UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR v. MRS. ABDULRAHAMAN YETUNDE MARIAM (2016)

UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR v. MRS. ABDULRAHAMAN YETUNDE MARIAM

(2016)LCN/9083(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of November, 2016

CA/IL/77/2015

RATIO

CONSTITUTIONAL LAW: FAIR HEARING; THE PRINCIPLE OF FAIR HEARING

The said Section 36 (1) of the 1999 Constitution states as follows:

“In the determination of the civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

The ambit of this provision (a reproduction of Sections 22 of the 1963 Constitution and Section 33 of the now repealed 1979 Constitution of this country) has been examined and explained by the Apex Court in a number of cases. In Ransome-Kuti v. A. G. of the Federation (1985) 2 NWLR (PT 6) 211 @ 258, Oputa J.S.C. had this to say on it:

“The next Section of the 1963 Constitution heavily relied upon by Mr Braithwaite was Section 22 which stipulated:

“22(1) …………………………………………………………………………..”

Read as a whole, it is obvious that the right guaranteed by Section 22 above is similar to the right guaranteed by Section 33(1) of the 1979 Constitution and that is – “Right to fair Hearing.” The antecedent portion of S.22 of the 1963 Constitution uses the phrase ‘In the determination of his civil rights and obligations.” This can only refer to civil rights and obligations existing independent of Section 22 and not created by Section 22 above. It is in the determination of such civil rights and obligations that 1963 Constitution guaranteed any aggrieved person a fair hearing of his complain or his claim, in accordance with the rules of natural justice, namely impartiality and fairness. What Section 22 guaranteed was fair and impartial adjudication of disputes about rights and obligations which arise aliunde.”

And relating that to Fela Ransome-Kuti’s case, His Lordship continued:

“In the instant case, the dispute arose out of the breach of the common law rights of the Plaintiffs/Appellants to the quiet enjoyment of their close, to the security of their persons and to the continued possession of their chattels. In that dispute, the appellants had easy access to the Courts which is the first step towards fair hearing. In Court, they were given audience and there was no charge against the learned trial Judge of bias or interest. The appellants cannot therefore found their claim for damages for the tort of trespass on Section 22 of the 1963 Constitution.” (Emphasis mine)

His Lordship (Oputa J.S.C.) reconfirmed the extent of the Constitutional fair hearing provision in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (PT 7) 300 @ 383, saying:

“In this appeal therefore, the essential issue is the extent of the right to fair hearing guaranteed by Section 33 of the 1979 Constitution. Was the respondent?s right under Section 33 infringed or threatened with infringement” This Court in Alhaji Isiyaku Mohammed v. Rabiu (1968) 1 ALL N.L.R. 242 @ p. 426 has held that “a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing … The true test of a fair hearing …. is the impression of a reasonable person who was present at the trial whether, from the observation, justice has been done in the case.? This reasonable person, will naturally, be looking for the following in order to determine whether the trial was fair and whether justice has been done:-

How was the tribunal or the forum competens composed?

Was it composed of ‘judges’ or ‘persons’ whose impartiality and fairness were transparent; persons who taking into account our common human weakness, can exercise a detached attitude towards the facts presented to them; persons whom the Respondent will have no cause to suspect or distrust; persons in whom the Respondent reposed confidence? Justice, in the final analysis, must be rooted in confidence and that confidence may be destroyed by the conduct and/or utterances of the judex – (the person adjudicating) – giving the impression that he was biased: Metropolitan Properties Co. (FGC) Ltd v. Lannon (1968) 3 All E.R. 304 at p. 310.

Was the person whose conduct was being inquired into, given the opportunity to listen to and reply to all the allegations made against him; and was nothing adverse said about him in his absence?

“These are the twin pillars of fair hearing or fair trial. They are also the twin pillars of natural justice; they are the rules against bias and the right to be heard. In the Latin days of jurisprudence, the Ancient Romans put these two rules into two Latin maxims:

“1 Nemo potest esse judex in proprio causa; and

Audi alteram partem”

“In the English days of jurisprudence, they have been reduced to two very familiar words – Impartiality and Fairness. They are distinct but closely related concepts. Impartiality relates to the forum itself, while fairness relates to the right of the person accused to be heard Kanda v. Government of Malaya (1962) A.C. 322.”

In Alsthom S.A. & Anor. v. Chief Dr. Olusola Saraki (2005) 123 LRCN 72 @ 91 – 93, the same Apex Court, this time by Ejiwunmi J.S.C., said on fair hearing thus:

“Fair hearing according to our law, envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or tribunal hearing the parties? case should be fair and impartial without showing any degree of bias against any of the parties.” PER BOLOUKUROMO MOSES UGO, J.C.A.

