ODISI & ORS v. NTUKS & ORS (2020)

ODISI & ORS v. NTUKS & ORS

(2020)LCN/15270(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/L/998/2014

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. MR. JOHN O. ODISI 2. MR. PIUS UMUKORO 3. MR. AMBROSE AKWE APPELANT(S)

And

S.O. NTUKS 2. C.I. NWORIGU 3. E. OKOCHA 4. A. ADUBE 5. A. ASHERI 6. C. AKUKAM 7. J. ONI 8. IKUJORE 9. C.C. OFOHA 10. S. ABA (For And On Behalf Of NPA Retrenched Staff 1991) 11. NIGERIAN PORTS AUTHORITY RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT IS SADDLED WITH THE BURDEN OF HEARING EVERY APPLICATION PLACED BEFORE IT

By way of prefatory remarks, applications form the inevitable corpus juris of our judicial system, see C.C.B. (Nig.) Plc v. Ozobu (1998) 3 NWLR (Pt. 541) 290; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. It is settled law, beyond any peradventure of doubt, that a Court, whether trial or appellate, is saddled with the bounden duty to hear every application placed before it. This is so even if such application is frivolous, an abuse of Court, an unreasonable process, downright stupid, unmeritorious, weak or manifests any defects in it. This duty is not optional. The success or failure of such application is immaterial. The duty is to ensure the preservation and enforcement of a party’s right to fair hearing, see Kotoye v. Saraki (supra); Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Nalsa and Team Associates v. NNPC (supra); Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Mobil prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Odedo v. Oguebego (supra); Ogunseinde v. SGB Ltd. (2018) 9 NWLR (Pt. 1624) 230; Adebiyi v. Adekanbi (2018) 16 NWLR (Pt. 1645) 242; C. & C. B. Dev. Co. Ltd. v. Min., E.H. & U.D. (2019) 5 NWLR (Pt. 1666) 484. The appellants motion was a motion on notice as it put the opponent on notice, see Rgt. Trustees, PCN v. Etim (2017) 13 NWLR (Pt.1581) 1. PER OGBUINYA, J.C.A.

WHETHER OR NOT PARTIES AND THE COURT ARE BOUND BY THE RECORD OF APPEAL WHICH THE LAW PRESUMED CORRECT UNTIL THE CONTRARY IS PROVED

In law, the parties and the Court are bound by the record of appeal which the law presumes correct until the contrary is proved. Indeed, the law presumes the integrity and sanctity of the record of proceedings. An appellate Court is without vires to count in a record what is absent and vice versa. It must read the record in its exact content, see Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012)18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1, Brittania -U (Nig.) Ltd. v. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307; Ukwuyok v. Ogbulu (2019) 15 NWLR (Pt. 1695) 308. PER OGBUINYA, J.C.A.

MEANING OF THE MAXIM “LEX NON COGIT AD IMPOSSIBILA”
It is a notorious principle of law that no one puts something on nothing and expects it to stand, seeUAC V. Macfoy Ltd. (1962) AC 152; CCB Plc. v. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom V. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila -the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. This brief juridical survey, with due deference, punctures and exposes the poverty of the eleventh respondent’s seemingly dazzling argument on the point. It cannot fly. PER OGBUINYA, J.C.A.

THE PRINCIPLE OF FAIR HEARING
The appellants accused the lower Court’s decision of 27th May, 2014 as an erosion of their inviolable right to fair hearing as guaranteed in Section 36 (1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows, that fair hearing is, totally, divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akubueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480. PER OGBUINYA, J.C.A.

