Women and nursing mothers must not suffer discrimination at work place

Standard Chartered Bank v. Adegbite [2019] 1 NWLR (Pt. 1653) 348 at 373, paras. B-F, per Barka, JCA:

“It has been argued for the Defendant that the Claimant did not adduce evidence of how other nursing women in the employment of the Defendant were treated differently from her or vice versa. It suffices that the Claimant has shown how she was treated differently from other employees (her team members) who were not woman or nursing mothers in the determination of targets for the year. The Defendant has not adduced evidence to controvert that of the Claimant that her target for the year was well over and above that of her other team members target in spite of the peculiar but legitimate absence from work for half of that same year. She was clearly not treated with equality with other team members. It would seem like a case of setting her up to fail in the achievement of the set objectives and punishing her for being a nursing mother. Had she been given the same target as her other team members in the circumstances, without regard for the legitimate time spent away from work, this would still be held to be discriminatory. For it would be a case of discouraging young women from becoming mothers and taking time away from work on maternity leave, in effect discouraging them from exercising a right that is peculiar to their sex as women. What is worse the Claimant was given a target far above that of her other team members. I will have to hold that this decision of the Defendant could only have been informed by prejudice against the Claimant on the basis of her status as a woman and nursing mother. On the evidence analysed above, I must find and hold that the claimant was discriminated against on the basis of her sex and the fact that she was a nursing mother.”

Notes:

The above statement of the law was made by Adesanya J., of the Lagos High Court in her Judgment under appeal and was quoted with approval by Barka, JCA.

The approach of the Court in the instant case to protect the rights of women and nursing mothers at work place is deeply appreciated. Nigerian employers, especially banks, must reconsider the inordinate pressures they mount on their employees (especially women) in the name of “target”. Our women and nursing mothers must not be discouraged from pursing their career goals in any industry.

Having said that, and while commending the trial Court and the Court of Appeal, it must be noted that it appears the Court did not avert its mind to the position of the law which states that the constitutionally guaranteed fundamental right to freedom from discrimination is only enforceable against the State and not against individuals. See Lafia Local Govt. v. Gov., Nasarawa State [2012] 17 NWLR (Pt. 1328) 94 at 127-128, paras. F-G, per Rhodes-Vivour, JSC.

Full Judgment

Hamma Akawu Barka, JCA (Delivering the Leading Judgment):

The instant appeal is against the decision of Y. A. Adesanya J. of the Lagos State High Court in Suit No: ID/757/2007 between Mrs. Ndidi Adegbite v. Standard Chartered Bank Nigeria Limited delivered on the 14th of October, 2012 wherein the trial Court partly granted the Respondents claim.

The background facts originating the instant appeal are rooted in the Plaintiff’s Writ of Summons and Statement of Claim dated and filed on the 15th of June, 2007 seeking for the following reliefs:

  1. a) A Declaration that the dismissal of the Claimant from the employment of the Defendant on or about the 3rd day of February, 2006 was discriminatory on the ground of the Claimant’s sex and that she was a nursing mother and the same was wrongful and unconstitutional.
    b) An Order directing the Defendant to pay damages to the Claimant in the sum of N50,000,000.00 (Fifty Million Naira).
    c) A declaration that the Defendant has no mandate or alternatively the Defendant has no authority to debit the current account of the claimant with the sum of N 1,628, 209.64 (One Million, Six Hundred and Twenty Eight Thousand, Two Hundred and Nine Naira, Sixty Four Kobo).
    d) An Order directing the Defendant to reverse forthwith the wrongful debit of N1, 628,209.64 (One Million, Six Hundred and Twenty Eight Thousand, Two Hundred and Nine Naira, Sixty Four Kobo) and interest thereon from the Claimant’s account and make available to her the credit balance therein.
    e) An Order directing the Defendant to pay to the Claimant her performance related bonus (PRB) for 2005.
    f) An Order directing the Defendant to refund all the deductions made from salaries and emoluments on account of her pension contribution and NHF contribution.
    g) Costs of this action.The substance of the Claimant’s case, from the Appellant’s view point, is that she was offered employment with the Respondent on the 21st November, 2002 as an Account Relation Manager Grade 7, which appointment she accepted on the 1st of December, 2003 and was later confirmed on the 11th of August, 2003. As such employee, she maintained an account with the Bank. That in the course of her employment, she applied for maternity leave on the 4th day of January, 2005 which was granted to run from the 7th of February, 2005 to the 6th of May, 2005. She later applied for an extension of one month, which was granted to her on health grounds of the new born baby. That she held separate meetings on the 3rd of February, 2006 with her supervisor and team Executive Director in the course of which she was directed to resign her employment with the Appellant, on the ground that her appraisal rating was unfavorable to her continued stay in the Appellant’s employment. That she was compelled to resign on the 8th day of February, 2006, and her resignation was not voluntary amounting to a wrongful dismissal. It is her case also that in evaluating her performance in 2005, she was discriminated against by the Appellant on the ground of her sex and by reason of her being a nursing mother, and furthermore Appellant on or about the 8th of March, 2006 wrongfully and without her mandate debited her account with the sum of N1,628,209.64 and proceeded to apply imaginary interest rate to the said loan.

The Appellant on the other hand contended that the Respondent voluntarily resigned her appointment with the Appellant vide her letter of the 8th of February, 2006 and effective on the 1st March, 2006, and denied the fact that the Respondent was wrongfully dismissed. That the contract of employment of the Appellant with the Respondent was governed by the terms and conditions contained in her letter of employment, and the contents of the staff hand book. That it is normal for the Appellant to hold periodic discussions with its employees and during one of such discussions which the Respondent held with her supervisor and team head, and the Respondent having admitted that her performance was poor opted to resign. Appellant denied discriminating against the Respondent at anytime, rather stating that the deductions made are in respect of the Pension and the National Housing Fund scheme which are non-refundable. That as at the time of her resignation, Appellant was indebted to the tune of N1, 628,209.64. That the Appellant wrote the Respondent accepting her resignation, and stated her indebtedness, which she disputed, and that Respondent is entitled to the grant of the claims indorsed on the Writ of Summons and the Statement of Claim.

Issues having been joined, the Claimant proceeded to prove her case as demanded by law. In proving her case, the Claimant gave evidence and tendered numerous exhibits. The Defendant called a single witness Bunmi Ohiwerei (DW1) and tendered a host of exhibits. Written Addresses were ordered filed and adopted. On the 12th October, 2012, the trial Court delivered the vexed Judgment to the effect that, prayers 1 to 4 in the Respondent’s reliefs borne on the Writ of Summons and Statement of Claim were granted, while the 5th prayer was refused.

