(2016) LPELR-40572(CA)

Transcription

1 MAINSTREET BANK REGISTRARS LTD v. PROMISE CITATION: SIDI DAUDA BAGE In the Court of Appeal In the Lagos Judicial Division Holden at Lagos JOSEPH SHAGBAOR IKYEGH ON TUESDAY, 22ND MARCH, 2016 Suit No: CA/L/1157/2014 SAMUEL CHUKWUDUMEBI OSEJI TIJJANI ABUBAKAR YARGATA BYENCHIT NIMPAR Before Their Lordships: Between MAINSTREET BANK REGISTRARS LIMITED Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal And EVUKOWHIRORO ELEYEME PROMISE RATIO DECIDENDI - Appellant(s) - Respondent(s) 1. ACTION - CONDITION PRECEDENT: Effect of non compliance with condition precedent stated in a statute before commencing an action "The law is trite that when there is non-compliance with any precondition in setting a legal process in motion, the process if commenced in contravention of the condition precedent is incompetent and the Court is equally incompetent to determine the process, see DEE NIGERIAN UNIVERSAL BANK LTD &.72 OTHERS V SAMBA PETROLEUM COMPANY LTD (2006) 12 NWLR (PT 993) PG 98, ADEGBENRO & ANOR V. AKINTILO & ORS (2009) LPELR-4423 (CA)."Per NIMPAR, J.C.A. (P. 14, Paras. B-D) - read in context

2 2. ACTION - REPLY: Function of a reply "It is trite that a Defendant could only react to new issues raised by the Claimant in the statement of defence by way of a reply. That is the known practice and procedure."per NIMPAR, J.C.A. (P. 20, Paras. C-D) - read in context 3. PRACTICE AND PROCEDURE - CASE ON REFERENCE: Conditions which must exist before a reference can be made under Section 295(2) of the 1999 Constitution "The 1999 Constitution as amended has categorically provided for reference or case stated to an appellate Court. Section 295 of the 1999 Constitution states thus: "(1) where any question as to the interpretation or application of this Constitution arises in any proceedings in any Court of law in any part of Nigeria (other than in the Supreme Court, the Court of Appeal, the Federal High Court or a High Court) and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any of the parties, refer the question to the Federal High Court or a High Court having jurisdiction in that part of Nigeria and the Federal High Court or the High Court shall (a) If it is of the opinion that the question involves a substantial question of law, refer the question to the Court of Appeal; or (b) If it is of the opinion that the question of law, remit the question to the Court that made the reference to be disposed of in accordance with such directions as the Federal High Court or the High Court may think fit to give. (2) where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision. (3) where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of appeal and the Court is of the opinion that the question involves a substantial question of law, the Court, may, and shall if any party to the proceedings so request, refer the question to the Supreme Court which shall give its decision upon the question and give such direction to the Court of Appeal as it deems appropriate". The issue of reference is therefore recognised and constitutionally provided for under certain conditions. When the conditions are made out, a case stated can be made to an appellate Court. The apex Court had cause to interpret the Constitutional provision in the case of FEDERAL REPUBLIC OF NIGERIA v IFEGWU (2003) 15 NWLR (Pt. 842) 113 at 150 wherein it reiterated and set out the conditions under which the provision can be invoked by a party. The conditions precedent stated as follows: i. The question must be as to the interpretation or application of the Constitution. This is the fountain for even contemplating making reference. ii. The question must arise in the proceedings in connection with an issue before the Court making the reference. iii. The matter for reference must involve a substantial question of law. There might be instances where the question presents no difficulty in ascertaining whether it is substantial or not, but it must be one on which agreement is in favour of more than one interpretation that might reasonably be adduced. iv. The Court making the reference to the higher Court is not required to, and must not give an opinion of the law on the question." It is important that the conditions precedent must co - exist before a reference can be competent."per NIMPAR, J.C.A. (Pp , Paras. C-B) - read in context