APPEAL: WHEN WILL AN APPEAL LIE FROM THE DECISION OF THE NATIONAL INDUSTRIAL COURT

I think litigants also ought to realize by now that the National Industrial Court is specially established to provide an avenue for speedy resolution and disposal of industrial and allied disputes. That is the obvious intention of the provisions of Section 243 (2) and (3) and Section 9 (1) and (2) of the National Industrial Court Act 2006 circumscribing the right of appeal from that Court to this Court to only complaints of breach of a party’s fundamental right by that Court in the course of adjudication of disputes and further making the decision of this Court on such appeals final. It is the same intention – speedy resolution and disposal of industrial and allied disputes with less emphasis on technicality – that underpins Section 12 (2) (a) and (b) of the National Industrial Court Act 2006 providing that the Superior Court of record that that Court is “may regulate its practice and procedure as it thinks fit? and that though it shall be bound by the Evidence Act, but unlike other superior Courts, it “may depart from it (Evidence Act) in the interest of justice.” It is indeed a peculiar Court with peculiar jurisdiction. And to effectively exercise that peculiar jurisdiction, the 1999 Constitution by its Section 254 B (3) (as amended by its Third Alteration Act) further requires that the persons to be appointed Judges of that Court shall only be those who have knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.”

It is in furtherance of this confidence it reposes on these ‘experts’ so to speak in industrial law and relations and to ensure quick and final resolution of such disputes that Section 243 (2) of the Constitution makes their decisions appealable to this Court only when it is alleged, seriously, that they breached the fundamental rights provisions of the Constitution in the course of adjudication. In any case, the Constitution and the National Industrial Court Act having so clearly circumscribed the right of appeal from the decisions of these ‘experts’ in industrial and employment law and relations, it is not the business of the Court to import its own perceptions of fairness and justice into the Constitutional provision by giving it an interpretation that runs contrary to its clear provision. A Court may expound the provisions of the Constitution and any other statute for that matter but it cannot expand them under any guise as the latter is the exclusive reserve of the legislature. PER BOLOUKUROMO MOSES UGO, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

1. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD

2. UNIVERSITY OF ILORIN TEACHING HOSPITAL – Appellant(s)

AND

MRS. ABDULRAHAMAN YETUNDE MARIAM – Respondent(s)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court of Nigeria in Suit No NICN/LA/356/2012 delivered on the 19th of June 2013.

In that Court, the respondent, a Principal Nursing Officer in the employment of the appellants, in her statement of facts, claimed against her employers, the appellants:

1. A Declaration that the refusal, failure, or neglect of the Defendants to facilitate her promotion since January 2010 till date as well as her subsequent suspension is unlawful, malicious, arbitrary and oppressive in the extreme on the footing of which she is entitled to be assuaged in damages.

2. A Declaration that her purported query and subsequent suspension by the appellants was malicious and hence null and void, of no effect whatsoever and must therefore be retracted by them.

3. A Declaration that it will be unjust, inequitable and indefensible in law to allow the appellants to delay and/or deny the promotion due to her since 2010 regard being had to the fact that she has passed the requisite promotion interview and was/is not culpable for any malfeasance

incidental to such delay or denial.

4. An order compelling the appellants to reinstate her and to forthwith facilitate her due promotion from January 2010 when she passed the 2010 promotion exam, and to pay all the accrued income arrears thereof.

5. The sum of N50 million as aggravated and/or exemplary damages for the career stagnation or retrogression, financial misfortune, untold agony and emotional distress caused by the appellants unjustified delay and/or denial of the promotion due to the claimant since January 2010, as well as her illegal suspension.

Her complaint in the case was that she was being victimized by the appellants, her employers, by way of suspension and delay/denial of promotion because of what they perceived as the role she played, or did not play properly, as a senior staff in failing to detect an error in the Death Certificate she received on behalf of the Abegunde family which 2nd appellant issued in 2008 in respect of her late father who died under its management. It turned out that her family, led by her medical doctor brother, one Dr. Dele Abegunde, was not convinced that 2nd appellant was not negligent in its

treatment of their father and so instituted against it in the same 2008 a medical negligence suit in the Federal High Court. In the trial of that suit which lasted between 2008 and 2011, the contents of the aforementioned Death Certificate became a major point in determining the appellants? negligence, for which the Court in its judgment of 22/07/2011 found 2nd appellant liable and awarded against it total damages of over Eight million Naira (precisely Eight Million, one hundred and seventy-three thousand, two hundred and thirty naira (N8,173,230.00) in favour of respondent?s family). The appellants were not happy with that defeat and proceeded, on 02/08/2011, just ten days after the judgment, to issue respondent a query asking her to explain what they deemed her aforesaid laxity. That is even as it was not anywhere suggested by them that she had any part in issuing the said Death Certificate or her father?s treatment. Respondent promptly answered the query and therein labelled the allegations against her ‘spurious?, a word the appellants claim to have found very distasteful. Meanwhile she also already had issues with the appellants

over what she believed was the undue delay of her promotion to the next grade in her job, an Assistant Chief Nursing officer, which she claimed she was due for by Service practice since 2008 (the same year the Death Certificate and negligence issue started) and had even passed a promotion examination conducted by the appellants in 2010. On that, it is again common ground (and supported by Exhibit C6 dated 17th September 2010) that the appellants through their Chief Medical Director actually wrote to respondent after the examination informing her that she could not be considered for the 2010 promotion because there were no vacancies to accommodate all promotable candidates. That is again as respondent claims that some of her colleagues in her category that took the same 2010 promotion examination were in fact promoted to the next grade.