FACTORS TO GUIDE THE COURT TO ENSURE FAIR HEARING
The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See, also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra).
As already noted, the law donates to the appellants the unbridled licence to present their case before the lower Court. The lower Court, unjustifiably, failed to hear the appellant’s application. Thus, that was a quintessential instance of violation of the appellants’ inviolate right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended, see Adebiyi v. Adekanbi (2018) 16 NWLR (Pt. 1645) 242. Put simply, the appellants discharged the burden to prove a denial of fair hearing which the law has saddled on him, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellants needed not to prove the damages or losses they incurred consequent upon the breach of their right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran I (supra). A proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.
Where a party’s sacred right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in the ocean of nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran I (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko(2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510 153; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the National Industrial Court of Nigeria, Lagos Division (hereinafter addressed as “the lower Court”) coram judice: Oyebiola O. Oyewumi, J., in Suit No. NICN/LA/171/2013, delivered on 27th May, 2014. Before the lower Court, the appellants and the respondents were the applicants and the respondents respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In the first place, it must be placed on record, pronto, that the res in this appeal is not a stranger to litigation. Indeed, it is a magnet for litigation. This is an offspring of one of them. Way back in 1991, the eleventh respondent retrenched about 301 of its staff without payment of their gratuities and pensions. Sequel to the denial, the first-tenth respondents, as representatives of the laid off staff, including the appellants, sued the eleventh respondent in the High Court of Lagos State, presided over by A. R.A. Sahid, J., in Suit No. LD/1827/92, and obtained judgment against it. The suit meandered to the Supreme Court of Nigeria which affirmed the judgment on 11th May, 2007. The eleventh respondent failed to comply with the judgment. As a result, the first-tenth respondents beseeched Federal High Court, Lagos Division, via an originating summons filed on 5th May, 2008, for its enforcement.

Before the determination of the suit, the Federal High Court lost jurisdiction over the subject-matter which necessitated its transfer to the lower Court that acquired jurisdiction over it. The hearing of the suit commenced in the lower Court in March, 2013. The lower Court encouraged parties to settle the matter amicably. The parties reaped from the encouragement and began negotiations towards out-of-Court-settlement. The first-tenth respondents and their unnamed representatives became divided on the quantum of sum to be paid by the eleventh respondent. The disagreement occasioned about three splinter groups, the appellants being one of them, which rejected the Memorandum of Understanding (MOU) proposed by the first-tenth respondents. The controversial MOU was used to draw the terms of settlement for the parties “with the exemption of those who have insisted on further litigation”. The terms of settlement were filed on 25th March, 2014. On 27th March, 2014, the lower Court made the terms of settlement consent judgment for the parties.

Following that, the appellants, on 25th March, 2014, wrote to the lower Court notifying it of their decision to change counsel. Later on, on 23rd April, 2014, the appellants filed an application for leave to change counsel for the first-tenth respondents and to substitute them as parties. The appellants alleged that the lower Court, on 27th May, 2014, dismissed their application, alongside with other ones filed by other groups, without a hearing.

The appellants were dissatisfied with the decision of the lower Court. Hence, on 8th August, 2014, they lodged a 5-ground notice of appeal which is copied at pages 366-372 of the record. Subsequently, with leave of Court, the appellants filed an amended notice of appeal on 4th October, 2016, which houses five grounds, wherein they prayed this Court as follows:
(i) That the ruling of Hon. Justice O. O. Oyewumi of the National Industrial Court sitting at Lagos dated the 27th day of May, 2014, including the speculative order stopping the Appellants from approaching the Court on the suit, be set aside.
(ii) That the Appellants be substituted for the 1st -10th respondents and be granted leave to change their counsel as prayed in their Motion on Notice dated the 27th day of March. 2014 and filed on the 23rd day of April, 2014.
(iii) That the suit be remitted for trial by another judge of the National Industrial Court.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 11th March, 2020.

The eleventh respondent’s preliminary objection
The eleventh respondent greeted the appeal with a notice of preliminary objection, filed on 7th June, 2017, which prayed the Court to strike out the appeal, on grounds of incompetence, on the following grounds:
1. Appellants’ appeal against the exercise of discretion by the Honourable Justice O. Oyewumi of the National Industrial Court, Lagos Division (Lower Court) is an appeal on grounds of mixed law and facts for which no Leave was sought from the Lower Court or this Honourable Court.
2. Appellants’ right to appeal against the decision of the Lower Court is by virtue of Sections 243 (2) and (3) of the 1999 Constitution (As Amended) limited to appeals on the issue of fundamental rights as contained in Chapter IV of the 1999 Constitution (As Amended).
3. Grounds 2, 3, 4 and 5 of the Notice of Appeal do raise issues of discretion and do not raise constitutional issues of breach of Appellants’ fundamental rights and consequently incompetent grounds of appeal.
4. Grounds 2, 3 and 5 of the Notice of Appeal each allege errors of Law and of fact concurrently and consequently incompetent grounds of appeal.

