LAGOS SHERATON HOTEL AND TOWERS v. HOTEL AND PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014)

LAGOS SHERATON HOTEL AND TOWERS v. HOTEL AND PERSONAL SERVICES SENIOR STAFF ASSOCIATION

(2014)LCN/7411(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of July, 2014

CA/L/1218M/2010

RATIO

APPEAL: APPEAL AGAINST THE DECISION OF THE NATIONAL INDUSTRIAL COURT; WHETHER THE ONLY DECISIONS OF THE NATIONAL INDUSTRIAL COURT FROM WHICH A PARTY CAN EXERCISE A RIGHT OF APPEAL WITHOUT MUCH ADO IS WHERE IT EMANATES FROM QUESTIONS OF FUNDAMENTAL RIGHTS AS CONTAINED IN CHAPTER IV OF THE CONSTITUTION AS WELL AS IN DECISIONS IN CRIMINAL CAUSES AND AS THEY RELATE TO MATTERS UPON WHICH THE NATIONAL INDUSTRIAL COURT HAS JURISDICTION

From the arguments presented by the parties, the narrow issue herein is whether by virtue of the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 9 (1) and (2) of the National Industrial Court Act 2006 and Section 21 (3) of the Trade Disputes Act CAP 18 LFN 2004, this court has jurisdiction to grant the applicants application for leave to appeal against the decision of the National Industrial Court.
It is therefore germane to set out herein below the aforementioned provisions for proper appreciation of their true intent.
Section 243 (2) and (3) of the 1999 constitution as amended provides that:-
243(2) “An appeal shall lie from the decision of the National Industrial court as of right to the Court of Appeal on questions of fundamental rights as contained in chapter IV of this constitution as it relates to maters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lies form the decision of the National Industrial Court to the Court of Appeal may be prescribed by on Act of the National Assembly;
Provided that where an Act of Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with leave of the Court of Appeal”.
In the same vein Section 9(1) and (2) of the National Industrial Court Act No. 1, 2006 provides thus:-
9(1) “subject to the provisions of the constitution of the Federal Republic of Nigeria 1999 and subsection (2) of this section no appeal shall lie from the decisions of the court to the Court of Appeal or any other court except as may be prescribed by this Act or any Act of the National Assembly.
(2) An appeal from the decision of the court shall be only as of right to the Court of Appeal only on questions of fundamental rights as contained in chapter IV of the constitution of the Federal Republic of Nigeria 1999″.
Similarly, Section 21 (3) of the Trade Disputes Act, Cap T8 LFN 2004 provides that:-
21(3) “An appeal from the decision of the court shall lie as of right to the Court of Appeal on questions of fundamental rights as contained in chapter IV of the constitution of the Federal Republic of Nigeria 1999”.
Given the apparent similarity of the provisions of the two statutes above reproduced (and more particularly Section 9 of the National Industrial Court Act 2005) with the provisions of Section 243 (2) & (3) of the 1999 Constitution, the issue in contention will be better addressed with emphasis on the latter being the grundnorm and the source of life and jurisdiction of all the superior courts of Record in this country including the National Industrial Court.
From my humble understanding of the provisions of Section 243 (2) and (3) of the 1999 constitution as amended, they are very clear and unambiguous as to the meaning of the message they intend to convey as pertaining to the scope and extent of the right of appeal from the National Industrial Court to the Court of Appeal.

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 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 questions of fundamental right as contained in chapter IV of the constitution in so far as it relates to matter upon which the National Industrial Court has jurisdiction to entertain as per Section 254(c) (1 -5) of the said constitution or any other jurisdiction as may be conferred upon it by an Act of the National Assembly. In other words, the only decisions of the National Industrial Court from which a party can exercise a right of appeal without much ado is where it emanates from questions of fundamental rights but limited to those contained in chapter IV of the constitution. I must quickly add here that this restriction does not extend to the right of appeal against the decision of the National Industrial court on criminal matters.

