NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOOD WORKERS v. BETON BAU (NIG) LTD. & ANOR (2022)

NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOOD WORKERS v. BETON BAU (NIG) LTD. & ANOR

(2022)LCN/17182(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, February 17, 2022

CA/L/577/2008

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOOD WORKERS APPELANT(S)

And

1. BETON BAU NIGERIA LTD. 2. SKYGRADE CONSTRUCTION LTD RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE OBJECT OF INTERPRETING A STATUTE OR THE CONSTITUTION

It is trite that the object of interpreting a Statute or the Constitution is to discern the intention of the Legislature and that can only be determined through the language used in the Statute or Constitution. Hence, where words used in the Constitutional Provisions or Statute are clear, plain, and unambiguous, they are to be construed in their literal and ordinary meaning. Reference is made to the decided Case Authorities GANA VS SDP & ORS (2019) LPELR-47153 (SC), MARWA & ORS VS NYAKO & ORS (2012) LPELR-7837 (SC) ABEGUNDE VS ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC).
The understanding is that except for the Right of Appeal as provided under Section 243 (2) of the 1999 Constitution and Section 9(1 – 2) of the National Industrial Court Act 2006, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any matter in which jurisdiction is conferred on the National Industrial Court, it shall 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 matter, such appeal shall be by Leave of Court. Therefore, in other words, except for the provisions of Section 243 (2) where an aggrieved Party can appeal as of right as far as it relates to questions of Fundamental Rights as contained in the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as it relates to matters under which the National Industrial Court has jurisdiction, an appeal on any other matter shall be as prescribed by an Act of the National Assembly.
In SKYE BANK PLC VS IWU (2017) 16 NWLR (PART 1590) SC PAGE 24 AT PAGE 147, the Supreme Court Per KEKERE–EKUN, JSC held as follows:
“The combined provisions of Sections 36(2) (b), 240, 243 and 254C(5), (6) of the 1999 Constitution (As Amended) creates 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 matters, and with leave of the Court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction.” PER BANJOKO, J.C.A.

WHETHER OR NOT ALL DECISIONS OF FROM THE NATIONAL INDUSTRIAL COURT CAN BE APPEALED AS OF RIGHT IN THE APPELLATE COURT

It is pertinent to note that the suit was not initiated under Fundamental Rights Enforcement Rules as it is only the High Court and the Federal High Court that has the jurisdiction to hear such matters. Any Fundamental Right Issue must arise from the trial Court’s omission or commission.
Upon the holistic interpretation of Sections 240, 243 (2 – 4) of the 1999 Constitution, all decisions from the National Industrial Court can be appealed as of right provided it borders on questions relating to Fundamental Rights and with leave of the lower Court on other civil matters where the National Industrial Court has exercised its jurisdiction. See GOVERNING BOARD OF RUGIPOLY, ONDO STATE VS OLA (2016) 16 NWLR (PART 1537) PAGE 1 AT PAGE 21 – 29; UITHMB VS ABDURAHAMAN (2017) 15 NWLR (PART 1589) PAGE 397 AT PAGE 419; LAGOS SHERATON HOTEL VS HPSSSA (2014) 14 NWLR (PART 1426) PAGE 45 AT PAGE 65; NESTOIL PLC VS NUPENG (2018) LPELR-50094 (CA), AKOSHILE V NIMC & ANOR (2020) LPELR-51362 (CA); NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION VS BPE (2019) LPELR-48725 (CA). PER BANJOKO, J.C.A.

FACTOR THAT MUST BE SATISFIED FOR AN ACTION TO BE QUALIFIED AS A FUNDAMENTAL RIGHT ACTION

For an action to be qualified as a Fundamental Right Action, the central question or the main claim must be for Enforcement of Fundamental Right or the securing of the Enforcement of Fundamental Right. It must not be the consequential human right issue or question which emanates or seeks to unravel another question. The Fundamental Right claim involved must not be a claim that is an offshoot of the main claim. The Fundamental Right Claim must be the main or principal claim in the suit. See GAFAR VS KWARA STATE GOVT (2007) NSCQR VOLUME 29 PAGE 34; UNILORIN VS OLUWADARE (2006) NSCQR VOLUME 27 PAGE 18; EGBUONU V BOMO RADIO TELEVISION CORPORATION (1991) 2 NWLR 81 AT P.90; SEA TRUCKS NIGERIA LIMITED VS ANIGBORO (2001) NSCQLR VOLUME 5 PAGE 120.
In LAGOS SHERATON HOTEL VS HPSSSA (SUPRA), His Lordship, Per OSEJI, JCA (as he then was) admonished Litigants to refrain from trying to circumvent the provisions of Section 243 (2) of the 1999 Constitution of the Federal Republic of Nigeria under any guise to appeal the decision of the National Industrial Court in matters they are not allowed to appeal against. His warning is endorsed and he stated thus:
“…. Litigants who seek to circumvent or evade the provisions of Section 243(2) and 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 underestimate 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.” PER BANJOKO, J.C.A.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Honorable Justice B.A Adejumo, Honorable Justice B. B Kanyip and Honorable Justice M.B Dadda of the National Industrial Court sitting in Lagos in Suit No NIC/8/2002 on the 5th of February 2008, as seen on Pages 107 – 118 of the Records of Appeal.

The Appellant (then Plaintiff) instituted this suit by filling an Application dated and filed 28th of May 2002 and 30th of May 2002 respectively. The Appellant is a Trade Union with Members who are Employees of the 1st Respondent who was the 1st Defendant in the suit. The Appellant went into series of discussions and negotiations with the 1st Respondent on settlement, further to which the Parties mutually agreed to lay off the workers with an undertaking on the 1st Respondent to pay salaries, allowances, and terminal benefits amounting to N45 Million (Forty-Five Million Naira) payable to the Appellant’s Members. In furtherance to this Agreement, 1st Respondent wrote the Appellant on the 10th of October 2001 promising, “to make all payments not later than January 31, 2002”.

The 1st Respondent delivered a Tripartite Deed of Assignment dated 19th of February 2002, which was earlier, executed between the 1st & 2nd Respondent and Shell Petroleum Development Company Limited to the Appellant alongside a Tripartite Deed of Loan and Transfer between the 1st Respondent & 2nd Respondent and ESI Engineering International Limited to the Appellant.

