KWASU & ORS v. ALAO (2020)

KWASU & ORS v. ALAO

(2020)LCN/14729(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/IL/135/2019

RATIO

JURISDICTION: WHERE DOES A COURT OF LAW DERIVE ITS JURISDICTION

The law is trite, a Court of law derives its jurisdiction from the statute creating it and in this case, Section 240 of the 1999 Constitution (Amended), vest this Court with jurisdiction to hear and determine appeals from the decision of the Courts listed therein which now includes the National Industrial Court. However, from the wordings of the section, it is apparent that the jurisdiction of this Court is subject to the provisions of the Constitution. Simply, this Court can only assume jurisdiction over decision of those Courts subject to the provisions of the Constitution in respect of each Court. SeeLagos Sheraton Hotel and Towers vs H.P.S.S.A (2014) 14 NWLR Pt.1426 P.45 @ 68 Para F-G. PER BDLIYA, J.C.A.

COURT: EXTENT OF THE RIGHT TO APPEAL DECISIONS OF THE NATIONAL INDUSTRIAL COURT TO THE COURT OF APPEAL

Section 243 (3) provides thus:
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 decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.” (Underlining supplied for emphasis).
From the above provisions, it is apparent that an aggrieved party will have a right to appeal against the decision of the National Industrial Court either as of right or with the leave of the Court of Appeal. By extension, it is also clear from the above provisions that this Court will only entertain an appeal against the decision of the National Industrial Court if it is launched as of right or with the leave of this Court where the appeal is not on question of fundamental rights contained in Chapter IV of the Constitution.
By Section 243 (2) of the 1999 Constitution (Amended), referred to above, an aggrieved party will only have the right to appeal against the decision of the National Industrial Court as of right and this Court will also have the jurisdiction to hear same if the decision of the National Industrial Court is on question of fundamental rights as contained in Chapter IV of the Constitution. This point was pointedly postulated in the case of Lagos Sheraton Hotel and Towers vs H.P.S.S.A (supra) @ 65 Para E-G., where his Lordship, Oseji J.C.A. opined thus:
“By virtue of Subsection 2, any party who is aggrieved with the decision of the National Industrial Court can appeal against such decision to the Court of Appeal as of right (which means that he does not require the leave of either the lower Court or this Court to do so). Provided however, that the decision he seeks to appeal against must arise from question of fundamental right as contained in Chapter IV of the Constitution.” (Underlining supplied for emphasis)
However, where the grounds of appeal are not on question of fundamental rights as contained in Chapter IV of the Constitution (amended), the appeal will only be competent and this Court will only have jurisdiction over same if it was filed with the leave of this Court. Put differently, where a party intends to appeal against the decision of the National Industrial Court on grounds other than on question of fundamental rights as contained in Chapter IV of this Constitution (amended), such party must first seek and obtain the leave of this Court to appeal on such grounds otherwise the appeal will be incompetent and this Court will lack jurisdiction to entertain same. See Skye Bank Plc vs Iwu (2017) 6 SC Pt.1 P.1 @ 43 lines 7 – 30, wherein the Apex Court espoused thus:
“Accordingly, I find and I hold, that on a harmonious construction of Section 240, 242(1), 243(4), a litigant who, is aggrieved by a decision of the trial Court, in other civil matters, can exercise a right of appeal with the leave of the lower Court. The only innovation in this regard is that it makes the lower Court the final Court with respect to such appeal.”
Also, the Apex Court in the case of Coca-Cola Nig Ltd &Ors vs Akinsanya (2017) Vol. 5-6 MJ.S.C. P.120 @ 139 Para B-E;, Eko J.S.C. Opined thus:
“I had earlier reproduced the provision of Section 243 (2) (3) and (4) of the Constitution, as amended. I think it is misleading to suggest that the provisions had taken away the right of appeal from decisions of the National Industrial Court.

The right to appeal, as of right, against the decision of the National Industrial Court on question of fundamental rights as contained in Chapter IV of the Constitution in relation to matters upon which the National Industrial Court has jurisdiction is retained in Section 243 (2) of the Constitution. Subsection (3) thereof also has not abrogated the right of appeal. The proviso to the subsection merely makes the exercise of the right of appeal in any matter other than questions of fundamental rights subject to the leave of Court of Appeal first sought and obtained. Over such matters, the right of appeal is not as of right but upon leave of the Court of Appeal first sought and granted.” (Underlining supplied for emphasis)
By the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended), an appeal shall lie from the decision of the National Industrial Court, as of right to the Court of Appeal, if the following conditions exist:
(a.) On question of fundamental rights
(b.) As contained in Chapter IV of this (1999) Constitution
(c.) As it relates to matters upon which the National Industrial Court has jurisdiction.

