ALHAJI AZIZI YAKUBU v. SUNNY INEDE & ANOR.
March 31, 2025LIYA JOSHUA FRAPS & ANOR v. TARABA INVESTMENT AND PROPERTIES LIMITED & ANOR
March 31, 2025Legalpedia Citation: (2020) Legalpedia (CA) 11199
In the Court of Appeal
HOLDEN AT LAGOS
Sun Jul 19, 2020
Suit Number: CA/L/875/2017
CORAM
MUHAMMADU SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE SUPREME COURT
MUHAMMADU SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE SUPREME COURT
PARTIES
JOHN HOLT PLC
MARTYIN NWABUWA
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Respondent was a Senior Executive with the Appellant Company. Upon his compulsory retirement by the Appellant, he instituted proceedings before the National Industrial Court of Nigeria contending that he was not paid his full entitlement consequent upon his compulsory retirement. He claimed the following reliefs; an order directing the Defendant to pay to the Claimant the sum of N11,227,459.24 (Eleven Million, Two Hundred and Twenty-seven Thousand, Four Hundred and Fifty-nine Naira, Twenty-four Kobo), being the aggregation of the sums wrongly withheld from the Claimant since he prematurely retired from the employment of the Defendant on 16th October 2009; an order directing the Defendant to pay interest on the said sum at the rate of 18% per annum from October 2009 until Judgment and thereafter at the rate of 15% per annum until the whole sum is paid to the Claimant by the Defendant; an order of exemplary and punitive damages against the Defendant and in favour of the Claimant and an order directing the Defendant to pay to the Claimant the cost of prosecuting this Suit in the sum of N1,500,000.00. At the conclusion of the trial, the lower Court entered judgment in part for the Respondent. Dissatisfied with the judgment, the Appellant appealed against same.
HELD
Appeal Dismissed
ISSUES
Whether the Appellants right to fair trial and fair hearing was not breached when the learned trial judge failed, neglected or refused to consider or properly evaluate essential, credible and compelling evidence of the Appellant and wrongly and unjustly awarded the sum of N8,211,310.70 as gratuity, entitlement and the sum of N2,683,434.90 as six months salary in lieu of notice to the Respondent. Whether the Appellants right to fair hearing was not breached when the learned trial judge proceeded suo motu to award pre-judgment interest of 10% per annum on the judgment sum, commencing retroactively on an imprecise, unspecified and speculative date in October, 2009 without inviting the parties or their counsel to address the Court on the issue. Whether there was no miscarriage of justice when the lower Court gave judgment against the weight of evidence and when the Claimant (now Respondent) failed to establish his claims by any credible evidence.
RATIONES DECIDENDI
APPEALS FROM DECISIONS OF THE NATIONAL INDUSTRIAL COURT – INSTANCES WHEN AN APPEAL WOULD LIE AS OF RIGHT AND WITH LEAVE OF COURT TO THE COURT OF APPEAL
“The knotty and vexed issue of whether appeals lie from the decisions of the National Industrial Court and in what circumstances has now been laid to rest by the decision of the Supreme Court in Syke Bank vs. Iwu (2017) LPELR (42595) 1 at 64-66. The inscape of the ex cathedra pronouncement of the apex Court in Syke Bank vs. Iwu (supra) is summed up in the dictum of Nweze, JSC as follows:
In all then, on a holistic interpretation of Section 240 and 243(1) of the 1999 Constitution, appeals lie from the trial Court to the Lower Court, that is, all decisions of the trial Court are appealable to the Lower Court: as of right in criminal matters, [ Section 254C (5) and (6) ] and Fundamental Rights cases [ Section 243 (2) ]; and with the leave of the Lower Court, in all other civil matters where the trial Court has exercised its jurisdiction, Section 240 read conjunctively with Section 243 (1) and (4) .
So the now settled legal position is that appeals lie from decisions of the National Industrial Court to this Court. In criminal cases, the appeals lie as of right.