3 4. PRACTICE AND PROCEDURE - CASE ON REFERENCE: Conditions which must exist before a reference can be made under Section 295(2) of the 1999 Constitution "The third condition is that the lower Court must be satisfied that the question involves a substantial question of law. Here the lower Court did not find anything substantial as requiring reference to this Court. The lower Court was very explicit in stating that the Constitutional provision and the Act are clear and straight forward. The lower Court must independently be satisfied of the need and substantiality of the question, it cannot be imposed on the Court. The discretion is purely that of the Court. Not even an appellate Court can substitute its opinion on the substantiality question, see MAINSTREET BANK REGISTRARS LTD V MR. UDOH FRIDAY ETIM (Unreported Judgment in CA/L/1255/2014) DELIVERED ON THE 9TH DAY OF MARCH, As long the trial judge is not satisfied, the reference cannot be made. Here the judge was not satisfied that the question involves a substantial question of law thus his refusal to make the reference. The decision is purely that of the judge to make and not a party. A party cannot impose its opinion on the Court. In the case of MAINSTREET BANK REGISTRARS LTD V MR. UDOH FRIDAY ETIM (SUPRA) the Court held as follows: "Further, even if it is argued, that a constitutional provision had arisen, the obligation to refer it to the Court of appal arises only after the judge is satisfied that there is a substantial question requiring the answer of the Court of appeal, If he is not so satisfied, a fundamental condition has failed and he is then not compelled to make the reference."per NIMPAR, J.C.A. (Pp , Paras. C-D) - read in context 5. PRACTICE AND PROCEDURE - SUBSTANTIAL QUESTION OF LAW: What amounts to a substantial question of law "It is settled that what is substantial would depend on the facts of each case as substantial has no exhaustive definition, see the case of BAMAIYI V A. G. FEDERATION (2001) 12 NWLR (Pt. 727) 468 where the Supreme Court held thus: "It will be difficult to attempt an exhaustive definition of what is a substantial question of law. A useful guide in determining whether an issue of law is substantial is provided in a number of Indian decisions dealing with a similar phrase in the Indian Constitution. There it has been held in order to be substantial, the issue must be such that there may be some doubt or difference of opinion as to what the law is. When no such doubt exist, or the law is well established by a final Court of Appeal, or by all over whelming consensus of judicial decisions the,ere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be for the decision of the particular case." This Court again in the case of COCA COLA V ADESANYA (SUPRA) on what is a substantial question answered it in the following words: "To constitute 'substantial question of law' for the purpose of reference, the question must be so crucial that without its resolution as a preliminary point, it would be impossible to resolve the main suit. The question must also be one which favours more than one interpretation, and it should be so formulated as to enable the Court deal with all points which fairly arise and at the same time to confine itself to those points. Invariably, the substantial question of law is a point denotes material, essential, important or fundamental point of law. In essence a substantial point of law is a point of law which will materially determine the fortunes of the matter in the High Court one way or the other. A point of law which is peripheral cannot form the basis of a reference."per NIMPAR, J.C.A. (Pp , Paras. E-B) - read in context

4 6. PRACTICE AND PROCEDURE - CASE ON REFERENCE: Whether it is a party that determines whether or not he has met the conditions for a case to be stated to the Appellate Court "However, let me also add that it is not for a party to determine whether or not the conditions are made out for a case to be stated to the Appellate Court. The decision is solely at the discretion of the lower Court."Per NIMPAR, J.C.A. (P. 26, Paras. E-F) - read in context 7. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Attitude of Courts to academic/hypothetical issues or questions "All other issues raised in this appeal consequently becomes an academic exercise and Courts are not allowed to compete with academic institutions in the resolution of hypothetical questions, see KUBOR & ANOR V. DICKSON & ORS (2012) LPELR (SC)."Per NIMPAR, J.C.A. (P. 27, Paras. D-E) - read in context 8. PRACTICE AND PROCEDURE - SUBSTANTIAL QUESTION OF LAW: When a question of law can be said to be substantial "... the law is settled that not every question of law constitutes substantial basis for referral to this Court for interpretation, for any question to qualify for referral it must be shown that the question involves substantial questions of Law. The proper test for determining whether a question of law is substantial to merit reference entails consideration of certain guidelines, which include: (1) Whether the question is of general public importance. (2) Whether it directly and substantially affects the rights of the parties in litigation, and if so, (3) Whether it is either an open question, or that it is not finally resolved or is not free from difficulty, or calls for discussion of alternative views; (4) It must be one in which argument in favor of more than one interpretation might reasonably be adduced. (5) The question must also & capable of being formulated with precision. If the question is settled by the Highest Court, or the general principles are well settled, and it is just a mere question of applying those principles, or that the issue so raised is palpably absurd, the question would not be a substantial question of law, and refusal by the Court to make an order of referral would be justified. See: OTUGOR GAMIOBA & OTHERS Vs. ESEZI II, (the Onodjie of Okpe) & OTHERS (1961) 2 SCNLR 237, and OBAYOGIE Vs. OYOWE (1994) 5 NWLR (Pt.346)."Per ABUBAKAR, J.C.A. (Pp , Paras. A-C) - read in context 9. PRACTICE AND PROCEDURE - CASE ON REFERENCE: Conditions which must exist before a reference can be made under Section 295(2) of the 1999 Constitution "... it is not every question of constitutional Interpretation that is deserving of referral to this Court for interpretation, before prayer for reference is acceded to under Section 295 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the lower Court must be of the opinion that the question involves substantial question of law, and must arise from the proceedings in connection with an issue before the Court making the reference."per ABUBAKAR, J.C.A. (P. 31, Paras. A-C) - read in context

