DALTRADE NIGERIA LIMITED v. MR. SLAWOMIR PANTA
(2018)LCN/12209(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/288/2016
RATIO
FUNDAMENTAL RIGHT: WHAT IS FAIR HEARING
“I dare ask: what does fair hearing entail? The Supreme Court, per GALADIMA, JSC in DUKE v GOVERNMENT OF CROSS RIVER STATE & ORS (2013) LPELR 19887 (SC), aptly held that: ‘The term ‘fair hearing’, within the context of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all the parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to reach or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.'” PER ABIMBOLA OSARUGUEÂ OBASEKI – ADEJUMO, J.C.A.
Before Their Lordships
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILLJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
DALTRADE NIGERIA LIMITED – Appellant(s)
AND
MR. SLAWOMIR PANTA – Respondent(s)
ABIMBOLA OSARUGUEÂ OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an appeal filed on 22nd April, 2016 against the judgment of OYEWUNMI, J., (Mrs.) of the National Industrial Court of Nigeria sitting in Lagos delivered on 4th February, 2016 wherein the trial Court entered judgment in favour of the Respondent. The suit at the lower Court was commenced by an Amended General Form of Complaint dated 18th October, 2013, wherein the Respondent prayed the Court for the following reliefs:
1. The sum of N77,201,367.00 (Seventy-Seven Million, Two Hundred and One Thousand, Three Hundred and Sixty Seven Naira) only being amount due to the claimant as entitlement, allowances, terminal benefits and gratuities on the contract of employment between the parties.
2. Interest of the total amount of money claimed at the prevailing bank rate.
The facts of the case is that the exit of the Respondent from the Appellant’s employment on the 6th of March, 2010, the Respondent brought an action against the Appellant at the National Industrial Court of Nigeria, Lagos Division in Suit. No. NICN/618/2012 (Mr. Slawomir Panta vs Daltrade Nigeria Limited) where he claimed against the Appellant a total sum of Seventy-Seven Millions, Two Hundred and One Thousand, Three Hundred and Sixty-Seven Naira (N77,201,367.00) comprising:
1. 3 months’ salary in lieu of Notice =5,889,998.00
2. Payment in lieu of unutilized leave =4,883,332.00
3. Cost of transportation of personal effects to Poland = 271,000.00
4. Cost of Flight ticket (business class) to Poland = 500,000.00
5. Total contribution to the Company Pension Scheme = 7,231,215.00
6. Profitability bonus payment for 2008 = 5,859,999.00
7. Profitability bonus payment for 2009 = 8,789,997.00
8. Profitability bonus payment for 2010 (prorated) = 3,662,499.00
9. 13th month salary 2009 = 1,953,333.00
10. Gratuity = 35,159,994.00
11. Approved parting Gift = 3,000,000.00
TOTAL = 77,201,367.00.
Naturally dissatisfied with the decision of the lower Court, Appellant filed a Notice of Appeal dated 22nd February, 2016; and another Notice of Appeal dated 22nd April, 2016 but noted that the latter Notice of Appeal shall be relied upon in this appeal, having withdrawn the earlier Notice
In line with the practice in this Court, parties filed and exchanged their respective briefs.
By the Appellant’s brief of argument dated 26th July, 2016, filed on 27th July, 2016 and deemed properly filed on 25th October, 2017 which was settled by Ademola Olowoyeye Esq., Yetunde Olowoyeye (Miss) and Aderonke Ademetan (Miss) all of Messrs. Ademola Olowoyeye & Co., a lone issue was distilled for the determination of this appeal. The Appellant also filed a consequential amended reply brief dated 15th October, 2018 and filed same day which was settled by Ademola Olowoyeye Esq., Yetunde Olowoyeye (Miss), Erezi Joy Etemire (Miss) and Olukayode Ashaolu Esq.
