Kwara State University v. Alao (2021)

KwaraStateUniversityv.Alao

1.KWARA STATE UNIVERSITY

2.KWARA STATE UNIVERSITY GOVERNINGCOUNCIL

3.PROF. ABDURASHEED NA’ALLAH,

(THE VICE CHANCELLOR, KWASU)

V.

DR. AYOTUNDE ALAO

COURT OF APPEAL

(ILORIN DIVISION)

CA/IL/135/2019

AHMAD OLAREWAJU BELGORE, J.C.A. (Presided)

UCHECHUKWU ONYEMENAM, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Read the Leading Judgment)

FRIDAY, 20TH NOVEMBER 2020

APPEAL – Court of Appeal – Appellate jurisdiction of – Section 240,1999 Constitution.

APPEAL – Issues before court – Intermediate appellate court -When need not consider all issues raised in appeal.

APPEAL – Leave to appeal – Where required – Failure to seek andobtain – Effect of.

APPEAL – Right of appeal – Appeal from decision of NationalIndustrial Court to Court of Appeal – When lies as ofright – When lies with leave – Section 243(2) and (3), 1999Constitution.

294

APPEAL – Right of appeal – Appeal from decision of NationalIndustrial Court to Court of Appeal – Breach of right to fairhearing – When can ground appeal.

APPEAL – Right of appeal – Appeal from decision of NationalIndustrial Court to Court of Appeal – Section 243(2), 1999Constitution – Interpretation and application of – Relevantconsideration.

CONSTITUTIONAL LAW – Court of Appeal – Appellate jurisdictionof – Section 240, 1999 Constitution.

CONSTITUTIONAL LAW – Right of appeal – Appeal from decisionof National Industrial Court to Court of Appeal – Breach ofright to fair hearing – When can ground appeal.

CONSTITUTIONAL LAW – Right of appeal – Appeal from decisionof National Industrial Court to Court of Appeal – When lies asof right – When lies with leave – Section 243(2) and (3), 1999Constitution.

CONSTITUTIONAL LAW – Right of appeal – Appeal from decisionof National Industrial Court to Court of Appeal – Section243(2), 1999 Constitution – Interpretation and application of- Relevant consideration.

CONSTITUTIONAL LAW – Right of appeal – Appeal from decisionof National Industrial Court to Court of Appeal – Section243(2), 1999 Constitution – How construed.

CONSTITUTIONAL LAW – Right to fair hearing – Constitutionalguarantee of – Section 36(1), 1999 Constitution.

COURT – Court of Appeal – Appellate jurisdiction of – Section 240,1999 Constitution.

COURT – Issues before court – Intermediate appellate court – Whenneed not consider all issues raised in appeal.

COURT – Jurisdiction of court – Source of.

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FAIR HEARIN G – Principle of fair hearing – Application of.

FAIR HEARING – Right of appeal – Appeal from decision ofNational Industrial Court to Court of Appeal – When lies asof right – When lies with leave – Section 243(2) and (3), 1999Constitution.

FAIR HEARING – Right to fair hearing – Constitutional guaranteeof – Section 36(1), 1999 Constitution.

FAIR HEARING – Rule of fair hearing – Requirement of.

FUNDAMENTAL RIGHTS – Fair hearing – Principle of -Application of.

FUNDAMENTAL RIGHTS – Fair hearing – Rule of – Requirementof.

FUNDAMENTAL RIGHTS – Right to fair hearing – Constitutionalguarantee of – Section 36(1), 1999 Constitution.

INTEPRETATION OF STATUTES – 1999 Constitution – Section243(2) and thereof – Interpretation and application of -Relevant consideration.

INTERPRETATION OF STATUTES – 1999 Constitution – Section243(2) thereof – How construed.

INTERPRETATION OF STATUTES – Clear and unambiguouswords of statute or Constitution – How construed.

INTERPRETATION OF STATUTES – Construction of statutes -Principles guiding.

JURISDICTION – Court of Appeal – Appellate jurisdiction of -Section 240, 1999 Constitution.

JURISDICTION – Jurisdiction of court – Source of.

PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Whererequired – Failure to seek and obtain – Effect of.

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PRACTICE AND PROCEDURE – Appeal – Right of appeal -Appeal from decision of National Industrial Court to Courtof Appeal – Section 243(2), 1999 Constitution – Interpretationand application of – Relevant consideration.

PRACTICE AND PROCEDURE – Appeal – Right of appeal – Appealfrom decision of National Industrial Court to Court of Appeal- Breach of right to fair hearing – When can ground appeal.

PRACTICE AND PROCEDURE – Appeal – Right of appeal – Appealfrom decision of National Industrial Court to Court of Appeal- When lies as of right – When lies with leave – Section 243(2)and (3), 1999 Constitution.

PRACTICE AND PROCEDURE – Court of Appeal – Appellatejurisdiction of – Section 240, 1999 Constitution.

PRACTICE AND PROCEDURE – Jurisdiction of court – Source of.

PRINCIPLES OF INTERPRETATION – Construction of statutes -Principles guiding.

STATUTE – 1999 Constitution – Section 243(2) and thereof -Interpretation and application of – Relevant consideration.

STATUTE – 1999 Constitution – Section 243(2) thereof – Howconstrued.

STATUTE – Clear and unambiguous words of statute or Constitution- How construed.

STATUTE – Construction of statutes – Principles guiding.

WORDS AND PHRASES – “Civil right and obligation” – Meaningof.

Issue:

Whether the appellant’s appeal was competent, havingbeen filed as of right and without the leave of the Courtof Appeal.

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Facts:

The respondent was an academic staff of the 1st appellant.He was alleged to have committed acts of misconducts includingextortion, threat and indecent behaviours, contrary to the rulesand regulations contained in the 1st appellant’s Revised Code ofConduct for Staff and its Conditions of Service and Regulations forSenior Staff. His appointment was consequently terminated by theappellants on 10th October 2016.

Aggrieved by the decision of the appellants terminatinghis appointment, the respondent instituted an action againstthe appellants at the National Industrial Court, Ilorin seeking adeclaration that the termination was illegal, wrongful, null and voidand of no effect whatsoever having been done in contravention ofsection 8 of the University Condition of Service and Regulationand the rules of fair hearing; an order reinstating him withoutprejudice to his promotion, salaries and other entitlements; and anorder directing the appellants to pay his salaries and entitlementfrom the time of the termination until he is reinstated.

.Alternatively, the respondent claimed a declaration thathe is entitled to damages in form of loss of earning for unlawfultermination of his appointment with effect from 10th October 2016 tillDecember 2048 when he is due to retire from service in accordancewith the conditions of service governing his employment; the sumof ₦137,108,721.56k as damages for the abrupt termination; andthe sum of ₦10,000,000.00 as damages for psychological andemotional trauma and agony.

At the conclusion of hearing, the trial court entered judgmentin favour of the respondent and ordered his reinstatement and thepayment of all his entitlements with effect from the 10th October2016 when his appointment was terminated to the date of thedelivery of the judgment.

Dissatisfied with the judgment of the trial court, the appellantsappealed to the Court of Appeal.

At the Court of Appeal, the respondent raised a preliminaryobjection challenging the competence of the appeal on the groundthat, not being an appeal founded on breach of fundamental rights,the appellants ought to have sought for and obtained the leave of theCourt of Appeal to appeal the judgment of the National IndustrialCourt in line with section 243(2) and of the 1999 Constitution(as amended).

