THE MANAGEMENT OF SYNDICATED METAL INDUSTRIES v. STEEL & ENGINEERING WORKERS UNION OF NIGERIA (2019)

THE MANAGEMENT OF SYNDICATED METAL INDUSTRIES v. STEEL & ENGINEERING WORKERS UNION OF NIGERIA

(2019)LCN/13491(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2019

CA/L/117/2012

RATIO

PRELIMINARY OBJECTION: IMPORTANCE

Therefore, the preliminary objection is a jurisdictional point which is fundamental and a threshold issue which must be resolved first and timeously in any appeal, see ANIYANGHAN & ORS v SEIYABAKORU & ORS (2017) LPELR ? 43383 (CA) – Where the Court held on whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal thus;
“It is settled law that where there is a preliminary objection to an appeal, the objection must first be heard and resolved. Even where, for the sake of convenience, the preliminary objection is heard or taken along the appeal, the practice, as recognised by law, is that the preliminary objection should be first determined to enable the Court to know the next course of action to take in the matter. See G.E.N. Onyekwuluje v. G. B. Animashaun & Anor. (1996) 3 NWLR (Pt. 439) 637; Godwin v. C.A.C (1998) 14 NWLR (Pt. 584) 162 and The Shell Petroleum Development Co. of Nig. Ltd. & 2 Ors. v. Chief Isaac Osaro Agbara & 4 Ors. (2016) 2 NWLR (Pt. 1496) 353.”
per ADUMEIN ,J.C.A (Pp. 6-7, PARAS. E – B)PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

TRADE DISPUTES( DLEGATION OF CERTAIN STATUTORY FUNCTIONS ) ORDER 1968 SECTION 1: WHAT DOES IT MEAN

It is also pertinent to also examine Section 1 (1), (2) & (3) of the Trade Disputes (Delegation of Certain Statutory Functions) Order, 1968;
1. Delegation of Certain Statutory functions

(1) The functions conferred on the Minister for Employment, Labour and Productivity under the provisions of the Trade Disputes Act, mentioned in column 1 of the Schedule hereto, are hereby delegated to the Permanent Secretary, Federal Ministry of Employment, Labour and productivity and the officer in charge of the State office of the Federal Ministry of Employment, Labour and Productivity (such officer not being below the rank of a Chief Labour Officer hereinafter called the state Labour Officer).
2. The permanent Secretary or the state Labour shall exercise the functions herein delegated in respect of disputes between any of the following authorities and workers employed by it
(a) the Governor of a State
(b) a local authority in a state
(c) any corporation, council, board or committee established or under any law (including a Law of a State.
(d) the proprietor of any school who receives grant in respect of the school out of the public revenue of the state;
(e) any establishment or company situated in the state.
(3) The Permanent Secretary of the Federal Ministry of Employment, Labour and Productivity shall in any other case, in addition of the foregoing, exercise the functions herein delegated.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

A STATUTE MUST STRICTLY BE FOLLOWED WHEN IT LAYS DOWN A PROCEDURE

See CROSS RIVER UNVERSITY OF TECHNOLOGY (CRUTHECH) v LAWRENCE O. OBETEN (Supra); ALADEJOBI v NBA (Supra). In EGUAMWENSE v AMAGHIZEMWEN (1993) 9 NWLR (PT 315) 1 at 25, the Apex Court in the question of whether the provisions of a statute must be complied with, had this to say;
“I will touch even briefly, on the issue or principle in respect of the laid down procedure in a statute or Rules of Court which was also briefly discussed in Chief Okereke’s v. Yar’Adua & Ors. case (supra) @ page 238 – per Onnoghen, JSC. It is now firmly established that where a statute lays down a procedure for doing a thing, there should be no other method of doing it. See the cases of CCB Plc v. The Attorney-General of Anambra State (1992) 10 SCNJ 37 at 163; Buhari v. Yusuf (2003) 6 S.C. (pt.II) 156; (2003) 4 NWLR (Pt.841) 446 @ 492.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

THE MANAGEMENT OF SYNDICATED METAL INDUSTRIES Appellant(s)

AND

STEEL & ENGINEERING WORKERS UNION OF NIGERIA Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice B.B Kanyip of the National Industrial Court, Lagos Division delivered on the 8th day of December, 2011 in Suit No: NIC/LA/45/2011 upholding the preliminary objection of the Respondent where the Court dismissed the suit for being premature and incompetent as the Appellant had failed to comply with Sections 13 and 14 of the Trade Disputes Act Cap T8 Laws of the Federation of Nigeria, 2004.

The brief facts leading to this case as gleaned from the records before the Court is that the Honourable Minister of Labour and productivity referred the matter to the Industrial Arbitration Panel (hereinafter referred to as IAP). The IAP as an Arbitral panel constituted under the provisions of the Trade Dispute Act Cap T8 LFN 2004 sat on the matter of Trade dispute between the Appellant and the Respondent; the parties filed their respective memorandum and were duly represented by their counsel. The award dated 11th February, 2011 by the IAP was communicated to the Honourable Minister of Labour and Productivity, who

presumably notified the parties of the award of the IAP as required by law. The Appellant dissatisfied with the award filed a General Form of Complaint as prescribed under the Rules of the National Industrial Court dated 31st May, 2011 against the whole decision of the IAP. See pages 1 & 2 of the Records of Appeal, where the Appellant claimed the following reliefs its general complain form;
I. An Order allowing the Appeal/Complaint.
II. An Order setting aside the award of the Arbitral Panel aforesaid.
III. An Order dismissing the arbitral proceedings.
IV. An Order entering judgment in favour of the Appellant in the Arbitral proceedings.

