Federal Capital Development Authority V. The Governing Council Of The National Industrial Training Fund & Anor (2009)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This Appeal is against the decision of the Federal High Court sitting at Abuja delivered by A.I. Chikere J. on the 29th day of June, 2005.
The fact of the case is that the 1st Respondent is a Federal Government Parastatal established under the Industrial Training Fund Decree No. 47 of 1971 as amended by the Industrial Training Fund Act, Cap 182, Laws of the Federation of 1990 and charged with the sole responsibility of promoting and encouraging acquisition of skills in Industry and Commerce with a view to generating a pool of indigenous trained manpower sufficient to meet the needs of the economy; whilst the 2nd Plaintiff/Respondent is its Director-General/Chief Executive.
The Respondents alleged that in order to achieve its objective, the 1st Plaintiff/Respondent established Area Offices allover the Federation charged with the responsibility of recovering/Collecting 1% of the gross payroll from all employers of Labour in Industry of Commerce having twenty-five or more employees in its establishment. In order to realize the above-stated objectives, the Plaintiffs/Respondents requested the Defendant/Appellant to fulfill its legal obligation towards them. However, the Defendant/Appellant repudiated liability contending in the main that it does not come within the purview of the Statute that established the 1st Plaintiff/Respondent.
The Respondents, through their Solicitors, wrote several letters demanding that the Appellant comply with the Respondents’ enabling Law.
Consequent upon the failure of Defendant/Appellant to comply, the Plaintiffs/Respondents instituted an action against the Defendant/Appellant at the lower Court which Court granted all the reliefs of the Plaintiffs/Respondents and also held that the Defendant/Appellant is liable to register with the Plaintiffs/Respondents and to contribute 1% of its annual payroll to the Fund. The Defendant/Appellant being dissatisfied with the Judgment has now appealed to the Court of Appeal.
Parties have exchanged their Briefs. The Appellant’s Brief of Argument dated 12th January, 2007 was filed on 14th February, 2007 while the Respondents’ Brief of Argument was filed on the 8th Day of December, 2008.
From the two grounds of Appeal contained in the Notice of Appeal and one additional ground of Appeal, two issues were distilled on behalf of the Appellant for the determination of this Appeal and they read as follows:
“(1) Whether the trial Court rightly held that the Appellant falls within the category of persons to contribute to the Fund being an employer of labour that pays wages and salaries to its employees?
(2) Whether the trial Judge rightly interpreted the provision of S.12 of the Industrial Training Fund (I.T.F.) Act Cap 182 Laws of the Federation 1990 to confer obligation on to the Appellant who is an employer of labour to refer to the Minister any question of fact arising as to the liability under the I.T.F. Act?”
The Respondents filed no issue but adopted the issues formulated by the Appellant for the determination of this Appeal.
Issue 1:-
“Whether the trial Judge rightly held that the Appellant fails within the category of persons to contribute to the Fund being an employer of labour that pays wages and salaries to its employees?”
Counsel for the Appellant, Betty A. Umegbulem (Miss) referred the Court to Section 15(1) of the Industrial Training Fund Act Cap 12 laws of the Federation 1990 and submitted that the Section is very clear and unambiguous on its definition of an employer.
He further submitted that it is trite law that where the words of any Section of a Statute are clear and unambiguous, no more meaning is required than to give them their ordinary meaning and referred the Court to the cases of:
Festus I. Adesanya & 3 Ors. V. Prince F.G. Adewale & 1 Or (2000) 2 SCNQR page 834 at 889 Paras, F-H; Mr. Andrew A. Ajayi v. Military Administrator, Ondo State & 2 Ors. (1997) 5 NWLR Pt. 504 Pg. 237 at 271.