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Held (Unanimously striking out the appeal):

1.On Source of jurisdiction of court –

A court of law derives its jurisdiction from thestatute creating it. (P. 316, para. G)

2.On Appellate jurisdiction of Court of Appeal –

Section 240 of the 1999 Constitution (as amended)vests the Court of Appeal with jurisdiction tohear and determine appeals from the courts listedtherein, which includes the National IndustrialCourt. The jurisdiction of the Court of Appeal issubject to the provisions of the Constitution. Inother words, the Court of Appeal can only assumejurisdiction over decisions of those courts subjectto the provisions of the Constitution in respectof each court. [Lagos Sheraton Hotel and Tower v.H.P.S.S.S.A. (2014) 14 NWLR (Pt. 1426) 45 referredto.] (Pp. 316-317, paras. G-A)

3.On When appeal from decision of National IndustrialCourt to Court of Appeal lies as of right and withleave –

By virtue of section 243(2) and of the 1999Constitution (as amended), an appeal shall liefrom the decision of the National Industrial Courtas a right to the Court of Appeal on question offundamental rights as contained in Chapter IV ofthe Constitution as it relates to matter upon whichthe National Industrial Court has jurisdiction.An appeal shall only lie from the decision of theNational Industrial Court to the Court of Appealas may be prescribed by an Act of the NationalAssembly. Provided that where an Act or Lawprescribes that an appeal shall lie from the decisionof the National Industrial Court to the Court ofAppeal, such appeal shall be with the leave of theCourt of Appeal. Thus, an aggrieved party willhave right to appeal against the decision of theNational Industrial Court either as of right or with

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the leave of the Court of Appeal. Also, the Courtof Appeal will only entertain an appeal against thedecision of the National Industrial Court if it is filedas of right or with the leave of the Court of Appealwhere the appeal is not on question of fundamentalrights contained in Chapter IV of the Constitution.(P. 317, paras. B-F)

Per BDLIYA at page 322, paras. D-H:

“It is therefore not correct to contend as learnedcounsel to the respondent did, that the questionof fundamental human right envisaged bysection 243(2) and of the 1999 Constitution(amended), refer to the plaintiff’s reliefs andclaims at the trial court, that is, NationalIndustrial Court, touching on fundamentalrights under Chapter IV of the Constitutionand that it is only an appeal on or touching orrelating to such fundamental rights containedin such reliefs or claims that confer a right ofappeal to the Court of Appeal, from a decisionof the National Industrial Court.

At this juncture, an examination of thequestions or complaints for determinationas put forward by the appellants in their tengrounds of appeal to this court to seewhether they raise question of fundamentalright, particularly breach of their right to(10)fair hearing under section 36(1) of Chapterof the 1999 Constitution (amended), ispertinent. The notice of appeal filed by theappellants on the 1 st of July, 2017 and thegrounds thereof, are located on pages 342 to353 of the printed record of appeal. I havedispassionately considered and evaluatedthe grounds of appeal. In my view, all theten grounds of appeal are attacking thefindings and decisions arrived at on specificissues by the learned Judge of the lower(iv)court.”

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4.On When appeal from decision of National IndustrialCourt to Court of Appeal lies as of right and withleave –

By section 243(2) of the 1999 Constitution (asamended), an aggrieved party will only have theright to appeal against the decision of the NationalIndustrial Court as of right and the Court ofAppeal will also have the jurisdiction to hear sameif the decision of the National Industrial Court ison question of fundamental rights as containedin Chapter IV of the Constitution. However,where the grounds of appeal are not on questionof fundamental rights as contained in ChapterIV of the Constitution, the appeal to the Court ofAppeal from the decision of the National IndustrialCourt will be competent and the Court of Appealwill have jurisdiction over same if it was filed withthe leave of the court. In other words, where aparty intends to appeal against the decision of theNational Industrial Court on grounds other thanon question of fundamental rights as contained inChapter IV of the Constitution, such party mustfirst seek and obtain the leave of the Court of Appealto appeal on such grounds otherwise the appealwill be incompetent and the Court of Appeal willlack jurisdiction to entertain same. In the instantcase, by the plain meaning of section 243(2) of theConstitution, the appeal did not fall under theexception provided in therein. Leave of court wasrequired to file the appeal and the appeal, havingbeen filed without leave of the court being soughtand obtained, was incompetent. [Lagos SheratonHotel & Towers v. H.P.S.S.S.A. (2014) 14 NWLR (Pt.1426) 45; Skye Bank Plc v. Iwu (2017) 16 NWLR(Pt. 1590) 24; Coca-Cola (Nig.) Ltd. v. Akinsanya(2017) 17 NWLR (Pt. 1593) 74; Dankofa v. F.R.N.(2019) 9 NWLR (Pt. 1678) 468; Omoku AchieversCo-Operative Investment & Credit Society Ltd. v.Emeronye (2019) LPELR- 48318 referred to.] (Pp.317-318, paras. B-G; 329-330, paras. H-B)

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5.On When appeal from decision of National IndustrialCourt to Court of Appeal lies as of right and withleave –

By the provisions of section 243(2) and of the1999 Constitution (as amended), an appeal shall liefrom the decision of the National Industrial Court,as of right to the Court of Appeal, if the followingconditions exist:

(a)there is a question of fundamental right;

as contained in Chapter IV of the(b)Constitution; and

it relates to matters upon which the National(c)Industrial Court has jurisdiction.

Therefore, for an appeal to properly lie to theCourt of Appeal from the decision of the NationalIndustrial Court, the following must be satisfied:

question of fundamental rights must arise in(a)the appeal;

such question of fundamental right mustbe those contained in Chapter IV of the(b)Constitution; and

since it is not in every complaint against thedecision of the National Industrial Courtabout breach of fundamental right thatappellate jurisdiction is conferred on theCourt of Appeal, the breach in question mustrelate to matters over which jurisdiction isalready conferred on the National IndustrialCourt either by section 254 of the Constitutionwhich spells out the jurisdiction of thatcourt or by some other Act of the NationalAssembly conferring jurisdiction on it, ofwhich in the latter case, the appeal has to be(c)with the leave of the Court of Appeal.

(P. 319, paras. C-H)

6.On Relevant consideration in interpretation andapplication of section 243(2) and of the 1999Constitution –

In interpreting and applying the provisions of

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section 243(2) and of the 1999 Constitution(as amended) and other similar provisions in thelaws, the focus of the Supreme Court and theCourt of Appeal has always been on the questionsor complaints raised in the grounds of appeal andnot the relief or claims in the trial court. [Usmanv. Umaru (1992) 7 NWLR (Pt. 254) 377; Golok v.Diyalpwan (1990) 3 NWLR (Pt. 139) 411 referredto.] (P. 320, paras. A-F)

7.On Construction of section 243(2) of the 1999Constitution –

Section 243(2) of the 1999 Constitution (as amended)is clear and unambiguous and should be given itsplain and ordinary meaning. (P. 329, para. H)

8.On Construction of clear and unambiguous words ofstatute or Constitution –

Where the words of a statute are clear andunambiguous, they should be construed as to giveeffect to their natural meaning. This is because acourt of law is without power to import into themeaning of a word, clause or section of a statutethat which it did not say. In other words, the goldenrule of interpretation is that where the words usedin the Constitution or in a statute are clear andunambiguous, they must be given their naturaland ordinary meaning, unless to do so would leadto absurdity or inconsistency with the rest of thestatute. [Ibrahim v. Barde (1996) 9 NWLR (Pt.474) 513; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116; Gana v. Social Democratic party (2019)11 NWLR (Pt. 1684) 510; Mamonu v. Dikat (2019)7 NWLR (Pt. 1672) 495 referred to.] (P. 320-321,paras. H-A; 329, paras. E-G)

9.On Principles governing construction of statutes –

It is a corollary to the rule of literal constructionthat nothing is added to or taken from a statute

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unless there are adequate grounds to justify theinference that the legislature intended somethingwhich it omitted to express. Where the literalinterpretation of the provision of a statute willresult in some ambiguity, to resolve the ambiguityor to avoid doing injustice in the matter, the courtwill adopt an interpretation which will not defeatthe intention of the law makers. [Okumagba v. Egbe(1965) 1 All NLR 62; Berliet (Nig.) Ltd v. Kachalla(1995) 9 NWLR (Pt. 420) 478; Ogbuanyinya v. Okudo(1979) 6-9 SC 32; Awuse v. Odili (2004) 8 NWLR (Pt.876) 481; Bronik Motors v. Wema Bank Ltd. (1983) 1SCNLR 296; Ojukwu v. Obasanjo (2004) 12 NWLR(Pt. 886) 169 referred to.] (P. 321, paras. A-C)

