BOGORO LOCAL GOVERNMENT COUNCIL v.KYAUTA & ORS

CITATION: (2017) LPELR-43296(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON FRIDAY, 17TH FEBRUARY, 2017Suit No: CA/J/212M/2016(R)

Before Their Lordships:

ADZIRA GANA MSHELIA Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal

BetweenBOGORO LOCAL GOVERNMENT COUNCIL(BAUCHI STATE OF NIGERIA) - Applicant(s)

AndJAMES KYAUTA & ORS - Respondent(s)

RATIO DECIDENDI1. CASE LAW - STARE DECISIS: Doctrine of stare decisis

"Stare decisis" is a Latin word for "to stand by thing decided". The doctrine requires Judges to abide by the previous decisions on the same issues made by Courts of the same jurisdiction; and of equal or higher level. The purport of this Latin maxim isthat once a point or principle of law has been settled by a decision of a competent Court, it becomes a precedent which should not be departed from in a case in which it is directly involved, by the same Court, tribunal, or by those which are bound tofollow its decisions except where the Court finds it necessary to overrule a case which it decided contrary to the right principle of law. To maintain decorum in the judicial parlance and so avoid confusion, undue uncertainty, judicial rascality andextremism in judge's hunches; decisions of higher Courts must be followed by lower Courts, Courts of coordinate jurisdiction must also abide by their previous decisions on issues except when the facts are distinguishable. See: DAKAN & ORS. V.ASALU & ORS. (2015) LPELR 24687 (SC) CHUKWUKA & ORS. V. EZULIKE & ORS. (1986) 2 NSCC 1347. What I have been trying to say was well spelt out when the Supreme Court, Per Muhammad J.S.C. stated thus: "In Chukwuma Ogwe & Anor V.Inspector General of Police & Ors. (2015) LPELR - 24322 SC 214/2013, this Court restated what the failure of a subordinate Court in applying its previous valid and subsisting decisions or the decisions of a higher Court results in thus- "The lower Courtby its decision instantly appealed against failed to appreciate the place of the doctrine of stare decisis or precedent in the adjudication process. By the doctrine, judges are enjoined to stand by their decisions and the decisions of their predecessors.The doctrine does not allow for the exercise of discretion in an issue the Court previously decided when that same issue subsequently surfaces before the Court for determination. It is this age old rule of practice that gives law its certainty andequilibrium in the society." My learned brother Fabiyi, JSC remains ever so direct and poignant in this concurring judgment thus: "The Court below cannot claim to be unaware or ignorant of the position of this Court in Akpaji v. Udemba (supra). But itfailed to tow the line, as it were, and resultantly flouted the Rule of stare decisis which is to the effect that a point of law that has been settled by a superior Court should be followed by a Lower Court. There is sense in it so as to avoid confusion orunwarranted mistake. See Royal Exchange Assurance Nig. Ltd. v. Aswani Textiles Ind. Ltd. (1991) 2 NWLR (pt. 176) 639 at 672. It is not proper to refuse to follow the decision of a superior Court as same can be counter-productive as manifest in theorder of the Court below. A Lower Court should tow the line on a very clear and well pronounced point of law by a superior Court; I repeat. See Atolagbe v. Awuni & Ors. (1997) 7 SCNJ 1 at paragraphs 20, 24 and 35." Per Muhammad, J.S.C. (pp. 35-36,paras. A-C). Driving home the point, the Court of Appeal Nigeria is one Court. Though currently of 16 divisions, all the divisions and Justices therein by the doctrine of stare decisis should abide by subsisting previous decisions on any principle of lawthat has already been decided by any division of the Court except where the cases are distinguishable. To ensure precedent is followed in the Court of Appeal, the President of the Court, when the need arises sets up a panel of five Justices to sit anddecide on sensitive issues or aspects of law that the decisions of the Court needs to be harmonized. Once the Court sits in its full complement of five Justices, that becomes the precedent in the Court which must not be departed from until set asideby the Supreme Court or reviewed by the Court's panel of five Justices. This is the case with Section 243 (3) of the Constitution. The five Justices panel of the Court of Appeal sat in the case of Coca-Cola (Nig.) Ltd. v. Akinsanya (2013) 18 NWLR (pt.1386) 255. The issue is not the probity or propriety of the decision but the doctrine of stare decisis. So while the decision in Coca-Cola v. Akinsanya (supra) subsists, the decision of the Court of Appeal on the jurisdiction of the National Industrial Courtas Per Section 243(3) of the 1999 Constitution is settled."Per ONYEMENAM, J.C.A. (Pp. 40-44, Paras. D-B) - read in context

2. COURT - JURISDICTION: Importance of jurisdiction in the process of adjudication"... jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes theexistence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercisetheir authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly followand apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clearintentions of the lawmaker. A Court cannot do more than this - Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303,Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512."Per ABIRU, J.C.A. (Pp. 10-11, Paras. D-D) - read in context

(201

7) LP

ELR-43

296(

CA)

