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NCSU v. EKASA & ORS (2022)

NCSU v. EKASA & ORS

(2022)LCN/17188(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/A/1089/2019

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

THE NIGERIA CIVIL SERVICE UNION APPELANT(S)

And

1. COMRADE BENSON EKASA 2. COMRADE MENELE ZIADAM NZIDE 3. THE REGISTRAR OF TRADE UNION RESPONDENT(S)

 

RATIO

THE CARDINAL PRINCIPLE OF FAIR HEARING

Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. See ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC); SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED).
A party has a choice in the mode and manner of conducting the prosecution and or defence in a suit. What is paramount is that the Court must have afforded all parties equal opportunity to present or defend their cases. Therefore, if a party had an opportunity of being heard but did not utilize it, he cannot complain of breach of fair hearing. See AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414 (SC).
The question of fair hearing is not just an issue of dogma. Fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. Therefore, whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. It is wrong and improper to approach the meaning of fair hearing by placing reliance on any prior assumptions. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded the parties.
The Court has two competing interests to contend with when considering an application such as this. The need to dispose of the case speedily vis-a-vis the right of both parties to be heard on the matter. These two great interests have often been expressed with the fact that justice delayed is justice denied and at the same time you cannot sacrifice justice on the altar of speed. Therefore, the Court must of a necessity negotiate a balance between the two competing interests while being guided by the need to do substantial justice.
PER ONYEMENAM, J.C.A. 

WHETHER OR NOT THE MISTAKES OF A COUNSEL CAN BE VISITED ON THE LITIGANT

I quite agree as it is settled that the inadvertence of counsel cannot be visited on the litigant. See RASAKI V. AJIJOLA (2018) 7 NWLR (PT. 1617) 13 (SC). However, it is pertinent to distinguish inadvertence of counsel from the ineptitude of counsel. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. See MALARI V. LEIGH (2019) 3 NWLR (PT. 1659) 332 (SC); G.T.B. V. EST MASTER CONSTR. LTD. (2018) 8 NWLR (PT. 1622) 483 (SC); N.N.P.C. V. SAMFADEKSONS LTD. (2018) 7 NWLR (PT. 1617) 1 (SC); ORE V. AKANBI (2021) 14 NWLR (PT. 1795) 1 (CA). The burden of proving inadvertence of counsel lies on the applicant. He has to prove the existence of such inadvertence of counsel. See N.N.P.C. V. SAMFADEKSONS LTD (2018) 7 NWLR (PT. 1617) 1 (SC); SECTIONS 132 AND 133 OF THE EVIDENCE ACT, 2011. Thus, where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel, for if the strategy had worked, both the counsel and his client would take full credit.  PER ONYEMENAM, J.C.A. 

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the authority a Court has to decide matters or to take cognizance of matters presented before it. It is fundamental and can be raised at any time. See SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31 (SC), BAKARI V. OGUNDIPE (2021) 5 NWLR (PT.1768) 1 (SC), BELGORE V. F.R.N (2021) 3 NWLR (PT.1764) 503 (SC), SULAIMAN V. F.R.N. (2020) 18 NWLR (PT. 1755) (SC), PRICE WATER HOUSE V. MOMOH (2020) 18 NWLR (PT. 1755) 32 (CA); SHITTA-BEY V. A.-G., FED. (1998) 10 NWLR (PT. 570) 392 REFERRED TO. (P. 199, PARAS. F-G).
​Every Court is endowed with jurisdiction by Statute or Constitution and where a Court exercises jurisdiction in a matter which it does not have jurisdiction, the decision from such an exercise is a nullity. See MUYIDEEN V. N.B.A. (2021) 13 NWLR (PT. 1794) 393 (SC); BOT V. JOS ELECTRICITY DISTRIBUTION PLC (2021) 15 NWLR (PT. 1798) 53 (SC); IHIM V. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 (SC); T.C.N., P.H.C.N. V. A.S.B.I.R. (2021) 1 NWLR (Pt. 1757) 207 (CA).
Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. See MADUKOLU V. NKEMDILIM (2006) 2 LC 2081961) NSCC (VOL. 2) 374 AT 379; TUKUR V. TARABA STATE (1997) 6 SCNJ 81. PER ONYEMENAM, J.C.A. 

THE PRINCIPLE OF LAW ON WHERE AN APPEAL HAS BEEN ENTERED

The principle of law that where an appeal has been entered, by which act the record of appeal compiled in the lower Court is transmitted to the registry of the Court of appeal, the trial Court is functus officio and ceases to have any control over the matter in question; is settled in law. See MEKWUNYE V. CARNATION REGISTRARS LTD. (2020) (CA). Therefore, the Court of appeal only becomes seised of the whole proceedings in a case after an appeal has been entered and until the appeal has been finally disposed of. Once the record of appeal is before the Court of appeal and the appeal is listed, it is at that stage considered entered and the Court of appeal assumes exclusive jurisdiction over it. See A.P.C. V. UDUJI (2020) 2 NWLR (PT. 1709) 541 (SC); VAB PETROLEUM INC. V. MOMAH (2013) 14 NWLR (PT. 1374) 284 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA). PER ONYEMENAM, J.C.A. 

WHETHER OR NOT STAY OF PROCEEDINGS IS A DISCRETIONAL POWER OF THE COURT

Most importantly is the fact that stay of proceedings is a discretionary power of the Court. It is not exercised as a matter of right and definitely cannot be exercised in favour of a Contemnor. A Contemnor who does not obey or is in disobedience of a Court order cannot be entitled to be granted the indulgence of the exercise of the equitable jurisdiction of a Court of law. A party in disobedience or in contempt of the order of a competent Court of law cannot be allowed any relief sought in equity as he that comes to equity must come with clean hands. See GOVERNOR OF LAGOS STATE V. OJUKWU 1986 1 NWLR where the Supreme Court of Nigeria deprecating such an erring and aberrant party or litigant held that the Court cannot exercise its equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching the Court is merely one that is out to taunt the Court. May that day never come when a judicial officer shall lend judicious helping hand to a taunting and disobedient litigant. Certainly, the Appellant herein could not be granted such judicial help.  PER ONYEMENAM, J.C.A. 

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The National Industrial Court of Nigeria Per Sanusi Kado, J., delivered a judgment on 25th October, 2019 in suit number: NICN/ABJ/31/2016 wherein the learned trial Judge entered judgment in favour of the 1st and 2nd Respondents.

The 1st and 2nd Respondents herein at the trial Court instituted the action by an Originating Summons filed on 27th January, 2016. By an order of Court that pleadings be filed, the 1st and 2nd Respondents converted the Originating Summons into a Complaint wherein they sought inter alia; an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted, etc.

