisfy the requirements and conditions for their admissibility evidence under the relevant provisions of the Evidence Act, 2011; and

ii. Whether respondent has proved the guilt of the Appellant beyond reasonable doubt with cogent, credible and compelling evidence required by law?

HELD

The appeal was dismissed and the conviction and sentence of the appellant by the trial Court in the charge No. K/19c/2012, which conviction and sentence were affirmed by the Court of Appeal in its judgment delivered in the appeal No. CA/K/162/2012 on 20th March, 2015 were further affirmed.

RATIO DECIDENDI

·         EVIDENCE – DOCUMENTARY EVIDENCE: Whether a public document can be proved by the production of the original copy of the document

“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye, JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWLR 500; (2011) LPELR – 1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification. See DAGGASH v. BULAMA (2004) 14 NWLR (pt. 892) 144.” Per EKO, J.S.C. (Pp. 16-17, Paras. E-C)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Whether a public document can be proved by the production of the original copy of the document

“Before then, suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy. Galadima, JCA (as he then was), for instance had, in CHIEF SUNDAY N. A. (SUING BY HIS ATTORNEY, MR. SOLOMON IWEBUZOR) v. DELTA FREEZE NIG. LTD. & ORS. (2010) LPELR – 9114(CA), queried the prudence of insisting on the certified true copy of a public document when the original is available as the primary evidence of the contents. His Lordship states –

“that I should hold that Exhibit B being primary evidence under Section 94 is admissible without the need for certification by virtue of Sections 93 and 96 of the Evidence Act. With due respect to the learned trial Judge he was in error in holding that Exhibit B ought to have been certified. It does not require to be certified to render it admissible in evidence. In the case of EBU v. OBUN (2004) 14 NWLR (pt. 892) 76 at 88, learned counsel for the Respondent submitted that originals of public documents ought to be certified to make them admissible.

In response to this argument (it was) held per Opene, JCA thus: “I do not know how the learned counsel come about this argument? When a document is certified, it is certified to be a true copy of the original. If then the original is to be certified, what will it be certified to be a true copy of itself (original)?” –

Clearly, in view of this decision, I hold that Exhibit B was wrongly rejected and ought to have been considered by the learned trial judge in his judgment instead of treating it as if it had never been admitted.”

In the REGISTERED TRUSTEES OF THE PORT HARCOURT CHRISTIAN COUNCIL PROJECT v. MR. SUNDAY G. O. AMADI & ORS. (2010) LPELR -9119 (CA) (a decision Galadima, JCA (as he then was) and myself were privies), it was held per Thomas, JCA, that since documents must be proved either by producing either the original or, in its absence, the secondary evidence of it, the proof of the contents of the document by the production of the original copy should not be the basis for rejecting in evidence the original. The decision was anchored on the Supreme Court decision in OKEKE v. ATTORNEY-GENERAL OF ANAMBRA STATE (1993) 1 NWLR (pt. 215) 60 at 80 in which it was held that documents are in the first place proved by primary evidence, which is by the production of the original copy for inspection by the Court. Proof of the contents of a document by production of the contents of a document by secondary evidence of the document, that is by production of a duly certified true copy of the original, is merely an alternative to the production of the original that is the primary evidence. On this, Coker, JSC, in AJAO v. AMBROSE FAMILY & ORS. (1969) 1 NMLR 25 seems to agree on the settled primary principle that all documents, prima facie, must be proved by primary evidence.

The respondent’s counsel has aligned himself with the view that it is not illegal to produce the original of a public document for the inspection of the Court as the primary evidence of its contents, and that Exhibits 1, 2 & 3 are not inadmissible in evidence. He relies on the very provisions of the Evidence Act, 2011 appellant’s counsel relies on to submit that Exhibits 1, 2 & 3, being originals of public documents are inadmissible in evidence.

We need to examine Sections 83, 85, 86(1), 87, 88, 89, & 90(1)(c) of the Evidence Act, 2011. The salient provisions of these Sections are herein below reproduced as follows –

“83(1). In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact –

85. The contents of documents may be proved either by primary or secondary evidence.

86. (1) Primary evidence means the document itself produced for the inspection of the Court.

87. Secondary evidence may be given of the existence, condition or contents of a document when –

(a) the original is shown or appears to be in possession or power –

(i) of the person against whom the document is sought to be proved; or

(ii) or any person to legally bound to produce it and when after the notice to produce mentioned in Section 91 such person does not produce it;

(b) the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) the original has been destroyed or lost and in the latter case all possible search has been made for it;

(d) the original is of such a nature as not to be easily movable.

(e) the original is a public document within the meaning of Section 102;

(f) the original is a document of which a certified copy is permitted by this Act or by any other Law in force in Nigeria, to be given in evidence:

(g) the originals of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection; or

(h) the document is an entry in a banker’s book.

90(1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows –

(c) In paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible.

102. The following documents are public documents –

(a) documents forming the official acts or records of official acts or –

(i) the sovereign authority;

(ii) official bodies and tribunals; or

(iii) public officers, legislative judicial and executive, whether of Nigeria or elsewhere:

104.(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.”

The learned counsel for the appellant did not, in his submission, address the significance of Section 83(1) of the Evidence Act, 2011 to the effect that in any proceeding where direct oral evidence of a fact would be admissible, any statement by a person in a document which seems to establish the fact shall, on production of the original, be admissible as evidence if the maker of the statement has personal knowledge of the matters dealt with in the statement or if the maker made the statement, in a matter he has personal knowledge of, in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of these matters. And if the maker of the statement is called as a witness in the proceeding.