Section 254 (c) 5 and 6 of the constitution provides that:-
(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any Act of the National Assembly or by any other law.
(6) Notwithstanding anything to the contrary in this constitution, appeal shall lie from the decision of the National Industrial court from matters in sub-section 5 of this section to the Court of Appeal as of right.
What can clearly be gleaned from the provisions of section 243 (2) and 254(C)(5) of the constitution is that appeal from the National Industrial court to the Court of Appeal can only be as of right on decisions connected with questions of fundamental rights under chapter IV of the constitution or decisions on criminal causes or matters arising from any causes or matters of which jurisdiction is conferred on the court by section 254 (C) (1 – 4) or any other Act of the National Assembly or by any other Law.
Section 243 (3) however provided further that:-
“An appeal shall only lie from the decision of the National Industrial court to the Court of Appeal as may be prescribed by on Act of the National Assembly.
Provided that where an Act or law prescribes that an Appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with leave of the court of Appeal.”
Here again, it is my humble view that the above stated provision does not need any microscopic intrusion in order to discern or understand its true intent and purpose. My own understanding and interpretation of the said Section 243(3) of the Constitution of the Federal Republic of Nigeria 1999 as amended is that except for the right of appeal under Section 243(2) and 254C (5) and (6) therein, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any cause or matter in which jurisdiction is conferred on the National Industrial Court shall only be as prescribed by an Act of the National Assembly. Provided however that where such Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial court to the Court of Appeal on any other matter, such appeal shall be with the leave of the Court of Appeal and not even first with the leave of the lower court. Put in another way, except for the provisions of Section 243 (2) and 254 (5) and (6) of the 1999 Constitution as amended, wherein an aggrieved party can appeal as of right to this court on questions of fundamental rights as contained in chapter IV of the Constitution as well as in decisions in criminal causes and as they relate to matters upon which the National Industrial court has jurisdiction; an appeal on any other matter shall only be as prescribed by an Act of the National Assembly and that is not all. Such appeal shall be only with the leave of the Court of Appeal. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

STATUTORY INTERPRETATION: INTERPRETING THE WORDS OF A STATUTE; WHETHER WHERE THE WORDS USED IN THE CONSTITUTIONAL PROVISIONS ARE CLEAR, PLAIN AND UNAMBIGUOUS THEY MUST OF NECESSITY BE GIVEN THEIR ORDINARY AND PLAIN MEANING AND THE FUNDAMENTAL DUTY OF THE JUDGE TO EXPOUND THE LAW AND NOT TO EXPAND IT

Consequently, where the words used in the constitutional provisions are clear, plain and unambiguous they must of necessity be given their ordinary and plain meaning with a view to avoid reading into the provisions, meanings not intended by the law makers. See ABUBAKAR V. NASAMU (No 1) (2012) 17 NWLR (PT 1330) 407; KUUSU v. UDOM (1990) 1 NWLR (Pt 127) 421; KALU V. THE STATE (1998) 13 NWLR (Pt 583) 531; OJOKOBO V. ALAMU (1987) 3 NWLR (Pt 61) 377; A.G. OGUN STATE V. AG FEDERATION (1982) 8 – 11 SC 130. In AMAECHI v. INEC (2008) 33 NSCQR (PT 1) 332.

It was held that the Fundamental duty of the judge is to expound the law and not to expand it. He must decide what the law is and not what it might be. Where the words used in couching the provisions are clear and unambiguous they must be given their ordinary and grammatical meanings. Also in MARWA V. NYAKO (2012) 6 NWLR (PT 1296) 1999 at 306 the Apex court per Chukwuma Eneh JSC noted that:-
” … It is crucial to adopt a more sensible and reasonable construction so that where there are two possible constructions of a provision or enactment as in this matter, the more reasonable and sensible construction of it should prevail as preferred and avoid incongruous results and absurd situations.
See Central London Rly Co. V. Inland Revenue Commissioners (1937) AC 77 at H. To achieve that purpose the court has further to adopt the basic approach of liberal interpretation as enunciated in such cases as Rabiu V. The State (1980) 8 – 11 SC 130; (1981) 2 NCLR 293 by giving the words used in the constitution their simple literary and natural meaning in other words as an aid to achieving a broad or liberal construction as against a narrow interpretation and where the con dictates as used in their popular senses and so get to the true meaning of the words as intended by the framers of the constitution; in this way yet to the true intendment of the constitution which is the most primary goal of constitutional interpretation. Where the meaning of the provision as per the words used is clear, however, there is no need resorting to any other methods of interpretation than to go ahead to interpret the provisions literarily.”
In the instant case the meaning of the provisions of Section 234(3) of the 1999 Constitution as amended by Section 5 of the (Third Alteration) Act, 2010 as per the words used therein are very clear, in which case there shall be no resort to any other method of interpretation, but to interprete it literally. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

APPEAL: APPEAL AGAINST THE DECISION OF THE LOWER COURT; WHETHER THE ONLY RIGHT OF APPEAL TO AN APPELLATE COURT AGAINST THE DECISION OF THE LOWER COURT AS PRESENTLY DONATED BY THE CONSTITUTION, IS SOLELY THAT OF APPEAL AS OF RIGHT ON QUESTIONS OF FUNDAMENTAL RIGHTS AS CONTAINED IN CHAPTER IV OF THE CONSTITUTION AS THEY RELATE TO MATTERS UPON WHICH THE LOWER COURT HAS JURISDICTION

