MATTHEW EMUVOKE ABRIRI v. UNILEVER NIGERIA PLC (2019)

MATTHEW EMUVOKE ABRIRI v. UNILEVER NIGERIA PLC

(2019)LCN/12979(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/1056/16

JUSTICES:

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

MATTHEW EMUVOKE ABRIRI – Appellant(s)

AND

UNILEVER NIGERIA PLC – Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The law is trite that jurisdiction is a threshold issue and it is so important that it can be raised at any time or stage of the proceedings even for the first time on appeal. In fact, the issue of jurisdiction is one of such issues which the Court can suo motu raise. See; PETROJESSICA ENTERPRISES LTD Vs. LEVENTIS TECHNICAL COMPANY LTD [1992] NWLR (Pt. 244) 675; (1992) LPELR-2915 (SC) Pg. 23-24, Paras. G – B and ADETONA Vs. IGELE GENERAL ENTERPRISES LTD (2011) LPELR-159 (SC) Pg. 38-39, Paras. G – D. The consequence of lack of jurisdiction is that all efforts, expertise, resource and time put into the proceedings and determination of the cause or matter by parties, counsel and the Court amounts to a nullity. See ADETONA Vs. IGELE GENERAL ENTERPRISES LTD (Supra) at Pg. 24, Paras. A – B where GALADIMA JSC stated that: It is well settled that where there is no jurisdiction to hear and determine a cause or matter, everything done in such want of jurisdiction is a nullity. Similarly, this honorable Court in SHAMANG Vs. SHAMANG (2018) LPELR-44365 (CA) Pg. 19, Paras. A – F held that:
Jurisdiction is the lifeline and the only pipeline that supplies blood to any adjudication. Thus where a Court has no jurisdiction, its proceedings however well conducted and brilliantly decided is and remains a nullity. Both the labours, of the litigant and counsel on one side and the Court on the other side labour in vain… (Underlining by me). PER ABUBAKAR, J.C.A.

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Lagos State sitting in the Ikeja Judicial Division delivered by EMEYE J. on the 12th day of July, 2012 in Suit No: ID/1196/2010 which is contained at pages 90-97 of the Records of Appeal wherein the learned trial Judge dismissed the Appellants claim against the Respondent before the lower Court.

The facts relevant to the determination of this appeal are that the Appellant as Claimant before the lower Court instituted this suit vide a Writ of Summons and Statement of Claim dated and filed on the 13th day of August, 2010 against the Respondent herein as contained at pages 1 – 5 of the Records. The Respondent (as Defendant/Applicant) filed a Motion on Notice challenging the jurisdiction of the lower Court to hear and determine the suit on the ground that the Appellants claim falls within the exclusive jurisdiction of the National Industrial Court. See page 51 – 55 of the Records of Appeal. The Appellant as Claimant/Respondent opposed the Application contending that the matter was

part-heard. See pages 57 – 61 of the Records of Appeal. The learned trial Judge in the Ruling dated 15th December, 2011 and contained at pages 65 – 71 of the Records of Appeal dismissed the Respondents challenge to its jurisdiction; and held that the matter was part-heard and proceeded to hear and determine the suit. Judgment in the suit was delivered on the 12th day of July, 2012 in favour of the Respondent as contained at pages 90 – 97 of the Records of Appeal.

The Appellant, became aggrieved by the decision of the lower Court and therefore brought this appeal which is founded on an Amended Notice of Appeal filed on the 26th day of October, 2018 but deemed as properly filed and served on the 23rd day of January, 2019. The basis of the Appellants appeal is that the lower Court lacked jurisdiction to hear and determine the suit and that the suit falls within the exclusive jurisdiction of the National Industrial Court. The Appellants Brief of Argument was filed by learned Counsel Oludare Falana Esq. on the 26th day of October, 2018 but deemed as properly filed and served on the 23rd of January,

2019. The Respondent on the other filed the Respondents brief on the 8th day of January, 2019 through learned Counsel Ekene Odum Esq. The Appellant did not file any Reply Brief. The sole issue nominated for determination by the learned Counsel for the Appellant is:
Whether having regards to the combined effect of Section 7(1) (a) of the National Industrial Court Act and Section 254(c) of the 1999 Constitution as amended, the lower Court had inherent jurisdiction to entertain the suit?

