MAINSTREET BANK REGISTRARS LIMITED v. MR. UDOH FRIDAY ETIM (2016)

MAINSTREET BANK REGISTRARS LIMITED v. MR. UDOH FRIDAY ETIM

(2016)LCN/8267(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of March, 2016

CA/L/1255/2014

RATIO

APPEAL: WHETHER THE APPELLATE COURT IS PERMITTED TO ENTERTAIN AND GIVE DECISION UPON THE QUESTION REFERRED TO IT BY A COUNSEL TO A PARTY

Now, it is important to observe and remember, that the trial Court did not make any reference to this Court. The questions we are asked to consider and give answers to, are questions that were formulated by counsel for the appellant, not the Court. Section 295(2) of the 1999 Constitution as amended provides – “Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or the National Industrial Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision,” ABUBAKAR DATTI YAHAYA, J.C.A.

APPEAL: THE CONDITIONS WHICH NEED TO BE SATISFIED BEFORE A REFERENCE CAN BE MADE BY A HIGH COURT OR THE NATIONAL INDUSTRIAL COURT, IN A CASE, STATED, FOR THE CONSIDERATION OF THE COURT OF APPEAL

By the provision of Section 295(2) of the 1999 Constitution as amended, stated above, there are conditions which need to be satisfied before a reference can be made by a High Court or the National Industrial Court, in a case stated, for the consideration of the Court of Appeal. These conditions which must co-exist, are: –
(1) The question to be referred to the Court of Appeal must be in respect of the interpretation or application of the provisions of the Constitution.
(2) The constitutional question must have arisen in the proceedings relating to the issue of the reference.
(3) The constitutional question for reference, must be a substantial question of law; the substantiality of which is the duty of the Court making the reference, to decide.
(4) The Court making the reference to the Appellate Court, must refrain from giving its opinion on the question under reference.
See ABUBAKAR vs. A.G. FEDERATION (2007) 6 NWLR (Pt.1031) 626 at 639, 643 and 645; BAMAIYI VS. F.R.N. (Supra); GAMIOBA vs. ESEZI II (Supra); F.R.N. vs. IFEGWU (2003) 15 NWLR (Pt.842) 113 and AUDU VS. A.G. FEDERATION (2013) 8 NWLR (Pt.1355) 175 at 199 and AFRICAN NEWSPAPERS OF NIGERIA LTD VS. F.R.N. (1985) 2 NWLR (Pt.6) 137. per. ABUBAKAR DATTI YAHAYA, J.C.A.

APPEAL: GROUND OF APPEAL; WHEN IS A GROUND OF APPEAL IS VALID AND COMPETENT

It is well settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. An appeal must be against a ratio and not against an obiter, except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the ratio. But even in that event, the appeal would principally be against the ratio:, Xtoudos Services Nigeria Ltd v. Taisei (W.A.) Ltd (2006) LPELR-3104(SC), (2006) 15 NWLR (Pt.1003) 533.
The Supreme Court in Saraki v. Kotoye (1992) 9 NWLR (Pt.261) 156 at 184 per Karibi Whyte, JSC restated the position of the law thus:
“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – See Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However, meritorious, the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the Courts………..parties……… are not at liberty to argue grounds not related to the judgment appealed against.?
See also: Chami v UBA Plc (2010) LPELR-841(SC), (2010) 6 NWLR (PT 1191) 474; Balonwu v Governor of Anambra State (2009) 18 NWLR (PT.1172) 13; Ikweki v Ebele (2005) 7 MJSC 125; CCB Plc. V. Ekperi (2007) 4 MJSC 172. per. ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

MAINSTREET BANK REGISTRARS LIMITED Appellant(s)

