REGD TRUSTEES OF IKOYI CLUB 1938 v. AYODEJI
(2020)LCN/15420(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/L/404/2014
RATIO
DISCRETION OF COURT: WHETHER POST-JUDGMENT INTEREST MUST BE SPECIFICALLY CLAIMED BEFORE IT IS AWARDED
Post-judgment interest, which is the pith of the contention in the cross appeal, need not be specifically claimed before it is awarded, since it is statutory and the Courts are empowered to award it at its discretion based on the stipulated rates and it need not be proved: HIMMA MERCHANTS LTD vs. ALIYU (1994) 5 NWLR (PT 347) 667, TEXACO OVERSEAS NIGERIA PETROLEUM COMPANY UNLTD vs. PEDMAR NIGERIA LTD (2002) LPELR (3145) 1 at 20-21 and DIAMOND BANK LTD vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 30-31. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DUTY OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
Unless an appellate Court comes to the conclusion that the exercise of discretion by a trial Court was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it cannot interfere, even if the appellate Court may have exercised the discretion differently. This is because the discretion is that of the Court of trial and not of the appellate Court. See SARAKI vs. KOTOYE (1990) 4 NWLR (PT 143) 144, UNIVERSITY OF LAGOS vs. OLANIYAN (1985) 1 NWLR (PT 1) 156 and ANYAH vs. AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DUTY OF COURT: WHETHER AN APPELLATE COURT MAY EVALUATE EVIDENCE
It is trite law that an appellate Court is in as good a position as a trial Court in the evaluation of documentary evidence. See GONZEE NIGERIA LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Ebiowei Tob iJustice of the Court of Appeal
Between
REGISTERED TRUSTEES OF IKOYI CLUB 1938 APPELANT(S)
And
TAIWO AYODEJI RESPONDENT(S)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court of Nigeria, Coram Judice: Agbadu-Fishim, J., delivered in SUIT NO. NICN/LA/432/2012: TAIWO AYODEJI VS. REGISTERED TRUSTEES OF IKOYI CLUB 1938, on 21st March 2014. The Respondent, as Claimant before the lower Court, claimed as follows against the Appellant, the Defendant to the action:
“i. The sum of N8,629,293.68k (Eight Million, Six Hundred & Twenty-Nine Thousand Three Hundred and Ninety-Nine Naira Sixty-Eight Kobo) being the claimant’s redundancy benefit due to him from the defendant.
ii. Interest on the said sum of N8,629,399.68k (Eight Million, Six Hundred & Twenty Thousand [sic]Three Hundred and Ninety-Nine Naira and Sixty Eight Kobo) at the rate of 21% per annum from 1st December 2009 until judgment debt and cost awarded herein are paid up in full.”
The parties filed and exchanged pleadings. The matter went to trial. Testimonial and documentary evidence was adduced. At the end of the trial, the lower Court entered judgment in favour of the Respondent. Peeved by the judgment, the Appellant appealed on 28th March, 2014. The Respondent was equally piqued by the fact that the lower Court did not award post-judgment interest in his favour. So he cross-appealed. There is therefore an appeal and a cross appeal. The scarified judgment of the lower Court is at pages 169-181 of the Records. The extant notice of appeal on which the Appellant argued its appeal is the Further Amended Notice of Appeal filed on 5th January 2018, but deemed as properly filed on 27th January, 2020. The Notice of Cross Appeal was filed on 23rd January 2018, but deemed as properly filed on 15th July, 2020.
The Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument. The briefs on which the appeal was argued are:
1. Appellant’s Amended Brief of Argument filed on 5th January 2018, but deemed as properly filed on 27th January, 2020.
2. Respondent & Cross Appellant’s Briefs filed on 23rd January 2018, but deemed as properly filed on 27th January, 2020.
3. Appellant’s Reply Brief & Response to Cross-Appellant’s Brief filed on 15th March, 2018, but deemed on 27th January, 2020.
4. Cross Appellant’s Reply Brief of Argument filed on 20th April 2018, but deemed as properly filed on 27th January, 2020.
At the hearing of the appeal on 29th September 2020, Ubong Akpan, Esq., learned counsel for the Appellant/Cross Respondent and Ms. Ololade Oladele, of counsel for the Respondent/Cross Appellant urged the Court to uphold their respective submissions in the determination of the appeal. Our odyssey in the resolution of this matter will commence with the main appeal after which we will segue to the cross appeal.
THE MAIN APPEAL
The Appellant distilled three issues for determination in the Appellant’s Amended Brief of Argument, as follows:
“1. Whether the lower Court had jurisdiction to hear this action, in the face of the obvious incompetence of the originating complaint, the foundation of the action in the lower Court.