?In August 2011, the appellants, it is also common ground, again issued letters for promotion interview to officers in the respondent?s grade but bypassed her. Having waited for some time in vain for hers and the date of the examination fast approaching, she wrote to appellants for her own invitation letter but was

still not given one and so missed the examination which was conducted on 9th August 2011. The results of that promotion exercise, it is undisputed, were released on 6th October 2011 but her name was omitted. She described the omission as ‘malicious and in bad faith, especially as it contained the names of her colleague nurses who were also denied the 2010 promotion. She claimed she had been diligent in her work and had on several occasions received commendations and even won awards for the unit she oversees as the charge nurse, the latter of which is not denied by the appellants. She therefore claimed to have been traumatized, shocked and suffered depression by the appellants? decision to deny her promotion. She claimed she was being so treated because of the suit her family instituted and won against the 2nd appellant and that the Medical Director of the 2nd appellant had always maintained that unless her family compromised the execution of that judgment she would never be promoted. All efforts on her part to make the appellants change their stance, including causing her solicitors to write to them, having failed, she said, she instituted the instant

suit against them.

In their defence, the appellants justified their actions, including the issuance of the query on respondent and the refusal to promote her. They said they were not witch-hunting her but would ?hold her and everyone involved in the negligence highlighted in the Judgment of the Federal High Court? in her family?s suit squarely accountable for the unexplained derelict conduct which, they further claimed, is capable of causing them serious embarrassment and unnecessary expenses; that it is pursuant to the part she played ?in failing to call attention to the error in [and leaving uncorrected] the date of death stated in the Death Certificate collected by her?, a failure that in their ?genuine belief and honest opinion breaches her duty of loyalty and integrity to her employer and her profession as a nurse that they issued her the query in question. They accused her of using uncouth and disrespectful expressions to answer the said query and maintained that ?a staff undergoing disciplinary action or investigation cannot at the same time be considered for promotion, and that will remain the

position until the officer is cleared and that was why the respondent was not considered for the 2011 promotion. They admitted that respondent was invited to 1st appellant?s 2010 promotion exercise but added that invitation to interview or even success thereat did not guarantee promotion as same is not automatic but depends on a variety of factors, namely competitive merit amongst eligible candidates, records of performance and potential for competence to undertake higher responsibilities, seniority and previous records of performance, satisfactory record of conduct, availability of vacancies, and that candidates must not have pending disciplinary case. It was their stance that they acted within the ambit of the law and relevant rules and guidelines and the respondent who had not met these cumulative conditions for promotion and is even facing disciplinary investigation cannot claim having sustained distress, humiliation, disciplinary demotion and unwarranted stress for not being promoted. They argued too, that the respondent?s suit was premature and liable to be struck out because she did not exhaust internal remedies for dispute resolution

before instituting it: that in any case the 2nd appellant headed by the Chief Medical Director is separate and distinct from the 1st appellant. University of Ilorin Teaching Hospital Management Board, and so it was wrongly joined.

After due trial of these claims in which respondent testified alone for herself and the appellants also called one witness and tendered a number of documents, the National Industrial Court, Ibadan Division, per B.B. Kanyip J., on 19/06/2013 delivered a very well-considered judgment wherein it painstakingly attended to all the issues raised by the parties and held, inter alia, that it was not persuaded by the argument of the appellants that there was such a fine distinction between them that suing them together robbed the Court of jurisdiction as contended by the appellants. With regard to their contention that they were not witch-hunting the respondent but would hold her and everyone involved in the negligence highlighted in the Judgment of the Federal High Court responsible, His Lordship, among other factors, took note of the fact that that it had not been suggested at all that the appellants had taken any action against those

who actually issued the controversial Death Certificate for which they were insisting on holding the appellant who merely received it responsible. On these and other evidence before it, it perceived a witch-hunt on appellants? part and went on to describe their actions as ‘oppressive, unfair labour practices, vindictive and in bad faith.? It finally concluded/ordered in its judgment thus:

?On the whole and for the avoidance of doubt, I declare and order for the claimant in the following terms.

1. The refusal, failure or neglect of the defendants to promote the claimant since January 2010 till date is unlawful, mala fide, arbitrary and oppressive.

2. The purported query and subsequent suspension of the claimant was issued maliciously against the claimant hence null, void, of no effect whatsoever and must therefore, be retracted by the defendants.

3. The defendants are to forthwith recall the claimant to work and promote her to the next rank with effect from 2010 and without any loss of income.

4. The defendants shall to the claimant, pay within 30 days of this judgment, the sum of Two Hundred and Fifty Thousand Naira

(N250, 000) only as general damages for unfair labour practices against the claimant.

The appellants were dissatisfied with that judgment and, having secured an order of this Court extending time for them to appeal against it, lodged a four ground notice of appeal to this Court on the 18th day of March 2015, the details of which I shall later reproduce as it forms the basis of a preliminary objection by the respondent. From the said four grounds of appeal, the appellants in the brief of argument filed on their behalf on 09/02/2015 by their counsel, Joseph S. Bamigboye S.A.N., formulated the following three issues for determination;

1. Whether the demonstrated misconception of the defence and settled issues of law by the trial Court in its appraisal of evidence, findings and conclusion, is not in contravention of the appellants? right to fair hearing

2. Whether it is not perverse and in contravention of fair hearing for the trial Court to grant declaratory and injunctive reliefs, and award damages in contravention of clear statutory provisions guiding the respondent?s employment, grant reliefs at variance with the respondent?s

claim and premise substantial findings in this regard on the Judgment of the Federal High Court, Ilorin to which the 1st appellant is not a party.