It further wrote a letter dated 6th of March 2002 informing the Appellant that arrangements had been made with the 2nd Respondent regarding the payment of its liabilities and advised the Appellant to liaise and cooperate with the 2nd Respondent for the payment of their terminal benefits. The Appellant claimed to have met with the 2nd Respondent unsuccessfully until when in April 2002, the Managing Director of the 2nd Respondent, reported to the Police claiming that some of the affected workers threatened breach of the peace further to which they were arrested and charged to the Magistrate Court. Consequently, by its conduct, it has made further discussions impossible thereby making the enforcement of the Agreements mutually reached by the parties impossible.

The Appellant’s questions for determination at the lower Court were as follows:
1. That by the Agreements executed by the Plaintiff and the 1st Defendant’s Minutes of Meetings on the 23/2/2001 and 6/4/2001, 19/9/2001 and 5/3/2002 together with the two Separate Agreements executed by the Defendants respectively on the 19th of February 2002, the Defendants are liable jointly and severally to pay to the Plaintiff for their workers the terminal benefits and arrears of unpaid salaries and allowances amounting to N45 Million.
2. A DECLARATION that by the Agreements or Understanding between all the Parties particularly by the Tripartite Deed of Assignment dated 19/2/2002 and Tripartite Deed of Loan and Transfer, the 2nd Defendant assumed joint-liability for the debt of the 1st Defendant and the Plaintiff became entitled to be paid the sum of N45 Million by both Defendants being terminal benefits and arrears of salaries allowances in respect of its 159 workers laid off by the 1st Defendant
3. AN ORDER directing the Defendants to pay over forthwith to the Plaintiff the total sum of N45 Million, being terminal benefits and unpaid arrears of salaries and allowances for its Members listed in the documents attached to the Accompanying Affidavit in Support, who the defendants laid off on a mutual agreement to pay the benefits together with the costs of this action.

The 1st and 2nd Respondents reacted to the Appellant’s Motion by filing separate Preliminary Objections challenging the jurisdiction of the trial Court to hear the application. Arguments on the Preliminary Objections were taken and on the 6th of February 2007, the trial Court ruled that it had jurisdiction to hear the matter. Subsequently, the 1st Respondent applied for an Extension of Time to file its Counter Affidavit in opposition to the Appellant’s Motion. The Application was granted and the 1st Respondent filed its Counter Affidavit and Written Address. Arguments on the Appellant’s Application was taken.

The 2nd Respondent did not file any Counter Affidavit or Written Address.

The Appellant’s Application was dismissed on the grounds that it did not make out any case to warrant the granting to it of the reliefs it seeks. Consequently, the Appellant, dissatisfied with the judgment of the trial Court, filed a Notice of Appeal dated 9th of April 2008 as seen on Pages 119 – 125 of the Record of Appeal.

The Appellant challenged the whole decision of the trial Court on Four (4) Grounds:

GROUNDS OF APPEAL
GROUND ONE
The lower Court erred in law when it held that the “Applicant has not made out any case to warrant the granting to it the reliefs it seeks” as such “the Application must fail; and we so order” thereby exceeding its jurisdiction.

In this regard, three (3) Particulars of Error were listed out as contained in the Notice of Appeal
GROUND TWO
The lower Court erred in law, as much as exceeded as jurisdiction, and denied the Appellant a fair hearing when it held that: “Even assuming that Exhibits G-Gs and H-H6 are applicable to the matter at hand, their contents are such that raise doubts to their efficacy. In the first place, Exhibit H-H6 in the recital talks of N45,000,000; but in schedule III, it talks of N55,000,000.00. Secondly, the same Exhibit in Clause 2A talks of the transferor covenanting with the transferee ‘To pay and discharge into the Transferee the Sum of N420, 000, 000.00…which sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein’. Nowhere did the Applicant establish that this said sum has been paid by it to warrant the 2nd Respondent to make payments that the Applicant is praying for.”

In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal.
GROUND THREE
The lower Court erred in law when it failed to exercise its discretion to call on the Appellant to address it on Exhibits G-G2 and H-H6 as well as oral evidence before making a finding on the matter raised in the Exhibits, thereby failing to afford the Appellant the opportunity of being heard.

In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal.
GROUND FOUR
The lower Court erred in law when it failed to act on the unchallenged evidence or properly assess and evaluate the Affidavit Evidence including the Exhibits before the Court and grant the reliefs sought.

In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal. The Appellant sought for the following Relief as contained in the Notice of Appeal as follows:
“Allow the appeal, set aside the decision of the lower Court, access the evidence and make order appropriately”.

The Appellant filed its Brief of Argument on the 2nd of September 2008. The 1st Respondent on the 20th of November 2009, filed a Notice of Preliminary Objection dated 29th of October 2009. In addition to the Notice of Preliminary Objection, it also filed its Respondent’s Brief of Argument dated 29th of October 2009 and filed on the 20th of November 2009 also incorporating the Preliminary Objection to the Brief. Same was deemed filed on the 5th of October 2018. The Appellant neither filed a Reply to the Preliminary Objection nor an Appellant Reply Brief.

The Appellant in its Brief of Argument raised Four (4) issues for determination namely:
1. Whether the lower Court was right when it held that the Appellant did not make out any case and dismissed the Appellant’s case. This issue relates to Ground One of the Grounds of Appeal.
2. Whether the lower Court was right and did not exceed its jurisdiction and deny the Appellant a fair hearing in its approach to and conclusion on the Appellant’s Exhibits G-G5 and H-H6 relating to the discrepancy in the figures N45,000,000.00. This issue relates to the Ground 2 of the Grounds of Appeal.
3. Whether the lower Court was right when it failed to exercise its discretion under the law and call on the Appellant to address it on Exhibits G-G2 and H-H6 as well as call oral evidence before making a finding of conflicting figures in the Exhibits. This issue relates to Ground 3 of the Grounds of Appeal.
4. Whether the lower Court was right when it failed to act on the Appellant’s unchallenged Affidavit Evidence and give judgment accordingly. This issue relates to Grounds 4 of the Grounds of Appeal.

Dwelling on the issues for determination, the 1st Respondent raised two Issues for Determination as follows:
(i) Whether the lower Court was wrong in holding that Interpretative Jurisdiction should not be used to settle Triable Issues.
(ii) Whether the lower Court was wrong in refusing to hold that Exhibits G-G2 and H- H6 take the character of Collective Agreements.

The 2nd Respondent did not file any Brief of Argument.

The Appellant also did not address the issues arising from the Preliminary Objection.

Now, after a thorough perusal of the Notice of Appeal, the adopted Brief of Arguments, as well as the Records of Proceedings, this Court observed that the 1st Respondent raised a Notice of Preliminary Objection, which borders on the competency of the appeal. The Court will now examine the Preliminary Objection to determine if it has merits.