(Ground 1 of the Further Amended Notice of Appeal)
2. Since the entire pleadings and evidence before the trial Court showed that the Respondent never accepted and acknowledged receipt of the Ikoyi Club 2008 Handbook by signing the tear-off portion attached to the Handbook, how could the lower Court find that the Respondent established the existence of an applicable Condition of Service capable of sustaining his action, without breaching the Appellant’s right to fair hearing? (Grounds 2, 3, 4, 5, 6 and 7 of the Further Amended Notice of Appeal)
3. Assuming, without conceding, that the Ikoyi Club Handbook 2008 applied to the respondent’s employment, did the respondent provide pleading and evidence to ground the factual basis on which redundancy payments in accordance with the said handbook could be calculated and awarded by the lower Court; in the absence of this supporting pleading and evidence, was the lower Court not in gross error by the manufacture of non-existent evidence to support its decision?(Grounds 8, 9 and 10 of the Further Amended Notice of Appeal)”
The Respondent equally formulated three issues for determination in the Respondent and Cross Appellant’s Briefs, namely:
“a. Whether the lower Court had jurisdiction to hear this action, in the face of the obvious alleged incompetence of the originating complaint, the foundation of the action in the lower Court.
b. Whether the learned trial judge was right or breached the fundamental human right of the Appellant when he held that the Ikoyi Club 1938 Standard Regulation and Condition of Service for Senior Employers [sic] 2008 was accepted by the Respondent and it is a collective agreement that binds the Respondent having regards to the totality of the facts and circumstances of this case.
c. Whether the computation of the Respondent’s redundancy benefit in accordance with the Appellant’s policy on the calculation of other final/terminal benefits breached the Appellant’s fundamental right.”
The issues nominated by the parties are the same two and tuppence. It is therefore on the basis of the issues crafted by the Appellant that I will presently consider the submissions of learned counsel and resolve this appeal. Let me hasten to state that the Appellant’s Reply Brief is not in the terms of the purpose of a reply brief as stipulated in Order 19 Rule 5 (1) of the Court of Appeal Rules, 2016. The Appellant’s Reply Brief is a re-argument of the submissions already made in the Appellant’s Amended Brief of Argument. It is not proper to use a reply brief to extend the scope of argument and submissions in the Appellant’s brief vide YANATY PETRO-CHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The re-iteration of a submission already made in an appellant’s brief in the reply brief will not improve the quality of the argument or make it acceptable, if it were ordinarily unacceptable: FSB INTERNATIONAL BANK vs. IMANO (NIG) LTD (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13. In the words of Tobi, JSC in OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580:
“Where a reply brief is necessary, it should be limited to answering any new points arising from the respondent’s brief. A new point is a fresh point which was raised by the respondent in his brief. A reply brief cannot be used to strengthen the appellant’s brief by way of repeating the arguments made in the appellant’s brief. A reply brief is not a recitation of the appellant’s brief.”
See also MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277 and DUZU vs. YUNUSA (2010) LPELR-8989 (CA). In the circumstances, I will discountenance with the submissions in the Appellant’s Reply Brief in so far as the same constitute a re-argument of the points already canvassed in the Appellant’s Amended Brief.
ISSUE NUMBER ONE
Whether the lower Court had jurisdiction to hear this action, in the face of the obvious incompetence of the originating complaint, the foundation of the action in the lower Court.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant contends that the General Form of Complaint, the originating process for the action was not signed by the Respondent or his legal practitioner as required by Order 3 Rule 10 (c) (i) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. It was stated that being the foundation of the action, the defect rendered the action incompetent. It was submitted that the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is a procedural law and governs practice and procedure before the National Industrial Court vide Order 1 Rule 7 (3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Being a procedural law, it was opined that the presumption against retrospectivity of legislation does not apply to procedural laws. The case of OJOKOLOBO vs. ALAMU (1987) 3 NWLR (PT 61) 377 at 394 was referred to.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It was submitted that the action was instituted in 2012 under the National Industrial Court Rules, 2007 and under which trial was conducted and judgment delivered in 2014. It was opined that there is no provision in the 2007 Rules for the signing of a General Form of Complaint. It was stated that there is a presumption against retrospective operation of statutes unless clearly intended. The case of ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2002) 12 SCM 181 was cited in support.
It was further stated that the presumption against retrospectivity does not apply to procedural laws vide SHITTA-BEY vs. A-G FEDERATION (1998) 7 SCNJ 264; and that where the procedure is altered after an action has been instituted, it would not affect the competence of the action. The case of ADESANOYE vs. ADEWOLE (2000) 5 SCNJ 47 was relied upon.
RESOLUTION OF ISSUE NUMBER ONE
It has not been confuted that the General Form of Complaint in this matter is unsigned. It has also not been confuted that while the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides in Order 3 Rule 10 (c) (i) that the complaint shall be signed by the party to the proceedings or his legal practitioner, there is no such provision in the National Industrial Court Rules 2007. The parties have correctly submitted that the presumption against retrospectivity of legislation does not apply to procedural laws since there is no vested right in any course of procedure: OJOKOLOBO vs. ALAMU (supra) and SHITTA-BEY vs. A-G FEDERATION (supra).
The Respondent commenced the action by the General Form of Complaint on 22nd August 2012. The lower Court heard the matter and delivered its judgment on 21st March, 2014. At the time the action was instituted, during the trial and up till the judgment, the regnant Rules of Court was the National Industrial Court Rules, 2007. By Order 1 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the Rules came into effect on 5th January, 2017 so the said 2017, Rules came into effect about three years after the matter had been determined by the lower Court.