3. INTERPRETATION OF STATUTE - SECTION 243(3) OF THE 1999 CONSTITUTION (AS AMENDED): Interpretation of Section 243(3) of the 1999 Constitution (as amended) as regards when appeals from the National Industrial Court to the Courtof Appeal will lie as of right or with leave"... The problem is with the provision of Section 243 (3) of the Constitution. The source of this problem is not intrinsic in the wordings of the section, but extrinsic to them. The section provides that appeals from other decisions of the NationalIndustrial Court, not mentioned in Sections 243 (2), and 254C (6), would only be filed in respect of such decisions as are prescribed in an Act or Law by the National Assembly and that where so prescribed, the appeal will be with the leave of the Courtof Appeal. The National Assembly is yet to pass or promulgate an Act or Law prescribing the other decisions of the National Assembly that are appealable. Therein lays the dilemma and this dilemma has given birth to two schools of thought in theCourt of Appeal. The first school of thought opines that the wordings of Section 243 (3) should be given their literal and ordinary meaning, irrespective of the effect and outcome of application of such principle of interpretation. The essence of theirposition is that until the National Assembly passes or promulgates an Act or Law prescribing the other decisions of the National Industrial Court that are appealable, only the decisions of the National Industrial Court touching on questions offundamental rights as contained in Chapter IV of this Constitution and/or arising from criminal causes or matters heard by the National Industrial Court, as stated in Sections 243 (2), and 254C (6), can be appealed against, and that every otherdecision of the National Industrial Court is not appealable. This school of thought only makes an exception in respect of an appeal, that challenges the substantive jurisdiction of the National Industrial Court to hear a matter and says that such anappeal, can be considered by the Court of Appeal, notwithstanding the provisions of Section 243 (3) of 1999 Constitution. The position of this school of thought was echoed in the decision of this Court in Coca Cola (Nig) Ltd Vs Akinsanya (2013) 18NWLR pt 1336) 255, and followed in Lagos Sheraton Hotel & Towers Vs Hotel and Personal Services Senior Staff Association (2014) 14 NWLR (Pt 1426) 45, Anifowoshe Vs Wema Bank Plc (201 5) LPELR 24811(CA), Zenith Bank Plc Vs Durugbor (2015)LPELR 24898(CA), Lawal Vs Obafemi Awolowo University, Ile-Ife (2016) LPELR 40290(CA), Fabunmi Vs University of Ibadan (2016) LPELR 41132(CA), Ogunbanwo Vs Obafemi Awolowo University, Ile-Ife (2016) LPELR 40291(CA), Onitiju Vs LekkiConcession Co Ltd (2016) LPELR-CA/L/686/2013, Nigeria Security & Civil Defence Corps Vs Simeon (2016) LPELR-CA/A/55/2014(R) and many other unreported decisions of this Court. In this school of thought, an application for leave to appeal againstthe decision of the National Industrial Court is not tenable and cannot be granted by the Court of Appeal. The second school of thought queries the application of the golden rule of interpretation saying that following the literal and ordinary meaningof the wordings of Section 243 (3) will lead to an absurdity. They say that it portends that all the decisions of the National Industrial Court, apart from those touching on questions of fundamental rights as contained in Chapter IV of this Constitutionand/ or arising from criminal causes or matters heard by the National Industrial Court, shall be final decisions. They reason that this could not have been the intention of the lawmakers in Section 243 (3) of the Constitution in view of the provision ofSection 240 which gives the Court of Appeal right to entertain appeals from the National Industrial Court and of Section 243 (4) which makes the decision of the Court of Appeal final in respect of civil appeals from the National Industrial Court. Theythus take the position that the meaning to be given to Section 243 (3) is that, apart from the decisions of the National Industrial Court which are appealable as of right, all decisions from the National Industrial Court are appealable with leave of theCourt of Appeal, except those that will be prescribed not to be appealable by an Act or Law of the National Assembly. In this school of thought are the decisions of this Court in Local Government Service Commission, Ekiti State Vs Asubiojo (2013)LPELR 20403(CA), Local Government Service Commission, Ekiti State Vs Bamisaye (2013) LPELR 20407 (CA), Local Government Service Commission, Ekiti State Vs Jegede (2013) LPELR 21131(CA), Local Government Service Commission, Ekiti State VsOlamiju (2013) LPELR-CA/EK/69/M/2012, Local Government Service Commission, Ekiti State Vs Ajayi (2013) LPELR-CA /EK/70/M/2012, Federal Ministry of Health Vs The Trade Union Members of the Joint Health Sectors Unions (2014) LPELR 23546(CA)and many other unreported decisions of this Court. In this school of thought, an application for leave to appeal against the decision of the National Industrial Court is tenable and it is more often than not granted by the Court of Appeal. This is thepresent state of the law on the interpretation of Section 243 (3) of the 1999 Constitution. Thus, while some Judicial Divisions of the Court of Appeal grant leave to applicants to appeal against the decisions of the National Industrial Court, some otherJudicial Divisions of the Court do not entertain such applications. In fact, the Counsel to the Applicant in this present application urged this Court to follow the second school of thought and grant the application, while the Counsel to the Respondentsimplored that the Court should follow the first school of thought and refuse the application. It is but only true that any administration of justice system that promotes this type of situation is faulty. Certainty and clarity are called for on all legal issues,but more importantly on issues dealing with the jurisdiction of a Court. The concept of jurisdiction is at the root of the ability of a Court to do justice and a Court cannot begin to talk of substantial justice when there is a defect in its jurisdiction -Emesim Vs Nwachukwu (1999) 3 NWLR (Pt 596) 590. In Ajayi Vs Military Administrator of Ondo State (1997) 5 NWLR (Pt 504) 237, Nsofor JCA stated that "indeed, there is no justice in exercising jurisdiction where there is none. It is injustice to the law,to the Court and to the parties so to do" and that "any judgment however well written, if given without jurisdiction is no judgment at all. Such a judgment creates no legal obligation and it does not confer any rights on any parties to the suit." Thus,any iota of uncertainty in the concept of jurisdiction is bound to have a resounding effect on the entire justice delivery system of the Courts. There is therefore a pervading need for definite statements on all aspects of jurisdiction. It must always beremembered that justice is rooted in confidence of the people and it is the bond of the society. It is the condition in which the individual can feel able to identity with society, feel at one with it and accept its rulings. Thus, Courts must always strive toenhance confidence in the administration of justice and must abstain from doing anything that may erode the root of justice otherwise the entire judicial system will suffer a legitimacy problem and become irrelevant to the aspirations of the people.Uwaifo, JCA (as he then was) made this point succinctly in State Vs Akpabio (1993) 4 NWLR (Pt 286) 204 at 220 thus: "I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach tojustice in our Courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride. The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctoryperformance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a sociopolitical environment towards positive andbeneficial ends. That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the address of Judges. But if the judiciary takes a back seat throughunsatisfactory input by Judges even of superior Courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man." The present situation on the interpretation of Section 243 (3) cannot thus be allowedto continue and something needs to be done quickly to remedy it. It is in this wise that this Court believes that there is a need to return to the doctrine of judicial precedent. In common law legal systems, a precedent or authority is a principle or ruleestablished in a previous legal case that is either binding on or persuasive for a Court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should bedecided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. The doctrine is also commonly referred to as the principle of stare decisis. The words originate from the phrasingof the principle in the Latin maxim stare decisis et non quieta muaerei "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that Courts should generally abide by precedent and not disturb settledmatters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent Court, it will no longer be considered open to an examination, or a new ruling, by the same Court or tribunal or by thosewhich are bound to follow its adjudications. In other words, the Courts should keep the scale of justice even and steady and not liable to waver with every Judge's opinion Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke Vs Okoli (2000) 1NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt.1201) 1. The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicialpronouncements in the earlier case are subsequently utilized to govern and determine the decision in the subsequent case - Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674. The reasons which underlie this rule were stated by Chancellor Kentin a much quoted passage from his Commentaries, as follows: "A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to thesubject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and maturedeliberation, the presumption is in favor of its correctness; and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to thepublic, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy andtrust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unlessby a Court of Appeal or review, and never by the same Court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law." (1Kent's Commentaries at page 475) Similarly, Judge Cooley observed: "Even if the same or any other Court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a verygrave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is avery serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable." (Cooley, Constitutional Limitations, page 50) Theconcept of stare decisis is the foundation upon which the consistency of the Nigerian judicial system is based - Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310. Adherence to precedent is one of the strongest principles of judicial policy which providesfor an orderly and reliable development of legal rules and it does not involve an exercise of judicial discretion; it is mandatory - Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227 and Dingyadi Vs IndependentNational Electoral Commission (2011) 10 NWLR (Pt 1255) 347. The use of precedents is the basis upon which to decide what the law is and its application thereof at any given time. In the use of precedents, the former decisions should be treated asnormally binding. However, the Court can depart from a previous decision when it appears right to do so - First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt.1348) 444. All the decisions cited above in support of the two schools of thought on theinterpretation of Sections 243 (3) of the 1999 Constitution, as amended, are decisions of the Court of Appeal. There is as yet no decision of the Supreme Court on the point. The law is that the Court of Appeal is bound by its previous decisions and canonly depart from same in the following circumstances: i. Where two decisions of the Court of Appeal are in conflict and the Court must choose between them: ii. Where the Court of Appeal comes to a conclusion that a previous decision, although notexpressly overruled, cannot stand with a subsequent decision of the Supreme Court; iii. Where the Court of Appeal comes to the conclusion that its previous decision was given per incuriarn, that is, in ignorance of a statute or other binding authority,the Court is not bound by it; and iv. Where the previous decision was reached without jurisdiction. See Ibaku Vs Ebini (2010) 17 NWLR (Pt 1222) 286, Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014) 16 NWLR (Pt 1434) 482. Now, the Court ofAppeal sits in two panels - a panel of three Justices, used for its regular sittings, and a panel of five Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Court of Appeal is equivalent to what is referred to as "enbanc" sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Court of Appeal takes place where the Court is being asked to depart, or may decide to depart from a previous decision, in cases of high constitutionalimportance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Court of Appeal is regarded as the decision of the entire Justices of the Court,and not just the decision of the five-man panel that sat on the matter. Under the doctrine of stare decisis, only a sitting of the Full Court of the Court of Appeal of a panel of the Supreme Court can overrule a prior decision of the Court of Appeal; inother words, one panel of the Court of Appeal cannot overrule another panel. A decision of the Full Court of the Court of Appeal is superior to, and overrides the decision of a regular panel of the Court the decision is binding on all the Justices of theCourt of Appeal and cannot be overlooked, ignored or departed from by a regular panel of the Court. Reading through all the decisions of the Court of Appeal cited above in support of the two schools of thought on the interpretation of Section 243 (3)of the 1999 Constitution as amended, one of the decisions stands out from the rest. It is the case of Coca-Cola (Nig) Ltd Vs Akinsanya (2013) 18 NWLR (Pt 1386) 255. It is the decision of the Full Court of the Court of Appeal rendered by a panel of fiveJustices of the Court - Amina Augie, JCA (as he then was), Ibrahim Saulawa, JCA, Sidi Bage, JCA (as he then was), Ayobode Lokulo-Sodipe, JCA,and Joseph Ikyegh, JCA. One of the questions formulated for determination in the matter, albeit on thepreliminary objection of the respondent, was: "In the absence of a specific Act of the National Assembly vesting appellate jurisdiction on the Court of Appeal regarding the question in this appeal, the appellate jurisdiction of the Court of Appeal overthe National Industrial Court, as provided under the Constitution of the Federal Republic of Nigeria 1999 (as amended) extends only to cases regarding Fundamental Human Rights enforcement and criminal action and that thus this Court must strikeout the present appeal for want of jurisdiction." The resolution of this question turned on the interpretation of Sections 243 (2) - (4) of the 1999 Constitution, as amended. In the lead judgment, Lokulo-Sodipe, JCA, after reproducing the provisions ofthe sections, stated thus thereon: "It is my considered view clear from the provisions reproduced above that the lower Court though a superior Court of record is not in the same league with the Federal High Court or State High Courts against thebackdrop of appeals. The lower Court is clearly the only superior Court of record created by the Constitution and whose decisions can never be tested on appeal in the Supreme Court. ... In other words, all that I am saying is that by virtue of theprovisions of the Constitution hereinbefore referred to, the lower Court is the only superior Court of record created by the Constitution that can entertain civil and criminal jurisdictions and whose decisions in respect of its civil jurisdiction areappealable to the Court of Appeal on ground of violation of fundamental right provisions in Chapter IV of the Constitution only, and whose decision(s) can never get to the Supreme Court for review. ..." In their contributory judgments Amina Augie, JCA(as he then was) Ibrahim Saulawa, JCA and Sidi Bage, JCA (as he then was) agreed with the reasoning and conclusions in the lead judgment. In his contribution, Ikyegh, JCA similarly agreed with the lead judgment and he elucidated further on theissue thus: "The same Third Alteration Act goes on to state in Section 5 thereof, amending Section 243 of the said Constitution, that the National Industrial Court is among the Courts whose decision(s) an aggrieved person or party can appeal to theCourt of Appeal. Then Section 5(b) of the Third Alteration Act which amended Section 243 of the Constitution allows an aggrieved party or person the right of appeal as of right from a decision of the National Industrial Court to the Court of Appeal onquestions of fundamental rights as contained in Chapter IV of the Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. However, the Constitution that made the National Industrial Court a superior Court ofrecord broke from its tradition of conferring appellate jurisdiction on the Court of Appeal over the other decisions of the National Industrial Court as it has done in respect of other superior Courts created by it, by stating in Section 5(3) of the ThirdAlteration Act than appeal shall only lie from other decisions (except on questions of fundamental rights) of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly. As the position stands now,there is no enactment of the National Assembly conferring a right of appeal from any decision of the National Industrial Court outside fundamental rights relating to matters within its civil jurisdiction to the Court of Appeal. While the lacuna may helpto reduce the workload of the Court of Appeal, it is doubtful whether leaving the National Industrial Court presently as the final or Supreme Court in such civil matters of mega jurisdiction would augur well for aggrieved litigants, especially as anythingto do with employrnent affects the livelihood of members of the workforce and invariably their dependants..." In other words, the decision of the Full Court of the Court of Appeal is that until the National Assembly passes or promulgates an Act or Lawprescribing the decisions of the National Industrial Court that are appealable, only the decisions of the National Industrial Court in its civil jurisdiction touching on questions of fundamental rights as contained in Chapter IV of this Constitution can beappealed against. The Full Court of the Court of the Appeal made only one exception to this general position and it held that where the appeal raises a question challenging the substantive jurisdiction of the National Industrial Court to entertain amatter, then the Court of Appeal can entertain the appeal, notwithstanding the provisions of Section 243 (3) of the Constitution. The Court did not, however, make the exception in respect of all questions that have come to be subsumed under theconcept of jurisdiction. The Court was specific on the question of jurisdiction that was exempted and this point was made abundantly clear by Amina Augie, JCA (as he then was) in his contributory judgment and it is: "... the question of whether thejurisdiction of the National Industrial Court ... extends to all cases of private individual contractual employment or is limited to industrial relations and only to ... matters arising from or connected with trade disputes, collective agreements, labour andindustrial actions' ..." These mean in essence that, as at this time, the decisions of the National Industrial Court in its civil jurisdiction can only be appealed against on ground of breach of fundamental rights as contained in Chapter IV of thisConstitution or ground of lack of substantive jurisdiction, and not on other grounds, even with the leave of the Court of Appeal. Appeals from the decisions of the National Industrial Court in its civil jurisdiction on grounds of breach of fundamentalrights as contained in Chapter IV of this Constitution or lack of substantive jurisdiction are as of right, and no leave of this Court is necessary to appeal on those grounds. Thus, the Court of Appeal lacks jurisdiction to entertain an application for leaveto appeal from decisions of the National Industrial Court. It is trite that a right of appeal and the manner of its exercise are provided for by statute and a Court cannot be seen to flex any power in respect of a right of appeal or the manner of itsexercise if that power is not derived from a statutory provision - Ugwuh Vs Attorney-General of East Central State (1975) 6 SC 13, National Bank of Nigeria Ltd Vs Weide & Co. Nigeria Ltd (1996) 8 NWLR (Pt 465) 150, Ohai Vs Akpoemonye (1999) 1NWLR (Pt 588) 521. Parties are bound and obligated and can only exercise their rights of appeal within the limits and boundaries prescribed by the law, and not at large and in any manner that they desire - Ladoja Vs Ajimobi (2016) 10 NWLR (Pt1519) 87. This decision of the Full Court of the Court of Appeal represents the decision of all the Justices of the Court of Appeal sitting as a Court. It takes precedence over all the other above mentioned decisions on the interpretation of Section 243(3) of the 1999 Constitution, as amended, which are decisions of the regular three-man panels of the Court of Appeal. By the principle of stare decisis this decision of the trial Court is binding on all the Justices of the Court of Appeal and should not beoverlooked, ignored or departed from by any Justice of the Court of Appeal, no matter what his personal views might be, and it should represent the stance of the Court of Appeal until it is set aside by the Supreme Court. The necessary consequenceis that all the decisions given by the Court of Appeal which support the second school of thought on the interpretation of Section 243 (3) of the 1999 Constitution, as amended, were given per incuriam, as they were given in ignorance or in totaldisregard of a binding precedent - Ngwo Vs Monye (1970) All NLR 94, Elufioye Vs Halilu (1990) 2 NWLR (Pt 130), Elabanjo Vs Dawodu (2006) All FWLR (Pt 328) 604. They cannot thus represent good law or case law authorities to be relied on. Thedecision in Coca Cola (Nig) Ltd Vs Akinsanya supra is what must guide all the panels of the Court of Appeal in dealing with applications for leave to appeal from the decisions of the National Industrial Court. This is the only way to bring about andensure certainty in the process. It is in the light of the decision inCoca-Cola (Nig) Ltd Vs Akinsanya supra that this Court will consider the application of the Applicant for leave to appeal against the Judgment of the National Industrial Court of Nigeria,Jos in Suit No NICN/JOS/437/2014 between James Kyauta & 204 Ors Vs Bogoro Local Government Council (Bauchi State) delivered on the 13th of July, 2016. The decision sought to be appealed against is not one touching on questions of fundamentalrights as contained in Chapter IV of this Constitution and none of the grounds of appeal raises the issue of breach of fundamental rights or lack of substantive jurisdiction on the part of the lower Court. It is correct that the Applicant seeks, on thisapplication, for leave to raise an issue of statute of limitation as a fresh issue in the appeal, but this really does not change anything. The law is that though a matter caught by the limitation law cannot be adjudicated upon by a Court, limitation lawhas nothing to do with the substantive jurisdiction or competence of a Court to decide a matter Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522) 536 at 591D, First Bank of Nigeria Plc Vs Associated Motors Co. Ltd (1998) 10 NWLR (Pt 570) 441 at 479 B-D.This point was succinctly made by Nsofor, JCA in Amata Vs Omofuma (1997) 2 NWLR (Pt 485) 93 at 113 D-E thus: "If a plaintiff's action is statute barred, then he never has a cause of action, Why? Because if he cannot maintain an action in a Court oflaw because the action is not maintainable, then by parity of reasoning there was no cause of action. It goes, let me hasten to say, to the maintenance of an action and by no means to the competence or jurisdiction of a Court strict sensu." Again, inAjayi Vs Military Administrator, Ondo State (1997) 5 NWLR (Pt 504) 237 at page 27 6 C-D, Nsofor, JCA put the point thus: "...different considerations or principles apply when considering whether an action is statute barred and when a trial Court'sjurisdiction has been ousted by statute. On the one hand, where a limitation law applies, it goes to the maintenance of the action by the plaintiff. It does not go to the competence of the Court. On the other hand, where a statute ousts the jurisdictionof the Court, it is the Court which is affected. It lacks the legal competence in itself. The two situations have different significance, even though their common denominator is eventually the same that is, the action is not determined to a finalitybetween the parties." As stated earlier, it was the question of the substantive jurisdiction of the National Industrial Court to hear a matter that was specifically exempted by the Full Court of the Court of Appeal in its interpretation of Section 243 (3) ofthe 1999 Constitution in Coca-Cola (Nig) Ltd Vs Akinsanya supra, and nothing else. Thus, the intention of the Applicant to raise the issue of statute of limitation did not take its case outside the interpretation of Section 243 (3) of the Constitution bythe Court."Per ABIRU, J.C.A. (Pp. 14-38, Paras. B-B) - read in context