Betty A. Umegbulem argued that it is not the duty of the Court to interpret words of the Statute lormoniously so that the various parts of the Statute are not brought in conflict to their natural meaning. He submitted that it is not also the duty of the Court to rewrite the Statute but to give effect to their intention as may be deduced from the language used in the Statute and referred the Court to cases of:
Unilife Development Co. Ltd. v. Mr. Kola Adeshigbin & 4 Ors. (2001)5 NSCQR Pg. 406 at 423;
Independent National Electoral Commission v. Alh. Balarabe Musa & 4 Ors. (2003) 13 NSCQR Pg. 39 at 118-119.
Counsel further submitted that it is not the duty of the Court to make law but to interpret the law and referred to the case of Mr. Andrew Ajayi v. Military Administrator Ondo State & Ors. (supra) at Page 276.
He maintained that the lower trial Judge erred in law when he relied on Section 6(1) ITF Act and gave judgment in favour of the Respondents and stated that the activities of the Appellant shows that the Appellant engages in commerce and pays salaries or remuneration to employees.
Betty A. Umegbulem submitted that the purchase referred in Section 4(2)(d) of the FCT Act Cap 128 Laws of the Federation, 1990 (now L6, 2006) is not the purchase intended in the ITF Act which is the buying and selling of goods. He referred the Court to the concluding words used in that Section.
Counsel further submitted that the principal function of the Appellant is clearly stated in Section 4(c) of the FCT Act and that the aim of the other Sections is to enable the performance of the main function of the Appellant which is contained in Section 4(a) of the FCT Act.
He maintained that the learned trial Judge erred in law when he held that the Appellant is liable to contribute to the Respondents’ Fund in view of the fact that word ‘purchase’ is mentioned in Section 4(2)(d) of the FCT Act without minding Section 15 of the ITF Act.
Counsel contended that the learned trial Judge misdirected himself by reading Section 6 ITF Act Cap 182 Laws of the Federation, 1990 and held that the Appellants are liable to contribute to the ITF fund without having regard to the meaning of Commerce and Industry as argued by the Appellant’s Counsel in the lower Court and he urged the Court to so hold.
Betty A. Umegbulem argued that in view of Section 15 ITF Act, the Appellant is not one of the bodies contemplated by the said Section 15 ITF Act.
Counsel to the Appellant referred the Court to the Black’s Law Dictionary 7th Edition at Page 779 on the definition of Industry and at Page 269 on the definition of Commerce.
He submitted that in view of the definitions of Industry and Commerce and Section 4 of the FCT Act, the Appellant does not fall within the category or purview of the bodies to contribute to the Respondents’ Fund as the Appellant does not have any transaction with any State of the Federation at all.
Counsel further submitted that the Appellant does not engage in the act of buying and selling nor does it engage in any manufacturing or production of anything and that by the FCT Act, its primary function is to choose the site for the location of the Capital Territory as well as the management of land administration within the Federal Capital Territory.
Betty A. Umegbulem maintained that the purpose of the Federal Capital Development Authority is not to make profit but to maintain a very suitable capital city for the Nation. He submitted that the word of the Statute is very clear and it should not be interpreted otherwise and referred the Court to the cases of:
Hon. Justice G.M. Naburuma & 5 Ors v. Hon. Chudi Offodile (2004) 13 NWLR Pt. 891 Pg. 599 at 623;
Hon. Kola Adeyemi & 1 Or. v. Muyiwa Emmanuel Abegunde & 5 Ors. (2004) 15 NWLR Pt. 895 Page 1 at 29.
In his response, Counsel to the Respondents, Kehinde Olorunda submitted that by the provisions of Sections 6(1) & (2) and 15 ITF Act, every employer of labour that engages either in Industry or Commerce and has 25 or more employees in its establishment shall be liable to pay 1% of its annual gross payroll to the Respondents as statutory levy.
Counsel posed the question: “who is an employer envisaged by the above provisions?”
He referred the Court to Section 15 ITF Act on the definition of an employer and submitted that there is no exemption to Section 6 ITF Act.
Counsel further submitted that the fact that the Appellant is a constituted authority with power to sue and be sued under the Federal Capital Territory Act does not exempt it from contributing to the Fund.