In arguing the objection, learned counsel for the eleventh respondent (the objector), Ayodeji Awobiyide Esq., enumerated the importance of jurisdiction. He submitted that lack of it and breach of its procedure would render proceedings a nullity. He relied on Theobros Auto-Link Nig. Ltd. v. Bakely International Auto-Engineering Co. Ltd. (2013) 2 NWLR (Pt. 1338) 337; F.H.A v. Emelie (2013) 5 NWLR (Pt. 1347) 281; Onyeka v. Ogbonna (2013) 11 NWLR (Pt. 1366) 462; Madayedupin v. Oloninoran (2013) 1 NWLR (Pt. 1334) 175. He asserted that the appellants’ grounds of appeal were based on exercise of discretion that involved mixed facts and law for which they ought to obtain leave of Court before filing it. He described the grounds as incompetent because of failure to obtain leave of Court. He cited UBN PLC v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Nasiru v. Bindawa (2006) 1 NWLR (Pt. 961) 355; He claimed that the only right of appeal was against the decision of the lower Court on fundamental rights. He referred to Section 243 (2) and (3) of the Constitution, as amended, Coca-Cola (Nig.) Ltd. v. Akinsanya (2013) 18 NWLR (Pt. 1386) 255; Ajibi v. Olaewe (2003) 8 NWLR (pt. 822) 237; Bwai v. UBA PLC (2002) 4 NWLR (Pt. 758) 692; Skye Bank v. Iwu (2017) LPELR-42595 (SC) 1. He reasoned that the lower Court properly exercised its discretion and needed no interference. He cited Ibiyemi v. FBN PLC (2013) 17 NWLR (Pt. 848) 196; Oduyoye v. Lawal (2003) 3 NWLR (pt. 807) 432; Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545. He maintained that the grounds were not based on violation of fundamental rights and so incompetent. He referred to Tukur v. Govt., of Gongola State (1989) 4 NWLR (Pt. 117) 517; Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29; Raymond Dongtoe v. CSC Plateau State (2001) 19 WRN 125; Peterside v. IMB (Nig.) Ltd. (1993) 2 NWLR (Pt. 278) 712.

On behalf of the appellants, learned counsel, Honesty Eguridu, Esq., contended that a Court must hear a process filed before it. He relied on Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638. He explained the events that took place in the lower Court. He took the view that the failure to hear the appellants’ application was an unconscionable violation of their right to fair hearing as guaranteed in Section 36 (1) and (3) of the Constitution, as amended. He cited Gukas v. Jos International Breweries Ltd. (1991) 6 NWLR (Pt. 199) 614; Olumesan v. Ogundepo (1996) 1 NWLR (pt. 433) 628. He insisted that the Court had the jurisdiction to hear the appeal from the lower Court. He cited Skye Bank v. Iwu (supra). He observed that the appeal bordered on law – the failure to hear an application-and not exercise of discretion. He relied on MDPCT v. Okonkwo (2001) 7 NWLR (Pt. 711) 206. Resolution of the preliminary objection
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011) 14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. md. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. The objector seeks to terminate the appeal in limine on four vitriolic grounds as listed above. The import of the grounds is that this Court is not equipped with the jurisdiction to entertain the appeal.

Jurisdiction, a mantra in adjudication: connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (Ct. 1537) 114; A.- G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWL (Pt. 1641)1.
A Court of law is invested with jurisdiction to hear a matter when: “1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 208/(1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’ Adua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80: Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must coexist in order to vest jurisdiction in a Court.

