MIDAS STOCK BROKERS LIMITED v. JOSHUA OLUTAYO OLOJEDE (2019)

MIDAS STOCK BROKERS LIMITED v. JOSHUA OLUTAYO OLOJEDE

(2019)LCN/12981(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/94/2017(R)

RATIO

JURISDICTION: THE APPELLATE JURISDICTION OF THE COURT OF APPEAL OVER THE NATIONAL INDUSTRIAL COURT
This issue has been laid to rest by the Supreme Court case of SKYE BANK PLC v IWU (supra).
As regard the appellate jurisdiction of the Court of Appeal over appeals from the National Industrial Court, it was held in the case of SKYE BANK PLC v IWU (supra), per NWEZE, JSC (Pp. 66 – 67, Paras E ? B) that:
“The answers to the questions posed to this Court in this case statement, therefore, are;
(a) the Lower Court, that is the Court of Appeal has the jurisdiction, to the exclusion of any other Court in Nigeria, to hear and determine all appeals arising from the decisions of the trial Court, that is, the National Industrial Court;
(b) no constitutional provisions expressly divested the said Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the trial Court, the National Industrial Court and (c) as a corollary, the jurisdiction of the Court to hear and determine civil appeals from the decisions of the National Industrial Court is not limited, only, to fundamental rights matters.”PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

INTERPRETATION OF STATUTES : FACED WITH TWO DIFFERENT MEANINGS, THE COURTS MUST SELECT THE MEANING THAT IS MOST REASONABLE AND AVOID ABSURDITY

This is where the principles and canons of interpretation earlier referred to becomes applicable. In order to decide the issue, the Court must consider the provisions of the Constitution holistically and not in isolation. Where there are two possible meanings, as argued by learned counsel for the Appellant, the Court must adopt the meaning that is more reasonable and which would avoid absurdity. It should give a wide and liberal interpretation that would best give effect to the intention of the lawmaker, unless there is express provision to the contrary. See: AWOLOWO v SHAGARI (1979) 6-9 SC 37; A.G. LAGOS STATE v A.G. FEDERATION (supra) at 117-118 H-B; AQUA v ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622; UGWU v ARARUME (2007) 12 NWLR (PT. 1048) 365.
In NOKES V. DONCASTER AMALGAMATED COLLERIES LTD. (1940) AC 1014 at 1022 the Court held:
“… if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that parliament would legislate only for the purpose of bringing about an effective result.”PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

MIDAS STOCK BROKERS LIMITED Appellant(s)

AND

JOSHUA OLUTAYO OLOJEDE Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Lead Ruling): This is an application brought pursuant to Order 7 Rules 1 & 2 of the Court of Appeal Rules, 2011.

The application was filed on 12th October, 2016 praying for the following reliefs:
1. Leave of this Honourable Court to the Applicant to appeal against the judgment of His Lordship, Honourable Justice OYEWUNMI O. O of the National Industrial Court of Nigeria, delivered on the 14th day of July, 2016 in suit No. NICN/LA/607/13.
2. An order of this Honourable Court deeming the Notice of Appeal already filed against the judgment of His Lordship, Honourable Justice OYEWUNMI O. O of the National Industrial Court of Nigeria delivered on the 14th day of July, 2016 in suit No. NICN/LA/607/13 as properly filed and served.
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

It is accompanied with a 7-paragraph affidavit in support, sworn to by Oloche Simon, a copy of the judgment and a copy of the draft Notice of appeal. Appellant?s counsel Olumide Oyewole, Esq in adopting his written address

filed on 5th May, 2017 in support of his application relied on SKYE BANK v IWU (2017) LPELR – 42895 and urged the Court to grant the application.

The Respondent?s counsel filed an 8-paragraph counter affidavit in opposition, deposed to by Harold Ufondu and a written address in support filed on 18th May, 2017 deemed on 18th March, 2019.

In resolving the issue flowing from above which basically is whether the application is deserving of a grant of leave and a deeming order
The Appellant in his address formulated a sole issue:
whether this honourable Court can entertain appeals against the decisions of the National industrial Court of Nigeria save where it borders on fundamental human rights

The Appellants counsel submitted that Section 243 (2) & (3) of the 1999 Constitution (as amended) and positions from decided cases of this Court; a correct interpretation is that the Court of Appeal can deal with all appeals on any issue including that of fundamental human rights. He relied on FEDERAL MINISTRY OF HEALTH v JOHESU & ORS CA/A/461/M/2013; LOCAL GOVT SERVICE COMMISSION

EKITI STATE & ANOR v MR. M.K. BAMISAYE (2013) LPELR – 20407 (PP 17-19 PARA B-B); ASONIBARE v MAMODU & ANOR (2013) LPELR – 22192 (CA). During adoption, he commended the decision of the Supreme Court in the matter of SKYE BANK v IWU (supra) and urged the Court to allow the appeal.