Kehinde Olorunda maintained that it is trite law that the meaning to be ascribed to an expression must of necessity be restricted to the meaning given to it by the Statute containing the expression. He argued that the meaning cannot and should not be conditioned in the face of specialized statutorily provided definition and referred the Court to Utih v. Onoyivwe (1991) 1 NWLR Pt. 166 page 238.
Counsel submitted that where words of a Statute are plain, clear and unambiguous, it is not necessary to read anything into them other than to apply their ordinary meaning.
He maintained that rules of construction dictate that all related provisions of a Statute as well as the Statute as a whole must be read together and referred the Court to the case of Ibrahim v. Mohammed (2003) FWLR Pt. 156 Page 902 at 923.
Counsel for the Respondents further submitted that where the words of a Statute, Will and all written instruments are clear, the Court in constructing them should not interpolate into them or look onto extraneous matters. He referred the Court to Osu v. Peugeot Automobile Nigeria Ltd. (2002) FWLR Pt. 122 Page 124 at 137.
He argued that the Appellant has neither denied that it has 25 or more employees in its Service to which it pays salaries or wages nor that it has the power to enter into contract or partnership and to purchase or take over assets, properties, businesses etc. Counsel referred the Court to Sections 4(2)(d),(e) and 5 FCT Act which deals with the appointment, employment of staff as well as payment of remuneration and benefits.
Kehinde Olorunda submitted that facts, which are not controverted, are deemed admitted and he referred the Court to the Supreme Court decision in Agbaneyo v. Union Bank of Nig. Ltd. (2000) 7 NWLR Pt. 666 Page 534 at 549, 556 and 559.
Counsel referred the Court to Sections 1(a) and 6 of the ITF Act on the objective for which the Respondents were set up, He maintained that from the above Sections, it is crystal clear that the two (2) persons envisaged to contribute to the Respondents’ Fund are the Federal Government and an Employer of Labour.
He referred the Court to page 525 of the Black’s Law Dictionary, 6th Edition on the definition of an Employer. Counsel for the Respondents maintained that by the strict principle of interpretation, where an interpretation will result in defeating the object of a Statute, the Court will not lend its weight on such interpretation, He submitted that the language of the Statute must not be stretched to defeat the aim of the Statute and referred the Court to the cases of:
Ejuetami v. Olaiya (2003) FWLR Pt. 88 Page 955 at 974;
Onjewu v. KSMC & Anor (2003) FWLR Pt. 188 Page 1590 at 1622.
Kehinde Olorunda further submitted that the combined effect of Sections 1, 2, 6 and 15 ITF Act is that any person liable to contribute to the Respondents’ Fund must be an employer of Labour who is either engaged in Industry or Commerce.
He argued that the resolution of this issue for determination revolves around the interpretation of the words “Employer”, “Industry” and “Commerce”.
Counsel urged the Court to have recourse to the Black’s Law Dictionary, 6th Edition on the acceptable meaning of “Commerce” and “Industry” and referred the Court to pages 269, 270 and 776 of the Black’s Law Dictionary.
Kehinde Olorunda maintained that to determine whether the Federal Capital Development Authority conducts business as a means of livelihood or make profit in its business, it is relevant to turn to Section 4(1)&(2) of the FCT Act particularly Section 4(1)(b),(c),(d) and 4(2)(b),(c), (d) and (e) of the Act.
Counsel submitted that all the services and functions of the Appellant enumerated in Sections 4(1) and (2) of its Act are for fees and not probono.
He further submitted that in the con in which the words “Industry” and “Commerce” are defined in the Black’s Law Dictionary, no doubt the activities of the Appellant falls within the category of employers of Labour envisaged by the Respondents’ enabling Law.
In order to ascertain whether the Federal Capital Development Authority is in the category of employers of labour that is required to contribute to the Industrial Training Fund. An examination of the provisions of the Industrial Training Fund Act and the Act establishing the Federal Capital Development Authority will be a starting point.
