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

paid by the

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defendants the sum of N3,762,000 deducted as

medical expenses." Thereby encroaching on the

Defendants/Appellants' constitutionally guaranteed

right to fair hearing.

GROUND TWO

The trial Judge misdirected himself in law when he

held that 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", in clear

breach of the Defendants/Appellants' constitutional

rights to fair hearing.

GROUND THREE

The learned trial Judge erred in law when he granted

relief not pleaded, proved nor prayed for by the

Claimant/Respondent.

On the issue whether there was a breach of fair hearing. I

will refer to the judgment where the trial Judge held inter

alia.

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

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of N206,675.81. The 1st Defendant ought 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 paid by

the defendants the sum of N3,762,000 deducted as

medical expenses." Thereby encroaching on the

Defendants/Appellants' constitutionally guaranteed

right to fair hearing.

The Appellants in its statement of defence joined issues

with the Respondent. See Respondents claim in paragraph

7-20, pages 4-5 of Record of Appeal. In response to these

averments in the above paragraphs, the Appellants in his

statement of defence in paragraph 5-10 pages 25-26 of the

Record of Appeal countered the averments of the

Respondent. These paragraphs only go to show that parties

have joined issues by their pleadings. To buttress this issue

further, the Appellant in defence of its case called DW1

Williams Barrow. In his witness statement, in paragraph

10 in page 120 of Record of Appeal the DW1 gave evidence

as to the pleadings.

The Appellant in its defence tendered Exhibit D1 (a), D1

(b), D2 & D3. These Exhibits go to show the medical bills

which led to the payment

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by Cornerstone Insurance Plc. Going further, the Appellant

in his final address stated thus:

We submit that by parties' evidence before the Court,

the accident to the Claimant occurred on 9th August,

2008 and he was hospitalized thereafter at Lagos

Clinic and other referred clinics where he was given

comprehensive treatment spanning 399 days at a

total cost of N3,762,000 (Exhibits D1A & D13 were

invoices of medical treatment of the Claimant).

Particulars of treatment given to the Claimant were

as contained in paragraphs 7 and 8 of the DW1

statement on oath dated 20th July, 2012. It was part

of the evidence before the Court that upon the

occurrence of the accident necessary steps were

taken by the 1st Defendant to process the Claimant's

entitlement under the Workmen's Compensation Act

from the 1st Defendant's insurers Cornerstone

Insurance Plc. A total sum of N206,675,81 was

assessed as due [Claimant was incapacitated for 399

days and his basic salary was N24,200 x 6 months =

N145,200,00; 50% N12,100 x 3 months = N36,300 and

25% N6,050 x 129 = 25,175.81 was paid to the

Claimant as contained in Exhibit D3 in line with the

provisions of Workmen's

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Compensation Act. The sum of N3,762,000 being the

Claimant's medical expenses was deducted from the

amount received from Cornerstone Insurance Plc

(Exhibit D2)].

All these go to show that issues were joined by parties in

their pleadings and canvassed in their written address to

the Court. If this is so, then, the Appellant cannot in all

honesty say that the trial judge suo motu raised the issue

of the compensation and determined it without the input of

parties. Where did the trial Judge manufacture the figures

from? He got the figures as can be gleaned from the

pleadings and the Exhibits.

On Ground two, it also talked about claims for special and

general damages. As I said earlier, these issues were

pleaded and canvassed by both parties so also is Ground 3.

Where a Court grants a relief not pleaded, proved nor

prayed for, this cannot be said to be a breach of fair

hearing. I have already stated that this was pleaded by the

parties.

All three Grounds can all be rolled into one. They all

revolve around the special and general damages awarded

the Respondent in the lower Court.

None of these three (3) Grounds can be said to be

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Grounds of fair hearing. The Appellant did not prove that

his right of fair hearing was breached in any way. See

Baba v. N.C.A.A. (1997) 5 NWLR (Pt. 192) pg 388.

The Courts have held that the standard of fair hearing

requires the observance 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 - no one should be a Judge

in his own cause, this is the rule against bias.