The lone issue distilled is as follows:
Whether having regard to the state of the pleadings and other processes before the Court including the respective witness depositions, exhibits, oral evidence before the Court; and the state of applicable law to procedure and substantive issues before the Court, the trial Court failed to act judicially and judiciously and thereby committed a breach of the fundamental right of fair hearing against the appellant in delivering the judgment wherein almost all the reliefs sought by the Respondent were granted while all the reliefs sought by the Appellant were dismissed”
“Whether this appeal is indeed a complaint against the infringement of the Appellant’s fundamental right of fair hearing and if yes, whether same was breached by the lower Court.” SUBMISSIONS OF COUNSEL
Learned counsel to the Appellant stated that this appeal is premised on the breach of the fundamental right to fear hearing. He argued that the essence of fair hearing is hearing which is fair to both parties to the suit be they plaintiffs or defendants. He also argued that fair hearing can only be determined in relation to the facts and circumstances of a given case and not otherwise. He relied onEKIYOR v BOMAR [1997] 9 NWLR (Pt. 519) 1; KAIGAMA v NAMNAI [1997] 3 NWLR (Pt. 495) 549, 566.
Counsel cited UDE v A. G. RIVERS STATE [2002] 4 NWLR (Pt. 756) 66, 78 to contend that the Appellant’s complaint as regards the infraction of his right to fair hearing relates to: failure to show a proper understanding of the issues joined by the parties before the Court; the use or non-use of the facts which are largely documentary before his Lordship in arriving at the decision and placing undue reliance on a set of documentary evidence while failing to pay attention to or giving due consideration to another set of documentary evidence which was available to show a bigger picture of the transactions between the parties.
Learned counsel contended that the principle of pleadings is based on parties asserting a set of facts on the one hand especially by the party who felt aggrieved and the traverse of that set of facts by a contrary set of facts by the defendant. He cited IKONNE v EZIEME [2011] 11 NWLR (Pt. 1259) 536, 555; TAIWO v ADEGBORO [2011] 11 NWLR (Pt. 1259) 562, 583 and EZENWA v. K.S.H.S.M.B. [2011] 9 NWLR (Pt. 1251) 89, 132. Counsel stated that fairness and justice demand that the Court as unbiased umpire ought to avail itself of all the facts of the case holistically and that a party whose position was not taken into consideration before judgment is delivered is a victim of an unfair adjudication.
Learned counsel for the Appellant stated that the Respondent was a director in Castorama Global Concept Ltd., a company incorporated on the 14th October, 2010 having similar object clause as the Appellant.
It was submitted for the Appellant that what turned up for consideration is a wholesome consideration of (i) what is the right of the respondent prior to the meeting of 6th March, 2010; (ii) what is the right of the appellant prior to the decision of 6th March, 2010; what is the status of the resolution embodied in exhibit. SP16 and what is the effect of the action taking by the respondent subsequent to the meeting of the directors of the appellant on the 6th of March, 2010 and the extent it has affected the contractual relationship of the parties and the reliefs subsequently and respectively sought by the parties. He argued that the approach of his lordship to treat the issue simply on the right of an employee robbed the judgment of the due consideration of the issues submitted.
Counsel contended that the success of the Respondent’s claim must depend solely on the right open to him as at the time of approaching the Court. He cited NJIKONYE v. MTN NIG. COMM. LTD. [2008] 9 NWLR (Pt. 1092) 339, 363-364. Counsel for the Appellant argued that the trial Court did not advert her mind to the fact that a company may make provision in its memorandum and article of association for a lot of object and internal regulations. In conclusion, it was submitted on behalf of the Appellant that the judgment of the lower only articulated the case of one of the parties and suppressed the case of the other party, breaching the Appellant’s right to fair hearing.
On the part of the Respondent, Counsel opened his argument by defining in the spirit of Black’s Law Dictionary 6th Ed., page 579 of Fair Hearing as a hearing in which authority is fairly exercised consistently with fundamental principles of justice, embraced within the conceptions of due process of law. He stated that the hallmark of fair hearing includes that authority is exercised according to the principle of due process of law. He referred toALAKE v. ABALAKA [2002] FWLR (Pt. 88) 931 at 934 & 944.
