REGISTERED TRUSTEES IKOYI CLUB 1938 v. MR. TIMOTHY IKUJUNI
(2019)LCN/12867(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2019
CA/L/405/2014
RATIO
APPEAL: WHETHER MULTIPLE GROUNDS OF APPEAL CAN FORMULATE ISSUE FOR DETERMINATION
“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 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. Okereke (1996) 6 NWLR (452) 60; Yusuf v. Akindipe (2000) 8 NWLR (669) 376; Anaeze v. Anyaso (1993) 5 NWLR (291) 1 @ 30; Utih v. Onoyivwe (1991) 1 NWLR (166) 166 @ 214; Oyekan v. Akinrinwa (1996) 7 NWLR (459) 128 @ 136” PER MOHAMMED LAWAL GARBA, J.C.A.
CONTRACT: WHERE THE CONTRACT OF EMPLOYEMENT IS STATED IN AN HAND BOOK
“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 Osakwe v. Nigeria Paper Mill Limited (1998) 7 SCNJ 222 @ 231, (98) 10 NWLR (568) 1, Dornier Aviation Nigeria AIEP Limited v. Captain Oluwadare (2007) 7 NWLR (1033) 336, UBN Limited v. Ogboh (1995) 2 NWLR (380) 647.” PER MOHAMMED LAWAL GARBA, J.C.A.
COURT AND PROCEDURE: BURDEN OF PROOF
“…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. Ibeneme (2004) 7 SC (Pt. 1) 45, Dagaci of Dere v. Dagaci of EbWa (2006) ALL FWLR (306) 786 and Adighije v. Nwaogu (2010) 12 NWLR (1209) 414, represent the position of the law on the requirement.” PER MOHAMMED LAWAL GARBA, J.C.A.
COURT AND PROCEDURE: JUDICIAL DISCRETION
“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 Beredugo v. College of Science & Tech. (1991) 4 NWLR (187) 651; F. D. Nig. Ltd. v. Anaemene (2006) ALL FWLR (3001) 1915; Olusola v. Trusthouse Prop. Ltd (2010) 8 NWLR (1195) 1. The law is also firmly established that an appellate Court would not interfere with the exercise of trial Courts 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) ALL FWLR (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.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR justice of The Court of Appeal of Nigeria
Between
REGISTERED TRUSTEES IKOYI CLUB 1938Appellant(s)
AND
MR. TIMOTHY IKUJUNIRespondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
This appeal is from the judgment delivered by the National Industrial Court sitting in Lagos on the 24th March, 2014 in favour of the Respondent for redundancy benefit arising from his disengagement as an employee of the Appellant.
From the ten (10) grounds contained on the Further Amended Notice of Appeal filed on 13th October, 2017, deemed on 16th October, 2017, three (3) issues are submitted in the Appellants Amended brief filed on the 13th October, 2017 and also deemed on the 16th October, 2017 as follows: –
1. 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.
(Ground 1 of the Further Amended Notice of Appeal)
2. 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 applicants Condition of Service capable of sustaining his action, without breaching the Appellants right to fair hearing?
(Ground 2,3,4,5,6 and 7 of the Further Amended Notice of Appeal)
3. Assuming without conceding, that the Ikoyi Club Handbook 2008 applied to the respondents 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. (Ground 8, 9 and 10 of the Further Amended Notice of Appeal)
Also dissatisfied with the non grant of the post judgement interest claimed on the judgement debt, the Respondent filed a Notice of Cross Appeal on 30th October, 2017 containing a sole ground of appeal and the Respondent/Cross Appellants brief in which he raised similar issues for determination in the appeal, as those of the Appellant.
Two issues, which I would deal with later, were formulated for decision in the cross appeal.
Because they are derivable from the grounds of appeal and represent the specific complaints by the Appellant against the decision of the trial Court, I would use the appellants issues to determine the merit of the appeal.
Appellants Arguments
On issue 1, citing Order 3 Rule 10 (c)(i) of the 2017 Rules of the trial Court and the case of Ojokolobo v. Alamu (1987) 3 NWLR (1961) 377 @ 394, it is contended that though the Respondents complaint was filed before the trial Court in 2012, the 2017 Rules of that Court applied to the case and because the complaint was not signed either by the Respondent or his Counsel, the action was incompetent and the trial Court lacks the jurisdiction to entertain it. That the 2017 Rules do not have saving provisions for the 2012 Rules of the trial Court to apply to the Respondents case.