In civil matters, the appeals lie as of right on grounds or questions of fundamental rights and with leave of Court in respect of any other grounds or questions that do not involve fundamental rights. I have closely examined the Records and it is apparent that the Appellant did not obtain leave of Court to appeal. It appealed as of right. So, being a civil matter, the success of the appeal would only depend on whether, in fact, the Appellants right to fair hearing was breached. It would not suffice to show that the evaluation of the evidence was wrong and that a different decision would have been arrived at if the evidence had been properly evaluated. For the jurisdiction of this Court to be successfully invoked in that regard against the decision of the lower Court, leave of Court would be necessary to appeal on grounds not being grounds of fundamental rights: Skye Bank vs. Iwu (supra)”.
APPEAL AS OF RIGHT – NATURE OF ERRORS THAT CAN BE CORRECTED BY AN APPELLATE COURT
“It has to be remembered that a trial Court can make mistakes in the course of trial and in the evaluation of evidence leading to its decision. It is on account of this that the law in its wisdom creates the appellate process where such errors can be corrected. In the context of this appeal, however, given that the Appellant appealed as of right against the decision of the lower Court, it is only such errors that constitute a violation of the Appellants right to fair hearing that can be corrected; not any errors made by the lower Court after having duly afforded the parties a fair hearing. This is the inevitable consequence of the Appellant having appealed as of right, within the narrow window of Section 243 (2) of the 1999 Constitution as amended.
FAIR HEARING – MEANING OF THE TERM FAIR HEARING WITHIN THE CONTEXT OF SECTION 36 (1) OF THE 1999 CONSTITUTION
“Now, fair hearing envisages that the parties to a case should be given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the case should be fair and impartial. See Elike vs. Nwakwoala (1984) 12 SC 301 and Alsthom S. A. vs. Saraki (2005) LPELR (435) 1 at 23. But what is fair hearing? In Mohammed vs. Kano N. A. (1968) 1 ALL NLR 42, Ademola, CJN stated:
It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.
Section 36 (1) of the 1999 Constitution dealing with fair hearing is designed to ensure that in the administration of justice, parties must each be accorded every opportunity of canvassing their case within the rules regulating the procedure: Nigerian-Arab Bank Ltd vs. Comex (1999) 6 NWLR (PT. 608) 648 and Atobatele vs. Faseru (2012) LPELR (9305) 1 at 20-21. So what does fair hearing entail? Hear my Lord Galadima, JSC in Duke vs. Govt Of Cross River State (2013) LPELR (19887) 1 at 18:
The term fair hearing within the context of Section 36 (1) of the 1999 Constitution , is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.
See also Esabunor vs. Faweya (2019) LPELR (46961) 1 at 23”.
FAIR HEARING – NATURE AND ESSENCE OF FAIR HEARING
“Expounding the law on the nature and essence of fair hearing, the apex Court (per Ariwoola, JSC) asseverated in Okanlawon vs. The State (2015) LPELR (24838) 1 at 52-53:
The principle of fair hearing as constitutionally guaranteed in Section 36 of the 1999 Constitution , no doubt is derived from the principle of Natural Justice with its twin pillars of audi alterem partem and nemo judex in causa sua. This principle of fair hearing is no doubt fundamental to the administration of justice. The Court is required to conduct trial or hearing of a case with all fairness to both parties to the suit without bias or partiality in favour of or against either party. It is noteworthy that complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance.
See also Pam vs. Mohammed (2008) 5-6 SC (PT. 1) 83, Deduwa vs. Okorodudu (1976) NMLR 236 at 246 and Nwokocha vs. A-G Imo State (2016) LPELR (40077) 1 at 24-25”.
BREACH OF FAIR HEARING – WHETHER CONSIDERATION OF THE EVIDENCE OF A PARTY AMOUNTS TO A BREACH OF FAIR HEARING
“Let me hasten to state that it would amount to a breach of fair hearing when the procedure adopted in making findings of facts, is such that only the evidence of one side was considered and the evidence of the other side was not considered in the evaluation of evidence: Tippi vs. Notani (2010) LPELR (5030) 1 at 23”.
AWARD OF INTEREST – PURPORT OF ORDER 47 RULE 7 OF THE RULES OF THE LOWER COURT ON THE AWARD OF INTEREST
“Order 47 Rule 7 of the Rules of the lower Court seems to empower the lower Court to make the rolled-up award of interest in the manner it. The said provision stipulates as follows:
7. The Court may at the time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment.
The above provision is in contradistinction to the Civil Procedure Rules of the Uniform Rules of the High Court, which stipulates that the order for interest is to be reckoned from the date of the judgment.
