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LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR v. MR. G. O. ASUBIOJO (2019)

LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR v. MR. G. O. ASUBIOJO

(2019)LCN/13311(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of February, 2013

CA/EK/72/M/2012

 

Juctice

JIMI OLUKAYODE BADA Juctice of The Court of Appeal of Nigeria

MASSOUD ABDUL-RAHMAN OREDOLA Juctice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Juctice of The Court of Appeal of Nigeria

Between

1. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE
2. ATTORNEY GENERAL OF EKITI STATEAppellant(s)

 

AND

MR. G. O. ASUBIOJORespondent(s)

RATIO

WHETHER OR NOT THE RIGHT OF APPEAL IS CONFERRED BY A STATUTE

A right of Appeal is conferred by a statute and not by inherent power of Court. And likewise, the Appellate jurisdiction of a Court is conferred by either the statute creating it or any other enactment conferring it with such power.
See the following cases:-
– UGWU v. ATTORNEY GENERAL OF EAST CENTRAL STATE (1975) 6 S.C. PAGE 13.
– OLOBA v. AKEREJA (SUPRA).
– MOSES v. OGUNLABI (1975) 4 S.C. PAGE 81.
– ERISI v. IDIKA (1982) 4 NWLR PART 66 PAGE 503.
– BRONIK MOTORS LIMITED v. WEMA BANK LIMITED (1983) 1 SCNLR PAGE 296.
This Court is a creation of the Constitution i.e. Section 237 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Court of Appeal Act.
The time to appeal and the procedure is provided for in Part (V) of the Court of Appeal Act 2004. Section 24 prescribed the time within which to bring an appeal by filing a notice of appeal or notice of application for leave to appeal. PER BADA J.C.A.

WHETHER OR NOT A COURT CAN ONLY BE MADE A FINAL COURT BY EXPRESS PROVISION AND NOT BY IMPLICATION

It is trite that if an appellate Court like the Court of Appeal is to be divested of its jurisdiction it is done by express provision and not by implication. And similarly a Court of Law can only be made a final court by express provision and not by implication. For example see:
– SECTION 243(4) OF THE 1999 CONSTITION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) and
– SECTION 246(3) of the same Constitution referred to above. PER BADA J.C.A.