On Issue 2, it is submitted that since there was no pleading and evidence before the trial Court to show that the Respondent accepted and acknowledged receipt of the Appellants Handbook by signing the portion attached thereto, the trial Court was wrong to hold that it was applicable to him, as it was a condition precedent to the application of the Handbook to the Appellants employment. Paragraph 35 of the Handbook was cited and it is argued that the Respondent did not deny or controvert the Appellants pleadings and evidence on the failure to satisfy the condition precedent set out therein, which he was deemed to have admitted. SPDCN v. Burutu Local Government Council (1998) 9 NWLR (565) 318 @ 332; Daniyan v. Iyagin (2002) 1 NWLR (766) 346 @ 375, Ndili v. Akinsumade (2000) 8 NWLR (668) 293 @ 339 and Ogunola v. Eiyekole (1990) 21 NSCC (Pt. II) 107 @ 116, (1990) 4 NWLR (146) 632 @ 646 among other cases were cited in support of the argument and it is maintained that the Respondent failed to show that the Handbook applied to his case which must therefore fail as it was not shown to be supported by any other conditions of service of the Appellant. It is also the case of the Appellant that the pleadings and evidence of the Respondent do not support the decision by the trial Court that the Handbook was a collective agreement duly signed between the Respondents Association and the Appellant which in any case was not binding unless it was made part of the Respondents conditions of service, on the authority of UBN Limited v. Edet (1993) 4 NWLR (287) 288 @ 298 and Nigeria Society of Engineers v. Ozah (2015) 6 NWLR (1454) 76 @ 93-4.
On issue 3, it is contended that the Respondent did not plead nor give evidence of particulars of the basis on which the calculation for the allowances claimed in line with the Handbook even if it was applicable to him. According to Counsel, the entitlement for redundancy allowance provided for in paragraph 24(viii) of the Appellants Handbook is to be calculated on the basis of the actual earning of the Respondent for each particular year during the period he was in employment and not on the basis of the last earning in the year the employment came to an end. He said annual reviews/increments in earnings for each of the years was to be taken into account and not just as the Respondent claimed as the last earnings for the year when the employment ended to which no evidence was adduced to prove.
In the alternative, on the authority of, inter alia, Omenka v. Morison Industries Plc (2000) 13 NWLR (683) 147 @ 158 and Ogbaji v. Arewa ile Plc (2000) 11 NWLR (678) 322 at 339, it is submitted that in reaching a decision as to what a contract of service contains or means, extraneous factors not provided for therein are not considered, since the relationship is purely contractual. According to Counsel, the trial Court granted the Respondent what was not provided for in the contract of service, as contained in paragraph 24(viii) and so violated the sanctity of contract between the parties, citing UBN Limited v. Ozigi (1994) 3 NWLR (333) 385, (1999) 15 LRN 257 @ 275 and Nze v. NPA (1997) 11 NWLR (528) 210 @ 222.
Again, it is submitted that the Respondent did not make a case in both pleadings and evidence which supported the calculation of the claimed amount of redundancy allowance and on the authority of Kalio v. Daniel-Kalio (1975) 9 NSCC, 16 @ 19, the trial Court cannot make the award.
The Court is urged to allow the appeal.
Respondents Arguments:
It is submitted that the procedural law at the time the Respondents claim was filed, tried and judgment delivered in 2014 applied to the case and not the 2017 Rules which do not have retrospective application, on the authority of O.H.M.B. v. Garba (2002) 12 SCM, 181, Shitta-Bey v. Attorney General of Federation (1998) 7 SCNJ, 264 and Adesanoye v. Adewole (2000) 55 SCNJ, 47. It is argued that it was the trial Court Rules, 2007 that applied to the Respondents case and so the action was competent and the Court is urged to do hold.
On issue 2, it is the case of the Respondent that there was evidence that he had accepted the Appellants Handbook, signed and returned the acknowledgement to the Appellant as contained in paragraphs 3-12 of the Witness Statement on Oath dated 22nd August, 2012. That the Respondent was not cross examined on the evidence and that the Appellants witness had admitted under cross-examination that the handbook is the foundation of the contract between the Appellant and the Respondent which binds them. Chabasaya v. Anwasi (2010) ALL FWLR (528) 839; Udoh v. O.O.P. Plc (2005) 24 WRN, 140 and Ayinke v. Lawal (1994) 7 NWLR (365) 263 @ 275 were referred to and in further argument, paragraph 35 on page 26 of the Handbook was cited as making it mandatorily binding on all senior staff of the Appellant such as the Respondent who signed it. Ararume v. INEC (2007) (1038) 27 @ 36 and Ekunola v. CBN (2006) 14 NWLR (1000) 292 @ 300 were referred to on the effect of the use of the word shall and it is said that the Appellant did not produce evidence that the Respondent did not sign the Handbook which could have been produced and so Section 167(d) of the Evidence Act applies to it. According to Counsel, where a collective agreement is embedded in the conditions of service of an employment, the terms are binding on the parties on the authority of Abalogu v. Shell (2003) 10 MJSC, 60 @ 64, Texaco Plc v. Kehinde (2001) 6 NWLR (708) 224 @ 239-40 and Shettimari v. Nwokoye (1991) 9 NWLR (213) 60 @ 62.
