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Court cannot impose employee on unwilling employer

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Supreme court of Nigeria

OKWARA AGWU & ORS v. JULIUS BERGER NIGERIA PLC (2019) LPELR-47625(SC)
In the Supreme Court of Nigeria

ON FRIDAY, 17TH MAY, 2019

Suit No: SC.197/2011

Before Their Lordships

OLABODE RHODES-VIVOUR, JSC
JOHN INYANG OKORO, JSC
CHIMA CENTUS NWEZE, JSC
AMINA ADAMU AUGIE, JSC
PAUL ADAMU GALUMJE, JSC

Between

1. OKWARA AGWU
2. INNOCENT OBINNA
3.CHARLESONUMARA 4. OPARAOCHA LUIZ GARBA
5. OBIAKOR EDWIN
6. EKEH SPEAR

-Appellant(s)

And

JULIUS BERGER NIGERIA PLC -Respondent(s)

LEAD JUDGMENT DELIVERED BY PAUL ADAMU GALUMJE, J.S.C.

FACTS OF THE CASE
The appellants herein were staff of the respondent before they were declared redundant. The respondent had industrial problem with its workforce in Abuja that led to the closure of its activities on June 16, 1999. By a circular dated June 28, 1999, the respondent informed its workers that payment of salaries, wages and redundancy benefit for the period ending on June 15, 1999 will be made on June 30, 1999, July 2, 1999 and July 3, 1999.

The respondent’s workers felt threatened by the circular as they did not know who would be declared redundant. They collectively took out a writ of summons in a representative capacity on the July 1, 1999. This writ of summons was not accompanied with a statement of claim.

The appellants also filed a motion on notice on the 1st of July 1999, in which they sought for interlocutory injunctions. The writ of summons and the motion were served on the respondent.

As a follow up, learned counsel for the appellants’ wrote two letters dated the same 1st July 1999 to the respondent, warning it of the consequences of declaring any of the workers redundant during the pendency of the suit and the motion on notice.

The respondent ignored the Court processes and went on to declare the appellants’ redundant and paid their entitlements which they collected. After a futile attempt to commit the respondent for contempt of Court and invoking the interference of the police in the activities of the respondent, learned counsel for the appellant, by a motion on notice filed on the 4th of October 2000 at the High Court of the Federal Capital Territory, sought for the certain reliefs. The trial in its judgment, granted the appellants’ reliefs.

The respondent, dissatisfied with the ruling of the trial Court appealed to the Court of Appeal. The appellants, also dissatisfied with certain aspect of the ruling appealed to the Court of Appeal. In a unanimous judgment delivered on the 9th day of May 2011, the two appeals were allowed. The ruling and orders of the learned trial Judge were set aside. The suit was remitted to the trial Court to be heard by another Judge.

Dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION The Court determined the appeal on the issues formulated by the Appellant, as follows:
“(i) Whether the Court of Appeal was correct in Law to have dismissed the Appellants preliminary objection against the Respondent’s appeal at the Court below.

(ii) Whether their Lordships, the Learned Justices of the Court of Appeal were correct in the circumstances of the appeal before their lordships to have set aside the decision of the learned trial Judge and ordered for a retrial of the substantive suit before another Judge on the ground that the learned trial Judge decided the substantive suit of the appellants as endorsed on their writ of summons before the trial Court when it is obvious that the Respondent took Laws into its hand in order to foist upon the trial Court a fait accompli by declaring the appellants redundant during the pendency of the Appellants suit and motion on notice seeking for injunctive orders to restrain the respondent from declaring the appellants redundant pending the determination of the substantive suits.

(iii) Whether the Court of Appeal was correct in the circumstances of the appeal before it to have held that the learned trial Judge went beyond the reliefs sought on the motion paper thereby becoming a Father Christmas.”

APPELLANT’S COUNSEL SUBMISSION
On issue one, Appellant submitted that the Respondent’s appeal at the Court of Appeal was incompetent, as such the Court of Appeal lacked the jurisdiction to hear and determine same.

According to the Appellant, the 1st ground of appeal before the Court of Appeal was vague and against a decision that was not made by the trial Court. It was the Appellant further submission that the sole issue formulated at the Court of Appeal was predicated on the first ground of appeal. The Appellant made reference to the views of the Supreme Court in a number of cases that an appeal must always be against the ratio decidendi of the decision against which the appeal lies.

RESPONDENT’S COUNSEL SUBMISSION
On issue one the Respondent submitted that the 1st ground of appeal to the Court of Appeal disclosed a reasonable complaint against the ruling of the learned trial Judge. According to the Respondent, the ground is brief, precise, simple, clear and easy to understand as such it is not vague.

RESOLUTION OF ISSUES
In resolving issue one, the Court held that there is an exception to the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. According to the Court, in order to accommodate certain unforeseen circumstances, where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision or constitute a challenge to its ratio decidendi.

On the Appellants complaint that the ground of appeal is vague, the Court held that the essence of a ground of appeal is to give notice to the adverse party of what he is expected to encounter at the appellate Court. Once it is clear and fully understood by the opponent, it cannot be declared incompetent and that the Appellants have not complained that they did not understand what the ground meant. The Court found the first ground of appeal clear not misleading.

According to the Court, in the instant case, the Court of Appeal was right when it overruled the preliminary objection in order to consider the complaint embedded in the first ground of appeal.

In resolving issue two, the Court held that the law is settled that in dealing with any interlocutory application, the Court should not delve into the substantive issues. A Court must avoid the determination of a substantive issue at interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues capable of prejudging the substantive issues before the Court.

According to the Court in an interlocutory matter, Courts are enjoined to talk less in the determination of the prayers submitted for resolution. Where the prayers overlap with the substantive claims, it is safer to refuse such application and order for the hearing of the substantive matter. The Court found the findings of the Court of Appeal correct when it set aside the decision of the trial Court and ordered for a trial of the substantive suit before another Judge.

Resolving issues three, the Court held that the Court of Appeal was right when it held that the trial Judge went beyond the reliefs sought on the motion paper.

According to the Court, the Respondent was aware of the pending suit, by reason of the service of the Court processes on it and that since it failed to stay action pending the determination of the suit, the best option opened to the appellant was to initiate contempt proceedings against the Respondent, being a public liability company and the Appellants being its employees.

A Court will not compel an unwilling employer to retain employees it does not need. The only thing a Court can do is to order for payment of all entitlement of the employees, based on the provisions of the contract of employment. Conclusively, the Court held that the order made by the trial Court deeming the Appellant as the employees of the Respondent was beyond its powers, and the Court of Appeal was right when it set those orders aside.

HELD
In conclusion, the Court found the appeal lacking in merit and consequently dismissed same.

Appearances:
S. C. Peters, Esq. with him, Hilary Ugwu, Esq., Joshua Akor, Esq., Dirrine Davies, Esq. and E. B. Ezekiel, Esq. -For Appellant(s)
L. Olaseinde Karim, Esq. with him, Joseph Oche, Esq. -For Respondent(s)
Compiled by LawPavilion


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