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BAKO v. BRITISH COUNCIL (NIG) & ANOR (2022)

BAKO v. BRITISH COUNCIL (NIG) & ANOR

(2022)LCN/16040(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/A/244/2015

 Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

BARR (MRS) RAMATU UMAR BAKO APPELANT(S)

And

1. BRITISH COUNCIL NIGERIA 2. BEN FISHER RESPONDENT(S)

 

RATIO:

POSITION OF LAW WHEN PROCEEDINGS OR DECISION OF COURT CAN BE SAID TO BE IN BREACH OF THE RIGHT TO FAIR HEARING

My Lords, it has always been and still is a very vexed issue when in law can the proceedings and or decision of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed in the determination of their civil rights and obligations? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. Sec CBN v. Ovie & Ors (2021) LPELR – 56034(CA) per Sir Biobele Abraham Georgewill JCA. Sec also Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. v. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522.
Now, in considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited v. Alhaji Ibrahim Atta (2006) 12 NW LR (Pt. 993) 144.

THE TRUE TEST OF FAIR HEARING

However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson v. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi v. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede v. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771. -PER BIOBELE ABRAHAM GEORGEWILL, J.C.A. 

PRINCIPLES GOVERNING AN EMPLOYMENT GOVERNED BY THE CONTRACT OF EMPLOYMENT

My lords, in law where an employment is governed by the contract of employment executed by the parties and there is infraction of the terms of employment, such infraction if it resulted into a dismissal is merely wrongful and not null and void. The remedy for such wrongful termination is damages and not reinstatement and or salaries until retirement had the employment not been wrongfully terminated. Thus, it is only in contracts of employment protected by statute and therefore, clothed with statutory flavor, that such a breach, if found to be null and void, it can attract the relief of reinstatement or payment of salaries until retirement had the employment not been unlawfully terminated. See Oloruntoba – Oju & Ors. v. Abdul-Raheem & Ors. (2009) 13 NWLR (Pt. 1157) 83. See also Bamgboye v. University of llorin (1999) 10 NWLR (Pt. 622) 290; Eze v. Spring Bank Plc (2011) 18 NWLR (Pt. 1278) 113; Ifeta v. SPDC (Nig.) Ltd. (2006) 8 NWLR (Pt.983) 585. -PER BIOBELE ABRAHAM GEORGEWILL, J.C.A. 

POSITION OF LAW AS TO THE MEASURES OF DAMAGES FOR WRONGFUL DISMISSAL IN A SIMPLE CONTRACT OF EMPLOYMENT

Thus, in law the measure of damages for wrongful dismissal in a simple contract of employment under a Master Servant relationship, devoid of any legal or statutory flavor, is the amount of money that is payable during the period of notice to be given by the employer to the employee as stipulated in the contract of employment. It has never been and it still not the payment of the employee’s salaries up to the time he would have lawfully retired had he not been wrongfully terminated. See Onalaja v. African Petroleum Ltd (1991) 6 NWLR (Pt. 198) 492. – PER BIOBELE ABRAHAM GEORGEWILL, J.C.A. 

PRINCIPLE OF COMMON LAW GOVERNING THE DISMISSAL OF AN EMPLOYEE 

See Chukwumah v. SPDC (Nig.) Ltd (1993) 4 NWLR (Pt. 289) 512 at P.560, where the Supreme Court per Karibi -Whyte JSC (God bless his soul) had stated inter alia thus:
“It is a well-established principle of the common law, and of Nigerian law, that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all…Ordinarily and consistent with the common law principle, the Court will not impose an employee on an employer…Hence an order for specific performance of contract of employment is an aberration which will rarely be made…termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of the confidential relationship between master and servant which cannot continue in the absence of mutuality.” See also Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417 -PER BIOBELE ABRAHAM GEORGEWILL, J.C.A. 

PRINCIPLE GOVERNING FORMULATION OF ISSUES FOR DETERMINATION

My lords, in the formulation of issues for determination, which is not in any way exclusive to the parties and their counsel, a Court is free to either adopt the issues formulated for determination by the parties or to tinker with them or to outrightly formulate such issues as are consistent with the case of the parties and would better promote the cause of justice in the course of the delivery of its Judgement. In this wise, it can formulate the issue suo motu in its judgment and does not require the consent and or address of the parties before it can formulate an issue for determination that would better the cause of justice in its view in considering the pleadings and evidence led before it, and particularly where the issues formulated by the parties would if considered without any touch thereto could obfuscate the real issues in controversy between the parties. A Court that does this in the interest of justice does nothing either untoward or wrong to be deprecated by an appellate Court. See Labiyi v. Anretiola (1992) 8 NWLR (Pt 258) 139 at p. 159. See also Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12 at p. 24 -PER BIOBELE ABRAHAM GEORGEWILL, J.C.A. 

WHAT A CLAIMANT IS EXPECTED TO DO IN AN ACTION FOR DAMAGES FOR DEFAMATION

Now, in an action for damages for defamation, be it libel or slander, the law requires the Claimant to plead in his pleadings and prove by credible and cogent evidence the essential elements of the tort of defamation, namely: That the words complained of are defamatory: That the words complained of referred to the Claimant: That the words complained of were published by the Defendant, and the resultant damages in case of slander except where it is actionable per se without proof of damages. See Iseramenya v. Ofodion (2020) LPELR-52236(CA) per, Sir Biobeic Abraham Georgewill JCA. See also Nsirim v. Nsirim (1990) 3 NWLR (Pt. 1380 285; Din v. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392; Onu v. Agbese(1985) 1 NWLR (Pt. 4) 704; Onyejike v. Anyasor (1992) 1 NWLR (Pt. 218) 437; Iloabachie v. Phillips (2000) 14 NWLR (Pt. 686) 43 PER BIOBELE ABRAHAM GEORGEWILL, J.C.A. 

DUTY OF A DEFENDANT IN A CASE OF DEFAMATION

In law therefore, it is these ingredients that constitute a prima facie case which a Claimant must make out for the Defendant to even be required to lead evidence in his defense. In other words, once or where a Claimant by his pleadings and evidence led at the trial fails to establish any of the above ingredients, then no prima facie case of defamation could be said to have been made out against a Defendant by a Claimant by such circumstances, the Defendant need not prove anything in his defense. See The Right to a Good Name: Law of Defamation Simplified by Sir Hon Justice Biobele Abraham Georgewill, 2011 by Convince Concepts PH a pp. 63 – 64.
Thus, the first duty on the Appellant as Claimant in an action for damages for libel is to prove that the words were defamatory, and in law defamatory words may be expressly defamatory on its face or it may be ambiguous or innocuous. So, in order to succeed a Claimant must prove that the words complained of were defamatory. The real test is therefore, whether under the circumstances in which the words were alleged to have been published reasonable persons to whom the publication was made would be likely to understand it in a defamatory sense. It follows therefore if the words complained of are not defamatory then there is of course no defamation on which the claim of a Claimant could succeed. See Clerk & Lindsell on forts, 11th Edition at p. 711. See also Access Bank Plc v. MFCSS (2005) 3 NWLR (Pt. 913) 460; Okolo v. Midwest Newspaper (1977) 11 NSCC 11; Awoniyi v. AMORC (1990) 6 NWLR (Pi. 154) 42; Katto v. CBN (1999) 6 NWLR (Pt. 607) 390. – PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPLICATION OF REASONABLE MAN’S TEST IN PROVING DEFAMATION

However, in the application of the reasonable person test, two questions are involved, namely: whether the words complained of are in themselves capable of a defamatory meaning, this is a question of law, and whether the words complained were in fact defamatory, this is a question of fact. So, what words could be defamatory in law? A defamatory word is that which tends to bring down the reputation of another or expose him to odium and ridicule in the estimation of reasonable members of the society. It does not necessarily mean that such a word must impute a moral fault against the Claimant. See Iseramenya v. Ofodion (2020) LPELR-52236(CA) per Sir Biobele Abraham Georgewill JCA. See also Akufere v. Sketch Publishing Co. Ltd. (1971) 1 UILR 13 at p. 15; UBN Ltd v. Oredein (1992) 6 NWLR (Pt. 247) 355; Mr. Olusola B. George-Olumoroti v. Mr. ide O. Owodiong-Idemeko (2017) LPELR-51546 (CA) per Sir Biobele Abraham Georgewill JCA. – PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

PRINCIPLE GOVERNING TERMINATION OF EMPLOYMENT

In Katto v. CBN (1999) 6 NWLR (Pt. 607) 390 (a) p. 414. the Supreme Court had stated inert alia thus:
“Where employment is terminated in circumstances which may bring the employee into hatred, contempt or ridicule but the employer had not used or published any defamatory words against the employee in terminating his employment, the employer cannot be held liable in defamation”
See also Bryanston Finance Ltd v. De Vries (1975) 1 QB 703 p. 719, where the inimitable lord Denning MR. had held inter alia that letters typed by a typist in his course of employment under instructions by his employer would amount to a privileged occasion, where malice is not shown. See also MTS Ltd v. Akinwunmi (2009) 16 NWLR (Pt. 1 168) 633 at p. 652; Ekong v. Otop (2014) NWLR (Pt. 1419) 549. – PER BIOBELE ABRAHAM GEORGEWILL, J.C.A