The objector staked/erected its objection on the provision of Section 243 (2) and (3) of the Constitution, as amended. Due to the kingly position of the provision herein, it is germane to pluck it out, where it is ingrained in the Constitution, ipsissima verba, thus:
(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 decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
The provision, which is comprehension-friendly, has fallen for interpretation before the apex Court. In Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24 at 105-106, the oralular Nweze, JSC, incisively, declared:
In all, then, on a holistic interpretation of Sections 240 and 243 (1) of the 1999 Constitution, appeals lie from the trial Court to the lower Court, that is, all decisions of the trial Court are appealable to the lower Court: as of right in criminal matters, (Section 254 c (5) 1(6)) and fundamental right cases, (Section 243 (2)); and with the leave of the lower Court, in all other civil matters where the trial Court has exercised its jurisdiction, Sections 240 read conjunctively with Section 243 (1) and (4).
See, also, Cocoa (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74.
The five grounds, in the notice of appeal, which the objector seeks to impugn and ostracise, are warehoused in the appellant’s 5-leaf unpagenated amended notice of appeal filed on 4th October, 2016. Being the cynosure of the onslaught, I will extract those grounds, derobed of their particulars, verbatim ac litteratim, as follows:
GROUND ONE
The learned trial judge erred in law in refusing to take the Appellants’ Motion on Notice for substitution of 1st-10th Respondents on record and for change of counsel duly filed in Court before proceeding to terminate the right of the Appellants to prosecute the substantive suit.
GROUND TWO
The learned trial judge erred in law and on the facts in holding that the Appellants are bound by the actions of the 1st-10th Respondents thus sitting on appeal, varying and overruling His Lordship’s earlier consent judgment delivered on the 27th day of March, 2014, where the learned trial judge held that Plaintiffs who have resolved to continue with their claims against the 11th Respondent would not be affected by the consent judgment consequent upon a memorandum of understanding between the 1st – 10th Respondents on record and the 11th Respondent dated the 25th day of March, 2014.
GROUND THREE
The learned trial Judge erred in law and on the facts in referring to the Appellants’ Motion on Notice dated the 27th day of March, 2014 and filed on the 23rd day of April, 2014 in His Lordship’s ruling delivered on the 27th day of May, 2014 and held that “Learned defence counsel raised a pertinent issue of law as an Objection to all the applications”.
GROUND FOUR
The learned trial Judge erred in making a speculative order on an issue not before the Court to the effect that the “Court is functus officio as regards any other applications in this case”.
GROUND FIVE
The learned trial judge erred in law and on the facts in foisting the Memorandum of Understanding entered into by the 1st-10th Respondents and the 11th Respondent on the Appellants by holding that the Appellants are bound by the consent judgment entered by the learned trial judge consequent upon the said Memorandum of Understanding on the 27th day of March, 2014.
In total fidelity to the desire of the law, I have married these catalogued grounds, which are in the heat of expunction/decimation, with the inelastic position of the law displayed above. The raison d’etre for the juxtaposition is simple. It is to ascertain whether those grounds are obedient to the law or rebellious to it. I have, in due obeisance to the law, given them a clinical examination with the finery of a tooth comb. To my mind, the meat of the appellants’ grievance in ground one is that the lower Court’s failure or neglect to treat their application curtailed their inalienable right to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended. The right to fair hearing is one of the fundamental rights wrapped in Chapter IV of the Constitution, as amended Ground two accuses the lower Court of sitting on appeal over its decision.

Ground three quarrels with the lower Court’s reference to the appellant’s application in its decision of 27th May, 2014. Ground four chastises the lower Court’s declaration that it was functus officio in its ruling. Ground five seeks to puncture the lower Court’s finding that the appellants were bound by the consent judgment.
It stems from these expatiations, that it is only ground one that orbits around the four walls of fundamental right. It is the only ground that the appellants could appeal to this Court as of right as decipherable from the statutory and case-law authorities dissected earlier. In mind of the law, for grounds two – five, the appellants were required to seek and obtain the leave of this Court before filing them. Curiously, the appellants, in their infinite wisdom, starved this Court of any grain of evidence of fulfillment of this inelastic requirement of the law.
In the sight of the law, leave, in this context, signifies permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987)4 NWLR (Pt. 67) 7181(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt.1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179. Where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent, see UBN Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a Inv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Okwuagbala v. lkwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376; Imegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Ngere V. Okuruket ‘xiv’ (2014) 11 NWLR (Pt. 1417) 147; Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1; Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 6; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt.1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1;

Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258.
It flows, that the appellants’ neglect to obtain the leave, a costly failure, is that those grounds two-five are tainted with an indelible incompetence. The legal consequence of this incompetence is far-reaching. It impinges on the jurisdiction of this Court to entertain those grounds as they await for expulsion.