​The 1st and 2nd Respondents also filed a motion for interlocutory injunction to restrain the Appellant from holding a National Delegates Conference and from conducting an election into executive positions of the Appellant at the said conference as the same will allegedly render the judgment of the Court when delivered nugatory. The Court ordered that no party should do anything to affect or jeopardize the hearing and determination of the application. The Appellant with some of her executives in disobedience to the Court order on 25th and 26th January, 2018; conducted a National Delegates conference wherein it conducted elections and appointed new executives for the Appellant and amended the constitution of the Appellant. Subsequently, the Court on 6th February, 2018 delivered its ruling which restrained the Appellant from holding the National Delegates Conference and from conducting elections pending the determination of the substantive suit. Meaning, the Appellant having already held the National Delegates Conference and elected new executives rendered the ruling of the trial Court on the interlocutory application nugatory. Aggrieved by this act of the Appellant, the 1st and 2nd Respondents brought an application seeking for an order nullifying the election of the Appellant and a committal order against the Appellant. Consequently, the learned trial Judge nullified the Delegates Conference and election of the Appellant held while there was a subsisting valid Court Order and ordered for summons to be issued against the president of the Appellant to appear before the Court to show cause why he should not be sanctioned by the Court for disobedience of a Court order. The Appellant and his President filed an Interlocutory appeal with Appeal number CA/A/1131/2018 against the said Court ruling delivered on 1st November, 2018, through a law firm led by Anthony Idikwu Ebah Esq.

The trial Court delivered its judgment on 25th October, 2019 and held as follows:
“…From the foregoing, as it is, and for the reasons given the Claimants have succeeded only in part and failed in some part of their claims. For proper appreciation and clarity, the orders of the Court are as follows:
1. An order is hereby granted nullifying the expulsion of the 1st Claimant from the 2nd Defendant.
2. An order is hereby granted reinstating the 1st Claimant back to the membership of the 2nd Defendant with all the rights and privileges of a member.
3. Reliefs 3, 4, 5, 7 and 8 are hereby refused and same dismissed for lack of proof.
4. An order is hereby made for the 3rd Defendant not to recognize and register any amendment of the Constitution of the 2nd Defendant or order to allow any amendment of the 2nd Defendant’s Constitution in order to allow any official of the 2nd Defendant to continue to act for the 2nd Defendant after his or her due retirement from the Civil Service of Nigeria, whether State or Federal
The case file is hereby returned to the honourable president of the Court for appointment of Public Trustee in line with Order 59 of the Rules of this Court.
Judgment is entered accordingly. I make no order as to cost.”

Dissatisfied with the judgment of the trial Court, the Appellant approached this Court via an amended Notice of Appeal dated 10th March, 2021 and filed on the same date but deemed properly filed and served on 26th March, 2021.

The learned Counsel on both sides filed relevant processes as required by the rules of the Court, the Appeal was then heard on 2nd December, 2021.

Olumide Philips, Esq., appeared with I. D. Bob Manuel Esq., for the Appellant.
Chinyere Moneme, Esq., appeared with Mukeng Nathan, Esq., for the 1st Respondent.
Mohammed Ndarani Mohammed, SAN appeared with Michael Eleyinmi, Esq., Clement Chukwuemeka Esq., Stephen Apeh Esq., Uchenna Chukwuemeka, Esq., and Raphael Ashwe Esq., for the 2nd Respondent.

The 3rd Respondent was not represented.

The Appellant applied to withdraw the appeal against the 3rd Respondent, it was granted. The name of the 3rd Respondent was accordingly struck out and the 4th Respondent became the 3rd Respondent.

Paul Kasim Esq., appeared with Daniel Akinwole Esq., for the 4th Respondent, now the 3rd Respondent.

The appeal was then argued.

Olumide Philips, Esq., for the Appellant adopted and relied on the Appellant’s brief of argument field on 10th March, 2021 but deemed properly filed and served on 26th March, 2021 in praying the Court to allow the appeal. The Appellant donated 4 issues for determination to wit:
1. “Having regard to the combined provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, whether the Court below breached the Appellant’s fundamental right to fair hearing when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile Counsel was not a qualified legal practitioner.
2. “Whether the lower Court was clothed with the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the appellant, subject of a pending Appeal in Appeal No. CA/A/1131/2018 touching on the same issue?”
3. “Having regard to the facts and law, whether the lower Court has the power to grant a consequential order not arising from the principal claims before it?”
4. “Whether the lower Court was right to base its decision to order for the appointment of a Public Trustee to oversee the administration and finances of the Appellant on the provisions of Section 19 of the National Industrial Court Act, 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 rather than Section 19(1) and (2) of the Trade Union Act, a specific statute governing trade union activities?

Chinyere Moneme, Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief filed on 16th June, 2021 in urging the Court to dismiss the appeal. The 1st Respondent formulated 4 issues for determination as follows:
1. Whether a defendant who neglected to take advantage of ample opportunities given to it by a Court to open its case and lead evidence in support of its pleadings can turn around to complain that it has been denied the right to fair hearing because his application to reopen his case on the mere assertion that his lawyer was a fake lawyer was refused?
2. Whether reference in the final judgment of a Court to the legal effect of its interlocutory order made in same suit to restore the parties to the status quo ante lite means that the Court has sat on appeal in respect the said order and whether the mere entry of an appeal against that interlocutory order operates as a stay of proceedings?
3. Whether Section 19 of the National Industrial Court Act, 2006, Order 59 Rule 1 of the National Industrial Court Rules 2017, and the inherent jurisdiction of Courts under the 1999 Constitution (3rd Alteration Amendment) imbues the National Industrial Court with power to suo motu appoint a public trustee in an intra-union dispute before it and whether the said power of the National Industrial Court can be exercised to do substantial justice between the parties?
4. Whether there is a conflict between the provisions of Section 19(1) and (2) of the Trade Unions Act and the provisions of Section 19 of the National Industrial Court Act 2006 & Order 59 of the National Industrial Court (Civil Procedure) Rules 2017 and whether the lower Court was right to base its decision to appoint a trustee to oversee the administration and finances of the Appellant on Section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court (Civil Procedure) Rules 2017.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent adopted and relied on the 2nd Respondent’s Brief filed on 24th June, 2021 in urging the Court to dismiss the appeal. The 2nd Respondent submitted 4 issues for determination to wit:
1. Whether from the circumstances of this case and conduct of the Appellant at the trial Court, it can be rightly concluded that the applicant was not accorded fair hearing by the trial Court.
2. Whether from the circumstances of this case, it can be validly concluded that the trial Court based its judgment on a ruling which is subject to appeal in Appeal No: CA/A/1131/2018, and thus occasioned a grave miscarriage of justice, putting into consideration the prayers of the Claimants in their complaint and the fact that the said Appeal No: CA/A/1131/2018, which is interlocutory was filed by a lawyer alleged to be fake by the appellant at the trial Court.
3. Whether the consequential order made by the trial Court in this case by way of appointment of a Public Trustee to manage the administration and affairs of the Applicant as ordered by the trial Court in the face of the emptiness in the leadership of the Appellant, does not flow from the principal claims of the Claimants in their Complaint, putting into consideration the reliefs of the Claimants, the circumstances of the case, visa vis the provisions of Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the Inherent jurisdiction of the Court to do justice at all times.
4. Whether the appointment of a Public Trustee by the President of the National Industrial Court pursuant to Section 19 of the National Industrial Court Act 2006 and Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 has occasioned miscarriage of justice to the Appellant and also in conflict with Section 19(1) & (2) of the Trade Union Act. Paul Kasim Esq., for the 3rd Respondent adopted and relied on the 3rd Respondent’s Brief filed on 17th June, 2021 in urging the Court to allow the appeal. The 3rd Respondent submitted 3 issues for determination to wit:
1. Whether the lower Court below breached the Appellant’s constitutional right of fair hearing entrenched in Section 36(1) of the 1999 Constitution when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile counsel was not a qualified legal practitioner?
2. Whether the lower Court was clothed with the requisite jurisdiction to make the consequential orders for the holding of a fresh National Delegates Conference for the Appellant, an issue that is the subject of a pending Appeal in Appeal No. CA/A/1131/2018.
3. Whether having regard to the facts of this case, the provision of National Industrial Court Act and Rule of National Industrial Court, relied on by the lower Court, the lower Court was right in granting the consequential orders appointing a public trustee to manage the finance and affairs of the Appellant and conduct a fresh National Delegates Conference for the Appellant, a relief not arising from the principal claim, before it?