5 10. PRACTICE AND PROCEDURE - RULES OF COURT/ STATUTORY PROVISION: Essence/purpose of Rules of Court "I need to also state that Rules of Court are designed to ensure that the affairs of Courts are conducted orderly. The Rules serve as convenient facility applied by the Courts to regulate proceedings and offer the parties the opportunity to present their cases ensuring fair and quick dispensation of justice in the trial, see FBN Plc vs. TSA IND LTD (2010) 15 NWLR (Pt. 1216) 247, and G.M.O NWORAH & SONS CO. LTD vs. AFAM AKPUTA (2010) 9 NWLR (Pt. 1200) 433."Per ABUBAKAR, J.C.A. (P. 32, Paras. B- D) - read in context

6 YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling of the National Industrial Court presided over by HON. JUSTICE J. D. PETERS delivered on the 10th November, 2014 wherein the lower Court refused an application brought by the Appellant seeking amongst other reliefs an order of the Court to state a case to this Court on some questions. The brief facts relevant to this appeal are that, the Respondent herein, filed an action against the Appellant for wrongful termination of employment and in the course of pleadings, the Appellant filed its Statement of Defence after which the Respondent filed a reply wherein she pleaded a document and accompanied it with a further statement on oath. The Appellant filed a motion to set aside the Reply on the ground that it raised a new issue and that the rules of Court do not allow her to file a reply. That the Appellant has no right of further reaction thereby breaching the rule of fair-hearing. It asked the Court to strike out the reply. The application to strike out the Respondent's reply was refused and the Reply was deemed properly 1

7 filed. By another motion the Appellant prayed the Court for an order that questions it formulated be referred to this Court for answers. The questions which the Appellant tagged constitutional are namely: i. Whether the National Industrial Court of Nigeria having been created and made a superior Court of record by virtue of the Provisions of S. 6(5) (c) and S. 254(A) & (C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) can operate as an inferior Court which the Evidence Act, 2011 do not mandatorily apply? ii. Whether the National Industrial Court of Nigeria having been accorded with the same powers as that of the High Courts in Nigeria by virtue of S.6(5) (c) and S. 254(A)& (D)(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Industrial Court of Nigeria can in any of its judicial proceedings rely on the provisions of S.12 (2) (b) of the National Industrial Court Act, 2006 to depart from the provisions of the Evidence Act, 2011 which mandatorily binds all superior Courts of records in Nigeria thereby making the National Industrial Court of Nigeria more powerful than 2

8 the other High Courts in Nigeria? iii. Whether in the determination of the civil rights and obligations of the Defendant guaranteed under S.36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Defendant is not entitled to have its civil rights and obligations determined in the National Industrial Court of Nigeria in accordance with the provisions of the Evidence Act, 2011 in Nigeria? iv. Whether the powers granted to the National Industrial Court by virtue of the provisions of S.12 (2) (b) of the National Industrial Court Act, 2006 to depart from the provisions of the Evidence Act, 2011 is not inconsistent with the provisions of S.6(5) (c), S.254(4), (D) (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), S.252 and S.256 of the Evidence Act, 2011 and therefore unconstitutional in view of the provisions of the 2nd Schedule Part 1, Item 23 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)? v. Whether the National Industrial Court's reliance on the provisions of Section 12(2)(b) of the National Industrial Court Act, 2006 in the admission and/or exclusion of documentary 3

9 evidence or other exercise of discretion in the admission or exclusion of evidence which should not be admitted and/or excluded under the provisions of the Evidence Act, 2011 in the determination of the civil rights and obligations of the Defendant will not amount to a breach of the fair hearing right of the Defendant guaranteed under the provisions of S.36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)? vi. Whether the National Industrial Court's reliance on the provisions of Section 12 (2) (b) of the National Industrial Court Act, 2006 or on Order 26 Rules 13 of the National Court Rules, 2007 (as amended) in adopting Rules of Civil Procedure which could not have been adopted by the Federal High Courts, the State High Court in the determination of the civil rights and obligations of the Defendant is not unconstitutional in view of the provisions of Section 6(5) (c) Section 254(A) & (D) (1) and Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended)? Upon the ruling refusing the application, the Appellant felt dissatisfied and filed a Notice of Appeal dated 24th November, 2014 setting out 3 grounds of appeal and 4

10 sought the following reliefs: 1. An order allowing the appeal 2. An order setting the decision of the National Industrial Court delivered by the Honourable Justice J. D. Peters on the 10th November, An order setting down for consideration by this Honourable Court, the questions sought to be referred as case stated on the substantial constitutional issue of the jurisdiction of the National Industrial Court to depart from the rules of evidence for the interpretation of Section 6(5) (CC), 254(1) A-D of the Constitution together with Section 12 of the National Industrial Court Act, A declaration that Section 12 (1) and (2) (b) of the National Industrial Court Act, 2006 is inconsistent with the provisions of the 1999 Constitution of the Federal republic of Nigeria and therefore null and void. The Appellant filed its Appellant's brief dated 20th day of February, 2015 on the 25/2/15 but deemed on the 17/06/15 and a reply brief dated 21st day of May 2015 filed on the 21/5/15 also deemed on the 17/06/15. The Respondent filed its Respondent's brief dated 24th March, 2015 on the 25/3/15 and deemed on the 17/06/15. All briefs 5

