DR. MARTINS BABATUNDE FABUNMI v. UNIVERSITY OF IBADAN & ANOR (2016)

DR. MARTINS BABATUNDE FABUNMI v. UNIVERSITY OF IBADAN & ANOR

(2016)LCN/8331(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/I/94/2014

RATIO

COURT: JURISDICTION; WHETHER AN APPELLATE COURT HAS THE JURISDICTION TO ENTERTAIN APPEALS FROM THE NATIONAL INDUSTRIAL COURT

The question as to the jurisdiction of this Court to entertain appeals from the National Industrial Court has been decided by this Court. In the case of Lagos Sheraton Hotel & Towers v. Hotel and Personal at p.66, this Court per Oseji JCA stated thus: What can clearly be gleaned from the Provision of Section 243(2) and Section 254(c)(5) of the Constitution is that appeal from the National Industrial Court to the Court of Appeal can only be as of right in decisions connected with questions of fundamental rights under Chapter IV of the Constitution or decisions in Criminal causes or matters arising from any causes or matters of which jurisdiction is conferred on the Court by Section 254(c) 14 or any Act of the National Assembly or by any other law. By way of further exposition of the state of the law, this Court stated further at page 67 of the law report under reference thus: Put in another way, except for the Provisions of Section 243(2) and 254(5) and (6) of the 1999 Constitution (as amended) wherein an aggrieved party can appeal as of right to this Court on questions of fundamental rights as contained in Chapter IV of the Constitution as well as in decisions in Criminal cases as they relate to matters upon which the National Industrial Court has jurisdiction, an appeal on any other matter shall only be as prescribed by an Act of the National Assembly. Incidentally as at now, no such Act of the National Assembly has been enacted prescribing what other causes and matters in which an appeal shall lie against the decision of the National Industrial Court and until such law is made, the decisions of the National Industrial Court from which a party can appeal to this Court shall remain circumscribed. The position of this Court on its appellate jurisdiction with regards to appeals from the National Industrial Court was also stated by a full panel of this Court in the case of Coca-Cola Nigeria Ltd. & 2 Ors. v. Mrs. Titilayo Akinsanya (2013) 13 NWLR Part 1386 p.255 at p.310 thus: “The general appellate jurisdiction of this Court by the Provision of Section 240 of the Constitution (as amended) undoubtedly covers the Lower Court. The Provision of the said Section 240 is however subject to the provisions of the Constitution. The amended Constitution clearly does not create any inherent right of appeal to the Court of Appeal against the decisions of Courts lower to it in hierarchy having regard to the words ?subject to the provisions of this Constitution? as used in Section 240 (supra). It would therefore appear incontrovertible that given the Provision of Section 243 of the amended Constitution, the only right of appeal to this Court against the decision of the Lower Court as presently donated by the Constitution, is solely that of appeal as of right on questions of fundamental rights as contained in Chapter IV of the Constitution as they relate to matters upon which the Lower Court has jurisdiction. per. OBIETONBARA DANIEL-KALIO, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; THE SCOPE OF THE FORMULATION OF ISSUE FOR DETERMINATION

It has been held in numerous cases that issues for determination in an appeal must be formulated to fall within the scope of the grounds of appeal filed and that such issues should not include matters not in any of the grounds of appeal. See Onwumere v. The State (1991) 4 NWLR Part 186 p.428 also reported in (1991) 5 SC 148. It is also the position of the law that any part of a Brief or Argument which does not arise directly from at least one of the grounds of appeal filed will be regarded as incompetent and will be disregarded. See Oje v. Babalola (1991) 4 NWLR part 185 p.267; (1991) 5 SC 128. per. OBIETONBARA DANIEL-KALIO, J.C.A.