Section 85 of the Evidence Act, couched in general terms, provides that the contents of documents may be proved by either primary or by secondary evidence. Section 86(1) of the Act defines the primary evidence as the document itself produced for the inspection by the Court. That is the original itself produced for the inspection by the Court. Section 88 of the same Act directs that documents shall be proved by primary evidence except in the cases mentioned in the Act, such cases being rather in alternative. The word “except” after the imperative phrase “documents shall be proved by primary evidence” can only mean “unless”.

Section 89 of Evidence Act lists the circumstances that are exceptions to the imperatives of Section 88 and 85 of the Act read together. I do not think it is illegal, in view of Sections 83, 85 and 88 of the Evidence Act, for the contents of a public document to be proved by the production of the original copy of the document, in its primary state, for the inspection of the Court. Now, the Question: what prejudice or miscarriage of justice has the appellant herein suffered by the production of the originals of Exhibits 1, 2 & 3 for the inspection of the Court? I see none, and I have not shown any. The Courts these days, I earlier stated, are moving away from arcane technicalities towards doing substantial justice.”Per EKO, J.S.C. (Pp. 6-14, Paras. F-A)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Whether a public document can be proved by the production of the original copy of the document

“With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V. The State (2016) 2-3 SC (Pt. III) 29 @ 47 – 54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold that Exhibits 1, 2, & 3 were properly admitted in evidence in this case.”Per KEKERE-EKUN, J.S.C. (P. 35, Paras. A-E)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Position of law on tendering and proof of documentary evidence

“By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible. See Kwara State Ministry of Agriculture and Water Resources & Ors. v. Societe Generale Bank Nig. Ltd. (1998) 11 NWLR (Pt. 575) 574: Daggash v. Bulama (2004) 14 NWLR (Pt.892) 144; P.D.P. V. INEC (2014) 17 NWLR (PT. 1437) 525.”Per OGUNBIYI, J.S.C. (P. 31, Paras. A-D)

·         EVIDENCE – DOCUMENTARY EVIDENCE: Effect of the failure of a party to object to the reception of a document in evidence when it is being tendered

“The appellant’s counsel is very adamant in his argument on the admissibility of exhibits 1, 2 and 3, that is, the medical Report and the two statements made by the appellant, to the police which, as correctly stated by the respondent’s counsel, were original documents admitted without objection from the appellant or the learned counsel who appeared for him. The implication in the circumstance is obvious wherein they have consented to the admissibility of the documents.

The law is clear that an objection to the admissibility of a document is taken when it is sought to be tendered. See the persuasive decision of the case of Hon. Godwin Udo King v. INEC & Ors (2008) LPELR 4403. Also persuasive is the case of Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt.639) 78, where it was held that:

“In any case, the law is that where a document is not inadmissible per se but its admissibility is subject to the conditions that had not been fulfilled when it was tendered, its admission in evidence without objection constitutes a waiver of the unfulfilled condition. See Okeke v. Obidife (1965) 1 All NLR 50, 53 – 5; Anyaebosi v. R. T. Brisco (Nigeria) Ltd. (1987) 3 NWLP. (Pt. 59) 84: (1987) 6 SCNJ 9, 32 – 33: Oguma Associated Companies (Nigeria) Ltd v. International Bank for West Africa Ltd (1988) 1 NWLR (pt.73) 658: (1988) 3 SCNJ (Pt. 1) 13, 22 – 23 and Attorney General of Oyo State v. Fair Lakes Hotel Ltd. (1989) 5 NWLR (Pt. 121). 255: (1989) 12 SCNJ 11.”Per OGUNBIYI, J.S.C. (Pp. 29-31, Paras. E-A)

·         APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts

“…This finding of fact was affirmed by the Court below. In this further appeal, the appellant, through his counsel made no effort, albeit feeble, to dislodge or displace the concurrent finding of fact. Unless the appellant establishes, and convinces this Court, that the concurrent findings of fact by the two Courts below were perverse, this Court will not readily intervene to disturb such concurrent findings of fact. See BASHAYA & ORS. v. THE STATE (1998) 4 SC 199; (1998) 5 NWLR (pt.550) 351; OGBU v. THE STATE (1992) 10 SCN 88; (1992) NWLR (pt. 259) 255. The principle is so trite and as such a settled principle in our appellate Court jurisprudence or practice that counsel planning or conceiving an appeal should be very conscious of. Alas, it completely eluded the appellant in the instant case.”Per EKO, J.S.C. (Pp. 25-26, Paras. E-B)

·         CASE LAW – STARE DECISIS: What the doctrine of stare decisis entails

“The Supreme Court had earlier in A.G. ONDO STATE v. A.G. EKITI STATE (2001) 17 NWLR (pt.743) 706 interpreted Section 7(1) of Decree No. 41 of 1991. Section 7(1) of Decree No. 36 of 1996 is in pari materia with Section 7(1) of Decree No. 47 of 1991. When this Court was called upon to interpret the Provisions of Section 7(1) of Decree No. 36 of 1996 it adopted the interpretation it had earlier given to Section 7(1) of Decree No. 41 of 1991. This, it did on the principle –

“that where the Provisions of a statute or a Section of a statute are in pari materia, light may be thrown on the meaning of such a provision or statute which is in pari materia by referring to a previous decision of a competent Court where similar provisions had been previously considered.”

