CORAM

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PARTIES

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REGISTERED TRUSTEES IKOYI CLUB 1938 APPELLANTS

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MR. TIMOTHY IKUJUNI RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The claim of the Plaintiff/Respondent at the trial court was that, he was an employee of the Defendant/Appellant from the year 1995 where he joined as a junior staff employee, and remained in the employment until the year 2009, when the employment was terminated by the Appellant on ground of ongoing restructuring or reorganization of same, which rendered his services no longer required. The Respondent also claimed that at the time of the termination, he was a senior staff employee and that the conditions of service of the employment for senior employees of the Appellant at the time, were as codified and contained in the Standard Regulations and Conditions of Service for Senior Employees, 2009, called the Handbook. As a result of the Appellant’s failure to pay to the Respondent the redundancy benefit, provided for in the Handbook for senior staff of the Appellant whose employment was terminated on ground of reorganization, the Respondent commenced an action at the National Industrial court vide a General Form of Complaint issued and signed by the Registrar of the court where he claimed monetary reliefs as entitled. On the contrary, the Appellant denied that the Handbook governed the Respondent’s employment on the ground that he did not sign the acknowledgement slip of the Handbook and return it to the Appellant. It also claimed that the Respondent had commenced the action on a wrong process of court. At the end of trial, the court held that the Respondent was entitled to the redundancy allowance and has commenced the action with the proper process of court by virtue of National Industrial Court Rules 2007, which was the Rules of court in operation at the time of the action. Dissatisfied, the Appellant has now appealed to this court,

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HELD

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Appeal Dismissed, Cross Appeal Dismissed

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ISSUES

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Whether the lower Court had jurisdiction to hear this action, in the face of the obvious incompetence of the originating complaint, the foundation of the action in the lower court. Since the entire pleadings and evidence before the trial court showed that the Respondent never accepted and acknowledge receipt of the Ikoyi Club 2008 Handbook by signing the tear-off portion attached to the Handbook, how could the lower court find that the Respondent established the existence of an applicant’s Condition of Service capable of sustaining his action, without breaching the Appellant’s right to fair hearing? Assuming without conceding, that the Ikoyi Club Handbook 2008 applied to the respondent’s employment, did the respondent provide pleading and evidence to ground the factual basis on which redundancy payments in accordance with the said handbook could be calculated and awarded by the lower court, in the absence of this supporting pleading and evidence, was the lower court not in gross error by the manufacture of non-existent evidence to support its decision.

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RATIONES DECIDENDI

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APPEAL REPLY BRIEF- PURPOSE FOR FILING A REPLY BRIEF

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“The submissions in the Appellant Reply brief on the appeal are mere reaction or response to every point canvassed in the Respondent’s brief which answered the arguments of the issues in the Appellant’s brief. As a reminder, the provisions of Order 19, Rule 5(1) of the Court of Appeal Rule, 2016 are that: –
The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.
As can easily be seen in these simple and clear provisions, the only purpose for which a Reply brief is to be filed by an Appellant in an appeal is to deal with and answer all new points arising from the Respondent’s brief. A Reply brief only becomes necessary where and when new points are raised in the Respondent’s brief which were not canvassed in the Appellant’s brief and which require response or answer from the Appellant”.

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REPLY BRIEF – INSTANCE WHERE IT WILL BE UNNECESSARY TO FILE A REPLY BRIEF

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“Where no new points were raised in the Respondent’s brief, but only points/issues canvassed in the Appellant’s brief were responded to, a Reply brief from an Appellant is unnecessary and so uncalled for as it is not an avenue to further argue points already canvassed in the Appellant’s brief by way of responding to every point argued in the Respondent’s brief. A Reply brief cannot also be properly used as an avenue to merely repeat arguments in the Appellant’s brief on the pretext of responding to all and every arguments contained in the Respondent’s brief or as a repair it to further argue and fortify the merit of the issues canvassed in the Appellant’s brief. It is provided for by the Rules of the court for the strict purpose of answering or dealing with only new points arising from the Respondent’s brief and no more and where it not so confined, it would be liable to be discountenanced by the court. See Olafisoye v. FRN (2004) 1 SC (Pt. II) 27, (2004) 4 NWLR (864) 580; Ikine v. Edjerode (2001) 12 SC (Pt. II) 94; Longe v. FBN, Plc (2010) 2-3 SC, 61; Okpala v. Ibeme (1989) 2 NWLR (102) 208; Ajileye v. Fakayode (1998) 4 NWLR (545) 184; Agwasun v. Ejivumerwerhaye (2001) 9 NWLR (718) 395, Basinco Motors Limited v. Woermann Line (2009) 13 NWLR (1157) 149.”