The learned Counsel for the Respondent on the other hand equally formulated a sole issue for determination, the sole issue is reproduced as follows:
Whether the Appellant can appeal against the judgment of the lower Court on the ground of lack of the lower Courts jurisdiction to hear the suit by virtue of Section 254(c) of the 1999 Constitution as amended and Section 7 of the National Industrial Court Act, 2006 after opposing the Respondents application challenging the lower Courts jurisdiction to hear the suit by virtue of the same constitutional and statutory provisions?

SUBMISSIONS OF COUNSEL FOR THE APPELLANT
Learned counsel for the Appellant referred to Section 7(1)(a) -(c) of the National Industrial Court Act, 2006 (hereinafter referred to as the NIC Act, 2006) and Section 254(c)(1)(a) of the 1999 Constitution as amended to submit that the lower Court has been divested of jurisdiction to entertain the instant suit. Counsel further argued that trial in the instant suit commenced on the 19th day of January, 2012 after the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration Act), 2010 came into force on the 4th day of March, 2011. Learned counsel contended that as at the time the suit was pending before the lower Court, it did not qualify as part-heard matter and consequently the provisions of Section 254(c) of the 1999 Constitution clearly ousted the jurisdiction of the lower Court.

Learned counsel referred to IMO STATE SECONDARY EDUCATION MANAGEMENT BOARD & ORS Vs. DURU C.I. & ORS (2017) LPELR-42462 (CA) Pg. 9-19, Paras. F – D to submit that as at the day trial commenced on the 19th of January, 2012; the jurisdiction of the trial Court to entertain the suit had been effectively ousted. Counsel further relied on HERITAGE BANK LTD Vs. BENTWORTH

FIN (NIG) LTD [2018] 9 NWLR (Pt. 1625) Pg. 420 at 434, Pg. E – G to submit that the jurisdiction defect of the instant case is substantive and extrinsic to the adjudication of the suit and therefore cannot be waived.

Learned counsel further referred to Section 11 of the NIC Act, 2006 to further reiterate that the lower Court does not possess the jurisdictional competence to adjudicate on the matter especially as it is not a part-heard matter. Counsel referred further to AIYELAGEGAN Vs. L.G. SERVICE COM KWARA STATE [2009] 22 WRN (Vol. 22) Pg. 108 to submit that the provision of the NIC Act, 2006 is a specific provision on Labor related matters; therefore, disputes or issues between the parties herein must be governed by the NIC, Act. Learned counsel relied on Section 24 (3) of the NIC Act, 2006 to submit that upon realizing that it had no jurisdiction, the lower Court ought to transfer the matter to the appropriate Court, that is, the National Industrial Court within the Division. Counsel urged this Court to allow this Appeal; set aside the Judgment of the lower Court and Order the transfer of the suit to the National Industrial Court in Lagos.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENT
Learned counsel for the Respondent submitted that it would be unfair and an abuse of process and would create a situation where the Appellant is allowed to take advantage of his own wrong if the Appellant can appeal against the decision of the lower Court on the ground of lack of jurisdiction when the same Appellant had contended that the lower Court had jurisdiction when the Respondent challenged the jurisdiction of the lower Court on the same grounds now being canvased by the Appellant. Counsel also referred to Section 254(c) of the 1999 Constitution as amended and Section 7 of the NIC Act, 2006 to submit that the jurisdiction of the National Industrial Court is clear, sacrosanct and undisputable; and that the Respondent brought this to the attention of the lower Court which the lower Court however dismissed upon the opposition of the Appellant.

Learned counsel relied on SEVEN UP BOTTLING COMPANY Vs. ABIOLA & SONS [1996] 7 NWLR (Pt. 463) Pg. 714; AMAEFULE Vs. STATE [1988] 2 NWLR (Pt. 75) Pg. 156 at 177; OKAFOR Vs. A.G., ANAMBRA [1991] 6 NWLR (Pt. 200) Pg. 656; PAVEX INTERNATIONAL CO.

LTD Vs. IBWA [1994] 5 NWLR (Pt. 347) Pg. 685; ETTE Vs. EDOHO [2009] 8 NWLR (Pt. 1144) Pg. 601 at 614, Paras. C – D; BEN APLASTIC INDUSTRIES LTD Vs. VASILEYEV [1999] 10 NWLR (Pt. 624) Pg. 620 and HARRIMAN Vs. HARRIMAN [1989] 5 NWLR (Pt. 119) Pg. 6 to contend that the improper use of a judicial process or proceedings by a party to the harassment, irritation and annoyance of his opponent constitutes an abuse of Court process which the Court has a duty to prevent.