I agree. The principle is correct and it is in tandem with the principle of stare decis which is a rule of adherence to judicial precedents. It postulates that when a point or principle of law has been officially decided or settled by a ruling or pronouncement of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the tribunal, or by those who are bound to follow its adjudications, unless there be urgent reasons and in exceptional cases. Critics of this principle argue that strict adherence to old decisions may result in grave injustices in the ever changing social and political situations. The need to do substantial justice in every case to the Court, the accused person, the victim of crime and the general public seems to favour the stance that where strict or dogmatic adherence to precedent is mere arcane technicality that defeats justice, pragmatism demands a balance between the extremities. Our jurisprudence is shifting from adhering to mere technicality designed to defeat the course of justice. Thus as stated by Wali, JSC, in SHUAIBU v. NIGERIA-ARAB BANK LTD. (1998) 4 SC 170; (1998) 5 NWLR (pt.551) 582; “the prime duty of any Court in taking any decision is to do justice. The wheel of justice could no longer be allowed to be clogged with technicalities.”Per EKO, J.S.C. (Pp. 5-6, Paras. A-E)

·         CRIMINAL LAW AND PROCEDURE – OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH: Ingredients the prosecution must prove to establish the offence of culpable homicide

“As rightly stated by the Court below; the trial Court, at page 4 of the Record, identified three (3) ingredients which must be proved by the respondent to sustain conviction for the offence punishable under Section 221 of the Penal Code. That is:

“1. That there was death of a person;

2. That the death was a result of the act of the accused; and

3. That the act was done with the intention of causing death or intention of causing such injury that death would be the probable result.”

See A. UBANI v. THE STATE (2003) 16 NSCQR 265; IGALO v. THE STATE (1999) 14 NWLR (pt. 637) 1; EDOHO & ANOR. v. THE STATE (2010) 14 NWLR (pt.1214) 651; OGBU & ANOR. v. THE STATE (2007) 4 SCM 169; (2007) 3 SC (pt. ii) 273; STATE v. DANJUMA (1997) 5 NWLR (pt.506) 512.” Per EKO, J.S.C. (P. 20, Paras. B-F)

·         EVIDENCE – PRESUMPTION OF REGULARITY: Whether there is presumption of regularity as to record of the Lower Court’s judgment

“The duty of every appellant is to show and or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, a judicial act, done in a manner substantially regular is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011 is all about this.”Per EKO, J.S.C. (Pp. 24-25, Paras. E-A). notable

 

SOME OTHER REMARKABLE JUDGMENTS FROM THE COURT

1.      MALAMI & ANOR v. OHIKHUARE & ORS (2017) LPELR-42580(SC)

·         APPEAL – FRESH POINT(S) ON APPEAL: Conditions to be satisfied by an applicant seeking to raise fresh issues on appeal

“For the Appellant to be granted leave to raise fresh issue on law in an appeal, the issue must be one on a substantial point of law, substantive or procedural. See HELEN JOHNSON OBU v. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF CROSS AND STAR (supra). A substantial point of law is from the facts of the case which will materially determine the fortunes of the appeal, and not just a point of law which is merely peripheral. See BAMAIYI v. A-G OF THE FEDERATION (2001) 12 NWLR (Pt. 727) 468; COCA-COLA NIG. LTD. v. ADESANYA (2013) 18 NWLR (Pt. 386) 255.”Per EKO, J.S.C. (P. 15, Paras. B-E)

·         APPEAL – FRESH POINT(S) ON APPEAL: Conditions to be satisfied by an applicant seeking to raise fresh issues on appeal

“Fresh issues on appeal would be heard by the Court if the following conditions are fulfilled:

1. The issue must have been pleaded as it cannot be at large.

2. The issue must involve substantial points of law.

3. Further evidence would not be required. See Awote v. Owodunni (1986) 12 SC p.203; Uor v. Loko (1988) 5 SC p.22.”Per RHODES-VIVOUR, J.S.C. (Pp. 20-21, Paras. F-A)

·         COURT – DISCRETION OF COURT: How judicial discretion should be exercised

“The Law is settled that an application of this nature is not granted as a matter of course. A grant or refusal of an application is purely at the discretion of the Court which discretion must be exercised, judiciously, and judicially upon sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817)545 at 558 Para B, Ogbuchi v .Governor of Imo State (1995) 9 NWLR (Pt. 417) 53, University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143 at 148.”Per GALINJE, J.S.C. (Pp. 23-24, Paras. E-A)

·         EVIDENCE – CROSS-EXAMINATION: Whether a party can be allowed to cross-examine his own witness with the view of impeaching his credit

“I agree with Mr. Agi, SAN, that a party is not allowed, in law, to cross-examine his own witness with the view of impeaching his credit, unless upon leave granted if the Court is satisfied that the witness had become hostile. The Court will only treat a witness as a hostile witness if it is satisfied that the witness does not want to tell the truth, or that the witness bears some animosity towards the party that calls him. See SOTARI F. TAMUNOWARI: ANNOTATION OF THE NIGERIAN EVIDENCE ACT 2ND ED. PAGE 516. The witness who tendered Exhibit E had since been discharged having testified and duly cross-examined by the party against whom he testified.