ON THE MEANING OF PRE-JUDGMENT INTEREST

My lords, I am aware that in law pre-judgment interest is in the nature of special damages, and must be specifically pleaded and specially proved to be entitled to its award by the Court. Thus, an award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary- relationship. See Chief Austine Oguejifor & Anor v. Ubakason Nigeria Limited (2022) LPELR- (CA) per Sir Biobele Abraham Georgewill JCA. See also Agboneni v. Alakiu (2018) LPELR – 44807(CA).
In the instant case, there was no iota of pleading, evidence and or circumstances from which it could be inferred that interest was payable on the salaries payable to the Appellant by the 1st Respondent or that payment of interest was contemplated in the employment contract between the parties. I am therefore, unable to hold that there was any presumption of payment of interest from the nature of the transaction between the parties to warrant the payment of pre-judgment interest in favour of the Appellant against the Respondents. See NPA v. Aminu Ibrahim & Co. & Anor (2018) LPELR – 44464 (SC) at pp. 66 – 68, where the Supreme Court per Odili JSC, had stated inter alia thus:
“On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for payment of interest, in which case a claim as such must be pleaded and proved as it would not do to just state a claim for pre-proof of same.”
In law, pre – judgment interest is not one left at the whims and caprices of one party to fix at will without the concurrence of the other party, particularly in cases where there is no agreement between the parties as to both the interest and the rate payable and in the absence of any evidence of prevailing interest rate from the Central Bank of Nigeria. In Agboneni v. Alakiu (2018) LPELR – 44807(CA), this Court had stated inter aha thus:
“The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship.”
See also Chief Austine Oguejifor & Anor v. Ubakason Nigeria Limited (2022) LPELR – 56783 (CA) per Sir Biobele Abraham Georgewill JCA; A. G. Ferrero & Co. Ltd. v. Henkel Chemicals (Nig.) Ltd. (2011) 12 NWLR (Pt 1265) 592 at p. 606; Adigun v. Osaka (2003) 5 NWLR (Pt. 812) 95.
In the circumstances therefore, there being no presumption of payment of interest from the nature of the contract of employment between the parties, there was indeed no reason whatsoever in law for the lower Court to grant such a claim. The claim for pre-judgment interest was therefore dead on arrival. This head of claim therefore, fails and was so rightly refused by the lower Court. – PER BIOBELE ABRAHAM GEORGEWILL, J.C.A

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the National Industrial Court of Nigeria, Abuja Division. Coram: O. A. Shogbola J. in Suit No. NICN/ABJ/247/2012: Barr (Mrs.) Ramatu Umar Bako V. British Council. Nigeria & Anor, delivered on 11/3/2015. The lower Court granted some of the claims of the Appellant as Claimants against the Respondents as Defendants.

The Notice of Appeal was filed on 12/5/2015 on eleven grounds of appeal. See pages 882 – 892 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 20/8/2015. The Parties filed and exchanged their briefs, which were adopted as their arguments at the hearing of this appeal on 7/4/2022. The Appellant was represented by Josiah Daniel – Ebune Esq. The Respondents were represented by Patrick Osu Esq.

By a Complaint filed on 12/10/2012 and a Further Amended Statement of Claim, the Appellant as Claimant claimed against the Respondents as Defendants jointly and severally for the following reliefs, to wit:

1. Declaration that the purported dismissal of the Claimant for the stated reasons of “Spreading Malicious Rumors about a colleague” and “poor performance” by the Defendant is not in accordance with the procedure laid down in the Terms and Conditions (TACOS) of the Claimant’s employment and is therefore illegal, unlawful, irregular, unconstitutional, null and void and of no effect whatsoever.
2. An Order re-instating the Claimant to her office as the public Diplomacy Portfolio manager forthwith.
3. An Order compelling the Defendants to pay all outstanding salaries and allowances due to the claimant from 1/7/2010 to the date of judgment and thereafter 13% interest therein per annum until the payment is effected.
4. The cost of this suit shall be assessed at the end of trial.
Alternatively
1. A Declaration that under the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Labor Act, 2004 and the Terms and Conditions of Employment (TACOS), the Claimant is entitled to fair hearing and to be free from all manner of discrimination in her place of work.
2. General and Special damages of N303, 233, 145. 00 for unlawful dismissal and outstanding salaries and allowances due to the Claimant from the Defendants from 1/7/2010 as contained in the letter of upward review of salary dated 28/8/2009 to the date of Judgment and thereafter 13% interest rate per annum on the Judgment sum until the payment is effected.

Particulars of Special Damages
1. The sum of N132,000,891.15 on the basis of the Claimant’s last salary increment as stated in the 1st Defendant’s Letter of Salary Review dated 28/8/2009, being the sum N3,185,611.89 multiplied by 35 years from the 1/7/2010 till the 1/7/2045 being 35 years when the Claimant could have lawfully retired and/or disengaged from the employment of the 1st Defendant.
2. End of service payment in lieu of pension calculated at the rate of one month’s salary per year, that is the sum of N4,233,145. 00
3. N200,000,000.00 only being Damages for Libel occasioned the Claimant by the Defendant and its servants, agents and privies in the course of occasioning the breach of contract of employment between the parties.
4. 13% Interest rate on reliefs 3 per – annum until the judgment debt is liquidated.

5. Perpetual injunction restraining the Defendants, whether by servants, privies agents, whomsoever and however defined themselves from further publishing defamatory words of and concerning the person of the claimant.
6. A Letter of Apology to the Claimant by the Defendant to be published in The Economist Magazine, The Times of London, Newswatch and The Guardian Newspaper with prominent headlines retracting falsehood contained in the Letters of yearning and dismissal in this case.” See page of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Appellant as Claimant before the lower Court, as in the Record of Appeal, inter alia was that she was employed by the 1st Defendant as ‘Governance Assistant’ on the 10/2/2003 vide an offer letter dated 29/1/2013, which employment for her satisfactory performance confirmed and she was promoted vide a letter dated 19/11/2007 with the status of permanent and pensionable employment. By 18/3/2010 weeks after the Kano Events, Active Citizens project, the Appellant was favorably evaluated and assessed by Chuula Samantha, the 1st Respondent’s Manager, Program. The Appellant had never been queried in the performance of her duties prior to 1/7/2010 and she does not dispute the fact that the 1st Respondent could dispense with her services at any time but not in breach of the terms of her contract. The 1st Respondent need not give any reason to terminate her employment but having given reasons for terminating her employment it must justify it but which it failed to do having based her dismissal on third party fault, the 2nd Respondent who actively procured the breach of the terms of her employment. At any rate, the Appellant can be dismissed summarily only for good cause but was denied her right to fair hearing and in the course of and subsequent to her purported dismissal for unjustifiable reasons, the Defendants occasioned her reputational injury by a very malicious libel, widely and grossly disseminated and read, and for which in addition to her claim for damages for her wrongful termination and or reinstatement, she also claimed for damages for defamation against the 2nd Respondent.

The case of the Respondents as Defendants before the lower Court, as in the Record of Appeal, inter alia was that in the course of the Appellant’s employment, she was cited for spreading malicious rumors about another colleague, one Chika Idoko and she was duly investigated and found culpable and in consequence thereof of the misconduct was issued a first written warning on 6/11/2009. She had the primary responsibility for the organization Active Citizens project of the 1st Respondent which holds periodically, and of which the Active Citizens Project of 2010 took place in Kano between 1/3/2010 and 7/3/2010 but was poorly managed as a result of the fault of the Appellant resulting from lack of communication and effective management of the event. However, before a written warning could be issued to the Appellant, she circulated an email on 16/3/2010 containing unfounded allegations about the 2nd Respondent, who lodged a grievance against her conduct on 18/3/2010 alleging breach of code of conduct, bullying and defamation of character, while she in turn also lodged a grievance complaint against the 2nd Respondent. The complaint was duly investigated on 1/4/2010 with her participation and it was found that the issues raised by her against the Kano event vide her email of 16/3/2010 were bizarrely inflated and unsubstantiated and constituted bullying and harassment amounting to gross misconduct. Accordingly, the Appellant’s employment was terminated by the 1st Respondent in accordance with the terms of her contract of employment.

