J.A. AISOWIEREN & SONS LTD v. OSAGIEDE & ANOR (2021)

J.A. AISOWIEREN & SONS LTD v. OSAGIEDE & ANOR

(2021)LCN/15129(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/98/2014

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

A. AISOWIEREN & SONS LIMITED APPELANT(S)

And

1. MR. STEPHEN OSAGIEDE 2. MR. FELIX OMOROTIOMWAN RESPONDENT(S)

RATIO

WHETHER IT IS THE LAW IN FORCE AS AT THE TIME OF THE COMMENCEMENT OF AN ACTION DETERMINES THE COURT VESTED WITH JURISDICTION TO DETERMINE THE CASE

It is settled law that the law in force as at the time of the commencement of an action determines the Court vested with jurisdiction to determine the case. See GOLDMARK (NIG.) LTD VS. IBAFON (supra) cited by the Appellant and can also be found in (2012) LPELR-9349 (SC), O.H.M.B. VS GARBA (supra), EKONG & ORS V. OSIDE & ORS (2004) LPELR-5735 (CA), EZE & ORS V. UDEH & ORS (2017) LPELR-42716 (CA), NASARAWA STATE UNIVERSITY & ANOR VS. NEKERE (2018) LPELR-44550 (CA) and STANDARD CHARTERED BANK VS. ADEGBITE (2018) LPELR-43508. PER BALKISU BELLO ALIYU, J.C.A.

OPERATION OF THE PRINCIPLE OF UBI JUS IBI REMEDIUM

There is no doubt that, where there is a wrong, there must be a remedy to right that wrong. Ubi jus ibi remedium. And doing justice is the cornerstone and foundation of our judicial system and our only aim as adjudicators. We must provide a remedy where a party establishes a right, and we have the bounden duty in all causes and matters to make order necessary for doing justice to the parties deserving it. See KAYILI V. YILBUK (2015) LPELR-24323 (SC). PER BALKISU BELLO ALIYU, J.C.A.

CONDITIONS THAT MUST EXIST TO NECESSITATE THE COURT OF APPEAL INVOKING SECTION 15 OF THE COURT OF APPEAL ACT

I have referred to Section 15 in my resolution of issues 3 and 4 supra and I adopt what I stated that the section empowers me to make order or to rehear the case as if the suit was initiated before this Court as Court of first instance. See OBI V. INEC (2007) 11 NWLR (PT. 1046) 565 or (2007) LPELR-2166 (SC), where the Supreme Court interpreted the provisions of Section 16 now Section 15 of the Court of Appeal Act and stated five conditions that must exist to necessitate the Court of Appeal invoking Section 15. These are (1) the trial Court must have the legal power (jurisdiction) to adjudicate on the matter; (2) the real issue raised upon by the claim of the Appellant at the trial Court must be seen to be capable of being distilled from the grounds of appeal; (3) all necessary materials must be available to the Court for consideration; (4) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented and (5) the injustice of hardship that will follow if the case is remitted to the trial Court must manifest itself. PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Edo State sitting in Benin (trial Court) that was delivered on the 1st November, 2013 in respect of a preliminary objection, challenging the jurisdiction of the trial Court, raised in Suit No: B/374/2005. The Appellant commenced the suit as the plaintiff vide writ of summons and statement of claim both copied in pages 1 to 6 of the record of appeal. The endorsed claim of the Appellant against the 1st and 2nd Respondents (1st and 2nd Defendants) on the writ of summons is reproduced below:
Plaintiff is a company incorporated in Nigeria and one of the transporters to Guinness Nigeria Plc, involved in the distribution of same product throughout Nigeria. The 1st defendant was employed by the Plaintiff and the 2nd Defendant used his house located at No. 120, Ogiemwenken Street, Off Saint Saviour Road, Off Upper Sakponba Road, Benin City within the jurisdiction of this Honourable Court, as guarantee for the employment of the 1st Defendant. The 1st Defendant on 18th day of April, 2005 drove Plaintiffs trailer with registration No: XA537 UBJ with

1440 cartons of small stout, Guinness product, from the company depot and disappeared with same till date. The cost of the small stout (full) is N4,880,800, (Four million, eight hundred and eighty thousand, eight hundred Naira) for which the plaintiff has been debited by Guinness Nigeria Plc. The Plaintiff therefore claims from the 1st and 2nd Defendants jointly and or severally the cost of the Guinness small stout amounted (sic) to N4,880, 800.
ALTERNATIVELY
Plaintiff also seeks for declaration for 2nd Defendant to forfeit his house used as guarantee of the 1st Defendant to the Plaintiff via agreement dated 22nd March 2005.

The endorsed claim on the writ (supra) was repeated in paragraph 15 of the Statement of claim wherein the Appellant claimed against the 1st and 2nd Respondents jointly and or severally “the cost of the Guinness small stout amounting to N4,880,800 (Four million, eight hundred and eighty thousand, eight hundred Naira).” In the alternative, the Appellant sought a declaration that the 2nd Respondent should forfeit his house used as guarantee of the 1st Respondent’s employment to the Appellant via an agreement date 22nd March, 2003.