The 1st Respondent premised his Notice of Preliminary Objection on One (1) Ground which is reproduced as follows:
GROUND OF THE OBJECTION
Section 9 of the National Industrial Court Act 2006 stipulates the appeal that shall lie as of right from the decisions of the National Industrial Court to the Court of Appeal. This appeal as presently constituted does not fall under that category.

In his submission on the Preliminary Objection, the Learned Counsel to the 1st Respondent placed reliance on Section 9 of the National Industrial Court Act, 2006, which provides that an appeal from the decision of the National Industrial Court can only lie 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. He submitted that the facts of this instant case from the National Industrial Court, indicates that the question before the National Industrial Court was definitely not based on Fundamental Human Rights Issues as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria and as such going by the provisions of Section 9 of the National Industrial Court Act 2006, the Appellant is duty bound to seek and obtain the Leave of Court before filing any appeal against the decision of that Court.

The Learned Counsel added that the Processes filed before this Court showed that leave was neither sought nor obtained before the Appellant filed this appeal before this Court, and as such having not obtained the requisite leave, this Court does not have the Jurisdiction to entertain this Appeal. The issue of obtaining leave of Court is a condition precedent specifically laid down by Statutes. He relied on MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587. He urged this Court to strike out the appeal forthwith.

Now, it has been observed that the Learned Counsel to the Appellant did not file a Reply to the 1st Respondent’s Notice of Preliminary Objection. The law is trite that silence can sometimes mean yes and what is admitted needs no further proof. It is settled that where a Party fails to reply to a Point of Law raised by an opposing party, he is deemed to have conceded to the points raised. See OKESUJI VS LAWAL (1991) 1 NWLR 662 AT 674; CHUKWU VS CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR-23813(CA). In this instant case, the Appellant did not respond to the Respondent’s Preliminary Objection and as such he is deemed to have admitted the Objections raised by the Respondent.

Now, the Issue as to whether Leave of Court is required to file an appeal against the decision of the National Industrial Court will be examined.

The Right of Appeal is a Constitutional Issue and they are of two categories. The first one is appeal as of right and appeal with leave of Court. It is clear that this appeal emanated from the National Industrial Court and as such there can be only two categories of appeal that can arise from the Court below.

Civil appeals from the National Industrial Court are governed by the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria. Section 243 (2) and (3) provides as follows:
“(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.”
Appeals to the Court of Appeal as of Right are formed on Grounds touching on Fundamental Rights and appeals with Leave on other Grounds. With particular reference to this Appeal, Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended is relevant. It governs the jurisdiction of the Court of Appeal over appeals arising from the decisions of the National Industrial Court and specifically on when an appeal as of right arises and when Leave to Appeal must be sorted and obtained.
In the same vein, Section 9(1) and (2) of the National Industrial Court Act, 2006 also make identical provisions to that of Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. It provides as follows:
“(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 excepts as may be prescribed by this act or any other Act of the National Assembly.
(2) An appeal from the decision of the Court shall lie 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”
The provisions of Section 243 (2) and (3) of the 1999 Constitution are very clear and unambiguous Also the provisions of Section 9(2) of the National Industrial Court Act, 2006 are also very clear.
It is trite that the object of interpreting a Statute or the Constitution is to discern the intention of the Legislature and that can only be determined through the language used in the Statute or Constitution. Hence, where words used in the Constitutional Provisions or Statute are clear, plain, and unambiguous, they are to be construed in their literal and ordinary meaning. Reference is made to the decided Case Authorities GANA VS SDP & ORS (2019) LPELR-47153 (SC), MARWA & ORS VS NYAKO & ORS (2012) LPELR-7837 (SC) ABEGUNDE VS ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC).
The understanding is that except for the Right of Appeal as provided under Section 243 (2) of the 1999 Constitution and Section 9(1 – 2) of the National Industrial Court Act 2006, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any matter in which jurisdiction is conferred on the National Industrial Court, it shall 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 matter, such appeal shall be by Leave of Court. Therefore, in other words, except for the provisions of Section 243 (2) where an aggrieved Party can appeal as of right as far as it relates to questions of Fundamental Rights as contained in the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as it relates to matters under which the National Industrial Court has jurisdiction, an appeal on any other matter shall be as prescribed by an Act of the National Assembly.
In SKYE BANK PLC VS IWU (2017) 16 NWLR (PART 1590) SC PAGE 24 AT PAGE 147, the Supreme Court Per KEKERE–EKUN, JSC held as follows:
“The combined provisions of Sections 36(2) (b), 240, 243 and 254C(5), (6) of the 1999 Constitution (As Amended) creates 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 matters, and with leave of the Court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction.”
From the foregoing, it is clear that it is only in questions relating to Fundamental Right Cases and Criminal Matters that an appeal as of right will arise. Leave of Court is only required in other Civil Matters where the National Industrial Court has jurisdiction.
Similarly, Section 243 (2–4) of the Constitution as introduced by Section 5 of the Third Alteration Act deals with the manner in which an appeal from the National Industrial Court to the Court of Appeal is to be dealt with. Subsection 2 is very clear – only an appeal on questions relating to Fundamental Human Rights, as it relates to matters on which the National Industrial Court has Jurisdiction are as of Right.
It suffices to state that there is no doubt that there are only two categories of appeals that can emanate from the National Industrial Court to the Court of Appeal. The question that arises in this appeal is whether the Grounds of Appeal are Grounds complaining of Fundamental Human Rights breaches or Grounds other than Fundamental Human Right breaches. The complaints must be against the decision of the trial Court and not the claim against the Respondents.
It is pertinent to note that the suit was not initiated under Fundamental Rights Enforcement Rules as it is only the High Court and the Federal High Court that has the jurisdiction to hear such matters. Any Fundamental Right Issue must arise from the trial Court’s omission or commission.
Upon the holistic interpretation of Sections 240, 243 (2 – 4) of the 1999 Constitution, all decisions from the National Industrial Court can be appealed as of right provided it borders on questions relating to Fundamental Rights and with leave of the lower Court on other civil matters where the National Industrial Court has exercised its jurisdiction. See GOVERNING BOARD OF RUGIPOLY, ONDO STATE VS OLA (2016) 16 NWLR (PART 1537) PAGE 1 AT PAGE 21 – 29; UITHMB VS ABDURAHAMAN (2017) 15 NWLR (PART 1589) PAGE 397 AT PAGE 419; LAGOS SHERATON HOTEL VS HPSSSA (2014) 14 NWLR (PART 1426) PAGE 45 AT PAGE 65; NESTOIL PLC VS NUPENG (2018) LPELR-50094 (CA), AKOSHILE V NIMC & ANOR (2020) LPELR-51362 (CA); NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION VS BPE (2019) LPELR-48725 (CA).
Having examined the fact that appeal from the National Industrial Court to the Court of Appeal can be as of Right if it borders on questions relating to Fundamental Rights and for other Civil Matters in which leave of the lower Court is required on which the National Industrial Court has exercised jurisdiction, the next step is to examine the Grounds of Appeal to determine if there is a Ground touching on Fundamental Right that can sustain the competence of this appeal from the National Industrial Court.
From the Grounds of Appeal reproduced above, it appears that the only Ground that has any semblance to the issue touching on Fundamental Right is Ground Two (2) where the Appellant alleged that the trial Court erred in law as much as exceeding jurisdiction by denying it fair hearing in respect of the Exhibits tendered at the lower Court by holding that the Appellant failed to address the Court as to whether the Exhibits tendered can be part of the Collective Agreement. As such, it concluded that the Appellant has failed to make a case to warrant the grant of the Reliefs sought. However, a closer review of Ground Two (2) would indicate that there was no question of Fundamental Rights raised in the lower Court.
In OPARA VS SPDCN [2015] 14 NWLR 319.

