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Skye Bank Plc V. Victor Anaemem Iwu (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

My Lords, the proximate impulsion to this matter was an order of the Court of Appeal (hereinafter, simply, referred to as “the Lower Court”) contained in its Ruling of November 11, 2014. The said Ruling was sequel to a Motion on Notice of September 24, 2014 wherein the appellant implored it [that is, the Lower Court] to state a case for this Court in view of the constitutional issues and substantial points of law which arose before it.

The Lower Court’s triadic formulations were expressed in these terms:

(1) Whether the Court of Appeal as an appellate Court created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has the jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine all appeals arising from the decisions of the National Industrial Court of Nigeria

(2) Whether there exists any constitutional provision which expressly divested the Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the National Industrial Court of Nigeria

(3) Whether

the Court of Appeal’s jurisdiction to hear civil appeals from the decisions of the National Industrial Court of Nigeria is limited to only questions of Fundamental rights

Pursuant to the Rules of this Court, counsel for the parties filed and exchanged their briefs of arguments. At the hearing of this matter on April 3, 2017, Dr. Charles D. Mekwunye, learned counsel for the appellant, adopted the brief of argument filed on December 11, 2015 and the Reply brief filed on December 16, 2015. On his part, Fes Eze Eke, for the respondent, adopted the brief of argument filed on December 14, 2015.

As a preliminary point, I agree with the observation of counsel for the respondent that “the three questions [above] appear to be similar and a repetition of one another,” [paragraph 2.1, page 5 of the Respondent’s brief].

In the exercise of this Court’s undoubted prerogative to prune down and accentuate, issues in the interest of clarity and brevity, I have taken the liberty to isolate the first question as truly, determinative of the Trinitarian formulations of the Lower Court, Okoro v The State (1988) 12 SC 191; (1988) 12 SCNJ 191; Unity Bank

Plc and Anor v. Bouari (2008) LPELR -3411 (SC) 21-22; A-B; Musaconi Ltd v. Aspinall (2013) LPELR-20745 (SC) 6-7; I.T.I.V. Ltd and Anor v. Anyesom Community Bank Ltd (2015) LPELR-24819 (SC) 20; B-D.

I must quickly, point out that the said issue is, sufficiently, commodious such that it embraces the other outstanding two issues in its canopied ambience. Accordingly, the only issue that calls for the decisive response of this Court is the catholic question couched thus:

Whether the Court of Appeal as an appellate Court created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has the jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine all appeals arising from the decisions of the National Industrial Court of Nigeria

Before dealing with it, however, a restatement of the factual background of the trajectory of this matter to this Court would not, in my humble view, be out of place.

FACTUAL BACKGROUND

At the National Industrial Court, Lagos Division, (throughout this judgment, subsequently, referred to as “the trial Court), the party designated

herein as the respondent, on February 2, 2012, took out an action against the now extinct bank, namely, Afri Bank Nigeria Plc. His claims were inter alia, for wrongful termination of employment; unpaid accrued salaries and other benefits, allegedly due to him in the course of his employment in the said bank. Although, the mutations in nomenclature from Afri Bank Nigeria Plc to Mainstream Bank Ltd and Skye Bank Plc would not delay us here, it has to be noted that Mainstream Bank, as successor-in-title to Afri Bank Nigeria Plc, bore the weight of the forensic contest.

Pleadings were filed and exchanged, as dictated by the Rules of the trial Court. Thereafter, precisely, on July 10, 2012, the said bank, that is, Mainstream Bank Ltd, by Notice of Preliminary Objection, entreated the trial Court to determine the matter in limine on the ground of want of jurisdiction as according to the tenor of the objection, the action was predicated on employer and employee relationship.

Sequel to the exchange of the relevant processes, the trial Court, [Coram Obaseki-Osaghae, J], in its Ruling, dismissed the said objection, finding in favour of the trial

Court’s jurisdiction to hear and determine the matter.

Aggrieved by that ruling, the applicant/bank approached the Lower Court through its Notice and Grounds of Appeal of November 19, 2012. What actually, prompted the Lower Court’s statement of the above constitutional questions for this Court was the respondent’s objection to the appellant’s application for the amendment of its Notice of Appeal: an objection that queried the Lower Court’s jurisdiction to entertain the appeal.

Upon the adoption of the written addresses, the Lower Court, duly adjourned for its Ruling: a Ruling which was put in abeyance since the appellant, on September 24, 2014, beseeched it to state a case for this Court’s opinion on the said constitutional issues. On November 11, 2014, as shown above, the Lower Court, finding sufficient merit in the said application, ordered as prayed. In consequence, it formulated the said questions, as already indicated above.

ARGUMENTS OF COUNSEL

The first issue, which is so commodious that it embraces the other outstanding two issues, is the question couched thus:

Whether the Court of Appeal as an appellate Court

created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has the jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine all appeals arising from the decisions of the National Industrial Court of Nigeria

CONTENTION OF THE APPELLANT’S COUNSEL

The arguments of Dr. Mekwunye, learned counsel for the appellant, come to this. The Lower Court, which exercises both original and appellate jurisdiction, Sections 239, 249, 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria, 1999, (amended) [hereinafter simply referred to as “the 1999 Constitution”], was created to hear and determine appeals from specified trial Courts, Section 237 of the 1999 Constitution and the Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, 2004.

In the exercise of its appellate jurisdiction, it entertains appeals from High Courts, that is, the Federal High Court; the trial Court [National Industrial Court]; High Court of the Federal Capital Territory and the State High Courts (sic, the Customary Court of Appeal of a State; Sharia Court of Appeal of a State etc), Sections 240; 241;

242 and 243, 1999 Constitution; Gafar v. Government of Kwara State [2007] 4 NWLR (Pt 1024) 375; Nwaigwe v. Okere [2008] 13 NWLR (pt 1105) 445; SPM Ltd v. Adetunji [2009] 13 NWLR (Pt 1159) 647; Moses v State [2006] LPELR-1915 (SC) 38; A-C.

He contended that on a holistic interpretation of Sections 240; 242 and 243 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, citing the Lower Court’s decision in Local Government Service Commission, Ekiti State and Anor v. Jegede (2013) LPELR-21131 (CA) 18-19; C-A; Section 36, 1999 Constitution.

He returned a negative answer to the question whether there exists any constitutional provision which expressly divests the Lower Court of its appellate jurisdiction over all civil decisions of the trial Court, citing Local Government Service Commission, Ekiti State and Anor v. Jegede (supra) 18-19; C-A.

He canvassed the view that, as a constitutional right, a right of appeal can only be curtailed as approved by the Constitution, Ugwuh v. A-G, ECS [1975] 6 SC 13; Adigun v. A-G, Oyo State [1987] 2 NWLR

(Pt.56) 197; Ajomale v. Yaduat (No. 1) [1991] 5 NWLR (Pt.191) 257; Obikoya v. Wema Bank Ltd (1989) LPELR -2176; [1989] 1 SC (Pt. 1) 12; Imegwu v. Okolocha and Ors (2013) LPELR -1986 (SC); Global Excellence Comm. Ltd v. Duke (2007) LPELR-1323; [2007] 16 NWLR (Pt. 1059) 22.

Counsel further submitted that, by virtue of Sections 240 and 242 of the 1999 Constitution; Section 24 of the Court of Appeal Act, 2004 and Order 7 Rules 5 and 10 (1) of the Court of Appeal Rules, 2011, a right, exercisable over decisions of the trial Court to the Lower Court, may be either as of right or with the leave of the Lower Court, Local Government Service Commission, Ekiti State and Anor v. Jegede (supra) 16-17; E-E.

He maintained that, while a general right of appeal eventuates from Sections 240; 243 (4); 243 (2) and (3) against all decisions of the trial Court to the Lower Court by virtue of Sections 240 and 243 (4) (supra), the rights in Sections 243 (2) and 243 (2)-(4) may be typologized into two categories, viz, appeal as of right in respect of decisions of the trial Court on matters that impinge on fundamental rights, Section 243(2) (supra). As a corollary,

Section 243, Subsections (2)-(4) consecrate a right of appeal against the decisions of the trial Court to the Lower Court, albeit, with leave of the latter Court.

Against the above background, he canvassed the view that, upon a community interpretation of Section 243, Subsections (2) and (3) with other kindred provisions such as Sections 240 and 243 (4), there inures a right of appeal against the decisions of the trial Court to the Lower Court, although, with the latter’s leave. This, in his view, must be so because it is impermissible to construe Sections 240 and 243 dis-jointly, Elelu-Habeeb v A-G, Federation [2012] 40 WRN 1, 66-68; AG, Federation v Abubakar [2007] All FWLR (Pt. 383) 1264, 1289-1291; I.N.E.C. v. Musa [2003] 3 NWLR (Pt. 806) 72, 102; E.

