JOHN HOLT PLC v. NWABUWA (2020)

JOHN HOLT PLC v. NWABUWA

(2020)LCN/14438(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/875/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

JOHN HOLT PLC APPELANT(S)

And

MARTIN NWABUWA RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

Let me iterate that the quodlibet is whether the Appellant’s right to fair hearing or fair trial was breached. Now, fair hearing envisages that the parties to a case should be given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the case should be fair and impartial. See ELIKE vs. NWAKWOALA (1984) 12 SC 301 and ALSTHOM S. A. vs. SARAKI (2005) LPELR (435) 1 at 23. But what is fair hearing? In MOHAMMED vs. KANO N. A. (1968) 1 ALL NLR 42, Ademola, CJN stated:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.”
Section 36 (1) of the 1999 Constitution dealing with fair hearing is designed to ensure that in the administration of justice, parties must each be accorded every opportunity of canvassing their case within the rules regulating the procedure: NIGERIAN-ARAB BANK LTD vs. COMEX(1999) 6 NWLR (PT. 608) 648 and ATOBATELE vs. FASERU (2012) LPELR (9305) 1 at 20-21. So what does fair hearing entail? Hear my Lord Galadima, JSC in DUKE vs. GOVT OF CROSS RIVER STATE (2013) LPELR (19887) 1 at 18:
“The term ‘fair hearing’ within the context of Section 36 (1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.”
See also ESABUNOR vs. FAWEYA (2019) LPELR (46961) 1 at 23. PER OGAKWU, J.C.A.

THE MEANING OF “MISCARRIAGE OF JUSTICE”

Miscarriage of justice is the failure on the part of the Court to do justice. It is justice misplaced, misappropriated or misappreciated. See OGUNTAYO vs. ADELAJA (2009) 15 NWLR (PT. 1163) 150 or (2009) LPELR (2353) 1 at 43-44. Miscarriage of justice occurs when a Court fails or refuses to follow the Rules. It is the diacritical circumstances of the complaint of breach of fair hearing that will contextualize whether there has been a miscarriage of justice. The miscarriage of justice on the basis of which an Appellate Court will interfere is where the violation of some principle of law or procedure is such that if corrected, a different result will be the outcome; or it may be the neglect of some principle of law or procedure which if it had not been neglected, a different result will be the outcome:DAGACI OF DERE vs. DAGACI OF EBWE (2006) 7 NWLR (PT. 979) 382 or (2006) LPELR (911) 1 at 42. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent was a Senior Executive with the Appellant Company. Upon his compulsory retirement by the Appellant, he instituted proceedings before the National Industrial Court of Nigeria in SUIT NO. NICN/LA/124/2014: MR. MARTIN NWABUWA vs. JOHN HOTEL PLC, contending that he was not paid his full entitlement consequent upon his compulsory retirement. He claimed the following reliefs:
“1. AN ORDER directing the Defendant to pay to the Claimant the sum of N11,227,459.24 (Eleven Million, Two Hundred and Twenty-seven Thousand, Four Hundred and Fifty-nine Naira, Twenty-four Kobo) being the aggregation of the sums wrongly withheld from the Claimant since he prematurely retired from the employment of the Defendant on 16th October 2009.
b) AN ORDER directing the Defendant to pay interest on the said sum at the rate of 18% per annum from October 2009 until Judgment and thereafter at the rate of 15% per annum until the whole sum is paid to the Claimant by the Defendant.
(c) AN ORDER of exemplary and punitive damages against the Defendant and in favour of the Claimant.

(d) AN ORDER directing the Defendant to pay to the Claimant the cost of prosecuting this Suit in the sum of N1,500,000.00.”

The parties filed and exchanged pleadings and the matter was subjected to a full dressed hearing where testimonial and documentary evidence was adduced. At the close of evidence, learned counsel filed and exchanged final written addresses and in its judgment which was delivered on 6th April, 2017, the lower Court entered judgment in part for the Respondent, conclusively stating as follows:
“Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment,
1. I direct and order the Defendant to pay to the Claimant the sum of N8,211,310.70 being the gratuity entitlement of the Claimant from the Defendant.
2. I order and direct the Defendant to pay to the Claimant the sum of N2,683,434.90 being his 6 months’ salary in lieu of notice of termination.
3. I refuse the claim for payment of N1,232,713.64 in lieu of the 12 weeks outstanding leave.
4. I refuse and dismiss the claim for exemplary and punitive damages.
5. The claim for October 2009 Salary and Allowances for 16 days in