What is more, the general appellate jurisdiction of the Court of Appeal is conferred on it by Section 240 of the Constitution (as amended) and the said Section 240 is however “subject to the provisions of the constitution” thus making it clear that the right of Appeal to the Court of Appeal against the decisions of the lower courts is not conclusive but subject to other provisions of the constitution. It follows therefore that given the provisions of Section 243(3) of the constitution as amended, the only right of appeal from the decisions of the National Industrial Court to this Court is only that of Appeal as of right on questions of fundamental rights as contained in chapter IV of the constitution as well as in the criminal causes as they relate to matters upon which the National Industrial Court has jurisdiction to entertain. The question of the said provisions of the Section 243(3) being in conflict with other provisions of the constitution does not arise.
What is more, the Hon. President of the Court of Appeal constituted a full panel of five Justices of the court to resolve a similar issue in the case of COCACOLA (NIG) LTD & 2 ORS V. AKISANYA (2013) 1 ACELR 28. In the said case one of the issues for determination was whether in the absence of a specific Act of the National Assembly vesting Appellate jurisdiction on the Court of Appeal regarding the question in the appeal, the appellate jurisdiction of the Court of Appeal over the National Industrial Court as provided for under the Constitution (as amended) is limited to cases regarding questions of fundamental rights and criminal actions.
The full panel of this court sitting in Lagos Division held per Lokulo-Sodipe at page 58 to 59 of the Report as follows:-
“The general Appellate jurisdiction of this court by the provision of Section 240 of the Constitution (as amended) undoubtedly covers the lower court. The provisions of the said Section 240 is however subject to the provisions of the Constitution. The amended constitution clearly does not create any inherent right of appeal to the Court of Appeal against the decisions of courts lower to it in hierarchy having regard to the word “Subject to the Provisions of this Constitution” as used in Section 240 (supra). It would therefore appear incontrovertible that given the provision of Section 243 of the amended Constitution, the only right of appeal to this court against the decision of the lower court as presently donated by the Constitution, is solely that of appeal as of right on questions of fundamental rights as contained in Chapter IV of the Constitution as they relate to matters upon which the lower court has jurisdiction”.
Furthermore at page 113 to 114 of the Report the distinguished panel of Justices held per Ikyegh JCA that:-
“However, the constitution that made the National Industrial Court A Superior Court of Records broke from its tradition of conferring appellate jurisdiction on the Court of Appeal over the other decisions of the National Industrial Court as it has done in respect of other Superior Courts created by it, by stating in Section 5(3) of the Third Alteration Act that an appeal shall only be from other decisions (except on questions of fundamental rights) of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly.
As the position stands now, there is no enactment of the National Assembly conferring a right of Appeal from any decision of the National Industrial Court outside the fundamental rights relating to matters within its civil jurisdiction to the Court of Appeal. While the lacuna may help to reduce the workload of the Court of Appeal, it is doubtful whether leaving the National Industrial Court as the final or Supreme Court in such civil matter of mega jurisdiction would augur well for aggrieved litigants especially as anything to do with employment affects the livelihood of members of the workforce, and invariably, their dependants.” As presently constituted therefore, the law is that a litigant who is not satisfied with the decision of the National Industrial Court can only appeal as of right where such decision relates to questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or in criminal causes as they relate to matters upon which the National Industrial Court has jurisdiction. As to other causes or matters not so specified appeal shall only lie from decisions of the National Industrial Court to this court as may be prescribed by an Act of the National Assembly and such appeal shall be with leave of this court only. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: JURISDICTION; THE SCOPE OF THE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT UNDER THE CONSTITUTION
There is presently no such Act of the National Assembly and until there is an enactment to that effect or a subsequent amendment of Section 243 of the constitution, the National Industrial Court remains the final and ultimate court in all causes or matters upon which it has jurisdiction except in decisions relating to questions of fundamental rights connected with chapter IV of the constitution or in criminal causes. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

CONSTITUTIONAL LAW; FUNDAMENTAL RIGHT TO FAIR HEARING; THE ESSENCE OF THE FAIR HEARING PROVISION IN THE CONSTITUTION

The words ‘fair hearing’ is not a magic wand to be waved at every given opportunity to perhaps confuse or agitate the courts. This was the stance taken by the Supreme Court in the case of SABIRU ADEBAYO V. A.G. OGUN STATE (2008) 33 NSCQR (VOL. 1) page 1 at pages 25 to 26 wherein NIKI TOBI JSC proffered the following admonition:-
“The fair hearing provision in the constitution is the machinery or locomotive of Justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the courts to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave fair hearing constitutional provision alone because it is not available to them just for the asking”.
I will add here that litigants who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope should be advised not to under estimate the sharp sense of perception and wisdom of the appellate courts to sift the wheat from the chaff. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICE

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

LAGOS SHERATON HOTEL AND TOWERSAppellant(s)

AND

HOTEL AND PERSONAL SERVICES SENIOR STAFF ASSOCIATIONRespondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Lead Ruling): By the motion on notice dated 17th day of December 2010 and filed on the 20th day of December 2010 the Applicant herein prayed for the following orders of this court:-

1. AN ORDER extending the time within which the Application may apply for leave to appeal against the decision comprised in the judgment of the National Industrial Court, Holden at Lagos delivered in the suit No. NIC/9/2008 – Hotel & Personal Service Senior Staff Association v Lagos Sheraton Hotel & Towers: coram: Hon. Justice B.B. Kanyip (Presiding), Hon. Justice O.A. Obaseki-Osaehae (Judge), and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 dismissing the Appellant’s Cross-Appeal in that suit and awarding the reliefs of payment of salaries and allowances and other entitlement to some members of the Respondents whose employment with Applicants were terminated from the date of the termination of the said respective employment to the date of the said Judgment as interpreted, affirmed and upheld by the Court in its judgment delivered on the 14th December, 2010 in the proceedings on the Application’s Summons for interpretation and/or setting aside and for stay of the said decision of the 14th July, 2009 with a news Suit No. NIC/LA/21A/2009.

2. ORDER granting the leave to the Applicant to appeal against the said decision comprised in the judgment of the National Industrial Court, Holden at Lagos delivered in this Suit No. NIC/9/2008 -Hotel Personal Services Senior Staff Association v. Lagos Sheraton Hotel & Towers; coram: Hon Justice B.B. Kanyip (Presiding), Hon. Justice V.N. Okobi (Judge), Hon. Justice F.I. Kola-Olarere (Judge), Hon, Justice A.O Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 dismissing the Application’s Cross-Appeal in the Suit and awarding the reliefs of the payment of salaries and allowances and other entitlement to some members of the Respondents whose employment with the Applicants were terminated from the date of the termination of the said respective employments to the date of the said judgment as interpreted, affirmed and up held by that Court and its judgment delivered on the 14th December, 2010 in the proceedings on the Application’s Summons for the interpretation and/or setting aside and for stay of the said decision of the 14th July, 2009 with a new Suit No. NIC/LA/21A/2009.

3. AN ORDER extending the time within which the Applicant may appeal against the said decision comprised in the judgment of the National Industrial Court, Holden at Lagos delivered in this Suit No. NIC/9/2008 -Hotel & Personal Services Senior Staff Association v. Lagos Sheraton Hotel & Tower; coram: Hon. Justice B.B. Kanyip (Presiding), Hon. Justice A.O. Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 dismissing the Applicants Cross-Appeal in that Suit awarding the Reliefs of the payment of salaries and allowances and other entitlements to some members of the Respondents whose employment with the Applicant were terminated from the date of the termination of the said respective employments to the date of the said judgments as interpreted, affirmed and upheld by that Court in its judgment delivered on the 14th December, 2010 in the proceedings on the Applicant’s Summons for interpretation and/or setting aside and for stay of the said decision of the 14th July, 2009 with a news Suit No. NIC/A/21A/2009.

4. AN ORDER deeming the Notice of the Applicant’s Appeal dated the 17th day of December, 2010 against the said decision comprised in the judgment of the National Industrial Court, Holden at Lagos delivered in this Suit No. NIC/9/2008 – Hotel & Personal Senior Staff Association v. Lagos Sheraton Hotel & Towers; coram: Hon. Justice B.B. Kanyip (Presiding), Hon. Justice V.N. Okobi (Judge), Hon, Justice F.I. Kola-Olarere (Judge) Hon. Justice A.O. Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 dismissing the Applicant’s Cross-Appeal in that Suit and awarding the reliefs of the payment of salaries and allowances and other entitlements to some members of the Respondents whose employment with the Applicants were terminated from the date of the said judgment as interpreted, affirmed and upheld by that Court in its judgment delivered on the 14th December, 2010 in the proceedings on the Applicant’s Summons for interpretation and/or setting aside and for stay of the said decision of the 14th July, 2009 with a news Suit No. NIC/LA/21A/2009, already filed and served as duly filed and served.