From the grounds of appeal, I view that the four issues submitted by the Appellant being the initiator of the appeal will satisfactorily determine this appeal. I shall proceed to determine the appeal based on the said 4 issues.

SUBMISSIONS ON ISSUE 1
“Having regard to the combined provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, whether the Court below breached the Appellant’s fundamental right to fair hearing when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile counsel was not a qualified legal practitioner?”

Olumide Philips, Esq., on this issue submitted that a Court is obligated to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel and that the sins of counsel should not be visited on the litigant. He relied on OSINUPEBI V. SAIBU (1982) 7 SC 104; DOHERTY V. DOHERTY [1964] 1 ALL NLR 299; AHMADU V. SALAWU [1974] 11 SC 43; BOWAJE V. ADEDIWURA (1976) 6 SC 143; IROEGBU V. OKWORDU (1990) 6 NWLR (PT. 159) 643 AT 669B-F; OTAPO V. SUNMONU [1987] 2 NWLR (PT.58) 587; LONG JOHN V. BLAKK (1998) 5 S.C.N.J 81; MUFUTAU AKINPELU V. EBUNOLA ADEGBORE [2008] 10 NWLR (PART 1096) 531, 555 F-G.

He submitted that the trial Court breached the Appellant’s right to fair hearing when it refused to allow the Appellant’s re-open their case and enter proper defence even after informing the Court that its lawyer was fake. He cited CHUKWU V. OMEHIA [2013] 7 NWLR (PT. 1354) PG. 463, 479D AND N.I.W.A. V. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIAN LTD. [2008] 13 NWLR (PT. 1103) 48.

The learned counsel also contended that the ruling of the trial Court granting leave to the Appellants to file further affidavit and written address in support of the motion to reopen Appellant’s case amounts to the Court agreeing with the Appellant and therefore cannot turn around to hold otherwise.

Olumide Philips, Esq., submitted that the application to re-open Appellant’s defence below was brought in good faith to ensure that the Appellant was heard in the matter and its defence properly placed before the Court to be decided on its merits and thus should be granted, unless it can be shown to have been filed malafide or when it will cause injustice to the other party. He relied on NWANKWO V. NWANKWO [1993] 6. S.C.N.184 and urged the Court to resolve the issue in favour of the Appellants and allow the appeal.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the right to grant an application to re-open a case is at the discretion of the Court and that the key consideration which guides the Court in the exercise of the discretion is that a new issue has arisen which no human ingenuity could have foreseen before the case was adjourned for judgment. He relied on OGBODU V. STATE [1987] 2 NWLR (PT 54) 20; FATOLA V. MUSTAPHA [1985] 2 NWLR (PT. 7) 438.

The learned counsel further submitted that no cogent facts were presented before the lower Court to justify the exercise of the discretion sought by the Appellant and thus, there was no breach of any right to fair hearing. She relied on OKIKE V. LPDC [2006] 1 NWLR (PT. 960) 67 and urged the Court to resolve the issue in favour of the Respondent and dismiss the appeal.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue contended that the Appellant and the 4th Respondent who by their conduct waived their right of defence cannot be heard complaining of fair hearing. He submitted that the right to fair hearing is not a one-way traffic. It should be open and accessible to both parties. He relied on SECURITIES AND EXCHANGE COMMISSION & ORS V. OKEKE (2020) 38 W.R.N AT PAGE 119 PARTICULARLY AT PAGE 126 RATIO 5; THE COUNCIL, FEDERAL POLYTECHNIC OKO V. CHUKWUDI UBA (2019) 17 ACELR; AYOOLA V EGEYALO (2018) LPELR-44084 (CA); EZE V. FRN (2017), LPELR-42097 (SC);MR. JOHN OKON V. PASCAL ADIGWE & ORS (2011), 12 NWLR (PART 1270) 350 AT 374; UBA PLC V. JASE MOTORS (NIG) LTD & ANOR (1997) 7 NWLR (PT. 513) 387 AT 402-403.

The learned senior counsel submitted that the Appellant at the trial Court explored every strategy to delay the proceedings until it was apparent that there was no more room to buy any more time, he decided to abandon the suit even when despite being fully aware of the hearing date, leading to the foreclosure of their defence.

The learned SAN finally submitted that the Appellant was given ample opportunity to defend his case but refused to utilize the opportunity, thus, there was no breach of fair hearing. He urged the Court to resolve the issue in favour of the Respondent and dismiss the Appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue aligned himself with the position of the Appellant and submitted that the lower Court erred in refusing the Appellant and the 3rd Respondent right to be heard. He submitted that the Appellant and the 3rd Respondent were foreclosed from defence without their knowledge thereby breaching their right to fair hearing. He relied on EKIYOR & ANOR V. BOMOR (1997) LPELR-1082 (SC); OLATUNBOSUN V. NISER (1988) 3 NWLR PT. 80, P.25 AT 49; AG RIVERS STATE V. UDE (2006) LPELR-626 (SC); SECTION 36(1) OF THE 1999 CONSTITUTION.

The learned counsel contended that the Appellant in this case should not be held responsible for a mistake of his former counsel. He relied on NOGA HOTELS INT’L V. NICON HOTELS LTD. (2007) VOL. 41 WRN 125 AT 153, LINES 20-45 (CA).

Paul Kasim Esq., contended that though the trial Court has a discretionary power to either grant or refuse an application such as the instant one, such discretion however must be exercised judicially and judiciously. He relied on UNITED BANK OFAFRICA V G.M.B.LI & CO.; ANACHEBE V. IJEOMA & ORS (2014) LPELR -23181 (SC).

He finally submitted that any Judgment given in breach of the principle of fair hearing is a nullity, of no effect and will be set aside by the Court that gave it or by an appellate Court. He relied on ATTORNEY GENERAL, RIVERS STATE V UDE (2006) LPELR- 626 (SC); ARIJE V. ARIJE & ORS (2018) LPELR-44193 (SC) and urged this Court to allow the appeal and set aside the decision of the trial Court.

RESOLUTION OF ISSUE 1
Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. See ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC); SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED).
A party has a choice in the mode and manner of conducting the prosecution and or defence in a suit. What is paramount is that the Court must have afforded all parties equal opportunity to present or defend their cases. Therefore, if a party had an opportunity of being heard but did not utilize it, he cannot complain of breach of fair hearing. See AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414 (SC).
The question of fair hearing is not just an issue of dogma. Fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. Therefore, whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. It is wrong and improper to approach the meaning of fair hearing by placing reliance on any prior assumptions. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded the parties.
The Court has two competing interests to contend with when considering an application such as this. The need to dispose of the case speedily vis-a-vis the right of both parties to be heard on the matter. These two great interests have often been expressed with the fact that justice delayed is justice denied and at the same time you cannot sacrifice justice on the altar of speed. Therefore, the Court must of a necessity negotiate a balance between the two competing interests while being guided by the need to do substantial justice.