AND

MR. UDOH FRIDAY ETIM Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is interlocutory, arising from the Ruling of the National Industrial Court, Lagos Division, delivered on the 26th of November 2014, in Suit No.NICN/LA/513/2013. The respondent herein, was the claimant at the National Industrial Court, and the originating processes were filed on the 26th September, 2013. The appellant herein, was the respondent and it filed its defence to the claim. Thereafter, the then claimant filed a Reply. As the defendant was opposed to it, he filed a Motion dated the 24/1/14 to strike it out. He argued the Motion on the 5th of March 2014 (page 237 of the record). The Court on the same date, refused the application, holding that it was competent. The case was then adjourned to the 27th of May, 2014 for hearing, with consent of both counsel. On the resumed date of 27th May 2014 for hearing, the defendant and his counsel were both absent, but a letter was written to the Court praying for adjournment as counsel for the defendant, had written to the President of the National Industrial Court to transfer that case and others, away from the judge.

Since the President of the National Industrial Court did not act to transfer the case, the presiding judge held the view that counsel had no right to assume and then stay away without attending the hearing. He therefore refused the application for adjournment and hearing commenced. The claimant gave evidence and several documents were tendered and admitted as exhibits without objections, in the absence of the defendant and his counsel.

Then on the 17th of July, 2014, learned counsel for the defendant, argued a motion, dated the 15th of July 2014 but filed on the 17th of July 2014. Counsel informed the Court, that the motion is
“to enable us object to some of the documents admitted on 27/05/2014 in the absence of Defendant counsel.”

After taking arguments from both counsel, the trial National Industrial Court, on the same day, refused the application. It observed that “all the much needed right to fair hearing,” had been extended to the defendant, but his counsel stayed away. If the application was granted, it would “draw back the hands of the clock and wheel of progress.” The case then continued.

On the 26th of November 2014, learned

counsel for the claimant moved a motion dated the 27th of August 2014, for a case to be stated to the Court of Appeal for answers to be provided in respect of questions 1(a) – (f) in the motion paper. The claimant objected to the application. The trial Court refused the application to make a case stated to the Court of Appeal. This is what led to this appeal.

The appellant’s brief, settled by learned counsel, Dr. C. D. Mekwunye, was filed on the 14th of April 2015 but deemed filed on the 28th of May, 2015. A Reply brief was filed on the 22nd of May 2015, but was deemed properly filed on the 28th of May 2015.
The respondent’s brief was filed on the 12th May 2015 by learned counsel Paul I. Okoh, but was deemed properly filed on the 28th of May 2015.
In the Appellant’s brief, the following three issues were submitted for determination –
(a) Whether the learned trial judge of the National Industrial Court erred in law and acted without jurisdiction, thereby occasioning miscarriage of justice when he unconstitutionally refused to state a case for the decision of the Court of Appeal on the substantial question of law on whether he can depart

from the Evidence Act as provided under Section 12(2) of the National Industrial Court Act, 2006 in the light of the provision of Section 6(3)(5) (cc), section 254(a) & (d)(1) and Section 36 of the 1999 Constitution (as amended) as required by Section 295(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (distilled from ground three);
(b) Whether the learned trial judge of the National Industrial Court of Nigeria erred in law when he held that no constitutional question ever arose in any of its proceedings in the suit to warrant stating a case for the opinion of the Court of Appeal and thereby occasioned miscarriage of justice. (distilled from ground one);
(c) Whether the National Industrial Court has jurisdiction to admit or exclude any evidence (documentary or oral) contrary of the rights and obligations of the defendants guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria. (distilled from ground two).

The Respondent submitted only one Issue for determination, and it is –
Whether the apparent conflict on the application of the provisions of the Evidence Act 2011 and Section

12(2)(a) and (b) of the National Industrial Court Act 2006, constitutes a substantial question deserving of a referral to the Court of Appeal.
I shall utilise the issues identified by the appellant in deciding this appeal.

