SAHARA ENERGY RESOURCES LTD v. OYEBOLA (2020)

SAHARA ENERGY RESOURCES LTD v. OYEBOLA

(2020)LCN/15462(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/L/1091/2016

RATIO

COMPETENCE OF COURT: WHETHER A COURT CAN RAISE AN ISSUE SUO MOTU AND UNILATERALLY RESOLVE IT WITHOUT HEARING THE PARTIES

Undoubtedly, it is rudimentary law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the parties, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12. Let me festinate and state that the need to hear parties on an issue raised suo motu is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. See OMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332, ALIMS LTD vs. UBA (2013) 1 MJSC (PT 1) 156 at 170 and OLUTOLA vs. UNIVERSITY OF ILORIN (2005) ALL FWLR (PT 245) 1154. The issue which the Appellant complains that the lower Court raised is not an issue of jurisdiction, so if indeed the lower Court raised the issue suo motu, it was enjoined by law to give the parties a hearing on the said issue raised suo motu. But did the lower Court raise any issue suo motu?
Now, it has to be remembered that the parties were at issue on the quantum or measure of damages, it therefore behoved the lower Court to determine the said issue. See 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 (2047) 1 at 17. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FAIR HEARING: WHETHER FAILURE TO CONSIDER AND PRONOUNCE ON ALL ISSUES BEFORE THE COURT WILL CONSTITUTE A DENIAL OF FAIR HEARING

In simple terms, it would appear that failure to consider and pronounce on all issues before the Court will not, per se, constitute a denial of fair hearing unless such omission occasioned a miscarriage of justice: BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270. Kalgo, JSC expressed the position in the following words in OSASONA vs. AJAYI (2004) LPELR (2790) 1 at 20:
“It is trite law that a Court or tribunal should consider all issues for determination brought before it but failure to consider and pronounce on all issues submitted to the Court or tribunal may not necessarily amount to a miscarriage of justice or denial of fair hearing.”
See also UBN vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COMPETENCE OF COURT: WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE AWARD OF GENERAL DAMAGES BY A TRIAL COURT

An appellate Court will interfere with the award of general damages by a trial Court in situations which include:
a) Where the Court acted under wrong principles of law;
b) Where the Court acted in disregard of applicable principles of law;
c) Where the Court acted in misapprehension of facts;
d) Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award;
e) Where injustice will result if the appellate Court does not act;
f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.
See ACB LTD vs. APUGO (2001) 5 NWLR (PT 707) 653, UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558, B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62, SPDC LTD vs. TIEBO (2005) LPELR (3203) 1 at 25, ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 15 and KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (supra) at 15-17. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DAMAGES: WHETHER THE DETERMINATION OF THE QUANTUM OF GENERAL DAMAGES TO AWARD IS WITHIN THE DISCRETIONARY POWERS OF THE COURT

JURISDICTION: COMPETENCE TO TRY LABOUR AND EMPLOYMENT–RELATED MATTERS

It has to be remembered that the National Industrial Court is a specialized Court exclusively established primarily for labour and employment-related matters. In that regard, except where patently and manifestly wrong, there has to be some deference to the decisions of that Court in that area of the core competence and specialisation of the Court. This has been recognized internationally. For instance, the Appellate Courts in England have stated that employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing. Such employment tribunals are to be ‘realistic and worldly wise’, and ‘sensible and robust…in order to prevent form from undermining substance’. See UBER B.V. (UBV) vs. YASEEN ASLAM (2018) EWCA CIV 2748 (19th December 2018) at Paragraphs 48 and 49 and AUTOCLENZ LTD vs. BELCHER (2011) UKSC 41 or (2011) ICR 1157. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONTRACT: DUTY OF COURT: INTERPRETATION OF THE TERMS OF THE CONTRACT

It is hornbook law that parties are bound by the terms of their contract and the duty of the Court is to interpret the terms of the contract to reflect the intention of the parties and give effect to the same. See UNION BANK vs. OZIGI (1994) 3 NWLR (PT 333) 385, YADIS (NIG) LTD vs. GREAT NIG INS CO LTD (2007) LPELR (3507) 1 at 25 andA. G. FERRERO & CO LTD vs. HENKEL CHEMICALS (NIG) LTD (2011) LPELR (12) 1 at 17-18. Allied to this, is the rudimentary law that where the words used in a contract are clear, precise, univocal and unambiguous, they are to be given their plain, ordinary, grammatical and literal meaning and interpretation: ADEJUMO vs. AGUMAGU (2015) 12 NWLR (PT 1472) 1, UTOMUDO vs. MILITARY GOVERNOR OF BENDEL STATE (2014) 47 WRN 1 and UGWU vs. ARARUME (2007) 31 WRN 1. 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

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

SAHARA ENERGY RESOURCES LIMITED APPELANT(S)

And

MRS OLAWUNMI OYEBOLA RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent was a staff of the Appellant. She was summarily dismissed by the Appellant based, inter alia, on allegations of dishonesty and bribery. The Respondent, contending that the said dismissal was in violation of her conditions of service and terms of employment, instituted proceedings before the National Industrial Court of Nigeria in SUIT NO. NICN/LA/191/2014: MRS. OLAWUNMI OYEBOLA vs. SAHARA ENERGY RESOURCES LIMITED. The Respondent claimed the following reliefs:
(a) A Declaration that the summary dismissal by the Defendant of the Claimant’s employment vide the Defendant’s letter dated 10th April, 2014 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(b) A Declaration that the purported letter of dismissal dated 10th April, 2014 by the Defendant issued against the Claimant based on a feedback from customers of alleged incidence of dishonesty and bribery constituted a violation of the claimant’s Fundamental Human Rights to fair hearing as guaranteed under Section 36(1) of the Constitution of Federal Republic of Nigeria 1999, (as amended) and a fortiori unconstitutional, null, void and of no effect whatsoever.
(c) A Declaration that the dismissal of the Claimant’s employment by the Defendant is a flagrant breach of the Conditions of Service and Code of Conduct of the Defendant which is binding on the Defendant.
(d) An Order setting aside the Defendant’s letter of summary dismissal dated 10th April, 2014 wherein the claimant’s employment was determined.
(e) An Order of payment of the Claimant’s salaries, emoluments and benefits from April 2014, when the claimant’s employment was unlawfully determined by the defendant until judgment is given in this case.
(f) A sum of N10million as general damages for the unlawful dismissal of Claimant’s employment by the defendant, breach of Claimant’s contract of employment and
(g) Cost of this suit
(h) And any other Order(s) that this Honourable Court may deem fit to make in these circumstances of this case.

The Appellant, as Defendant at the lower Court, set up a counterclaim against the Respondent for the following reliefs:
(a) A DECLARATION that the Claimant’s contract of employment was properly and effectively terminated upon delivery of the letter of summary dismissal on 10 April 2014.
(b) The costs of prosecuting the instant action on a full indemnity basis.

Issues having been joined on the pleadings filed and exchanged by the parties; the matter went through the crucible of a plenary trial where testimonial and documentary evidence was adduced by the parties. At the end of the trial, learned counsel addressed the Court and the lower Court thereafter delivered judgment. For reasons which will become apparent in the course of this judgment, I will go to some length to redact the decision of the lower Court on the disparate reliefs claimed by the parties.

On the Respondent’s first relief for a declaration that her summary dismissal by the letter dated 10th April 2014 is null, void and unconstitutional for failure to accord her right to fair hearing, the lower Court refused to make the declaration. (Page 856 of Volume 2 of the Records). The second relief, for a declaration that the letter of dismissal based on a feedback from customers of alleged incidence of dishonesty and bribery constituted a violation of the Respondent’s right to fair hearing and unconstitutional, null and void, was equally refused and dismissed by the lower Court (page 856 of Volume 2 of the Records).

The lower Court equally refused and dismissed relief four claimed by the Respondent, for an order setting aside the letter of summary dismissal; as well as relief five, for an order for payment of the Respondent’s salaries, emoluments and benefit from April 2014 when the Respondent was dismissed until date of judgment (page 857 of Volume 2 of the Records).

The lower Court however granted relief three claimed by the Respondent and held that the dismissal was in contravention of the conditions of service and a flagrant breach of the conditions of service and Code of Conduct of the Appellant (pages 856-857 of Volume 2 of the Records). Consequent upon this, the lower Court granted relief six for general damages for unlawful dismissal and breach of contract and awarded the sum of N7.1million, being the equivalent of two years’ salary of the Respondent, as general damages (pages 857-860 of Volume 2 of the Records). The lower Court having held that the summary dismissal was unlawful, concomitantly dismissed the Appellant’s counterclaim which was for a declaration that the contract of employment was properly and effectively terminated by the letter of summary dismissal. In consequence, the costs of prosecuting the action on full indemnity basis which was also claimed in the counterclaim was also refused (pages 860-861 of Volume 2 of the Records).

