AINA OLUFUNSHO & ORS. V. GLOBAL SOAP AND DETERGENT INDUSTRIES LIMITED (2012)

AINA OLUFUNSHO & ORS. V. GLOBAL SOAP AND DETERGENT INDUSTRIES LIMITED

(2012)LCN/5643(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of November, 2012

CA/IL/26/2012

RATIO

JURISDICTION: JURISDICTION OF THE NATIONAL INDUSTRIAL COURT

This solitary issue, in a nutshell, questions the competence of the lower High Court to conclude the appellants’ matter, pending before it, given the provision of section 254c(1) (a), (b) and (k) of the 1999 Constitution, as amended, by the Constitution (Third Alternation) (No. 3) of 2010. It reads.
“254c-(1) Notwithstanding the provision of section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the conditions of service, including: health, safety, welfare of labour employee, worker and matters incidental thereto or connected therewith;
(b) relating from to, connected or arising Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations or any other enactment replacing the Acts of Laws;
(k) relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”
No doubt, the provision was newly factored into the Constitution, indisputably the provision has pruned down the expensive jurisdiction of the High court, the lower court, entrenched in section 272 of the Constitution as amended by stripping it of its vires to entertain, inter alia, civil causes and matters relating to or connected with labour and employment. This is more evident from its opening which deploys the omnipotent word, “Notwithstanding” which in legal parlance, is an expression/term of exclusion which connotes: inspite of irrespective or regarding whatever is contained in section 272 of the Constitution, as amended, see NDIC vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107; NNPC vs. Lutin Invest. Ltd. (2006) 2 NWLR (Pt. 965) 506; AC vs. INEC (2007) 12 WLR (Pt. 1048) 220. In other words, the provision of section 272 of the Constitution, dealing with the jurisdiction of the High Court, must be read subject and subservient to the provision of the new section 254c(1) (a)(b) and (k) of the amended Constitution which overshadows the former on the items listed therein.PER OBANDE OGBUINYA, J.C.A

INTERPRETATION OF STATUTES: WHEN THE PROVISIONS OF A STATUTE IS ON ALL FOURS WITH THE PRESCRIPTION OF ANOTHER ENACTMENT
Where a provision in a statute is on all fours with a prescription of another enactment that had already been construed by the courts, the courts are allowed to capitalize on the latter as the yardstick for interpreting the former, the uninterpreted provision. This principle has received the imprimatur of the Supreme Court in an avalanche of authorities, see A.G. Abia State vs. A.G., Fed. (2005) 12 NWLR (Pt.940) 452. Bakare vs. NRC (2007) 17 NWLR (Pt. 1064) 606; Nyame vs. FRN (2010) 7 NWLR (Pt.1193) 344.PER OBANDE OGBUINYA, J.C.A

SECTION 6(1) OF THE INTERPRETATION ACT
By law, the provision of section 6(1) of the Interpretation Act preserves the appellants’ accrued rights which they acquired under the now reduced provision of section 272 of the amended Constitution, see Lakanmu vs. Adene (2003) 10 NWLR (Pt. 828) 353; Abubakar vs. B.O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066) 319i A.G., Abia State vs. A.G. Fed (2006) 6 NWLR (Pt. 763) 364; A.G., Lagos State vs. A.G., Fed. (2003) 12 NWLR (Pt. 833).PER OBANDE OGBUINYA, J.C.A

INTERPRETATION OF STATUTES: WHETHER STATUTES OPERATE RETROSPECTIVELY OR RETROACTIVELY
Besides, the provision of section 254C(1) of the amended Constitution is a constitutional provision which is decked with all the features of a substantive law. Being a substantive law and adorned with its benchmarks,, the provision does not operate retrospectively or retroactively, particularly in the glaring absence of clear and express provision to that effect. The constitutional provision operates prospectively , in future, The legal maxim is: Lex prospicit non respicit – the law looks forward and not back, see Afolabi vs. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734 at 768; Ojokolobo vs. Alamu (1987) 3 NWLR (Pt. 61) 377 at 394; Olaniyi vs. Aroyehun (1991) 5 NWLR (Pt. 194) 652; Adesanoye vs. Adewole (2006) 14 NWLR (Pt. 1000) 242; Obiuweubi vs. CBN (supra). PER OBANDE OGBUINYA, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. AINA OLUFUNSHO
2. JOHN ADEMUYIWA
3. YAHAYA RASHEED
4. AFOLAYAN OLADELE Appellant(s)

AND

GLOBAL SOAP AND DETERGENT INDUSTRIES LIMITED Respondent(s)

OBANDE OGBUINYA, J.C.A, (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Kwara State, Ilorin, presided over by Hon. Justice I.A. Yusuf, in Suit No. KWS/40/2010, delivered on 30/06/2011, wherein it upheld the respondent’s preliminary objection and struck out the appellants’ suit.