The 2nd Respondent/Defendant entered conditional appearance to the suit and filed his statement of defence denying the claims of the Appellant. See pages 3 and 7-8 of the record of appeal. Trial was commenced and reached final address stage and parties filed their respective final written addresses for adoption. However, before the adoption of the filed final written addresses, the 2nd Respondent filed a notice of preliminary objection pursuant to Sections 272(1) and 254 (1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (Constitution) and Sections 7 and 11 of the National Industrial Court Act, 2006 (NIC Act) challenging the jurisdiction of the trial Court to determine the suit on the ground that the subject matter of the suit relates to dispute between employer and employee and connected with the employment of the 1st Respondent/Defendant with the Appellant/Plaintiff. As such the trial Court lacks jurisdiction to grant the relief the Appellant sought in paragraph 15 of its statement of claim. The notice of objection was supported by an affidavit in which the 2nd Respondent contended inter alia, that from the

pleadings of the Appellant, the relationship between it and the 2nd Respondent is that of employer/employee and the dispute arose because the 2nd Respondent stood as guarantor to the employment of the 1st Respondent. In the written address in support of the objection, the learned counsel for the Appellant relied on the provisions of Section 254C (1) and 272 of the Constitution to submit that the trial Court has no jurisdiction to determine the suit because those Sections of the Constitution ousted its jurisdiction. See pages 32 to 40 of the record of appeal.

On his part, the Appellant opposed the objection and filed a counter affidavit and written address against the notice of objection in which it contended that the 2nd Respondent is not an employee of the Appellant and its case against him was for “redress for payment” for the missing goods that were in the possession of the 1st Respondent and the declaration for the forfeiture of the house the 2nd Respondent used as guarantee via agreement dated 22nd March, 2003. Therefore the trial Court has jurisdiction to determine the claims being related to the value of missing goods and for forfeiture.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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After considering the affidavits of the parties and their respective written addresses in support and in opposition to the objection, the learned trial Judge agreed with the submissions of the 2nd Respondent and held that:
I have carefully examined the statement of claim, and I have come to the conclusion that the Plaintiff’s claim or action cannot be separated from labour or employment matters. The guarantee agreement upon which the plaintiff relied as the basis for this action to me cannot be completely separated from the condition of employment or service of the 1st Defendant, which make it a matter that is incidental, connected with or related to labour or employment matters, specific reference to paragraphs 2, 3 and 6 of the said statement of claim. No doubt that this suit arose due to the fact that the claimant is aggrieved that the 1st Defendant has allegedly flouted the conditions in the terms of his employment, which had directly given rise to the enforcement of the said agreement. That is to say the enforcement of the said agreement is directly connected to the terms of the 1st Defendant employment with the Claimant’s company and the guarantee

agreement cannot be enforced without recourse to what gave rise to it, which is the employer/employee relationship between the claimant and the 1st defendant; matters which this Court do (sic) no longer have the jurisdiction to determine by virtue of Section 254(c)(1)(a) of the 1999 Constitution as amended.

Consequently, the learned trial Judge declined jurisdiction and ordered the suit to be transferred to the National Industrial Court in accordance with the provisions of Section 24(3) of the National Industrial Court Act, 2006.

The Appellant was unhappy with the ruling of the trial Court and it filed a notice of appeal against it, which was subsequently amended and filed on the 29th June, 2017 but deemed as properly filed and served on the 11th June, 2018. The Appellant relied on ten grounds of appeal to pray this Court to set aside the ruling of the trial Court and to proceed to make appropriate judgment and order pursuant to Section 15 of the Court of Appeal Act 2004.

The Appellant’s amended brief of argument settled by IGHEDOSA IMADEGBELO ESQ., was filed on the 29th June, 2017 and deemed properly filed and served on the 11th June, 2018.

Therein the learned counsel distilled four issues for the determination of this appeal thus:
1. Whether the provisions of Section 11 (1) and (2) of the National Industrial Court Act 2006 are inconsistent with Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 which conferred the widest jurisdiction on the State High Court. (Grounds 3 and 4).
2. Whether Section 11(2) of the National Industrial Court Act 2006 which prescribed a time frame for hearing and determination of labour matters or causes to be completed, breaches the Claimant’s right to fair hearing and constitutes an unwarranted interference in the affairs of the Courts of judicature? (Grounds 8 and 10).
3. Whether the trial Court was right in striking out the suit for want of jurisdiction in view of Section 254C(1) of the Constitution of the Federal Republic of Nigeria (as amended) and Section 6(1) of the Interpretation Act, CAP. 123 LFN 2004. (Grounds 1, 2, 5, 6 and 9).
4. Whether or not the trial Court was right when it held that the employment contract is not distinct and severable from the guarantee agreement. (Ground 7).

The 1st Respondent did not file any brief. The 2nd Respondent’s amended brief of argument was settled by EHINON OKOH ESQ., and filed on the 7th October, 2019. Learned Counsel proposed three issues for determination of this appeal:
1. Whether or not the High Court was right in dismissing the suit for want of jurisdiction? (Grounds 1, 2, 3, 4, 6 and 8)
2. Whether or not the High Court had the jurisdiction to transfer the Appellant’s suit to the National Industrial Court.
3. Whether or not the learned trial Judge was right when he held that the principal relief is not severable from the alternative claim? (Grounds 7 and 9).

The Appellant deemed it necessary to file a reply brief on the 11th June, 2020 in response to the argument of the 2nd Respondent. The submissions of the learned counsel are considered below.

APPELLANT’S SUBMISSIONS:
In arguing its issue one, the Appellant’s learned counsel submitted that they are challenging the validity of Section 11(1) and (2) of the National Industrial Court Act 2006 (NIA Act) which provisions the learned counsel contended are mutually repugnant or contradictory or contrary to

Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 as amended (the Constitution). He argued that in the context of Section 1 (3) of the Constitution, the provisions of Section 11 (1) and (2) of the NIC Act are talking a different language from the Constitution. He further submitted that there is no provision of the Constitution which precludes or ousts the jurisdiction of the High Court of a State such as the trial Court from entertaining a labour/employment matter that are listed in Section 7 of the NIC Act. That with respect to the jurisdiction of the State High Court, Section 272(1) of the Constitution used the phrase “subject to the provisions of this Constitution” which according to the Appellant’s learned counsel means that the jurisdiction of a State High Court can only be restricted by provisions of Constitution and not an Act of the National Assembly. That the said provisions of Section 272 of the Constitution conferred the widest/unlimited jurisdiction of the State High Court and we were urged to hold that no law such as the NIC Act can limit its jurisdiction. He submitted that the curtailment of the jurisdiction of the State High Courts by

