MR. EKANEM EKANEM & ORS v. MOBIL PRODUCING NIGERIA UNLIMITED
(2018)LCN/12439(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of May, 2018
CA/C/69/2014
RATIO
APPEAL: WHEN PRELIMINARY OBJECTION IS RAISED AGAINST THE COMPETENCE OF AN APPEAL
“It is trite law that when a preliminary objection is raised against the competence of an appeal that objection must be thrashed out before any further step is taken. This is apt because the essence of a preliminary objection is to terminate in limine, an appeal. So when the objection is raised by a Respondent, the Court is duty bound to hear and determine same before hearing the appeal. See APC VS. NDUUL & ORS. (2017) LPELR 242 14 SC; LASE VS. THE STATE (2017) LPELR 42468 SC. It is therefore necessary to determine the preliminary objection raised in this appeal first.” PER STEPHEN JONAH ADAH, J.C.A.
APPEAL: WHETHER THE APPEAL COURT CAN HEAR APPEAL EMANATING FOR THE NATIONAL INDUSTRIAL COURT
“Undoubtedly, by the far-reaching decision of the Supreme Court in SKYE BANK PLC VS VICTOR ANAEMENA IWU [2017] 16 NWLR [Pt. 1590] 24; [2017] LPELR-42595 [SC], the controversy regarding whether or not the Court of Appeal has the power to hear appeals emanating from all the decisions of the National Industrial Court has cherishingly once and for all been laid to rest. As authoritatively held by the Apex Court:
When the provisions of Sections 240-246 of the [1999] Constitution are read together, it is apparent that all decisions of the National Industrial Court are subject to review of the Court of Appeal.” PER IBRAHIM MOHAMMED MUSA SAULAWA J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. MR. EKANEM EKANEM
2. MR. OKON OKON
3. OKON JOHNSON
4. MR. EMMANUEL NWOKEZI Appellant(s)
AND
MOBIL PRODUCING NIGERIA UNLIMITED Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of National Industrial Court sitting at Calabar delivered on the 28th day of November, 2013 by O. A. Obaseki Osaghae, J.
The claim of the Appellants as Claimants at the Court below is for:-
a. A DECLARATION that the Claimants are entitled to all the rights and privileges of an employee of the Defendant having being (sic) so declared by the Court of Appeal.
b. AN ORDER of Court directing the Defendant to pay the Claimants all the benefits and entitlements accruable to them as employee in the employment of the Defendant but was unjustifiably denied.
c. AN ORDER of Court directing the Defendant to pay the Claimants the sum of N389,110,026.55k, N268,129,824.26k, N249,129,662.60k and N234,046,661.85k respectively being their unpaid salaries, benefits and allowances, accruable to them as employees of the Defendant but was unreasonably and unjustifiably denied.
d. AN ORDER of Court directing the Defendant to pay the Claimants their severance entitlement accruable to them as disengaged employees of the Defendant.
e. AN ORDER awarding a 30% interest on the judgment sum.
The Respondent as the Defendant before the Court below, raised a preliminary objection to the suit filed by the Appellants on the ground that the lower Court lacks the jurisdiction to entertain the claims of the Appellants, the same having been determined in Appeal No. CA/C/47/2006 between OKON JOHNSON & ORS. VS. MOBIL PRODUCING NIGERIA UNLIMITED which is currently on further appeal to the Supreme Court in Appeal No. SC/33/2010.
The Appellants filed a counter affidavit to the notice of preliminary objection arguing that the Court below has the jurisdiction to hear the case because the cause of action in this suit and the reliefs sought are practically different from that in Appeal No. CA/C/47/2006. The claim of the Appellants was for their unpaid salaries, emoluments and severance benefits having worked for the Respondent for a number of years before their employment was unilaterally and unjustifiably terminated by the Respondent during the pendency of the appeal. This was despite the fact that the Court of Appeal had made a declaration that the Appellants were employees of the Respondent.
The lower Court sustained the preliminary objection raised by the Respondent and struck out the suit of the Appellants on the ground that the claims as presented at the Court below was caught up by the doctrine of Estoppel per rem judicatam.
Being dissatisfied with the decision of the lower Court, the Appellant filed a notice of appeal against it which is at pages 363 – 365 of the Record of Appeal.
The record of appeal was transmitted to this Court on 25th February, 2014. The Appellants? brief of argument was filed on 14th September, 2017 but deemed properly filed and served on 9th January, 2018. The Respondent?s brief of argument was filed on 21st October, 2015. This was consequentially deemed duly filed and served on 9th January, 2018.
A notice of preliminary objection was filed by the Respondent on 23rd September, 2015. This objection sought orders to dismiss the appeal for want of jurisdiction. The grounds for this objection are:
1. This Honourable Court being a creation of the Constitution has the basis and scope of its jurisdiction (original and appellate) set out in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. The Constitution of the Federal Republic of Nigeria, 1999 as amended vested only limited appellate jurisdiction on this Honourable Court in respect of the decisions of the National Industrial Court.
3. The appellate jurisdiction of this Honourable Court as provided for under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) over the decisions of the National Industrial Court is limited.