ISSUES A AND B TOGETHER
(a) Whether the learned trial judge of the National Industrial Court erred in law and acted without jurisdiction, thereby occasioning miscarriage of justice when he unconstitutionally refused to state a case for the decision of the Court of Appeal on the substantial question of law on whether he can depart from the Evidence Act as provided under Section 12(2) of the National Industrial Court Act 2006 in the light of the provision of Section 6(3)(5) (cc), Section 254(a) & (d)(1) and Section 36 of the 1999 Constitution (as amended) as required by Section 295(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (distilled from ground three);
(b) Whether the learned trial judge of the National Industrial Court of Nigeria erred in law when he held that no constitutional question ever arose in any of its proceedings in the suit to warrant stating a case for the opinion of the

Court of appeal and thereby occasioned miscarriage of justice. (distilled from ground one);

Learned counsel for the appellant referred to Section 295 of the 1999 Constitution of the Federal Republic of Nigeria as amended, on the requirements for stating a case to an Appellate Court, the case of FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (Pt.842) 113 at 150 on the conditions precedent for a case to be stated, and also the cases Of ROSSEK & ORS VS. ARFICAN CONTINENTAL BANK LTD & 2 ORS (1993) 8 NWLR (Pt.312) 382; INDUSTRIAL AND COMMERCIAL SERVICE NIG. LTD VS. BALTON BU (2002) LPELR – 7108 and OBI VS. INEC (2007) 11 NWLR (Pt.1046) 460 at 488. Counsel then argued that the requirements for a case stated had been met in this instance, since the trial Court had relied on Section 12(2) (b) of the National Industrial Court Act 2006 to hold that the documents admitted are admissible. He opined that such reliance amounts to applying and interpreting “the constitutional and statutory provisions wrongly,” as Section 254, 36(1) and 6(3)(5) of the Constitution had been put in issue. Section 12(2)(b) of the National Industrial Court Act 2006 as it

relates to the applicability of the Evidence Act 2011 had therefore arisen in the course of proceedings and it must be considered along with other sections of the Constitution aforementioned on issue of admissibility. Since neither the Supreme Court nor the Court of Appeal had interpreted Section 12(2) of the National Industrial Court Act 2006, it has become a substantial issue of law requiring the question to be referred to this Court, he argued. He emphasised, by referring to several dictionaries and ROSSEK VS. A.C.B. (Supra), that the Ruling of the trial Court which puts Section 12(2) of the National Industrial Court Act 2006 in issue, arose in the proceedings.
Counsel argued also, that since Sections 254(D)(1) and 36 of the 1999 Constitution as amended had been argued comprehensively in the written address in support of the Motion of 15th July 2014, and since the learned trial judge had refused to consider the written address, the right of fair hearing guaranteed the appellant had been breached.

It was submitted further, that the trial Court ought to have made the reference on the question formulated by the appellant, since a request was made.

The Court was only required to consider whether there was a substantial question of law to be decided and not that no question arose relating to the interpretation or application of the Constitution, requiring a reference to the Court of Appeal. He referred to COCA-COLA (NIG) LTD VS. AKINSANYA (2013) 18 NWLR (Pt.1386) 225 at 371; BAMAIYI VS. A.G FEDERATION (2001) 12 NWLR (Pt.727) at 495 and NATIONAL UNION OF ELECTRICITY EMPLOYEES (NUEE) VS. BPE (2010) 7 NWLR (Pt.1194) 538.

It was also the submission of counsel for the appellant, that fair hearing is inherent in any judicial proceedings and once a Court delivers a decision admitting inadmissible evidence, contrary to the Evidence Act, issues of interpretation and application of constitutional provisions guaranteeing fair hearing are triggered. He then referred to cases on fair hearing and the effects on the trial, arguing extensively, on why the National Industrial Court cannot depart from the provisions of the Evidence Act 2011. All the submissions in that respect, are geared towards this Court accepting that the trial Court was wrong and we should hold that it is bound at all times, by the provisions of

the Evidence Act 2011, thus, setting down for consideration, and considering the questions referred by a party (the appellant) not the Court, and providing the answers to the question.