Section 11 (1) and (2) of the NIC Act is in conflict with Section 272 of the Constitution. We were urged to hold that by the combined effect of Sections 6(6)(b), 251, 271, 272 of the Constitution, the State High Courts share concurrent jurisdiction with the National Industrial Court over labour/employment matter or matters listed in Section 7 of the NIC Act. He relied on a host of authorities including the case of NIGERCARE DEV. CO. LTD VS. A.S.W.B. (2008) 9 NWLR (PT. 1093) 498 at 529 and SAVANNAH BANK OF NIGERIA LTD VS. PAN ATLANTIC (1987) 1 NWLR (PT. 49) 212 and KAYILI VS. YILBUK (2015) 7 NWLR (PT. 1457) 26 at 55 in support of his submissions and to urge us to resolve issue one in favour of the Appellant.

On its proposed issue two, the Appellant submitted that Section 11 (2) of the NIC Act which stipulates that all part heard labour matters pending in the High Courts before the 14th June, 2006 were to continue to judgment, but any of such matters not concluded by the 14th June, 2007 shall automatically abate breaches the Appellant’s right to fair hearing. That the said section is inconsistent with the provisions of Sections 4(8) and 6(6)(b) of the Constitution and

therefore void by virtue of Section 1(3) of the Constitution and we were urged to so declare, especially as it further constitutes an unwarranted interference in the affairs of the Courts in breach of the doctrine of separation of powers. The Appellant’s learned counsel urged us to resolve issue two in favour of the Appellant.

On its issue three, the learned Appellant’s counsel posited that this issue is for the determination of the competence of the trial Court to conclude the Appellant’s matter pending before it, in view of the provisions of Section 254(C) (1) of the Constitution by third alteration Act No. 3 of 2010, The said Section which the Appellant admitted has “drained the jurisdiction of the High Court” came into force on the 4th March, 2011 by which time, the Appellant’s case before the trial Court was still pending. On this basis, the Appellant’s learned Counsel submitted that the said Section 254(C)(1) of the Constitution did not affect the Appellant’s case because the passage of a new law transferring jurisdiction from one Court to another will not affect part-heard matters like this case that was at the final address stage when the law came

into force. In that case, the former Court will be entitled to proceed with the trial and decide the case not withstanding the fact that it has been divested of the jurisdiction over such matter.

He drew this Court’s attention to page 31 of the record of appeal, which shows that on the 28/9/2009, the trial Court adjourned this case for final written addresses of the counsel to the 10th November 2009. In fact the parties have filed their respective final written addresses contained in pages 31R to 31ZO of the record of appeal. This fact was confirmed by the learned trial Judge in his ruling at page 87 of the record of appeal wherein he stated that the hearing of this matter was concluded and at final address stage when the 2nd Respondent raised the objection challenging the jurisdiction of the trial Court. In the circumstance, the Appellant invited us to re-hear the case under Section 15 of the Court of Appeal Act, 2004 (as amended) and to give the appropriate judgment that the trial Court failed to give. He relied on Section 6(1) of the Constitution and the cases of GOLDMARK (NIG.) LTD VS. IBAFON CO., LTD (2012) 10 NWLR (PT. 1308) 293 at 337,

O.H.M.B. VS. GARBA (2002) 14 NWLR (pt. 788) 538 at 556 and OBIUWEUBI VS. C.B.N. (2011) 7 NWLR (PT. 1247) 465 at 501 among others for support.

It was further submitted that this argument on Section 6 of the Interpretation Act and the fact that passage of law transferring jurisdiction does not affect pending suits was canvassed before the trial Court during the hearing of the preliminary objection, but the learned trial Judge failed to consider same and make a pronouncement on it in the vexed ruling, thereby breaching the Appellant’s right to fair hearing guaranteed by Section 36(1) of the Constitution. He submitted that the failure of the trial Court to consider and pronounce upon the Appellant’s argument has occasioned a miscarriage of justice. He relied on the case of OLOWOLARAMO VS. UMECHUKWU (2003) 2 NWLR (PT. 805) 537 AT 557-558 for support.

The learned counsel further submitted that in declining jurisdiction to determine this suit, the learned trial Judge interpreted the provisions of Section 254(C)(1) of the Constitution to apply retrospectively when there was no express term by the legislature for the section to do so. He further submitted that where

there is a principal claim and alternative claim, the Court should first consider whether the main claim ought to have succeeded. In contrast to this argument, the learned counsel submitted that “an alternative claim is a severable and not cumulative claim.” Further, that the recovery of the value of missing goods of the Appellant from the Respondents and enforcement of the guarantee agreement are not competent claims for the National Industrial Court, on the authority of the case of OLORUNTOBA OJU V. DOPAMU (2008) 7 NWLR (PT. 1085) 1 AT 30. He urged us to resolve issue 3 in favour of the Appellant.

With regards to its issue four, learned Appellant’s counsel submitted that the guarantee agreement, which the Appellant is trying to enforce in this case is a separate and distinct contract between the Appellant and the 2nd Respondent. That the said guarantee agreement is not enforceable against the 1st Respondent even though it was made for his benefit under the employment contract. He relied on the cases of AUTO IMPORT EXPORT VS. ADEBAYO (2005) 19 NWLR (PT. 959) 44 at 127 for support and to urge the Court to resolve issue four in favour of the Appellant.