Herein, from the record of proceedings before this Court, it is notable that series of adjournments were taken during the hearing at the trial Court. Noteworthy, on 10th October, 2017, the counsel for the Appellant at the trial Court sought for an adjournment to make available documents which he allegedly needed to conduct a cross-examination on the CW1. The said adjournment was granted by the trial Court. See pages 958-959 of the Record of Appeal. Again, on 1st of November, 2017, the counsel for the Appellant asked for an adjournment to enable the learned SAN to appear and conduct the cross-examination of the CW1 in person. This again was granted. See page 959 of the Record of Appeal. On 17th July, 2018, the Appellants sought for a date to enable them open their defence. It was granted and the Court adjourned to 1st November, 2018 for defence. On 1st November, 2018, counsel again asked for a date to enable the lead counsel to appear and lead the defence himself. It was again granted. See page 968 of the Record of Appeal. On the adjourned date which was 12th December, 2018, the Appellant instead of opening his defence filed a preliminary objection challenging the jurisdiction of the Court. The objection was not successful. On 11th February 2019, when the matter came up again for defence, the Appellant was not in Court. The Respondents then sought by an application for foreclosure and the same was granted. The Court adjourned for final written addresses and the Court ordered that hearing notice to that effect be served on the Appellant. On 3rd April 2019, when the matter came up for adoption of final written addresses, the Appellant was represented and did not pray anything from the Court, not even to reopen defence. The Respondents adopted their final written address and the matter was adjourned for judgment. On 1st July, 2019 when the matter came up for judgment, the Appellant brought an application to reopen his defence on the ground that the lawyer who had been appearing for the Appellant is a fake lawyer, which application was refused.
It is pertinent to state herein that the grant or refusal of an application to reopen a case is entirely at the Court’s discretion. However, in exercising that discretion, the Court must confine itself to the reason for the particular application. 

I have carefully perused the record of appeal before me, particularly the proceedings of the said trial Court as briefly itemized above, the trial Court afforded both parties equal opportunities to present their sides of the case. Therefore, I see no breach of fair hearing as the Appellant was afforded the opportunity to present her case but failed to utilize the same.

Now, on the argument that the former counsel is a fake lawyer, the allegation that a lawyer who has filed legal documents before a Court of law and appeared severally before a Court as a lawyer is not a lawyer is a criminal allegation. It is impersonation and is criminal in nature. It is settled in law beyond argument that criminal allegations must be proved beyond reasonable doubt. See EHIMIYEIN V. STATE (2016) LPELR 40841 (SC). Therefore, impersonation being criminal in nature must be proved beyond reasonable doubt. See EMEKA V. IGP (2021) 10 NWLR (PT. 1785) 489 (SC). It is not the duty of the Court to embark on a voyage of discovery as to whether or not the said Appellant’s former counsel is a fake lawyer as it is settled in law that he who asserts, must prove.

It is worthy to note that from the record of proceedings before this Court, the Appellant did not place any evidence before the Court to suggest let alone proof that the said lawyer, Mr. Anthony Idikwu Ebah is a fake lawyer. The Appellant has relied on the argument that his former counsel is fake to pin his indulgence to be inadvertence of counsel. 

I quite agree as it is settled that the inadvertence of counsel cannot be visited on the litigant. See RASAKI V. AJIJOLA (2018) 7 NWLR (PT. 1617) 13 (SC). However, it is pertinent to distinguish inadvertence of counsel from the ineptitude of counsel. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. See MALARI V. LEIGH (2019) 3 NWLR (PT. 1659) 332 (SC); G.T.B. V. EST MASTER CONSTR. LTD. (2018) 8 NWLR (PT. 1622) 483 (SC); N.N.P.C. V. SAMFADEKSONS LTD. (2018) 7 NWLR (PT. 1617) 1 (SC); ORE V. AKANBI (2021) 14 NWLR (PT. 1795) 1 (CA). The burden of proving inadvertence of counsel lies on the applicant. He has to prove the existence of such inadvertence of counsel. See N.N.P.C. V. SAMFADEKSONS LTD (2018) 7 NWLR (PT. 1617) 1 (SC); SECTIONS 132 AND 133 OF THE EVIDENCE ACT, 2011. Thus, where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel, for if the strategy had worked, both the counsel and his client would take full credit.

Flowing from the above, it is my view and I so hold that the Appellant has failed to prove that his failure to enter defence was as a result of the inadvertence of his counsel. He has also failed to prove that his former counsel was a fake lawyer. I hold that his right to fair hearing was not breached. I resolve the issue in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 2
“Whether the lower Court was clothed with the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the appellant, subject of a pending Appeal in Appeal No. CA/A/1131/2018 touching on the same issue?”

Olumide Philips, Esq., on this issue submitted that once an appeal is entered at an appellate Court, the trial Court from which the appeal emanated will cease to have jurisdiction over any issue or subject matter of the appeal.

He relied on ADENIYI V. ONAGORUWA [1994] 4 NWLR (PT.349) 225, ADELEKE V. OYO STATE HOUSE OF ASSEMBLY [2006] 10 NWLR (1987) 50; MOHAMMED V. OLAWUNMI [1993] 4 NWLR (PT. 287) 254 AT 278 D -E & H; OGUNREMI & ANOR. V. DADA [1962] 1 ALL NLR 663; EZEOKAFOR V. EZEILO [1999] 9 NWLR (PT. 619) 513 AT 524 E-F.

The learned counsel submitted that the lower Court violated the above principle of law by ordering that a fresh national delegates conference be held for the Appellant despite the pendency of Appeal No. CA/A/1131/2018 on the issue. The essence of the principle is to ensure that the judgment of the appellate Court is not rendered a fait accompli, leaving the victorious party to celebrate a mere empty and Pyrrhic victory. He CITED KIGO (NIG) LTD V. HOLMAN BROTHERS (NIG) LTD [1980] 5-7 SC 60; WAMI AKAIDE & 2 ORS V. THE STATE [1996] 8 NWLR (PT. 463) 525. Olumide Philips, Esq., further submitted that once a trial Court is aware that an appeal has been entered on a matter, it is precluded from going ahead to pass sentence on either party before it. He relied on Mohammed v. Olawunmi [1993] 4 N.W.L.R (Pt. 287) 254 AT 281 F-H and urged the Court to resolve the issue in favour of the Appellant and against the Respondents.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the consequential order was an attempt by the trial Court to protect itself from abuse from parties who hold its processes in contempt and who would disobey orders of the Court in order to cling on to power. See EZENWANKWO V STATE (2015) 2 NWLR (PT.1443) P279. PARA B. She submitted that the trial Court did not base its judgment on the subject matter of the subsisting interlocutory appeal and urged the Court to resolve the issue in favour of the Respondents.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue submitted that the said Appeal No: CA/A/1131/2018 on which subject matter the trial Court purportedly based its decision was filed by the same lawyer who the Appellant alleged to be a fake lawyer. He further submitted that going by the principle that a legal process filed by a non-lawyer is a worthless piece of paper, the argument that the decision of the Court is invalid by reason of the subsisting appeal is illogical as the said appeal is incompetent by reason of the same being filed by a fake lawyer. He cited SECTION 2 AND 3 (1) (A AND B) OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS ACT LFN 2007, AJIBODE V. GBADAMOSI (2021) 7 NWLR PT. 1776, PG. 475 PARTICULARLY AT PAGE 482; OWNERS OF MV “ARABELLA” V. NAIC (2008) 11 NWLR (PT. 1097) 182.