Learned counsel for the appellant emphasised the error by the trial Court in stating that no question arose for interpretation or application of the Constitution, relying heavily on COCA-COLA (NIG) VS. AKINSANYA (Supra) at page 371 paragraphs C – E.
I have also studied the Reply filed by the appellant and it is virtually a repetition of the arguments and submissions made in the appellant’s brief. It re-captured the points made in the respondents brief and re-stated the position as found in the main brief. On the point made by the respondent that it is not in every situation that a Court is enjoined to refer a case to the appellate when requested by a party, counsel for the appellant placed heavy reliance on the dictum of Aderemi JSC in ABUBAKAR VS FEDERATION (2007) 6 NWLR (Pt.1031) 626, where he said, it was held that it is mandatory once any of the parties so requests.

?In arguing to the contrary, learned counsel for the

respondent submitted that even if a party requests a Court to make a reference to the Appellate Court, the judge has to determine whether the question is substantial or not ? COCACOLA (NIG) LTD VS. AKINSANYA (Supra) at 360. Not only does the Court need to decide the point, but the issue must also have arisen from the proceedings before that Court, he said ? BAMAIYI VS. A.G FEDERATION (2001) 12 NWLR (PT.727) 468 at 489. Counsel then argued that in the instant appeal, no substantial question of law deserving a reference had arisen, and that the questions being referred to this Court, did not infact arise from the proceedings, as no section of the Constitution has arisen for interpretation or application, All that is involved, is an indirect request to this Court, to construe the provision Of the Evidence Act 2011 and Section 12(2) (b) of the National Industrial Court Act 2006, and declare which is superior.

Learned counsel for the respondent then enumerated three conditions which he said must co-exist before a case can be stated to the Court of Appeal. He referred to FIRST BANK OF NIGERiA PLC VS. LADGROUP LTD (2004) 18 WRN 100; OBI vs. INEC (2007) 11 NWLR (Pt.1046) 436 and GAMIOBA VS.

ESEZI II (1961) ALL NLR 603.

Now, it is important to observe and remember, that the trial Court did not make any reference to this Court. The questions we are asked to consider and give answers to, are questions that were formulated by counsel for the appellant, not the Court. Section 295(2) of the 1999 Constitution as amended provides –
“Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or the National Industrial Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision,”
From the above provision, it is clear that the jurisdiction of this Court, is to give its decision “upon the question” so referred by the trial Court, I do not see any provision, permitting this Court, to entertain

and give decision upon the question referred to it by a counsel to a party. I raise this because of the prayer in the appellant’s brief, urging us to
“set down for consideration and consider the questions sought to be referred to as case stated and to provide the interpretation or answers to the case stated and to declare Section 12(2) (b) of the NIC Act 2006 unconstitutional.”

In other words, it is the questions formulated by counsel for the appellant that we should accept, consider and answer. When this appeal was being argued? and this issue put, learned counsel for the appellant was sceptic, as to the prayers. Be that as it may, I shall proceed to the merit of the appeal. The following, are the questions proposed by counsel for the appellant, for consideration by this Court –
(a) Whether the National Industrial Court of Nigeria having been created and made a Superior Court of records by virtue of the provisions of Section 5(3)(5) (cc) and Section 254(A) & (D) (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) can operate as an Inferior Court to which the Evidence Act, 2011 do not mandatorily apply?
(b) Whether

the National Industrial Court of Nigeria having been accorded with the same powers as that of the High Courts in Nigeria by virtue of Section 6(3) (5) (cc) and Section 254(A) & (D) (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Industrial Court of Nigeria can in any of its judicial proceedings rely on the provisions of Section 12(2) (b) of the National Industrial Court (NIC) Act, 2006 to depart from the provisions of the Evidence Act, 2011, which mandatorily binds all Superior Courts of records in Nigeria thereby making the National Industrial Court of Nigeria more powerful than the other High Courts in Nigeria,
(c) Whether in the determination of the civil rights and obligations of the Defendant guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Defendant is not entitled to have its civil rights and obligations determined in the National Industrial Court of Nigeria in accordance with the provisions of the Evidence Act, 2011?
(d) Whether the powers granted to the National Industrial Court by virtue of the provisions of Section 12(2) (b) of the