At the lower Court, the parties filed and exchanged pleadings and the matter proceeded to trial before the lower Court. The Appellant testified for herself and called two witnesses, one Ambassador Auwalu Alhassan, who testified as PW2 and one who testified on Subpoena and tendered several documents, which were admitted in evidence as Exhibits. The Respondents called one Mr. Amir Ramzan, who testified as DW1 and tendered some documents, which were admitted in evidence as Exhibits. At the conclusion of hearing, the parties filed and exchanged their final written addresses, which were duly adopted by them on 6/12/2014. On 11/3/2015, the lower Court delivered its judgment, in which it granted some of the reliefs claimed by the Appellant against the Respondents, while dismissing the rest, hence this appeal. See pages 1 – 553, 847 – 856, 857 – 881, 882 – 892, 900 – 905, 908 – 912, 914 – 928, 932 – 934 and 936 – 937 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the eleven grounds of appeal, namely:
1. Whether the lower Court earned was correct in the manner he resolved the Appellant’s entitlements to her primary remedy for wrongful Dismissal, that is, an order for Re – instatement having regard to the nature and status of the employment of the Appellant, the totality of the evidence and all the facts and circumstances of the case? (Distilled from Grounds 1, 2 and 11)
2. Whether the lower Court was correct and did not deny the Appellant fair hearing in failing to completely consider and pronounce on other aspects of the Appellant’s case properly placed before her, especially but not limited to the right of the Appellant to End of Service Payment in lieu of pension, which she is entitled to under the contract of employment and whether this denial of fair hearing has not occasioned the Appellant a miscarriage of justice? (Distilled from Grounds 3. 4, 5, 6 and 7)
3. Whether the lower Court was correct and breached the Appellant’s Constitutional right to fair hearing when without appraising and evaluating the totality of the evidence led contrary to the Rule in Woluchem Ors v. Gudi & Ors and Mogaji v. Odofin, lie resolved the case for libel on the basis of the alleged failure to call Next Newspaper to prove how it gathered its information and the speculation on its source of information, having raised same suo – motu? (Distilled from Grounds 8. 9 and 10)

In the Respondents’ brief, four issues were distilled as arising for determination in this appeal, namely:
1. Whether the lower Court breached the Appellant’s right to fair hearing and failed to evaluate the facts and nature of the Appellant’s employment in declining to make an Order for Re-instatement of the Appellant? (Distilled from Grounds 1 and 2)
2. Whether the Appellant is entitled to any other entitlements further to the judgment of lower Court, having regards to evidence led at trial that all the legitimate entitlements of the Appellant have been duly paid? (Distilled from Grounds 4. 5. 6 and 7)
3. Whether the lower Court, having been supplied with all the facts and evidence, correctly held in law that the Appellant failed to prove libel in the case, given that the lower Court determined that there was nothing libelous about the notice of dismissal and warning letter, both received personally by the Appellant from the 1st Respondent? (Distilled from Grounds 8, 9 and 10)
4. Whether the judgment of the lower Court was just and fair, having given a full and dispassionate consideration to the totality of the case and was made in balance with the weight of evidence, especially in the light of the fact that the judgment was in favor of the Appellant? (Distilled from Grounds 3 and 11)

I have taken time to consider the averments in the pleadings of the parties and the issues joined therein. I have also reviewed the evidence, both oral and documentary as led by the parties, as in the Record of Appeal. I have further considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the Judgment of the lower Court. I am of the firm view that the apt issues arising for determination in this appeal are the three issues for determination as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the four issues for determination as distilled in the Respondents’ brief. However, I shall consider all the three issues together and resolve them in one fell swoop.

ISSUES ONE, TWO AND THREE
(TAKEN TOGETHER)
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issues one, two and three, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the lower Court failed to properly evaluate the facts and evidence led before it and thereby arrived at perverse decision on the legal remedies available to the Appellant and contended that by the character, nature, status and special circumstances of her employment with the 1st Respondent, the Appellant having successfully proved a breach of the terms of her employment was entitled to be reinstated contrary to the perverse finding of the lower Court and urged the Court to hold that the lower Court was in grave error when it declined to order reinstatement of the Appellant and to allow the appeal, consider the nature, status and special circumstances of the Appellant’s employment and the failure of the 1st Respondent to observe the rules of natural justice in terminating the Appellant’s employment and grant her claim for reinstatement into the services of the 1st Respondent. Counsel relied on Woluchem & Ors v. Gudi & Ors (1981) 5 SC P. 291; NEPA v. Ango (2001) 5 NWLR (Pt. 737) 627 at p. 646: Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at p. 412; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303 at p. 318: Chukwuma v. SPDC (1993) 4 NWLR (Pt. 289) 512 at p. 536: Nigerian Produce Marking Board v. Adewunmi (1972) 1 All NLR (Pt. 2) 433 at p. 437; Beredugo v.. CST (1991) 4 NWLR (P. 187) 651 at p. 659; ACB Ltd v. Ewarami (1978) All NLR 114.

It was also submitted that in the peculiar circumstances as pleaded and proved by the Appellant, the lower Court was wrong when it relied on decisions which were inapposite to decline to order reinstatement of the Appellant and contended that in those decisions wrongly applied there were neither any proven allegation of breach of the employees right to fair hearing nor of any special nature and status of permanent and pensionable employment and urged the Court to hold that the reliance on decisions in which reinstatement were refused in circumstances different from the proved circumstances of the instant appeal occasioned a grave miscarriage of justice on the Appellant and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claim of the Appellant for reinstatement into the employment of the 1st Respondent or in the alternative in lieu of reinstatement to award substantial general damages against the 1st Respondent for the proved breach of the Appellant’s contract of employment. Counsel referred to Book ‘Chitty on Contracts’ (Vol. II) 1066 at para. 194 and relied on Fabumiyi & Ors v. Obaje A. Ors (1968) NMLR 92; Folarin v. State (1995) 1 NWLR (Pt. 371) 313 at p. 323: Swiss-Nigeria Wood Industries Limited v. Bogo (1970) NSCC 255: David Osuagwu v. AG Anambra State (1993) 4 NW LR (Pt. 285) 13: Addis v. Gramophone Co. (1990) AC 488; Mobil Oil (Nig) Ltd v. Akinfosile (1969) NMLR 217: Baba v. NCAT (1986) 5 NWLR (Pt. 42) 514: Nigeria Arab Bank Ltd v. Shuaibu (1991) 4 NWLR (Pt. 186) 450: Malik v. Bank of Credit and Commerce (BCC) International (S.A) (in liquidation) (1993) 2 All ER 1; Foley v. Interactive Data Carp (1988) 254 Cal. Report 211; Bayol v. Ahemba (2001) WRN 109 at P. 177.

It was further submitted that in the absence of the Respondents proving the remittances of the contributions they claim to have deducted from the Appellant’s salaries as well as the ones they allegedly contributed on her behalf towards the Pension Scheme for the entire period of over seven years that the Appellant was in the employment of the 1st Respondent to enable the lower Court calculate pro – rata the amount ultimately payable to her as her pension, in lieu of End of Service Payment the only option is for the Respondents to comply with Clause 9. 5. 2. which fixed sum is in the nature of Special Damages and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the lower Court and to award substantial damages against the Respondents in favor of the Appellant. Counsel relied on RSCE v. Omubo (1992) 8 NWLR (Pt. 260) 456 at pp. 468 – 469.

It was also submitted that the lower Court erred in law when it failed to award costs as well as pre – judgment and post – judgment interests on the monetary judgment it awarded to the Appellant against the Respondents and contended that in law costs follow events, which is the success of the Appellant in her claim for wrongful damages against the Respondent and urged the Court to so hold and to award both cost, pre – judgment and post – judgment interest on the judgment sum awarded to the Appellant against the Respondents. Counsel referred to Order 21 Rule 4 of the National Industrial Court Rules and relied on Adelaja v. Governor (1962) 1 All NLR 300.

It was also further submitted that in law in employment cases, irrespective of whether a claim is dismissed or granted, a Court should make pronouncements on all heads of claim presented before it in order to avoid a miscarriage of justice and contended that the failure of the lower Court to consider and pronounce on all the reliefs claimed by the Appellant and focusing only on the issue of fair hearing occasioned a miscarriage of justice and urged the Court to hold that in law the merits of a civil case must be decided on the totality of the evidence before the Court and without prejudging the issues and to allow the appeal, consider and resolve all the other issues submitted by the Appellant in her law or and to grant all the other reliefs claimed by the Appellant against the Respondents. Counsel relied on Ulegede v. Military Administrator, Benue State (2001) 2 NWLR (Pt. 696) 73 at p. 92; Mogaji v. Odofin (1978) 9 SC 91; Alhaji Oladoja Sanusi v. Oreitan Ameyogun (1992) 4 NWLR (Pt. 237) 527; Victor Woluchem & Ors v. Simon Gudi & Ors (1981) 5 SC 291 at 306; Akeredolu & Ors v. Akinremi (1989) 2 NWLR (Pt. 108) 164 at p. 172.