The Respondent?s counsel, in his written address narrowed down two issues for determination:
Whether this Court has jurisdiction to entertain matters arising from the judgement of the National Industrial Court except on fundamental rights and criminal causes? And whether the application for leave is competent, valid and in accordance with any known law or rules.

On issue 1, the Respondent?s counsel submitted that a combined reading of Sections 243(2) & (3), 254 (C) (5) and (6) of the 1999 Constitution (as amended) follows that for an appeal to lie as of right from the decisions of the National Industrial Court to the Court of Appeal, they must emanate from questions of fundamental human rights as enshrined in Chapter IV of the Constitution and/or Criminal matters. He relied on LAGOS SHERATON & TOWERS v HOTEL AND PERSONAL SERVICES SENIOR STAFF

ASSOCIATION (2014) 14 NWLR (PT 1426) 45, 70 Para D ? G; COCA COLA (NIG) LTD v AKINSANYAN (2013) 18 NWLR (PT 1386) 255; Section 9 (2) 2006 of the National Industrial Court Act and concluded that there is no right of appeal on the issue. Hence the Notice of appeal filed without leave is incompetent.

RESOLUTION
In the circumstances of the case, I have seen the paragraphs of the counter affidavit of the Respondent, which is to the effect that there is no right of appeal in the absence of an enabling law or enactment of the National assembly hence the application is incompetent.
This issue has been laid to rest by the Supreme Court case of SKYE BANK PLC v IWU (supra).
As regard the appellate jurisdiction of the Court of Appeal over appeals from the National Industrial Court, it was held in the case of SKYE BANK PLC v IWU (supra), per NWEZE, JSC (Pp. 66 ? 67, Paras E ? B) that:
“The answers to the questions posed to this Court in this case statement, therefore, are;
(a) the Lower Court, that is the Court of Appeal has the jurisdiction, to the exclusion of any other Court in Nigeria, to hear and determine all appeals

arising from the decisions of the trial Court, that is, the National Industrial Court;
(b) no constitutional provisions expressly divested the said Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the trial Court, the National Industrial Court and (c) as a corollary, the jurisdiction of the Court to hear and determine civil appeals from the decisions of the National Industrial Court is not limited, only, to fundamental rights matters.”
PETER-ODILI, J.S.C (P. 104, paras. C-F) also held thus:
“…In conclusion the issues all resolved in favour of the appellant, it is to be said in line with the lead judgment which effectively and soundly tackled the questions that arose that the appellate jurisdiction of the Court of Appeal is not foreclosed within matters only related to fundamental rights, rather, the appeals from the National Industrial Court all can go on appeal to the Court of Appeal whether as of right in the case of fundamental rights but by leave of the appellate Court when the matter is in relation to other circumstances.”
The Apex Court set the procedure for appeals of this nature thus:

“The Constitution which gave the right of appeal also makes provisions for its exercise. The right of appeal may be exercised as of right or with leave.?
Section 241(1) (a)-(f) of the 1999 Constitution (as amended) provides for appeal as of right from the Federal High Court and State High Courts while Sections 241(2) & 242(1) of the 1999 Constitution (as amended) provides for appeals with leave from those Courts. Section 243(1) of the 1999 Constitution (as amended) provides how persons aggrieved by decisions of the mentioned Courts may exercise their right of appeal depending on whether they were parties to the action or interested persons. While it is trite that the marginal note to a section does not form part of the enactment, it is helpful in determining its purpose or the mischief it is aimed at. See:IDEHEN v IDEHEN (1991) 6 NWLR (PT 198) 382; O.S.I.E.C. v. A.C. (2010) 12 SC (PT IV) 108. The marginal note to Section 243(1) of the 1999 Constitution (as amended) clearly states that the section deals with the “exercise of right of appeal from the Federal High Court, National Industrial Court or a High

Court in civil and criminal matters.” Similarly, Section 243(2), (3) & (4) of the 1999 Constitution (as amended) introduced by Section 5 of the Third Alteration Act, deals specifically with the manner in which the right of appeal from decisions of the National Industrial Court may be exercised, Sub-section (2) is clear – that an appeal on questions of fundamental human rights as contained in Chapter IV of the Constitution, as it relates to matters upon which the National Industrial Court has jurisdiction, is of right. Sub-section (3) provides:
“An appeal shall only lie from the decisions 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.”
The bone of contention is whether by these provisions any appeal on a matter outside a question of fundamental human rights is foreclosed. In other words, whether any decision of the National Industrial Court in respect of any matter other than fundamental human rights is final.