3. Whether the trial Court?s judgment, unsupported by depositions and documents before it, is not in contravention of fair hearing.

In response, the respondent first raised a preliminary objection to the competence/validity of the entire appeal and the jurisdiction of this Court to hear it, which objection her counsel also argued preliminarily at the hearing of the appeal on 26/09/2016. The grounds for the said objection, as stated in the brief of argument filed on her behalf by Mr Y. A. Alaajo for Dayo Akinlaja (S.A.N.) & Co., are that:

1. By virtue of S. 243(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended by Constitution of the Federal Republic of Nigeria (Third Alteration Act 2010)) this Court lacks jurisdiction to entertain this appeal.

2. Alternatively, the appeal is incompetent for failure of the appellant to seek requisite leave of this Honourable Court to file same.

Copious arguments were canvassed by counsel on both sides on the objection. I

shall consider the said arguments, but not before reproducing the sole issue formulated by the respondent?s counsel on the merits of the appeal, which he urged us to consider in the event that we do not agree with him on the preliminary objection. His said issue on the merits of the appeal, which he indicated covers all four grounds on which this appeal is brought, is:

Considering the totality of evidence before the trial Court and the applicable principles of law, whether the trial Court breached the appellant?s right to fair hearing in assuming jurisdiction over the case and in finding for the respondent.

As the arguments on the merits of the appeal will only become relevant if the appeal survives the preliminary objection, I must as a matter of necessity first decide the said preliminary objection and I proceed right away to do that.

Preliminary Objection

As said earlier, the respondent?s argument on the objection is anchored on Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides that:

(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 right 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 decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.

The contention of the respondent is that this provision confers two rights of appeal – one as of right under S.243 (2) above where the decision of the National Industrial Court is on questions of fundamental right as contained in Chapter IV of the 1999 Constitution, and the other with leave of this Court where it is so prescribed by the National Industrial Court Act of 2006 or some other Act of the National Assembly as provided by Section 9 of the same National Industrial Court Act. Counsel submitted, and learned silk for the appellants agreed with him, that so far, neither the National

Industrial Court Act 2006 nor any other Act of the National Assembly confers additional right of appeal besides what is contained in the provisions of Section of Section 243(2) of the Constitution and the appellants did not seek leave of this Court but lodged their appeal as of right, which means it was brought pursuant to Section 243(2) of the Constitution. He submitted that under S. 243(2), an appeal can only lie to this Court from the decision of the National Industrial Court on questions of fundamental right as contained in Chapter IV of the 1999 Constitution; that before a decision of the National Industrial Court can be said to be on questions of fundamental right, the argument further ran in Paragraph 4.05 of respondent?s brief of argument, the issues or questions submitted to the National Industrial Court by the plaintiff for adjudication must be on fundamental rights as contained in Chapter IV of the Constitution and the plaintiff?s case must be on the violation or breach of the rights contained in Chapter IV of the 1999 Constitution and must be commenced under the Fundamental Rights Enforcement Proceedings. He contended that since the

decision of the National Industrial Court sought to be appealed against was not on question(s) of fundamental right, an appeal cannot lie to this Court despite what he called the efforts of the appellants to circumvent the provisions of Section 243(2) by ?spicing? their grounds of appeal and particulars with ?fair hearing flavour?. Neither fundamental rights generally nor fair hearing specifically, counsel submitted, was the basis of the decision of the National Industrial Court and so ?waving? fair hearing at this Court by their grounds of appeal will not confer a right of appeal on them. On this submission learned counsel called in aid the dictum of our brother, Oseji J.C.A., in Lagos Sheraton Hotel & Towers v. H.P.S.S.A. (2014) 14 N.W.L.R. (PT 1426) 45 @ 68 para F- G. and urged us to decline jurisdiction and dismiss or strike out the appeal.

?Mr Joseph S. Bamigboye, S.A.N., for the appellants, in response, argued to the contrary, saying that the issues/questions for determination in the appeal are within the Fundamental Rights provisions of the 1999 Constitution and so it lies to this Court as of right, He

submitted that where the ?issue ? or ?issues? arising for determination in the appeal from the National Industrial Court can be accommodated under Chapter IV of the Constitution, appeal lies as of right to the Court of Appeal; that if the claim/relief of the respondent before the National Industrial Court or the question/issues for resolution on appeal are rooted in any of the provisions of Fundamental Rights under the 1999 Constitution, appeal lies as of right or by leave of this Court; that in so far as the claim of the respondent before the trial National Industrial Court and the issues raised in this appeal both relate to Fundamental Rights, especially fair hearing under Section 36 of the Constitution, it is squarely within the provisions of Section 243(2) and properly brought without leave. He argued that where the National Industrial Court misconceived the appellants? defence, misapprehended the applicable law to the cause of action, formulated the perceived weakness in their case to the advantage of the respondent, evaluated non-existent facts, failed to reach conclusions or make inferences which logically flowed from

them which no reasonable tribunal would fail to reach, or failed to determine issues properly before it as they complain in their grounds of appeal that happened in this case, their right to fair hearing entrenched in Section 36, Chapter IV of the Constitution is breached and an appeal lies to this Court by Sections 243(2) of the same 1999 Constitution and 9(2) of the National Industrial Court. Counsel cited a number of cases and finally urged us to dismiss the objection and hear the appeal on its merits.