On who is eligible to contribute to the Fund, the Industrial Training Fund Act Cap 182 Laws of the Federation of Nigeria 1990, provides as follows:-
“Section 6(1) Every employer having twenty-five or more employees in his establishment, shall in respect of each calendar year and or the prescribed date contribute to the Fund one per centum of the amount of his annual payroll.”
An employer is defined under Section 15 of the Act thus:
“Employer” – means any person engaged in industry or commerce with whom an employee entered into a Contract of Service or apprenticeship and who is responsible for the payment of wages or remuneration to the employee.”
Since the Industrial Training Fund Act defines an employer as a person engaged in Industry or Commerce, there is also the need to ascertain what Industry and Commerce mean for the purpose of knowing if the Appellant is liable under the law.
In the Interpretation of Statutes, the Courts are enjoined to give words their natural and ordinary meaning. The meaning of the words Industry and Commerce can be deduced from English Dictionary.
Oxford Advanced learner’s Dictionary 6th Edition at page 611 defines INDUSTRY to mean:
“(1) The production of goods from raw materials especially in factories.
(2) The people and activities involved in producing a particular thing or in providing a particular thing or in providing a particular service; the steel industry, the catering/tourist Industry.”
The word COMMERCE is also defined on page 223 to mean-
“trade, especially between countries, the buying and selling of goods and services.”
Black’s law Dictionary Eight Edition defines on page 791 INDUSTRY to mean:
“Systematic labour for some useful, purpose; word in manufacturing or production.”
and COMMERCE at page 285 to mean-
“The exchange of goods and services, on a large scale involving transportation between cities, states and nations.”
It follows from these definitions that to be liable to contribute to the Industrial Training Fund, the employer must either be engaged in the production of goods from raw materials especially in factories or providing a particular service such as catering/tourist industry or must be engaged in buying and selling of goods and services on a large scale involving transportation between cities, states and nations.
It will be necessary at this point to also examine the provisions of the Act establishing the Federal Capital Development Authority to discover whether it is an employer engaged in industry or commerce, which activity would make it liable to contribute into the Industrial Training Fund.
The functions and powers of the Federal Capital Development Authority is contained in Section 4 of the Federal Capital Territory Act Cap 128 Laws of the Federation of Nigeria, 1990 as follows:-
“4. Functions and Powers of the Authority:
(1) Subject to and in accordance with this Act, the Authority the authority shall be charged with the responsibility for-
(a) the choice of site for the location of the Capital city within the Capital Territory;
(b) the preparation of a master-plan for the Capital city and of land use with respect to town and country planning within the rest of the Capital Territory;
(c) the provision of municipal services within the Federal Capitol Territory;
(d) the establishment of infrastructural services in accordance with the master-plan referred to above; and
(e) the co-ordination of the activities of all ministries, departments and agencies of the Government of the Federation within the Federal Capital Territory.
(2) Subject to other provisions of this Act, the Authority shall have power to do anything which in its opinion is calculated to facilitate the carrying on of its activities, including, without prejudice to the generality of the foregoing, power-
(a) to sue and be used in its corporate name;
(b) to hold and manage movable and immovable property;
(c) to construct and maintain such roads, railways, siding, tramways, bridges, reservoirs, water courses, buildings, plant and machinery and such other works as may be necessary for, or conducive to, the discharge of its functions under this Act;
(d) to purchase or otherwise acquire or take over any assets, business, property, privilege, contract, right, obligation and liability of any person or body (whether corporate or unincorporated) in furtherance of its activities;
(e) to enter into contracts or partnerships with any person or body (whether corporate or unincorporated) which in the opinion of the Authority will facilitate the discharge of its functions under this Act;
(f) to train managerial and technical staff for the purpose of the discharge of functions conferred on it by or pursuant to this Act;
(g) to undertake such research as may be necessary for the performance of its functions under this Act;
(h) to exercise such other powers as are necessary or expedient for giving full effect to the provisions of this Act.