PRACTICE AND PROCEDURE: HOW TO DETERMINE WHETHER THE CLAIM OF A CLAIMANT DISCLOSES A CAUSE OF ACTION FIT TO BE TRIED

Now, it is settled law that in order to determine whether the claim of a claimant discloses a cause of action fit to be tried, the Court needs only to have regard to the Statement of Claim of the Claimant which alone determines whether or not the claim brought before the Court is justiciable. See Ogbimi v. Ololo (1993) 7 NWLR Part 304 p.130. Indeed, the Court will restrict itself to the Claimant?s Statement of Claim without recourse to the Defendants Statement of Defence. See UBN v. Umeodungu (2004) 13 NWLR (Part 890) p.352. Put more plainly, it is the totality of the averments in the Statement of Claim that determines the accrual of a cause of action. See Ayorinde v. Balogun (1990) 15 NWLR Part 151 p.393; Omomeji v. Kolawole (2008) 14 NWLR Part 1106 p.180. per. OBIETONBARA DANIEL-KALIO, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

DR. MARTINS BABATUNDE FABUNMI – Appellant(s)

AND

1. UNIVERSITY OF IBADAN

2. THE GOVERNING COUNCIL, UNIVERSITY OF IBADAN – Respondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the National Industrial Court of Nigeria (the Lower Court) in a matter that has to do with whether the action of the Claimant (the appellant in this appeal) is statute barred. The appellants case as gleaned from the Statement of Facts shows that he was employed by the University of Ibadan the 1st Respondent, in December, 1997 as an Assistant Lecturer in the Department of Educational Management in the Faculty of Education. His employment was confirmed on the 30th of September, 2000. On the 1st of October 2003, he was promoted to the rank of Senior Lecturer. On the 14th July 2008 he was attacked and assaulted at the Agbowo Area by four suspects namely Miss Thelma Uzomah Adoseh, Kolawole Adesina, Peter Ogere and Femi Adesina. All the suspects were apparently students of the 1st Respondent, the University of Ibadan. He promptly reported the incident to the Police and also notified the 1st Respondent of what transpired. He did so personally through letters and also through his Solicitors, the Law Firm of Olujinmi and Akeredolu. On

the 29th of July 2010, he received a query from the 1st Respondent alleging that he demanded sexual gratification from Miss Thelma Uzomah Adoseh on 14th July, 2008 before awarding her B.Ed Research Project score. In his answer to the query he denied the allegation that he demanded sexual gratification. It was his case that his attackers apologized to him and that their parents also wrote a joint letter of apology to him. The police he said carried out an investigation into the matter and absolved him of the allegation of sexual gratification. In spite of these developments, he was summoned by different Committees constituted by the respondents, namely the Students Disciplinary Committee for Jointly Committed Offences (SDCJO), the Central Students Disciplinary Committee (CSDC), the Panel of Investigation and the Senior Staff Disciplinary Committee (SSDC). None of the Committees made their reports available to him. Instead, on the 13th of July, 2011, he was served with a Letter of Dismissal. The letter was dated 30th June, 2011. Although he wrote a letter of appeal over the dismissal on 30/7/11, he received no reply to the letter. He considered that the

respondents acted mala fide and that their action had brought untold hardship to him. He therefore sought 6 reliefs from the Lower Court. Brevi manu, the reliefs were to quash the findings and recommendations of the Committees, a declaration that his dismissal was unlawful, a declaration that he is still a bona fide staff of the 1st respondent, a declaration that his dismissal was null and void, illegal and unconstitutional, and an order directing that he be reinstated in the service of the 1st respondent and that all his salaries, allowances and entitlements, be paid.

