CASE TITLE: SMART MARK LTD v. AJUZIOGU (2022) LPELR-58904(CA)
JUDGMENT DATE: 4TH NOVEMBER, 2022
JUSTICES: JIMI OLUKAYODE BADA, J. C. A.
MUHAMMAD IBRAHIM SIRAJO, J. C. A.
PETER OYINKENIMIEMI AFFEN, J. C. A.
COURT DIVISION: LAGOS
PRACTICE AREA: JURISDICTION
FACTS:
The Respondent filed an action at the National Industrial Court (trial Court) claiming for a declaration that the suspension of the Claimant is unlawful and a declaration that the Claimant’s appointment is still subsisting among other claims. The suit was instituted at the trial Court during the pendency of a criminal matter against the Respondent and others in charge No. SLG/15/15 at the Magistrate Court, Surulere, Lagos State.
The Appellant claimed that he was not aware of the suit at the National Industrial Court Lagos Division while the Respondent claimed that the Appellant was served with the General form of complaint. Default judgment was therefore granted against the Appellant for failure to defend the suit. The Appellant stated that he became aware of the suit via a letter of demand dated 7/11/2018 and he then appealed to the Court of Appeal.
The Learned Counsel for the Respondent incorporated a Notice of Preliminary Objection in the Respondent’s brief of argument. The grounds of the objection are that the instant appeal is a civil appeal which requires the leave of the Court of Appeal in order to be valid and competent; the Appellant failed to seek and obtain the leave of the Court of Appeal to initiate the instant appeal.
ISSUES FOR DETERMINATION
The appeal was determined on the basis of the preliminary objection raised by the Respondent.
COUNSEL SUBMISSIONS
The learned Counsel for the Respondent in his submission contended that the appeal is incompetent as it is a civil appeal which arose from a decision of the National Industrial Court. It was submitted that the appeal is not amongst the specie of appeals that lie as of right but one that can only be commenced with the leave of the Court of Appeal. He relied on Section 243(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and also referred to the case of SKY BANK PLC VS. IWU (2017) 16 NWLR PART 1590 PAGE 24. Counsel also submitted on behalf of the Respondent that it is only in Fundamental Rights or Criminal Matters that appeal may lie as of right against the decision of the National Industrial Court to the Court of Appeal. All other appeals against the decision of the National Industrial Court may only lie by leave of the Court of Appeal. He therefore urged the Court to strike out the appeal for being incompetent.
Learned Counsel for the Appellant in response to the submission of Counsel for the Respondent contended that the Appellant does not require leave of the Court since ground (1) of the grounds of appeal was based on denial and lack of fair hearing and breach of fundamental rights of the Appellant by the trial Court which occasioned miscarriage of Justice against the Appellant. Appellant referred to the case of ADEYEMI VS. STATE (2014) LPELR – 23062 (SC) PER PETER-ODILI, JSC. He contended that Court processes and other hearing notices were never served on the Appellant and the onus is on the Respondent to prove that those processes were served on the Appellant. Reliance was placed on the cases of ITU VS. STATE (2016) LPELR – 26063 SC PER SANUSI, JSC; LARMIE VS. DATA PROCESSING MAINTENANCE & SERVICES LTD. (2005) LPELR – 1756 (SC) and ABUBAKAR & OTHERS VS. NASAMU & OTHERS (2011) LPELR – 1831 (SC). He therefore urged the Court to dismiss the Preliminary Objection of the Respondent and discountenance all his grounds of objection.
DECISION/HELD
The appeal was struck out for being incompetent.
RATIO
JURISDICTION- JURISDICTION OF THE COURT OF APPEAL: Appellate jurisdiction of the Court of Appeal over appeals from the National Industrial Court
“Section 243(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides for the jurisdiction of the Court of Appeal over the National Industrial Court of Nigeria. Section 243(2) and (3) states as follows: –
“(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on question 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 National Industrial Court to the Court of Appeal as may be prescribed by the Act of the National Assembly provided that where an Act or Law prescribes that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal”.
The 1999 Constitution (supra) also vests the Court of Appeal with additional appellate jurisdiction over the National Industrial Court with respect to criminal matters under Section 254 as amended by the 3rd Alteration Act.
Also, Section 254C (1)(d) of the Third Alteration 2010 to the Constitution provides as follows: –
“Section 254C (1): Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution, and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the National Industrial Court shall have an exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(d) relating to or connected with any dispute over the interpretation and application of the provisions of chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine”.
Further, by Section 254(5) of the Third Alteration to the Constitution, the Court of Appeal has been vested with additional appellate jurisdiction over the National Industrial Court with respect to criminal matters.
Section 254(5) & (6) of the Constitution provides thus: –
“(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.
(6) Notwithstanding anything to the contrary in the Constitution, appeals shall lie from the decision of the National Industrial Court from matters in sub-section (5) of this section to the Court of Appeal as of right”.
A careful examination of the Sections of the 1999 Constitution quoted above, showed that a strict interpretation of the law would reveal that Section 254C (1)(d) of the Third Alteration to the 1999 Constitution empowers the National Industrial Court to entertain the question of fundamental rights, but there is a qualification of the nature of question of fundamental rights contained in Chapter IV of the said 1999 Constitution which the National Industrial Court can entertain.
Such Fundamental Right questions must arise from Employment, Labour, Industrial Relations, Trade Unionism, Employers Association or any other matter which the Court has jurisdiction to hear and determine.
Therefore, if a Fundamental Right question did not arise from the preceding matters stated above, the suit would not qualify as a Fundamental Right matter in which appeal shall lie as of right to the Court of Appeal.
In this case under consideration, the claim of the Appellant was set out earlier in this judgment, but for clarity and avoidance of doubt, the claim is hereby reproduced again as follows: –
“1. A declaration that the suspension of the Claimant is unlawful.
2. A declaration that the Claimant’s appointment is subsisting.
3. An order that the Defendant pay the sum of N83,286.93 (Eighty-Six (sic) Thousand Two Hundred and Eighty-Six Naira Ninety-Three Kobo).
4. General damages in the sum of N1,000,000.00 (One Million Naira) only.
5. Costs of the suit.”
The claims set out above cannot be referred to as a Fundamental Right action under chapter IV of the Constitution (supra). It is a civil matter.
In the case of SKY BANK PLC VS. IWU (2017) 16 NWLR PART 1390 PAGE 24 the Supreme Court held among others that the decisions of the National Industrial Court are appealable to the Court of Appeal as of right in fundamental rights cases and criminal matters, and with leave of the Court of Appeal in all other civil matters which the National Industrial Court has exercised its jurisdiction.” Per BADA, J.C.A.