(3) Except with the general or special approval of the President and as otherwise prescribed by this Act, the Authority shall not have power to borrow money or to dispose of any property.”
It is a cardinal principle of interpretation of Statutes that where the words in a Statute are clear and unambiguous, they should be construed as they are and given their ordinary plain meaning. See:
Jammal Steel Structures Ltd. v. ACB Ltd. (1973) 1 All NLR (Pt. 2) page 208; Festus I. Adesanya & Ors v. Prince F.G. Adewale & 1 Or (2000) 2 SCNQR page 834 at 889;
Mr. Andrew A. Ajayi v. The Military Administration Ondo State & 2 Ors (supra) at 277.
It is crystal clear from the wordings of Section 4(1) and (2) FCT Act that the Federal Capital Development Authority is not a factory or an establishment engaged in production of goods or engaged in Commerce and therefore not one of the employers described under the Industrial Training Fund Act liable to contribute to the Fund.
It is not the duty of the Court to rewrite the Statute, but to give effect to the intention of the lawmakers as may be deduced from the language used in the Statute. See:
Unitate Development Co. Ltd. v. Kola Adeshigbin & 4 Ors. (2001) 5 NSCQR page 406 at 423;
Independent National Electoral Commission v. Alhaji Abdulkadir Balarabe Musa 4 Ors. (2003) 13 NSCQR page 39 at 118-119.
The trial Court was in error when it ignored the clear wordings of the Industrial Training Fund Act which requires only employees engaged in manufacturing or Commerce to contribute to its Fund and included a Federal Government parastatal whose primary duty is to choose the site for location of the Capital Territory and the management of land administration as well as providing and maintaining necessary infrastructure such as roads, bridges, reservoirs, water courses and buildings within the Federal Capital Territory and which does not engage in the production of goods or in Commerce as one of those employers of labour required to contribute to the industrial Training Fund.
This first issue is resolved in favour of the Appellant.
Issue 2
“Whether the trial Judge rightly interpreted the provision of S.12 of the Industrial Training Fund (I.T.F.) Act Cap 182 Laws of the Federation 1990 to confer obligation on to the Appellant who is an employer of labour to refer to the Minister any question of fact arising as to the liability under the I.T.F. Act?”
Betty A, Umegbulem, Counsel for the Appellant referred the Court to the provisions of Section 12 ITF Act and maintained that it is a settled principle of law that where a Statute used the word “SHALL” as it applies in this case, it means obligation/mandatory. He submitted that it is a command to do or not to do a particular thing and that it is not discretional. Counsel referred the Court to the cases of:
Cyriacus Ogidi & 3 Ors. v. State (2005) 21 NSCQR Pg. 302 at 334; Mr. Andrew Ajayi v. Military Administrator Ondo State & Ors. (supra) at Page 271.
Counsel contended that the Respondent has not complied with the provisions of Section 12 ITF Act which is the obligation to refer this issue to the Minister.
He submitted that the provisions of S, 12 ITF Act cannot be interpreted to confer the duty of referring the matter to the Minister on the Appellant as argued by the Appellant’s Counsel at the lower Court.
Betty A. Umegbulem further submitted that unless the Respondents comply with Section 12 ITF Act, the Court lacks the jurisdiction and the competence to entertain and pronounce upon the matter.
Counsel argued that Section 12 ITF Act is a condition precedent which must be complied with because it goes to the root of the case of what will make the institution of such action in Court valid and would enable the Court to exercise jurisdiction so conferred on it. He referred the Court to the cases of:
Madukolu v. Nkemdilim (1962) 2 SCNLR 341;
Hamza Lawal & 1 Or. v. Kafaru Oke & 4 Ors. (2002) FWLR Pt. 114 Page 582 at 612-613.
Betty A. Umegbulem further submitted that it is trite law that where a Statute provides for a resort to an administrative remedy, the Court cannot competently adjudicate upon it until the administrative remedy has been exhausted.