This was filed along with a motion for stay of execution dated and filed 6th June, 2011. The Appellant also filed a Notice of Appeal, which is at pages 34 ? 39 of the Record of Appeal, the Respondent reacting to the Notice of Appeal filed a Preliminary objection dated and filed on 27th June, 2011 challenging the jurisdiction of the Court below to hear the Appellant?s Appeal. The lower Court upheld the Respondent?s preliminary objection on the grounds that the appeal was premature

and incompetent on the 8th of December, 2011. The Appellant dissatisfied with the ruling of the Court below filed a notice of appeal which was amended and dated 5th April, 2012 and deemed filed 26th May, 2014.

The Appellant filed its brief of argument on 13/8/14 and its Reply brief of argument on 16/12/15 and deemed 23/5/17 and they were both settled by Rickey Tarfa, Esq. SAN, Rudolf U. Ezeani, Esq, O. T. Opara (Mrs), Adaobi Ewelukwa (Miss), Christianah I. Ajakaiye (Miss), Adedoyin A. Andu (Miss) of MESSRS RICKEY TARFA & CO. The brief contained four issues thus:
i. Whether the appellant was right in appealing directly to the Court below from the decision of the industrial arbitration panel as stipulated by the national industrial Court Rules, 2007, instead of going by the procedure laid down by Section 14 of the Trade Dispute Act (TDA)? (grounds 1, 2, 3, 4, 6 and 7 of the amended notice of appeal)
ii. Whether the Court below ought to have taken cognizance of the vacancy in the office of the minister of labour at the time of initiating this appeal/suit at the national industrial Court? (Ground 5 of the amended notice of appeal)

iii. Whether the jurisdiction of the National Industrial Court upon referral from the minister of labour is one of appellate jurisdiction and consequently whether the learned trial judge erred in determining the appeal based on the preliminary objection of the respondent without a brief of argument? (Grounds 9 and 10 of the amended notice of appeal)
iv. Whether the award of the industrial arbitration panel put as part of the record of appeal in the Court below is invalid because it did not emanate from the minister of labour (Ground 8 of the amended notice of appeal).

The Respondent filed its brief of argument on 9/10/15 and deemed 11/11/15 and it was settled by Kolade Akinyele LL.M (Lon) of MESSRS BOLA AKINYELE & CO, wherein he filed a notice of preliminary objection on 10/11/14 which he argued at page 8-14 in his brief and thereafter formulated 4 issues for determination, wit;
i. Whether this Appeal as constituted and contained in the Original Notice of Appeal dated 13th December, 2011 but filed on 20th December, 2011 is incompetent and ought to be struck out by this Honourable Court on the ground that same is not in due compliance and/or

inconformity with the provisions of Section 9(2) of the National Industrial Court Act 2006 and Section 243 (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that Appeal from the decision of the National Industrial Court shall lie only as of right to the Court of Appeal in civil causes only on questions of Fundamental Rights as contained in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
ii. Whether the amendment of the Original Notice of Appeal dated 13th December, 2011 but filed on 20th December, 2011 by the Amended Notice of Appeal filed on 5th April, 2012 and deemed properly filed on 26th May, 2014 is capable of sustaining this Appeal.
iii. Whether the Grounds of Appeal contained in the Amended Notice of Appeal and issues for determination raised up therefrom and argued in the Appellant?s Brief of Argument, particularly issues No. II to IV distilled from the said Grounds of Appeal contained in the said Amended Notice of Appeal dated and filed on 5th April 2012 flow from the Ruling of the Court below appealed against.
iv. Whether the Appellant was

not in error to have failed and/or neglected to await the referral of the Award of the IAP by the Honourable Minister of Labour and Productivity being the procedure laid down in Section 14 (1) of the Trade Dispute Act Cap. T8 LFN 2004, rather than appealing directly to the Court below.

SUBMISSION OF APPELLANTS COUNSEL
Appellant?s counsel on Issue one submitted accordingly; that the Respondent?s preliminary objection was based on non compliance with Section 14 of the TDA, and the Court below based its decision on Section 13 and 14 of the TDA. However, Section 13 and 14 of the Trade Dispute Act (hereinafter referred to as TDA) are not relevant nor the governing procedures for approaching the Court below from a decision of the Industrial Arbitration Panel (hereinafter referred to as IAP), on the grounds that Section 14 of the TDA does not stipulate a procedure for appealing to the Court below, Sections 13 and 14 TDA are unconstitutional and Section 13 and 14 of the TDA are no longer in force.

The Appellant submitted that Section 14 TDA does not stipulate a procedure for appealing to the Court below and provisions are to be

given their ordinary meaning, he relied on the case of BRAITHWAITE v STANDARD CHARTERED BANK NIGERIA LTD (2012) 9 NWLR (PT. 1305) 304, PP. 319 ? 320, PARA G ? E. He further submitted that in interpreting Section 14 in the plain, ordinary, unambiguous and literal form is that the minister has power to refer disputes only to the National Industrial Court established under the TDA and not to any other Court. And this Court was established under Part 2 of the TDA by virtue of Section 20 of the Act, but the Court established under Part 2 of the TDA has been abolished by Section 53 (1) of the National Industrial Court Act, 2006 (hereinafter referred to as NICA); ?Part II of the Trade Dispute Act is hereby repealed?, it therefore ceased to exist. The lower Court reliance on the above sections was therefore in error.

