FEDERAL MINISTRY OF HEALTH v. THE TRADE UNION MEMBERS OF THE JOINT HEALTH SECTORS UNIONS & ORS
(2014)LCN/7181(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of May, 2014
CA/A/461/M/2013 (R)
RATIO
WORDS AND PHRASES: VIVA VOICE
The Latin phrase “viva voice” means inter alia “with living voice” or “by word of mouth; orally.” See Blacks Law Dictionary, 9th edition, page 1709.In other words, even without a ground of appeal, the issue of jurisdiction can be raised orally in the course of argument and the other Counsel would be heard before judgment is delivered. Per JOSEPH TINE TUR, J.C.A.
WORDS AND PHRASES: WITHOUT PREJUDICE
The phrase “without prejudice” means “without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.” See Blacks Law Dictionary, 9th edition, page 1740. Per JOSEPH TINE TUR, J.C.A.
WHETHER WHERE A QUESTION OF FUNDAMENTAL RIGHTS ARISES IN THE COURSE OF THE EXERCISE OF JURISDICTION BY THE NATIONAL INDUSTRIAL COURT, THERE IS NEED TO OBTAIN LEAVE TO APPEAL
My humble view is that in the course of the National Industrial Court exercising jurisdiction, a question of the fundamental rights of a party under Chapter IV of the Constitution may arise which may necessitate the party aggrieved to appeal to the Court of Appeal. Where such a circumstance has arisen, an appeal shall lie from the National Industrial Court as of right to the Court of Appeal. But in all other situations or circumstances the aggrieved party has to obtain leave to appeal to the Court of Appeal else the appeal shall be rendered incompetent. Indeed, that was the situation in Coca Cola Nig. Ltd. & Anor. vs. Akinsanya (supra) heavily relied upon by the learned Counsel to the respondents. Per JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
FEDERAL MINISTRY OF HEALTH – Appellant(s)
AND
THE TRADE UNION MEMBERS OF THE JOINT HEALTH SECTORS UNIONS (JOHESU) NAMELY:
1. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA (MHWUN);
2. NATIONAL ASSOCIATION OF NIGERIA NURSES AND MIDWIVES (NANNM);
3. SENIOR STAFF ASSOCIATION OF UNIVERSITIES, TEACHING HOSPITALS, RESEARCH INSTITUTIONS AND ASSOCIATED INSTITUTIONS (SSAUTHRIAI)
4. NIGERIAN UNION OF PHARMACISTS, MEDICAL TECHNOLOGISTS AND PROFESSIONS ALLIED TO MEDICINE
5. NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU) – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): The Federal Ministry of Health (hereinafter called “the appellant”) is seeking the following reliefs from the Court of Appeal against the respondents, namely:
“1. Extension of time within which the Applicant may seek the leave of Court to appeal against part of the decision of the National Industrial Court contained in its judgment on Monday the 22nd day of July, 2013 in Suit No. NICN/ABJ/238/2012 between the Trade Union Members of the Joint Health Sector Unions (JOHESU) (as complainants) and Federal Ministry of Health (as Respondent).
2. Leave of this Honourable Court to the Applicant to appeal against part of the decision of the National Industrial Court contained in its judgment delivered on Monday the 22nd day of July, 2013 in Suit No.NICN/ABJ/238/2012 between: The Trade Union Members of the Joint Health Sector Unions (JOHESU) (as complainants) and Federal Ministry of Health (as Respondent).
3. Extension of time within which the Applicant may appeal against the decision of the National Industrial Court contained in its judgment delivered on Monday 22nd day of July, 2013 in Suit No.NICN/ABJ/238/2012 between: The Trade Union Members of the Joint Health Sectors Unions (JOHESU) (as complainants) and Federal Ministry of Health (as Respondent).”
The grounds upon which this application is brought are as follows:
“(i) The trial Court entered final judgment in suit No.NICN/ABJ/238/2012 between The Trade Members of the Joint Health Sectors Unions (JOHESU) (as complainants) and Federal Ministry of Health (as Respondent) on Monday, the 22nd day of July, 2013.
(ii) The Applicant is desirous of exercising its Constitutional right of appeal against the judgment.
(iii) The Applicant is entitled to appeal against the said judgment of the Court below within three months from the date the judgment was delivered but with the leave of this Honourable Court.