the sum of N274,655.81 was not backed by evidence respecting how the Claimant came by the figure stated. I therefore refuse and dismiss same accordingly.
6. Pursuant to Order 47 Rule 7, National Industrial Court of Nigeria (Civil Procedure) Rules 2017, I award interest at the rate of 10% per annum to be paid on the entire Judgment sum from October 2009 until final liquidation.
7. The Defendant is to pay cost of proceedings assed [sic] at N50,000.00 only to the Claimant.
All the terms of this Judgment shall be compiled with within 30 days from today.
Judgment is entered accordingly.”
The judgment of the lower Court is at pages 291-298 of the Records.

The Appellant was dissatisfied with the judgment and appealed against the same. Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. The Appellant’s Brief was filed on 5th March, 2018 but deemed as properly filed on 16th October, 2018. The Appellant distilled three issues for determination, which issues the Respondent adopted in his

Respondent’s Brief filed on 28th January, 2020, but deemed as properly filed on 11th March, 2020. The issues formulated for determination are as follows:
“1. Whether the Appellant’s right to fair trial and fair hearing was not breached when the learned trial judge failed, neglected or refused to consider or properly evaluate essential, credible and compelling evidence of the Appellant and wrongly and unjustly awarded the sum of N8,211,310.70 as gratuity, entitlement and the sum of N2,683,434.90 as six month’s salary in lieu of notice to the Respondent.
This issue is distilled from Ground 1 of the Notice of Appeal.
2. Whether the Appellant’s right to fair hearing was not breached when the learned trial judge proceeded suo motu to award pre-judgment interest of 10% per annum on the judgment sum, commencing retroactively on an imprecise, unspecified and speculative date in October, 2009 without inviting the parties or their counsel to address the Court on the issue.
This issue is distilled from ground 2 of the Amended Notice of Appeal.
3. Whether there was no miscarriage of justice when the lower Court gave

judgment against the weight of evidence and when the Claimant (now Respondent) failed to establish his claims by any credible evidence.
This issue is distilled from Ground 4 and 5 of the Amended Notice of Appeal.”

I will presently review the submissions of learned counsel and then seamlessly resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the non-consideration or improper evaluation of the evidence by the lower Court was a breach of the Appellant’s right to fair hearing or fair trial. It was stated that it was wrong evaluation for the lower Court to discard and ignore Exhibits D3, D4 and D7 and also by failing to make use of Exhibit D5 which showed the calculation of the Respondent’s entitlement and his acknowledged indebtedness to the Appellant. It was maintained that the evaluation of evidence was wrong, biased and prejudicial; thereby requiring the intervention of an appellate Court to correct the injustice and breach of fair hearing.

It was contended that without proper evaluation of the evidence, the lower Court awarded the Respondent more than he was entitled

to as six months’ salary in lieu of notice of retirement. Section 11 (9) of the Labour Act and the persuasive case of OKPETA vs. NIGERDOCK (2013) 30 NLLR (PT 86) 304 were referred to. This Court was urged to evaluate the evidence and come to a decision that is correct and fair vide AFOLABI vs. WSN LTD (2012) 17 NWLR (PT. 1329) 286, OTUKPO vs. JOHN (2012) 7 NWLR (PT 1299) 357, NGUMA vs. A-G IMO STATE (2014) NWLR [no volume stated] (PT 1405) [sic]119 SC at 140-141, OSAGHAE vs. AMADASUN (2014) 16 NWLR (PT. 1433) 346 at 369-370 and CHUKWU vs. AKPELU (2014) 13 NWLR (PT 1424) 359 at 387-388. The Appellant asserted that the breach of fair hearing occasioned by improper evaluation of the evidence vitiated the proceedings. The cases of OVUNWO vs. WOKO (2011) 17 NWLR (PT. 1277) 522, TIPPI vs. NOTANI (2011) 8 NWLR (PT. 1249) 285 at 306 and OTAPO vs. SUNMONU (1987) 2 NWLR (PT. 58) 587 were relied upon.

Arguing the second issue, the Appellant posits that it was wrong for the lower Court to suo motu award pre-trial interest on gratuity, without hearing the parties, and in making a retroactive award commencing on an imprecise, unspecified or speculative date in

October 2009. The failure to have the parties address it on the issue, it was opined, was a breach of the Appellant’s right to fair hearing. It was stated that the Respondent having retired on 16th October, 2009, the imprecise date meant that the interest was ordered from 1st October, 2009, which was before the Respondent retired. It was asserted that the issue raised suo motu without hearing the parties was a breach of fair hearing and the decision reached was liable to be set aside videLEADERS & CO. LTD vs. BAMAIYI (2010) 18 NWLR (PT. 1225) 329 at 342-343 and 345.