With regards to the order of transfer of the suit to the NIC made by the trial Court, the Appellant placed reliance on the cases of NJOKU V. UBN PLC (2015) 10 NWLR (PT. 1468) 552 at 577 and AINABEBHOLO VS. EDO STATE UNIVERSITY WORKERS FARMERS MULTIPURPOSE CO-OP. SOCIETY & ORS. (2015) LPELR- 24513 (CA) to the effect that a matter relating to labour/employment (dispute) abated after the expiration of one year of the commencement of the NIC Act 2006 and there is no provisions for transferring a suit that has abated from the High Court to the NIC. He argued that the two cases of this Court supra are in conflict with the case of A.G. OYO STATE VS. N.L.C. (2003) 8 NWLR (PT. 821) 1 at 33, which gave effect to the provisions of Section 11 of the NIC Act. Learned Counsel urged us “to choose” the decision of A. G. Oyo State vs. NLC (supra) over the latter cases of Njoku vs. UBN Plc and Ainabebholo’s case (supra) mainly because that decision is on all fours with the present case.

2ND RESPONDENT’S SUBMISSIONS:
The learned counsel for the 2nd Respondent argued his proposed issues one and two together in response to the Appellant’s argument canvassed

under its issues 1 to 3 supra and submitted that in view of the Amendment to the 1999 Constitution in the Third Alteration Act 2010, which vests exclusive jurisdiction on the NIC over labour matters including private employment, the Appellant’s claim which arose from the work place is within the exclusive jurisdiction of that Court. As such the trial Court was right to hold that it had no jurisdiction to determine this suit. He referred to the cases of S.C.C. (NIG.) LTD VS. SEDI (2013) 1 NWLR (PT. 1335) 231, JOHN VS. IGBO ETITI LGA (2013) 7 NWLR (PT. 1352) 1 AND NUT NIGER STATE VS. COSST. NIGER STATE CHAPTER (2012) 1 NWLR (PT. 1307) 89 for support.

He further argued that if not for the 1st Respondent’s employment with the Appellant and the subsequent employment agreement/contract entered into by the parties, this suit would not have been filed in the first place. He further relied on the Section 254C(1) and Sections 7 and 11 (1) and (2) of the NIC Act 2006 to submit that the claim of the Appellant arose from matters connected to work place as captured by the Third Alteration Act of the Constitution. Further that the question of jurisdiction is purely

statutory, that can only be determined in the light of the enabling statute and the claim put before the Court. He submitted that the learned trial Judge was right to transfer the matter to the NIC because Section 24(3) relied upon by the trial Court specifically provided for the transfer, which also found support in the decision of this Court in JOHN VS. IGBO-ETITI LGA (supra) to the effect that the purport of the said section is to save all suits filed in the High Courts, which ought to have been filed before the NIC.

He further submitted that issues 1 to 3 raised and argued by the Appellant are misconceived and show a lack of proper understanding of the provisions of the relevant laws on them. In response to the submissions of the Appellant that there is no provisions of the Constitution that ousted the jurisdiction of the High Court from entertaining labour matters, he referred to Sections 254C(1) of the Constitution that categorically oust the trial Court’s jurisdiction on such matters and also recognized the Act of the National Assembly governing the operations of the NIC including the Section 7 of the NIC Act 2006.

On the contention of the Appellant that Section 11 (1) and (2) of the NIC Act curtailed the wide jurisdiction of the High Court conferred by Section 272 of the Constitution, the 2nd Respondent submitted that the Appellant failed to understand that the provision of Section 254C(1) use of “notwithstanding” which means “despite” or “inspite” or irrespective” of whatever may have been provided by Section 272 or any other thing contained in the Constitution. The section also proceeded to state that “and in addition to such other jurisdiction as may be conferred upon it by the Act of the National Assembly”, which specifically empowers the National Assembly to enact Section 11 (1) and (2) of the NIC Act. The learned counsel urged us to ignore the Appellants invitation to hold that the State High Courts and the National Industrial Courts share concurrent jurisdiction over labour/employment matters. He urged us to resolve the Appellant’s issues 1, 2 and 3 against it for lack of merit and the argument canvassed thereon as mostly an academic and irrelevant to this case.

On the 2nd Respondent’s issue three (3), his learned counsel submitted that the learned trial Judge was right

when he held that the guarantee agreement between the Appellant and the 2nd Respondent is materially connected to the employment of the 1st Respondent. He submitted that it is the incidence of the employer/employee relationship between the Appellant and the 1st Respondent that gave the Appellant the foundation and the right upon which to bring this action against the 2nd Respondent. That it is the 1st Respondent’s alleged violation of the condition in his terms of employment that gave rise to the Appellant’s claim, and that the guarantee agreement at all times was a matter relating to and incidental to the employment of the 1st Respondent and therefore within the ambit of Section 254C(1)(a) of the Constitution. He further argued that the issue of forfeiture of the guarantee is not the principal issue but the main issue is the refund of the missing Guinness small stout alleged lost by the 1st Respondent in the course of his employment with the Appellant, as such it is a matter arising from work place. The Court is urged upon to resolve issue 3 in favour of the 2nd Respondent.

APPELLANT’S REPLY BRIEF
By way of reply on points of law to the 2nd Respondent’s submissions, the Appellant’s learned counsel submitted that the failure of the 2nd Respondent to respond to his argument on application of inconsistency test regarding Section 272 of the Constitution taking precedence over NIC Act, and on the curtailment of the wide jurisdiction of the High Court by Section 11 of NIC Act, and the argument on the breach of fair hearing by the trial Court’s failure to pronounce a decision on the submissions of the Appellant, and the interpretation of Section 254(c)(1) of the Constitution, all meant that he conceded to the argument canvassed by the Appellant on those issues. He relied on Order 19 Rule 4(2) of this Court’s Rules and the case of NWANKWO VS. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518 at 556 for support.