Explaining the logic on which the above submissions are anchored, he observed that, since there is only one apex Court, the trial Court cannot be seen to be jockeying for primacy with the final Court recognised by the organic law, the Constitution, Local Government Service Commission, Ekiti State and Anor v. Jegede (supra) 20-21; F-C; Local Government Service Commission, Ekiti State and Anor v.

Bamisile (2013) LPELR-20407 (CA) 17-19; B-B.

In his submission, the Constitution could not have stripped the Lower Court of its appellate jurisdiction against the background of the inalienability of the right of access to Court against any person or government for the vindication of civil rights or obligations, Global Excellence Comm. Ltd v. Duke (supra);Section 24 (1) of the Court of Appeal Act; Order 7 Rules 5 and 10 (1) of the Court of Appeal Rules, 2011.

In his submission, therefore, in the exercise of the right of appeal against the decisions of the trial Court, which Section 240 (supra) bequeaths to him, all a prospective appellant needs do is to amble within the compass of the above Court of Appeal Act and its Rules which have already, set out the procedure of appeals either as of right or with the Lower Court’s leave. On the above premise, he contended that there is no procedural lacuna on the mode of exercise of a right of appeal against the decisions of the trial Court.

In all, he invited the Court to hold that since the Constitution brooks appeals from the trial Court to the Lower Court by virtue of Sections 240 and 243 (4)

(supra), a prospective appellant’s right of appeal ought to be guarded and protected rather than being impeded or curtailed, Ugba v. Suswan [2014] 14 NWLR (Pt. 1427) 264, 341; F-G; Engineering Enterprises v. A-G, Kaduna State [1987] 2 NWLR (Pt 57) 381, 400; also, 341; E; Amaechi v. I.N.E.C. (2008) LPELR – 446 (SC) 3. He urged the Court to hold that the Lower Court has the jurisdiction to hear and determine all appeals arising from decisions of the trial Court on civil matters.

Finally, on the issue whether the Lower Court’s jurisdiction to hear appeals from decisions of the trial Court is limited only to questions of fundamental rights, Counsel instantiated cases of erroneous decisions of the trial Court that ought to impel their review by the Lower Court so as to vouchsafe to litigants their right of access to Court, K.S.U.D.B. v. Franz Const. Ltd 1990 NWLR (Pt. 142) 1, 49-52; A-B.

RESPONDENTS ARGUMENTS

As indicated earlier, Fes Eze Eke, for the respondent, adopted the brief of argument filed on December 14, 2015. Making copious or ample references to Sections 240; 241; 242; 243 (2) -(4); 254 C (5) and 254 C (6) (supra),

learned counsel contended that their community reading would yield the view that the Constitution did not make provisions for the exercise of rights of appeal, whether as of right or with leave, in Sections 241(1)(a)-(f) (i)-(v) and (2)(a)-(c); 242(1) and 243 (1). He therefore, expressed the view that the Lower Court’s appellate jurisdiction is limited to the mode in Section 243(2)-(4) (supra); citing Section 241(1)(a)-(f) (i)-(v).

Pointing out that the right of appeal is granted by the Constitution or Statute, and not by statutory interpretation, Nemgia Ltd v Uchey (1973) 4 SC 1; Inigbedeb v. Balogun (1973) 1 All NLR 233, he observed that the framers of the Constitution, clearly intended to rob the Lower Court of appellate jurisdiction over decisions of the trial Court. The only exception, in his view, is with respect to fundamental rights under Chapter IV of the Constitution and criminal matters as provided in Section 254C (6). He equally, drew attention to Section 243(3) on the power of the National Assembly to make laws for the exercise of the Lower Court’s appellate jurisdiction over decisions of the trial Court.

Claiming

that no such law has seen the light of day, he submitted that the Lower Court can only exercise appellate jurisdiction over the trial Court’s decision under the following categories, on questions of fundamental rights; specific appellate jurisdiction contingent on the conferment of such jurisdiction by an Act of the National Assembly and in appeals as of right in criminal matters.

He urged for a community rendition of Sections 243 (2) and (3) with Sections 240; 241 and 242. For him, anything outside that approach would amount to an absurdity and a negation of the doctrine of interpretation, Babatunde v. P.A.S.T.A. Ltd (2007) 13 NWLR (Pt. 1050) 113, 149; Dapialong v. Dariye No. 2 8 NWLR (Pt. 1936) 322; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606; Gafar v. Government of Kwara State [2007] 4 NWLR (Pt. 1024) 375, 1444; A-G, Fed v. Abubakar (2007) 10 NWLR (Pt. 1041) 1, 120-121; F-G.

In an obvious espousal of the literal interpretation, he cited Magor and St. Mellers Rural District Council Newport Corporation (1912) AC 189, 191; 192; Okumagba v. Egbe (1965) 1 All NLR 62, 65; Richard v. MC Bride (1881) B QB 119, 122; I.T.S.P.C. v. Persel

(1891) AC 531, 549; C. A. Ilegbune, “Statutory Interpretation: The Impregnable Reign of Literalism,” in Nig. J.R. Vol. 3 (1978-1988). On the strength of the above authorities, he canvassed the view that from the provisions of Sections 243 (2) – (4) and 254 C (6) (supra), the intention of the framers of the Constitution was to make decisions of the trial Court final except on fundamental rights matters and on cases of the exercise of its jurisdiction in criminal matters in labour/employment matters, citing, Coca-Cola Nig Ltd v. Akinsanya (2013) 18 NWLR (Pt. 1386) 225 and Lagos Sheraton Hotels and Towers v. H.P.S.S.A. (2014) 114 NWLR (Pt. 1426) 45.

On the question whether there exists any constitutional provision divesting the Lower Court of its appellate jurisdiction over the decisions of the trial Court, he referred, once more, to Sections 243(2) – (4) and 254C(6). He maintained that the Lower Court’s appellate jurisdiction conferred by Sections 241(1) (a) – (f) (i) -(v); 242 (2) (a) – (c); 242 (1) and (2) and 243 (1) (a) and (b) are not applicable to the trial Court’s decisions, citing Section 243(2) – (4) and 254C (6) which, in his submission,

specifically, provided for the appellate jurisdiction of the Lower Court over the decisions of the trial Court.

He contended that any contrary interpretation, particularly, any view that Sections 241(1) (a) – (f) (i) – (v); 242(2) (a) – (c) apply to the decisions of the trial Court, would mean that the Lower Court, being famished, was craving for additional jurisdiction to quench its juridical rapacity.

He pointed out that the Constitution would have explicitly, conceded supervisory jurisdiction to the Lower Court over the trial Court, if it had intended that consequence. That, in his submission, accounts for the dichotomy between Section 243 (2) – (a) and 241(1) (a) – (f) (i) – (v). Accordingly, he argued that, if the Constitution had wanted to grant unlimited and unhindered appellate jurisdiction to the Lower Court with respect to civil appeals from the trial Court’s decisions, it would have done that in Section 241(1) (a) – (f) (i) – (v) without the necessity creating a distinct section, namely Section 243(2) – (4).

He submitted that, in the event of any conflict between Section 240 which, in his view, deals with “general appellate

jurisdiction of the Court of Appeal” and Section 243 (2) – (4), this latter provision [Section 243 (2) – (4)] would prevail over the former, citing Abubakar v. Nasamu [No. 2] [2012] 17 NWLR (Pt. 1330) 523, 587; G-H; F.B.N. Plc v. Maiwada [2013] 5 NWLR (Pt.1348) 444, 497; C- E for the view that, while Section 240 is a general provision, Section 243 (2) – (4) is a special provision designed to cater for appeals from the trial, to the lower Court in civil appeals; hence, the latter provisions [Section 243 (2)-(4)] would prevail over the former [Section 240].

Counsel further pointed out that, since Section 240 is made subject to the provisions of the Constitution, it must be subject to Section 243(2) – (4), citing Lovleen Toys Ind. Ltd v. Komolafe [2013] 14 NWLR (Pt. 1375) 542, 543-555; hence, upon a juxtaposition of both provisions, it would be obvious that the latter Section 243(2) – (4) curtailed appeals from the decisions of the trial Court in civil causes and matters.

He relied on A-G, Federation v. A-G, Lagos State [2013] 16 NWLR (Pt. 1380) 249, 302 for the view that Courts must lean in favour of giving unambiguous words in statutory

provisions their ordinary and natural meaning; also, N.E.W. Ltd v. Denap Ltd [1997] 10 NWLR (Pt 527) 481; Ojokolobo v. Alamu [1987] 3 NWLR (Pt. 61) 377; Olanrewaju v. Governor of Oyo State [1992] 9 NWLR (Pt.255) 335; Egbe v. Yusuf [1992] 6 NWLR (Pt. 245) 1; Yarokun v. Adeleke [1960] SCNLR 267; Ahmed v. Kassim [1958] SCNLR 28.

He urged the Court to hold that, a community interpretation of Sections 240; 241(1) (a) – (f) (i) – (v) and 243(2) – (4) would show that the Lower Court has been expressly, divested of its appellate jurisdiction over all civil decisions of the trial Court. He re-iterated his earlier submission that Section 243 Subsections (2)-(4) circumscribe the Lower Court’s appellate jurisdiction to the decisions of the trial Court on fundamental rights matters, Dangana v. Usman [2013] 6 NWLR (Pt. 1349) 50, 79.