A witness will not be cross-examined by the party who called him merely because it appears that his evidence would not be, or was not favourable to the party who called him.”Per EKO, J.S.C. (Pp.10-11, Paras. E-C)

 

2.                  ONWE v. STATE (2017) LPELR-42589(SC)

·         CRIMINAL LAW AND PROCEDURE – ARRAIGNMENT/TAKING OF PLEA: Whether non-compliance with the procedure of taking plea to a charge can be waived

“The only charge, as it is, the accused pleaded not guilty to was the original charge read and explained to the accused person after the evidence of the PW.1. And as I earlier stated the accused who was throughout represented by counsel had acquiesced in all these procedural mixed-ups. It appears to me on authority ARIOR 1 v. ELEMO (1983) 1 SCNLR 1; (1983) 1 SC 13 that the accused could waive this procedural right of fair hearing that enured to his benefit. This is a procedural irregularity that can be waived expressly or by conduct. In this case, the accused person and his counsel appeared to have expressly waived the non-compliance or strict compliance with the procedure of taking plea to the charge he was defending.”Per EKO, J.S.C. (P. 40, Paras. A-D)

·         EVIDENCE – CONTRADICTION IN EVIDENCE: Whether a trial court is justified in the face of contradictions to treat a case as unreliable

“The Respondent’s counsel, an officer of the Court, is having difficulties of intra-personal conflict. He is torn between telling the truth and telling lies. He is clearly prevaricating. My Lords, this Court per Ariwoola, JSC, recently stated in DR. MICHAEL EMUAKPAROR ABEKE v. BARR. A. A. ODUNSI & ANOR. (2013) LPELR-20640 (SC) that – “parties, as litigants, are not permitted to approbate and reprobate in the conduct of their case. See EZOMO v. A.G. BENDEL (1986) 4 NWLR (Pt. 36) 448 at 462; KAYODE v. ODUTOLA (2001) 11 NWLR (Pt. 725) 659; (2001) 7 SCM 155; OSUJI v. EKEOCHA (2009) 10 SCM 72 at 93.”

The prosecution charged the Appellant for the murder of NDUDIRI ONYEKWERE, NOT NDUBUISI ONYEKWERE, NDUBISI ONYEKWERE, ERNEST NDUBISIS ONYEKWEKWERE, or EARNEST NDUBUISI ONYEKWERE. If therefore they led evidence proving the death of NDUBISI ONYEKWERE through PW.4, then another version of the same murder has been introduced. In PAUL AMEH v. THE STATE (1972) 6-7 SC 27, this Court held that when the prosecution presents two versions of one offence charged, then they had failed to prove the guilt of the accused beyond reasonable doubt. The trial Court is obligated not to convict an accused person in the circumstance and to treat the prosecution’s case as unreliable when there are material contradictions in the prosecution’s case. See ENAHORO v. THE QUEEN (1965) NMLR 265; KALU v. THE STATE (1988) 4 NWLR (Pt. 90) 503; UKUT v. THE STATE (1995) 9 NWLR (Pt. 420) 392. In the face of material contradictions, there can be no proof beyond doubt in a criminal proceeding.”Per EKO, J.S.C. (Pp. 48-50, Paras. F-B)

·         EVIDENCE – BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof in criminal cases

“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Sola v. The State (2005) 5 (Pt. 1) 135.”Per GALINJE, J.S.C. (Pp. 65-66, Paras. E-A)

·         JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of retrial

“The principles governing the order of retrial in criminal cases is already settled by this Court. It is settled that in criminal cases before deciding to order a retrial, the Court must be satisfied:-

(a) that there has been an error in Law (including the observance of the Law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that there has been no miscarriage of justice;

(b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the accused.

(c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial the second time.

(d) that the offence or offences of which the Appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial and;

(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.

All these factors must co-exist before a case may be sent back for retrial. See:- ABODUNDU v. QUEEN (1959) SCNLR 162; ANKWA v. THE STATE (1969) 1 All NLR 133; AKINFE v. THE STATE (1988) 3 NWLR (Pt. 85), DIKE v. THE STATE (1996) 5 NWLR (Pt. 450) 553; GANIYU v. THE STATE (2013) 4-5 SC (Pt. 1) 71, where this Court decided that long detention of the accused person is no ground to refuse to order-retrial.”Per BAGE, J.S.C. (Pp. 10-11, Paras. D-F)

·         JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of retrial

“As stated earlier, each case will be decided on its own peculiar facts. If the prosecution had made out a substantial case against the appellant, having regard to the gravity of the offence with which he was charged, a retrial or fresh trial would have been proper notwithstanding the length of time he has spent in custody. I am convinced that in this case, the order of retrial did not meet the justice of the case. See; Mohammed v. The State (2013) 5 NWLR (Pt. 1347) 315 @ 328 B-F: Ogboh v. F.R.N. (2002) 10 NWLR (Pt. 774) 21; Amos Bode v. The State (supra).”Per KEKERE-EKUN, J.S.C. (Pp. 36-37, Paras. F-B)

·         JUDGMENT AND ORDER – ORDER OF RETRIAL/TRIAL DE NOVO: Instances where an order of retrial will not be made

“Where the prosecution’s case is infested with contradictions, clearly the prosecution has failed to prove its case beyond reasonable doubt. The Appellant ought to have been discharged and acquitted. This the trial Court did not do. The lower Court, that is the Court of Appeal dwelt only on the aspect of the arraignment of the Appellant and did not consider the case as a whole when it made an order of retrial. This I think is wrong.

To subject the Appellant to another trial on the pieces of evidence that are so contradictory and may at the end lead to his acquittal, will serve no useful purpose. To make an order for retrial, the appellate Court must advert its mind to the evidence on which the accused was found guilty. Where the totality of the evidence leads or creates reasonable doubt, an order of retrial is inappropriate. It will clearly be oppressive to subject an accused to another trial.