JIMI OLUKAYODE BADA, J.C.A.: (Delivering the leading judgment): This is an application dated the 16th day of January, 2013 and filed on 17th day of January, 2013 in which the applicants prayed for the following orders:-
(1) AN ORDER granting leave to the Appellants/Applicants to appeal against the Judgment delivered on the 26th November, 2012 by Hon. Juctice B. B. Kanyip of the National Industrial Court sitting in Ibadan, Oyo State in Suit No.:-NIC/LA/159/2011 between MR. G. O. ASUBIOJO v. (1) LOCAL GOVERNMENT SERVICE COMMISSION EKITI STATE (2) ATTORNEY GENERAL OF EKITI STATE.
(2) SUCH FURTHER ORDER(S) as this Honourable court may deem fit to make in the circumstances.
The ground for the application is that the Appellants/Applicants are desirous of appealing against the judgment of the trial court delivered on 26th November,2012 as it is a requirement of the law to seek leave from this court before an appeal could be filed.
The application is supported by an affidavit of 9 paragraphs.
The substance of the content of the affidavit is that Judgment was delivered on 26/11/2012 by the National Industrial Court at Ibadan in Suit No.:NIC/LA/159/2011 referred to above. And the defendants/Applicants are dissatisfied with the said Judgment, they are desirous of appealing to this court.
The leave of this court is a pre-requisite for filing an appeal in such cases against the judgment of the trial court.
Written addresses were ordered in the application.
At the hearing, Learned Counsel for the Applicants adopted and relied on the applicants’ written address and the applicants’ reply to the Respondent’s written address in urging the court to grant this application.
The Learned Counsel for the Respondent also adopted and relied on his written address in urging this court to refuse the application.
The Learned Counsel for the Applicants formulated a sole issue for determination of the application, and it is as follows:
“Whether the Court of Appeal does not have appellate jurisdiction over the decisions of the National Industrial Court in respect of this case.”
The Learned Counsel for the Respondent on the other hand also formulated a sole issue for determination of the application. The issue is as follows:
“Whether by the combined effect of Section 243(3) of the 1999 Constitution of the Federal Republic of Nigeria and Section 9(1) and (2) of the National Industrial Court Act, the appellants/applicants have a right of appeal?”
The issues formulated by Counsel for the parties are similar, however,the issues as set out on behalf of the Respondent is considered apt for the determination of the application.
The Learned Counsel for the Applicants submitted that a court derives its jurisdiction from the statute that created it. He relied on the case of:-
-OLOBA v. AKEREJA (1988) 7 SC PART 1 PAGE 1 at 32.
He referred to Sections 240 and 243(2) & (3) of the 1999 Constitution (as amended). He argued that a careful reading of the said Sections of the Constitution referred to above would reveal that the Court of Appeal has power to entertain appeals from decisions of the National Industrial Court but subject to the leave of the court.
He also referred to the proposed Notice of Appeal which he stated raises substantial and recondite points of law.
He finally urged this Court to answer this issue in the affirmative and grant this application.
The Learned Counsel for the Respondent in his own submission opposed this application. He referred to Section 243 (2) & (3) and submitted that the import and intendment of the provision of Section 243 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal provided such privilege or right is prescribed by an Act of the National Assembly.
He argued further that this presupposes that an appellant who wishes to appeal against the Judgment of the National Industrial Court other than on ground of fundamental right as enshrined in Chapter (iv) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) must show or establish that there is in existence a law or an Act of the National Assembly that donates or gives such a right. He went further in his argument that no Act of the National Assembly has prescribed that an appeal can lie to this Court with leave.
It was also contended on behalf of the Respondent that the provisions of Section 240 of the 1999 Constitution is subject to Section 243(3) of the 1999 Constitution. He relied on the case of:
– NECO v. TOKODE (2011) ALL FWLR PART 574 PAGES 105, 112 RATIO 6.
It was also submitted on behalf of the Respondent that the Courts have no power to expand a legislation or to import into it meaning it never contemplated. He relied on the following cases:-
– ELELU HABEEB v. NATIONAL, JUDICIAL COUNCIL (2010) ALL FWLR PART 536, 494, 510 RATIO 12.
– ADESEUN v. ILAKA (2011) ALL FWLR PART 600, PAGE 1313, 1316, RATIO 6.
– ORGAN v. NIGERIA LIQUIFIED NATURAL GAS LTD (2010) ALL FWLR PART 535 PAGE 293, 297 RATIO 4.
Learned Counsel also submitted that Section 9 (1) & (2) of the National Industrial Court Act passed the consistency test as the provision is not only consistent with the provision of Section 254 (c) of the 1999 Constitution of the Federal Republic of Nigeria but it is impari material with the said provision, He stated that it is obviously not a lacuna but a deliberate provision. He relied on the case of:-
– N.U.E.E v. B.P.E. (2010) ALL FWLR PART 525 PAGES 210, 213 RATIO 10.
He finally urged this Court to dismiss the application.
In his reply on point of law, the Learned Counsel for the Applicant argued that the National Industrial Court is not superior to the High Court in whatever way and by whatever means. He went further that there is nothing in National Industrial Court Act which says that the National Industrial Court shall have the final say in respect of any matter before it.
He urged this Court to grant the Application.
This application is for an order granting leave to the Applicant to appeal against the Judgment of the National Industrial Court sitting in Ibadan, Oyo State of Nigeria in Suit No:- NIC/LA/159/2011 between MR. G. O. ASUBIOJO v. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & 1 OTHER
A right of Appeal is conferred by a statute and not by inherent power of Court. And likewise, the Appellate jurisdiction of a Court is conferred by either the statute creating it or any other enactment conferring it with such power.
See the following cases:-