Counsel contended maintained relying on case laws to state the features of fair hearing; he referred this Court to OTU BASSEY EKPENETU v. MFAWA OFEGOBI & Ors. [2012] ALL FWLR (Pt. 680); NJIOKWUEMENI v. OCHER [2004] 5 NWLR (Pt. 895) 196; Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Counsel contended that the Appellant’s appeal has nothing to do with contravention of its right of fair hearing and that the Appellant craftily tailored its grounds of appeal in line with breach of fair hearing within the purview of Section 234(2) of the Constitution despite the clear provisions of Section 243(3) of the Constitution and Section 9 of the National Industrial Court Act, 2006. On this, counsel relied on ADEBAYO v. A.G. OGUN STATE [2008] ALL FWLR (Pt. 412) 1195 at 1212; MAGAJI v. NIGERIAN ARMY [2008] 8 NWLR (Pt. 1089) 338 where the Court states that it has become a style for litigants to resort to their right of fair hearing in appeal as if it is a magic wand to cure all their inadequacies at the trial Court.
Counsel submitted that the Appellant’s appeal is not a complaint of breach of fundamental right of fair hearing and as such does not arise from the judgment of the lower Court. Counsel stated that the appeal is a complaint against the entire ratio decidendi of the judgment and not a breach of fundamental right. Learned counsel argued on the authorities of NDUKAUBA v. KOLOMO [2005] 4 NWLR (Pt. 915) 41; ORUGBO v. UNA [2002] FWLR (Pt. 127) 1024 at 1028 & 1047 that fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. He then chronicled the trial history of this appeal in paragraph 4.15 and noted that Appellant was represented almost at every sitting of the lower Court and stated that the Court granted every single application made by the Appellant during trial.
Counsel commended to this Court the cases of KAIGAMA vs. NAMNAI [1997] 3 NWLR (Pt. 495) 549; ISHIYAKU MOHAMMED v. KANO NATIVE AUTHORITY [1968] 1 All NLR 424 to argue that the test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. He also cited FUNDUK ENGINEERING LIMITED v. MCARTHUR [1995] 4 NWLR (Pt. 392) 460; YAKUBU v. GOVERNOR OF KOGIÂ STATE [1995] 8 NWLR (Pt. 414) 386.
In the end, counsel urged the Court to dismiss the appeal with substantial cost, having filed same to bamboozle the Court and the Respondent and to deflect the attention of the Court from the live issues in litigation.
In its Consequential Amended Reply Brief, learned counsel for the Appellant argued that the objection of the Respondent that the appeal is not within the provision of Section 234(2) of the Constitution ought to have been raised under Order 10 Rule 1 of the Court of Appeal Rules 2016 by way of Motion on Notice and having neglected to so do, same ought to be discountenanced by the Court. Counsel further replied the Respondent that
(i) his argument did not pay attention to the Appellant’s argument where the thrust of the argument revolves around how the lower Court arrived at its decision in the matter;
(ii) the respondent’s argument revolved wholly around complaints of breach of fair hearing only ad it relates to the procedure before the open Court; and
(iii) that the Respondent went on a wild goose chase in the process deprived himself the opportunity of being able to see that the substance of the argument of the Appellant is in what the Court ought to have done in the course of the duty to evaluate, weight the facts, determine all issues before it and give judgment that is just.
Learned counsel contended that the Respondent failed to join issues with the Appellant as to what constitutes the breach of the right to fair hearing. Counsel relied on plethora of authorities such as Section 36(1) of the Constitution; ALAKE v. ABALAKA [2002] FWLR (Pt. 88) 931 at 934 & 944 and submitted that the lower Court’s decision constitutes a breach of fundamental right of fair hearing of the Appellant.
He also cited FALOUGHI v. FIRST IMPRESSION CLEANERS LIMITED [2014] 7 NWLR (Pt. 1406) 335; SULE v. STATE [2018] 10 NWLR (Pt. 1628) 543, 561; OKORIE v. STATE [2018] 11 NWLR (Pt. 1629) 123 and OVUNWO v WOKO [2011] 17 NWLR (Pt. 1277) 522, 546-547 to the effect that the duty of trial Court is to determine issues placed before it by parties in litigation and not to ignore the issues.
