COMRADE IHANYI OMEJE V. COMRADE (CHIEF) UCHE AGBOEZE & ORS. (2012)

COMRADE IHANYI OMEJE V. COMRADE (CHIEF) UCHE AGBOEZE & ORS.

(2012)LCN/5588(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of July, 2012

CA/E/369/2008

RATIO

LEGISLATION: CONSISTENCY TEST

It is trite law that under the consistency test, the validity of any law is determined by its consistency with the provisions of the supreme law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall be the extent of the inconsistency be void, in support of this proposition; Military Governor of Ondo State v. Adewimo (1988) 3 NWLR (Pt.82) 280. Also, see section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999; Adisa v. Oyinwole and Attorney-General, Ondo State v. Attorney-General, Federation & Ors. (2002) FWLR (Pt.111) 1972, (2002) 9 NWLR (Pt.772) 222, per Uwaifo JSC. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.

JURISDICTION: WHETHER AN ACT OR LAW CAN CURTAIL THE JURISDICTION OF THE STATE HIGH COURT

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

COMRADE IHANYI OMEJE (the Chairman, N.U.T. Nsukka Local Government Area Branch) Appellant(s)

AND

1. COMRADE (CHIEF) UCHE AGBOEZE (The Chairman N.U.T. Enugu State Wing)
2. COMRADE (CHIEF) DR. MIKE IKE ENEH
(The Secretary, N.U.T. Enugu State Wing)
3. COMRADE NZE VINCENT E. ARUA
(The 2nd vice Chairman, N.U.T. Enugu State Wing)
4. COMRADE THERESA EZE
(The 3rd Vice Chairman, N.U.T. Enugu State Wing)
5. COMRADE PAUL NNAJI
(The Treasurer NUT Enugu State Wing)
6. COMRADE S. S. EGBO
(The Secretary NUT Enugu East Local Govt. Area Branch)
For themselves as the representatives of the Enugu State Wing Executive Council of the NUT; The Enugu State Wing conference of Delegates of the NUT; The Enugu State Wing emergency conference; and the Enugu State wing standing committee of the NUT., For and on behalf of the aforesaid Organs of the N.U.T, Enugu State Wing)
7. The Nigeria Union of Teachers (N.U.T.) Respondent(s)