On issue 3, it is submitted for the Respondent that the trial Court was right in accepting the amount claimed by the Respondent as redundancy allowances/benefit based on the Appellants policy as contained in the Handbook. Pages 9, 53-4, 103 and 217 of the Record of Appeal was cited on the basis of the calculation of the Respondents redundancy benefit which was said to have been admitted by the Appellants witness under cross-examination.
Paragraphs 22 and 24(viii) of the Handbook are also referred to and said to support the Respondents calculation of the benefit claimed which was based on his last earning at the time of his disengagement.
The submissions in the Appellant Reply brief on the appeal are mere reaction or response to every point canvassed in the Respondents brief which answered the arguments of the issues in the Appellants brief. As a reminder, the provisions of Order 19, Rule 5(1) of the Court of Appeal Rules, 2016 are that: –
The Appellant may also, if necessary, within fourteen days of the service on him of the Respondents 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
Respondents 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 Respondents brief. A Reply brief only becomes necessary where and when new points are raised in the Respondents brief which were not canvassed in the Appellants brief and which require response or answer from the Appellant.
Where no new points were raised in the Respondents brief, but only points/issues canvassed in the Appellants 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 Appellants brief by way of responding to every point argued in the Respondents brief. A Reply brief cannot also be properly used as an avenue to merely repeat arguments in the Appellants brief on the pre of responding to all and every arguments contained in the Respondents brief or as to repair it to further argue and fortify the merit of the issues canvassed in the Appellants 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 Respondents brief and no more and where it is 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; Agwasim v. Ejivumerwerhaye (2001) 9 NWLR (718) 395, Basinco Motors Limited v. Woermann Line (2009) 13 NWLR (1157) 149.
Resolution:
As borne out by the Record of Appeal at pages 1-3, the Respondents action before the trial Court was commenced by way of a General Form of Complaint issued and signed by the Registrar of that Court on the 22nd August, 2012, along with Statement of Facts Establishing the Cause of Action, List of Witness and List of Documents to be relied on, all signed by John Okere, Esq; the claimants Counsel.
At the time the action was commenced, the Rules of trial Court in operation were the National Industrial Court Rules, 2007 which regulated the form and commencement of action before it. Order 3 Rules 1-4 of the Rules provided for the commencement of actions in that Court as follows: –
1. Any action for determination by the Court shall be commenced by way of Complaint which shall be filed and sealed. The Complaint shall be in Form 1 with such modifications or variations as circumstances may require.
2. (1) The Complaint shall state specifically the relief or reliefs claimed either singly or in the alternative and it shall not be necessary to ask for general or other relief which may be given as the Court may think just.
3. A claimant may alter, modify or extend the claim without any amendment of the endorsement on the complaint, provided that the claimant may not completely change the cause of action endorsed on the Complaint without amending it.
4. The Complaint shall be accompanied by
(i) a statement of facts establishing the cause of action;
(ii) copies of every document to be relied on at the trial,
(iii) list of witnesses to be called.
Then in Order 4, Rule 4 of the Rules provided for the signing of the complaint as an originating process, thus: –
4 (1) A claimant suing in person shall state on the originating process his or her residential or business address as his or her address for service.
(2) Where a claimant sues through a Legal Practitioner the Legal Practitioner shall state on the originating process the chambers address as the address for service.
(3) As originating process shall be signed by the claimant or his or her Legal Practitioner where the claimant sues through a Legal Practitioner.
Apparently, the complaint used by the Respondent to commence his action along with the accompanying processes duly signed by his Legal Practitioner, through who he sued, fully complied with the extant Rules of the trial Court at the time of commencement of the action.
Worthy of note is that the Appellant did not challenge the form or contents of the complaint used by the Respondent to commence his action before the trial Court as provided for by Order 5, Rule 1 of the Rules. Order 2 of the Rules provides that failure to comply with provisions of the Rules shall be treated as an irregularity on which the trial Court may give directions as it thinks fit.