Resolution of Preliminary objection

I have no doubt that the key to resolving this preliminary objection lies firstly in a proper understanding of the provisions of Section 243(2) of the 1999 Constitution conferring appellate jurisdiction on the Court of Appeal over decisions of the National Industrial Court only on questions involving Fundamental Rights under Chapter IV of the Constitution and secondly, understanding what constitutes the right to fair hearing and its breach under Section 36, Chapter IV of the said 1999 Constitution, which the appellants contend the National Industrial Court breached and so brought their complaints in the appeal

within the provisions of Section 243(2) to confer a right of appeal to this Court on them. I shall here consider these related questions and relate them to this appeal and the jurisdiction of this Court to entertain it.

First, Section 243(2) of the 1999 Constitution (as amended), which states thus:

(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 right as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.

Provided that where an Act or law prescribes that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such appeal be with the leave of the Court of Appeal.

As is evident from the summary of their arguments, counsel for the parties are on different poles in their interpretation of this provision. I do not blame them, the provision looks a bit clumsy on first impression. The seeming clumsiness however vanishes when the provision is broken down as follows:

An appeal shall lie from the decision of the National Industrial Court as

of right to the Court of Appeal:

a. on questions of fundamental rights

b. as contained in Chapter IV of this [1999) Constitution

c. as it relates to matters upon which the National Industrial Court has jurisdiction.

In other words, for an appeal to properly lie to this Court from the decision of the National Industrial Court under this Section, (a) Questions of fundamental rights must arise in the appeal; (b) Such questions of fundamental right must be those contained in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, as amended; and (c) Even at that, it is not every complaint against the decision of the National Industrial Court about breach of Fundamental Right contained in Chapter IV of the Constitution that appellate jurisdiction is conferred on the Court of Appeal, the breach in question must relate to matters over which jurisdiction is already conferred on the National Industrial Court (either by Section 254C of the 1999 Constitution (as amended by the Third Alteration Act of the Constitution) which spells out the jurisdiction of that Court, or by some other Act of the National Assembly conferring

jurisdiction on it, of which in the latter case, the appeal has to be with the leave of the Court of Appeal.

Having regards to the apparent difference between counsel in their interpretation of the word ?questions? as used in Section 243(2) of the Constitution in issue provision – with respondent?s counsel interpreting it to mean the relief/ claim before the National Industrial Court and the appellants? counsel saying it means the issues canvassed in the notice of appeal or from reliefs and claims in the Lower Court – let me pause to say a word or two on it before proceeding to the issue of fair hearing. Now this word ?questions?, which Section 243 (2) says can form the basis of an appeal to the Court of Appeal from a special Court like the National Industrial Court is not new to our constitutional development nor peculiar to Section 243(2) of the 1999 Constitution. It is in fact a recurring provision in even all our previous Constitutions with respect to the right of appeal from special superior Courts to the Court of Appeal. It was in Section 119 of the 1963 Constitution of this country with respect to the Sharia

Court of Appeal. When the 1979 Constitution came into being and made provision for Customary Court of Appeal in addition to the Sharia Court of Appeal and restricted the right of appeal from those Courts to the Court of Appeal, it used the same term ?question? that was employed by its Sections 223 and 224. All these provisions were again retained for rights of appeal from those Courts to this Court in the 1999 Constitution. For appeals to this Court from the Sharia Court of Appeal, it is Section 244, and for the Customary Court of Appeal it is Section 245. In Section 244 the provision is that ‘An appeal shall lie from decisions of the Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings, before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide,? while for the Customary Court of Appeal it says ?An appeal shall lie from decisions of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings, before the Customary Court of Appeal with respect to any question of Customary law and such other

matters as may be prescribed by an Act of the National Assembly.’ (Section 246(1) (b) of same 1999 Constitution makes similar provisions as to appealable decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunal). In applying and interpreting these and similar provisions in the laws of the various States, the focus of this Court and the Supreme Court has always been on the questions or complaints raised in the grounds of appeal to this Court of Appeal and not relief or claim in the trial Court as contended by the respondent?s counsel. See for instance Usman v. Umaru (1992) NWLR (PT 254) 377, (1992) 7 SCNJ 388, (1992) LPELR- 3432 at p.18, where the Supreme Court per Ogundare J.S.C, in interpreting a similar expression of ?in appeals involving questions regarding? as used in the 1979 Constitution (nay 1999 Constitution) and S.10(1) of the Plateau State Customary Court of Appeal Law in conferring appellate jurisdiction on the Customary Court of Appeal and Sharia Court of Appeal of Plateau State over decisions of the Area/Customary Court in appeals involving questions of customary law said:

?The expression ‘in cases involving questions regarding’ as used in S.10(1) of the Plateau State Customary Court of Appeal Law can only mean ?in appeals involving questions regarding?, I say this because just as it is the plaintiff?s claim in the trial Court that determines the jurisdiction of the Court – see Tukur v Govt, of Gongola State (1989) 4 NWLR (PT 117) 517, so also it is the issue, or issues, for determination in an appeal that determines the Court to which an appeal lies…? Emphasis mine.

This was reconfirmed a year later by the same Court in Golok v. Diyalpwan (1990) LPELR 1329, (1990) 3 NWLR (PT.139) 411 at 418 with Uwais J.S.C., as he then was, saying:

?It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. This right pertains to a complaint on ground of appeal which raises questions of customary law.”