By Order 1 Rule 7 (3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the Rules apply to all proceedings including part-heard matters and matters in respect of steps to be further taken in such causes and matters. As already stated, the trial of this matter at the lower Court had been concluded before the 2017 Rules came into force. So it was not a part-heard matter, neither were there any further steps to be taken in the matter. Indeed, this appeal was entered in this Court on 25th April 2014, almost three years before the 2017 Rules of the National Industrial Court of Nigeria saw the light of the day. There is therefore no legal gymnastics by which the 2017 Rules of the lower Court can be made to apply in this matter.
In OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13, Karibi-Whyte, JSC (of the blessed memory) stated:
“It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure… A litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.”
See also IWUNZE vs. FRN (2014) LPELR (22254) 1 at 14.
The rule governing practice and procedure at the lower Court at the time the Respondent’s action was heard and determined is the National Industrial Court Rules, 2007. The Appellant only has the right to rely on the procedure that was in force between 2012 and 2014 when the matter was before the lower Court. The Appellant cannot import a procedure that only became prescribed long after the action had been determined and build incompetency of the action on it. No. That is chop sense and logic and will stand law and justice on its head if the Appellant’s contention is acceded to. It will be offensive to the law if I do any such thing. Perforce, this issue number one is resolved against the Appellant.
ISSUE NUMBER TWO
Since the entire pleadings and evidence before the trial Court showed that the Respondent never accepted and acknowledged receipt of the Ikoyi Club 2008 Handbook by signing the tear-off portion attached to the Handbook, how could the lower Court find that the Respondent established the existence of an applicable Condition of Service capable of sustaining his action, without breaching the Appellant’s right to fair hearing?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The quiddity of the Appellant’s submission is that the Respondent did not prove that the Ikoyi Club 2008 Handbook governed the employment relationship as it was not established that the Respondent accepted and acknowledged receipt of the Handbook by tearing off the receipt copy attached to the Handbook. It was asserted that the acceptance and acknowledgement was a pre-condition for the applicability of the 2008 Handbook. The cases of SHELL PETROLEUM DEVELOPMENT COMPANY vs. BURUTU LGC (1998) 9 NWLR (PT 565) 318 at 332, NBCI vs. INT. GAS (NIG) LTD (1999) 8 NWLR (PT 613) 119 at 127 among other cases were cited in support. It was posited that in the absence of any extant applicable conditions of service established by the evidence, the Respondent’s action ought to fail vide MOROHUNFOLA vs. KWARATECH (1990) 21 NSCC (PT III) 27 at 35 or (1990) 4 NWLR (PT 145) 506 at 519.
The Appellant further contended that the decision of the lower Court that the 2008 Handbook is applicable since it is a collective agreement is perverse and that the parties did not make out such a case, and the Appellant’s right to fair hearing was consequently breached. It was opined that the legal position is that a collective agreement cannot supplant or supplement the individual contract of service. The cases of UBN vs. EDET (1993) 4 NWLR (PT 287) 288 at 298 and NIGERIA SOCIETY OF ENGINEERS vs. OZAH (2015) 6 NWLR (PT 1454) 76 at 93-94 were called in aid.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court rightly held that he acknowledged and accepted the 2008 Handbook as the condition of service and that the tear off acceptance form was put in his personal file by the Appellant. It was further stated that the Respondent’s letter of employment incorporates the Handbook and that the Appellant’s sole witness further testified that the Handbook is the conditions of service. The lower Court it was stated correctly, acted on the evidence in arriving at its decision. The cases of CHABASAYA vs. ANWASI (2010) ALL FWLR (PT 5280) 839 ratio 6 and page 851, UDOH vs. O. O. P. PLC (2005) 24 WRN 140 ratios 7 and 10 and AYINKE vs. LAWAL (1994) 7 NWLR (PT 365) 263 at 275 were cited in support.
It was further stated that the Appellant failed to tender the Respondent’s personal file which it had, in order for it to be ascertained whether the acceptance was in the file. The Appellant, it was maintained, withheld the evidence; Section 167 (d) of the Evidence Act and the case of NNPC vs. LUTIN INV. LTD (2006) 2 MJSC 1 at 5 were referred to. It was contended that the Handbook, being a collective agreement was incorporated in the Respondent’s letter of employment and was therefore binding. The cases of ABALOGU vs. SHELL (2003) 10 MJSC 60 at 64 and TEXACO PLC vs. KEHINDE (2001) 6 NWLR (PT 708) 224 at 239-240 were relied upon.
The Respondent further submitted that he pleaded that the Handbook governed the employment relationship and that the Appellant’s denial that it did not govern the employment was not a new fact that would require to be expressly replied in a reply to the statement of defence. It was conclusively submitted that the Appellant was given ample opportunity to prepare and present its case, and that the evaluation of the evidence by the lower Court cannot amount to a breach of the Appellant’s right to fair hearing.