10.On Constitutional guarantee of right to fair hearing –

By virtue of section 36(1) of the 1999 Constitution(as amended), in the determination of his civilrights and obligations, including any questionor determination by or against any governmentor authority, a person shall be entitled to a fairhearing within a reasonable time by a court orother tribunal established by law and constitutedin such manner as to secure its independence andimpartiality. The provision is applicable only wherethe determination of the civil rights and obligationsare involved in a dispute being litigated before thecourt of law or a tribunal established by law. (Pp.320, paras. F-H; 321, para. D)

11.On Meaning of “civil right and obligation” –

Civil right is the individual right of personguaranteed by the bill of rights. Obligation is alegal or moral right to do or not to do something.(P. 321, paras. E-F)

12.On Requirement of rule of fair hearing –

The concept of the rule of fair hearing as providedfor under section 36(1) of Chapter IV of the 1999Constitution (as amend ed), which is the rule ofnatural justice, demands that a party must be heard

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before the case again st him is determined. [Akande v.State (1988) 3 NWLR (Pt. 85) 681; F.C.S.C. v. Laoye(1989) 2 NWLR (Pt. 106) 652; Esabunor v. Faweya(2019) 7 NWLR (Pt. 1671) 316 referred to.] (P. 328,paras. D-E)

13.On Application of principle of fair hearing –

Fair hearing which is entrenched in the 1999Constitution is based on determining or testing theconstitutionality of a trial in terms of procedure. Itis a very fundamental principle of law which theparties and the courts are free to apply in relevantsituations in relation to the facts of the case andnot in a vacuum. Accordingly, where the facts ofthe case reject the principle, the court will have nocompetence to force the principle of law in the case.Thus, there is need for caution in the application ofthe fair hearing provision in the Constitution. (P.321, paras. F-G)

Per BDLIYA, J.C.A. at pages 321-322, paras H-D:

“The real purport of the provisions of section36(1) of the 1999 Constitution (amended) hasbeen expatiated on by apex court in the caseof Orugbo v. Una & Ors (2002) 16 NWLR (Pt.792) @ 221, wherein Tobi, JSC, (of blessedmemory) stated that:

‘It has become a fashion for litigants toresort to their right to fair hearing onappeal as if it is a magic wend to cureall their inadequacies at the trial court.But it is not so and it cannot be so. Thefair hearing constitutional provision isdesigned for both parties in the litigationand the court as the umpire, so to say, hasa legal duty to apply it in the litigation,in the interest of fair play and justice.The courts must not give a burden tothe provision which it cannot carry orshoulder. I see that in this appeal.

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Fair hearing is not a cut-and-dry principlewhich partie s can, in the abstract, alwaysapply to their comfort and convenience.It is a principle which is based and mustbe based on the facts of the case beforethe court. Only the facts of the case caninfluence and determine the applicationor applicability of the principle. Theprinciple of fair hearing is helpless, orcompletely dead outside the facts of thecase.’”

14.On When breach of right to fair hearing can groundappeal from decision of National Industrial Court toCourt of Appeal –

Per BDLIYA, J.C.A. at pages 323-326, paras. A-C:

“The question that arises in this, whatconstitutes fair hearing under section 36(1) ofChapter of the Constitution (amended) andwhen it is breached to support an appeal fromthe National Industrial Court to the Court ofAppeal pursuant to section 243(2) and ofthe 1999 Constitution (amended). Section 36(1)of the 1999 Constitution (amended), providesas follows:

‘In the determination of the civil rightsand obligations, including any questionor determination by or against anygovernment or authority, a personshall be entitled to fair hearing within areasonable time by a court or tribunalestablished by law and constituted in sucha manner as to secure its independenceand impartiality.’

The purview of the provisions supra, whichare ‘impari materia’ with section 22 of the1963 Constitution and section 33 of the 1979Constitution, both of the Federal Republicof Nigeria, have been examined, interpretedand applied by the apex court in a litany of

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cases. For instance, in Ransome-Kuti v. A.-G.Federation (1985) 2 NWLR (Pt. 6) p. 11 @ 258,Oputa J.S.C. espoused thus:

‘The next section of the 1963 Constitutionheavily relied upon by Mr. Braithwaitewas section 22 which stipulated:

22(1). Read as a whole, it is obvious thatthe right guaranteed by section 22 aboveis similar to the right guaranteed, bysection 33(1) of the 1979 Constitutionand that is – right to fair hearing. Theantecedent portion of section 22 of the1963 Constitution uses the phrase inthe determination of his civil rights andobligations. This can only refer to civilrights and obligation existing independentof section 22 and not created by section 22above. It is in the determination of such civilright and obligation that 1963 Constitutionguaranteed any aggrieved person a fairhearing of his complain or his claim inaccordance with the rules of natural justicenamely impartiality and fairness. Whatsection 22 guaranteed was fair and impartialadjudication of dispute about right andobligations which arise aliunde.’ (Italics foremphasis)

The Law Lord, Oputa J.S.C. reconfirmedthe extent of the constitutional fair hearingprovision in the case of Legal PractitionersDisciplinary Committee v. Chief GaniFawehinmi (1985) 2 NWLR (Pt. 7) p. 300 @383, when his Lordship enunciated that:

‘In this appeal therefore, the essentialissue is the extent of the right to fairhearing guaranteed by section 33 of the1979 Constitution. Was the respondent’sright under section 33 infringed orthreatened with infringement? This cour t

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in Alhaji Isyaku Mohammed v. Rabiu (1968)1 All NLR 242 @ P. 426 has held that “afair hearing must involve a fair trial anda fair trial of a case consist of the wholehearing…. The true test of a fair hearing… is the impression of a reasonable personwho was present at the trial whether fromthe observation justice has been done inthe case”. This reasonable person willnaturally, be look for the following inorder to determine whether the trial wasfair and whether justice has been done:-

1.How was the tribunal or the forumcompetens composed? Was itcomposed of “Judges” or “persons”whose impartiality and fairnesswere transparent; persons whotaking into account our commonhuman weakness can exercise adetached attitude towards thefacts presented to them, personswhom the respondent will haveno cause to suspect or distrust,person in whom the respondentreposed confidence? Justice, inthe final analysis must be rootedin confidence and that confidencemay be destroyed by the conductand/or utterances of the judex -(the person adjudicating) – givingthe impression that he was biased.Metropolitan Properties Co. (FGC)Ltd v. Lannon (1968) 3 All E.R 304@ P.310.

2.Was the person whose conductwas being inquired into given theopportunity to listen to and replyto all the allegations made againsthim; and was nothing adverse saidabout him in his absence? These

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are the twin pillar of fair hearingor fair trial. They are also the twinpillar of natural Justice; they arethe rules against bias and the rightto be heard. In the Latin days ofjurisprudence/the ancient Romansput these two rules into two Latinmaxims:

Nemo potest esse judex in-i.proprio cause; and

ii. Audi alteram partem.

In the English days ofjurisprudence, they have beenreduced to two very familiar words- Impartiality and Fairness. Theyare distinct but closely relatedconcepts. Impartiality relates tothe forum itself. While fairnessrelates to the right of the personaccused to be heard Kanda v.Government of Malaya (1962) A.C322.’

From the foregoing, it is very clear that the testfor fair hearing under section 36(1) Chapterof the 1999 Constitution (amended) iswhether the person asserting that the groundsof appeal in the appeal to this court, containeddenial of access to the court or not beingtreated fairly by the court or being preventedfrom presenting his case freely without anyhindrance by the court. For instance, EjiwunmiJ.S.C. in the case of Alsthon S.A & Anor v. ChiefDr. Olusola Saraki (2005) 123 LRCN P.72 @ 91(iv)to 93 postulated thus:

‘Fair hearing according to our law,envisage that both parties to a case begiven an opportunity of presenting theirrespective cases without let or hindrancefrom the beginning to the end. It alsoenvisage that the court or tribunal hearing

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the parties’ case should be fair andimpartial without showing any degree ofbias against any of the parties.’

