SELCON TANNERY LIMITED v. MR. BALA ABUBAKAR & ORS
(2013)LCN/6302(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2013
CA/K/176/2010
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
SELCON TANNERY LIMITED Appellant(s)
AND
1. MR. BALA ABUBAKAR
2. MR. DAMEDU AMEDU
3. MR. ISMAILA MAIYAKI Respondent(s)
RATIO
THE RIGHT OF AN EMPLOYER TO HIRE AND FIRE EMPLOYEES
By law, of a company or employer has reason(s) to relieve its servant of his appointment, the law allows it the right to do so, as the same is in-grained in every employment – that the employers has the power to hire and to fire (the same with the employee to walk out of the employment), provided the party exercising the power, respects the agreement, on the parting benefits. See the case of KWARA STATE POLY V. SALIU (202) 41 WRN 26; OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 775L OLORUNTOBA OJU V. ABDULRAHEEM (2009) WRN 1; OLANIYAN V. UNIVERSITY OF LAGOS (2004) 15 WRN 44.
See also the case of OBOT V. CBN (1983) NWLR (Pt. 310) 140, where the Supreme Court said;
“In the case of NIGERIAN MARKETING BOARD v. AD ADEWUMNI (1972) 11 SC 111 AT 117…this Court held as follows (per FATAI – WILLIAMS JSC as he then was);
“In a claim for wrongful dismissal, the measurement of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract (See Beckham VS. DRAKE (1849) 2 HCC 579 at 607 – 608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.” Per UWAIS JSC, as he then was. (Who also relied on the English case of DENMARK PRODUCTION LTD V. BOSCOBEL PRODUCTIONS LTD (1968) 1 ALL ER. 513 AT 524, where it was had that:” As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course instigate those damages as far as he reasonably can.” PER MBABA, J.C.A.
WHETHER OR NOT IT IS EVERY ERROR IN A JUDGEMENT OF A LOWER COURT THAT WILL NECCESSITATE THE JDUGEMENT BEING UPTURNED THE APPEAL
It is settled law that it is not every slip or error in the judgment of the lower Court that will necessitate the judgment being upturned on appeal. For such error to have that effect it must be substantial and must have occasioned a miscarriage of justice. In other words, the error must be such as influenced the judgment in a manner that led to a wrong decision causing the appellant to suffer injustice or has affected the decision appealed against in a way tantamount to substantial misdirection or error in law – Mohammed Mustapha Ali Company Ltd V. Goni (2006) 10 NWLR (pt 987) 88, Nigeria Bottling Company Plc V. Olanrewaju (2007) 5 NWLR (pt 1027) 255, AG Leventis (Nig) Plc V. Akpu (2007) 17 NWLR (pt 1063) 416, Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 8 NWLR (Pt 1066) 319. PER ABIRU, J.C.A.
ITA G. MBABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Aisha R.D. Muhammad J, of High Court of Kano State in suit No. K/246/2006, delivered on 23/07/2009. In their writ of summons the Respondents claimed against the Appellant some reliefs. And by the statement of claim dated 26th day of September 2006, the Respondents made the following claims against the appellant:
“(a) Salaries of the plaintiffs monthly salaries from and including the month of November 2005, till date at the rate of:
1. For the 1st plaintiff N26, 700.00 per month.
2. For the 2nd plaintiff N15, 700.00 per month.
3. For the 3rd plaintiff 9, 500.00 per month.
(b) Annual leave allowance for the year ending 2005 and any other subsequent year until the final determination of this case calculated at 4 weeks full paid:
1. For the 1st plaintiff N26, 700.00 per year.
2. For the 2nd plaintiff N15, 700.00 per year.
3. For the 3rd plaintiff N9, 500.00 per year.
(c) Bonus for the end of year 2005 and subsequent years until the final determination of this case…..
…….
(d) General damage in the sum of N500, 000.00 respectively for damages, injuries suffered by the plaintiff for want of payment of their salaries.
(e) Other benefits, allowances, promotion due to the plaintiffs respectively from the defendant.
(f) Cost of the action.”