On 23/4/2013, the respondents, that is to say, the defendants in the Lower Court, filed a preliminary objection dated 22/4/13 on two grounds, namely, (1) that the suit of the claimant is statute barred by virtue of the Statute of Limitation Act, and (2) that the claimant is caught by the Provisions of Section 2(a) of the Public Officers Protection Act, Cap. P.41, Laws of the Federation of Nigeria, 2004. The Preliminary Objection was supported by a written address. The appellant, that is to say the claimant at the Lower Court, filed a counter-affidavit dated 4/5/13, to the preliminary

objection and also a written address dated 31/5/11 detailing his arguments in opposition to the preliminary objection. After considering the affidavits both in support of and in opposition to the preliminary objection and the written addresses of learned counsel, the learned trial judge on 27/1/14 came to the conclusion that the action is statute barred. He dismissed the suit based on the preliminary objection.

Dissatisfied, the appellant pronto, filed a Notice of Appeal on 10/2/14. He challenge the Ruling of the learned trial judge on the following two grounds.

GROUND 1

The learned trial judge erred in law and thereby occasioned a miscarriage of justice when he dismissed the suit of the appellant on the ground that it is caught by the statute of Limitation and is statute barred.

Particulars

i. In arriving at its decision, the Lower Court failed to give consideration to when the cause of action arose in the suit.

ii. The cause of action which gave rise to the suit arose on 13th of July 2011 when the appellant was served a letter of dismissal.

iii. In determining when the cause of action arose, time begins to run when the

appellant received his letter of dismissal and not on the date written on the letter.

iv. The appellant adduced evidence at the Lower Court of when he was served a letter of dismissal.

GROUND 2

The learned trial judge erred in law when he failed to dismiss the preliminary objection of the respondents based on the principle of law that he who asserts must prove.

Particulars of Error

a. The respondents at the Lower Court pleaded different dates in respect of when the cause of action arose.

b. The respondents never led evidence to contradict the position of the appellant that he was served a letter of dismissal on 13th July, 2011.

c. The employment of the appellant has statutory flavor and should be strictly construed.

d. The appellant’s employment cannot be terminated by bulletin.

The Respondents filed a Notice of Preliminary objection on 16/12/15 which was argued in the Respondents Brief of Argument. A Reply Brief of Argument of the Appellant filed on 27/1/16 in addition to responding to the Respondents’ Brief of Argument also replied to the preliminary objection.

It is pertinent to consider the preliminary

objection first. I will do so now.

The grounds on which the Notice of Preliminary objection were predicated are the following-

1. That by the community construction and interpretation of Section 9 (1), Section 9(2) of the National Industrial Court Act 2006 and Section 243 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, this honourable Court lacks jurisdiction to entertain this appeal.

2. That the appellant did not seek and obtain the leave of the Court before filing this appeal.

3. That this appeal is an abuse of Court process.

In his argument in support of the preliminary objection, the respondents’ learned counsel referred us to the Provisions of Section 9(1) and 9 (2) of the National Industrial Court Act, 2006. It was submitted that from a community reading of the said Sections of the Act, for now, the decisions of the National Industrial Court of Nigeria on any issue except fundamental rights issues relating to its subject matters remain final. We were referred to the decision of this Court in the case of Schiberger Anadril Ltd v. Pengassan (unreported) Appeal No.CA/38/2008 delivered on 10/2/2009 and

the case of Lagos Sheraton Hotel and Towers v. Hotel and Personal Services Senior Staff Association (2014) 14 NWLR (Part 1426) p.45 at p.70 Paragraphs D G. We were urged that this Court lacks jurisdiction to entertain this appeal by virtue of the combined effect of the said Section 243 of the 1999 Constitution as amended and Section 9(1) and 9(2) of the National Industrial Court Act.

In his argument in reply as contained in the Appellants Reply Brief of Argument, the appellants learned counsel referred to Section 240 of the 1999 Constitution as amended as well as to Section 241(1)(d) of the Constitution as amended. It was submitted that a community reading of the said provisions shows that the National Industrial Court of Nigeria shares or has the status of a High Court though it has exclusive jurisdiction in labour, Industrial Relations, Trade Union, Employment, etc matters.