The quiddity of the Appellant’s submission on the third issue is that the Respondent did not prove his case based on credible evidence adduced at the trial and that it was a miscarriage of justice for the lower Court to have entered judgment for him, more so, when there was evidence that the Respondent was indebted to the Appellant and the amount awarded by the lower Court was not in consonance with the Appellant’s extant policy for calculation of gratuity as borne out by Exhibit D7. Sections 121 and 135 of the Evidence Act and the case of AIGBOBAHI vs. AIFUWA (2006) 6 NWLR

new_anno(PT. 976) 270 at 290-291 were referred to. It was further submitted that the award of pre-judgment interest retroactively was against the weight of evidence, since no evidence was adduced to prove the same. The cases ofI. T. B. PLC vs. K.H.C. LTD (2006) 2 NWLR (PT. 968) 443 at 460, INTERCONTINENTAL BANK LTD vs. BRIFINA LTD (2012) 13 NWLR (PT. 1316) 1, COUNCIL, F. U. T. A. vs. AJIDAHUN (2014) 14 NWLR (PT. 1321) 583 at 605, P. P. MADUS NIG LTD vs. ROADS NIG PLC (2011) 2 NWLR (PT. 1230) 88, A-G FERRERO & CO LTD vs. H. C. NIG LTD (2011) 13 NWLR (PT 1265) 592 at 612, RMAFC vs. U.E.S LTD (2013) 34 NWLR (PT 102) 715 at 761 and NNPC vs. CLIFCO NIG LTD (2011) 10 NWLR (PT 1255) 209 at 235 were cited in support.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that where the findings of a trial Court are arrived at based on sound legal principles, an Appellate Court will not interfere with the same vide OROKE vs. EDE (1964) NNLR 119-120 and AJADI vs. OKENIHUN (1985) 1 NWLR (PT. 3) 484 at 492. It was maintained that the lower Court observed the twin pillars of natural justice and that the parties were afforded fair hearing as required by

Section 36 (1) of the Constitution. The Appellant, it was opined, could therefore not wave a magic wand of fair hearing. The cases of AGBITI vs. NIGERIAN NAVY (2011) LPELR-2944 (SC), IMONIKHE vs. UNITY BANK PLC (2011) LPELR-1503 (SC), INEC vs. MUSA (2003) LPELR-24927 (SC) and ORUGBO vs. UNA (2002) LPELR-2778 (SC) were called in aid.

The Respondent contended that the lower Court having properly evaluated the evidence and appraised the facts, an Appellate Court cannot interfere as the findings made are not perverse. The case of CPC vs. INEC (2011) LPELR-8257 (SC) was relied upon. It was posited that after due evaluation of the evidence, the lower Court preferred Exhibit C2 to Exhibit D7 as the document to be used in calculating the Respondent’s entitlement. It was maintained that Section 11 (9) of the Labour Act was inapplicable as the Respondent, being a Senior Executive, was not a worker within the meaning of Section 91 (1) of the Labour Act. The cases of MBILITEM vs. UNITY KAPITAL ASSURANCE (2013) 32 NLLR 196 at 231-232 and EVANS BROS (NIG) PUBLISHERS LTD vs. FALAIYE (2005) 4 NLLR 108 at 132 were referred to.

The Respondent’s submission on the

second issue is that he claimed both pre-judgment and post-judgment interest and that Order 47 Rule 7 of the Rules of the Lower Court empowers the lower Court to award interest; and that even if it was not claimed, the lower Court could still award the same as a consequential order videAFRICAN INTERNATIONAL BANK LTD vs. INTEGRATED DIMENSIONAL SYSTEM LTD (2012) LPELR-9710 (SC). It was further submitted that the Respondent led evidence to prove the interest claimed. The case of PETGAS RES. LTD vs. MBANEFO (2007) 6 NWLR (PT. 1031) 545 at 562 was relied upon. It was posited that the date of 16th October, 2009 when the Respondent was retired is not disputed and that the interest awarded was not imprecise as it would be from the date of retirement.