4. This Honourable Court lacks the requisite jurisdiction to hear and/or determine an appeal arising from the decision of the National Industrial Court.
5. No additional appellate jurisdiction has been conferred on this Honourable Court by the National Assembly over the decisions of the National Industrial Court.
The Appellants in response to this preliminary objection filed their reply brief on 27th November, 2015. The reply brief was consequentially deemed on 9th January, 2018.
It is trite law that when a preliminary objection is raised against the competence of an appeal that objection must be thrashed out before any further step is taken.
This is apt because the essence of a preliminary objection is to terminate in limine, an appeal. So when the objection is raised by a Respondent, the Court is duty bound to hear and determine same before hearing the appeal. See APC VS. NDUUL & ORS. (2017) LPELR 242 14 SC; LASE VS. THE STATE (2017) LPELR 42468 SC. It is therefore necessary to determine the preliminary objection raised in this appeal first.
The learned counsel for the Respondent in his brief argued the preliminary objection at pages 3, 4, 5, 6, 7 and 8. The sole issue framed for determination in the preliminary objection is:
Whether in view of the provisions of Section 243(2) & (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) this Honourable Court has the jurisdiction to entertain this appeal.
He submitted that the jurisdiction of this Honourable Court is entirely statutory and is as enshrined in the provisions of Section 243(2) & (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). This principle he canvassed, has been restated in a plethora of judicial authorities.
He cited DANGANA VS. USMAN (2012) LPELR ? 7827 (SC), where the Supreme Court held that the exercise of appellate jurisdiction by a Court or Tribunal is entirely statutory and that an appellate Court derives its jurisdiction either from the statute/Constitution creating it and/or any other enabling statutory enactments. He contended therefore that the appellate jurisdiction of this Honourable Court being circumscribed by the relevant provisions of the Constitution this Court may not have the legal authority to entertain certain matters. He cited the case of MKPEN TIZA VS. LORAKPEN BEGHA (2005) 15 NWLR (PT. 949) 616 @ 637.
The learned counsel further submitted that by the Constitution of the Federal Republic of Nigeria (third alteration) Act 2010, the National Industrial Court was constitutionally conferred with status of a superior Court of record with its jurisdiction detailed in the Act now enshrined in the Constitution. That by virtue of the provisions of Section 243(2) of the Constitution, the appellate jurisdiction of the Court of Appeal over the decisions of the National Industrial Court is limited only to questions of fundamental rights as contained in Chapter IV of the Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
He contended that no further appellate jurisdiction has been conferred on this Court by an Act of the National Assembly as contemplated by Section 243(2) to cater for appeals from the National Industrial Court. The learned counsel therefore urged this Court to uphold the preliminary objection and strike out this appeal for lack of jurisdiction.
The Appellants in response filed their Appellants? reply brief on 27th November, 2015. The learned counsel for the Appellants canvassed that this Court is clothed with the jurisdiction to hear this appeal on grounds that this appeal emanated from the National Industrial Court. He quoted Sections 243(2), (3) and 240 of the 1999 Constitution. He also canvassed at page 3 of the reply brief that from the various aforementioned provisions of the law it is evidently clear that the law sets out two basis upon which appeals from the National Industrial Court may lie to the Court of Appeal namely as of right (with regards to breach of Chapter IV of the Constitution) and secondly after seeking leave of the Court of Appeal. However, the National Industrial Court no matter the magnanimity of superiority conferred upon it by the Third Alteration Act 2010 can never be a final Arbiter in proceedings. This submission no doubt represents the law and I do not hesitate to accept it as a sound statement of the law.
The counsel pointed out that they have neither come under a breach of Chapter IV nor sought leave of this Honourable Court to Appeal. He contended that the appeal is stricto sensu an issue of law. That the law here is jurisdiction which he said is strictly law and that leave is not required.
He relied on the cases of ENTERPRISE BANK LTD. VS. AROSO (2014) 3 NWLR (PT. 1394) 256 SC, 272 ? 274; GWEDE VS. INEC (2014) 18 NWLR (PT. 1438) 56 SC; JEV VS. IYORTYOM (2014) 14 NWLR (PT. 1428) 575, 582 SC; AND COCA-COLA (NIG.) LTD. VS. AKINSANYA (2013) 18 NWLR (PT. 1386) 255. He urged the Court to dismiss the preliminary objection and hear the appeal on merit.
My Lords, the controversy of whether appeals from the National Industrial Court can be heard by this Court has been laid to rest by the Supreme Court in the case of SKYE BANK PLC VS. IWU (2017) 16 NWLR (PT. 1590) 24. By the operation of the doctrine of stare decisis, no Court down the line can double speak over any matter that has been settled by the Supreme Court. In SKYE BANK PLC VS. IWU (supra), the Supreme Court dealing with the issue of jurisdiction of this Court held as follows:
An appellate Court derives its jurisdiction from the statutory provisions creating it, including the Constitution. In this case, the Court of Appeal derives its appellate jurisdiction from Section 240 of the 1999 Constitution (as amended) and it covers all the Courts listed in the section. In other words, the Court of Appeal, as a creation of statute, exercises appellate jurisdiction to the exclusion of other Courts over the listed Courts. And the listed Courts include the ‘High Courts’, which are the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, and the High Court of a State. Further, the appellate jurisdiction of the Court of Appeal is expatiated in Sections 241 – 246 of the Constitution.
