Faluyi & Anor V. Nut & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The first respondent commenced this action at the Federal High Court, Abuja through an originating summons filed on May 20, 2008, against the appellant and the third and fourth respondent. They prayed this Court to determine the scope of the powers of the third and fourth respondents with respect to the registration of a trade union in view of the provisions of Sections 3 and 5 of the Trade Union’s Act.
They also prayed this Court to prevent the registration of an association known as Academic Staff Union of Secondary Schools (ASUSS) which the first respondent contends is not registrable as trade union on the ground that the first respondent, is sufficiently, representative of the class of the interested person (i.e. Secondary School Teachers) whose interest the Said ASUSS is intended to represent.
The appellants and the third and fourth respondent in their Preliminary Objections contended that the Federal High Court has no jurisdiction to entertain the case on the ground that the jurisdiction of the Federal High Court is excluded by virtue of the Trade Union’s Act and the National
Industrial Court Act, 2006. Thus, that the proper venue for the determination of this case is the National Industrial Court.
On the issue of Jurisdiction, it is the first respondent contention that their claims are all within Section 251 (1) (q) and (r) of the 1999 Constitution which means that the Federal High Court has exclusive jurisdiction to entertain them. Furthermore, with the aid of decided authorities, the first respondent contended that the issue of jurisdiction to adjudicate over disputes in democratic dispensation are regulated by the country’s ground norm which is the Constitution.
The provisions of the 1999 Constitution override every other provision on the same issue in any other legislation as the Trade Union’s Act and the National Industrial Act. All laws are required to conform and be consistent with the 1999 Constitution. Any law that is inconsistent with the 1999 Constitution is null and void to the extent of inconsistency.
In a considered Ruling dated March 10, 2009, the Federal High Court, Abuja, per M.G Umar J., dismissed the appellants and the third and fourth respondent’s objections and assumed the jurisdiction to
determine the first and second respondents’ action under Section 251 (1) (q) (r) of the Constitution of the Federal Republic of Nigeria, 1999.
The appellant’s dissatisfied with this judgment, appealed to the Lower Court, which dismissed the said appeal. Now he filed appeal to this Court. He formulated the two questions:
I. The complaint under this issue relates to the Constitutional issue of improperly constituted panel of the lower Court when the judgment was delivered on 11th day of July 2014.
II. Having regard to the Jurisdictional and radical nature of Section 254 (c) of the 1999 Constitution whether the lower Court was right to have refused to transfer the subject matter of this appeal to the National Industrial Court which is now the appropriate Court to the lower Court on 9th day of June.
The first respondent, herein formulated the following issues, craving the Courts answers to these precise questions:
I. Whether considering the provisions of Sections 247(1) and 294(1), (2), (3) and 5 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of appeal was duly constituted when it delivered its
judgment in this appeal.
II. Whether considering the circumstances of this case, Section 254 (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) applies to oust the jurisdiction of the Federal High Court from continuing to determine this part-heard case commenced in 2008 by Originating summons.
The second respondent, submitted a sole issue for determination by this Court;
– Whether by virtue the Third Alteration Act, 2010, which amended the 1999 Constitution to vest exclusive jurisdiction in the National Industrial Court to hear labour and employment related matters, the Court of Appeal ought not to have ordered the transfer of the matter to the National Industrial Court when hearing has not yet commenced by the trial Court?
The third and fourth respondents, also formulated two issues for determination from the appellants grounds of appeal, to wit:
– Whether the judgment of the Court of Appeal delivered on 11th July, 2014 by their lordships Coram; M.A.A Adumein, E, Ekanem and M, Mustapha JCA became invalid by reason of the fact that Hon. Justice T. Akomolafe – Wilson who participated at the hearing of the appeal
on 9th June, 2014 was not on the panel that delivered the Judgment?
– Whether by virtue of the Third Alternation Act 2010, which amended the 1999 Constitution to vest exclusive jurisdiction in the National Industrial Court to hear labor and employment related matters, the Court of Appeal ought not to have ordered the transfer of the matter to the National Industrial Court when hearing has not yet commenced by trial Court?
Arguments of Counsel
The complaint under this issue relates to the Constitutional issue of improperly constituted panel of the lower Court when the judgment was delivered on July 11th, 2014.
When the appeal came up for hearing on October 20, 2020, the appellant’s Counsel, E.O AFOLABI, adopted his appellant brief of argument filed September 9, 2014. He placed reliance on the arguments therein as his submissions in his appeal.
In the said brief of argument, the appellant’s Counsel submitted that if is an established principle and title law that a decision of a Court is valid only when that decision was made by a competent Court. See Madukolu v Nkemdilim  1 ALL NLR 587,  2 SCNLR 341.
The appellant’s counsel pointed out that the Appeal filed by the appellants was argued on June 9, 2014. The panel that sat on the day consist of the following justices to wit;
– Hon, Justice M.A.A Adumein
– Hon, Justice T. Akomolafe -Wilson
– Hon, Justice M. Mustapha.
Counsel explained that the combined effect of Section 247(1) and 294 (2) of the 1999 Constitution is that the panel of justices of the Court of Appeal can give their opinion in writing as it relates to the judgment of any particular suit. He maintained that, the absence of the written opinion of Hon. T. Akomolafe -Wilson in the judgment of the Court of Appeal delivered on July 11, 2014, invalidates the said judgment and rendered the said judgment a nullity.
He further stated that the said Hon. Justice Joseph E. Ekanem did not take part in the hearing of the appeal and yet wrote a concurring decision, despite the facts that he never heard the appellant’s when they argued their appeal. This breached their constitutionally guaranteed right of fair hearing enshrined in Chapter IV of the 1999 Constitution. See Sokoto State Govt v Kamdex (NIG) Ltd  7 NWLR (pt. 1034) 446,489.
The learned appellant’s Counsel equally drew the attention to UBWA v TIV AREA TRADITIONAL COUNCIL (2004) ALL FWLR (pt.214) 16.
The 1st Respondent’s contention to Issue one
Attention was drawn to Section, 247(1). He equally referred to Section 294 (1), (2), (3), (4) and (5) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
He observed that page 691 of the record of appeal shows that more than one member of the lower Court sat to deliver the Court’s decision in this appeal on July 11, 2014. Regrettably, however, due to obvious mistake and pressure the lower Court, Hon, Justice T. Akomolafe – Wilson who was on the Panel that heard the appeal on the June 9, 2014, did not deliver any judgment. He argued that the contention that Justice E-EKANEM who was part of the Court’s judgments, but was not part of the panel that sat on the day the appeal was adopted, is misconceived.
The respondent’s counsel maintained that this Court has held in the past that in a case where the panel which delivered the judgment is different from the panel that heard it, will not result to nullity.
SeeSHUAIBU V NAB LTD (1998) 5 NWLR (pt .551) P. 582 at 595, Nana Tawia III v Kwasi Ewudzi 3 WACA 52; Akosua Otwiwa & Anor v Adjioa Kwaseko 3 WACA 230, Chife Yaw Damoah v Chief Kofi Taibil & Anor. 12 WACA 167.
He urged this Court to follow the decision in the above case which is on all fours with the present case and hold that lower Court’s judgment is not a nullity as wrongly urged by the appellants, but merely irregular and since it did not occasion a miscarriage of justice, because there was determination of the appeal by two justices as provided by the Constitution, it would not be set aside.
He explained that the case of Sokoto State v Kamdex (NIG) Ltd (2007) 7 NWLR (pt.1030) P.446 at 489 and UBWA v TIV AREA Traditional Council (2004) All FWLR (pt.214) p.16 at 21-22, relied upon by the appellant’s in support to their argument of this issue do not avail them. This is because these decisions were arrived at without due consideration of the ratio decidendi of the decision of this Honorable Court delivered by Ademola CJN in ADEIGBE & ANOR V KUSIMO & ORS (1965) NMLR P. 284 at 286 to 287.
He pointed out that the appellants did not consider Section 294 (3) of the Constitution of Federal Republic Nigeria 1999 (as amended). He maintained that they did not consider the ratio decidendi in the case ofAdeigbe v Kusimo (supra) before arriving at its decision, the earlier judgment in the case of Shuaibu v N.A.B (supra) was also not considered.
He therefore urged this Court to discountenance the argument of the appellant on the issue and thereby resolve this issue in favor of the first respondent.
The Second Respondent’s Contention on Issue One
The second respondent submitted that in line with the trite position of the law that cases relied upon by the appellants are most apposite of this case. He cited the recent case of Oyetola v Adeleke and Ors unreported appeal, CA/A/EPT/246/2019 delivered on May, 2019.
The second respondent submitted that since the appellant Counsel did not make any new submissions on the day the appeal was adopted, the decision of Hon Justice E. Ekanem ought to affect the judgment delivered. He further submitted that the decision of Hon. Justice Joseph E. Ekanem should be treated as an irregularity which has not affected the
substance or the decision reached in the appeal by the Court below.
The second respondent’s counsel cited Shuaibu v Nigeria Arab Bank (supra), that they should do technical justice against the substantial justice which the Court is known for in this recent time.
He further explained the meaning of “Nullity” as defined in Black’s Law Dictionary, 6th Edition p. 1573.
The Third and Fourth Respondents Contention on Issue One
The third and fourth respondent’s counsel maintained that it is an undisputed fact that Hon, Justice E. Ekanem did not take part in the hearing of the appeal when it was adopted. However, his Lordship wrote a concurring judgment in the appeal which was delivered on the July 11, 2014.
Counsel further contended that any defect in competence is fatal, Madukolu v Nkemdilim and Ors  ALL NLR 587. The learned counsel for the third and fourth respondents, was in agreement with the appellants submission in this issue. Thus, he argued that a Justice, who did not take part in hearing of an appeal, cannot write the judgment, even if it a concurring one; rather, he is allowed to read the Judgment
behalf of the Justice who took sat on the Appeal.
He further submitted that, according to the Constitution, the judgment delivered on July 11, 2014, is regarded as nullity. This is because the judgment is not a complete judgment until all the members who sat on the panel write their own judgment. He further submitted this Court is bound by its recent decision in Ubwa v Tiv Traditional Council and ORS  11 NWLR (pt. 884) 427, 436.
Resolution of Issue One
This is an appeal from the decision of Court of Appeal Abuja Division on June 9, 2014 and judgment was delivered on July 11, 2014. From the record (Page 690), Justices who heard the appeal were following:
- Hon. Justice M.A.A Adumein
- Hon. Justice T. Akomolafe-Wilson
- Hon. Justice M. Mustapha
However, on the day of the Judgment, the panel consisted of the following:
- Hon. Justice Moore A.A Adumein
- Hon. Justice Joseph E. Ekanem
- Hon. Justice Mohammed Mustapha.
This clearly means that Hon. Justice Joseph E. Ekanem who did not take part in the hearing of the appeal on June 9th, 2014, and, when it was adjourned for judgment, he wrote and delivered a
judgment concurring with the leading judgment of M.A.A. Adumein (JCA).
The answer to that submission in the first Respondent’s brief by Ifeanyi Egwuasi Esq., that the judgment delivered on July 11, 2014, cannot be seen as nullity, due to the fact that Hon. Justice E. Ekanem’s judgment, is a concurring judgment which, when excluded will not affect the main judgment, can be found in Sections 247(1) and 294 (1), (2), (3), (4) and (5) of the Constitution of Federal Republic of Nigeria 1999 (as amended) they provides;
– 247. (1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal…
(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety clays after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(2) Each Justice of the Supreme Court or of the Court
of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
(5) The decision of a Court shall not be set aside or treaded as a nullity solely on the ground, of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
In compliance with above provisions of Section 294 of the 1999 Constitution,
each Justice of the Court below, who heard the appellants appeal, ought to have reduced his judgment or opinion in writing for delivery in person or by any of other Justice of the Court on the date fixed for delivery of the judgment.
Failure to comply with these key requirements laid down by the Constitution and the law as delineated in numerous decisions of this Court, will render the Judgment as nullity.
I must stress that I am bound to the decision of this Court in Ubwa v Tiv Traditional Council and Ors  11 NWLR (supra) at page 884 which provided further insights on the duty of the Court when faced with a similar situation.
Speaking for this Court, Kutigi JSC, (as he then was) after being faced with a similar proceeding as in the present, appeal, declared the proceeding as a nullity and opined that:
… the entire proceeding before the Court of Appeal were nullity because all members who heard the appeal and those who wrote the judgments were not same. In other words, all the members who wrote the Judgments were not all present throughout the hearing of the appeal which includes delivery of judgment…
See also the case of Sokoto State Govt v Kamdex (Nig) (2007) 7 NWLR (pt 884) 427 at 489. Speaking for this Court in Sokoto State Govt v Kamdex (supra), Mohammed J.S.C, he opined that:
… the Court of Appeal judgment will be regarded as nullity, due to the following reasons:
- The judgment is not a complete judgment of the Court of Appeal, because one of justices who heard the appeal had not reduced his judgment or opinion in writing capable of being delivered on the day fixed for the delivery as required by Subsection (2) of Section 294 of the 1999 Constitution which makes it necessary for the judgments or opinions of the justices who heard the appeal to be produced in writing before a complete judgment of the Court could be validly emerge.
- The judgment of the Court was defective thereby turning it into something else other than the Judgment of the Court of Appeal.
In the light of all that have been mentioned above, it is inferential to hold that, the judgment delivered by Hon. Justice E. Ekanem, who did not sit with the panel of Justices who heard the appeal on the date set for hearing, assuredly affected the competence of the
Court of Appeal in the proceeding conducted in the delivery of the judgment.
This is due to an improperly constituted Court as regards its members, such that no matter is disqualified for one reason or another, is capable in law that any defect in competence is fatal as the proceedings are nullity.
Section 247 (1) of the 1999 Constitution gives average of three Justices in this type of proceeding and this is not open for any other Justice who did not participate in hearing the appeal to just appear either in substitution for or in addition to those who heard the appeal to write and deliver a judgment in appeal. Thus, this will bring about injustice or miscarriage of justice to the parties of the appeal.
This is because, it is of the view that a person or authority that did not give you an audience or hearing on a complaint brought before him against you, may not likely determine or decide your case in your best interest or justify your matter fairly, it is only fair to resolve this issue in favour of the appellant and hereby hold the judgment delivered on the July 11, 2014, as nullity.
In other words, the key question in this appeal is
whether a justice who did not participate in the hearing of an appeal can take part in writing its own judgment or opinion? In this circumstance, I will answer this question in the negative. As addressed above, the entire proceeding before the Court of Appeal was a nullity. This is because all the members who heard the appeal and those who wrote the appeal were not the same. That is to say, that the members who wrote the appeal were not present throughout the hearing of appeal which includes delivery.
The appeal is hereby allowed and the judgment of Court of appeal, CA/A/256/09 heard by the lower Court on June 9, 2014, and delivered on July 11, 2014, is hereby set aside. It is hereby ordered that appeal no CA/A/256/09 shall be heard de novo by another panel of Justice(s) of Abuja Division of the Court of appeal.
The appeal having succeeded on the first issue for determination alone, and having regard to orders I have made remitting this appeal to the lower Court for hearing, I do not find it necessary to address the remaining issues. No order as to costs and Parties should bear their own respective costs.