It was submitted that the instant appeal is competent because the appellant has been denied fair hearing by the Lower Court when it dismissed his case in defiance of the principles of fair hearing. We were urged to either strike out or dismiss the

preliminary objection.

What can clearly be gleaned from the Provision of Section 243(2) and Section 254(c)(5) of the Constitution is that appeal from the National Industrial Court to the Court of Appeal can only be as of right in decisions connected with questions of fundamental rights under Chapter IV of the Constitution or decisions in Criminal causes or matters arising from any causes or matters of which jurisdiction is conferred on the Court by Section 254(c) 14 or any Act of the National Assembly or by any other law.

By way of further exposition of the state of the law, this Court stated further at page 67 of the law report under reference thus:

Put in another way, except for the Provisions of Section 243(2) and 254(5) and (6) of the 1999 Constitution (as amended) wherein an aggrieved party can appeal as of right to this Court on questions of fundamental

rights as contained in Chapter IV of the Constitution as well as in decisions in Criminal cases as they relate to matters upon which the National Industrial Court has jurisdiction, an appeal on any other matter shall only be as prescribed by an Act of the National Assembly.

Incidentally as at now, no such Act of the National Assembly has been enacted prescribing what other causes and matters in which an appeal shall lie against the decision of the National Industrial Court and until such law is made, the decisions of the National Industrial Court from which a party can appeal to this Court shall remain circumscribed.?

The position of this Court on its appellate jurisdiction with regards to appeals from the National Industrial Court was also stated by a full panel of this Court in the case of Coca-Cola Nigeria Ltd. & 2 Ors. v. Mrs. Titilayo Akinsanya (2013) 13 NWLR Part 1386 p.255 at p.310 thus:

“The general appellate jurisdiction of this Court by the Provision of Section 240 of the Constitution (as amended) undoubtedly covers the Lower Court. The Provision of the said Section 240 is however subject to the provisions of the

Constitution. The amended Constitution clearly does not create any inherent right of appeal to the Court of Appeal against the decisions of Courts lower to it in hierarchy having regard to the words ?subject to the provisions of this Constitution? as used in Section 240 (supra). It would therefore appear incontrovertible that given the Provision of Section 243 of the amended Constitution, the only right of appeal to this Court against the decision of the Lower Court as presently donated by the Constitution, is solely that of appeal as of right on questions of fundamental rights as contained in Chapter IV of the Constitution as they relate to matters upon which the Lower Court has jurisdiction.?

It is clear from the above statements of this Court that the appellate jurisdiction of this Court over appeals from the National Industrial Court for now, is severely restricted to questions of fundamental rights as contained in Chapter IV of the Constitution as they relate to matters upon which the National Industrial Court has jurisdiction. No Court is permitted to have gluttony for jurisdiction not bestowed upon it by law. The instant appeal is over the

decision of the National Industrial Court that the appellant?s case is statute barred. An appeal over that decision cannot be entertained by this Court. The preliminary objection therefore has merit and is accordingly, hereby upheld. I must quickly add that this is an intermediate appellate Court. It therefore does not have the final say. For that reason, I will proceed to consider all the other issues in this appeal.

In the Appellant?s Brief of Argument filed on his behalf by Oluwarotimi O. Akeredolu SAN, two issues were submitted to us for the purpose of determining this appeal. They are-

1. Whether the learned trial judge was right in holding that the date the appellant received his letter of dismissal 13th July, 2011 was immaterial in determining when the cause of action arose. (This issue was distilled from ground 1 of the grounds of appeal);

2. Whether having regard to the different dates pleaded by the respondents and unchallenged or uncontroverted evidence of the appellant on the date he was served a letter of dismissal, it was open to the Lower Court to rely on 30th June 2011 as the date the cause of action arose. This

issue as distilled from ground 2 of the grounds of appeal.