In conclusion, counsel for the Appellant urged the Court to discountenance the objection and submissions made by the Respondent in its amended Reply Brief and he referred to the case of MRS. SUSAN OLAPEJU OLLEY v. HON. OLUKOLU GANIYU TUNJI [2013] 10 NWLR (Pt. 1362) 275 at 321 para D to state that the Respondent having failed to join issues with the Appellant is deemed to have admitted the correctness of the arguments canvassed.
RESOLUTION
I have given careful consideration to the issues formulated and the submissions made thereon by counsel to the respective parties. It is obvious that while the Appellant argued that its right to fair hearing was breached, it is the contention of the Respondent that the Appellant’s appeal is not a complaint against the infringement of the Appellant’s fundamental right. I shall therefore consider the merit of the Respondent’s contention before dwelling on the complaint of the Appellant.
Appellant’s counsel, as a preliminary point in his Reply brief, noted that the issue raised by the Respondent in his brief implying that the appeal does not fall under the provision of Section 234(2) of the 1999 Constitution (as amended), relates to the competence of the appeal, and ought to have been raised pursuant to Order 10 Rule 1 of the Court of Appeal, 2016 which reads:
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
2. ….
3. Where the Respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or may make such other order as it thinks fit.”
No doubt, the above provision of the Court of Appeal Rules is couched in mandatory terms, and it is incumbent on any Respondent who intends to object to the competence of an Appellant’s appeal to comply with the said provision. Where a Respondent fails to comply, his objection will be discountenanced by the Court. However, it must be stressed that the Courts have recognized that an objection can also be raised in a Respondent’s brief but before it can be deemed proper, the Respondent must seek leave of the Court to move same, else it will be deemed abandoned.
See the decision of the Supreme Court in REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG. v NAMA (2014) LPELR 22372 (SC), where KEKERE-EKUN, JSC held:
“I think it is fair to say that the method of raising a preliminary objection, apart from giving the appellant three clear days notice from the date of the hearing, is now firmly settled. The respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to effect that there is the need for the respondent or his counsel to seek the leave of the Court to move the objection before the hearing of the appeal. The effect of failure to move the objection during oral hearing of the appeal is that it is deemed abandoned”
See also OWNERS OF THE MV’ARABELLA v NAIC (2008) LPELR 2848 (SC). Looking at the sole issue formulated by the Respondent as well as the arguments canvassed on it, it is obvious that the Respondent is objecting to the competence of the Appellant’s appeal, which according to him, is not truly a complaint against the infringement of the Appellant’s fair hearing. Failure to comply with Order 10 of the Court of Appeal Rules and/or seek the leave of the Court to move the purported objection is fatal; the Respondent’s objection will therefore be deemed abandoned, and his arguments, particularly those relating to the objection will be discountenanced.
As earlier noted, Appellant is complaining that his right to fair hearing was infringed. I dare ask: what does fair hearing entail? The Supreme Court, per GALADIMA, JSC in DUKE v GOVERNMENT OF CROSS RIVER STATE & ORS (2013) LPELR 19887 (SC), aptly held that:
“The term ‘fair hearing’, within the context of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all the parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to reach or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.”
While stating the position on the nature and essence of fair hearing, learned Jurist, ARIWOOLA, JSC in OKANLAWON v STATE (2015) LPELR 24838 (SC) held as follows:
“The principle of fair hearing as constitutionally guaranteed in Section 36 of the 1999 Constitution, no doubt is derived from the principle of Natural Justice with its twin pillars of ‘audi alteram partem’ and ‘nemo judex in causa sua’. This principle of fair hearing is no doubt fundamental to the administration of justice. The Court is required to conduct trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of or against either party. It is note worthy that complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance” See also NWOKOCHA v A.G. IMO STATE (2016) LPELR 40077 (SC).
I have carefully gone through the submissions made by the Appellant’s counsel in the brief of argument and I find that the Appellant’s complaint that its right to fair hearing was breached by the learned trial judge is predicated on the alleged failure to show a proper understanding of the issues joined by the parties; the use or non-use of the facts which are largely documentary before the Court in arriving at the decision and placing undue reliance on a set of documentary evidence while failing to pay attention to or giving due consideration to another set of documentary evidence which was available to show a bigger picture of the transactions between the parties.