The Defendant now Appellant being dissatisfied with the Judgment of the lower Court approached this Court wherein it filed a Notice of Appeal dated the 7th of December, 2012 and filed on the 10th December, 2012 predicated on five grounds. The Grounds of Appeal and the Particulars are reproduced as follows:

Ground One
The learned trial Judge erred in law when she assumed jurisdiction and proceeded to enter judgment in favour of the Respondent (Claimant at the High Court of Lagos state) on the 12th day of October, 2012 as per the reliefs contained in the Respondent’s Writ of Summons and Statement of Claim dated 15th June, 2007 and 12th June, 2007 respectively, in direct violation of the provisions of Section 254(c)(1) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and Sections 7 and 11, National Industrial Court Act, 2006, Cap. N155, Laws of the Federation of Nigeria, 2010.

Particulars of Error

The Respondent did in her Writ of Summons and Statement of CLAIM dated the 15th and 12 day of June, 2007 respectively, seek two Declarations (amongst others). These declarations relate to her alleged dismissal from the services of the Appellant on the grounds of her sex, and by reason of her being a nursing mother and the computation of her terminal benefits.
(b) By virtue of the provisions of Section 7 (1) (a) (i) and 11 of the National Industrial Court Act, 2006, Cap. N155, Laws of the Federation of Nigeria, 2010 and Section 254(c)(1)(a), (d) and (g) of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the provisions of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, the National Industrial Court possesses the exclusive jurisdiction to hear and determine the Respondent’s claims as endorsed upon her Writ of Summons and Statement of Claim.
(c) The Constitution (Third Alteration) Act, 2010 came into effect on the 4th day of March, 2010, while the High Court of Lagos State delivered its Judgment now under appeal on the 12th day of October, 2012.
(d) By the combined reading of the provisions of Section 254(c) of the 1999 Constitution as amended and Section 11 of the National Industrial Act, 2006, particularly Section 11(2), thereof the proceedings before the High Court of Lagos state abated on the 4th day of March, 2011. Consequently, the lower Court had no jurisdiction to enter the Judgment now under appeal.
(e) By reason of the premise of Sub-paragraphs (a)-(d) above it ought to have been apparent to the High Court of Lagos State that it lacked the requisite jurisdiction to adjudicate upon the Respondent’s claim as endorsed upon her Writ of Summons and Statement of Claim.

Ground Two
The learned trial Judge erred in law when she held as follows to wit:
“On the evidence analyzed above, I must find the hold that’s the claimant was discriminated against on the basis of her sex and the fact that she was a nursing mother.” 

Particulars of Error

There was glaring absence of any credible evidence adduced by the Respondent in proof of her allegation of discrimination by the Appellant on grounds of her sex and being a nursing mother.
(b) No evidence was led by the Respondent at trial which showed that she was treated differently from other nursing mothers or women in the employment of the Appellant.
(c) All of the evidence adduced at trial showed that the Respondent received and was accorded all her contractual rights in accordance with her contract of employment with the Appellant, and was never treated differently from other employees of the Appellant.
(d) There was evidence before the lower Court to the effect that the Appellant did in fact permit the Respondent an extension of her maternity period, contrary to the terms of her employment with the Appellant.
(e) All of the Respondent’s contractual rights as a nursing mother in the employment of the Defendant were afforded her by the Appellant.
(f) The Respondent’s letter of employment conferred upon the Appellant the right and sole discretion of determining the Respondent’s revenue target and/or other duties during a given year.
(g) The Respondent failed to discharge the burden of proof placed upon her by law.
(h) By reason of the premise of Sub-paragraphs (a)-(g) above the lower Court’s finding that the Appellant did discriminate against the Respondent by reason of the Respondent’s sex and as a nursing mother, is perverse and not supported by evidence adduced at trial.

Ground Three
The learned trial judge fell gravely into an error of law when she held that the Respondent’s resignation from the services of the Appellant amounted to constructive dismissal, and consequently stated as follows, to wit:
“on the evidence adduced on this issue, I must find for the Claimant on this issue which is that she was discriminated against on the ground of her sex and being a nursing mother, consequent of which her performance was poorly appraised for the year 2005 and she was harassed into resignation is involuntary and is therefore constructive dismissal in law, same is therefore wrongful.
Secondly, having found for the Claimant on Issue 1 and held that the Defendant breached the Claimant’s fundamental right and is guilty of constructive dismissal, in
that Claimant’s resignation was involuntary… ” 

Particulars of Error
(a) The Respondent while alleging constructive dismissal in her Statement of Claim, never stated that the same was as a result of the discrimination meted out to her by the Appellant by reason of her sex, or being a nursing mother. On the contrary, her allegation of constructive dismissal as pleaded in her Statement of Claim related solely to alleged threat made to her by the Appellant’s officers.
(b) The learned trial Judge found in her Judgment under appeal that there was no evidence which showed that the Respondent was ever threatened by any officer of the Appellant and which threat resulted in her forced resignation.
(c) The Respondent gave inconsistent evidence as it relates to the issue of constructive dismissal, thereby eroding her credibility.
(d) The Respondent’s allegations regarding dismissal on the ground of discrimination by reason of her sex and being a nursing mother, go to no issue, as the said allegations were not contained in her statement of claim.
(e) By the premise of Sub-paragraphs (a)-(d) above, it ought to have been manifest to the lower Court that no evidence was led at trial which indicated that the Respondent was in any way or manner discriminated against by the Appellant as a result of her sex, or by reason of being a nursing mother.

Ground Four
The learned trial Judge fell gravely into an error of law when, despite the woeful failure of the Respondent lead credible evidenced in proof of her entitlement to damages proceeded to award damages in her favour, and in so doing stated thus:
“Having found as I have that the Defendant’s action constituted a breach of Claimant’s right against discrimination under Section 40 of the Constitution, the Court is entitle to make an award of general damages when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man….
The consideration for the sum to be awarded will include the nature of the breach, the circumstances, the enormity of the breach and the damage suffered by the claimant, in this case, the loss of job and indignity of having to leave Defendant’s employment immediately…….
I therefore find and hold that Claimant is entitled to general damages for
breach of her fundamental right and the claims is not specie of special damages.  ……..
An order directing the Defendant to pay damages to the claimant in the sum of five Million Naira only.”

Particulars of Error
(a) The trial Judge’s finding that the Appellant was liable in damages was hinged on wrong principles of law as the Respondent’s claim for general damages relates to her allegation of constructive dismissal.
(b) There was no evidence before the lower Court which showed that the Respondent’s resignation from the services of the Appellant was involuntary.
(c) The Respondent’s claim for damages was premised upon her allegation of constructive dismissal, and damages in respect thereof can therefore only be special in nature.
(d) At no time did Respondent specifically plead or prove any special damages to her as a result of any act or omission of the Appellant.
(e) By of the premise of sub-paragraphs (a)-(d) above, the Respondent clearly was not entitled to the grant of damages in the sum of N5 Million Naira as granted by the lower Court.