He further argued that the decision of this Court in COCACOLA (NIG.) LTD VS. AKINSANYA (2013) 18 NWLR (PT. 1386) 225 supports the Appellant’s case because it was held therein that prior to the expanded jurisdiction of the NIC donated by the Constitutional amendment, it was an inferior Court to the High Court.

In response to the argument of the 2nd Respondent that the proceedings in this case

ought to have abated by virtue of Section 11 (1) and (2) of the NIC Act, the Appellant submitted that the said provisions cannot dictate to the Constitution when jurisdiction will cease or when proceeding pending at the State High Court will abate.

On the argument of the 2nd Respondent that the trial Court was right to transfer the case to the NIC by virtue of Section 24 of the NIC Act, the Appellant referred us to the case of FASAKIN FOODS (NIG.) LTD VS. SHOSANYA (2006) 10 NWLR (PT. 987) 126 which case was in respect of transfer of case from Lagos High Court to the Federal High Court. The Appellant’s learned counsel submitted on the authority of the cited case that the High Court of a State can only act and order the transfer of a matter before it to the NIC pursuant to Section 24(3) of the NIC Act, “where the existing rules of the State High Court empower the High Court to do such transfer.” He argued that the trial State High Court cannot transfer this case to the NIC under the provisions of Section 24(3) of the NIC Act “unilaterally without a corresponding law or rules of the State High Court empowering it to do so.” He added that the said

Section 24(3) of NIC Act is inconsistent with Section 274 of the Constitution and therefore void to the extent of its inconsistency.

On the reliance of the 2nd Respondent to Section 254C(1) of the Constitution, the Appellant urged us to discountenance the argument of the 2nd Respondent on the interpretation of the said Section because same is not applicable to this appeal. The learned counsel placed reliance on the cases of STRAND (NIG). LTD VS. IJEH (2017) 11 WRN 150 and STANDARD CHARTERED BANK VS. ADEGBITE (2019) 1 NWLR (PT. 1653) 348 where this Court held that the High Court has jurisdiction to determine part heard labour matter after the 4th March, 2011 and that Section 11 of the NIC Act cannot curtail the jurisdiction of the High Court. Learned Counsel urged us to hold that the case of MEDICAL AND HEALTH WORKERS UNIOIN OF NIGERIA VS. DR. ALFRED EHIGIEGBA (2018) LPELR-44972 (CA) cited by the 2nd Respondent is not applicable to this case because in that case, this Court struck out a labour suit that was part-heard after 4th March, 2011 when the NIC was elevated to the status of a superior Court of record. He contended that the cited case was decided by this

Court per incurium, because that decision cannot overrule the Supreme Court’s decisions in GOLDMARK (NIG.) LTD VS. IBAFON CO. LTD (supra) and O.H.M.B. V. GARBA (supra).

In response to the contention of the 2nd Respondent that the Appellant’s issues 1, 2 and 3 and argument canvassed therein are academic, the Appellant submitted that the said issues relate to the validity of Section 11 (2) of the NIC Act, the applicability of Section 254C(1) of the Constitution and Section 6(1) of the Interpretation Act, which related and have bearing to the issues to be decided in this appeal and therefore live and material issues to be determined.

Finally, the Appellant urged this Court to “depart from/overrule the decision in MHWUN V. EHIGIEGBA (supra)” and any other previous decisions of this Court giving effect to Section 11 (1) and (2) of the NIC Act and applying Section 254C(1) of the Constitution retrospectively to part heard (labour related) cases after 4th March, 2011 for being in contradiction to the clear decisions of the Supreme Court of Nigeria.

RESOLUTION:
It is observed that issues 1, 2 and 3 raised by the Appellant were responded to by the

2nd Respondent in his issues 1 and 2 while the Appellant’s issues 3 and 4 are contextually the same with the Respondent’s issue 3. For this reason, I believe the parties are in agreement on the issues in controversy from the grounds of appeal. I therefore adopt the Appellant’s four issues as my guide in the determination of this Appeal. However, in view of the fact that the ruling of the trial Court appealed against relates to the jurisdiction of that Court to determine the Appellant’s suit and because of the pivotal position of jurisdiction to adjudication, I must first determine this issue which is captured in the Appellant’s issues 3 and 4 before resolving issues 1 and 2 if necessary.

ISSUES 3 AND 4
The two issues questioned the correctness of the learned trial Judge’s decision declining jurisdiction to determine the suit in view of Section 254C(1) of the Constitution and his subsequent order of transferring it to the NIC for trial. It is the law, beyond any argument that the Court’s jurisdiction to determine a suit is determined by the reliefs sought therein, compared with the statutorily provided jurisdiction of the Court. The Appellant’s

statement of claim copied in pages 4 to 6 of the record of appeal stated the facts that gave rise to this suit against the Respondent were in respect of employment of the 1st Respondent as the driver to the Appellant. The 2nd Respondent was the guarantor of the 1st Respondent in respect of the said employment and he and the Appellant signed a guarantee agreement in which the 2nd Respondent agreed to indemnify the Appellant “against any theft, negligence of the 1st Respondent” in the course of his employment.

Subsequently, on the 18th April, 2005, the 1st Respondent drove the Appellant’s lorry with registration number XA 537 UBJ containing the Appellant’s consignment of 1440 cartons of small stout, Guinness product from the company depot in Benin bound to Abuja, but he disappeared with the goods and was never found. The cost of the missing consignment was N4,880,800. The Appellant instituted this action seeking the above stated reliefs against the Respondents jointly and severally.