The Supreme Court has given a well-considered position on this in this manner:
‘’The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedures) Rules. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the Rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject matter of the action. Enforcement of the Right per se cannot resolve the substantive claim, which is in any case different. In the instant case, the appellants’ main grouse was about pollution generated from gas flaring. This is a matter that cannot be knighted as a fundamental right action under Chapter IV of the Constitution and under the African Charter on Human and Peoples Rights.’’
This Court had reeled out the reliefs sought by the Appellants in this suit at the trial Court earlier in this judgment. The reliefs can be found on Pages 1 – 2 of the Record of Appeal. After a careful review of the reliefs sought by the Appellant, this Court found out that the Reliefs sought by the Appellants at the lower Court borders on the interpretation of Agreements and enforcement of Monetary Claim and has nothing to do with Fundamental Rights. It is worth noting that the question of Fundamental Rights was not raised and determined at the lower Court, it was only set down for the first time as Ground 2 in the Notice of Appeal. From the facts before the lower Court, the issues were not premised on Fundamental Rights as contained in Chapter IV of the 1999 Constitution
For an action to be qualified as a Fundamental Right Action, the central question or the main claim must be for Enforcement of Fundamental Right or the securing of the Enforcement of Fundamental Right. It must not be the consequential human right issue or question which emanates or seeks to unravel another question. The Fundamental Right claim involved must not be a claim that is an offshoot of the main claim. The Fundamental Right Claim must be the main or principal claim in the suit. See GAFAR VS KWARA STATE GOVT (2007) NSCQR VOLUME 29 PAGE 34; UNILORIN VS OLUWADARE (2006) NSCQR VOLUME 27 PAGE 18; EGBUONU V BOMO RADIO TELEVISION CORPORATION (1991) 2 NWLR 81 AT P.90; SEA TRUCKS NIGERIA LIMITED VS ANIGBORO (2001) NSCQLR VOLUME 5 PAGE 120.
In LAGOS SHERATON HOTEL VS HPSSSA (SUPRA), His Lordship, Per OSEJI, JCA (as he then was) admonished Litigants to refrain from trying to circumvent the provisions of Section 243 (2) of the 1999 Constitution of the Federal Republic of Nigeria under any guise to appeal the decision of the National Industrial Court in matters they are not allowed to appeal against. His warning is endorsed and he stated thus:
“…. Litigants who seek to circumvent or evade the provisions of Section 243(2) and 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 underestimate 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.”
However, the other three (3) Grounds of Appeal stated on the Notice of Appeal, have no semblance of Fundamental Right and as such require the leave of the lower Court to appeal. A perusal of the Records of Appeal shows that there was no Application for leave to appeal that was filed and granted, and as such no leave of Court to appeal the decision of the lower Court is part of the Records of Appeal. Thus there is no leave to appeal the Grounds listed in the Notice of Appeal. Failure to seek the leave of the lower Court to appeal these Grounds have grave consequences.

Thus it is trite that where there is no leave of Court to appeal a decision of the lower Court, when it is required to obtain before appeal, such appeal is incompetent and liable to be struck out. That is the consequence of the failure to seek the leave of Court to appeal when leave is required. See EHINLANWO VS OKE & ORS (2008) LPELR-1054 (SC), IKWEKI & ORS VS EBELE & ANOR (2005) LPELR-1490 (SC); NWADIKE VS IBEKWE (1987) 4 NWLR (Pt. 67)
Where a statute specifies that leave of Court is required to file an appeal, failure to obtain the leave of Court to appeal robs the Appellate Court of jurisdiction and jurisdiction is fundamental to in every adjudication.
In ABDULKARIM VS INCAR (NIG) LTD. (1992) LPELR-26 (SC), the Supreme Court per UWAIS JSC held:
“As no leave to appeal to the Court of Appeal was obtained, the appeal before this Court is incompetent. The Court of Appeal had no jurisdiction to entertain the appeal. The decision of the Court of Appeal is null and void. There is therefore no appeal before this Court.”
Further reference is made to the Supreme Court Authorities of SAMPSON UKPONG & ANOR VS COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT & ANOR (2006) 12 SCNJ AT 129 AND DR. ABDUL VS CPC & ORS (2013) 5 SCNJ AT PAGE 378.

From the foregoing, this appeal cannot be considered as an appeal based on questions relating to Fundamental Rights and as such, there is no valid appeal before this Court with respect to the Grounds as they are incompetent. There is also no pending Application for leave to appeal before this Court and therefore, this Court lacks the jurisdiction to determine the appeal as presently constituted. The objections being fundamental and jurisdictional, it would be an academic exercise to venture into the substance of the main appeal.

Consequently, the Preliminary Objection raised by Learned Counsel representing the 1st Respondent is Upheld and resolved in favour of the 1st Respondent and against the Appellant. The appeal is hereby struck out for want of jurisdiction having been filed without the leave of the lower Court.

On the off chance that the appeal is proper before this Court, the merit of the Substantive Appeal will be examined.