Bearing in mind the postulations supra, itcannot be said that the ten grounds ofappeal contained in the notice of appeal filed bythe appellants satisfied the position of the lawregarding allegation of violation or breach offundamental human rights envisaged undersection 243(2) and of the 1999 Constitution(amended), to warrant appealing against thejudgment of the National Industrial Court asof right, rather than with leave of the Court ofAppeal as the appellants in the extant appealhas done. I think what Oseji J.C.A, (as he thenwas) had in mind is the kind of appellants asin the extant appeal, who thought they canjust appeal of right against the decision ofthe National Industrial Court without firstseeking leave of this court, when his Lordshipespoused in Lagos Sheraton Hotel & Tower v.H.P.S.S.S.A. supra page 71 that:

‘Litigant who seek to circumvent orevade the provision of section 243 and243 and of the 1999 Constitution(Amended), by seemingly waving themagic wand of fair hearing or breachof the fundamental right with the mainmotive of having access to appeal againsta decision of the National Industrial Courton matter falling outside the allowed scopeshould be advised not to underestimatethe sharp sense of perception and wisdomof the appellate courts to sift the wheatfrom the chaff.’”

15.On Effect of failure to seek and obtain leave to appealwhere required –

Where leave of court is required to ignite or activatethe jurisdiction of a court over any matter, failure

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to seek and obtain the leave makes the actionincompetent and divests the court of the jurisdictionto adjudicate on same. The legal effect of not seekingleave to appeal is that the appeal is incompetent,null and void. The failure to obtain requisiteleave to appeal is tantamount to not fulfilling acondition precedent to the exercise of jurisdictionby the court. It is a defect in competence which isextrinsic to adjudication. Where a litigant ought toobtain leave to come to court, failure to take stepsto secure the leave is a fundamental defect. In theinstant case, the requisite leave to make the appealcompetent and to confer jurisdiction on the court toentertain the appeal was not sought and obtainedbefore filing the appeal. [Inter Ocean Oil Corp.(Nig.) Unltd. v. Fadeyi (2008) All FWLR (Pt. 403)1381 referred to.] (Pp. 326-327, paras. E-A)

16.On When intermediate appellate court need notconsider all issues raised in appeal –

Where an intermediary appeal court has nojurisdiction to entertain and determine thematter before it, it may not proceed to considerthe remaining issues in the suit or appeal as it hasno jurisdiction to do so. This is an exception tothe need for an intermediary court to proceed toconsider all other issues raised in an appeal evenwhere the resolution of one issue could terminatean appeal. In the instant case, having held that ithad no jurisdiction, the Court of Appeal declinedto proceed to consider the other issues raised in theappeal. [F.C.D.A. v. Sule (1994) 3 NWLR (Pt. 332)257 referred to.] (P. 327, paras. E-F)

Nigerian Cases Referred to in the Judgment:

Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116

Akande v. State (1988) 3 NWLR (Pt. 85) 681

Alsthon S.A v. Saraki (2000) 14 NWLR (Pt. 687) 415

Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481

Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478

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Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 296

Coca-Cola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt.1593) 74

Dankofa v. F.R.N. (2019) 9 NWLR (Pt. 1678) 468

Esabunor v. Faweya (2019) 7 NWLR (Pt. 1671) 316

F.C.D.A. v. Sule (1994) 3 NWLR (Pt. 332) 257

F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652

Gana v. S.D.P. (2019) 11 NWLR (Pt. 1684) 510

Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411

Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513

Inter Ocean Oil Corporation (Nig.) Unltd. v. Fadeyi (2008)All FWLR (Pt. 403) 1381

L.P.D.C. v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300

Lagos Sheraton Hotel & Towers v. H.P.S.S.S.A. (2014) 14NWLR (Pt. 1426) 45

Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672) 495

Mohammed v. Rabiu (1968) 1 All NLR 242

Ogbuanyinya v. Okudo (1979) 6-9 SC 32

Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377

Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169

Okumagba v. Egbe (1965) 1 AII NLR 62

Omoku Achievers Co-Operative Investment & Credit SocietyLtd. v. Emeronye (2019) LPELR- 48318

Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175

Ransome-Kuti v. A.-G., Fed. (1985) 2 NWLR (Pt. 6) 211

Shasi v. Smith (2009) 18 NWLR (Pt. 1173) 330

Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24

Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377

Foreign Case Referred to in the Judgment:

Metropolitan Properties Co. (FGC) Ltd. v. Lannon (1968) 3All E.R. 304

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1963, S. 22

Constitution of the Federal Republic of Nigeria, 1979, S. 33

Constitution of the Federal Republic of Nigeria, 1999(amended), Ss. 36(1), 240, 243 and (3), Chapter (IV)

National Industrial Act, S. 9(2)

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Books Referred to in the Judgment:

Bryan A Garner, 8th Ed., Black’s Law Dictionary

Conditions of Service and Regulations for Senior Staff, S. 8

Revised Code of Conduct for Staff of Kwara State University

Appeal:

This was an appeal against the judgment of the NationalIndustrial Court which granted the respondent’s claims. The Courtof Appeal, in a unanimous decision, struck out the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal wasbrought: Court of Appeal Ilorin

Names of Justices that sat on the appeal: AhmadOlarewaju Belgore, J.C.A. (Presided);.UchechukwuOnyemenam, J.C.A.; Ibrahim Shata Bdliya, J.C.A. (Readthe Leading Judgment)

Appeal No.: CA/IL/135/2019

Date of Judgment: Friday, 20th November 2020

Names of Counsel: S. O. Akangbe, Esq. (with him, A. M.Salman,, Esq.; Taofiq Olateju, Esq.; M. D. Popoola, Esq.and Faith Josuah, Esq.) – for the Appellants

Y. A. Dikko, Esq. (with him, L. O. Bello, Esq.) – for theRespondent

National Industrial Court:

Name of the National Industrial Court: National IndustrialCourt, Ilorin.

Suit No.: NIC/IL/02/2017

Date of Judgment: 21st May 2017

Counsel:

S. O. Akangbe, Esq. (with him, A. M. Salman,, Esq.; TaofiqOlateju, Esq.; M. D. Popoola, Esq. and Faith Josuah, Esq.) -for the Appellants

Y. A. Dikko, Esq. (with him, L. O. Bello, Esq.) – for theRespondent

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BDLIYA, J.C.A. (D elivering the Leading Judgment): Thisappeal is against the judgment of the National Industrial Court,Ilorin Division (the lower court) delivered on the 21st day of May,2017, in suit No. NIC/IL/02/2017. Briefly, the facts leading orculminating to the institution of the suit before the lower court andsubsequent appeal to this court are as follows: The respondent as theclaimant at the lower court was an Academic Staff of the Universityof Kwara State, Malete, the 1st appellant: until, his appointmentwas terminated on the 10th of October, 2016. He was alleged tohave committed acts of misconducts including extortion, threat andindecent behaviors, which contravened the rules and regulationscontained in the Revised Code of Conduct for Staff of Kwara StateUniversity, and Conditions of Service and Regulations for SeniorStaff. Aggrieved by the decision of the 2nd appellant terminating hisappointment with the 1st appellant, the respondent instituted suit No:NIC/IL/02/2017 at the lower court. The learned Judge of the lowercourt, after a dispassionate consideration of the case as presentedby the parties entered judgment in favour of the respondent, andordered his reinstatement and the payment of all his entitlementswith effect from the 10th of October, 2016 (the effective date of thetermination of his appointment) to the date of the delivery of thejudgment by the lower court. Dissatisfied with the judgment, theappellant filed notice of appeal to this court on ten grounds ofappeal on the 1st day of July, 2019.

The appellants’ brief of argument was filed on the 21st day ofFebruary, 2020, wherein three issues for determination in theappeal were culled out of the ten grounds of appeal, on pages2 – 3 thereof. The respondent’s brief of argument was filed on the8th day of May, 2020, out of time, which was deemed filed andserved on parties on the 5th day of October 2020. Two (2), issuesfor determination in the appeal were distilled out of the tengrounds of appeal as contained on page 8 of the brief of argument.The appellants filed a reply brief on the 13th day of July, 2020 whichwas amended and deemed property filed on the 5th day of October,2020.