11 were adopted at the hearing of this appeal. The Appellant set out 3 issues for determination as follows: a) Whether the lower Court was right and acted within the requisite jurisdiction when it refused to state a case for the decision of the Court of Appeal? (distilled from Ground One) b) Whether the lower Court was right when it held that the Provisions of S.12 (2) (B) of the National Industrial Court is clear and not susceptible to divergent interpretations and does not raise any substantial question of Law in its Ruling of 10th November, 2014? (Distilled from Ground Two) c) Whether the National Industrial Court has jurisdiction to admit or exclude any evidence (Documentary or Oral) contrary to the Provision of the Evidence Act, 2011 in the determination of the Rights and Obligations of the Appellant guaranteed under S.36 of the Constitution of the Federal Republic of Nigeria? (Distilled from Ground Three). The Respondent on its part formulated a sole issue for determination thus: "Whether the apparent conflict in the application of the provisions of the Evidence Act 2011 and Section 12 (2) (A) and (B) of the National 6

12 Industrial Court Act 2006 constitutes a substantial constitutional question deserving of a referral to the Court of Appeal. (Distilled from Grounds 1, 2 and 3). The Court shall adopt the issues formulated by the Appellant issue for determination in this appeal. They shall be taken together. The Appellants under its issue one submitted that it is clear from S. 295 of the 1999 Constitution and the case of FRN V IFEGWU (2003) 155 NWLR (PT 842) 113 that for an issue to be stated to the appellate Court it must be one that is capable of different legal interpretations or of general public interest and must directly affect the rights of the parties. According to the Appellant, the above requirements were met by the Appellant as the lower Court relied on the provisions of S. 12 (1) (2) of the National Industrial Court (NIC) Act 2006 and S. 254 (c) of the 1999 Constitution to rule that the Respondent's reply to the statement of defence was competent. That these Sections vis-a-vis S. 6 (5) (cc), 254 (a) (c) and (d) and S. 36 (1) of the 1999 Constitution are constitutional provisions thrown up for interpretation, substantial and that the ruling of the 7

13 lower Court forms part and parcel of the proceedings, it referred to ROSSEK V AFRICAN CONTINENTAL BANK LTD (1993) 8 NWLR (PT 312) 382. Appellant further submitted that based on these, the Court ought not to have proffered its own legal opinion and to refuse stating the issues to the Appellate Court. That the refusal is a breach to the Appellant's fundamental right to fair hearing, relied on COCA COLA (NIG) LTD V AKINSANYA (2013) 18 NWLR (PT 1336) 2251 BAMAIYI V ATTORNEY GENERAL OF THE FEDERATION (2001) 12 NWLR (PT 727) 496. With respect to Appellant's issue 2, the Appellant was of the opinion that under S. 12 (1) of the NIC Act, the phrase 'any other enactment' includes the Evidence Act and as such it is S. 12 (2) (b) of the NIC Act that the lower Court impliedly relied upon in allowing the Respondent's reply to the statement of defence thereby departing from the Evidence Act and necessitating the Appellant's application for the matter to be stated to the Appellate Court. Appellant further stated that being that the lower Court has been elevated to the status of a superior Court, and to exclude the application of the provisions of the Evidence Act 8

14 in the lower Court brings the status of the lower Court to that of an inferior Court. To the Appellant, the lower Court can no longer operate as an inferior Court to which the rules of evidence do not apply. It referred to AFRICA C. B. PLC V LOSADA NIG LTD (1995) LPELR (SC) and submitted that the entire issue based on S.6 (5) (cc) and S. 254 (a) (c) (d) (1) of the 1999 Constitution when read together with S. 12 of the NIC Act is susceptible to dual interpretations, necessitating constitutional interpretation by the Appellate Court. The Appellant under issue 3 emphasized the importance of the principle of fair hearing and submitted that since the rules of evidence are construed to secure fairness in proceedings, any Court proceedings that is not complying with the Evidence Act is not in accordance with the principle of fair hearing. On the other hand, the Respondent submitted that the questions referred to by the Appellant to this Court have nothing to do with the interpretation of the 1999 Constitution but is an indirect request to construe the provisions of S. 12 (2) (b) of the Evidence Act. Respondent argued that it is not in every request 9

15 for case stated that the lower Court must refer the case to a higher Court to be case stated, relied on COCA - COLA NIG LTD v AKISANYA [2013] 18 NWLR (PT 386) 255. The Respondent went further to submit that there is no conflict between the Evidence Act and the NIC Act because that both laws are federal legislations, none is superior to the other. That S. 12 (2) (a)& (b) of the NIC Act sought to be interpreted by the Appellant was never in issue by the lower Court neither is it a substantial question of law. Further submitted that the said section is clear and unambiguous and not capable of differing opinions, he referred to ABACHA V FRN (2006) 4 NWLR (PT 970) 239; KRAUS THOMPSON ORG v NIPSS (2004) 12 MJSC 94. According to the Respondent, the questions put forward by the Appellants for interpretation are not of general importance, they do not affect the rights of the parties in this case and that S. 12 (2) (a) (b) was not an issue in the proceedings leading to this appeal. In the its reply brief, the Appellants submitted that as gleaned from the proceedings at the lower Court, the requirements for stating a case was met and that the ruling of the 10