RESOLUTION OF ISSUE NUMBER TWO
This issue interrogates the applicable condition of service on which the Respondent could ground his action, and whether the “Ikoyi Club 1938 Standard Regulations and Conditions of Service for Senior Employee’s” [Handbook for short] was applicable to the Respondent. Now, the Handbook is a collective agreement between the Appellant and the Hotel & Personal Services Senior Staff Association. It is hornbook law that a collective agreement is only binding on parties in their contract of service where it is expressly or by necessary implication incorporated or embodied in the contract of service, but not otherwise: ABALOGU vs. SHELL (supra) at 337, OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 36 and OSOH vs. UNITY BANK PLC (2013) LPELR (19968) 1 at 24-26. So in order for the Respondent to take benefit of the Handbook, it has to be shown that it was incorporated in his letter of employment, either by reference or by necessary implication.
The Respondent’s letter of employment was frontloaded by the parties and tendered in evidence at the trial. It is copied at pages 11-13 and 88-90 of the Records. Paragraph 3 (vii) of the letter of employment provides as follows:
“Other conditions of your employment shall be as contained in the Ikoyi Club 1938 Management Staff conditions of service booklet.”
The above clause makes it limpid that the Handbook was incorporated in the Respondent’s letter of employment by reference and necessary implication. So, it would be applicable and govern the Respondent’s employment without more. But there is more. It is this.
The Respondent pleaded in paragraph 7 of his Statement of Facts, that his employment with the Appellant was governed by the Handbook. The Appellant in Paragraph 4 of the Statement of Defence averred that the Handbook did not govern the Respondent’s employment because the Respondent did not meet the condition precedent to the Handbook applying to him, id est, signing the acknowledgement slip of the Handbook. So, on the state of the pleadings, the parties were at issue on whether the Handbook applied and they frontloaded and tendered the Handbook in evidence. The said Handbook is copied at pages 17-33 and 67-82 of the Records.
Given the fact that the parties were at issue on the applicability of the Handbook and tendered the same in evidence, it behoved the lower Court to determine the applicability of the said document: EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103, AKINTOLA vs. SOLANO (1986) LPELR (360) 1, MARINE MANAGEMENT ASSOCIATES INC. vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 17 and NKUMA vs. ODILI (2006) LPELR (2017) 1 at 17. The lower Court discharged this obligation and found and held as follows at pages 178-179:
“In my view, the issue for determination in this case is whether the claimant is entitled to redundancy benefits in accordance with his contract of employment with the defendant. The claimant herein was employed by the defendant on 15th September, 1997 as Sectional Administrative Officer and his salary was variously reviewed upward as well as promotion from time to time. The claimant’s employment was terminated by the defendant through a letter dated 19th October, 2009. The grouse of the claimant is that the defendant failed to pay him redundancy benefit under Clause 24 (viii) of the Standard Regulations and Condition of Service for Senior Employees (hereinafter referred to as Handbook 2008) in the sum of N8,269,399.68. The defendant’s reaction to this is that the claimant is not entitled to the provisions of the handbook because he did meet the condition precedent which is signing the tear-off portion and acknowledging receipt of the Handbook. I find in evidence that the said Handbook 2008 is a product of agreement between the defendant represented by its Chairman Mr. Akin Adesokan and Hotel and Personal Services Senior Staff. I also found at page 29 of the said Handbook a statement that
‘This handbook sets out the terms and conditions of service which shall be binding on all Senior Staff of the Club. Every Senior Staff shall acknowledge receipt of this Handbook which is the basis of his/her contract of employment with the club. If you accept the foregoing terms and conditions of employment as management staff of this club, please signify such acceptance by signing the tear-off portion attached and return it within seven days from the receipt of this offer’
The claimant has therefore demonstrated that he signed the acknowledgement slip or tear-off of the Handbook, 2008. The Defendant who took possession of the original acknowledgement copy of the said Handbook could not turn around and state that the Claimant did not accept the terms contained in the said Handbook. The Claimant cannot therefore, be precluded from the benefits of its provisions. The inability of the Defendant to preserve and produce the original acknowledgement copy of the Handbook will only suggest that the Defendant has not discharged the onus of proving that the Claimant did not sign and return the acknowledged copy of the Handbook. The defendant who alleged that the claimant failed to sign and return the tear-off portion failed to prove same before this Court. It is trite that he who asserts must prove. I therefore, find that the defendant failed to prove that the claimant did not accept, sign and return the Handbook to disentitle him from its provisions.”
The parties placed the Handbook in evidence before the lower Court. The lower Court discharged its duty of resolving the issue of applicability of the Handbook in which the parties were at issue. It seems to me that what the lower Court did in the above periscope from the judgment was evaluating the documentary evidence relied upon by the parties, interpreting the document and drawing the appropriate inferences therefrom. I do not see how it can be claimed that the Appellant’s right to fair hearing was breached in the circumstances. See ENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25, OTU vs. ANI (2013) LPELR (21405) 1 at 31-34 and CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24.
The attempt to rope in the fair hearing principle in this matter is futile. The complaint of breach of fair hearing can only be raised and avail a litigant when, in fact, the right had been denied. The Appellant clearly missed the mark in the attempt to drag the fair hearing principle into this matter. The principle is inapplicable. It cannot be forced into this matter! See ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 23-24, MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 or (2008) LPELR (1814) 1 at 40 and ORUGBO vs. UNA (2002) 16 NWLR (PT 792) 175 at 211 and 212.