4. JURISDICTION - JURISDICTION OF THE COURT OF APPEAL: Appellate jurisdiction of the Court of Appeal over appeals from the National Industrial Court"The provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) dealing with appeals from the National Industrial Court to this Court are contained in Sections 240, 243 (2), 243 (3),243 (4) and 254C (6). Section 240 reads:"Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of Law in Nigeria to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court ofthe Federal Capital Territory, Abuja, High Court of State, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court Martial or other tribunals as may be prescribed by an Act of the National Assembly."Section 243 (2) provides that: "An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon whichthe National Industrial Court has jurisdiction." Section 243 (3) states that: "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 wherean 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. Section 243 (4) reads: "Without prejudice to the provisions ofSection 254C (5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final." Sections 254C (5) and (6) provide that: "5. The National Industrial Court shallhave and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other Law.6. Notwithstanding anything to the contrary in this Constitution, appeal shall lie from the decision of the National Industrial Court from matters in Sub-section 5 of this section to the Court of Appeal as of right." There is no contest on the meaning andimport of the provisions of Sections 240, 243 (2), 243 (4) and 254C (6) of the Constitution. Section 240 invests the Court of Appeal with the jurisdiction to hear appeals from the National Industrial Court while Sections 243 (2), and 254C (6) say thatexercise of the right to file appeals from the decisions of National Industrial Court to the Court of Appeal by litigants shall be unfettered and unhindered where the decision appealed against touches on questions of fundamental rights as contained inChapter IV of this Constitution or where they arise from criminal causes or matters heard by the National Industrial Court. Section 243 (4) stipulates that in respect of appeals on civil matters from the National Industrial Court, the decision of the Courtof Appeal shall be final."Per ABIRU, J.C.A. (Pp. 11-14, Paras. D-B) - read in context

