PORTS & TERMINAL MULTISERVICES LTD & ANOR v. NWAOSA CITATION: (2016) LPELR-41490(CA) In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON WEDNESDAY, 21ST DECEMBER, 2016 Suit No: CA/L/781/2013 Before Their Lordships: UZO IFEYINWA NDUKWE-ANYANWU Justice, Court of Appeal BIOBELE ABRAHAM GEORGEWILL Justice, Court of Appeal UGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal Between 1. PORTS AND TERMINAL MULTISERVICES LTD 2. MR. SAMUEL EYUSA - Appellant(s) And MR. CHARLES NWAOSA - Respondent(s) RATIO DECIDENDI (2016) LPELR-41490(CA)
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PORTS & TERMINAL MULTISERVICES LTD &ANOR v. NWAOSA
CITATION: (2016) LPELR-41490(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON WEDNESDAY, 21ST DECEMBER, 2016Suit No: CA/L/781/2013
Before Their Lordships:
UZO IFEYINWA NDUKWE-ANYANWU Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal
Between1. PORTS AND TERMINAL MULTISERVICES LTD2. MR. SAMUEL EYUSA - Appellant(s)
AndMR. CHARLES NWAOSA - Respondent(s)
RATIO DECIDENDI
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1. APPEAL - APPEAL AS OF RIGHT: When will an appeal lie as of right fromthe National Industrial Court to the Court of Appeal"My lords, over the years following the incorporation of the NationalIndustrial Court of Nigeria as a Superior Court following the alteration ofthe Constitution of Nigeria 1999 under the provisions of Section 243 of theConstitution of Nigeria 1999 (as amended), two schools of thought havearisen on the right of appeals from decisions of the National IndustrialCourt to this Court vide Section 243(2) & (3) of the Constitution of Nigeria1999 (as amended). These schools of thought are sharply divided. To thefirst school of thought only appeal on ground alleging of breach of theprovisions of Chapter IV of the Constitution of Nigeria 1999 (as amended)lies as of right to this Court from the decision of the National IndustrialCourt. See: Coca-Cola Nigeria Limited & 2 Ors. v. Akinsanya (2013) 18NWLR (Pt. 1386) 255; Lagos Sheraton Hotel & Towers v. Hotel and PersonalServices Senior Staff Association (2014) 14 NWLR (Pt. 1426) 45; DarnleyAnifowoshe v. WEMA Bank Plc. (2015) LPELR-24811 (CA); Zenith Bank Plc.v Caroline Dennis Durugbor (2015) LPELR-24898 (CA); Mr. Lasisi Lawal v.O.A.U. Ile-Ife (2016) LPELR-40290 (CA); Mr. M. I. Ogunbanwo v. O.A.U. Ile-Ife (2016) LPELR-40291 (CA). To the second school of thought, whileappeal on ground alleging breach of Chapter IV of the Constitution ofNigeria 1999 (as amended) lies as of right from the decision of the NationalIndustrial Court to this Court, all other appeals alleging ground other thanbreach of Chapter IV of the Constitution of Nigeria 1999 (as amended) liewith the leave of Court. In other words, all decisions of the NationalIndustrial Court are subject to appeal to this Court, either as of right or withleave in that the National Industrial Court is not a Court of Final Jurisdictionunder the Constitution of Nigeria 1999 (as amended). See LocalGovernment Service Commission, Ekiti State & Anor. v. Mr. G. O. Asubiojo(2013) LPELR-20403 (CA); Local Government Service Commission, EkitiState & Anor. v. Mr. F. O. Olamiju (2013) LPELR-20409 (CA); LocalGovernment Service Commission, Ekiti & Anor. v. Mr. M. A. Jegede (2013)LPELR-21131 (CA); Local Government Service Commission & Anor. v. Mr. K.Bamisaye (2013) LPELR-20407 (CA); Federal Ministry of Health v. TheTrade Union Members of the Joint Health Sectors Union & Ors, (2014)LPELR-23546 (CA). Happily, notwithstanding the divergent views leading tothe above two positions taken by this Court on appeals from the NationalIndustrial Court to this Court, one position remains sacred and almostsacrosanct, and on which opinions are unanimous, namely: appeals againstthe decision of the National Industrial Court on ground alleging breach ofChapter IV of the Constitution of Nigeria 1999 (as amended) lie as of rightto this Court."Per GEORGEWILL, J.C.A. (Pp. 14-15, Paras. A-C) - read incontext