The Appellant stated that the Section 14 of TDA cannot regulate the practice and procedure of the Court below as the said sections are unconstitutional because they limit access to Court. And the point on the unconstitutionality of the provision was not disputed by the Respondent as no response was made to it.

The Appellant’s counsel submitted that the problem was not that the provisions of Section 14 TDA were unconstitutional but that the Appellant had shown that he suffered injury thereby. However, the holding of the lower Court was that a party seeking reliance on the constitution must show that he has suffered a detriment, injustice or injury. Appellant is of the opinion that the rule is rather that such party must show his locus standi because it has always be recognised that a party may resort to the constitution not only when his right has directly been infringed but also when it is immediately threatened, he relied on the case of OLAWOYIN v A.G NORTHERN REGION (1961) ALL NLR 269 PAGE 273, LINES 24 – 23, where the idea of ?immediate threat? was held to mean that no detriment or injury must in fact occur but the detriment or injury may only be prospective. The Appellant stated that from the evidence that was before the lower Court, it was glaring that the Appellant would suffer and suffered injury by the exercise of the rights of the Minister under Section 13 and 14 of the TDA and the affidavit evidence before his Lordship in the Court below showed how the

injustice and injury arose and affected the Appellant.

The Appellant in paragraph 4:17 (a ? g) of its brief stated in summary the injury and intended injury that it suffered.
The Appellant submitted that the law is crystal clear on when delivery of letters sent by post takes effect the moment the letter is duly posted by virtue of Section 26 of the Interpretation Act Cap I23 LFN 2004 and also the case of MONDAY ENWELIKU v THE STATE (1970) NSCC P. 38 (P. 40). It presupposes from the foregoing that the 7 days allowed under the law within which the Appellant was expected to communicate her objection had expired long even before she received the Notice of Award from the Minister of labour on 22nd August, 2011. The Appellants in a bid to meet up with the requirement of the law as to the time limit within which to file the objection, had to act on the undated and unreferenced letter with the copy of the Notice of Award she got from the Respondent counsel who had received theirs quite earlier as far back as the 12th of February, 2011.

He humbly submitted that the Court depart from the literal interpretation of Section 13 and 14 of the TDA as

espoused by the Court below, especially in the peculiar circumstances of this case. He relied on the Supreme Court case of FRN v OSAHON (2006) ALL FWLR (PT. 312) 1975 P. 2036 PARAS C, IGP v ANPP (2008) 12 WRN 65 P. 108, KALANGO v GOVT. OF BAYELSA STATE OF NIGERIA & 2 ORS (2009) 1 ? 2 SC (PT. II) 117 PP. 119 ? 120, AFOLABI v GOVT OF OYO STATE (1985) 2 NWLR (PT. 9) 734 P. 753. He further urged the Court to hold that the construction of Section 14 of the Trade Disputes Act as a condition precedent constitute an impediment to the Appellant?s right of access to Court as guaranteed under the Constitution and that Section 13 and 14 TDA and the powers exercised by the Minister there under are unconstitutional.

The Appellant submitted that Section 13 and 14 of TDA are no longer in force since Section 13 and 14 are both inconsistent with the constitution, it follows that from the date of commencement of the 1999 Constitution (Section 1 (3)) and have become null and void. He also added that by virtue of Section 53 (1) National Industrial Court Act, 2006, Part II of the TDA was expressly repealed and in Section 53 (2) the Act provided that the

other provisions of the TDA shall be construed with such modifications as may be necessary to bring it into conformity with the provisions of the Act. He went further to submit that Order 3, particularly Rules (1) (2) and (5) and Order 9 Rule 2 of the National Industrial Court Rules and Section 7 (4), (5) and 36 (1) (b) of the NIC Act, 2006 are directly in conflict with the provisions of Section 13 and 14 of the TDA. Therefore, Section 53 (3) of the National Industrial Court Act which provides that if any provision of the TDA is inconsistent with the provision of the NIC Act, the NIC Act shall prevail, would apply, he relied on the case of AQUA LTD v ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622 P. 643 PARAS B- C.

He stated further in his brief of argument that there is a distinction between a reference of a matter to the Court by virtue of the NIC 2007 Rules of the Court below. Citing the following authorities; UDOETE v HEIL (2002) 13 NWLR (PT. 783) 64; ELIOCHIN (NIG) LTD v MBADIWE (1986) 1 NWLR (PT. 14) 47 P. 72 PARAS D ? F; BRAITHWAITE v STANDARD CHATERED BANK NIGERIA LTD (Supra), defined an appeal as a challenge by a party of the decision

of a lower tribunal or Court and a reference is not for the purpose of correcting errors but for a resolution of the whole and actual dispute between the parties. An appeal and a reference are two different procedures, while the reference relates to exercise of original jurisdiction of the Court, an appeal calls for exercise of its oversight or supervisory jurisdiction. The Respondent was therefore wrong to insist that the Appellant should approach the Court below by way of a reference when the Appellant wants the Court to correct errors committed by the lower tribunal and not to rehear the whole case. Lastly, the Appellant submitted that the Respondent?s silence and the fact that it didn?t make a submission to the points raised by the Appellant is deemed to have conceded to the points and the lower Court was bound to uphold them, he referred to the case of TRACTOR & EQUIPMENT (NIG) LTD & 2 ORS v INTEGRITY CONCEPTS LTD & ANOR (2012) 2 NWLR (PT. 1283) 120, PP. 129 ? 130 PARAS H ? A.

