ROCHE CONSTRUCTION NIGERIA LIMITED & ANOR v ENYIDEDE

ROCHE CONSTRUCTION NIGERIA LIMITED & ANOR v ENYIDEDE


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON MONDAY, 22ND MAY, 2017


Appeal No: CA/OW/58/2015
CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA


BETWEEN

ROCHE CONSTRUCTION NIGERIA LIMITED & ANOR

APPELLANTS

AND

MR. VICTOR ENYIDEDE

RESPONDENT


PRONOUNCEMENTS


A. APPEAL
1. Formulation of Issues for Determination – Guidelines on the distillation of issues from the grounds of appeal

Whether more than one issue can be formulated from a ground of appeal and vice versa

“I think I should start with the Issue 2 by the Appellants, which their Counsel admits, was distilled from the two grounds of this appeal. The law is trite, that in formulation of issues for determination of appeal, Appellant is free to combine two or more grounds to formulate an Issue for determination, but he is barred from distilling more than one issue from a single ground of appeal, or from duplicating issues from the same set of grounds of appeal. This is a well-known and established practice in appellate adjudication, and so a party cannot split a ground of appeal to generate two issues for determination of appeal. He cannot also donate another issue for the determination of appeal from the same ground(s) of appeal from which he had earlier formulated an issue for determination. See the case of Obosi vs N.P.S. & ors (2013) LPELR – 21397 CA:

“By law no more than one issue must distill from a single ground of appeal, though an issue can generate from a combination of grounds of appeal. Any issue not distill from any ground of appeal is in-competent and must be discountenanced by the Court, together with the arguments thereunder in consideration of appeal,.” (See Marcathy vs Tope (2012) ALL FWLR (Pt.648)833; Nwaigwe vs. Okere (2008) ALL FWLR (Pt.413) 843; Oseni vs Bajulu (supra); Afribank Nig Plc vs Yelwa (2011) ALL FWLR (Pt.585) 296; Blessing vs FRN (2013)12 WRN 36 at 61 Shettima vs. Goni (2012)19 WRN 1) …

Appellant’s Counsel in this appeal had distilled the 1st issue for determination from ground 1 of the appeal. He also, erroneously, claimed to have distilled the 2nd issue from grounds 1 and 2. He cannot do that, having formulated the 1st issue from the 1st ground of appeal. Appellant cannot split a ground of appeal into two issues…”

In the case of Egbebu vs IGP & ors (2016) LPELR – 40224 (CA), it was held:

“… Moreover, once a party has distilled an issue from a given ground of appeal, or joined the ground with other ground(s) to distill an issue for determination of the appeal, that ground s) is no longer available to combine with another or other grounds to distill another issue for determination of the appeal. See the case of Anodu Vs Commandant P.C. Maiduguri (2009)15 NWLR (pt.116) 75; SPDC Vs Registar of Business Premises, Abia State (2015)3 CAR 433; Barr. Ortha Jev. & Anor Vs Sekan Dzua Iyortyyom & Ors (2014) NWLR (pt.1428) 578 at 608; Iroganachi Vs Madubuko & Anor ( 016)LPELR 40048 (CA).” Per MBABA, JCA. read in context

B. JURISDICTION
2. Jurisdiction of the Court of Appeal – Powers of the Court of Appeal to hear appeals from the National Industrial Court

Extent of the jurisdiction of the Court of Appeal over appeals from the National Industrial Court

“By the provision of Section 243(c) (2) (3) of the 1999 Constitution, as amended:

”(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 right as contained in Chapter IV of this Constitution, as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly Provided that where an Act or law prescribes that, an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal”
This law has come for the interpretation of this Court, several times, and the result is always the same, that pending what the apex Court would say later, on this issue, it appears the National Industrial Court is vested with the final authority, and determinant of matters, placed before it, except in respect of issues of fundamental right, under Chapter IV of the 1999 Constitution, where right of appeal exists, as of right and in respect of criminal causes. See the case of Ikwuano Local Government Council Vs Hon. Ikechukwu C. Owobe & Ors (2016) LPELR 41306 (CA), where this Court observed:
“Meanwhile the combined reading of Section 9 of the National Industrial Court Act 2005 and Section 243 (2) and (3) of the 1999 Constitution, as amended, appears to allow no penetration, or opening of the seal of the judgments of that Court (National Industrial Court) for any review, except in respect of issues of enforcement of fundamental rights, whereof appeal to the Court of Appeal is as of right. See the case of Coca Cola Nig. Ltd Vs Akinsanya (2013) 18 NWLR (pt.1386)255; Lagos Sheraton Hotel and Towers Vs Hotel and Personal Services Senior Staff Association (2014)LPELR – 23340 (CA) and Zenith Bank PLC VS Caroline Dennis Durugbor (2015)LPELR – 24898 (CA).”
In the case of Lagos Sheraton Hotel and Towers Vs Hotel & Personal Services Senior Staff Association (Supra), my learned brother, Oseji JCA, said:
“My own understanding and interpretation of the said Section 243( ) of the Constitution of the Federal Republic of Nigeria 1999, as amended, is that, except for the right of appeal under Section 243(2) and 254C (5) and (6), therein, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any cause or matter in which jurisdiction is conferred on the National Industrial Court, shall be prescribed by an Act of the National Assembly… put it another way, except for the provisions of Section 243(2) and 254(5) and (6) of the 1999 Constitution, as amended, wherein, an aggrieved party can appeal, as of right, to this Court on questions of fundamental rights, as contained in Chapter IV of the Constitution, as well as decisions in criminal causes, and as relate to matters upon which the National Industrial Court has jurisdiction; an appeal on any other matter shall be prescribed by an Act of the National Assembly, and that is not all. Such appeal shall be only with the leave of the Court of Appeal”.
Meanwhile, I am not aware of any Act of the National Assembly, made pursuant to that provision in Section 243(3), prescribing, how else, an appeal shall lie from the National Industrial Court to the Court of Appeal. In the case of Zenith Bank Plc Vs Durugbor (2015) LPELR – 24898(CA), Nimpar JCA said:
“While I agree with the sentiments, expressed by my learned brother in relation to the ultimate jurisdiction of the National Industrial Court in labour and employment matters, the position of the law, as interpreted, cannot be faulted. Until there is an enactment prescribing the instances of appeal to this Court from the National Industrial Court, or an amendment of Section 243 of the Constitution, the National Industrial Court remains the final Court in such matters upon which the Court has jurisdiction, except in decisions relating to questions of fundamental rights, expressed under Chapter IV of the Constitution.”
See also the views of Abiriyi JCA on the issue in the case of Government Board of Refus Giwa Polytechnic, Owo, Ondo State Vs Abodunrin Moses Ola & 31 Others (2016)16 NWLR (pt.1537)1 ratios 3 and 7. Unfortunately, that appears to be the conclusion of the matter, for now, no matter anybody’s disappointment with, what looks like, the overwhelming powers, donated to the National Industrial Court, by the Constitution of the Federal Republic of Nigeria, as amended, which tends to make that Court a final Court (or Supreme Court) in causes and matters under its jurisdiction, except in respect of issues of enforcement of fundamental rights under Chapter 4 of the Constitution, and/or criminal causes. The situation remains until the National Assembly comes up with a legislation that can curtail or contain the sweeping powers of the National Industrial Court, and allow appeal, to review other decisions of the National Industrial Court, especially, as all issues of employment and labour matters, are exclusively vested in that Court, and same are wont to touch on fundamental rights of parties relating to fair hearing. See Ikwuano Local Government Council Vs Owobe & Ors (2016) LPELR – 41306 CA, (pages 41-42).”Per MBABA, JCA. read in context


LEAD JUDGEMENT DELIVERED BY MBABA, JCA.


This is an appeal against the Judgment of the National Industrial Court, Owerri in Suit NO.NICN/EN/105/2013, delivered on 10/2/15 by Hon. Justice O.Y. Anuwe, wherein the lower Court gave judgment to the Plaintiff and granted the claims of the plaintiff (now Respondent).