Therefore, for an appeal to properly lie to this Court from the decision of the National Industrial Court, the following must be satisfied: (a) Question of fundamental rights must arise in the appeal; (b) Such question of fundamental right must be those contained in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, as amended; and (c) Even at that, it is not every complaint against the decision of the National Industrial Court about breach of Fundamental Right contained in Chapter IV of the Constitution that appellate jurisdiction is conferred on the Court of Appeal, the breach in question must relate to matters over which jurisdiction is already conferred on the National Industrial Court (either by Section 254C of the 1999 Constitution as amended by the Third Alteration Act of the Constitution) which spells out the jurisdiction of that Court, or by some other Acts of the National Assembly conferring jurisdiction on it, of which in the latter case, the appeal has to be with the leave of the Court of Appeal.
In interpreting and applying the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended), and other similar provisions in the laws, the focus of the Apex Court and this Court has always been on the questions or complaints raised in the grounds of appeal to this Court and not the relief or claims in the trial Court as espoused in the case of Usman vs Umaru (1992) NWLR Pt. 254 P.377, wherein the Apex Court Per Ogundare J.S.C, when interpreting a similar expressions such as in appeals inspiring “questions regarding” as used in the 1979 Constitution, which same are contained in the 1999 Constitution (Amended), said thus:
“The expression ‘in cases involving question regarding’ as used in S. 10(1) of the Plateau State Customary Court of Appeal Law can only mean ‘in appeals involving question regarding’. I say this because just as it is the plaintiff’s claim in the trial Court that determine the jurisdiction of the Court. See Tukur vs Government of Gongola State (1989) 4 NWLR Pt. 117 P. 517. So also it is the issue, or issues for determination in an appeal that determines the Court to which an appeal lies….” Emphasis mine
This was reconfirmed a year later by the same Court inGolok vs Diyalpwan (1990) LPELR 1329 (1990) 3 NWLR Pt. 139 P. 411 @ 418 with Uwais J.S.C (as he then was) saying:
“It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. This right pertains to a complaint on ground of appeal which raises question of customary law.”
Section 36(1) of the 1999 Constitution (Amended) provides as follows:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Where the words of a statute are clear and unambiguous, they should be construed as to give effect to their natural meaning. A Court of law is without power to import into the meaning of a word, clause or section of a statute that which it did not say. It is a corollary to the rule of literal construction that nothing is added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Where the literal interpretation of the provision of a statute will result in some ambiguity, to resolve the ambiguity or to avoid doing injustice in the matter, the Court will adopt an interpretation which will not defeat the intention of law makers. See Okumagba v. Egbe (1965) 1 All NLR 62; Berliet (Nig.) Ltd v. Kachalla (1995) 9 NWLR Pt.420 P.478; Ogbunyiya v. Okudo (1979) 6 SC 32; Awuse v. Odili (2004) All FWLR Pt. 212 P.1664, (2004) 18 NWLR (Pt. 876) 481; Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158, (1983) 1 SCNLR 296; Ojukwu v. Obasanjo (2004) All FWLR (Pt. 222) 1666, (2004) 12 NWLR Pt. 886, 169.
The provisions of Section 36 (1) of the Constitution (Amended) are applicable only where the determination of the Civil rights and obligations are involved in a dispute being litigated before Court of law or a Tribunal established by law. The terms civil rights and obligations as applied in 36 (1) of the 1999 Constitution have been defined. For instance, “civil right” has been defined on page 263 of the Black’s Law Dictionary 8th Edition by Bryan A Garner thus:

Fair hearing which is entrenched in the Constitution 1999 (amended) is based on determining or testing the constitutionality of a trial in terms of procedure. It is a very fundamental principle of law which the parties and the Courts are free to apply in relevant situations in relation to the facts of the case and not in a vacuum. Accordingly, where the facts of the case reject the principle, the Court will have no competence to force the principle of law in the case. Thus, there is need for caution in the application of the fair hearing provision in the Constitution.
The real purport of the provisions of Section 36(1) of the 1999 Constitution (amended) has been expatiated on by Apex Court in the case of Orugbo vs Una & Ors (2002) 16 NWLR Pt. 792 P.175 @ 221, wherein Tobi, J.S.C., (of blessed memory) stated that:

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal.
Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.” PER BDLIYA, J.C.A.
FAIR HEARING: TRUE TEST OF FAIR HEARING

This Court in Alhaji Isyaku Mohammed vs Rabiu (1968) 1 All N.L.R 242 @ P. 426 has held that ‘a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing… The true test of a fair hearing … is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case’. This reasonable person will naturally, be looking for the following in order to determine whether the trial was fair and whether justice has been done:-
1. How was the Tribunal or the forum competence composed? Was it composed of “judges” or “persons” whose impartiality and fairness were transparent; persons who taking into account our common human weakness can exercise a detached attitude towards the facts presented to them, persons whom the respondent will have no cause to suspect or distrust, person in whom the respondent reposed confidence? Justice, in the final analysis must be rooted in confidence and that confidence may be destroyed by the conduct and/or utterances of the Judex – (the person adjudicating) – giving the impression that he was biased. Metropolitan Properties Co. (FGC) Ltd vs Lannon (1968) 3 All E.R 304 @ P.310.
2. Was the person whose conduct was being inquired into given the opportunity to listen to and reply to all the allegations made against him; and was nothing adverse said about him in his absence?
These are the twin pillar of fair hearing or fair trial. They are also the twin pillar of natural justice; they are the rules against bias and the right to be heard. In the Latin days of jurisprudence, the Ancient Romans put these two rules into two Latin maxims:
i. Nemo potest esse judex in proprio cause; and
ii. Audi alteram partem
In the English days of jurisprudence, they have been reduced to two very familiar words – Impartiality and Fairness. They are distinct but closely related concepts. Impartiality relates to the forum itself. While fairness relates to the right of the person accused to be heard – Kanda vs Government of Malaya (1962) A.C 322.”