Pleadings were ordered and the case went to trial. The plaintiffs/Respondents gave evidence for themselves and were cross-examined, tendered exhibits and subsequently closed their case, while the defendant/appellant called 4 witnesses and tendered one Exhibit in support of its claim and thereafter closed its case.
The learned trial judge, after hearing the evidence of both parties and also considering the exhibits before the Court, entered judgment in favour of the plaintiffs/Respondents and against the defendant/appellant. The Defendant/ Appellant, hereinafter, simply called the Appellant, being dissatisfied with the judgment of the learned trial judge, filed this appeal, via a Notice of Appeal, dated 6/8/2009, disclosing five grounds of appeal.
The Appellant’s grounds of appeal as recorded on pages 409 to 411 of the Records of Appeal were:
“GROUNDS OF APPEAL
GROUND ONE:
The learned trial judge erred in law when he held as follows:
“All the case cited by the defendant are inapplicable to this case because they referred to case where the plaintiffs were wrongly terminated while the plaintiffs in this case were not terminated by the Defendants. I therefore, discountenance all the arguments in respect of these cases,”
PARTICULARS OF ERRORS:
I. This suit as well as the cases referred to borders on contract of employment.
II. There was a clear finding that there was ‘constructive dismissal’ which is the basis of all the cases referred.
III. The cases are applicable.
IV. The failure of the Court to appreciate the fundamental principles set out in the cases cited was fatal to the suit and led to a miscarriage of justice.
GROUND TWO:
The learned Trial judge misdirected himself when he held that: –
I. “That the defendants shall pay to the plaintiffs all their salaries and allowances from November 2005 to the date of this judgment as per their statement of claims”.
II. 10% Court interest until when the judgment sum is fully liquidated.
III. Damages in the sum of N100, 000.00 each for causing the plaintiffs untold hardship by the non payment of their salaries and allowances.
IV. ‘Costs of prosecuting the case’ which same was assessed at N20, 000.00.
PARTICULARS OF ERRORS:
a. The judgment is not specific on the salaries, allowances and bonuses payable to the plaintiffs.
b. The plaintiffs are not entitled to the salaries, bonuses and allowances as they have not rendered services to the Appellant from 2005 to date.
c. There is no room for damages in a contract of employment except where it is clearly and specifically pleaded, proved or shown in the course of the trial of the suit.
d. The judgment is against the weight of the evidence before of the Court.
GROUND THREE:
The learned Trial judge misdirected himself when he held that:
“The point here is that Exhibit D clearly harassed all the affected employees to resign their appointment or proceed on an indefinite leave without pay.”
PARTICULARS OF ERRORS:
I. Harassment is issue of fact which was neither pleaded by the plaintiffs not proved by evidenced adduced at the trial.
II. The learned trial judge discountenanced Exhibit D instead of properly evaluating the evidence contained therein.
III. The learned trial judge failed to consider Exhibits D which challenged the evidence of plaintiffs.
IV. The issue of harassment to the plaintiffs was raised suo moto by the learned Trial judge without giving opportunity to the parties to address the Court before arriving at its judgment which led to a miscarriage of justice.
V. It is common knowledge and it is within the power of the Appellant to declare redundancy in its company and to ask the employees to proceed on leave with or without pay.
GROUND FOUR:
The learned trial judge erred in law when he granted the reliefs of the Respondents by ordering the Appellant to pay salaries and emoluments of the Respondents from 2005 up to the date of the delivery of the judgment.
PARTICULARS OF ERROR:
a. The Respondents left the services of the Appellant prior to the commencement of the suit against the Appellant.
b. It is against the spirit of contract of employment for an employee to be paid for work not done.
c. The Respondents have not rendered any service to the Appellant to be entitled for payment of salaries for the period the Appellants have not worked.
GROUND FIVE:
The decision is against the weight of evidence adduced in the proceedings.”
Appellant distilled three (3) issues from the five grounds as follows:
ISSUE: 1. Having regard to the master and servant relationship, whether the Respondents were able to prove their case against the Appellant to be entitled to judgment. (Distilled from ground one).