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Enugu State High Court sitting at Nsukka delivered by A. O. Anidi, J. on the 29th September 2004.
The facts leading to this appeal are stated thus:
The Appellant who is a Teacher was the chairman of Nsukka Branch of the Nigeria Union of Teachers (NUT) before he was suspended for four years by the defendants. The Plaintiff/Appellant caused a writ of summons to be issued against the defendants. The 1st to 5th Defendants/Respondents are members of the Enugu State Executive Committee of the aforesaid Union, the 6th Defendant/Respondent is the Enugu East Local Government Area Branch of the NUT and the 7th Defendant/Respondent is the Union itself. The Plaintiff claimed that his purported suspension was done in violation of the Constitution of the NUT.
The Plaintiff prayed the court as follows:-
2.02 WHEREFORE the plaintiff claims against the defendants as follows:
(a) A declaration that the four-year suspension order slammed on the plaintiff to cease from being the Chairman of the Nsukka Local Government Area Branch of the NUT for being purportedly found guilty of financial impropriety among other things by the 1st-5th defendants is illegal, unconstitutional null and void made with bias and prejudice and in violation of the Constitution of the Nigeria Union of Teachers (NUT).
(b) An Order of injunction restraining the defendants by themselves and operating as and/or through the Enugu State Wing Executive Council of the NUT, Enugu State Wing conference of delegates of the Union and their servants, agent, privies or anybody acting for and or on their behalf whomsoever and howsoever from ratifying and/or carrying out the suspension order, or ordering the plaintiff to surrender all the books, documents and property of the Nsukka Branch of the Union in his possession as its chairman or conducting any election or appointing any interim or caretaker Chairman to replace him as the Chairman of the said Branch or dissolving the Nsukka Branch Executive Council of the Union, or doing anything that will prevent him from functioning as the Chairman of the said Branch and running its affairs in accordance with the constitution of the Union.
The Defendants/Respondents through their counsel filed a Notice of Preliminary Objection dated 20th day of May 2003 and filed same day. He prayed the court as follows:-
(a) That the High Court of Enugu State has no jurisdiction to entertain this suit.
(b) That this action is premature and therefore incompetent.
At the hearing of the Preliminary Objection, counsel withdrew the second Objection and same was struck out. After argument by both counsel the trial court struck out the suit on the ground that it is an intra Union dispute which is not justiceable in the State High Court.
Dissatisfied with the decision of the trial court, the Plaintiff appealed to this court and filed 5 grounds of appeal. The appeal was heard on 23rd April 2012. In compliance with the Rules of this court the parties filed and served their briefs of argument. Learned counsel to the Appellant Mr. C. S. Agbo informed the court that the Appellant’s brief of argument is dated 26/9/08 and filed on 3/10/08, he also stated that he filed a Reply brief dated 5/6/09 and filed on 8/6/08, he also filed a list of additional authorities dated 28/1/11 and file on 8/2/11. Learned counsel to the Appellant adopted these processes, relied on them and urged the court to allow the appeal and remit the suit to the Enugu State High Court of Justice for hearing of the suit on the merit. Counsel to the Respondents Chief M. E. Eze informed the court that the Respondents’ brief of argument is dated and filed on 22/5/09, Counsel adopted and relied on the said brief and urged the court to dismiss the appeal for lacking in merit.
From the five grounds of appeal the Appellant formulated three issues for determination, the issues are stated thus-
(i) Whether the provision of the Trade Dispute Act 1999, the Trade Union Act of 1990, Section 6(6) (b) and 271(1) of the 1999 Constitution of the Federal Republic of Nigeria and the numerous Supreme Court cases cited in this case were properly and correctly interpreted and applied by the learned trial High Court; and if no, was its declination of jurisdiction to entertain this case proper.
(ii) Whether Section 20(1) of the Trade Dispute Act of 1990 and Decree No.47 of 1992 ought not to have been declared inconsistent with Sections 1(1) and (3), 6(6) (b) and 272(1) of the 1999 Constitution of the Federal Republic of Nigeria by the learned trial Judge and therefore null and void to the extent of their inconsistencies.
(iii) Whether the learned trial Judge properly and duly considered all the issues presented to the Honourable court below for determination by the Appellant; And if no, can the judgment reached by the learned trial court below stand as being a valid judgment.
On his part learned counsel to the Respondents submitted three issues for determination based on the Appellant’s five grounds of appeal, the issues are :-
(1) Whether the trial court was right in relying on the Trade Dispute Act 1990 (as amended by Decree No.47 of 1992) to strike out his suit.
(2) Whether Section 20 (1A) of the Trade Dispute Act 1990 (as amended by Decree No.47 of 1992) is inconsistent with Sections 6(6) (b) and 272 of the 1999 Constitution of the Federal Republic of Nigeria.
(3) Whether the trial court properly considered the issues before it.
The issues formulated by the Appellant and the Respondents are virtually the same as such the issues as formulated by the Appellant would be considered in the determination of this appeal.

