IKWUANO LOCAL GOVERNMENT COUNCIL v. HON IKECHUKWU C. OWOBE & ORS (2016)

IKWUANO LOCAL GOVERNMENT COUNCIL v. HON IKECHUKWU C. OWOBE & ORS

(2016)LCN/8453(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2016

CA/OW/366/2014(R)

RATIO

APPEAL: NOTICE OF APPEAL; REQUIREMENT FOR THE NOTICE OF APPEAL
Rule 2(1) of Order 6 no doubt provides for the contents and requirements of a valid Notice of Appeal as according to it, all Appeals shall be by way of rehearing and shall be brought by Notice of Appeal to be filed in the Registry of the Court below.
The Notice shall set forth the Grounds of Appeal, stating whether the whole or part of the decision is being complained of and shall also state the exact nature of the Relief sought and names and addresses of all parties directly affected by the Appeal. Also there shall be sufficient copies of the Notice of Appeal for service on all the parties with their respective addresses for service endorsed thereon.
Again by the provisions of Rule 2(2) thereof where the Ground of Appeal alleges misdirection or error in law, the particulars of such error or misdirection shall be clearly stated and under Rule 2(3) the Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely of the hearing of the Appeal without any argument or narrative and shall be numbered consecutively.
Under Rule 3 of Order 6 of the Rules, the Court is also empowered not to permit any Ground which is vogue or general in terms and which discloses no reasonable Ground of Appeal except the General Ground that the judgment appealed against, is against the weight of evidence. Wherefore any Ground of Appeal or any part thereof is not permitted, under this Rule, the Court may strike it out on its own motion or on Application of by the Respondents. PER IGNATIUS IGWE AGUBE, J.C.A.
APPEAL: NOTICE OF APPEAL; ESSENCE OF NOTICE OF APPEAL
Now when is an Appeal deemed competent or incompetent? The answer as has been decided by along line of cases of settled antiquity and in recent times is that it is only a valid Notice of Appeal initiated in accordance with the provisions of the Rules as aforestated that animates and sustains an Appeal. Accordingly, a Notice of Appeal with valid grounds is a condition precedent for the exercise of jurisdiction by the Court of Appeal to entertain and determine on Appeal. Where therefore a Notice and Grounds of Appeal fail to comply with the provisions of Order 6 Rules 2 and 3, the Court of Appeal cannot even exercise its enormous or wide range of powers or discretion as conferred upon it by Rules 4, 5 and indeed 15 to allow amendment of Notice and Grounds of Appeal and the consequence of Rule 6 shall naturally follow for the Notice of Appeal to be struck out for being incompetent. See Idegwu v. The State (2015) 6 NWLR (pt. 1455) 286 at 310 paras. A – C following Abiola V. Olawoye (2006) 13 NWLR (pt. 996): Uwazurike V. A-G Fed. (2007) 8 NWLR (Pt. 1035) 1. See further Uttah V. Independence Brewery Ltd. (1974) 2 S.C. 7; Okwuosa V. Okwuosa (1974) S.C. 13; Brawal Shipping (Nig.) Ltd. V. Extraction & Commodity Service Ltd. (2001) 2 C.A. 13; Okolie V. Olugor (1995) 5 S.C.N.J. 217.
In the recent Supreme Court case of F.R.N. V. Dairo (2015) 6 NWLR (Pt. 1454) 141 of 166 – 167 paras. C-C and 188 paras. D – F per Nweze, JSC., re-emphasizing the fundamental nature of the Notice of Appeal in exercise of an Appellate Court’s discretion. The erudite Law of the Apex Court characteristically posited thus:
“As it is well known, it is the Notice of Appeal that initiates an appeal from the High Court to the lower Court, (see Order 6 Rule 2(1) of the Court of Appeal Rules, 2011); Dingyadi v. I.N.E.C. (2010) L.P.E.L.R. – 952 (SC) 60; (2010) 18 NWLR (pt. 1224) 1. Put differently, the notice (actually, a competent Notice of Appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court. Adelakun V. Ecu-line NV (2006) 12 NWLR (pt.993) 33; Uwazuruike V. A – G Federation (2007) ALL FWLR (Pt. 1035) 1 and sustains it.
Okotie V. Olughor (1995) 5 SCNJ 217; (reported as In RE: Otuedon (1995) 4 NWLR (Pt.392) 665).
As such, any virus in this process would, invariably, corrode or taint the entire Appeal thereby rendering it incompetent. First Bank of Nigeria Plc v. T.S.A. Ind. Ltd. (2010) LPELR – 1283 (SC) 49 paras. A-D: (2010) 5 NWLR (Pt. 1216) 247 Okeke Amadi V. Okeke Okoli (1977) S.C. 57, 58; Okolo V. UBN Ltd (2004) 3 NWLR (Pt.859) 87. Akpan v. Bob (2010) 17 NWLR (Pt. 1224) 421. General Electric Co. v. Akande (2010) 18 NWLR (pt. 1225) 596 etc.
The effect of such viral corrosion is, usually, far-reaching as it nibbles of the jurisdiction of the appeal Court which must as of necessity, strike out such a process. A-G Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt. 618) 187, Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Agu V. Odofin
(1992) 3 SCNJ 161; Ibeto v. Aminu (2007) 5 NWLR (pt. 1028) 446, Dan Musa V. Inuwa (2007) 17 NWLR (Pt. 1063) 391; Clev Josh Ltd. v. Tokimi (2008) 13 NWLR (pt. 1104) 422.
In effect, the absence of a competent Notice of Appeal, simply translates to the non-existence of an appeal. Amadi V. Okoli (1972) 7 S.C. 57; C.B.N. v. Okojie (2004) 10 NWLR (pt. 882) 488… Tukur V. Government of Gongola State (1988) 1 NMLR (Pt. 68) 39; First Bank of Nig. Plc. v. Maidawa (2012) LPELR – 9713 (sc); (2013) 5 NWLR (pt. 1348) 444.
This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. Okeke Amadi v. Okeke Okoli (supra); Okotie v. Olughor (supra).” PER IGNATIUS IGWE AGUBE, J.C.A.
APPEAL: GROUNDS OF APPEAL; WILL AN AMENDMENT OF AN INVALID GROUND OF APPEAL BE ALLOWED
The above decision notwithstanding the Supreme Court has also held and settled the position of the law that where the Grounds of Appeal are invalid, on amendment by way of Additional Ground of Appeal as in this case, cannot be granted and any such addition would render the Additional Ground also invalid. See Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244 (1987) 2 N.S.C.C . 930 and Emecheta v. Ogueri (1988) 12 NWLR (pt. 579) 502. PER IGNATIUS IGWE AGUBE, J.C.A.
APPEAL: JURISDICTION; TO WHAT EXTENT WILL THE APPEAL COURT HEAR APPEALS FROM THE NATIONAL INDUSTRIAL COURT
Coming home to this case, the learned counsel for the Respondents has rightly cited the case of Coca-cola (Nig) Ltd. v. Akinsanya (2013) 18 NWLR (pt. 1386) 255 at 327 – 328 paras. E – E; where a full bench of this Court pronounced on the circumscriptive right of Appeal from the National Industrial Court. In particular, the dictum of our learned brother Ikeyegh, JCA is very instructive when he reasoned in line with decision in N.E.M.G.I.A. Ltd v. Uchay (1973) 4 S.C. 1 at 78; that the right of Appeal is granted by Statute and that statutory interpretation by a Court cannot confer a right of appeal.
In a case which is almost on all fours with the present, Local Government Service Commission Ekiti State & Anor V. Bamisaye (2013) LPELR – 20407 (CA) 20, this Court per U. Onyemenam, JCA delivering the Lead Judgment of Ekiti Division, granted leave to the Appellant/Applicant to appeal against the Judgment of Kanyip, J. of the National Industrial Court, Ibadan Division and held of pages 15 -20 that the Court of Appeal is a creation of the Constitution and accordingly it is the Constitution that defines and determines its jurisdiction over any subject matter.
On the need to give a holistic consideration of the provisions of the Constitution and the need not to expand or import into the wordings meanings that are not intended where the wordings are clear and unambiguous, he relied on Ifezue V. Mbadugha (1984) 1 S.C.N.L.R 427; Tinubu V. T.M.B. Securities Plc. (2001) 16 NWLR (Pt. 710) 670 at 708: Adeseun V. Ilaka (2011) ALL FWLR (pt.600) 1313 at 1316; Elelu Habeeb V. National Judicial Council (2010) ALL FWLR (pt. 536) 494 at 510 and posited thus on the intendment of Sections 243 and 9(1) and (2) of the Constitution and National Industrial Act, 2006 respectively thus:
“The combined reading of Section 9 of the National Industrial Court Act, 2006 and Section 243(2) and (3) of the Constitution is to the effect, that; appeals shall lie as of right in matters relating to questions of fundamental rights from the decision of National Industrial Court to the Court of Appeal which in other cases; appeal from the decision of the National Industrial Court to the Court of Appeal can only lie if such is prescribed by an Act of National Assembly or Law, in which case the appeal shall be with leave of the Court Appeal.
I will be emphatic on the apparent, which is that there is no Act of the National Assembly that has prescribed the right of appeal that shall lie from the decision of the National Industrial Court to the Court of Appeal particularly provided for by Section 243(3) of the Constitution (as amended).”
There is considerable force in the position above taken by our learned brother which position is also supported by the dictum of Ikeyegh, JCA of pages 375 – 376 paras. F – E in Coca-cola (Nig.) Ltd. V. Akinsanya (supra) ably cited by the Learned Counsel for the Respondents, that the Constitution that imbued the National Industrial Court with the status of a Superior Court of Record broke away from its tradition of conferring appellate jurisdiction on the Court of Appeal as it has done in respect of other Courts created by it by providing in Section 5(3) of the Third Alteration that appeals shall only lie as of right from decisions of the National Industrial Court in fundamental rights matters and with leave as may be prescribed by an Act of the National Assembly or Law. This provision is akin to the Section 245(1) and (2)(b) of the Constitution of the Federal Republic of Nigeria and the interpretation which has generated much controversy as to the jurisdiction of the Court of Appeal to hear appeals from the Customary Court of Appeal. See Golok v. Diyalpwan (1990) 21 N.S.C.C. (pt.2) 326; Idi v. Kpaji (1986) 4 C.A. (Pt. 11) 317; Iyamu v. Aighiremwen (1992) NWLR (Pt. 222) 233 and Dapianlong V. Dariye (2007) 8 NWLR (pt. 1036) 332.
For now, the above position of the law on the nature of Appeal that would enable an Appellant to Appeal as of right is as has been reaffirmed by the recent decisions of the Lagos Division of the Court of Appeal in Lagos Sheraton Hotel and Towers v. Hotel and Personal Services Senior Staff Association (2014) LPELR – 23340 (CA) Pages 30 – 43 and indeed the most recent decision of that Division per Nimpar, JCA in Zenith Bank Plc. V. Caroline Dennis Durugbor (2015) LPELR – 24898 (CA) at page 13 – 16; where he reiterated on the authorities of Coca-Cola Ltd. & 2 Ors. v. Akinsanya (2013) 18 NWLR (pt. 1386) 255; (2013) 1 ACLR 28 at 58 -59 per Lokulo -Sodipe, JCA and Lagos Sheraton Hotel & Lowers V. HPSSA (2014) LEPLR (supra) per Oseji, JCA and agreed that the Lacuna created in vesting the National Industrial Court with the Toga of a Court of final jurisdiction in matters before it, apart from fundamental human rights matters of which only an Appeal may lie from it to the Court of Appeal, would not augur well for aggrieved litigants especially as anything to do with employment affects the livelihood of members of the workforce; His Lordship however added the rider thus:
“While I agree with the sentiments expressed by my learned brother in relation to the ultimate jurisdiction of the National Industrial Court in Labour and employment matters, the position of the law as interpreted cannot be faulted until there is an enactment prescribing the instances of appeal to this Court from the National Industrial Court or an amendment of Section 243 of the Constitution, the National Industrial Court remains the final Court in such matters upon which the Court has jurisdiction except in decisions relating to questions of fundamental rights expressed under Chapter IV of the Constitution. PER IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