The conspectus of the Respondent’s submission on the third issue is that he established his case on the balance of probability as stipulated in Section 134 of the Evidence Act vide ADAMU vs. NWOKOYE (2015) LPELR-40869 (CA). It was conclusively asserted that having adduced sufficient evidence, the burden shifted to the Appellant to adduce contrary evidence, which it failed to do, in consequence of which judgment

was rightly entered in favour of the Respondent. The case ofDALA vs. AYODELE (2014) LPELR-24621 (CA) at 24-26 was called in aid.

RESOLUTION
Prefatorily, it is as clear as crystal that the Appellant’s grouch with the decision of the lower Court and on the basis of which it has ventilated its argument in this appeal is on the evaluation of evidence and ascription of probative value thereto by the lower Court. The Appellant complains that it was on account of improper evaluation of the evidence that the lower Court made the award of various sums in favour of the Respondent being his gratuity, entitlement and six months’ salary in lieu of notice of retirement. It further complains that the lower Court, suo motu, awarded pre-judgment interest commencing retroactively on an unspecified, imprecise and speculative date, without affording the parties a hearing. Finally, the Appellant contends that there was miscarriage of justice as the judgment was against the weight of the evidence. The binding thread coalescing the Appellant’s complaints is that its right to fair hearing and fair trial was breached by the lower Court.

Now, the decision appealed against is the decision of the National Industrial Court of Nigeria. The knotty and vexed issue of whether appeals lie from the decisions of the National Industrial Court and in what circumstances has now been laid to rest by the decision of the Supreme Court in SYKE BANK vs. IWU (2017) LPELR (42595) 1 at 64-66. The inscape of the ex cathedra pronouncement of the apex Court in SYKE BANK vs. IWU (supra) is summed up in the dictum of Nweze, JSC as follows:
“In all then, on a holistic interpretation of Section 240 and 243(1) of the 1999 Constitution, appeals lie from the trial Court to the Lower Court, that is, all decisions of the trial Court are appealable to the Lower Court: as of right in criminal matters, [Section 254C (5) and (6)] and Fundamental Rights cases [Section 243 (2)]; and with the leave of the Lower Court, in all other civil matters where the trial Court has exercised its jurisdiction, Section 240 read conjunctively with Section 243 (1) and (4).”
So the now settled legal position is that appeals lie from decisions of the National Industrial Court to this Court. In criminal cases, the appeals lie as of right.

In civil matters, the appeals lie as of right on grounds or questions of fundamental rights and with leave of Court in respect of any other grounds or questions that do not involve fundamental rights. I have closely examined the Records and it is apparent that the Appellant did not obtain leave of Court to appeal. It appealed as of right. So, being a civil matter, the success of the appeal would only depend on whether, in fact, the Appellant’s right to fair hearing was breached. It would not suffice to show that the evaluation of the evidence was wrong and that a different decision would have been arrived at if the evidence had been properly evaluated. For the jurisdiction of this Court to be successfully invoked in that regard against the decision of the lower Court, leave of Court would be necessary to appeal on grounds not being grounds of fundamental rights: SKYE BANK vs. IWU (supra).
It is therefore as circumscribed by the manner in which the Appellant has presented and ventilated its grouse in this appeal, that the resolution of the appeal will be approached, bearing in mind the principles of fair hearing which is the linchpin and fulcrum of

the complaints in the appeal. It has to be remembered that a trial Court can make mistakes in the course of trial and in the evaluation of evidence leading to its decision. It is on account of this that the law in its wisdom creates the appellate process where such errors can be corrected. In the context of this appeal, however, given that the Appellant appealed as of right against the decision of the lower Court, it is only such errors that constitute a violation of the Appellant’s right to fair hearing that can be corrected; not any errors made by the lower Court after having duly afforded the parties a fair hearing. This is the inevitable consequence of the Appellant having appealed as of right, within the narrow window of Section 243 (2) of the 1999 Constitution as amended.