Ground Five
The learned trial Judge fell gravely into an error of law when she held that the Appellant was not entitled to debit into the Respondent’s account; and upon the resignation of her employment with the Appellant, the sum of N1,367,505.95, which sum the Respondent was contractually bound to pay to the Appellant upon her resignation. The learned trial Judge in this regard, held thus:
“Secondly, having found for the Claimant on Issue 1 and held that the Defendant breached the Claimant’s fundamental right and is guilty of constructive dismissal, in that the claimant’s resignation was involuntary, it follows that the Claimant did earn the said leave/passage allowance, having served in the Defendant’s employment for twelve (12) consecutive month. There is no evidence before the Court that the Claimant would have left the Defendant’s employment at the time she did, but for the Defendant’s threat of dismissal, rather the evidence points to the contrary. In effect, the defendant is not entitled to deduct the sum of N1,367,505.95 which is nothing but Claimant’s leave/passage allowance for the year 2006.”

Particulars of Error

(a) The learned trial Judge’s finding in this regard has its root in her finding that the Respondent was constructively dismissed from the employment of the Appellant.
(b) There was no evidence presented at trial which indicate that the Respondent was constructively dismissal from the employment of the Appellant.
(c) The Respondent had a contractual obligation to the Appellant upon resignation of her employment, to pay over to the Appellant all unearned allowances which she had been paid by the Appellant prior to her disengagement.
(d) The evidence adduced at trial which the lower Court acted upon in entering Judgment in favour of the Respondent, showed clearly that the sum represented unearned allowances paid by the Appellant in advance to the Respondent.

The appeal having been entered to this Court, parties proceeded to file in their Briefs of Argument. The Appellant’s Briefs dated the 13/11/2014 was filed on 17/2/15, and Appellant’s Reply Brief was filed on 11/2/16. On the 16/10/17 when the appeal came up for hearing, the learned silk adopted the Appellant’s brief and the reply brief as his submissions in urging the Court to allow the appeal. In adumbration, learned Senior Counsel referred to the case of Strand vs Ijeh delivered on the 10/3/2012, particularly at page 7-10 thereof, and submits that the Court of appeal misrepresented the amendment as it relates to the cause of action, positing that you cannot give judgment when you don’t have the right, as the third alteration to the CFRN 1999 takes effect from the date it was enacted, and maintaining that the authority does not assist the import of Section 254(c) of the Constitution.

The Respondent filed a Respondent and Cross Appellant’s Brief of Argument dated the 29/6/15 and filed on the 30/6/15, but deemed properly filed on the 27/10/2015. On the same 16/10/17, learned counsel adopted the respondent brief in urging the Court to dismiss the appeal. He referred to a list of additional authorities, in aid of his case, first of which is the case of Fasakin Foods at p. 147-161 cited in support of his argument at p.8 of his Brief and the case of Strands (supra) at p.38, cited in support of his submissions at p. 10 – 11 of the Brief. He posits that where trial has commenced before the enactment of a statute, same does not oust the jurisdiction of the Court trying the matter, and argued that the instant action arose in the year 2005 before the enactment of the statute in question, therefore the statute in that regard cannot apply.

The learned counsel for the Respondent while urging the Court to dismiss the appeal, drew the Court’s attention to the cross-appeal filed on the 11/5/15 with the leave of the Court granted on the 5/5/15. The cross-appeal is that argued at pages 22 – 25 of the Respondent and Cross-Appellant’s Brief of Argument filed. Counsel also filed a Reply Brief on the 8/6/17, which he adopted as his submission and urged the Court to allow the cross appeal.

Learned SAN, filed in a cross Respondent’s Brief located at pages 14 to 27 of the Appellant’s Reply and Cross-Respondent’s Brief of Argument filed on the 11/2/16. He adopts the Brief as his Arguments therein and urged the Court to dismiss the cross-appeal. He posited that general damages are granted based on the discretion of the trial Court, and the principle used in granting the award of damages not having been attacked, there is no basis for the cross appeal, and same should be dismissed.

On the Main Appeal
The learned Senior Counsel for the Appellant formulated three issues for the resolution of this appeal. The three issues are as follows:
a. Whether by virtue of the provisions of Section 254 (c) of the Constitution of the Federal Republic of Nigeria 1999 as amended by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and Sections 7 and 11 of the National Industrial Court Act 2006, Cap. N155, Laws of the Federation of Nigeria, 2010 the learned trial judge lacked the requisite jurisdiction to hear and determine the respondents claims as endorsed on her writ of summons and statement of claim dated 15th June, 2007 and 12th June, 2007 respectively and in consequence erred in law when she proceeded to enter judgment in favor of the respondent. (Ground 1).
b. Whether the trial Court was right in law, having regard to the absence of any credible evidence adduced by the Respondent in proof of her allegation of discrimination by the Appellant on the grounds of sex and being a nursing mother to have held that the Respondent was so discriminated upon by the Appellant. (Ground 2).
c. Whether the award of Five Million as general damages in favor of the Respondent by the trial Court was right in law, despite the manifest and glaring absence of any credible evidence adduced by the Respondent entitling her to such award of damages. (Ground 2).

The Respondent on his part equally raised three issues for determination; the three issues which are not dissimilar to the issues distilled by the Appellants are as follows:
a. Whether giving regard to the claims of the Respondent as endorsed on her writ of summons and statement of claim, the High Court of Lagos State is deprived of jurisdiction to hear and to determine the Respondents suit by virtue of Section 254C (1) (a) (d) and (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the third alteration Act 2011) and Sections 7 (1) and 11 of the National Industrial Court Act 2006. (Ground One).
b. Whether on the pleadings and the evidence, the learned trial judge was correct in her decision that the Appellant violated the constitutional right of the Respondent to freedom of discrimination in the course of her employment in consequence of which her performance appraisal for 2005 was poorly rated and she was harassed into resigning her employment (Grounds 2 and 3).
c. Whether the learned trial judge did not apply correct principles of law in her award of damages of Five Million Naira for breach of the Respondents right to freedom from discrimination to warrant the interference of the Court of Appeal (Ground 4). 

I elect to be guided by the issues formulated by the Appellant.

ISSUE ONE.
The argument with regards to this issue by the learned Senior Counsel is located from pages 8 to 14 of the Appellants brief of argument.