From the foregoing, it is very clear that the test for fair hearing under Section 36 (1) Chapter (iv) of the 1999 Constitution (Amended) is whether the person asserting that the grounds of appeal in the appeal to this Court, contained denial of access to the Court or not being treated fairly by the Court or being prevented from presenting his case freely without any hindrance by the Court. For instance, Ejiwunmi J.S.C in the case of Alsthom S.A & Anor vs Chief Dr. Olusola Saraki (2005) 123 LRCN P.72 @ 91 to 93, postulated thus:
“Fair hearing according to our law, envisage that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisage that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.” PER BDLIYA, J.C.A.
APPEAL: EFFECT OF FAILURE TO SEEK LEAVE TO APPEAL WHERE IT IS REQUIRED

The law is settled, where leave of Court is required to ignite or activate the jurisdiction of a Court over any matter failure to seek and obtain the leave makes the action incompetent and divested the Court the jurisdiction to adjudicate. See Inter Ocean Oil Corp. Unlimited vs Fadeyi (2008) All FWLR Pt. 403 P.1381 @ 1398, Para C where this Court, Per his Lordship Omoleye J.C.A. postulated thus:
“The legal effect of not seeking leave to appeal properly so called is that the appeal is incompetent, null and void.”
Adekeye J.C.A (as she then was) held as follows in the case of Inter Ocean Oil Corp. Unlimited vs Fadeyi (2005) All FWLR Pt. 403 P.1381 @ 1398, that:
“I agree with my learned brother in the ruling that failure to obtain requisite leave to appeal is tantamount to not fulfilling a condition precedent to the exercise of the jurisdiction by this Court. This is a defect in competence which is extrinsic to adjudication. Where a litigant ought to obtain leave to come to Court, failure to take steps to secure the leave is a fundamental defect.” PER BDLIYA, J.C.A.

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Between

KWARA STATE UNIVERSITY 2. KWARA STATE UNIVERSITY GOVERNING COUNCIL 3. PROF. ABDURASHEED NA’ALLAH, (THE VICE CHANCELLOR, KWASU) APPELANT(S)

And

AYOTUNDE ALAO RESPONDENT(S)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court, Ilorin Division (the lower Court) delivered on the 21st day of May, 2017, in suit No: NIC/IL/02/2017. Briefly, the facts leading or culminating to the institution of the suit before the lower Court and subsequent appeal to this Court, are as follows: The respondent as the claimant at the lower Court was an Academic Staff of the University of Kwara state, Malete, the 1st appellant; until his appointment was terminated on the 10th of October, 2016. He was alleged to have committed acts of misconducts including extortion, threat and indecent behaviors, which contravened the rules and regulations contained in the Revised Code of Conduct for Staff of Kwara State University, and Conditions of Service and Regulations for Senior Staff. Aggrieved by the decision of the 2nd appellant terminating his appointment with the 1st appellant, the respondent instituted suit No: NIC/IL/02/2017 at the lower Court. The learned judge of the lower Court, after a dispassionate consideration of the case as presented by the parties, entered

judgment in favour of the respondent, and ordered his reinstatement and the payment of all his entitlements with effect from the 10th of October, 2016 (the effective date of the termination of his appointment) to the date of the delivery of the judgment by the lower Court. Dissatisfied with the judgment, the appellant filed Notice of Appeal to this Court on ten (10) grounds of appeal on the 1st day of July, 2019

The appellants’ brief of argument was filed on the 21st day of February, 2020, wherein three (3) issues for determination in the appeal were culled out of the ten (10) grounds of appeal, on pages 2 – 3 thereof. The respondent’s brief of argument was filed on the 8th day of May, 2020, out of time, which was deemed filed and served on parties on the 5th day of October, 2020. Two (2) issues for determination in the appeal were distilled out of the ten (10) grounds of appeal as contained on page 8 of the brief of argument. The appellants filed a Reply brief on the 13th day of July, 2020, which was amended and deemed properly filed on the 5th day of October, 2020.

The respondent filed Notice of Preliminary Objection challenging

the competence of the Notice of Appeal filed by the appellants on the 9th day of June, 2020. The arguments in respect of the Preliminary Objection are located on pages 4 to 8, paragraphs 4:00 to 4:11 of the respondent’s amended brief of argument. The Preliminary Objection have been predicted on a sole ground and supported by a six paragraphed affidavit. The sole issue for determination in the Notice of preliminary Objection is thus:
“Considering the circumstances of this appeal, whether it is incompetent, thus robs the Court jurisdiction.”

In their response to the arguments canvassed on the Preliminary Objection, the appellants formulated a sole issue for determination, which is thus:
“Whether having regard to the claims of the respondent before the trial Court, the appellants (respondents) cannot file an appeal against the judgment of the lower Court as of right.”