It is essentially the complaint of the Appellant that the learned judge failed to show a proper understanding of the issues joined by the parties, by failing to recognize that the resolution dated 6th March, 2010 was an offer of a compromise to the Respondent rather than creating new right in favour of the Respondent, as the existence of a contract can only arise after the compromise has been accepted. The judgment of the lower Court can be found at pages 442 to 471 of the record of appeal.
After finding that the Respondent/Claimant had proved his entitlement to reliefs sought, save for the one on gratuity, the learned trial judge, at page 468 to 470 of the record of appeal, held as follows:
“As regards issue two, which is whether or not the defendant has proven its counter claim to entitle it to same; Defendant is seeking for a declaration that the board resolution dated 6th March, 2010 does not constitute a valid amendment to the claimant’s condition of employment.
It is the submission of the defendant that the said resolution was not approved by the claimant and thus invalid and should be so declared. It is the claimant’s argument on the other hand that as a member of the board present at the same meeting where he also made presentation to the board for ratification of his entitlements and same was ratified by the defendant’s board of Directors, he admits of all that was done at the board meeting.
One wonders why the defendant who has argued severally in its pleadings about the excess monies and allowances collected by the claimant, would still go ahead to approve by ratifying the benefits and allowances it did by its board on the 6th March, 2010 to the claimant, the same day it urged the claimant to resign. That in my humble view is like giving a dog a bad name in order to hang it. In any case, the board resolution of 6th March, 2010 is binding on the defendant and also the claimant who was a member of the board and equally presented the request as approved by the board. The action of the defendant’s board of which the claimant was a member suffices as an amendment to his contract of employment especially the remuneration and allowance aspect of Exhibit SP1.
A cursory look at Exhibit SP1, Articles 10 states that any amendment to the terms of this conditions (sic) of service shall be void unless given in written form and approved by the board of directors and MD. It is thus clear by this article that Exhibit SP16 being a resolution of the board of the defendant and the claimant being in attendance as a member of the board and did not raise any objection to the approval of his benefits, I would have been surprised if he did, is in compliance with the provisions of Article 10 of Exhibit SP1. It is also in my respectful view that the prayer of the defendant on this issue is an afterthought, unmeritorious and an attempt by the defendant to resile from its formal decision which remains binding on it. It is in consequence that I find that the board of resolution of 6th March, 2010 is declared as an amendment to the claimant’s contract of employment.
I so find and hold.
It is obvious from the part of the lower Court’s judgment reproduced above that the learned judge ipso facto understood, appreciated and considered the case of the parties before it. The learned judge in line with her judicial duty carried out a proper evaluation of the evidence before her, before reaching a conclusion that is seemingly not favourable to the Appellant. It is noteworthy that the Appellant’s case before us in this appeal is hinged on the fact that its right to fair hearing was breached by the trial Court and it is that question that this Court is expected to resolve. Contrary to the erroneous contention of the Appellant’s counsel, I believe, from a careful reading of the entire judgment of the learned trial judge, that the judge comprehensively evaluated the evidence presented by the parties before her and reached a justifiable conclusion.
As earlier noted, fair hearing connotes a trial in which the authority of the Court has fairly been exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law. This means allowing the parties equal opportunity to present evidence; cross-examine witnesses and for the trial Court to make findings which are supported by evidence. SeeWOMILOJU v ANIBIRE [2010] 10 NWLR (PT. 1203) 545; OMONIYI v GENERAL SCHOOLS BOARD, AKURE & ORS [1988] 4 NWLR (PT. 89) 449; WHYTE v JACK [1996] 2 NWLR (PT. 431) 407. It is my candid opinion that the learned trial judge cannot be found wanting for failure to conduct trial in accordance with the principle of fair hearing. Needless to say that judgment writing is an art of itself and it will not matter what method was adopted by a judge. The fact the Appellant expects a Court to adopt a method and same was not adopted, does not render the judgment, a nullity.
