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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS Before Their Lordships: Hon. Justice B.B. Kanyip - Presiding Judge Hon. Justice V.N Okobi - Judge Hon. Justice F.I Kola-Olalere - Judge Hon. Justice O.A Obaseki Osaghae - Judge Hon. Justice J.T. Aghadu-Fishim - Judge Date: April 2, 2009 Suit No. NIC/2/2008 BETWEEN National Union of Food, Beverages & Tobacco Employees (NUFBTE) - Judgment-Creditor/Applicant AND 1. Management of Dangote Industries Limited, Pasta Plant, Ebute Ikorodu, Lagos - Judgment-Debtor/Contemnor 2. Alhaji Aliko Dangote 3. Aihaji Sanni Dangote 4. Mr. Idris Au 5. Mr. Ibrahim Abdullahi (All as Privies to the Judgment-Debtor/Contemnor) - Judgment-Debtors/Contemnors REPRESENTATION Sola lji, for the judgment—creditor/applicant. 0. S. Sowernimo, SAN, and with him is Victor Sodipe, for the judgment-debtors/contemnors. RULING On January 28, 2009, this court delivered judgment in this case whereby the court among other things ordered as Follows: The employment of Comrade Paulinus Ufoh, Comrade Benjamin Akor, Comrade Christiana John, Comrade Ogu Santus, Comrade Bassey Apkan, Comrade Tony Ode and Comrade Sogo Omoyemi, all listed in Exhibit C, was terminated as a result of their involvement in union activities hence a nullity. They are entitled to be, and are hereby, re-instated without loss of salaries and other emoluments. The terminal benefits paid to them is to be deducted from what is due to them as salaries/emoluments since their wrongful termination on March 17, 2004. Dissatisfied that the judgment of this court was not implemented by the1st judgment-debtor, the judgment-creditor filed a motion on notice for an order of committal against the 2nd, 3rd, 4th and 5th judgment-debtors who the judgment-creditor simply described as the President, the Vice President, Head Admin and Group Head, HR & Administration. The motion is “brought pursuant to Order 29 r. 1 & 2 of the National industrial Court Act, 2007 and under the inherent jurisdiction of this Honourable Court”. The ground for the application is that the named officers of the judgment are in contempt of this court by their disobedience of the orders of this court as contained in the judgment delivered by this court on January, 2009. In support of the motion is a 12-paragraphed affidavit deposed to by Comrade Edward Ifie, the Assistant General Secretary of the judgment-creditor with 5 exhibits attached. In defence to the motion, the judgment-debtor filed a counter-affidavit wherein it was deposed that leave has been granted the judgment debtor by the Lagos High Court sitting at Ikeja that the judgment-debtor can apply for judicial review of the said judgment of this court; and further still, that all proceedings in this suit are thereby stayed as per Order 40 Rule 3 of the Lagos High Court Civil Procedure Rules 2004. A photocopy of the order of the Lagos High Court was attached to the affidavit. When the motion for contempt came tip for hearing, learned SAN, counsel to the judgment-debtor, notified the court of the Lagos High Court order staying proceedings in this matter. The court thereupon asked parties to address it on the issue whether the National Industrial Court (NIC) is bound by an order of stay by the Lagos High Court in the instant case. Learned SAN commenced his argument by observing that since the delivery of the judgment of this court on January 28, 2009, the judgment debtor approached the Lagos High Court for judicial review of the said decision. That in granting leave to apply for judicial review, the Lagos High Court did order that the leave shall operate as a stay of proceedings in this suit pending the application for judicial review to be filed timeously. That the application for judicial review has been filed and served on the judgment creditor. To the learned SAN, their application to the Lagos High Court is informed by the provision of section 6(4)(a) of the 1999 Constitution. That this court is a creation of the National Assembly; its jurisdiction is, therefore, subordinate to that of the High Court, referring to section 1 of the 1999 Constitution. That the provisions of section 6(4)(a) are very clear and so admit of no controversy. The learned SAN then referred the court to the opening words of section 9 of the NIC Act 2006. The learned SAN concluded his submissions by contending that in considering the issue of stay, the court should consider the question of the destruction of the res as this is what informed the grant of the order for stay. Learned Counsel to the judgment creditor opposed the order for stay and submitted that this court has the competence to entertain this matter, referring to section 1 of the NIC Act 2006. That this court is not inferior to the Lagos High Court and so its decision cannot be subject to judicial review, referring to section 6(5) of the 1999 Constitution. That the