Learned counsel for the respondent was therefore incorrect when he repeatedly argued in the respondent?s brief that the ?questions of fundamental right? envisaged by Section

243(2) refer to plaintiff?s reliefs and claims in the National Industrial Court touching on fundamental rights under Chapter IV of the Constitution and that it is only an appeal on, or relating to, such fundamental rights contained in such reliefs/claims that confer a right of appeal to this Court from a decision of the National Industrial Court.

Having said that however, one must not lose sight of the fundamental nature of the objection of the respondent: it challenges the jurisdiction of this Court to entertain the appeal of the appellants, because, according to her, it does not fall within the narrow confines of the ground on which appeals from that Court can lie to this Court as spelt out by Section 243(2) of the 1999 Constitution of this country. To that extent, this Court must, and in fact has a constitutional duty to, consider the objection on its merit and substance regardless of any ineptitude or inelegance in the manner it may have been presented: see on this Ojemen & Ors v. Momodu II & Ors (1983) NSCC 135 @ 147 by Obaseki J.S.C.; Enugwu v. Okefi (2000) 3 NWLR (PT 650) 620; Galadima v. Tambai (2000) 6 SCNJ 190; Nuhu v. Ogeie

(2004) FWLR (PT 193) 362 @ 385 (S.C.). It necessarily has to be so because if it is actually true that the appeal is not properly brought and this Court lacks jurisdiction to entertain it, the inelegant manner the respondent has put across her objection will not by that fact confer alone jurisdiction on this Court over the appeal, as a proceeding conducted without jurisdiction is a wasted effort and remains so for all times. It is with that in mind together with other points I have earlier made about the correct interpretation of Section 243(2) of the 1999 Constitution that I now return to the questions (or complaints) for determination as put forward by the appellants in their four grounds of appeal to this Court to see whether they truly raise questions of fundamental right, particularly breach of their right to fair hearing under Section 36 of Chapter IV of the 1999 Constitution of this country (as amended), to confer a right of appeal on them to this Court from the National Industrial Court. Their said four grounds of appeal read as follows:

Ground 1. The trial Court erred in law in breaching the appellants? right to fair hearing and renders the

judgment a nullity.

PARTICULARS OF ERROR IN LAW

1. The trial Court completely misunderstood the case of the appellants by ascribing to them evidence not given and standing settled principles of law on its head.

2. It is clearly a breach of fair hearing for the trial Court to evaluate its opinion and supposition as legal evidence, and ascribe them, albeit falsely, as evidence given by the appellants.

3. The trial Court is in contravention of fair hearing by completely failing to resolve the issue of incompetence of the Respondent?s suit on the ground that there is no cause of action, it is mandatory that every issue raised before the trial Court must be resolved, this is particularly so as the issue was premised on statutory provision.

Section 5(5) of the University of Ilorin Teaching Hospital (Reconstitution of Boards etc.) Act, Cap U15. LFN 2004.

4. It was wrong for the trial Court to discard with settled principles and case laws of the Apex Court applicable to this case under the Nigerian law, and imported case laws from India which are irrelevant and inapplicable.

5. Fair hearing is constitutional right under

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and its breach renders the judgment a nullity.

Ground 2-. The trial Court erred in law in making applicable Exhibit C 13, the Federal High Court judgment, to the 1st Appellant who was neither a party nor a privy to the case in contravention of the rules of fair hearing.

PARTICULARS OF ERROR IN LAW

1. The 1st Appellant is by the provision of Section 5(5) of the University of Ilorin Teaching Hospitals (Reconstitution of Boards etc.) Act, Cap U 15, LFN, 2004 the employer of the Respondent, and responsible for her engagement, discipline and promotion.

2. The 1st appellant was neither a party nor a privy to Exhibit C 13, the Federal High Court Judgment, upon which trial Court placed a heavy premium in arriving at her judgment on the wrong premise that it applies to the 1st Appellant.

3. The trial Court?s judgment is a nullity for being in contravention of the rules of fair hearing.

Ground 3- The trial Court erred in law and contravened the rules of fair hearing when it ordered the immediate reinstatement of the Respondent to the “next level? effective

from January, 2010 absolutely without evidential basis and against statutory prescriptions.

PARTICULARS OF ERROR IN LAW

1. The Respondent?s relief was for the Appellants? to “facilitate her promotion?.

2. The promotion of the Respondent as admitted by parties is regulated by statute, specifically Clause 020701 of the Public Service Rules, 2009

3. The statute stipulates for promotion establishment/budgetary provisions, vacancies, character and competitive merit among others, the trial Court lacks the power to order promotion without evidence of the existence of the conditions,

4. The Respondent was informed of why she did not succeed at the August, 2010 promotion interview vide exhibit C6 and the reasons were not assailed by the evidence before the Court.

5. The Respondent for reason of discipline did not attend the 2011 promotion interview without which, she cannot be promoted.

6. Decision of Court that is contrary to evidence or out rightly without evidential basis is in breach of fair hearing.

Ground 4: The trial National Industrial Court erred in law in the award of N250,000 to the respondent

without evidential basis, and therefore in contravention of fair hearing.