The facts of that action, which culminated into this appeal, as collated from the processes filed, are brief and simple. The appellants, the claimants, were the employees of the respondent, the defendant, in the lower court. The respondent, on 01/04/2009, via a notice of disengagement, pasted on its notice board, terminated the appellants’ employment appointments with it. The appellants, who were, naturally peeved by that conduct, instituted an action against the respondent and its executive director, Mrs. Omolola Olabayo, for an unlawful dismissal from its employment in the lower court. Eventually, the name of the second defendant therein was, without opposition, struck out from the matter. The parties filed and exchanged their respective pleadings in the matter as required by law. Thereafter, the matter proceeded to full-scale trial. The appellants testified for themselves and fielded no other witness. They opened their case on 14/12/2010, closed same on 04/01/2011 and the case was adjourned to 20/01/2011 for the respondent’s defence as shown on pages 176 – 186 of the record.
The respondent, rather than opening its defence, filed a notice of preliminary objection on 08/04/2011, found on pages 130-131 of the record, wherein it prayed the lower court to dismiss or strike out the appellants’ action on two grounds to wit.
GROUNDS OF OBJECTION.
1. This suit relates and is connected with labour, employment and matters arising from workplace and conditions of service within the Exclusive Jurisdiction of the National Industrial Court.
2. The jurisdiction of the States and Federal High Courts in matters relating to or connected with labour, employment and matters arising from workplace and conditions of service have been ousted by the provisions of section 254C of the 1999 Constitution of the Federal Republic of Nigeria (As amended on the 4th March, 2011)”
The lower court, duly, heard the parties on the preliminary objection, as evidenced on pages 187 – 188 of the printed record, and in a considered ruling, delivered on 30/06/2011, it upheld it and struck out the appellants’ action. The appellants were unpleased with the ruling. Hence, they filed a two-ground of appeal, wrapped on pages 204- 205 of the record, in which they prayed this court as follows:
“4. Relief sought from the Court of Appeal.
(1) Allowing this appeal by setting aside the Ruling of the lower court that it has lost jurisdiction to continue trying the case due to the new amended section 254(c)(1) in the Constitution.
(2) An order directing the lower court to continue hearing the case from where it stopped i.e. Defence.”
As enjoined by the Rules of this court, parties filed and exchanged their respective briefs of argument in the appeal. The appeal was heard on 18/10/2012. In that perspective, the appellants’ counsel, H. A. Gegele, Esq., adopted their brief of argument, filed on 19/07/2012, and their reply on points of law, filed on 25/09/2012, but deemed filed on 10/10/2012, as representing his arguments in support of the appeal. He urged the court to allow the appeal. In the same vein, learned counsel for the respondent, Tosin Alawode, Esq., adopted the respondent’s brief of argument, filed on 24/09/2012, but deemed filed on 10/10/2012, as forming his submissions against the appeal. Learned Counsel drew the courts attention to the list of authorities he filed containing two cases viz: Olutola vs. Unilorin (20041 18 NWLR (Pt. 905) 416 and Ogolo vs. Ogolo (2000) 5 NWLR (Pt. 972) 173. He linked the two cases to his arguments in paragraph 1.1.1 and 1.1.9 of the brief respectively. He urged the court to dismiss the appeal.
In the appellants’ brief of argument, they crafted a lone issue for determination of the appeal, to wit:
“Whether or not the introduction of section S.254(c) of the 1999 Constitution of the Federal Republic of Nigeria (amended on the 4th of March, 2011) would truncate continuation of even part heard matters before State High Court thereby transferring them to the National Industrial Court for a fresh start.”
Interestingly, the respondent, in its brief of argument, adopted that singular issue for the determination of the appeal.
Arguments on the issue
Learned counsel for the appellants based his submission on the issue on four points, namely: 1. When was the matter instituted? 2. When did hearing commence? 3. Which law conferred jurisdiction in the trial court to entertain the action at the time the suit was being ,heard? 4. Whether the provision of section 254(c) of the Constitution, as amended, has retrospective effect as to deny the trial court the jurisdiction over part heard matters being before its commencement.
On the first point, learned counsel submitted that the appellants filed their action at the lower court, via a writ of summons, on 12/01/2010 while the provision of section 254(c) of the Constitution, as amended, was introduced on 04/03/2011. He noted that the date of filing the action predated the commencement of the provision. He posited that as at the time of filing the action, at the lower court, the law which gave it jurisdiction to adjudicate on it was the provision of section 272 of the amended Constitution
Regarding the second point, learned counsel reminded the court that hearing commenced on the action on 14/12/2010, when the appellants opened their case, adduced evidence and closed their case on 04/01/2011 and it was adjourned for defence. He then, contended, in view of the above that the action could not be retrospectively affected by the provision of section 254(c) of the Constitution, as amended, to deprive the lower, court the jurisdiction to conclude it as it was part heard. He placed reliance on the case of Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465. He insisted that the case of Aremo II vs. Adekanye (2004) NWLR (Pt. 891) 572, on which the lower court based its decision, was inapposite to the merit of the case. He added that the lower court misconstrued the facts of the case. He maintained that the provision of section 254(c) of the Constitution, as amended, could not put a stop to the proceeding which had already begun and validly commended as to deny the lower court jurisdiction to conclude the appellants’ action.