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HABEEB ADEWALE OLUMUYIWA ABIRU,

J.C.A.(Delivering the Lead Ruling): The Respondents

commenced an action in the National Industrial Court

sitting in Jos against the Applicant challenging the

termination of their employment and claiming for unpaid

salaries and damages for unlawful termination of

employment. The National Industrial Court entered

judgment in favour of the Respondents on the 13th of July

2016. The Applicant was dissatisfied with the judgment and

it approached this Court by an application dated and filed

on the 5th of August, 2016 praying for:

i. An order for leave for the Applicant to appeal against the

Judgment of the National Industrial Court of Nigeria, Jos in

Suit No NICN/JOS/437/2014 between James Kyauta &

204 Ors Vs Bogoro Local Government Council (Bauchi

State) delivered on the 13th of July, 2016.

ii. An order to raise and argue a fresh jurisdictional issue

which was not raised and/or canvassed before the trial

Court, to wit: Bauchi State Local. Government Limitation

Law which prescribes the limitation period of six months

within which to commence actions against the acts or

omissions of the Local

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Government Council.

The grounds for the application were stated on the face of

the motion paper. The application was supported by an

affidavit of eight paragraphs with sub-paragraphs deposed

to on the 5th of August, 2016 and to which were attached

exhibits and by a further affidavit of four paragraphs with

sub-paragraphs deposed to on the 19th of October, 2016.

The Respondents opposed the application and they caused

to be filed a counter affidavit of twenty paragraphs with

one exhibit attached and deposed to on the 5th of October

2016. Consequent on the directives of the Court, Counsel to

the Applicant filed a written address of arguments on the

application on the 28th of November 2016 and the written

address was deemed properly filed and served on the 1st of

December 2016. The written address of arguments of the

Counsel to the Respondents on the application was filed on

the 8th of November 2016 and it was also deemed properly

filed and served on the 1st of December 2016. At the

hearing of the application, Counsel to the parties relied on

and adopted the contents of their respective processes filed

on the application.

The case of the Applicant on the

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application was that it was desirous of appealing against

the judgment of the National Industrial Court on grounds

other than breach of fundamental rights and that by the

provisions of Section 243 (3) of the Constitution of the

Federal Republic of Nigeria, 1999 every appeal against a

decision of the National Industrial Court of Nigeria other

than those bordering on Chapter 4 of the Constitution must

be with prior leave of this Court. It was its case that it is

the leave of this Court that would make its proposed appeal

valid and that this application is to enable it exercise its

right of appeal which is guaranteed by the 1999

Constitution and that the National Assembly created the

National Industrial Court as a Court of first instance, and

not as another Supreme Court, and that its judgments must

thus of necessity be appealable to this Court. It was its case

that the Court of Appeal has entertained several appeals

arising from decisions of the National Industrial Court that

did not relate to issues of fundamental rights. It was its

case that the Applicant is one of the Local Governments in

Bauchi State as contained in the First Schedule to the 1999

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Constitution and that the Bauchi State Local Government

Law was applicable to all the Local Government Councils in

Bauchi State, including the Applicant, notwithstanding that

the name of the Applicant was not listed as part of the

Local Government Councils in Bauchi State in the Law. It

was its case that the grant of the application was not

prejudicial to the Respondents and that it was in the

interest of justice to grant the application.

The case of the Respondents, in response, on the

application was that since the proposed appeal of the

Applicant does not border on and is not related to questions

of breach of Fundamental Rights as contained in Chapter

IV of the Constitution, the Applicant has no right of appeal

under the Constitution and cannot seek leave to appeal on

the proposed grounds of appeal. It was their case that the

provisions of the 1999 Constitution requires the National

Assembly to enact an Act or Law prescribing such decisions

of the National Industrial Court, apart from those bordering

on questions of Fundamental Rights, against which parties

can appeal with the leave of this Court and that the

National Assembly was yet to enact any such

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Law or Act. It was their case that the provisions of the

Constitution donating a right of appeal with the leave of

this Court will only become effectual when the National

Assembly enacts the Law or Act prescribing the nature of

the decisions of the National Industrial Court that parties

can appeal against and that this Court does not thus

possess the jurisdiction to entertain the request of the

Applicant for leave to appeal. It was its case that the

Bauchi State Local Government Law of 2007 listed the

Local Government Councils in the State which were to

benefit from its provisions of limitation of actions, and that

though the Applicant was a recognized Local Government

Council in Bauchi State under the 1999 Constitution, its

name was omitted in the Law and that as such the Law was

not applicable to it and it cannot draw benefit under the

Law. It is their case that it was in the interest of justice to

refuse the application.

In arguing the application, Counsel to the Applicant

referred to the provision of Section 240 of the 1999

Constitution as amended to the effect that this Court shall

have jurisdiction to the exclusion of any other Court of law

in

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Nigeria to hear and determine appeals from the National

Industrial Court. Counsel also referred to the provisions of

Section 243 (3) of the Constitution that says that appeals

not bordering on breach of fundamental rights shall only lie

from the decision of the National Industrial Court to this

Court as may be prescribed by an Act of the National

Assembly and that where an Act or Law makes any such

prescription, the appeal shall be with the leave of this

Court. Counsel stated that a right of appeal is a

constitutional right available to any litigant dissatisfied

with the decision of a Court of first instance and he

referred to the cases of NNPC Vs Odidere Enterprises

(Nig) Ltd (2008) All FWLR (Pt 426) 1867 and Strabag

Construction (Nig) Ltd Vs Odilichukwu (2008) All

FWLR (Pt 397) 166. Counsel stated that the National

Industrial Court heard and determined the action between

the parties as a Court of first instance and the Applicant

thus possesses the constitutional right to appeal against the

decision and that this constitutional right of appeal cannot

be taken away on the pretext that the National Assembly

was yet to enact a Law as stated in Section 243

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(3) of the 1999 Constitution as amended. Counsel stated

that it was preposterous to contend that the National

Industrial Court was created as a Supreme Court for labor

matters whose decisions were not appealable to the Court

of Appeal and that this could not have been the intention of

the National Assembly in making the alteration to the

Constitution.

Counsel also made reference to the provisions of Section 15

of the National Industrial Court Act 2006 and to the Court

of Appeal Act 2004 and stated that this was not the first

time this Court would hear and grant such an application

and he referred to some of the past decisions of the Court

on the issue. Counsel stated that the Applicant also seeks

for leave to raise a fresh jurisdictional issue predicated on

the limitation of actions provisions contained in the Bauchi

State Local Government Law and which was not canvassed

in or pronounced upon by the National Industrial Court and

that the law was that leave of this Court was mandatory for

the Applicant to raise such an issue in this appeal and he

referred to the cases of Federal Polytechnic Offa Vs

UBA Plc (2014) All FWLR (Pt 737) 739, Ayinke Stores

Ltd Vs

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Adebogun (2013) All FWLR (Pt 682) 1997, amongst

others. Counsel concluded his arguments by urging the

Court to grant the application.

In his response arguments, Counsel to the Respondents

stated that the appellate jurisdiction of this Court is

governed by the provisions of Sections 240, 242 and 243 of

the 1999 Constitution as amended and that while Section

240 of the Constitution gives this Court a general exclusive

jurisdiction to hear appeals from the decisions of the High

Court, the Federal High Court and the National Industrial

Courts, Sections 241 and 242 stipulate the circumstances

when appeal shall be as of right from the decisions of the

High Court and Federal High Court and when appeals shall

be with leave, and Section 243 provides the situations when

appeals will be as of right from the National Industrial

Court and when they shall be with leave. Counsel stated

that Section 243 (1) of the 1999 Constitution as amended

says that, in civil matters, appeals shall lies as of right from

the decision of the National Industrial Court where it

borders on breach of fundamental rights and Section 243

(3) provides that appeals not bordering on breach of

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fundamental rights shall only lie from the decision of the

National Industrial Court to this Court as may be

prescribed by an Act of the National Assembly and that

where an Act or Law makes any such prescription, the

appeal shall be with the leave of this Court.