ISSUES FOR DETERMINATION
Now having perused the Issues for Determination raised by the Learned Counsel across the divide, this Court will subsume the Four (4) issues raised by the Appellant with the Two (2) Issues raised by the Respondent to determine the appeal in the following manner: –
1. Whether the lower Court was right and did not exceed its jurisdiction to deny the Appellant a fair hearing in its approach to the conclusion it reached in respect of the Appellant’s Exhibits G – G2 and H – H6, which related to the discrepancy in the figures N45,000,000.00, N55,000,000.00 and N420,000,000.00
2. Whether the lower Court was right when it failed to exercise its discretion under the law and call on the Appellant to address it on Exhibits G-G2 and H – H6 as well as call Oral Evidence before making a finding of the conflicting figures in the Exhibits and further whether it was right to refuse to hold that these Exhibits take on the character of Collective Agreements.
3. Whether the lower Court was right when it failed to act on the Appellant’s unchallenged Affidavit Evidence to give judgment dismissing the Appellant’s case on the ground that the Appellant did not make out a case.
4. Whether the lower Court was wrong in holding that its interpretative jurisdiction should not be used to settle triable Issues.

For the purposes of a consistent flow in the analysis, this Court will treat Issues 1, 2 and 3 initially and then proceed to determine Issue Four (4).

Arguments of Counsel on Issues 1, 2 and 3
It is worthy of note that Learned Counsel representing the Appellant, in his Written Address argued his Issues 1, 2 and 3 in one steady stream and separately argued his Issue 4, while the Learned Counsel representing the Respondents, submitted on his own Issues seriatim.

On Issues 1, 2 and 3, Learned Counsel to the Appellants submitted that the lower Court went into the contents of Exhibits G-G2 and H – H6 and doubted their efficacy, due to the conflicting figures. Having found out that its interpretative jurisdiction could not be used to settle triable Issues, it ought to have struck out the case for want of jurisdiction. He then submitted that the trial Court ought to have called the Appellant to orally explain the conflicting figures of N45,000,000, N55,000,000 and N420,000,000 it spotted in the documents. Further, by going through the merit of the Affidavit Evidence, it failed to determine the issues raised because of the discrepancies in the Exhibits and therefore, acted erroneously by dismissing the suit. He relied on CHIEF JAMES NTUKIDEM & ORS VS CHIEF OKO & ORS (1986) 12 SC 126 AT 127. He further stated that the trial Court failed to evaluate the Affidavit Evidence and the Exhibits before it, relying on the Authorities of NKPA VS NKUME (2001) 6 NWLR (PART 710) PAGE 543 AT 559; COLLINS VS VESTRY OF PADDINGTON (1880) 5 QBD 380.

According to Counsel, the trial Court undermined the Affidavit Evidence by doubting the names of the workers, despite the fact that the 1st Respondent did not dispute the details of the workers.

Finally, he submitted that the Procedure adopted by the lower Court deprived the Appellant of fair hearing when it failed to invite them to address it on the conflicting figures and urged this Court to resolve Issues 2, 3 and 4 in his favour.

Conversely, Learned Counsel to the 1st Respondent submitted that some of the members of the Appellant were at one time in the employment of the 1st Respondent until it encountered difficulties. He further submitted that the question before the Court was whether Exhibit G – G2 and H – H6 take the character of a Collective Agreement. He relied on Section 48 of the Trade Dispute Act and the Case Law Authority of RECTOR, KWARAPOLY VS ADEFILA (2007) 15 NWLR (PART 1095) PAGE 42 AT 92 to argue that Exhibits G – G2 and H – H6 do not take the form of Collective Agreement.

Learned Counsel further submitted that the documents fall within the realm of the Law of Contract since the 1st Respondent entered into a contract with the 2nd Respondent. The Appellant was not a Party to the Agreements and as such, cannot enforce it due to the doctrine of Privity of Contract. He relied on BORISHADE VS NBN LTD (2007) 1 NWLR (PART 1015) PAGE 217 AT 249.

RESOLUTION OF ISSUES 1, 2, and 3.
Now, fair hearing means trial of a case or conduct of proceedings according to all relevant Rules for ensuring Justice. Therefore, fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. The true test of fair hearing is the impression a reasonable person present at the trial would form that justice was done in the case.
In MOHAMMED VS ABU ZARIA (2014) 7 NWLR (PART 1407) PAGE 500 AT PAGE 531, this Court per ORJI-ABADUA JCA explained the concept of Fair Hearing as follows:
“Fair hearing entails giving somebody an opportunity to explain his actions. It is one in which authority is fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. Fair hearing contemplates the right to present evidence, to cross-examine and to have findings supported by evidence. It can be likened to a fair and impartial Trial. It is a proceeding which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, consideration of evidence and facts as a whole. Where principles of fair hearing are observed, there is, invariably, an atmosphere of calm in which witnesses can deliver their testimony without fear and intimidation, in which counsel can assert the accused’s rights freely and fully, and in which the truth may be received and given credence without fear of violence.” See also ANPP VS INEC (2004) 7 NWLR (PART 871) 16; SALEH VS MONGUNO (2003) 1 NWLR (PART 801) 221; EZECHUKWU VS ONWUKA (2006) 2 NWLR (PART 963) 151.

In this instant appeal, one of the grievances of the Appellant was that the trial Court exceeded its jurisdiction by denying it fair hearing due to its failure to ask the Appellant to explain the discrepancies in regard to Exhibits G-G2 and H – H6, before it made its findings thereby breaching its right to fair hearing.

The Learned Trial Judges held as follows:
“The Applicant was expected to address the Court on the Issue of whether Exhibits G – G2 and H – H6 can be said to be part of the Collective Agreement in issue, given that what the Applicant did was to activate the Interpretation Jurisdiction of the Court. Unfortunately, the Applicant failed to do this. Instead, it assumed that the two documents are necessarily applicable without more and took the character of a Collective Agreement for which this Court should hold the Respondent liable.
Even assuming the Exhibits G–G2 and H–H6 are applicable to the matter at hand, their contents are such that raised doubts as to their efficacy. In the first place, Exhibit H – H6 in the recital, talks of 45,000,000; but in Schedule III, it talks of N55, 000,000. Secondly, the same Exhibit in Clause 2A talks of the transferor covenanting with the Transferee ‘To pay and discharge unto the Transferee the sum of N420,000,000.00… which the sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein.’ Nowhere did the Applicant establish that this said sum has been paid by it to warrant the 2nd Respondent to make the payments that the Applicant is praying for”

The Appellant argued that trial Court raised doubts to the efficacy of Exhibits G – G2 and H – H6 without asking the Appellants to explain the discrepancies.