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2. APPEAL - GROUND(S) OF APPEAL: Definition of ground(s) of appeal"A ground of appeal is the error of law or facts alleged as the defect in thejudgment appealed against and on the basis of which the decision shouldbe set aside. Put differently, it is the reason why the decision is consideredwrong by the aggrieved party. See IDIKA v. ERISI (1988) 2 NWLR (Pt. 78)503 at 578, AZAATSE v. ZEGEOR (1994) 5 NWLR (Pt. 342) 76 at 83 andAKPAN v. BOB (2010) 17 NWLR (Pt. 1223) 421 at 464."Per OGAKWU, J.C.A.(P. 17, Paras. B-D) - read in context
3. APPEAL - GROUND(S) OF APPEAL: How to determine the nature ofground of appeal"The determining factor in ascertaining the nature or character of a groundof appeal is the real issue or complaint raised in the ground. Inascertaining the real issue or complaint, the ground of appeal asformulated and all the particulars thereto are to be read and construedtogether. See ODUKWE v. ACHEBE (2008) 1 NWLR (Pt. 1067) 40 at 53 andABIA STATE INDEPENDENT ELECTORAL COMMISSION v. ONYEABOR (2011)LPELR-3563 1 at 31."Per OGAKWU, J.C.A. (P. 17, Paras. D-F) - read incontext
4. APPEAL - APPEAL AS OF RIGHT: Statutory provision as regards when anappeal lie as of right from the National Industrial Court to the Court ofAppeal"Section 243(2) & (3) of the 1999 Constitution (as amended) provides asfollows: "2) An appeal shall lie from the decision of the National IndustrialCourt as of right to the Court Appeal on question of fundamental right ascontained in Chapter IV of this Constitution as it relates to matters uponwhich the National Industrial Court has jurisdiction." "3) An appeal shall liefrom the decision of the National Industrial Court to the Court of Appeal asmay be prescribed by an Act of the National Assembly: Provided thatwhere an Act or Law prescribes that an appeal shall lie from the decisionsof the National Industrial Court to the Court of Appeal such appeal shall bewith the leave of the Court of Appeal."Per OGAKWU, J.C.A. (P. 19, Paras. A-D) - read in context
5. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: The twin pillars ofthe right to fair hearing"The Courts have held that the standard of fair hearing requires theobservance of the twin pillars of the rules of natural justice namely: (1)Audi Alteram Partem-hear the other side. (2) Nemo judex in causa sua - noone should be a Judge in his own cause, this is the rule against bias. SeeAkinfe v. The State (1985) 3 NWLR (Pt. 85) pg. 729; Bamgboye v. Unilorin(1999) 10 NWLR (Pt. 622) page 290."Per NDUKWE-ANYANWU, J.C.A. (P. 12,Paras. A-C) - read in context
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6. JURISDICTION - JURISDICTION OF THE COURT OF APPEAL: Extent ofthe jurisdiction of the Court of Appeal over appeals from the NationalIndustrial Court"Both parties agree that the Court of Appeal in matters concerning appealsfrom the National Industrial Court is limited by Statutes. The Court ofAppeal in appeals emanating from National Industrial Court is limited. Theappeals to the Court of Appeal is with leave except in questions borderingon jurisdiction and fair hearing. ?For an appeal other than from the abovemust be with leave. This limitation is what is provided in Section 243 (2) &(3) of the 1999 Constitution as amended. It provides as follows: "An appealshall lie from the decision of the National Industrial Court as of right to theCourt of Appeal on questions of fundamental right as contained in ChapterIV of this Constitution as it relates to matters upon which the NationalIndustrial Court has jurisdiction." "An appeal shall only lie from the decisionof the National Industrial Court to the Court of Appeal as may beprescribed by an Act of the National Assembly: Provided that where an Actor Law prescribes that an appeal shall be from the decisions of the NationalIndustrial Court to the Court of Appeal such shall be with leave of the Courtof Appeal." See also Section 9(1) and 9(2) of the National Industrial CourtAct No 1, 2006 which provides as follows: "Subject to the provisions of theConstitution of the Federal Republic of Nigeria 1999 and Subsection (2) ofthis Section, No appeal shall lie from the decisions of the Court to the Courtof Appeal or any other Court except as may be prescribed by this Act orany other Act of the National Assembly. Section 9(2) provide that Appealfrom the decision of the Court shall lie only as of right to the Court ofAppeal only on questions of fundamental rights as contained in Chapter IVof the Constitution of the Federal Republic of Nigeria 1999. For an appealto be initiated without leave it must be on a ground of fair hearing."PerNDUKWE-ANYANWU, J.C.A. (Pp. 5-7, Paras. E-B) - read in context
7. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Effect of thesuccess of a preliminary objection"The Preliminary Objection is upheld. Therefore, it is settled, that where aPreliminary objection succeeds, there is no need to go further to considerthe arguments in support of the issue or issues for determination perOgbuagu, JSC in Adelakan v. Eco Line (2006) LPELR 113, (2006) 5 SC (Pt. 2)page 32. Where a Preliminary objection succeeds and it is upheld by theCourt, it brings the proceedings in which it was raised to an end as therewould no longer be any other competent live issue in the case. See Kotoyev. Saraki (1991) 8 NWLR (Pt. 211) page 638; Goji v. Ewela (2001) 15 NWLR(Pt. 736) page 273; Odu v. Agbor-Heneson (2003) 1 NWLR (Pt. 802) page624; Ngige v. Obi (2006) All FWLR (Pt. 330) page 1041 (2006) 14 NWLR (Pt.990) page 1."Per NDUKWE-ANYANWU, J.C.A. (Pp. 12-13, Paras. F-D) - readin context
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UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
(Delivering the Leading Judgment): This is an appeal
against the judgment of the National Industrial Court,
delivered by his Lordship Honourable Justice B. B.
Kanyip, on 17th July, 2013.
The Respondent as Claimant instituted this action against
the Appellants as Defendants, claiming the following
reliefs:-
1. A sum of N10,000,000 being special and general
damages for injuries suffered by the Claimant for the
Negligence of the 2nd Defendant in the course of his
work with the 1st Defendant.
2. A Declaration that the arbitrary termination of the
Claimant's employment in July 2010 by the 1st
Defendant is wrongful and should be reinstated.
3. Costs
The Defendants now Appellants filed a Statement of
Defence dated 20th July, 2012.
The case of the Respondent on the pleadings was that he
worked for the 1st Appellant as a security man and tally
clerk. On 9th August, 2008 while he was at his duty post
recording the plate number of a trailer, another trailer
driven by the 2nd Appellant (who also is an employee of the
1st Appellant) negligently smashed into the parked trailer
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and him. He was rushed to the Company's hospital, who
later referred him to Robertson Hospital for treatment. He
alleged that at Robertson Hospital a temporary surgical
operation was performed on him to correct his ruptured
urinary tract and was then referred to LUTH for further
treatment. He contended that while at LUTH he was
abandoned to his fate as the company took no responsibility
to pay the bills. Upon recovery he returned to work but was
prematurely sacked without compensation. He then
instructed his Lawyer to write to the 1st Appellant
demanding compensation for his disability but got no reply.
Hence he commenced this action for damages and unlawful
termination.
On the other hand, it is the Appellants' case that the
Respondent was adequately treated and compensated
under the Workman Compensation Act for his injury. They
also submitted that the dismissal of the Respondent was
lawful.
After a review of the evidence of witnesses, documentary
exhibits and of course, the written addresses of counsel for
the parties, the learned trial Judge granted part of the
Claim of the Respondent' claims where it held as follows:
1. Relief 2, the
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claim for reinstatement fails and is accordingly
dismissed.
2. The claim for special and general damages
succeeds partially and only in terms of the sum of
N3,762,000 allegedly deducted as medical expenses
by the 1st defendant. In this wise, it is hereby ordered
that the defendants pay to the claimant this sum of
N3,762,000 within 30 days of this judgment.
3. Cost of the action is put at N50,000 only payable by
the defendants to the claimant.
See page 138 of the record.
Being dissatisfied with the judgment, the appellants by an
order of this Court filed an Amended Notice of Appeal on
29th October, 2013 but deemed properly filed on 17th
March, 2014 which contained three (3) grounds of appeal.