Therein, the learned Senior Counsel referred to the Respondents’ claims against the Appellant, and drew the Courts attention to the fact that the Respondent instituted the action at the Court of trial sometimes in the year 2007, and trial commenced on the 15th of January, 2008; with Judgment delivered on the 12th of October, 2012. He submits that the lower Court wrongly assumed jurisdiction when she entered Judgment in favor of the Respondent on the 12th of October, 2012 as per the Writ and Statement of Claim in direct contravention of the extant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the National Industrial Court Act Cap. N155, Laws of the Federation of Nigeria, 2010.

It was contended by the Senior Counsel, that it is the Claimant’s claim endorsed on the Statement of Claim that determines the Court with jurisdiction, and cited the case of Cotecna International Ltd vs. Ivory Merchant Bank Ltd (2006) 9 NWLR (pt. 987) 279 and Tukur vs. The Government of Gongola State (1989) 4 NWLR (pt. 117) 577 on the point. Learned counsel further cited the case of Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 589 on conditions precedent for the competence of the Court to hear and to determine the matter before it, further submitting that from the claims of the Respondent, two main issues cropped up, which are those relating to her alleged dismissal from the services of the Appellant on the grounds of her sex and by reason of her being a nursing mother, and the computation of her terminal benefits, arguing that the other reliefs sought by the respondent were hinged on these two declaratory reliefs. It is his submission that by the intendment of the provisions of Sections 7(1) (a) and (11) (1) and (2) of the National Industrial Court Act, 2006, Cap. N155, Laws of the Federation of Nigeria 2010, and Section 254 (c) (1) (a) (d) and (g) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010, the National Industrial Court possesses the exclusive jurisdiction to hear and to determine the Respondent’s claim as endorsed on the Statement of Claim. Further alluding to the provisions of the laws just cited, which he reproduced, counsel posits that the Respondent’s claim falls within the precincts of those sections as reproduced above. He contends therefore relying on the case of Echelunkwo John & 90 Ors vs. Igbo-Etiti Local Government Area (2013) 7 NWLR (pt. 1352) 1 @ 17, that consequent to the enactment of the Constitution (Third Alteration) Act, 2010 which gave exclusive jurisdiction to the National Industrial Court on labor matters, both the State and Federal High Courts ceased to have jurisdiction. He contends further that even though the matter was part heard, the trial Court still lacked jurisdiction to entertain the matter by virtue of the provisions of Section 11 (2) of the Act. He submits that by the combined reading of the provisions of Sections 254 (c) (1) (a) (d) and (g) of the 1999 Constitution of the Federal Republic of Nigeria as amended, and Section 11 of the National Industrial Court Act, 2006, particularly Section 11(2) thereof, the proceedings of the lower Court as a part heard matter abated on the 4th of March, 2012, and from then ceased to be clothed with jurisdiction to entertain the matter.

It is also the contention of the Learned Senior Counsel that jurisdiction is fundamental and where lacking, the proceedings no matter how well conducted and decided amounts to a nullity. The cases of Ojukwu vs. Ojukwu (2008) 18 NWLR (pt. 1119) 439 @ 462, Raymond Dongtoe vs. Civil Service Commission Plateau State & Ors (2001) 4 SC (pt. 11) 43 @ 53 Macfoy vs. UAC (1962) AC 152 @ 160 supports the legal principle. He urged the Court to dismiss the appeal in line with the decision in Feed and Food Farms Nigeria Ltd vs. NNPC (2009) 12 NWLR (pt. 1155) 387 @ 409, and to resolve the issue in favor of the appellant and to further dismiss the entire suit.

In his response on the issue, which can be found from pages 4 to 12 of the Respondent’s Brief, learned counsel for the respondent urged this Court to reject all the Appellant’s arguments, and to resolve the issue in favor of the Respondent. He referred to the primary claims of the Respondent, which are for a declaration of right, and that the other reliefs are hinged on the principal relief, which is whether the constitutional right of the Respondent to freedom from discrimination on the ground of her sex and being a nursing mother was violated by the Appellant, thereby leading to her dismissal from her employment on or about the 3rd February, 2006, and whether same was wrongful and unconstitutional. He argued that in determining whether the High Court had jurisdiction or not, it is that main declaratory relief endorsed on the Writ and Statement of Claim that should be looked at. On this proposition, counsel sought support in the case of Western Steel Works Ltd vs. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (pt. 49) 294 @ 297- 298. He maintains that the main claim is rooted in the Respondent’s allegation of the violation of her fundamental right to freedom from discrimination on the ground of her sex as preserved in Section 42(1) (a) of the CFRN 1999, and argued that by the provisions of Section 272 of the Constitution, it is the High Court that has jurisdiction to determine the Respondent’s allegation of being discriminated against and the damages flowing from it. Further arguing that the industrial Court lacks the jurisdiction to hear and to determine the Respondent’s allegation of declaration of right as asserted in the case of AG, Oyo State vs. NLC (2003) 8 NWLR (pt. 821) 1 @ 28; Oloruntoba-Oju vs. Abdul-Raheem (supra) at 127. 

Learned counsel in further argument, contended that the powers granted the National Industrial Court by Section 7 (1) (a) of the National Industrial Court Act, are in conflict with the provisions of Section 272 of the Constitution, and therefore null and void to the extent of the inconsistency. The case of African Petroleum Plc vs. Akinnawo (supra) at page 116 – 117 and ACC (Nig.) Ltd vs. Sedi (supra), were cited in support. On whether the Respondent’s action abated on the 4th of March, 2012 as argued by the Appellant, it was contended that Section 11 of the NIC Act, meant to grant exclusive jurisdiction to the National Industrial Court in respect of matters and causes mentioned in Part 11 of the Act, and having regard to the invalidity and nullity of Section 7 (1) (a) (i) and (ii) as argued earlier, Section 11 (1) also becomes automatically invalid, null and void. His argument is that a statute cannot curtail the powers granted by the Constitution, as only the Constitution can curtail the powers granted to the State High Court in Section 272. He posits that the Respondent’s cause of action is not related to or connected with any subject matter listed in Section 254C (1) (a) (d) and (g), contending that since the Respondent claim was instituted after she had left the employment, the fact that Respondent had been in the employment of the Appellant would not alter her cause of action. Relying on the decision of the Supreme Court in the case of Obiuweubi vs. CBN (2011) 7 NWLR (pt. 1247) 465 @ 495 to the effect that it is the law in force, or existing at the time of the action, that determines the law applicable. On where the State High Court is held to be without jurisdiction, counsel urged the Court to toe the line in the case of African Petroleum vs. Akinnawo (supra) and to transfer the case as stipulated by Section 24 (3) of the NIC Act.