IKWUANO LOCAL GOVERNMENT COUNCIL Appellant(s)

AND

1. HON IKECHUKWU C. OWOBE
2. HON. EMMANUEL OSISIOGU
3. HON. NKEM NWOGBO
4. HON. PETER NDUBUNWA
5. HON. EMEKA IKEOGU
6. HON. IMO NWACHUKWU
7. HON. NDUBUEZE OHARIE
8. HON. NDUBUISI OHAKALAM
9. HON. ANTHONY ALARIBE
10. HON. CLEMENT ONUKWUE Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Lead Ruling): This is a motion brought pursuant to Order 6 Rule 15 of the Court of Appeal Rules, 2011. The Motion dated the 28th day of October, 2014 but filed on the 29th October, 2014 prays for the following orders:-
“1. An Order for leave to amend the Notice of Appeal filed by the Appellant in this case dated the 24th day of September, 2014 and filed on the same date of the Court below (that is National Industrial Court Owerri to wit) by ADDING AN ADDITIONAL GROUND OF APPEAL as set out in the Proposed Amended Notice of Appeal.
“2. An Order for leave of this Honourable Court to Deem the Amended Notice of Appeal as properly filed and served. AND FOR SUCH FURTHER ORDER OR other ORDERS as the Honourable Court may deem fit to make in the circumstances.”

?In support of the Application is an Affidavit of twelve (12) paragraphs deposed to by Greg Chikezie, male, adult, Christian and Deputy Director Legal Drafting Department, Ministry of Justice Abia State of Nigeria. Annexed to the Motion Paper and Supporting Affidavit are the Original Notice of Appeal marked Exhibit ?A?, the

Judgment of the National Industrial Court per Hon. Justice O.Y. Anuwe (Exhibit ‘B’) and the Proposed Amended Notice of Appeal dated the 28th of October, 2014 marked Exhibit ‘C’.