National Industrial Court Act, 2006 to depart from the provisions of the Evidence Act, 2011 is not inconsistent with the provisions of Section 6(3) (5) (cc), Section 254(A) & (D) (1) of the Constitution of the Federal Republic of Nigeria (as amended), Section 252 and Section 256 of the Evidence Act, 2011 and therefore unconstitutional in view of the provisions of the 2nd Schedule, Part 1. Item 23 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?
(e) Whether the National Industrial Court?s reliance on the provisions of Section 12(2) (b) of the National Industrial Court Act, 2006 in the admission and/or exclusion of documentary evidence or other exercise of discretion in the admission or exclusion of evidence which should not be admitted and/or excluded under the provisions of the Evidence Act, 2011 in the determination of the civil rights and obligations of the Defendant will not amount to a breach of the fair hearing right of the Defendant guaranteed under the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
(f) Whether the National Industrial Court’s reliance on the

provisions of Section 12(2) (b) of the National Industrial Court Act, 2006 or on Order 26 Rules 13 of the National Industrial Court Rules, 2007 (as amended) in adopting Rules of Civil Procedure which could not have been adopted by the Federal High Court, or any State High Court in the determination of the civil rights and obligations of the Defendant is not unconstitutional in view of the provisions of Section 6(3)(5) (cc), Section 254(A) & (D)(1) and Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended)? (See pages 177 ? 210 of the Records).

reference.
(3) The constitutional question for reference, must be a substantial question of law; the substantiality of which is the duty of the Court making the reference, to decide.
(4) The Court making the reference to the Appellate Court, must refrain from giving its opinion on the question under reference.
See ABUBAKAR vs. A.G. FEDERATION (2007) 6 NWLR (Pt.1031) 626 at 639, 643 and 645; BAMAIYI VS. F.R.N. (Supra); GAMIOBA vs. ESEZI II (Supra); F.R.N. vs. IFEGWU (2003) 15 NWLR (Pt.842) 113 and AUDU VS. A.G. FEDERATION (2013) 8 NWLR (Pt.1355) 175 at 199 and AFRICAN NEWSPAPERS OF NIGERIA LTD VS. F.R.N. (1985) 2 NWLR (Pt.6) 137.
The first condition, which is the foundation of making a reference to the Court of Appeal, is that the question must be as to the interpretation or application of the provision of the Constitution. The Supreme Court per Aderemi JSC in ABUBAKAR VS. AUDU (Supra) at pages 644 – 645 infact emphasised this by holding that this condition is indeed,
“…the fundamental basis upon which such a reference must be predicated.”
In the instant appeal, the Motion filed on the 15th of July 2014, (page 144) of the record,

was principally for leave to object to the admissibility of some named documents, which had infact already been admitted in evidence. The Motion was brought pursuant to Sections 85 – 89 of the Evidence Act 2011; the National Industrial Court Rules and Section 36 of the 1999 Constitution. There was no issue for the interpretation of Section 36 of the 1999 Constitution at that stage. No section of the Constitution was raised for any interpretation or application, being a substantial question of law. Section 12(2)(b) of the National Industrial Court Act 2006 was never mentioned therein. Even in the address of counsel, in support of the Motion, Section 12(2)(b) of the National Industrial Court Act was never canvassed or referred to let alone, that it was in conflict with any named section of the Constitution, for a substantial question to arise. There was thus no constitutional question arising for interpretation or application therein. The Ruling of the trial Court (page 248) of the record. is
“I hold that the document admitted in this case on 27/05/2014 are admissible.”
No section of the Constitution was referred to in the Ruling. The statement as to