– UGWU v. ATTORNEY GENERAL OF EAST CENTRAL STATE (1975) 6 S.C. PAGE 13.
– OLOBA v. AKEREJA (SUPRA).
– MOSES v. OGUNLABI (1975) 4 S.C. PAGE 81.
– ERISI v. IDIKA (1982) 4 NWLR PART 66 PAGE 503.
– BRONIK MOTORS LIMITED v. WEMA BANK LIMITED (1983) 1 SCNLR PAGE 296.
This Court is a creation of the Constitution i.e. Section 237 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Court of Appeal Act.
The time to appeal and the procedure is provided for in Part (V) of the Court of Appeal Act 2004. Section 24 prescribed the time within which to bring an appeal by filing a notice of appeal or notice of application for leave to appeal.
We are concerned with the National Industrial Court in this application and the relevant provisions to be considered are Sections 240 and 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which are hereby set out as follows:-
“(240) Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja… or other tribunals as may be prescribed by an Act of the National Assembly.”
(243) (1) Any right of appeal to the Court of Appeal from the decisions of Federal High Court, National Industrial Court or a High Court conferred by this constitution shall be:…
(a)……………….
(b)……………….
2. An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in chapter (iv) of this Constitution as it relates to matters upon which the National Industrial Court has Jurisdiction.
3. An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an act of the National Assembly.
Provided that where an Act or Law prescribes that an Appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
4. Without prejudice to the provisions of Section 254(c) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final”.
Sections 240 & 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) deals with the appellate jurisdiction of the Court of Appeal. Jurisdiction is a threshold question which permits the Court to enter into hearing of the cause or a matter, without jurisdiction or competence a court cannot make a binding order.
The Court of Appeal by virtue of Section 240 and 243 of the 1999 Constitution is in a position to exercise appellate jurisdiction over the decisions of the National Industrial Court and there is no provision in any provision of the said Constitution which divested the Court of Appeal of appellate jurisdiction over the decisions of the National Industrial Court on any matter.
A careful examination of the Sections of the Constitution set out earlier in this Ruling would reveal that the Court of Appeal has power to entertain appeals as of right from the decisions of the National Industrial Court on questions of Fundamental Human Rights. However, that does not presuppose that the Court of Appeal can only exercise appellate jurisdiction on questions of Fundamental Human Rights.
The proviso in Section 243(3) of the Constitution states that:
“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 shall be with the leave of the Court of Appeal.”
Although there is no Act of National Assembly which prescribed that Appeal shall lie from the decision of the National Industrial Court to the Court of Appeal But Section 240 of the 1999 Constitution of the Federal Republic of Nigeria as amended which is THE LAW has stated in clear terms that the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the National Industrial Court.
This is further emphasized by Section 243(4) which stated among others that the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final. (Underlining Mine).
The word in respect of any civil appeal arising from any civil jurisdiction as shown above revealed that the appellate jurisdiction of the Court of Appeal was not intended to be limited, or circumscribed to Fundamental Rights matters. The said Section gives the right of Appeal to any aggrieved person in any civil matter in the National Industrial Court.
It should also be noted that where there is no right of appeal to an aggrieved party, it would lead to in Juctice and bring about self help which may affect the peace and stability of this Country called Nigeria.
Furthermore, Section 9 of the National Industrial Court Act is subject to the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended). There is nothing in the Act which says that the National Industrial Court shall have final say in any matter before it.
It is trite that if an appellate Court like the Court of Appeal is to be divested of its jurisdiction it is done by express provision and not by implication. And similarly a Court of Law can only be made a final court by express provision and not by implication. For example see:
– SECTION 243(4) OF THE 1999 CONSTITION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) and
– SECTION 246(3) of the same Constitution referred to above.
Consequent upon the foregoing, it is my view that this Court has jurisdiction to entertain this application and grant the leave sought.
I have gone through the proposed Notice of Appeal and I am of the view that it raised substantial points of law and as such the Applicants should be allowed to exercise their constitutional rights of Appeal.
The lone issue in this application is resolved in favour of the applicants and against the respondent.
Accordingly, leave is hereby granted to the Applicants to appeal against the Judgment of the National Industrial Court sitting in Ibadan in Suit No.NIC/LA/159/2011 between – MR. G. O. & ASUBIOJO v. (1) LOCAL GOVERNMENT SERVICE COMMISSION (2) ATTORNEY GENERAL OF EKITI STATE.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading before now, the lead ruling of my learned brother, Jimi Olukayode Bada, J.C.A. I am in agreement therewith that this application should be granted. It is accordingly granted by me, I also adopt all the orders made therein.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the draft of the ruling just delivered by my learned Brother JIMI OLUKAYODE BADA, J.C.A.
I agree that neither the National Industrial Court Act, 2006 nor the constitution has stripped the Applicants’ of their constitutional right of appeal.
The Applicants’ application has merit and I also grant them leave to appeal against the decision of National Industrial Court sitting in Ibadan in Suit No:NIC/LA/159/2011.

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Appearances

Mr. Y. A. Alajo; with him is Miss Genevieve Ujunwa AnondeFor Appellant

 

AND

Mr. O. Ayenakin holding brief for Dr. Akin OnigbindeFor Respondent