It is trite law that an appellate Court is in as good a position as a trial Court in the evaluation of documentary evidence. See GONZEE NIGERIA LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49. In this wise, I have insightfully considered the Handbook, paragraph 35 thereof on pages 25-26 of the Handbook states:
“35. HANDBOOK
This handbook sets out the terms and conditions of service which shall be binding on all senior staff of the Club. Every senior staff shall acknowledge receipt of this handbook which is the basis of his/her contract of employment with the Club. If you accept the foregoing terms and conditions of employment as management staff of this Club, please signify such acceptance by signing the tear-off portion attached and return it within seven days from the receipt of this offer.”
The Handbook further shows on page 29 thereof that the tear-off portion of the acknowledgement has been torn off with an endorsement which reads “ORIGINAL HAS BEEN REMOVED AND PLACED ON EMPLOYEE’S PERSONAL FIL(E).” The Respondent’s acknowledgement of the receipt of the Handbook having been stated to have been put in the Respondent’s Personal File, if as contended by the Appellant that the Respondent did not so acknowledge receipt as it pleaded, it behoved upon it to have produced the Respondent’s personal file to establish that he did not acknowledge receipt and that there is no such acknowledgment in his personal file. This, it did not do. What is more, the Appellant pleaded in Paragraph 7 of the Statement of Defence that the gratuity and final emoluments it paid to the Respondent was computed based on the Handbook. Even though it claimed therein that it ought not to be so. The fact remains that, if in fact the condition precedent to the applicability of the Handbook was not met by the Respondent, no part of his benefits would have been computed thereunder. The admission in the Appellant’s pleading that the benefits paid to the Respondent were computed based on the Handbook is an admission against interest. It is the best evidence in favour of the Respondent in establishing that all the conditions precedent to the Handbook as governing the employment relationship were met. See ONYENGE vs. EBERE (2004) 13 NWLR (PT 889) 39 and ROCKSHELL INT’L LTD vs. B. Q. S. LTD (2009) 12 NWLR (PT 1156) 640 at 649. In a coda, this issue is resolved in favour of the Respondent.
ISSUE NUMBER THREE
Assuming, without conceding, that the Ikoyi Club Handbook 2008 applied to the respondent’s employment, did the respondent provide pleading and evidence to ground the factual basis on which redundancy payments in accordance with the said handbook could be calculated and awarded by the lower Court; in the absence of this supporting pleading and evidence, was the lower Court not in gross error by the manufacture of non-existence evidence to support its decision?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The conspectus of the Appellant’s submission under this issue is that in computing the redundancy benefits, the computation is based on the earning of the Respondent at each year of service and not based on the earning at the year of redundancy. It was submitted that in interpreting a contract of service, a Court is not to consider extraneous matters vide OMENKA vs. MORISON INDUSTRIES PLC (2000) 13 NWLR (PT 683) 147 at 154, AFRIBANK (NIG) PLC vs. OSISANYA (2000) 1 NWLR (PT 642) 598 at 616, NWAJAGU vs. BAICO (NIG) LTD (2000) 14 NWLR (PT 687) 356 at 363 and OGBAJI vs. AREWA TEXITLES PLC (2000) 11 NWLR (PT 678) 322 at 339. It was opined that words used must be given their ordinary grammatical meaning as a Court has no right to make a contract for the parties. The case of UBN LTD vs. OZIGI (1994) 3 NWLR (PT 333) 385 or (1999) 15 LRN 257 at 275 was referred to. It was conclusively submitted that an employee cannot claim from the employer what is not stipulated in a contract for service. The case of NZE vs. N. P. A. (1997) 11 NWLR (PT 528) 210 at 222 was called in aid.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent contends that issue number three distilled by the Appellant is not related to the grounds from which the issue was distilled and consequently the issue and the argument thereon should be struck out. The cases of NWANKWO vs. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY U. A. (2007) 5 NWLR (PT 1027) 377 and OYEGUN vs. NZERIBE (2010) 16 NWLR (PT 1220) 568 were relied upon.
It was further submitted that the Respondent established by the evidence that it is the last emolument at the time of disengagement that is used to calculate terminal benefits as done by the Appellant in the gratuity it paid to the Respondent and as admitted by the Appellant’s witness under cross examination, which evidence the Respondent is entitled to rely upon and required no further proof vide AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) 1 SC (PT I) 58 at 74, IMB vs. COMRADE CYCLE CO. (1988) 11 NWLR (PT 574) [no page stated] and BON vs. ADEHI (2002) 29 WRN 84.
The Court was urged to invoke Section 167 (c) of the Evidence Act and hold that the Appellant having calculated Respondents’ gratuity based on the last emolument, the presumption is that the common course of business would be followed in respect of the redundancy benefits. It was asserted that parties are bound by the terms of their contract. The case of IFETA vs. S.P.D.C. LTD (2006) 7 MJSC 121 at 123 was called in aid.