impartial. See ELIKE vs. NWAKWOALA (1984) 12 SC 301 and ALSTHOM S. A. vs. SARAKI (2005) LPELR (435) 1 at 23. But what is fair hearing? In MOHAMMED vs. KANO N. A. (1968) 1 ALL NLR 42, Ademola, CJN stated:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.”
Section 36 (1) of the 1999 Constitution dealing with fair hearing is designed to ensure that in the administration of justice, parties must each be accorded every opportunity of canvassing their case within the rules regulating the procedure: NIGERIAN-ARAB BANK LTD vs. COMEX(1999) 6 NWLR (PT. 608) 648 and ATOBATELE vs. FASERU (2012) LPELR (9305) 1 at 20-21. So what does fair hearing entail? Hear my Lord Galadima, JSC in DUKE vs. GOVT OF CROSS RIVER STATE (2013) LPELR (19887) 1 at 18:
“The term ‘fair hearing’ within the context

of Section 36 (1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.”
See also ESABUNOR vs. FAWEYA (2019) LPELR (46961) 1 at 23.
Expounding the law on the nature and essence of fair hearing, the apex Court (per Ariwoola, JSC) asseverated in OKANLAWON vs. THE STATE (2015) LPELR (24838) 1 at 52-53:
“The principle of fair hearing as constitutionally guaranteed in Section 36 of the 1999 Constitution, no doubt is derived from the principle of Natural Justice with its twin pillars of ‘audi alterem partem’ and ‘nemo judex in causa sua’. This principle of fair hearing

is no doubt fundamental to the administration of justice. The Court is required to conduct trial or hearing of a case with all fairness to both parties to the suit without bias or partiality in favour of or against either party. It is noteworthy that complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance.”
See also PAM vs. MOHAMMED (2008) 5-6 SC (PT. 1) 83, DEDUWA vs. OKORODUDU (1976) NMLR 236 at 246 and NWOKOCHA vs. A-G IMO STATE (2016) LPELR (40077) 1 at 24-25.

In order to ascertain the veracity of the alleged breach of fair hearing complained of by the Appellant, I have gone through the Records of Appeal, which warehouses what transpired at the lower Court, with the finery of a toothcomb. I find that the Appellant was afforded ample opportunity to prepare for its case. Not only did the Appellant file its Statement of Defence, the lower Court granted it leave to amend the said Statement of Defence, which leave it utilised and filed an Amended Statement of Defence. (See pages 103-117, 153-221 and 275-276 of the Records).

Further resident in the Records is the fact that the Appellant having had the opportunity to prepare for its case, was also given the opportunity to present its case. The Appellant called two witnesses and tendered documents in evidence. (See pages 282-285 of the Records).

At the close of evidence, the lower Court adjourned the matter for final address. Reproduced in the Records at pages 222-229 is the Appellant’s final written address. The proceedings of the lower Court at page 289 of the Records of Appeal reveals that the lower Court regularised the Appellant’s final written address which was filed out of time. The address having been regularised, the Appellant’s counsel adopted the same as its final submissions in the matter. My intimate examination of the Records of Appeal has thus far not revealed any departure by the lower Court from the legal norms and procedure designed to see to the attainment of even-handed justice. I will now zero in on the Appellant’s contention that its fair hearing was breached as a result of the lower Court having entered judgment for various sums in favour of the Respondent, being his gratuity,

entitlement and six months’ salary. From the pleadings filed by the parties, the Respondent pleaded that the employment relationship and benefits were guided by the Appellant’s “Human Resource Management Policies and Procedures – Manual 1” (See paragraph 8 of the Respondent’s Statement of Facts on page 4 of the Records). The said Manual was admitted in evidence at the trial as Exhibit C2. (See pages 277-278 of the Record of Appeal).

The Appellant joined issues with the Respondent on the document guiding the computation of benefits and averred that “Manual 1” relied upon by the Respondent had been revoked and that its regnant policy in that regard, as it affected the Respondent, was contained in the “Gratuity Policy for General Managers and Above.” (See paragraphs 3,4 and 7 of the Amended Statement of Defence at pages 153-154 of the Records of Appeal). The said ‘Gratuity Policy’ was admitted in evidence at the trial as Exhibit D7 (see pages 282 -283 of the Records of Appeal). So, up for determination by the lower Court was which of the competing documents presented by the parties, was

the one on the basis of which the entitlement and benefits due to the Respondent, upon his compulsory retirement, would be calculated.