I note that the Appellant raised the issue of non-signing of the originating process as one of jurisdiction that can be raised for the first time before this Court by the established position of the law. However, as stated above, the complaint was required to be signed by the Registrar of the trial Court and was duly signed while the facts establishing the cause of action was duly signed by the Respondents Legal Practitioner as required by the Rules. The complaint used to commence the Respondents action was therefore competent to properly invoke the jurisdiction of the trial Court over the claims therein and vest it with the requisite judicial authority and power to entertain and adjudicate over it.
Reference to and reliance on the 2017 Rules of the trial by the Appellants Counsel for the argument on the incompetence of the complaint, which was the originating process in the Respondents case, is clearly a bland misconception as it is undoubtedly absurd to bring in and rely on Rules of Court enacted and which came into effect in the trial Court long after the Respondents action was commenced, tried and completely, effectually and finally disposed off by that Court in 2014.
For being a gross misconception, the arguments of the Appellant on issue 1 do not merit further consideration as the 2017 Rules of the trial Court are completely and absolutely irrelevant to the Respondents case which was tried and disposed of in 2014.
The issue is resolved against the Appellant.
On the issue that there was no evidence that the Respondent accepted and acknowledged the Handbook of the Appellant for it to be applicable to him, I should state at the onset, that the Appellant did not dispute, but admitted the pleadings and evidence in paragraphs 1-4 each of the statement of facts and Witness Statement on Oath deposed by the Respondent on 22nd August, 2012, in its paragraph 1 of the Statement of Defence dated the 17th October, 2012, that he was employed by the Appellant in November, 1995 and remained in the employment until it was ended by the Appellant in 2009 on ground of ongoing restructuring or reorganization. So for the purposes of the Respondents claim, he was an employee of the Appellant from the year 1995 to the year 2009 when the employment was terminated by the Appellant. Also not in dispute was the fact and evidence of the Respondent that he was a senior staff employee of the Appellant at the material time. Another vital fact about which there is no dispute is 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.
In paragraph 7 of the Statement of Facts (which represented the statement of claim), the Respondent averred that: –
7. The claimant avers that his employment with the defendant was governed by the Ikoyi Club 1938, Standard Regulations and Condition of Service for Senior Employees which came into effect in August 2008 (hereinafter referred to as Conditions of Service Handbook) The claimant pleads and shall rely on the said condition of service handbook at the trial of this action.
In the same paragraph 7 of his Statement on Oath; which was the evidence in support of the pleading, the Respondent repeats the above deposition.
In paragraph 4 of the statement of defence, and the statement on oath dated the same 17th October, 2012; deposed to by Mrs. R. Adegoke, the Appellant denied that the Handbook governed the Respondents employment on the ground that he did not sign the acknowledgement slip of the Handbook and returned it to the Appellant.
In paragraph 3 of the Reply to the statement of defence dated 8th November, 2012, the Respondent denied the existence of a pre-condition to the application of clause 24(iii) of the Handbook.
Under cross-examination at the trial, none of the parties made the issue of the application of the Handbook to the Respondents employment or any pre-conditions thereto, an issue of evidence. Rather, the Appellants witness said, under cross-examination that: –
It is true that Exhibit B1 is the basic conditions for service and employment between the Defendant and the Claimant. Yes it is the foundation of the contract of employment.
Yes the Claimant was a Senior Staff employee of the Defendant.
The position by the trial Court that the Handbook applied to the Respondents employment is firmly supported by the above evidence under cross-examination by the Appellants witness that the Handbook, which was admitted in evidence as Exhibit B1, or the basic conditions of service and employment between the Defendant and the Claimant. Yes it is foundation of the contract of employment.
The clear import of the evidence is that the Respondents employment with the Appellant was regulated and governed by the terms and conditions set out in the Handbook; as the foundation to the contract of employment between the parties.
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 Osakwe v. Nigeria Paper Mill Limited (1998) 7 SCNJ 222 @ 231, (98) 10 NWLR (568) 1, Dornier Aviation Nigeria AIEP Limited v. Captain Oluwadare (2007) 7 NWLR (1033) 336, UBN Limited v. Ogboh (1995) 2 NWLR (380) 647.
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, Nwakanma 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.
In addition, I have seen a copy of the acknowledgement at page 29 of the Handbook referred to by the trial Court and agrees with it that prima-facie, the original thereof is shown to have been removed and put in the Respondents personal file which was in the custody of the Appellant during the period of the employment and it cannot now be heard at this stage to say that the Respondent did not sign and accept the Handbook for his employment to be governed and regulated by the terms and conditions stipulated therein.