With regard to the third point, learned counsel argued that the jurisdiction of a court to entertain an action was determined by examining the law conferring jurisdiction at the time the suit was instituted and trial commenced. He, cited the cases of Obiuweubi vs. CBN (supra) and O.H.M.B. vs. Garba (2002) 7 SC (Pt. 11) 138 (2002) 14 NWLR (Pt. 788) 538 to support his argument. He took the view that the law applicable in deciding which court had jurisdiction was the law conferring jurisdiction on the lower court as at the time hearing commenced in the matter and not the law that came into being when hearing, in matter was still in progress. He persisted that the lower court was wrong when it held that the action before it must be heard and determined by the current law because hearing had not yet been concluded before the amendment. He referred to the cases of Obiuweubi vs. CBN (supra) and O.H.M.B. vs, Garba (supra). He reiterated the point that the law applicable as at the time hearing commenced in the matter would be the law that would continue to be applicable till its conclusion.
On the fourth point, learned counsel submitted that for a new statute to have retrospective effect on existing maters before a court, in which trial had begun, its provision must state clearly and expressly that it would have retrospective effect on all matters pending and party heard before the court. He relied on the case of Obiuweubi vs. CBN (supra) for the submission. He posited that nothing in the provision of section 254(c) of the Constitution as amended stating that it should have retrospective effect on partly heard matters as to affect the appellants’ case in lower court.
It was his further submission that the lower court was wrong in law when it held that it no longer had jurisdiction in the suit because section 254(c) of the Constitution, as amended, transferred jurisdiction from the State High Court to the National Industrial Court in respect of matters relating to labour dispute under section 272 thereof without considering the absence of any qualification that could have given section 254(c) retrospective applicability. He reasoned that the provision of section 254(c) had no abatement provision to apply retrospectively as to deny the lower court of its jurisdiction to conclude the appellants’ part heard matter. He took the stand that the provisions of section of 254(c) is very clear without having any retrospective effect so that it should be given its ordinary grammatical meaning. He cited the cases of Adebusuyi vs. Oduyoye (2004) 1 NWLR (Pt. 854) 406 and Omoyeni vs. Governor of Edo State (2004) 5 NWLR (Pt.865) 175. Finally, based on the above submissions, learned counsel urged the court to resolve the issue in favour of the appellants and allow the appeal.
For the respondent, its learned counsel argued , per contra, that the lower court was right when it declined jurisdiction and struck out the matter on the ground that the provision of section 254(c) of the Constitution, as amended, had robbed it of the jurisdiction to continue with it. He noted that courts are creation of statutes and constitution and they derive their jurisdiction from them. He relied on the case of A-G., Fed. vs. Abubakar (2008) 16 NWLR (Pt. 1112) 135. He added that in the instant case, the Constitution had circumscribed the extent and limit of the lower court’s jurisdiction in section 272 thereof and a court would not go outside its jurisdiction. He reminded the court of the nature of the appellants’ claim and reproduced the provision of section 254(c)(1) of the constitution, as amended, as appropriate for the action. He, then, posited that the provision had divested the lower court of its jurisdiction to continue with the hearing of the suit and as same fell exclusively within the jurisdiction of the National Industrial Court. He cited the case of SPDC (Nig) Ltd vs. Isiah (2001) 11 NWLR (Pt. 723) 168 to support his submission.
Learned counsel explained the meaning and features of jurisdiction and persisted that the duty of a court where it lacked jurisdiction would be to strike out the suit in order to allow the litigant (the appellants) to file the action, in a court of competent jurisdiction – the National Industrial Court in the instant case. He placed reliance on the cases of KLM Airlines vs. Kumzi (2004) 8 NWLR (Pt. 875) 231; Umanah vs. Attah (2006) 7 NWLR (Pt. 1009) 503; Obiuweubi vs. CBN (supra). He observed that if the Supreme Court case of Obiuweubi vs. CBN (supra) were available at the lower court, it would have decided the matter ‘othenuise. He, however, added that the decision in the case of Obiuweubi vs. CBN (supra) did not make it mandatory for the High Court to continue to hear and determine the matter in which it had commenced trial before the enactment divesting it of its jurisdiction; nothing that the words “could” and “should” were used therein to indicate that it was discretionary. He maintained that the lower court, having been satisfied that it had been divested of the jurisdiction to continue the hearing and determination of the matter, was right to have exercised its discretion not to continue hearing it. He placed reliance on the case of Olutola vs. Unilorin (2004) 18 NWLR (Pt. 905) 416; Osakwe vs. FCE, Asaba (2010) 10 NWLR (Pt. 1201) 1 to support his argument.
In the alternative, learned counsel took the view that the court could not grant the appellants’ relief in the appeal, that is, “(2) An order directing the lower court to continue hearing the case from where it stopped. i.e. Defence”. He submitted that it is absolutely outside the powers of the court to compel a trial Judge, which had declined jurisdiction, to go on with the matter. He posited that the order the court could make, depending on the circumstance of each case, would be to either remit the matter to the lower High Court for the purpose of such re-hearing by another Judge or that the case be heard by the court of competent jurisdiction – the National Industrial Court. He referred the court to the provision of section 15 of the Court of Appeal Act, 2004 and Order 4 of the Court of Appeal Rules, 2011. He persisted that the provision had not given the court the power to compel the lower court to do what it had declined to do, whether rightly or wrongly, when it was already functus officio. He relied on the case of Ogolo vs. Ogolo (2006) 5 NWLR (Pt. 9721 173 for that submission.