At the trial Court, the Respondent, had sought;

(a) A declaration that he is still an employee of the 1st Defendant.

(b) The sum of $7,500,00 (Seven Thousand Five Hundred Euros) or its equivalent in Naira at the Central Bank of Nigeria’s official rate, as at the time of judgment, being his salary for January, February and March 2013

(c) An order directing the 1st Defendant to pay him his salary at the end of every month until the suit is determined.

(d) 10% interest on the judgment debt from the date of judgment and until the judgment debt is liquidated.

(e) N800, 000.00 as cost of this action”

He filed his statement of claim and the Defendants (now Appellants) filed their defence and the case proceeded to hearing, whereof the parties adopted their front loaded documents and particulars on oath, testified and were cross examined. At the end of the hearing, and addresses of Counsel, the trial Court held for the Respondent;

“…it has been resolved in this judgment that the claimant remains an employee of the 1st Defendant till date, his employment not having been shown to have been terminated. It is also my view that the Defendants have not proved that they have power, under the contract and in law, to suspend the Claimant, without pay. Consequently, the claimant is entitled to his monthly salaries from the date of his suspension, till the date of this judgment. In the final analysis and for the avoidance of doubt, my orders in this judgment are these:

(1) It is declared that the claimant is still an employee of the 1st defendant.

(2) The defendants are ordered to pay the claimant his salaries from the month of January 2013 till the date of this judgment at the sum of 2,500 Euros (or its Naira equivalent, at the official Central Bank of Nigeria rate) per month.

(3) The claimant’s cumulative salaries as ordered to be paid to him above, shall be paid to him by Defendants within 30 days of the date of this judgment, after which it shall attract interest, at the rate of 10% per annum, until it is finally paid to him.

Parties are to bear their cost of litigation.” (See page 129 of the Records of Appeal)

Dissatisfied with the above, Appellants filed their Notice and grounds of Appeal on 15/5/15 and raised two grounds of appeal – pages 130 – 131 of the Records. Appellants filed their Brief of arguments on 11/8/2015 and distilled two Issues for the determination of the appeal, namely:

(1) Whether it was proper for the Trial judge to have granted reliefs not sought by the Respondent, which relief(s) breached the 2nd Appellant’s right of fair hearing.

(2) Whether, the Respondent as at the date of the delivery of the judgment of the lower Court, (10/02/2015) was an employee of the 1st Appellant.

The Respondent filed a Notice of Preliminary Objection to the hearing of the Appeal and a Respondent’s Brief. His objection was that the two grounds of appeal are incompetent, that;

(a) Ground one does not legally raise any issue of denial of fair hearing since the 2nd Appellant was a party to suit NO.NICN/EN/105/2013, filed a defence to the suit and testified as a witness for himself and the 1st Appellant.

(b) Issue No.2 is not based on any ground of appeal

(c) Ground 2 … violates Section 243 (2) (3) of the Constitution of the Federal Republic of Nigeria (Alteration) Act, 2010, because it was filed without the leave of the Court of Appeal.

(d) The Appellants Brief of Argument, dated 7th August, 2015 but filed on 11th August, 2015 is incompetent in that it was based on issues distilled from 2 grounds of appeal both or one of which is incompetent.

(e) The joint argument of the two Issues as formulated is fatal to the appeal since this honourable Court cannot severe or sift the arguments in support of the competent issue from those in support of the incompetent issue.

The Respondent also formulated two issues for the determination of the Appeal (in the Alternative), as follows:

(1) Whether the 2nd Appellant’s right to fair hearing was indeed violated by the reliefs granted by the trial Court.

(2) Whether the Respondent, as at the date of the delivery of the judgment of the lower Court (10/02/2015), was an employee of the 1st Appellant.

Appellant filed a Reply Brief on 20/5/16, which was deemed duly filed on 7/12/16, to contest the Preliminary objection.

It is necessary to consider the Preliminary Objection, first, this being an appeal from the National Industrial Court, to determine whether this Court (Court of Appeal) has jurisdiction to entertain this appeal, going by Section 243(c) of the 1999 Constitution, as amended (which the Respondent referred to as Section 243 (2) (3) of the Constitution of Federal Republic of Nigeria (Third Alteration) 2010 Act).