It is pertinent to note that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the Parties, particularly the Party that may be adversely affected by the Issue raised See MOJEKWU VS IWUCHUKWU (2004) 11 NWLR (PART 883) PAGE 196; LEADERS & COMPANY LTD VS BAMAIYI (2010) LPELR 1771; INAIFE VS DAUKURO & ORS (2019) LPELR – 48669 CA; OMOTOSO VS AKOGUN & ORS (2018) LPELR 46368 CA.

Now, the trial Court perused Exhibits H – H6; G-G2 from the Originating Processes, which constitutes evidence for consideration. However, the presence of these pieces of evidence will not detract from the fact that they must be established as the correct state of facts. The trial Court is empowered and must evaluate, assess the credibility and veracity of each and every piece of Evidence adduced before him.
In CPC VS INEC & ORS (2011) LPELR – 8257 (SC), the Supreme Court Per ADEKEYE, JSC held as follows:
“The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence. The Court must ensure that it holds the string or scale of justice evenly balanced between the parties, so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence. It is the trial Court which alone has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion.” See also AYUYA & ORS v. YONRIN & ORS (2011). LPELR-686(SC); SHA & ANOR VS KWAN (2000) 8 NWLR (PART 670) PAGE 685; ADAMU & ORS v. STATE (1991) LPELR-73(SC); AJAGBE v. IDOWU (2011) LPELR-279(SC).
From the foregoing Judicial Authorities, it can be seen that where documentary evidence is in issue, the Court is duty bound to evaluate the evidence before it, as the judgment must be confined to facts and issues raised by the Parties.

It should be noted that the Parties relied on the Tripartite Deed of Assignment and Tripartite Deed of Loan as well as the Transfer Agreement, all marked as Exhibits G – G2 and H – H2 respectively for the determination of the question on whether the said Exhibits can be said to be part of the Collective Agreements. The effects and implication of the Exhibits were one of the questions for determination by the trial Court and the lower Court was duty bound to determine the effects of these Agreements. Reviewing the contents of the judgment above, it is clear that the trial Court did not raise an issue suo motu, it only evaluated the said Exhibits relied on by the Parties, and interpreted the Agreements, drawing inference from them to determine whether, they indeed took on the character of a Collective Agreement.
In ENEKWE VS IMB (NIG) LTD (2006) 19 NWLR (PART 1013), the Supreme Court Per NIKKI TOBI JSC held as follows:
“Learned counsel heavily descended on the expressions: ‘infinitesimally insubstantial tenuous, maliciously dubious and transitory in nature.’ To learned counsel, the expressions are tantamount to raising new issues suo motu by the Court of Appeal. While I agree that counsel is free and at liberty to attack dictum or dicta in a judgment, he has a duty to read the entire judgment very carefully before he embarks on a tirade on words used by the Judge.
A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. In other words, the Court of Appeal cannot be accused of raising issues suo motu, if the issue was canvassed at the Trial or on Appeal.
The trial Court only raised its observation about the contents of the Agreements to determine the efficacy of the Agreement and whether they took on the character of a Collective Agreement. Thus the observations of the trial Court in this regard cannot be said to be an Issue raised suo motu.

Furthermore, the Appellant in his adoption of his Written Address as seen in Page 105 of the Record of Appeal, failed to address the trial Court on the question of whether the stated Exhibits could be said to be part of the Collective Agreement. Rather, he countered the Written Address of the 1st Respondent, asking the trial Court to discountenance the arguments therein on the Grounds that it was a way of re-opening issues that had already been resolved in its favour by the trial Court. Further still, he argued that by the Agreements entered into between the two Respondents, they are jointly and severally liable to the Appellant. According to him, the Appellant had the opportunity of addressing the Court on the efficacy of the said Exhibits G – G2 and H – H6 as part of the Collective Agreement but failed to do so. Consequently, it cannot turn around and complain that it was denied the right of fair hearing.
His Lordship Per NIKI TOBI, JSC in ADEBAYO VS AG OGUN STATE (2008) LPELR (80) warned Counsels to refrain from misusing fair hearing to divert the attention of the Courts from the main issues in a suit as follows:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. 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 Court 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 the fair hearing constitutional provision alone because it is not available to them just for the asking.”
From the foregoing, it is clear that Learned Counsel to the Appellant had the opportunity to explain to the trial Court whether or not the Agreements could be classified as a Collective Agreement but slept on his rights. He cannot therefore complain that he was denied the right to fair hearing, when he had the opportunity to explain the relevance of the Agreements. It is not the responsibility of a trial Court to ensure that a Party takes advantage of the environment by involving himself in the Proceedings. A Party who had the opportunity to explain the relevance of the Exhibits he attached to his pleadings cannot turn around and accuse the trial Court of denying him fair hearing. See BELLO VS THE STATE (2020) LPELR–50287 CA; MUTUAL BENEFIT ASSURANCE VS ACCESS BANK (2021) LPELR–52791 CA; PAX EDUCATION RESOURCES VS FRN (2020) LPELR–51181 CA; ORIENTAL ENERGY RESOURCES VS HERCULES OFFSHORE (NIG) LTD (2020) LPELR–50873 CA.

Furthermore, the trial Court is not under any obligation to call Counsel to the Parties to address it on whether Exhibits admitted should be ascribed probative value.
In REVEREND KING VS THE STATE (2016) LPELR–40046 (SC), the Supreme Court Per NGWUTA, JSC held as follows:
“The exhibits and oral evidence were received by the trial Court. The trial Court did not need address from Counsel to the parties to decide whether or not a piece of evidence and exhibits admitted should be ascribed probative value, nor are Counsel to the parties entitled to be heard in the evaluation of the evidence before the Court”
Thus from the foregoing, the trial Court has not breached the Appellant’s right to fair hearing as it is not under any obligation to call the Parties to address it in its evaluation of evidence before it. The Court did not exceed its jurisdiction in its conclusion on the Agreements.

Now having resolved that the trial Court had not breached the Appellant’s right to fair hearing, the next question is to determine if the trial Court was in error for refusing to hold that Exhibits G – G2 and H – H6 take the character of Collective Agreements.

Section 48 (1) of the Trade Disputes Act defined Collective Agreements as follows:
“(1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say- “collective agreement” means any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between-
(a) An Employer, a Group of Employers or one or more Organizations representative of employers, on the one hand; and
(b) One or more Trade Unions or Organizations representing Workers, or the duly appointed Representative of any Body of Workers, on the other hand;”
From the foregoing definition, the ingredients of a Collective Agreement are that:
1. The Agreement must be in writing.
2. The Agreement must be for settlement of disputes.