On issue 2, Appellant stated that its submission that there was no Minister of labour in office at the time he filed the appeal to the Court

below, did not need further prove, unlike what the lower Court held, when it stated that the Appellant did not prove its assertion that there was no Minister in seat.

He relied on Section 122 (1) & (2) (a) – (b) of the Evidence Act 2011, that the lower Court ought to take judicial notice that there was no minister of labour as at 6th June, 2011. Learned counsel listed what the lower Court should take judicial notice of. Going further he posited that the fact that the new president was sworn in on 29th May 2011, and Section 64 (3), 64 of the 1999 Constitution on National House of Assembly and their first session on 6th June, 2011 which was the same date the appeal was filed. Even the fact that president nominated new ministers and sent their names to senate for confirmation on 28th June, 2011 were facts to be taken notice of. He cited the case of SPDC (NIG) PLC v. DINO (2007) 2 NWLR (PT. 1019) P. 416 on definition of judicial notice.
Finally, he urged the Court to resolve this issue 2 in his favour.

The Appellant challenged the jurisdiction of the Court in issue 3 and submitted that based on Section 7 & 7(1) A of NIC ACT 2006, the TDA Act

was repealed and appeals from the IAP lie to NIC directly as of right.

The Appellant argued that there are two jurisdiction of NIC; Original and Appellate jurisdiction (herein the whole dispute lies referred by the Minister) he referred to KAYDEE VENTURES LTD v HON MINISTER OF FCT & 2 ORS (2010) 2-3 SC (PT. 111) 37; OREDOYIN v AROWOLO (1989) 7 SC (PT11).

He submitted that the case came to the lower Court for review on appellate jurisdiction by way of Order 3 Rule 5 NIC Rules, 2007 and not by ministerial referral under Section 14 of TDA.

Appellant counsel contended that all the Respondent filed despite being served with the brief was a preliminary objection, he cited ADEBAYO ANIMASHAUN v THE STATE (2011) 4 NWLR (PT 1236) 69; MATHEW ECHERE v CHRISTOPHER EZIRIKE & 6 ORS (20O6) 12 NWLR (PT. 994) 386; CHIEF JAMES OKANGI & ANOR v MR. BAYO FATOBA & 4 ORS (2012) 7 NWLR (PT 1299) 266.
He urged the Court to invoke Section 1 of its Act and determine same on the processes filed.

On issue 4 the Appellant contended that the lower Court was wrong in declaring the award included in the record invalid because it did not emanate from

the minister, he pleaded fair hearing rules and that keeping the award of the tribunal away from the Appellant amounted to breach of his rights, he relied on Section 254c (3) of the 1999 Constitution and Section 7 of NIC ACT, and the FREEDOM of INFORMATION ACT Section 1 which entitles him to copies thereof, he cited in aid N.B.A v CHUKWUMEIFE (2007) 8 NWLR (PT. 1035) 221, that he has a right to appeal and he has done same, he referred to MICMERAH INT?L AGENCY LTD v A – Z PET PRODUCTS LTD (2012) 2 NWLR (PT. 1285) 564 PP. 592; EKPO v TOYO (2012) 8 NWLR (PT. 1303) 460 P. 476, PARAS F ? H.

Appellant submitted that by the case of OSUNG v STATE (2012) 18 NWLR (PT 1332) P279 PARA B ? H, that the Court had a duty to furnish him with the award and he had complied with the duty of compiling record. He referred to Section 1(1) & 4 (5) of 1999 Constitution to the point that the rules of Court cannot override the constitution, he cited OOMF LTD v NACB LTD (2008) VOL 44 WRN, PP.183 ? 184 lines 45 – 50; FBN PLC v T. S. A. IND. LTD (2010) 1 NWLR (PT 1216) 247 P289
He urged the Court to hold the award as valid.

Appellant submitted that the processes are complete hence, the appeal can be heard and that it is only on incomplete record that appeal is struck out he cited AULT & WIBORG (NIG) LTD v NIBEL INDUSTIRES LTD (2010) 11 NWLR (PT. 1220) 486; CHIEF EKPEMUPOLO & 4 ORS v GODWIN EDREMODA & 5 ORS (2009) 8 NWLR (PT. 1142) 166 PP. 196; CHIEF JOSHUA OLORUNYOLEMI & ORS v MRS HELLEN AKHAGBE (2010) 8 NWLR (PT 1195) 48 PP. 61 ? 62, PARAS G.B.
He urged the Court to hold for the above reasons, that the award is valid.

RESPONDENT”’S ARGUMENTS
The Respondent on the other hand in response argued issues 1 and ii together and submitted that these issues incorporates the grounds for the preliminary objection filed on 10th November 2014, that the appellate jurisdiction of the Court as contained in the 1999 Constitution as amended is of right over the decisions of the National Industrial Court only in civil cases.

He stated that Section 243(2) of 1999 Constitution and that the Appellant couched its grounds like fundamental rights under Chapter IV of the 1999 Constitution and contend same in 2 grounds which dwells on access to Court and contend that it is not

correct. He submitted that it is a question of following the procedures in Section 14 of TDA and not fair hearing. He cited GBENGA BODUNDE & ANOR v STAFF COPORATIVE INVESTMENT & CREDIT SOCIETY LTD, OAUTH COMPLEX & ORS (2013) 12 NWLR (PT 1367) 197

Furthermore, he contended that the right of access to court is not as described by Appellant, therefore the Original notice of appeal does not fall within the ambits of fundamental rights as captured by Chapter IV of the 1999 Constitution and as such the notice of appeal filed 20th December, 2011 is incompetent and liable to be struck out he cited NIGERIAN ARMY v SGT ASANU SAMUEL & ORS (2013) VOL 6-7 MJSC (PT III) 208, therefore he posited that should this Court hold that it’s incompetent then the amended notice of appeal filed on 5th April, 2012 has no basis to stand.