Furthermore, the fact that the Respondent was employed by the Appellant and he continued in the said employment from 1995 by the Letter of Employment that stated the employment was to be governed by the conditions as contained in the Appellants Handbook for Junior Employees at the time, it necessarily follows that as a Senior Staff, the Appellants Handbook for senior staff would apply and govern his employment with the Appellant until the contrary is proved by the Appellant.
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 (1988) 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 (2018) LPELR-45151 (SC).
Having rendered service as a senior staff of the Appellant without any complaint by the Appellant that the Respondent did not sign the Handbook or that it was not applicable to his employment, it was late for the Appellant to allege that the Handbook was not applicable to the Respondents employment when the employment was terminated on one (1) of the grounds and reasons stipulated therein; i.e. reorganization which rendered his services no longer required. The Appellant on one hand, terminated the Respondents employment on the basis of the Handbook, which it alleged was not signed by him, and on the other hand, says the Handbook was not applicable to the Respondent for the benefit provided therein for the termination of the employment. In effect, the Appellant exercised the right to terminate the employment of the Respondent as provided for in the Handbook, but attempted to avoid meeting the obligations provided for in the same Handbook for the termination for spurious reason which defies common sense.
Once again, the trial Court is right that the Handbook applied to the Respondents employment with the Appellant while it lasted and the parties are bound by the terms and conditions of service embodied and stipulated therein. In that regard, the Respondent was entitled and has a right to claim the benefits provided for in the Handbook for senior staff of the Appellant whose employment was termination on ground of reorganization.
The last issue is that there was no pleading and evidence to support the basis of the calculation of the redundancy allowances the Respondent was entitled to.
The pleadings on the issue by the Respondent are in paragraphs 9, 10 and 11 of the Statement of Facts which say that: –
9. The claimant avers that under clause 24 viii of the Conditions of Service, states as follows:
Where due to re-organization, a staff appointment is terminated. Redundancy benefit will be paid as follows: –
6 months salary for every completed year (i.e. Total emolument) in addition to other benefits.
10. The claimant avers that he worked with the defendant for 14 years before his appointment was terminated due to restructuring in the defendant.
11. The claimant further avers that his total annual emolument when his employment was terminated was N1,078,421.07k while his redundancy benefit is N7,548,947.49k calculated as follows: –
Annual Total Emolument x 14x 0.5, i.e.
N1,078,421.07k x 14 = N15,894.98 x 0.5 = N7,548,947.49
The avernments were repeated in the Respondents Statement on Oath as evidence in support of the claim.
The Appellants pleadings on the issue are in paragraphs 8(c) of the statement of defence which is in the following terms.
(c) Assuming without conceding that the Claimant is entitled to redundancy benefits, the Defendant says that:
i. Calculation of the Claimants emolument is based on the wrong premises leading to errors of particulars of figures and factors guiding the same;
ii. By paragraph 24(viii) of Ikoyi Club 1938 Handbook, six (6) months salary for every employee should be calculated from the employees total emolument as actually earned beginning from the actual year when he/she was employed and then based on further subsequent reviews/increment of his emolument, for every specific year under consideration;
iii. The Claimants total emolument when he was employed in 1995 was N11,982;
iv. The Claimant used the purported sum of N1,078,421.07 annual emolument in 2009 when his employment was terminated to claim 6 months salary for the entire 14 years he worked with the Defendant instead of 6 months salary for each completed specific year;
v. The Claimants emolument for the 14 years he worked for the Defendant was not N7,548,947.49 per year as there were gradual adjustment from his emolument of N11,982 in 1995, the year of his appointment to N1,078,403.31 in 2009 when his employment was ceased.
vi. Any benefit or entitlement due to the Claimant as redundancy benefit ought to and must be calculated based firstly on the Claimants emolument from 3rd November, 1995 the day of his appointment which was N11,982 and secondly the subsequent specific sums of money received as yearly earnings for each of the subsequent years spent in employment.
The avernments were repeated in paragraph 10(c) of the Witness Statement on Oath as the evidence supported thereof.
As may be observed, the case presented by the Respondent for the calculation of the redundancy benefit was that his last earning before the termination was to be used in the determination of the amount he was entitled to for the 14 years he was in the employment of the Appellant.
On its part, the case of the Appellant is that the earning for each of a completed year of the period the Respondent was in the employment was to be used separately in the calculation of the amount he was entitled to and not the last earning for the year the employment was terminated.