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WRITTEN CONTRACT- EFFECT OF A WRITTEN CONTRACT ON THE RIGHTS AND OBLIGATIONS OF PARTIES TO WHICH IT APPLIES

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“In Olaniyan v. University of Lagos (1985) 1 NWLR (9) 599, it was held by the Supreme Court that: –
Contracts of employment like all other contracts, their creation and termination are both subject to general principles governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated.
In P.A.N. v. Oje (1997) 11 NWLR (530), it was stated and held that: –
Where parties have agreed to be bound in their relationship by written agreements, such contract must be governed by the terms of the contract.
Since the Handbook is admittedly the foundation of the contract of employment between the Appellant and the Respondent and it contains the terms and conditions of the employment, it was applicable to the employment of the Respondent and both he and the Appellant are bound by the terms and conditions set out therein. See Osawekwe v. Nigeria Paper Mill Limited (1998) 7 SCNJ 222 @ 231, (98) 10 NWLR (568) 1, Donier Aviation Nigeria AIEP Limited v. Captain Oluwadare (2007) 7 NWLR (1033) 336, UBN Limited v. Ogboh (1995) 2 NWLR (380) 647.”

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ADMITTED FACTS – FACTS ADMITTED REQUIRES NO FURTHER PROOF

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“The law, by dint of Section 123 of the Evidence Act, 2011 Owosho v. Dada (1984) 7 SC, 149, Akibu v. Oduntan (1992) 2 NWLR (222) 210 @ 226, Nwakama v. Military Administrator, Abia State (1995) 4 NWLR (388) 185, United Nigeria Industries Company Limited v. Universal Commercial Industires Company Limited (1999) 3 NWLR (593) 17 @ 25, is that a fact admitted needs and requires no further proof.”

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BURDEN OF PROOF- ON WHO LIES THE BURDEN OF PROVING THE EXISTENCE OF A FACT

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“It was the Appellant who made and raised the allegation that the Respondent did not sign and acknowledge the Handbook, even though he continued to render service to the Appellant as a member of its senior staff without any question, that owed the duty and bore the burden of proving the allegation since the law is that such a duty and burden is on a party who alleges; whether in positive or negative of a fact. See Oba Aladegbemi v. Oba Fasanmade 91988) 6 SCNJ, 103, Imana v. Robinson (1979) 3-4 SC (Reprint), Plateau State v. Attorney General of Federation (2006) 3 NWLR (967) 345 @ 47, Nduul v. Wayo (18) LPELR-45151 – (SC).”

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BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROVING THE EXISTENCE OF A FACT

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“Since the oral evidence of the Appellant was effectively challenged and controverted by the Respondent’s evidence, the duty or burden of providing cogent, satisfactory and sufficient evidence to show and prove the existence of the agreement alleged, was on the Appellant, as the party who asserted the fact, if it hoped that the imaginary scale on which the evidence adduced was placed by the trial court in order to assess, evaluate and weigh it, was to tilt on its side. Section 131(1), 133(1) and 136(1) of the Evidence Act, 2011, NEPA v. Akpala (1991) 2 NWLR, (175) 536, Ezemba v. Ebeneme (2004) 7 SC (Pt. 1) 45, Dagaci of Dere v. Dagaci of Ebira (2006) ALLFWLR (306) 786 and Adighije v. Nwaogu (2010) 12 NWLR (1209) 414, represent the position of the law on the requirement”.

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GROUND OF APPEAL- WHETHER A SINGLE GROUND OF APPEAL CAN BE USED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION

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“The law is now very elementary in the Appellate Courts that whereas multiple grounds of an appeal can be used to formulate a sole issue for determination in an appeal, a single ground of appeal cannot be used to for determination in the appeal, a single ground of appeal cannot be used to formulate more than one (1) issue for determination in the appeal. See Agbetoba v. Lagos State Ex. Council (1991) 6 SCNJ 1 @ 12, (1991) 4 NWLR (188) 664; Aniekwe v. Okreke (1996) 6 NWLR (452) 60; Yusuf v. Akindipe (2000) 8 NWLR (669) 376; Amaeze v. Anyasi (1993) 5 NWLR (291) 1 @ 30; Utih v. Onoyvwe (1991) 1 NWLR (166) 166 @ 214; Oyekan v. Akinrinwa (1996) 7 NWLR (459) 128 @ 136.”