The Applicants also filed a clean copy of the Amended Notice of Appeal on the 29th day of October, 2014. Upon being served with the Motion on Notice, the Respondents filed no Counter-Affidavit but indicated that they would oppose the Appellant/Applicant?s Motion purely on points of Law only. Accordingly, parties were ordered by this Honourable Court to file their respective Written Addresses to articulate their disparate positions on the merits or demerits of the Application.
Accordingly, the Appellants/Applicants’ Written Address dated the 30th day of September, 2015 was filed same date. The Respondents on their part filed their Written Address dated the 9th day of October, 2015 on the 13th day of October, 2015. On the 21st day of October, 2015, the respective Learned Counsel for the parties adopted their Written Addresses of the hearing of the Motion.

?The Ruling in this Application would have been delivered earlier on but for our engagement in Election Petition

Appeals.

ARGUMENTS OF COUNSEL ON THEIR RESPECTIVE ADDRESSES.
In the Address of the Appellant/Applicant Greg Chikezie DDPP, Ministry of Justice Abia State who settled same formulated two issues for determination couched as follows:
“(1) Whether this Honourable Court can properly grant leave to the Appellant in this case to amend her Notice of Appeal dated 28th day of October, 2014 and filed on the 29th day of October, 2014 against the Judgment of the National Industrial Court Owerri dated 2nd day of July, 2014.
“(2) Whether this Honourable Court can grant leave for the Appellant?s Amended Notice of Appeal to be deemed properly filed and served.”

On the other hand, O.O. Amuzie, Esq, who settled the Address of the Respondents distilled a Sole issue for determination which is:- “Whether based on both the original and Proposed Additional Grounds of Appeal which are fundamentally defective and invalid in law, this Application is competent and grantable in the circumstances of the case?

The above distilled issue is said to be predicated on the three Grounds of the Objection which are reproduced here under as follows:-
“1. That

the Application is on abuse of the process of this Honourable Court in that no right of Appeal exists in favour of the Appellant/Applicant in the circumstances of this case.
“2. That the original Notice of Appeal upon which this Application is predicated is fundamentally defective and invalid in law and amendment cannot be granted to amend fundamentally defective and invalid Notice of Appeal in the circumstances of the case.
“3. That both the Original lone Ground of Appeal and the PROPOSED ADDITIONAL GROUNDS OF APPEAL are also fundamentally defective and invalid in law and it will amount to an exercise in futility to allow an addition of the Proposed Additional Ground of Appeal which is also fundamentally defective and invalid.?

ARGUMENTS OF THE LEARNED COUNSEL FOR THE APPELLANT/APPLICANT
ISSUE NUMBER ONE (1)
?Arguing the first issue, the Learned Counsel for the Appellant/Applicant drew our attention to the provisions of Order 6 Rule 15 of the Court Appeal Rules, 2011 upon which the Application is predicated; and submitted that this Court has every capacity to allow amendment of a Notice of Appeal at any time or even suo motu.

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Reference was made to Order 6 Rule 4 of the Rules which also empowers the Appellant to argue issues not contained in the Notice of Appeal with leave of Court and also by virtue of Order 6 Rule 5, the Honourable Court is not restricted by the Appellant’s Notice of Appeal.
According to him, a summation of the provisions of Order 6 is that the Court has very wide range of discretion and powers over Notice of Appeal including allowing an amendment of same which discretion and powers we were urged to exercise in allowing their amendment particularly by virtue of the uncontroverted facts in their supporting Affidavit.

On the contention of the Respondent’s Learned Counsel that their Applicant’s Notice of Appeal is defective and cannot be amended, it was submitted that it is a misconception having agreed with the statement of the law as decided in FRN v. DIARO (2015) 6 NWLR (pt. 1454) 141 at 148 as affirmed in the case of First Bank (Nig.) Ltd v. Maidawa Vol. 213 LRCN 121 at 133 on the fundamental nature of a competent Notice of Appeal a defect thereof which goes to the root of the Appeal. He therefore argued that the contents and form of a Notice of

Appeal are provided for in Order 6 Rule 2 and a Notice of Appeal becomes incompetent when it does not comply with same when the Grounds of Appeal are ridiculous and fall completely out of the competence of the Court of Appeal.

According to him, it is improper for this Court to base its decision on the fact that a Court of coordinate jurisdiction had decided a similar matter in a particular way which we are not bound to follow. In respect of this particular case of Coca- cola (Nig.) Ltd & 2 Ors. v. Mrs Titilayo Akinsanya in Suit No. CA/L/712/2012 on the impropriety of Appeals from the National Industrial Court and other like decisions, the Learned Counsel pointed out that he was not oblivious of those decisions but his bone of contention was that the argument was premature and should have come after they (Appellants/Applicants) must have filed their Brief of Argument by virtue of Order 6 Rule 2 (3) of the Court of Appeal Rules which prohibits arguments and narratives in their Notice of Appeal.

He maintained that the mere fact that this Court had decided past Civil matters emanating from decisions of the National Industrial Court, makes their own case

valid and competent because assuming the Supreme Court has decided that Civil Appeals cannot lie from the National Industrial Court to the Court of Appeal, then this Court would be bound to follow that decision and not that this Court would refuse to hear same as such refusal is not the effect of stare decisis.

The Learned Counsel for the Appellant asserted further that the amendment sought flows from the judgment of the lower Court and would not be prejudicial to the Respondents in any way as they would still have a fair opportunity to ventilate their case on the merit more so, when the Notice sought to be amended gives sufficient Notice that Additional Grounds shall be filed on receipt of the record hence the Respondents cannot claim to have been surprised in any extra ordinary way.

On the Second issue which is whether the Honourable Court can grant leave for the Appellant’s Amended Notice of Appeal to be deemed as properly filed and served, he submitted that the issue flows directly from the first which had earlier been argued and that the Respondents should not have any problem since the first impediment is cleared.

?According to the

Learned Counsel for the Applicant, they have come with the second prayer to save time and cost on the Respondents and also to show diligence in the prosecution of their prayer which is within the competence of the Court to so do.

ARGUMENT OF THE LONE ISSUE OF THE LEARNED COUNSEL FOR THE RESPONDENTS.
Responding to the above submissions of the Learned Counsel for the Appellant/Applicant, the Learned Counsel for the Respondents posited that to file an Appeal where the Constitution has expressly ousted a right of Appeal is clearly an abuse of Court process. For this submission he quoted and reproduced the provisions of Section 243(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended by Section 5(b) of the Constitution of the Federal Republic of Nigeria 1999 (3rd Alteration) Act, No. 3 of 2010.

?In the present case, he contended, the subject matter of the Appeal is not founded on enforcement of fundamental human rights but on debt owed the Respondents by the Appellant/Applicant arising from their statutory entitlements and arrears of salaries as past Councillors of the Appellant/Applicant. (Page 1 of Exhibit ‘B’ refers).