It is in the public interest that there should be an end to every litigation. Where from the available evidence at the trial, the appellate Court can do justice between the parties by bringing the litigation to an end, an order for retrial is inappropriate.”Per GALINJE, J.S.C. (Pp. 66-67, Paras. B-A)

3.                  KLM ROYAL DUTCH AIRLINES v. ALOMA (2017) LPELR-42588(SC)

·         APPEAL – GROUND(S) OF APPEAL: Whether a ground of appeal must be related to the ratio decidendi of the judgment appealed against

“Even a cursory look at Ground 2 and its particulars would reveal that the appellant is challenging the decision of the trial High Court and not the decision of the Court below. The Court below, having held that the appellant’s brief was incompetent did not consider the merit of the appeal at all. As rightly submitted by learned counsel for the respondent, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision. See: Egbe Vs Alhaji & Ors. (1990) 3 SC (Pt.III) 63 @ 109; Datek Nig. Ltd. Vs. OMPADEC (2007) ALL FWLR (Pt.364) 204 @ 226 F – H; Akibu Vs Oduntan (supra); Abubakar Vs Bebeji Oil & Allied Products Ltd. & Ors. (supra). Furthermore, by virtue of Section 233 (1) of the 1999 Constitution, the appellate jurisdiction of this Court is limited to appeals from the Court of Appeal. The Court has no jurisdiction to entertain appeals directly from the trial Court. See:

Akibu Vs Oduntan (supra); Okonobor Vs Edegbe & Sons Transport Co. Ltd. & Anor. (2010) 17 NWLR (Pt.1221) 181: Husseini & Anor. Vs Mohammed & Ors. (2014) 12 SC (Pt.II) 90. In effect, the objection to Ground 2 is well founded. The said ground is incompetent. It is hereby struck out.” Per KEKERE-EKUN, J.S.C. (Pp. 10-11, Paras. D-D)

·         APPEAL – ISSUE(S) FOR DETERMINATION: Effect of issue(s) for determination not distilled from or related to ground(s) of appeal

“An appeal is determined on the issues for determination formulated by counsel, or by the Court. Such issues must arise from the grounds of appeal. Any issue that does not arise from the grounds of appeal is incompetent and liable to be struck out. It is also settled that any ground of appeal not covered by an issue for determination is deemed abandoned and liable to be struck out. See: Okoye & Ors. Vs Nigerian Construction & Furniture Co. Ltd & Ors (1991) 6 NWLR (Pt.199) 501; Egbe v. Alhaji (supra); Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (Pt.249) 534: Elohor Vs Osayande (1992) 6 NWLR (Pt.249) 524 @ 534.” Per KEKERE-EKUN, J.S.C. (P. 12, Paras. B-E)

·         APPEAL – BRIEF OF ARGUMENT: Attitude of Court to a bad/faulty/inelegant brief of argument

“For all intents and purposes, the hard line of action taken by the Lower Court was against the form of the brief and not the substance of the argument contained therein the brief. Plethora of Judicial authorities have disapproved of this attitude and deprecated same as wanton. See for instance, the decision of this Court in Akpan v. State (1992) 6 NWLP (Pt.248) P.439 at 471 per Nmemela -Agu, JSC: wherein the learned jurists said thus:-

“Briefs have been designed to help this Court and the Court of appeal to expedite the disposal of appeals ……. we come across poorly written briefs practically every day. Much as counsel have no excuse for producing poor briefs now, the fact they have done so will not discharge this Court from its duty of doing substantial justice to the parties who appear before it.”

It is pertinent to state that briefs are prepared by lawyers generally at the instant of their clients. Where such processes are rejected by the Court, it is the client who stands to suffer the consequence thereof. The lasting effect is to visit the sin of a counsel on the client. Justice should never be sacrificed at the altar of technicalities.

The aim or purpose of brief writing is not to serve as an end in its itself but to aid the process of quick dispensation of justice. Adherence to strict technicalities will stand to defeat the very cause of justice which was set out to be achieved. Substantial justice should be the aim or the order of the day. See also the case of Obiora v. Osele (1986) 1 NWLR (Pt.97), p.289 at page 302 wherein Oputa JSC, said:-

“Again and as happened in Akpan v. Uyo (supra) after this richly deserved censure of learned counsel Mr. Ijaodola, this Court did not dismiss his appeal because his brief was really no brief – no – the Court considered the merits of the appeal and in the end allowed the same, the faulty and inconsequential brief notwithstanding. The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, not in technicalities. These should all aid justice and not defeat it.”

The denial of justice to the appellant on the form of its brief, (which does not affect the substance of the brief), has impeded the appellant’s right to fair hearing.” Per OGUNBIYI, J.S.C. (Pp. 45-47, Paras. A-A)

·         APPEAL – INTERFERENCE WITH FINDING(S) OF FACT(S): Circumstances in which an appellate court will interfere with the findings of facts made by a lower court

“The circumstance of the case at hand therefore, is such that will require this Court to interfere therewith for purpose of doing justice. See the cases of; Sokwo v. Kpongbo (2008) 1 – 2 SC. 117: Olonade & Anor v. Sowemino (2014) 5 SC. (Pt.11) 97: Okoya v. Santili (1994) 4 NWLP (Pt.338) 256; Seatrade v. Awolaja (2002) 2 SC. (Pt.1) 35: Cameroon Airlines v. Otutuizu (2011) 1- 2 SC. (Pt.11) 2 SC. (Pt.11) 200.” Per OGUNBIYI, J.S.C. (P. 47, Paras. A-C)

·         JUDGMENT AND ORDER – REVERSAL OF DECISION: What is required of an appellant seeking the reversal of a judgment

“For the appellant to secure the reversal of the judgment he appeals against, there is the duty on him to establish the error complained of and the injustice occasioned thereof. See the case of Chief Ikedi Ohakim & Anor v. Chief Martin Agbaso & 4 Ors (2010) 6 – 7 SC P.85.” Per OGUNBIYI, J.S.C. (P. 47, Paras. C-D)