Section 12(2) (b) of the National Industrial Court Act 2006 only came in as Obiter, not the ratio decidendi of the decision to admit the documents or the refusal to give leave to object to their admissibility. No ground of appeal can arise from an Obiter dictum of the Court. There is a distinction between ratio decidendi and Obiter dictum of a case. The ratio decidendi, is the principle, or the ground upon which the Court based its decision on the point in issue, but Obiter is a passing remark which is not necessary in determining the issue in controversy. See DAIRO VS. U.B.N (2007) 16 NWLR (Pt.1059) 99; A.I.C. vs. NNPC (2005) 1 NWLR (Pt.937) 563 at 589 and AFRO-CONTINENTAL LTD VS. AYANTOYI TRADERS LTD (1981) 5 SC 81. A complaint can only arise from a ratio of the case, not Obiter, An issue for determination must arise from the ground of appeal attacking the ratio of the judgment. So here, when the issue was raised from a ground of appeal affecting the Obiter of the judgment, not its ratio, it was incompetent – AMUZIE VS. ASONYE (2011) 6 NWLR (Pt.1242) 19 at 36.

So when the Appellant filed the Motion on 27/8/2014 for a reference (page 177 of the record),

the trial judge held that they did not arise from the proceedings as no section of the Constitution was referred to, in line with counsel for the respondent Mr. Okoh, who in opposing the application, also stated that “there is no constitutional provision being sought for interpretation here,” The judge held –
“No section has arisen or any controversy arose relating to the interpretation or application of any section of the Constitution. No such issues have been raised before the…learned counselcould not point to any specific section of the Constitution that arose in that Ruling (Pages 253 254 of the record)

The trial judge was right as he was to consider the proceedings in tendering the documents and the proceedings of the application for leave to object to the admissibility of the documents, being the relevant issues at stake, to determine if there was a substantial question of the interpretation or application of the Constitution arising from the proceedings. He determined there was none.
I am entirely in agreement with counsel for the respondent, that all that the appellant has succeeded in doing, is raising

the applicability of Section 12(2) (b) of the National Industrial Court Act 2006, in the face of the Evidence Act 2011, and say which is the governing provision. Not only was this not the ratio of the decision to admit the documents and so not arising from the proceedings, it is not a constitutional point of reference, going by Section 295 (2) of the 1999 Constitution, since no section of the constitution was called to question, All the references to Sections 36, 6, 254 of the 1999 Constitution were nothing but a red herring, introduced to enable this Court to assume jurisdiction and act. The claimant never referred to the Constitution and no section arose for interpretation or application. The defendant/respondent did not do so. The trial Court did not do so. The issue cannot drop from the sky, as such.
The appellant has also raised the issue of fair hearing. Surely, if the appellant was not given fair hearing when the documents were admitted, it is a ground of appeal to be determined by the Court, and not a ground of constitutional reference to this Court! At any rate, as stated by the Supreme Court in AUDU VS. A.G.F, (Supra) at page 200 D – E, the

civil rights and obligations of the parties are not considered or determined as
“the issue of denial of fair hearing does not arise and cannot arise.”
It is my considered opinion, that from the facts gleaned in this appeal, no constitutional provision had arisen for interpretation or application. Whatever arose, was not such that Section 295(2) of the 1999 Constitution can be brought to play. The constitutional provision being sacrosanct, the basis had been knocked off the bottom. There was nothing constitutional about the admission of the documents. No section of the Constitution was relied upon, let alone show that the section needs a special reference to the Court of Appeal for an answer. The trial Court never relied upon any section of the Constitution to admit the document, and this is the crux of the matter and the real issue in controversy.
?Further, even if it is to be argued, that a constitutional provision had arisen, the obligation to refer it to the Court of Appeal arises only after the judge is satisfied that there is a substantial question requiring the answer of the Court of Appeal. If he is not so satisfied, a fundamental