It is the further contention of the Learned Counsel for the Respondents/Objectors, that there is also till date no Act of the National Assembly giving a right to the Appellant to appeal outside matters within the purview of fundamental rights and even if there is, such Appeal must be initiated only by the leave of the Court of Appeal which is also not the case herein.

From the foregoing, the Learned Counsel for the Respondents asserted that the lone Ground of Appeal annexed as Exhibit ‘A’ as well as Exhibit “C” the lone proposed Additional Ground of Appeal are incompetent, defective and invalid in that they are not predicated on fundamental rights but on alleged improper evaluation of evidence without more and these constitute abuse of Court process. He cited the case of Coca-cola (Nig) Ltd v. Akinsanya (2013) 18 NWLR (pt. 1386) 255 at pages 327 – 328 paras. E-E; where this Court by a full panel constituted by the President of the Court of Appeal interpreted Section 243(2) – (3) of the Constitution per Lokulo-Sodipe, JCA as well as Ikeyegh, JCA at page 375-376 paras. F – E which decision was re-affirmed by the Lagos Division of the Court in Lagos Sheraton

Hotels and Towers V. Hotel and Personal Services Senior Staff Association (2014) LPELR 23340 (CA) PP. 30 – 43 in Suit No. CA/L/1218M/2010 delivered on 15/7/14 in refusing to grant on Application for leave and extension of time to appeal against the decision of the National Industrial Court based on Grounds of Appeal not predicated on enforcement of fundamental human rights as in this case; to buttress the above submission.

Still on Appeals bordering on fundamental rights, he referred us to Section 254C (1)(d) of the 1999 Constitution (amended by Section 6 of the 3rd Alteration Act, 2010) which he also reproduced.

On the submission of the Learned Counsel for Appellant on our not being bound by the earlier decisions of other Divisions of the Court of Appeal, he explained that the Court is one but with several Divisions for administrative convenience and we are therefore bound by our decisions as we are particularly the final Court where there is a right of Appeal from the National Industrial Court. Further reference was made to Section 243(4) of the Constitution as amended by Section 5(b) (a) of the 3rd Alteration Act, 2010.

?The Learned Counsel

also insisted that the Proposed Addition Ground of Appeal endorsed as Ground 2 in Exhibit C does not come within Sections 254(1)(d) or 243(2)-(3) as the said Ground is a mere trick, ploy or feeble attempt to circumvent provisions of Section 243(2) of the Constitution as done in the case of Lagos Sheraton Hotels & Towers V. Hotel & Personal Services Senior Staff Association (supra) and the Court held as it did in pages 42 – 43 of the Report. According to him, the Appellant’s case is made worse by her allegation that an issue alleged not to have been considered in the lower Court which forms the basis of the Additional Ground, was duly considered in the lower Court as the Appellant/Applicant raised the same issue in her preliminary objection and her Final Address in paragraphs 4 – 5 page 5 of Exhibit “B”

He maintained that it is the same issue that the Appellant is now alleging in this Court the lower Court did not consider so as to circumvent Section 243(2) and (3) of the 1999 Constitution as amended. For this submission he relied on Dada V. Dosunmu (2006) 18 NWLR (Pt. 10100) 134, on the need for a Ground of Appeal to be predicated on the ratio

decidendi of the lower Court. In the instant case the Learned Counsel took the view that the Additional Ground of Appeal does not relate to the ratio decidendi but is incompetent apart from being self contradictory with the original Ground upon the explanations he offered to this effect in paragraph 3.12 of the Respondent’s Address on the justifiability of Exhibit “IK4”, the circular of the Revenue Mobilization and Fiscal Commission even without adoption by a Law made by Abia State House of Assembly.

The Appellant, according to the Learned Counsel for the Respondents, ventilated her case and raised the same issue of justifiability of the said Exhibit “IK4” in both her Preliminary Objection and substantive trial of the lower Court which the Court conclusively decided. In the light of the above, the question of fair hearing does not arise, the Learned Counsel further submitted but that the Appellant thereby intends to circumvent the provision of Section 243(2) and (3) of Constitution of the Federal Republic of Nigeria 1999 (as amended).

?Upon the assumption but not necessary conceding that the proposed Additional Ground is competent or that it

comes within the ambit of Section 243(2) of the Constitution, it was again submitted by the Learned Counsel for the Respondents that the Appellant?s Application is not still grantable and the Appeal is still invalid in law because the original Ground is not based on Fundamental Rights question as provided in Section 243(2) of the 1999 Constitution (as amended) and clearly outside the jurisdiction of this Honourable Court.
Therefore in his view, the Original Notice of Appeal was not validly initiated but that it is a nullity Atuyeye v. Ashamu (1987) 1 S.C. 333 at 358; Awhihawhi v. Oteri (1984) SSC 38; and in particular the case of Nwaigwe v. Okere (2008) MJ-S.C. 86, 103-104 paras. G-A: were all relied upon in urging us to adopt the decisions and apply them to the facts and circumstances of the present case.

The Learned Counsel adopted the arguments of the Learned Counsel for the Appellant in paragraphs 4.03-4.04 of the Appellant’s/Applicant’s Written Address save the first sentence of Paragraph 4.03 and urged us to rely and apply same. On the whole, we were finally urged to refuse the Application as it has no tripod upon which to stand also to

consequentially strike out the fundamentally defective and invalid Notice of Appeal/Appeal in this case.

RESOLUTION OF ISSUES:
In the resolution of the issues distilled by the respective Learned Counsel for the parties, it is necessary to look at the provisions of the Court of Appeal Rules, 2011, the Constitutional provisions as well as the authorities cited by the respective counsel touching on the nature of Grounds of Appeal filed by the Appellant/Applicant and whether they are competent in order to vest this Honourable Court with the jurisdiction to grant the Application and indeed entertain the Appellant’s Appeal.

Beginning from Order 6 Rule 15 C.A.R, 2011 upon which the Application is predicated and which governs amendment of Notices and Grounds of Appeal, Rule 15 provides in very clear terms that;
“15. A Notice of appeal may be amended by or with the leave of the Court of any time”.
Going by the above provision and giving it the simple, ordinary grammatical interpretation, the Learned Counsel for the Appellant is in the first place right to have submitted that this Court not only has the capacity of allowing amendment of a

Notice of Appeal suo motu but by the use of the word “may”, it also has the discretion to either allow or refuse a party like the Appellant in this Appeal to amend his/her Notice of Appeal. For instance, by the provision of Order 6 Rule 4 of the Court of Appeal Rules 2011, although the Appellant shall not without the leave of Court be allowed to urge or be heard in support of any Ground of Appeal not mentioned in the Notice of Appeal, ?but the Court may in its discretion allow the Appellant to amend the Grounds of Appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.”
The provisions of Order 6 Rule 5 are also clear and unambiguous, that in spite of the foregoing provisions, the Court in deciding the Appeal, shall not ordinarily be confined to the Grounds set forth by the Appellant in which case, the Court can permit the argument of any Ground not set forth in the Notice of Appeal provided the Respondent has had sufficient opportunity of contesting the case on that Ground.
The Learned Counsel for the Appellant was also right in his interpretation of the generic interpretation of Order 6

which is that a summation of all the provisions is to the effect that the Court has very wide discretionary powers over a Notice of Appeal including the power to allow amendment of same and even the discretion to raise or allow the Appellant to raise fresh issue not contained in the Grounds provided the Respondent is afforded the opportunity to ventilate his position on the fresh Ground or issue before the Court can decide on such ground or issue.