3. The Agreement must relate to terms of Employment as well as physical working conditions.

4. It must be between an Employer or a Group of Employers or their Representatives on one hand and on the other hand one or more Trade Unions representing the Workers or an Appointed Representative of Workers.
The four ingredients must co-exist for it to be termed as a Collective Agreement.
Furthermore, in OSOH & ORS VS UNITY BANK PLC (2013) LPELR – 19968 (SC), the Supreme Court per CHUKWUMA-ENEH JSC, further explained the features of a Collective Agreement as follows:
“The provisions of Section 47(1) (supra) however require collective agreements to be in writing so as to formalize the agreements. What has further emerged from the definition with respect to many cases of “collective agreements” is that where they have created legal relations giving rise to contractual obligations between the parties, they are enforceable by the immediate collective parties (i.e. between an employer or an employers’ organization and a trade union or Unions) but as between the employers and the workers as the respondent and appellants here, it is only so where they have been incorporated into the contracts of employment of the employees so as to be actionable for any breaches arising therefrom at the suit of either party to the contractual relationship. Otherwise, they are no more than mere vague inspirational terms which are bound to present practical problems of enforcement and the best method being to use political or trade union pressure to bring about their enforcement. The other notable, crucial feature of collective agreements arising from their being the products of the joint negotiating bodies of workers’ representatives and the employer’s representatives and in that regard being in writing is raising the presumption of being legally enforceable provided the agreements have created contractual obligations arising out of legal relations as between the parties.”

Exhibits G – G2 is a Tripartite Deed of Assignment between the 1st Respondent, 2nd Respondent and Shell Petroleum Development Company Limited. Exhibit H – H6 is a Tripartite Deed of Loan and Transfer Agreement between the 1st Respondent, 2nd Respondent and ESI Engineering International Nigeria Limited. A perusal of both Agreements shows that the Appellant is not a Party to the Agreements. Both Agreements are Contractual Agreements entered by the respective Companies in their own capacities. The workers are not represented in the Agreement. The Terms of the Agreement have nothing to do with settlement of disputes relating to terms of Employment and physical working conditions.

From the foregoing, Exhibits G – G2 and H – H6 do not fall under the definition of Collective Agreements as defined in Section 47 of the Trade Disputes Act. The Agreements falls under the realm of Law of Contract as the 1st Respondent entered into a contract with the 2nd Respondent assigning its liabilities to the 2nd Respondent. The question is whether the Appellant is entitled to enforce the Agreements?
In BASINCO MOTORS VS WOERMANN – LINE & ANOR (2009) LPELR – 756 (SC), the Supreme Court Per ADEKEYE, JSC explained the Doctrine of Privity of Contract as follows:
“From the forgoing, it becomes really necessary to explain what is privity of contract. The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his… him liable upon it. Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be used upon the contract.” See NEGBENEBOR VS NEGBENEBOR 1971 1 ALL NLR 210; IKPEAZU VS A.C.B LTD 1965 NMLR 374; K.S.O. ALLIED PRODUCTS LTD VS KOFA TRADING CO LTD (1996) 3 NWLR PART 436 PAGE 244 ALFOTRIN LTD VS A.G. 1996 NWLR PART 475 PAGE 634.

In this instant case, the Contractual Agreement is only enforceable between the Respondents. The Appellant in this instant case is not a Party to the Tripartite Agreement and as such cannot enforce the Contract due to the doctrine of Privity of Contract.

Consequently, the Appellant cannot enforce the Contract Agreement entered between the 1st and 2nd Respondents in respect of Exhibits G – G2 and H – H6. The trial Court was therefore right in refusing to hold that the said Exhibits took the character of a Collective Agreement.

Issues 1, 2 and 3 are hereby resolved in favour of the Respondents and against the Appellant.

ARGUMENTS OF COUNSEL IN RESPECT OF ISSUE 4
In arguing Issue 4, Learned Counsel summarized the Claim before the lower Court and the Preliminary Objection on the jurisdiction of the lower Court. He relied on the Case Law Authorities of NATIONAL UNION OF HOTELS AND PERSONAL SERVICE WORKERS VS WHASSAN EUREST NIGERIA LTD (2005) 2 NWLR (PART 4) PAGE 145 AT 154; CHEMICAL & NON-METALLIC PRODUCTS SSA VS BCC (2005) 2 NWLR (PART 6) PAGE 446 AT 470. He submitted that the summary of the Respondents’ Defence to the Appellant’s claim was that there was ‘no cause of action’ relying on KALANGO VS DOKUBO (2003) 15 WRN 3 PAGE 32 AT 78; SONA BREWERIES PLC VS SIR SHINA PETERS & ANOR (2005) 1 NWLR (PART 908) PAGE 478 AND CBN VS SYSTEMS APPLICATIONS PRODUCTS NIG LTD (2005) 3 NWLR (PART 911) 153.

Learned Counsel to the Appellant argued that based on the Common Grounds between the Appellant and the 1st Respondent, which was unchallenged by the 2nd Respondent, the lower Court had enough materials to interpret the Collective Agreement, make a declaration and an order for payment of the said N45 Million or decline both reliefs for stated reasons. However, after holding that it had the jurisdiction to hear the matter, failed to interpret Exhibits G-G1 and H-H6 as a Collective Agreement and also failed to make an Order as to the Liability of the Respondents to pay the said N45 Million. On the contrary, the lower Court held that the Appellant assumed that the two documents are necessarily applicable, without more and took the character of a collective agreement for which the Court should hold the Respondents liable.

Learned Counsel to the Appellant contended that the Respondents did not raise any Issue as to the applicability of the Exhibits attached. Therefore, the lower Court erred when it expected the Appellants to address it on the undisputed Exhibits as to their efficacy but failed to do that.
Finally, he submitted that the Court contradicted itself by holding that the Appellant failed to make out a case and yet held that it cannot through its interpretative jurisdiction try triable issues. Therefore he urged this Court to find in their favour on this Issue.

Conversely, the Learned Counsel to the Respondents relied on Section 20 of the Trade Dispute Act and Case Law Authority of ADESOYE & 5 ORS VS GOVERNOR OF OSUN STATE & ANOR (2005) 16 NWLR (PART 950) PAGE 1 AT 21 – 22 to state that the National Industrial Court has the jurisdiction to determine questions relating to Collective Agreements. Further reliance was placed on ABDULRAHEEM VS OLORUNTOBA –OJU (2006) 15 NWLR (PART 686) PAGE 581 AT 624

He submitted that the jurisdiction of the National Industrial Court lies only with the Interpretation of a Collective Agreement and nothing more. The Reliefs sought by the Appellant at the lower Court are therefore ultra vires the powers of the National Industrial Court as provided for by Section 20 of the Trade Disputes Act, LFN 1990. He cited and relied on the Case Authority of ATTORNEY GENERAL OF OYO STATE VS NIGERIA LABOUR CONGRESS & ORS (2003) 8 NWLR (PART 821) PAGE 1 AT 28.