stay being advocated will amount to the High Court taking away the powers of this court to carry out its functions as a superior court of record under the 1999 Constitution. To the learned counsel, the National Industrial Court is not subordinate to the Lagos High Court. That by the combined effect of section 1(3)(a) and (b) of the NIC Act 2006 as well as section 6(5)(j) of the 1999 Constitution, contrary to what the judgment-debtor wants this court to believe, this court is not bound by the Lagos High Court order. The learned counsel then referred the court to section 315 of the 1999 Constitution and submitted that by this provision even the Trade Disputes Act 1990 is an existing Act. Learned counsel then submitted that this court should discountenance the order of stay of the Lagos High Court. That if the order of stay is accepted by this court, a lot of injustice will be done in this matter. That orders of court are meant to be obeyed. That the motion of the judgment—creditor in the instant case is to ensure that the judgment of this court is obeyed. Reacting on points of law, the learned SAN simply reiterated that the NIC may be a superior court of record but its jurisdiction is subordinate to that of the High Court. That in appropriate circumstances, even a court of coordinate jurisdiction can grant a stay when the res is threatened. This court pointed out to the judgment-debtor that its argument is hinged on the inferiority of this court to the High Court; but that assuming this court were of coordinate status to the High Court, can the high Court order a stay on its adjudicative functions? In other words, can courts of coordinate jurisdiction order stay of proceedings on one another? To this question, the court was given no answer. A second question was posed: given the provisions of section 25l(l)(p), (q) and (r) of the 1999 Constitution and the fact that the National Industrial Court is a federal institution, why is the application for judicial review filed at the Lagos 1-ugh Court and not the Federal High Court? All the learned SAN could say was that the application for judicial review has nothing to do with this court but only concerns the parties involved in the action. The court, however, pointed out that the effect of the stay is on the court as an institution and the review relates to what the court did as an institution. As indicated earlier, the argument of the judgment-debtor as to the applicability of the stay order by the Lagos High Court against the proceedings in the instant case is hinged on the inferiority of this court relative to the Lagos High Court. The question is whether this is actually so. The learned SAN tried to divorce the question of status from that of jurisdiction by contending that a court may be a superior court of record but its jurisdiction may be subordinate to that of the 1-ugh Court. In our considered opinion, the learned SAN got it wrong here. It is the question of status that determines whether or not one court can review the judgment of the other via the prerogative writs. It is in this sense that courts are divided into superior and inferior courts of record. Administrative law teaches that judicial review applies only against courts of inferior record alongside other administrative acts of government institutions. To the learned author, Richard Gordon QC — Judicial Review: Law & Procedure (Sweet Maxwell: London), 1996 at p. 1, “judicial review is the means by which the High Court exercises a supervisory jurisdiction over inferior courts, tribunals or public bodies”. The question of limitation of jurisdiction wherein courts are given distinct spheres of jurisdiction has nothing to do with the prerogative writs. The only form of review permitted here is the appellate review whereby one superior court of record is granted the jurisdiction to hear appeals over the decisions of another superior court of record. In this instance, the appeal is not a review in the sense of the prerogative writs. The point must, therefore, be noted that it is status that determines whether one court can judicially review the decision of another court and hence order a stay of its adjudicative functions. To the learned author of Judicial Review: Law & Procedure at p. 88, “it is well established that judicial review does not lie against any superior court”, citing Re: Racal Communications [AC 374. And to Clive Lewis —Judicial Remedies in Public Law (Sweet & Maxwell: London), 2000 at p. 468 paragraph 14-098, the decisions of superior courts “cannot he quashed by judicial review. They may be set aside on appeal if rights of appeal are provided, but the appeal will be correcting an erroneous exercise of their inherent jurisdiction, not quashing an act done without jurisdiction”. A number of Nigerian authorities support these assertions. For instance in Adekanye v. FRN [2005] 15 NWLR (Pt. 949) 433 at 466, His Lordship Salami, JCA