See Akinfe v. The State (1985) 3 NWLR (Pt. 85) pg.

729; Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622)

page 290.

It is obvious that the trial Court did not breach any of the

twin pillars in reaching its decisions in this matter. The

Appellant was not denied fair hearing in this case. The

Preliminary Objection is upheld as there were no issues of

breach of fair hearing. Since there is no breach of fair

hearing, the Appellant needed leave of Court to appeal

against the decision of the National Industrial Court. See

Section 243(2) of the 1999 Constitution and Section 9(1)

and (2) of the National Industrial Court Act, 2006.

The Preliminary Objection is upheld. Therefore, it is

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settled, that where a Preliminary objection succeeds, there

is no need to go further to consider the arguments in

support of the issue or issues for determination per

Ogbuagu, 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

the Court, it brings the proceedings in which it was raised

to an end as there would no longer be any other competent

live issue in the case.

See Kotoye v. 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)

page 624; Ngige v. Obi (2006) All FWLR (Pt. 330)

page 1041 (2006) 14 NWLR (Pt. 990) page 1. With the

foregoing, the other issues articulated by the Appellant are

no longer live issues. This appeal is hereby struck out, it

being incompetent.

Cost to the Respondent is assessed at N100,000.00 only.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lord

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. had

afforded to me in advance a draft copy of the lead judgment

just delivered and I am in complete agreement with the

reasons and conclusion

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reached therein, which I hereby adopt as mine.

My lords, over the years following the incorporation of the

National Industrial Court of Nigeria as a Superior Court

following the alteration of the Constitution of Nigeria 1999

under the provisions of Section 243 of the Constitution of

Nigeria 1999 (as amended), two schools of thought have

arisen on the right of appeals from decisions of the

National Industrial Court to this Court vide Section 243(2)

& (3) of the Constitution of Nigeria 1999 (as amended).

These schools of thought are sharply divided.

To the first school of thought only appeal on ground

alleging of breach of the provisions of Chapter IV of the

Constitution of Nigeria 1999 (as amended) lies as of right

to this Court from the decision of the National Industrial

Court. See: Coca-Cola Nigeria Limited & 2 Ors. v.

Akinsanya (2013) 18 NWLR (Pt. 1386) 255; Lagos

Sheraton Hotel & Towers v. Hotel and Personal

Services Senior Staff Association (2014) 14 NWLR

(Pt. 1426) 45; Darnley Anifowoshe 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.

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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, while appeal on ground

alleging breach of Chapter IV of the Constitution of Nigeria

1999 (as amended) lies as of right from the decision of the

National Industrial Court to this Court, all other appeals

alleging ground other than breach of Chapter IV of the

Constitution of Nigeria 1999 (as amended) lie with the

leave of Court. In other words, all decisions of the National

Industrial Court are subject to appeal to this Court, either

as of right or with leave in that the National Industrial

Court is not a Court of Final Jurisdiction under the

Constitution of Nigeria 1999 (as amended). See Local

Government Service Commission, Ekiti State & Anor.

v. Mr. G. O. Asubiojo (2013) LPELR-20403 (CA); Local

Government Service Commission, Ekiti State & Anor.

v. Mr. F. O. Olamiju (2013) LPELR-20409 (CA); Local

Government 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. The Trade

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Union Members of the Joint Health Sectors Union &

Ors, (2014) LPELR-23546 (CA).

Happily, notwithstanding the divergent views leading to the

above two positions taken by this Court on appeals from the

National Industrial Court to this Court, one position

remains sacred and almost sacrosanct, and on which

opinions are unanimous, namely: appeals against the

decision of the National Industrial Court on ground alleging

breach of Chapter IV of the Constitution of Nigeria 1999

(as amended) lie as of right to this Court.