(iv) However, by virtue of the provision of Section 243(3) of the 1999 Constitution (as amended), the leave of this Honourable Court is required to enable the Appellant exercise its right of appeal.
(v) The Applicant had earlier filed an application for leave to appeal at the Registry of this Honourable Court on the 19th of August, 2013.
(vi) In the Notice of Appeal attached to the application filed on 19th August, 2013 the word “proposed” was inadvertently omitted.
(vii) In the affidavit in support of the Motion filed on 19th August, 2013, the proposed Notice of Appeal was inadvertently described as a Notice of Appeal without the word “Proposed”.
(viii) It is in the interest of justice and the Applicant’s Constitutional right to fair hearing that the instant application be granted by this Honourable Court.”
The application is supported by a ten paragraph affidavit deposed to by Fayemi Stephen Olaposi, a Legal Practitioner in the Law Firm of Okungbowa Adesina, SAN & Co. as follows:
“1. I am a legal practitioner in the Law Firm of Okungbowa Adesina, SAN & Co., Counsel to the Appellant/Applicant (“Applicant”) herein and I am personally involved in the conduct of this suit, by virtue of whereof I am conversant with the facts of this case.
2. I have the consent and authority of the Applicant and my employers to depose to this affidavit.
3. The facts to which I shall depose to hereunder are facts within my personal knowledge by virtue of my aforesaid employment and where they relate to facts made known to me by the Applicant which I verily believe, I shall so state the date, time and place of such information:
4. I know as a fact that:
(a) On the 22nd of July, 2013, the National Industrial Court, Abuja Judicial Division delivered its judgment in Suit No.NICN/ABJ/238/2012 between The Trade Union Members of the Joint Health Sectors Unions (JOHESU) and Federal Ministry of Health. Attached herewith as Exhibit “A” is a copy of the judgment.
(b) The Applicant being dissatisfied with part of the decision of the Court below is desirous of appealing against same.
(c) The Applicant had earlier filed a Motion on Notice at the Registry of this Honourable Court on the 19th day of August, 2013 seeking for leave to appeal timeously.
(d) The Notice of Appeal attached as Exhibit “B” to the affidavit in support of the Motion filed on the 19th day of August, 2013 was not marked as “Proposed Notice of Appeal”.
(e) At paragraph six of the affidavit in support deposed by me Exhibit “B” was referred to simply as copy of the “Notice of Appeal” without the word “Proposed”.
5. I know these errors were not deliberate but inadvertence of Counsel.
6. I know that the Plaintiff has substantial grounds of appeal which raises novel and recondite point of law. Attached herewith as Exhibit “B” is the proposed Notice of Appeal.
7. The Proposed Notice of Appeal raises a substantial complaint against the errors contained in the judgment of the lower Court which borders on issue of jurisdiction and wrong evaluation of evidence and if heard is likely to succeed.
8. I know as a fact that by the provision of Section 243(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), leave of this Honourable Court is a condition precedent for the Applicant’s appeal to be apposite before the Court.
9. I verily believe that it will be in the interest of justice if this application is granted as the Respondents will not be prejudiced in any manner whatsoever by its grant.
10. I make this Oath in good faith, conscientiously believing the same to be true and in accordance with the Oaths Act.”
Thus the motion seeking leave of the Court to appeal was filed within time on 19th day of August, 2013 but due to procedural defect in not marking the Notice of Appeal “Proposed” it was withdrawn by learned Counsel representing the applicant and struck out hence this application filed on 11th November, 2013.
Accompanying the application is the judgment of the National Industrial Court (Exhibit “A”) and the proposed Notice of Appeal (Exhibit “B”). The respondents opposed the application by filing a counter-affidavit on 7th October, 2013. Court ordered that Counsel should file written addresses. The applicant filed a written address on 11th November, 2013. Upon being served, the respondents filed a reply followed by a Notice of Preliminary Objection on 27th January, 2014 which reads as follows:
“TAKE NOTICE that at the hearing of the Appellant’s Motion on Notice dated the 8th day of November, 2013, an objection will be taken that the Appellant’s said Motion on Notice is incompetent and is therefore liable to be dismissed.