In the alternative, he submitted that if the Court holds that it is competent then grounds 3 – 10 therein are not within the bracket of fundamental human rights and should be struck off. He cited FIICHARLES ORGAN & ORS v NIGERIAN LIQUEFIED NATURAL GAS LTD & ANOR (2013) VOL 5-7 MJSC (PT 1).

On Issue 3, the Respondent submitted that issues ii ? iv do not flow from the grounds of appeal distilled from the notice of appeal and are therefore incompetent, he cited MACFOY v UAC (1961) 3 WLR 1409; FABIYI v ADENIYI & 2 ORS (2000) 6 NWLR (PT 662) 532, YISI NIGERIA LTD v TRADE BANK PLC (2013) PLC 2 – 3 MJSC (PT. IV); HALILCO NIGERIA LTD v EQUITY BANK LTD (2013) VOL 5 – 7 MJSC (PT 111) 166.

Respondent furthermore contended that the issues do not flow directly from the ruling of the Court being appealed from. He submitted that the ruling referred to in issue 3 was on the preliminary objection and not the appeal, he cited OPARA & ANOR v AMADI & ANOR (2013) VOL 6 – 7 MJSC (PT. III).

Finally, the Respondent contended in issue 4, that the Appellant ought to have waited for the minster’s referral instead of appealing directly, that by Sections 5 and 9 of TDA the dispute was referred by the minister to the IAP and both parties voluntarily submitted to take part in the procedure, and therefore parties are bound to comply fully with statutory procedures

Respondent contended that the notice of award was sent to both parties though the Appellant claimed he got

his late, he contended, that there are set procedures to be followed in the paragraph 3 of the notice of award and that the appellant raised objection via counsel?s letter of 31st May, 2011 herein he set 3 grounds to the minister for objections but instead of awaiting the minister?s response and possible referral to the National Industrial Court. The Appellant filed an appeal on his own to the NIC without an instrument from the Minister referring same to the lower Court thus depriving the Minister from exercising its discretion and discharging its statutory duties, he referred to Section 14 TDA and its against this filing that the Respondent raised a preliminary objection in the lower Court which was up held and action declared premature and struck out. He cited CROSS RIVER UNIVERSITY OF TECHNOLOGY (CRUTECH) v LAWRENCE O. OBETEN (2013) 34 NLLR (PT 100) 376; ALADEJOBI v NBA (2013) VOL 5 – 7 MJSC (PT 11).

Respondent submits that failure to comply is fatal and Notice of Appeal is premature, he cited ATOLAGBE v AWUNI & 8 ORS (1997) 9 NWLR (Pt. 522) @ 536 to define condition precedents; CHIEF BERTHRAND E. NNONYE v D. N. ANYICHIE (2005) 1 SC (PT

II) 96; MALGWI v GADAZAMA (2000) 11 NWLR (PT. 678) 258; SAUDE v ABDULLAHI (1989) 4 NWLR (PT 116) 387.

He disagreed that the NIC referred in Section 14(1) of the TDA is no longer in existence and the procedure laid down there in are inapplicable. He cited FEDERAL UNIVERSITY OF TECHNOLOGY AKURE & ANOR v ASUU (2014) 51 NLLR (PART 169) 175; GBENGA BODUNDE & ANOR v STAFF COPORATIVE INVESTMENT & CREDIT SOCIETY LTD, OAUTH COMPLEX & ORS (Supra).

REPLY BRIEF
The Appellant argued that the mode of response adopted by the Respondent was wrong in law and submitted that the issues must emanate from the grounds of appeal and in the circumstances must be struck out. He cited OKOYE v NIGERIAN CONS. & FURNITURE CO. LTD (1991) 6 NWLR (PT. 199) 501 at 532 ? 533; EZENWA v OKO (2008) NWLR (PT.1075) 610 PAGES 624 PARAS D ? E, S. C.

He argued that issues ought not to be formulated in a preliminary objection to an appeal, he cited OKELUE v MEDUKAM (2011) 2 NWLR (PT 1230) 176 PAGES 195-196 PARAS H ? B, he urged that the preliminary objection together with the issues be struck out.

?He noted that the Respondent first issue

attacked the grounds in the Notice of appeal of 20/12/11, while the notice was amended on 26th May, 2014 and therefore the objection is overtaken by events, he cited OKWULEHIE & ANOR v OBASI (2014) LPELR – 24292 (CA); AFRIBANK NIG PLC v MR CHIMA AKWARA (2006) 5 NWLR (PT 974) 619 at 640 F.