For good order sake, the lower Court summed up its judgment, highlighting the reliefs that succeeded and the reliefs that failed as follows at page 861 of Volume 2 of the Records:
“Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment –
1. The prayer for a declaration that the summary dismissal by the Defendant of the Claimant’s employment vide the Defendant’s letter dated 10/4/14 is null, void unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is refused for the reasons as contained in this Judgment.
2. The prayer for a declaration that the purported letter of dismissal dated 10/4/14 by the Defendant issued against the Claimant based on a feedback from customers of alleged incidence of dishonesty and bribery constituted a violation of the Claimant’s fundamental Human Rights to fair hearing as guaranteed under Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and a fortiori unconstitutional, null, void and of no effect whatsoever is refused and dismissed.
3. The prayer for an Order of payment of the Claimant’s salaries, emoluments and benefit from April, 2014, when the Claimant’s employment was unlawfully determined by the Defendant until judgment is given in this case is refused and dismissed for having no basis in law and equity.
4. The Defendant is ordered to pay the sum of Seven Million, One Hundred and Twenty Nine Thousand, Six Hundred and Thirty Six Naira and Thirty Six Kobo (=N=7,129,636.36) only being two years salary to the Claimant as damages/compensation for the unlawful dismissal from her employment by the Defendant and breach of Claimant’s contract of employment.
5. The 2 counterclaims sought by the Defendant are refused and dismissed.
6. Cost in the sum of One Hundred Thousand Naira (=N=100,000.00) is awarded in favour of the Claimant and payable by the Defendant.
All the terms of this Judgment shall be complied with within the 30 days from today.
Judgment is entered accordingly.”

I have gone to some length to set out the ratio decidendi of the lower Court in order to streamline the pertinent question that requires consideration and resolution in this appeal. Totidem verbis, the ratio decidendi of the lower Court is that the summary dismissal of the Respondent was unlawful and in contravention and breach of the conditions of service and code of conduct, consequent upon which it awarded the equivalent of two years’ salary as general damages for breach of the contract of employment occasioned by the unlawful dismissal. I found it expedient to properly contextualize the ratio decidendi of the lower Court in order to stay within the bounds of the decision appealed against.

The Appellant being dissatisfied with the decision of the lower court appealed against the same. The scarified judgment of the lower Court, which was delivered on 14th July 2016, is at pages 843-861 of Volume 2 of the Records of Appeal, while the Notice of Appeal, which was filed on 11th August 2016, is at pages 862-872 of Volume 2 of the Records of Appeal.

The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged by the parties. At the hearing of the appeal, Inam Wilson, Esq., learned counsel for the Appellant and Roland Otaru, Esq., SAN (with Dr. Comfort Roland-Otaru) learned senior counsel for the Respondent, urged the Court to uphold their respective submissions in the determination of the appeal. The Appellant’s Brief which was settled by Inam Wilson, Esq., was filed on 30th April 2018 and deemed as properly filed on the same date, wherein two issues were nominated for determination as follows:
1. Whether the learned trial judge was wrong when it held that failure for the Appellant to adhere strictly to its Disciplinary Procedure and Code Manual before dismissing the Respondent amounts to a denial of Respondent’s right to fair hearing and rendered the dismissal of the Respondent unlawful? In the event that the answer is affirmative, whether the learned trial judge was wrong to award the sum of N7,129,636.36 to the Respondent as general damages for unlawful dismissal? (Ground 10 of the Notice of Appeal.
2. Whether the Appellant did not get a fair trial and consequently suffered a miscarriage of justice.

The Respondent’s Brief was settled by Comfort Roland-Otaru, Ph.D., and it was filed on 28th May 2018. Two issues were crafted for determination, namely:
1. Whether the Lower Court was right in holding that the non-adherence of the Appellant to its disciplinary procedures and Code of Conduct Manual before dismissing the Respondent amounts to a denial of the Respondent’s right to fair hearing. In the event that the answer is in the affirmative, whether the Learned Trial Judge was right in awarding in favour of the Respondent the sum of N7,129,636.36k (Seven Million, One Hundred and Twenty-Nine thousand, Six Hundred and Thirty Six Naira, Thirty Six kobo) as damages for unlawful dismissal (Ground 10 of the Notice of Appeal).
2. Whether the Learned Trial judge breached the Appellant’s right to fair hearing when he rightly discountenanced the Appellant’s Reply on Points of Law dated and filed 6th May 2016.”

The Appellant further filed a Reply Brief on 2nd July 2018, but deemed as properly filed on 19th October 2020.

The issues distilled for determination by the parties are the same two and tuppence. Accordingly, it is on the basis of the issues as distilled by the Appellant that I would presently consider the submissions of learned counsel and resolve this appeal, due regard being had to the ratio decidendi of the lower Court as already analysed and set out in this judgment.

ISSUE NUMBER ONE
Whether the learned trial judge was wrong when it held that failure for the Appellant to adhere strictly to its Disciplinary Procedure and Code Manual before dismissing the Respondent amounts to a denial of Respondent’s right to fair hearing and rendered the dismissal of the Respondent unlawful? In the event that the answer is affirmative, whether the learned trial judge was wrong to award the sum of N7,129,636.36 to the Respondent as general damages for unlawful dismissal?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the dismissal of the Respondent was in accordance with the procedure stipulated in the Appellant’s Disciplinary Procedure and Code of Conduct Manual. It was stated that the Respondent has the onus of proving that the terms of the contract of employment were breached and the measure of damages recoverable vide EKEAGWU vs. THE NIGERIAN ARMY (2010) LPELR-1076 (SC) or (2010) 16 NWLR [no part stated] 419. It was posited that following feedback received from certain customers about the Respondent, the Appellant initiated disciplinary proceedings in line with the Disciplinary Procedure and Code of Conduct and that the Respondent admitted the allegations of bribery and dishonesty levelled against her at the hearing.

It was opined that the Disciplinary Procedure and Code of Conduct gives the employee a right of appeal if dissatisfied with the decision reached, but that the Respondent did not exercise the right of appeal before recourse to Court. The Appellant argued that even though a formal letter was not written to the Respondent, the Respondent was aware of the disciplinary hearing, attended the same and understood the allegations against her. It was argued that the Respondent contended that the customers who gave the feedback about her activities were not present but that the lower Court did not make any finding that the Respondent wanted to cross-examine them but was denied the opportunity. It was stated that the transcript of the proceedings at the disciplinary hearing was rejected in evidence and there was therefore no basis for the lower Court to hold that the decision of the disciplinary hearing was predetermined or that the Respondent was not afforded the opportunity of fair hearing. It was asserted that the Respondent having admitted the allegation against her, no proof of the allegation was required. The case of UNTHMB vs. NNOLI (1994) 8 NWLR (PT 363) 376 was referred to.

The Appellant contended that in granting relief in favour of the Respondent, the lower Court misconceived the legal distinction between wrongful termination/dismissal and unlawful termination/dismissal by wrongly holding that termination/dismissal is unlawful where the procedure is not complied with, and that the measure of damages in such a case, will not just be the salary that would have been earned during the period of notice. It was opined that it is only in employments with statutory flavour, which is not so in the instant case, that it becomes of any consequence if the termination/dismissal was unlawful. It was maintained that in ordinary master/servant relationship as in the instant case, any failure to comply with the procedure amounts to wrongful termination/dismissal and not unlawful termination/dismissal. The cases of SHELL PETROLEUM DEVELOPMENT COMPANY vs. LAWSON-JACK (1998) 4 NWLR (PT 545) 249, IMOLOAME vs. WAEC (1992) 9 NWLR (PT 265) 303, JOMBO vs. PEFMB (2005) 14 NWLR (PT 945) 443 (SC) and PHMB vs. EJITAGHA (2000) 11 NWLR (PT 677) 154 at 160 were relied upon. The Appellant asserted that the duty of the Court was to review the entire disciplinary process that the employee was subjected to, and determine if he was accorded fair hearing in the circumstances vide ANGEL SPINNING & DYEING LTD vs. AJAH (2000) 13 NWLR (PT 685) 532 and DAVID-OSUAGWU vs. ANAMBRA STATE (1993) 4 NWLR (PT 285) 13; and that where there has been substantial compliance with the procedure, the termination/dismissal shall be upheld. The cases ofARINZE vs. FIRST BANK (2004) 12 NWLR (PT 888) 663 at 678-679 and YUSUF vs. UNION BANK (1996) 6 NWLR (PT 457) 632 were cited in support.

On the measure of damages, it is the contention of the Appellant that the cases of AMODU vs. EPESOK PAPER MILLS LTD, SUIT NO. NICN/LA/304/2014 (unreported) delivered on 22/6/2016 and BRITISH AIRWAYS vs. MAKANJUOLA (1993) 8 NWLR (PT 311) 276 were distinguishable as the employees in the said cases were accused of misconduct bordering on crime and the procedure for dismissal or opportunity for fair hearing was not afforded the employee before they were dismissed; whereas in the instant case the Respondent was given an opportunity to be heard at the disciplinary hearing before she was dismissed. It was maintained that the law on the measure of damages payable in the event of wrongful termination or dismissal of employee is settled as being the payment of salary and other entitlements that would have accrued over the period of notice. The cases of WNDC vs. ABIMBOLA (1966) 1 ALL NLR 159 at 160-161, N. P. M. B. vs. ADEWUNMI (1972) 1 ALL NLR (PT 2) 870 at 875, CHUKWUMAH vs. SHELL (1993) 4 NWLR (PT 289) 512 at 538, SHELL vs. LAWSON-JACK (supra), OSISANYA vs. AFRIBANK (2007) 6 NWLR (PT 1031) 565 at 586 and ATIVIE vs. KABELMETAL (NIG) LTD (2008) 10 NWLR (PT 1095) 399 at 425 were called in aid. The lower Court, it was posited, was by reason of the doctrine of stare decisis bound to follow the decisions of the superior Courts vide NEPA vs. ONAH (1997) 1 NWLR (PT 484) 680 at 688, and that the provisions of Sections 7 (6), 13, 14, 15 of the National Industrial Court Act, 2006 and Section 254C (1) (f) of the Third Alteration of the Constitution was not a carte blanche to depart from binding judicial precedent or make a new case for a party in order to grant a relief not claimed.