PARTICULARS OF ERROR IN LAW

1. The respondent at all times was earning her salary.

2. The respondent?s claim to depression was merely asserted and totally devoid of substance.

3. The Court is not a ?father Christmas? doling out monetary gift, but acts on evidence.

4. Granting a relief without evidential basis is acting under whims and caprice in contravention of fair hearing to the appellants.

There is no doubt that the appellants took special care to generously garnish each of their complaints in these grounds with the expression ?breach of fair hearing?. They picked holes in every decision of the trial judge that did not go their way and labelled them lack of fair hearing, with the obvious intention of bringing their appeal within the provisions of Section 243(2) of the Constitution so as to confer jurisdiction on this Court to entertain it. I guess they thought they had succeeded in doing that. The respondent does not think so; she rather says their use of those expressions – of breach of fair hearing – are just a

red-herring intended by them to hoodwink this Court into exercising jurisdiction over their appeal which this Court lacks. Which of them is correct? That is where the second issue I earlier identified, of what constitutes fair hearing under Section 36 of the Chapter IV of the Constitution and when it is said to have been breached as to support an appeal from the National Industrial Court to the Court of Appeal pursuant to Section 243(2) of the Constitution becomes directly relevant. The said Section 36 (1) of the 1999 Constitution states as follows:

?In the determination of the civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

(1985) 2 NWLR (PT 6) 211 @ 258, Oputa J.S.C. had this to say on it:

“The next Section of the 1963 Constitution heavily relied upon by Mr Braithwaite was Section 22 which stipulated:

“22(1) …………………………………………………………………………..”

arise aliunde.”

And relating that to Fela Ransome-Kuti?s case, His Lordship continued:

?In the instant case, the dispute arose out of the breach of the common law rights of the Plaintiffs/Appellants to the quiet enjoyment of their close, to the security of their persons and to the continued possession of their chattels. In that dispute, the appellants had easy access to the Courts which is the first step towards fair hearing. In Court, they were given audience and there was no charge against the learned trial Judge of bias or interest. The appellants cannot therefore found their claim for damages for the tort of trespass on Section 22 of the 1963 Constitution.? (Emphasis mine)

?In this appeal therefore, the essential issue is the extent of the right to fair hearing guaranteed by Section 33 of the 1979 Constitution. Was the respondent?s right under Section 33 infringed or threatened with infringement? This

Court in Alhaji Isiyaku Mohammed v. Rabiu (1968) 1 ALL N.L.R. 242 @ p. 426 has held that “a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing … The true test of a fair hearing …. is the impression of a reasonable person who was present at the trial whether, from the observation, justice has been done in the case.? This reasonable person, will naturally, be looking for the following in order to determine whether the trial was fair and whether justice has been done:-

1. How was the tribunal or the forum competens composed?

Was it composed of ?judges’ or ?persons’ whose impartiality and fairness were transparent; persons who taking into account our common human weakness, can exercise a detached attitude towards the facts presented to them; persons whom the Respondent will have no cause to suspect or distrust; persons in whom the Respondent reposed confidence? Justice, in the final analysis, must be rooted in confidence and that confidence may be destroyed by the conduct and/or utterances of the judex – (the person adjudicating) – giving the impression that he was biased:

Metropolitan Properties Co. (FGC) Ltd v. Lannon (1968) 3 All E.R. 304 at p. 310.

2. Was the person whose conduct was being inquired into, given the opportunity to listen to and reply to all the allegations made against him; and was nothing adverse said about him in his absence?

?These are the twin pillars of fair hearing or fair trial. They are also the twin pillars of natural justice; they are the rules against bias and the right to be heard. In the Latin days of jurisprudence, the Ancient Romans put these two rules into two Latin maxims:

?1 Nemo potest esse judex in proprio causa; and

2. Audi alteram partem?

In Alsthom S.A. & Anor. v. Chief Dr. Olusola Saraki (2005) 123 LRCN 72 @ 91 – 93, the same Apex Court, this time by Ejiwunmi J.S.C., said on fair hearing thus:

?Fair hearing according to our law, envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or tribunal hearing the parties? case should be fair and impartial without showing any degree of bias against any of the parties.?

From the foregoing, therefore, it is clear that the test of fair hearing under Section 36(1) of Chapter IV of the Constitution is whether the person complaining of its breach, in this case the appellants, was denied access to Court or other relevant tribunal to ventilate his grievance and whether the tribunal/Court or Judge who tried the case denied him/her a fair opportunity of presenting his case. Such denial can be, for instance, unfairly denying a party an adjournment – as it happened in Alsthom S.A. & Anor v. Chief Dr. Olusola Saraki (supra) and Salu v. Egeibon (1994) 6 NWLR (PT 348) 23 – or being high-handed in the case to the detriment of the party complaining. The appellants here have not complained of such in their four grounds of appeal; on the contrary, they freely elected

to call one witness in the trial who also testified without any restraint. Through that witness they tendered, again without restraint or interference from the Court, necessary documents to sustain their defence. They also cross-examined the respondent to their satisfaction when she testified, which all mean the first part of the rule of fair hearing – audi alteram partem – was not breached. They have not also alleged bias against the trial Judge, which again means the other part of the rule – nemo judex in causa sua – was not breached. Indeed all they have tried to do and succeeded in doing in their grounds of appeal is to scream ‘denial of fair hearing? wherever the trial Judge did not share their view in any of their contentions with the respondent. They seem not to understand, even as I believe they actually do but are pretending not to, that it is the province of the trial Judge as an adjudicator to agree or disagree with the contentions of disputants before him as he appreciates them. To them ?fair hearing? only means a hearing where the Court agrees with all their arguments regardless of their merit., anything else is ‘unfair