In his response, Counsel to the Respondents Kehinde Olorunda submitted that with respect to the issue of Section 12 ITF Act and the interpretation given by the learned trial Judge, the Appellant has misconstrued what the demand of the Section ought to be.
He maintained that the issue in Section 12 ITF Act presupposes that there must have been issues of fact relating to the Section on ground to which the Minister ought to intervene or shall be determined by the Minister.
Counsel submitted that the fact that such facts are not in existence, there is just nothing for the Minister to determine and thus the provisions of Section 12 ITF Act could not be treated in this case as a condition precedent.
He further submitted that the cases cited by the Appellant are not relevant or helpful to its case as Section 12 is not a pre-action notice.
He further submitted that the issue of S.12 ITF Act as raised by the Appellant is basically issue of facts; facts as to whether the Respondent at the lower Court complied with the provisions of the above Section. Counsel argued that this fact was not raised at the Court below either by way of Counter-affidavit or pleading and as such no such evidence can be led on this fact at this point and he referred the Court to the case of Ogunbadejo v. Adebowale (2008) All NWLR Pt. 405 Page 1707 at 1711.
Kehinde Olorunda maintained that the Appellant failed to plead the issue of non-compliance by way of affidavit evidence or otherwise thereby letting the Respondents to believe that the issue of non-compliance has been waived (if at all it exists), been an irregularity. He referred the Court to the cases of:
Nonye v. Anyiebe (2005) All FWLR Pt. 253 Page 605 at 614;
Katsina Local Authority v. Makudawa (1971)1 NWLR 100.
Counsel for the Respondents further submitted that the issue of noncompliance with Section 12 ITF Act even as a condition precedent is a matter of irregularity, an issue of fact which ought to be raised by the Appellant at the lower Court being an evidence dependent on issue of jurisdiction which could be waived and has been waived by the Appellant. He referred the Court to the case of Owoseni v. Faloye (2005) All FWLR Pt. 284 Page 220.
The objective of any interpretation is to discover the intention of the Law maker which can be deduced from the language used. It is the duty of the Court to interpret and give adequate and as close as possible accurate ordinary meaning to the words used.
The meaning of a Statute must be deduced from the plain and unambiguous expression used in the provision rather than from any notion which may be entertained as to what is just and expedient.
In the exercise of its interpretive jurisdiction the Court should always be alert and mindful to avoid situations that will cause it to venture into re-writing the law as a result of which the intention of the legislature is lost or thrown overboard. See: Buhari v. Obasanjo (2005) 2 NWLR Pt. 910 page 241; Okotie-Eboh v. Manager (2004)18 NWLR Pt. 905 page 242; Awuse v. Odili (2003)14 NWLR Pt. 841 page 446; Adisa v. Oyinwola (2000) 10 NWLR Pt. 674 page 116.
In the interpretation of a Statute, the constructions which must be agreeable to justice and reason must be adopted and those constructions which are unreasonable or artificial or anomalous are to be avoided.
Thus where two possible constructions present themselves, the more reasonable one is to be chosen. See:
Alhaji Kashim Ibrahim & Ors v. Senator Ali Modu Sheriff & Ors (2004)14 NWLR Pt. 892 page 43 at 65-66; Egolum v. Obasanjo (1999)7 NWLR Pt. 611 page 355.
A recognized and acceptable canon of interpretation of Statutes is that Statutes which purport to deprive citizens of their proprietary interests as well as acquire rights, are always interpreted strictly by the Courts, See:
Bello v. Diocesan Synod of Lagos & Ors. (1973) 3 SC103 at 130;
Golden Vicstor Nangibo v. Uche Okafor & Ors. 14 NSCQR pt, 11 page 1194 at 1215.
In determining the meaning of a Statute, the Courts are enjoined to avoid unreasonable, artificial or anomalous construction. In determining either the general object of the Legislature or the meaning of its language in any particular Statute, the intention which appears to be most in accord with convenience, reason, justice and legal principles should be presumed to be the correct one, in all cases where there is doubt.