The appellants crafted four issues for determination of the appeal. They monopolise pages 2 and 3 of the amended appellants’ brief of argument. While issue (1) traces its paternity to the competent ground one, the incompetent grounds two – five mothered issues (ii) – (iv). The incompetence is contagious. It infects/stains the issues (ii) – (iv) and render them orphans and incompetent too. The reason is not far-fetched. An incompetent ground of appeal cannot give birth to a competent issue, see Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Umana (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 456; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Mobil Producing (Nig.) Unltd. v. Johnson (2018) 14 NWLR (Pt. 1639) 329; A.T.S. & Sons v. B.E.C. (Nig.) Ltd. (2018) 17 NWLR (Pt. 1647) 1. The soiled issues (ii)-(iv) will share in the fate of the incompetent grounds two-five: the liability /burden of being struck out.

In the light of this brief legal anatomy, the preliminary objection, invented by the eleventh respondent/objector to snuff life out of the appeal, at its embryo, is partially meritorious. I uphold it in part. Consequently, I declare ground one and issue one as competent and valid. Grounds two-five and issues (ii) –(iv) are struck out for being incompetent. I will proceed to handle the appeal on the viable ground one and issue (i) attendant thereto

Consideration of the appeal
During the hearing of the appeal, learned counsel for the appellant, Honesty Eguridu, Esq, adopted the amended appellants’ brief of argument, filed on 4th October, 2016, and the appellants’ reply brief, filed on 30th October, 2017 and deemed properly filed on 11th March, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the eleventh respondent, Ayodeji Awobiyide, Esq, adopted the eleventh respondent’s brief of argument, filed on 7th June, 2017, and deemed properly filed on 8th June, 2017, as forming his reactions against the appeal. The first – tenth respondents filed no brief of argument.

In the appellants’ brief of argument, learned counsel distilled four issues for determination. It will be recalled that their issues (ii) – (iv) were struck out based on the preliminary objection. The only issue (i), which survived the objection, reads:
(i) Whether given the circumstances of this suit, the refusal of the learned trial judge to hear the Appellants’ Motion on Notice dated March, 27, 2014 and filed on April 23, 2014 was not a gross violation of their right to fair hearing and thereby occasioned a miscarriage of justice.

In the eleventh respondents’ brief of argument, learned counsel adopted the issue with a variation in semantics to wit: “Whether or not the dismissal of appellants’ Motion on Notice dated 23rd April, 2014 was in breach of appellants’ right to fair hearing.”

Arguments on the issue
Learned counsel for the appellants submitted that the lower Court had a duty to hear the appellants’ application. He relied on Kotoye v. Saraki (supra). He explained the events that took place in the lower Court. He asserted that lower Court’s failure to hear the application was a breach of the appellants’ right to fair hearing under Section 36 (1) of the Constitution, as amended. He relied on Gukas v. Jos International breweries Ltd. (supra); Olumesan v. Ogundepo (supra). He added that the appellants had the right to know the fate of the application in writing. He cited Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637; Nalsa & Team Associated v. NNPC (1991) 8 NWLR (Pt. 212) 652; Aito (Nig) Ltd v. ACCMU Ltd. (2004) All FWLR (Pt. 210) 1336. He stated that the appellants’ right to approach the Court was a fundamental right. He cited Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 31; Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638. He described the responsibility placed on the lower Court by Section 254 – C (1) (K) of the Constitution, as amended, as a sensitive one. He reasoned that breach of fair hearing would render proceedings null and void without proof of miscarriage of justice. He referred to Awoniyi v. Registered trustees, AMORC (2000) 10 NWLR (Pt. 676) 522; Ogbonna v. Ukaegbu (2005) 17 NWLR (Pt. 954) 432; Adigun v. A-G, Oyo State (1987) 1 NWLR (Pt. 53) 678; Olumesan v. Ogundepo (supra). He reasoned that the lower Court wrongly descended into the arena against the appellants. He relied on Tafida v. FRN (2014) 5 NWLR (Pt. 1399) 129. He said that the lower Court had no justified reason not to hear the application. He cited Salim v. Ifenkwe (1996) 5 NWLR (Pt. 450) 564.