5. AN ORDER staying the execution of the said decision comprised in the Judgment of the National Industrial Court, Holden at Lagos delivered in this Suit No. NIC/9/2008 – Hotel & Personal Services Senior Staff Association v. Lagos Sheraton Hotel & Towers; coram: Hon Justice B.B. Kanyip (Presiding), Hon. Justice V.N. Okobi (Judge), Hon. Justice F.I. Kola-Olarere (Judge), Hon. Justice O.A. Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 dismissing the Applicant’s Cross-Appeal in that Suit and awarding the reliefs of the payment of salaries and allowances and other entitlements to some members of the Respondents whose employment with the Applicants were terminated from the date of the termination of the said respective employments to the date of the said judgment as interpreted, affirmed and upheld by that Court in its judgment delivered on the 14th December, 2010 in the proceedings on the Applicant’s Summons for the interpretation and/or setting aside and for stay of the said decision of the 14th July, 2009 with a news Suit No, NIC/LA/21A/2009, pending the hearing and final determination of the Applicant’s Appeal before the Court of Appeal.

6. AN ORDER restraining the Respondents by themselves, their agents, members, official servants and/or privies including but not limited to the said four members of the Respondents whose employment with the Applicants were terminated from howsoever taking any step and/or further steps in the execution and/or in furtherance of the Orders comprised in the said decision comprised in the Judgment of the National Industrial Court, Holden at Lagos delivered in this Suit No. NIC/9/2008 – Hotel & Personal Services Senior Staff Association v. Lagos Sheraton Hotel & Towers; coram: Hon. Justice B.B. Kanyip (Presiding), Hon. Justice V.N. Okobi (Judge), Hon. Justice F.I. Kola-Olarere (Judge), Hon. Justice O.A. Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 dismissing the Applicant’s Cross-Appeal in that Suit and awarding the reliefs of the payment of salaries and other entitlements to some members of the Respondents whose employment with the Applicants were terminated from the date of the termination of the said respective employments to the date of the said judgment as interpreted, affirmed and upheld by that Court in its judgment delivered on the 14th December, 2010 in the proceedings on the Applicant’s Summons for interpretation and/or setting aside and/or staying of the said decision of the 14th July, 2009 with a new Suit No. NIC/LA/2009 pending the hearing and final determination of the Applicant’s Appeal before the Court of Appeal.

The grounds for the application were stated thus:
1. That on the 14th July, 2009 the National Industrial Court, Holden at Lagos delivered judgment in this Suit No. NIC/9/2008 -Hotel & Personal Service Senior Staff Association v. Lagos Sheraton Hotel & Towers; coram: Hon. Justice B.B. Kanyip (Presiding), Hon. Justice V.N. Okobi (Judge), Hon. Justice F.I. Kola-Olarere (Judge), Hon. Justice O.A. Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (judge) on the 14th day of July, 2009 dismissing the Applicant’s Cross-Appeal in that Suit and awarding the reliefs of the payment of salaries and allowances and other entitlements to some members of the Respondents whose employment with the Applicants were terminated from the date of the termination of the said respective employments to the date of the said judgment.

2. That subsequent to the delivery of the said judgment by the National Industrial Court (hereinafter referred to as “the lower Court”), as aforesaid, the Applicant approached the lower Court vide a Summons on Notice dated the 17th day of July, 2009 for orders, inter alia, for interpretation and/or setting aside of the same and stay of execution thereof.
That after the parties have filed the requisite processes inclusive of their Written Addresses both in support and in Opposition to the Applicants said Summons wherein amongst other issues, the question of whether on application such as that brought vide the Applicant’s said Summons dated the 17th July, 2009 constitutes a fresh suit or is a continuation of the original proceedings were fully canvassed on behalf of the parties, the Applicant was shocked to receive a letter dated the 29th November, 2010 with Ref. No. SUIT No. NIC/LA/21A/2009/259 under the hand of one A.A. Akindipo for the Chief Registrar of the Lower Court notifying the Applicant that it’s said Summons constitutes a fresh action and had been assigned a new suit No. NIC/LA/21A/2009.

3. That on the 14th day of December, 2010, the lower Court delivered its judgment on the Applicant’s said Summons on Notice and dismissed the same with costs whilst refusing the prayer for stay and Ordering that the Orders comprised in its decision of the 14th July, 2009 be complied with by the Applicant within seven days the instant judgment.

4. That the Applicant being dissatisfied with the said decision of the lower Court delivered on the said 14th July, 2009 as interpreted, affirmed upheld by the lower Court in its judgment delivered on the 14th December, 2010 in the said suit No.NIC/LA/21A/2009 is desirous of Appealing against the same to the Court of Appeal with leave.