The issues for determination in the Preliminary Objection to the competence of the Notice of Appeal formulated by the respondent and the appellants are not dissimilar, therefore, both are hereunder taken and resolved together, that is, simultaneously.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Submissions of learned counsel.
Y.A. Dikko Esq., of learned counsel to the respondent, made submissions in support of the Preliminary Objection on pages 4 to 8 of the Amended brief of argument. Specifically, learned counsel submitted that, ordinarily, a Court of law derives its jurisdiction from the statute creating it and in respect of the Court of Appeal, it is Section 240 of the 1999 Constitution (Amended) and the Courts listed under the said Section 240 of the Constitution now includes the National Industrial Court of Nigeria, which an appeal therefrom, goes to the Court of Appeal. In this regard, learned counsel pointed out that, an appeal to this Court from the National Industrial Court of Nigeria is governed by the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended). The case of Lagos Sheraton Hotels and Towers vs HPSSA (2014) 14 NWLR Pt. 1420 P.45 @ 68 was cited and relied on to buttress the submissions supra.

It has been further submitted that by the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended), an appeal to this Court against the decision of the National Industrial Court of Nigeria can be

as of right or with leave of this Court, depending on the substance or nature of the grounds of appeal. That an appeal as of right against the decision of the National Industrial Court of Nigeria is permissible only where the decision is on question of fundamental rights as provided under Chapter (iv) of the 1999 Constitution (Amended). Where the decision of the National Industrial Court of Nigeria is not on question of fundamental right, leave of the Court of Appeal is required and must be obtained before an appeal can be made to the Court of Appeal. The principles of law espoused in the cases of Skye bank Plc vs Iwu (2017) 6 SC Pt.1 P.1 @ 43 and Inter Ocean Oil Corporation (Nig) Unlimited vs Fadeyi (2008) All FWLR Pt. 403 P.1381 @ 1398, were cited and relied on to buttress the submissions supra.

In conclusion, learned counsel did adumbrate that, it is not in dispute that the appellants did not seek and obtained leave of this Court, before appealing against the decision of the lower Court since the substance of the appeal are not on grounds concerning the question of fundamental human rights within the purview of Chapter iv of the 1999 Constitution (amended)

Learned counsel therefore contended that, since the leave of this Court was not obtained, the Notice of Appeal filed by the appellants against the decision of the lower Court is incompetent, and this Court had no jurisdiction to adjudicate on same. This Court has been urged to sustain the Preliminary Objection, and in consequence dismiss the appeal.

Taofiq Olateju Esq., of learned counsel, responded to the arguments canvassed on the Preliminary Objection on the competence of the appeal contained in the appellants brief of arguments and submitted that having due regard to the facts of the case and the circumstances of events culminating to the appeal, same is competent, therefore this Court is vested with the vires to entertain and determine same. Learned counsel did contend that by the provisions of Sections 240 and 243 (2) and (3) of the 1999 Constitution (Amended), the Court of Appeal has the jurisdiction to hear and determine appeals from the National Industrial Court of Nigeria. It has been further pointed out that by the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended), there are two (2) ways or modes of

appealing against a decision of the National Industrial Court to the Court of Appeal.

Learned counsel referred to the reliefs sought by the appellants, in particular relief (1), which can be located on page 2 of the record of appeal, and submitted that, it cannot be correct, as the learned counsel, did to content that the appeal by the appellants did involve question of fundamental Human Right as contained in Chapter (iv) of the Constitution 1999 (Amended). Learned counsel went on to contend that the subject matter of the appeal is the judgment of the lower Court, wherein it was held that the respondent’s right to fair hearing was violated or breached in the investigation leading to the termination of his appointment. Learned counsel further submitted, by the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended) and Section 9 (2) of the National Industrial Court, Act, when an appeal is on the allegation of an infringement of the provisions of Chapter (iv) of the Constitution (Amended), that is on fundamental human right, an appeal can be rightly filed as of right to the Court of Appeal. The principles of law espoused in the case

of Skye Bank Plc vs Iwu (2017) 6 SC Pt.1 P.1 @ 43, was cited and relied on to buttress the contentions supra.

Learned counsel referred to the cases cited and relied on to buttress the submissions of learned counsel to the respondent and contended that the principles of law enunciated in the cases, cited and relied on are not applicable to the extant appeal and urged this Court to discountenance same in the determination of the appeal. The cases cited and relied on are Skye Bank Plc vs Iwu (2017) 6 SC Pt.1 P.1 @ 43; Coca-Cola Nig & Sons vs Akinsanya (2017) Vol. 5-6 MJ.S.C. P.120 @ 139; Inter Ocean Oil Corp. Unlimited vs Fadeyi (2005) All FWLR Pt. 403 P. 1381 @ 1398 and Lagos Sheraton Hotel and Towers vs H.P.S.S.A (2014) 14 NWLR Pt.1426 P.45 @ 68. Concluding, learned counsel did submit that the appeal is competent, and the Court should hold so and proceed to determine the appeal on its merit.