Finally, Learned Counsel to the Respondent argued that the Appellant attempted to get the lower Court to grant declaratory reliefs under the guise of interpreting a Collective Agreement and to make an Order, which is outside the jurisdiction of the trial Court. Reference was made to KALANGO VS DOKUBO (2003) 15 WRN PAGE 32 AT 78. He urged this Court to hold that the lower Court was right to restrict itself to its interpretative jurisdiction and not to go ultra vires its jurisdiction in granting the declarations and order sought by the Appellant and urged this Court dismiss the appeal of the Appellant on this Issue.

RESOLUTION OF ISSUE 4
Now, Section 48 of the Trade Dispute Act defines Trade Disputes as follows:
“Trade Dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person;”
Thus for a dispute to come under the definition of a Trade Dispute, the following ingredients must be present:
1. There must be a dispute
2. The dispute must involve a trade
3. The dispute must be between
a. Employers and Workers
b. Workers and Workers
4. The dispute must be connected with:
a. Employment or Non-employment
b. Terms of Employment
c. Physical conditions of work of any persons. See NURTW VS NWEKE OGBODO & ORS (1998) 2 NWLR (PART 537) PAGE 191.
All these four conditions must coexist to cloth the National Industrial Court with the jurisdiction to entertain the matter.

In this instant case, there is a dispute between the 1st Respondent and the Appellant with some of its members working as employees with the 1st Respondent. The dispute relates to the employment of the Appellant and as such, it falls under the provisions of Section 48 and Section 15 of the Trade Disputes Act.

This now leads to question as to whether or not the National Industrial Court can hear Applications seeking Declaratory Reliefs or Injunctive Orders.

The importance of jurisdiction in the adjudication of a matter cannot be over-emphasized. Without it, the Court will operate in futility. It is the power of the Court to adjudicate on a matter. It cannot be underrated for the purpose of litigation. See SALISU V MOBOLAJI (2014) 4 NWLR (PT 1296) 1 AT 6; NSL LTD V ATTORNEY GENERAL OF LAGOS STATE (2009) 11 NWLR (PT 1152) PAGE 304 AT 306, KURMA V SAUWA (2019) 13 NWLR (PT 1659) PG 247; GT INVESTMENT LTD V WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500.

The fundamental principle in determining whether a Court has the jurisdiction to hear a matter is to examine the claim as stated in the Writ of Summons or endorsed in the Statement of Claim. See ADETAYO & ORS VS ADEMOLA (2010) LPELR – 155 SC, WAMBAI VS DONATUS & ORS (2014) LPELR 23303 – SC, OBI VS INEC (2007) LPELR 24347-SC, ADETONA & ORS VS IGELE (2011) LPELR – 159 SC.

To successfully determine whether the National Industrial Court had the requisite jurisdiction to entertain the matter at hand, recourse must be had to the enabling Statute, which is the National Industrial Court Act of 2006.
Section 7 (1 A and C) of the National Industrial Court Act 2006 provides for the jurisdiction of the National Industrial Court as follows:
“(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to- (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(c) relating to the determination of any question as to the interpretation of- (i) any collective agreement, (ii) any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute, (iii) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv) any trade union constitution, and (v) any award or judgment of the Court.”
From the interpretation of Section 7 (1C), the National Industrial Court only has the jurisdiction to entertain matters relating to questions as regards the interpretation of Collective Agreements, any award made by an Arbitral Tribunal, Terms of Settlement of any Labour Dispute, Trade Union Constitutions and Award or Judgment of the Court. There is nothing in the said Section that gives the National Industrial Court the jurisdiction to make declaratory reliefs or injunctive orders.
It is settled law that the express mention of specific things is to the exclusion of other things. That is Expressio Unius Est Exclusio Alterius – Thus things not mentioned in a Statute is a clear intention that they are not intended to be included. Reference is made to the decided Case Authorities of PDP & ANOR VS INEC & ORS (1999) LPELR-24856 (SC), SHINKAFI & ANOR VS YARI & ORS (2016) LPELR-26050 (SC), PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS VS MIGFO (NIG) LTD & ANOR (2012) LPELR-9725 (SC), BUHARI & ANOR VS YUSUF & ANOR (2003) LPELR-812 (SC).
This Principle is applicable to the interpretation of Section 7 of the National Industrial Court Act 2006.
The fact that the jurisdiction of the National Industrial Court does not include the Powers to make Declaratory Reliefs and injunctive orders, shows that the Drafters of the National Industrial Court Act never intended to include such powers in the provisions of the National Industrial Court Act.
Thus from the foregoing, the National Industrial Court does not have the jurisdiction to make declaratory reliefs and injunctive orders.
In OLORUNTOBA OJU VS ABDULRAHEEM (2009) 13 NWLR (PART 1157) PAGE 83 AT 127, the Supreme Court Per ADEKEYE, JSC held as follows: “Section 15 of the Trade Dispute Act, 1976 which confers jurisdiction on the National Industrial Court does not include jurisdiction to make declarations or to order an injunction. In other words, considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, the Court lacks the competence to make Declarations and Orders of Injunction” See also WESTERN STEEL WORKS VS IRON STEEL WORKERS (1987) 1 NWLR (PART 49); AG OYO STATE VS NLC (2003) 8 NWLR (PART 821) PAGE 1.
Therefore, this Court, in compliance with the dictum of Her Lordship, would hold that the National Industrial Court only has the jurisdiction to interpret Collective Agreement and does not have the competence to make declarations or order an injunction. The Appellant hid under the cover of Interpretation and Fundamental Rights to seek a declaration that the Respondents are indebted to it and also wanted the trial Court to order the Respondents to pay it. The trial Court was right in holding that its interpretative jurisdiction should not be used to settle triable issues.

On the strength of the foregoing analysis, coupled with the fact that this Court has upheld the Preliminary Objection raised by the 1st Respondent against this suit, this appeal is incompetent and is accordingly dismissed.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Adebukunola Adeoti Banjoko, JCA. I endorse in toto the legal reasoning and conclusion in it. l, too, strike out the appeal for being incompetent. I abide by the consequential orders decreed in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft, the judgment just delivered by my learned Brother ADEBUKUNOLA ADEOTI BANJOKO, JCA. I uphold the Preliminary Objection and also dismiss the appeal.