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CaseLaw

Jack V. SHELL (2002) CLR 7(o) (SC)

Judgement delivered on July 12th 2002

Brief

  • Affidavit evidence

Facts

Plaintiff/Appellant was a former employee of the Defendant/Respondent Company. He faced allegations of misconduct before a panel set up to investigate the allegations. The panel was yet to finish its assignment when the Appellant sued the Respondent seeking an order quashing or setting aside the decision of the Defendant to terminate or dismiss him.

Appellant also sought an interim injunction restraining the Defendant, its servants agents or privies from interfering with the normal course of the Plaintiff's employment pending the determination of the substantive suit. This was granted. The Court also ordered the Plaintiff to enter into an undertaking to indemnify the Defendant to the tune of the N50,000.00 (Fifty Thousand Naira) should at the end the motion on "Notice is found to be frivolous.

The Court heard arguments on the motion on notice on 29th August 1997 and in a reserved ruling the Plaintiff's prayers were granted. As at the time the orders were made pleadings had not been filed.

Dissatisfied the Defendant/Respondent appealed to the Court of Appeal and on 11/9/97 brought a motion on notice before that Court praying for an order directing departure from the rules in force to waive and dispense wholly with the preparation and filing of briefs of arguments, an order that the appeal be heard on the bundle of papers marked Exhibit' A" and an order granting an accelerated hearing of the appeal. The motion was supported by affidavit.

The Plaintiff did not file a counter-affidavit challenging the correctness of the depositions. Rather, when the motion came up for hearing his learned Counsel, L.E. Nwosu Esquire, did not oppose the motion. The Application was granted as prayed and the following orders were made by the Court of Appeal;

  • a
    That the application is granted
  • b
    That the bundle of papers compiled as Exh. A shall be the record of appeal in this matter
  • c
    That the Respondent shall be at liberty to file such additional paper (papers) as he deems necessary.
  • d
    That the appeal shall be heard without brief.
  • e
    Appeal is adjourned to 20/1/98 for hearing."

Pursuant to the order of the Court of Appeal, the Plaintiff filed in Court a copy of the Notice of Discontinuance of the action he had on 24/9/97 filed in the registry of the trial Court.

At the hearing of the appeal on 20th January 1998, Mr. Nwosu for the Plaintiff raised a preliminary objection to the appeal on the grounds (1) that there was no evidence that the appeal was filed in the trial Court; (2) that the copy of the ruling of the trial Judge contained in the record of appeal was not certified; (3) that all the grounds of appeal being of mixed law and fact, no leave was sought nor obtained before the appeal was lodged, it being an interlocutory appeal-Section 221 of the 1979 Constitution was relied upon and (d) that there was no litis between the parties in that the Plaintiff had to the knowledge of the Defendant discontinued the action by a notice Filed on 24/9/97.1 need mention that Mr. Nwosu raised this preliminary objection after Chief Akinjide, S.A.N. for the Defendant had argued the appeal and without filing a notice of preliminary objection as required by the rules of the Court of Appeal. Though Chief Akinjide objected to his being taken by surprise, the Court below ruled that Mr. Nwosu should argue the objection along with the appeal and a comprehensive decision was to be given later.

At the end of the hearing of the appeal, the Court below adjourned for judgment and in a well-considered judgment delivered later, it overruled the Plaintiff's preliminary objection, allowed the Defendant's appeal and set aside all the orders made in the ruling given by the learned trial Judge on 3rd September 1997. Uwaifo J.C.A. as he then was, in his lead judgment, with which Katsina-Alu J.C.A., as he too then was and Nsofor J.C.A. agreed, found: -

  • 1
    " It has since been known that the Notice of Appeal was indeed filed at the lower Court for an amount of N59.00 paid for on receipt No.000050562 dated 11/9/97."
  • 2
    ......................." the document containing the ruling in question is a public document and having been signed by the trial Judge, P.N.C Agumagu J., under and by virtue of section 74(1)(j) of the Evidence Act, judicial notice shall be taken by this Court of his name as an officer of the Court. Section 94(2) of the Evidence Act makes the signed copy of the ruling given to the Appellant primary evidence of a public document not secondary evidence needing certification. The said section 94(2) provides that where a document has been executed in several parts, each part shall be primary evidence of the document. It may safely be assumed that a copy of the ruling in question is one of the multiple copies signed by the trial Judge. It therefore satisfies the requirement of section 96 which says that documents must be proved by primary evidence except by secondary evidence in its place as provided in section 97 (for example)."
  • 3
    "It is not well-known that no leave is required to appeal against the grant or refusal of an injunction."
  • 4
    "I think it cannot be denied that when an advantage has been obtained by a Plaintiff in a suit before it was discontinued, an aggrieved party who has an arguable issue in order to get rid of that advantage which indeed is a disadvantage to him is entitled to pursue that appeal. It is a different situation if in an appeal there is nothing left to be achieved and no subsisting order of Court which affects the Appellant that would need to be dealt with: See Ogbonna v. The President (W) 5 NWLR (Pi. 504) 281 at 287. That is not (he position here. The Appellant is entitled to complain that it has at least been hamstrung by the ruling in question in the running of its affairs as regards ensuring the maintenance of its business principles and ethics, among other objectives. In Sun-life Assurance Company of Canada v. Jervis (1944) AC III at 114 cited in Ogbonna v. The President (supra), Viscount Simon L.C. observed-...............................I think its is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.' The Appellant says the lower Court has virtually prevented it from enforcing discipline or publishing or acting on the report of an investigating panel in totality, and that this has created an impossible situation in its implementation. That is a living issue appropriate for an appeal. If that be so, the Appellant has the right to pursue this appeal as a living issue."

Issues

  • i
    Whether the Court of Appeal was justified in taking into consideration...

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