16 lower Court brought to fore the various constitutional provisions as stated above which is capable of interpretation. RESOLUTION: I will start resolution from the angle of the Appellant's issue one which is a complaint against the trial Court's refusal to refer the questions formulated by the Appellant to this Court for determination. It is only when that issue is resolved that progress can be made in the direction of the remaining issues. The 1999 Constitution as amended has categorically provided for reference or case stated to an appellate Court. Section 295 of the 1999 Constitution states thus: "(1) where any question as to the interpretation or application of this Constitution arises in any proceedings in any Court of law in any part of Nigeria (other than in the Supreme Court, the Court of Appeal, the Federal High Court or a High Court) and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any of the parties, refer the question to the Federal High Court or a High Court having jurisdiction in that part of Nigeria and the Federal High Court or the High Court shall (a) If it is of the 11

17 opinion that the question involves a substantial question of law, refer the question to the Court of Appeal; or (b) If it is of the opinion that the question of law, remit the question to the Court that made the reference to be disposed of in accordance with such directions as the Federal High Court or the High Court may think fit to give. (2) where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision. (3) where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of appal and the Court is of the opinion that the question involves a substantial question of law, the Court, may, and 12

18 shall if any party to the proceedings so request, refer the question to the Supreme Court which shall give its decision upon the question and give such direction to the Court of Appeal as it deems appropriate". The issue of reference is therefore recognised and constitutionally provided for under certain conditions. When the conditions are made out, a case stated can be made to an appellate Court. The apex Court had cause to interpret the Constitutional provision in the case of FEDERAL REPUBLIC OF NIGERIA v IFEGWU (2003) 15 NWLR (Pt. 842) 113 at 150 wherein it reiterated and set out the conditions under which the provision can be invoked by a party. The conditions precedent stated as follows: i. The question must be as to the interpretation or application of the Constitution. This is the fountain for even contemplating making reference. ii. The question must arise in the proceedings in connection with an issue before the Court making the reference. iii. The matter for reference must involve a substantial question of law. There might be instances where the question presents no difficulty in ascertaining whether it is substantial or 13

19 not, but it must be one on which agreement is in favour of more than one interpretation that might reasonably be adduced. iv. The Court making the reference to the higher Court is not required to, and must not give an opinion of the law on the question." It is important that the conditions precedent must co - exist before a reference can be competent. The law is trite that when there is non-compliance with any precondition in setting a legal process in motion, the process if commenced in contravention of the condition precedent is incompetent and the Court is equally incompetent to determine the process, see DEE NIGERIAN UNIVERSAL BANK LTD &.72 OTHERS V SAMBA PETROLEUM COMPANY LTD (2006) 12 NWLR (PT 993) PG 98, ADEGBENRO & ANOR V. AKINTILO & ORS (2009) LPELR (CA). What brought about the application for reference by the Appellant at the lower Court was the issue of the Respondent's reply which annexed or introduced a document the Respondent (claimant at the lower Court) wanted to rely on at the trial. The objection taken by the Appellant was overruled as well as the application for reference to this Court to answer a number of 14

20 questions. Juxtaposing the conditions listed for reference by the apex Court against the facts of this case, can it be said that the conditions precedent were satisfied? It is only when the conditions precedent co - exist before the question of whether the Court was right and acted within its requisite jurisdiction in refusing to make the reference can arise. The first condition is that the question to be referred to the Court of Appeal must be in respect of the interpretation or application of the provisions of the Constitution. This is indeed the foundation and essential condition for reference, see ABUBAKAR V A. G. FEDERATION (2007) 6 NWLR (Pt.1031) 626. The 7 questions put forward by the Appellant and reproduced above all have one issue or the other connected to a constitutional provision or its applicability. The Appellant formulated questions in respect of Section 6, 36 and 254 of the Constitution and certain sections of the Evidence Act and the National Industrial Court Act. One can say without equivocation that the questions presented raise constitutional questions. At this stage, it would be expedient to consider the second condition along 15