Issue No.1
Whether the provisions of the Trade Disputes Act of 1990, the Trade Union Act of 1990, Sections 8 (6) (b) and 271 (1) of the 1999 Constitution of the Federal Republic of Nigeria and the numerous Supreme Court cases cited in this were properly and correctly interpreted and applied by the learned trial court; and if no was it declination of jurisdiction to enter the case proper.
On the above issue counsel to the Appellant submits that the trial High Court completely failed to interpret and apply the relevant provisions of the Trade Dispute Act of 1990, the Trade Union Act of 1990 and Sections 6 (6) (b) and 272 (1) of the 1999 Constitution of the Federal Republic of Nigeria. The trial court also failed to consider and apply the numerous Supreme Court cases cited in this case and the combined effect of these failures is that the Honourable Court’s declination of jurisdiction to entertain the Appellant’s case is improper in law and this caused serious miscarriage of justice. Counsel to the Appellant argues that the subject matter of the case is not a trade dispute at all to remove it from the jurisdiction of the trial court since neither the provisions of the Trade Dispute Act Cap.432 Laws of the Federation 1990 nor the provisions of the Trade Dispute Act (Amendment) Decree, 1992 are applicable to the case. That the subject matter of the case falls outside the confines, contemplation and definition of a trade dispute as defined by the Trade Dispute Act reference to Section 20(1) (a) and (b) and (2) of the Trade Dispute Act. That the provisions of the Trade Dispute Act apply to trade disputes as contemplated and defined by the Trade Dispute Act, 1990, reference made to Section 1 (1) and (2) of the Trade Dispute Act.
Appellant’s counsel submits that the subject matter of this case involves the determination of the civil rights and obligations of the Appellant vide the interpretation of the Union’s Constitution and not a trade dispute under any guise at all as to invoke the jurisdiction of the National Industrial Court. That the jurisdiction of the National Industrial Court is usually invoked where the subject matter of litigation involves the making of an award for the purpose of settling a trade dispute, the interpretation of any collective agreement or any award made by an arbitration tribunal or by the court or terms of settlement of any trade dispute under Section 7 of the Trade Disputes Act; Section 20(1) (a) and (b) of the Trade Disputes Act, 1990.
Counsel to the Appellant contends that this case did not and does not involve any of the aforementioned matters capable of invoking the jurisdiction of the National Industrial Court. That the National Industrial Court is a special Reference Court established to handle proper trade disputes that are referred to it by the appropriate authority as the National Industrial Court does not have any original jurisdiction to entertain any trade dispute.
Further, counsel to the Appellant argues that even where there is a proper trade dispute, such disputes must be properly referred to the National Industrial Court by the appropriate authority before the jurisdiction of the National Industrial Court can be invoked reference made to Section 4-8, 12-13, 16, 20(2) and 35 of the Trade Dispute Act; WESTERN STEEL WORKERS LTD. & ANOR. v. IRON AND STEEL WORKERS UNION OF NIGERIA AND ANOR (1987) 2 SC PP. 42-44; IFEDIORA v. UME (1988) 3 SCNJ (Pt.2) 192 at 197.
That the subject matter of this case is not also an Intra Trade Union Dispute as propounded by the defence in their preliminary objection at the lower court. The subject matter of this case did not and does not fall within the definition of a Trade Union dispute by the Trade Union Act of 1990 for the purposes of the Trade Union Act and therefore the provisions of the Trade Union Act of 1990 are not applicable to the case. That the subject matter of this case is not in any way connected with the Appellant’s employment or non employment or his terms of employment, or his conditions of service or with the restructuring and management of the union to qualify it as a trade dispute under the Trade Union Act of 1990.
Furthermore counsel to the Appellant submits that by virtue of the aims and objectives of the Nigerian Union of Teachers as contained in their constitution, the Union is a voluntary Welfare Association and does not qualify as a Trade Union. That it is quite clear that its registration under the Trade Union Act merely gave it a statutory flavour and a legal personality to sue and be sued in its name but does not qualify it as a Trade Union as specified by law and this removes it from the application of the Trade Dispute Act, 1990 and the Trade Union Act 1990 as it relates to trade dispute and trade union disputes.
Counsel to the Appellant contends that any complaint bothering on the violation or infraction of the Constitution of any trade union or voluntary organization is not a trade dispute or a trade union dispute simpliciter but involves the civil rights and obligations of the victim and the determination of the extent of such civil rights and obligations of such a member comes squarely within the confines of the Constitution of the Federal Republic of Nigeria with jurisdiction vested in every High Court of a State to determine such matter and not the National Industrial Court reference made to Section 6 (6) (b) of the 1999 Constitution and Section 272(1) of the same Constitution.
ELUFIOYE & ORS. v. HALILU & ORS (1993) 7 SCNJ (Pt.2) 347.
Finally after citing and referring to several authorities in support of his contention that the subject matter of this case is neither a trade dispute nor an intra trade dispute but rather determination of the civil rights and obligations of the Appellant. Counsel urged that the issue be resolved in favour of the Appellant.
In reply to the submissions on Issue No.1, Learned Counsel for the Respondents submits that the facts of the case as distilled from the endorsement to the Writ of Summons showed that the Plaintiff/Appellant who was the Nsukka Local Government Area Chairman of the Nigerian Union of Teachers was suspended for four years for alleged financial impropriety. The defendants who are the Enugu State Executive Committee of the NUT and the Union itself were sued because the Plaintiff/Appellant alleged that their actions were in violation of the Constitution of NUT. The Nigerian Union of Teachers is a registered Trade Union. The dispute between the Appellant is internal as it is between the Plaintiff and members of the Union inter se and the Union itself. It is therefore intra Union dispute.
Counsel to the Respondents referred to Decree No.47 of 1992 and submits that this case being an intra union dispute is caught by the provision of Section 1A(1) of Decree No.47 of 1992. That the use of the word “any” to quality inter or intra union dispute takes the matter away from the normal Trade Dispute as defined in the Trade Dispute Act 1990. Counsel argues that the intention of the law makers is to widen and broaden the scope of disputes which are not justiceable in the regular courts, reference made to UDOH & 2 ORS. v. OHMB 71 OR, (1993) 7