Arguing the Preliminary Objection, Counsel for Respondent, Patrick O. keanyanwu Esq. said, Appellant’s ground one, complaining of fair hearing was only a clever but futile, way to circumvent the legal restriction, placed on litigant’s right of appeal against decisions of National Industrial Court, except on issue of enforcement of fundamental rights. He relied on Section 243 (2) – (4) of the 1999 Constitution, as amended. He argued that there was no issue of violation of fundamental rights in the suit, to invoke the jurisdiction of this Court to entertain the appeal.

Counsel relied on the case of Lagos Sheraton Hotel & Towers vs Hotel & Personal Services Senior Staff Association (2015) ALL FWLR (Pt.765) 340. He urged us to strike out the appeal for want of jurisdiction of this Court to entertain it.

Counsel also argued that the Issue two by the Appellants was not distilled from any of the grounds of appeal, or did not flow from the 2nd ground of the appeal; that ground 2 was:

“The entire judgment is against the weight of evidence which tramples against the fundamental rights of the Defendants.”

But the Issue 2, purportedly distilled from the above, asks:

“Whether the Respondent, at the date of delivery of the judgment of the lower Court (10/02/2015), was an employee of the 1st Appellant.”

Counsel argued that there is no nexus between the two, adding that the ground of appeal attempts to cleverly introduce the question of fundamental right into the appeal, to circumvent the law restricting appeal to this Court from some decisions of the lower Court. He argued that an issue for determination, which does not flow or arise from a ground of appeal, is incompetent and liable to be struck out. He relied on Khalil vs. Yar’Admas & ors (2003) 16 NWLR (Pt.847) 446 at 461.

He added that the entire argument of the Appellants, therefore, become incompetent, being founded on the incompetent grounds of appeal, which cannot invoke the jurisdiction of this Court.

Replying, Counsel for the Appellant, K. K. Iheme Esq., submitted that the Respondent’s arguments were misconceived; that the first ground of the appeal by the Appellant was hinged on violation of 2nd Appellant’s right of fair hearing. He relied on the Black Law Dictionary (9th Edition) page 789, for the definition of “fair hearing” – “A judicial or administrative hearing conducted in accordance with due process.”

For definition of “due process”, Counsel relied on page 575 of the Black Law Dictionary, and on the case of Samuel Jimoh Eshenake vs Chief Napoleon Gbinije & Ors. (2005) LPELR 7541 CA, on the meaning of ‘fair hearing’, as “all the legal rules formulated to ensure that justice is done to the parties.”

Counsel submitted that the trial Court did not respect the above Rules and principles, when it ordered both Appellants to pay Respondent his salaries. He argued that the 2nd Appellant was an employee of the Respondent (not employer of the Respondent) and so there was no basis to order him and 1st Appellant to pay salary to the Respondent. Counsel said the case of Lagos Sheraton Hotel & Towers vs. Hotel and Personal Services Senior Staff Association (2014) LPELR – 23340 CA, relied upon, was not applicable to this case.

On the 2nd issue, Counsel said that the said issue was distilled from both grounds 1 and 2 of the appeal and urged us to discountenance the objection of the Respondent.

Appellants clearly stated, in paragraph 2.01 of the Reply Brief, filed on 20/5/16, and deemed on 7/12/16:

“We submit that Issue No. two (2) of Appellants’ Brief of Argument is distilled from both Grounds 1 and 2 of the Notice and Grounds of Appeal.” (Underlining mine)

Of course, Appellant had already distilled Issue 1 from the same 2 grounds of appeal. In paragraph 4 of the Reply Brief, he said: “The Appellant’s Brief of argument and issues therein are competent and flow from both Grounds 1 and 2 of the Notice and Grounds of appeal.”