In their Brief of Argument settled by Ikeh Sunday Esq, four issues were distilled from the 2 grounds of appeal, namely:

1. Whether this honourable Court is clothed with the jurisdiction to entertain the appellant?s appeal;

2. Whether the appellant’s suit at the trial Court was not caught by the statute of limitation.

3. Whether the trial Court was right in holding that the cause of action accrued to the appellant on the 30th June, 2011 when the letter of dismissal was dated and not when the appellant became aware of it; and

4. Whether the Lower Court was right in relying on 30th June 2011 as the effective date the cause of action various arose in view of dates canvassed by the respondents.

?Respondents Issue 1 above does not arise from the grounds of appeal. Rather, it: relates to their preliminary objection. Respondents Issue 2 above cannot also be traced to the grounds of appeal. It is only issues 3 and 4 that fall squarely within the scope of the grounds of appeal. It has been held in numerous cases that issues for determination in an appeal must be formulated to

fall within the scope of the grounds of appeal filed and that such issues should not include matters not in any of the grounds of appeal. See Onwumere v. The State (1991) 4 NWLR Part 186 p.428 also reported in (1991) 5 SC 148. It is also the position of the law that any part of a Brief or Argument which does not arise directly from at least one of the grounds of appeal filed will be regarded as incompetent and will be disregarded. See Oje v. Babalola (1991) 4 NWLR part 185 p.267; (1991) 5 SC 128. Respondents Issue 1 has already been dealt with in the preliminary objection. I will disregard issue 2 of the respondents. Issues 3 and 4 of the respondents are similar to the appellant?s two issues. The appellant?s two issues will suffice for the purpose of determining this appeal.

The appellant also filed a Reply Brief. It was deemed properly filed and served on 1/2/16 by virtue of an order of this Court of that date.

On Issue 1 which as will be recalled, is whether the learned trial judge was right in holding that the date the appellant received his letter of dismissal was immaterial in determining when the cause of action arose, learned

counsel submitted that the learned trial judge was wrong to have so held. We were referred to the decision of this Court per Salami JCA in the case of NIIA v. Ayanfalu (2007) 2 NWLR (Part 1018) p.246 at 270 where it was held that the date the respondent received the letter of termination was the date the cause of action accrued. It was submitted that the issue as to whether or not a document was received is one to be proved by evidence. The case of Yadis Nig. Ltd. v. Great Nigeria Insurance Company (2007) ALL FWLR Part 370 p.1348 at 1370 was cited in support. It was submitted that the case of Eboigbe v. NNPC (1994) 5 NWLR (Part 347) p.649 relied on by the Lower Court was inapplicable to the case before it as the Public Officers Protection Act was not considered in that case. It was contended that the case of Sanda v. Kakawa Local Government (1991) 2 NWLR (Part 174) p.379 at p.388 also relied on by the Lower Court is one that strengthened the position of the appellant. Interestingly, the appellant?s learned counsel submitted that the case of Sanda v. Kakawa (supra) was wrongly applied by the Lower Court just as that Court, accordingly to learned Counsel,

wrongly applied the case of Eboigbe v. NNPC (supra). It was submitted that in this case, the letter of dismissal dated 30/6/11 was received by the appellant via a dispatch book, on 13/7/11. We were urged that the cause of action arose on 13/7/11 when the letter was received by the appellant.

The Respondents? Learned Counsel in his argument in reply referred us to the case of Eboigbe v. NNPC (1994) 5 NWLR (Part 347), p.649 and submitted that it was held in that case that time began to run the moment the cause of action accrued and not when it was discovered.