The above positions of the Learned Counsel for the Appellant notwithstanding, it would appear that the bone of contention of the Respondents to which the Appellant has partly conceded is that for the Court to grant on amendment of a Notice of Appeal in the manner sought by the Appellant, the Appeal/Original Notice of Appeal must be competent. In the view of the Learned Counsel for the Appellant it is only where a Notice of Appeal does not conform with the provisions of Order 6 Rule 2, that such a Notice can be rendered incompetent thus robbing the Court of Appeal of the jurisdiction to entertain such on Appeal.

?Rule 2(1) of Order 6 no doubt provides for the contents and requirements of a valid Notice of

Appeal as according to it, all Appeals shall be by way of rehearing and shall be brought by Notice of Appeal to be filed in the Registry of the Court below.
The Notice shall set forth the Grounds of Appeal, stating whether the whole or part of the decision is being complained of and shall also state the exact nature of the Relief sought and names and addresses of all parties directly affected by the Appeal. Also there shall be sufficient copies of the Notice of Appeal for service on all the parties with their respective addresses for service endorsed thereon.
Again by the provisions of Rule 2(2) thereof where the Ground of Appeal alleges misdirection or error in law, the particulars of such error or misdirection shall be clearly stated and under Rule 2(3) the Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely of the hearing of the Appeal without any argument or narrative and shall be numbered consecutively.
?Under Rule 3 of Order 6 of the Rules, the Court is also empowered not to permit any Ground which is vogue or general in terms and which discloses no reasonable Ground of

Appeal except the General Ground that the judgment appealed against, is against the weight of evidence. Wherefore any Ground of Appeal or any part thereof is not permitted, under this Rule, the Court may strike it out on its own motion or on Application of by the Respondents.

Above all by Rule 6 of Order 6 of the Court of Appeal Rules, 2011;
“The Court shall have power to strike out a Notice of Appeal when on Appeal is not competent or for any other sufficient reason.”

?Now when is an Appeal deemed competent or incompetent? The answer as has been decided by along line of cases of settled antiquity and in recent times is that it is only a valid Notice of Appeal initiated in accordance with the provisions of the Rules as aforestated that animates and sustains an Appeal. Accordingly, a Notice of Appeal with valid grounds is a condition precedent for the exercise of jurisdiction by the Court of Appeal to entertain and determine on Appeal. Where therefore a Notice and Grounds of Appeal fail to comply with the provisions of Order 6 Rules 2 and 3, the Court of Appeal cannot even exercise its enormous or wide range of powers or discretion as conferred

upon it by Rules 4, 5 and indeed 15 to allow amendment of Notice and Grounds of Appeal and the consequence of Rule 6 shall naturally follow for the Notice of Appeal to be struck out for being incompetent. See Idegwu v. The State (2015) 6 NWLR (pt. 1455) 286 at 310 paras. A – C following Abiola V. Olawoye (2006) 13 NWLR (pt. 996): Uwazurike V. A-G Fed. (2007) 8 NWLR (Pt. 1035) 1. See further Uttah V. Independence Brewery Ltd. (1974) 2 S.C. 7; Okwuosa V. Okwuosa (1974) S.C. 13; Brawal Shipping (Nig.) Ltd. V. Extraction & Commodity Service Ltd. (2001) 2 C.A. 13; Okolie V. Olugor (1995) 5 S.C.N.J. 217.
In the recent Supreme Court case of F.R.N. V. Dairo (2015) 6 NWLR (Pt. 1454) 141 of 166 – 167 paras. C-C and 188 paras. D – F per Nweze, JSC., re-emphasizing the fundamental nature of the Notice of Appeal in exercise of an Appellate Court’s discretion. The erudite Law of the Apex Court characteristically posited thus:
“As it is well known, it is the Notice of Appeal that initiates an appeal from the High Court to the lower Court, (see Order 6 Rule 2(1) of the Court of Appeal Rules, 2011); Dingyadi v. I.N.E.C. (2010) L.P.E.L.R. – 952 (SC) 60;

(2010) 18 NWLR (pt. 1224) 1. Put differently, the notice (actually, a competent Notice of Appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court. Adelakun V. Ecu-line NV (2006) 12 NWLR (pt.993) 33; Uwazuruike V. A – G Federation (2007) ALL FWLR (Pt. 1035) 1 and sustains it.
Okotie V. Olughor (1995) 5 SCNJ 217; (reported as In RE: Otuedon (1995) 4 NWLR (Pt.392) 665).
As such, any virus in this process would, invariably, corrode or taint the entire Appeal thereby rendering it incompetent. First Bank of Nigeria Plc v. T.S.A. Ind. Ltd. (2010) LPELR – 1283 (SC) 49 paras. A-D: (2010) 5 NWLR (Pt. 1216) 247 Okeke Amadi V. Okeke Okoli (1977) S.C. 57, 58; Okolo V. UBN Ltd (2004) 3 NWLR (Pt.859) 87. Akpan v. Bob (2010) 17 NWLR (Pt. 1224) 421. General Electric Co. v. Akande (2010) 18 NWLR (pt. 1225) 596 etc.
The effect of such viral corrosion is, usually, far-reaching as it nibbles of the jurisdiction of the appeal Court which must as of necessity, strike out such a process. A-G Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt. 618) 187, Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Agu V. Odofin

(1992) 3 SCNJ 161; Ibeto v. Aminu (2007) 5 NWLR (pt. 1028) 446, Dan Musa V. Inuwa (2007) 17 NWLR (Pt. 1063) 391; Clev Josh Ltd. v. Tokimi (2008) 13 NWLR (pt. 1104) 422.
In effect, the absence of a competent Notice of Appeal, simply translates to the non-existence of an appeal. Amadi V. Okoli (1972) 7 S.C. 57; C.B.N. v. Okojie (2004) 10 NWLR (pt. 882) 488… Tukur V. Government of Gongola State (1988) 1 NMLR (Pt. 68) 39; First Bank of Nig. Plc. v. Maidawa (2012) LPELR – 9713 (sc); (2013) 5 NWLR (pt. 1348) 444.
This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. Okeke Amadi v. Okeke Okoli (supra); Okotie v. Olughor (supra).”