Learned counsel contended that granting the order/prayer would mean asking the lower court to sit on appeal over its decision. He added that remitting the case to another judge would mean to start de novo and would be caught by the provision of section 254(c) of the Constitution, as amended. He referred to the cases of NNPC vs. SLB Consortium Ltd (2008) 6 NWLR (Pt.1113) 322 and Babatunde vs: P.A.S. & T. A. Ltd (2007) 13 NWLR (Pt. 1050) 113 for the meaning of de novo trial. He insisted, based on the meaning of de novo trial, that the matter would no longer qualify as a part – heard one for the purpose of rehearing at the High Court below, but a fresh suit which could no longer continue thereat, but could only be heard and determined by the National Industrial Court.
On the appellants’ prayer 1 in the appeal, learned counsel argued that it would not have any effect and so an academic exercise which the courts had always desisted to delve into; adding that it would become an exercise in futility and order in vacuum. He stated that the case of the appellants was not that the State High Court had not been divested of their jurisdiction on their cause of action neither were they challenging the amendment to the constitution, but their case was that the trial Judge ought to have continued with the hearing of the case. He, then, posited that granting their relief , would mean the court conferring jurisdiction on a court which absolutely had lost it. He relied on the cases of O.H.M.B. vs. Garba (supra) and Obiuweubi vs. CBN (supra). He postulated that in none of the cases, relied upon by the appellants, did the Supreme Court grant such relief sought by the appellants, that is, compelling a trial Judge to continue with the matter in which he had declined to hear and determine. He concluded that the issue of retrospective law is not only irrelevant, but also, inapplicable because the provisions of section 254(c) are clear and unambiguous. Learned counsel, based on those arguments, prayed the court to dismiss the appeal.
On points of law, learned counsel for the appellants submitted that the cases of SPDC (Nig) Ltd vs. Isiah (supra); Osakue vs FCE, Asaba (supra) and Olutola vs. Unilorin (supra), relied upon by the respondent, favour the appellants’ case in that hearing did not begin in those matters until after Decree 107 of 1993 came into for0e. He posited that the word “could” was never used in the case of Obiuweubi vs. CBN (supra) and the case of O.H.M.B. vs. Garba (supra), where it was used, was later in time to the case of Obiuweubi vs. CBN (supra) which must be followed. In the alternative, he argued that if the lower court had the discretion to continue with the matter, it should have exercised it judicially and judiciously to achieve substantial justice. He placed reliance on the case of Waziri vs. Gumel (2012) 3 MJSG (Pt. 1) 55 to support his argument.
Learned counsel contended that the appellants’ prayer 2 could be granted by the court as a consequential order to prayer 1 based on the provisions of section 15 of the Court of Appeal Act, 2004 and Order 4 of the Court of Appeal Rules, 2011 . He posited that the appeal arose from the ruling made on the interlocutory application of the respondent (preliminary, objection) so that the lower court had not yet become functus officio. Learned counsel, finally, prayed the court to allow the appeal.
Resolution of the issue.
This solitary issue, in a nutshell, questions the competence of the lower High Court to conclude the appellants’ matter, pending before it, given the provision of section 254c(1) (a), (b) and (k) of the 1999 Constitution, as amended, by the Constitution (Third Alternation) (No. 3) of 2010. It reads.
“254c-(1) Notwithstanding the provision of section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the conditions of service, including: health, safety, welfare of labour employee, worker and matters incidental thereto or connected therewith;
(b) relating from to, connected or arising Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations or any other enactment replacing the Acts of Laws;
(k) relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”
No doubt, the provision was newly factored into the Constitution, indisputably the provision has pruned down the expensive jurisdiction of the High court, the lower court, entrenched in section 272 of the Constitution as amended by stripping it of its vires to entertain, inter alia, civil causes and matters relating to or connected with labour and employment. This is more evident from its opening which deploys the omnipotent word, “Notwithstanding” which in legal parlance, is an expression/term of exclusion which connotes: inspite of irrespective or regarding whatever is contained in section 272 of the Constitution, as amended, see NDIC vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107; NNPC vs. Lutin Invest. Ltd. (2006) 2 NWLR (Pt. 965) 506; AC vs. INEC (2007) 12 WLR (Pt. 1048) 220. In other words, the provision of section 272 of the Constitution, dealing with the jurisdiction of the High Court, must be read subject and subservient to the provision of the new section 254c(1) (a)(b) and (k) of the amended Constitution which overshadows the former on the items listed therein.
Since the provision is green in the Constitution, it has not passed through the furnace of judicial interpretation. To this end, I will invite one hallowed principle in interpreting the provision. That trite cardinal rule is this.