It was also submitted that on the claim for damages for libel, the lower Court merely glossed over it without any recall, appraisal, assessment or evaluation of the totality of the evidence adduced by the Appellant and her witnesses but rather raised and determined suo – motu the failure of the Appellant to call the Next Newspaper in arriving at its finding that the Appellant failed to prove her claim of libel and dismissing same and contended that the lower Court merely based its finding on speculation that the Next Newspaper having not been called to say how they came about the news, the assertion of the Respondents that the magazine might have gathered the information from the Suit filed at FCT High Court Abuja by the Appellant was not controverted and urged the Court to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant in its entirety against the Respondents. Counsel referred to the Book Gatley on Libel and Slander’ 10th Edition at p. 37 para. 2.8 and relied on Daramola v. AG. Ondo State (2000) 7 NWLR (Pt. 400) 473 p. 474: Igodim & Ors v. Obianke & Ors (1976) NMLR 212; Akanmu v. Adigun (1993) 7 NWLR (Pt. 304) 218 at p. 227; Overseas Con. Co. Ltd v. Creek Ent. Ltd & Ors (1985) 2 NSCC 1371 at p. 1380: Okoya v. Santilli (1994) 4 NWLR (Pt. 338) 256 at p. 303; Udo v. CRS Newspaper Corp. (2001) 14 NWLR (Pt. 732) 116 at pp. 161 – 162; Umar v. Bayero University Kano (1988) 2 NSCC 306.

RESPONDENTS’ COUNSEL SUBMISSIONS
In his submissions on issues one, two, three and four, which I have taken time to review, learned counsel for the Respondents had submitted inter alia that the lower Court did carried out a thorough review of the pleadings and proper evaluation of the entirety of the evidence led by the parties before arriving at the decision that the Appellant was not entitled to be reinstated and contended that the lower Court scrupulously observed the right to fair hearing of both parties in both its proceedings and consideration of the evidence and issues submitted by the parties for resolution and urged the Court to hold that the Appellant whose employment was not backed by any statutory flavor was not in law not entitled to reinstatement even if the termination of her employment was in breach of the terms of her employment and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel relied on Oloruntoba – Oju A Ors. v. Abdul-Raheem & Ors. (2009) 13 NWLR (Pt. 1157) 83; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290: Eze v. Spring Bank Plc (2011) 18 NWLR (Pt. 1278) 113; Ifeta v. SPDC (Nig.) Ltd. (2006) 8 NWLR (Pt. 983) 585: Chukwumah v. SPDC (Nig.) Ltd (1993) 4 NWLR (Pt. 289) 512 at p. 560; Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417.

It was also submitted that the question was whether the Appellant’s lawful entitlements apart from the one month salary in lieu of notice has been paid to her by the 1st Respondent and contended that from the pleadings, evidence and terms of her contract, the Appellant does not have any pending entitlement from the 1st Respondents in the light of the unchallenged evidence as in Exhibit DW22 at pages 347 – 349 of the Record of Appeal showing the pay roll table at page 348 of the Record of Appeal and clearly marked for June 2010, where the Appellant’s entitlement was paid to her in June 2010 in lieu of her one month’s notice and urged the Court to hold that the Appellant was not entitled to any further payments as found rightly by the lower Court and to dismiss the appeal, and affirm the sound judgment of the lower Court.

It was further submitted that the power of the lower Court to award post judgment interest is discretionary and contended that the lower Court was therefore, not in any error to decline to make any order of post judgment interest on the judgment sum awarded in favor of the Appellant against the 1st Respondent and urged the Court to hold that the lower Court has not been shown to have exercised its discretion wrongly and not judicially and judiciously as required of it and to dismiss the appeal and affirm the judgment of the lower Court.

it was also further submitted that the Appellant’s claim for pre-judgment interest was entirely misconceived in that the Appellant is not a commercial bank and there was never any agreement for any loan sum with an interest rate between the Appellant and the Respondents which can form the justification for such interest and contended that the Appellant was simply an employee of the 1st Respondent and urged the Court to hold that the lower Court was therefore, right when it declined to grant any prejudgment interest not proved by the Appellant against the 1st Respondent and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Hausa v. FBN Plc (2000) 9 NWLR (Pt. 671) 64 at p. 71; Idakula v. Richards (2001) 1 NWLR (Pt. 693) 111: 1 BN Plc V. IASCA (Nig.) Ltd (2015) 3 NWLR (Pt. 1 445) 1.

On the claim by the Appellant for damages for libel, it was submitted that both on the pleadings and evidence led the Appellant failed woefully to prove her claim for damages for libel in that she was unable to show that the Respondents were responsible publication of the alleged libel and contended that the lower Court correctly appraised itself of the applicable principles of law on libel and considered same in line with the evidence led by the Appellant and came to the correct conclusion that the Appellant failed to prove her claim for libel against the Respondents and to dismiss the appeal for lacking in merit and affirm the correct judgment of the lower Court. Counsel referred to Sections 131, 132 and 133 of the Evidence Act 2011. Clerk & Lindsell on Torts, Nineteenth Edition at page 1341, paragraphs 23 – 66, and relied on Ekong v. Otop (2014) NWLR (Pt. 14 19) 549: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285: Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233; Edmondson v. Birch (1907) 1 KB 371 at p. 380.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Counsel for the Appellants virtually reiterated his earlier submissions but in law the reply brief is not an avenue to raise any fresh issues and it is also not an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5(1) of the Court of Appeal Rules 2016. See also Edo State House of Assembly & Ors v. Mr. Johnson Obasogie Igbinedion & Ors (2021) LPELR- 55990(CA); Olafisoye v. FRN 2004 1 SC Pt. 11 27; Ikine v. Edjerode (2001) 12 SC (Pt. 11) 94; Longe v. FBN (2010) 2-3 SC 61; Registered Trustees, Ikoyi Club 1938 v. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).

I shall therefore, only review albeit briefly, some of the relevant non repetitive reply submissions. It was submitted inter alia that in employment cases, it is settled law that irrespective of whether a claim is dismissed or granted, a Court should make pronouncements on all heads of claim presented before him to avoid a miscarriage of justice, such as occurred in the instant case and contended that not only did the lower Court formulated issues for determination having no direct bearing on the issues as joined by the parties but it also failed to resolve several issues submitted before it by the Appellant and urged the Court to hold that in law whenever a Court gives judgment for a sum but does not grant time for payment, the sum is a present debt and could therefore, attract the payment of interest, and to allow the appeal set aside the perverse judgment of the lower Court and grant the other reliefs as claimed by the Appellant against the Respondents. Counsel relied on Ulegede V. Military Administrator, Benue State (2001) 2 NWLR (Pt. 696) 73 at p. 92; Ossai v. Wakwah (2006) 2 SCNJ 19; Ozibe & Ors v. Aigbe (1977) 7 SCI; Okpiri v. Jonah (1961) 1 All NLR 102; Ndika v. Chiejina (2002) FWLR (Pt. 117) 1178 at p. 1187; Taisei (W.A) Limited v. Xtoudos Services Nig. Ltd (2002) FWLR (Pt. 126) 954 at p. 956. Awopejo v. State (2002) FWLR (Pt. 87) 772 at p. 775; Sabbagh Bros. v. Bank of West Africa Ltd. (1966) 1 All NLR 240; NGCS Ltd v. NPA (1990) 1 NWLR (Pt. 129) 741 at p. 748: Berliet Nigeria Limited v. Alhaji Mustapha Kachalin (1996) The Nigerian Independent law Reports 100 at p. 110: Himma Merchants Limited v. Aliyu (1994) 5 NWLR (Pt. 347) 667.

​RESOLUTION OF ISSUES ONE, TWO AND THREE
My Lords, it has always been and still is a very vexed issue when in law can the proceedings and or decision of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed in the determination of their civil rights and obligations? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. Sec CBN v. Ovie & Ors (2021) LPELR – 56034(CA) per Sir Biobele Abraham Georgewill JCA. Sec also Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. v. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522.
Now, in considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited v. Alhaji Ibrahim Atta (2006) 12 NW LR (Pt. 993) 144.

However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson v. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi v. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede v. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.

The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how to sound the resultant judgment was on the merit.

However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adegbesin v. The State (2014) 9 NWLR (Pt. 1413) 609 a pp. 641 – 642. See also Abubakar v. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 465 at p. 503; Uzodinma v. Izunaso (NO. 2) (2011)17 NWLR (Pt. 1275) 30; Agbogu v. Adiche (2003) 2 NWLR (Pt. 805) 509 at p. 531; Agbapounwu v. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 at p. 40.

Before the lower Court the parties filed and exchanged pleadings and at the trial led very detailed and extensive evidence, both oral and documentary in proof of the positive assertions made by them. I have taken time to review the totality of the averments of the parties in their pleadings. I have also painstakingly evaluated the entirety of the evidence led by the parties as in the Record of Appeal and scrutinized carefully the plethora of documentary admitted in evidence as Exhibits. See pages 1 – 536 for the copious pleadings and documentary Exhibits relied upon by the parties. See pages 900 – 905, 908 – 912, 914 – 917 and 918 – 928 of the Record of Appeal for the evidence of the Appellant as PW1. See pages 932 – 934 of the Record of Appeal for the evidence of one Ambassador Ambi Alkassan who testified as PW2. See pages 936 – 937 of the Record of Appeal for the evidence of one Akin Fadeyi who testified on Subpoena as PW3 See pages 551 – 552, 939 – 940 and 946 – 957 of the Record of Appeal for the evidence of one Ahmed Ramza, who testified as DW1.