ISSUE: 2. In the light of the evidence adduced before the Lower Court, whether the Lower Court can order the Appellant to pay to the Respondents’ salaries, allowances, bonuses and damages when the Respondents did not render any service to the Appellant. (Distilled from ground two and four).
ISSUE: 3. Whether the learned trial judge was right to raise the issues of harassment and constructive dismissal suo moto and give judgment in respect thereof relying on the issue, without allowing the Appellant or the Respondent to address the Court on the issues raised by the Lower Court. (Distilled from ground three).
A brief facts of the case at the Lower Court shows that the Respondents were employees of the Appellant, serving the Appellant in various capacities, some dating back to 1993 (e.g. the 2nd Respondent). The Appellant later had some difficulties, which made it to seek to rationalize its staff strength. It published Exhibit D1, among other documents, on its notice Board which carried the following information:
“MEMORANDUM
7th Nov. 2005
To: ALL AFFECTED STAFF
FROM: MANAGEMENT
SUBJECT: REDUNDANCY
Management regrets to inform you that, this organization can no longer afford to continue paying salaries and allowances to it’s redundant staff.
You may recall, you and your other colleagues have been enjoying the generosity of this organization for keeping you in it’s employ in the last seven years without any corresponding productivity but idleness and absenteeism. It is in this regard that, management decided to send you on an indefinite leave without pay with immediate effect, and this leave will not attract any accrued financial benefits if the organization decides to recall it’s former employees.
However if you wish to voluntarily resign your appointment with us.
Please do not hesitate to do so as your benefits will be paid to you.
Thank you for your understanding.
SELCON TANNERY LTD
Signed:
Management.”
The Respondents names were not on the Notice (Exhibit D1) and it was not served on any of them.
Because, the Respondents did not resign their appointments, as suggested by the 3rd paragraph of Exhibit D1, Appellants failed to pay the Respondents’ salaries/allowances and yet would not, formally, terminate their appointments! Their appeal to the leadership of the Appellant on the complaint was ignored and the Respondents’ appeal to the Director of Special Services, Kano State, and the advice of the latter on the matter to the Appellant was rebuffed. Of course, the trial Court held for Respondents.
Arguing issue 1, Appellant rather harped on the alleged non compliance of the Respondents with the conditions precedent to taking Court action; that the terms and condition of service of the Appellant made provision for Respondents to exhaust internal mechanism before resorting to commencement of Court action; that the Respondents did not exhaust the said internal remedy. Appellant relied on item 27 paragraphs 9 of Exhibit C (Condition of service) which says:
“Any employee who has any cause to complain, he/she should direct such to the Administrative Manager or to the authorized individual through his/her immediate Supervisor or Manager. But in the event that the complain (sic) is against his/her immediate Supervisor or Manager, the complain (sic) could be forwarded directly to the Chief Executive.”
Appellant also relied on decided authorities on the need to exhaust internal remedies SHELL PETROLEUM DEVELOPMENT COMPANY V. LAWSON JACK (1998) 4 NWLR (Pt. 545) 249; VODOKANAL PROJECT (NIG.) LTD. V. MR. RICK OLADELE & 2 ORS (2004) ALL FWLR (Pt. 239); IDONIBOYE – OBU VS. NNPC (2003) 2 NWLR (Pt. 805) 589.
On that, the Respondents replied that it was in evidence and admitted by the parties, that 1st Respondent was affected personally, the 3 Respondents made their complaint known to the Managing Director and when the Managing Director, refused to attend to them, they made a written direct complaint to the Chairmen, who is the Chief Executive of the, Appellant; that in surplusage, the Respondents contacted the Directorate of special services of Kano State to intervene and they did and advised the Appellant to pay the Respondents or terminate their appointments formally.
Of Course, the position of the Respondents had been affirmed by the findings of the trial Court on page 366 of the Records of Appeal. Appellant never appealed against that findings of the Court, that the Respondents had written to the Managing Director and Chairman of Appellant, to complain, before involving the Directorate of Special Services of Kano State and before taking the Court action.