GROUNDS FOR THE OBJECTION:
(a) The application for leave to appeal before the Court is against the judgment of the National Industrial Court of Nigeria dated 22nd July, 2013 in Suit No.NICN/ABJ/238/2012;
(b) By virtue of Section 243(2) of the Constitution of the Federal Republic of Nigeria (as amended) an appeal shall only lie from the decision of the National Industrial Court as of right to the Court of Appeal only on questions of fundamental rights as contained in Chapter IV of 1999 Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(c) By virtue of Section 243(3) of the 1999 Constitution (as amended) an appeal shall ONLY lie from the decision of the National Industrial Court to the Court of Appeal where there is an Act of the National Assembly specifically making provisions for such right of appeal and with the leave of the Court of Appeal.
(d) There is no subsisting Act of the National Assembly which has made provision for a general right of appeal outside the provision of the Constitution.
(e) The Application before the Court for leave to appeal is outside the contemplation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(f) The Court of Appeal in Coca Cola Nig. Ltd. & Ors. vs. Akinsanya (2013) 36 NLLR (Pt.109) 339, has decided that there is no general right of appeal against the decision of the National Industrial Court except as limited in Section 243(2)-(4) of the Constitution (as amended).”
Upon service, the Applicant filed a Reply on Points of law on 7th February, 2014. The application was argued on 11th February, 2014 wherein Counsel adopted their respective briefs of argument. The learned silk representing the appellant identified the following issues for determination, namely:
“1. Whether by the combined effect of Section 243(3) of the Constitution 1999 (as amended) and Section 9 of the National Industrial Court Act, 2006, this Honourable Court can exercise appellate jurisdiction over the decision of the National Industrial Court in civil matters not predicated on fundamental rights.
2. Whether in the circumstance this application ought to be granted.”
The following lone issue was formulated by the learned Counsel to the Respondents for determination:
“Whether by the combined effect of Section 243(3) of the Constitution 1999 (as amended) and Section 9 of the National Industrial Court Act, 2006, this Honourable Court can exercise appellate jurisdiction over the decision of the National Industrial Court in civil matter not predicated on fundamental rights.”
APPELLANT’S ISSUE ONE:
The learned silk referred in argument to decisions that have shown that every Court’s jurisdiction is conferred by statute. That the jurisdiction of the Court of Appeal to entertain appeals from the National Industrial Court is set out in Section 240, 243(2) and 254(D)(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The learned silk referred to a plethora of authorities to support this argument, example, Oloba vs. Akereja (1988) 7 SC (Pt.1) 1 at 32; Erelu-Habeeb vs. A.G. Federation (2012) 13 NWLR (Pt.1318) 423 at 511-512, etc. It was contended that if the National Assembly had intended that the decisions of the National Industrial Court shall be final that would have been expressly stated in the Constitution or the Statute establishing the National Industrial Court. Learned silk cited Inakoju vs. Adeleke (2007) 423 at 688 in support of this submission. The learned silk further referred to the following unreported judgments that emanated from the Court of Appeal, Ekiti Division as supporting the submission why this Court should grant this application, namely: Local Government Service Commission, Ekiti State & Anor. vs. Asubiojo (CA/AE/72/M/2012) and Local Government Service Commission, Ekiti State & Anor. vs. Bamisaye (unreported Appeal No.CA/AE/71/M/2012) all delivered on 15th February, 2013.
The learned silk urged that in considering this application the side or marginal notes to the Constitution or the Act creating the National Industrial Court should be taken into consideration. Reference was made to Yabugbe vs. C.O.P (1992) 4 NWLR (Pt.234) 152 at 171; Uwaifo vs. A.G. Bendel State (1982) 7 SC 124 at 187-188 and Savannah Bank Ltd. vs. Ajilo (1989) 1 NWLR (Pt.97) 305 at 326. The learned silk urged that issue one should be resolved in favour of the applicants.