Where a provision in a statute is on all fours with a prescription of another enactment that had already been construed by the courts, the courts are allowed to capitalize on the latter as the yardstick for interpreting the former, the uninterpreted provision. This principle has received the imprimatur of the Supreme Court in an avalanche of authorities, see A.G. Abia State vs. A.G., Fed. (2005) 12 NWLR (Pt.940) 452. Bakare vs. NRC (2007) 17 NWLR (Pt. 1064) 606; Nyame vs. FRN (2010) 7 NWLR (Pt.1193) 344. The earlier identical provision which had been interpreted is section 230(1) of the Constitution of the Federal Republic of Nigeria (Suspension and Modification) Decree 107 of 1993 which came into force on 17/11/1993. That provision made a similar sweeping change on the unlimited jurisdiction of the High Court enshrined in section 236 of the defunct 1979 Constitution in favour of the Federal High Court. It has evoked and witnessed a battery of judicial interpretations by the court.
Having regard to the above principle of law, this court is in the warm embrace/province of the law to utilize the interpretations placed on the provision of section 230(1) of Decree No. 107 of 1993 as the template for construing the provision of section 254 C of the amended Constitution since both are coterminous in downsizing the jurisdiction of the High Court. Interestingly, the parties, via their learned, counsel woke up to this position of the law when they placed high premium on the cases decided on the provision of Decree 107 of the 1993.
A resume of the contention of the appellants is that the newly introduced provision does not affect their case that was part-heard in the lower court. On the other hand, the respondent is at odds with the appellants in their stand , id est that the provision disrobed the lower court of the jurisdiction to conclude it. The parties relied on these authorities to wit: O.H.M.B vs. Garba (supra); Obiuweubi vs. C.B.N. (supra); SPDC (Nig) Ltd vs. Isaiah (supra); Olutola vs. Unilorin (supra); Osakwe vs. FCE, Asaba (Supra). On this premise, and in order to do justice to the issue, it is, extremely, imperative to take parties, albeit briefly, through the purports of those decision of the Supreme Court on the provision of Decree 107 of 1993 with a view to ascertaining who earns the favour of the law.
Before that exercise, it is germane to place on record that the law applicable to a cause of action is not co-extensive with the law which bestows jurisdiction on the court which entertains the suit founded on that cause of action. The applicable laws in those two situations are mutually exclusive. Whereas, the relevant law applicable to a cause of action is the law prevailing when it arose, irrespective of the fact that the law had been revoked at the time the action is tried, the jurisdiction of the court to entertain an action is determined by the state of the law conferring jurisdiction at the point the action is instituted and heard, see Aremo II vs. Adekanya (supra); Adesanya vs. Adewote (2006) 14 NWLR (Pt. 1000) 242; Ada vs. NYSC (2004) 13 NWLR (Pt.891) 639; Utih vs. Onoyivwe (1991) 1 SCNJ 25.
I now return to the decisions of the court as encapsulated in the aforementioned cases. In the case of SPDC (Nig) Ltd vs. Isaiah (supra), the matter was part-heard in the High Court of Rivers State when Decree 107 of 1993 met it on 17/11/1993. The Supreme Court held that the jurisdiction of the High Court was ousted on 17/11/1993. In the case of O.H.M.B vs. Garba (supra), the cause of action arose before 17/11/1993, the date of birth of Decree 107 of 1993, and trial had also commenced before that date. As. a matter of fact, the respondent had closed their case on 17/01/1993, waiting for judgment. That is to say, the matter was part heard. The Supreme Court held that the High Court of Kano State had the jurisdiction to, determine the case.
Another case of Ada vs. NYSC (supra), not cited by the parties, is relevant. The appellant’s action was filed in the High Court of Benue State when Decree 107 had become operational by denying the High Court jurisdiction over the subject-matter of the dispute therein. The apex Court held that the High Court had lost the jurisdiction to adjudicate over the action.
In the other case of Olutola vs. Unilorin (supra), on which both parties pegged their submission, the appellant’s action was filed on 13/01/1993 and trial commenced therein on 31/03/1994, after Decree 107 had come into effect on 17/11/1993. The Supreme Court insisted that it was the Federal High Court, not the High Court of Kwara State, that had jurisdiction to hear the appellant’s grievance. Coincidentally, the case of Osakue vs. FCE, Asaba (Supra) shares similar facts and misfortune with Olutola’s case. Therein, the appellant sought redress in the High Court of Delta State in 1992. The court commenced trial in the action in 1994, after Decree 107 became effective on 17/11/1993. The Supreme Court held that the High Court had been divested of the jurisdiction to handle the appellant’s matter.
Then, came the case of Obiuweubi vs. CBN (supra), which both parties made heavy weather of. In that case, the appellant’s cause of action, termination of his appointment with the respondent, arose on 30/10/1987. He sued in the High Court of Lagos State on 07/07/1988. The case suffered chequered history in the sense that several Judges of that court handled it without conclusion. Subsequently, trial commenced in it on 15/12/1992, before the second to the last Judge, while Decree 107 had become operative on 17/11/1993. The Supreme Court held, with one voice, that the Federal High Court, not the High court, was clothed with the jurisdiction, that of the latter having been undermined by Decree 107 of 1993
Recently, there was the case of Goldmark (Nig) Ltd vs. Ibafon Co. Ltd. (2012) 10 NWLR (Pt. 1308) 291 – which this court discovered independent of counsel’s assistance. In that case, the first and second respondents, as plaintiffs, commenced their action in the High Court of Lagos State in 1990, trial commenced in 1993 and was completed in May, 1993 and judgment reserved to 31/03/1994. The Supreme Court held that since trial commenced before the Decree fit came into force on 17/11/1993, the High Court had jurisdiction to hear the matter.