It must also be observed that Appellant never made the alleged non-compliance with item 27 paragraph 9 of Exhibit C an issue in the case, as same was not pleaded and the judgment did not contemplate it. Even the grounds of appeal and the Issues distilled there – from never raised the alleged non-compliance with condition precedent to taking action! Thus, the argument of the Appellant on the issue is a stranger to the grounds of appeal and the issue distilled there from.
By law, arguments, on appeal, must be founded on the issue(s) formulated, which in turn must flow from the ground(s) of appeal, which must be founded on the judgment appealed against. See the case of BONGO V. GOVERNOR ADAMAWA STATE (2013) 2 NWLR (Pt. 1339) 403 at 421.
“A Ground defines and identities the wrong said to be committed by a Court and challenges the decision by furnishing the rationale being challenge. To be relevant or competent, a ground of appeal must be based on the love issues in controversy between the parties in a case.” See also MOYOSORE V. GOVERNOR KWARA STATE (2012) 5 NWLR (Pt. 1293) 242.
Evidence also shows that the Exhibit D1, the alleged Notice of Redundancy, pasted on Appellant’s Board, which was duly admitted as exhibit, was never challenged on appeal. The said Exhibit D1 showed that the names of the Respondents were not on the list, and that they were never served with any such letter. Of course, by law, a letter posted on the Notice Board of an Organization is a letter to the general public and not to anyone in-particular. The organization can not infer a letter, posted on its notice board, to have been duly served on any particular staff, relating to issue of personal/mutual interest between the staff and the organization, especially touching on the discipline, termination or redundancy of the staff.
Failure to serve the Respondents, directly, with the Exhibit C, but acting on the same against their interest, amounts to breaching the Respondents’ rights of fair hearing, entrenched in Section 36(1) of the 1999 Constitution (as amended). See also the case of YUSUF V. UBN LTD (1996) 6 NWLR (Pt. 457) 632, where the Supreme Court said:
“To satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him.”
Appellant had admitted, per evidence of Dw3, that the Respondents were neither paid their salaries/allowances nor relieved on their appointments, after the attempt to force them to resign their Appointments failed; that the Respondents were still in the employ of the Appellant. See pages 45 to 47 of the Records and the judgment of the trial Court on pages 402 – 403 of the Records of Appeal. Appellant have not faulted that findings of the trial Court and so, I resolve the issue against the Appellant.
On Issue 2, there was evidence that the Respondents were entitled to be paid their salaries and allowances, since there was evidence, especially from DW3, that the Respondents were neither paid nor relieved of their appointments.
DW3 had said:
“Yes their Salaries have not been paid neither their appointment terminated…we are asking them to proceed on leave so we don’t have to terminated their appointment. So that appointment was not terminated…” See the findings of the Court on page 402 of the Records.
There is, therefore, no way we can fault the judgment of the trial Court ordering the Appellant that the Respondents be paid their said salaries and allowances. But the Court cannot grant the Respondents general damages, in addition to their said salaries and allowances. This point was considered recently by this Court in the case of NEW NIGERIA NEWSPAPERS LTD V. MR. FELIX AYOYEBI: CA/K/282/2006 (unreported) delivered on 19/4/2013, where we said on Page 20 as follows;
Appellant had also quarreled with the award of N100, 000.00 to the Respondent, as general damages, in addition to award of salary up to retirement age. I agree with learned Counsel for the Appellant that award of general damages for wrongful dismissal, in a contract of employment, is strange. This is because what is computed for a successful party in such circumstances, can not be general damages, but proven special damages, which actually is the salaries and other entitlements of the Plaintiff during the period of the purported termination or dismissal, or what would have accrued to him, had the dismissal or termination complied with the due process envisaged in the Condition of service, that is, the entitlement payable to the Plaintiff in lieu of notice (where re-instatement cannot be ordered). See the case of ADENIRAN V. NEPA (2002) 14 NWLR (Pt. 786) 30 at 48 See also the case of KWARA STATE POLY V. SALIU (supra); NIGERIAN PRODUCE MARKETING BOARD V. A. O. ADEWUNMI (1972) ALL NLR 870. INTERNATIONAL DRILLING NIG. LTD. V. AJIJALA (1976) ALL NLR 97; SPDC LTD V. OLAREWAJU (2008) 12 SC (Pt.111) 27;
Therefore, I set aside the award of N100,000.00 general damages to each of the Respondents, and resolve the rest of the issue against the Appellant.