ISSUE TWO:
On issue two the learned silk argued that there are only two conditions to be fulfilled for this Court to grant this application namely, good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. That the applicant has met the two conditions as shown in the affidavit hence this application should be granted. Reference was made to a plethora of decided cases, such as E.F.P. Co. Ltd. vs. NDIC (2007) 9 NWLR (Pt.1039) 216 at 238-239; Ibodo vs. Enarofia (1980) NSCC 195 at 200-201; Holman Brothers vs. Kigo (1980) 8-11 SC; Federal Housing Authority vs. Abosede (1989) 2 NWLR (Pt.537) 117 at 185-186. The learned Counsel further cited decisions where the mistake, inadvertence, error, etc, of Counsel is ground for not denying an applicant extension of time to appeal, namely, Akinpelu vs. Adegbore (2008) 10 NWLR (Pt.1096) 531 at 554; Mains Ventures Ltd. vs. Petroplast Indust. Ltd. (2000) 4 NWLR (Pt.651) 151 at 165; Akinyede vs. The Appraiser (1971) All NLR 164 at 166; Long John vs. Blakk (1998) 6 NWLR (Pt.555) 522 at 527-532. As the applicant is not guilty of undue delay in bringing this application, argued the SAN, the application should be granted, citing Ikenta Best (Nig.) Ltd. vs. A.G. Rivers State (2008) 6 NWLR (Pt.1048) 612 at 632-633 and Okere vs. Nlem (1992) 4 NWLR (Pt.234) 132 at 147. Besides, the grounds of appeal support the granting of this application. Reference was made to Olawunmi vs. Mohammed (1991) 4 NWLR (Pt.186) 516 at 519; Oladele vs. State (1991) 1 NWLR (Pt.170) 708 at 711 and Ifekandu vs. Uzoegwu (2008) 15 (Pt.1111) 508.
On the whole the learned silk urged this Court to resolve issue two in favour of the applicant and to grant all the prayers sought in this application.
Learned Counsel to the Respondent submitted that the Court of Appeal should not expand its jurisdiction where none exists, citing S.C.C. (Nig.) Ltd. vs. Sedi (2013) 1 NWLR (Pt.1335) 230 at 244. Learned Counsel drew attention to Section 243(2)-(4) of the Constitution read together with Section 9 of the National Industrial Court Act of 2006 as interpreted in the case of Coca Cola Nig. Ltd. & Ors. vs. Akinsanya (2013) 36 NWLR (Pt.109) 339 at 428 to submit that the applicant has no right of appeal. Furthermore, this is not one of the applications that the mistake of Counsel is excusable, citing Bamaiyi vs. The State (2003) 17 NWLR (Pt.848) 47 at 60. In the absence of an Act of the National Assembly conferring a general right of appeal it was submitted that the applicant should not be granted the prayers being sought to appeal against the judgment of the National Industrial Court. The learned Counsel urged that this application should be dismissed.
The applicant’s reply on points of law is that the judgment in Coca Cola Nig. Ltd. & Ors. vs. Akinsanya (supra) rather supports the granting of this application. Having made reference to Section 254(D)(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended the learned silk argued that the National Industrial Court has the same powers as a High Court. That the sections of the Constitution and the Act establishing the Industrial Court should not be read in isolation, citing FBN Plc vs. Akparabong Community Bank Ltd. (2006) 1 NWLR (Pt.962) 438 at 447. Section 7-9 of the Act should be read together. If that is done, it will be seen that when a cause or matter comes to the National Industrial Court after having gone through conciliation or arbitration, the decision of the Court affirming or disagreeing with the award is to be made a subject of appeal and that the Court of Appeal has and can exercise its appellate jurisdiction whether as of right or with leave in so far as it is a Court of first instance. That the right of appeal is donated by the Constitution: Ibiyeye vs. Gold CA/K/M.95/2010 (unreported) and E.F.P. & Co. Ltd. vs. NDIC (2007) 9 NWLR (Pt.1039) 216 at 253.
The sole issue for determination in this application is whether the Court of Appeal has the jurisdiction to grant extension of time for the applicant to appeal against the judgment of the National Industrial Court in suit No.NICN/ABJ/238/2012 material details of which are set out in the motion. I shall in determining this application take into consideration the fact that in Local Government Service Commission, Ekiti State & Anor. vs. Asubiojo (supra) and Local Government Service Commission, Ekiti State & Anor. vs. Bamisaye (supra) the Court of Appeal, Ekiti Division had on 15th February, 2013 granted the applicants leave to appeal against the judgment of the National Industrial Court where the proposed grounds of appeal raised substantial issues of law. The onus of showing that this Court should not follow these two decisions is on the respondents. In Mostyn vs. Fabrigas (1775-1802) All E.R. Rep. 266, Lord Mansfield, C.J. held at page 269 that: “In every plea to the jurisdiction, you must state another jurisdiction.” In other words, if the plea is that the Court of Appeal has no jurisdiction to grant the applicant leave to appeal against the judgment of the National Industrial Court sitting as a Court of first instance, the onus of showing where a party aggrieved with the decision of the National Industrial Court may appeal to correct possible errors that judges of that Court might have committed in the course of adjudication is on the respondents.