21 this leg of the first condition because of the nature of the proceedings before the lower Court is critical in finding answers. Going by the record of appeal, the proceedings before the lower Court was at the stage of pleadings. The Appellant filed its statement of defence and the Respondent filed a reply accompanied by a further statement on oath of the claimant and listed a document she intend to rely on. The Appellant then filed a motion dated 24th January, 2014 praying the Court for the following reliefs: 1. An order of this Honourable Court striking out the Reply to the statement of defence dated and filed by the claimant on the 22nd November 2013 in its totality. 2. An order of this Honourable Court discountenancing, disregarding and/or discarding and/ or striking out the internal memo of 28th July, 2011 purportedly issued by the defendant annexed by the claimant as an exhibit to be relied upon at the trial. The motion was opposed and the lower Court by its ruling at pages refused the application and held: "In the instant case there is no express provision in the Rules of Court permitting Reply. However, by the 16

22 combined reading of Section 12 (1) and Section 54(1) of the National Industrial Court Act, 2006 and Section 254 (c) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act 2010, this Court as a Superior Court of record has the inherent power to allow and by its practice and procedure it allows filing of reply in appropriate and deserving cases." The refusal to grant the application made the Appellant to apply for a case stated to this Court. At that stage therefore, the proceedings were merely the issue of pleadings and there is no section of the Constitution that deals with pleadings in any Court, not even the Supreme Court because these are issues governed by Rules of Court. The lower Court by refusing the application to make reference made it very clear that Section 254 (a) of the 1999 Constitution is clear and unambiguous, that it is not open to more than one interpretation. By that holding the lower Court deflated the case of the Appellant on the precondition that a substantial question has not arisen for determination. He held thus: "This is an application for case stated to the Court of Appeal to 17

23 determine questions relating to Section 12 (2) (b) of the National Industrial Court Act 2006 in particular. I have listened to the submissions of learned Counsel on either side. I also read with understanding the processes filed in relation to this application. Section 295 of the 1999 Constitution of the Federal Republic of Nigeria 1999 as amended deals with issues of reference of questions of law. By Subsection (2) of Section 295 for a Court to state a case to the Court of Appeal, a question must have arisen as to the interpretation or application of the Constitution. Secondly and more importantly, the Court (i.e. this Court in the instant case) must have been of the opinion that the question involves substantial questions of law. I find the provision of Section 12(2)(b) of the National Industrial Court Act 2006 as well as Section 254(4) of the Constitution of the Federal Republic of Nigeria 1999 as amended clear and unambiguous. They are neither confusing nor susceptible to more than one interpretation or meaning. That being the case I find it difficult to form an opinion as contemplated by Section 295(2) Constitution of Federal Republic of Nigeria 18

24 as amended. I find this application as lacking in merit. I dismiss same accordingly." Section 254(a) establishes the National Industrial Court of Nigeria. Then Section 254(c) provides for the jurisdiction of the National Industrial Court detailing a long list of subjects the Court has jurisdiction to hear and determine disputes arising therefrom. Section 12(1) (2) of the National Industrial Court Act provides for the practice and procedure of the National Industrial Court thus: "1. The jurisdiction of the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of Court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure of the Court existing immediately before the commencement of this Act. 2. Subject to this Act and any rules made thereunder, the Court - a. may regulate its procedure and proceedings as it thinks fit; and b. shall be bound by the Evidence Act but may depart from it in the interest of justice." The contention of the 19

25 Appellant is that the lower Court interpreted and applied the constitutional provision of Section 254(c) wrongly in holding that the reply of the Respondent was properly before the Court. Was there a question for the interpretation or application of the constitutional provision before the lower Court? The Appellant before the said ruling did not present any constitutional issue that could have evoked a reaction by the ruling of the Court. The simply issue was whether pleadings of the respondent in terms of a reply pleading a document should be allowed to stand. It is trite that a Defendant could only react to new issues raised by the Claimant in the statement of defence by way of a reply. That is the known practice and procedure. Is that a constitutional matter? Does it raise an issue of interpretation of any section of the Constitution? I think not. The Constitutional provision of Section 254(c) did not come up for interpretation in the matter between the parties and touching on the issues in contention in the claim before the Court. The lower Court mentioned the constitutional provision to justify its inherent power to do justice in the matter. I 20

26 agree with the Respondent that there was no question for the interpretation of any constitutional provision to warrant the request for a case stated because the claim before the Court had no constitutional bearing. Can any provision of the Constitution arise for determination in the dispute between the parties? The reference to be made must apply to questions which must of necessity be decided in the matter. Can the dispute be resolved only upon the interpretation of the Constitution? The answers to the above questions are in the negative. The questions set out here for determination are not necessary for the resolution of the question of whether the Respondent can file a reply or not. In any case, the lower Court had sealed the issue by categorically stating in its ruling that the constitutional provision is clear and unambiguous and not susceptible to more than one interpretation. The lower Court rightly observed that if the reply was over reaching the Appellant, it had a right to amend its statement of defence. Furthermore, the order refusing to strike out the reply is an order that is appealable if the Appellant brings the appeal on grounds of fair 21