It follows therefore that only construction of Statute most agreeable to justice and reason must be adopted.
In the present case, I am of the opinion that the said Section 12 of the Act does not confer any duty on the Appellant as an employer to refer the question as to its liability or otherwise to pay contribution to the Fund to the Minister for determination.
In the case of National Inland Water Ways Authority v. The Governing Council of the Industrial Training Fund & anor. CA/A/257/05 Unreported delivered on 31st day of July, 2007 it was held:
“With a literal interpretation of Section 12 of the I.T.F. Act, the duty cannot be on the Defendant as an employer to make the reference to the Minister as to his liability to pay contributions under the Act; doing so would be like a suspect without a charge, trying to prove his innocence! It cannot be said therefore that the Appellant waived his right to complain not having referred his liability or otherwise to the Minister as argued by the learned Respondent’s Counsel.”
I am of the opinion that it is the duty of the Respondent, the Industrial Training Fund Board or its Management to refer any question of fact that arises as to the liability of an employer to pay contributions under the Act for the determination of the Minister.
The issue of jurisdiction is fundamental to adjudication. It is only when a Court has jurisdiction that it can assert or exercise its authority to decide matters presented it for adjudication. A defect in competence of a Court is fatal to the adjudication process and renders the entire proceeding and findings invalid, a nullity, null and void ab initio however brilliantly the trial must have been conducted and concluded. See:
Eposoge v. S.B.N. Plc. (2009) kl 5 NWLR Pt. 1134 page 302 at 319;
Saleh v. Monguno (2006)15 NWLR pt. 1001 page 26:
Oke v. Oke (2006) 17 NWLR Pt. 1008 page 244;
Ofia v. Ejem (2006) 11 NWLR Pt. 992 page 652;
Mobile Production Co. (Nig) Ltd. v. L.A.S.E.P.A. (2002) 18 NWLR Pt. 798 page 1.
A Court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled.
A Court is said to be competent to adjudicate over a matter when it has the following attributes:
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is intrinsic to the adjudication. See Alhaji Baba Bakin Salati v. Alhaji Talli Shehu (l986) 1 SC 332 at 374; Skenconsult (Nig.) Ltd. & Anor v. Godwin Sekondy Ukey (198)1 SC6 at 26; Madukolu and Others v. Nkemdilim (1962)1 All NLR 587 at 594;
I have carefully perused the entire judgment of the lower Court contained on pages 61-64 of the Record of Appeal and I am unable to see anywhere the lower Court mentioned Section 12 of the Industrial Training Fund Act let alone interpreted the Section,
This issue seeking for the determination whether the trial Judge rightly interpreted the provision of Section 12 of the Industrial Training Fund (I.T.F.) Act Cap 182 Laws of the Federation 1990, was never determined by the lower court.
Generally, it is the practice of this Court not to allow an Appellant to raise on Appeal issues or question which were not raised nor tried nor considered nor pronounced upon by the lower Court. See: Osho v. Ape (1998)8 NWLR Pt. 562 page 492;
Shehu v. Afere (1998) 7 NWLR Pt. 556 page 115;
Okolo v. Union Bank of Nigeria Ltd. (1998)2 NWLR Pt. 539 page 618:
Osinupebi v. Saibu (1982) 1 SC 104;
Anla v. Ayanbola (1977)4 SC63.
In Lawrence A. Oredoyin & Ors v. Chief Akala Arowolo & Ors (1989) 4 NWLR Pt. 114, 172 at 211 Oputa JSC said:
“An appeal is not the inception of a new case. No, far from that. An appeal is generally regarded as a continuation of the original suit rather than an inception of a new action. That being so, an appeal should normally and generally be confined to consideration of the record, which came from the Court below with no new testimony taken or new issues raised in the appellate Court. This is the broad view of an appeal. An appeal to the court of Appeal should be a complaint against the decision o/the trial Court.”