Counsel stated that the provision of Section 243 (3)

stipulates conditions precedent to the exercise of this

Court's jurisdiction over appeals from the National

Industrial Court and these are that the National Assembly

must enact an Act or Law which will prescribe the nature of

the decisions that are appealable and then that appeals

from such decisions so prescribed must be with the leave of

this Court. Counsel stated that the National Assembly was

yet to enact any Act or Law prescribing the decisions that

are appealable from the National Industrial Court to this

Court and that as such the condition precedent to this

Court's jurisdiction to hear appeals from the National

Industrial Court has not crystallized and this Court cannot

thus grant leave to appeal from the decisions of the

National Industrial Court. Counsel placed reliance on the

decisions of this Court in Coca-Cola (Nig) Ltd Vs

Akinsanya

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(2013) 18 NWLR (Pt 1386) 255 and Lagos Sheraton

Hotel & Towers Vs HPSSSA (2014) 14 NWLR (Pt

1426) 45 which interpreted Section 243 (3) of the 1999

Constitution as amended and he quoted extensively from

the cases. Counsel urged this Court to follow these

decisions and hold that it has no jurisdiction to grant the

leave to appeal from the decision of the National Industrial

Court sought by the Applicant.

This application turns on the question of the extent of the

jurisdiction of the Court of Appeal to entertain and grant an

application for leave to appeal from the decisions of the

National Industrial Court. Now, jurisdiction is the authority

which a Court has to decide matters that are litigated

before it or take cognizance of matters presented in a

formal way for its decision. It is the power of the Court to

decide a matter in controversy and presupposes the

existence of a duly constituted Court with control over the

subject matter and the parties. Jurisdiction defines the

power of Courts to inquire into facts, apply the law, make

decisions and declare judgment. It is the legal right by

which Judges exercise their authority. It is trite that

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jurisdiction is a hard matter of law that can only be

determined in the light of the enabling statute. A Court of

law cannot add to or subtract from the provisions of a

statute. As a matter of law, a Court must blindly follow and

apply the jurisdictional limits and limitations as contained

or provided in a statute. In this and other situations, the

statute is the master and all that a Court of law can do is to

interpret the provisions of a statute to obtain or achieve the

clear intentions of the lawmaker. A Court cannot do more

than this - Anibi Vs Shotimehin (1993) 3 NWLR (Pt

282) 461, Elelu-Habeeb Vs Attorney General,

Federation (2012) 13 NWLR (Pt 1318) 423,

Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303,

Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.

The provisions of the 1999 Constitution of the Federal

Republic of Nigeria (as amended) dealing with appeals

from the National Industrial Court to this Court are

contained in Sections 240, 243 (2), 243 (3),243 (4) and

254C (6).

Section 240 reads:

"Subject to the provisions of this Constitution, the Court of

Appeal shall have jurisdiction to the exclusion of any other

Court of Law in Nigeria

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to hear and determine appeals from the Federal High

Court, the National Industrial Court, the High Court of the

Federal Capital Territory, Abuja, High Court of State,

Sharia Court of Appeal of a State, Customary Court of

Appeal of a State and from decisions of a Court Martial or

other tribunals as may be prescribed by an Act of the

National Assembly."

Section 243 (2) provides that:

"An appeal shall lie from the decision of the National

Industrial Court as of right to the Court of Appeal on

questions of fundamental rights as contained in Chapter IV

of this Constitution as it relates to matters upon which the

National Industrial Court has jurisdiction."

Section 243 (3) states that:

"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 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.

Section 243 (4) reads:

"Without prejudice to the provisions of Section 254C (5) of

this

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Act, the decision of the Court of Appeal in respect of any

appeal arising from any civil jurisdiction of the National

Industrial Court shall be final."

Sections 254C (5) and (6) provide that:

"5. The National Industrial Court shall have and exercise

jurisdiction and powers in criminal causes and matters

arising from any cause or matter of which jurisdiction is

conferred on the National Industrial Court by this section

or any other Act of the National Assembly or by any other

Law.

6. Notwithstanding anything to the contrary in this

Constitution, appeal shall lie from the decision of the

National Industrial Court from matters in Sub-section 5 of

this section to the Court of Appeal as of right."

There is no contest on the meaning and import of the

provisions of Sections 240, 243 (2), 243 (4) and 254C (6) of

the Constitution. Section 240 invests the Court of Appeal

with the jurisdiction to hear appeals from the National

Industrial Court while Sections 243 (2), and 254C (6) say

that exercise of the right to file appeals from the decisions

of National Industrial Court to the Court of Appeal by

litigants shall be unfettered and unhindered where

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the decision appealed against touches on questions of

fundamental rights as contained in Chapter IV of this

Constitution or where they arise from criminal causes or

matters heard by the National Industrial Court. Section 243

(4) stipulates that in respect of appeals on civil matters

from the National Industrial Court, the decision of the

Court of Appeal shall be final.

The problem is with the provision of Section 243 (3) of the

Constitution. The source of this problem is not intrinsic in

the wordings of the section, but extrinsic to them. The

section provides that appeals from other decisions of the

National Industrial Court, not mentioned in Sections 243

(2), and 254C (6), would only be filed in respect of such

decisions as are prescribed in an Act or Law by the

National Assembly and that where so prescribed, the

appeal will be with the leave of the Court of Appeal. The

National Assembly is yet to pass or promulgate an Act or

Law prescribing the other decisions of the National

Assembly that are appealable. Therein lays the dilemma

and this dilemma has given birth to two schools of thought

in the Court of Appeal.

The first school of thought opines

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that the wordings of Section 243 (3) should be given their

literal and ordinary meaning, irrespective of the effect and

outcome of application of such principle of interpretation.

The essence of their position is that until the National

Assembly passes or promulgates an Act or Law prescribing

the other decisions of the National Industrial Court that

are appealable, only the decisions of the National Industrial

Court touching on questions of fundamental rights as

contained in Chapter IV of this Constitution and/or arising

from criminal causes or matters heard by the National

Industrial Court, as stated in Sections 243 (2), and 254C

(6), can be appealed against, and that every other decision

of the National Industrial Court is not appealable. This

school of thought only makes an exception in respect of an

appeal, that challenges the substantive jurisdiction of the

National Industrial Court to hear a matter and says that

such an appeal, can be considered by the Court of Appeal,

notwithstanding the provisions of Section 243 (3) of 1999

Constitution. The position of this school of thought was

echoed in the decision of this Court in Coca Cola (Nig)

Ltd Vs Akinsanya

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(2013) 18 NWLR pt 1336) 255, and followed in Lagos

Sheraton Hotel & Towers Vs Hotel and Personal

Services Senior Staff Association (2014) 14 NWLR (Pt

1426) 45, Anifowoshe Vs Wema Bank Plc (201 5)

LPELR 24811(CA), Zenith Bank Plc Vs Durugbor

(2015) LPELR 24898(CA), Lawal Vs Obafemi Awolowo

University, Ile-Ife (2016) LPELR 40290(CA), Fabunmi

Vs University of Ibadan (2016) LPELR 41132(CA),

Ogunbanwo Vs Obafemi Awolowo University, Ile-Ife

(2016) LPELR 40291(CA), Onitiju Vs Lekki

Concession Co Ltd (2016) LPELR-CA/L/686/2013,

Nigeria Security & Civil Defence Corps Vs Simeon

(2016) LPELR-CA/A/55/2014(R) and many other

unreported decisions of this Court. In this school of

thought, an application for leave to appeal against the

decision of the National Industrial Court is not tenable and

cannot be granted by the Court of Appeal.

The second school of thought queries the application of the

golden rule of interpretation saying that following the

literal and ordinary meaning of the wordings of Section 243

(3) will lead to an absurdity. They say that it portends that

all the decisions of the National Industrial Court, apart

from those touching on questions of

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fundamental rights as contained in Chapter IV of this

Constitution and/ or arising from criminal causes or

matters heard by the National Industrial Court, shall be

final decisions. They reason that this could not have been

the intention of the lawmakers in Section 243 (3) of the

Constitution in view of the provision of Section 240 which

gives the Court of Appeal right to entertain appeals from

the National Industrial Court and of Section 243 (4) which

makes the decision of the Court of Appeal final in respect of

civil appeals from the National Industrial Court. They thus

take the position that the meaning to be given to Section

243 (3) is that, apart from the decisions of the National

Industrial Court which are appealable as of right, all

decisions from the National Industrial Court are appealable

with leave of the Court of Appeal, except those that will be

prescribed not to be appealable by an Act or Law of the

National Assembly. In this school of thought are the

decisions of this Court in Local Government Service

Commission, Ekiti State Vs Asubiojo (2013) LPELR

20403(CA), Local Government Service Commission,

Ekiti State Vs Bamisaye (2013) LPELR 20407

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(CA), Local Government Service Commission, Ekiti

State Vs Jegede (2013) LPELR 21131(CA), Local

Government Service Commission, Ekiti State Vs

Olamiju (2013) LPELR-CA/EK/69/M/2012, Local

Government Service Commission, Ekiti State Vs Ajayi

(2013) LPELR-CA /EK/70/M/2012, Federal Ministry of

Health Vs The Trade Union Members of the Joint

Health Sectors Unions (2014) LPELR 23546(CA) and

many other unreported decisions of this Court. In this

school of thought, an application for leave to appeal against

the decision of the National Industrial Court is tenable and

it is more often than not granted by the Court of Appeal.