SCNJ (Pt.2) 436 at 444; IME EKONG v. GODFREY OSIDE & ORS. (2004) ALL FWLR (Pt.216) 562 at 571; MADU v. N.U.P. (2001) 16 NWLR (Pt.739) 34.
Counsel to the Respondents referred to the submissions of the Counsel to the Appellant at page 6 paragraph 4.07 of the Appellant’s brief that the present case involves the determination of the civil rights and obligation of the Appellant vide the interpretation of the Union’s Constitution and not a trade dispute as to invoke the jurisdiction of the National Industrial Court. Counsel to the Respondents contends that this argument is running against the current of a plethora of judicial authorities reference made to Madu’s case (supra) at page 362 paras D-E. Counsel to the Respondents submits that the Appellant’s counsel submission that assuming that the present case is a trade dispute that until and unless it is referred to the National Industrial Court by the appropriate authority the court has jurisdiction. That he further submitted where the Minister refuses or fails or neglects to so refer such trade dispute to the National Industrial Court (sic) (may be counsel meant Industrial Arbitration Panel), the dispute becomes justiceable by other courts like the High Court or the Federal High Court, counsel to the Respondent submits that counsel to the Appellant by this submission is merely flying a kite. The clear and unambiguous provision of Section 1(A) (1) of Decree No.47 of 1992 does not require any strenuous interpretation reference made to UDOH & 2 ORS. v. OHMB & 2 ORS. (1993) 7 SCNJ 436, Counsel to the Respondents submit that the case of WESTERN STEEL WORKS LTD. v. IRON AND STEEL WORKERS UNION OF NIGERIA (1987) 2 SC 42 cited by learned counsel for the Appellant does not apply to the instant case.
Counsel further submits that the submission of the Appellant’s counsel that the Nigerian Union of Teachers does not qualify as a Trade Union qua Trade Union is untenable. That the Union is registered under the Trade Union Act, reference made to 3rd schedule to the Trade Union Act Cap 437 laws of the Federation (1990) number 41 of the listed Unions reference made to MADU v. N.U.P. (supra).
Finally counsel urged us to hold that the trial court was amply justified by law to have struck out this case on the ground that it had no jurisdiction.
In reply on points of law counsel to the Appellant submits that counsel to the Respondents committed an error of interpretation by lifting the provisions of Section 1A(1) of Decree No.47 of 1992 which amended Section 20 of the Trade Disputes Act of 1990 out of con and making a strenuous fair weather of the same in isolation from the provisions of the substantive statute. That it is trite law that in the interpretation of a statute, the entire provisions of the statute are read together and cumulatively and not taken piecemeal and interpreted out of con.
Counsel argues that the provisions of Section 1A (1) of Decree No.47 of 1992 as clear and unambiguous as it is, created controversies rather than solving any. That Section 1 A (1) of the Decree aforesaid introduced another specie of trade disputes which did not fall within the confines or meaning of the trade disputes as defined in the substantive enactment without extending or amending the jurisdiction of the National Industrial Court as to confer the jurisdiction or the original jurisdiction on it to try and determine the new specie of trade disputes so introduced.
Counsel to the Appellant contends that the authority of EKONG v. OSIDE (supra) cited by counsel to the Respondents can be distinguished from the present case in this appeal, that even though this case was decided under the 1999 Constitution, the issue presented to this Honourable court for determination is quite narrow in scope and did not include the general interpretation of the Trade disputes Act 1990 and the Trade Union Act 1990 as to determine whether the claim of the Appellant at the trial Court was a trade dispute according to the definition of trade dispute in the substantive Act and whether the National Industrial Court even had the jurisdiction or the original jurisdiction to entertain the Appellant’s case in the first place.
Further, counsel contends that it did not also include the resolution of the problems and controversies created by Section 1A (1) of Decree No.47 of 1992 which ousted the jurisdiction of the High Court to entertain intra union and constitutional disputes among others without amending the substantive law to extend the definition of trade disputes to include these new disputes aforesaid and also extend the jurisdiction of the National Industrial Court to encompass these newly introduced trade disputes. That it did not include the issue of supremacy of the 1999 Constitution by virtue of Section 1(1) and (3) of the Constitution.
Counsel submits that the case of N.U.R.T.W v. OGBODO (1998) 2 NWLR (Pt.537) 189 at P.200 which formed the basis of the decision of this court in EKOWU’S case and the case of MADU v. N.U.P (2001) 16 NWLR (Pt.739) at P.346 are cases which arose and were decided under the 1979 Constitution when Military Decrees limit and amend the Constitution. That the cases relied on by counsel to the Respondents in paragraphs 4.06 4.09 of the Respondents’ brief were cases that arose during the Military era when Military abberrative and draconian regulation and jurisprudence held sway with ouster clauses that always run counter to tenets of the Constitution forming part of most of these draconian decrees. Counsel contends that such cases cannot form the basis for the decision in any case that arose after the 29th day of May, 1999 in which such draconian ouster clauses like Section 1A (1) of Decree No.47 of 1992 are called up for question and or determination vis-a-vis the supremacy of the 1999 Constitution as it relates to the limitation of jurisdiction of our courts. Further, counsel to the Appellant submits that the trial court was wrong in declining the jurisdiction conferred on it by Section 272(1) of the 1999 Constitution which Section 1(a) (1) of Decree No.47 of 1992 wrongly circumscribed in violation of Section (1) (3) of the 1999 Constitution afortori where the National Industrial Court was not conferred with jurisdiction or the original jurisdiction to entertain the subject matter of the case.
The complaint of the Appellant in this issue is that the Enugu State High Court by virtue of the provisions of Section 272(1) of the Constitution of the Federal Republic of Nigeria has jurisdiction to entertain the Appellant’s suit as opposed to the Ruling of the lower court that it lacks the jurisdiction to entertain same.