MISCARRIAGE OF JUSTICE –WHAT AMOUNTS TO MISCARRIAGE OF JUSTICE?
“Now, what constitutes a miscarriage varies from case to case as the concept is denoted by the facts of the given case. Put simply, miscarriage of justice is a failure of justice. Miscarriage of justice is the failure on the part of the Court to do justice. It is justice misplaced, misappropriated or misappreciated. See Oguntayo Vs. Adelaja (2009) 15 NWLR (PT. 1163) 150 or (2009) LPELR (2353) 1 at 43-44. Miscarriage of justice occurs when a Court fails or refuses to follow the Rules. It is the diacritical circumstances of the complaint of breach of fair hearing that will contextualize whether there has been a miscarriage of justice. The miscarriage of justice on the basis of which an Appellate Court will interfere is where the violation of some principle of law or procedure is such that if corrected, a different result will be the outcome; or it may be the neglect of some principle of law or procedure which if it had not been neglected, a different result will be the outcome: Dagaci Of Dere vs. Dagaci Of Ebwe(2006) 7 NWLR (PT. 979) 382 or (2006) LPELR (911) 1 at 42 .
FAIR HEARING – CONCEPT OF FAIR HEARING
“The harbour looms into sight and as I begin to navigate the vessel of this judgment to berth at the quays, I restate that fair hearing connotes a trial in which the authority of the Court has been fairly exercised, consistent with the fundamental principles of justice embedded within the precepts of due process of law. This involves giving the parties equal opportunity to prepare for their case, present their evidence, cross examine witnesses and for the trial Court to make its findings based on the evidence adduced: Womiloju vs. Anibire (2010) 10 NWLR (PT. 1203) 545, Omoniyi vs. General Schools Board, Akure (1988) 4 NWLR (PT. 89) 449 and Whyte vs. Jack (1996) 2 NWLR (PT 431) 407. By all odds, it cannot be confuted that the lower conducted the proceedings before it in accordance with the principles of fair hearing. There was no denial of fair hearing, since both parties were given the opportunity of a hearing and the opportunity was utilized by the parties and the lower Court was even-handed in its approach and decision. Without a doubt, a reasonable person who was present at the trial would have left with the observation that justice was done in the case. See Agbahomovo vs. Eduyegbe (1999) LPELR (224) 1 and Ardo vs. INEC (2017) LPELR (41919) 1.
BREACH OF FAIR HEARING- INSTANCE WHEN A COMPLAINT OF BREACH OF FAIR HEARING WILL AVAIL A LITIGANT
“The complaint of breach of fair hearing can only be raised and avail a litigant when in fact the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in Adebayo vs. A-G Ogun State (2008) 7 NWLR (PT. 1085) 201 at 205-206 or (2008) LPELR (80) 1 at 23-24:
Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the Constitution is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.<br< p=””></br<>
See also Kolo vs. COP (2017) LPELR (42577) 1 at 45-46, Magaji vs. Nigerian Army (2008) 8 NWLR (PT. 1089) 338 and Brossette Manufacturing Ltd vs. M/S Ola Ilemobola Ltd (2007) 14 NWLR (PT. 1053) 109 at 139.
COURT – PRIMARY DUTY OF A COURT, VIS-A-VIS TO FAIR HEARING
“It is settled law, beyond any peradventure of doubt, that the primary duty of a Court, vis-a-vis to fair hearing, is to create the congenial firmament, in an egalitarian manner, for feuding parties before it to ventilate their grievances. The charge of perfunctory evaluation of evidence, which is the keystone of the appellants appeal, cannot, under any guise or stretch of imagination, snowball into an erosion of its inalienable right to fair hearing as enshrined in the sacrosanct provision of Section 36 (1) of the Constitution, as amended . The reason is plain. It was duly heard before the lower Court delivered its decision, see Dec Oil & Gas Ltd. V. Shell (Nig) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273 .
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 as amended|National Industrial Court of Nigeria (Civil Procedure) Rules 2017|