therein which now includes the National Industrial Court. However, from the wordings of the section, it is apparent that the jurisdiction of this Court is subject to the provisions of the Constitution. Simply, this Court can only assume jurisdiction over decision of those Courts subject to the provisions of the Constitution in respect of each Court. SeeLagos Sheraton Hotel and Towers vs H.P.S.S.A (2014) 14 NWLR Pt.1426 P.45 @ 68 Para F-G. Therefore, for the purpose of the objection of the respondent to the competency of appeal No: CA/IL/135/2019 and the jurisdiction of this Court to entertain same, the only relevant provision of the 1999 Constitution (amended) are Section 243 (2) and (3) of the 1999 Constitution (Amended), which are reproduced hereunder, thus:
Section 243 (2) provides thus:
“An appeal shall be from the decision of the National Industrial Court as a right to the Court of Appeal on question of fundamental rights as contained in Chapter IV of this Constitution as it relate to matter upon which the National Industrial Court has jurisdiction. (Underlining supplied for emphasis).
Section 243 (3) provides thus:
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 decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.” (Underlining supplied for emphasis).
From the above provisions, it is apparent that an aggrieved party will have a right to appeal against the decision of the National Industrial Court either as of right or with the leave of the Court of Appeal. By extension, it is also clear from the above provisions that this Court will only entertain an appeal against the decision of the National Industrial Court if it is launched as of right or with the leave of this Court where the appeal is not on question of fundamental rights contained in Chapter IV of the Constitution.
By Section 243 (2) of the 1999 Constitution (Amended), referred to above, an aggrieved party will only have the right to appeal against the decision of the National Industrial Court as of right and this Court will also have the jurisdiction to

hear same if the decision of the National Industrial Court is on question of fundamental rights as contained in Chapter IV of the Constitution. This point was pointedly postulated in the case of Lagos Sheraton Hotel and Towers vs H.P.S.S.A (supra) @ 65 Para E-G., where his Lordship, Oseji J.C.A. opined thus:
“By virtue of Subsection 2, any party who is aggrieved with the decision of the National Industrial Court can appeal against such decision to the Court of Appeal as of right (which means that he does not require the leave of either the lower Court or this Court to do so). Provided however, that the decision he seeks to appeal against must arise from question of fundamental right as contained in Chapter IV of the Constitution.” (Underlining supplied for emphasis)
However, where the grounds of appeal are not on question of fundamental rights as contained in Chapter IV of the Constitution (amended), the appeal will only be competent and this Court will only have jurisdiction over same if it was filed with the leave of this Court. Put differently, where a party intends to appeal against the decision of the National Industrial Court on grounds

other than on question of fundamental rights as contained in Chapter IV of this Constitution (amended), such party must first seek and obtain the leave of this Court to appeal on such grounds otherwise the appeal will be incompetent and this Court will lack jurisdiction to entertain same. See Skye Bank Plc vs Iwu (2017) 6 SC Pt.1 P.1 @ 43 lines 7 – 30, wherein the Apex Court espoused thus:
“Accordingly, I find and I hold, that on a harmonious construction of Section 240, 242(1), 243(4), a litigant who, is aggrieved by a decision of the trial Court, in other civil matters, can exercise a right of appeal with the leave of the lower Court. The only innovation in this regard is that it makes the lower Court the final Court with respect to such appeal.”
Also, the Apex Court in the case of Coca-Cola Nig Ltd &Ors vs Akinsanya (2017) Vol. 5-6 MJ.S.C. P.120 @ 139 Para B-E;, Eko J.S.C. Opined thus:
“I had earlier reproduced the provision of Section 243 (2) (3) and (4) of the Constitution, as amended. I think it is misleading to suggest that the provisions had taken away the right of appeal from decisions of the National Industrial Court.

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provisions in the laws, the focus of the Apex Court and this Court has always been on the questions or complaints raised in the grounds of appeal to this Court and not the relief or claims in the trial Court as espoused in the case of Usman vs Umaru (1992) NWLR Pt. 254 P.377, wherein the Apex Court Per Ogundare J.S.C, when interpreting a similar expressions such as in appeals inspiring “questions regarding” as used in the 1979 Constitution, which same are contained in the 1999 Constitution (Amended), said thus:
“The expression ‘in cases involving question regarding’ as used in S. 10(1) of the Plateau State Customary Court of Appeal Law can only mean ‘in appeals involving question regarding’. I say this because just as it is the plaintiff’s claim in the trial Court that determine the jurisdiction of the Court. See Tukur vs Government of Gongola State (1989) 4 NWLR Pt. 117 P. 517. So also it is the issue, or issues for determination in an appeal that determines the Court to which an appeal lies….” Emphasis mine
This was reconfirmed a year later by the same Court inGolok vs Diyalpwan (1990) LPELR