On the second issue, he relied on S.P.D C.N LTD v AMADI (2011) 14 NWLR (PT 1266) PG 157 at 186 ? 187, PARAS H ? A; NIGERIAN ARMY v SGT ASANU SAMUEL (2013) 6 – 7 MJSC (PT. III) 208 that the Respondent had filed a non contest form to the application for amendment and hence cannot at this stage attack same, and needs leave to so do, further more he argued that the Court lacks jurisdiction over such matters he cited COCA-COLA LTD v AKINSANYA (2013) 18 NWLR (PT. 1386) 255; LGSC EKITI STATE & ANOR v JEGEDE (2013) LPELR – 21131

He canvassed that a broad view be taken for accesses to Courts which in his view the preliminary objection is about, he relied on ODUTOLA HOLDINGS LTD v LADEJOBI (2006) 12 NWLR (PT. 994) 321 at 371; AKINRIMISI v MAERKS NIG LTD (2013) 10 NWLR (1361) SC 73; UNIVERSITY PRESS LTD v MARTINS (NIG) LTD (2000) 4 NWLR (PT. 654) 584;

OJUKWU v GOV. OF LAGOS (1986) 3 NWLR (PT. 26) 39, OBIKOYA v WEMA BANK LTD (1989) 1 NWLR (PT. 96) 157, BANK OF IRELAND v UNION BANK OF NIG (1998) 10 NWLR (PT. 569) 178.

In respect of the 3rd issue, he submitted that it is misleading and incompetent, and that issue 1 & 2 of Respondent be resolved against it. He contended that the objection at the lower Court was to the competency of the appeal before that Court and that ruling there on settled the appeal; hence the issue should be struck out.

The Respondent in the same vein attempted to strike out the appeal on inapplicability of Section 14 Trade Dispute Act CAP T8 LFN 2004;OLLEY v TUNJI (2013) 10 NWLR (PT 1362) 275 at 321.

RESOLUTION
In resolving the appeal I shall first of all deal with the preliminary objection of the Respondent which has been argued at pages 8 -14 of the brief of argument. And the Appellant responded in its reply brief.

NOTICE OF PRELIMINARY OBJECTION
(1) The Appeal filed herein in this matter is incompetent and same be dismissed or struck-out by the Honourable Court.
(2) The Court of Appeal being a creation of the Statute and the Constitution of the

Federal Republic of Nigeria 1999 (As Amended) has the basis and scope of its original and Appellate Jurisdiction set out in the aforesaid legislations referred to.
(3) The Appellate Jurisdiction of the Court of Appeal as prescribed under the Constitution of the Federal Republic of Nigeria (as Amended) is as of right over the decision of the National Industrial Court only in Civil causes on question of Fundamental Right as contained in Chapter IV of the Constitution of Nigeria as relates to matters upon which the National Industrial Court has jurisdiction and to Criminal matters.
(4) The Court of Appeal may be conferred with additional Appellate Jurisdiction over specific matters by an Act of the National Assembly had conferred such further Jurisdiction.
(5) In so far, no Act of the National Assembly conferring on the Court of Appeal with additional Appellate Jurisdiction in respect of specific matter on Appeal, this Appeal is incompetent, null and void and urge the Honourable Court to decline Jurisdiction and strike out this Appeal.
(6) The Appellant?s Arguments on issues raised and contained in the Appellant?s Brief of Argument

in respect of the Appeal from the Ruling of the National Industrial Court dated 8th December 2011 as per the Grounds of Appeal contained in the initial Notice of Appeal filed on 20th December 2011 and the Amended Notice of Appeal filed on 5th April 2012 with leave of this Honourable Court are not distilled from Grounds of Appeal nor do they flow from the decision of the National Industrial Court appealed against. Hence it ought to be struck-out.

I shall, then begin by considering the preliminary objection against the appeal, it should be noted that this is an appeal against the decision of the NIC per KAYIP, J upholding the preliminary objection of the Respondent in the lower Court (also Respondent herein) challenging the jurisdiction of the Court, the Appellant has requested that the whole appeal including the appeal at the lower Court which was declared premature and struck out be heard upon invokingSection 15, Court of Appeal Act which will be considered at the end of the preliminary objection should it not succeed.

?Therefore, the preliminary objection is a jurisdictional point which is fundamental and a threshold issue which must be resolved

first and timeously in any appeal, see ANIYANGHAN & ORS v SEIYABAKORU & ORS (2017) LPELR ? 43383 (CA) – Where the Court held on whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal thus;
“It is settled law that where there is a preliminary objection to an appeal, the objection must first be heard and resolved. Even where, for the sake of convenience, the preliminary objection is heard or taken along the appeal, the practice, as recognised by law, is that the preliminary objection should be first determined to enable the Court to know the next course of action to take in the matter. See G.E.N. Onyekwuluje v. G. B. Animashaun & Anor. (1996) 3 NWLR (Pt. 439) 637; Godwin v. C.A.C (1998) 14 NWLR (Pt. 584) 162 and The Shell Petroleum Development Co. of Nig. Ltd. & 2 Ors. v. Chief Isaac Osaro Agbara & 4 Ors. (2016) 2 NWLR (Pt. 1496) 353.”
per ADUMEIN ,J.C.A (Pp. 6-7, PARAS. E – B)

Without much ado the Notice of appeal subsisting for this appeal is that of the amended notice for appeal filed on 5/4/17 deemed on 26/5/2014 by order of this Court. Therefore the contention as

regards the competence of the original grounds in the Notice of appeal is of no moment.

The Respondent contends in issue 3 that the grounds in the amended notice of appeal particularly from issue ii to iv of the Appellant?s issues contained in the brief and distilled thereof do not flow from the ruling appealed against.