I have given due attention to the arguments of the parties in the appeal, and my understanding of the issue being contested is whether the lower Court, being the High Court of Lagos State had the requisite jurisdiction to hear and to determine the action in this suit in view of the stipulations in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Let me start by restating the trite position of the law, which is that jurisdiction is fundamental, for as stated by Bello CJN in the case of Utih vs. Onoyivwe (1991) 1 SCNJ 25, that a declaration by a Court dismissing or granting a relief, is based on the assumption of the existence of jurisdiction to make a valid and binding pronouncement in the matter. The declaration of lack of jurisdiction in respect of the subject matter of the claim is an admission of legal incompetence and impotence to make any such valid and binding declaration in the cause before it. In short a Court lacking in jurisdiction labors in vain, regardless of how well conducted the proceedings might be and the conclusions reached. The learned Senior Counsel on what determines the Court with jurisdiction to adjudicate on the plaint rightly pointed out that the Claimant’s/Plaintiff’s claim as contained in the Writ and Statement of Claim clothes the Court with the jurisdiction to adjudicate. Thus Kutigi CJN in Ibrahim Abdulhamid vs. Talal Akar & Anor (2006) 13 NWLR (pt. 996) 127, on the issue, stated that:
“It is settled and a fundamental principle that jurisdiction is determined by the plaintiff’s claim or relief. In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the Court. See Western Steel Works Ltd vs. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (pt. 49) 284; Tukur vs. Govt of Gongola State (1989) 4 NWLR (pt. 117) 517 and Adeyemi vs. Opeyori (1976) 9-10 SC 31.”
In doing so, the Court is enjoined to carefully examine and to understand the facts and the circumstances of the case in determining whether the claims are within the jurisdiction of the Court. See Dosumu vs. NNPC (2014) 6 NWLR (Pt. 1403) 282. I have against this background carefully examined the statement of claim and in particular the reliefs being sought. It seems to me from the principal relief sought by the respondent before the lower Court:
a. A Declaration that the dismissal of the Claimant from the employment of the Defendant on or about the 3rd day of February, 2006 was discriminatory on the ground of the Claimant’s sex and that she was a nursing mother and the same was wrongful and unconstitutional, and the ancillary relief.
b. A Declaration that the Defendant had no mandate or alternatively the Defendant has no authority to debit the current account of the Claimant with the sum of N1, 628, 209.64, stems from the belief by the Claimant, that her right against discrimination on the ground of her sex was breached, leading to her wrongful and unconstitutional dismissal from the employment of the Defendant.
I have equally considered and arrived at the conclusion that all the other reliefs sought owe their success or failure upon the success or failure of these principal reliefs and my humble but firm understanding of the Appellant’s complaint before the lower Court is founded upon her belief that her fundamental right against discrimination, on the ground of her sex and as a nursing mother, as enshrined in Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), was breached by the Respondent, leading to her dismissal from her employment. For ease of reference the Section provides:
42.-(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a person-
(a) be subjected either expressly by or in the practical application of any law in force in Nigeria or any executive or administrative action of the Government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinion.
The clear implication of the Appellant’s complaint before the lower Court, as can be clearly deduced is anchored on the fact that she was discriminated against, and thus sought succor in the provisions of Section 46 of the same Constitution of the Federal Republic of Nigeria 1999, which provided that:
46.-(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
Now the contention of the learned senior counsel for the appellant is anchored on the provisions of Section 254 (c) (1) (a)(d) and (g) of the 1999 Constitution of the Federal Republic of Nigeria. For ease of reference, the sections reads as follows:
“Notwithstanding the provisions of Sections 251-, 257, 272 and anything contained in this Constitution and in relation 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 matter-
A. Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
D. Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;
G. Relating to or connected with any dispute arising from discrimination or sexual harassment at workplace…”
The learned counsel for the Appellant is right in saying that the Respondent’s claims clearly falls within the precincts of the sections reproduced above. The case of Echelunkwo John & 90 Ors vs. Igbo-Etiti Local Government Area (supra) cited by him settles the point. The learned Senior Counsel goes on to argue that even though the case under consideration was part heard, the decision was caught up by the provisions of Section 11 (2) of the National Industrial Court Act, which provides that:
11 (1)
“In so far as jurisdiction is conferred upon the Court in respect of the causes or matters mentioned in the foregoing provisions of this Part of this Act, the Federal High Court, the High Court of a State, the High Court of the Federal Capital Territory, Abuja, or any other Court shall, to the extent that exclusive jurisdiction is so conferred upon the Court, cease to have jurisdiction In relation to such causes and matters.
11(2).
Nothing in Subsection (1) of this Section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja to continue to hear and determine causes and matters which are part heard before the commencement of this Act and any proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act, shall abate.”
On whether this case ought to have abated after one year as argued by the learned counsel, I find the decision of Ogakwu JCA in Strand Nigeria Limited and Or vs. Mr Ngozi Ijeh (unreported) in Appeal with No. CA/&()/2012, delivered on the 10th day of March, 2017 very illuminating. Therein my learned brother held that:
“it is settled law that the jurisdiction of a Court is statutory and it is the Constitution or the statute creating a Court that sets out the jurisdiction of the Court… Equally trite law is that the substantive law governing a cause of action is the law in force at the time the cause of action arose. The procedural law governing the trial of an action is the adjectival law in force at the time of the trial of the action, unless there is a provision to the contrary. The jurisdiction of the Court to entertain an action is determined on the state of the law conferring jurisdiction at the point in time when the action was instituted and heard. Generally, the effect of a statute is prospective and not retrospective. So, Section 254C of the 1999 Constitution as amended/altered takes effect from its commencement date. The said section however made no provision in respect of cases already pending in Court as at its commencement date and whether such cases are to abate or continue.” (Underlining mine)
Furthermore, at page 9, Court held as follows:
“Trial in this matter commenced on 24th July, 2009″. Therefore, as at 4th March, 2000, the commencement date of Section 254C of the 1999 Constitution as amended/altered, the hearing in this matter had already commenced. Since trial had commenced before the commencement date of the said Section 254C, the said provisions… would not have the effect of preventing the lower Court from continuing with the matter.” See also the cases of Mustapha vs. Governor of Lagos State (1987) 2 NWLR (pt. 58) 539 @ 591 per Fabiyi JSC, NURTW and 1 Or vs. RTEAN (2012) 10 NWLR (pt. 1307) 70 at 192 – 193, Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465 per Rhodes Vivour JSC.
This being the case, the Claimant by virtue of Section 46 of the same Constitution, can and rightly approached the State High Court under Section 272 of the CFRN 1999 to ventilate his grievance pertaining to the breach of her constitutional right in the High Court of a State where the breach or anticipated breach occurred. The breach having occurred before the promulgation or amendment to the CFRN, 1999, by the addition of sub-section C to Section 254, which amendment has no retrospective effect, same cannot deprive the Lagos State High Court of the jurisdiction to hear and to determine the claim of the respondent before it to conclusion. It is apparent that the amendment to Section 254 of the Constitution did not oust the jurisdiction of the High Court retrospectively, and since the constitutional powers of the High Court cannot be ousted by statute, and in view of the ratio in the case of NURTW vs. RTEAN (supra), the jurisdiction of the High Court cannot be curtailed by Section 11 of the National Industrial Act in the circumstance. Against this background, it is my humble but firm view that the lower Court was properly imbued with the requisite jurisdiction to hear and to determine the Claimant’s case. This issue is resolved in favor of the Respondent.