It was on the strength of the averments in the pleading and evidence led both oral and documentary that the lower Court had it is judgment delivered on 11/3/2015 entered judgment for the Appellant on some of her claims whilst dismissing the rest of her claims against the Respondents. See pages 857 – 881 of the Record of Appeal.

In the judgment of the lower Court, the Appellant was granted her one month’s salary as damages for her wrongful termination by the 1st Respondent as payment in lieu of Notice and her other entitlements due to her at the time of her wrongful termination. However, the lower Court declined to grant the claim for N3, 185, 611.89 being the amount Appellant would have earned for 35 years from 1/7/2010 – 1/7/2045 at the rate of N132, 891. 15 per month had her employment not been wrongfully terminated. It also refused to order her reinstatement into the employ of the 1st Respondent. It further declined to grant the claim for N200, 000, 000, 00 as damages for libel as well as both pre-judgment and post-judgment interest on the judgment sum it awarded to the Appellant against the Respondents.

Now, the terms of the Claimant’s employment are contained in her letter of offer as Governance Assistant dated 29th January, 2003 the letter of offer of continued Indefinite Term Employment of 19th November, 2007, the British Council Region East and West African Country, Nigeria Terms and Conditions of service for Country Appointed Staff effective 1st December, 2006 Exhibit 4, Annual Pay Review of 28th August, 2009 and Governances Employee Relations. The Exhibits relevant to her status as a Permanent and Pensionable Employee are: Exhibits 1, 2, 4 to the effect that she had served 8 years with 35 more years in the employment unless properly dismissed or she retires. Her employment was permanent and pensionable and she was entitled to Reference and her employment carried special circumstances that placed it over and above the usual or normal mere or pure master servant employment.

In the finding of the lower Court, the Appellant’s dismissal was wrongful in that it was contrary to the provisions of her terms and conditions of service under the provisions of Sections 7, 7, 1, 7, 2, 7, 3, dealing with Discipline and Appeals in Exhibit PW4 as well as the 1st Respondent’s Grievance Employee Relation in Exhibit DW 4 dealing with grievance procedure and step to be taken in resolving it. There is no appeal against this very specific finding of facts, and they are therefore, taken as accepted by all the parties, and thus, binding on both the parties and this Court.

The Appellant also claimed general damages ofN303, 891. 15 for difficulty in finding comparable employment because of the stigma and manner of dismissal, injured and/or ruffled feelings as a result of the loss of the Job. By Section 9. 5. 2 of Exhibit 4 at p. 88 of the Record of Appeal, it is provided inter alia that End of service payments are payable to staff who voluntary resign, retire, are dismissed on disciplinary grounds or die in service, and that End of service payments are payable at the rate of one month’s salary per year of service and it is to be provided either through the 1st Respondent’s contributions to a local pension provider or directly to the member of staff through a terminal gratuity payment.

However, where local pension provision is below the 1st Respondent’s End of service standard, the 1st Respondent will agree to a mechanism for ensuring that standard is met, so much so that End of service payments are backdated only until April 2005 and the amount is based on the gross monthly salary before tax or social security deductions are made, but does not include overtime payments or allowances, and is either the final month’s salary or the average monthly salary over the last 12 months of service, whichever is the higher.

The end of service provision applies to both Staff employed on an indefinite term contract (IDC) or a fixed term contract (FTC). Staff are given a forecast of their end of service entitlement every 2 years. However, Staff covered by a provident fund must have these funds audited annually and Staff are entitled to know the value of the fund every two years. The qualifying period to claim an End of service payment is six month’s service, and even in cases of dismissal on disciplinary grounds, staff will not lose their end of service payment unless they are dismissed because of fraud. The Appellant Claims that by Clause 9. 5. 2 of Exhibit 4. she was entitled to End of service payment. A claim which the 1st Respondent denied and maintained that End of service payment is in lieu of Pension.

My lords, in law where an employment is governed by the contract of employment executed by the parties and there is infraction of the terms of employment, such infraction if it resulted into a dismissal is merely wrongful and not null and void. The remedy for such wrongful termination is damages and not reinstatement and or salaries until retirement had the employment not been wrongfully terminated. Thus, it is only in contracts of employment protected by statute and therefore, clothed with statutory flavor, that such a breach, if found to be null and void, it can attract the relief of reinstatement or payment of salaries until retirement had the employment not been unlawfully terminated. See Oloruntoba – Oju & Ors. v. Abdul-Raheem & Ors. (2009) 13 NWLR (Pt. 1157) 83. See also Bamgboye v. University of llorin (1999) 10 NWLR (Pt. 622) 290; Eze v. Spring Bank Plc (2011) 18 NWLR (Pt. 1278) 113; Ifeta v. SPDC (Nig.) Ltd. (2006) 8 NWLR (Pt.983) 585.

Thus, in law the measure of damages for wrongful dismissal in a simple contract of employment under a Master Servant relationship, devoid of any legal or statutory flavor, is the amount of money that is payable during the period of notice to be given by the employer to the employee as stipulated in the contract of employment. It has never been and it still not the payment of the employee’s salaries up to the time he would have lawfully retired had he not been wrongfully terminated. See Onalaja v. African Petroleum Ltd (1991) 6 NWLR (Pt. 198) 492.
It seems so crystal clear to me like the light of the day, from the state of the pleadings and evidence led by the parties, as in the Record of Appeal, that the nature of the employment and the relationship created between the Appellant and the 1st Respondent was purely one of Master and Servant, which enjoyed neither any statutory nor legal protection. In law, an Employer who is the ’Master’ has the right to dismiss the Employee, who is the ‘Servant’ for good, bad or no reasons at all. However, where reasons are given, then the Court has a right to examine them and the onus would be on the Employer to satisfactorily substantiate them, as anything otherwise would render such a dismissal wrongful.
Now, Exhibit 2 is the Appellant’s letter of employment dated 19/11/2007 which can be found at pages 105 – 106 of the Record of Appeal, offering her a continued indefinite term employment. However, under the intense heat of cross examination, which nowadays is the real crucible or test for veracity of witnesses since the written statement on oath of witnesses assumed the alarming rate of replica of the pleadings of the parties and seldom anything more, she admitted at page 919 of the Record of Appeal that her employers, the 1st Respondent, had the right to terminate her employment though she was a permanent staff with indefinite offer of employment. I can see nothing of any statutory flavor in the employment of the Appellant founded on Exhibits 1 and 2 and all the other terms and conditions of employment relied upon by the Appellant.
My lords, what then would amount in law to a contract of employment with statutory flavor? In PHCN Plc v. Offoelo (2013) 4 NWLR (Pt. 1344) 380 at pp. 408 – 409, the Supreme Court per Muhammad JSC. had stated inter alia thus:
“It is to be noted my lords, that in matters of termination of appointment of an employee whose employment is regulated by a statute directly or by Rules, Regulations, bye – laws etc., made pursuant to a statute, the service contract is said to enjoy statutory flavor which covers it with legal protection much more than that of ordinary master and servant relationship. In other words, the employee is invested with a legal status higher than the ordinary one of master and servant and his employment enjoys statutory flavor…there has to be linkage or nexus between its employee’s appointment with the statute creating the employer or corporation.”