5. That it is in the interest of Justice that the execution of the Orders comprised in the said Judgment of the National Industrial Court, Holden at Lagos delivered in this Suit No. NIC/9/2008 – Hotel & Personal Services Senior Staff Association v. Lagos Sheraton Hotel & Towers; coram: Hon. Justice B.B. Kanyip (Presiding), Hon. Justice V. N. Okobi (Judge), Hon. Justice F.I. Kola-Olarere (Judge), Hon. Justice O.A. Obaseki-Osaghae (Judge) and Hon. Justice J.T. Agbadu-Fishim (Judge) on the 14th day of July, 2009 as interpreted, affirmed and upheld by the lower Court in its Judgment delivered on the 14th December, 2010 in the said suit No. NIC/LA/21A/2009 and the judgment, itself is stayed on the one hand and the Respondent, on the other hand, be restrained as prayed pending the hearing and final determination of the Appellant/Application’s Appeal before the Court of Appeal.
That unless the Order of stay and/or injunction prayed for is granted the Appellant/Applicant’s Appeal before the Court of Appeal shall be rendered nugatory.

The said motion is supported by a three paragraph affidavit with many subparagraphs and attached to the said affidavit are the following exhibits:-
(1) Exhibit (NOW 1) = Certified copy of the Judgment of the National Industrial delivered on the 14th July, 2009.
(2) Exhibit (NOW 2) = Summons on the Notice for interpretation dated and filed on the 17-7-2009
(3) Exhibit (NOW 3) = A letter from the National Industrial Court to the Applicant dated 20-11-2010 and signed by one A.A. Akindipo for Chief Registrar.
(4) Exhibit (NOW 4A & 4B) = A Certified Copy of another judgment of the National Industrial Court delivered on 14-12-2010 and the same letter dated 20-11-2010 respectively.
(5) Exhibit (NOW 5A & 5B) = Copies of the Notice of Appeal dated 17-12-2010 and treasury receipt of filing fees respectively.

Upon receipt of a copy of the said motion on notice, the Respondent reacted by filing a 16 paragraph counter affidavit sworn to by one Nelson D. Chukwuezi Esq.
A summary of the genesis of this application is that on the 14th of July 2009, the National Industrial Court (here-after referred to as (the lower Court) delivered a judgment which was in favour of the Respondent. The applicant herein, thereafter applied to the lower Court by way of Summons on notice, for the interpretation of the said judgment and also sought for the setting aside of the said judgment. On 14-12-2010 the lower Court delivered its judgment wherein it dismissed the Applicant’s summons on notice for interpretation and setting aside. The Applicant was not satisfied with the outcome of the said judgment hence, if filed this application for leave to appeal against the judgment of the lower court delivered on 14-7-2009.

On the 15-7-2012 when the motion came up for hearing before this Court, the parties were ordered to file written addresses with emphasis on whether the Applicant could properly appeal as of right or with leave against the decision of the National Industrial Court.

Parties subsequently filed and served their written addresses which they duly adopted at the hearing of the application on 2-6-2014.

The Applicant’s written address is dated 25-5-2012 and filed on 28-5-2012 while the Respondent’s written address is dated 11-6-2012 and filed on 14-6-2012.

The sole issue formulated for determination by the Applicant is:-
“Whether the Applicant could properly appeal as of right or otherwise against the decision of the National Industrial Court, the subject matter of the Applicant’s pending application dated the 17th December, 2010 and on grounds as are contained in the proposed Notice of Appeal dated the same date?”

In the Respondent’s written address three issues were formulated as follows:-
(1) Whether any Act of the National Assembly or the constitution of the Federal Republic of Nigeria, 1999 (as amended) confers on the Applicant the right to seek leave to appeal outside the provisions of the National Industrial Court Act 2006 upon which the application is anchored?
(2) Whether the Applicant’s application can be granted by the Honorable Court when no sufficient and cogent reason has been adduced for the granting of this application.
(3) Whether the Applicant’s application is not abuse of court process?

The sole issue raised by the Applicant is sufficiently apt for the determination of the application given the directive of this court made on 15-5-2012 and it also blends properly with the Respondent’s issue one. I will therefore adopt same in the consideration of this application.

Dwelling on the sole issue as raised in the written address, Learned Counsel for the Applicant referred to Section 9 of the National Industrial Court Act No 1 2006 and Section 21(3) of the Trade Disputes Act, CAP T8 LFN 2004 to note that while under Section 9(2) of the National Industrial Court Act, the words “shall be only as of right” were used; under Section 21(3) of the Trade Disputes Act however, the words “shall be as of right appeared”. It was therefore submitted that the words of the said provisions of both enactments are clear and unambiguous and should be given their ordinary, literary and grammatical meaning, that is to say, “that an appeal shall be as of right in the manner therein provided. He added that the only conclusion that could be reached thereof is that the provisions did not exclude an appeal other than as of right as therein provided, from the decision of the lower court to the Court of Appeal.