However, in paragraphs 7 & 8 of the statement of defence the Appellant averred as follows: –
7. That the Defendant says that following the termination of the Claimants employment with the Defendant on the 19th October, 2009, the parties by mutual agreement reflected in a payment voucher, discharged Ikoyi Club 1938 from any further payment and liability related to the Climants employment, arising from his employment, as the sum of N1,994,483.05 was received as final emolument by the Claimant from the Defendant because: –
(a) An agreement made on or about 20th April, 2010 and contained in the payment voucher dated 20th April, 2010 represented an agreement on the Claimants part on the terms appearing below;
(b) In the premises, agreement existed, made on or about 20th April, 2010 between the Claimant and the Defendant, whereby it was agreed that in satisfaction and discharge of the Claimants post employment entitlements due to the Claimant from the Defendant, the Defendant shall pay to the Claimant the sum of N1,994,483.05 and the Claimant would accept the said sum of N1,994,483.05 in full and final satisfaction and discharge of all his entitlements due from the Defendant;
(c) On the 6th day of May, 2010, in keeping with the above agreement the Defendant altered its position, when it dully paid the Claimant the sum of N1,994,483.05 which the Claimant accepted, received and signed for, by endorsing the payment voucher dated 20th April, 2010 as representing his final emolument in satisfaction and discharged of him (the Claimant) entitlements due from the Defendant;
(d) By reason of the matters aforesaid, the Defendant denies that the Claimant is entitled to the sum of N7,548,947.49 or any amount whatsoever from the Defendant as alleged in the Statement of Fact.
(e) In the premises, it is and inequitable for the Claimant to claim or enforce the payment of the said N7,548,947.49 or any sum at all as redundancy benefit and he (the Claimant) is and ought to be stopped and precluded from reneging on the agreement and claiming redundancy benefits in the sum of N7,548,947.49, or at all.
(f) The Claimant is not entitled to any redundancy benefit within the law as alleged or at all.
8. That the Defendant says that the Claimant is stopped and precluded from demanding/claiming the sum of N7,548,947.49 or any sum at all as redundancy benefits from the Defendant because by reason of the Claimants express representation and action constituted by accepting, receiving, and signing the voucher dated 20th April, 2010 for the sum of N1,994,483.05 as his final entitlement from the Defendant which induced the Defendant to pay the Claimant the said sum as final entitlement it would be unjust and inequitable to allow the Claimant make another additional claim(s), whether termed “redundancy benefit or any other name whatsoever from the Defendant arising from the cessation of the employment of the Claimant.
The Respondent denied the claim in paragraphs 4-6 of the Reply to the statement of defence.
Each of the parties repeated the averments in the Statements on Oath as their respective evidence in support of their positions. Under cross-examination, the Appellants witness had said.
Yes he is no longer in the employment of the Defendant. His appointment was terminated due to reorganization. No he was not paid redundancy benefits. There was no agreement between the parties but the voucher states that he has collected his final entitlement but there is no where it was evident that the Claimant waived his entitlement.
On the basis of the evidence placed before it on the issue, the trial Court rightly stated and held in its judgment at page 182, that: –
I therefore, hold that the claimant is entitled to 6 months salary for every year he completed in the defendant club. Consequently, the Claimants redundancy benefit will be calculated based on the last salary he received before his disengagement.
The case of the Appellant was that by mutual agreement, the Appellant was discharged from any further payment and liability related to the claimants employment, arising from his employment, yet the voucher dated 20th April, 2010 did not bear any agreement to that effect, but only shows payment for final entitlement for the stated Account Descriptions set out therein, which did not include redundancy benefit.
Since the oral evidence of the Appellant was effectively challenged and controverted by the Respondents 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. Ibeneme (2004) 7 SC (Pt. 1) 45, Dagaci of Dere v. Dagaci of EbWa (2006) ALL FWLR (306) 786 and Adighije v. Nwaogu (2010) 12 NWLR (1209) 414, represent the position of the law on the requirement.
The finding by the trial Court on the point is unassailable for being based on the firm terrain of the law.
In the absence of evidence in proof of the alleged mutual agreement to waive or forgo the redundancy benefits, the Respondent was entitled to from the termination of his employment, the provision of paragraph 24(iii) of the Handbook which provided for it, was to determine the amount he was entitled to for the years the employment lasted. The paragraph provides that: –
Where due to re-organization a staff appointment is terminated Redundancy benefit shall be paid as follows:-
6 months salary for every completed years (i.e. total emolument) in addition to other terminal benefit.