This is the present state of the law on the interpretation of

Section 243 (3) of the 1999 Constitution. Thus, while some

Judicial Divisions of the Court of Appeal grant leave to

applicants to appeal against the decisions of the National

Industrial Court, some other Judicial Divisions of the Court

do not entertain such applications. In fact, the Counsel to

the Applicant in this present application urged this Court to

follow the second school of thought and grant the

application, while the Counsel to the Respondents implored

that the Court should

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follow the first school of thought and refuse the application.

It is but only true that any administration of justice system

that promotes this type of situation is faulty.

Certainty and clarity are called for on all legal issues, but

more importantly on issues dealing with the jurisdiction of

a Court. The concept of jurisdiction is at the root of the

ability of a Court to do justice and a Court cannot begin to

talk of substantial justice when there is a defect in its

jurisdiction - Emesim Vs Nwachukwu (1999) 3 NWLR

(Pt 596) 590. In Ajayi Vs Military Administrator of

Ondo State (1997) 5 NWLR (Pt 504) 237, Nsofor JCA

stated that "indeed, there is no justice in exercising

jurisdiction where there is none. It is injustice to the

law, to the Court and to the parties so to do” and that

“any judgment however well written, if given without

jurisdiction is no judgment at all. Such a judgment

creates no legal obligation and it does not confer any

rights on any parties to the suit.” Thus, any iota of

uncertainty in the concept of jurisdiction is bound to have a

resounding effect on the entire justice delivery system of

the Courts. There is therefore

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a pervading need for definite statements on all aspects of

jurisdiction.

It must always be remembered that justice is rooted in

confidence of the people and it is the bond of the society. It

is the condition in which the individual can feel able to

identity with society, feel at one with it and accept its

rulings. Thus, Courts must always strive to enhance

confidence in the administration of justice and must abstain

from doing anything that may erode the root of justice

otherwise the entire judicial system will suffer a legitimacy

problem and become irrelevant to the aspirations of the

people. Uwaifo, JCA (as he then was) made this point

succinctly in State Vs Akpabio (1993) 4 NWLR (Pt 286)

204 at 220 thus:

"I think we have come a long way in this country to ought

to find no necessity to sound a warning that our sense of

approach to justice in our Courts should not be seen to be

in any way underhand, such as is employed as if to take the

society for a ride. The dispensation of justice is not left to

the whims and caprices of any Judge, founded on shabby

reasoning and perfunctory performance. It is not too much

to expect the judiciary to set the pace

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in the quest for excellence in the discharge of public duty.

It should be a sort of modulator of varying forces of change

in a sociopolitical environment towards positive and

beneficial ends. That is the sense in which law is expected

to be the catalyst of societal values, attitudes and

development. Much of the living aspect of the law depends

on the address of Judges. But if the judiciary takes a back

seat through unsatisfactory input by Judges even of

superior Courts, it will sooner become a lame duck and

irrelevant in the reckoning of the astute and even the

common man."

The present situation on the interpretation of Section 243

(3) cannot thus be allowed to continue and something

needs to be done quickly to remedy it.

It is in this wise that this Court believes that there is a need

to return to the doctrine of judicial precedent. In common

law legal systems, a precedent or authority is a principle or

rule established in a previous legal case that is either

binding on or persuasive for a Court or other tribunal when

deciding subsequent cases with similar issues or facts. The

general principle in common law legal systems is that

similar cases

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should be decided so as to give similar and predictable

outcomes, and the principle of precedent is the mechanism

by which that goal is attained. The doctrine is also

commonly referred to as the principle of stare decisis. The

words originate from the phrasing of the principle in the

Latin maxim stare decisis et non quieta muaerei "to stand

by decisions and not disturb the undisturbed." In a legal

context, this is understood to mean that Courts should

generally abide by precedent and not disturb settled

matters. Its meaning is that when a point of law has been

once solemnly and necessarily declared by the decision of a

competent Court, it will no longer be considered open to an

examination, or a new ruling, by the same Court or tribunal

or by those which are bound to follow its adjudications. In

other words, the Courts should keep the scale of justice

even and steady and not liable to waver with every Judge's

opinion Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345)

540, Okeke Vs Okoli (2000) 1 NWLR (Pt 642) 641,

Osakue Vs Federal College of Education, Asaba (2010)

10 NWLR (Pt1201) 1. The doctrine postulates that where

the facts in a subsequent case are similar or

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close as facts in an earlier case that had been decided

upon, judicial pronouncements in the earlier case are

subsequently utilized to govern and determine the decision

in the subsequent case - Nwangwu Vs Ukachukwu

(2000) 6 NWLR (Pt 662) 674.

The reasons which underlie this rule were stated by

Chancellor Kent in a much quoted passage from his

Commentaries, as follows:

"A solemn decision upon a point of law, arising in any given

case, becomes an authority in a like case, because it is the

highest evidence which we can have of the law applicable

to the subject, and the judges are bound to follow that

decision so long as it stands unreversed, unless it can be

shown that the law was misunderstood or misapplied in

that particular case. If a decision has been made upon

solemn argument and mature deliberation, the presumption

is in favor of its correctness; and the community has a right

to regard it as a just declaration or exposition of the law,

and to regulate their actions and contracts by it. It would,

therefore, be extremely inconvenient to the public, if

precedents were not duly regarded and implicitly followed.

It is by the notoriety and stability of

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such rules that professional men can give safe advice to

those who consult them; and people in general can venture

with confidence to buy and trust, and to deal with each

other. If judicial decisions were to be lightly disregarded,

we should disturb and unsettle the great landmarks of

property. When a rule has been once deliberately adopted

and declared, it ought not to be disturbed, unless by a

Court of Appeal or review, and never by the same Court,

except for very cogent reasons, and upon a clear

manifestation of error; and if the practice were otherwise,

it would be leaving us in a state of perplexing uncertainty

as to the law." (1 Kent's Commentaries at page 475)

Similarly, Judge Cooley observed:

"Even if the same or any other Court, in a subsequent case,

should be in doubt concerning the correctness of the

decision which has been made, there are consequences of a

very grave character to be contemplated and weighed

before the experiment of disregarding it should be ventured

upon. That state of things, when judicial decisions conflict,

so that a citizen is always at a loss in regard to his rights

and his duties, is a very serious evil; and the

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alternative of accepting adjudged cases as precedents in

future controversies resting upon analogous facts, and

brought within the same reasons, is obviously preferable."

(Cooley, Constitutional Limitations, page 50)

The concept of stare decisis is the foundation upon which

the consistency of the Nigerian judicial system is based -

Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310.

Adherence to precedent is one of the strongest principles of

judicial policy which provides for an orderly and reliable

development of legal rules and it does not involve an

exercise of judicial discretion; it is mandatory - Amaechi

Vs Independent National Electoral Commission

(2008) 5 NWLR (Pt 1080) 227 and Dingyadi Vs

Independent National Electoral Commission (2011)

10 NWLR (Pt 1255) 347. The use of precedents is the

basis upon which to decide what the law is and its

application thereof at any given time. In the use of

precedents, the former decisions should be treated as

normally binding. However, the Court can depart from a

previous decision when it appears right to do so - First

Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR

(Pt1348) 444.

All the decisions cited above in

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support of the two schools of thought on the interpretation

of Sections 243 (3) of the 1999 Constitution, as amended,

are decisions of the Court of Appeal. There is as yet no

decision of the Supreme Court on the point. The law is that

the Court of Appeal is bound by its previous decisions and

can only depart from same in the following circumstances:

i. Where two decisions of the Court of Appeal are in conflict

and the Court must choose between them:

ii. Where the Court of Appeal comes to a conclusion that a

previous decision, although not expressly overruled, cannot

stand with a subsequent decision of the Supreme Court;

iii. Where the Court of Appeal comes to the conclusion that

its previous decision was given per incuriarn, that is, in

ignorance of a statute or other binding authority, the Court

is not bound by it; and

iv. Where the previous decision was reached without

jurisdiction.

See Ibaku Vs Ebini (2010) 17 NWLR (Pt 1222) 286,

Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014)

16 NWLR (Pt 1434) 482.

Now, the Court of Appeal sits in two panels - a panel of

three Justices, used for its regular sittings, and a panel of

five

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Justices, usually referred as the sitting of the Full Court.

The sitting of the Full Court of the Court of Appeal is

equivalent to what is referred to as "en banc” sitting of the

appellate Courts in other jurisdictions. The sitting of the

Full Court of the Court of Appeal takes place where the

Court is being asked to depart, or may decide to depart

from a previous decision, in cases of high constitutional

importance or great public importance, or in cases where

conflicts in the decisions of its regular panels have to be

reconciled. A decision rendered by the Full Court of the

Court of Appeal is regarded as the decision of the entire

Justices of the Court, and not just the decision of the five-

man panel that sat on the matter. Under the doctrine of

stare decisis, only a sitting of the Full Court of the Court of

Appeal of a panel of the Supreme Court can overrule a

prior decision of the Court of Appeal; in other words, one

panel of the Court of Appeal cannot overrule another panel.