The respondent filed notice of preliminary objectionchallenging the competence of the notice of appeal filed by theappellants on the 9th day of June, 2020. The arguments in respect ofthe preliminary objection are located on pages 4 to 8, paragraphs

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4:00 to 4:11 of the respondent’s amended brief of argument.The preliminary objection have been predicted on a sole groundand supported by a six-paragraphed affidavit. The sole issue fordetermination in the notice of preliminary objection is thus:

“Considering the circumstances of this appeal, whetherit is incompetent, thus robs the court jurisdiction.”

In their response to the arguments canvassed on thepreliminary objection, the appellants formulated a sole issue fordetermination, which is thus:

“Whether; having regard to the claims of the respondentbefore the trial court, the appellants (respondents)cannot file an appeal against the judgment of the lowercourt as of right.?”

The issues for determination in the preliminary objection tothe competence of the notice of appeal formulated by the respondentand the appellants are not dissimilar, therefore, both are hereundertaken and resolved together, that is, simultaneously.

Submissions of Learned Counsel

Y.A. Dikko Esq., of learned counsel to the respondent, madesubmissions in support of the preliminary objection on pages 4 to8 of the amended brief of argument. Specifically learned counselsubmitted that, ordinarily, a court of law derives its jurisdictionfrom the statute creating it and in respect of the Court of Appeal, itis section 240 of the 1999 Constitution (amended) and the courtslisted under the said section 240 of the Constitution now includesthe National Industrial Court of Nigeria, which an appeal therefromgoes to the Court of Appeal. In this regard, learned counsel pointedout that, an appeal to this court from the National Industrial Courtof Nigeria is governed by the provisions of section 243 andof the 1999 Constitution (amended). The case of Lagos SheratonHotel & Towers v. H.P.S.S.S.A. (2014) 14 NWLR (Pt. 1426) P.45 @68 was cited and relied on to buttress the submissions supra.

It has been further submitted that by the provisions of section243(2) and of the 1999 Constitution (amended), an appeal tothis court against the decision of the National Industrial Court ofNigeria can be as of right or with leave of this court, depending onthe substance or nature of the grounds of appeal. That an appeal as ofright against the decision of the National Industrial Court of Nigeriais permissible only where the decision is on question of fundamental

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rights as provided under Chapter (IV) of the 1999 Constitution(amended). Where the decision of the National Industrial Court ofNigeria is not on question of fundamental right, leave of the Courtof Appeal is required and must be obtained before an appeal can bemade to the Court of Appeal. The principles of law espoused in thecases of Skye Bank Plc v. Iwu (2017) 6 SC (Pt. 1) p.1 @ 43, (2017)16 NWLR (Pt. 1590) 24 and Inter Ocean Oil Corporation (Nig.)Unlimited v. Fadeyi (2008) All FWLR (Pt. 403) p. 1381 @ 1398,were cited and relied on to buttress the submissions supra.

In conclusion, learned counsel did adumbrate that, it is notin dispute that the appellants did not seek and obtained leave ofthis court, before appealing against the decision of the lower courtsince the substance of the appeal are not on grounds concerningthe question of fundamental human rights within the purview ofChapter IV of the 1999 Constitution (amended). Learned counseltherefore contended that, since the leave of this court was notobtained, the notice of appeal filed by the appellants against thedecision of the lower court is incompetent and this court had nojurisdiction to adjudicate on same. This court has been urged tosustain the preliminary objection, and in consequence dismiss theappeal.

Taofiq Olateju, Esq. of learned counsel, responded tothe arguments canvassed on the preliminary objection on thecompetence of the appeal contained in the appellants brief ofarguments and submitted that having due regard to the facts of thecase and the circumstances of events culminating to the appeal,same is competent, therefore this court is vested with the vires toentertain and determine same. Learned counsel did contend thatby the provisions of sections 240 and 243 and of the 1999Constitution (amended), the Court of Appeal has the jurisdictionto hear and determine appeals from the National Industrial Courtof Nigeria. It has been further pointed out that by the provisions ofsection 243 and of the 1999 Constitution (amended), thereare two ways or modes of appealing against a decision of theNational Industrial Court, to the Court of Appeal.

Learned counsel referred to the reliefs sought by the appellants,in particular relief (1), which can be located on page 2 of the recordof appeal, and submitted that, it cannot be correct, as the learnedcounsel, did to content that the appeal by the appellants did involve

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question of Fundamental Human Right as contained in Chapter(IV) of the Constitution 1999 (amended). Learned counsel went onto contend that the subject matter of the appeal is the judgment ofthe lower court, wherein it was held that the respondent’s right tofair hearing was violated or breached in the investigation leadingto the termination of his appointment. Learned counsel furthersubmitted, by the provisions of section 243 and of the 1999Constitution (amended) and section 9 of the National IndustrialCourt Act, when an appeal is on the allegation of an infringementof the provisions of Chapter (IV) of the Constitution (amended),that is on fundamental human right, an appeal can be rightly filedas of right to the Court of Appeal. The principles of law espousedin the case, of Skye Bank Plc v. Iwu (2017) 6 SC (Pt.1) p. 1 @ 43,(2007) 16 NWLR (Pt. 1590) 24, was cited and relied on to buttressthe contentions supra.

Learned counsel referred to the cases cited and relied on tobuttress the submissions of learned counsel to the respondent andcontended that the principles of law enunciated in the cases, citedand relied on are not applicable to the extant appeal and urged thiscourt to discountenance same in the determination of the appeal.The cases cited and relied on are Skye Bank Plc v. Iwu (2017) 6 SC(Pt. 1) p.1 @ 43, (2017) 16 NWLR (Pt. 1590) 24; Coca-Cola Nig& Sons v. Akinsanya (2017) Vol. 5-6 MJSC p.120 @ 139, (2017) 17NWLR (Pt. 1593) 74; Inter Ocean Oil Corp. Unlimited v. Fadeyi(2005) All FWLR (Pt. 403) p.1381 @ 1398 and Lagos SheratonHotel and Tower v. H.P.S.S.S.A. (2014) 14 NWLR (Pt.1426) p.45@ 68.Concluding, learned counsel did submit that the appeal iscompetent, and the court should hold so and proceed to determinethe appeal on its merit.

The law is trite, a court of law derives its jurisdiction fromthe statute creating it; and in this case section 240 of the 1999Constitution (amended), vest this court with jurisdiction to hearand determine appeals from the decision of the courts listed thereinwhich now includes the National Industrial Court. However, fromthe wordings of the section, it is apparent that the jurisdiction ofthis court is subject to the provisions of the Constitution. Simply,this court can only assume jurisdiction over decision of thosecourts subject to the provisions of the Constitution in respect ofeach court. See Lagos Sheraton Hotel and Tower v H.P.S.S.S.A.

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(2014) 14 NWLR (Pt.1426) p.45 @ 68 paras. F-G. Therefore, forthe purpose of the objection of the respondent to the competencyof appeal No.: CA/IL/135/2019 and the jurisdiction of this court toentertain same; the only relevant provision of the 1999 Constitution(amended), are section 243(2) and of the 1999 Constitution(amended), which are reproduced hereunder, thus:

Section 243 provides thus:

“An appeal shall be from the decision of the NationalIndustrial Court as a right to the Court of Appeal onquestion of fundamental rights as contained in ChapterIV of this Constitution as it relates to matter uponwhich the National Industrial Court has jurisdiction.(Italic supplied for emphasis).

Section 243 provides thus:

An appeal shall only lie from the decision of theNational Industrial Court to the Court of Appeal asmay be prescribed by an Act of the National Assembly:

Provided that where an Act or Law prescribes thatan appeal shall lie from the decision of the NationalIndustrial Court to the Court of Appeal, such appealshall be with the leave of the Court of Appeal.” (Italicsupplied for emphasis).