The answer to issue 1, in my humble view, boils down to the resolution of a simple question to wit, when did the cause of action in this case arise? Was it 30/6/11 the date of the letter of dismissal as held by the Lower Court or 13/7/11 the date the appellant received the letter of dismissal? Now, a cause of action is the facts which proved will entitle a claimant to a remedy against a defendant. See Oshoboja v. Amuda (1992) NWLR Part 250 p.690. It is the fact or combination of facts which give rise to a

right to sue. See Egbue v. Araka (1988) NWLR Part 84 p.598; Julius Berger Nigeria Plc v. Omogui (2001) 6 SC 185. In this case the fact which when proved will entitle the claimant (appellant) to a remedy against the defendants (respondents), or put differently, the fact that gave rise to the claimant?s right to sue is the fact of his dismissal. Therefore, the cause of action was the appellant?s dismissal from the employment of the 1st respondent. That dismissal took place when the 1st respondent wrote the letter of dismissal. The fact of dismissal could not have taken place when the appellant received the letter of dismissal. A statute of limitation begins to run from the moment the cause of action arose and that being the case, it is immaterial that a party was absent from jurisdiction or that there was no Court within jurisdiction to entertain the claim or that the plaintiff was illiterate. See Eboigbo v. NNPC (1994) 5 NWLR Part 343 p.649. In that case also, the Supreme Court per Onu JSC usefully pointed out that a statute of limitation begins to run from the moment a cause of action accrues not when it is discovered. Even if the appellant

discovered? the cause of action on 13/7/11 when he received the letter of dismissal, it did not remove, negate or obliterate the fact that the cause of action accrued on 30/6/11 the date the appellant was dismissed as shown in the date of the letter of dismissal. I think the position taken by this Court in the case of Comptroller-General of Prisons v. Idehen (2009) LPELR ? 4003 and not the decision in the earlier case of NIIA v. Anyanfalu (supra) better represents the position of the law. The two decisions are conflicting and the latter is to be preferred. The later decisions are the stronger in law judicia posteriora sunt in lege fortiori it is well settled in this jurisdiction that where there are two or more conflicting judgments, it is the latest in time that constitutes res judicata. See Ikeni v. Efamo (2001) 10 NWLR part 720 p.1 per Ayoola JSC. Issue 1 is resolved against the appellant.

Issue 2 as will be recalled, is whether having regard to the difference dates pleaded by the respondents and unchallenged and uncontradicted evidence of the appellant on the date he was served a letter of dismissal, it was open to the Lower Court

to rely on the 30th of June 2011 as the date the cause of action arose. On this issue, appellant?s learned counsel submitted that the respondent pleaded different dates as the dates that the cause of action arose but failed to lead evidence in support. It was submitted that the Lower Court was wrong to have picked 30/6/11 as the date when the cause of action arose when the respondents variously pleaded 21/5/11, 28/5/11, 29/6/11 and 30/6/11 as dates when the cause of action accrued. It was contended that once a court is confused about a case or has misconceived it, its judgment should not be allowed to stand. The case of Adejugbe v. Ologunja (2004) 6 NWLR Part 868 p.46 at p.70 D ? E and P.76 C ? D was cited in support. It was submitted that if the Lower Court had adverted its mind to the onus of proof it would have come to the conclusion that the action of the appellant was not statute barred. Learned counsel submitted that the letter of dismissal dated 30/6/11 which showed that the appellant was dismissed retrospectively from 38/5/11 is null and void as same is contrary to the terms of offer of appointment dated 28/8/97. It was argued that it

is improper to dismiss an employee with retrospective effect. The case of Abenga v. BSJC (2006) 14 NWLR Part 1000 p.610 at 620 ? 621 was cited in support.

On this issue, the respondents? learned counsel submitted that the Lower Court had unfettered discretion to accept any of the dates presented to it as the date when the cause of action arose. In doing so it was contended, the Lower Court exercised its discretion judicially. The case of UBN Plc v. Astra Builders (WA) Ltd. (2010) 5 NWLR Part 1186 p.1 was cited in support.

determines the accrual of a cause of action. See Ayorinde v. Balogun (1990) 15 NWLR Part 151 p.393; Omomeji v. Kolawole (2008) 14 NWLR Part 1106 p.180. The appellant?s learned counsel was therefore wrong to have concerned himself in his submission on the different dates of accrual of cause of action mentioned by the respondents in their Statement of Defence. Those dates are not important as far as the law is concerned. The important date is the one pleaded by the claimant. It is clear in the matter on appeal that the appellant pleaded that the letter of dismissal issued to him was dated 30th June, 2011. See Paragraph 30 of the Statement of Facts at page 47 of the Record of Appeal. Going by that pleaded dated in the Statement of Facts, the learned trial judge cannot be faulted to have reckoned with that date as the date that the cause of action accrued.