RESOLUTION OF ISSUE NUMBER THREE
It is abecedarian law that issues for determination in an appeal must be distilled from a ground or grounds of appeal and so where an issue for determination is not rooted in a ground of appeal, the said issue will be incompetent and both the issue and the arguments in respect thereof will be discountenanced by the Court: IDIKA vs. ERISI (1988) LPELR (1422) 1 at 28-29, ONWUBUARIRI vs. IGBOASOIYI (2011) LPELR (754) 1 at 15 and AKERE vs. THE GOV. OF OYO STATE (2012) LPELR (7806) 1 at 24-25.
Consequently, if, as contended by the Respondent, issue number three is not derived from any ground(s) of appeal, then the same must be discountenanced together with the arguments thereon. But is the contention correct? The Appellant’s issue number three is said to have been formulated from grounds 8, 9 and 10 of the Further Amended Notice of Appeal. Shorn of their particulars, the said grounds read as follows:
“GROUND NO.8
The learned trial Court wrongfully made the fabricated and untenable finding that, the Claimant was entitled to redundancy payments, when the claimant did not plead and prove the facts and figures, which must form the basis on which any redundancy payments, in accordance with the said handbook, could be calculated and awarded by the Court.
GROUND NO.9
The learned trial Court erred in law when it found that it was the standard procedure and practice that an employee’s last emolument is used for the calculation of all terminal benefits and gratuity in Ikoyi Club as the same procedure is used in calculation of accrued leave payments.
GROUND NO.10
The learned trial Court committed a legal absurdity by granting what was never pleaded nor proved in evidence, when it granted claimant’s [sic] a redundancy benefit of N8,629,411.68k calculated and based on a gross violation and warped interpretation of clause 24 viii of the Conditions of Service, which permits a redundancy benefit, of 6 months’ salary for every completed year’s emolument.”
I have apposed issue number three with the grounds of appeal from which it is professed to have been distilled and it is as clear as crystal that the said issue is derived from the said grounds and it is firmly rooted therein. The issue is accordingly competent and I will now proceed to resolve the same.
The Respondent’s cause of action before the lower Court arose from the fact that upon the termination of his employment by the Appellant due to restructuring or reorganization, the Appellant did not pay him his redundancy benefits. Article 24 (viii) of the Handbook which, Handbook, I have already affirmed governs the employment relationship between the parties provides as follows:
“Redundancy Benefit
Where due to re-organisation, a staff appointment is terminated. Redundancy benefits shall be paid as follows:
6 months salary for every completed years (i.e. Total emolument) in addition to other terminal benefits.”
The disceptation under this issue is how the total emolument of 6 months’ salary for every completed year is to be ascertained. For the Appellant, the total emolument is the emolument at the end of every year of service. For the Respondent it is the last emolument when the employment was terminated that will be used to compute the redundancy benefits across the board for the completed years of service and not the total emolument at each year.
The resolution of this contest, thorny as it may appear, lies within the bowels of the Handbook and the case made out by the parties. In the first place, the evidence elicited from the Appellants’ witness under cross-examination settles the question of whether the Respondent is entitled to redundancy benefit and if he was paid redundancy benefits. This is what the witness stated at page 214 of the Records:
“Yes, the exhibits I sets out the terms and condition of employment between the Claimant and the Respondent. Yes it is true that in para 24(viii) it says that where due to reorganization of the Defendant a staff’s appointment is terminated, redundancy benefits shall be paid to such staff in addition to such other benefits. No the claimant is no longer in the employment. His termination was due to reorganization. Yes, as at the time of termination he was a Senior staff and a member of the Senior staff association. He was not paid redundancy benefits.”
On the rate of computation of total emolument, I turn to the Handbook and the case made out by the Appellant. Article 22 of the Handbook provides as follows:
GRATUITY/RETIREMENT BENEFITS COMPUTATION
i 3-4 years: 6 weeks of gross pay for each number of completed years i.e. (Total emolument)
ii 5-9 years: 10weeks gross pay for each completed years i.e. (Total emolument)
iii 10-14 years: 16 weeks gross pay for each completed years i.e. (Total emolument)
iv 15-19 years: 20 weeks gross pay for each completed years: i.e. (Total emolument)
v 20 years & above: 25 weeks gross pay for each completed years i.e. (Total emolument)”
The above clause provides for computation of gratuity based on total emoluments for completed year of service. To that extent it is akin to the provision for computation of redundancy benefits. The Appellant’s case is that it had paid Respondent his gratuity. The averment in this regard is in paragraph 7 of the Statement of Defence. It is averred as follows:
“7. Mr. Taiwo Ayodele’s final emoluments which he accepted were generously calculated on the basis appearing below, even though by not signing and returning the revised conditions of service acknowledgment form, the new conditions of service did not apply to him.