I have read the ruling appealed against at page 288 – 306 of the record and examined the issues complained of and find that issue 2 attempts to explain why the Minister?s referral is absent and that a Court ought to take judicial notice of it while issue 3 complains of the determination of the action in the lower Court on only a preliminary objection of the Respondent, this simply challenges procedure, and finally in issue 4 the complaint is based on the reason of the lower Court in holding the action as premature. Therefore the couching of the grounds are off tangent but the implication of the issues are clear and should not take the Appellant out at this stage, seeFABIYI v ADENIYI & 2 ORS (Supra).

The Respondent in issue iv of his brief (preliminary) also contended that the appellant was in error not to have

waited for the referral award of the Minister of labour and productivity in line with the procedure laid down in Section 14(1) of Trade Dispute Act Cap T8 LFN, 2004 instead of appealing. This calls for examination of Section 13 & 14 of TDA, 2004 which is hereunder reproduced;
?13. (1) An arbitration tribunal constituted under Section 9 of this Act-
(a) shall make its award within twenty-one days of its constitution or such longer period as the Minister may in any particular case allow; and
(b) on making its award shall forthwith send a copy thereof to the Minister, and shall not communicate the award to the parties affected.
(2) Subject to Subsection (3) of this section, on receipt of a copy of the award of the tribunal the Minister shall immediately cause to be given to the parties or their representatives, and to be published in such other manner (if any) as he thinks fit, a notice-
(a) setting out the awards;
(b) specifying the time (not being more than seven days from the publication of the notice) within which the manner in which notice of objection to the award may be given to the Minister by or on behalf of either

party to the dispute; and
(c) stating that, except where notice of objection to the award is given within the time and in the manner so specified by one or both of the parties, the award will be confirmed by the Minister.
(3) Where on the receipt of an award of the tribunal the Minister considers it desirable to do so he may refer the award back to the tribunal for reconsideration and shall not exercise his powers under Subsection (2) of this section until the award has been reconsidered by the tribunal.
(4) If no notice of objection to the award of the tribunal is given to the Minister within the time and in the manner specified in the notice under Subsection (2) of this section, the Minister shall publish in the Federal Gazette a notice confirming the award and the award shall be binding on the employers and workers to whom it relates as from the date of the award (or such earlier or later date as may be specified in the award).
14. (1) If notice of objection to the award of an arbitration tribunal appointed under Section 8 of this Act is given to the Minister within the time and in the manner specified in the notice under Section 12(2)

of this Act, the Minister shall forthwith refer the dispute to the National Industrial Court established by this Act.
(2) The award of the National Industrial Court shall be binding on the employers and workers to whom it relates-
(a) as from the date of the award or such date as may be specified in the order; or
(b) where, subject to Subsection (3) of Section 21, there is an appeal on the question of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria as from the date of the determination of the appeal.
(3) In so far as the terms and conditions of employment to be observed by an employer in accordance with any award made by the National Industrial Court under this section are more favourable than any statutory provisions affecting the terms and conditions of employment of the workers concerned, the award shall prevail. In this subsection, “statutory provisions” means provisions contained in any written law in force in Nigeria or any part thereof, or in any instrument made in the exercise of any power conferred by any such law.
(4) Any person who fails to comply with an award of a

tribunal as confirmed by the Minister pursuant to this section shall be guilty of an offence and shall be liable on conviction-
(a) in the case of an individual to a fine of N200 or imprisonment for six months; and
(b) in the case of a body corporate to a fine of N2,000
(5) Any person who after conviction in respect of an offence under Subsection (4) of this section continues to fail to comply with an award as mentioned therein shall be guilty of a further offence and shall be liable on conviction to a fine of N200 or N2,000, as the case may be, for each day on which the offence continues.
(6) Where an offence under this section by a body corporate is found to have been committed with the consent or connivance of, or attributable to any act or default on the part of any person in apparent control of the body corporate, the person or persons in apparent control and the body corporate shall be deemed to have committed the offence.

It is also pertinent to also examine Section 1 (1), (2) & (3) of the Trade Disputes (Delegation of Certain Statutory Functions) Order, 1968;
?1. Delegation of Certain Statutory functions<br< p=””

</br<

(1) The functions conferred on the Minister for Employment, Labour and Productivity under the provisions of the Trade Disputes Act, mentioned in column 1 of the Schedule hereto, are hereby delegated to the Permanent Secretary, Federal Ministry of Employment, Labour and productivity and the officer in charge of the State office of the Federal Ministry of Employment, Labour and Productivity (such officer not being below the rank of a Chief Labour Officer hereinafter called the state Labour Officer).
2. The permanent Secretary or the state Labour shall exercise the functions herein delegated in respect of disputes between any of the following authorities and workers employed by it ?
(a) the Governor of a State
(b) a local authority in a state
(c) any corporation, council, board or committee established or under any law (including a Law of a State.
(d) the proprietor of any school who receives grant in respect of the school out of the public revenue of the state;
(e) any establishment or company situated in the state.
(3) The Permanent Secretary of the Federal Ministry of Employment, Labour and Productivity shall in any

other case, in addition of the foregoing, exercise the functions herein delegated.

And Section 3 (a ? e) of Ministers? Statutory Power and Duties (Miscellaneous Provisions) Act, 1958 which provides thus;
3. Power of delegation
(1) Whereby any law enacted by the National Assembly or taking effect as if it had been so enacted, a Minister is empowered to exercise any powers or perform any duties, he may by a delegation notified in the Federal Gazette depute any of the following officers by name or office to exercise those powers or perform those duties, subject to such conditions, exceptions and qualifications as the Minister may describe ?
(a) the permanent secretary having supervision over a department of government with which the Minister has been charged with responsibility, or any officer who comes directly under the authority of such permanent;
(b) any officer of any such department of government;
(c) any officer of the police with the consent of the Nigerian Police Council or of the Police Service commission of the Federation, as the case may require;
(d) any other public officer with the consent of the

Minister charged with responsibility for the functions exercised by such officer, or
(e) any officer in the public service of a State with the consent of the Governor of the State.