Let me hasten to state that it would amount to a breach of fair hearing when the procedure adopted in making findings of facts, is such that only the evidence of one side was considered and the evidence of the other side was not considered in the evaluation of evidence: TIPPI vs. NOTANI (2010) LPELR (5030) 1 at 23. Did the lower Court fall into this pitfall of considering the evidence of only one side in the evaluation of the evidence? In considering and resolving which of the competing documents (Exhibits C2 and D7) was the document guiding the computation of benefits, the lower Court reasoned and held as follows at pages 295-297:
“The first relief sought by the Claimant is for an order directing the Defendant to pay the Claimant the sum of N11,227,459.24 (Eleven Million, Two Hundred and Twenty-seven Thousand, Four Hundred and Fifty-nine Naira, Twenty-four kobo) being the aggregation of the sums wrongfully withheld from the Claimant since he was prematurely retired from the employment of the Defendant on

10/16/09. This figure was allegedly made up of Gratuity in the sum of N8,211,310.70; 6 months pay in lieu of notice in the sum of N2,683, 434.90; 12 weeks of Outstanding leave in the sum of N1,232,713.64 and October 2009 Salary & Allowance for 16 days in the sum of N274,655.81. Now respecting the first head of claim under this total sum, there is a general consensus among the parties that the relationship between the parties was regulated by Exhibit C1 (Letter of Promotion) & Exhibit C2 (Human Resource Management Polices & Procedures Manual 1). However, it was the argument of the Defendant that with reference to gratuity computation, the Human Resources Management Polices and Procedure – Exhibit C2 ‘had long been revoked and abandoned by mutual consent of the Defendant and the employees’ and that Exhibit D7 rather than Exhibit C2 was the applicable document for the purpose of calculating the gratuity of the Claimant. It was the argument of the Claimant that Exhibit C2 was never at any time abandoned and that it was the applicable document for the calculation of his gratuity benefit. It is safe from the position of the parties to state

that at least it is agreed that Exhibit C2 was at some point being used to calculate the gratuity of employees. Was that exhibit abandoned by the parties as argued by the Defendant? If abandoned when was it abandoned and what was the rationale for such abandonment? In paragraph 16 of his final written address, learned counsel to the Defendant stated thus-
‘DW-2 also gave evidence that Exhibit D7 is an internal document of the Defendant company which was signed by the Chairman on behalf of the Board of Directors of the Defendant, indeed both parties agree that Exhibit D7 was so signed by the Chairman of the Defendant.’
I have perused and evaluated Exhibit D7. I have carefully read the processes of the parties in this case. I could not find a place where the parties including the Claimant agreed that the said Exhibit D7 was an internal document of the Defendant, signed by the Chairman on behalf of the Board of Directors of the Defendant. If the intention of learned Counsel is to turn the forum of his final written address to polish the facts of the case of his client, the law remains trite that an address of Counsel no matter how

beautifully written cannot take the place of evidence… From my evaluation of Exhibit D7, I find same to be a page document, not addressed to anybody in particular merely signed with the name of the author not stated or known. The content of the exhibit is clear and unambiguous. The exhibit did not portray it to be an agreement between any person or group of persons. For the names of the alleged parties are not stated or reflected on same. If anything at all, it could be a unilateral act by one party to an employment contract to negatively tamper with and alter the rights one of the parties. The law does not permit one person or party to an agreement to unilaterally alter same to the detriment of the other party to same…
The law is trite that parties are bound by the terms and conditions of an agreement they voluntarily entered into… Both DW1 & DW2 had testified that Exhibit D7 revoked and replaced the existing policy on calculation of terminal benefits of employees. I discountenance this evidence as relates to Exhibit D7 and its purport. I find and hold that Exhibit D7 was evolved as an afterthought with a sole intention to deny

the Claimant the amount he was entitled to as gratuity upon his retirement…
I hold that Exhibit C2 was the proper document in accordance with the existing contractual terms between the parties to be used to calculate the terminal benefit of the Claimant. I also find that by Exhibit C13 & Exhibit C14 the same document was used for the calculation of the terminal benefits of colleagues of the Claimant who also retired.”

There you have the reasoning of the lower Court. It considered the pleadings of the parties, the evidence adduced and the final addresses of learned counsel. The process employed by the lower Court in arriving at the various sums it awarded in favour of the Respondent for his gratuity, entitlement and six months’ salary in lieu of notice of retirement does not smack of any breach of the Appellant’s right to fair hearing. The lower Court acted in absolute fidelity to the precepts of the law in that regard.

The Appellant’s further complaint is that the award of interest by the lower Court was made suo motu and without affording the parties a hearing. Once again, the Records will captivate our

attention in order to unravel this complaint. I have earlier reproduced the relief claimed by the Respondent at the lower Court. For ease of reference, I will reproduce the relief claimed in paragraph 47 (b) of the Statement of Facts (see page 10 of the Records). The Respondent claimed for:
“(b) AN ORDER directing the Defendant to pay interest on the said sum at the rate of 18% per annum from October, 2009 until judgment and thereafter at the rate of 15% per annum until the whole sum is paid to the Claimant by the Defendant.”