Flowing from these ex cathedra authorities of the apex court, it can be gleaned/deduced thus: Where the matter was filed in the High Court after Decree 107 came into force on 17/11/1993, the court was divested of the jurisdiction to entertain it. If the matter was instituted in the High Court before the commencement of Decree 107, id est, 17/11/1993, but trial never started therein until that date, the court lost its jurisdiction to hear it. Where the action was constituted and trial commenced in the High Court before the coming into life of Decree 107 of 1993 on 17/11/1993, the court would be imbued with the jurisdiction to entertain it to conclusion. In legal parlance, the matter in the third category is part-heard. The apex court, in evolving the third category, was guided by the provision of section 6(1) of the Interpretation Act, cap. 23, Laws of the Federation of Nigeria, 2004.
I have deployed and situated the above dissected positions of the law with the case in hand with a view to discerning its fate. From the record, it is, abundantly, clear that the appellants, cause of action arose on 01/04/2009 when they were communally relieved of their employment appointments with the respondent. That is evidenced on pages 39 – 41 of the printed record. The cold record, amply, demonstrates, on page 1 thereof, that the appellants approached the lower court by instituting their action on 12/02/2010. Also, the record, clearly, showcases, on pages 176 – 186 thereof, that the appellants testified in persons and were, duly, cross-examined from 14/12/20010 to 04/01/2011 and the case adjourned to 20/01/2011 far the respondent’s defence.
The Constitution (Third Alteration) Act, which gave birth to the provision of section 254 C which drained the jurisdiction of the High Court, the lower court, was assented to by the president of the Federal Republic of Nigeria on 04/03/2011, see Schedule to the Federal Republic of Nigeria, Official Gazette, No. 20 of 07/03/2011 Volume 98, Government Notice No. 103. In the eyes of the law, that Act became alive and enforceable on 04/03/2011, see Ogboru vs. Uduaghan (2011) 17 NWLR (Pt. 1277) 727; HDP vs. Obi (2011) 18 NWLR (Pt. 1278) 80; section 2(1) of the Interpretation Act, section 58(1) of the Constitution, ds amended.
It stems from the above analysis that the appellants’ action was part-heard, since trial commenced on 14/12/2010, months before the provision of section 254C(1) of the amended Constitution, which eroded the jurisdiction of the lower court, came into operation. The legal implication of that part-heard status is that the lower High Court’s jurisdiction to entertain it was not denuded. In holding this view, I am fortified by the binding decision of the apex court in the cases of: O.H.M.B. vs. Garba (supra), Goldmark (Nig) Ltd vs. Ibafon Co. Ltd (supra). If it were to be that trial had never commenced before 04/03/2011, then the National Industrial would be the court to adjudicate over the appellants’ action. Here, I draw on the cases of: Olutola vs. Unilorin (supra); Ada vs. NYSC (supra); Osakue vs. FCE, Asaba (supra). Thus, in the case of Obiuweubi vs. CBN (supra), at page 501, Rhodes-Vivour, JSC, stated:
“For the State High Court to have jurisdiction under Decree 107 of 1993, the cause of action must arise before the 17th of November, 1993 and the trial must also be in progress before the said date. That is to say all part heard case$, in the State High Court before 19/11/93 Can continue because Decree 107 of 1993 does not have retrospective operation, and in view of section 6(1) of the Interpretation Act. . ..
For the Federal High Court to have jurisdiction the suit must be filed on or after 17/11/93. All cases in the State High Court filed before 17/11/93 but in which trial had not commenced as at 17/11/93 shall be heard by the Federal High Court….”
For a good measure, my view point is further solidified/consolidated by the provision of section 6(1) of the Interpretation Act, Cap. 123, Laws of the Federation of Nigeria, 2004 which ipsissima verba, reads:
“6 Effect of repeals, expiration, etc.
(1) The repeal of an enactment shall not –
(a) revive anything not in force or existing at the time when the repeal takes effect;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) affect any right, privilege, obligation, or liability accrued or incurred under the enactment;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued enforced, and such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.”
By law, the provision of section 6(1) of the Interpretation Act preserves the appellants’ accrued rights which they acquired under the now reduced provision of section 272 of the amended Constitution, see Lakanmu vs. Adene (2003) 10 NWLR (Pt. 828) 353; Abubakar vs. B.O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066) 319i A.G., Abia State vs. A.G. Fed (2006) 6 NWLR (Pt. 763) 364; A.G., Lagos State vs. A.G., Fed. (2003) 12 NWLR (Pt. 833).