From the above provisions, it is apparent that an aggrievedparty will have a right to appeal against the decision of the NationalIndustrial Court either as of right or with the leave of the Court ofAppeal. By extension, it is also clear from the above provisionsthat this court will only entertain an appeal against the decisionof the National Industrial Court if it is launched as of right orwith the leave of this court where the appeal is not on question offundamental rights contained in Chapter IV of the Constitution.

By section 243 of the 1999 Constitution (amended),referred to above, an aggrieved party will only have the right toappeal against the decision of the National Industrial Court as ofright and this court will also have the jurisdiction to hear sameif the decision of the National Industrial Court is on question offundamental rights as contained in Chapter IV of the Constitution.This point was pointedly postulated in the case of Lagos SheratonHotel and Tower v. H.P.S.S.S.A. (supra) @ 65 paras. E-G., wherehis Lordship, Oseji, JCA opined thus:

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“By virtue of subsection 2, any party, who is aggrievedwith the decision of the National Industrial Court canappeal against such decision to the Court of Appealas of right (which means that he does not require theleave of either the lower court or this court to do so).Provided however, that the decision he seeks to appealagainst must arise from question of fundamental rightas contained in Chapter IV of the Constitution.” (Italicsupplied for emphasis)

However, where the grounds of appeal are not on questionof fundamental rights as contained in Chapter IV of the Constitution(amended), the appeal will only be competent and this court willonly have jurisdiction over same if it was filed with the leave of thiscourt. Put differently, where a party intends to appeal against thedecision of the National Industrial Court on grounds other than onquestion of fundamental rights as contained in Chapter IV of thisConstitution (amended), such party must first seek and obtain theleave of this court to appeal on such grounds otherwise the appealwill be incompetent and this court will lack jurisdiction to entertainsame. See Skye Bank Plc v. Iwu (2017) 6 SC (Pt.1) p.1 @ 43 lines7 – 30; (2017) 16 NWLR (Pt. 1590) 24, wherein the apex courtespoused thus:

“Accordingly, I find and I hold that on a harmoniousconstruction of section 240, 242(1) 243(4), a litigantwho, is aggrieved by a decision of the trial court, inother civil matters, can exercise a right of appeal withthe leave of the lower court. The only innovation inthis regard is that it makes the lower court the finalcourt with respect to such appeal.”

Also, the apex court in the case of Coca-Cola (Nig.) Ltd. Ors.v. Akinsanya (2017) Vol. 5-6 MJSC p.120 @ 139, (2017) 17 NWLR(Pt. 1593) 74, paras. B-E; Eko, JSC opined thus:

“I had earlier reproduced the provision of section 243(2)and of the Constitution, as amended. I think itis misleading to suggest that the provisions had takenaway the right of appeal from decisions of the NationalIndustrial Court. The right to appeal, as of right againstthe decision of the National Industrial Court on question(3)of fundamental rights as contained in Chapter IV of

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the Constitution in relation to matters upon which theNational Industrial Court has jurisdiction is retainedin section 243 of the Constitution. Subsectionthereof also has not abrogated, the right of appeal. Theproviso to the subsection merely makes the exercise ofthe right of appeal in any matter other than questionsof fundamental rights subject to the leave of Court ofAppeal first sought and obtained. Over such matters,the right of appeal is not as of right but upon leave ofthe Court of Appeal first sought and granted.” (Italicsupplied for emphasis).

By the provisions of section 243 and of the 1999Constitution (amended), an appeal shall lie from the decision of theNational Industrial Court, as of right to the Court of Appeal. If thefollowing conditions exist.

(a)On question of fundamental right

(b)As contained in Chapter IV of this (1999) Constitution

As it relates to matters upon which the National(c)Industrial Court has jurisdiction.

Therefore, for an appeal to properly lie to this court from thedecision of the National Industrial Court the following must besatisfied:

Question of fundamental rights must arise in the(a)appeal;

Such question of fundamental right must be thosecontained in Chapter IV of the 1999 Constitution of(b)the Federal Republic of Nigeria, as amended; and

Even at that, it is not every complaint against thedecision of the National Industrial Court about breachof Fundamental Right contained in Chapter IV of theConstitution that appellate jurisdiction is conferred onthe Court of Appeal the breach in question must relateto matters over which jurisdiction is already conferredon the National Industrial Court (either by section254 of the 1999 Constitution as amended by the ThirdAlteration Act of the Constitution) which spells outthe jurisdiction of that court, or by some other Acts ofthe National Assembly conferring jurisdiction on it, ofwhich in the latter case, the appeal has to be with the(c)leave of the Court of Appeal.

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In interpreting and applying the provisions of section 243and of the 1999 Constitution (amended), and other similarprovisions in the laws the focus of the apex court and this court hasalways been on the questions or complaints raised in the groundsof appeal to this court and not the relief or claims in the trial courtas espoused in the case of Usman v. Umaru (1992) 7 NWLR (Pt.254) p. 377, wherein the apex court Per Ogundare, J.S.C. wheninterpreting a similar expressions such as in appeals inspiring“questions regarding” as used in the 1979 Constitution, which(2)same are contained in the 1999 Constitution (amended), said thus:

“The expression in cases involving question regardingas used in S. 10(1) of the Plateau State Customary Courtof Appeal Law can only mean in appeal involvingquestion, regarding. I say this because just as it is theplaintiff’s claim in the trial court that determine thejurisdiction of the court. See Tukur v. Government ofGongola State (1989) 4 NWLR (Pt. 117) p. 517. Soalso it is the issue, or issues for determination in anappeal that determines the court to which an appeallies… .” (Italics mine)

This was reconfirmed a year later by the same court in Golokv. Diyalpwan (1990) LPELR 1329; (1990) 3 NWLR (Pt. 139) p.411 @ 418 with Uwais, J.S.C. (as he then was) saying:

‘’It is clear from the provisions of subsection ofsection 224 of the 1979 Constitution that there is onlyone right of appeal to the Court of Appeal. ‘This rightpertains to a complaint on ground of appeal whichraises question of customary law.”

Section 36(1) of the 1999 Constitution (amended) provides asfollows:

“In the determination of his civil rights and obligations,including any question or determination by or againstany government or authority, a person shall be entitledto a fair hearing within a reasonable time by a courtor other tribunal established by law and constitutedin such manner as to secure its independence andimpartiality”

Where the words of a statute are clear and unambiguous,they should be construed as to give effect to their natural meaning.

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A court of law is without power to import into the meaning of aword, clause or section of a statute that which it did not say. It is acorollary to the rule of literal construction that nothing is added to ortaken from a statute unless there are adequate grounds to justify theinference that the legislature intended something which it omitted toexpress. Where the literal interpretation of the provision of a statutewill result in some ambiguity; to resolve the ambiguity or to avoiddoing injustice in the matter, the court will adopt an interpretationwhich will not defeat the intention of lawmakers. See Okumagba v.Egbe (1965) 1 AII NLR 62, Berliet (Nig.) Ltd. v. Kachalla (1995)9 NWLR (Pt. 420) p. 478; Ogbuanyinya v. Okudo (1979) 6-9 SC32; Awuse v. Odili All FWLR (Pt. 212) p. 1664, (2004) 8 NWLR(Pt. 876) 481; Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158,(1983) 1 SCNLR 296; Ojukwu v. Obasanjo (2004) All FWLR (Pt.222) 1666, (2004) 12 NWLR (Pt. 886) 169.

The provisions of section 36(1) of the Constitution (amended)are applicable only where the determination of the Civil rights andobligations are involved in a dispute being litigated before courtof law or a tribunal established by law. The terms civil rights andobligations as applied in 36(1) of the 1999 Constitution have beendefined. For instance, “civil right” has been defined on page 263 ofthe Black’s Law Dictionary 8th Edition by Bryan A Garner thus,

“The individual right of personal guaranteed by thebill of rights…” “Obligation has been defined on page1104 of the Dictionary referred to supra to be a legal ormoral right to do or not to do something…”

Fair hearing which is entrenched in the Constitution 1999(amended) is based on determining or testing the constitutionalityof a trial in terms of procedure. It is a very fundamental principle oflaw which the parties and the courts are free to apply in relevant

situations in relation to the facts of the case and not in a vacuum.Accordingly, where the facts of the case reject the principle, thecourt will have no competence to force the principle of law in thecase. Thus, there is need for caution in the application of the fairhearing provision in the Constitution.