·         PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Purpose of a notice of preliminary objection; whether a preliminary objection can be used to attack one or more grounds of appeal

“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, J.S.C. (Pp. 6-7, Paras. D-B)

 

4.                  ADEYEMI v. STATE (2017) LPELR-42584(SC)

·         APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Circumstances under which an appellate court will interfere with the concurrent findings of two lower Courts

“Indeed, there is no peg on which the Court can hang an interference with the concurrent findings and conclusion of the two Courts below which are founded on sound evaluation of the evidence before the trial Court nor was there any taint of perverseness or a wrong application of the law. This Court or any appellate Court for that matter does not disturb concurrent

findings of Courts below just for the heck of it but has to do so in very rare instances of infraction in the application of the law or miscarriage of justice which are clearly absent in this matter.” Per PETER-ODILI, J.S.C. (Pp. 16-17, Paras. E-A)

·         CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY: How the offence of conspiracy can be inferred

“On this matter of inference and the near impossibility of direct evidence being available with which the offence of conspiracy can be established, this Court as in numerous occasions stated the guideline and I shall refer to Onyeye v. The State (2012) 15 NWLR (Pt. 1324) at 586 wherein it was held as follows:-

“Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of conspiracy as a matter of inference to be adduced from certain criminal acts or inactions of the parties.”Per PETER-ODILI, J.S.C. (Pp. 12-13, Paras. C-A)

·         CRIMINAL LAW AND PROCEDURE – OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery

“…with regard to the offence of Armed Robbery for which the appellant was charged, it is to be said that to sustain the offence contrary to Section 1(2) of the Armed Robbery and Firearms Act Cap R11, Laws of the Federation 2004, the prosecution has to establish the following:-

1. That there was a robbery.

2. That the robbery was an armed robbery, and

3. That the accused person took part in the robbery.

I rely on the cases of Okudo v. The State (2011) 3 NWLR (Pt. 1234) 209 at

233; State v. Salawu (2012) All FWLR (Pt. 614) 1 at 34.”Per PETER-ODILI, J.S.C. (P. 13, Paras. B-E)

·         CRIMINAL LAW AND PROCEDURE – DEFENCE/PLEA OF ALIBI: When should the defence of alibi be raised

“…The reason is that an alibi is to be raised at the earliest opportunity because of the role the prosecution has to play in it after the accused has furnished the prosecution with the details of his whereabout at the relevant time. It is with those particulars that the prosecution would then set about investigating the alibi to produce one or the other result that is either the alibi affirmed or debunked. Therefore the accused/appellant in this case raising the alibi at this late stage, the effect is akin to a still birth and the alibi so raised comes to naught. See Udobre v. The State (2001) FWLR (Pt. 59) 1244 at 1258-1259.”Per PETER-ODILI, J.S.C. (P. 16, Paras. A-D)

·         CRIMINAL LAW AND PROCEDURE – DEFENCE/PLEA OF ALIBI: When the defence of alibi will collapse

“One of the issues the appellant raised in this appeal is that he raised the defence of alibi which was not investigated by the police. Where the evidence is overwhelming, as in this case, where the appellant was found with some of the robbed items soon after the robbery and did not offer a reasonable explanation as to how he came in contact with the items robbed, the alibi will not avail him and the trial Court can invoke Section 167 Evidence Act to presume either he is the robber or knew that the item he was found with was a robbed item.

See: Fatai Olayinka v. The State (2007) NWLR (Pt. 1040) 561; Benson Ukwunnenyi v. The State (1989) NWLR (Pt. 114) 131; Egbophonome v. C.O.P. (1993) 7 NWLR (Pt. 306) 383; Michael Hausa v. State (1994) 6 NWLR (Pt. 350) 281.” Per AKA’AHS, J.S.C. (Pp. 20-21, Paras. E-B)

 

Source: Lawpavillion

How to prove that the termination of your employment was wrongful

termination

When is termination/dismissal said to be wrongful? 

You may sue and demand to enforce your rights if your employment contract is wrongfully terminated. Wrongful termination is when any of the following occurs:

  1. Your former employer did not follow the terms of the contract in terminating it or dismissing you. For instance, if the contract specified that either party can only terminate by giving the other 30 days’ notice or one month’s salary in lieu of notice, it would be wrongful to terminate the contract forthwith and not pay you anything in lieu. Also, if your employment contract provides for a disciplinary procedure to be followed before you can be dismissed (say for gross misconduct) and the procedure was not followed or your act/omission was wrongly categorized, your dismissal would be wrongful.
  2. Your appointment was terminated ‘in accordance’ with the terms of contract but the reason for the termination is unlawful or unjustifiable. For instance, where termination is based on discrimination or sexual harassment, it will qualify as wrongful termination. It does not matter that your employer (like most companies in Nigeria) does not have a policy against workplace discrimination or sexual harassment. These are matters of law and public policy that are implied into every employment contract.
  3. You actually did resign ‘voluntarily’ but under conditions that left you with no other choice. For instance, your former employer frustrated you and deliberately made it practically impossible for you to continue with the job. The technical term for this is “constructive dismissal”, and it also qualifies as wrongful termination.
  4. Your position had been rendered redundant but your former employer played smart and clothed it as simple termination (like merely said your ‘services no longer required’) in order to save itself the cost of paying you redundancy or other benefits.