The Appellant has conceded that the award was applied for and he did not file a counter affidavit at the lower Court to the preliminary objection. The clerical officer of the IAP filed an affidavit as to the request and the release of same, but the provisions of the law on the steps to be taken after an award is made if dissatisfied is that an objection is made to the Minister and the Minister then refer the dispute to the NIC. In this appeal, the Appellant has tried to explain that there was no minister since it was a period of a transition in government be that as it may, it is also common knowledge that government is continuous and eventually a minister will be appointed and he who by law has the power of referral would exercise his discretion no matter how late there is a provision for extension of time with reasons for the delay being allowed under the rules of Court. There is also a statute authorizing a delegation of statutory function. See; TDA (Delegation of

certain statutory function) Order 1968.
The Appellant has contended that to question the procedure adopted amounts to shutting or denying him access to justice/Court, I beg to disagree as the rules of Court adequately take care of the scenarios and the date of the award and referral dates would be clearly stated, furthermore the law requires that the Honourable Minister shall forthwith refer the dispute, it makes no provision for the party aggrieved, it is a statutory duty and it is a mandatory one for any one in that capacity to carry out. The subject matter is non-perishable neither would it be extinguished, the law cannot be waived nor varied, the award, therefore bore no marks nor seal of the said office, in the circumstance would the jurisdiction of the Court be invoked? Can the award be accepted to trigger the jurisdiction of the Court? These are provoking questions as to whether the jurisdiction of the lower Court has been triggered.
?Again is the fact that negates the contention of the appellant is that he had began compliance in the A part of the provision in writing to notify the minister of his objection to the award vide letter of 31st May,

2011 which again is within the period leading to transition government wherein the next one had been sworn on the 29th and the events leading to putting the new cabinet in place was ongoing, all these are judicially taken notice of, but the Appellant I agree, in an anxious bid, moved quickly to the Court without concluding the steps; See CROSS RIVER UNVERSITY OF TECHNOLOGY (CRUTHECH) v LAWRENCE O. OBETEN (Supra); ALADEJOBI v NBA (Supra). In EGUAMWENSE v AMAGHIZEMWEN (1993) 9 NWLR (PT 315) 1 at 25, the Apex Court in the question of whether the provisions of a statute must be complied with, had this to say;
“I will touch even briefly, on the issue or principle in respect of the laid down procedure in a statute or Rules of Court which was also briefly discussed in Chief Okereke’s v. Yar’Adua & Ors. case (supra) @ page 238 – per Onnoghen, JSC. It is now firmly established that where a statute lays down a procedure for doing a thing, there should be no other method of doing it. See the cases of CCB Plc v. The Attorney-General of Anambra State (1992) 10 SCNJ 37 at 163; Buhari v. Yusuf (2003) 6 S.C. (pt.II) 156; (2003) 4 NWLR (Pt.841) 446 @ 492. In the case

of Mr. Adesola v. Alhaji Abidoye & Anor. (supra). Iguh JSC @ page 96 stated that, where a special statutory provision is laid down, that procedure, ought to be followed and complied with unless it is such that may be waived.”
per OGBUAGU, J.S.C (P. 42, PARAS. B-E)
I agree that Section 14 of TDA constitutes a condition precedent in this circumstance.
The Appellant in response contended that Section 14 TDA has been repealed by Section 53 (1) & (2) of NIC ACT2006 I shall reproduce same;
Part II of the Trade Disputes Act is hereby repealed
Without prejudice to the provision of sub section 1 of section, the other provision of the Trade Disputes Act shall be constructed with such modification as may be necessary to bring it into conformity with the provisions of this Act.
I find that applying the literal interpretation rule of statue it is unambiguous, that only PART II of the TDA was affected and does not include the procedures for appealing from IAP. There is also no conflict in both statues and the Appellant jumped the gun and did not comply with the steps provided, this cannot be

equated with denial to Courts but a situation caused by the applicant who initiated the appeal on his own, thereby denying the Minister the fulfilment of Section 13 of the TDA 2004.
What makes it so glaring is that the minister has to take a decision on his objection one way or the other but the Appellant robbed him of his discretion to so act. This in effect affects the entire proceedings at the lower Court, the jurisdiction having not been activated; see MADUKOLU v NKEMDILIM (Supra)
I have read the decision of the lower Court, I find it unimpeachable and very apt under the circumstances.
The preliminary objection succeeds, and is upheld.
The ruling of the National Industrial Court per KAYIP, J delivered on 8th December, 2011 is hereby affirmed and the appeal is dismissed.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JC.A., just delivered with which I agree and adopt as mine. I have nothing more to add.

?JAMILU YAMMAMA TUKUR J.C.A.: My learned brother ABIMBOLA OSAURGUE OBASEKI-ADEJUMO JCA.

afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

R. U. EZEANI ESQ AND S. O. SANNI WITH S. O. ONASANYA (MISS)For Appellant(s)

KOLADE AKINYELEFor Respondent(s)

Appearances

R. U. EZEANI ESQ AND S. O. SANNI WITH S. O. ONASANYA (MISS)For Appellant

AND

KOLADE AKINYELEFor Respondent