The 1st Respondent, not surprisingly, did not file a response to the suit and he is deemed to have admitted the claims. On his part, the 2nd Respondent filed a statement of

defence (pages 6 to 9 of the record) but he did not deny that the 1st Respondent disappeared with the consignments of the Appellant. He asserted that there were frequent robberies along the roads in which armed robbers killed other drivers distributing Guinness products and their goods stolen. He asserted that the 1st Respondent may have also been victim of armed robbery. See paragraph 3 of his statement of defence. With regards to the guarantee agreement he entered with the Appellant (exhibit E), he stated that it did not envisage cases of missing goods arising from the same being snatched by armed robbers.

Now the question is whether the reliefs the Appellant sought, which arose from these facts amount to a dispute relating to labour or employer/employee to which Section 254C(1) of the Constitution apply.

The said Section 254C(1)(a) provides:
1. Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in the 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 cause and matters:
a. Relating to or connected with any labour, employment, trade unions, industrial relations and matter arising from workplace, the conditions of service, including health and matters incidental thereto or connected therewith.
Upon the facts of the case and the reliefs sought, I have no doubt in my mind that the Appellant’s suit is within the ambit of the provisions of Section 254C quoted supra, which conferred exclusive jurisdiction on the employment dispute and the matters connected therewith on the NIC. This provision effectively takes away the jurisdiction of the State High Courts such as the trial Court on employment related causes and matters. In fact, in paragraph 4.18 of the Appellant brief, its counsel conceded that the above provisions “drained the jurisdiction of the High Court” in respect of the matters relating to labour and employment etc.

However, the Appellant’s argument before us in this appeal is that the learned trial Judge applied the provisions of Section 254C(1) to the Appellant’s claim/suit that was pending and part heard retroactively, when there is no clear/expressed provision

that it should so apply. It was argued that the provisions of Section 254C do not and should not apply to the Appellant’s case which predated it and was pending before the High Court since 2005 and the Appellant relied on Section 6(1) of the Interpretation Act in support.

It is observed that this same argument was raised before the trial Court in the Address of the Appellant opposing the 2nd Respondent’s notice of objection. See pages 43 to 69 of the record of appeal. Most unfortunately, the learned trial Judge did not make a pronouncement on the issue whether or not Section 254C of the Constitution that came into force when the Appellant’s suit was part heard before him could be applied to divest it of jurisdiction to conclude the matter.

Again in this appeal, the 2nd Respondent did not respond to this argument of the Appellant, I shall proceed to determine this and do what the learned trial Judge ought to have done, that is, to determine the applicability of the provisions of Section 254C of the Constitution to this suit. I rely on Section 15 of the Court of Appeal Act which empowers me to “have full jurisdiction over the whole proceedings as if

the proceeding has been instituted before the Court of Appeal as a Court of first instance, or may re-hear the case in whole or in part or may remit it to the lower Court for the purpose of such rehearing…”

The Constitution of the Federal Republic of Nigeria (Third Alteration) Act, which brought into force Section 254C of the Constitution took effect on the 4th November, 2011. The record of this appeal shows that the writ of summons commencing this case was filed before the trial Court on the 16th June, 2005, (page 2 of the record of appeal), a period of over six (6) years before the coming into force of Section 254C of the Constitution. This means that the Appellant rightly approached the Court to enforce his grievance against the Respondents vide the trial Court’s jurisdiction conferred by Section 272 of the Constitution, being the existing law as at that time and by which the trial Court has full jurisdiction to determine the matter vide that section. The trial Court rightly proceeded to hear the Appellant’s suit vide his witnesses and that of the defence put up by the 2nd Respondent. The matter was at the adoption of final addresses stage

as at September 2009, after which case stagnated as if waiting for Section 254C to come into force and be applied. That is absolutely wrong, unfair and unjust.
It is settled law that the law in force as at the time of the commencement of an action determines the Court vested with jurisdiction to determine the case. See GOLDMARK (NIG.) LTD VS. IBAFON (supra) cited by the Appellant and can also be found in (2012) LPELR-9349 (SC), O.H.M.B. VS GARBA (supra), EKONG & ORS V. OSIDE & ORS (2004) LPELR-5735 (CA), EZE & ORS V. UDEH & ORS (2017) LPELR-42716 (CA), NASARAWA STATE UNIVERSITY & ANOR VS. NEKERE (2018) LPELR-44550 (CA) and STANDARD CHARTERED BANK VS. ADEGBITE (2018) LPELR-43508. And as stated supra, the law in force as at the time the Appellant instituted his claims was Section 272 of the Constitution and the trial Court was the right Court with jurisdiction to determine the complaint relating to employment of the 1st Respondent and the guarantee agreement in respect thereof.
See also the provisions of Section 6(1)(c) and (e) of the Interpretation Act relied on by the Appellant which have been interpreted to be of the effect that

the rights and obligations that accrued or acts done under a previous legal regime do not cease to be valid or cease to subsist because a new legal regime has replaced the previous one under which they accrued or were done. In that regard, new statute, including constitutional provisions, which are also interpreted in line with the Interpretation Act, must not be interpreted to have retrogressive effect to the detriment of existing rights or obligation. See AFOLABI & ORS. VS. GOV. OF OYO STATE (1985) LPELR-196 (SC), NASARAWA STATE UNIVERSITY & ANOR VS. NEKERE (supra), B.B. APUGO LTD VS. O.H.M.B. (2016) 13 NWLR (PT. 1529) 206 at 246 (SC).
In the circumstance, I am in total agreement with the Appellant that the provisions of Section 254C of the Constitution do not apply retrospectively to rob the trial Court of jurisdiction to conclude this case. This is especially so since there was no provisions of abatement made by the said section of pending/part heard cases already before the High Courts. Consequently, I answer issues three and four in the negative to the effect that the trial Court has jurisdiction to conclude this case and ought to have

done so. The two issues (3 and 4) are resolved in favour of the Appellant.