Now, considering the terms of the contract of employment of the Appellant and the evidence elicited under her cross examination, it is clear and I so find, her employer, the 1st Respondent at all time to her own knowledge and acceptance, had the right to terminate her employment at its own discretion, and can also summarily dismiss at any time for gross misconduct. So, did the employment of the Appellant with the 1st Respondent fit the above bill or description of what in law would amount to an employment not merely of master-servant relationship but one with statutory flavor protected by law? I think not!
In the instant appeal, the lower Court found as fact, and quite rightly too in my view, that the dismissal of the Appellant by the letter dated 1/7/2010 was wrongful. It did not find that it was null and void, a term which cannot in law be applied to contract of employment not backed by statutory flavor. In the circumstances of this case therefore, the remedy, considering the nature and status of the Appellant’s employment with the 1st Respondent, was clearly damages for wrongful dismissal as was rightly held by the lower Court.
The above is the dictate of her terms of employment with the 1st Respondent. It translates into payment of her one month’s salary in lieu of notice, no more no less! I have painstakingly reviewed the pleadings of the Appellant and thoroughly evaluated her evidence but I cannot see any evidence of any special circumstances to warrant the relief of reinstatement in an ordinary ’Master/Servant’ relationship proved to have been existed between the Appellant and her Employer, the 1st Respondent. See Chukwumah v. SPDC (Nig.) Ltd (1993) 4 NWLR (Pt. 289) 512 at P.560, where the Supreme Court per Karibi -Whyte JSC (God bless his soul) had stated inter alia thus:
“It is a well-established principle of the common law, and of Nigerian law, that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all…Ordinarily and consistent with the common law principle, the Court will not impose an employee on an employer…Hence an order for specific performance of contract of employment is an aberration which will rarely be made…termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of the confidential relationship between master and servant which cannot continue in the absence of mutuality.”
See also Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417.
In the circumstances of the pleadings and evidence led and in the absence of any Statutory flavor in the employment of the Appellant with the 1st Respondent by the mere expression of her employment to be ’indefinite term employment’, did she plead and prove any special circumstances, since the remedy of reinstatement is an equitable one which is not granted in ordinary circumstances, to warrant an order for her reinstatement into the employment of the 1st Respondent? I certainly did not think so! At any rate, in the law on employment, special circumstances must be in relation to employment that has or enjoys a legal or statutory protection or flavor and not anything otherwise. See Chukwumah v. SPDC (Nig.) Ltd (1993) 4 NWLR (Pt. 289) 512 at P.560. See also Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417; PHCN Plc v. Offoelo (2013) 4 NWLR (Pt. 1344) 380 fa pp. 408 – 409.
In the above scenario therefore, both the refusal of the lower Court to order reinstatement of the Appellant into the employment of the 1st Respondent and the contentions of the Appellant in this appeal fits perfectly and squarely the decision of the Apex Court in Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417 at p. 435. where Onu JSC had stated inter alia thus:
“The Court below was thus right, in my view, in holding that even if the retirement of the Appellant was wrongful, his remedy was in damages and not to be reinstated since doing so would amount to imposing a willing servant on an unwilling master. It is in this wise that I will discountenance the Appellant’s submission that his retirement be regulated by the Pensions Decree. This is the more so that the relationship between the Appellant and Respondent was at all material times that of ordinary master/servant. There is no statute or law protecting the relationship in terms of what procedure to observe or must be observed in order to bring the relationship to an end.”
See also Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; Bankole v. NBC (1968) 2 All NLR 371; Francis v. Municipal Council of Kuala Lumpur (1962) 3 All ER 633.

​The lower Court properly evaluated the evidence led before it and came to the correct finding that the Appellant’s contract of employment was indeed breached by the 1st Respondent for which she was entitled to damages, which going by her terms of contract of employment was payment of one month salary in lieu of notice and nothing more, and certainly not reinstatement into the employment of the P1 Respondent as was erroneously thought by the Appellant and so vehemently but also erroneously contended by learned counsel for the Appellant. See clause 9. 5. 1 of the 1st Respondent’s Terms and Conditions of Service for Country Appointed Staff (’TACOS’) into which category the Appellant belonged.

Now Exhibit DW22, is a pay slips for the Appellant showing her last payment for the month of June 2010. However, I can see that it was neither signed nor dated. Her termination was with effect from 1/7/2010. Going by the terms of her employment, coupled with the un-appealed finding of the lower Court that the termination of the Appellant’s employment by the 1st Respondent was wrongful and that she was entitled to the payment of her one month’s salary as well as her other entitlements as at the date of her wrongful termination on 1/7/2010. when is the payment of one month in lieu of notice? Is it for the month of May 2010, when the Appellant was at her job as agreed by both parties or for the month of July effective 1/7/2010?

So, can Exhibit DW22, which is clearly a payment to the Appellant of her salary for June 2010 satisfy the requirement of payment of her one month’s salary in lieu of Notice as so forcefully contended by the learned counsel for the Respondents’? I think not!

Firstly, the salary payment made to the Appellant for the month of June 2010 whilst she was still in the service of the 1st Respondent was payment for work done, and cannot in law amount to payment in lieu of notice for the purposes of her termination. Secondly, Exhibit DW22 was neither dated nor signed and is in law nothing more than a worthless piece of paper not worthy of any being ascribed with any probative value. See Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1: AG. Abia State v. Agharanya (1999) 6 NWLR (Pt. 607) 362; Kwara Inv. Co. Ltd v. Garuba (2000) 10 NWLR (Pt. 674) 25 at p. 28; Law v. NEPA (1976) 3 SC 109 at p. 127.

Now, the Appellant did not deny the fact that she has a Pension Services Account with Crusader pension which was personal to her and with contribution by the 1st Respondent at pages 922 – 923 of the Record of Appeal. Having admitted these crucial facts, there was no further duty on the 1st Respondent to prove these facts. The Appellant therefore in my finding knows where to direct her claim for entitlement to pensions etc., which is the Crusader Pension. In law such admitted facts ceases to be issues between the parties. See Section 123 of the Evidence Act 2011. See also Din v. African Newspapers (1990) 3 NWLR (Pt. 139) 392 Cd p. 405; Chief Okparaeke of Ndrakaeme & Ors v. Egbuonu & Ors. (1941)7 WACA 53; Chief Nwizuk & Ors V. Eneyok & Ors. (1953) 14 WACA 354.

In addition, I can see it provided in clauses 2. 9 and 9. 5. 2 of the TACOS, which binds the parties to this appeal, that where there is a pension there is no end of service payment and that the 1st Respondent will in accordance with local labor law deduct the employee’s contribution to the National Social Security bund. Pension fund, at the current rate, while end of service payments are payable to staff who voluntary resign, retire, are dismissed on disciplinary grounds or die in service and is payable in lieu of pension. At any rate, the onus was on the Appellant to prove any payments that were due to her from the 1st Respondent and are outstanding but which she failed to prove and not for the 1st Respondent to prove what has been paid and was not paid. See Section 131 of the Evidence Act 2011.

My lords, in the formulation of issues for determination, which is not in any way exclusive to the parties and their counsel, a Court is free to either adopt the issues formulated for determination by the parties or to tinker with them or to outrightly formulate such issues as are consistent with the case of the parties and would better promote the cause of justice in the course of the delivery of its Judgement. In this wise, it can formulate the issue suo motu in its judgment and does not require the consent and or address of the parties before it can formulate an issue for determination that would better the cause of justice in its view in considering the pleadings and evidence led before it, and particularly where the issues formulated by the parties would if considered without any touch thereto could obfuscate the real issues in controversy between the parties. A Court that does this in the interest of justice does nothing either untoward or wrong to be deprecated by an appellate Court. See Labiyi v. Anretiola (1992) 8 NWLR (Pt 258) 139 at p. 159. See also Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12 at p. 24.

Now, in an action for damages for defamation, be it libel or slander, the law requires the Claimant to plead in his pleadings and prove by credible and cogent evidence the essential elements of the tort of defamation, namely: That the words complained of are defamatory: That the words complained of referred to the Claimant: That the words complained of were published by the Defendant, and the resultant damages in case of slander except where it is actionable per se without proof of damages. See Iseramenya v. Ofodion (2020) LPELR-52236(CA) per, Sir Biobeic Abraham Georgewill JCA. See also Nsirim v. Nsirim (1990) 3 NWLR (Pt. 1380 285; Din v. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392; Onu v. Agbese(1985) 1 NWLR (Pt. 4) 704; Onyejike v. Anyasor (1992) 1 NWLR (Pt. 218) 437; Iloabachie v. Phillips (2000) 14 NWLR (Pt. 686) 43.
In law therefore, it is these ingredients that constitute a prima facie case which a Claimant must make out for the Defendant to even be required to lead evidence in his defense. In other words, once or where a Claimant by his pleadings and evidence led at the trial fails to establish any of the above ingredients, then no prima facie case of defamation could be said to have been made out against a Defendant by a Claimant by such circumstances, the Defendant need not prove anything in his defense. See The Right to a Good Name: Law of Defamation Simplified by Sir Hon Justice Biobele Abraham Georgewill, 2011 by Convince Concepts PH a pp. 63 – 64.
Thus, the first duty on the Appellant as Claimant in an action for damages for libel is to prove that the words were defamatory, and in law defamatory words may be expressly defamatory on its face or it may be ambiguous or innocuous. So, in order to succeed a Claimant must prove that the words complained of were defamatory. The real test is therefore, whether under the circumstances in which the words were alleged to have been published reasonable persons to whom the publication was made would be likely to understand it in a defamatory sense. It follows therefore if the words complained of are not defamatory then there is of course no defamation on which the claim of a Claimant could succeed. See Clerk & Lindsell on forts, 11th Edition at p. 711. See also Access Bank Plc v. MFCSS (2005) 3 NWLR (Pt. 913) 460; Okolo v. Midwest Newspaper (1977) 11 NSCC 11; Awoniyi v. AMORC (1990) 6 NWLR (Pi. 154) 42; Katto v. CBN (1999) 6 NWLR (Pt. 607) 390.
However, in the application of the reasonable person test, two questions are involved, namely: whether the words complained of are in themselves capable of a defamatory meaning, this is a question of law, and whether the words complained were in fact defamatory, this is a question of fact. So, what words could be defamatory in law? A defamatory word is that which tends to bring down the reputation of another or expose him to odium and ridicule in the estimation of reasonable members of the society. It does not necessarily mean that such a word must impute a moral fault against the Claimant. See Iseramenya v. Ofodion (2020) LPELR-52236(CA) per Sir Biobele Abraham Georgewill JCA. See also Akufere v. Sketch Publishing Co. Ltd. (1971) 1 UILR 13 @ p. 15; UBN Ltd v. Oredein (1992) 6 NWLR (Pt. 247) 355; Mr. Olusola B. George-Olumoroti v. Mr. ide O. Owodiong-Idemeko (2017) LPELR-51546 (CA) per Sir Biobele Abraham Georgewill JCA.