A decision of the Full Court of the Court of Appeal is

superior to, and overrides the decision of a regular panel of

the Court the decision is binding on all the Justices of the

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Court of Appeal and cannot be overlooked, ignored or

departed from by a regular panel of the Court.

Reading through all the decisions of the Court of Appeal

cited above in support of the two schools of thought on the

interpretation of Section 243 (3) of the 1999 Constitution

as amended, one of the decisions stands out from the rest.

It is the case of Coca-Cola (Nig) Ltd Vs Akinsanya

(2013) 18 NWLR (Pt 1386) 255. It is the decision of the

Full Court of the Court of Appeal rendered by a panel of

five Justices of the Court - Amina Augie, JCA (as he then

was), Ibrahim Saulawa, JCA, Sidi Bage, JCA (as he then

was), Ayobode Lokulo-Sodipe, JCA,and Joseph Ikyegh, JCA.

One of the questions formulated for determination in the

matter, albeit on the preliminary objection of the

respondent, was:

"In the absence of a specific Act of the National Assembly

vesting appellate jurisdiction on the Court of Appeal

regarding the question in this appeal, the appellate

jurisdiction of the Court of Appeal over the National

Industrial Court, as provided under the Constitution of the

Federal Republic of Nigeria 1999 (as amended) extends

only to cases regarding Fundamental Human

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Rights enforcement and criminal action and that thus this

Court must strike out the present appeal for want of

jurisdiction."

The resolution of this question turned on the interpretation

of Sections 243 (2) - (4) of the 1999 Constitution, as

amended. In the lead judgment, Lokulo-Sodipe, JCA, after

reproducing the provisions of the sections, stated thus

thereon:

"It is my considered view clear from the provisions

reproduced above that the lower Court though a superior

Court of record is not in the same league with the Federal

High Court or State High Courts against the backdrop of

appeals. The lower Court is clearly the only superior Court

of record created by the Constitution and whose decisions

can never be tested on appeal in the Supreme Court. ... In

other words, all that I am saying is that by virtue of the

provisions of the Constitution hereinbefore referred to, the

lower Court is the only superior Court of record created by

the Constitution that can entertain civil and criminal

jurisdictions and whose decisions in respect of its civil

jurisdiction are appealable to the Court of Appeal on

ground of violation of fundamental right provisions in

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Chapter IV of the Constitution only, and whose decision(s)

can never get to the Supreme Court for review. ..."

In their contributory judgments Amina Augie, JCA (as he

then was) Ibrahim Saulawa, JCA and Sidi Bage, JCA (as he

then was) agreed with the reasoning and conclusions in the

lead judgment. In his contribution, Ikyegh, JCA similarly

agreed with the lead judgment and he elucidated further on

the issue thus:

"The same Third Alteration Act goes on to state in Section 5

thereof, amending Section 243 of the said Constitution, that

the National Industrial Court is among the Courts whose

decision(s) an aggrieved person or party can appeal to the

Court of Appeal. Then Section 5(b) of the Third Alteration

Act which amended Section 243 of the Constitution allows

an aggrieved party or person the right of appeal as of right

from a decision of the National Industrial Court to the

Court of Appeal on questions of fundamental rights as

contained in Chapter IV of the Constitution as it relates to

matters upon which the National Industrial Court has

jurisdiction.

However, the Constitution that made the National

Industrial Court a superior Court of record

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broke from its tradition of conferring appellate jurisdiction

on the Court of Appeal over the other decisions of the

National Industrial Court as it has done in respect of other

superior Courts created by it, by stating in Section 5(3) of

the Third Alteration Act than appeal shall only lie from

other decisions (except on questions of fundamental rights)

of the National Industrial Court to the Court of Appeal as

may be prescribed by an Act of the National Assembly.

As the position stands now, there is no enactment of the

National Assembly conferring a right of appeal from any

decision of the National Industrial Court outside

fundamental rights relating to matters within its civil

jurisdiction to the Court of Appeal. While the lacuna may

help to reduce the workload of the Court of Appeal, it is

doubtful whether leaving the National Industrial Court

presently as the final or Supreme Court in such civil

matters of mega jurisdiction would augur well for

aggrieved litigants, especially as anything to do with

employrnent affects the livelihood of members of the

workforce and invariably their dependants..."

In other words, the decision of the Full Court of

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the Court of Appeal is that until the National Assembly

passes or promulgates an Act or Law prescribing the

decisions of the National Industrial Court that are

appealable, only the decisions of the National Industrial

Court in its civil jurisdiction touching on questions of

fundamental rights as contained in Chapter IV of this

Constitution can be appealed against. The Full Court of the

Court of the Appeal made only one exception to this

general position and it held that where the appeal raises a

question challenging the substantive jurisdiction of the

National Industrial Court to entertain a matter, then the

Court of Appeal can entertain the appeal, notwithstanding

the provisions of Section 243 (3) of the Constitution. The

Court did not, however, make the exception in respect of all

questions that have come to be subsumed under the

concept of jurisdiction. The Court was specific on the

question of jurisdiction that was exempted and this point

was made abundantly clear by Amina Augie, JCA (as he

then was) in his contributory judgment and it is:

"... the question of whether the jurisdiction of the National

Industrial Court ... extends to all cases of private

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individual contractual employment or is limited to

industrial relations and only to ... matters arising from or

connected with trade disputes, collective agreements,

labour and industrial actions' ..."

These mean in essence that, as at this time, the decisions of

the National Industrial Court in its civil jurisdiction can

only be appealed against on ground of breach of

fundamental rights as contained in Chapter IV of this

Constitution or ground of lack of substantive jurisdiction,

and not on other grounds, even with the leave of the Court

of Appeal. Appeals from the decisions of the National

Industrial Court in its civil jurisdiction on grounds of

breach of fundamental rights as contained in Chapter IV of

this Constitution or lack of substantive jurisdiction are as of

right, and no leave of this Court is necessary to appeal on

those grounds. Thus, the Court of Appeal lacks jurisdiction

to entertain an application for leave to appeal from

decisions of the National Industrial Court. It is trite that a

right of appeal and the manner of its exercise are provided

for by statute and a Court cannot be seen to flex any power

in respect of a right of appeal or the

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manner of its exercise if that power is not derived from a

statutory provision - Ugwuh Vs Attorney-General of East

Central State (1975) 6 SC 13, National Bank of

Nigeria Ltd Vs Weide & Co. Nigeria Ltd (1996) 8

NWLR (Pt 465) 150, Ohai Vs Akpoemonye (1999) 1

NWLR (Pt 588) 521. Parties are bound and obligated and

can only exercise their rights of appeal within the limits

and boundaries prescribed by the law, and not at large and

in any manner that they desire - Ladoja Vs Ajimobi

(2016) 10 NWLR (Pt 1519) 87.

This decision of the Full Court of the Court of Appeal

represents the decision of all the Justices of the Court of

Appeal sitting as a Court. It takes precedence over all the

other above mentioned decisions on the interpretation of

Section 243 (3) of the 1999 Constitution, as amended,

which are decisions of the regular three-man panels of the

Court of Appeal. By the principle of stare decisis this

decision of the trial Court is binding on all the Justices of

the Court of Appeal and should not be overlooked, ignored

or departed from by any Justice of the Court of Appeal, no

matter what his personal views might be, and it should

represent the stance of

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the Court of Appeal until it is set aside by the Supreme

Court. The necessary consequence is that all the decisions

given by the Court of Appeal which support the second

school of thought on the interpretation of Section 243 (3) of

the 1999 Constitution, as amended, were given per

incuriam, as they were given in ignorance or in total

disregard of a binding precedent - Ngwo Vs Monye

(1970) All NLR 94, Elufioye Vs Halilu (1990) 2 NWLR

(Pt 130), Elabanjo Vs Dawodu (2006) All FWLR (Pt

328) 604. They cannot thus represent good law or case

law authorities to be relied on. The decision in Coca Cola

(Nig) Ltd Vs Akinsanya supra is what must guide all the

panels of the Court of Appeal in dealing with applications

for leave to appeal from the decisions of the National

Industrial Court. This is the only way to bring about and

ensure certainty in the process.