Learned counsel urged the Court to exercise its power under Section 15 of the Court of Appeal Act. He noted that the appellants’ affidavit was unchallenged and should be relied on. He referred to Obiegwu v. A-G, Fed. (2014) 5 NWLR (Pt. 1399) 171. He asserted that the appellants had the right to make the application when their representatives compromise the suit. He cited Okonji v. Njokanma (1989) 7 SC (Pt. 2) 51; Moon v. Atherton (1972) 2 Q.B. 435; Fadayomi v. Sadipe (1986) 2 NWLR (Pt. (sic) 736. He postulated that the appellants had a right to counsel of their choice. He referred to Tijani v. FBN PLC (2014) 1 NWLR (Pt. 1387) 57; Fawehinmi v. Akilu (1994) 6 NWLR (Pt. 351) 387.

For the eleventh respondent, learned counsel argued, per contra, that the appellants’ application, including the supporting affidavit and written address, was considered and dismissed and there was no denial of fair hearing. He relied on Odigwe v. JSC, Delta State (2011) 10 NWLR (Pt. 1255) 255; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134. He noted that the lower Court considered the appellants’ application in chambers alongside with those of others. He maintained that the learned appellants’ counsel unjustifiably attacked the judge of the lower Court in the brief of argument. He relied on A-G, Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575; Nigergate Ltd. v. Niger State Govt., (2008) 13 NWLR (Pt. 1103) 111; Agbaren v. Mimra (2008) 2 NWLR (Pt. 1071) 411; Sanni v. Agara (2010) 2 NWLR (Pt. 1178) 371; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421.

Resolution of the issue
A microscopic examination of the issue, amply, reveals the kernel of it. It castigates the lower Court’s dismissal of the appellants’ application without hearing it as denial of their right to fair hearing. Though seemingly stubborn, it is canalised within a narrow compass.

Now, the gravamen of the appellants’ chief grievance, indeed their trump card on the issue, is that the lower Court did not hear their application filed on 23rd April, 2014: for substitution of counsel and first-tenth respondents. Expectedly, the eleventh respondent took a diametrically opposed stance: that it was heard by the lower Court. The record, the bedrock of the appeal, will provide an answer to this judicial impasse. The reason is plain. In law, the parties and the Court are bound by the record of appeal which the law presumes correct until the contrary is proved. Indeed, the law presumes the integrity and sanctity of the record of proceedings. An appellate Court is without vires to count in a record what is absent and vice versa. It must read the record in its exact content, see Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012)18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1, Brittania -U (Nig.) Ltd. v. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307; Ukwuyok v. Ogbulu (2019) 15 NWLR (Pt. 1695) 308.