It has to be borne in mind that an appeal is a proceeding undertaken to have a decision of a lower Court or tribunal reconsidered or reviewed by a higher Court or authority hence the aggrieved party may appeal as of right or by leave of the court depending on the circumstances of each case.
Where no good and substantial grounds of appeal exist, the Court of Appeal may refuse to grant leave to an applicant to appeal against the decision of the lower Court or tribunal.
Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as amended by Act No.3 of 2010 reads as follows:
“Section 243 of the Principal Act is altered by:-
(a) inserting immediately after the words “Federal High Court” in the marginal note, the words “National Industrial Court” and
(b) inserting immediately after the existing Section 243, new subsections “(2)-(4)”:-
“(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly:
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of Court of Appeal.
(4) Without prejudice to the provisions of Section 254C(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.”
This pre-supposes that the Court of Appeal has the powers to entertain “any appeal arising from any civil jurisdiction of the National Industrial Court” and such a determination shall be final. The phrase “without prejudice” means “without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.” See Blacks Law Dictionary, 9th edition, page 1740.
The jurisdiction of the National Industrial Court is set out under Section 254C of the Constitution (supra) to wit:
“254C(1) Notwithstanding the provisions 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 unions, industrial relations 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 to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employee’s Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
(c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters connected therewith or related thereto;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;
(e) relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(i) connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;
(j) relating to the determination of any question as to the interpretation and application of any:-
(i) collective agreement;
(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;
(iii) award or judgment of the Court;
(iv) term of settlement of any trade dispute;
(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;
(vi) trade union Constitution, the Constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;
(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;
(k) relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any 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;
(l) relating to:-
(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;
(ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and
(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not, as may be conferred upon it by an Act of the National Assembly;
(m) relating to or connected with the registration of collective agreements.
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
(3) The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the Court premises on matters which jurisdiction is conferred on the Court by this Constitution or any Act or Law:
Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.
(4) The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain.
(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.
(6) Notwithstanding anything to the contrary in this Constitution, appeal shall lie from the decision of the National Industrial Court from matters in sub-section 5 of this section to the Court of Appeal as of right.”
The powers of the National Industrial Court are set out under Section 254D of the Constitution as follows:
“254D (1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the National Industrial Court shall have all the powers of a High Court.
(2) Notwithstanding subsection (1) of this section, the National Assembly may by law, make provisions conferring upon the National Industrial Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to be more effective in exercising its jurisdiction.”
Section 254E of the Constitution also reads as follows:
“254E(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the National Industrial Court shall be duly constituted if it consists of a single Judge or not more than three Judges as the President of the National Industrial Court may direct.
(2) For the purpose of exercising its criminal jurisdiction, the President of the Court may hear and determine or assign a single Judge of the Court to hear and determine such matter.
(3) For the purpose of exercising any jurisdiction conferred upon it by the Constitution or any other law, the Court may, if it thinks it expedient to do so or in a manner prescribed under any enactment, law or rules of Court, call in the aid of one or more assessors specially qualified to try and hear the cause or matter wholly or partly with the assistance of such assessors.
(4) For the purpose of subsection (3) of this section, an assessor shall be a person who is qualified and experienced in his field of specialization and who has been so qualified for a period of not less than ten years.”
I have set out the expansive jurisdiction of the National Industrial Court, particularly the subject matters upon which the Court may adjudicate not only in civil but criminal proceedings. Can it be sensibly argued that the National Assembly intended that no appeal shall lie from the decision of the National Industrial Court to the Court of Appeal except in cases involving fundamental rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended? I do not think so. If the argument of the learned Counsel to the respondents is upheld it will follow that no party aggrieved by the decision of the National Industrial Court involving any civil or criminal cause or matter can be subject of appeal to the Court of Appeal. In that case the decisions of the National Industrial Court shall be final. That will be absurd.