RESOLUTION OF THE PRELIMINARY OBJECTION

I think I should start with the Issue 2 by the Appellants, which their Counsel admits, was distilled from the two grounds of this appeal. The law is trite, that in formulation of issues for determination of appeal, Appellant is free to combine two or more grounds to formulate an Issue for determination, but he is barred from distilling more than one issue from a single ground of appeal, or from duplicating issues from the same set of grounds of appeal. This is a well-known and established practice in appellate adjudication, and so a party cannot split a ground of appeal to generate two issues for determination of appeal. He cannot also donate another issue for the determination of appeal from the same ground(s) of appeal from which he had earlier formulated an issue for determination. See the case of Obosi vs N.P.S. & ors (2013) LPELR – 21397 CA:

“By law no more than one issue must distill from a single ground of appeal, though an issue can generate from a combination of grounds of appeal. Any issue not distill from any ground of appeal is in-competent and must be discountenanced by the Court, together with the arguments thereunder in consideration of appeal,.” (See Marcathy vs Tope (2012) ALL FWLR (Pt.648)833; Nwaigwe vs. Okere (2008) ALL FWLR (Pt.413) 843; Oseni vs Bajulu (supra); Afribank Nig Plc vs Yelwa (2011) ALL FWLR (Pt.585) 296; Blessing vs FRN (2013)12 WRN 36 at 61 Shettima vs. Goni (2012)19 WRN 1) …

Appellant’s Counsel in this appeal had distilled the 1st issue for determination from ground 1 of the appeal. He also, erroneously, claimed to have distilled the 2nd issue from grounds 1 and 2. He cannot do that, having formulated the 1st issue from the 1st ground of appeal. Appellant cannot split a ground of appeal into two issues…”

In the case of Egbebu vs IGP & ors (2016) LPELR – 40224 (CA), it was held:

“… Moreover, once a party has distilled an issue from a given ground of appeal, or joined the ground with other ground(s) to distill an issue for determination of the appeal, that ground(s) is no longer available to combine with another or other grounds to distill another issue for determination of the appeal. See the case of Anodu Vs Commandant P.C. Maiduguri (2009)15 NWLR (pt.1163) 75; SPDC Vs Registar of Business Premises, Abia State (2015)3 CAR 433; Barr. Ortha Jev. & Anor Vs Sekan Dzua Iyortyyom & Ors (2014) NWLR (pt.1428) 578 at 608; Iroganachi Vs Madubuko & Anor (2016) LPELR 40048 (CA).”

I think that flaw, alone, of combining the two grounds of appeal to duplicate 2 issues for the determination of appeal, is enough to defeat the competence of this appeal.

The other issue, raised in the preliminary objection, was that Appellants had cleverly (but in futility) couched the grounds of appeal to look sound as issues of fair hearing, in order to circumvent the restrictions placed on a litigant to bring appeal against the decision of National Industrial Courts, except on issues of fundamental rights enforcement, pursuant to Chapter IV of the 1999 Constitution, as amended.

By the provision of Section 243(c) (2) (3) of the 1999 Constitution, as amended:

”(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 right as contained in Chapter IV of this Constitution, as it relates to matters upon which the National Industrial Court has jurisdiction.

(3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly Provided that where an Act or law prescribes that, an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal”

This law has come for the interpretation of this Court, several times, and the result is always the same, that pending what the apex Court would say later, on this issue, it appears the National Industrial Court is vested with the final authority, and determinant of matters, placed before it, except in respect of issues of fundamental right, under Chapter IV of the 1999 Constitution, where right of appeal exists, as of right and in respect of criminal causes. See the case of Ikwuano Local Government Council Vs Hon. Ikechukwu C. Owobe & Ors (2016) LPELR 41306 (CA), where this Court observed:

“Meanwhile the combined reading of Section 9 of the National Industrial Court Act 2005 and Section 243 (2) and (3) of the 1999 Constitution, as amended, appears to allow no penetration, or opening of the seal of the judgments of that Court (National Industrial Court) for any review, except in respect of issues of enforcement of fundamental rights, whereof appeal to the Court of Appeal is as of right. See the case of Coca Cola Nig. Ltd Vs Akinsanya (2013) 18 NWLR (pt.1386)255; Lagos Sheraton Hotel and Towers Vs Hotel and Personal Services Senior Staff Association (2014)LPELR – 23340 (CA) and Zenith Bank PLC VS Caroline Dennis Durugbor (2015)LPELR – 24898 (CA).”