Learned counsel argued that the Appellant who contended that the lower Court had jurisdiction now turns around to say the lower Court had no jurisdiction because he lost at the lower Court and now wants the case to be transferred to and be tried de novo at the National Industrial Court six years after conclusions were reached on the merit in the case. Counsel submitted that it amounts to an abuse of Court process. Counsel further relied on IBRAHIM Vs. OSUNDE [2009] 37 NSCQR Pg. 196 and CHABASAYA Vs. ANWASI [2010] 42 (Pt. 1) NSCQR Pg. 415 at 477 to submit that he who must come to equity must come with clean hands and that the Appellant has not come to equity with clean hands.

Learned counsel further cited ALADE Vs. ALIC NIGERIA LTD [2010] 19 NWLR (Pt. 1266) Pg. 111 to submit that the Appellant cannot be allowed to benefit from his own wrong doing; that the Court ought not allow itself to be used as an instrument of fraud; and that no one should be allowed to benefit from his own fraud. Counsel further referred to GAABA Vs. LOBI BANK NIGERIA LTD [2003] FWLR (Pt. 173) Pg. 106; ADIMORA Vs. AJUFO [1988] 6 SCNJ Pg. 18 and AJIBADE Vs. PEDRO [1992] 2 NWLR (Pt. 241) Pg. 252. Learned counsel cited ALAO Vs. ACB LTD [2000] 79 LRCN Pg. 1908 at 1935 to submit that it is in public interest that there must be an end to litigation. Counsel urged this Court to dismiss the appeal because it is an abuse of Court process.

RESOLUTION
From the foregoing submissions of counsel for the respective parties, it appears that there is no dispute as to the position of the parties with respect to the sole issue distilled by the Appellant, that is, Whether having regards to the combined effect of Section 7(1) (a) of the National Industrial Court Act and Section 254(c) of the 1999 Constitution as amended, the lower Court had inherent

jurisdiction to entertain the suit? The Respondent apparently agreed with the Appellant on the position of the law with Respect to the jurisdiction of the lower Court in the light of the provisions of Section 254(c) of the 1999 Constitution as amended and Section 7(1)(a) -(c) of the National Industrial Court Act, 2006. This issue has already been judicially pronounced upon by this Court in a legion of authorities; See amongst others IMPERIAL MEDICAL CENTER & ANOR Vs. AHAMEFULE (2017) LPELR-42886 (CA) Pg. 8-14, Paras. E – F and AINA ABEBHOLO Vs. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY & ORS (2015) LPELR-24513 (CA) Pg. 27-33, Paras. F – F.

The Respondent, in my opinion seems to have consented to the fact that the lower Court had no jurisdiction as contended by the Appellant; the main contention of the Respondent however is that this appeal amounts to an abuse of Court process because the Respondent (as Defendant at the lower Court) had challenged the jurisdictional competence of the lower Court on the same grounds now being forcefully canvassed by the Appellant, but that the Appellant (as

Claimant before the lower Court) contended in opposition to the Respondent that the lower Court had jurisdiction and that the lower Court agreed with the submissions of the Appellant and proceeded to determine the suit on the merit. The Respondent submitted that it is unfair to allow the Appellant reverse his position at this stage having lost at the lower Court. The Respondent appears to be appealing to the conscience of this Court to make room for an exception to the age long and settled position of this Court and the Supreme Court on the issue of jurisdiction.

into the proceedings and determination of the cause or matter by parties, counsel and the Court amounts to a nullity. See ADETONA Vs. IGELE GENERAL ENTERPRISES LTD (Supra) at Pg. 24, Paras. A – B where GALADIMA JSC stated that: It is well settled that where there is no jurisdiction to hear and determine a cause or matter, everything done in such want of jurisdiction is a nullity. Similarly, this honorable Court in SHAMANG Vs. SHAMANG (2018) LPELR-44365 (CA) Pg. 19, Paras. A – F held that:
Jurisdiction is the lifeline and the only pipeline that supplies blood to any adjudication. Thus where a Court has no jurisdiction, its proceedings however well conducted and brilliantly decided is and remains a nullity. Both the labours, of the litigant and counsel on one side and the Court on the other side labour in vain… (Underlining by me).
In the instant case therefore, wherein the Appellant has submitted and the Respondent has concede that the lower Court proceeded to assume jurisdiction in the absence of one; all such efforts, expertise, resource and time however well, brilliantly and enormously