On Issue 3, Appellant argued that the trial Court raised the issue of harassment and constructive dismissal, suo motu and gave judgment in respect thereof, without allowing the parties to address it on the issue.
I think that is far from the truth, as the entire issue was embodied in the evidence before the Court, just as the Respondents argued. In a situation where the Appellant had even admitted that it neither paid the Respondents nor relieved them of the appointments, it is difficult to know what other conclusion a Court would reach, in the circumstances, if not, a Constructive termination of the appointment, especially as the reason for the stalemate was that the Respondent refused to resign that appointments!
It is sad to know that employers do breach the sacred Rules of Labour Law by adopting arm-twisting and illicit measures to compel their servants to resign their appointment, whereas the employer always has the power to terminate the servant’s appointment. Of Course, that recourse is usual made when the employer wants to escape the responsibility to pay the terminal benefit to the employee.
By law, of a company or employer has reason(s) to relieve its servant of his appointment, the law allows it the right to do so, as the same is in-grained in every employment – that the employers has the power to hire and to fire (the same with the employee to walk out of the employment), provided the party exercising the power, respects the agreement, on the parting benefits. See the case of KWARA STATE POLY V. SALIU (202) 41 WRN 26; OSUMAH V. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 775L OLORUNTOBA OJU V. ABDULRAHEEM (2009) WRN 1; OLANIYAN V. UNIVERSITY OF LAGOS (2004) 15 WRN 44.
See also the case of OBOT V. CBN (1983) NWLR (Pt. 310) 140, where the Supreme Court said;
“In the case of NIGERIAN MARKETING BOARD v. AD ADEWUMNI (1972) 11 SC 111 AT 117…this Court held as follows (per FATAI – WILLIAMS JSC as he then was);
“In a claim for wrongful dismissal, the measurement of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract (See Beckham VS. DRAKE (1849) 2 HCC 579 at 607 – 608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.” Per UWAIS JSC, as he then was. (Who also relied on the English case of DENMARK PRODUCTION LTD V. BOSCOBEL PRODUCTIONS LTD (1968) 1 ALL ER. 513 AT 524, where it was had that:” As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course instigate those damages as far as he reasonably can.”
I think the trial Court was right in its findings and conclusions. I resolve the issues against the Appellant and hold that the Appeal is completely lacking in merit and should be dismissed. It is accordingly dismissed by me.
Parties to bear their respective costs.
DALHATU ADAMU, CFR, J.C.A: I have been privileged to have read the lead judgment just delivered by my learned brother I.G., Mbaba JCA. I agree with his reasoning and the conclusion he arrived at that the appeal should be dismissed. I accordingly hereby also dismiss the appeal. I also endorse the decision that parties should bear their respective costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, Ita Mbaba, JCA His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning. I wish to make some comments.
This is an appeal against the judgment of the High Court of Kano State in Suit No K/246/2006 delivered by Honorable Justice Aisha R. D. Muhammad on the 23rd of July, 2009. The Appellant filed a notice of appeal containing five grounds of appeal against the judgment. The Appellant distilled three issues for determination from the five grounds of appeal.
The first issue for determination was whether the Respondents led sufficient evidence in proof of their case to have been entitled to judgment in the lower Court. In arguing the ground of appeal, however, Counsel to the Appellant devoted to whole of his submission on whether or not the Respondents exhausted the internal mechanisms for resolution of disputes in the Conditions of Service of the Appellant before commencing the court action, and Counsel said nothing about the sufficiency of the evidence led by the Respondents in the lower Court. In other words, there was no correlation between the first issue for determination as formulated and the submissions made there under. The question of whether or not the Respondents exhausted the internal resolution mechanisms of the Appellant was not raised, canvassed or deliberated upon in the lower Court and it was not part of the ground of appeal or the particulars to any of the grounds of appeal. It was a disingenuous attempt by the Counsel to the Appellant to raise the question for the first time on appeal. It is trite law that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appeal court is bound by the records of appeal and therefore an appellant is entitled to contest the judgment of a trial court only on the issues properly raised before the lower court and pronounced upon by that court – Oshatoba V. Olujitan (2000) 5 NWLR (Pt 655) 159, Onwuka V. Ononuju (2009) 11 NWLR (pt. 1151) 174, Oseni V. Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu V. Ojiogu (2010) 9 NWLR (pt. 1198) 1.