In the case of Lagos Sheraton Hotel and Towers Vs Hotel & Personal Services Senior Staff Association (Supra), my learned brother, Oseji JCA, said:

“My own understanding and interpretation of the said Section 243(3) of the Constitution of the Federal Republic of Nigeria 1999, as amended, is that, except for the right of appeal under Section 243(2) and 254C (5) and (6), therein, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any cause or matter in which jurisdiction is conferred on the National Industrial Court, shall be prescribed by an Act of the National Assembly… put it another way, except for the provisions of Section 243(2) and 254(5) and (6) of the 1999 Constitution, as amended, wherein, an aggrieved party can appeal, as of right, to this Court on questions of fundamental rights, as contained in Chapter IV of the Constitution, as well as decisions in criminal causes, and as relate to matters upon which the National Industrial Court has jurisdiction; an appeal on any other matter shall be prescribed by an Act of the National Assembly, and that is not all. Such appeal shall be only with the leave of the Court of Appeal”.

Meanwhile, I am not aware of any Act of the National Assembly, made pursuant to that provision in Section 243(3), prescribing, how else, an appeal shall lie from the National Industrial Court to the Court of Appeal. In the case of Zenith Bank Plc Vs Durugbor (2015) LPELR – 24898(CA), Nimpar JCA said:

”While I agree with the sentiments, expressed by my learned brother in relation to the ultimate jurisdiction of the National Industrial Court in labour and employment matters, the position of the law, as interpreted, cannot be faulted. Until there is an enactment prescribing the instances of appeal to this Court from the National Industrial Court, or an amendment of Section 243 of the Constitution, the National Industrial Court remains the final Court in such matters upon which the Court has jurisdiction, except in decisions relating to questions of fundamental rights, expressed under Chapter IV of the Constitution.”

See also the views of Abiriyi JCA on the issue in the case of Government Board of Refus Giwa Polytechnic, Owo, Ondo State Vs Abodunrin Moses Ola & 31 Others (2016)16 NWLR (pt.1537)1 ratios 3 and 7.

Unfortunately, that appears to be the conclusion of the matter, for now, no matter anybody’s disappointment with, what looks like, the overwhelming powers, donated to the National Industrial Court, by the Constitution of the Federal Republic of Nigeria, as amended, which tends to make that Court a final Court (or Supreme Court) in causes and matters under its jurisdiction, except in respect of issues of enforcement of fundamental rights under Chapter 4 of the Constitution, and/or criminal causes. The situation remains until the National Assembly comes up with a legislation that can curtail or contain the sweeping powers of the National Industrial Court, and allow appeal, to review other decisions of the National Industrial Court, especially, as all issues of employment and labour matters, are exclusively vested in that Court, and same are wont to touch on fundamental rights of parties relating to fair hearing. See Ikwuano Local Government Council Vs Owobe & Ors (2016) LPELR – 41306 CA, (pages 41-42).

In the circumstances, the situation in this case cannot be different. I, therefore, uphold the preliminary objection and, accordingly, strike out this appeal, for incompetence. Parties shall bear their respective costs.

AGBO, JCA.

I have the privilege of reading in advance the lead judgment of my learned brother Mbaba JCA and I agree completely with his reasoning and conclusions. There is complete want of jurisdiction in the High Court to hear this matter which is within the exclusive jurisdiction of the National Industrial Court, I allow the appeal and abide by the consequential orders contained in the lead judgment.

LOKULO-SODIPE, JCA.

I have had the privilege of reading in draft the leading judgment prepared by my learned brother ITA G. MBABA, JCA. I am in complete agreement with the reasoning of his lordship in upholding the preliminary objection of the Respondent to the appeal.

Accordingly, I too strike out the appeal on the ground that it is incompetent and also abide by the order in relation to costs as contained in the leading judgment.