The above Rule cited by the Learned Counsel for the Appellant provides for the architectural structure of an appeal in other words the procedural regulations to be observed in order to initiate a valid appeal. Going by these Rules as cited above and a perusal of the Notice and Grounds of Appeal, it would be revealed that the Appellant had fulfilled and complied with the provisions of Order 6 ?Rules 2 and 3 which should ordinarily empower the Court to invoke its powers under

Rules 4, 5, and particularly 15 of the Court of Appeal Rules 2011 so as to allow the Appellant to amend her Notice of Appeal as that Notice has stated part of the decision complained of, the Ground of Appeal; the particulars of error inherent in the sole Ground; a Further Notice that Additional Grounds of Appeal shall be filed on receipt of the Records; the Reliefs sought by the Appellant and finally the Names and Addresses of persons affected by the Appeal and Addresses for service. See Exhibit ‘A’ to the Motion Paper.

Speaking specifically about amendment of Notice of Appeal there are authorities galore in support of the stance of the Appellant that this Court has power to allow the amendment of a Notice of Appeal from time to time until such a time that the Appeal may be ripe for hearing and as I said earlier, such power to grant amendment being discretionary, it ought to be exercised judiciously and judicially taking into consideration the peculiar circumstances of the case in order to ensure that the Appellant’s grouse of complaints against the judgment are competently brought before the Court of Appeal. See Okpala v. Ibeme (1989) 20 N.S.C. C. (pt.

1) 567, First Bank of Nigeria Plc v. May Medical Clarics & Diagnostic (2001) 27 WRN 162; Pharmatek Industrial Projects Ltd. v. Bayo Ojo (1996) 1 NWLR (pt.424) 330 at 338.

The above decision notwithstanding the Supreme Court has also held and settled the position of the law that where the Grounds of Appeal are invalid, on amendment by way of Additional Ground of Appeal as in this case, cannot be granted and any such addition would render the Additional Ground also invalid. See Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244 (1987) 2 N.S.C.C . 930 and Emecheta v. Ogueri (1988) 12 NWLR (pt. 579) 502.

In the instant case, the basis of the Learned Counsel for the Respondents’ contention that the Original Notice of Appeal upon which the Application for Amendment by the addition of one other Ground of Appeal is sought by the Appellant/Applicant is that no right of Appeal enures in favour of the Appellant/Applicant in the circumstances of this case. For this position he has placed reliance on Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended by the Constitution of the Federal Republic of Nigeria (3rd

Alteration) Act, No. 3, 2010 which provides thus:
“243 (1)….
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
“(3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an act of the National Assembly.
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.?
The above provisions of the Constitution are replicated in Section 9(1) and (2) of the National Industrial Court Act, 2006 which also stipulate that:
“9(1) Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and Subsection (2) of this Section, no appeal shall lie from the decisions of the Court to the Court of Appeal or any other Court except as may be prescribed by this Act or any other Act of

the National Assembly.
(2) An appeal from the decision of the Court shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria.”
The above provisions of the Constitution as well as the National Industrial Act, 2006 are clear and unambiguous and we ought to give those provisions their ordinary, simple grammatical meanings in order to fulfil the intention of the Legislature nay the makers of the Constitution. It is however gratifying to note that Apex Court and indeed this Court, in quite a number of earlier and recent decisions, have interpreted the purports of the above provisions. The bottom line as is now settled by these decisions is that a right of Appeal to the Court of Appeal as was rightly submitted by the Learned Counsel for the Respondents, can only enure to any person where such right has been conferred by the Constitution or by statute. Onitiri v. Benson (1960) 5 F.S.C. 150; Adeyemi V. Attorney-General Oyo State (1984) 6 S.C. 135: Boardman V. Sokoto N.A. (1965) 1 ALL NLR 214. NBN Ltd. V. Weide & Co. (Nig) Ltd. (1996) 9-10

S.C.N.J 147 at 159. It has also been held that the right cannot be fixed by a subsidiary enactment nor can it be created by common law or even the Rules of Court which merely regulate the procedure for hearing the Appeal as had earlier been stated although non-compliance with the procedure laid down by such Rules for initiation of Appeals may rob the Court of the jurisdiction to hear same. See Eyesan V. Sanusi (1984) 1 SCNLR 353; Iloka V. Utomi (1999) 2 NWLR (pt. 592) 583 and National Telephone Co. Ltd V. His Majesty?s Post Master General (1913) 2 K.B. 614.

Coming home to this case, the learned counsel for the Respondents has rightly cited the case of Coca-cola (Nig) Ltd. v. Akinsanya (2013) 18 NWLR (pt. 1386) 255 at 327 – 328 paras. E – E; where a full bench of this Court pronounced on the circumscriptive right of Appeal from the National Industrial Court. In particular, the dictum of our learned brother Ikeyegh, JCA is very instructive when he reasoned in line with decision in N.E.M.G.I.A. Ltd v. Uchay (1973) 4 S.C. 1 at 78; that the right of Appeal is granted by Statute and that statutory interpretation by a Court cannot confer a right of

appeal.
In a case which is almost on all fours with the present, Local Government Service Commission Ekiti State & Anor V. Bamisaye (2013) LPELR – 20407 (CA) 20, this Court per U. Onyemenam, JCA delivering the Lead Judgment of Ekiti Division, granted leave to the Appellant/Applicant to appeal against the Judgment of Kanyip, J. of the National Industrial Court, Ibadan Division and held of pages 15 -20 that the Court of Appeal is a creation of the Constitution and accordingly it is the Constitution that defines and determines its jurisdiction over any subject matter.
On the need to give a holistic consideration of the provisions of the Constitution and the need not to expand or import into the wordings meanings that are not intended where the wordings are clear and unambiguous, he relied on Ifezue V. Mbadugha (1984) 1 S.C.N.L.R 427; Tinubu V. T.M.B. Securities Plc. (2001) 16 NWLR (Pt. 710) 670 at 708: Adeseun V. Ilaka (2011) ALL FWLR (pt.600) 1313 at 1316; Elelu Habeeb V. National Judicial Council (2010) ALL FWLR (pt. 536) 494 at 510 and posited thus on the intendment of Sections 243 and 9(1) and (2) of the Constitution and National Industrial Act,

2006 respectively thus:
“The combined reading of Section 9 of the National Industrial Court Act, 2006 and Section 243(2) and (3) of the Constitution is to the effect, that; appeals shall lie as of right in matters relating to questions of fundamental rights from the decision of National Industrial Court to the Court of Appeal which in other cases; appeal from the decision of the National Industrial Court to the Court of Appeal can only lie if such is prescribed by an Act of National Assembly or Law, in which case the appeal shall be with leave of the Court Appeal.
I will be emphatic on the apparent, which is that there is no Act of the National Assembly that has prescribed the right of appeal that shall lie from the decision of the National Industrial Court to the Court of Appeal particularly provided for by Section 243(3) of the Constitution (as amended).”
There is considerable force in the position above taken by our learned brother which position is also supported by the dictum of Ikeyegh, JCA of pages 375 – 376 paras. F – E in Coca-cola (Nig.) Ltd. V. Akinsanya (supra) ably cited by the Learned Counsel for the Respondents, that the