Any issue arising for determination in an Appeal must be traced and linked to the judgment of the trial Court. See Xtondos Services Nigeria Ltd. & Anor. v. Tatsei (W.A.) Ltd. & Anor, 26 NSCQA Part 111 page 1185 at 1199.
The jurisdiction of an Appellate Court is essentially confined to the correction of errors of the Court from which the Appeal emanates. It can only do so naturally where the points argued before it consist of allegations of errors made by that Court and not on matters not canvassed before it, nor on matters not properly based on the issues distilled from the grounds of Appeal. See: Bankole v. Pelu (1991)6 NWLR Pt. 211 page 523 at 547; Kuti v. Balogun (1978)1 LRN353 at 357; Societe Generale Bank (Nig.) Ltd. v. John Adebayo Adewumi, 14 NSCQA 119 at 136.
The consequences of arguing an issue on Appeal upon which no determination of such issue was made by the trial Court or where the issue cannot be traced or linked to the judgment of the trial Court is for the Appellate Court to discountenance such issue and where no leave is obtained to argue it, such issue should be struck out as being incompetent.
However, where there arises a question involving substantial point of law, substantive or procedural and it is the legal consequences of proved facts and it is plain that no further evidence could have been adduced which would affect the decision on it; the Court of Appeal may allow such question to be raised and the point taken, so as to prevent an obvious miscarriage of justice. See: Adewole v. Adesanoye (1998)3 NWLR Pt. 54 page 175; Attorney-General Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR Pt. 92 page 1; Ejiojodumi v. Okonkwo (1978)11 SC 74.
In Abubakar v. Manlu (1998)10 NWLR Pt. 568 page 41, the new point that the Applicant wished to raise was rooted in the provision of the legal Practitioners Act, 1990. It provided in summary that a legal practitioner shall not be entitled to begin an action to recover his charges unless the bill for the charges containing particulars of the principal items included in the bill and signed by him has been served on the client. This Court held that the compliance with the Act was a condition precedent to be satisfied before a legal practitioner could be entitled to recover his charges by action in Court and that if the Respondent had not complied as the allegation showed, his suit ought to have been struck out in the lower Court and that this kind of objection is substantive and that the evidence needed in support of it was before the Court.
Also in Ayinla v. Fagbemi (1964) LLR 119 during the hearing of an Appeal, the point was taken for the first time that the requisite statutory notices had not been properly served. The point was allowed since it affects the mandatory provisions of an Ordinance. See Amos Brothers & Co. Ltd. v. British West African Corporation Ltd. 14 WACA 220 at 222.
In the present case, I have observed that on page 55 of the record of Appeal in the proceedings of 14/6/05 learned Counsel for the Respondent Miss Betty A. Umegbulem after opposing the Originating Summons, the Court recorded thus:
“Counsel submitted that by Section 12 of ITF Act, the Respondent has not been informed that Minister of Commerce has complied with some. That Exhibit ITF 1 annexed to originating summons paragraph 2 shows that the Respondent has not registered with Applicant, no documentation before it will be eligible to contribute if any and cites MR JIMOH BODE BABALOLA v. OSHOCIBO LOCAL GOVERNMENT AREA (2003) 10 NWLR Pt. 829 page 456 at 472 ratio 7 Counsel urges Court to dismiss suit in its entirety for lack of merit.
Court. Case adjourned to 22/6/05 for reply on points of law.”
In the lower Court’s proceedings of Wednesday the 22nd day of June 2005, the Court Record reads inter alia as follows:-
“Rotimi Ogunfide Esq. – Plaintiff.
Miss Betty A. Umegbulem – Respondent.
Rotimi Ogunfide Esq. – replying on point of law refer Court to Section 4(2) FCDA Act paragraphs d, e, f and 9 which shows the different commercial activities Defendant is engaged in. That the word purchase in paragraph 4(2)(d) includes buying and selling which makes Court liable to register with Plaintiff.
Other Citations: (2009)LCN/3298(CA)