Now to directly answer the question that arose under issue 2 which question is whether having regard to the different dates pleaded by the respondents, it was open to the Lower Court to rely on the 30th of June 2011 as the date that the cause of action arose, I will answer that the dates

pleaded by the respondents are irrelevant and that the date in the letter of dismissal pleaded by the appellant was rightly taken as the date that the cause of action accrued. Issue 2 is also resolved against the appellant.

From all of the foregoing considerations, I have come to the conclusion that this appellant lacks merit. It is accordingly dismissed. N30,000 costs is awarded against the appellant and in favour of the respondents.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment just read and delivered by my learned brother, Daniel-Kalio, JCA. I fully agree with his reasonings and conclusions. I too would dismiss this appeal for lacking in merit. I abide by all the consequential orders of my learned brother, including the order for costs.

HARUNA SIMON TSAMMANI, J.C.A.:I had the privilege of reading in advance the judgment delivered by my learned brother, O. Daniel-Kalio, JCA.

By Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Court of Appeal has jurisdiction to the exclusion of

any other Court of law in Nigeria, to hear and determine appeals from, amongst other Courts, the National Industrial Court. However, appeals as of right from the decisions of Courts listed under Section 6(5) (c) – (k) and by extension Section 240 of the Constitution (supra) is limited to appeals from decisions at the Federal High Court or High Courts of the States and FCT. Appeals as of right from decisions of the National Industrial Court are clearly excluded, save as stipulated in Section 243(2) of the Constitution. That enures in respect of appeals on decisions on question of fundamental rights as contained in Chapter IV of the 1999 Constitution (supra). Accordingly, where the decision of the National Industrial Court is in respect of any other civil cause which the Court has jurisdiction to hear and determine, the appeal shall be with leave of the Court. See the proviso to Section 243(3) of the Constitution. The position was settled by a full panel of this Court in the case of Cocacola (Nig.) Ltd & 2 Ors v. Akinsanya (2013) 1 A.C.E.L. p.28 at 58 – 59 where Lokulo – Sodipe said that:

“The appellate jurisdiction of this Court by the provision of

Section 240 of the Constitution (as amended) undoubtedly covers the Lower Court. The provisions of the said Section 240 is however subject to the provisions of the Constitution. The amended Constitution clearly does not create any inherent right of appeal to the Court of Appeal against the decisions of Courts lower to it in hierarchy having regard to the “subject to the provisions of this Constitution” as used in Section 240 (supra). It would therefore appear in controvertible that given the provision of Section 243 of the amended Constitution, the only right of appeal to this court against the decision of the Lower Court as presently donated by the constitution, is solely that of appeal as of right on questions of fundamental rights as contained in Chapter III of the Constitution as they relate to matters upon which the Lower Court has jurisdiction.”

In the instant case, it has not been contended, nor do the facts disclose a dispute touching the fundamental right of the Appellant. No leave of this Court was sought and obtained before this appeal was initiated. That being so, the appeal is incompetent. It is accordingly struck out as this Court lacks

jurisdiction to hear and determine same.

In respect of the substantive appeal, I agree with my learned brother that it lacks merit. It is hereby dismissed. I abide by the order on costs.

Appearances

Kolawole Esan, Esq. with him, Ibukun Famiriyo (Miss), Olumide Adeniji and Ashiwaju OluwaseunFor Appellant

AND

Sunday IkehFor Respondent