Now. in respect of the claim for N200,000,000. 00 for libel, the lower Court had after a thorough review of the pleadings and evidence led by the parties came to the conclusion that on reading the whole word complained of by the Appellant in the context and circumstances in which they were used there was nothing libelous about them as contained in notice of dismissal and warning letter issued to the Appellant by the 1st Respondent. I agree! Indeed, the Appellant did not give evidence of how these words either lowered or even tend to lower her reputation and or status in the estimation of a right thinking member of the Society or that they exposed her to hatred, contempt or ridicule.

It seems so apparent to me that since it is part of the duty of the 1st Respondent to terminate the employment of an employee and the letter of dismissal and warning letter were made in the reasonable and usual course of business, no publication to third party was committed by the 1st Respondent. In Katto v. CBN (1999) 6 NWLR (Pt. 607) 390 (a) p. 414. the Supreme Court had stated inert alia thus:
“Where employment is terminated in circumstances which may bring the employee into hatred, contempt or ridicule but the employer had not used or published any defamatory words against the employee in terminating his employment, the employer cannot be held liable in defamation”
See also Bryanston Finance Ltd v. De Vries (1975) 1 QB 703 p. 719, where the inimitable lord Denning MR. had held inter alia that letters typed by a typist in his course of employment under instructions by his employer would amount to a privileged occasion, where malice is not shown. See also MTS Ltd v. Akinwunmi (2009) 16 NWLR (Pt. 1 168) 633 at p. 652; Ekong v. Otop (2014) NWLR (Pt. 1419) 549.

In the instant appeal, the evidence led by the Appellant did not show that the words ‘spreading malicious rumors about a colleague’ and ‘poor performance’, which she ascribed to the Respondents, were defamatory and had lowered her status in the estimation of the right thinking members of society but rather her evidence at page 917 of the Record of Appeal merely showed that the intention for the publication was merely to prevent her to have the courage to come for reference from the 1st Respondent. This is clearly merely personal to her thinking without any adverse effect on her reputation as required for a successful claim for damages for libel. Interestingly, the Appellant unequivocally admitted under the intense heat of cross – examination at page 927 of the Record of Appeal that she was already in another employment with Speakers Canners Trust, where she stared work in April 2012.

The Appellant also admitted that she filed her Suit at the High Court before the Next Newspaper news report tendered as Exhibit 61 at pages 925 – 926 of the Record of Appeal and is merely a report of a newspaper reporter attending Court to make report of events and that as at the time the report was made, her Suit was filed already in Court, and most importantly that all the details were voluntarily provided by her through her lawyers for filling in Court in December 2010.

The Appellant seems to me to have been personally responsible for making all the details about the termination of her employment by the 1st Respondent available to the pubic since processes filed in Court are clearly in our law, taken as public documents, to which the public including the Reporter with Next Newspaper, can upon payment of prescribed fees have access to and even made copied therefore, as duly certified. See Sections 102 and 104(1) of the Evidence Act 2011. See also Ize-Iyamu Osagie Andrew v. Kadiri Sunday Oshoakpemhe & Ors (2021) LPELR-53228(CA) per Sir Biobele Abraham Georgewill JCA.

Now. the requirement of publication to a third person is to underscore the whole essence of the tort of defamation, which is geared principally towards the protection of the estimation of one’s own reputation in the eyes of others and not in the eyes of oneself. Thus, it is the protection of one own reputation in the estimation of others and the right of a person to have the estimation in which he stands in the eyes and opinion of others unaffected by false statement to his discredit that is the whole essence of the tort of defamation.
It follows therefore, to amount to publication, the words must convey a defamatory meaning to those to whom it is addressed, for in law defamation and the damages that are consequent upon its proof consist principally in the apprehension of those to whom it was published and thus the burden of proving publication, in all cases in which it is not presumed, rests squarely on the Claimant. See the very old English case of Pullman v. Hill (1891) 1 QB 524 at p. 527, where Esther MR, had put it so succinctly thus:
“You cannot publish a libel of a man to himself”
See also Dalumo v. The Sketch Publishing Co. Ltd (1972) 1 All NLR 130; The Service Press Ltd v. Azikiwe (1951) 14 WACA 176; Dafe v. Tsewinor (1967) N.M.LR. 331, Ukpoma v. Daily Times of Nigeria Ltd (1979) 2 LRN 357.

My lords, on both the pleadings and evidence led, it is clear to me, and as found quite rightly too by the lower Court that the Appellant failed woefully to prove her claim for damages for libel. Truly, she was unable to show that the Respondents were responsible for the publication, an indispensable and essential ingredient of the tort of libel, be it slander or libel, of the alleged libel. Indeed, I find that lower Court correctly appraised itself of the applicable principles of law on libel and considered same in line with the evidence led by the Appellant and came to the correct conclusion that the Appellant failed to prove her claim for libel against the Respondents.

The duty to prove the claim for damages for libel was that of the Appellant, and until she has led some evidence capable of amounting to prima facie proof of her claim against the Respondents, there was indeed no duty on the Respondent to disprove anything, since in law there would then have been no shifting of even the evidential burden unto the Respondents. See Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) 322, where the Supreme Court per Uwaifo JSC, had so succinctly put this position of law in its proper perspective thus:
“I realize that a Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie, in order that the necessity of the Defendant to confront the case so made out may arise.”
In the circumstances therefore, the Appellant’s claim for damages for libel remained bare and unproved and was thus, liable to be dismissed, as it was so rightly dismissed by the lower Court. See Sections 131, 132 and 133 of the Evidence Act 2011. See also Clerk & Lindsell on Torts, Nineteenth Edition Cd page 1341, paragraphs 23 – 66. See further Ekong v. Otop (2014) NWLR (Pt. 1419) 549; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Ayeni v. Adesina (2007) 7 NW LR (Pt. 1033) 233. My lords, the right to fair hearing is not breached simply because a party lost her case, which seems to be the thrust of the Appellant’s contentions in this appeal with regards to the issue of fair hearing. In law, the right to fair hearing is not synonymous with the right to be granted remedies sought for by a party. See Audu v. FRN (2013) 5 NWLR (Pt. 1348) 397 at p. 410.

I did not and cannot see anywhere the lower Court prejudged the issues merely by refusing to order the Appellant’s reinstatement or grant general damages in lieu of reinstatement, when it had already held that the Appellant, though her employment was breached and her termination wrongful and she was thus entitled to damages in form of one month salary in lieu of notice, she was not in an employment that enjoyed statutory or legal flavor and was therefore, not entitled to any order of reinstatement.

On the totality of the proceedings and the resultant judgement of the lower Court, it seems perfectly clear to me and I so hold, that the Appellant was duly heard and lower Court did follow all the correct legal procedures and did carried out proper evaluation of the totality of the evidence led by both parties and came to the correcting findings of facts and conclusions resulting into its correct and sound judgment devoid of any breach of the rights of both the Appellant and the Respondents to fair hearing, a right I find was most scrupulously observed by the lower Court.

On the claim for pre-judgment and post-judgment interest on the judgment sums which were each denied by the lower Court. I have already found as fact that the payment of the Appellant’s salary for June 2010 vide Exhibit DW22 did not amount to the payment of the one month’s salary to the Appellant in lieu of her termination found by the lower Court to be wrongful. I hold therefore the Appellant is entitled to payment of salary for the month of July 2010 as the rightful payment in lieu of notice for her wrongful termination by the 1st Respondent. Happily, the parties agreed that her last payment as salary per month was the sum of N132, 891. 15.

Now, having found as above that the Appellant was entitled to the payment of one month salary for the month of July 2010 as payment in lieu of her one month’s notice as required by the terms of her employment with the 1st Respondent, the question here is whether or not she was entitled to her claim for pre – judgment interest on the above judgment sum against the 1st Respondent?

