ASINOBI & ANOR v NIGERIAN BREWERIES LTD

ASINOBI & ANOR v NIGERIAN BREWERIES LTD


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

ON MONDAY, 8TH MAY, 2017


Appeal No: CA/OW/137M/2015
CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA


BETWEEN

MR. J.M.J. ASINOBI

MR. S. UCHE (FOR THEMSELVES AND AS REPRESENTING THE 2014 ABA EARLY RETIREES OF NIGERIAN BREWERIES PLC)

(APPLICANTS)

AND

NIGERIAN BREWERIES PLC

(RESPONDENT)


PRONOUNCEMENTS


A. JURISDICTION
1. Jurisdiction of the Court of Appeal – Appellate jurisdiction of the court of appeal over decisions of the national industrial court

Whether the Court of Appeal is vested with appellate jurisdiction over decisions from the National Industrial Court

“On the jurisdiction of the Court to entertain appeals from decisions of the National Industrial Court relating to Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 as amended, there was no dispute. But none of the judgments sought to be appealed against arose from Chapter 4 of the 1999 Constitution. The main issue therefore is whether this Court can exercise jurisdiction over matters not covered by the Fundamental Rights Provisions of the 1999 Constitution.

There have been conflicting decisions of the Court of Appeal in relation to this issue. While in Local Government Service Commission Ekiti State vs. Asubiojo (2013) LPELR – 2040; Local Government Service Commission Ekiti State v. Mamisaye (2013) LPELR – 20407; and Federal Ministry of Health vs. The Trade Union Members of the Joint Health Sector Unions & Ors LPELR (2014) 23546 this Court held that the Court of Appeal had jurisdiction to entertain appeals from the National Industrial Court, in Coca-Cola Nigerian 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; and Zenith Bank Plc. Vs. Caroline Dennis Durugbor (2015) LPELR 23898 this Court held otherwise. It is now trite law that the appellate jurisdiction must be statutorily donated to the Court. I therefore find it necessary to set out provisions of statute dealing with the jurisdiction of this Court over decisions of the National Industrial Court. I refer particularly to Sections 240, 243 (2,3,&4), and 254C (5&6) of the Constitution of the Federal Republic of Nigeria 1999 as amended:

“Section 240. Subject to the provisions of this 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”.

“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”.
“(4) Without prejudice to the provisions of Section 254 C (5) of this Constitution, the decision of the Court of Appeal in respect of any appeal arising from any jurisdiction of the National Industrial Court shall be final. “Section 254C – (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 this Constitution, appeal 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.”
It is clear from the provisions of 243(3) that 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. Presently no such Act has been enacted.

The primary rule of construction of statutes is the literal construction which requires that where clear and unambiguous words are used in a statute, the words must be given their everyday ordinary meaning. See Nwakire vs. C.O.P. (1992) 6 SCNJ 1.

The word “ONLY” used in S. 243(3) of the Constitution is a word of limitation. It circumscribes the extent of the jurisdiction exercisable by the Court of Appeal. In interpreting the provisions of statute including the Constitution, we must bring out the law as it is and not as it ought to be. Amending the Constitution is the responsibility of the legislative arm of government and not the Courts. Where the exercise of power is statutory, such power can only be exercisable within the limits prescribed by the statute – Sanusi vs. Ayoola & Ors (1992) 11/12 SCNJ142. While it is true that Courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction, it is well settled that where the words of a statute as to the jurisdiction of the Court are clear and unambiguous, they must be given effect – see Attorney General of the Federation vs. Sade (1990) NWLR (pt.

128) 500. I agree completely with Oseji JCA in Lagos Sheraton Hotel and Towers supra where we stated thus: “Here again, it is my humble view that the above stated provision does not need any microscopic intrusion in order to discover or understand it true intent and purposes. My own understanding and interpretation of the said Section 243 (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended is that except for the rights of appeal under S.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 only be as prescribed by an Act of the National Industrial Court” Per Oseji JCA P.P. 33 – 35.” This Court lacks the jurisdiction to entertain the appeals sought to be filed.”Per AGBO, J.C.A. – read in context


LEAD JUDGMENT DELIVERED BY AGBO, J.C.A.


By their motion filed on 28-7-15 the applicants are seeking of this Court the following orders –

1. AN ORDER granting leave to the Applicants to:

a. Appeal against the judgment/ruling of the National Industrial Court in Suit No. NICN/OW/53/2014: MR. J.M.J. ASINOBI, MR. S. UCHE (for themselves and as representing the 2014 Aba early retirees of Nigerian Breweries Plc) vs. Nigerian Breweries Plc delivered on 12th February, 2015 Coram Honourable Justice O. Y Anuwe.

b. Extension of time within which the applicants may file and serve his notice of appeal and further Notice and grounds of appeal.

c. Extension of time within which the appellant/applicant may seek leave to appeal.