It was conclusively submitted that the failure of the Appellant to adhere strictly to its Disciplinary Procedure and Code Manual before dismissing the Respondent did not amount to a denial of fair hearing and that the termination of the Respondent was not unlawful or indeed wrongful. It was opined that even if the dismissal was wrongful as opposed to unlawful, the Respondent was only entitled to damages of no more than one month salary as prescribed by her contract of employment.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the Appellant did not comply with the disciplinary procedure code of conduct before it summarily dismissed the Respondent. That no query was issued to the Respondent despite the feedback the Appellant claimed it received from customers about the activities of the Respondent. It was further stated that the Respondent was not served any written notice to attend the disciplinary hearing as provided for in the Disciplinary Code of Conduct Manual. It was stated that the notice of the charges against the Respondent, which from the evidence was first read to her at the venue of the hearing, was a breach of the Disciplinary Code of Conduct vide PHMB vs. EJITAGHA (supra) at 160. It was posited that the customers who levelled the allegations against the Respondent were not present at the hearing to confront the Respondent and so the Respondent did not have the opportunity of cross-examining them.

The Respondent contended that the Appellant had the burden of ensuring that the Respondent’s accusers were present at the hearing for the Respondent to cross-examine them. That the absence of the accusers occasioned a breach of fair hearing which would result in the decision reached being set aside as the rules of natural justice cannot be circumvented. The cases of ADEYANJU vs. WAEC (2002) 13 NWLR (PT 785) 479, TANTI vs. N.C.S.B. (2009) 7 NWLR (PT 1141) 631 at 663 and UNTHMB vs. NNOLI (1994) 8 NWLR (PT 363) 376 were referred to. It was argued that whereas in this case the allegation borders on criminality, the employer must give the employee a fair hearing before summarily dismissing him videARINZE vs. FIRST BANK (supra).

It is the further submission of the Respondent that the Appellant is bound to comply with Section 36(1) of the 1999 Constitution which guarantees the Respondent a right of fair hearing, but that it failed so to do by not securing the attendance of the Respondent’s accusers at the hearing. The case of ADEWUNMI vs. NIGERIAN EAGLE FLOUR MILLS (2014) LPELR-22557 was relied upon. It was further contended that under the Disciplinary Code of Conduct, the Appellant’s Group Head, Human Resources, must approve all dismissals for it to be effective; and that there is nothing in evidence to show that the Group Head approved the Respondent’s dismissal. It was posited that the warning said to have been given to the Respondent was not tendered in evidence, neither was the transcript of the disciplinary hearing at which the Respondent was said to have admitted the allegations against her; pleadings it was maintained, is not synonymous with evidence required to prove a case vide AIYEOLA vs. PEDRO (2014) 13 NWLR (PT 1424) 409.

The Respondent asserted that the lower Court rightly held that the dismissal of the Respondent was predetermined even before the enquiry took place, as the evidence is that the Respondent was dismissed immediately after the disciplinary hearing showing that the disciplinary hearing was no more than window-dressing. The Respondent iterated that the dismissal reached without adherence to the Appellant’s Disciplinary Procedure and Code of Conduct Manual amounted to a denial of the right to fair hearing.

On the measure of damages, it is the Respondent’s contention that having established that her dismissal was not in compliance with the Appellant’s Disciplinary Procedure and Code of Conduct Manual, that she was entitled to damages for the breach and that the lower Court correctly assessed the quantum of damages by awarding two years’ salary as damages and compensation for the unlawful dismissal. It was stated that the award of one month salary in lieu of notice, as contended by the Appellant, would not meet the justice of the case as the heinous allegations falsely levied against the Respondent would affect the prospects of her securing another employment. The Respondent referred to some decisions of the lower Court, which are only persuasive, and posited that Section 19(d) of the National Industrial Court Act, 2006, empowered the lower Court to award compensation or damages in appropriate circumstances. The case of LONGE vs. FBN (2010) 6 NWLR (PT 1189) 1 at 57 was cited in support.

APPELLANT’S REPLY ON LAW
The apercu of the Appellant’s submission is that there was no requirement under the Appellant’s Disciplinary Procedure and Code of Conduct to issue the Respondent a query because of the potential penalty for the allegations against her. The Appellant asserted that it is only in employments with statutory flavour that the Courts require strict compliance with the procedural requirements for the dismissal of an employee. It was contended that the Disciplinary Code of Conduct stipulates that the Respondent should be given a fair and reasonable opportunity to make representation or call witnesses, but that the Respondent having admitted the allegations against her could not be expected to have requested to make representations or call any witness. Furthermore, it was stated that the provision for the Respondent to be given a fair and reasonable opportunity to cross-examine any witness called was inapplicable because no witness was called at the hearing, more so, when the Respondent admitted the allegations against her.

The Appellant further contended that the Respondent’s letter of dismissal was signed by the Appellant’s Managing Director and Human Resources Manager and that the approval of the Group Head, Human Resources, is not a pre-condition to a dismissal as the approval can be obtained after the dismissal. The Managing Director was said to be a higher authority than the Group Head, Human Resources, and therefore has proper and sufficient authority to approve and sign the letter of dismissal, such that the absence of a written approval by the Group Head does not invalidate the dismissal.

RESOLUTION OF ISSUE NUMBER ONE
The disceptation under this issue is two-fold. Firstly, whether the lower Court rightly held that the dismissal of the Respondent was not in accordance with Disciplinary Procedure and Code of Conduct Manual of the Appellant, and secondly, whether the lower Court was wrong to award the equivalent of two years’ salary as general damages for unlawful dismissal and breach of contract. When properly contextualized, relative to the ratio decidendi of the lower Court, the quodlibet falls within a very narrow compass. I have already set out the reliefs claimed by the Respondents. Of the several reliefs claimed, only two of the reliefs succeeded, id est, a declaration that the dismissal of the Respondent was a flagrant breach of the conditions of service and code of conduct of the Defendant and the relief claimed for general damages for unlawful dismissal and breach of contract. It is pertinent to state that the Court and the parties are bound by the reliefs claimed in an action as framed by the claimant: EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40, DUMEZ NIG LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26, AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92 and OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 44 and 55. The Respondent claimed general damages for unlawful dismissal and breach of contract. The lower Court awarded general damages for unlawful dismissal and breach of contract, which was adjudicating between the parties on the basis of the claim formulated. The polemics and dialectics on wrongful termination/dismissal and unlawful termination/dismissal is neither here nor there, as the reliefs granted by the lower Court were on the basis of the claim as formulated and which it was duty bound to adjudicate upon vide OSUJI vs. EKEOCHA (supra) at 44. Howbeit, we would still find out in the course of this judgment interrogate whether the damages of two years’ salary awarded by the lower Court is justifiable in law.

But first, before the measure or quantum of damages is interrogated, we will first examine if the decision of the lower Court that the Respondent’s dismissal did not comply with the disciplinary procedure of the Appellant on account of which it ultimately mulcted the Appellant in damages, since it could not force the Respondent on an unwilling Appellant which had dismissed her, is the correct decision.

The documentary evidence before the Court discloses that the Respondent had a contract of employment with Sahara Trade Nigeria Limited. Paragraph 3.2 of the said contract of employment stipulated that the Respondent can be assigned to another office, branch or location within or outside the company or the Group. The said contract of employment further incorporated in paragraph 13.1 thereof the applicability of the Appellant’s guidelines, manuals, policies, practices and procedure as part of the contract.

The Respondent was subsequently transferred from Sahara Trade Nigeria Limited to another company within the Sahara Group, namely, Sahara Energy Resources Limited, the Appellant on record. The letter of transfer expressly stated that the terms and conditions which the Respondent had earlier accepted in her letter of employment remained the same. The employment relationship continued until the Respondent was summarily dismissed by letter dated April 10, 2014, which spawned this action. The said letter of Summary Dismissal reads as follows:
“We wish to inform you that effective April 10, 2014, you are hereby dismissed from your position as Business Development Supervisor based on your role in the incidence involving dishonesty and bribery which was brought to the attention of the company.
We received a feedback from customers and confirmed same [sic] of your dealings with regard to requesting for and receiving money from them which is against the company’s policy.
This action is based on Sahara Group’s Code of Conduct, which prohibits any dishonesty or attempted dishonesty including conspiracy, theft, bribery, fraud or giving false or misleading statements to the Company or customers, employees or persons having dealings with the company and the penalty is dismissal.
This offence is a breach of the Company’s Code of Conduct. You put the company in a bad light with this behavior of yours which will not be condoned by the company.
Kindly return your identification card and all other company property in your possession.”