27 hearing. But instead of an appeal, the Appellant chose to take an uncharted path. The second condition is therefore not made out and even if the questions presented to the trial Court are constitutional questions, the fact is that they did not arise in the proceedings, they are extrinsic to the proceedings and cannot be introduced by way of an application to the Court to make a reference to the Court of Appeal. The application was a subtle way of changing the nature of the claim before the lower Court. The third condition is that the lower Court must be satisfied that the question involves a substantial question of law. Here the lower Court did not find anything substantial as requiring reference to this Court. The lower Court was very explicit in stating that the Constitutional provision and the Act are clear and straight forward. The lower Court must independently be satisfied of the need and substantiality of the question, it cannot be imposed on the Court. The discretion is purely that of the Court. Not even an appellate Court can substitute its opinion on the substantiality question, see MAINSTREET BANK REGISTRARS LTD V MR. UDOH FRIDAY ETIM 22

28 (Unreported Judgment in CA/L/1255/2014) DELIVERED ON THE 9TH DAY OF MARCH, As long the trial judge is not satisfied, the reference cannot be made. Here the judge was not satisfied that the question involves a substantial question of law thus his refusal to make the reference. The decision is purely that of the judge to make and not a party. A party cannot impose its opinion on the Court. In the case of MAINSTREET BANK REGISTRARS LTD V MR. UDOH FRIDAY ETIM (SUPRA) the Court held as follows: "Further, even if it is argued, that a constitutional provision had arisen, the obligation to refer it to the Court of appal arises only after the judge is satisfied that there is a substantial question requiring the answer of the Court of appeal, If he is not so satisfied, a fundamental condition has failed and he is then not compelled to make the reference." It is settled that what is substantial would depend on the facts of each case as substantial has no exhaustive definition, see the case of BAMAIYI V A. G. FEDERATION (2001) 12 NWLR (Pt. 727) 468 where the Supreme Court held thus: "It will be difficult to attempt an exhaustive definition of 23

29 what is a substantial question of law. A useful guide in determining whether an issue of law is substantial is provided in a number of Indian decisions dealing with a similar phrase in the Indian Constitution. There it has been held in order to be substantial, the issue must be such that there may be some doubt or difference of opinion as to what the law is. When no such doubt exist, or the law is well established by a final Court of Appeal, or by all over whelming consensus of judicial decisions the,ere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be for the decision of the particular case." This Court again in the case of COCA COLA V ADESANYA (SUPRA) on what is a substantial question answered it in the following words: "To constitute 'substantial question of law' for the purpose of reference, the question must be so crucial that without its resolution as a preliminary point, it would be impossible to resolve the main suit. The question must also be one which favours more than one interpretation, and it should be so formulated as to enable the Court deal with all 24

30 points which fairly arise and at the same time to confine itself to those points. Invariably, the substantial question of law is a point denotes material, essential, important or fundamental point of law. In essence a substantial point of law is a point of law which will materially determine the fortunes of the matter in the High Court one way or the other. A point of law which is peripheral cannot form the basis of a reference". The Appellant argued that the constitutional provision taken along Section 12(2) of the National Industrial Court Act raises substantial issues of law because taken together they are open to several interpretations and of general public importance or interest. However, the trial judge having held that there was nothing substantial, the process at that stage was truncated as no progress can be made in the application for reference. I therefore agree with the Respondent on this point. The 4th condition is that the Court making the reference to a higher Court is not required to, and must not give an opinion of the law on the question. The trial Court here gave an opinion on the constitutional questions distilled by the 25

31 Appellant for case stated and once that is done, the appellate Court cannot answer the questions but return them to the trial Court. One question cannot attract two answers at the same time from different Courts, even if the answers were to be the same. From the determination of the conditions precedent, the conditions stand unsatisfied and that therefore pulls the carpet off the feet of the Appellant in this appeal. This Court cannot make progress at this stage as it must end resolution of the issues at this stage. Once conditions precedent is not made out, the Court lacks competence. The Appellant is trying to create a constitutional issue without satisfying conditions precedent. Failure to do so catastrophically truncates this appeal. However, let me also add that it is not for a party to determine whether or not the conditions are made out for a case to be stated to the Appellate Court. The decision is solely at the discretion of the lower Court. I therefore disagree with the Appellant's submission that the Court had no right or requisite jurisdiction when it refused to state a case to the Appellate Court. By virtue of S. 295 of the

32 Constitution, the lower Court has been fully empowered to refuse to state a case to the Appellate Court if it is not satisfied that the question involves a substantial question of law. More so, I have earlier stated that there was no question for the interpretation of any constitutional provision to warrant the request for a case stated. I therefore find that the discretion of the trial judge was rightly exercised and it will not be tampered with. Having resolved issue one against the Appellant, I cannot now answer the questions raised by the Appellant since the lower Court did not refer them to us. The Appellant cannot ask us directly to answer them without passing through the lower Court. All other issues raised in this appeal consequently becomes an academic exercise and Courts are not allowed to compete with academic institutions in the resolution of hypothetical questions, see KUBOR & ANOR V. DICKSON & ORS (2012) LPELR (SC). This appeal lacks merit and is hereby dismissed. Cost of N20, in favour of the Respondent. SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the 27