Finally, with respect to the third question, he re-iterated the submission that the appellate jurisdiction of the Lower Court is circumscribed to fundamental rights issues, contending that Section 243 (3) is yet to be activated, citing Dangana v. Usman (supra); African Newspapers of Nigeria v. F.R.N. (1985) 2 NWLR (Pt. 6) 137. In

his submission, the fundamental issues must be in relation to labour matter matters.

APPELLANTS REPLY

As noted earlier, the learned counsel for the appellant, equally adopted the Reply brief filed on December 16, 2015. In response to the respondent’s submission, he canvassed the view that there are both constitutional and statutory provisions empowering the Lower Court to exercise appellate jurisdiction over all decisions of the trial Court: a jurisdiction exercisable either as of right or with leave, Section 240; 243(1) – (4); Section 24(1) of the Court of Appeal Act and Order 7 Rules 5 and 10 (1), Court of Appeal Rules (supra).

He advocated that neither a literal interpretation of Sections 240 and 243(2) – (4) nor an isolated construction of Section 243 (2)-(4) would convey their legislative rationale vis–vis the question of the appellate jurisdiction of the Lower Court over decisions of the trial Court. On the contrary, he opined that only a holistic interpretation of the constitutional provisions could illuminate the ambiguity therein, Marwa and Ors v. Nyako (2012) LPELR -7837 (SC); A.T. Ltd v. A.D.H. Ltd (2007) 15

NWLR (Pt. 1056) 118, 166 -167; Nobis-Elendu v. I.N.E.C. [2015] 16 NWLR (Pt.1485) 197, 223; Mobil Oil (Nig) Plc v IAL Inc. (2000) 6 NWLR (Pt. 659) 146.

In his submission, such a literal interpretation of Section 243(2) – (3) would even lead to an absurdity since it would, effectively, tantamount to a denial or curtailment of the aggrieved person’s vested right of appeal, Nobis-Elendu v. I.N.E.C. (supra) 224; C-D; Savannah Bank (Nig) Ltd v. Ajilo (1988) LPELR-3019 (SC); [1989] 1 NWLR (Pt. 97) 305. He invited the Court’s attention to another absurd consequence of the literal interpretation and isolated construction of Section 243(2) – (4). He explained that such approach would elevate the trial Court to the status of a Supreme Court from which no appeal could lie, a situation that would negate the hierarchy of Courts in Section 6 (5) (a) – (k) and that would be contrary to Section 254C and D (1) of the 1999 Constitution.

Learned counsel cited The A-G of Ekiti State and Ors v. Adewumi & Anor [2002] 1 SC 47, 51 for the view that if the words of a statute are ambiguous, then the Law Maker’s intention must be sought, first, in the statute

itself, then in other legislation and contemporary circumstances and by resort to the mischief rule; Ugwu v. Ararume [2007] 12 NWLR (Pt. 1048) 365.

He disagreed with the interpretation which the respondent’s counsel gave to Sections 241(1) (a) – (f) and 243(1) (a) – (b). He contended that, having been mentioned in the marginal note of 243(1) (a) – (b), the trial Court cannot be sequestered from the other Courts therein, that is, the Federal High Court and State High Courts. In effect, the section is equally, applicable to the trial Court.

In his submission, the framers could not have intended to grant an interested party the right to appeal with the leave of the Lower Court, citing 243(1) (a) – (b) juxtaposed with Sections 240 and 243(2) – (4) while curtailing or denying a named party such a right of appeal with the Lower Court’s leave in Section 243(2) – (3). Such a situation would, he contended, amount to an absurdity.

He further debunked the submission that Sections 243 (2) – (4) prevail over Section 240 and that Section 240 was made subject to Section 243(2) – (4) since all constitutional provisions enjoy the same potency, hence,

none is superior to the other, I.N.E.C. v. Musa (supra). Above all, he pointed out that while Section 240 guarantees a litigant’s vested right of appeal against the trial Court’s decision, Section 243(2) – (3) merely shows the mode of exercising or invoking that the said vested right of appeal.

He observed that, since Section 243 (4) is a latter provision, it would, following respondent’s submissions, prevail over Section 243(2) – (3) which are earlier and seem to curtail a litigant’s right of appeal, even then being specific, it should therefore prevail over Section 243(2) – (3), Nobis-Elendu v I.N.E.C. (supra) 224; A-C. He, nevertheless urged the Court to adopt a purposive interpretation of the sections under consideration, citing F.B.N. Plc and Ors v. Maiwada and Ors (2012) LPELR-9713 (SC).

COURT’S OPINION ON THE CASE STATED

My Lords, as indicated at the outset of this judgment, what prompted the Lower Court’s decision to state a case for the opinion of this Court were the divergent views of its two divisions on the constitutional question whether the decisions of the trial Court, that is, the National Industrial Court of Nigeria, were

appealable or not.

On the one hand, its Ekiti Division, in four judgments: Local Government Service Commission, Ekiti State and Anor v. Jegede (2013) LPELR-21131 (CA); Local Government Service Commission, Ekiti State and Anor v. Bamisaye (2013) LPELR-20407 (CA); Local Government Service Commission, Ekiti State and Anor v. Olamiju (2013) LPELR-20409 (CA) and Local Government Service Commission and Anor v. Asubiojo (2013) LPELR-20403 (CA) (hereinafter, simply, referred to as the Ekiti LGA cases) returned an affirmative answer to the said question.

On the other hand, two recent decisions of the Lower Court, Coca-Cola Nig Ltd v. Akinsanya (2013) 18 NWLR (Pt. 1386) 225 and Lagos Sheraton Hotels and Towers v. H.P.S.S.A. (2014) 114 NWLR (Pt. 1426) 45, reasoned per contra, holding that the trial Court’s decisions, other than decisions on fundamental rights, and criminal matters, are final.

When the instant case came before the Abuja Division of the Lower Court, the appellant implored it [that is, the Lower Court] to state a case for this Court in view of the constitutional issues and substantial points of law which arose in the appeal:

constitutional issues that had generated conflicting decisions of various Divisions of the Lower Court. It ordered, as prayed, in its Ruling of November 11, 2014; hence, this Court was entreated to offer its opinion on the Lower Court’s triadic formulations which were expressed in these terms:

Whether the Court of Appeal as an appellate Court created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has the jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine all appeals arising from the decisions of the National Industrial Court of Nigeria
Whether there exists any constitutional provision which expressly divested the Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the National Industrial Court of Nigeria
Whether the Court of Appeal’s jurisdiction to hear civil appeals from the decisions of the National Industrial Court of Nigeria is limited to only questions of Fundamental rights

In the exercise of this Court’s undoubted prerogative to prune down and accentuate issues in the interest of clarity and brevity, I

have taken liberty to isolate the first question as truly, determinative of the Trinitarian formulations of the Lower Court. Indeed, the said issue is sufficiently, commodious such that it embraces the other outstanding two issues in its canopied ambience.

Accordingly, the only issue that calls for the decisive response of this Court is the catholic question couched thus:

Whether the Court of Appeal as an appellate Court created by the Constitution of the Federal Republic of Nigeria, 1999(as amended) has the jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine all appeals arising from the decisions of the National Industrial Court of Nigeria

For clarity of reasoning, I shall proceed to disaggregate the sub-questions interwoven in this compound issue. Since this opinion is woven around the correct interpretation of a host of provisions of the 1999 Constitution [particularly, Sections 240 and 243 (1) – (4); and generally, Sections 242; 254C(5) etc], which would appear to be inconsistent with one another, it would, in my humble view, be proper to commence with an elucidation on the established

principles for the interpretation of constitutional provisions.

That would be followed by a reconstruction of the architecture of the hierarchy of Courts prior to the Third Alteration. In the process, it would be demonstrated how this Court’s decision in N.U.E.E. and Anor v. BPE (2010) LPELR-1966 (SC), 62/2004 prompted the Third Alteration to pitch-fork the trial Court into this architectural framework of the Judicature.

Next, the judgment would disambiguate the intention of the draftsperson in enacting the new provisions in the Third Alteration relevant to this opinion by resort to certain canons of interpretation. Sequel to this approach, it would employ sections of the Constitution in the heady task of the decodation of the said intention of the draftsperson in relation to the provisions on the appellate jurisdiction of the Lower Court, Sections 240; and the exercise of the right of appeal, Section 243 (1) (a) and (b); (2)- (3).

The question whether all decisions of the trial Court are appealable will then be tackled and resolved. In particular, it would attend to the effervescent contention of respondent’s counsel that the exercise of

rights of appeal with leave of the Lower Court is contingent on the enactment of an Act of the National Assembly to that effect. These sub-questions will now be taken seriatim; first the interpretation of the Constitution.