1329 (1990) 3 NWLR Pt. 139 P. 411 @ 418 with Uwais J.S.C (as he then was) saying:
“It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. This right pertains to a complaint on ground of appeal which raises question of customary law.”
Section 36(1) of the 1999 Constitution (Amended) provides as follows:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Where the words of a statute are clear and unambiguous, they should be construed as to give effect to their natural meaning. A Court of law is without power to import into the meaning of a word, clause or section of a statute that which it did not say. It is a corollary to the rule of literal construction that nothing is added to or taken from a statute unless there are adequate grounds to justify

the inference that the legislature intended something which it omitted to express. Where the literal interpretation of the provision of a statute will result in some ambiguity, to resolve the ambiguity or to avoid doing injustice in the matter, the Court will adopt an interpretation which will not defeat the intention of law makers. See Okumagba v. Egbe (1965) 1 All NLR 62; Berliet (Nig.) Ltd v. Kachalla (1995) 9 NWLR Pt.420 P.478; Ogbunyiya v. Okudo (1979) 6 SC 32; Awuse v. Odili (2004) All FWLR Pt. 212 P.1664, (2004) 18 NWLR (Pt. 876) 481; Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158, (1983) 1 SCNLR 296; Ojukwu v. Obasanjo (2004) All FWLR (Pt. 222) 1666, (2004) 12 NWLR Pt. 886, 169.
The provisions of Section 36 (1) of the Constitution (Amended) are applicable only where the determination of the Civil rights and obligations are involved in a dispute being litigated before Court of law or a Tribunal established by law. The terms civil rights and obligations as applied in 36 (1) of the 1999 Constitution have been defined. For instance, “civil right” has been defined on page 263 of the Black’s Law Dictionary 8th Edition by Bryan A Garner thus:

“The individual right of personal liberty guaranteed by the Bill of rights…..” “Obligation has been defined on page 1104 of the Dictionary referred to supra to be a legal or moral right to do or not to do something….”
Fair hearing which is entrenched in the Constitution 1999 (amended) is based on determining or testing the constitutionality of a trial in terms of procedure. It is a very fundamental principle of law which the parties and the Courts are free to apply in relevant situations in relation to the facts of the case and not in a vacuum. Accordingly, where the facts of the case reject the principle, the Court will have no competence to force the principle of law in the case. Thus, there is need for caution in the application of the fair hearing provision in the Constitution.
The real purport of the provisions of Section 36(1) of the 1999 Constitution (amended) has been expatiated on by Apex Court in the case of Orugbo vs Una & Ors (2002) 16 NWLR Pt. 792 P.175 @ 221, wherein Tobi, J.S.C., (of blessed memory) stated that:

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal.
Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.”
It is therefore not correct to contend as learned counsel to the respondent did, that the question of fundamental human right envisaged by Section 243 (2) and (3) of the 1999 Constitution (Amended), refer to the

plaintiff’s reliefs and claims at the trial Court, that is, National Industrial Court, touching on fundamental rights under Chapter iv of the Constitution and that it is only an appeal on or touching or relating to such fundamental rights contained in such reliefs or claims that confer a right of appeal to the Court of Appeal, from a decision of the National Industrial Court.
At this juncture, an examination of the questions or complaints for determination as put forward by the appellants in their ten (10) grounds of appeal to this Court to see whether they raise question of fundamental right, particularly breach of their right to fair hearing under Section 36 (1) of Chapter (iv) of the 1999 Constitution (Amended), is pertinent. The Notice of Appeal filed by the appellants on the 1st of July, 2017 and the grounds thereof, are located on pages 342 to 353 of the printed record of appeal. I have dispassionately considered and evaluated the grounds of appeal. In my view, all the ten (10) grounds of appeal are attacking the findings and decisions arrived at on specific issues by the leaned judge of the lower Court.

The question that arises is this, what constitutes fair hearing under Section 36 (1) of Chapter (iv) of the Constitution (Amended) and when it is breached to support an appeal from the National Industrial Court to the Court of Appeal pursuant to Section 243 (2) and (3) of the 1999 Constitution (Amended). Section 36 (1) of the 1999 Constitution (Amended), provides as follows:
“In the determination of the civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or Tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
The purview of the provisions supra, which are “impari materia” with Section 22 of the 1963 Constitution and Section 33 of the 1979 Constitution, both of the Federal Republic of Nigeria, have been examined, interpreted and applied by the Apex Court in a litany of cases. For instance, in Ransome-Kuti vs A.G Federation (1985) 2 NWLR Pt. 6 P.11 @ 258; Oputa J.S.C, espoused thus:
“The next Section of the 1963 Constitution heavily relied upon by Mr Braithwaite was

Section 22 which stipulated 22(1).
Read as a whole, it is obvious that the right guaranteed by Section 22 above is similar to the right guaranteed by Section 33(1) of the 1979 Constitution and that is – Right to fair hearing. The antecedent portion of Section 22 of the 1963 Constitution uses the phase in the determination of his civil rights and obligations. This can only refer to civil rights and obligation existing independent of Section 22 and not created by Section 22 above. It is in the determination of such civil right and obligation that 1963 Constitution guaranteed any aggrieved person a fair hearing of his complain or his claim in accordance with the rules of natural justice namely impartiality and fairness. What Section 22 guaranteed was fair and impartial adjudication of dispute about right and obligations which arise aliunde.” (Underlining for emphasis)
The Law Lord, Oputa J.S.C reconfirmed the extent of the constitutional fair hearing provision in the case of Legal Practitioners Disciplinary Committee vs Chief Gani Fawehinmi (1985) 2 NWLR Pt. 7 P. 300 @ 383, when his Lordship enunciated that:
“In this appeal therefore,

the essential issue is the extent of the right to fair hearing guaranteed by Section 33 of the 1979 Constitution. Was the respondent’s right under Section 33 infringed or threatened with infringement? This Court in Alhaji Isyaku Mohammed vs Rabiu (1968) 1 All N.L.R 242 @ P. 426 has held that ‘a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing… The true test of a fair hearing … is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case’. This reasonable person will naturally, be looking for the following in order to determine whether the trial was fair and whether justice has been done:-
1. How was the Tribunal or the forum competence composed? Was it composed of “judges” or “persons” whose impartiality and fairness were transparent; persons who taking into account our common human weakness can exercise a detached attitude towards the facts presented to them, persons whom the respondent will have no cause to suspect or distrust, person in whom the respondent reposed confidence?