While it is true that no employer should feel compelled to retain an employee whose services are no longer required or who is no longer fit to remain in the job, if your appointment must be terminated, it should be with the dignity and respect deserving of your person as an employee, and all your entitlements fully paid.

When to sue

If you are aggrieved about the manner that your appointment has been terminated, you need to move fast in getting a redress. Sue as soon as it is reasonably clear to you that your grievance cannot be amicably resolved. By law, you must sue within 6 years of the termination otherwise your claim will become stale and unenforceable. The courts are strict with this timeframe and would hardly entertain any excuse for delay in suing; not even where the delay was because you were trying to settle amicably with your former employer.

If you were working in the civil or public service, the need to act fast is even more urgent. This is because the timeframe allowed to sue public officers/offices is just 3 months! Although, there are legal arguments (and authorities) that this principle does not apply to breaches of contract, or claims for work and labour done, why delay and get your case entangled in any such legal haggles!

Where to sue

The National Industrial Court is your go-to court for labour disputes. The court only handles labour disputes hence the Judges are more able to quickly settle the cases before them. Let me quickly add that you should always first consider settling your case amicably (out of court) before suing. At any rate, Alternative Dispute Resolution (ADR) options are preferred to litigation in the resolution of disputes such as employment disputes. ADR options include arbitration, mediation, conciliation, etc. These options better protect confidences, they are cheaper (well, arguably) and faster too.

What facts to establish

It is not enough to say your employment is wrongly terminated. You have to explain how you came about that conclusion. It is helpful if you tell your story in a logical and compelling manner. You will therefore want to capture the following facts:

  1. That you were employed by the defendant (your former employer) – state date and the designation in which you were employed;
  2. The terms and conditions of the appointment including duration and termination – emphasize the procedure for termination;
  3. State who had the power, under your employment contract, to terminate or dismiss you;
  4. State any special circumstances that are needed to prove your case – for instance, if you are basing your claim for wrongful termination on workplace sexual harassment, discrimination or redundancy, state clearly the circumstances that led you to believe the facts;
  5. State the circumstances under which your appointment was in fact terminated – for instance, that you had not been given any notice (or payment in lieu), fair hearing etc
  6. State the pain and trouble that you have suffered on account of the wrongful termination – while this is not very necessary sometimes such sentiments prove helpful to your cause.
  7. Itemize your demands in an orderly manner and with explanations where necessary.

Help the court to help you; explain yourself!

What documents to rely on 

More often than not, your employment ‘contract’ is not just the ‘Offer Letter’. Other terms of the contract are contained in documents like the ‘Staff Handbook’, collective agreements (common in unionized industries like Maritime or Aviation), etc. It’s important to place before the court all documents necessary to paint the full picture. These include the following:

  1. Letter of Offer/Contract of Employment
  2. Letters of promotion
  3. Letters of commendation or awards
  4. Employee Handbook/Expatriate Policy,
  5. The letter of termination or dismissal,
  6. relevant Collective Agreements,
  7. Circulars, internal memos, notices, and
  8. other workplace documents, like official e-mails, etc that are necessary to establish your case.

These documents, together with your oral testimony (and that of any other witness) are what the court will use in deciding your fate.

What to ask for

This is the interesting part. Nearly all claims in court about wrongful termination are about money! You are most likely simply asking that you should be paid some money as terminal benefits. Two quick clarifications:

  1. payment of terminal benefits is not automatic and the payment (trust me) is not a windfall. What you will be paid will depend, largely, on what was previously agreed upon between you and your employer. Sometimes, Lawyers get overzealous and make bold baseless assurances to clients on what they can obtain in court. But the court is not Santa Claus and would not award you damages just for asking. You will have to earn it. Admitted, sometimes you would rather err on the side of caution and ask for more rather than less, but why pad your claims and end up appearing like a gold digger before the Judge? It is best to be clear-headed about your claims and save everybody’s time. In some cases, (like terminations based on workplace discrimination, sexual harassment, redundancy, etc) the Judge would likely award heavy penalty against your former employer as a deterrent to other employers and as compensation deserving of the manner of your termination. What is “heavy penalty” (Lawyers call it “punitive damages”) will ultimately depend on the facts of each case, but our Judges here are rather conservative on these things, so don’t get your hopes too high.
  2. Suing for wrongful termination is not (and should not) always be about money. There are cases (like a dismissal) in which it is more important for the aggrieved employee to ‘clear his name’ and set the records straight (or just to prove a point). Even where you are really pressed for the money, you should not overlook this aspect of your case. Interestingly, until you convince the Judge that indeed your dismissal/termination was wrongful, you are likely not getting paid any damages. Don’t allow money get in the way.

How do you determine your rightful entitlements?  Look at your contract and see for yourself what it says you will be paid in case you are asked to leave. For instance, are there provisions in the contract that you will be paid a salary in lieu of notice? Also check the Staff Handbook which may contain provisions on payment of gratuity, redundancy, etc. In summary, your list of claims could run like this:

  1. payment in lieu of notice
  2. outstanding salaries (if you were owed any prior to the termination)
  3. gratuity
  4. redundancy (if your case is deserving of it)
  5. other accrued benefits (like leave allowances, etc) that are outstanding.

It is important to be sure that you are entitled to these benefits before you make your claim for them. Don’t get greedy and start making up claims from the blues. Also ensure that what you are claiming is actually outstanding. Do not embarrass your Lawyer by making him/her claim for money that is already paid to you. Finally, check to ensure that your pension, tax, NSITF, etc. deductions are also fully remitted or paid. Your lawyer will help you in computing the claims if your termination is based on special circumstances and you would like punitive damages awarded in your favour against your former employer.