It is effulgent from the letter of summary dismissal that the dismissal is based on the “Sahara Group’s Code of Conduct” which, as already demonstrated, was expressly incorporated into the Respondent’s contract of employment. It is hornbook law that parties are bound by the terms of their contract and the duty of the Court is to interpret the terms of the contract to reflect the intention of the parties and give effect to the same. See UNION BANK vs. OZIGI (1994) 3 NWLR (PT 333) 385, YADIS (NIG) LTD vs. GREAT NIG INS CO LTD (2007) LPELR (3507) 1 at 25 andA. G. FERRERO & CO LTD vs. HENKEL CHEMICALS (NIG) LTD (2011) LPELR (12) 1 at 17-18. Allied to this, is the rudimentary law that where the words used in a contract are clear, precise, univocal and unambiguous, they are to be given their plain, ordinary, grammatical and literal meaning and interpretation: ADEJUMO vs. AGUMAGU (2015) 12 NWLR (PT 1472) 1, UTOMUDO vs. MILITARY GOVERNOR OF BENDEL STATE (2014) 47 WRN 1 and UGWU vs. ARARUME (2007) 31 WRN 1. It is against this background that I will now consider the stipulations of the Appellant’s Disciplinary Procedure and Code of Conduct to ascertain if the same was complied within the procedure leading to the dismissal of the Respondent.

The said Disciplinary Procedure and Code of Conduct is in evidence as Exhibit C7. It will now command and captivate our attention in order to ascertain if the disciplinary procedure for dismissal of an employee was complied with in the process leading to the dismissal of the Respondent. The Disciplinary Procedure & Code of Conduct stipulates as follows in respect of conduct punishable with summary dismissal:
“Summary Dismissal
Any employee found guilty of misconduct or criminal offence such as fraud, stealing, murder and other serious offences, shall be dismissed.
Depending on management’s discretion, such employee referred to above, shall be made to face a disciplinary panel or be handed over to any of the law enforcement agencies (EFCC, Police, ICPC etc) to carry out the necessary investigations. Once these investigations are founded, he/she would be prosecuted whether or not he/she is still in the employment of the company. This could also apply to an employee whose employment has been terminated.
Where an employee is dismissed, no benefit shall accrue to such an employee notwithstanding the number of years he/she has spent with the company.
The Group Head, Human Resources must approve all dismissals.”

The Respondent by the letter of summary dismissal was dismissed for “incidence involving dishonesty and bribery”. The Disciplinary Procedure & Code of Conduct, which gives examples of misconduct that may lead to disciplinary measures, states as follows for the offence of dishonesty and maximum penalty:
OFFENCES OF DISHONESTY Any dishonesty or attempted dishonesty including conspiracy, theft, bribery, fraud or giving false or misleading statements to the Company or customers, employees or persons having dealings with the company
MAXIMUM PENALTY Dismissal

The Disciplinary Procedure & Code of Conduct makes copious provisions on the disciplinary process. Since at pith of this matter is whether the said process was complied with, I will set out the stipulations as it appears in the Disciplinary Procedure & Code of Conduct verbatim ac literatim. It stipulates:
“DISCIPLINARY PROCESS
Introduction:
Disciplinary action takes place at two levels, depending on the potential sanction for the alleged disciplinary offence. The levels are as follows:
In cases involving the potential of a sanction no greater than a first written warning, the matter will be dealt with by the employee’s supervisor/manager in an informal hearing that is Supervisor’s/Manager’s Hearing. Supervisors/Managers may not impose a sanction more onerous than a first written warning.
In cases involving the potential of a final written warning or termination or dismissal, the matter will be dealt with in a formal disciplinary hearing.
In the event that a supervisor or manager impose a sanction in excess of their authority, that sanction shall be invalid and the Company reserves the right to call for another disciplinary process.
The management of the company in its sole discretion, in all cases, and notwithstanding what is stated above, has the right to utilize the procedure of a Managers Hearing or formal disciplinary hearing should it consider it appropriate to do so.
Disciplinary Enquiry
Notice of a disciplinary enquiry must be given to the employee.
Such notice must;
• set out the charge(s)
• be given to the employee at least twenty-four (24) hours prior to the disciplinary interview;
• set out the maximum sentence that may be imposed if the employee is found guilty;
• contain any other relevant information.
Either party may request that the disciplinary enquiry be postponed for a maximum period of three (3) days, pending further investigation.
All disciplinary enquires must be recorded in writing
All formal disciplinary hearing must be tape recorded
All disciplinary enquiries must be held in private and in the presence of the employee concerned.
The manager must inform the employee of the charges against her/him. The employee must also be informed of the reasons why her/his conduct and/or performance are unacceptable. The manager may call witnesses for and on behalf of the company to state the latter’s case.
The employee and/or her/his representative may put questions to the manager and witnesses.
The employee may also call witnesses. The company may also put questions to witnesses called by the employee.
The manager must be [sic] listen to the employee’s comments and, if necessary, investigate the matter further.
If necessary, the manager must take the relevant action as set out in this policy.
If a warning is given, the relevant Warning letter has to be signed by the manager.
The employee must sign the Warning letter. If, however, the employee refuses to do so, a note to this effect must be made on the Warning Letter and signed by the direct line-manager and a witness present.
An employee shall not resign his/her appointment with the company while disciplinary proceedings against the said employee are ongoing, pending or yet to be concluded.
A resignation on the part of the employee stating an intention to terminate the employment contract, shall only be accepted upon the conclusion of the disciplinary proceedings. One copy must be placed on the employee’s personnel file and the other copy must be handed to the employee concerned.
If it is decided that an employee’s services be terminated, with or without notice, the Chairperson of the enquiry must inform the panel immediately.
The employee shall be entitled to a right of appeal notwithstanding the level at which the proceedings are conducted. The Company shall only be entitled to appeal the decision of the chairperson of a formal disciplinary hearing. This for both parties, must happen within 3 working days.
In determining which level of disciplinary procedure to follow, the manager should have regard to the schedule of misconducts and the sanction guidelines set out above. The supervisor or manager should, if they are to conduct a Supervisors/Managers Enquiry, take care not to pre-judge the issue. The supervisor or manager should only determine the sanction to be applied once he/she has determined the guilt of the employee and has given consideration to all the circumstances of the matter including mitigating and aggravating factors. If the supervisor or manager considers that the matter should be referred to a formal disciplinary hearing, it should be handed over to the Human Resources Department as soon as reasonably possible.
If the need arises, a person other than the supervisor or manager may conduct the disciplinary enquiry or appeal. The severity of disciplinary action will depend upon the circumstances of each case and mitigating factors will be given proper attention. Accordingly, the penalties set out in the Code are intended to act as guidelines.”

The case against the Respondent involves the offence of dishonesty which attracted the penalty of dismissal, so it had to be dealt with in a formal disciplinary hearing. The following stipulations are further contained in the Disciplinary Procedure & Code of Conduct to govern the formal disciplinary hearing, videlicet:
“Level 2- Formal Disciplinary Hearing
If a supervisor or manager becomes aware of a disciplinary misconduct, which it appears, having regard to the schedule of misconducts and the sanction guidelines set out above, may warrant dismissal or termination of contract, the matter should forthwith be referred to the Human Resources Department.

The Human Resources Department should obtain full details of the alleged disciplinary misconduct from the supervisor, manager or complainant concerned and forward to the Internal Audit Department for investigation where it involves fraud, theft, etc to determine whether the alleged disciplinary misconduct is indeed one which may warrant dismissal or whether it should preferably be referred back to the supervisor or manager concerned to be dealt with in terms of the procedures set out above.
The Internal Audit Department will advise the Company Head and Human Resources Department about its findings.
If the alleged misconduct warrants dismissal or termination of contract, the Human Resources Department shall refer the report to the company or departmental Head concerned to write a letter to the employee advising him/her to attend a Disciplinary Enquiry.
The company or departmental head should deliver the letter to attend a Disciplinary Enquiry to the employee concerned and to verbally explain the contents thereof to him/her including his rights set in the document.
The company or departmental Head in consultation with The Human Resources Department may elect to suspend an employee as a preliminary step and furnish him/her with a letter to attend a Disciplinary Hearing at a later date, after an investigation has taken place under the following circumstances:
Where the continued stay of the employee in office may hinder or obstruct proper investigation.
Where the business may suffer more damage (s) or is at risk of the continued stay of the employee in office.
The employee is to be given at least twenty-four (24) hours notice of a disciplinary enquiry, the date, time and venue of which should be set out in the letter to attend a Disciplinary Enquiry.
The Human Resources Department should ensure that a disciplinary enquiry is convened at the time set out in the letter to attend a Disciplinary Enquiry.
Composition of the Formal disciplinary hearing
• The formal disciplinary hearing shall be attended by the following persons:
• The presiding officer or chairperson
• The employee concerned
• The employee’s representative (if any)
• An interpreter, where necessary
• Company representative(s) or complainant and Internal Audit where necessary
• Any witnesses called to give evidence by the company representative, complainant or the employee
• A representative of the Human Resources Department, who will serve as the scribe and such other persons considered appropriate by the Human Resources Department or the panel.
The presiding officer shall ensure that any witnesses called to give evidence must remain outside of the enquiry until such time as the witness is required to give evidence.
The presiding officer shall open the disciplinary enquiry and should read out the details of the charge from the Advice to Attend a Disciplinary Enquiry. The presiding officer shall confirm that the employee understands the charges against him/her and that the employee is aware of his/her rights as set out in the Advice to attend a Disciplinary Enquiry.
The presiding officer should, with the assistance of the Company representative or complainant, establish the details of the alleged disciplinary misconduct and provide the company representative or complainant with an opportunity to call witnesses in substantiation of the alleged disciplinary misconduct.
The presiding officer may cross-examine witnesses, if and where necessary.
The employee and his/her representatives should be given a fair and reasonable opportunity to make representations; call witnesses and cross-examine any witnesses called by the company representative, complainant or the panel. The same rights should be afforded to the company representative or the complainant.
After the presiding officer has heard all the evidence they shall make a finding as a whether or not the employee is guilty of the alleged disciplinary misconduct. If necessary, the panel may adjourn the enquiry to consider the evidence and re-convene the enquiry at a later stage.
If the presiding officer considers that the employee is not guilty of the alleged disciplinary misconduct with which he/she has been charged, but that he/she is guilty of a lesser offence, the presiding officer shall be empowered to either recommend a lesser sanction or dismiss the case and recommend the appropriate charge (s). The recommendation will be made to the Directors, who will make the final decision.
The presiding officer shall advise the employee of the final decision and reasons therefore.”