33 Judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning and conclusions reached therein and have nothing extra to add. This appeal lacks merit and is also hereby dismissed by me. Cost of N20, in favour of the Respondent. JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the succinct judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree with nothing extra to add. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: Having been privileged to read in draft before now, the lead judgment of my learned brother Y.B. NIMPAR JCA, Just delivered, I am of the same view that the appeal lacks merit and ought to fail. I therefore dismiss the appeal. I also abide by the consequential orders made in the lead judgment. TIJJANI ABUBAKAR, J.C.A.: My Lord and learned Brother NIMPAR JCA, dealt with the entire issues submitted for determination, I must state at once that the Judgment represents the settled position of the Law, but for the irresistible temptation to add a word or two I 28

34 would have said I entirely agree with the entire reasoning and conclusion and then proceed to adopt the Judgment as my own with nothing to add, but let me just add at the risk of restating the points already ably marshaled in the leading Judgment that, the law is settled that not every question of law constitutes substantial basis for referral to this Court for interpretation, for any question to qualify for referral it must be shown that the question involves substantial questions of Law. The proper test for determining whether a question of law is substantial to merit reference entails consideration of certain guidelines, which include: (1) Whether the question is of general public importance. (2) Whether it directly and substantially affects the rights of the parties in litigation, and if so, (3) Whether it is either an open question, or that it is not finally resolved or is not free from difficulty, or calls for discussion of alternative views; (4) It must be one in which argument in favor of more than one interpretation might reasonably be adduced. (5) The question must also & capable of being formulated with precision. 29

35 If the question is settled by the Highest Court, or the general principles are well settled, and it is just a mere question of applying those principles, or that the issue so raised is palpably absurd, the question would not be a substantial question of law, and refusal by the Court to make an order of referral would be justified. See: OTUGOR GAMIOBA & OTHERS Vs. ESEZI II, (the Onodjie of Okpe) & OTHERS (1961) 2 SCNLR 237, and OBAYOGIE Vs. OYOWE (1994) 5 NWLR (Pt.346). In the instant case it is beyond any doubt that the questions crafted by the Appellant and sought to be referred to this Court for interpretation are completely devoid of any scintilla of constitutional bearing. The learned trial Judge clearly resolved the point having found that the issue as conceived by the Appellant is clear and unambiguous and therefore not likely to be subjected to more than one interpretation, the issue forming the fulcrum of the request for referral is the question "whether the claimant had the right to file reply upon being served statement of defense by the Appellant Defendant". My Learned Brother has already set out the questions sought to be referred 30

36 to this Court by the Appellant, I need not reproduce them again, I just need to repeat in further support that it is not every question of constitutional Interpretation that is deserving of referral to this Court for interpretation, before prayer for reference is acceded to under Section 295 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the lower Court must be of the opinion that the question involves substantial question of law, and must arise from the proceedings in connection with an issue before the Court making the reference. The learned trial Judge made the position of the lower Court explicit when he stated clearly as follows: "I find the provisions of Section 12(2) of the National Industrial Court Act 2006 as well as Section 254(A) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) clear and unambiguous. They are neither confusing nor susceptible to more than one interpretation or meaning. That being the case, I find it difficult to form an opinion as contemplated by Section 295(2) Constitution of Federal Republic of Nigeria as amended. I find this application as lacking in merit and I dismiss same 31

37 accordingly." I think the Appellant in this appeal took the decision to amplify the frontiers of its grievance by dragging constitutional question into an issue that relates wholly and exclusively to application of the Rules of Court in relation to settlement of pleadings. I need to also state that Rules of Court are designed to ensure that the affairs of Courts are conducted orderly. The Rules serve as convenient facility applied by the Courts to regulate proceedings and offer the parties the opportunity to present their cases ensuring fair and quick dispensation of justice in the trial, see FBN Plc vs. TSA IND LTD (2010) 15 NWLR (Pt. 1216) 247, and G.M.O NWORAH & SONS CO. LTD vs. AFAM AKPUTA (2010) 9 NWLR (Pt. 1200) 433. Section 295 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives the lower Courts power to determine if questions to be referred for interpretation are substantial or not, the power given to the lower Court is to ensure that simple issues do not transmute into Constitutional issues deserving of referral to this Court. I join in holding that the decision by the lower Court to refuse the 32

38 application for referral of the conceived Constitutional questions to this Court is proper. Access to Court is a right that is extended to all litigants, but where opening the gates of the Courthouse will amount to opening floodgate, the Courts will be justified in preventing simple questions from wearing the garb of constitutionality. For these reasons and the more elaborate reasons advanced by my learned brother in the lead Judgment I also hold that this appeal lacks merit and therefore deserves to be dismissed, it is hereby dismissed by me. I also join my learned brother in affirming the decision of the lower Court. I abide by all consequential orders including order on costs. 33