The relevant briefs of argument are as follows:
1. Appellants' brief of argument dated and filed on
29th October, 2013 but deemed properly filed on the
17th March 2016.
2. Respondent's brief of argument (Incorporating
Notice of Preliminary Objection) filed on 18th April,
2016.
3. Appellants' reply brief of argument filed on 16th
May, 2016.
THE PRELIMINARY OBJECTION
Learned Counsel for the Respondent raised a
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preliminary objection, that this Honourable Court lacks the
jurisdiction to entertain this appeal. He submitted that the
Appellant does not enjoy any right of appeal against the
judgment of the lower Court by virtue of Section 243(2), (3)
of the Constitution of the Federal Republic of Nigeria 1999
(as amended) and Section 9(1),(2) of the National Industrial
Court Act, 2006.
He reproduced the said provisions and argued that a party
will only enjoy a right of appeal as of right on questions of
Fundamental Rights as contained in Chapter IV of the
Constitution of the Federal Republic of Nigeria, 1999 and
with leave on any other matter or cause provided such
privilege or right is prescribed by an Act of the National
Assembly.
He submitted that the present appeal does not fall into the
above category and therefore the appeal is incompetent
because:
1. This Appeal does not fall within the provision of
Cap IV of the Fundamental Human Right in the 1999
Constitution. He referred to the three Grounds of
Appeal to contend that they were merely geared
towards avoiding the limitation placed on the right of
appeal against the decision of the lower Court
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by raking up imaginary breach of Fundamental Right
to a fair hearing.
2. No Act of the National Assembly has prescribed
that an appeal can lie to this Court without leave.
He cited the case of LAGOS SHERATON HOTEL &
TOWERS v. H.L.P.S.S.S.A. (2014) 14 NWLR (Pt. 1426)
45; SABIRU ADEBAYO v. A.G. OGUN STATE (2008) 7
NWLR (Pt. 1055) 201.
Learned counsel for the Appellant response to the
Respondent's Preliminary Objection is contained at page 1
to 3 of its Reply brief. In his reply Counsel insisted that the
three grounds of the Appeal in the Appellant's Amended
Notice of Appeal complained about fair hearing and
thereby within the purview of the provision of Section 243
(2), (3) of the 1999 Constitution and Sections 9(1) & (2) of
the National Industrial Court Act 2006.
RESOLUTION
Both parties agree that the Court of Appeal in matters
concerning appeals from the National Industrial Court is
limited by Statutes. The Court of Appeal in appeals
emanating from National Industrial Court is limited. The
appeals to the Court of Appeal is with leave except in
questions bordering on jurisdiction and fair hearing. For an
appeal
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other than from the above must be with leave.
This limitation is what is provided in Section 243 (2) & (3)
of the 1999 Constitution as amended. It provides as follows:
"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."
"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 be from the decisions
of the National Industrial Court to the Court of
Appeal such shall be with leave of the Court of
Appeal."
See also Section 9(1) and 9(2) of the National Industrial
Court Act No 1, 2006 which provides as follows:
"Subject to the provisions of the Constitution of the
Federal Republic of Nigeria 1999 and Subsection (2)
of this Section, No appeal shall lie from the decisions
of the Court to the Court of Appeal or any other Court
except as may be prescribed
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by this Act or any other Act of the National Assembly.
Section 9(2) provide that Appeal from the decision of
the Court shall lie only as of right to the Court of
Appeal only on questions of fundamental rights as
contained in Chapter IV of the Constitution of the
Federal Republic of Nigeria 1999.
For an appeal to be initiated without leave it must be on a
ground of fair hearing.
The Court has been urged in the Preliminary Objection of
the Respondent to hold that none of the 3 Grounds of the
Appellant is one on fair hearing.
RESOLUTION
A glossary look at the 3 Grounds will show what they
contain. I will recap the 3 Grounds shod of all particulars
GROUND ONE
The trial Judge erred in law when he raised and
decided, suo motu, an issue not pleaded or proved by
the Claimant/Respondent and held that "I hold that
the defendants were wrong to have made the
deductions they did and paying to the claimant only
the sum of N206,675.81. The 1st Defendant out to
have paid all of the sum of N3,968,675,82 received
from Cornerstone Insurance Plc; and I so find and
hold. This means that the claimant is entitled to be