Justice, in the final analysis must be rooted in confidence and that confidence may be destroyed by the conduct and/or utterances of the Judex – (the person adjudicating) – giving the impression that he was biased. Metropolitan Properties Co. (FGC) Ltd vs Lannon (1968) 3 All E.R 304 @ P.310.
2. Was the person whose conduct was being inquired into given the opportunity to listen to and reply to all the allegations made against him; and was nothing adverse said about him in his absence?
These are the twin pillar of fair hearing or fair trial. They are also the twin pillar of natural justice; they are the rules against bias and the right to be heard. In the Latin days of jurisprudence, the Ancient Romans put these two rules into two Latin maxims:
i. Nemo potest esse judex in proprio cause; and
ii. Audi alteram partem
In the English days of jurisprudence, they have been reduced to two very familiar words – Impartiality and Fairness. They are distinct but closely related concepts. Impartiality relates to the forum itself. While fairness relates to the right of the person accused to be heard – Kanda vs Government of Malaya (1962) A.C 322.”

From the foregoing, it is very clear that the test for fair hearing under Section 36 (1) Chapter (iv) of the 1999 Constitution (Amended) is whether the person asserting that the grounds of appeal in the appeal to this Court, contained denial of access to the Court or not being treated fairly by the Court or being prevented from presenting his case freely without any hindrance by the Court. For instance, Ejiwunmi J.S.C in the case of Alsthom S.A & Anor vs Chief Dr. Olusola Saraki (2005) 123 LRCN P.72 @ 91 to 93, postulated thus:
“Fair hearing according to our law, envisage that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisage that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.”
Bearing in mind the postulations supra, it cannot be said that the ten (10) grounds of appeal contained in the Notice of Appeal filed by the appellants satisfied the position of the law regarding allegation of violation or breach

of fundamental human rights envisaged under Section 243 (2) and (3) of the 1999 Constitution (Amended), to warrant appealing against the judgment of the National Industrial Court as of right, rather than with leave of the Court of Appeal as the appellants in the extant appeal has done. I think what Oseji J.C.A, (as he then was) had in mind is the kind of Appellants as in the extant appeal, who thought they can just appeal of right against the decision of the National Industrial Court without first seeking leave of this Court, when his Lordship espoused in Lagos Sheraton Hotel & Towers vs H.P.S.S.Asupra page 71 that:
“Litigant who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the 1999 Constitution (Amended), by seemingly waving the magic wand of fair hearing or breach of the fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matter falling outside the allowed scope should be advised not to underestimate the sharp sense of perception and wisdom of the appellate Courts to sift the wheat from the chaff.”

Having found and held that the appellants’ grounds of appeal as contained in the Notice of Appeal are not on question of fundamental rights as contained in Chapter (iv) of the 1999 Constitution (Amended), and the said Notice of Appeal was filed without the requisite leave of this Court first sought and obtained, the logical implication of the above finding and holding is that the requisite leave to make this appeal competent and to confer jurisdiction on this Court to entertain the appeal was not sought and obtained before filing same.
The law is settled, where leave of Court is required to ignite or activate the jurisdiction of a Court over any matter failure to seek and obtain the leave makes the action incompetent and divested the Court the jurisdiction to adjudicate. See Inter Ocean Oil Corp. Unlimited vs Fadeyi (2008) All FWLR Pt. 403 P.1381 @ 1398, Para C where this Court, Per his Lordship Omoleye J.C.A. postulated thus:
“The legal effect of not seeking leave to appeal properly so called is that the appeal is incompetent, null and void.”
Adekeye J.C.A (as she then was) held as follows in the case of Inter Ocean Oil Corp. Unlimited vs Fadeyi (2005) All FWLR

Pt. 403 P.1381 @ 1398, that:
“I agree with my learned brother in the ruling that failure to obtain requisite leave to appeal is tantamount to not fulfilling a condition precedent to the exercise of the jurisdiction by this Court. This is a defect in competence which is extrinsic to adjudication. Where a litigant ought to obtain leave to come to Court, failure to take steps to secure the leave is a fundamental defect.”
The end result of the foregoing analysis is that the Preliminary Objection raised by the respondent as to the incompetency of the Notice of Appeal filed on the 1st of July, 2019 by the appellants against the decision of the National Industrial Court delivered on the 31st day of May 2019, is null and void; and this Court cannot be vested with the jurisdiction to hear and determine same. The appeal No: CA/IL/135/2019 being incompetent is accordingly hereby struck out.