invested amounts to and remains a complete nullity which cannot be seen or considered by this Court. Let me reiterate that Courts are a creation of statutes and the extent to which a Court can exercise jurisdiction is determined by statutory provisions. See; OKOROCHA Vs. UBA BANK & ORS (2018) LPELR-45122 (SC) Pg. 17, Paras. C – D. The Applicable statutory provisions in the instant case are: Sections 7(1)(a)-(c), 11 and 24 of the National Industrial Court Act, 2006 and Section 254(c)(1)(a) of the 1999 Constitution as amended; the combined effect of these statutory provisions is that the National Industrial Court, to the exclusion of all other Courts has exclusive jurisdiction to hear and determine labour related matters and claims as in the instant case. The learned trial Judge did not dispute this position as he found at page 71 of the Records of appeal in his Ruling dated 15th December, 2011 that: Consequently, the National Industrial Court of Nigeria has exclusive jurisdiction to adjudicate in this matter today.
However, the learned trial Judge, at page 71 of the Records of Appeal decided to assume jurisdiction on the

ground that: The existing law which gives an exclusive jurisdiction on this matter to the National Industrial Court of Nigeria came into operation on the 4th day of March, 2011. Since this matter was commenced in 2010, before the present National Industrial Court of Nigeria Law came into operation, this Court has jurisdiction to entertain the matter. The lower Court, in my opinion, erroneously proceeded to assume jurisdiction on the understanding that the matter commenced in 2010; however, the records reveal that the matter came up for the first time on the 14th day of February, 2011 as found at page 47 of the Records of Appeal and as at 21st of September, 2011 when the Respondent (as Defendant/Applicant) filed a Motion on Notice challenging the jurisdiction of the lower Court as contained at page 51 of the Records of Appeal; trial had not commenced.
As rightly submitted by the learned Counsel for the Appellant herein trial commenced on the 19th of January, 2012; this can be confirmed at page 72 of the Records of Appeal. Therefore, as at the 15th December, 2011 when the trial Court assumed jurisdiction on the ground that the matter had

commenced; trial had in fact not commenced at all. It must be emphasized that by virtue of Section 11 (2) of the NIC Act, 2006 what determines whether a case, as in the instant case has been part-heard is not the date the action was filed but the date trial/hearing commenced. See IMPERIAL MEDICAL CENTER & ANOR Vs. AHAMEFULE (Supra) and AINA ABEBHOLO Vs. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY & ORS (Supra) where it was held that: As at that date (24/4/01), hearing in the suit was not commenced. No single witness had so far testified in the case. Therefore, in my view, the suit could not rightly be considered as part-heard cause or matter within the purview of the provision of Section 11 (2) of the NIC Act, 2006 (Supra)
In the light of the foregoing therefore, it is clear to me that the lower Court lacked jurisdiction to hear and determine the instant case which falls within the exclusive jurisdiction of the National Industrial Court. Therefore, the proper Order for this Court to make in the circumstance is to strike out the entire proceedings and the Judgment delivered by the lower

Court which in itself amounts to a nullity having been delivered without the requisite jurisdiction. See JAMES Vs. INEC (2015) LPELR-(SC) Pg. 51-52, Paras. E – B and OKOROCHA Vs. UBA BANK & ORS (Supra) at Pg. 17, Paras. A – C where SANUSI JSC restated the very well settled position of the law which is that jurisdiction is the life wire of any case and is the thresh-hold which is so fundamental that any decision reached by any Court of law no matter how superb, beautiful or sound such case, it is a nullity once such trial Court or tribunal or appellate Court lacks jurisdiction to determine or adjudicate on the matter or appeal.
In the light of the foregoing reasoning and the authorities cited, I find this appeal to be meritorious and therefore deserves to be allowed, it is hereby allowed by me. The judgment of the lower Court delivered by EMEYE J., on the 12th day of July, 2012 in Suit No: ID/1196/2010 which is the subject of this appeal is hereby set aside having been delivered without jurisdiction; this appeal is hereby struck out.
Parties shall bear their respective costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the judgment has just been rendered by my learned brother, Tijjani Abubakar, JCA. I am in entire agreement with and do not desire to add to the reasoning and conclusion therein contained. I adopt the entire decision as mine.

TOBI EBIOWEI, J.C.A.: I have read in draft the judgment of my learned brother, TIJJANI ABUBAKAR, JCA just delivered. I agree with him and abide by the judgment and consequential order made.

Appearances:

O. Falana with him, Wole Ahmed For Appellant(s)

Abimbola Ayinde For Respondent(s)

Appearances

O. Falana with him, Wole Ahmed For Appellant

AND

Abimbola Ayinde For Respondent