condition has failed and he is then not compelled to make the reference. In the instant appeal, the trial judge had held that no section of the Constitution had arisen for interpretation or application. Learned counsel for the appellant had attacked this. It is legalese, to argue as the counsel for the appellant had done, that a judge is only to decide whether a question for reference is substantial or not, and not whether there was in fact a question arising.
This is because the constitutional question must first arise, before it can be determined whether it is substantial or not. If no constitutional question has arisen, the issue of its being substantial or not, is superfluous and does not at all arise. At any rate, the position taken by counsel for the appellant, shows that he is aware of the law, that it is not mandatory for a judge to make a reference just on the asking, by any of the parties. He has the right, nay the duty, to first determine whether the constitutional question is substantial or not. In the instant appeal, the trial judge, having come to the conclusion that no constitutional question had arisen for interpretation or application, he was

not bound to make the reference. We agree with his stand.
As has been stated, wrongful admission of evidence is an appealable ground, even as an interlocutory appeal. An aggrieved party could invite the Court in an address at the end of the trial, to expunge the evidence or discountenance it in its judgment. That right is there, The Court itself may, when writing its judgment, expunge an in-admissible evidence it inadvertently admitted, even without a prompting by any of the parties. That is not a breach of fair hearing. At any rate, it is not every wrong admission of evidence that is fatal to a case. The Court must have relied upon it in arriving at its decision. If it did not, the wrong admission of the evidence would not affect the outcome of the case. Furthermore, to come to the Appellate Court on a case stated, when an opinion had already been given by the Lower Court on the issue, is wrong. This is because it is a condition precedent for a case to be stated, that the question to be answered was not required to be answered by the trial Court making the reference. It must also not have given an opinion on it – AUDU VS. A.G.F. (Supra) at 200 D –

E. If the Lower Court had given an opinion, the whole basis of the reference is defeated, since it is supposed to refer the question, get an answer from the Appellate Court, and then take that answer in arriving at its decision in the case, If it gives an opinion, and a reference is still made to the Appellate Court which takes a contrary view, then it means the Appellate Court has decided the point and has reversed the Lower Court, without a ground of appeal filed in that respect. That will open up another vista all together.
In this instant, if it is to be taken, as the appellant has submitted, that the trial Court had held that Section 12(2) (b) of the National Industrial Court Act 2006 has given it the right to jettison the provision of the Evidence Act in certain cases, then it means that it had already taken a stand and had given an opinion of law on that point. Then why is there the need for any reference to this Court? Such an action may result in this Court giving a different opinion. The purpose for the reference would then have been defeated. Is it not a wiser decision, to opt to raise the point in an address as counseled by the Court itself or

appeal?
It cannot be an appropriate option, to seek to make a case stated for the consideration of the Court of Appeal.
Since the trial Court here, had given its opinion on the admissibility of the documents and, as submitted by counsel for the appellant, on Section 12(2) (b) of the National Industrial Court Act 2006, it is no longer open to this Court to consider same on a reference. It has become an academic exercise as it is no longer a live issue in this respect, even if the reference had been validly made, in compliance with Section 295(2) of the 1999 Constitution as amended. This Court and indeed all Courts, do not partake in academic exercise, which obviously would be at the expense of live issues. In sum, Issues A & B are answered in favour of the respondent and against the appellant. The need to make a reference to this Court on the stated questions, on the basis of Section 295(2) of the 1999 Constitution never arose.

It is obvious to any discerning mind, that counsel for the appellant had issues with the National Industrial Court and sought to transfer the cases away from that Court. He wrote to the Registrar of the Court instead of

the President, a procedure which obviously helped to delay matters further. When he could not succeed, he stayed away to the detriment of his client and now seeks to make reference to this Court without complying with the provisions of the Constitution. All these do not help his client or the administration of justice at all.

ISSUE C
Whether the National Industrial Court has jurisdiction to admit or exclude any evidence (documentary or oral) contrary to the rights and obligations of the defendants guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria.
This issue concerns the merit of the question paused for consideration in this Court. I have already held above, that there was no reference to this Court by the trial Court. The questions identified by the counsel for the appellant have not been in accordance with Section 295(2) of the 1999 Constitution. Their merits do not therefore arise at all. Again as stated earlier, all the arguments canvassed on breach of fair hearing go to no issue because that can only arise in an appeal and cannot arise or be considered in a case stated to the Appellate Court – AUDU VS. A.G.