Going by the facts of the Appellant’s case before the trial court I have no iota of doubt that the case is intra Union dispute which place it squarely within the provision of Section 1A(1) of Decree No.47 of 1992. The section provides thus:
“1A(1) subject to the provisions of subsection (3) of section 20 of this Act, no person shall commence an action, the subject matter of a trade dispute or any intra union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void”
The use of the word “any” to qualify inter or intra union disputes takes the matter away from the normal trade disputes as defined in the Trade Dispute Act 1990. It is clear that the intention of the lawmakers is to widen and broaden the scope of disputes which are not justiceable in the regular courts. This has been the trend in all the cases involving the provisions of Section 1A(1) of Decree No. 47 of 1992. See the case of UDOH & SONS v. OHMB & or (1993) 7 SCNJ (Pt.2) 436 at 444; NURTWU v. OGBODO (1998) 2 NWLR (Pt.537) 189. IME EKOWG v. GODFREEY OSIDE & SONS (2004). ALL FWLR (Pt.216) 562 at Section 1; MADU v. N.U.P. (2001).
To me these decisions are sound and in consonance with the prevailing laws of the time.
However, in the recent case of NATIONAL UNION OF ELECTRICITY EMPLOYEES AND ANOR. v. BUREAU OF PUBLIC ENTERPRISES 2010 ALL FWLR (Pt.525) 201 the Supreme Court was invited to pronounce on whether Decree 47 of 1992 which vests jurisdiction in the National Industrial Court to hear and determine trade disputes (including inter and intra union disputes) is inconsistent with Section 272 of the 1999 Constitution.
The Supreme Court through Chukwuma-Eneh JSC considered the provisions of Section 2 of the Trade Disputes (Amendment) Decree No.47 of 1999. Section 272(1) of the 1999 Constitution, Section 315 of the 1999 Constitution and Section 316(1) of the 1999 Constitution and pronounced thus:
“I have placed the above provisions of various enactments very handy and for ease of reference in discussing the constitutionality of the exclusive jurisdiction vested in the National Industrial Court to hear and determine trade disputes under the Decree No.47 of 1992, and so determine whether Decree No.47 of 1999 being an existing law and deemed to be an Act of the National Assembly by virtue of Section 315(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 in conferring exclusive jurisdiction over trade disputes as in this matter, to the National Industrial Court, is in conflict with section 272 of the Constitution of the Federal Republic of Nigeria, 1999.”
The appellants have as above, submitted that the jurisdiction of the State High Court under Sections 272 of Constitution of the Federal Republic of Nigeria, 1999, has been subject to both section 251 of the 1999 Constitution, and other provisions of the said Constitution and that by “other provisions of the Constitution” in Section 272 of the Constitution of the Federal Republic of Nigeria, 1999, that an Act of the National Assembly as the instant Decree No.47 of 1992 can confer exclusive jurisdiction on a court over a matter within its legislative list or competence and so oust the jurisdiction of the State High Court. The Respondent in debunking the submission has acknowledged the supremacy of the Constitution as the supreme law of the land which cannot be subject to any other enactments except by its express provision: Adisa v. Oyinwole. So that all laws have to be made in compliance with it.
It is trite law that under the consistency test, the validity of any law is determined by its consistency with the provisions of the supreme law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall be the extent of the inconsistency be void, in support of this proposition; Military Governor of Ondo State v. Adewimo (1988) 3 NWLR (Pt.82) 280. Also, see section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999; Adisa v. Oyinwole and Attorney-General, Ondo State v. Attorney-General, Federation & Ors. (2002) FWLR (Pt.111) 1972, (2002) 9 NWLR (Pt.772) 222, per Uwaifo JSC.