When the provisions of Sections 240 – 246 of the Constitution are read together, it is apparent that all decisions of the National Industrial Court are subject to review of the Court of Appeal. (ADELEKAN VS. ECU-LINE NV (2006) 12 NWLR (PT. 993) 33; A.-G., OYO STATE VS. FAIRLAKES HOTELS LTD. (1988) 5 NWLR (PT. 92) 1; ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) 350; GAFAR VS. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (PT. 1024) 375; NWAIGWE VS. OKERE (2008) 13 NWLR (PT. 1105) 445; SPM LTD. VS. ADETUNJI (2009) 13 NWLR (PT. 1159) 647; MOSES VS. THE STATE (2006) 11 NWLR (PT. 992) 458; LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE VS. JEGEDE (2012) LPELR 21131 referred to). (Pp. 96, paras. F-H; 129, paras. D-H; 130, paras. C-G; 131-132, paras. D-A; 135, paras. D-E; 139, paras. E-H; 142, paras. G-H; 143, paras. B-C; 156, paras. B-D).
Per KEKERE-EKUN, JSC at page 144; paras. C-F; I think it is fair to say, without equivocation that Section 240 of the Constitution confers a right of appeal on any citizen of this country who may be dissatisfied with a decision of any Courts mentioned therein, which includes the NIC. It is a right constitutionally guaranteed which must not be unduly fettered. See OBIKOYA VS. WEMA BANK LTD. (1989) 1 NWLR (PT. 96) 157; ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT. 1426) 168; IMEGWU VS. OKOLOCHA (2013) 9 NWLR (PT. 1359) 347.
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) provides for appeals as of right from the Federal High Court and State High Courts while Sections 241(2) &242(1)provide for appeals with leave from those Courts. Section 243(1) 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.”
By this decision, it is very well settled beyond controversy that this Court has the jurisdiction to entertain appeals from the National Industrial Court, the appeal could be by right or with leave of Court. In that case of SKYE BANK PLC VS. IWU (supra) the Supreme Court held further that:
“The combined provisions of Sections 36(2)(b), 240, 243 and 254C(5), (6) of the 1999 Constitution (as amended) create a right of appeal from a decision of the National Industrial Court to the Court of Appeal. Such an appeal is as of right in fundamental rights cases and criminal matter, and with leave of the Court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction. (Pp. 147, paras, B-C; 159, paras. A-C).
It is therefore clear that any appeal that is not on the basis of fundamental rights and criminal matters requires the leave of this Court to be competent. In the instant case, the issue decided by the Court below was not criminal neither was it a fundamental right enforcement case. The learned counsel for the Appellant in his brief of argument admitted this expressly. Since the decision appealed upon is in respect of a civil matter it requires the leave of this Court before it can be competent before this Court. All the argument of whether the appeal was on jurisdiction and ipso facto an issue of law has no foundation anywhere in this case. The decision of the lower Court was not anywhere within the parameters contemplated for appeal as of right from the National Industrial Court. So leave is a necessary prerequisite for this appeal. Since no leave was sought and obtained, this appeal is not a competent appeal.
Since the appeal is incompetent, there is no valid appeal before the Court.
This preliminary objection therefore succeeds. This appeal filed without leave of Court is incompetent. The appeal being incompetent is hereby struck out.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Undoubtedly, by the far-reaching decision of the Supreme Court in SKYE BANK PLC VS VICTOR ANAEMENA IWU [2017] 16 NWLR [Pt. 1590] 24; [2017] LPELR-42595 [SC], the controversy regarding whether or not the Court of Appeal has the power to hear appeals emanating from all the decisions of the National Industrial Court has cherishingly once and for all been laid to rest. As authoritatively held by the Apex Court:
When the provisions of Sections 240-246 of the [1999] Constitution are read together, it is apparent that all decisions of the National Industrial Court are subject to review of the Court of Appeal.
The combined provisions of Sections 36(2)(b), 240, 243 and 245C (5),(6) of the 1999 Constitution [as amended] create a right of appeal from a decision of the National Industrial Court to the Court of Appeal. Such an appeal is as of right in fundamental rights cases and criminal matter, and with leave of the Court of Appeal in all civil matters where the National Industrial Court exercised its jurisdiction.
See SKYE BANK PLC VS IWU [supra] @ 144 paragraphs C-F; 147 paragraphs B-C; 159 paragraphs H – C.
Hence, I have no hesitation, whatsoever, in concurring with the reasoning expressed by Adah, JCA, in the judgment just delivered, to the conclusive effect that since no leave was sought and obtained, the instant appeal is incompetent.
Thus, I too hereby hold that the objection succeeds and same is upheld. Consequently, the appeal is hereby struck out for being incompetent.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
I equally hold that this appeal is incompetent and it is accordingly struck out.
Appearances:
For Appellant(s)
For Respondent(s)