The real purport of the provisions of section 36(1) of the 1999Constitution (amended) has been expatiated on by apex court in thecase of Orugbo v. Una & Ors. (2002) 16 NWLR (Pt. 792) p. 175 @221, wherein Tobi, JSC, (of blessed memory) stated that:

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“It has become a fashion for litigants to resort to theirright to fair hearing on appeal as if it is a magic wand tocure all their inadequacies at the trial court. But it is notso and it cannot be so. The fair hearing constitutionalprovision is designed for both parties in the litigationand the court as the umpire, so to say, has a legal dutyto apply it in the litigation, in the interest of fair playand justice. The courts must not give a burden to theprovision which it cannot carry or shoulder. I see thatin this appeal.

Fair hearing is not a cut-and-dry principle whichparties can, in the abstract, always apply to theircomfort and convenience. It is a principle which isbased and must be based on the facts of the case beforethe court. Only the facts of the case can influenceand determine the application or applicability of theprinciple. The principle of fair hearing is helpless, orcompletely dead outside the facts of the case.”

It is therefore not correct to contend as learned counsel tothe respondent did, that the question of fundamental human rightenvisaged by section 243 and of the 1999 Constitution(amended), refer to the plaintiff’s reliefs and claims at the trial court,that is, National Industrial Court, touching on fundamental rightsunder Chapter IV of the Constitution and that it is only an appeal onor touching or relating to such fundamental rights contained in suchreliefs or claims that confer a right of appeal to the Court of Appeal,from a decision of the National Industrial Court.

At this juncture, an examination of the questions or complaintsfor determination as put forward by the appellants in their tengrounds of appeal to this court to see whether they raise question offundamental right, particularly breach of their right to fair hearingunder section 36(1) of Chapter (IV) of the 1999 Constitution(amended) is pertinent. The notice of appeal filed by the appellantson the 1st of July, 2017 and the grounds thereof, are located on pages342 to 353 of the printed record of appeal. I have dispassionatelyconsidered and evaluated the grounds of appeal. In my view, all theten grounds of appeal are attacking the findings and decisionsarrived at on specific issues by the learned Judge of the lower court.

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The question that arises in this, what constitutes fair hearingunder section 36(1) of Chapter (IV) of the Constitution (amended)and when it is breached to support an appeal from the NationalIndustrial Court to the Court of Appeal pursuant to section 243(2)and of the 1999 Constitution (amended), section 36(1) of the1999 Constitution (amended), provides as-follows:

“In the determination of the civil rights and obligations,including any question or determination by or againstany government or authority, a person shall be entitledto fair hearing within a reasonable time by a court ortribunal established by law and constituted in such amanner as to secure its independence and impartiality.”

The purview of the provisions supra, which are “im parimateria” with section 22 of the 1963 Constitution and section 33of the 1979 Constitution, both of the Federal Republic of Nigeria,have been examined, interpreted and applied by the apex court in alitany of cases. For instance, in Ransome-Kuti v. A.-G., Federation(1985) 2 NWLR (Pt. 6) p. 211 @ 258; Oputa J.S.C, espoused thus:

“The next section of the 1963 Constitution heavilyrelied upon by Mr. Braithwaite was section 22 whichstipulated 22(1).

Read as a whole, it is obvious that the right guaranteedby section 22 above is similar to the right guaranteedby section 33(1) of the 1979 Constitution and that is -Right to fair hearing. The antecedent portion of section22 of the 1963 Constitution uses the phase in thedetermination of his civil rights and obligations. Thiscan only refer to civil rights and obligation existingindependent of section 22 and not created by section22 above. It is in the determination of such civil rightand obligation that 1963 Constitution guaranteedany aggrieved person a fair hearing of his complainor his claim in accordance with the rules of naturaljustice namely impartiality and fairness. What section22 guaranteed was fair and impartial adjudicationof dispute about right and obligations which arisealiunde.”(Italic for emphasis)

The Law Lord, Oputa J.S.C reconfirmed the extent of theconstitutional fair hearing provision in the case of Legal Practitioners

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Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR(Pt. 7) p. 300 @ 383, when his Lordship enunciated that:

“In this appeal therefore, the essential issue is theextent of the right to fair hearing guaranteed by section33 of the 1979 Constitution. Was the respondent’sright under section 33 infringed or threatened withinfringement?

This court in Alhaji Isyaku Mohammed v. Rabiu (1968)1 All N.L.R. 242 @ p. 426 has held that a fair hearingmust involve a fair trial and a fair trial of a case consistof the whole hearing…. The true test of a fair hearing… is the impression of a reasonable person who waspresent at the trial whether from the observationjustice has been done in the case. This reasonableperson will naturally, be look for the following in orderto determine whether the trial was fair and whetherjustice has been done:-

1.How was the tribunal or the forum competenscomposed?

Was it composed of ‘’judges’’ or “persons”whose impartiality and fairness weretransparent; persons who taking into accountour common human weakness can exercise adetached attitude towards the facts presented tothem, persons whom the respondent will haveno cause to suspect or distrust, person in whomthe respondent reposed confidence? Justice, inthe final analysis must be rooted in confidenceand that confidence may be destroyed by theconduct and/or utterances of the judex – (theperson adjudicating) – giving the impressionthat he was biased. Metropolitan PropertiesCo. (FGC) Ltd. v. Lannon (1968) 3 All E.R.304 @ p.310.

2.Was the person whose conduct was beinginquired into given the opportunity to listen toand reply to all the allegations made againsthim; and was nothing adverse said about himin his absence?

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These are the twin pillar of fair hearing or fair trial.They are also the twin pillar of natural justice; they arethe rules against bias and the right to be heard. In theLatin days of jurisprudence/the ancient Romans putthese two rules into two Latin maxims:

i.Nemo potest esse judex in proprio cause; and

ii. Audi alteram partem

In the English days of jurisprudence, they have beenreduced to two very familiar words – Impartiality andFairness. They are distinct but closely related concepts.Impartiality relates to the forum itself. While fairnessrelates to the right of the person accused to be heardKanda v. Government of Malaya (1962) A.C 322.”

From the foregoing, it is very clear that the test for fairhearing under section 36(1) Chapter (IV) of the 1999, Constitution(amended) is whether the person asserting that the grounds ofappeal, in the appeal to this court, contained denial of access tothe court or not being treated fairly by the court or being preventedfrom presenting his case freely without any hindrance by the court.For instance, Ejiwunmi, J.S.C in the case of Alsthon S.A & Anor.v. Chief Dr. Olusola Saraki (2005) 123 LRCN p.72 @ 91 to 93,(2000) 14 NWLR (Pt. 687) 415 postulated thus:

“Fair hearing according to our law, envisage that bothparties to a case be given an opportunity of presentingtheir respective cases without let or hindrance from thebeginning to the end. It also envisage that the courtor tribunal hearing the parties’ case should be fair endimpartial without showing any degree of bias againstany of the parties.”

Bearing in mind the postulations supra, it cannot be said thatthe ten grounds of appeal contained in the notice of appealfiled by the appellants satisfied the position of the law regardingallegation of violation or breach of fundamental human rightsenvisaged under section 243 and of the 1999 Constitution(amended), to warrant appealing against the judgment of theNational Industrial Court as of right, rather than with leave of theCourt of Appeal as the appellants in the extant appeal has done. Ithink what Oseji, J.C.A, (as he then was) had in mind is the kind ofappellants as in the extant appeal, who thought they can just appeal

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of right against the decision of the National Industrial Court withoutfirst seeking leave of this court, when his Lordship espoused inLagos Sheraton Hotel & Tower v. H.P.S.S.S.A. supra page 71 that:

“Litigant who seek to circumvent or evade theprovision of section 243(2) and 243(2) and ofthe 1999 Constitution (amended), by seeminglywaving the magic wand of fair hearing or breach ofthe fundamental right with the main motive of havingaccess to appeal against a decision of the NationalIndustrial Court on matter falling outside the allowedscope should be advised not to underestimate the sharpsense of perception and wisdom of the appellate courtsto sift the wheat from the chaff.”