Besides, the provision of section 254C(1) of the amended Constitution is a constitutional provision which is decked with all the features of a substantive law. Being a substantive law and adorned with its benchmarks,, the provision does not operate retrospectively or retroactively, particularly in the glaring absence of clear and express provision to that effect. The constitutional provision operates prospectively , in future, The legal maxim is: Lex prospicit non respicit – the law looks forward and not back, see Afolabi vs. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734 at 768; Ojokolobo vs. Alamu (1987) 3 NWLR (Pt. 61) 377 at 394; Olaniyi vs. Aroyehun (1991) 5 NWLR (Pt. 194) 652; Adesanoye vs. Adewole (2006) 14 NWLR (Pt. 1000) 242; Obiuweubi vs. CBN (supra). In sum, the appellants’ acquired rights, to have their matter ventilated and concluded in the lower court, under section 272 of the amended Constitution, is still intact or unscathed on the premise that it is part-heard.
Indubitably, the case of SPDC (Nig) Ltd vs. Isaiah (supra), which the respondent sought in aid, is not of an assistance to its case. The reason is not far-fetched. The case was a decision of the Supreme Court handed down on 18/05/2001. It was held therein that the jurisdiction of the High Court was undercut by the provision of Decree 107 of 1993 even when the matter was part-heard before 17/11/1993. That decision sharply contrasts with that of OHMB vs. Garba (supra); Obiuweubi vs. CBN (Supra) and Goldmark (Nig) Ltd vs. Ibafon Co. Ltd (supra) decided on 12/07/2002, 11/03/2011 and 23/03/2012, respectively to effect that part-heard matters before 17/11/1993 were within the jurisdiction of the High Court to determine. It is settled law that where there are two irreconcilable decisions of the Supreme Court, the lower courts, inclusive of this court, are enjoined to follow the one that is later in time, see Osakue vs. FCE, Asaba (supra). Going by the ages of the two sets of decisions, the decision in SPDC (Nig) Ltd. vs. Isaiah (supra) is older in judicial age. The decision in the other three cases is more recent and de jure, represents the law to be followed. This court will not act to the contrary so as not to incur the wrath of the law.
For completeness, it is important to attend to the respondent’s grouse against the appellants’ reliefs. The respondent, vehemently, canvassed the argument that the appellants’ reliefs are not grantable, in law, under section 15 of the Court of Appeal Act. I find it difficult to fathom out the basis of that contention. I am clear in my mind that the provision of section 15 of the Court of Appeal Act is generic and all encompassing in its connotations. It has donated to the court wide range of power to deal with any appeal before it, including asking a lower court to redo what it has done. In particular, it allots to the court, in any appeal, the authority to “… remit it to the court below for the purposes of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court…”
The issue of functus officio, raked up by the respondent, does not arise since the matter was still ongoing before it was aborted midstream. As matter of fact and law, to accede to that, seemingly, dazzling submission will make mincemeat of the appellants’ constitutional right of appeal which cannot, by any guise, be truncated or foreclosed by negative principles, see E.F.P. Co. Ltd vs. NDIC (2007) 9 NWLR (Pt. 1039) 216; Nwana vs. FCDA (2007) 11 NWLR (Pt. 1044) 59. In the aggregate, this court has the gargantuan statutory power, as enshrined in section 15 of the Act, and Order 4 of the Court of Appeal Rules, 2011, to set aside the decision of the lower court declining jurisdiction to hear the appellants’ action in so far as their appeal deserves it. Incontestably, once the decision of the lower court is set aside for being hostile/unfriendly to the law, it will be proper to order it to continue hearing the appellants’ case from whence it stopped.
In the light of the foregoing legal expositions, the lower court’s decision, declining jurisdiction on account of the provision of section 254C of the Constitution,as amended, and striking out the appellants’ suit, flies in the face of the law. On this score, it, the decision, is highly susceptible to impeachment by this court. In all, I resolve the singular issue in this appeal in favour of the appellants and against the respondent.
Before I round off with the verdict in this appeal, I must observe that there is crying need for legislators to count in abatement or transitional provision in this genre of statutory provisions that take away the jurisdiction of a court in favour of another court. Such a provision will cater or take care of the fate of pending matters in that court which possessed jurisdiction over them before the legislative mutation. It will, also, save the litigants, such as the appellants, from going through the harrowing experience of shopping for the , forum competens for the determination of their pending actions, That will, in turn, conserve the scarce judicial time for the litigants and the courts alike for the overall benefit of speedy administration of justice in the Nigerian legal system. It is only the law makers that have the unbridled liberty to do that needful.
On the whole, going by the reasons advanced heretofore, the appeal, is, quite, meritorious and deserves redemption. In the circumstance, I allow the appellants’ appeal. Accordingly, I set aside the decision (ruling) of the lower court, delivered on 30/06/2011, wherein it upheld the respondent’s preliminary objection and struck out the appellants’ suit. For the avoidance of doubt, the lower court is ordered to conclude the appellants’ suit from where it stopped. The parties shall bear their respective cost of prosecuting and defending the appeal.