So the claim for interest was a specific relief claimed in the action before the lower Court. The lower Court did not raise it suo motu.

The Appellant in paragraphs 46-50 of its Final Written Address (specifically at pages 227-228 of the Records of Appeal) proffered its submissions on the Respondent’s claim for interest, conclusively submitting as follows in paragraph 50 thereof:
“50. We humbly submit that the Claimant’s claim for alleged interest is frivolous, speculative and untenable.”

Undoubtedly, the Appellant was given a hearing and it utilised the same with regard to the

claim for interest. So, wherein is the breach of fair hearing complained of? The Respondent claimed interest. It was not raised suo motu by the lower Court. The Appellant addressed the interest claimed by the Respondent in its final written address. The allegation of breach of fair hearing in this regard is both specious and sophistic.

In making an award of interest the lower Court held as follows on page 298 of the Records of Appeal:
“Pursuant to Order 47 Rule 7, National Industrial Court of Nigeria (Civil Procedure) Rules 2017, I award interest at the rate of 10% per annum to be paid on the entire Judgment sum from October 2009 until final liquidation.”

The award as made by the lower Court seems to be a rolled-up award of both pre-judgment and post-judgment interest. The Respondent claimed both pre-judgment and post-judgment interest. Order 47 Rule 7 of the Rules of the lower Court seems to empower the lower Court to make the rolled-up award of interest in the manner it. The said provision stipulates as follows:
“7. The Court may at the time of delivering the judgment or making the order give direction as to the period

within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment.”
The above provision is in contradistinction to the Civil Procedure Rules of the Uniform Rules of the High Court, which stipulates that the order for interest is to be reckoned from the date of the judgment. The phrase ‘reckoned from the date of the judgment’ is not part of Order 47 Rule 7 of the Rules of the lower Court reproduced above. It is this construction of the provision that informs the view I have expressed, rightly I believe, that pre-judgment and post-judgment interest can be awarded pursuant to Order 47 Rule 7 of the Rules of the lower Court. Howbeit, the restrictive and circumscribed scope of the complaint in this appeal, id est, breach of fair hearing would not accommodate a consideration of whether the award was correct; the Appellant having failed to seek and obtain leave of Court to appeal on grounds which would have necessitated such an odyssey. Suffice it to say that premised on the complaint of breach of fair hearing, there was no violation of the

Appellant’s right to fair hearing in this regard. The lower Court did not raise the issue suo motu. The Respondent claimed interest as one of the reliefs, the Appellant knew it was a claim it was going to meet. In preparing its case, it pleaded in Paragraph 39 of the Amended Statement of Defence (See page 157 of the Records) that the Respondent was not entitled to any interest whatsoever or howsoever on any sum. In presenting its case, the Appellant’s witness, the DW1, testified that the Respondent was not entitled to any interest (See paragraph 43 of the written statement on oath of the DW1 at page 221 of the Records). In addressing the lower Court, the Appellant’s counsel made copious submissions on the interest claimed. If anything, the Records magnify the firm adherence to the precepts of fair hearing in this regard.

The final plank of the Appellant’s complaint as articulated in issue number three is that there was a miscarriage of justice. Now, what constitutes a miscarriage varies from case to case as the concept is denoted by the facts of the given case. Put simply, miscarriage of justice is a failure of justice. Miscarriage

of justice is the failure on the part of the Court to do justice. It is justice misplaced, misappropriated or misappreciated. See OGUNTAYO vs. ADELAJA (2009) 15 NWLR (PT. 1163) 150 or (2009) LPELR (2353) 1 at 43-44. Miscarriage of justice occurs when a Court fails or refuses to follow the Rules. It is the diacritical circumstances of the complaint of breach of fair hearing that will contextualize whether there has been a miscarriage of justice. The miscarriage of justice on the basis of which an Appellate Court will interfere is where the violation of some principle of law or procedure is such that if corrected, a different result will be the outcome; or it may be the neglect of some principle of law or procedure which if it had not been neglected, a different result will be the outcome:DAGACI OF DERE vs. DAGACI OF EBWE (2006) 7 NWLR (PT. 979) 382 or (2006) LPELR (911) 1 at 42.