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AWARD OF POST JUDGMENT INTEREST- WHETHER AN AWARD OF POST JUDGMENT INTEREST IS DISCRETIONARY

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“Admittedly, the award of post judgment claimed by the Cross Appellant is discretionary under the provisions of Order 21, Rule 4 of the trial Court’s Rules and established judicial position as demonstrated in the cases cited by learned Counsel supra. Order 21, Rule 4 of the 2007 Rules of the trial court says that –
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.
These provisions are similar to the provisions of Order 38, Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994 interpreted in the case of Churchgate Nig. ltd v. Uzu (2005) LPELR-11404(CA) where it was held that-
The award of interest post judgment is statutory…..It lies entirely at the discretion of the trial court after delivery of judgment.”

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JUDICIAL DISCRETION – MANNER IN WHICH A COURT IS REQUIRED TO EXERCISE ITS JUDICIAL DISCRETION

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“It is a settled principle of law that a judicial discretion donated to a court of law either by statutes or its Rules of procedure, is required to be exercised both judicially and judiciously by authorities such as Beredingo v. College of Science & Tech. (1991) 4 NWLR (187) 651; F. D. Nig. Ltd. v. Anaemene (2006) ALLFWLR (3001) 1915; Olusola v. Tursthouse Prop. Ltd. (2010) 8 NWLR (1195) 1.”

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JUDICIAL DISCRETION- CONDITION UPON WHICH AN APPELLATE COURT WOULD INTERFERE WITH THE EXERCISE OF DISCRETION OF A TRIAL COURT

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“The law is also firmly established that an appellate court would not interfere with the exercise of trial court’s discretion on the ground only that it would have exercised the discretion differently on some or even all the facts of the case. An appellate court would only have a reason and indeed, a duty to interfere with the exercise of a discretion by a trial court or lower court when it is satisfied that the discretion was not exercised judicially and judiciously in the peculiar circumstances of a case. Ogolo v. Ogolo (2006) ALLFWLR (313) 1; Nwadiogbu v. A. I. R. B. D. A. (2010) 19 NWLR (1226) 364; Oyekanmi v. NEPA (2000) 15 NWLR (690) 414; UBA Plc. v. A. C. B. Nig. Ltd. (2005) 12 NWLR (939) 232; Asari-Dokubo v. FRN (2007) 12 NWLR (1048) 320.”

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JUDICIAL DISCRETION- PURPORT OF AN EXERCISE OF JUDICIAL DISCRETION JUDICIALLY AND JUDICIOUSLY

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“To exercise a judicial discretion judicially, imports a consideration of the interests of both sides and weighing them evenly, in order to arrive at a just and fair decision. The exercise of a judicial discretion judiciously, on its part, means in the consideration of the interests of the parties and weighting them, the court would proceed from and show sound judgment marked by discretion, wisdom, discernment, good sense and reasoning in arriving at its decision in the case. Eronini v. Iheuko (1989) 2 NWLR (101) 46 @ 60 and 61; ACB Ltd. Nnamani (1991) 4 NWLR (186) 486; Onagoruwa v. IGP (1991) 5 NWLR (193) 593.”

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RULES OF COURT- BINDING EFFECT OF THE RULES OF COURT ON PARTIES AND THE COURT IN THE CONDUCT OF JUDICIAL PROCEEDINGS

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“Generally speaking, the law is that Rules of a court are binding on the court and parties in the conduct of its judicial proceeding which they are enacted, as subsidiary legislation, to govern and regulate. Both the court and parties therefore have the duty and owe the obligation to obey and comply with the Rules of court. U. I. C. ltd v. T. A. Hammond Nig. Ltd (1998) 9 NWLR (56) 650; Disu v. Ajilowura (2001) 4 NWLR (702) 76; Ezeanah v. Attah (2004) 7 NWLR (873) 468; Igwe Uzur & Sons Ltd. v. Onwuzor (2007) 4 NWLR (1024) 303.”

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MONEY JUDGMENT- GROUNDS ON WHICH MONEY JUDGMENT SHOULD ATTRACT THE AWARD OF INTEREST IN COMMERCIAL TRANSACTIONS

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“The principle of law that money judgment should ordinarily attract the award of interest thereon applies to commercial transactions on the ground, primarily, that: –
That the plaintiff was denied the use of his money without justification by the defendant and
That the defendant kept the money for its own use during the relevant period. NGSC Limited v. NPA (1990) 1 NWLR (129) 741, Hausa v. FBN, Plc (2000) 9 NWLR (671) 64, NBN Limited v. S.C.D.C. Limited (1998) 5 NWLR (548) 144.”

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CASES CITED

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None

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STATUTES REFERRED TO

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Court of Appeal Rules, 2016|Evidence Act, 2011|National Industrial Court Rules, 2007 (now 2017)|

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