Carnation Registrars Limited (Formerly Mainstreet Bank Registrars Limited) v. The President Of The National Industrial Court Of Nigeria & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on the 24th day of July, 2020 in appeal number CA/L/895/2017.

The synopsis to the present appeal is that the appellant had approached the Federal High Court, Lagos Judicial Division (the “trial court”) vide an originating summons dated the 22nd day of April, 2016 seeking for the interpretation of sections 248, 254F and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”) to determine the constitutionality of a memo dated the 30th day of October, 2015 issued by the 1st respondent (the “memo”).

In opposition, the respondents filed a notice of preliminary objection dated the 8th day of June, 2016 contending that the trial court lacked jurisdiction to entertain the matter and that the questions for determination were academic.

A counter-affidavit dated the 10th day of June, 2016 was filed by the respondent. The appellant duly filed the relevant processes in response to the preliminary objection, and in a judgment delivered on the 3rd day of May, 2017, the trial court sustained the respondent’s preliminary objection, holding that it lacked the necessary competence to entertain the suit and consequently declined jurisdiction to determine the questions contained in the originating summons.

The conclusion reached by the trial court did not go down well with the appellant, who initiated an appeal at the lower court vide a notice of appeal dated the 16th day of June, 2017.

The appeal was heard and determined by the lower court, the lower court held the view that the trial court was in grave error when it affirmed the respondents’ preliminary objection.

The court held that to the extent that the appellant’s suit seeks to challenge by way of interpretation certain provisions of the Constitution, the constitutionality or otherwise of an administrative decision made by the 1st respondent, the trial court had ample powers to entertain and determine the suit.

The lower court further agreed with the submission of the appellant that since the suit borders on the interpretation of the Constitution in the context of the facts on record, a few of which I alluded to in this judgment, it cannot be said to be academic. However, the lower court held that the memo is not unconstitutional and consequently dismissed the appeal.

The appellant became nettled by the decision of the lower court to the effect that the Memo is not unconstitutional and the eventual dismissal of the appeal, and consequently filed notice of appeal to this court on the 20th day of August, 2020 containing seven (7) grounds of appeal.

Learned counsel, Dr. Charles D. Mekwunye, prepared the appellant’s brief of argument filed on the 2nd day of November, 2020. In the brief of argument, counsel nominated and argued four (4) issues for determination. The issues for determination are therefore reproduced as follows:

1. “Whether the respondent’s memo dated 30th October, 2015 is not unconstitutional?
2. Whether the administrative memo issued by the respondent dated 30th October, 2015 is not a clog to the appellant’s right of access to the Court of Appeal in view of the extant provisions of Order 8 Rule 10(1) of the Court of Appeal Rules, 2011 made pursuant to section 248 of the Constitution by the President of the Court of Appeal and in view of the Supreme Court decision in Nigerian Agip Oil Company Limited v. Chief Gift Nkweke & Anor. (2016) 37 WRN 1; (2016) 7 NWLR (Pt. 1512) 588 and therefore null and void.
3. Whether the appellant’s constitutional right to fair hearing has not been, is being and likely to be breached by the internal memo dated 30th October, 2015?
4. Whether the dismissal of the appeal in its entirety by the lower court after it resolved some of the crucial constitutional issues in favour of the appellant is not a gross miscarriage of justice?”

The learned counsel for the respondents, Ahmed Adetola-Kazeem, filed the respondents’ brief of argument on the 23rd day of September, 2021 but deemed as properly filed and served on the 31st day of October, 2022. Three (3) issues were nominated for discourse, they are as follows:

1. “Whether in the circumstances of this case, the administrative memo dated 30th October, 2015 issued by the respondent pursuant to the powers of the President of the NICN under section 254F of the Constitution, as amended, which seeks to regulate the internal appeal procedures from the NICN to the Court of Appeal in relation to the compilation of the records of appeal can be said to be unconstitutional?
2. Whether in the circumstances of this case, the administrative memo dated 30th October, 2015 issued by the 1st respondent pursuant to the powers of the President of the NICN under section 254F of the Constitution, as amended, which seeks to regulate the internal appeal procedures from the NICN to the Court of Appeal in relation to the compilation of the records of appeal can be said to have been, is being or likely to infringe on the constitutional right of fair hearing of the appellant?
3. Whether the lower court was right to set aside the appeal and reach a conclusion that the administrative memo dated 30th October, 2015 issued by the respondent pursuant to the powers of the President of the NICN under section 254(1) of the Constitution, as amended is not unconstitutional?”

Meanwhile, the learned counsel for the appellant also filed a reply brief on the 25th day of March, 2022 but deemed as properly filed and served on the 31st day of October, 2022 in response to the arguments canvassed by the learned counsel for the respondent.

Submissions of counsel for the appellant