PAUL ADAMU GALINJE J.C.A: I have had the privilege of reading in advance the judgment just delivered by my learned brother Ogbuinya JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
The Appellants appointments were terminated on the 01/04/2009 while the amendment to the 1999 constitution which ousted the jurisdiction of the Federal High Court on matters relating to or connected with labour employment and matters arising from work place and condition of service, carne into force on the 4th of March 2011. There is no provision that the amendment has a retrospective effect.
I entirely agree with my brother that those matters pending before other courts, before the new law came to force are not affected thereby.
For this and the more elaborate reasons in the lead judgment which I adopt as mine, I too allow the appeal and endorse all the consequential orders made therein including order as to cost.

ITA G. MBABA, J.C.A: I had the privilege of reading the draft of the judgment, just delivered by my learned brother, Ogbuinya JCA. He has been quite exhaustive and profound on the issues under consideration, and I agree, completely, with him.
The interpretation and application of new enactment/statute in relation to causes and matters already pending in Court (which had requisite jurisdiction at the time the cause/matter was filed to hear it) should not be left to conjecturing by any Court. It is, well settled, both by case law and legislation, which law should apply, in the circumstance, as the pending matter cannot be short changed by the new legislation, except expressly so stated.
It is even commonsensical and in tune with the rule of fair hearing and natural justice, to expect a Court, seised of jurisdiction in a cause/matter at the time it was instituted, to continue to hear the cause/matter to conclusion, though a new legislation is made, which subsequently comes to rob it of jurisdiction in such causes/matters. This is because the new law cannot be deemed to have retrospective or retroactive effect/application, on the pending causes/matters in the Court.
Appellats’ cause of action in the case under review accrued on 1/4/2009, and they invoked the existing jurisdiction of the State High Court on 12/2/2010 to seek redress, when they filed their action. The court accommodated them and started to hear their case on 14/12/2010. It even concluded the case of the Appellant and adjourned for defence to commence on 20/01/2011.
There was no question of lack of Jurisdiction by the High court to try the case, until the 3rd amendment of the Constitution, which sought to booster the status of the National Industrial Court. The amendment, I believe, was not meant to visit hardship on parties whose cases were pending in the High Courts. Certainly, the provisions of section 254C(1) of the 1999 Constitution, as amended, came into effect on 4/3/2011 (when it was signed into law by the president of the Federal Republic of Nigeria). That provision did not have Appellants’ action in its reach, and cannot be invoked against it, having not existed when the suit was filed.
By Section 6(1) of the Interpretation Act, Cap 123, Laws of the Federation, even where a new enactment repeals an existing law, such shall not be deemed to
“(e) affect any investigation and legal proceedings or remedy in respect of any such right privilege obligation liability, penalty forfeiture or punishment, and any such investigation legal proceeding or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment, and any such investigation legal proceeding or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment may be imposed as it the enactment had not been repealed.” (Emphasis mine).
OF course, that law protects the Appellants’ acquired right of redress or to seek redress, donated to them by Section 272 of the 1999 Constitution (by which the suit was filed on 12/2/2010).
By the wording of the provision of Section 254C(1) of the 1999 Constitution, as amended, it cannot even be said that the relevant provisions of the Section 272 of the 1999 Constitution has been formally repealed!
Rather, Section 254 C(1) says:
“Not withstanding the provision of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:-
(a) Relating to or connected with any labour, employment, trade, union, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour employee, worker and matter incidental thereto or connected therewith;” (And clauses (b) to (m) not relevant here)
Those new found powers of the National Industrial Court, vis-a-vis the existing powers of the Federal High Court or State High Court, under Sections 251, 257 or 272 of the Constitution, can only come into effect, from the date of the signing of the new provision into law, not before then!
That, I think, accords with logic and common sense, as well as with the demands of fair and expeditious hearing/justice.
The Respondent’s position and motivation in the Court below,appear to be the desire to frustrate the case at the High Court (or completely); that the Appellants be compelled to start afresh in the National Industrial Court, that is, if they still desire to pursue the claim, that mischief can be gleaned from the submission of the Respondent’s Counsel, when he said that we cannot order the trial Court to continue the case from where it stopped, that is, defence, because we would be compelling the trial court to do what it had declined to do, or to sit on appeal over it decision.
Of course, if the trial Court was misled to drop the case, on the excuse that it no longer had jurisdiction, we can direct it to continue, assuring it of its existing jurisdiction to conclude the case. See the case of Goldmark (Nig) Ltd vs. Ibafor Co. Ltd (2012) 10 NWLR (Pt.1308) 291, held, where the Supreme Court said:
The Law in force or existing at a time a cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say, the law in force at the time a cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. (Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465; Olutola v. Unilorin (2004) 18 NWLR (Pt.905) 416; Osakwe v. F.C.E. Asaba (2010) 10 NLWR (Pt.1201) 1; O.H.M.B. V. Garba (2002) 14 NWLR (Pt.788) 538 referred to.) (P.358, paras. C-E).
With this and other more elaborate’ reason in the lead judgment, I too hold that there is merit in the appeal, and allow it. I set aside the ruling of the learned trial Court and abide by the consequential orders in the lead judgment.