Having found and held that the appellants’ grounds ofappeal as contained in the notice of appeal are not on questionof fundamental rights as contained in Chapter (IV) of the 1999Constitution (amended), and the said notice of appeal was filedwithout the requisite leave of this court first sought and obtained,the logical implication of the above finding and holding is thatthe requisite leave to make this appeal competent and to conferjurisdiction on this court to entertain the appeal was not sought andobtained before filing same.

The law is settled, where leave of court is required to ignite oractivate the jurisdiction of a court over any matter failure to seekand obtain the leaves makes the action incompetent and divestedthe court the jurisdiction to adjudicate. See Inter Ocean Oil Corp.Nig. Unlimited v. Fadeyi (2008) All FWLR (Pt. 403) p. 1381 @1398, para. C where this court, per His Lordship, Omoleye, JCApostulated thus:

“The legal effect of not seeking leave to appealproperly so called is that the appeal is incompetent,null and void.”

Adekeye, J.C.A (as she then was) held as follows in the caseof Inter Occen Oil Corp. Unlimited v. Fadeyi (2005) All FWLR (Pt.403) p.1381 @ 1398, that:

‘’I agree with my learned brother in the ruling thatfailure to obtain requisite leave to appeal is tantamountto not fulfilling a condition precedent to the exerciseof the jurisdiction by this court. This is a defect in

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competence which is extrinsic to adjudication. Wherea litigant ought to obtain leave to come to court, failureto take steps to secure the leave is a fundamentaldefect.”

The end result of the foregoing analysis is that the preliminaryobjection raised by the respondent as to the incompetency of thenotice of appeal filed on the 1st of July 2019 by the appellants againstthe decision of the National Industrial Court delivered on the 31stday of May 2019, is null and void, and this court cannot be vestedwith the jurisdiction to hear and determine same. The appeal No:CA/IL/135/2019 being incompetent is accordingly hereby struckout.

The sustenance of the preliminary objection raised by therespondent has determined the appeal and there is no need to delveinto the other issues.

I have adverted my mind to the principles of law enunciated inthe case of F.C.D.A. v. Sule (1994) 3 NWLR (Pt. 332) 257 referredto in the case of Shasi v. Smith (2009) 18 NWLR (Pt. 1173) p. 330@ 356; supra; wherein It has been held that there is an exceptionto the need for an intermediary court to proceed to consider allother issues raised in an appeal even where the resolution of oneissue could terminate an appeal. The principle of law in the case ofF.C.D.A. v. Sule, is to the effect that where the sole issue resolvedis to the effect that the intermediary appeal court has no jurisdictionto entertain and determining the matter before it being considered,it may not proceed to consider the remaining issues in the suitor appeal for it has no jurisdiction to do so. It is in view of theforegoing illucidation that I decline to proceed to consider the otherissues raised in the appeal before us.

It should be noted that it is only the notice of appeal filed onthe 1st of July, 2019 that has been struck out. For now, the judgmentof the lower court delivered on the 1st of May 2019 remains validand binding on the parties until contrary order is made by a superiorcourt. I make no order as to costs.

BELGORE, J.C.A.: I had the advantage of reading in draft, thejudgment just delivered by my learned brother, Ibrahim ShataBdliya, JCA. I agree with his reasoning and conclusion.

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I agree that the notice of appeal is incompetent and that it isliable to be struck out. I strike out the notice of appeal.

ONYEMENAM, J.C.A.: I have read before now the judgment justdelivered by my brother, Ibrahim Shata Bdliya, JCA.

The jurisdiction of the court to hear this appeal from theNational Industrial Court stems on section 243 of the 1999Constitution of the Federal Republic of Nigeria (as amended);which provides thus:

“An appeal shall lie from the decision of the NationalIndustrial Court as of right to the Court of Appealon questions of Fundamental Rights as containedin Chapter IV of this Constitution as it relates tomatters upon which the National Industrial Court hasjurisdiction.”

The concept of the rule of fair hearing as provided for undersection 36(1) of Chapter (IV) of the Constitution of the FederalRepublic of Nigeria; which is the rule of natural justice, demandsthat a party must be heard before the case against him is determined.See; Akande v. State (1988) 3 NWLR (Pt. 85) 681; F.C.S.C. v. Laoye(1989) 2 NWLR (Pt. 106) 652; Esabunor & Anor. v. Faweya & Ors.(2019) LPELR-46961(SC), (2019) 7 NWLR (Pt. 1671) 316.

The respondent at the trial court prayed for the followingreliefs:

“(a) A declaration that the termination of employment ofthe claimant as contained in the letter dated the 10thOctober, 2016 written by the defendant is illegal,wrongful, null and void and of no effect whatsoeverhaving been done in contravention of section 8 of theUniversity Condition of Service and Regulation andthe rules of fair hearing.

An order of this honourable court reinstating theclaimant as lecturer II in the 1st defendants Universitywithout prejudice to his promotion, salaries and other(b)entitlements.

An order of the honourable court directing the defendantto pay the claimant’s salaries and entitlement from the(c)time of the termination until he is reinstated.

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Alternatively

A declaration that the claimant is entitled to damagesin form of lass of earning far unlawful termination ofthe appointment by the defendants in forms of loss,of earning with effect from 10th October, 2016 tillDecember, 2048 when is due to retire from service inaccordance with the condition of service governing his(1)employment.

An order of this honourable court directing thedefendants to pay a calculated sum of NGN 137,108,721.56k as damages for the abrupt termination of(2)the carrier in the form of loss of’ earning.

An order of this honourable court directing thedefendants to pay a sum of NGN 10,000,000.00 to theclaimant as damages for psychological and emotionaltrauma and agony which the action of the defendants(3)have occasioned to the claimant.”

A calm consideration of the above reproduced reliefs be it asin the alternative reliefs sought by the respondent at the trial court,the main claim of the respondent is the unlawful termination of hisemployment; and even where otherwise worded, does not amountto a declaration for breach of right to fair hearing as argued by theappellant’s counsel.

The golden rule of interpretation is that where the words usedin the Constitution or in a statute are clear and unambiguous, theymust be given their natural and ordinary meaning, unless to do sowould lead to absurdity or inconsistency with the rest of the statute.See: Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513; Ojokolobov. Alamu (1987) 3 NWLR (Pt. 61) 377 at 402 paras. F-H; Adisa v.Oyinwola & Ors. (2000) 6 SC (Pt. 11) 47, (2000) 10 NWLR (Pt.674) 116; Professor Jerry Gana, Con v. Social Democratic Party& Ors. (2019) LPELR – 47153(SC), (2019) 11 NWLR (Pt. 1684)510; Manonu & Anor. v. Dikat & Ors. (2019) LPELR-46560(SC),(2019) 7 NWLR (Pt. 1672) 495.

Section 243(2) of the 1999 Constitution of the Federal Republicof Nigeria (as amended) in my view is clear and unambiguousand should be given its plain and ordinary meaning. By the plainmeaning of section 243(2) (supra), I take the position that thisappeal does not fall under the exceptions as provided by the referred

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section243(2)(supra).Therefore,leaveofthecourtisrequiredtofilethisappealandtheappealhavingbeingfiledwithoutleaveofthecourtbeingsoughtandobtainedisincompetent.See:Dankofav.F.R.N.(2019)LPELR-46539(SC),(2019)9NWLR(Pt.1678)468;OmokuAchieversCo-OperativeInvestment&CreditSocietyLtd&Ors.v.Emeronye(2019)LPELR-48318(CA).

Fortheviewexpressedabove,Iagreewiththereasoningandconclusionofmybrotherjusticethatthenoticeofappealisincompetent.Thecourtlacksthejurisdictiontoentertaintheappealandthesameisherebystruckout.Noorderismadeastocosts.

Appealstruckout.

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