ISSUE 2
Whether the trial Court was right in law, having regard to the absence of credible evidence adduced by the Respondent in proof of her allegation of discrimination by the Appellant on grounds of sex and being a nursing mother to have held that the Respondent was so discriminated upon by the Appellant.

Learned counsel referred to the holding of the lower Court at pages 513 – 514 of the records, submitting that the trial Court’s finding in this regard was solely based on the lower Court’s opinion that the Respondent was given a revenue target by the appellant higher than that of her team members for the year 2005, notwithstanding the fact that she was a nursing mother and had been on maternity leave. He posits in line with numerous cases including Ihekoronye vs. Hart & Anor (2000) 5 NWLR (pt. 692) 853; Mogaji & Ors vs. Cadbury Nigeria Ltd & Ors (1985) 2 NWLR (pt. 7) 393 @ 429; AG, Bayelsa State vs. AG, Rivers State (2006) 18 NWLR (pt. 1012) 596 @ 625 amongst others, and the provision of Section 135 and 136 of the Evidence Act, that whoever desires the Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts, has the burden to prove that those facts exist.

On whether the Respondent dutifully proved her assertion of being discriminated against, as to be entitled to the Judgment in her favor, counsel is of the view that the Respondent woefully failed to adduce credible evidence in proof of her case. He contended that the only area the trial Court relied upon to find that the Respondent was discriminated against was the fact that she was given higher targets than her other team members. He alluded to portions of the Judgment of the trial judge, complaining that the Judge shifted the burden of proof on the Appellant without recourse to the Respondent’s contract of employment and labour laws. He views the holding of the trial Court as being perverse having regard to the documentary evidence adduced at trial and certain admitted facts between them. He relied on Exhibit C1, showing the duties of the Respondent bound to carry out, and opined that evidence adduced showed that the Respondent was accorded all her legal and contractual rights as a female and nursing mother. He submits that the totality of the evidence shows that the Respondent was not discriminated against and therefore failed to discharge the burden of proof placed upon her shoulders by the provisions of the Evidence Act. Also relying on the cases of AG, Bendel State vs. UBA Ltd (1986) 4 NWLR (Pt. 37) 547 @ 565; Ogbeide vs. Osifo (2007) 37 WRN 67, and Agbareh vs. Mimra (2008) 1 SC (Pt.111) 88 @ 110, counsel submitted that you cannot rely on oral evidence to contradict the contents of documentary evidence. In urging the Court to resolve the issue in favor of the Appellant, learned counsel prays/wants the Judgment of the trial Court set aside.

The response on the issue by learned counsel for the Respondent can be seen from pages 12 to page 20 of the Respondent’s Brief. Reference was made to paragraphs of the Respondent’s deposition and the additional deposition which were adopted, and Exhibits C1 to C8 and C12, the evidence of Bunmi Ohiwerei DW 1, learned counsel submits that the trial Court evaluated the evidence on both sides, and arrived at its findings, which cannot be faulted. He submits that the findings are undisputed, and the Appellant not having appealed the said findings, can be taken as having accepted and is satisfied with the said findings. It is his contention that since the conclusion of the lower Court was that the Respondent was not treated equally with her other team members, when the Appellant gave her unrealistic revenue target, that treatment was nothing short of setting her up for failure in the peculiar circumstance of the Respondent, and informed by the Appellant’s prejudice against her on the basis of her status as a woman and a nursing mother and therefore discriminatory. He urged the Court to reject the Appellant’s arguments, the conclusions of the lower Court having flowed from undisputed evidence properly received and carefully evaluated and assessed. He urged the Court to be guided by the decision in CNAVIS vs. Thibault (1998) ECR 1-2077 cited in Michael Conolly Discrimination Law, 2nd Edition (2011) Paragraphs 4.049 at page 122 and Land Brandenburg vs. Ursula (2004) ECR 1-000 similarly cited in Michael Conollys’ Discrimination Law where it was held that treatment attributable to maternity, whether meted out during or after maternity or as a result thereof, is direct sex discrimination. On whether the Respondent’s resignation was voluntary or not, counsel referred to the conclusion of the lower Court on the issue at pages 441 to 443, and urged the Court to adopt the reasoning of the lower Court on when constructive dismissal may arise and to hold that the respondent’s resignation was not voluntary and amounted to constructive dismissal.

The critical question begging for resolution is whether the Respondent was indeed discriminated against on the basis of her sex and her being a nursing mother. It is trite by virtue of the provisions of Section 136 (1) and (2) of the Evidence Act 2011, Cap E.74, which provides that:

136(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.
(2) In considering the amount of evidence necessary to shift the burden of proof, regard shall be heard by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.
Thus as held in the case of Attorney General Bayelsa State vs. Attorney General Rivers State (2006) 18 NWLR (pt. 1012) 596 at 625 per Onnoghen CJN:
“By the provisions of Section 135 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts, has the burden of proving that those exists. In the instant case, the Plaintiff asserted that he is entitled to the reliefs claimed by virtue of the provisions of Act 36 of 1996, the reports of the Assets Sharing Implementation Committees as well as the agreements entered into by the parties to the action. That being the case, it is settled law that the plaintiff has the burden of proof of the assertion. See Elias vs. Disu(1962) 1 SCNLR 361; Abiodun vs. Adehin (1962) 2 SCNLR 305; University Press Limited vs. I. K. Martins (Nig.) Ltd (2000) 4 NWLR (Pt. 654) 584; Odukwe vs. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339.