2. An order of Court granting leave to the applicant to file and serve Exhibit B as his further Notice and grounds of appeal.

3. AN ORDER granting leave to the Applicants to Appeal against the judgment of the National Industrial Court in Suit No. HIC/05/2009: MR. J.M.J. ASINOBI, MR. S. UCHE (for themselves and as representing the 2004 Aba early retirees of Nigerian Breweries Plc) vs. Nigerian Breweries Plc delivered on 18/10/2010. To the effect that the claimants who are early retirees are not entitled to redundancy and ex-gratia goodwill benefits.

4. Deeming the notice of appeal filed and served and the further notice and grounds of appeal filed and served as having been properly filed and served, the necessary fees having been paid.

In arguing the motion, the argument devolved around the jurisdiction of this Court to entertain an appeal from decisions of the National Industrial Court. On the jurisdiction of the Court to entertain appeals from decisions of the National Industrial Court relating to Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 as amended, there was no dispute. But none of the judgments sought to be appealed against arose from Chapter 4 of the 1999 Constitution . The main issue therefore is whether this Court can exercise jurisdiction over matters not covered by the Fundamental Rights Provisions of the 1999 Constitution.

There have been conflicting decisions of the Court of Appeal in relation to this issue. While in Local Government Service Commission Ekiti State vs. Asubiojo (2013) LPELR – 2040; Local Government Service Commission Ekiti State v. Mamisaye (2013) LPELR – 20407; and Federal Ministry of Health vs. The Trade Union Members of the Joint Health Sector Unions & Ors LPELR (2014) 23546 this Court held that the Court of Appeal had jurisdiction to entertain appeals from the National Industrial Court, in Coca-Cola Nigerian 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; and Zenith Bank Plc. Vs. Caroline Dennis Durugbor (2015) LPELR 23898 this Court held otherwise.

It is now trite law that the appellate jurisdiction must be statutorily donated to the Court. I therefore find it necessary to set out provisions of statute dealing with the jurisdiction of this Court over decisions of the National Industrial Court. I refer particularly to Sections 240, 243 (2,3,&4), and 254C (5&6) of the Constitution of the Federal Republic of Nigeria 1999 as amended:

“Section 240. Subject to the provisions of this 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”.

“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”.

“(4) Without prejudice to the provisions of Section 254 C (5) of this Constitution, the decision of the Court of Appeal in respect of any appeal arising from any jurisdiction of the National Industrial Court shall be final.

“Section 254C – (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 this Constitution, appeal 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.”

It is clear from the provisions of 243(3) that 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. Presently no such Act has been enacted.

The primary rule of construction of statutes is the literal construction which requires that where clear and unambiguous words are used in a statute, the words must be given their everyday ordinary meaning. See Nwakire vs. C.O.P. (1992) 6 SCNJ 1.
The word “ONLY” used in S. 243(3) of the Constitution is a word of limitation. It circumscribes the extent of the jurisdiction exercisable by the Court of Appeal. In interpreting the provisions of statute including the Constitution, we must bring out the law as it is and not as it ought to be. Amending the Constitution is the responsibility of the legislative arm of government and not the Courts. Where the exercise of power is statutory, such power can only be exercisable within the limits prescribed by the statute – Sanusi vs. Ayoola & Ors (1992) 11/12

SCNJ142. While it is true that Courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction, it is well settled that where the words of a statute as to the jurisdiction of the Court are clear and unambiguous, they must be given effect – see Attorney General of the Federation vs. Sade

(1990) NWLR (pt. 128) 500. I agree completely with Oseji JCA in Lagos Sheraton Hotel and Towers supra where we stated thus:

“Here again, it is my humble view that the above stated provision does not need any microscopic intrusion in order to discover or understand it true intent and purposes. My own understanding and interpretation of the said Section 243 (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended is that except for the rights of appeal under S.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 only be as prescribed by an Act of the National Industrial Court” Per Oseji JCA P.P. 33 – 35.”

This Court lacks the jurisdiction to entertain the appeals sought to be filed. This motion is dismissed with N30,000.00 costs to the Respondent.

OREDOLA, J.C.A.

I agree.

LOKULO-SODIPE, J.C.A.

I have had the privilege of reading the leading ruling delivered by my learned AGBO, JCA; and I agree entirely with his lordship’s reasoning in concluding that this Court lacks the jurisdiction to entertain the appeals sought to be filed.

Accordingly, I too dismiss the motion before the Court and also abide by the order in relation to costs made in the leading ruling.