hearing? within their understanding of Section 36(1) of the 1999 Constitution for which a right of appeal lies to this Court under Section 243(2) of the same Constitution. I am sorry they don?t have me with them in that sort of thinking and interpretation of fair hearing. I hold the view that their complaints shorn of the fine embroidery of ?breach of fair hearing? they have sewn around them have nothing to do with breach of fair hearing. For instance, how can the Court?s decision that there is no fine distinction between the two appellants as to affect the Court?s jurisdiction by their joinder (which is appellants’ complaint in ground 1); or the admissibility and use of Exhibit 13, the judgment of the Federal High Court, which is (their complaint in Ground 2 of the appeal); or the Court?s decision, after taking evidence, that the respondent be reinstated (which again is their complaint in Ground 3 of the appeal); or their ground 4 where they complained of the award of damages properly claimed, be interpreted to conjure issues of breach of fair hearing? I really cannot see it. I think it is litigants like the

appellants my brother Oseji J.C.A. had in mind when he said, aptly, in Lagos Sheraton Hotel & Towers v. H.P.S.S.A. (supra) at p.71 that ?litigants who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the Constitution by seemingly waving the magic wand of fair hearing or breach of the fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope should be advised not to underestimate the sharp sense of perception and wisdom of the appellate Courts to sift the wheat from the chaff.”

In any event, to upturn a judgment on appeal on a complaint of breach of the fair hearing provisions of the Constitution, fair hearing must form the very foundation of that person?s case and not merely a decoy let alone as the key to open the doors of the appellate Court to hear other non-fair hearing complaints. That is just as it was said by Tobi J.S.C. in Sabiru Adebayo v. A.G. Ogun State (2008) 7 NWLR (PT 1085) 201 @ 222, (2008) 33 NSCQR (VOL 1) 1 @ 25 that:

?The fair hearing provisions in the Constitution is the machinery or

locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle available to a party to be picked up at will in a case and force the Courts to apply it. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing to advocate in favour of their cases leave fair hearing constitutional provisions alone, because it is not available to them just for the asking.?

appeals final. It is the same intention – speedy resolution and disposal of industrial and allied disputes with less emphasis on technicality – that underpins Section 12 (2) (a) and (b) of the National Industrial Court Act 2006 providing that the Superior Court of record that that Court is ?may regulate its practice and procedure as it thinks fit? and that though it shall be bound by the Evidence Act, but unlike other superior Courts, it ?may depart from it (Evidence Act) in the interest of justice.? It is indeed a peculiar Court with peculiar jurisdiction. And to effectively exercise that peculiar jurisdiction, the 1999 Constitution by its Section 254 B (3) (as amended by its Third Alteration Act) further requires that the persons to be appointed Judges of that Court shall only be those ?who have knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.?

It is in furtherance of this confidence it reposes on these ?experts? so to speak in industrial law and relations and to ensure quick and final resolution of such disputes that Section 243 (2) of the

Constitution makes their decisions appealable to this Court only when it is alleged, seriously, that they breached the fundamental rights provisions of the Constitution in the course of adjudication. In any case, the Constitution and the National Industrial Court Act having so clearly circumscribed the right of appeal from the decisions of these ?experts? in industrial and employment law and relations, it is not the business of the Court to import its own perceptions of fairness and justice into the Constitutional provision by giving it an interpretation that runs contrary to its clear provision. A Court may expound the provisions of the Constitution and any other statute for that matter but it cannot expand them under any guise as the latter is the exclusive reserve of the legislature. The result of all the above analysis is that the preliminary objection has merit; it is hereby upheld and this appeal is struck out.

In as much as the respondent is ordinarily entitled to costs, I decline to order costs against the appellants, with the hope that that will promote the much-needed reconciliation between the parties.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO; JCA. His Lordship has painstakingly and comprehensively dealt with the issues that arose in the appeal and resolved same, which I adopt as mine. I agree with his reasoning and conclusion arrived at in upholding the preliminary objection and the order striking out the appeal for being incompetent. I abide by the order made as to costs in the leading judgment.

HAMMA AKAWU BARKA, J.C.A.: The Judgment of my Lord, BOLOUKUROMO MOSES UGO, JCA was made available to me before its delivery.

Having carefully studied the arguments of Learned Counsel in their various briefs, and the records, the issue calling for resolution boils down to the interpretation of Section 243(2) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) with regards to Appeals from the National Industrial Court to the Court of Appeal.

?My Lord has excellently treated the issue, and there is no need repeating what my Lord has said. I adopt the reasoning and conclusions reached in the lead Judgment and accordingly agree that the preliminary objection has

merit, rendering the instant Appeal incompetent; and ousting the jurisdiction of this Court. In upholding the preliminary objection, the inevitable end result is that this Appeal is hereby struck out.

I make no order as to costs.

Appearances

Joseph S. Bamigboye, SAN with him, J.S Muhammed, Esq., Mrs F.O Bamidele and Sulaiman Alamoyo, Esq.For Appellant

AND

Y. A. Alajo, Esq. with him, L.O Bello, Esq.For Respondent

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