THE INTERPRETATION OF THE CONSTITUTION

This Court, like other commonwealth Courts which operate a written Constitution, has admirably warehoused a robust corpus of what may be termed “the jurisprudence of constitutional interpretation.” The decisions are truly legion – they are numerous. Examples include: A-G, Bendel State v. A-G, Federation and Ors [1981] N.S.C.C. 314, 372-373. Buhari v. Obasanjo [2005] 13 NWLR (Pt. 941) 1, 281; F.R.N. v. Osahan [2006] All FWLR (Pt. 312) 1975, 2019; Savannah Bank Ltd Ajilo [1989] 1 NWLR (Pt. 97) 305, 326; A.D.H. Ltd v. A.T. Ltd (No. 2) [2007] ALL FWLR (Pt. 392) 1781; A-G, Abia State v. A-G, Federation [2005] All FWLR (Pt. 275) 414, 450; A-G, Ondo State v. Ekiti State [2001] FWLR (Pt. 79) 1431, 1472-1473, etc

They include: Ndoma Egba v. Chukwuogor and Anor (2004) 2 S.C. (Pt. 1) 107; A-G, Ogun v. Aberuagba [1985] LPELR-3164 (SC); A-G, Federation v. A-G, Lagos State [2013] LPELR-SC.

340/2010; Obi v. I.N.E.C. (2007) All FWLR (Pt. 378) 1116, 1213; Ifezue v. Mbadugha & Anor. [1984] All NLR 256; Kalu v. Odili [1992] 6 SCNJ 76; Ojukwu v. Obasanjo (2004) All FWLR (Pt. 222) 1666; N.U.R.T.W. v. R.T.E.A.N. [2012] 10 NWLR (Pt. 1307) 170; Governor of Kwara State v. Dada ([2011) All FWLR (Pt. 592) 1638.

Courts, elsewhere in the commonwealth, have espoused the same approaches, Martin v. Hunter 1 Wheat 304, 4 L. Ed 97; Cooper v. Telfair 4 Dal 14, 1 L. Ed; United States v Lefkowitz 285 US 452, 52 S, Ct. 420, 76 L. Ed. 877; United States v Classic 313 US 299, 61, S. Ct, 1031, 85 L. Ed. 1368; Lake County v. Rollins 130 US 662, 9 S. Ct. 651; Fairbank v. United States 181 US 283, 21 S. Ct. 648, 45 L. Ed, 862; United States v. Sharpnack 355 US 286, 78 S. Ct. 291, approvingly, cited in A-G, Bendel State v A-G, Federation and Ors (supra); A-G For North South Wales v. B.E.U.N.S.W. (1908) 6 C.L.R. 469, 611-612, approvingly, adopted in Bank of New South Wales v. The Commonwealth (1947-1948) 76 C.L.R. 1, 332.

From an intimate reading of the alluring reasoning in these decisions, the following broad rules, among others, may be concreted:

(a)

there is the very fundamental prescription that, in interpreting the Constitution – which is the supreme law of the land – mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined therein, Nafiu Rabiu v. State [1980] N.S.C.C. 292, 300; A-G for North South Wales v. B.E.U.N.S.W. (supra), approvingly, adopted in Bank of New South Wales v. The Commonwealth (supra).

Accordingly, where the question is whether the Constitution “has used an expression in the wider or in the narrower sense… this Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution, Nafiu Rabiu v State (supra).

(b) as a corollary, all sections are to be construed together and hence, it is impermissible to construe sections in isolation, A-G, Federation v. Abubakar (2007) All FWLR (Pt. 389) 1264, 1289-1291; Elelu-Habeeb v. A-G, Federation (2012)

LPELR-SC.281/2010; I.N.E.C. v. Musa [2003] 3 NWLR (Pt. 806) 72, 102; A.T. Ltd. v. A.D.H. Ltd [2007] 15 NWLR (Pt. 1056) 118, 166-167; Marwa and Ors v. Nyako (2012) LPELR-7837 (SC).

(c) where the words are clear and unambiguous, a literal interpretation will be applied, that is, they will be accorded their plain and grammatical meaning; N.E.W. Ltd v. Denap Ltd (supra); Ojokolbo v Alamu (supra); Olanrewaju v. Governor of Oyo State (supra); Egbe v. Yusuf (supra); Yarokun v. Adeleke (supra); Ahmed v. Kassim (supra).

(d) however, where there is inherent ambiguity in any section, a holistic interpretation would be resorted to in order to arrive at the intention of its framers, A-G, Federation v. Abubakar (supra); Elelu-Habeeb v. A-G, Federation (supra); I.N.E.C. v. Musa (supra); A.T. Ltd. v. A.D.H. Ltd (supra); Marwa and Ors v. Nyako (supra); Obi v. I.N.E.C. (supra); Ojukwu v. Obasanjo (supra).

(e) since the draftsperson is not known to extravagate words or provisions, it is anathematic to construe a section in such a manner as to render other sections redundant or superfluous, N.U.R.T.W. v. R.T.E.A.N. (supra) 212;

(f) as a follow-up to the rule

against “ambiguity,” if the words of a statute are ambiguous, then the Law Maker’s intention must be sought, first, in the statute itself, then in other legislation and contemporary circumstances and by resort to the mischief rule. The A-G of Ekiti State and Ors v. Adewumi and Anor [2002] 1 SC 47, 51; Ugwu v. Ararume [2007] 12 NWLR (Pt. 1048) 365;

(g) in all, the proper approach to the construction of the Constitution “should be…one of liberalism; a variation on the theme of the general maxim ut res magis valeat quam pereat. As such, it would be improper to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction, equally, in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends, Nafiu Rabiu v. State (supra) 300-301; A-G of North South Wales v. B.E.U.N.S.W. (supra) 611-612; Bank of New South Wales v. The Commonwealth (supra) 332.

Only recently, this Court summed up these prescriptions in Saraki v. F.R.N. [2016] 3 NWLR (Pt. 1500) 531, 631-632, in these words [per Nweze, JSC]:

“…one of the

guiding posts in the interpretation of the provisions of the Nigerian Constitution is that the principles upon which it [the Constitution] was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions, Global Excellence Communication Ltd v. Duke [2007] 16 NWLR (Pt. 1059) 22; A-G, Bendel v. A-G, Federation [1982] 3 NCLR 1.

Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, the construction that is consistent with the smooth working of the system, which the Constitution, read as a whole, has set out to regulate, is to be preferred, Dapianlong v. Dariye [2007] 8 NWLR (Pt. 1036) 239.

The principle that underlies this construction technique is that the Legislature would legislate only for the purpose of bringing about an effective result, I.M.B. v. Tinubu [2001] 15 NWLR (Pt. 740) 690; Tukur v. Government of Gongola State [1999] 4 NWLR (Pt. 117) 517, 579; Aqua Ltd v. O.S.S.C.

[1985] 4 NWLR (Pt. 91) 622; Ifezue v. Mbadugha and Anor [1984] 15 NSCC 314; Nafiu Rabiu v. The State [1980] 8 -9 SC 130.

This approach is consistent with the ‘living tree’ doctrine of constitutional interpretation enunciated in Edward v. Canada [1932] AC 124 which postulates that the Constitution ‘must be capable of growth to meet the future,’ N. K. Chakrabarti, Principles of Legislation and Legislative Drafting, (Third Edition) (Kolkata: R., Cambray and Co. Private Ltd, 2011) 560, citing Graham, “Unified Theory of Statutory Interpretation,” in Statute Law Review Vol. 23, No.2, July, 2002 at 91-134.

I, therefore, endorse the position that the construction of any document [and this includes the construction of the precious and organic document known as the 1999 Constitution] is a holistic endeavour, United Sav. Ass’n of Tex v. Timbers of In wood Forest Assocs Ltd 484 U.S. 365, 371 (1988) (per Scalia, J), see, generally, A. Scalia and G. Garner, Reading Law: The Interpretation of Legal s (St, Paul, MN: Thomson/West, 2012) 167-168; also, Abegunde v. The Ondo State House of Assembly [2015] Vol. 244 LRCN 1, 374.”

As hinted earlier in this

judgment, what prompted this reference to this Court was the worrisome dissonance in the approaches of two Divisions of the Lower Court to the interpretation of Sections 240, 241, 242, 243(2) – (4); 254C(5) and 254C(6) of the 1999 Constitution (as amended). In particular, the Lower Court, in Lagos Sheraton Hotels and Towers v. H.P.S.S.A. (supra), held that, having regard to the Third Alteration, it can only exercise appellate jurisdiction over the decisions of the trial Court on Fundamental rights matters. It further held that unless the National Assembly enacts an Act to that effect, it is bereft of appellate jurisdiction over decisions of the trial Court.

Unarguably, the above views could seldom, shield their progeny, namely, the literal interpretivist approach. In other words, the Court, not only accorded the provisions a literal interpretation; it also, construed them dis-jointly. With profound respect, the vacuity of that reasoning would become evident anon.

Consistent with this Court’s unremitting abhorrence of the isolated interpretation of constitutional provisions, A-G, Federation v. Abubakar (supra); Elelu-Habeeb v. A-G, Federation

(supra); I.N.E.C. v. Musa (supra); A.T. Ltd. v A.D.H. Ltd (supra); Marwa and Ors v Nyako (supra), it cannot be gainsaid that an isolated construction of Section 243 (2) – (3) (supra), would only succeed in further obfuscating the heady question whether the intention of the draftsperson in these provisions was to impinge on, or nibble at, the Lower Court’s appellate jurisdiction in Section 240 or only the “exercise of [that] right of appeal [donated in Section 240] from, [inter alia], the National Industrial Court” or not.

I now turn to the re-construction of the architecture of the hierarchy of Courts prior to the Third Alteration (supra).

ARCHITECTURE OF THE HIERARCHY OF COURTS

Now, prior to the promulgation of the said Third Alteration Act, Section 6 (3) (5) (1) (a) -(i) of the 1999 Constitution, expressly recognized only the “superior Courts of record” listed therein and vested them with the judicial powers of the Federation and of the States, Saraki v. F.R.N. (supra); Olaleye-Ote and Anor v. Babalola (2012) LPELR-SC.197/2004; Dingyadi and Anor v. I.N.E.C. and Ors (2011) LPELR-SC.32/2010; Anakwenze v. Aneke and Ors (1985)

LPELR-SC.90/1984; N.U.E.E. and Ors v. BPE (2010) LPELR-SC.62/2004; C.C.T. and S. Ltd v. Ikot (1999) LPELR-SC.249/1993; Ezeakabekwe v. Emenike (1998) LPELR-SC.85/1991; Egharevba v. Eribo and Ors (2010) LPELR-SC.132/2009; [2010] 9 NWLR (Pt. 1199) 411; Olaolu v. F.R.N. (2015) LPELR-SC.163/2011; Shyllon v. Asein (1994) LPELR-SC.110/1989.

Under that constitutional framework, appeals went from the High Courts (described in Section 240) to the Court of Appeal (in this judgment, simply referred to as the Lower Court) and, thence, to this Court. That was the principle or foundation on which the architecture of the judicature was erected in Section 6(1); (2); (3); (5); Sections 230-284 and 295 (1) of the 1999 Constitution.

Every other Court not found therein was therefore, characterized as an “inferior Court of record,” N.U.E.E. and Anor v. BPE (2010) LPELR-SC.62/2004; [2010] 7 NWLR (Pt. 1194) 538; Nwora and Ors v. Nwabueze and Ors (2013) LPELR-SC.418/2010; Erisi and Ors v. Idika (1987) LPELR-SC.95/1987. This indeed, explains why this Court, in N.U.E.E. and Anor v. BPE (supra) pointed out that the trial Court [National Industrial Court] fell into the

latter category, that is, inferior Courts of record.

N.U.E.E. and Anor v. BPE (supra): the impulsion to the Third Alteration.

This decision [N.U.E.E. and Anor v. BPE (supra)] would appear to have triggered off the concatenation of efforts that led to the promulgation of the Third Alteration to remedy this situation. Put differently, the Third Alteration was, inter alia, prompted by the need to elevate that Court [the trial Court] to the prestigious category of superior Courts within the architecture of the judicial hierarchy of Courts under the Constitution.

To plumb the intention of the draftsperson, therefore, I invite attention to the phraseology of the Long Title of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, (Act No 3), 2010 (hereinafter, simply, referred to as “the Third Alteration”). It is couched thus “An Act to alter the Constitution of the Federal Republic of Nigeria Cap. 23, Laws of the Federation of Nigeria, 2004, for the establishment of the National Industrial Court under the Constitution.” [italics supplied for emphasis].

Indubitably, therefore, the intention of the framers of the

Third Alteration was to incorporate the trial Court [that is, the National Industrial Court] into the category of superior Courts under the Constitution.

A further insight into that intention could be gleaned from Section 2 of the Third Alteration which altered Section 6 of the 1999 Constitution “in Subsection (5) by inserting immediately after the existing Paragraph (c) a new Paragraph (cc) – ‘the National Industrial Court. By this alteration, the superior Courts under the Constitution are now catalogued as shown in Section 6 (3) and 5 (a), (b), (c), (cc), (d), (e), (f), (g), (h) and (i).

To put it beyond argument that the intention was to rank the trial Court equi-pollently, as a Court of coordinate jurisdiction with the High Court in the judicial hierarchy, the draftsperson, in Section 4 of the Third Alteration, superimposed the said Court after the Federal High Court in line 3 of Section 240.

For further effect, Section 254D (1) confers the trial Court with “all the powers of a High Court” for the purpose of exercising any jurisdiction conferred upon it. That is not all. Section 5 thereof altered Section 243 by inserting,

immediately, after the words ‘Federal High Court’ in the marginal note, the words ‘National industrial Court.’

Although, side notes or marginal notes to an enactment do not form parts thereof and do not generally, afford legitimate aid to its construction; at least, it is permissible to consider the general purpose of a section and the mischief at which it is aimed with the marginal notes in mind; and as a signpost to what the section sets out to provide, Idehen v Idehen (1991) LPELR-1416 (SC) 55; F-G; [1991] 6 NWLR (Pt. 198) 382; Oloyo v. Alegbe [1983] 2 SCNLR 35, 57; Uwaifo v. A-G, Bendel State [1982] 7 SC 124, 187-188; O.S.I.E.C. and Anor v. A.C. and Ors (2010) LPELR-2818 (SC) 55; B-C; Yagube v. C.O.P. (1992) LPELR-3505(SC) 17-18.

By the said alteration, the appellate jurisdiction of the Lower Court was expanded, “subject to the provisions of [the] Constitution,” to include the hearing and determination of appeals from, among the other Courts therein, the National Industrial Court, Section 240 (Section 4 of the Third Alteration). It therefore becomes obvious that, since the draftsperson is not known to extravagate words or provisions of

an enactment, it would be anathematic to construe any other section or sections [and here, I have Section 243(2) – (3) in mind] in such a manner as to render the above provisions of Section 240 [on the appellate jurisdiction of the Lower Court over the National Industrial Court] superfluous or redundant, N.U.R.T.W. v. R.T.E.A.N. (supra).

It is the interpretation of the chiaroscuro of these provisions brought about by the Third Alteration that yielded this constitutional conundrum which this Court has been called upon to demystify: a conundrum, aggravated by the divergent responses of the two Divisions of the Lower Court.

Like the dissonance in the decisions of the Lower Court, the respective counsel for the parties herein, equally clung stridently to their divergent conceptions of the intention of the draftsperson in enacting the above sections. In other words, their divergent responses have only but accentuated the obvious ambiguity in the above provisions.

Against the above background and consistent with the established principle of the interpretation of ambiguous constitutional provisions, one fact emerges. It comes to this. The

general purpose of Sections 6(3) and 5 (a), (b), ( c), (cc), (d), (e), (f), (g), (h) and (i)(supra) has to be considered with the mischief, which they were aimed at, in mind, namely to remove the trial Court from the category of inferior Courts and, a fortiori, to elevate it to a superior Court of record.

This done, the above provisions should be mutually conflated with the framer’s intention in enacting Section 4 of the Third Alteration: a section which, as shown above, superimposed the trial Court after the Federal High Court in line 3 of Section 240; and Section 254D (1) which confers it with “all the powers of a High Court.”

What emerges from this exercise [of a harmonious rendition of the general purpose of Sections 6(3) and 5 (a), (b), (c), (cc), (d), (e), (f), (g), (h) and (i) (supra) with Section 240; and Section 254D (1) (supra)] is that the Third Alteration succeeded in vesting the trial Court with a superior status just like the High Courts which were, hitherto, under the appellate jurisdiction of the Lower Court, the Court of Appeal.

In other words, for the purpose of the hierarchy of Courts under the Constitution, the trial

Court is now a Court of coordinate jurisdiction with the said High Courts. As such, the Lower Court [Court of Appeal] has jurisdiction, to the exclusion of any other Court in Nigeria, to hear and determine appeals from [them], Section 240 (supra).

The only difference is that, unlike the Federal High Court and the other categories of High Courts, its [National Industrial Court] decisions are deliberately made appealable only to the Lower Court, the Court of Appeal; there being no further appeal beyond that Court, Section 243(4). In fact, by the most thoughtful insertion of Section 243 (4) (supra), the draftsperson achieved two things.

Firstly, the apex Court was insulated or shielded from the armada of appeals it would have, without this ouster provision in Section 243 (4) (supra), been inundated with having regard to the range of persons under the trial Court’s jurisdiction (rationae personae) and the range and diversity of the subject matters over which it exercises jurisdiction (rationae materiae) in Section 254C(1) – (5) of the 1999 Constitution (as amended).