Against this background of the law therefore, it is for the Respondent as Plaintiff before the lower Court to establish that she was indeed discriminated against by the Appellant with regards to her employment on the basis of her sex, and that she was a nursing mother. In resolving this crucial issue, the lower Court in his judgment, particularly at pages 513 to 514 of the records, observed that:
“It has been argued for the Defendant that the Claimant did not adduce evidence of how other nursing women in the employment of the Defendant were treated differently from her or vice versa. It suffices that the Claimant has shown how she was treated differently from other employees (her team members) who were not woman or nursing mothers in the determination of targets for the year. The Defendant has not adduced evidence to controvert that of the Claimant that her target for the year was well over and above that of her other team members target in spite of the peculiar but legitimate absence from work for half of that same year. She was clearly not treated with equality with other team members. It would seem like a case of setting her up to fail in the achievement of the set objectives and punishing her for being a nursing mother. Had she been given the same target as her other team members in the circumstances, without regard for the legitimate time spent away from work, this would still be held to be discriminatory. For it would be a case of discouraging young women from becoming mothers and taking time away from work on maternity leave, in effect discouraging them from exercising a right that is peculiar to their sex as women. What is worse the Claimant was given a target far above that of her other team members. I will have to hold that this decision of the Defendant could only have been informed by prejudice against the Claimant on the basis of her status as a woman and nursing mother.
On the evidence analysed above, I must find and hold that the Claimant was discriminated against on the basis of her sex and the fact that she was a nursing mother.”

It is trite that the evaluation of evidence and the ascription of probative value to such evidence reside with the Court of trial, due to its onerous privilege of having watched the witnesses give evidence first hand, watched their demeanor in the witness box and assessed the credibility of the witnesses. The elementary principle long established is that where the trial Judge unquestionably evaluates the evidence before it, and justifiably appraises the facts, then it will not be the business of the appellate Court armed only with the cold records to interfere and to substitute its own views for that of the trial Court. See the case of Igago vs The State (1999) 14 NWLR (Pt. 637) 1; Woluchem vs. Gudi (1981) 5 SC 291. Nonetheless, the Court of Appeal is bound to interfere with the findings of the trial Court where it is found to be perverse, i.e., where it is speculative, and not based on any evidence, where the Court took into account matters which it ought not to have taken account of, and where the Court is said to have shut it eyes to the obvious. See Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630; Osuji vs. Ekeocha (2009) 16 NWLR (pt. 1166) 81.

It is the contention of the learned counsel for the Appellant that the finding of the lower Court was perverse, as the totality of the evidence adduced showed that Respondent was never discriminated upon by the Appellant by reason of her sex and or as a nursing mother. Rather learned counsel is of the view that Respondent was accorded extra privileges by the Appellant, and being punished for enforcing its rights as contained in the Respondent’s letter of employment and staff Handbook. The Respondent on the other hand contend that the findings of the trial Court were well reasoned, methodical and logical and the trial Court entitled upon the unchallenged evidence adduced in making the findings contained at pages 435 to 436 and 440 to 443 of the Record of Appeal.

I have with the arguments of the learned counsel on both sides in mind critically examined the evidence adduced, and the findings of the lower Court on the issues canvassed. It is thus clear from the records, that the trial Court dutifully as submitted, understood the Respondent’s complaint against the Appellant. Set out the evidence laid before it and evaluated same ascribing value to the testimonies before it in arriving at its finding that Respondent was indeed discriminated against on ground of her sex and being a nursing mother, consequent upon which her performance was poorly appraised for the year 2005 and was thereby harassed into resigning her employment with the Appellant. The Court also found that the resignation of the Respondent was involuntary and therefore construed as a dismissal in law and therefore wrongful. I understand my duty especially where the trial Court has satisfactorily carried out its function of properly and dispassionately appraising the evidence given by both parties, to affirm the decision reached. I have not been able, against the backdrop of the evidence adduced been convinced on the pervasive nature of the lower Court’s findings, being complained about, and would seriously avoid interfering with the beautiful exercise of evaluation by the lower Court. I would in the circumstance determine the issue in favor of the Respondent and against the Appellant.

ISSUE 3.
Whether the award of N5 million as general damages in favour of the Respondent by the trial Court was right in law, despite the manifest and glaring absence of any credible evidence adduced by the Respondent entitling her to such award of damages. 

The learned counsel alluded to portions of the Judgment of the lower Court at pages 517 – 519, and 523 – 524, positing that the trial Court’s award of damages was based on the Courts finding that the Respondent was discriminated against by the Appellant on grounds of her sex and as a nursing mother. Relying and adopting his arguments in respect of issue two, counsel is of the view that the trial Court ought to in line with the decision of Fajemirokun vs. Commercial Bank (Credit Lyonnais) Nigeria Ltd. (2002) to NWLR (Pt. 774) 95 to have dismissed the case. The reason as held in the case cited is because the respondent failed to put in sufficient evidence establishing the facts alleged and must therefore fail. He submitted also that the Respondent’s claim for general damages relates to her allegation of constructive dismissal as a result of the discrimination meted to her. He stated that there was no evidence to the effect that respondent was threatened into resigning, nor was there evidence to show that the resignation was involuntary. He referred to Exhibit C7 which does not depict any compulsion, rather stating that Respondent admitted to the fact that she was never dismissed under cross examination. He further submits that the Respondent was compensated twice against the legal position stated in the case of Kopek Construction Ltd vs. Ekisola (2010) 3 NWLR (pt. 1182) 618 @ 661 and 643- 644. He now wants the Court to interfere with the award of damages made in favor of the Respondent as same was premised on wrong application of the law, and also runs contrary to evidence.

In his response on the issue, the learned counsel for the Respondent as a preliminary point argued that no issue for determination was raised in respect of Ground 5 and since the appeal does not turn on reliefs 3 and 4, Appellant’s argument lacks basis and should be discountenanced. Furthermore, counsel argued that an appellate Court should ordinarily not interfere with the exercise of the discretionary powers of the lower Court in its assessment of general damages unless the award is proven to have been made upon wrong principles of law such as taking into consideration some irrelevant facts or leaving out some relevant facts. The case of Obere vs. The Board Management Eku Baptist Hospital (1978) 6 – 7 SC (reprint) 12 @ 19 was cited in support of the legal principle.

The resolution of this issue is dependent on the resolution of the second issue. The second issue having been determined against the Appellant, this issue must likewise be so determined in favor of the Respondent.

Having determined all the issues against the Appellant, this appeal must and fails for lack of merit and is hereby dismissed. The Judgment of (Mrs) Justice Y. A. ADESANYA in Suit No. ID/757/2007 between Ndidi Adegbite vs. Standard Chartered Bank Nigeria Limited delivered on the 12th of October, 2012 is hereby affirmed. There shall be costs of N50,000 to the Respondent.

Cross-Appeal.