Constitution that imbued the National Industrial Court with the status of a Superior Court of Record broke away from its tradition of conferring appellate jurisdiction on the Court of Appeal as it has done in respect of other Courts created by it by providing in Section 5(3) of the Third Alteration that appeals shall only lie as of right from decisions of the National Industrial Court in fundamental rights matters and with leave as may be prescribed by an Act of the National Assembly or Law. This provision is akin to the Section 245(1) and (2)(b) of the Constitution of the Federal Republic of Nigeria and the interpretation which has generated much controversy as to the jurisdiction of the Court of Appeal to hear appeals from the Customary Court of Appeal. See Golok v. Diyalpwan (1990) 21 N.S.C.C. (pt.2) 326; Idi v. Kpaji (1986) 4 C.A. (Pt. 11) 317; Iyamu v. Aighiremwen (1992) NWLR (Pt. 222) 233 and Dapianlong V. Dariye (2007) 8 NWLR (pt. 1036) 332.
For now, the above position of the law on the nature of Appeal that would enable an Appellant to Appeal as of right is as has been reaffirmed by the recent decisions of the Lagos Division of the Court of Appeal

in Lagos Sheraton Hotel and Towers v. Hotel and Personal Services Senior Staff Association (2014) LPELR – 23340 (CA) Pages 30 – 43 and indeed the most recent decision of that Division per Nimpar, JCA in Zenith Bank Plc. V. Caroline Dennis Durugbor (2015) LPELR – 24898 (CA) at page 13 – 16; where he reiterated on the authorities of Coca-Cola Ltd. & 2 Ors. v. Akinsanya (2013) 18 NWLR (pt. 1386) 255; (2013) 1 ACLR 28 at 58 -59 per Lokulo -Sodipe, JCA and Lagos Sheraton Hotel & Lowers V. HPSSA (2014) LEPLR (supra) per Oseji, JCA and agreed that the Lacuna created in vesting the National Industrial Court with the Toga of a Court of final jurisdiction in matters before it, apart from fundamental human rights matters of which only an Appeal may lie from it to the Court of Appeal, would not augur well for aggrieved litigants especially as anything to do with employment affects the livelihood of members of the workforce; His Lordship however added the rider thus:
“While I agree with the sentiments expressed by my learned brother in relation to the ultimate jurisdiction of the National Industrial Court in Labour and employment matters, the position of the

law as interpreted cannot be faulted until there is an enactment prescribing the instances of appeal to this Court from the National Industrial Court or an amendment of Section 243 of the Constitution, the National Industrial Court remains the final Court in such matters upon which the Court has jurisdiction except in decisions relating to questions of fundamental rights expressed under Chapter IV of the Constitution.?

Although I have my reservations about the above remarks by my noble Lord in that by the provisions of Section 240 of the Constitution, the Court of Appeal being the next Court in the hierarchical structure to the Supreme Court and all appeals from Courts lower in the hierarchy should naturally lie to the Court of Appeal, more so where by the provisions Section 243(1)(a) and (b) adequate provisions have been made particularly in subparagraph (b) of Section 243(1) that any right of appeal to the Court of Appeal from the decision of the National Industrial Court shall be “exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court

of Appeal”, in the case of this Court, the Court of Appeal Act and the Rules made there under have been in existence before the enactment of Section 243 (3) and the proviso thereof as well as Section 9(1) and (2) of the National Industrial Court Act of 2006 and it would appear that the latter provisions are superfluous oversight.

Be that as it may, the Learned Counsel for the Appellant has insinuated that this Court need not be bound by the decision of the Lagos Division of the Court of Appeal or any other Division as these decisions are not those of the Supreme Court so as to apply the doctrine of judicial precedent or stare decisis. With the greatest respect to the Learned Counsel for the Appellant, the Learned Counsel for the Respondents was quite right when he submitted that there is only one Court of Appeal in Nigeria with several Divisions for administrative convenience and in my humble view, except where there are two or more conflicting decisions of the Court in which case this Division is entitled to elect which of the conflicting decisions to follow; or where our previous decision in a subject matter as in this case of Appeals from the National

Industrial Court to the Court of Appeal, has been over ruled by the Supreme Court or expressly by statute or if we in this Court are satisfied that the decisions of the Ekiti and Lagos Divisions above cited and considered were perverse or given per incuriam; we are bound to follow our previous decisions. See the Supreme Court cases of Usman v. Umaru (1992) 7 NWLR (pt. 254) 377; Sanni v. Adewiluyi (2003) 3 NWLR (Pt. 807) 381.
This is more so particularly, in our present jurisprudential climate where the Chief Justice of the Federation has decried the spate of conflicting judgments being dished out from the various Divisions of the Court of Appeal and his clarion call on us to maintain considerable degree of consistency in our decisions in line with the Supreme Court’s admonition in the celebrated case in Eperekun V. University of Lagos (1986) 4 NWLR (pt. 34) 162 S.C. that:
?Standing by a previous decision which has not been proved to be perverse, or to have been decided per incuriam or proved to be faulty legally or procedurally, has a lot of advantages. It fosters stability and enhances the development of a consistent and coherent body of law. In

addition, it preserves continuity and manifest respect for the past. It also assures equality of treatment for litigants in similar situation. It likewise spares the Judge the task of re-examining rules of law or principles, with each succeeding case, and also, it affords the law a desirable measure of predictability. It also helps to maintain some order within the judicial system.” See also Global Trans. Oceanico S.A. v. Free Ent. (Nig) Ltd (2001) FWLR (pt.40) 1706.

?Against the aforestated background, we shall now examine the Original Notice and Ground of Appeal filed by the Appellant in order to determine whether it is in the first place competent so as to warrant its amendment by the addition of another Ground of Appeal as sought in the Application for Amendment now under consideration. Put differently, are the Original and Additional Grounds cognizable by Section 243(2) of the Constitution or Section 9(2) of the National Industrial Court Act, 2006, so as to confer a right of Appeal on the Appellant as of right by raising any questions of fundamental rights and if not whether on Act of the National Assembly or any Law thereof has prescribed that the

Grounds of Appeal sought to be filed are cognizable by the Court of Appeal so that leave can be sought for the hearing of the said Appeal.

It is pertinent to note that the sole Original Ground of Appeal sought to be amended states thus:
“2. GROUNDS OF APPEAL
GROUND 1
That the Learned Trial Judge erred in law by holding that the Respondents established their claim enough to warrant Judgment to be made in their favour.
PARTICULARS OF ERROR
(a) The Learned Trial Court held that by Section 32 (d), Item N of the Third Schedule to the 1999 Constitution, the Revenue Mobilization and Fiscal Commission is the body that has the Constitutional power to determine the remuneration of Political Office Holders.
(a) That Exhibit ‘IK4’ affords the claimants a cause of action against the Defendant in this Suit without a Law of the Abia State House of Assembly confirming the said Exhibit ‘IK4’.
(b) Relying on Previous Decisions of High Court of Abia State in Suit No. HU/15/2008 Johnson Chidiebere & 7 Ors. Vs. Ikwuano Local Government per Hon. Justice S.N. Imo (CJ as he then was) delivered on 14/10/2008 and also HU/224/2007 Hon. Emezue

Sampson & 19 Ors. Vs. Umuahia North L.G. per Hon. Justice Onuoha A.K. Ogwe to hold that the debt of 45,247,698.00 owed the Respondents are justiciable liquidated and statutory without any backing of any law of the Abia State House of Assembly approving such payment or debt.”