Again, it is trite law that the jurisdiction of the State High Court as conferred by the Constitution can only be curtailed or abridged or even eroded by the Constitution itself and not by an Act or Law respectively, of the National Assembly or State House of Assembly, meaning that where there is conflict in that regard between the provisions of the Constitution and the provisions of any other Act or Law of National Assembly or House of Assembly respectively, the Constitution shall prevail.
If I may emphasize excepting as I have observed above by direct and clear provision in the Constitution itself to that effect, I have made the foregoing pronouncements bearing in mind that it has come to be so since our return to constitutionalism. Again, particularly since the return of democratic dispensation to this country and the end of the military era. So that Decrees are no longer the fundamental laws of the land. I now proceed to decide whether the provisions of the Trade Disputes Act (as Amended) that is Decree No.47 of 1992, is consistent with any of the provisions of the constitution. I have before now set out in extensor, the provisions of section 272(1) of the constitution of the Federal Republic of Nigeria, 1999, as well as Decree No.47 of 1992. The provisions of Section 272(1) are plain and the phrase “subject to the provisions of this constitution” is used to the effect that the jurisdiction of the State High Court can only be restricted by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and not as is being urged by the appellant, by any Act of the National Assembly otherwise specifically conferring exclusive jurisdiction to a court or whatever to override the jurisdiction of the State High Court.
I digress to say that I have in my reasoning above taken due care of the implication of the said paragraphs 4.38 and 4.39 of the appellants’ brief of argument. I do not agree with them that nothing has changed. The least that has changed is that the State High Court under section 272 now has the power to deal with trade disputes it has previously lacked.
It means therefore that by Decree No.47 of 1992, arrogating to the National Industrial Court a superior court of record as has been contended by the appellant, does not by that token make the said National Industrial Court a superior court of record without due regard to the amendment of the provisions of Section 6(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999, which has listed the only superior courts of record recognized and known to the Constitution of the Federal Republic of Nigeria, 1999 and the list does not include the National Industrial Court; until the Constitution is amended, it remains a subordinate court to the High Court and I cite with approval the Court of Appeal decision in Attorney-General, Oyo State v. Nigeria Labour Congress (2003) 8 NWLR (Pt.821) 1 at 3. Indeed, a case on all fours with the instant case to the same effect.
In summary, the implication of conferring exclusive jurisdiction in trade disputes on the National Industrial Court is to exclude the wide powers of the State High Court thus, causing the conflict between Decree No.47 and section 272 of the Constitution of the Federal Republic of Nigeria, 1999 and as I have outlined above, any inconsistency with Section 272 of the Constitution of the Federal Republic of Nigeria, 1999, in that regard is void to the extent of the inconsistency. This conclusion has knocked the bottom off the defendants/appellants’ case in that regard as I declare Decree No.47 null and void being inconsistent with Section 272 of the Constitution of the Federal Republic of Nigeria, 1999.”
Going by the above pronouncement of the Supreme Court Decree No.47 of 1992 which confers exclusive jurisdiction on the National Industrial Court has been declared null and void being inconsistent with Section 272 (1) of the Constitution of the Federal Republic of Nigeria 1999, therefore the Enugu State High Court has jurisdiction to entertain the claim of the Appellant, Issue No.1 is accordingly resolved in favour of the Appellant against the Respondents.