Mohammed Ndarani Mohammed, SAN finally submitted that from the circumstances of this case, it cannot be said that the trial Court based its judgment on a ruling which is subject of appeal in APPEAL NO: CA/A/1131/2018, and thus occasioned a grave miscarriage of justice since the said appeal was filed by an alleged fake lawyer.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that once an appeal has been entered in the Court of Appeal, the Court below ceases to have jurisdiction over the entire subject matter. Thus, the lower Court would lack jurisdiction in the matter until the appeal is heard and determined, the purpose of which is to avoid collusion between a trial Court and an Appellate Court over the same matter. He cited SPDC NIGERIA LIMITED V. AMADI & ORS (2011) LPELR – 3204 (SC); AKINYEMI V. SOYANWO (2006) 13 NWLR (PT. 998) 496 AT PP. 514-515 PARA. G- E; BRAITHWAITE V. S.C.B (NIG) LTD (2012) 9 NWLR (PT. 1305) 304. SEE ALSO MOHAMMED V. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT. P. 278, PARAS D-E, AND H; ADENIYI V. ONAGORUWA. He urged the Court to allow the appeal.

RESOLUTION OF ISSUE 2
Jurisdiction is the authority a Court has to decide matters or to take cognizance of matters presented before it. It is fundamental and can be raised at any time. See SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31 (SC), BAKARI V. OGUNDIPE (2021) 5 NWLR (PT.1768) 1 (SC), BELGORE V. F.R.N (2021) 3 NWLR (PT.1764) 503 (SC), SULAIMAN V. F.R.N. (2020) 18 NWLR (PT. 1755) (SC), PRICE WATER HOUSE V. MOMOH (2020) 18 NWLR (PT. 1755) 32 (CA); SHITTA-BEY V. A.-G., FED. (1998) 10 NWLR (PT. 570) 392 REFERRED TO. (P. 199, PARAS. F-G).
​Every Court is endowed with jurisdiction by Statute or Constitution and where a Court exercises jurisdiction in a matter which it does not have jurisdiction, the decision from such an exercise is a nullity. See MUYIDEEN V. N.B.A. (2021) 13 NWLR (PT. 1794) 393 (SC); BOT V. JOS ELECTRICITY DISTRIBUTION PLC (2021) 15 NWLR (PT. 1798) 53 (SC); IHIM V. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 (SC); T.C.N., P.H.C.N. V. A.S.B.I.R. (2021) 1 NWLR (Pt. 1757) 207 (CA).
Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. See MADUKOLU V. NKEMDILIM (2006) 2 LC 2081961) NSCC (VOL. 2) 374 AT 379; TUKUR V. TARABA STATE (1997) 6 SCNJ 81.

The principle of law that where an appeal has been entered, by which act the record of appeal compiled in the lower Court is transmitted to the registry of the Court of appeal, the trial Court is functus officio and ceases to have any control over the matter in question; is settled in law. See MEKWUNYE V. CARNATION REGISTRARS LTD. (2020) (CA). Therefore, the Court of appeal only becomes seised of the whole proceedings in a case after an appeal has been entered and until the appeal has been finally disposed of. Once the record of appeal is before the Court of appeal and the appeal is listed, it is at that stage considered entered and the Court of appeal assumes exclusive jurisdiction over it. See A.P.C. V. UDUJI (2020) 2 NWLR (PT. 1709) 541 (SC); VAB PETROLEUM INC. V. MOMAH (2013) 14 NWLR (PT. 1374) 284 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA).

Herein, it is the argument of the Appellant that an interlocutory appeal had entered on the subject matter in Appeal No. CA/A/1131/2018 and the trial Court therefore lacked the jurisdiction to pronounce on the said subject matter in its final judgment. Let me state herein that the said Appeal No. CA/A/1131/2018 is an interlocutory appeal against the ruling of the trial Court which nullified the national conference held by the Appellants in utter disregard of the Court’s order for which summons was issued against the Appellant for contempt. It is important to emphasis that this said ruling arose from an application which sought to commit the Appellant for contempt, and that the order of Court which was disobeyed by the Appellant has not been appealed against.

Generally, where an interlocutory order does not dispose of a case, it would be wrong to stay proceedings on that matter pending the determination of the appeal. See AGU V. COP (2017) 2 NWLR (PT. 1549) 254 (CA). 

The position of the law is settled that a notice of appeal does not operate as a stay of proceedings. For proceedings of a Court to be stayed, there must be an application granted by that Court to that effect. See ALIOKE V. OYE (2018) 18 NWLR (PT. 1651) 247 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA); SECT10N 17 OF THE COURT OF APPEAL ACT, CAP. C36, LAWS OF THE FEDERATION OF NIGERIA 2004; ORDER 4 RULE 11, COURT OF APPEAL RULES 2011.
Hence, any party appealing against an interlocutory decision of a Court is under a duty to apply for stay of further proceedings until the determination of the interlocutory appeal if the party believes that the result of his appeal will affect further proceedings in the matter.

Of importance is the fact that the Appellant herein did not apply for stay of proceedings. Having settled that notice of interlocutory appeal does not operate as a stay of proceedings, in the instant case, the Appellant’s contention that having entered an interlocutory appeal, the trial Court was bereft of the jurisdiction to proceed to determine the appropriateness of the action of the Appellant cannot stand in law. 

Most importantly is the fact that stay of proceedings is a discretionary power of the Court. It is not exercised as a matter of right and definitely cannot be exercised in favour of a Contemnor. A Contemnor who does not obey or is in disobedience of a Court order cannot be entitled to be granted the indulgence of the exercise of the equitable jurisdiction of a Court of law. A party in disobedience or in contempt of the order of a competent Court of law cannot be allowed any relief sought in equity as he that comes to equity must come with clean hands. See GOVERNOR OF LAGOS STATE V. OJUKWU 1986 1 NWLR where the Supreme Court of Nigeria deprecating such an erring and aberrant party or litigant held that the Court cannot exercise its equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching the Court is merely one that is out to taunt the Court. May that day never come when a judicial officer shall lend judicious helping hand to a taunting and disobedient litigant. Certainly, the Appellant herein could not be granted such judicial help.

Accordingly, I hold that the lower Court had the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the Appellant even when there was a pending appeal against its ruling which nullified the national conference held by the Appellants in utter disregard of the Court’s order for which summons was issued against the Appellant for contempt.

I resolve issue 2 in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 3
“Having regard to the facts and law, whether the lower Court has the power to grant a consequential order not arising from the principal claims before it?”