For purposes of completion, the Disciplinary Procedure & Code of Conduct sets out an appeal procedure from the decision of a formal disciplinary hearing. On account of the fact that the right of appeal was not exercised in this matter, I will set out the provision on the right of appeal in order to resolve if, as contended by the Appellant, the Respondent ought to have exhausted the internal remedies before instituting proceedings in Court. The provision states:
“Appeal From Formal Disciplinary Hearing:
An appeal will be limited to the following:
• New Evidence
• Alleged procedural irregularities
• Substantive unfairness
A former employee or employee who regards any disciplinary action taken against him/her at a formal disciplinary hearing to be unjustified or otherwise open to challenge, may appeal against the finding of the formal disciplinary hearing within three (3) days of being informed of the disciplinary sanction and shall do so in writing and deliver it to the Human Resources Department. In the Appeal, the employee shall outline in details the grounds for appeal.”

The provisions of the disciplinary process are easy to comprehend and they do not require any aid to interpret. The said Disciplinary Procedure & Code of Conduct is binding on the Appellant and the Respondent. I have gone through the evidence on record with the finery of a toothcomb and the evidence is consistent that the said provisions were not followed by the Appellant in the process cumulating in the dismissal of the Respondent. For a start, the evidence discloses that the Respondent was never given notice of the disciplinary enquiry which set out the charge(s) at least 24 hours before the disciplinary interview and setting out the maximum sentence that may be imposed in the event of a finding of guilt and any other relevant information. What is more, the customers, on whose feedback the Respondent was subjected to the disciplinary hearing, never testified at the hearing. The Appellant clearly conceded as much in paragraph 1.7 of the Appellant’s Reply Brief that no witnesses were called. Where there were no witness called, what was the testimony on the allegation against the Appellant, was it the panel that provided the evidence in breach of the pillar of natural justice of nemo judex in causa sua? What opportunity did the Respondent have to confront the said customers who gave the feedback when they were not called as witness as required by the pillar of natural justice of audi alteram partem?
I do not lose sight of the Appellant’s evidence that the Respondent admitted the allegation against her. By the Disciplinary Procedure & Code of Conduct, the proceedings at the hearing are to be recorded in writing and tape-recorded. The Appellant sought to tender the transcript of the proceedings at the hearing, but the same was rejected in evidence. There is no appeal against the rejection of the same. Since the said proceedings were reduced into writing, oral evidence of what transpired at the proceedings cannot be given. So the testimony of the Appellant’s witness that the Respondent admitted the allegations against her is of no evidential or probative value. See Section 128 (1) of the Evidence Act, NWANA vs. OKOYEOCHA (2016) LPELR (40927) 1 at 20 and 22-23, REMAWA vs. NACB CONSULTANCY & FINANCE CO. LTD (2006) LPELR (7606) 1 at 21-22, TUGGA vs. DANHAUSA (2013) LPELR (21886) 1 at 23 and ALAO vs. ALABI (1997) 6 NWLR (PT 508) 351 at 357. In the absence of credible evidence that the Respondent admitted the allegations against her, the ipse dixit of the Appellant’s witness neither justifies nor exculpates the Appellant from the consequences of non-compliance with the stipulations of its Disciplinary Procedure & Code of Conduct that are designed to ensure that the twin pillars of natural justice are adhered to.

Without a doubt, the lower court properly evaluated the testimonial and documentary evidence when it reasoned and held as follows at pages 854-855 of Volume 2 of the Records:
“I find in this case that the Claimant, contrary to the provision of the Defendant’s Disciplinary Procedure and Code of Conduct was denied her right to fair hearing. The DWI attested as much to same when she stated on oath on 3/2/16 that-
‘Defendant’s Disciplinary Code of Conduct was not issued by the Defendant for fun; that written notice was not served on the Claimant to attend the Disciplinary Hearing; that in the instant allegation against the Claimant there was no need for query to be issued and served on her; that the claimant was nor [sic] served any notice containing the charges against her; that the disciplinary hearing started at about 5 pm ended at about 6.30 pm and that the letter of dismissal was issued same day at about 6.30 pm.’
Yet DW2 also attested to the fact that the person who complained against the Claimant was not present at the disciplinary hearing. Thus, the possibility of cross-examining the said complainant was not available. It is most unfortunate that the Defendant who voluntarily put in place a disciplinary procedure respecting its employees would be the one to flagrantly violate same. Perhaps the best an employer of the status of the Defendant could (do) is to respect the rights of its employees within the framework of its own documents and established procedure. Learned Counsel for the Defendant had argued that there was a substantial compliance by the Defendant with its disciplinary procedure and code of conduct. I honestly do not understand and find it really difficult to understand what the learned Counsel meant within the context of this case.

The fact remains that once there is an established procedure and in writing too, it is either there is a compliance with same or there is no compliance. If as in the instant case, there is evidence on oath of the witness of the Defendant of flagrant denial of the right to fair hearing how can the so called concept of substantial compliance be situated? I find and hold that the Defendant did not comply with its own Disciplinary Procedure and Code of Conduct Manual in summarily dismissing the Claimant. I therefore resolve issue in favour of the Claimant.”

The lower Court arrived at the correct decision when in granting the third relief claimed by the Respondent, it held as follows:
“The third relief sought is for a declaration that the dismissal of the Claimant’s employment by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant which is binding on the Defendant. This Court has found that the Defendant did not comply with its established procedure in summarily dismissing the Claimant. The disciplinary procedure and code of conduct forms part of the contract of service between the Claimant and the Defendant. It is binding on both parties. Therefore, having summarily dismissed the Claimant in contravention of its conditions of service, it is declared that the dismissal of the Claimant’s employment by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant which is binding on the Defendant.”

Having resolved the first limb of the issue as distilled by the Appellant and answering the same in the affirmative, we now segue to consider the quantum of damages awarded by the lower Court which the Appellant argues was wrong.
By all odds, the law has become ensconced that in employment relationships without statutory flavour, where there has been wrongful/unlawful termination or dismissal, the measure of damages is payment of what the employee would have earned over the period of notice. The Appellant has referred to some of the authorities in this regard. But as ensconced as the legal position may have become, has it become like the Rock of Gibraltar which cannot be moved? While the doctrine of stare decisis or binding judicial precedent enjoins the Courts to follow the decisions of superior Courts, it has to be remembered that what the earlier decisions establish is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand: FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at 650. It is in this wise that it becomes necessary to interrogate whether, in the light of the Third Alteration to the 1999 Constitution, wherein the National Industrial Court was fully structured into the Nigerian Judiciary as a superior Court of record and a new labour jurisprudence emanated; the principle established in the cases prior to the said Third Alteration on the measure or quantum of damages to be awarded in cases of wrongful/unlawful termination or dismissal still remains the regnant law in the diacritical circumstances, or whether indeed a new legal regime that demands a departure from the principle as it existed has been introduced in our corpus juris in employment and labour related litigations. Put differently, whether the principle on the quantum or measure of damages would have been the same, if the circumstances of the law at the time was such as introduced by the stipulations of Section 254C (1) (f) of the 1999 Constitution in the Third Alteration and Section 7 (6) of the National Industrial Court Act.
I have mulled over whether it would be more appropriate to state a case to the apex Court in this regard pursuant to Section 295 (3) of the 1999 Constitution as amended, so that the apex Court can authoritatively lay the matter to rest. But as I ruminate and cogitate over the issue, I wonder why I should shirk the responsibility. Why wait for the Justices of the apex Court to deal with the matter sometime in the future; why not this Court; why not this Justice; and why not now? See CHIEF LAND OFFICER vs. ALOR (1991) 4 NWLR (PT 187) 617 at 630. It seems to me appropriate that just as the lower Court has expressed its views and taken a stance, it is only fitting for this Court to take a stance, so that in the event of any further appeal, the apex Court will be seised of the views of this penultimate appellate Court on the issue.