Issue No. 2 has been thoroughly considered in the determination of issue No.1 and accordingly Decree No.47 of 1992 has been declared null and void being inconsistent with section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999. It is resolved in favour of the Appellant. Issue No.3 is of no moment since issues 1 & 2 are resolved in favour of the Appellant against the Respondents.
In the result this appeal succeeds. It is hereby allowed. The Ruling of the trial court delivered by A. O. Anidi, J. on 29/9/2004 is hereby set-aside. In its place the suit is ordered to be remitted to the Chief Judge of Enugu State to be tried by another judge of the Enugu State High court.
N30,000 costs awarded to the Appellant against the Respondents.

ADAMU JAURO, J.C.A.: I have the privilege before today of reading in advance the lead judgment of my learned brother, A. J. Abdulkadir, J.C.A.
I am in full agreement with the reasoning and conclusions contained in the said judgment, which I also adopt as mine.
I abide by all orders made in the said judgment, including that of costs.

SAMUEL CHUKWUDIMEBI OSEJI, J.C.A.: I had a preview of the judgment just delivered by my learned brother A. J. ABDUL-KADIR JCA. His lordship has dealt with the issues raised exhaustively and I have nothing more to add.
I agree with the reasoning and conclusion that the appeal has merit and should be allowed.
I too allow same and abide by the consequential orders made in the lead judgment.

Appearances

Mr. C. S. AgboFor Appellant

AND

Chief M. E. EzeFor Respondent