held that orders of certiorari and prohibitions are issued in the exercise of supervisory jurisdiction of superior courts over inferior tribunals, against administrative tribunals, against local authorities and other statutory bodies. His Lordship continued that iii consequence, orders of certiorari and prohibition cannot be issued in respect of proceedings before the Federal High Court. His Lordship then added that in that instant case, if the Federal High Court had stayed proceedings it would have meant that the Federal high Court had ceased to be a superior court of record and had submitted itself to the supervisory jurisdiction of the High Court of Lagos, a court of coordinate jurisdiction. To His Lordship, orders of certiorari and prohibition are invariably issued in the exercise of supervisory jurisdiction of superior courts over inferior tribunals. By Ezenwa v. Bestway Elect. Mft. Co. Ltd [1999] 8 NWLR (Pt. 613) 61, the main object of the prerogative writ or order of certiorari is to check the excesses and arbitrary decisions of inferior courts or tribunals by the superior court vested with supervisory jurisdiction. The inferior tribunals are compelled to bring along their records of proceedings to the superior court for correction and for quashing in an appropriate case. The cases of CBN v. SAT (Nig.) Ltd [2005] 3 NWLR (Pt. 911)152 at 161 Ratio 11, Onuzuilike v. CSD Anambra State [1992] 3 NWLR (Pt. 232) 791 at 800 Ratios 21 and 23, Unitex Ltd v. Yakubu [1998] 13 NWLR (Pt. 581) 334 at 336 Ratio 1, Johnson v. Lufadeju [2000] 8 NWLR (Pt. 768) 192 at 207 Ratio 19, Fawehinmi v. IGP [2000] 7 NWLR (Pt. 767) 606 at 652 Ratio 19 and Nwaoboshi v. MILAD, Delta State [2003] 11 NWLR (Pt. 831) 305 at 309 Ratio 2 all reiterate the fact that the prerogative writs issue only against inferior courts. In fact, to take the issue a little further, it is trite law, as held in Olutola V. Unilorin [2004] 18 NWLR (Pt. 905) 416 at 436 Ratio 23, that courts that are of similar or concurrent jurisdiction are not bound to follow the decision of each other. Where courts of similar jurisdiction fail to follow the previous decision of the court, the remedy for that situation is for the party aggrieved by it to appeal to a superior court. And in Hydroworks Ltd v. Rimi Local Government [2002] 1 NWLR (Pt. 749) 564 at 572 Ratio 1 it was held that it is not within the jurisdiction of a court to interpret the judgment of a court of coordinate jurisdiction. That the function of interpretation belong to an appellate court. These points made, the question then is: what is the status of the National industrial Court? The learned SAN contended that this court is inferior to the High Court. To be able to answer this question, however, we may need to consider the antecedents and enabling statute of this court and the 1999 Constitution. This court was first established in 1976 by the Trade Disputes Decree No. 7 of that year, which later became Cap. 432 LFN 1990. In 1 992, Decree 47 of that year amended the Trade Disputes Act 1990 and made the court a superior court of record. In 2006, to give the court a separate and distinct enabling statute, the National Assembly passed the National Industrial Court (NIC) Act of that year. Apart from section 1(3) of the NIC Act, which provides that this court “shall be a court of superior record”, and that “except as may be otherwise provided by any enactment or law, [ court shall] have all the powers of a I-ugh Court”, there are other provisions of the NIC Act which reinforce its status. For instance, sections 3, 4 and 5 of the NIC Act dealing with tenure, precedence, and salaries and allowances all equate this court with the High Court in a manner that shows parity of office, parity of work and parity of responsibility between the judges of this court and those of the High Court. In section 9, a limited right of appeal to the Court of Appeal is granted by the NIC Act, a fact judicially sanctioned by the Court of Appeal in Schumberger Anadril Nig. Ltd v. PENGASSAN unreported Suit No. CA/L/38/2008 delivered on February 10, 2009. And in sections 16 — 19, the NIC Act goes on to grant this court the power to grant any of the listed prerogative writs of judicial review. Despite all of this, it is the contention of the learned SAN that this court is still inferior to the High Court given the provisions of sections 1 and 6 of the 1999 Constitution. Courts have been enjoined to apply the Constitution in a holistic manner as to ensure that the intendment of the framers is brought out clearly. It is in this sense that the Court of Appeal, since the coming into effect of the 1999 Constitution, has had cause to pronounce on the status of this court. The three cases of Kalango v. Dokubo [2003]15 WRN 32, Attorney-General of 0yo State v. Nigeria Labour Congress, Oyo State Chapter [2003] 8 NWLR I and Ekong v. Oside [2004] All FWLR 562 are evident here. In