The finding by the trial Court on the interpretation of the above provisions are that: –
I therefore, hold that the claimant is entitled to 6 months salary for every year he completed in the defendant club. Consequently, the Claimants redundancy benefit will be calculated based on the last salary he received before his disengagement.
Looking calmly at the provisions of paragraph 24(iii), what clearly stands out of them is that the benefit provided therein was for a member of staff of the Appellant, whose appointment, on ground of re-organization, was terminated and he/she was rendered redundant thereby. The benefit provided therein was to take effect from date of the termination of the employment or when the member of staff was rendered redundant by the termination of his/her employment by the Appellant due to re-organization. Since the provisions do not provided for the years before the re-organization mentioned therein; when a member of staff was in full and effective employment and earning salaries, allowances and other benefits attached to his employment, but for the period after the termination, it would be irrational and unreasonable to argue that the redundancy benefit should be calculated on the basis of the years when the member of staff was not redundant, but actively engaged in his employment.
The provisions only apply to a member of staff who was rendered redundant by the termination of his employment due to reorganization and cannot, plausibly, be said to apply to a member of staff before he became redundant. The benefit is therefore to be calculated on the basis of the last monthly salary he received for the employment before the termination which rendered him redundant, such that for each or every of the completed years of his employment, he would be entitled to six (6) months salaries. If the parties to the contract of the employment meant or intended to make provisions in the conditions of service for the redundancy benefit to be calculated on the basis of separate monthly salaries earned in each and every of the completed years of a staffs employment, they would have clearly and expressly said and provided so explicitly.
In these premises, the trial Courts calculation of the redundancy benefit of the Respondent was made on the correct basis as claimed by him in his pleadings and evidence. The Appellant did not controvert the basis of the calculation by producing credible evidence of how such redundancy benefit was calculated otherwise in respect of other members of staff who were rendered redundant by reorganization.
In the above circumstances, there is no factional or other legal basis for the Court to interfere with the calculation made by the trial Court on the redundancy benefit claimed by the Respondent and awarded in its judgement.
I find not merit in the issue and resolve it against the Appellant. In the result, for being devoid of merit, the appeal fails and is dismissed accordingly.
CROSS APPEAL
I have at the beginning of this judgement on the main appeal indicated that the Notice of Cross Appeal contains a sole ground of appeal, but that two issues are formulated in the Respondents/Cross Appellants brief for decision in the cross appeal.
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 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. Okereke (1996) 6 NWLR (452) 60; Yusuf v. Akindipe (2000) 8 NWLR (669) 376; Anaeze v. Anyaso (1993) 5 NWLR (291) 1 @ 30; Utih v. Onoyivwe (1991) 1 NWLR (166) 166 @ 214; Oyekan v. Akinrinwa (1996) 7 NWLR (459) 128 @ 136. However in the cross Appellants case even though the issues are two (2) in number, they are in substance, sole issue merely split into bits and pieces, unnecessarily and so I would treat them as such, since it is traceable to the ground of the cross appeal.
The pith of the submissions by the Cross Appellant on the issue is that post judgement is provided for by the Rules of the trial and a party becomes automatically entitled to it on a judgment debt delivered in his favour. That it will be an omission by a trial Court not to award the interest, which is different from pre-judgement interest, whether it is claimed or not by a party, on the authority of a number of judicial authorities which include G.K.F.I. Nig. Ltd. v. Nitel Plc. (2009) 15 NWLR (1164) 344 @ 380; Diamond Bank Ltd. v. Partnership Invest. Co. Ltd. (2009) LPELR-939(SC); Berliet Nig. Ltd v. Kachalla (1995) 9 NWLR (420) 478.Order 21, Rule 4 of the National Industrial Court Rules, 2007 was also cited for the submission and the Court is urged to award the interest pursuant to the provisions of Order 19, Rule 11(1) of the Court of Appeal Rules, 2016, on the ground that the Cross Appellant is entitled to it.
For the Appellant/Cross Respondent, it is submitted that the award of post judgement interest is discretionary as provided for in Order 21, Rule 4 of the trial Courts Rules and stated in cases that include Okon v. Bob (2003) LPELR-6098 (CA); UBA, Plc. v. Lawal (2008) 7 NWLR (1087) 613 @ 634; Churchgate Nig. Ltd v. Uzu (2005) LPELR-11404(CA). That an appellate Court would not generally interfere with the exercise of a discretion by a trial Court merely because it would have exercised the discretion differently on the authority of Dalfam v. Okaku (2001) 15 NWLR (735) 203 @ 244 and Acme Builders Ltd. v. K. S. W. B. (1999) 2 NWLR (590) 288. It is further submitted that the trial Court has exercised its discretion not to award post judgement interest in the case before it and the Court is urged not interfere with the exercise.
In the Cross Appellants reply brief, the case of Mokelu v. Fed. Comm. for Works & Housing (1976) LPELR-1904(SC) was cited on when the word may would be interpreted as imposing an obligation and so mandatory and the case of UBA v. Lawal (supra) is said to be different from the Cross Appellants case. Oni v. Fayemi (2007) LPELR-8700(CA) and Olaleye v. Afribank Nig. Plc. (2014) LPELR-23742(CA) were referred to on when an appellate Court may interfere with the exercise of a discretion by a trial Court.
RESOLUTION:
The claims endorsed on the Cross Appellants writ and repeated at paragraph 16 of the Statement of Facts are as follows: –
i. The sum of N, 548,947.49k (sic) (Seven Million, Five Hundred & Forty- Eight Thousand, Nine Hundred & Forty- Seven Naira, Forty-Nine Kobo) being the claimants redundancy benefit due to him from the defendant.
ii. Interest on the said sum of N7, 548,947.49k (sic) (Seven Million, Five Hundred & Forty- Eight Thousand, Nine Hundred & Forty- Seven Naira, Forty-Nine Kobo) at the rate of 21% per annum from 1st December 2009 until judgment debt and cost awarded herein are paid up in full.
The trial Court after awarding the redundancy claimed by the Cross Appellant in its judgement, sealed it with the following terse conclusion:
I make no order as to cost.
Admittedly, the award of post judgment interest claimed by the Cross Appellant is discretionary under the provisions of Order 21, Rule 4 of the trial Courts 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 judgement is statutory .. It lies entirely at the discretion of the trial Court after delivery of judgment.
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 Beredugo v. College of Science & Tech. (1991) 4 NWLR (187) 651; F. D. Nig. Ltd. v. Anaemene (2006) ALL FWLR (3001) 1915; Olusola v. Trusthouse Prop. Ltd (2010) 8 NWLR (1195) 1.
The law is also firmly established that an appellate Court would not interfere with the exercise of trial Courts 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) ALL FWLR (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.
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. v. Nnamani (1991) 4 NWLR (186) 486; Onagoruwa v. IGP (1991) 5 NWLR (193) 593.
In the Cross Appellants case, as seen above, the trial Court did not exercise the discretion provided by its Rules to order for post judgement interest, by a consideration of the interests of both side and weighing them evenly in order to arrive a just and fair decision. The trial Court did not give any reason(s) which would show sound judgement, wisdom and good sense in arriving the decision not to consider and order payment of interest on the judgement sum. In fact, the trial Court did not exercise the discretion at all for the requirements to call for consideration. 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.
Since the Rules of the trial Court provide for a discretion which it did not exercise, it could not said that the trial Court did not obey the Rules, as it only omitted or failed to exercise the discretion at all.
The above as it may be, in view of the fact not disputed by the Cross Appellant that he was paid the sum of N1,994,485.05 by the Cross Respondent and which he collected on 6th May, 2010 and which was believed by the Cross Respondent to be in final settlement of all the entitlements of the Cross Appellant, (which eventually has been shown to be erroneous) the justice of the case does not require nor call for the order for payment of interests on the judgment entered in favour of the Cross Appellant, for the redundancy period during which the action was prosecuted before the trial Court.
The Cross Appellant gave the impression which the Cross Respondent believed and relied on that he had agreed and collected payment for final entitlement from his employment with the Cross Respondent, equity and fairness would not support the award of interest on the judgment sum since the transaction from which it resulted, was not a commercial one in which a claim for return of money or debt owed, was made. The principle of law that money judgement should ordinarily attract the award of interest thereon applies to commercial transactions on the ground, primarily, that: –
(ii) That the plaintiff was denied the use of his money without justification by the defendant and
(iii) 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.
I find no merit in the Cross Appeal and it is dismissed.
In the final result, for lacking in merit, both the Appeal and Cross Appeal are dismissed in consequence of which the judgment delivered by the trial Court on 24th March, 2014 is hereby affirmed in its entirety.
Parties shall bear their respective costs of prosecuting their appeals.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.), which I had the privilege of reading in print.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein. I adopt the Judgment as mine with nothing further to add.
Appearances:
U. Akpan with him, C. Chika and O. NdubuakaFor Appellant(s)
T. OlalodeFor Respondent(s)