The sustenance of the Preliminary Objection raised by the respondent has determined the appeal and there is no need to delve into the other issues.
I have adverted my mine to the principles of law enunciated in the case of F.C.D.A vs Sule referred to in the

case of Shasi vs Smith (2009) 18 NWLR Pt. 1173 P. 330 @ 356 supra, wherein it has been held that there is an exception to the need for an intermediary Court to proceed to consider all other issues raised in an appeal even where the resolution of one issue could terminate an appeal. The principle of law in the case of F.C.D.A vs Sule, is to the effect that where the sole issue resolved is to the effect that the intermediary Appeal Court has no jurisdiction to entertain and determining the matter before it being considered, it may not proceed to consider the remaining issues in the suit or appeal for it has no jurisdiction to do so. It is in view of the foregoing illucidation that I decline to proceed to consider the other issues raised in the appeal before us.

It should be noted that it is only the Notice of Appeal filed on the 1st of July, 2019 that has been struck out. For now, the judgment of the lower Court delivered on the 1st of May, 2019 remains valid and binding on the parties until contrary order is made by a Superior Court. I make no order as to costs.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the advantage of reading, in draft, the Judgment

just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA. I agree with his reasoning and conclusion.

I agree that the Notice of Appeal is incompetent and that it is liable to be struck out. I strike out the Notice of Appeal.

UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the judgment just delivered by my Brother, IBRAHIM SHATA BDLIYA, J.C.A.

The Jurisdiction of the Court to hear this appeal from the National Industrial Court stems on Section 243(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); which provides thus: “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.”
The concept of the rule of fair hearing as provided for under Section 36 (1) of Chapter (IV) of the Constitution of the Federal Republic of Nigeria; which is the rule of natural justice, demands that a party must be heard before the case against him is determined. See: Akande V. State (1988) 3 NWLR

(Pt. 85) 681; F.C.S.C. V. Laoye (1989) 2 NWLR (Pt. 106) 652; ESABUNOR &ANOR v. FAWEYA & ORS (2019) LPELR-46961 (SC).
The Respondent at the trial Court prayed for the following reliefs:
a) “A DECLARATION that the termination of employment of the Claimant as contained in the letter dated the 10th October, 2016 written by the Defendant is illegal, wrongful, null and void and of no effect whatsoever having been done in contravention of Section 8 of the University Condition of Service and Regulation and the rules of fair hearing.
b) AN ORDER of this Honourable Court reinstating the Claimant as lecturer II in the 1st Defendant’s University without prejudice to his promotion, salaries and other entitlements.
c) AN ORDER of the Honourable Court directing the Defendant to pay the Claimant’s salaries and entitlement from the time of the termination until he is reinstated.
ALTERNATIVELY
(1) A DECLARATION that the Claimant is entitled to damages in form of loss of earning for unlawful termination of the appointment by the defendants in forms of loss of earning with effect from 10th October, 2016 till December, 2048 when is due to

retire from service in accordance with the condition of service governing his employment.
(2) AN ORDER of this Honourable Court directing the defendants to pay a calculated sum of NGN137,108,721.56k as damages for the abrupt termination of the carrier in the form of loss of earning.
(3) AN ORDER of this Honourable Court directing the defendants to pay a sum of NGN10,000,000.00 to the Claimant as damages for psychological and emotional trauma and agony which the action of the Defendants have occasioned to the Claimant.”
A calm consideration of the above reproduced reliefs: be it as in the alternative reliefs sought by the Respondent at the trial Court, the main claim of the Respondent is the unlawful termination of his employment; and even where otherwise worded, does not amount to a declaration for breach of right to fair hearing as argued by the Appellant’s counsel.
The golden rule of interpretation is that where the words used in the Constitution or in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute.

See: Ibrahim V. Barde (1996) 9 NWLR (Pt. 474) 513; Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 at 402 paras F-H; Adisa V. Oyinwola & Ors. (2000) 6 SC (Pt. 11) 47; PROFESSOR JERRY GANA, CON V. SOCIAL DEMOCRATIC PARTY & ORS (2019) LPELR-47153 (SC); MAMONU & ANOR V. DIKAT &ORS (2019) LPELR-46560(SC).
Section 243 (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in my view is clear and unambiguous and should be given its plain and ordinary meaning. By the plain meaning of Section 243 (2) (supra), I take the position that this appeal does not fall under the exceptions as provided by the referred Section 243 (2) (supra). Therefore leave of the Court is required to file this Appeal and the Appeal having being filed without leave of the Court being sought and obtained is incompetent. See: DANKOFA V. FRN (2019) LPELR-46539(SC); OMOKU ACHIEVERS CO-OPERATIVE INVESTMENT & CREDIT SOCIETY LTD & ORS v. EMERONYE (2019) LPELR-48318(CA).
For the views expressed above, I agree with the reasoning and conclusion of my Brother Justice that the Notice of Appeal is incompetent. The Court lacks the jurisdiction to entertain

the Appeal and the same is hereby struck out. No order is made as to costs.

Appearances:

S.O. Akangbe Esq., with him, A.M. Salman Esq., Taofiq Olateju Esq., M.D. Popoola Esq. and Faith Joshua For Appellant(s)

Y.A. Dikko Esq. with him, L.O. Bello Esq. For Respondent(s)