Kalango V. Dokubo, supra, at p. 77, for instance, the Court of Appeal said that though the NIC is “not one of those specified in section 6(5)(a)-(i) of the 1999 Constitution as the only superior courts of record, [ is, nevertheless, not an inferior court”. That it became a superior court of record by virtue of an amendment to section 19 of the Trade Disputes Act by Decree 47 of 1992. In AG, Oyo State v. NLC, supra, at p. 29, the Court of Appeal held that the NIC “had the status of a superior court of record”. To Ekong v. Oside, supra, at p. 572, the court held that “it is difficult.. . to read unconstitutionality in the statutes that created the [ Industrial Court]....” All of these cases were decided after the 1999 Constitution was passed although before the NIC Act 2006 was passed. Decree 47 of 1992, which granted this court the status of a superior court of record was an existing law under section 315 of the 1999 Constitution, when the NIC Act was considered for passage by the National Assembly. So reproducing the provision as to status in the NIC Act 2006 was merely restating the obvious. And in doing this, the National Assembly simply reiterated their intention that this court, being a superior court of record, should r so, on the authority of section 315 of the 1999 Constitution, which grants the National Assembly power to modify or even repeal existing laws to make them conform to the Constitution. In any event, the combined effect of sections 315 and 316 of the 1999 Constitution, lends credence to the fact that this court is a superior court of record. Section 3 16(1) provides that — Any ... court of law ... which immediately before the date when this section comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the ... court of law ... was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder. The implication of this is that the status of this court could not and did not revert from the status of a superior court of record, which it had before May 1999. The point to note here is that since section 3 16(1) of the 1999 Constitution preserves “existing offices, courts and authorities”, and deems them to have been established under the 1999 Constitution, this court must be deemed to be a creation of the 1999 Constitution, more so when in 1976 when it was created, the 1963 Constitution was amended to include it. There is no doubt that under section 6(4) of the 1999 Constitution, the National Assembly has the power to establish any new court so long as it is one with subordinate jurisdiction to that of a High Court. However, in the case of this court, the National Assembly did not establish a new court — the National Industrial Court being an existing court (established since 1976) with constitutional validity under sections 6(5) 315 and 316 of the 1999 Constitution. The combined effect of these provisions means that this court, not being a new court, retains its status as a court of superior record, a status simply reenacted in the NIC Act. In any event, the Rules of this Court permit the Court to review any order made by it and may, on such a review, revoke or vary that order on any of the grounds enumerated. See Order 1 9 Rule 1 8 of the National Industrial Court Rules 2007, which simply reproduced Rule 26 of the repealed 1 97 National Industrial Court Rules. What this means is that the judgment-debtor could simply have applied to this Court for the review of its decision if the conditions set out in Order 19 Rule 18 are met. With the plethora of authorities cited so far, we are not in any doubt that this court is a superior court of record and of coordinate jurisdiction and status with the high Court. The relevant sections of the NIC Act cited earlier are very clear on this. The NIC Act has not been declared to be unconstitutional by any higher court. On the authority of Adekanye v. FRN, supra, therefore, if this court is to stay proceedings in this matter it will mean that this court has ceased to be a superior court of record and so has submitted itself to the supervisory jurisdiction of the High Court of Lagos State, a court of coordinate jurisdiction. There is no gainsaying, therefore, that the Lagos High Court has no power whatsoever under any law to request the National Industrial Court to submit its record of proceedings for inspection, scrutiny or correction. It follows then that it will be incompetent of the Lagos High Court to order a stay of proceedings regarding the cases before this Court. For all the reasons given above, we hereby hold that this court is not bound by the order of stay of proceedings of the High Court of Lagos State. The motion on notice for an order of committal filed by the judgment-creditor shall, therefore, proceed to hearing. Ruling is entered accordingly. Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice F. I. Kola-Olalere Judge Judge Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge