LEGALPEDIA CITATION: LER [2018]CA/L/42/2016

The Appellant filed an originating summons at the Federal High Court sitting in Lagos seeking the interpretation of the appellate jurisdiction of the National Industrial Court (N.l.C.) under sections 243(2) and (3) and 254(c) of the Constitution of the Federal Republic of Nigeria 1999 vis-a-vis the fundamental right to fair hearing enshrined in section 36(1) of the 1999 Constitution, which was to be infringed by sections 243(2) and (3) and 254(c) of the 1999 Constitution, as altered, which according to the appellant, limited or circumscribed his right of appeal from a decision of the N.I.C., in other matters, save fundamental rights and criminal matters.

The lower court struck out the originating summons on grounds that the Appellant lacked the standing to sue. Being dissatisfied the above decision, the Appellant has filed this appeal.

Appeal Allowed

None

“The issue of standing to sue was widened by the Supreme Court in Fawehinmi v. Akilu (supra) in 1987 after Adesanya (supra) was decided in 1981 that “It is the universal concept that all human beings are brothers and assets to one another “especially in this country where the socio-cultural concept of ‘family’ includes nuclear family or extended family which transcends all barriers (to paraphrase Eso, J.S.C, in Fawehinmi v. Akilu (supra).

Then in Fawehinmi v. The President (supra) Aboki J.C.A., held inter alia that:

   Since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria whereby the citizen could bring an action in respect of a public derelict. Thus, the requirement of locus standi becomes unnecessary in constitutional issues as it merely impede judicial functions. (My emphasis).

To demonstrate that public spirited litigation in fundamental rights related cases is now the norm, the FREPR 2009 made pursuant to section 46(3) of the 1999 Constitution and thus clothed with constitutional force expanded the horizon of locus standi in fundamental rights cases in paragraph 3(e) thereof thus:

(v)   Association acting in the interest of its members or other individuals or groups.”

– PER J. S. IKYEGH, JCA

It is all the more so in light of the fact that a preamble to an enactment is its preface or introduction. Its purpose is to portray or show-case the interest of the framer(s) of the enactment and the mischief the enactment is set out to remedy. Although it may sometimes serve as a key to understanding of the enactment, a preamble is not strictly part of the enactment and so, as a general rule, it may not be resorted to as an aid to interpretation except in special circumstances vide Chief Ogbonna v. The Attorney-General of Imo State and Ors. (1992) 1 NWLR (pt. 220) 647 at 671 – 672, 677, 686 and 694 – 965. The preamble in paragraph 3(e) of the FREPR (supra) therefore sheds light on the scope of the standing to sue in fundamental rights cases.” PER J. S. IKYEGH, J.C.A

 COMMENCEMENT OF ACTION –  IMPLICATION OF INITIATING A FUNDAMENTAL RIGHTS ENFORCEMENT SUIT AS AN ORDINARY ACTION ON ORIGINATING SUMMONS UNDER THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009

“In the instant case, the appellant did not commence the action under theFREPR 2009. It was initiated as an ordinary action on originating summons under the Federal High Court (Civil Procedure) Rules 2009 (the rules of the court below) vide pages 3-5 and 19 – 33 of the record. Having litigated the case under the ordinary channel of litigation by originating summons under the rules of the court below the appellant cannot take benefit under the FREPR 2009.Therefore the amplitude of locus standi under the FREPR 2009 would not apply to this case. PER J. S. IKYEGH, J.C.A

Accordingly, I agree with the appellant that the unchallenged pieces of affidavit evidence (supra) furnished the appellant with the standing to seek for the interpretation of the said constitutional provisions. See again Fawehinmi v. The President (supra) Per Aboki, J.C.A., thus:

The requirement of locus standi becomes unnecessary in constitutional issues as it merely impedes judicial functions.” – PER J. S. IKYEGH, J.C.A

“In the present case what the appellant seeks to achieve is with respect to the limited right of appeal created by sections 243(2) and (3) and 254(c) 1999 Constitution. The poser in the originating summons was answered by the Supreme Court in two cases decided in 2017. The first case is Skye Bank Plc v. Iwu (2017) 16 NWLR (pt.1590) 24 at 105 – 106  where the Supreme Court sitting as a Full Court held in the land-mark judgment prepared byNweze, J.S.C., (concurred in by Peter-Odili, Muhammad, Ogunbiyi, Kekere-Ekun and Eko, J.S.C. with Aka’ahs J.S.C. dissenting) thus –

   In all, then, on a holistic interpretation of sections 240 and 243(1) of the 1999 Constitution, appeals lie from the trial court to the lower court that is all decisions of the trial court are appealable to the lower court as of right in criminal matters, (section 254(c) (5) and (6)) and fundamental rights cases, (section 243(2)); and with the leave of the lower court (Court of Appeal) in all other civil matters where the trial court has exercised its jurisdiction, section 240 read conjunctively with section 243(1) and 14″

Then in the second case of Coca-Cola Nigeria Limited and Ors. v. Mrs. Titilayo Akinsanya (2017) 17 NWLR (pt.1593) 75 at 122, the Full Court (comprising Peter-Odili, Muhammad, Ogunbiyi, Aka’ahs, Kekere-Ekun, Nweze and Eko J.S.C.) held in the lead judgment prepared by Eko. J.S.C. (with unanimous approval) inter alia that:

The right to appeal as of right, against the decision of the National Industrial Court on question of fundamental rights as contained in Chapter IV of the Constitution in relation to matters upon which the National Industrial Court has jurisdiction is retained in section 243(2) of the Constitution. Subsection (3) thereof also does not abrogate the right of appeal. The provision to the subsection merely makes the exercise of the right of appeal in any matter other than questions of fundamental right subject to the leave of the Court of Appeal first sought and obtained. Over such matters, the right of appeal is not as of right but upon leave of the Court of Appeal first sought and granted”. –PER J. S. IKYEGH, JCA

Constitution of the Federal Republic of Nigeria, 1999, as altered

Federal High Court (Civil Procedure) Rules 2009

Fundamental Rights (Enforcement Procedure) Rules (FREPR) 2009

Court of Appeal Act 2004

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