Olumide Philips, Esq., on this issue submitted that where the principal claim sought in an action is refused, an incidental order cannot be rightly made as there would be no principal claim on which such incidental order can stand on. He relied on OFONDU V. NIWEIGHA [1993] 2 NWLR (PT.275) 253; AKINBOBOLA V. PLISSON FISKO (NIG) (LTD) [1991] 1 N.W.L.R (PART 167) 270; REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR (PT. 158) 514.

He submitted on when a consequential order may not be granted. He relied on TUKUR V. GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT. 117) 517. Olumide Philips, Esq., further submitted on the sole aim of consequential orders. He cited NOERKER V. PLATEAU STATE [2018] 16 N.W.L.R (PART 1646) 481 AT 495-496 H-A; ETIM EKPENYONG & ORS V. INYANG EFIONG NYONG & ORS [1975] LPELR – SC.161/1974; UNION BANK OF NIGERIA LTD V. OGBOH (1995) 2 NWLR (PT. 380) 647, 664G; UGOCHUKWU V. C.C.B (NIG.) LTD. (1996) 6 NWLR (PT. 456) 524, 539G.

The learned counsel submitted that the trial Court elevated the provisions of Section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which are subsidiary legislations that can be derogated from to the pedestal of case law and legal rules and by so doing, occasioned miscarried justice. He relied on BROAD BANK OF NIGERIA LTD. V. OLAYIWOLA & SONS LTD & ANOR [2005] 3 NWLR PART 912 PAGE 434; AG LAGOS V. EKO HOTELS LTD & ANOR. [2006] 19 SC. 46.

He submitted that a decision that is based on irrelevant and extraneous considerations such as that of the trial Court in the instant appeal is perverse and liable to be set aside. He relied on N.M.S LIMITED V. J.P.F LIMITED [2005] LPELR-5981(CA) (2005) ALL FWLR (PT. 288) 1193 AT 1206, OSUJI V. EKEOCHA [2009] 16 N.W.L.R (PT. 1166) 81 AT 177.

The learned counsel thus submitted that decision of the Court below consequentially appointing a public trustee based on the earlier nullification of the Appellant’s delegates conference was made without jurisdiction, as the issue of Appellant’s National Delegates Conference was neither pleaded, nor evidence given about it before the Court below. He further submitted that, there was no Court Order on 6th December, 2017 and a close examination of the bench advice of the lower Court dated December 6, 2017 alluded to by the lower Court will show that the lower Court did not restrain the Appellant from holding a delegates’ conference. He urged the Court to resolve the issue in favour of the Appellant and allow the Appeal.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that a consequential order is one which gives effect to a judgment or order to which it is consequential. He cited ODOFIN & ANOR VAGU & ANOR (1992) 3 NWLR (PT. 229) 350.

The learned counsel submitted that rules of Court are meant to be obeyed. They serve to guide both the Courts and the parties with the aim of a smooth and effective administration of Justice. Thus, a Court such as the trial Court has power to grant all remedies which would be necessary to ensure that justice is done. She cited HONEYWELL FLOURMILLS PIC V ECOBANK (NIG) LTD (2016) 16 NWLR (PT. 1539) P.426 PARAS H-A; SECTION 14 OF THE NATIONAL INDUSTRIAL COURT ACT (ENACTED PURSUANT TO SECTION 254D (2); BELLO V. AG OYO STATE (1986) 5 NWLR (PT. 45) 828.

The learned counsel submitted that the Appellant’s contention that the order of the lower Court was invalid because it was not specifically claimed falls flat on its face and must be discountenanced as a Court of law must not be understood to play the role of a robot in dispensing justice. He relied on N.S.I.T.F V. IYEN [2014] 9 NWLR (PT.1422) AT 349. He submitted that a decision taken in the overall interest of justice cannot be said to be perverse. She relied on AKINGBOU V FRN (2018) 14 NWLR (PT.1640) P.416 para F-G and urged the Court to dismiss the appeal.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue contended that the consequential order flowed from the principal claims. He submitted that the trial Court has the discretionary power to make order as to the appointment of a Public Trustee suo moto where there is intra-union or intra-organisational dispute. He relied on HAJIA YINUSA BAKARI V. OGUNDIPE (2021) 5 NWLR PART 1768; USIOBAIFO V. USIOBAIFO (2005) 3 NWLR (PT. 913) 665; N.S.T.I.F V. IYEN (2014) 9 NWLR 9 (PT 1422) PP. 3429-350.PARAS H-A; ORDER 59 RULE 1 OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES, 2017; SECTION 6 OF THE 1999 CONSTITUTION AS AMENDED IN 2011.

It is also the submission of the learned senior counsel that the trial Court invoked its inherent powers and modified the relief in order to do substantial justice. He relied on UNIVERSAL OIL LTD V. NDIC (2008) 6 NWLR (PT 1083) 254; ABACHA V. STATE (2001) 3 NWLR (PT. 699) 35.

He further submitted that considering the exigency and circumstances of this case, the Court can grant consequential orders to fill in the vacuum which was created by the retirement of the president and give effect to the judgment of the Court. He urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that the 1st and 2nd Respondents have not appealed against the finding and or decision of the trial Court to the effect that their entitlement to the relief that the incumbent president has retired was not proved. Thus, same is binding, subsisting and conclusive against them. He relied on KOYA V. U.B.A. LTD (1997) 1 NWLR (PT. 481) 251 AT P. 266, P.N. UDOH TRADING CO. LTD V. ABERE (2001) 11 NWLR (PT. 723) 114 AT P. 146 and ANYANWU V. OGUNEWE (2014) LPELR -22184.

He contended that the Court not being father Christmas cannot grant reliefs not sought. Thus, the appointment of a public trustee to manage the affairs of the Appellant and direction of the conduct of fresh National Delegates Conference of the Appellant to elect new executive members for purposes of running the affairs of the Appellant which were not sought by any of the parties as specific reliefs; cannot be granted. He relied on VEEPEE INDUSTRIES V. COCOA INDUSTRIES LTD (2008) 13 NWLR (PT. 1105) 486 AT P. 512, PARAS F-H; YUSUF V. OYETUNDE (1998) 12 NWLR (PT. 579) 483 PP. 498 – 499, PARAS. H – A. See also EKPENYONG & ORS V. NYONG & ORS (1975) LPELR – SC 161/1974 and S.S. CO. LTD V. AFROPAK(NIG) LTD (2008) 18 NWLR (PT. 1118) 77.

The learned counsel submitted that such orders did not qualify as consequential orders as they did not flow from any of the reliefs granted by the Court. There must be a principal relief upon which a consequential relief or order could be predicated. He cited DR. AYEMOBA V. MRS. OLUBUNMI AYEMOBA (2018) LPELR – 45385 (CA); NOEKOER V. PLATEAU STATE (2018) 16 NWLR (PT. 1646) 481 AT PP. 495 – 496, PARAS. H – A; AKINBOBOLA V. PLISSON FISKO (NIG) LTD (SUPRA); TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR (PT. 158) 514.

He urged the Court to resolve the issue in favour of the Appellant.

RESOLUTION OF ISSUE 3
A consequential order is an order which gives effect to the judgment of the Court.