legislate only for the purpose of bringing about an effective result.”
See also: A.D.H. LTD. v AMALGAMATED TRUSTEES LTD (2007) ALL FWLR (PT. 392) 1781 at 1824 – 1825 G-A. Thus, in the circumstances of this case, the adoption of the mischief rule would best enable the Court to resolve the issue. The mischief sought to be addressed by the Third Alteration Act was the exclusivity of the jurisdiction of the National Industrial Court, and its status as a superior Court of record.
KEKERE-EKUN, J.S.C (Pp. 173-179, Paras. D-C) in SKYE BANK PLC v IWU (SUPRA) held that:
I agree with my learned brother, Nweze, JSC that having been granted the status of a superior Court of record and having regard to the hierarchy of Courts as it exists in our constitutional arrangement, the National Industrial Court must fall in line with other Courts of coordinate jurisdiction. There is nothing in Sections 240, 241 or 242 of the Constitution (as amended) that suggests that decisions of any of the Courts referred to in Section 240 shall be final. Section 240 has clearly given a right of appeal from decisions of all the Courts subordinate to the Court of Appeal and

this includes the National Industrial Court. If that right is to be curtailed in any way the Constitution must expressly say so. I have observed earlier that Section 243 of the Constitution 1999 (as amended) deals, not with the right of appeal already granted in Section 240, but with the manner in which the right is to be exercised. The Court of Appeal Act, which is an Act of the National Assembly, also makes provisions for the manner in which the right of appeal to the Court of Appeal may be exercised by stipulating prescribed periods for its exercise. See Section 24(2), (3) & (4) of the Court of Appeal Act, 2004 and the Court of Appeal Rules, 2011. It would be absurd in my view to interpret Section 243(3) of the Constitution (as amended) as restricting the right of appeal from decisions of the National Industrial Court to questions of fundamental rights alone. To construe the provision to mean that the decisions of the Court in any other civil proceeding are unappealable would place the Court at par with the Supreme Court, which is the only Court in the land whose decisions cannot be appealed against, irrespective of subject matter (Section 235 of the

Constitution), that cannot be the intention of the Legislature. By Section 240 of the Constitution (as amended), it is clearly the intention of the draftsmen that decisions of Courts subordinate to the Court of Appeal shall be subject to scrutiny and review. An appeal is a continuation of the litigation process which does not terminate at the trial stage. Furthermore, the Legislature could not have intended to give a right of appeal in one Section of the Constitution and take it away in another Section without an express provision to that effect. I am further fortified in this view by the provision of Section 243(4) of the 1999 Constitution(as amended) which provides:
“Without prejudice to the provisions of Section 254C(5) of this Constitution, 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.”
The use of the word “any” in the above provision is a clear indication that appeals from the decisions of the National Industrial Court are not limited to questions of fundamental rights alone. I am also of the view that the proviso to Section 243(3) of the 1999

Constitution (as amended) also points to the intention of the Legislature that appeals other than those on questions of fundamental rights shall be with leave. I agree with my learned brother, Nweze, JSC that upon a holistic interpretation of Sections 240 & 243(1) & (4) of the 1999 Constitution (as amended) all decisions of the National Industrial Court are appealable to the Court of Appeal: as of right in criminal matters (Section 254C (5) & (6) of the 1999 Constitution (as amended) and fundamental rights cases and with leave of the Lower Court in all other civil matters where the NIC has exercised its jurisdiction.”
Therefore, in the light of the above, the doors have been opened to litigants who are dissatisfied with the judgments of the National Industrial Court, who can now have access to the Court Of Appeal with leave.
In the light of the finality of the holdings of the Apex Court in application to the case at hand, I am of the firm view that the application of the Applicant is in compliance with their stance and therefore has merit and it is hereby upheld.

Leave is therefore granted to the Applicant to appeal against

the judgment of his Lordship, Honourable Justice OYEWUNMI O. O of the National Industrial Court of Nigeria delivered on the 14th day of July, 2016 in suit no NICN/LA/607/13. The Applicant shall file its Notice of Appeal within 21days of this ruling.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the Ruling prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Abimbola Osarugue Obaseki-Adejumo JCA, afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, I adopt the Judgment as mine with nothing further to add.

Appearances:

Olumide Oyewole with him, Adunola M. with him, M. Adekunle LasisiFor Appellant(s)

Harold UfonduFor Respondent(s)

Appearances

Olumide Oyewole with him, Adunola M. with him, M. Adekunle LasisiFor Appellant

AND

Harold UfonduFor Respondent