FEDERATION (Supra) at 200 paragraphs D – E. Issue C is therefore misconceived and it is therefore struck out.
On the whole, this appeal lacks merit in toto and it is dismissed with N50,000 costs to the respondent.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my Lord ABUBARKAR DATTI YAHAYA, JCA. His Lordship has exhaustively dealt with the issues for determination in this appeal. I agree with and adopt His Lordship’s reasoning and conclusion. Having also read the records of appeal and the briefs of argument filed and exchanged by the parties, I assert my concurrence that the inevitable conclusion is that the appeal lacks merit- The appeal is also dismissed by me and I abide by my Lord’s order on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the lucid judgment written by my learned brother, Abubakar Datti Yahaya J.C.A., with which I agree with nothing extra to add.

ONYEKACHI AJA OTISI, J.C.A.: My leamed Brother, Abubakar Dalti Yahaya, JCA, made available to me a draft copy of

the lead Judgment, dismissing this appeal. All the issues formulated for determination in the appeal have been fully addressed by my learned brother and, I am entirely in agreement with his reasoning and conclusion, which I adopt as nine. I will only make these few comments for emphasis.

decision and should constitute a challenge to the ratio of the decision – See Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However, meritorious, the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the Courts………..parties……… are not at liberty to argue grounds not related to the judgment appealed against.?
See also: Chami v UBA Plc (2010) LPELR-841(SC), (2010) 6 NWLR (PT 1191) 474; Balonwu v Governor of Anambra State (2009) 18 NWLR (PT.1172) 13; Ikweki v Ebele (2005) 7 MJSC 125; CCB Plc. V. Ekperi (2007) 4 MJSC 172.

The Lower Court refused an application filed by the Appellant on 15/7/2014 (at pages 144 -148 of the Record of Appeal) seeking leave of Court to enable the Appellant, inter alia, “object to the admissibility” of documents which were already exhibits before the Lower Court. The said documents were admitted as exhibits without

objection of May 27, 2014; albeit in the absence of learned Counsel for the Appellant. The Lower Court refused the said application, stating at page 248 of the Record of Appeal, that:
Defendant was afforded all the much need (sic) right to fair hearing to be heard on 27/05/2014. Counsel to defendant chose to be extremely disrespectful to Court and stayed away. To grant this application is to draw back the hands of the clock and wheel of progress in this case
I hold that the documents admitted in this case on 27/05/2014 are admissible.

That was the decision of the Lower Court on the application submitted by the Appellant before it.
However, the Lower Court thereafter remarked thus:
“Indeed S.12(2) (b) of NICA 2006 allows ample leadway (sic) to admit documents outside of the E. A. where the interest of justice so dictate(sic).”
This remark or observation remains what it was, a remark or an observation. It cannot be elevated to a decision. No competent ground of appeal can therefore arise therefrom; Agbaka v Amadi (1998) 11 NWLR (PT 572) 16; Akpan v Effiong (2010) 17 NWLR (Pt.1223) 421 SC.

For these

reasons and for the more comprehensive reasons set out in the lead Judgment, I also dismiss this appeal as it is without merit. I abide by the Orders made in the lead Judgment, including the order as to costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft the lead judgment delivered by my most noble and learned brother A. D. Yahaya J.C.A and I agree with his reasoning and conclusions, which closely coincide with mine.
I also agree, and order, that the appeal be dismissed; just as I also abide with the consequential order for costs as made by learned brother.

Appearances:

Dr. Charls D. MekwunyeFor Appellant(s)

Mr. Paul I. Okoh, Esq.For Respondent(s)

Appearances

Dr. Charls D. MekwunyeFor Appellant

AND

Mr. Paul I. Okoh, Esq.For Respondent