APPEAL NO: CA/L/1157/2014
Court Of Appeal – Lagos

AREAS OF LAW:
APPEAL, CONSTITUTIONAL LAW, COURT, JURISDICTION,LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS
The Respondent filed an action at the National Industrial Court Lagos Division, against the Appellant for the wrongful termination of his employment. The Appellant filed its statement of defence to which the Respondent filed his reply. The Appellant filed a Motion on Notice to set aside the reply on the ground that same raised a new issue which is contrary to the rules of court and in breach of the rule of fair hearing and same was refused by the court. The Appellant subsequently filed another Motion praying the court that the question he formulated be referred to the Court of Appeal for answers. The Court in its ruling refused the application. Dissatisfied with the ruling of the court, the Appellant has lodged the instant appeal praying for an order allowing the appeal, setting aside the decision of the National Industrial Court, an order setting down for consideration the questions sought to be referred as case stated on the substantial constitutional issue of the jurisdiction of the National Industrial Court to depart from the rules of evidence for the interpretation of section6(5)©, 254(1)A-D of the Constitution together with section 12 of the National Industrial Court Act, 2006 and a declaration that section 12(1) and (2)(b) of the National Industrial Court Act, 2006 is inconsistent with the provisions of the 1999 Constitution and therefore null and void.

HELD
Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether the Lower Court was right and acted within the requisite jurisdiction when it refused to state a case for the decision of the Court of Appeal?  (distilled from Ground One)
• Whether the Lower Court was right when it held that the Provisions of S.12 (2) (B) of the National Industrial Court is clear and not susceptible to divergent interpretations and does not raise any substantial question of Law in its Ruling of 10th November, 2014?  (Distilled from Ground Two)
• Whether the National Industrial Court has jurisdiction to admit or exclude any evidence (Documentary or Oral) contrary to the Provision of the Evidence Act, 2011 in the determination of the Rights and Obligations of the Appellant guaranteed under S.36 of the Constitution of the Federal Republic of Nigeria? (Distilled from Ground Three).

RATIONES

NON COMPLIANCE WITH A CONDITION PRECEDENT – EFFECT OF NON COMPLIANCE WITH A CONDITION PRECEDENT
“The law is trite that when there is non-compliance with any precondition in setting a legal process in motion, the process if commenced in contravention of the condition precedent is incompetent and the court is equally incompetent to determine the process, see Dee Nigerian Universal Bank Ltd &. 72 Others V Samba Petroleum Company Ltd (2006) 12 NWLR (PT 993) PG 98, Adegbenro & Anor V. Akintilo & Ors (2009) LPELR –4423(CA).” PER Y.B. NIMPAR, J.C.A.

PLEADINGS – MODE OF REACTING TO NEW ISSUES RAISED BY A CLAIMANT IN AN APPEAL
“It is trite that a Defendant could only react to new issues raised by the Claimant in the statement of defence by way of a reply.  That is the known practice and procedure.  Is that a constitutional matter?  Does it raise an issue of interpretation of any section of the Constitution?  I think not. PER Y.B. NIMPAR, J.C.A.

OPINION – A PARTY CANNOT IMPOSE ITS OPINION ON THE COURT
“A party cannot impose its opinion on the court.  In the case of Mainstreet Bank Registrars Ltd V Mr. Udoh Friday Etim (SUPRA) the court held as follows:
“Further, even if it is argued, that a constitutional provision had arisen, the obligation to refer it to the court of appeal arises only after the judge is satisfied that there is a substantial question requiring the answer of the court of appeal. If he is not so satisfied, a fundamental condition has failed and he is then not compelled to make the reference.” – PER Y.B. NIMPAR, J.C.A.

SUBSTANTIAL – MEANING OF SUBSTANTIAL
“It is settled that what is substantial would depend on the facts of each case as substantial has no exhaustive definition, see the case of Bamaiyi V A. G. Federation (2001) 12 NWLR (Pt. 727) 468 where the Supreme Court held thus:
“It will be difficult to attempt an exhaustive definition of what is a substantial question of law. A useful guide in determining whether an issue of law is substantial is provided in a number of Indian decisions dealing with a similar phrase in the Indian Constitution. There it has been held in order to be substantial; the issue must be such that there may be some doubt or difference of opinion as to what the law is. When no such doubt exist, or the law is well established by a final court of Appeal, or by all over whelming consensus of judicial decisions the ,ere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be for the decision of the particular case.”
–    PER Y.B. NIMPAR, J.C.A.

ACADEMIC QUESTIONS – ATTITUDE OF THE COURT TO ACADEMIC QUESTIONS
“All other issues raised in this appeal consequently becomes an academic exercise and courts are not allowed to compete with academic institutions in the resolution of hypothetical questions, see Kubor & Anor V. Dickson & Ors (2012) LPELR – 9817(SC).” PER Y. B. NIMPAR, J.C.A.

QUESTION OF LAW – GUIDELINES ON THE PROPER TEST FOR DETERMINING WHETHER A QUESTION OF LAW IS SUBSTANTIAL TO MERIT REFERENCE TO AN APPELLATE COURT
“The law is settled that not every question of law constitutes substantial basis for referral to this Court for interpretation, for any question to qualify for referral it must be shown that the question involves substantial questions of Law .The proper test for determining whether a question of law is substantial to merit reference entails consideration of certain guidelines, which include:
1.    Whether the question is of general public importance
2.    Whether it directly and substantially affects the rights of the parties in litigation, and if so,
3.    Whether it is either an open question, or it is not finally resolved or is not free from difficulty, or    calls for discussion of alternative views.
4.    It must be one in which argument in favour of more than one interpretation might reasonably be adduced
5.    The question must also be capable of being formulated with precision.”
–    PER T. ABUBAKAR, J.C.A

QUESTION OF LAW – INSTANCES WHEN A QUESTION OF LAW WOULD NOT BE SUBSTANTIAL TO WARRANT AN ORDER OF REFERRAL
“If the question is settled by the Highest Court, or the general principles are well settled , and it is just a mere question of applying those principles, or that the issue so raised is palpably absurd, the question would not be a substantial question of law, and refusal by the court to make an order of referral would be justified. See: Otugor Gamioba & Others v. Esezi 11, (the Onodjie of Okpe) & Others (1961) 2 SCNLR 237, and Obayogie v. Oyowe(1994) 5 NWLR(Pt. 346)“. PER T. ABUBAKAR, J.C.A

RULES OF COURT – PURPOSE OF RULES OF COURT
“I need to also state that Rules of Court are designed to ensure that the affairs of the courts are conducted orderly. The rules serve as convenient facility applied by the courts to regulate proceedings and offer the parties the opportunity to present their case ensuring the fair and quick dispensation of justice in the trial, See FBN PLC V. TSA Ind Ltd(2015) 15 NWLR (Pt 1216)247, and G.M.O. Nworah & Sons Co. LTD V. Afam Akputa (2010) 9 NWLR (Pt. 1200) 433. “PER T. ABUBAKAR, J.C.A

COURT – POWER OF THE HIGH COURT UNDER SECTION 295 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999(AS AMENDED)
“Section 295 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) gives the lower Courts power to determine if questions to be referred for interpretation are substantial or not, the power given to the lower Court is to ensure that simple issues do not transmute into Constitutional issues deserving of referral to this Court”. PER T. ABUBAKAR, J.C.A

COURT – INSTANCES WHEN A RESTRICTION ON THE REFERENCE OF QUESTIONS OF LAW WOULD BE JUSTIFIED 
“Access to Court is a right that is extended to all litigants, but where opening the gates of the Courthouse will amount to opening floodgate, the Courts will be justified in preventing simple questions from wearing the garb of constitutionality”. PER T. ABUBAKAR, J.C.A

STATUTES REFERRED TO:
Constitution of the Federal Republic of Nigeria,1999(as amended)
Evidence Act, 2011
National Industrial Court Act, 2006