7.1 HISTORY
1. employed in 1997;
2. terminated in 2009;
3. number of years in service = 12years
4. staff identity no: 582
5. approved emolument table applicable
7.2 GRATUITY
= Basic salary +Housing +Transport
= 754,408.06 + 128,084.03 + 107,516.90
= N990,008.99
Therefore, Gratuity = 990,008.99 x12yrs x16wks/52wks
= N3,655,417.81”
It is translucent that in arriving at the gratuity based on total emolument for completed year of service, the Respondent did not use different rates for each year as is now being contended as it relates to redundancy benefits. The Respondent used the same figure as total emoluments for all the completed years of service. It therefore cannot now be heard to contend the contrary. The law is settled beyond peradventure that a Court is free, having regard to the common course of natural events, human conduct, public and private business, to presume the existence of any fact which seems likely in their relation to the facts of a particular case. A presumption of fact is the logical inference of the existence of a fact deduced from the proved existence of other facts. The Court is not obliged to draw the inference although it generally does. It seems however that the Court is bound to draw the inference where there is no evidence to the contrary. See OGBUANYINYA vs. OKUDO (1990) LPELR (2294) 1 at 34 and BONUM vs. IBE (2019) LPELR-46442 (CA). Even though a rebuttable presumption, there is no evidence to rebut the presumption that it is based on the same formulae that the Appellant used to compute total emolument for each years of service for payment of gratuity, that will also apply to computation of redundancy benefits based on total emolument for each year of completed service, since the provisions in respect thereof in the Handbook are ipsissima verba. Accordingly, I resolve this issue against the Appellant and hold that the lower Court was correct in entering judgment in favour of the Respondent for the redundancy benefits claimed.
All the issues for determination in the main appeal have been resolved against the Appellant. It speaks for itself of the destination of the main appeal. For now however, we turn to the cross appeal.
THE CROSS APPEAL
The Respondent/Cross Appellant crafted two issues for determination in the cross appeal as follows:
“1. Whether the Cross-Appellant is entitled to payment of post-judgment interest after it accrued automatically on judgment sum, same having not been awarded at the time judgment was delivered?
2. Whether in light of Judgment of the trial Court it ought to have granted post-judgment interest as provided for in the rules of Court?”
The Appellant/Cross Respondent nominated a sole issue for determination in the cross appeal, scilicet:
“Whether the lower Court duly its exercised its discretion to refuse the Cross-Appellant‘s claim for post-judgment interest.”
The issues formulated for determination in the cross appeal by the parties are the same in every material particular. I will therefore review the submissions of learned counsel on the issues as distilled by the parties and thereafter seamlessly resolve the cross appeal en bloc.
SUBMISSIONS OF THE CROSS APPELLANT’S COUNSEL
The Cross Appellant submits that there are two types of interest – pre-judgment and post-judgment interest and that monetary judgment attracts post-judgment interest, even if it is not claimed. The cases of G.K.F.I. (NIG) LTD vs. NITEL (2009) 15 NWLR (PT 1164) 344 at 380, DIAMOND BANK vs. PARTNERSHIP INVESTMENT LTD (2009) LPELR-939 (SC) and ASHAKA vs. NWACHUKWU (2013) LPELR-20272 (CA) were referred to.
It was stated that Order 21 Rule 4 of the National Industrial Court Rules 2007 provides for the award of post-judgment interest and that the award of the same upon the monetary judgment is automatic and that the failure of the lower court to award post-judgment interest was an omission which can be corrected on appeal vide GKFI (NIG) LTD vs. NITEL (supra), BERLIET NIG LTD vs. KACHALLA (1995) 9 NWLR (PT 420) 478 and JOS STEEL ROLLING CO. LTD vs. BERASHIELLI NIG LTD (1995) 8 NWLR (PT 412) 201. The Court was urged to exercise its powers under Order 19 Rule 11 (1) of the Court of Appeal Rules, 2016 and make the order for post-judgment interest which ought to have been made by the lower Court.
SUBMISSIONS OF THE CROSS RESPONDENT’S COUNSEL
The Cross Respondent submits that the award of post-judgment interest pursuant to Order 21 Rule 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2007 is at the discretion of the Court since the permissive word “may” is employed. The cases of OKON vs. BOB (2003) LPELR-6098 (CA), UBANI-UKOMA vs. SEVEN-UP BOTTLING CO PLC (2009) LPELR-3915 (CA) among other cases were referred to. It was asserted that the award of post-judgment interest is purely discretionary and not automatic. The cases of UBA PLC vs. LAWAL (2008) 7 NWLR (PT 1087) 613 at 634, STABILINI VISIONI LTD vs. METALUM LTD (2008) 9 NWLR (PT 1092) 416 at 436, CHURCHGATE NIG LTD vs. UZU (2005) LPELR-11404 (CA), ADEBIYI vs. NATIONAL INSTITUTE OF PUBLIC INFORMATION (2013) LPELR-22628 (CA) and NRC vs. J.C. EMEAHARA & SONS (1994) 2 NWLR (PT 325) 206 at 218-219 were cited in support.
It was posited that the exercise of discretion is not to be fettered and that an appellate Court is not permitted to substitute its own discretion for the discretion of the lower Court or question the exercise of discretion by the lower Court merely because it would have exercised the discretion in a different way. The cases of DALFAM vs. OKAKU (2001) 15 NWLR (PT 735) 203 at 244, ACME BUILDERS LTD vs. K.S.W.B. (1999) 2 NWLR (PT 590) 288 and NECHIL AGENCIES LTD vs. VICTOR AGENCIES LTD (2011) LPELR-4588 (CA)were relied upon.