My lords, I am aware that in law pre – judgment interest is in the nature of special damages, and must be specifically pleaded and specially proved to be entitled to its award by the Court. Thus, an award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary- relationship. See Chief Austine Oguejifor & Anor v. Ubakason Nigeria Limited (2022) LPELR- (CA) per Sir Biobele Abraham Georgewill JCA. See also Agboneni v. Alakiu (2018) LPELR – 44807(CA).
In the instant case, there was no iota of pleading, evidence and or circumstances from which it could be inferred that interest was payable on the salaries payable to the Appellant by the 1st Respondent or that payment of interest was contemplated in the employment contract between the parties. I am therefore, unable to hold that there was any presumption of payment of interest from the nature of the transaction between the parties to warrant the payment of pre-judgment interest in favour of the Appellant against the Respondents. See NPA v. Aminu Ibrahim & Co. & Anor (2018) LPELR – 44464 (SC) at pp. 66 – 68, where the Supreme Court per Odili JSC, had stated inter alia thus:
“On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for payment of interest, in which case a claim as such must be pleaded and proved as it would not do to just state a claim for pre-proof of same.”
In law, pre – judgment interest is not one left at the whims and caprices of one party to fix at will without the concurrence of the other party, particularly in cases where there is no agreement between the parties as to both the interest and the rate payable and in the absence of any evidence of prevailing interest rate from the Central Bank of Nigeria. In Agboneni v. Alakiu (2018) LPELR – 44807(CA), this Court had stated inter aha thus:
“The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship.”
See also Chief Austine Oguejifor & Anor v. Ubakason Nigeria Limited (2022) LPELR – 56783 (CA) per Sir Biobele Abraham Georgewill JCA; A. G. Ferrero & Co. Ltd. v. Henkel Chemicals (Nig.) Ltd. (2011) 12 NWLR (Pt 1265) 592 at p. 606; Adigun v. Osaka (2003) 5 NWLR (Pt. 812) 95.
In the circumstances therefore, there being no presumption of payment of interest from the nature of the contract of employment between the parties, there was indeed no reason whatsoever in law for the lower Court to grant such a claim. The claim for pre-judgment interest was therefore dead on arrival. This head of claim therefore, fails and was so rightly refused by the lower Court.

I now come to the Appellant’s claim for post-judgment interest, and the question here is whether or not she was entitled to her claim for post-judgment interest on the judgment sum against the 1st Respondent?

Now, by Order 21 Rule 4 of the National Industrial Court Rules 2007, it is provided as follows:
“The Court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10 percent per annum to be paid upon any judgment.”
In law, a claim for post-judgment interest is one rooted in the Rules of the lower Court, and therefore, it need not be pleaded and or proved to be entitled to it.

Looking at the entirety of the judgment of the Court below, it would appear that it glossed over the claim of the Appellant for post-judgment interest as well as the provisions of its own Rules, as in Order 21 Rule 4 of the National Industrial Court Rules 2007, when it failed to consider it or at least exercise its discretion on the record one way or the other on the Appellant’s claim for post – judgment interest. I think this is a clear case of failure of the Court below to exercise its discretion one way or the other on the claim of the Appellant for post- judgment interest on the judgment sum.
I believe it is cases like these, amongst many others, that Section 15 of the Court of Appeal Act 2004 comes into play to ensure that real and substantial justice is done to the parties according to law. Thus, under this provision, this Court has all the powers of the Court below and can in order to settle completely and finally the matter in controversy between the parties to an appeal and in order to avoid multiplicity of legal proceedings concerning any of those matters, grant all such remedies as any of the parties may appear to be entitled to such a remedy after a claim has been plainly made out, though not formally claimed and dealt with according to the relevant principles governing such a claim if it has been formally made. See Chief Austine Oguejifor & Anor v. Ubakason Nigeria Limited (2022) LPELR – 56783 (CA) per Sir Biobele Abraham Georgewill JCA. See also Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at p. 612.
It does appear to me that the provision of Order 21 Rule 4 of the National Industrial Court Rules 2007 was made to ensure that judgment debt are timeously liquidated by judgment debtors or otherwise to contend with interest as compensation for holding on to judgment debt. In my finding therefore, there was basis for the lower Court to have favourably considered the Appellant’s claim for post-judgment interest on the amount adjudged as payable as one month salary to the Appellant by the 1st Respondent in lieu of notice for her wrongful termination. The Appellant is therefore, entitled to both the payment of N132, 891. 15 and post – judgement interest on the judgement sum of N132, 891. 15 at a rate not less than 10% as prescribed by the Rules of the Court below.

In the Complaint, the Appellant had claimed the rate of 13% post – judgment interest and since this interest rate is within the prescription of the Rules of the lower Court, I hold that the Appellant is entitled to 13% post – judgment interest on the judgement sum of N132,891.15 from the date of delivery of the judgement of the lower Court, being 11/3/2015 till the entire judgment sum is finally liquidated by the 1st Respondent/Judgment debtor.

In the light to all I have stated and found as above, issue two is partly resolved in favour of the Appellant against the 1st Respondent, whilst issues one and three are hereby resolved against the Appellant in favour of the Respondents.

On the whole therefore, having resolved issue two for determination partly in favor of the Appellant against the 1st Respondents. I hold that the Appeal has merit and ought to be allowed in part. Accordingly, the Appeal is hereby allowed in part.

In the result, that part of the judgement of the National Industrial Court of Nigeria, Abuja Division. Coram: O. A. Shogbola J. in Suit No. NICN/ABJ/247/2012: Barr (Mrs.) Ramatu Umar Bako v. British Council Nigeria & Anor delivered on 11/3/2015, in which the Appellant’s claim for post-judgment interest on the judgment sum of N132, 891. 15 was refused and or declined is hereby set aside.

In its stead, there shall be post-judgment on the entire judgment sum of N132,891.15 at the rate of 13% Per Annum from the date of delivery of the said judgment, being 11/3/2015, till the entire judgment sum is finally liquidated by the 1st Respondent/Judgement Debtor.

There shall be Cost of N300,000.00 against the 1st Respondent only in favour of the Appellant.

STEPHEN JONAH ADAH, J.C.A.: I was availed the benefit of reading in draft the Judgment just delivered in Court by my learned brother, Sir, Biobele Abraham Georgewill, JCA.

​I am in agreement with the reasoning and the conclusion of my learned brother in the lead Judgment.

The issue of post-judgment interest has become settled from the decisions of our superior Courts and the state of our laws on it is simple. It is basically from the Rules of the trial Court, a discretionary issue for the Court. As we all know, judicial discretion must be exercised judicially and judiciously having regards to the facts and circumstances. Order 21 Rule 4 of the National Industrial Court Rules 2007, provides for a post-judgment interest rate of not less than 10% per annum to be paid upon any judgment of the Court. In the case of Union Bank of Nigeria v. Awmar Properties Ltd., (2018) LPELR – 44376 (SC), the Supreme Court cited with approval the decision of Lord Denning M.R. in Hartt’s Plasticine Ltd. v. Wayne Tank & Pump Corporation Ltd. (1970) 1 All ER P. 225, held as follows:
“In Harbtt’s Plasticine Ltd v. Wayne Tank & Pump Corporation Ltd (1970) 1 All ER p. 225 Lord Denning M.R. said: “It seems to me that basis of an award of interest is that the defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly.” If the case is of a commercial nature and money should have been paid some time ago, but was not paid, it ought to carry interest. A person deprived of his money must be compensated. The respondent made a case for interest in paragraph 22 of his affidavit in support, when he deposed to the fact that he sourced for the N300 Million from Banks, sister and subsidiary companies. There can be no doubt that the sum of N300 Million obtained by the respondent from banks etc, attracts interest. The transaction is of a commercial nature and the appellant has kept the respondent out of his money and the appellant, a bank has had the use of the money for itself. The Naira has for a long time been unstable, it continues to swing around with every gust that blows. An interest of 10% seems reasonable to me”.
​Let me precisely say that end of justice has an ultimate goal of treating parties impartially, fairly and reasonably by the law according to the benefit or a concomitant burden of a party’s factual circumstances. The place of deploying justice lawfully is anchored on due process. In law, a post judgment interest as distinct from a pre-judgment interest needs not be claimed or generated from the parties. It is strictly statutory and at the discretion of the Court. The rational is to compensate the successful party for the loss of use of money from the period of the Court’s judgment until the time the judgment debt is actually paid. See the cases of Berliet (Nig.) Ltd., v. Kachalla (1995) 9 NWLR (Pt. 420) 478, Ekwunife v. Wayne West Africa Ltd., (1989) LPELR – 1104 (SC), Skymit Motors Ltd v. UBA Plc (2020) LPELR – 52457 (SC) and Bronwen Energy Trading Ltd v. OAN Overseas Agency Nig. Ltd & Ors., (2022) LPELR – 57306 (SC).

In the instant case, there is a claim of post-judgment interest of 13% by the Plaintiff/Appellant. Since it was part of the claim, the trial Court cannot snub it. It must be considered and if from the circumstances of the case it can be justifiably awarded, the trial Court must award it in line with the prescription of the Rules of Court. I therefore, concur with my learned brother in the lead judgment that the post judgment interest of 13% be awarded.

With these few lines, I am in complete agreement with the well-coordinated and fuller reasons advanced in the lead judgment of my learned brother to hold that this appeal has merit and it is hereby allowed in part. I abide by all the consequential Orders made therein inclusive of the Order as to costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read in draft the lead Judgment of my learned brother, Sir Biobele Abraham Georgewill, JCA, and I am in total agreement with the reasoning and conclusion reached therein.
​I also allow the appeal in part and abide by the orders made therein.

I make no order as to costs.

Appearances:

Josiah Daniel – Ebune Esq. For Appellant(s)

Patrick Osu Esq. For Respondent(s)