ISSUES ONE AND TWO
These issues are concerned with the interpretation of Section 11 of the NIC Act 2006, which provides that pending cases shall abate after a year of coming into force of the NIC Act. However, having resolved issues 3 and 4 supra to the effect that the trial Court was wrong to decline jurisdiction to conclude this suit and that the provisions of Section 254C of the Constitution cannot be applied retroactively to the Appellant’s suit, these two issues became academic because the grund norm has spoken in Section 254C and any other Act must bow to the supremacy of the Constitution. The two issues are irrelevant and disregarded.

My Lords, having found that the trial Court was wrong to decline jurisdiction, what is the consequential order that this Court ought to make in the circumstances that will serve the interest of justice. There is no doubt that, where there is a wrong, there must be a remedy to right that wrong. Ubi jus ibi remedium. And doing justice is the cornerstone and foundation of our judicial system and our only aim as adjudicators. We must

provide a remedy where a party establishes a right, and we have the bounden duty in all causes and matters to make order necessary for doing justice to the parties deserving it. See KAYILI V. YILBUK (2015) LPELR-24323 (SC).

Indeed, the learned Appellant’s counsel while canvassing argument in support of issue 3 (paragraph 4.23 of the Appellant’s brief) already resolved in favour of the Appellant supra, invited us to re-hear this case under Section 15 of the Court of Appeal Act, on the ground that the trial was already concluded and the parties filed their final written addresses. The 2nd Respondent did not respond to this argument of the Appellant inviting this Court to invoke the provisions of Section 15 to re-hear the case based on the evidence on record. It means he has no objection to that invitation and I so hold. I think the invitation should be honoured in the circumstances of this case.

11 NWLR (PT. 1046) 565 or (2007) LPELR-2166 (SC), where the Supreme Court interpreted the provisions of Section 16 now Section 15 of the Court of Appeal Act and stated five conditions that must exist to necessitate the Court of Appeal invoking Section 15. These are (1) the trial Court must have the legal power (jurisdiction) to adjudicate on the matter; (2) the real issue raised upon by the claim of the Appellant at the trial Court must be seen to be capable of being distilled from the grounds of appeal; (3) all necessary materials must be available to the Court for consideration; (4) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented and (5) the injustice of hardship that will follow if the case is remitted to the trial Court must manifest itself.

Again, I return to the record of this appeal which disclosed to me that trial in this suit commenced on the 4th October, 2006 with the testimony of the Appellant’s PW1 followed by two others, (Appellant called a total of three witnesses) and tendered several documents including the letter of employment of the 1st Respondent and

guarantee agreement. The Appellant closed its case on the 14th January, 2009. The 2nd Respondent called three witnesses and also tendered documents and closed his defence on the 28th September, 2009. The learned trial Judge ordered counsel to file written final addresses and adjourned the matter from that 28th September, 2009 to 10th November, 2009 for adoption of the written final addresses.

The 2nd Respondent filed his final written address on the 11th May, 2010 (page 31D to 31J of the record of appeal). The Appellant’s final written address was deemed properly filed and served on the 21st May, 2010 vide its motion filed on the 11th February, 2010. There was also reply address filed by the Appellant to the 2nd Respondent’s written address copied in pages 31R to 31ZG of the record of appeal. After the parties filed and exchanged their final written addresses, the case went into comatose and no proceedings were conducted until the 24th May, 2013, which, from September 2009 when the matter was adjourned for addresses to be adopted was a period of almost four (4) years.

The proceedings of the trial Court of 24th May, 2013 are contained in pages 81 to 84 of

the record of appeal, and are in respect of the objection to jurisdiction raised by the 2nd Respondent. After the parties adopted their written addresses in support and in opposition to the objection and adumbrated on same, the learned trial Judge adjourned for ruling to 5th July, 2013, but the ruling was delivered on the 1st November, 2013, that is, six months after the hearing and adoption of the addresses in respect of the preliminary objection in clear contravention of Section 294(1) of the Constitution.

Be that as it may, in the light of the circumstances of this case highlighted from the record of this appeal supra, all the five conditions stated in OBI V. INEC (supra) are present in this case to warrant my invoking Section 15 of the Court of Appeal Act to re-hear this case and make the appropriate order. It is apparent that the suit has been in the trial Court and this Court for sixteen (16) years and I will not send it back to spend another five years for re-hearing. All the materials necessary for me to re-hear this case are present in the record of appeal. It is particularly important to state that during the trial, the parties relied mainly on

documentary evidence such as 1st Respondent letter of employment as driver of the Appellant, the guarantee of employment agreement between the 2nd Respondent and the Appellant, invoices and receipts of the consignment of Guinness products carried by the 1st Respondent, etc. Also noteworthy is the fact that these documents were not contested during the trial.

As stated above, the 1st Respondent did not deny the Appellant’s claim and he is deemed to have admitted all the pleadings of the Appellant. On his part, the 2nd Respondent did not also deny that the 1st Respondent disappeared with the consignment of Guinness product of the Appellant. His defence was that 1st Respondent could have been a victim of armed robbery which he asserted was rampant during the period the 1st Respondent and the consignment disappeared. The evidence called by each party is herein below considered.

One Mr. Roland Ikiemen, the Appellant’s transport officer testified as PW1 and his testimony is contained in pages 14 to 16 of the record of appeal. He stated that the 1st Respondent applied to his company for employment as driver and was asked to provide a guarantor.