Further reference was also made to Section 1 (3) of the National Industrial Court Act which defines it as a Superior Court of Record and confers it with the power of a High Court to submit that a combined reading of the said provision with Section 6(3) of the 1999 constitution and Section 242(1) which deals with Appeal from decisions of the Federal High Court or a High Court to the Court of Appeal with leave, will show that appeal can competently lie from the decisions of the National Industrial Court to the Court of Appeal on questions other than fundamental rights, but with leave.

He added however, that the grounds of appeal as contained in the Applicant’s proposed notice of Appeal are on the issue of lack of fair hearing and want of jurisdiction in the proceedings of the lower court leading it to the said decision made on 14-12-2010. It was then further stated that whilst grounds 1, 2, 3, 4, 5, 6, 8 and 10 of the said Notice of Appeal questions the jurisdiction and/or power of the lower court to entertain the claims in the suit, Grounds 7 and 9 thereof questions the fairness of the said proceedings and the decisions reached by the lower court.

Learned Counsel then submitted that where jurisdiction is being challenged the ground of a breach of the Applicant’s right to a fair hearing by a court or tribunal as provided under Section 36(1) of the 1999 constitution, then the unconstitutionality of both the proceedings and decision thereon is clearly in issue. Vide UDOSEN v. NATIONAL ELECTORAL COMMISSION OF NIGERIA (1997) 5 NWLR (PT 506) 576 at 584.

He further argued that even where an enactment has provided that the decision of tribunal is final and un-appealable, it has held that such a provision cannot be so construed without doing violence to the well recognized appellate system in terms of decision arrived at by a court without jurisdiction. UDOSEN V. NATIONAL ELECTORAL COMMISSION OF NIGERIA supra at 580.

Learned Counsel concluded by submitted that the Applicant can properly appeal as of right or otherwise against the decision of the National Industrial Court on the grounds as contained in the proposed grounds of appeal dated 17 -12-2010.

Responding on the issue, it was submitted by Counsel for the Respondent that the National Industrial Court is a creation of law and it is the Final Court with Respect to matters within its jurisdiction except on matters that touch on fundamental rights. He then referred to Section 7(1) and 9(1) of the National Industrial Court Act 2006 as regards the exclusive jurisdiction of the court and the limits of rights of appeal against its decision which is restricted to questions of fundamental right as contained in chapter 4 of the 1999 constitution and this has been further strengthened by section 243(2) of the said constitution as amended.

It was further submitted that the only other way an appeal shall be from the National Industrial Court to the Court of Appeal is on such issues as may be prescribed by the Act of the National Assembly. He added that the Applicant’s proposed grounds of appeal do not raise any issue of fundamental rights under chapter 4 of the 1999 constitution but questions of Labour and Employment.

It was also submitted, that unfortunately, the National Assembly is yet to enact any Act to prescribe any other right of appeal from the lower court to this court except as of right on questions of fundamental rights. More so the Trade disputes Act of 2004 and the National Industrial court Act 2006 did not alter the position.

Learned counsel further contended that the issue of leave to appeal is not an issue of inherent jurisdiction of the court, but is always conferred by law which states the conditions upon which a court will grant it. He added that it is settled law that what is not expressed cannot be implied in which case neither the Trade dispute Act or the National Industrial Court Act provided for leave to appeal and the applicant has not stated any other law or judicial decision that allows it to seek leave to appeal in this case. This court was then urged to refuse the application.