Now, Section 254C (1) (f) of the 1999 Constitution as amended stipulates as follows:
“254C (1) Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-
(f) relating to or connected with unfair labour practice or international best practices in labour employment and industrial relation matters;”
Then Section 7 (6) of the National Industrial Act stipulates as follows:
“(6) The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.”
The above provisions enjoin the National Industrial Court in the exercise of its jurisdiction, to “have due regard to good or international best practices in labour or industrial relations”. The importance of this novel provision, in my deferential view, is that the National Industrial Court, in considering the measure or quantum of damages is to do so in accordance with “good or international best practices in labour or industrial relations”, which shall be a question of fact. It will be stating the obvious to say that prior to the Third Alteration, when employment and labour matters were handled by the High Courts, there was no obligation to apply and follow good or international best practices. It is an innovative provision which seems to be directed at enthroning an entirely new employment and labour jurisprudence. It will be disregarding this innovation if we continue to deal with the measure of damages in total disregard of the changes wrought to the law by legislation. The proper attitude of the Court when confronted with an innovation introduced by way of an amendment to an existing law or a new statute simpliciter (in this case, the Third Alteration to the 1999 Constitution and the National Industrial Court Act of 2006) was enunciated in the case of BANK OF ENGLAND vs. VAGLIANO BROTHERS (1891) A. C. 107 at 144-145 (per Lord Herschell) as follows:
“I think the proper course in the first instance is to examine the language of the statute and to ask what is the natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start by enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”
The above passage was quoted with approval by the Supreme Court in NDIC vs. OKEM ENTERPRISES (2004) 10 NWLR (PT 880) 107. Indeed, the note of caution sounded by this Court in NASARAWA STATE SPECIALIST HOSPITAL MANAGEMENT BOARD vs. MOHAMMED (2018) LPELR (44551) 1 at 20-21 on the imperative of treating or applying older case law authorities that pre-date the Third Alteration Act with extreme circumspection, bears re-echoing here.
Let me iterate that by the doctrine of stare decisis, this Court is bound by the decisions of the apex Court as well as the decisions of this Court. However, as I have demonstrated and stated above, the principle laid down in the said cases did not reckon with and take into consideration the obligation on the lower Court to now apply good or international best practices in adjudication. The hitherto existing principle, which merely form a starting point, entrenched the common law orthodoxy on the quantum or measure of damages in labour matters. I am aware of the position of this Court which has maintained the common law orthodoxy, one of such cases being the decision in OAK PENSIONS LTD vs. OLAYINKA (2017) LPELR (43207) 1 [a panel I was privileged to be part of]. In the lead judgment of Garba, JCA [now JSC] in the said case, which I concurred with, the two years’ salary awarded as damages was set aside. It has to be stated post-haste that no such relief was claimed at the lower Court in the said case, so it was ab initio wrong for the lower Court to have awarded a relief not claimed; unlike in this matter, where the Respondent had specifically claimed N10million general damages for unlawful dismissal and breach of contract, which the lower Court is empowered to award underSection 19 (d) of the National Industrial Court Act.

In the OAK PENSION case at pages 45-46, my Lord, Garba, JCA (now JSC) set out the reasoning that informed the decision of the Court in the following words:
“It should be noted that the primary duty of a Court of law is to do justice, at least substantial, in all matters and causes that come before them, for adjudication by a dispassionate appraisal of peculiar facts, evaluation of the material evidence and application of the relevant laws and rules of equity. In the determination of the justice of a case and the entitlement of the parties in equity, the facts and material evidence… placed before a Court, are sine qua non. The decision to make any order in a case, whether sought for or not by any of the parties, must be predicated on such facts and evidence, taking the rights, obligations and interests of both parties into account or consideration. That was not done by the trial Court before and in the award of compensation to the Respondent.
In the above premises of the law, the award of two (2) years’ salary as compensation for the termination of the Respondent’s employment cannot be supported and/or justified by the peculiar facts, circumstances and evidence placed before the trial Court and so wrong in law. It was a relief not claimed by the Respondent, it was not a consequential relief to give effect to the decision by the trial Court that the Respondent’s master-servant employment was wrongfully but effectively terminated by the 1st Appellant… but a distinct and substantive relief which was gratuitously awarded the Respondent to which he was/is not entitled to, in law.”
(Emphasis supplied)
In considering and applying international best practices as a question of fact, it is the facts of the given matter that would form the base from which to consider how the law has been applied in line with international best practices in other jurisdictions. In the circumstances of this matter, where the dismissal of the Respondent was predicated on allegations bordering on dishonesty and bribery, which no doubt carries a stigma, it is what will form the base in considering the measure of damages to award in tune with international best practices. In this wise, there is the progressive decision of this Court in BRITISH AIRWAYS vs. MAKANJUOLA (1993) 8 NWLR (PT 311) 276 at 288 (per Ubaezonu, JCA), delivered way back in 1993, which affirmed the award of two years’ salary as damages by the trial Court. In the said case, it was held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice (and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice).
It has to be remembered that the National Industrial Court is a specialized Court exclusively established primarily for labour and employment-related matters. In that regard, except where patently and manifestly wrong, there has to be some deference to the decisions of that Court in that area of the core competence and specialisation of the Court. This has been recognized internationally. For instance, the Appellate Courts in England have stated that employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing. Such employment tribunals are to be ‘realistic and worldly wise’, and ‘sensible and robust…in order to prevent form from undermining substance’. See UBER B.V. (UBV) vs. YASEEN ASLAM (2018) EWCA CIV 2748 (19th December 2018) at Paragraphs 48 and 49 and AUTOCLENZ LTD vs. BELCHER (2011) UKSC 41 or (2011) ICR 1157.
Furthermore, the views expressed by Arturo Bronstein in the legal work International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pages 1-2 bears redacting. He stated:
“…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the” International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.”
Decent work and protection of the worker would necessarily connote that in circumstances where the employee is unlawfully dismissed, it should attract substantial damages, where claimed, in line with international best practices and not based on the hitherto existing principles that pre-date the advent of the innovative provisions of the Third Alteration to the 1999 Constitution. International best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom the subject of consideration since it is the action of the employer which has been found to be wrongful/unlawful that has been brought to light for the necessary salve to be afforded the employee.
Section 254C (1) (f) and (h) and (2) of the 1999 Constitution empowers the lower Court to apply international best practices in labour, and conventions, treaties, recommendations and protocols ratified by Nigeria. The High Courts were not so empowered in exercise of jurisdiction in labour matters which culminated in the principle of the superior Courts on the measure of damages.
I am mindful of the fact that it may appear that international best practices, like public policy, may be an unruly horse and might be difficult to apply. Alluding to a similar situation as it relates to public policy in ENDERBY TOWN FC vs. FOOTBALL ASSOCIATION (1971) 1 CH 591 at 606-6077, Lord Denning, MR asseverated that public policy is an unruly horse. So obstreperous is the horse that no judge should ever try to mount it lest it runs away with him. I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice.
Now, on my part, I ask if a judge is such a good man (jockey)? I would think so. If the Judge of the lower Court, that specialized Court in employment and labour related matters, be that intrepid man of great learning, then the application of international best practices would not be difficult, abstruse or arcane in its application and would always end up on the side of justice. Therefore, the innovative provisions necessarily demand a rethink of the principle in the light of changed circumstances in law. Accordingly, I will be deferential to the general damages awarded by the lower Court in exercise of its jurisdiction to apply international best practices.

The lower Court in exercise of discretion on the quantum of general damages to award for the unlawful dismissal awarded the equivalent of two years’ salary in line with international best practices. The issue of award of general damages in any given case is a matter based on the discretion of the trial Court. See YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 at 47, ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (2001) LPELR (2951) 1 at 11-12, HAMZA vs. KURE (2010) LPELR (1351) 1 at 28-29 and OKOKO vs. DAKOLO (2006) LPELR (2461) 1 at 39.
In DIAMOND BANK PLC vs. WELLCARE ALLIANCE LTD (2015) LPELR (40762) at 27-28, this Court, per Abba Aji, JCA (now JSC) stated:
“The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.”
See also KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (2020) LPELR (49538) 1 at 13-14.
I iterate that the assessment of the quantum of general damages is at the discretion of the Judge at nisi prius. Judicial discretion is a vital tool in the administration of justice. Judicial discretion is a sacred power which inures to a Judge. It is an armour which the judge employs judicially and judiciously in order to arrive at a just decision. In matters of judicial discretion, since the facts of two cases are not always the same, Courts do not make it a practice to lay down rules and principles that would fetter the exercise of its discretion or the discretion of the lower Courts. In matters of discretion, no one case is an authority for the other. Also, the fact that the appellate Court would have exercised its discretion differently from that of the lower Court is not sufficient reason to interfere with the exercise of discretion by the trial Court. A Court cannot be bound by a previous decision to exercise its discretion in a regimented way because that would be putting an end to discretion. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. No hard and fast rules can be laid down as to the exercise of judicial discretion by a Court, for the moment that is done, the discretion is fettered. See ANYAH vs. AFRICAN NEWSPAPERS (NIG) LTD (1992) LPELR (511) 1 at 20-21, AJUWA vs. SPDC (2011) 12 SCNJ 596, ADISA vs. OYINWOLA (2000) 10 NWLR (PT 746) 116, NWADIOGBU vs. ANAMBA IMO RIVER BASIN DEVT AUTHORITY (2010) 12 SCNJ 212, NNPC vs. CLIFCO NIG LTD (2011) 4 SCNJ 107 at 127-128 and VANDIGHI vs. HALE (2014) LPELR (24196) 1 at 52-53.
Howbeit, the fact that the quantum of general damages is at the discretion of the Court does not mean that there are no circumstances when an appellate Court would interfere with the award of damages. An appellate Court will interfere with the award of general damages by a trial Court in situations which include:
a) Where the Court acted under wrong principles of law;
b) Where the Court acted in disregard of applicable principles of law;
c) Where the Court acted in misapprehension of facts;
d) Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award;
e) Where injustice will result if the appellate Court does not act;
f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.
See ACB LTD vs. APUGO (2001) 5 NWLR (PT 707) 653, UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558, B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62, SPDC LTD vs. TIEBO (2005) LPELR (3203) 1 at 25, ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 15 and KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (supra) at 15-17.
The award of general damages by the lower Court ticks all the correct legal and judicial boxes. There is no reason for an appellate Court to interfere. I therefore uphold the award by the lower Court of the equivalent of two years’ salary as general damages for the unlawful dismissal of the Respondent vide BRITISH AIRWAYS vs. MAKANJUOLA (supra). This issue number one is accordingly resolved against the Appellant.