My humble view is that in the course of the National Industrial Court exercising jurisdiction, a question of the fundamental rights of a party under Chapter IV of the Constitution may arise which may necessitate the party aggrieved to appeal to the Court of Appeal. Where such a circumstance has arisen, an appeal shall lie from the National Industrial Court as of right to the Court of Appeal. But in all other situations or circumstances the aggrieved party has to obtain leave to appeal to the Court of Appeal else the appeal shall be rendered incompetent. Indeed, that was the situation in Coca Cola Nig. Ltd. & Anor. vs. Akinsanya (supra) heavily relied upon by the learned Counsel to the respondents.
Section 243(2) of the Constitution of the Federal Republic of Nigeria, 1999 Act No.3 of 2010 is not intended to preclude a party aggrieved by the decision of the National Industrial Court from applying for leave to appeal to the Court of Appeal.
In The Governor of Kaduna State & 2 Ors. vs. Lawal Kagoma (1982) 6 SC 87 at 107-108, Fatayi-Williams, CJN held that:
“…I must point out that it is now trite that where there are two enactments, one making general provisions… and the other making specific provision …the specific provisions are, by implication, excluded from the general provisions…”
The implication is that Section 243(2) being a specific provision is excluded or taken away from the provisions in subsection 243(4) and 254C(5) of the 1999 Amended Federal Constitution as altered by Act No.3 of 2010. See Attorney-General of the Federation vs. Abubakar (2007) All FWLR (Pt.375) 405 at 472 paragraph “B”-“H”. There is no merit in the preliminary objection. Good and substantial grounds exists for granting this application. The reasons for the delay in bringing the application within time have been explained in the supporting affidavit. They have not been disparaged by any counter-affidavit or argument. The proposed grounds of appeal raise the issue of the jurisdiction of the National Industrial Court to entertain the claims. In Ogembe vs. Usman (2011) 17 NWLR (Pt.1277) 638 at 656 paragraphs “E”-“F”, Galadima, JSC held that: “…Because of its importance, a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The Court can suo motu raise it…”
The Latin phrase “viva voice” means inter alia “with living voice” or “by word of mouth; orally.” See Blacks Law Dictionary, 9th edition, page 1709.In other words, even without a ground of appeal, the issue of jurisdiction can be raised orally in the course of argument and the other Counsel would be heard before judgment is delivered.
For all these reasons, I dismiss this objection. I however grant the applicant 14 days to file a Notice of Appeal against the judgment of the National Industrial Court delivered on 22nd July, 2013 in Suit No. NICN/ABJ/238/2012.
I make no order as to costs.
MOORE A.A. ADUMEIN, J.C.A.: I read before now the ruling of my learned brother, Joseph Tine Tur, J.C.A.
I agree with my learned brother that this application has merit and it ought to be granted. I also grant the application in the terms set out in the leading ruling.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read in draft the leading ruling just delivered by my learned brother, Tur, J.C.A. I am in full agreement with the reasoning of his Lordship and the conclusion reached in granting the Application leave to appeal against the judgment of the National Industrial Court.
May I add that there are plethora authorities to the effect that when construing the provisions of the Constitution, the sections must be read together and not in isolation so as to implement rather than defeat the legislative intention – Adesanya v Federal Republic of Nigeria (1981) 5 SC 112; Okman Ojokoloso v Alamu (1987) 7 SC (Part one) 124.
A section of a statute should not therefore be read in isolation thereby rendering other relevant sections ineffective or cause absurdity. In the interpretation of Section 243(2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) other sections of the Constitution must be read along so as to determine the appellate supervisory powers of the Court of Appeal over the National Industrial Court. In this bid, sub sections (3) and (4) of section 243 of the Constitution are relevant. So also are Sections 254(c) of the Constitution particularly Section 254C (5) thereof. My learned brother has adequately dealt with this aspect in the lead judgment which I also adopt as my judgment. I make no order as to costs.
Appearances
Mrs. J.O. Adesina, SAN with Stephen Fayemi, Esq.For Appellant
AND
G.A. Adetola Kassim, SAN wit