The essential features of good judgment include summary facts of the case, claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of counsel, reactions of the judge to the arguments (including evaluation of the evidence and application of the relevant laws) and final order of the Court. With these features present, the judgment of a Court may pass the evaluation of appellate Court. See USIOBAIFO v USIOBAIFO [2005] 3 NWLR (PT. 913) 665; UZUDA v EBIGAH [2009] 15 NWLR (PT. 1163) 1; OKULATE v AWOSANYA [2000] 2 NWLR (PT 646) 530.
At the risk of repetition, I believe, from the obvious facts on record, that the lower Court painstakingly considered the processes filed, documents tendered and submissions of counsel to both parties as well as the position of law applicable before it before arriving at a conclusion on the balance of probability. The learned trial judge rightly pointed out where parties joined issues and where they varied. The Court also referred to various exhibits tendered and admitted during trial to arrive at its decision. There is in my respectful view, no denial of fair hearing. See AGBAHOMOVO & ANOR v EDUYEGBE & ORS (1999) LPELR ??? 224 (SC) where ONU, JSC said:
“On what really amounts to a denial of fair hearing, this Court held in Otapo & Ors. v. Sunmonu & Ors (1987) 2 NWLR (Pt. 58) 587 at 605, (1987) 5 SCNJ 56 at 75 (per Obaseki, J.S.C) as follows: ‘A hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given opportunity to be heard, the hearing cannot qualify as fair hearing’ Without fair hearing, the principles of natural justice are abandoned.”
It has been held in a plethora of judicial authorities that the true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case. See ARDO v INEC & ORS (2017) LPELR 41919 (SC). It is certainly not the case of the Appellant that it was not given an opportunity to be heard by the trial judge. Without mincing words, particularly from the arguments canvassed by the Appellant’s counsel, I must say that the Appellant’s appeal has no bearing on any complaint relating to breach of fundamental right to fair hearing guaranteed by the Constitution.
As a matter of fact, Appellant’s brief is replete with submissions principally based on evaluation of evidence by the trial Court. Knowing that this Court can only hear an appeal from decisions of the National Industrial Court relating to questions of fundamental rights and criminal matter, Appellant had, in order to foist an appeal on this Court, couched its complaint in such a manner that it is presented as a complain relating to question of fundamental right. This is clearly wrong. As NIKI TOBI, JSC (of blessed memory) aptly said in ADEBAYO v A-G., OGUN STATE [2008] 7 NWLR (PT 1085) 201 at 205 to 206:
“I have seen in recent time that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the Constitution is violated or contravened. They do not stop there. They make the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of Justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied a fair hearing because he was not hear or that he was properly heard in the case.” See alsoMAGAJI v NIGERIAN ARMY (supra).
Having found otherwise that the Appellant’s right to fair hearing was not breached, I have no hesitation in resolving the sole issue in this appeal against the Appellant.
Consequently, this Appeal fails and it is hereby dismissed. The judgment of National Industrial Court, Lagos Division, coram OYEWUNMI, J., (Mrs.) delivered on 4th of February, 2016 is hereby affirmed. Costs of N100,000.00 awarded in favour of the Respondent.
TOM SHAIBU YAKUBU, J.C.A.: The opinion expressed by my Lord, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., wholly represents my thoughts on this appeal. I have nothing more useful, to add to it.
l too dismiss this appeal, as grossly lacking in merits. The judgment rendered by Oyewunmi, J., at the National Industrial Court, Lagos Division, Lagos, on 4th February, 2016, in Re-Suit No: NICN/LA/618/2012, is hereby affirmed.
I endorse the award of costs contained in the lead judgment.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had privilege of reading in draft the lead judgment of my lord ABIMBOLA OSARAGUE OBASEKI – ADEJUMO, J.C.A., just delivered
I agree and adopt as mine. I have nothing more to add.
Appearances:
Ademola Olowoyeye with him, C. I. Ajakaiye and Joy Etemiri For Appellant(s)
Jude Odome For Respondent(s)