From the arguments presented by the parties, the narrow issue herein is whether by virtue of the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 9 (1) and (2) of the National Industrial Court Act 2006 and Section 21 (3) of the Trade Disputes Act CAP 18 LFN 2004, this court has jurisdiction to grant the applicants application for leave to appeal against the decision of the National Industrial Court.
It is therefore germane to set out herein below the aforementioned provisions for proper appreciation of their true intent.
Section 243 (2) and (3) of the 1999 constitution as amended provides that:-
243(2) “An appeal shall lie from the decision of the National Industrial court as of right to the Court of Appeal on questions of fundamental rights as contained in chapter IV of this constitution as it relates to maters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lies form the decision of the National Industrial Court to the Court of Appeal may be prescribed by on Act of the National Assembly;
Provided that where an Act of Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with leave of the Court of Appeal”.
In the same vein Section 9(1) and (2) of the National Industrial Court Act No. 1, 2006 provides thus:-
9(1) “subject to the provisions of the constitution of the Federal Republic of Nigeria 1999 and subsection (2) of this section no appeal shall lie from the decisions of the court to the Court of Appeal or any other court except as may be prescribed by this Act or any Act of the National Assembly.
(2) An appeal from the decision of the court shall be only as of right to the Court of Appeal only on questions of fundamental rights as contained in chapter IV of the constitution of the Federal Republic of Nigeria 1999”.
Similarly, Section 21 (3) of the Trade Disputes Act, Cap T8 LFN 2004 provides that:-
21(3) “An appeal from the decision of the court shall lie as of right to the Court of Appeal on questions of fundamental rights as contained in chapter IV of the constitution of the Federal Republic of Nigeria 1999”.
Given the apparent similarity of the provisions of the two statutes above reproduced (and more particularly Section 9 of the National Industrial Court Act 2005) with the provisions of Section 243 (2) & (3) of the 1999 Constitution, the issue in contention will be better addressed with emphasis on the latter being the grundnorm and the source of life and jurisdiction of all the superior courts of Record in this country including the National Industrial Court.
From my humble understanding of the provisions of Section 243 (2) and (3) of the 1999 constitution as amended, they are very clear and unambiguous as to the meaning of the message they intend to convey as pertaining to the scope and extent of the right of appeal from the National Industrial Court to the Court of Appeal.

Incidentally as at now, no such Act of the National Assembly has been enacted prescribing what other causes and matters in which an appeal shall lie against the decision of the National Industrial court and until such law is made, the decisions of the National Industrial Court from which a party can appeal to this court remains circumscribed.
As earlier stated, the wordings of Section 243 (2) and (3) of the constitution are quite clear and unambiguous. The law is settled that the object of interpreting a statute or the constitution is to discern or ascertain the intention of the legislature and such intention is usually deduced from the language used in the statute or constitution.

As presently constituted therefore, the law is that a litigant who is not satisfied with the decision of the National Industrial Court can only appeal as of right where such decision relates to questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or in criminal causes as they relate to matters upon which the National Industrial Court has jurisdiction. As to other causes or matters not so specified appeal shall only lie from decisions of the National Industrial Court to this court as may be prescribed by an Act of the National Assembly and such appeal shall be with leave of this court only.
There is presently no such Act of the National Assembly and until there is an enactment to that effect or a subsequent amendment of Section 243 of the constitution, the National Industrial Court remains the final and ultimate court in all causes or matters upon which it has jurisdiction except in decisions relating to questions of fundamental rights connected with chapter IV of the constitution or in criminal causes.

Learned counsel for the applicants had also contended that where jurisdiction is being challenged on the grounds of breach of the applicants right to fair hearing by a court or tribunal as provided under Section 36 (1) of the 1999 Constitution, then the unconstitutionality of both the proceedings and decision is clearly in issue. As much as this may be the correct position of the law, a perusal of the grounds of appeal as contained in the proposed notice of appeal vis-a-vis the judgments being challenged leads me to find no basis for crying wolf over the right to fair hearing. The words ‘fair hearing’ is not a magic wand to be waved at every given opportunity to perhaps confuse or agitate the courts. This was the stance taken by the Supreme Court in the case of SABIRU ADEBAYO V. A.G. OGUN STATE (2008) 33 NSCQR (VOL. 1) page 1 at pages 25 to 26 wherein NIKI TOBI JSC proffered the following admonition:-
“The fair hearing provision in the constitution is the machinery or locomotive of Justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the courts to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave fair hearing constitutional provision alone because it is not available to them just for the asking”.
I will add here that litigants who seek to circumvent or evade the provisions of Section 243 (2) and (3) of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope should be advised not to under estimate the sharp sense of perception and wisdom of the appellate courts to sift the wheat from the chaff.
Undoubtedly, in deserving cases, the court will not relent in defending the course of Justice given its status as the dynamic agency for the protection of the Rule of law.

In the final result, I find that this court lacks the jurisdiction to grant the applicant leave to appeal against the judgment of the Lagos Division of the National Industrial Court delivered on 14-7-2009 in suit No. NIC/9/2008.
The said application is accordingly dismissed.
I make no order as to cost.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the ruling just delivered by my learned brother S.C. Oseji, JCA.

I agree with the Ruling and abide by the orders contained therein.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading in advance the ruling by my learned brother Oseji JCA. He has dealt comprehensively with the issues canvassed therein. I agree with the reasoning and conclusion contained therein that the application lacks merit and should be dismissed.

I too dismiss the application and abide by the consequential order as to costs.
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Appearances

I.O. Aniokor with Pamela Unegbu MissFor Appellant

AND

Uche Wisdom D.For Respondent