It is in the light of the decision in Coca-Cola (Nig) Ltd Vs

Akinsanya supra that this Court will consider the

application of the Applicant for leave to appeal against the

Judgment of the National Industrial Court of Nigeria, Jos in

Suit No NICN/JOS/437/2014 between James Kyauta & 204

Ors Vs Bogoro Local

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Government Council (Bauchi State) delivered on the 13th of

July, 2016. The decision sought to be appealed against is

not one touching on questions of fundamental rights as

contained in Chapter IV of this Constitution and none of the

grounds of appeal raises the issue of breach of fundamental

rights or lack of substantive jurisdiction on the part of the

lower Court. It is correct that the Applicant seeks, on this

application, for leave to raise an issue of statute of

limitation as a fresh issue in the appeal, but this really does

not change anything. The law is that though a matter

caught by the limitation law cannot be adjudicated upon by

a Court, limitation law has nothing to do with the

substantive jurisdiction or competence of a Court to decide

a matter Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522)

536 at 591D, First Bank of Nigeria Plc Vs Associated

Motors Co. Ltd (1998) 10 NWLR (Pt 570) 441 at 479

B-D. This point was succinctly made by Nsofor, JCA in

Amata Vs Omofuma (1997) 2 NWLR (Pt 485) 93 at

113 D-E thus:

"If a plaintiff’s action is statute barred, then he never has a

cause of action, Why? Because if he cannot maintain an

action in a Court of

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law because the action is not maintainable, then by parity

of reasoning there was no cause of action. It goes, let me

hasten to say, to the maintenance of an action and by no

means to the competence or jurisdiction of a Court strict

sensu."

Again, in Ajayi Vs Military Administrator, Ondo State

(1997) 5 NWLR (Pt 504) 237 at page 27 6 C-D, Nsofor,

JCA put the point thus:

"...different considerations or principles apply when

considering whether an action is statute barred and when a

trial Court's jurisdiction has been ousted by statute. On the

one hand, where a limitation law applies, it goes to the

maintenance of the action by the plaintiff. It does not go to

the competence of the Court. On the other hand, where a

statute ousts the jurisdiction of the Court, it is the Court

which is affected. It lacks the legal competence in itself.

The two situations have different significance, even though

their common denominator is eventually the same that is,

the action is not determined to a finality between the

parties."

As stated earlier, it was the question of the substantive

jurisdiction of the National Industrial Court to hear a

matter that was

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specifically exempted by the Full Court of the Court of

Appeal in its interpretation of Section 243 (3) of the 1999

Constitution in Coca-Cola (Nig) Ltd Vs Akinsanya

supra, and nothing else. Thus, the intention of the

Applicant to raise the issue of statute of limitation did not

take its case outside the interpretation of Section 243 (3) of

the Constitution by the Court. This Court lacks the power to

entertain the application of the Applicant, at this time. The

application thus fails and it is hereby struck out. There

shall be no order as to costs. These shall be the orders of

the Court.

ADZIRA GANA MSHELIA, J.C.A.: I read before now the

lead Ruling of my learned brother, Abiru, JCA, just

delivered. I completely agree with his reasoning and

conclusion arrived thereat. I have nothing more to add but

to adopt same as mine. The application fails and is struck

out accordingly.

UCHECHUKWU ONYEMENAM, J.C.A.: The Applicant

Bogoro Local Government Council of Bauchi State of

Nigeria; who is dissatisfied with the judgment of the

National Industrial Court sitting in Jos delivered on 13th

July , 2016 brought an

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application filed on 5th August, 2016 praying this Court for:

1. An order for leave for the Applicant to appeal

against the Judgment of the National Industrial Court

of Nigeria, Jos in Suit No. NICN/JOS/437/2014

between James Kyauta & 204 Ors vs Bogoro Local

Government Council (Bauchi State) delivered on the

13th of July, 2016.

2. An order to raise and argue a fresh jurisdictional

issue which was not raised and/or canvassed before

the trial Court, to wit: Bauchi State Local Government

Limitation Law which prescribes the limitation period

of six months within which to commence actions

against the acts of omissions of the Local Government

Council.

The grounds for the application and the case of each party

were well set out in the lead ruling. H. A. O. Abiru, JCA in

the said ruling brought to a highlight the two sides of the

coin of the interpretation of this Court on Section 243 (3) of

the 1999 Constitution vis-a-vis appeals from the decisions

of the National Industrial Court.

Section 243(3) provides :

"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

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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 above reproduced section has been subject to two

objective well reasoned interpretations. The ruling just

delivered did not take sides with any of the two sides of the

coin neither was the conclusion arrived therein based on a

subjective view. The decision in the ruling stems on the

doctrine of "stare decisis", and this in my view is right.

"Stare decisis" is a Latin word for "to stand by thing

decided". The doctrine requires Judges to abide by the

previous decisions on the same issues made by Courts of

the same jurisdiction; and of equal or higher level. The

purport of this Latin maxim is that once a point or principle

of law has been settled by a decision of a competent Court,

it becomes a precedent which should not be departed from

in a case in which it is directly involved, by the same Court,

tribunal, or by those which are bound to follow its decisions

except where the Court finds it necessary to overrule a

case

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which it decided contrary to the right principle of law.

To maintain decorum in the judicial parlance and so avoid

confusion, undue uncertainty, judicial rascality and

extremism in judge's hunches; decisions of higher Courts

must be followed by lower Courts, Courts of coordinate

jurisdiction must also abide by their previous decisions on

issues except when the facts are distinguishable. See:

DAKAN & ORS. V. ASALU & ORS. (2015) LPELR

24687 (SC) CHUKWUKA & ORS. V. EZULIKE & ORS.

(1986) 2 NSCC 1347.

What I have been trying to say was well spelt out when the

Supreme Court, Per Muhammad J.S.C. stated thus:

"In Chukwuma Ogwe & Anor V. Inspector General of

Police & Ors. (2015) LPELR - 24322 SC 214/2013, this

Court restated what the failure of a subordinate Court

in applying its previous valid and subsisting decisions

or the decisions of a higher Court results in thus-

"The lower Court by its decision instantly appealed

against failed to appreciate the place of the doctrine

of stare decisis or precedent in the adjudication

process. By the doctrine, judges are enjoined to stand

by their decisions and the decisions of their

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predecessors. The doctrine does not allow for the

exercise of discretion in an issue the Court previously

decided when that same issue subsequently surfaces

before the Court for determination. It is this age old

rule of practice that gives law its certainty and

equilibrium in the society." My learned brother

Fabiyi, JSC remains ever so direct and poignant in

this concurring judgment thus: "The Court below

cannot claim to be unaware or ignorant of the

position of this Court in Akpaji v. Udemba (supra).

But it failed to tow the line, as it were, and resultantly

flouted the Rule of stare decisis which is to the effect

that a point of law that has been settled by a superior

Court should be followed by a Lower Court. There is

sense in it so as to avoid confusion or unwarranted

mistake. See Royal Exchange Assurance Nig. Ltd. v.

Aswani Textiles Ind. Ltd. (1991) 2 NWLR (pt. 176) 639

at 672. It is not proper to refuse to follow the decision

of a superior Court as same can be counter-

productive as manifest in the order of the Court

below. A Lower Court should tow the line on a very

clear and well pronounced point of law by a superior

Court; I repeat. See Atolagbe v.

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Awuni & Ors. (1997) 7 SCNJ 1 at paragraphs 20, 24

and 35." Per Muhammad, J.S.C. (pp. 35-36, paras. A-

C).

Driving home the point, the Court of Appeal Nigeria is one

Court. Though currently of 16 divisions, all the divisions

and Justices therein by the doctrine of stare decisis should

abide by subsisting previous decisions on any principle of

law that has already been decided by any division of the

Court except where the cases are distinguishable. To

ensure precedent is followed in the Court of Appeal, the

President of the Court, when the need arises sets up a

panel of five Justices to sit and decide on sensitive issues or

aspects of law that the decisions of the Court needs to be

harmonized. Once the Court sits in its full complement of

five Justices, that becomes the precedent in the Court

which must not be departed from until set aside by the

Supreme Court or reviewed by the Court's panel of five

Justices.

This is the case with Section 243 (3) of the Constitution.

The five Justices panel of the Court of Appeal sat in the

case of Coca-Cola (Nig.) Ltd. v. Akinsanya (2013) 18

NWLR (pt. 1386) 255. The issue is not the probity or

propriety of the

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decision but the doctrine of stare decisis. So while the

decision in Coca-Cola v. Akinsanya (supra) subsists, the

decision of the Court of Appeal on the jurisdiction of the

National Industrial Court as Per Section 243(3) of the 1999

Constitution is settled.

It is for what I have said above, that the current application

was decided through the eye of the decision in Coca-Cola

v. Akinsanya (supra).

I therefore agree with the reasoning and conclusion in the

lead ruling just delivered by my learned brother HABEEB

ADEWALE O. ABIRU, JCA.

I too hereby strike out the application filed by the herein

Appl icant on 5th August , 2016 in Appeal No.

CA/J/212M/2016. I abide by the order as to cost.

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Appearances:

Charles Ukande, with him, Abigail James ForAppellant(s)

Chief G. M. Kuttu with him, A. G. Yirvoms, L. A.Albert O. Alfa, J. Duguru, D.J. Gusen and S. S.Gomper For Respondent(s)

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