It must flow from the judgment. See BAKARI V. OGUNDIPE (2021) 5 NWLR (PT. 1768) 1 (SC); NOEKOER V. GOV., PLATEAU STATE (2018) 16 NWLR (PT. 1646) 481 (SC); OYEYEMI V. OWOEYE (2017) 12 NWLR (PT. 1580) 364 (SC); ELIGWE V. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348 (SC); YANKEY V. AUSTIN (2021) 1 NWLR (PT. 1757) 227 (CA). By the very nature of the term consequential, and in its ordinary dictionary meaning, the word consequential means following as a result, or inference; following or resulting indirectly.
A Court has jurisdiction to make consequential orders where necessary. These are orders which are incidental to the decision of the Court and which flow necessarily, naturally, directly and consequently from the judgment, and not extraneous nor can be classified as strange and do not need to have been claimed earlier to be given or granted. See U.O.O. (NIG.) PLC V. OKAFOR (2020) 11 NWLR (PT. 1736) 409 (SC).
A consequential order is traceable to or flows from the relief prayed for and must be made consequent upon the relief claimed by the Claimant. It may have an indirect or secondary result in the relief awarding process. It is appurtenant to the main or principal order. The High Court has inherent powers to make orders even if they are not sought by the parties where such orders are incidental to the prayers sought and where the claimant includes in his prayers the expression “and for such order or other orders as this Honourable Court may deem fit to make in the circumstance”. Whatever be the case, a consequential order must be incidental to, and flow directly and naturally from reliefs claimed being an offshoot of the main claim to give effect to the judgment.
In the instant case, the consequential order made was a follow-up to give meaning to the decision of the trial Court and so was incidental to the main order. The trial Court having declared null and void the national delegates conference held in disobedience to the Court’s order, the appointment of the trustees naturally followed. The law being settled that a Court has the jurisdiction to make consequential orders where necessary so far as the said order relates to matters adjudicated upon; in this case, the order by the National Industrial Court that Public Trustees be appointed for the 2nd Defendant to oversee the running of the association followed from the fact that the incumbent chairman had retired and valid election yet to be conducted. The natural sequence or resulting order was for a public trustee to be appointed to oversee the affairs of the association. Hence, I hold that the order made by the trial Court which I have held was a consequential order was rightly made. The lower Court therefore did not grant a consequential order not arising from the principal claims before it.

I resolve this issue in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 4
“Whether the lower Court was right to base its decision to order for the appointment of a Public Trustee to oversee the administration and finances of the Appellant on the provisions Section 19 of the National Industrial Court Act, 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 rather than Section 19(1) and (2) of the Trade Union Act, a specific statute governing trade union activities?

Olumide Philips, Esq., on this issue submitted that where there are two enabling enactments on a subject matter, one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. He relied on FEDERAL MORTGAGE BANK OF NIGERIA V. P. N. OLLOH (2002) 9 NWLR PART 773 PAGE 475, (2002) 4 S. C. PART II PAGE 117; SCHRODER & CO. V. MAJOR CO. LTD. (1989) 2 NWLR PART 101 PAGE 1 AT 21 PER AGBAJE JSC, BAMIGBOYE V. ADMINISTRATOR-GENERAL (1954) 14 WACA PAGE 616, THE GOVERNOR OF KADUNA STATE & ORS V. LAWAL KAGOMA (1982) 6 SC 87, EZEADUKWA V. MADUKA (1997) 8 NWLR PART 518 PAGE 635 AT 657 PARAGRAPHS B – D, AGRO ALLIED ENT. LTD. V. MV NORTHERN REEFER & 2 OTHERS (2009) 5-6 S.C. PART 1 PAGE 110 AT PAGE 122.

He submitted that since the Trade Unions Act was specifically enacted by the legislature to regulate Trade Unions activities in Nigeria, the Court in making the consequential orders ought not to have relied on the provisions of Order 59 of the National Industrial Court Rules 2017 and Section 19 of the National Industrial Court Act 2009 but should have rather relied on Section 19 (1) and (2) of the Trade Unions Act. He relied on LUBY V. WARWICKSHIRE MINERS ASSOCIATION (1912) 2 CH. 37; NDIC V. GOVERNING COUNCIL OF THE ITF & ANOR (SUPRA).
Olumide Philips, Esq., contended that orders obtained without jurisdiction is void. He relied on MACFOY V. U.A.C. (SUPRA); SKEN CONSULT(NIG) LTD & ANOR V. UKEY [1981] LPELR-3072(SC). It is also his contention that the Court of appeal can validly exercise its powers under Section 15 of the Court of Appeal Act to determine the real question in controversy between the parties. He cited OSHOBOJA V. AMUDA [1992] 6 NWLR (PT. 250) 690 S.C, CHIEF EJOWHOMU V. EDOK- ETER MANDIUS LIMITED (1986) 9 SC. He urged the Court to allow the appeal and reverse the judgment of the lower Court.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue agreed with the Appellant that where there are two enabling enactments on a subject matter, one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. She cited ZAKARI V. IGP (2000) 8 NWLR PART 670 P.666 AT P 683-684, MRS F BAMGBOYE V ADMINISTRATOR GENERAL 14 WACA 616 AT PAGE 619, GOVERNOR OF KADUNA STATE & ORS V. LAWAL KAGOMA (1982) 6 SC 87 AT 107 – 108, KRAUS THOMPSON ORGANISATION LTD V. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR- 1714 (SC), 2004 9 NWLR (PT. 879) 61; SCHRODER V. MAJOR (1989) 2 NWLR (PT 101) 1 AND ORUBU V. NEC (1988) 5 NWLR (PT. 94) 323. But however, she submitted that there is no conflict between the aforestated enactments Section 19 (1) & (2) of the Trade Unions Act; and Section 19 of the National industrial Act & Order 59 of the National Industrial Court (Civil Procedure) Rules, 2017 as they do not cover the same subject matter.

The learned counsel contended that while Section 19 of the Trade Union’s Act deals with an application for an injunction to restrain any unlawful or unauthorized application of the funds of a trade union, the National Industrial Court (Civil Procedure) Rules 2017 on the other hand deals with the mode and procedure of the appointment of a public trustee including his remuneration, eligibility and functions. Therefore, it was submitted that the above principle is inapplicable since the laws do not cover the same subject matter. He relied on ARAKA V. EGBUE (2003) LPELR – 532 (SC) and urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue submitted that Section 19 of the Trade Union Act does not exclude the right of any member who has sufficient interest in any relief sought for in an injunction. He relied on ACMEL NIGERIA LTD & ANOR V. FBN PLC & ORS (2014) LPELR-2244 (CA).

The learned senior counsel contended that the Appellant has rightly argued that where there are two provisions of the law, one specific and the other general covering the same subject matter, a matter falling within the words of the specific provision as in the instant case, must be governed by the specific provisions thereby and not the general provision. He submitted that Section 19 of the National Industrial Court Act is a special provision on the subject of this appeal. He relied onOMINI & ORS VS. YAKURR LGA & ORS (2019) LPELR – 46300 (CA), PER SHUAIBU, J.C.A (PP. 10-13 PARAS B-B); ZAKARI V. IGP (2000) 8 NWLR (PT. 670) PG. 693-684. 7.7.