ISSUE NUMBER TWO
Whether the Appellant did not get a fair trial and consequently suffered a miscarriage of justice.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the trial at the lower Court was not fair as a result of which it suffered a miscarriage of justice. The basic attributes of fair hearing as set out in OVUNWO vs. WOKO (2011) 17 NWLR (PT 1277) 522 was referred to and it was opined that the failure by the lower Court to consider the Appellant’s Reply on Points of Law was a breach of the Appellant’s right to fair hearing and that it occasioned a gross miscarriage of justice and ought to be set aside. The cases of TANKO vs. UBA (2010) 17 NWLR (PT 1222) 80 at 93-94, ONWE vs. OKE (2001) 3 NWLR (PT 700) 406 and UNTHMB vs. NNOLI (supra) were relied upon.

The Appellant further contended that the failure by the lower Court to pronounce on the issue of whether the Respondent had waived her right to insist on strict adherence to the provisions of the Appellant’s disciplinary procedure and also the failure by the lower Court to pronounce on whether the Respondent can validly institute the suit without first complying with the appeals procedure set out in the Appellant’s Disciplinary Procedure & Code of Conduct Manual infringed the Appellant’s right to fair hearing. It was further stated that the failure to pronounce on the issue of mitigation of loss in response to the claim for arrears of salaries and general damages was an infringement of the Appellant’s right to fair hearing since a consideration of the same would have affected the decision of the Court on damages awarded. It was asserted that the failure of the lower Court to consider all the issues raised as enjoined by law occasioned a miscarriage of justice. The cases ofMARINE MANAGEMENT ASSOCIATES LTD vs. NMA (2013) 3 NWLR (PT 1333) 506 at 532, W.R.& P.C. LTD vs. ONWO (1999) 12 NWLR (PT 630) 312, CROWN FLOUR MILLS LTD vs. OLOKUN (2008) 4 NWLR (PT 1077) 254 at 288-289, AREGBESOLA vs. OYINLOLA (2009) 14 NWLR (PT 1162) 429 at 479 and GBADAMOSI vs. DAIRO (2007) 3 NWLR (PT 1021) 282 at 306 were called in aid.

It is the further contention of the Appellant that the failure of the lower Court to consider and accord probative value to the uncontroverted evidence that the Respondent admitted the charges against her, and also the issues raised suo motu by the lower Court and resolving the same against the Appellant and awarded reliefs not claimed by the Respondent; without affording the Appellant the opportunity to be heard on the issues was a breach of the Appellant’s right to fair hearing. The cases of CHUKWU vs. DIALA (1999) 6 NWLR (PT 608) 674, OYEKANMI vs. NEPA (2000) 15 NWLR (PT 690) 414 at 439, FCDA vs. NAIBI (1990) 3 NWLR (PT 138) 270 at 283, MTN (NIG) COMM. LTD vs. C.C. INV. LTD (2015) 7 NWLR (PT 1459) 437 among other cases were cited in support.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the test of determining fair hearing is an objective test and that what constitutes fair hearing depends on the circumstances of each case. It was asserted that the Appellant had ample opportunity to present its case and if it spurned the opportunity, it cannot complain about denial of fair hearing vide UKWUYOK vs. OGBULU (2010) 5 NWLR (PT 1187) 316. It was stated that the lower Court duly considered the Appellantâs Reply on Points of Law and held that it was a re-argument of issues already canvassed in the final written address.

It was further submitted that the Appellantâs Disciplinary Procedure & Code of Conduct does not make it mandatory for an appeal to be lodged before recourse to litigation since the word employed in the stipulation is MAY which is discretionary and not mandatory. The case of SINO AFRIC AGRICULTURE CO LTD vs. MINISTRY OF FINANCE INC. (2013) LPELR-22370 (CA) was referred to. It was stated that under the Disciplinary Procedure & Code of Conduct, the Appellant had a mandatory duty to advise the employee of the right to appeal, but the Appellant having failed to discharge its duty in this regard cannot impute any liability whatsoever to the Respondent.

On the issue of mitigation of losses, the Respondent contends that the documents which the Appellant sought to rely on in this regard were rejected in evidence and other documents tendered were dumped on the Court without their being activated by oral evidence vide ACN vs. NYAKO (2015) 18 NWLR (PT 1491) 352. It was finally opined that the Appellant did not discharge the onus of establishing the breach of its right to fair hearing. The case of OKIKE vs. LPDC (2006) 1 NWLR (PT 960) 67 was called in aid.

RESOLUTION OF ISSUE NUMBER TWO
The Appellant’s contention under this issue is one of infringement of its right to fair hearing on the basis of which it contends that a miscarriage of justice was occasioned. The snippets on which the Appellant anchors the alleged infringement of its right to fair hearing include that the lower Court failed to consider the submissions made in the Reply on Points of Law and completely discountenanced the same. Furthermore, that the lower Court did not consider the submission that the Respondent had waived strict compliance with the stipulation of the Disciplinary Procedure & Code of Conduct; the submission on the effect of the Respondent not having exhausted the internal procedure in the Disciplinary Procedure & Code of Conduct before resorting to litigation; the failure of the lower Court to pronounce on the issue of mitigation of loss raised with respect to the damages claimed; the failure to accord probative value to the evidence that the Respondent admitted the charges against her and finally that the lower Court raised issues suo motu and resolved the same against the Appellant without giving the Appellant a hearing.

With regard to the Appellant’s contention that the lower Court failed to consider the Reply on Points of Law, this is what the lower Court stated in respect of the said Reply on Points of Law at page 852 of Volume 2 of the Records:
“In reaction to the Claimant’s final written address, the Defendant filed a 25-page reply on points of law dated and filed on 6/5/16. The issues canvassed in same are as follows: whether the summary dismissal by the Defendant of Claimant’s employment vide Defendant’s letter of 10/4/14 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; (2) whether the dismissal of the Claimant by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant Company; (3) The Honourable Court lacks jurisdiction to declare the dismissal of an employee a nullity and (4) The Claimant is not entitled to special damages. Reply on points of law is not meant to be an opportunity to reargue a case by a party. It is specifically meant to address fresh issues of points of law raised by the other side. It is never designed to be an opportunity to take a second bite at the cherry. I note that the four issues which form the gravamen of the said reply on points of law of the Defendant are nothing short of rearguing issues already canvassed in the final written address of the Defendant. Having read same, I find no utility in including same or any part of it in this Judgment. I thus discountenance it.”

So the finding of the lower Court is that the Reply on Points of Law is a re-argument of the issues already canvassed in the Appellant’s final written address. It is instructive that the Appellant did not appeal against this finding. The implication is that the finding not having been appealed against stands admitted and undisputed. It remains valid and binding on all the parties. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47 and DABO vs. ABDULLAHI (2005) LPELR (903) 1 at 24. It consequently follows that since the finding of the lower Court that the Reply on Points of Law does not come within the ambit of the law remains valid and binding, not having been appealed against, the decision of the lower Court cannot be impeached on the ground that the lower Court failed to consider the submissions in the Reply on Points of Law. It would have to first take a successful appeal against the said finding before the Appellant can be heard to contend that the lower Court was wrong to have discountenanced the said Reply on Points of Law. The Appellant not having appealed against the finding must live with it.