I have, in due allegiance to the desire of the law, given an indept study to the 372-page mountainous record: the spinal cord of the appeal. Incidentally, I am unable to locate, even with the prying eagle-eye of the Court, where the appellants’ application, which monopolises pages 325-340 of the elephantine record, was heard. In other words, there was no place, within the perimeter of the binding record, where the appellants, through their learned counsel, were afforded the opportunity to move/argue the application viva voce or by adoption of written address. In our adjectival law, which is properly sheltered and firmly propagated in our adversarial system of adjudication, application or motion, as it is commonly called, is not self-executory. That is to say, whether on notice or ex-parte, it has to be moved or argued by its owner in the manner ordained by the Court. If it is on notice, then there is, usually, a corresponding response, either in agreement or opposition, by the adversary/opponent. In law, a party or his counsel has to move the Court to grant the relief in the motion except he moves in terms of the motion, see Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 504. That enabling environment, which is usually donated by the Courts to parties, was never availed to the appellants by the lower Court vis-a-vis their application. In my humble view, the lower Court, with due reverence, fractured the law on fair hearing when it denied the appellants the chance to argue their application. It is of no moment that the lower Court stingily alluded to the applications in its ruling as disclosed at page 342, lines 7-11, of the record. The reason is not far-fetched. The reference has no substratum or legal parentage to perch and command any validity.
It is a notorious principle of law that no one puts something on nothing and expects it to stand, seeUAC V. Macfoy Ltd. (1962) AC 152; CCB Plc. v. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom V. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila -the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. This brief juridical survey, with due deference, punctures and exposes the poverty of the eleventh respondent’s seemingly dazzling argument on the point. It cannot fly.
The appellants accused the lower Court’s decision of 27th May, 2014 as an erosion of their inviolable right to fair hearing as guaranteed in Section 36 (1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows, that fair hearing is, totally, divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akubueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480.
The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See, also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra).
As already noted, the law donates to the appellants the unbridled licence to present their case before the lower Court. The lower Court, unjustifiably, failed to hear the appellant’s application. Thus, that was a quintessential instance of violation of the appellants’ inviolate right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended, see Adebiyi v. Adekanbi (2018) 16 NWLR (Pt. 1645) 242. Put simply, the appellants discharged the burden to prove a denial of fair hearing which the law has saddled on him, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellants needed not to prove the damages or losses they incurred consequent upon the breach of their right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran I (supra). A proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.
Where a party’s sacred right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in the ocean of nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran I (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko(2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510 153; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.
The lower Court’s failure to hear the appellants’ application, which cried for its attention in its file, was, with due respect, offensive to the law. In the eyes of the law, it constituted a flagrant infraction of the appellants’ inalienable right to fair hearing as decreed in the sacrosanct provision of Section 36 (1) of the Constitution, as amended, see Otapo v. Sunmonu (supra); Odedo v. Oguebego (supra). In effect, I dishonor eleventh respondent’s learned counsel’s salivating invitation to crown the lower Court’s injudicious exercise with the toga of validity. Such will amount to judicial sacrilege. In the end, I have no choice than to resolve the issue in favour of the appellants and against the eleventh respondent.

My noble Lords, for the sake of completeness, the order to make when a person breaches a party’s unforfeitable right to fair hearing, as engraved in Section 36(1) of the Constitution, as amended, is not a moot point. It is settled that: “once there is such a denial of the said right {right to fair hearing} the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Read Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163.

Furthermore, once an appellate Court intends to order, or orders, for a re-hearing, the law forbids it from treating any other issues in the appeal or points that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355. I will pay due loyalty to this injunction of the law so as not to prejudice the issues that may crop up during the rehearing sessions.
The foregoing deflates the appellants’ supplication to this Court to activate its jurisdiction under Section 15 of the Court of Appeal Act over the application. The provision is lame in the face order of the order of retrial.
This is not a deserving circumstance to ignite the provision and “Until it is awakened into action from its sleep by such a complainant, it remains a contended tiger sleeping in its lair”, see Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 at 35 per Aniagolu, JSC.

On the whole, having resolved the mono issue in favour of the appellants, the destiny of the appeal is obvious. It is imbued with partial merit. Consequently, I allow the appeal in part. Accordingly, I remit the appellants’ application, filed on 23rd April, 2014, in Suit No. NICN/LA/171/2013, to the President of the National Industrial Court of Nigeria for re-assignment to another Judge for hearing on its merit. The parties shall bear the respective costs they incurred in the prosecution and defence of all partially successful appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege of reading in its draft form, the leading judgment which has just been delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA in which the appeal succeeds in part, and consequently, remitted the suit back to the lower Court so that the Appellants’ pending application can be heard before the Court come to a final decision.
I abide with the consequential order made as to costs.
Appeal succeeds in part.

BALKISU BELLO ALIYU, J.C.A.: My learned brother OBANDE FESTUS OGBUINYA, JCA obliged me with the preview of the leading judgment just delivered.

I agree that the appeal succeeds in part and should be remitted back to the lower Court for hearing on the merit of the Appellant pending application filed on the 23rd April, 2014.
I abide by the order of cost made in the lead judgment.
Appeal allowed in part.

Appearances:

Honesty Eguridu, Esq. For Appellant(s)

Ayodeji Awobiyide, Esq. for the 11th Respondent.

No legal representation for the 1st-10th Respondents For Respondent(s)