The Cross-appellant in respect of the Notice of Cross-Appeal dated the 7th of May, 2015 and filed on the 11th of May, 2015 with the leave of this Court obtained on the 5th March, 2015 raised a single ground of appeal. From the sole ground of appeal raised, a single issue was formulated by the Cross-appellants for the determination of the Cross-appeal.

It reads:
Whether from the totality of the facts as found by the lower Court, the award of N5, 000, 000.00 (Five Million Naira) general damages by the lower Court was not too low to compensate the Cross-appellant for the violation of her constitutional right.

Promoting arguments with respect to the sole issue crafted, learned counsel for the Cross-appellant referred to the case of the Minister of Internal Affairs vs. Shugaba Darman (1982) 3 NCLR 915 at 1004 to the effect that:
“Ordinarily where the damages are claimed in vindication of the violation of a right, and where the element of damages is a non pecuniary loss, the damages are said to be at large. In practical terms, it is absolutely impossible to restore lost dignity, pain, humiliation and anxiety by means of pecuniary compensation. Nonetheless the Court has made effort to evaluate the worth howbeit inadequate. But the principle of restituo in integrum would hardly seem to apply and the concept of value has not been applied to non pecuniary harms. But where the cause of action is one actionable per se, although the interest protected may not have a precise pecuniary value, the Court is free on proof of the commission of the wrong to award substantial damage.”

Counsel listed factors to be considered to include, humiliation, annoyance, anxiety, deprivation. See Shugaba’s case at page 1009; financial loss, ordeal and deprivation, abhorrence of society and the law for gross violation of human rights: See Odogu vs. AG Federation and Ors (1996) 6 NWLR (pt. 456) 508 @ 518, evidence of the violation and Cross-appellants pain and suffering as adduced by the Cross-appellant amongst many others. Though conceding that the trial Court took into consideration nature of the breach and the circumstances, the enormity of the breach and the damage suffered by the Claimant, her status in life pain and anxiety were not applied. He submits on the authority of Odogu (supra) that the appellate Court can intervene and increase the award of damages where it is manifestly low. It is his contention that the award of Five Million Naira was manifestly low, and conclusively urged the Court to resolve the sole issue in the Cross-appellant’s favor, allow the cross-appeal, and review the general damages awarded by the lower Court to N50, 000, 000.00

The Cross-respondent in his Brief filed also identified a single brief in response to the cross appeal. It is;
“Whether having regard to the relevant principles of law on the assessment and award of damages and the entire circumstance of the appeal, this honorable Court can upset the lower Courts award of damages in favor of the cross appellant?”

The submissions of the learned counsel for the Cross-respondent spans from pages 15 to 26 of his Brief. Learned counsel drew the attention of the Court to the decisions of Ariyo vs. Adewusi (2010) LPELR – 3808 per Nwodo JCA (of blessed memory), Enterprise Bank Plc vs. Dan Dollars Oil Nigeria Ltd. (2015) LPELR-24510 (CA) per Agube JCA, and submits that the cross appellant has not demonstrated her entitlement to have the award of damages made by the lower Court reviewed upwards, as no exceptional circumstance to influence the Court that the award was defective. Counsel referred to the lower Courts decision on the issue at pages 517 to 519, and 523 to 524 on the circumstance that led the lower Court to grant the damages. He restates that the cross appellant having failed to prove his case of discrimination, does not qualify for the award of damages given. Mr. Oladipo by way of a reply to the cross respondent’s argument, states that the case of Ezomo vs. AG of Bendel State (1986) 4 NWLR (pt. 96) 449 cited by the cross respondent is inapplicable to the instant case. He proceeded to state that the rest of the body of the cross respondent’s arguments are a direct dubbing of his earlier submissions which are not helpful to his case.

I find the issue crafted by the cross respondent more stimulating and directly encapsulating the essence of the cross appeal. I therefore elect to be guided by the said issue formulated by the cross respondent. Indeed, the grouse of the cross appellant in this appeal is the award of Five Million Naira made to the cross appellant by the lower Court as being too low to compensate her for the breach of her fundamental right to freedom from discrimination. In relying on the case of Odogu vs. AG Federation (supra), counsel submitted that some other relevant factors were not considered by the lower Court. The crucial question therefore arising for determination would be whether this Court in the circumstance can review the award of damages upwards made by the lower Court as contended by the cross appellant.

The settled legal position is that the award of damages by the trial Court can only be interfered with or upset by the appellate Court if that Court feels that the trial Court acted upon wrong principles of law or that the amount awarded was extremely high or low, and not because he could have awarded a lesser or more amount had he determined the case. See Williams vs. Daily Times (1990) 1 NWLR (Pt. 124) 1, Enterprises Bank Plc vs. Dan Dollars Oil Nigeria Ltd (supra). The lower Court at page 45 of its Judgment took into consideration the nature of the breach, the circumstances, the enormity of the breach and the damage suffered by the claimant, the loss of job and the indignity of leaving the Appellant’s job in awarding the sums of Five Million Naira as general damages. I am of the considered view that the trial Court having weighed and taken into consideration the material aspects of the breach, this Court would be reluctant reassessing the amount of damages awarded by the trial Court. The issue is resolved against the cross appellant.

Hence the sole issue in the cross-appeal having been so determined, the cross appeal fails and is dismissed for want of merit. I make no order as to costs.
Cross appeal dismissed.

M. A. OWOADE, J.C.A.: I read in advance the Judgment delivered by my learned brother Hamma Akawu Barka, JCA.

My learned brother has painstakingly dealt with the Issues in the Appeal and the Cross – Appeal.

I agree with the reasoning and conclusion, I also agree that the Appeal and Cross-Appeal be dismissed.

I abide with the Orders as to Costs.

C. N. UWA, J.C.A.I agree with the Judgment of my learned brother, Hamma Akawu Barka, JCA in holding that the appeal is without merit and the order dismissing same.

I am at one also with the decision in the cross appeal with the order dismissing same. I abide with the order made as to costs in the appeal and cross appeal.

Appearances:

  1. A. Adegbonmire, SAN with him, T. Ogunrinde (Miss.) For the Appellant
  2. A. B. Oladipo Esq., with him, Jude Ezea, Esq., and E. A. Oset, Esq., For the Respondent



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

2 Comments

  • Precious Nwadimuya

    Great decision and and certainly some progress in the women emancipation struggle. As for your note on the enforceability of the freedom from discrimination discrimination against individuals, it is my submission that the reference in Lafia Local Govt. v. Gov., Nasarawa State [2012] 17 NWLR (Pt. 1328) 94 at 127-128, paras. F-G, per Rhodes-Vivour, JSC, is a merry obiter dictum which could not have bound this court.

  • Stephen Azubuike

    It is settled that freedom from discrimination is only enforceable against the State. Authorities abound.

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