What not to ask for

Keep your case tidy. Don’t spoil it with spurious demands. Some demands are not to be made because they are simply not practicable. Let’s briefly highlight some:

  1. Don’t ask for money for ‘injured feelings and loss of reputation’. Don’t get your claim for wrongful termination mixed up with claims about defamation. You can actually claim for both but not in one breathe (and also not in the same court).
  2. Don’t ask to be reinstated – unless your employer is a government agency, nobody has legal powers to foist you on your unwilling employer. Termination of ordinary employment contracts is never “null and void, unlawful or unconstitutional”. The termination, at best, can only be wrongful but not invalid. Either party is free to terminate at any time and for any or no reason. All that is required is fairness – that the terms of the contract are followed and within the bounds of the law.
  3. Don’t ask for pre-judgment interest on the monies that you are claiming – unless it had already been agreed upon between you and your former employer. Interest, if any, on any award that the court will grant you, will start to run from the date of the judgment, and not from the date that the money became due.

PS: The language of this article is deliberately simple and devoid of legal niceties because it is intended for non-lawyers. It is however, not intended to be a substitute for legal advice. You will certainly need a Lawyer to, among other things, plead your case in court. Finally, going to court should be a last option. Employment disputes are best resolved amicably; unless of course you are left with no other option than to sue.

Oral notice to terminate a written employment contract …

termination

Notice is notice whether in writing or oral provided both parties are not misled as to what is meant. It does not matter, in terminating an employee’s appointment, whether he is given notice in writing or orally or not. What is important is whether the employer has demonstrated clearly by action that the services of the employee are no longer required by the employer” – per Mohammed, JSC in Ifeta v. S.P.D.C (Nig.) Ltd (2006) 8 NWLR (Pt. 983) 585.

In the instant case, the employee was informed at a meeting that he is fired, though he was not issued a letter of termination. One of the issues for determination before the court was whether the oral notice was effective since the subject matter employment contract provided that either party could terminate only by “notice in writing”. The SC held in the affirmative.

  1. There is a great deal of flexibility that courts tend to apply in the interpretation of employment contracts (and nearly always in favour of employees) – the courts will mostly look to the intent of the parties rather than the form of the contract. Otherwise, the law is trite that when parties have reduced their agreement into a document, the Court will not look outside the document in deciding the rights and obligations of the parties.
  2. Similarly, an oral notice to quit issued by an employee would equally be effective against the employer.
  3. Oral notice to terminate is likely to present some practical difficulties as it could be open to different interpretations. This is not likely where the notice is in writing as the document would speak for itself.
  4. It is best to put into writing your notice/intention to terminate/dismiss. Where the notice is oral, it should be reduced into writing shortly after and re-issued. It is needless to get entangled into legal haggles about something as basic as your intention to get out of an employment contract.

 

The Right of the Employer to Reject a Resignation

tumblr_onkbqiRgvE1vdur62o1_1280An employer has no right to reject the resignation of its employee, for whatever reason. The law is that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted.

In the cases of Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 and Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517, the courts held that it is not open to the employer for whatsoever reason to refuse to accept the resignation of the employee, for the employee has an absolute power to resign and the employer has no discretion to refuse to accept the resignation. See also the case of Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1.

It is not uncommon for Employee Handbooks to contain a clause that confers on the employer the right not to accept the resignation of an employee on grounds such as ‘on-going investigation’ and where the employee seeking to resign is under a contractual bond, the terms of which he is yet to finish serving. The courts have held such provisions to be unlawful and unenforceable. An employee has the right to resign with immediate effect, and to reject his rejection is tantamount to forced labour, and also against the time-honour labour law principle that an employer cannot force himself on an unwilling employee.

It is also common to find in the termination clause of some employment contracts that only the employer may make a payment in lieu of notice, while the employee is mandatorily required to give notice. The remedy available to the employer, where the employee, in such a case, resigns without notice would likely be damages and certainly not specific performance. In other words, such resignation would be treated as wrongful but not null and void.

In WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258, it was held that a notice of resignation is effective not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent; and that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to the employee paying any of his indebtedness to his employer.

Thus, once an employee tenders his resignation, he ceases henceforth to be an employee, regardless of a rejection of the resignation by the employer. The employee’s resignation would have immediate effect even where he continues to come to work after his resignation is tendered.

Rejection of retirement

The distinction is however, made in cases of retirement. A letter of retirement does not necessarily take effect from the date that it is received by the employer. The case of WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258  made a distinction between “resignation” and “retirement” with different legal consequences. Resignation carries with it the right to leave service immediately and automatically without any benefit subject to the employee paying any of indebtedness to his employer. Retirement, on the other hand does not confer such a right to leave service immediately and automatically. A further legal consequence of retirement is provided for in OSHC v. Shittu [1994] 1 NWLR (Pt. 321) 476, the court held that where an employee gives notice of his voluntary retirement to his employer, and the employer refuses to accept the notice, the position is that the employee is still in the employer’s service. However, it is only the employee who can rely on that notice in his favour and not the employer who rejected the notice. This would be particularly relevant for the computation of terminal benefits. This is because it has to be adjudged not only a deviation from “natural equity” but also contrary to law for an employer who is guilty of the irregularity of refusing a notice of voluntary retirement to turn around and benefit from that irregularity.

See also Osu v. PAN Ltd [2001] 13 NWLR (Pt. 731) 627, where the court held that the notice of retirement will appropriately expire at the stipulated periods regardless of directives from the employer that the employee should stop work before the date stipulated; as such an employee remains a staff of the employer up to and including the last day when the notice would have properly expired.