A party is not allowed to maintain on appeal a different case from that pursued at the trial court; he must be consistent in stating his case-Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (pt 1006) 608, Emmanuel V. Gomez (2009) 7 NWLR (Pt 1139) 1, Oshoboja V. Amida (2009) 18 NWLR (pt 1172) 188, Njaba Local Government Council V. Chigozie (2010) 16 NWLR (Pt 1218) 166 and Ebia Construction Ltd. V. Costain (West Africa) Plc (2011) 6 NWLR (Pt 1242) 110. The entire submissions on the first issue for determination were misconceived and will be discountenanced.
On the second issue for determination, I agree entirely with the point made in the lead judgment that the Respondents were entitled, on the facts proved before the lower Court, to be paid their salaries and allowances but that they were not entitled to the award general damages. It is settled law that the remedies available to an employee whose contract of employment has been breached are his salary and other legal entitlements due to him in the course of the employment and nothing more Chukwumah V. Shell Petroleum Co. Ltd (1993) 4 NWLR (Pt 285) 512, Cooperative Bank Plc V. Essien (2001) 4 NWLR (Pt 704) 479, Ativic V. Kabelmetal (Nig) Ltd (2008) 10 NWLR (pt 1095) 209. The award of N100, 000.00 as general damages to each of Respondents is thus liable to be set aside.
In the third issue for determination, Counsel to the Appellant canvassed that the lower Court raised the issues of harassment and constructive dismissal suo motu and gave judgment relying on the issues without allowing the parties to address on the issues. An objective leading of the judgment of the lower Court shows that though the learned Trial Judge made mention of the issues of harassment and constructive dismissal, the comments were made in passing and the issues did not form the basis of the judgment entered in favour of the Respondents. So even if, the complaint of the Appellant is correct, it is of minimal relevance in this appeal. It is settled law that it is not every slip or error in the judgment of the lower Court that will necessitate the judgment being upturned on appeal. For such error to have that effect it must be substantial and must have occasioned a miscarriage of justice. In other words, the error must be such as influenced the judgment in a manner that led to a wrong decision causing the appellant to suffer injustice or has affected the decision appealed against in a way tantamount to substantial misdirection or error in law – Mohammed Mustapha Ali Company Ltd V. Goni (2006) 10 NWLR (pt 987) 88, Nigeria Bottling Company Plc V. Olanrewaju (2007) 5 NWLR (pt 1027) 255, AG Leventis (Nig) Plc V. Akpu (2007) 17 NWLR (pt 1063) 416, Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 8 NWLR (Pt 1066) 319. The error, if any, Complained about by the Appellant was not substantial and it has not been shown to have occasioned a miscarriage of justice.Additionally, an issue which is a mere complaint against a statement in the judgment of the court appealed against which does not show how that statement affected the final decision of the lower court, can hardly be regarded as a real issue for determination in an appeal, against that judgment – Witt & Busch Ltd V. Dale Power Systems Plc (2007) 17 NWLR (pt 1062) 1. Thus, the submission of the Counsel to the Appellant on the third issue for determination was “much ado about nothing”.
It is for these reasons, and the fuller exposition in the lead judgment, that I also agree that the appeal lacks merit, except on the issue of the general damages awarded by the lower Court to each Respondent. Thus, save that the award of general damages in the sum of N100,000.00 to each of the Respondents is set aside, I too affirm the judgment of the High Court of Kano State in Suit No K/246/2006 delivered by Honorable Justice Aisha R. D. Muhammad on the 23rd of July, 2009. I abide the consequential order on costs made in the lead judgment.
Appearances
R.O. ATABO Esq., and T.R. JIABU Esq.For Appellant
AND
P.A. ATTABOR Esq.For Respondent