As it relates to the contention that the lower Court failed to consider some of the issues raised by the Appellant, on account of which the Appellant’s right to fair hearing was breached and a miscarriage of justice occasioned, let me state that as a general rule, all Courts, except the apex Court are duty bound to consider all issues raised before it. But a close examination of the authorities on the point disclose that it is not in all instances where a Court fails to consider all issues raised before it that it would willy-nilly result in the decision reached being set aside. In BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) LPELR (802) 1 at 13, Uwaifo, JSC stated as follows:
“It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal… Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.”
(Emphasis supplied)
See also SIFAX (NIG) LTD vs. MIGFO (NIG) LTD (2018) LPELR (49735) 1 at 56-57 and C.N. OKPALA & SONS LTD vs. NB PLC (2017) LPELR (43826) 1 at 17.
Equally, in ORIANWO vs. OKENE (2002) 14 NWLR (PT 786) 156 at 182-183, Ogundare, JSC stated: “If the issue was VITAL to the resolution of the dispute between the parties, they would be expected to either order a retrial or resolve the issue themselves upon the evidence available if the question of credibility of witnesses would not arise.”
See also OVUNWO vs. WOKO (2011) LPELR (2841) 1 at 19, ONIFADE vs. OLAYIWOLA (1990) LPELR (2680) 1 at 25 and OGUNDARE vs. ALAO (2013) LPELR (21845) 1 at 39-42.
The above dicta from the Apex Court sets out several nuggets that are meant to act as the lodestar on the attitude of an Appellate Court where a Court does not consider all the issues raised before it. These nuggets include whether the issue was properly raised, whether the issue is vital, crucial and substantial. In simple terms, it would appear that failure to consider and pronounce on all issues before the Court will not, per se, constitute a denial of fair hearing unless such omission occasioned a miscarriage of justice: BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270. Kalgo, JSC expressed the position in the following words in OSASONA vs. AJAYI (2004) LPELR (2790) 1 at 20:
“It is trite law that a Court or tribunal should consider all issues for determination brought before it but failure to consider and pronounce on all issues submitted to the Court or tribunal may not necessarily amount to a miscarriage of justice or denial of fair hearing.”
See also UBN vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127.
It seems that in order to conclude that there was a denial of fair hearing with the consequent miscarriage of justice, the issues which the Appellant contends that the lower Court did not pronounce upon ought to have been properly before the Court, vital, crucial, substantial and of such a nature that it cannot be resolved on appeal upon the available evidence, in so far as it would not involve the credibility of witness.
Now, the first issue which the Appellant argues that the lower Court did not pronounce upon is the question of whether the Respondent had waived strict compliance with the stipulations of Appellant’s Disciplinary Procedure & Code of Conduct. It is pertinent to state that at the core of the disputation in the action, based on the relief granted by the lower Court, is whether the dismissal of the Respondent was a flagrant breach of the conditions of service and Appellant’s code of conduct. So the material issue which would resolve the dispute was whether there was a breach vel non of the Disciplinary Procedure & Code of Conduct. The specific issue of waiver of insistence on strict adherence is subsumed under the said material issue, such that the resolution of the said material issue resolves the controversy. In the circumstances, the failure to resolve the specific issue of waiver, even though wrong, will not lead to the setting aside of the decision of the lower Court, since the said specific issue is subsumed in the decision on the Disciplinary Procedure & Code of Conduct having been breached. See OGUNDARE vs. ALAO (supra).
The Appellant further argued that the lower Court did not pronounce on the issue of mitigation of loss raised in considering the damages to be awarded in favour of the Respondent. Let me iterate that the issue not pronounced upon and on the basis of which it can be held that there has been a breach of fair hearing and miscarriage of justice is an issue which is crucial, substantial, vital and properly before the Court. The Appellant’s case is that the Respondent in mitigation of loss had been appointed the Director of another company. The documents the Appellant sought to tender in evidence to establish this fact were rejected in evidence. So, in the absence of evidence to prove the fact, it was no longer a crucial, substantial and vital issue that was properly before the lower Court. I do not lose sight of the fact that the Appellant later subpoenaed an official from Corporate Affairs Commission to produce documents in respect of 3LCINOVATE Energy Limited (See subpoena at page 588 of Volume 2 of the Records). The subpoena was a subpoena duces tecum, so the document was merely produced and admitted in evidence without more. The proceedings in respect of the said subpoenaed official at page 839 of Volume 2 of the Records reads:
“EVIDENCE ON SUBPOENA.
I am here to produce the following Documents (1) CTC of S 3L Cinovate Energy Ltd. RC No. 1206412.
Court.
I mark same as KA1 (1 & 2).”
Having been so admitted and marked, the Appellant did nothing more to demonstrate the documents and connect them to its case by any evidence whatsoever. It definitely was not for the Court to do cloistered justice by considering the documents produced and dumped on the Court in the confines of its Chambers in order to connect, tie or link them to the Appellant’s case. See MAKU vs. AL-MAKURA (2016) LPELR (48123) 1 at 9-11, PDP vs. IDRISSU (2019) LPELR (49213) 1 at 15-16 and ADIKE vs. OBIARERI (2002) 4 NWLR (PT 758) 537 at 572. In the circumstances, I reiterate and make bold to hold that the issue of mitigation of loss in the absence of evidence was neither vital, crucial or substantial in the scheme of the issue before the lower Court, and desirable though it would have been for the lower Court to pronounce upon the same, the failure so to do is not fatal.
The Appellant further contended that the lower Court failed to consider and pronounce upon the uncontradicted evidence that the Respondent admitted the charges against her. In the course of consideration of issue number one, I made the point that the proceedings before the disciplinary hearing which by the Disciplinary Procedure & Code of Conduct is to be in writing and tape-recorded, was not admitted in evidence. So there was no admissible credible evidence within the meaning of Section 128 of the Evidence Act that the Respondent admitted the charges against her. The viva voce evidence of the Appellant’s witness is not admissible to prove what transpired at the proceedings of the official disciplinary hearing which was in writing. Once again, the issue in the circumstances cannot be vital, substantial and crucial on account of want of any credible evidence that can be accorded probative value.
On the question of whether the Respondent should have exhausted the internal remedies stated in the Disciplinary Procedure & Code of Conduct Manual before resorting to litigation, it would suffice to refer to the provision which the Appellant relies on. I have already set it out in this judgment. The provision stipulates that an employee who regards any disciplinary action taken against him as unjustified MAY appeal against the finding and deliver it to the Human Resources Department. The stipulation does not foreclose litigation, neither does it make resort to litigation conditional upon the determination of such an appeal submitted to the Human Resources Department. As a matter of fact, the word employed in the stipulation is the permissive or directory word MAY signifying that it is discretionary and need not be followed vide EDEWOR vs. UWEGBA (1987) LPELR (1009) 1 at 45-46, BAKARE vs. A-G FED (1990) LPELR (707) 1 at 47-48 and UNILORIN vs. OLUWADARE (2006) LPELR (3417) 1 at 24-25. In the diacritical circumstances, the said issue of whether the Respondent should have exhausted the internal remedies in the Disciplinary Procedure & Code of Conduct is neither vital, crucial nor substantial, such that any failure by the lower Court to specifically pronounce on the same is not fatal.

In order to come full circle on this issue, it remains to consider the Appellant’s submission that the lower Court raised issues suo motu and resolved the same against the Appellant without affording the Appellant a hearing on the said issue opined to have been raised suo motu. The issue which the Appellant contends was raised suo motu is whether the summary dismissal of the Respondent was unlawful or merely wrongful and the reliance by the lower Court on Sections 7(6), 13, 14 and 15 of the National Industrial Court Act, as well as Section 254C (1) (f) of the 1999 Constitution as amended in awarding general damages in favour of the Respondent.
Undoubtedly, it is rudimentary law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the parties, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12. Let me festinate and state that the need to hear parties on an issue raised suo motu is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. See OMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332, ALIMS LTD vs. UBA (2013) 1 MJSC (PT 1) 156 at 170 and OLUTOLA vs. UNIVERSITY OF ILORIN (2005) ALL FWLR (PT 245) 1154. The issue which the Appellant complains that the lower Court raised is not an issue of jurisdiction, so if indeed the lower Court raised the issue suo motu, it was enjoined by law to give the parties a hearing on the said issue raised suo motu. But did the lower Court raise any issue suo motu?
Now, it has to be remembered that the parties were at issue on the quantum or measure of damages, it therefore behoved the lower Court to determine the said issue. See 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 (2047) 1 at 17.
I have insightfully considered the reasoning of the lower Court which informed its decision to award the equivalent of two years’ salary as damages in favour of the Respondent (see pages 857-860 of Volume 2 of the Records); and I am not in any doubt whatsoever that the lower Court did not raise any issue suo motu, but only applied the law in determining the issue in contest between the parties. InENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25 Tobi, JSC stated:
“A judge has the right in our adjectival law to use particular words or phrases, which in his opinion, are germane to his evaluation of facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu.” Furthermore, in OTU vs. ANI (2013) LPELR (21405) 1 at 31-34, Garba, JCA [now JSC] opined:
“…it is clear that so long as the issue is derivable from the facts and evidence of the parties before the Court, the Court cannot be said to have raised it suo motu for reason only that it used particular words or phrases not used by the parties to describe the issue.”
See also TOWOJU vs. GOV OF KWARA STATE (2005) LPELR (5390) 1 at 38-39, CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24, TSEGBA vs. REGD TRUSTEES OF MISSION HOUSE (2018) LPELR (44242) 1 at 51-52, FCMB vs. ACTION ALLIANCE (2018) LPELR (44445) 1 at 10-11 and FINNIH vs. IMADE (1992) 1 NWLR (PT 219) 511 at 537.
The reference by the lower Court to various sections of the National Industrial Court Act and the Constitution was not raising an issue suo motu, but applying the law in justification of its award of general damages. It is hornbook law that a Court has a duty to apply the law to the facts before it: OLUTOLA vs. UNIVERSITY OF ILORIN (2004) LPELR (2632) 1 at 11.
On the vexed issue of the polemics of the dialectics of wrongful/unlawful termination or dismissal, let me restate that the duty of the Court is to adjudicate between the parties on the basis of the reliefs claimed. The relief claimed by the Respondent was general damages for unlawful dismissal and breach of contract. The lower Court in adjudicating and awarding general damages did not raise any issue suo motu. In splice this issue number two is resolved in favour of the Respondent.

In a summation, the issues for determination have been resolved against the Appellant. The appeal being devoid of merit is hereby dismissed. The judgment of the lower Court, Coram Judie: Peters, J., delivered on 14th July 2016 is hereby affirmed. There shall be costs of N300, 000.00 in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read the draft of the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA wherein his lordship dismissed the appeal for it lacks merit.

I agree entirely with the reasoning and conclusion reached in the appeal that it is devoid of any merit. I have nothing more to add, I too dismiss the appeal.

I abide by the consequential order made as to cost. The appeal is dismissed.

Appearances:

Inam Wilson, Esq. For Appellant(s)

Roland Otaru, Esq., SAN with him Dr. Comfort Roland-Otaru For Respondent(s)