Secondly, the said Section 243(4) (supra) spares the

litigants before the trial Court the forensic drudgery and weariness associated with agitating matters from trial Courts to the apex Court, often spanning decades, UBN Plc v. Astra Builders (W/A) Ltd (2010) 5 NWLR (Pt. 1186) 1.

Although, not strictly relevant to the opinion of this Court in this case stated, it may be noted in passing that the draftsperson, equally, made similar provisions insulating the apex Court from appeals against the decisions of the Court of Appeal in respect of certain categories of election matters from election tribunals. Here, reference may be made to Section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confers finality on the judgments of the Court of Appeal in respect of appeals from the National and State Houses of Assembly Election Tribunals.

Case Law has dealt with this matter, Opara and Anor v Amadi [2013] 6- 7 SC (pt 2) 49; Madumere v. Okwara [2013] 6-7 SC (Pt. 2) 95; Okadigbo v. Emeka and Anor (2012) LPELR-7839 (SC) 17; Emordi v. Igbeke [2011 4 SC (Pt. 11) 107, 145; Salik v. Idris [2014] 15 NWLR (Pt. 1429) 36; Dangana v. Usman (2012) LPELR-7827 (SC).

The above

conclusion, [that the trial Court is now a Court of coordinate jurisdiction with the said High Courts over which the Court of Appeal exercises appellate jurisdiction], naturally, leads to the next sub-question, that is, whether, a litigant has an unlimited right of appeal to the Lower Court [the Court of Appeal] over all decisions of the trial Court.

Sections 240; 243 (2) – (3): LITERAL INTERPRETATION AND AMBIGUITY OF LEGISLATIVE INTENTION

In the appellant’s Reply brief, counsel contended that

“the literal interpretation of only Section 243(2) – (3) has led to an ambiguous interpretation of the sections given that one may tend to look at the provisions vis–vis the provisions of Section 240 and 243 (4) [ ] to mean that the legislature intended to grant a person an unlimited right of appeal over all decisions of NIC under Section 240 and S 243(4) [ ] and then turn around in Section 243(2) – (3) [ ] to circumscribe and limit that same right of appeal without expressing saying so….”

Section 240 provides thus:

“Subject to the provisions of the Constitution, the Court of Appeal shall have jurisdiction to

the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.

[Italics supplied]

On the other hand, Section 243 Subsections (2) and provide thus:

“243

(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 decisions of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly.

Provided that where an Act or Law prescribes that an appeal

shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.

[Italics supplied]

I entirely agree with Dr. Mekwunye that the respondent’s counsel’s espousal of a literal interpretation of the said sections would conduce to ambiguity in the intention of the draftsperson. Accordingly, I take the view that, in order to ascertain the scope of the Third Alteration, in this regard, in this judgment, I am under obligation to resort to the long title for the general explanation of the purposes of Sections 243(2) – (3), juxtaposed with Sections 240 and 243 (4).

Although, from a historical perspective, Courts excluded titles of statutes when construing them, Salked v. Johnson (1848) 2 Exh, 256; R. v. Wilcock (1845) 7 QB 317; that approach now belongs to the past. The current trend is that the title of a statute is an important part of the enactment and may be referred to for the purpose of ascertaining its general scope.

The cases on this point are numerous and so, only a handful will be cited here to illustrate this point, Jones v. Sherrington (1908) 2 KB

539, 547; Jeremiah Ambler and Amp; Sons Ltd. v. Bradford Corporation (1902) 2 Ch. 585, 594; Haines v. Herbert (1963) 1 WLR. 1401, 1404; Osawaru v. Ezeiruka (1978) LPELR -2781 (SC) 17; A-F; Bello and Ors v. A-G, Oyo State (1986) LPELR-SC.104/1985; Ogbonna v. A-G, Imo State (1992) LPELR-SC.27/1990; [1992] 2 SCNJ 26; A-G, Abia State v. A-G, Federation [2005] All FWLR (Pt. 275) 414, 450; AG, Ondo v. A-G, Ekiti State [2001] FWLR (Pt. 79) 1431, 1472-1473.

As shown earlier, the long title of the Third Alteration announces the raison detre for its promulgation, in this phraseology “An Act to alter the Constitution of the Federal Republic of Nigeria Cap. 23, Laws of the Federation of Nigeria, 2004, for the establishment of the National Industrial Court under the Constitution.” (italics supplied for emphasis).

In one word, the Third Alteration was prompted by the need to overcome the trial Court’s handicap which this Court pointed out in N.U.E.E. and Anor v. BPE (supra), namely, to pluck it from the juridical nadir of inferiority to the superior status enjoyed by the pantheon of Courts in Section 6(3) and (5) (a) -(i).

Having thus been elevated

to the status of a superior Court, ranking in judicial hierarchy with the High Courts, vide, Sections 2, 3, 4, 5 (a), 7, 8, 9, 10, it [the trial Court, that is, the National Industrial Court] cannot, at the same time, navigate out of the Lower Courts circumambient appellate constitutional jurisdiction over all the Courts, now consecrated in Section 240 [as altered by Section 4 of the Third Alteration]. After all, an appellate Court (such as the Lower Court) derives its jurisdiction from the statutory provisions creating it, including the Constitution, Adelekan v. Ecu-line NV (2006) LPELR-113 (SC) 13; E-G; A-G, Oyo State and Anor v. Fairlakes Hotels Ltd (infra); Odofin and Anor v. Agu and Anor (1992) LPELR-2225 (SC) 16; C.

In the instant case, the Court of Appeal derives its appellate jurisdiction over all the Courts catalogued in Section 240 (supra) from the said constitutional provision. In this regard, I endorse the views of the prolific and erudite Senior Advocate of Nigeria, S. T. Hon, who, in his S. T. Hon’s Constitutional and Migration Law in Nigeria (Port Harcourt: Pearl Publishers Ltd 2016) 1101, contended that:

“…it accords

more with ‘common sense, order and good system,’ whereby the Court of Appeal, an intermediate appellate Court, has been given jurisdiction to sit on appeal over decisions of all Lower Courts that fall immediately under the Court of Appeal in terms of judicial hierarchy. The National Industrial Court, which belongs to that lower rung of Courts cannot be an exception, save when the Constitution expressly states so, which is not the case.”

The eminently, erudite author prayed in aid the decisions of this Court in A.D.H. Ltd v. Amalgamated Trustees Ltd (No. 2) [2007] All FWLR (Pt. 392) 1781; Savannah Bank Ltd v. Ajilo (supra).

In my humble view, a contrary interpretation, as urged by respondent’s counsel, would not only wreak havoc to the settled notion of hierarchy of Courts under the Constitution, Buhari v Obasanjo [2005] 13 NWLR (Pt. 941) 1, 281; it would also eventuate to a hermeneutic quagmire -a quagmire which is capable of muddling up the settled hierarchy in the appellate process, Savannah Bank Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305, 326; A.D.H. Ltd v. A.T. Ltd (No. 2) [2007] All FWLR (Pt. 392) 1781.

Surely, if such a literal

approach is endorsed, it would, as learned counsel for the appellant brilliantly contended, be “contrary to the hierarchy of Courts as provided under Section 6 (5) (a) – (k) …and contrary to Sections 254C and D (1),” [paragraph 2. 19; page 6 of the Reply brief].

A fortiori, such an approach would surely, be violative of a cardinal principle in Anglo-Nigerian jurisprudence, namely, the right to resort to a higher Court to review the decision of a Lower Court with a view to determining whether, on the facts placed before it, and applying the relevant and applicable law, the Lower Court came to a right or wrong decision, Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582, 584; Powell and Wife v. Streathani Manar Nursing Home (1935) A.C. 243, 255; Ponnamma v. Arumogam (1905) A.C. 390; A-G, Oyo State and Anor v. Fairlakes Hotel Ltd (L988) LPELR-624 (SC) 130-131; F-E.

This formidable principle stems from the avowed concern to avoid injustice if trial Court decisions were to be final. Indeed, Irikefe, JSC, (as he then was), once voiced his concerns on such a situation in Rabiu v. Kano State (supra), although in the con of criminal

cases.

Hear the distinguished jurist who later became a Chief Justice of Nigeria:

“I would shudder to think that the framers of our present Constitution would have intended, by one fell-swoop, to deny a prosecutor [read, litigant] the right to appeal against an acquittal [read, judgment of a trial Court] on any ground. To my mind, a greater invitation to chaos and or instability there cannot be. It seems to me that, if this were the intention of our law makers, it would be impossible to stem or dam the tide of mischief that would thereby arise. In short, all that a misguided or mischievous bench of first instance need do, is to go to sleep while evidence is being given in a criminal case [read, in a matter] and, at the end thereof, to pronounce the magical words – ‘I acquit…’ [read, judgment for the plaintiff] and there the matter would rest. This could also be an invitation to corruption at its worst. Indeed, a surer way to discredit the entire judicial process may be difficult to find; and when this happens, the alternative is a total and complete break-down of law and order. The possibility that a decision by an inferior Court may be

scrutinised on appeal by a higher Court, at the instance of an aggrieved party, … is, by itself a safe-guard against injustice, by acting as it were, as a curb against capriciousness or arbitrariness.

[parenthesis and italics supplied]

If the draftsperson intended Sections 243(2) – (3) to wield or exert such a revolutionary impact, she/he would have said so in provisions that would have rendered Sections 240 and 243 (4) nugatory. I am therefore, bound to jettison that approach for, in the American-Nigerian construct of constitutional interpretation, the draftsperson has never been known as an exponent of contrarieties or contradictory results, Awolowo v. Shagari (1979) LPELR-653 (SC) 46-47.

Even then, a recourse to the long title, A-G, Abia State v A-G, Federation [2005] All FWLR (Pt. 275) 414, 450; A-G, Ondo v. A-G, Ekiti [2001] FWLR (Pt. 79) 1431, 1472-1473, would reveal that Sections 3 and 5 (1) (a) – (i) have cured the mischief and indeed remedied the trial Court’s limitation by elevating it to a superior Court which exercises all the powers of a High Court, Section 254D (1). I shall, in resolving the divergent submissions of Dr.

Mekwunye and Fes Eze Eke, align with the effervescent view of the former [Dr. Mekwunye] that the purposive interpretation which is consistent with the long title, A-G, Ondo v. A-G, Ekiti (supra); Ogbonna v. A-G, Imo State (supra), is that Sections 243(2) – (3) cannot, by any stretch of interpretive logic, supplant Sections 240 and 243 (4).

Indeed, I agree with Dr. Mekwunye, for the appellant, that the legislature could not have intended that Section 243(2) – (3) could validly curtail or circumscribe the right, expressly, consecrated by Section 240 and 243 (4) for to do so would mean that its intendment was to render the latter provisions redundant and ineffectual: a state of affairs which is anathematic in Anglo-Nigerian jurisprudence, Nokes v. Doncaster Amalgamated Collieries Ltd [1940] AC 1014, 1022; Awolowo v. Shagari (1979) LPELR-653 (SC); [1979] 6-9 SC 37.

I, equally, endorse his view that decisions of the trial Court are not final but, on the other hand, are subject to the appellate jurisdiction of the Lower Court, either as of right [Section 243 (2)] or with the Lower Court’s leave, [Section 242; 243 (1) (a)]: an issue that will be

dealt with, subsequently, in this judgment.

Having said this; I must quickly observe that, while the long title could be prayed in aid (as I have done here) to find the scope and intendment of this enactment, it would have been otherwise if the language employed in these sections was sufficiently plain and unambiguous, Re: Wykes, (decd.) (1961) Ch. 229, 242; Osawaru v. Ezeiruka (supra); Bello and Ors v. A-G, Oyo State (supra); Ogbonna v. A-G, Imo State [1992] 2 SCNJ 26; Adisa v. Oyinlola (2000) LPELR-186 (SC); Afolabi and Ors v. Gov. of Oyo State (1985) LPELR-SC.251, 1984; Mobil Oil (Nig) Ltd v. F.B.I.R. (1977) LPELR-SC.488/75; Abegunde v. OSHA (2015) LPELR-SC.643/2014; Ugu v. Tabi (1977) LPELR-SC.241/1992; Utih and Ors v. Onayivwe and Ors [1991] 1 SCNJ 25; Fawehinmi v I.G.P. and Ors [2002] 5 SC (Pt. 1) 63; A-G, Abia State v. A-G, Federation [2005] All FWLR (Pt. 275) 414, 450; A-G, Ondo v. A-G, Ekiti State [2001] FWLR (Pt. 79) 1431, 1472-1 473.

Now, since by Section 254 D (1), the trial Court ranks equi-pollently, as a Court of coordinate jurisdiction with the High Court, its inclusion in Section 240, as a logical corollary, means that it

comes within the categories of trial Courts over which the Lower Court exercises appellate jurisdiction. Above all, I even take the view that, since the Constitution has conceded rights of appeal to litigants in one section, the draftsperson could not have been minded to strip them of such rights in another section of the Constitution.

In effect, Sections 243 (2) and (3) cannot validly, strip litigants of the rights, expressly, conferred on them by Sections 240 and 243 (4) without an express provision to wreak that kind of, unjustifiable, denudation of the latter right, that is, the right in Section 240 and 243 (4) (supra), Gassol v. Tutare and Ors (2013) LPELR -20232 (SC); A-G, Fed v. Abubakar (2007) All FWLR 1264, 1300; A-B; F.R.N. v. Osahon (2006) 5 NWLR (Pt. 973) 361.

SECTIONS 240 AND 243 (2) – (3): SECTION 243 (1) GUIDE TO THE INTENTION ON THE APPEAL PROVISIONS

Respondent’s counsel, citing Sections 240, 241, 242, 243(2) – (4), 254C(5) and 254C(6) (supra), contended that the Constitution did not make provisions for the exercise of rights of appeal, whether as of right or with leave, in Sections 241(1) (a) – (f) (i) – (v) and (2) (a) –

(c); 242 (1) and 243 (1). In his submission, the Lower Court’s appellate jurisdiction is limited to the mode in Section 243 (2) – (4) (supra), citing Section 241 (1) (a) – (f) (i) – (v).

With respect, nothing could better expose the vacuity or poverty of the above submission than a reference to Section 243 (1) (supra). That section provides:

“243 (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –

(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or High Court or the Court of Appeal at the instance of any other person having an interest n the matter…”

(italics supplied for emphasis)

In the first place, as has already been demonstrated earlier, the superior Courts under the Constitution are now catalogued as shown in Section 6(3) and 5 (a), (b), ( c), (cc), (d), (e), (f), (g), (h) and (i), see, Section 2 of the Third Alteration, which altered Section 6 of the 1999 Constitution, by the insertion of a new paragraph (cc) – ‘the National Industrial

Court.’

By simple logic, under the architecture of hierarchy of Courts for the exercise of the appellate jurisdiction of the Court of Appeal in Section 240 (supra), the trial Court [National Industrial Court] ranks in judicial hierarchy with the High Courts, vide, Sections 2, 3, 4, 5(a), 7, 8, 9, 10 of the Third Alteration.

As a Court that now, exercises “all the powers of a High Court,” by virtue of Section 254D (1) (supra), It [the trial Court, that is, the National Industrial Court] cannot, at the same time, navigate out of the Lower Court’s circumambient appellate constitutional jurisdiction over all the Courts, now, consecrated in Section 240 [as altered by Section 4 of the Third Alteration]. Even then, as indicated earlier, Section 5 thereof altered Section 243 by inserting, immediately, after the words ‘Federal High Court’ in the marginal note, the words ‘National Industrial Court.’

Admittedly, while marginal notes do not form part of, and do not generally, afford legitimate aid to the construction of an enactment; at least, it is permissible to consider the general purpose of a section with them [marginal notes] in mind, Oloyo

Alegbe (supra); Uwaifo v. A-G, Bendel State (supra); O.S.I.E.C. and Anor v. A.C. and Ors (supra); Yagube v. C.O.P. (supra).

Having the said marginal notes in mind, I hold that by the said alteration, the appellate jurisdiction of the Lower Court was expanded, “subject to the provisions of [the] Constitution,” to include the hearing and determination of appeals from, among the other Courts therein, the National Industrial Court.

Fes Eze, did not contest the validity of the above section, that is, Section 243 (1) (a), which affords a party interested, that is, one who was not originally a party to the decision complained of, Chukwu v. I.N.E.C. [2014] 10 NWLR (Pt. 1415) 385, 439, the opportunity of appealing with leave of the Lower Court. Indeed, as this Court explained in Charles Odedo v. P.D.P. and Ors (2015) LPELR-24738 (SC) 71-72 [per Nweze, JSC]:

“When the Draftsperson of the 1999 Constitution (as amended) speaks of ‘person having interest’ in the second clause of Section 243 (1) (a) (supra), he uses the phrase synonymously with the phrase a ‘person aggrieved;’ that is, a person who has suffered a legal grievance, a person against

whom a decision has been pronounced which has wrongfully, deprived him or her of something or wrongfully refused him or her of something or wrongfully affected his or her title to something.

Such an aggrieved person includes a person who has a genuine grievance because an order has been made which prejudicially, affects his interests, L.S.D.P.C. v. Dakur [1992] 11-12 SCNJ 217, 224; Ojukwu v. Government of Lagos State [1985] 2 NWLR (Pt. 10) 806; “K” Line Inc. v. K. R. INT’L [1993] 3 NWLR (Pt. 292) 159; Funduk Eng v. MacArthur [1990] 4 NWLR (Pt. 143) 266; Society-General Bank v. Afereko [1999] 7 SCNJ 171, 187; Ezeagu v. Ufuanya [1996] 7 NWLR (Pt. 456) 226, 231; Funduk v. Madaki (1976) 7 KLR (Pt. 43) 1319; Yusuf v. Adeyemi [2009] 15 NWLR (Pt. 1165) 616; Opekun v. Sadiq (2003) 5 NWLR (Pt. 814) 475.”

If the submission of the respondent’s counsel were to prevail, the question would be: could the draftsperson have intended to denude a named party’s right of appeal with leave of the Lower Court, while beneficently according “a party interested” such a right of appeal with leave

In other words, if a party interested could appeal with the

Lower Court’s leave, could the draftsperson have intended that the same indulgence did not avail a named party, that is, a party to the action, Otapo and Ors v. Sunmonu and Ors [1987] 2 NSCC 677 Surely, the espousal of such a view would be a warped interpretivist equivalent of the logical fallacy of reductio ad absurdum: a situation which this Court has always looked with askance.

This cannot be! While the draftsperson has never been a protagonist of absurd or contradictory results, Awolowo v. Shagari (supra); even when the Court is confronted with such an inherent ambiguity in any section, it would legitimately, resort to a holistic interpretation of all the kindred sections in order to arrive at the intention of their framers,A-G, Federation v. Abubakar (supra); Elelu-Habeeb v. A-G, Federation (supra); I.N.E.C. v. Musa (supra); A.T. Ltd. v A.D.H. Ltd (supra); Marwa and Ors v. Nyako (supra); Obi v. I.N.E.C. (supra); Ojukwu v. Obasanjo (supra).

Above all, for the purpose of deconstructing such inherent ambiguity, this Court has always endorsed the invocation of, among others, the mischief rule of interpretation of enactments. The A-G of

Ekiti State and Ors v. Adewumi and Anor (supra); Ugwu v. Ararume (supra). From my earlier survey of the mischief which the Third Alteration was intended to suppress, I had taken the humble view that the draftsperson intended to pluck the trial Court from the juridical nadir of inferiority to the superior status enjoyed by the pantheon of Courts in Section 6 (3) and (5)(a) – (i).

Thus, as shown above, the purpose of enacting the Third Alteration was to elevate the National Industrial Court to the status of a superior Court, ranking in judicial hierarchy with the High Courts. The draftsperson did not therefore, intend that the said Court, upon its elevation, would navigate out of the Lower Court’s circumambient appellate constitutional jurisdiction over all the Courts now consecrated in Section 240 [as altered by Section 4 of the Third Alteration].

Neither did he, the draftsperson, contemplate that the said Court’s elevation would wreak havoc on the settled notion of hierarchy of Courts under the Constitution, Buhari v. Obasanjo (supra) 1, 281; in other words, the elevation of the National Industrial Court was not intended to muddle up the

settled hierarchy in the appellate process, Section 6 (5) (a) – (k); Sections 254C and D (1), Savannah Bank Ltd v. Ajilo (supra); A.D.H. Ltd v. A.T. Ltd (No. 2) (supra). Accordingly, I find, and hold, that, on a harmonious construction of Sections 240; 242(1); 243(1) (a) and 243(4), a litigant who is aggrieved by a decision of the trial Court, in other civil matters, can exercise a right of appeal with the leave of the Lower Court. The only innovation in this regard is that it makes the Lower Court the final Court with respect to such appeals, Section 243(4).

Interestingly, Section 243 (4) employs the adjective “any” twice in conferring finality to the decisions of the Lower Court. It provides:

“243

(4) Without prejudice to the provisions of Section 254(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court…”

[Italics supplied for emphasis]

Now, the adjective “any” is a word of enormous amplitude which admits of no limitation or qualification, Duck v. Batey 1 QBD 79 and indeed, has been construed to mean “as wide as

possible,”Becket v. Sutton 51 LJ CH; “some, out of many, an indefinite number; one indiscriminately of whatever kind or quantity,” Federal Deposit Ins. Corporation v. Winton C.C.A. Tenn 131, F2 780, 782, Texaco Panama Inc. v. S.P.D.C. (Nig.) Ltd (2002) LPELR-3146 (SC) 28; A-C.

Put differently, the word “any” has a diversity of meanings and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the con and the subject matter of the statute.” I take the view that, in the con of the appellate jurisdiction of the Lower Court, the word “any” in Section 243 (4) means any appeal in respect of the exercise of the civil jurisdiction of the trial Court. Hence, a litigant who is aggrieved by a decision of the trial Court in other civil matters can exercise a right of appeal with the leave of the Lower Court.

One final point on this, from the chapeau or opening words of Section 243 (1) (supra), vis, “Any right of appeal to the Court of Appeal…” [italics supplied], it is evident that the section does not deal with the appellate jurisdiction of the Lower Court. From its

tenor, the draftsperson acknowledges an extant “right of appeal to the Court of Appeal,” obviously, in Section 240.

Employing the marginal note, only, as a signpost to what the Section 243 (1) sets out to provide, Idehen v. Idehen (1991) LPELR-1416 (SC) 55; F-G; [1991] 6 NWLR (Pt. 198) 382; Oloyo v. Alegbe [1983] 2 SCNLR 35, 57; Uwaifo v. A-G, Bendel State [1982] 7 SC 124, 187-188; O.S.I.E.C. and Anor v. A.C. and Ors (2010) LPELR-2818 (SC) 55; B-C; Yagube v. C.O.P. (1992) LPELR-3505 (SC) 17-18, I take the view that the said Section [243 (1)] only relates to the exercise of the right of appeal [already donated by Section 240].

The expression “exercise of” is defined as “the use of power …or right to make something happen,” Oxford Advanced Learners Dictionary (International Students Edition) 510. Against this background, it would seem obvious that, as a sign post, the general purpose of the expression “exercise of” in the marginal notes to Section 243 (1) is to explain that the draftsperson’s intention in enacting the section is to provide for an aggrieved litigant’s power to effectuate or set in motion the right of appeal,

already donated in Section 240 against, inter alia, the trial Court, the National Industrial Court.

FUTURISTIC LEGISLATIVE ACTION BY THE NATIONAL ASSEMBLY

Fes Eze Eke, for the respondent, fell into the temptation of interpreting Section 243 (3) as making the right of appeal with leave contingent on the futuristic exercise of the powers of the National Assembly. However, this cannot be! Here, I, entirely endorse the submission of Dr. Mekwunye, for the appellant, that there is no procedural lacuna on the mode of exercise of a right of appeal, with leave, against the decisions of the trial Court.

In my humble view, in the exercise of the right of appeal against the decisions of the trial Court, which Section 240 (supra) bequeaths to him and with respect to Section 243 (4), “any appeal from any civil jurisdiction”, all a prospective appellant needs to do is to amble within the compass of Section 24 (1) of the Court of Appeal Act, an extant enactment of the National Assembly; an existing Act of the National Assembly.

Section 24 (1) (supra) provides thus:

“24. Time for appealing

(1) Where a person desires to appeal to the

Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.”

He needs equally, to rely on Order 7 Rules 5 and 10(1) of the Court of Appeal Rules, 2011, a subsidiary legislation, whose potency traces its pedigree to the Constitutive Act, Section 18(1) of The Interpretation Act, Cap 123, LFN, 2004; Din v. A-G, Fed. [1986] 1 NWLR (Pt. 17) 471; Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506; Olarenwaju v. Oyeyemi [2001] 2 NWLR (Pt. 697) 229. These two enactments have already set out the procedure of appeals either as of right or with the Lower Court’s leave.

In effect, within the framework of the extant enactment, namely, Section 24 (1) of the Court of Appeal Act (supra) and Order 7 Rules 5 and 10 (1) of the Court of Appeal Rules, an aggrieved litigant can exercise the right of appeal against, inter alia, the trial Court, the National Industrial Court.

Contrary to the submission of Fes Eze Eke, for the respondent, Section 241(1) (a) – (f) (i)

– (v) and Section 241 (2) (a) – (c) and Section 242 (1) and (2) are completely irrelevant to these proceedings since the former Section 241 (1) (a) – (f) (i) – (v) and Section 241 (2) (a) – (c) deals with appeals as of right from the Federal High Court or a High Court and the latter, Section 242 (1) and (2) deals with appeals with leave from the said Courts.

In all, then on a holistic interpretation of Section 240 and 243 (1) of the 1999 Constitution, appeal 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 254C(5) and (6)], and Fundamental rights 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).

The answers to the questions posed to this Court in this case stated, therefore, are (a) the Lower Court, that is the Court of Appeal has the jurisdiction, to the exclusion of any other Court in Nigeria, to hear and determine all appeals arising from the decisions of the trial

Court, that is, the National Industrial Court; (b) no constitutional provisions expressly divested the said Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the trial Court, the National Industrial Court and (c) as a corollary, the jurisdiction of the Court to hear and determine civil appeals from the decisions of the National Industrial Court is not limited, only, to fundamental rights matters.

These shall be the opinions of this Court to be transmitted to the Court of Appeal, Lagos Division, for its guidance in determining the appeal before it.

SC.885/2014

Skye Bank Plc V. Victor Anaemem Iwu (2017) LLJR-SC

Skye Bank Plc V. Victor Anaemem Iwu (2017)

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