The principle of law in issue in this matter is the breach of fair hearing alleged by the Appellant. What I have said thus far is effulgent that the Appellant’s right to fair hearing was not eviscerated by the lower Court, whether as contended or at all. There was therefore no

violation or neglect of the principle of law or procedure on fair hearing. In so far as the complaint of breach of the right of fair hearing goes, there was no failure on the part of the lower Court to do justice.
The harbour looms into sight and as I begin to navigate the vessel of this judgment to berth at the quays, I restate that fair hearing connotes a trial in which the authority of the Court has been fairly exercised, consistent with the fundamental principles of justice embedded within the precepts of due process of law. This involves giving the parties equal opportunity to prepare for their case, present their evidence, cross examine witnesses and for the trial Court to make its findings based on the evidence adduced: WOMILOJU vs. ANIBIRE (2010) 10 NWLR (PT. 1203) 545, OMONIYI vs. GENERAL SCHOOLS BOARD, AKURE (1988) 4 NWLR (PT. 89) 449 and WHYTE vs. JACK (1996) 2 NWLR (PT 431) 407. By all odds, it cannot be confuted that the lower conducted the proceedings before it in accordance with the principles of fair hearing. There was no denial of fair hearing, since both parties were given the opportunity of a hearing and the opportunity was utilized by

the parties and the lower Court was even-handed in its approach and decision. Without a doubt, a reasonable person who was present at the trial would have left with the observation that justice was done in the case. See AGBAHOMOVO vs. EDUYEGBE (1999) LPELR (224) 1 and ARDO vs. INEC (2017) LPELR (41919) 1.
As I cogitate and excogitate on the arguments canvassed by the Appellant, it becomes more apparent to me that the submissions were principally based on evaluation of evidence but the Appellant merely clothed it in the garb of breach of the fundamental right to fair hearing in order to appeal as right against the decision of the lower Court. Unfortunately, it has served to trammel the sphere of consideration of the pith of the grouch with the decision of the lower Court. The complaint of breach of fair hearing can only be raised and avail a litigant when in fact the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT. 1085) 201 at 205-206 or (2008) LPELR (80) 1 at 23-24:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in

recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the Constitution is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See also KOLO vs. COP (2017) LPELR (42577) 1 at 45-46, MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT. 1089) 338 and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT. 1053) 109 at 139.
The Appellants contention on the alleged breach of their right to fair hearing is a farce and a charade designed to achieve the short term benefit of appealing as of right, but with the unwittingly contrived destination of the failure of the appeal, as the scope of enquiry will perforce be limited to a consideration and resolution of the question as to whether the right to fair hearing was actually breached. The quest at using the fair hearing principle to invigorate and propel this appeal has fallen flat on its face!

It seems that I have now groomed, tended and manicured every blade of grass in the field of this judgment. It remains to state that all the issues for determination are resolved against the Appellant. The appeal is totally devoid of merit. It fails and it is hereby dismissed. The decision of the lower Court, Coram: Peters, J., delivered on 6th April, 2017 is hereby affirmed. The Respondent is entitled to the costs of this appeal which I

assess and fix at N200, 000.00.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse in draft, the erudite leading judgment delivered by my learned brother; Ugochukwu Anthony Ogakwu, JCA. I fully concur with the reasoning and conclusion in it.

It is settled law, beyond any peradventure of doubt, that the primary duty of a Court, vis-a-vis to fair hearing, is to create the congenial firmament, in an egalitarian manner, for feuding parties before it to ventilate their grievances. The charge of perfunctory evaluation of evidence, which is the keystone of the appellant’s appeal, cannot, under any guise or stretch of imagination, snowball into an erosion of its inalienable right to fair hearing as enshrined in the sacrosanct provision of Section 36 (1) of the Constitution, as amended. The reason is plain. It was duly heard before the lower Court delivered its decision, see Dec Oil & Gas Ltd. V. Shell (Nig) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273. In effect, the appellant was derobed of the right to harness from the vineyard of the beneficent provision of Section 36 (1) of the Constitution as amended. To this end, added to

the elegant reasons adumbrated in the dexterous leading judgment, I too dismiss the appeal in the manner decreed in it.

BALKISU BELLO ALIYU, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU JCA.
His Lordship has exhaustively considered and resolved all the issues raised in this Appeal and I agree with his reasoning and conclusion reached. I adopt same as mine in also dismissing the Appeal for lack of merit. I abide by the order of cost made therein.
Appeal dismissed by me.

Appearances:

E.C. Uhie, Esq. – for Appellant For Appellant(s)

Femi Abimbola, Esq. – for Respondent For Respondent(s)