Mohammed Ndarani Mohammed, SAN finally submitted that the appointment of a Public Trustee by the President of the National Industrial Court under Section 19 of the National Industrial Court Act 2006 and Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is very much in order and has not occasioned miscarriage of justice. He urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that Trade Union Act was specifically promulgated by the Legislature to govern the activities of Union Activities inclusive of the appointment of a Public Trustee. The said Act made provision for the appointment of a Public Trustee for the Appellant – a trade Union. He cited Section 19 (1) and (2) of the Trade Union Act.

The learned counsel submitted that Section 19 (1) & (2) of the Trade Union Act is the only applicable law the lower Court ought to rely on because it is a specific law governing the activities of Trade Unions and has provided for the appointment of a public trustee and not the National Industrial Court Act and Rules of industrial Court, which is a general law. He relied on AMERICA SPECIFICATION AUTOS LIMITED & ANOR V. ASSET MANAGEMENT CORPORATION OF NIGERIA (2017) LPELR- 4401 (CA); ABUBAKAR V. NASAMU (2012) 17 NWLR (PT. 1330) 523 AT 526.

Paul Kasim Esq., further submitted that the conditions precedents for the appointment of a Public Trustee to administer the finance of the Appellant listed by the Trade Union Act which is to the effect that the Attorney General of the Federation or the Registrar or any five members of the union have to apply for an injunction restraining the unauthorized use of the Appellant’s funds were not fulfilled by the 1st and 2nd Respondents. He cited Section 19 of the Trade Union Act.

He submitted that the failure to fulfill this condition precedent rendered the appointment void. He relied on ORAKUL RESOURCES LTD. V. N.C.C (2007) 16 NWLR (PT. 1060) 270 AT 302 PARAS B – D (CA); NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664. He urged the Court to allow the appeal.

RESOLUTION OF ISSUE 4
The settled principle of law that where there is a conflict between two laws covering the same subject matter, one specific and the other general, the specific provision of the law prevails; is elementary. 

See E.F.C.C. V. REINL (2020) 9 NWLR (PT. 1730) 489 (SC). Therefore, where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter would not be interpreted as derogating from what has been specially provided for, unless an intention to do so is unambiguously declared. Parties are in ad idem that the Trade Union Act is a specific provision while the National Industrial Court Rules is a general provision.

What will guide the resolution of this issue is the answer to the question, whether the provisions of the two enactments under view cover the same subject matter. Let me start with the reproduction of the said sections for emphasis.
Section 19 of the Trade Union Act provides:
(1) “Without prejudice to the right of any person having a sufficient interest in the reliefs ought to apply for an injunction to restrain any unauthorized or unlawful application of the funds of a trade union, an injunction restraining any such application of the funds of the trade union may be granted by the appropriate High Court upon the application of the Attorney-General of the Federation or of the Registrar, or of any five or members of the union.
(2) On an application under this section, the appropriate High Court may, in addition to or instead of granting an injunction, order that the whole or any part of the funds of the trade union be paid over to the Public Trustee to be administered or disposed of in accordance with the rules of the union.
Section 19 of the National Industrial Court Act provides:
The Court may in all other cases and where necessary make any appropriate order, including-
(a) the grant of urgent interim reliefs;
(b) a declaratory order;
(c) the appointment of a public trustee for the management of the affairs and finances of a trade union or employers’ organisation involved in any organisational dispute;
(d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear; and
(e) an order of compliance with any provision of any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.
Order 59 of the National Industrial Court Rules provides:
Where there is an intra-union or intra- organisational dispute before the Court, the Court may suo motu or upon a motion on notice by any of the parties make an order for the appointment of a Public Trustee to manage the administration, affairs and finances of the trade union, employees’ or employers’ organization involved in any intra-union or intra-organizational disputes before the Court to appoint a Public Trustee states as follows:
Rule 2(1) The Court may appoint a Public Trustee from among reputable and notable Nigerians who certify the provisions of Rule 3 of this Order.
Rule 2(2) Where the Court orders that a Public Trustee be appointed in line with the provisions of Sub-rule 1 of this Rule, the Judge shall remit the file of the proceedings to the President of the Court for the appointment of the Public Trustee to manage the affairs administration and finances of the trade union, employee’s association or employers organisation.
Provided that the appointed Public Trustee shall not interfere with or play any role in statutory union, association or organisation activities.
From the above extract, it is evident that the provisions of Section 19 of the Trade Union Act specifically deals with the application of a Union’s fund and nothing more while the provisions of the National Industrial Court Rules and Act respectively, relate to the management of the affairs of the Union, the administration of the Union and the application of its finances.
​The suit before the trial Court did not relate to the Union’s fund and no rule of interpretation can be applied to limit the said suit to application of the Union’s fund. No. it is way more than that. The learned counsel for the Appellant and the 3rd Respondent cannot by any stretch of flowery submissions limit the suit to the application of the union fund. A glance at the reliefs sought which includes an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted and etcetera makes it crystal clear that both the management and administration of the affairs of the Union were in issue. Reliefs such as the nullification of the invalid expulsion of some members, declaration of the executive office of the chairman vacant, injunction restraining executives from amending the constitution of the Union, and etcetera cannot be classified as application of Union’s fund.
Flowing from the above, I hold that the provisions of Section 19 of the Trade Union Act and the provisions of Section 19 of the National Industrial Court Act and Order 59 of the National Industrial Court Rules relied on by the trial Court do not cover the same subject matters. While the Trade Union’s Act is applicable where there is issue of how the funds of a Union is to be applied, the provisions of the National Industrial Court’s Act and Rules on the other hand apply where there is an intra-organizational or inter-organizational dispute as to the management of the general affairs of the Union. Therefore, I hold that the trial Court was right when it relied on the provisions of the National Industrial Act and Rules in the appointment of Public Trustees for the management of the general affairs of the Union pending when a valid election is conducted. This issue is resolved in favour of the 1st and 2nd Respondents and against the Appellant.

In all, having resolved all the issues in favour of the 1st and 2nd Respondents and against the Appellant, the appeal fails and the same is hereby dismissed. I uphold the decision of the National Industrial Court of Nigeria Per Sanusi Kado, J., delivered on 25th October, 2019; in Suit Number: NICN/ABJ/31/2016.

I award the costs of N200,000.00 in favour of the 1st and 2nd Respondents respectively.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Uchechukwu Onyemenam JCA, just delivered.

I agree that the appeal is bereft of any merit and I also dismiss it and award the sum of N200,000.00 (Two Hundred Naira only) as costs in favour of the 1st and 2nd respondents.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal fails and it is accordingly dismissed.

I abide by the consequential order of costs assessed at N200,000.00 only in favour of the 1st and 2nd Respondents.

Appearances:

OLUMIDE PHILIPS, with him, I.D. BOB MANUEL For Appellant(s)

CHINYERE MONEME, with him, MUKNEG NATHAN – for 1st Respondent
MOHAMMED NDARANI MOHAMMED, SAN, with him, MICHAEL ELEYINMI, CLEMENT CHUKWUEMEKA, STEPEHN APEH, UCHENNA CHUKWUEMEKA and RAPHAEL ASHWE – for 2nd Respondent
PAUL KASIM, with him, DANIEL AKINLOWE – for 4th Respondent For Respondent(s)