In the instant appeal, all and every of the three grounds of

appeal have been put on the microscope in the lead

judgment and found not to be grounds alleging breach of

any of the provisions of Chapter IV of the Constitution of

Nigeria 1999 (as amended), notwithstanding the ingenious

way of couching these three grounds of appeal, which have

nothing to do with the breach of Chapter IV of the

Constitution of Nigeria 1999 (as amended), as though they

were grounds alleging breach of the Appellants' right to

fair hearing as enshrined in Section 36 (1) of the

Constitution of Nigeria 1999 (as amended).

It is in the light of the

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above and for the fuller reasons in the lead judgment that I

too hold that the Appeal is incompetent and thus liable to

be struck out. I shall abide by the consequential orders

made in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: A ground of

appeal is the error of law or facts alleged as the defect in

the judgment appealed against and on the basis of which

the decision should be set aside. Put differently, it is the

reason why the decision is considered wrong 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 and AKPAN v. BOB (2010)

17 NWLR (Pt. 1223) 421 at 464.

The determining factor in ascertaining the nature or

character of a ground of appeal is the real issue or

complaint raised in the ground. In ascertaining the real

issue or complaint, the ground of appeal as formulated and

all the particulars thereto are to be read and construed

together. See ODUKWE v. ACHEBE (2008) 1 NWLR (Pt.

1067) 40 at 53 and ABIA STATE INDEPENDENT

ELECTORAL COMMISSION v. ONYEABOR (2011)

LPELR-3563 1 at 31.

The leading judgment of my learned brother, Uzo I.

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Ndukwe-Anyanwu, JCA, which I was privileged to read in

draft, has insightfully analyzed and dissected the three

grounds of appeal filed by the Appellants and it is effulgent

that the real issue or complaint in the said grounds do not

involve any issue of the evisceration of the Appellants' right

to fair hearing. Indeed, there is no magic wand by which

including the phrase breach of fair hearing will

transmogrify a ground of appeal, the real character of

which does not involve fair hearing, into a ground that

raises the issue of fair hearing.

I have carefully examined the grounds of appeal vis-à-vis

the proceedings of the lower Court and the judgment of

Kanyip, JNIC appealed against, and on the peculiar facts of

this matter I do not see the faintest link to a deprivation of

the right to fair hearing. The Supreme Court has

deprecated the tendency by counsel to force principles of

fair hearing into a case where the principles are

inapplicable. See BROSSETTE MANUFACTURING NIG.

LTD v. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR

(Pt. 1053) 109 at 139 and APATIRA v. LAGOS ISLAND

LOCAL GOVERNMENT (2006) 17 NWLR (Pt. 1007) 46

at 62 E-F. This is another such

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instance.

Section 243(2) & (3) of the 1999 Constitution (as amended)

provides as follows:

"2) An appeal shall lie from the decision of the

National Industrial Court as of right to the Court

Appeal on question of fundamental right as contained

in Chapter IV of this Constitution as it relates to

matters upon which the National Industrial Court has

jurisdiction."

"3) An appeal shall lie from the decision of the

National Industrial Court to the Court of Appeal as

may be prescribed by an Act of the National

Assembly:

Provided that where an Act or Law prescribes that an

appeal shall lie from the decisions of the National

Industrial Court to the Court of Appeal such appeal

shall be with the leave of the Court of Appeal."

The Appellants appealed as of right but their grounds of

appeal as already stated are not on questions of

fundamental rights enshrined in Chapter IV of the

Constitution. The grounds are no more than a complaint on

the damages awarded by the lower Court based on the

evidence adduced by the parties. The addition of the words

"encroaching on the Defendants/Appellants' constitutionally

guaranteed right to fair hearing"

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and "in clear breach of the Defendants/Appellants'

constitutional rights to fair hearing" does not in the

diacritical circumstances of this matter lead to a

transmutation of the real issue or complaint in the grounds.

It is for the foregoing reasons and the more illuminating

reasons in the lead judgment that I am allegiant to the

conclusion that this appeal is incompetent. I therefore join

in striking out the appeal as there are no competent

grounds of appeal to activate the jurisdiction of this Court. I

abide by the order for costs contained in the lead judgment.

20

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CA)