The Cross Appellant’s Reply Brief dwells on the meaning of discretion and manner of exercise of discretion. It was contented that the lower Court did not exercise discretion one way or the other on the question of post-judgment interest. The Court was urged to invoke its general powers under Section 15 of the Court of Appeal Act and exercise discretion in favour of the Cross Appellant and order post-judgment interest.
RESOLUTION OF THE CROSS APPEAL
There are two types of interest usually awarded by a Court, namely pre-judgment interest otherwise known as ‘interest as of right’ or ‘moratory interest’ and post-judgment interest otherwise known as ‘discretionary interest,’ which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Post-judgment interest, which is the pith of the contention in the cross appeal, need not be specifically claimed before it is awarded, since it is statutory and the Courts are empowered to award it at its discretion based on the stipulated rates and it need not be proved: HIMMA MERCHANTS LTD vs. ALIYU (1994) 5 NWLR (PT 347) 667, TEXACO OVERSEAS NIGERIA PETROLEUM COMPANY UNLTD vs. PEDMAR NIGERIA LTD (2002) LPELR (3145) 1 at 20-21 and DIAMOND BANK LTD vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 30-31.
Order 21 Rule 4 of the National Industrial Court Rules, 2007, which was the regnant rules of Court at the date of the judgment of the lower Court on 21st March 2014 provides as follows:
“The Court at the time of delivering 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.”
The above rule provides for the statutory interest which does not need to be claimed or proved and the settled law is that the award of the same is at discretion of the Court. Unless an appellate Court comes to the conclusion that the exercise of discretion by a trial Court was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it cannot interfere, even if the appellate Court may have exercised the discretion differently. This is because the discretion is that of the Court of trial and not of the appellate Court. See SARAKI vs. KOTOYE (1990) 4 NWLR (PT 143) 144, UNIVERSITY OF LAGOS vs. OLANIYAN (1985) 1 NWLR (PT 1) 156 and ANYAH vs. AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47.
The lower Court in its wisdom was silent on the award of post-judgment interest. It did not exercise discretion one way or the other. It seems that the lower Court did not advert its mind to the provisions of Order 21 Rule 4 of the National Industrial Court Rules, 2007 and consequently omitted to exercise its discretion in that regard. In the diacritical circumstances of this matter, the issue is not whether the lower Court properly exercised its discretion or whether an appellate Court can interfere with the manner in which discretion was exercised atnisi prius. It is a clear case of a failure and omission to exercise discretion. All the indices for the award of post-judgment interest in favour of the Cross Appellant are present in this case; it was therefore an injudicious omission on the part of the lower Court not to have exercised discretion one way or the other and which occasioned a miscarriage of justice. In the circumstances, this Court is compelled to interfere pursuant to its powers under Section 15 of the Court of Appeal Act, in order to obviate the miscarriage of justice: AGBAJE vs. ADELEKAN (1990) 11-12 SC 162 and BOLANLE vs. ACCESS BANK (2015) LPELR (40994) 1 at 28-29.
In G. K. F. INVESTMENT NIG LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 22, Mukhtar, JSC (later CJN) held as follows:
“The learned trial judge in this case did not make any order on payment of interest to the Appellant. However, as one of the grounds of appeal of the Appellant in the lower Court complained against the failure of the trial Court to award interest… the lower Court was bound to examine and determine the issue…which it did and ordered…as follows:-
‘In the instant case where the rules of Court have provided for the recovery of interest on a judgment sum, the entitlement is automatic unless otherwise ordered by the Court. Since the lower Court had neither ordered the payment of interest to the Appellant nor given a direction to the contrary, the sum… awarded to the Appellant automatically carries interest at the rate… fixed by…the…Rules.’
I endorse the above finding and affirm it.”
I kowtow.
Since the lower Court did not exercise discretion one way or the other, this Court will make the order for post-judgment interest in order to meet the justice of the case. The cross appeal is meritorious and it is hereby allowed. It is hereby ordered that the judgment sum shall attract 10% interest being the rate stipulated in Order 21 Rule 4 of the National Industrial Court Rules, 2007. For avoidance of doubt, for clarity and for good order sake, it is ordered as follows:
“There shall be 10% interest on the judgment sum of N8, 629,411.68 (Eight Million, Six Hundred and Twenty-Nine Thousand, Four Hundred and Eleven Naira, Sixty-Eight Kobo) from 22nd March 2014 until the judgment sum is fully liquidated.”
In the course of this judgment, I have considered the main appeal and the cross appeal. The main appeal is devoid of merit and it is accordingly dismissed and the judgment of the lower Court in that respect is affirmed. The cross appeal which I found meritorious has been allowed in the terms set out in this judgment. The parties shall bear their respective costs of this appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I concur in the thorough judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
EBIOWEI TOBI, J.C.A.: I have read the judgment of my learned brother, Ugochukwu Anthony Ogakwu JCA. My learned brother has done justice to the issues presented by parties for determination by this Court. I see no reason to depart from his reasoning and the conclusions reached therein. I have nothing more to add.
Appearances:
Ubong Akpan, Esq. For Appellant(s)
Ms. Ololade Oladele For Respondent(s)