As for the Additional Ground of Appeal now Ground 2 of the Proposed Amended Notice of Appeal, it reads:
“GROUND 2
That the Court below erred in law by not considering the Argument raised by Defendant’s Counsel. That the prescription of the Revenue Mobilization Allocation and Fiscal Commission is merely Directory and not mandatory and thereby occasioned a miscarriage of justice to the Appellant by denying them Fair Hearing.
PARTICULARS OF ERROR
1. That both of the Preliminary Objection and final address of Defence Counsel, Counsel raised the issue that the recommendation and/or prescription of the Revenue Mobilization Allocation and Fiscal Commission is merely directory and not mandatory.
2. That the Defence contended that it was the work of the House of Assembly to actually fix wages of Political Officer Holders in the State using the prescription of the

Revenue Mobilization Allocation & Fiscal Commission as a guide/ceiling.
3. That in its Ruling on the Preliminary Objection of Defence Counsel, the Trial Court merely restated the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as to the powers of Revenue Mobilization Allocation & Fiscal Commission without pronouncing on the contention of Counsel that the said provisions are merely directory.
4. That in failing to pronounce on the said argument of Counsel the Court below denied the defence the fight to fair hearing.?

A careful perusal of the two Grounds (the original and Additional) would reveal that whereas the Original Ground complained of the error committed by the Lower Court in holding that the Respondents established their claim enough to warrant Judgment to be entered in their favour and the particulars of error upon which the Ground is predicated complain that:
1. The Court held by Section 32(d) Item N of the Third Schedule to Constitution of the Federal Republic of Nigeria, 1999 (as amended), that the Revenue Mobilization and Fiscal Commission is the body Constitutionally charged

with the fixing and determination of the remuneration of Political Office Holders.
2. That Exhibit ‘IK4’ a Circular from the Revenue Mobilization Allocation and Fiscal Commission on the Remuneration Package for Councilors, afforded the Respondents a cause of action against the Appellants in the Suit without a law of the Abia State House of Assembly confirming the said Exhibit ‘IK4’, and;
3. That the lower Court relied on previous decisions of the High Court of Abia state to hold that the debt owed the Respondents was justiciable, liquidated and statutory without any backing by any law of the Abia State House of Assembly approving such payment or debt.

?The Additional Ground, contrary to the contention of the Learned Counsel for the Appellant that the lower Court was in error to have pronounced as it had done on the status of the Revenue Mobilization Allocation and Fiscal Commission and the Circular tendered by the Respondents as “Exhibit “IK4″, now turns somersault to contend that the Court below did not hear her in her Preliminary Objection and Final Address that that recommendation of the Commission was merely directory and not mandatory.<br< p=””

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In my humble view and in total agreement with the submission of Learned Counsel to the Respondents, the First/Original Ground of Appeal did not raise any issue of fundamental rights so as to warrant any amendment by the purported Ground raising the issue of fair hearing. The Original Ground of Appeal was incompetent as no leave was sought from this Court to hear it assuming there is even any Act of Parliament or Law permitting the Appellant to appeal with leave of this Court since that Ground of Appeal did not imbue the Appellant with the power to Appeal as of right rather than with leave of Court.

The introduction of Ground 2 which complains of fair hearing is a red herring or ploy to smuggle into or circumvent the clear provisions of Section 243(2) and 3 of the Constitution and to borrow the words of our learned brother in Lagos Sheraton Hotels & Towers V. Hotel & Personal Services Senior Staff Association (supra) of 42 -43; litigants who seek to circumvent or evade the provisions of the above Section of the Constitution nay Sections 9(1) and (2) of the National Industrial Court Act, 2006 on Appeals from that Court to the Court of Appeal, by

simply waving the magic wand or chanting the mantra “Fair Hearing” or “breach of Fundamental Rights” in order to gain access through the back door should not take the Court of Appeal for granted as we at all times and until the Constitution has been amended or an Act enacted to fill the lacuna created in the above provisions, shall subject applications of this nature as has been brought by the Applicant to discreet scrutiny to ensure that we do not exceed our jurisdiction.

Admirably, the Learned Counsel for the Respondents had insisted that the Original Ground of Appeal sought to be amended is grossly and fundamentally defective and therefore invalid so as to confer this Court with the requisite jurisdiction to entertain same. Accordingly, on the authorities of Atuyeye v. Ashamu (1987) 1 S.C. 333 of 358, Awhihawhi V. Oteri (1984) 5 S.C. 38 and in particular Nwaigwe V. Okere (2008) M.J.S.C. 86, 103 – 104 paras. G – A, the filing of the Additional Ground is like trying to resurrect a dead horse. The Original Ground was dead on arrival and a surreptitious Additional Ground of breach of fair hearing cannot revive the former as it is non-existent in eyes of

the law.

On the whole, this Application is moribund and therefore ungrantable. Same is accordingly dismissed for lacking in merit and the incompetent Grounds struck out I shall however make no order as to Costs.

ITA GEORGE MBABA, J.C.A.: I read the draft of the lead ruling just delivered by my learned brother, I.I. Agube JCA and I agree with his reasoning and conclusions.

No matter one’s disappointment with what looks like overwhelming powers donated to the National Industrial Court by the Constitution of the Federal Republic of Nigeria, as amended, which tends to make the National Industrial Court a final Court (or Supreme Court) in the causes and matters taken before it, with regards to its decisions, except in matters relating to enforcement of fundamental rights claims, that, unfortunately, remains the law, until the National Assembly comes up with a legislation that can tamper with those sweeping powers, and allow the Appellate Courts right/power to review the decisions of that Court, as it ought to be, especially as issues of employment may also touch on the fundamental rights of the Plaintiff, where fair hearing is

denied.

Meanwhile, the combined reading of Section 9 of the National Industrial Court Act, 2006 and Section 243 (2) and (3) of the 1999 Constitution, as amended, appears to allow no penetration, or opening of the seal of the judgments of that Court (National Industrial) for any review, except in respect of issues of enforcement of fundamental rights, whereof appeal to the Court of Appeal is as of right. See the case of Coca Cola (Nig) LTD v. Akinsanya (2013) 18 NWLR (pt. 1386) 255; Lagos Sheraton Hotel and Towers v. Hotel and Personal Service Senior Staff Association (2014) LPELR – 23340 (CA) and Zenith Bank Plc v. Caroline Dennis Durugbor (2015) LPELR – 24898 CA.

I too uphold the objection and strike out the appeal for incompetence. I abide by the consequential orders in the lead ruling.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I have nothing more to add to the erudite ruling of my Lord.

?I am in total agreement with the reasoning and conclusions in dismissing the application as totally lacking in merit.

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There shall be no order as to cost.

Appearances

No appearanceFor Appellant

AND

No appearanceFor Respondent