The 1st Respondent brought the 2nd Respondent as his guarantor who deposited title documents of his land and his passport size photograph and also executed a guarantee agreement with the Appellant in respect of the employment of the 1st Respondent by the company. He tendered the application for employment made by the 1st Respondent, the guarantee agreement, the dispatch/waybill of the consignment carried by the 1st Respondent dated 18th April, 2005, all these documents were admitted as Exhibits D, E and F without any objection from the 2nd Respondent. He also tendered the receipts showing that the Appellant was debited the sum of N8,880,800 being the cost of the Guinness consignment and they were admitted as Exhibits A and B without any objection.

Under cross-examination, PW1 said the 1st Respondent absconded and left the country. That he reported the matter to the police whose investigation led to the discovery of the lorry abandoned without product somewhere in Ikorodu, Lagos State.

PW2 who testified for the Appellant was a police officer; Jude Saro of Ikpoba Police station where PW1 reported the missing lorry and consignment of Guinness product.

His evidence is contained in pages 17 to 19 of the record of appeal. He explained the investigation the police carried out on the reported case in which the truck that was Abuja bound from Benin was found in Ikorodu, Lagos, without the consignment. The Interim Police investigation report was admitted in evidence as Exhibit ‘G’. Under cross-examination, PW2 denied any knowledge of rampant snatching of vehicles carrying Guinness products or the killing one Monday after his vehicle was stolen. He insisted that he investigated the case properly and his investigation took him to Lagos where he recovered the lorry, but he did not visit any mortuary in Lagos because there was no report of any accident or death involving the 1st Respondent.

PW 3 was Prince Aisowieren, who said he was the promoter of the Appellant which was incorporated on 24th January, 1995 and he tendered the certificate of incorporation of the Appellant admitted as Exhibit ‘H’, and the way bill of the consignment carried by the 1st Respondent admitted as Exhibit ‘J’. His evidence is the same with that of PW1, already stated supra. Under cross-examination he admitted that the 1st Respondent

worked for his company for over a year before absconding with the last consignment. The evidence of PW3 is contained in pages 20 to 24 of the record of appeal. The Appellant closed its case.

On his part, the 2nd Respondent called Abraham Osagiede, the younger brother of the 1st Respondent who testified as DW1 (pages 26 to 27 of the record) that his brother is dead, because he last saw him five years ago but he did not know the address where 1st Respondent was living because he (DW1) was in the village the whole time. Under cross-examination DW1 said he did not even know that his brother had a wife because he was not living with him. He also did not file any complaint in respect of his missing brother.

The 1st Respondent’s father Enogheghase Osagiede testified as DW2 and he also stated that he has not seen the 1st Respondent for five years. DW3 was one Fullen Aibagbee, a former driver transporting Guinness product for his company called Esotrace. He stated (in pages 28 to 29 of the record) that sometimes in 2006 while he was transporting Guinness products for his company from Benin to Enugu, he was attacked by armed robbers and shot on the waist

but he escaped with is truck. Under cross-examination, he said he did not report the incidence to the police and he had no medical report to show he was treated for the gun shot wound. He only tendered his expired identity card showing he was a driver with the company. Finally the 2nd Respondent testified (in pages 29 to 31) and stated that he too was a trailer driver and he used to work with Patrick Telford. He named two other trailer drivers; one Eloha Ehibor and Anthony Awomde who were killed by armed robbers in the course of their employment as drivers carrying products of Guinness Nigeria Plc. He said the 1st Respondent is dead. He admitted signing the guarantee agreement with the Appellant (Exhibit ‘E’). He also stated that the lorry that the 1st Respondent drove was found in Lagos and that the 1st Respondent has not been seen by the police or any one. He said he did not deposit his house title documents but he only used “Oba’s approval” as collateral to guarantee the 1st Respondent’s employment. Under cross-examination, he stated that he did not lodge any complaint with the police that the 1st Respondent was missing, but he agreed that he signed the guarantor’s form (Exhibit ‘E’).

The counsel final written addresses have been filed and exchanged and they are hereby deemed adopted before the trial Court and the submissions of the learned counsel are hereby taking into consideration.

It is clear from the evidence led by the parties that the 2nd Respondent did in fact sign Exhibit ‘E’ guaranteeing the employment of the 1st Respondent. He clearly admitted this fact in his evidence and under cross-examination thus supporting the Appellant’s case. Having examined the documentary evidence and the oral evidence of the parties, I am satisfied that the Appellant has proved his case on the balance of probability against the Respondents. The 2nd Respondent’s assertion during the trial that the 1st Respondent might have been a victim of armed robbery was not supported by any evidence and was therefore speculative. In the circumstance, I am of the view that the Appellant is entitled to enforce the guarantee agreement the 2nd Respondent executed to guarantee the employment of the 1st Respondent. I refuse the grant of main claim, rather, I enter judgment in favour of the Appellant against the Respondents as per the alternative relief sought.

In the final analysis, this appeal succeeds and it is allowed. The ruling of the trial Court delivered on the 1st November, 2013 in respect of suit No: B/374/2005 is hereby set aside. In its place, it is hereby ordered that the Appellant’s alternative relief is granted. Cost of N100,000 awarded against the Respondents.

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, B.B. Aliyu, JCA. I agree with the reasoning and conclusion therein which I adopt as mine.
I abide by the consequential orders made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment, the reasoning and conclusions therein just delivered by my learned brother BALKISU BELLO ALIYU, JCA and I agree with him.

I fully adopt the eloquent elaborate reasons so well set out in the lead judgment as mine and I have nothing more to add.

I abide by all consequential order(s) in the lead judgment.

Appearances:

IGHDOSA IMADGBELO, ESQ., with him, E. J. ALEGIMENIEN, ESQ. For Appellant(s)

O. AFOLABI, ESQ., with him, EHINON OKOH, ESQ. – for 2nd Respondent
1ST RESPONDENT ABSENT, BUT SERVED BY PASTING For Respondent(s)