By Ekemini Udim
On the 30th day of June, 2017, the Supreme Court of Nigeria delivered a landmark judgment on the appellate jurisdiction of the Court of Appeal over the decisions of the National Industrial Court which was before now shrouded in steep controversy. Indeed, this judgment laid to rest the confusion among lawyers, which confusion also infected the Court of Appeal on the subject matter as evident in a line of conflicting decisions of that court. This article is intended to bring to the fore, the position of the Supreme Court on this important aspect of Nigeria’s labour and industrial jurisprudence.
On the 22nd day of February, 2012, Victor Anaemem Iwu (the Respondent at the Supreme Court) filed an action at the National Industrial Court sitting in Lagos against the then Afribank Nigeria Plc (now extinct). His claims were, inter alia, wrongful termination of his employment; unpaid accrued salaries and allowances and pension allegedly due to him in the course of his employment with the said bank. Afribank was later taken over by Skye Bank.
Pleadings were filed and exchanged in accordance with the Rules of the National Industrial Court. Thereafter, the Defendant raised a preliminary objection to the jurisdiction of the trial court to hear the matter. The objection was dismissed by the court, per Obaseki-Osaghae, J.
Aggrieved by the ruling, the bank filed an appeal at the Court of Appeal sitting in Lagos. Subsequently, the bank applied to the Court of Appeal for leave to amend its notice of appeal. The Respondent (Victor Iwu) through his learned counsel raised objection to the application to amend the notice of appeal and queried the court’s jurisdiction to entertain the appeal in the first place.
The Court of Appeal ordered that parties should address it by each party filing a written address. The addresses were filed in compliance with the order of court.
The kernel of the Respondent’s objection was that, a party who is aggrieved by a decision of the National Industrial Court cannot appeal the said decision, (whether as of right or with leave) to the Court of Appeal. He argued that the Court of Appeal has no jurisdiction to entertain the appeal and consequently cannot entertain the application to amend the notice of appeal sought to be amended. He cited sections 241(1)(a)-(f), (i)-(v) and (2)(a)-(c); 242(1) and 243(1) of the 1999 Constitution in support of his argument. He therefore expressed the view that the appellate jurisdiction of the Court of Appeal on labour and industrial matters is limited to issues of fundamental rights and criminal matters only.
He submitted that from the provisions of Sections 243(2)-(4) and 254C (6) read side by side with the earlier cited provisions of the 1999 Constitution, the intention of the framers of the Constitution was to make decisions of the National Industrial Court final except those touching on fundamental rights and criminal matters. The Respondent was represented by Fes Eze Eke.
Dr. Charles Mekwunye, learned counsel for the bank also filed his written address in reaction to the Respondent’s objection. The addresses were duly adopted and the Court of Appeal adjourned the matter for ruling. While the ruling was being awaited, counsel for bank approached the Court of Appeal and prayed the court to state a case to the Supreme Court for the apex court’s opinion on the knotty constitutional issue of jurisdiction of the Court of Appeal over decisions of the National Industrial Court. The Court of Appeal found merit in the application and according forwarded the matter to the Supreme Court.
SUMMARY OF THE SUPREME COURT’S DECISION:
In the lead judgment of Nweze, JSC, the Supreme Court held thus in answer to this thorny issue:
‘’I find and hold that, on a harmonious construction of Sections 240, 242(1), 243(1)(a) and 243(4) of the 1999 Constitution, a litigant who is aggrieved by a decision of the trial court [National Industrial Court] in other civil matters, can exercise a right of appeal with the leave of the Court of Appeal. The only innovation in this regard is that it makes the Court of Appeal the final court with respect to such appeal; Section 243(4).’’
(See pages 67-68 of the Certified True Copy of the Judgment. See also: (2017) LPELR-42595 (SC) at page 61.
‘’In all, on a holistic interpretation of Section 240 and 243(1) of the 1999 Constitution, appeal lies from the trial court [National Industrial Court] to the Court of Appeal, that is, all decisions of the trial court are appealable to the Court of Appeal as of right in criminal matters [Section 254C(5) and (6)], and fundamental rights cases, [Section 243(2)];and with the leave of the Court of Appeal, in all other civil matters where the trial court has exercised its jurisdiction, Sections 240 read conjunctively with Section 243(1) and (4)’’
See page 74 of the Certified True Copy of the Judgment. See also: (2017) LPELR-42595 (SC) at page 66.
His Lordship also held:
‘’The answers to the questions posed to this court in this case stated are: (a) the Court of Appeal has the jurisdiction, to the exclusion of any other court in Nigeria, to hear and determine all appeals arising from the decisions of the National Industrial Court; (b) no constitutional provisions expressly divested the said Court of Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the National Industrial Court, and (c)as a corollary, the jurisdiction of the Court of Appeal to hear and determine civil appeals from the decisions of the National Industrial Court is not limited only to fundamental rights matters.’’ See pages 66-67 LPELR (supra)
Per Mary Peter-Odili, JSC: (at page 104 (2017) LPELR-42595 (SC)
‘’[T]he appellate jurisdiction of the Court of Appeal is not foreclosed within matters only related to fundamental rights, rather, the appeals from the National Industrial Court all can go on appeal to the Court of Appeal as of right in the case of fundamental rights but by leave of the appellate Court when the matter is in relation to other circumstances.’’
Per Clara Bata Ogunbiyi, JSC:
‘’I hold the firm view that all decisions of the National Industrial Court are subject to the review of the Court of Appeal.’
Per Akaahs, JSC at pages 156-157 LPELR (supra)
‘’In answer to the questions posed on the case stated, Section 240 read along with Section 243(2) and (5) of the Constitution, appeals lie as of right from decisions of the National Industrial Court exercising criminal jurisdiction and on questions of fundamental rights as contained in Chapter IV of the Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. The Court of Appeal has jurisdiction to hear appeals from the decision of the National Industrial Court in respect of other matters apart from questions of fundamental rights but the exercise of such jurisdiction must be with leave of the Court of Appeal.’’
Per Kudirat Kekere-Ekun, JSC:
‘’[H]aving been granted the status of a superior court and having regard to the hierarchy of courts as exists in our constitutional arrangement, the National Industrial Court must fall in line with other courts of coordinate jurisdiction. There is nothing in Sections 240,241 or 242 of the 1999 Constitution that suggests that decisions of any of the courts referred to in Section 240 shall be final. Section 240 has clearly given a right of appeal from decisions of all the courts subordinate to the Court of Appeal and this includes the National Industrial Court. If that right is to be curtailed in any way, the Constitution must expressly say so. It would be absurd in my view to interpret Section 243(3) of the Constitution as restricting the right of appeal from decisions of the National Industrial Court to questions of fundamental rights alone. To construe the provision to mean that the decisions of the court in any civil proceeding are unappellable would place the court at par with the Supreme Court, which is the only court in the land whose decisions cannot be appealed against irrespective of the subject matter. That cannot be the intention of the Legislature.’’ Pages 176-178 LPELR (Supra).
Per Ejembi Eko, JSC: [at page 205 LPELR (supra)]
‘’My firm view on Sections 240, 243(2) and (3) and 36(2)(b) of the Constitution is that –
From the decision of the National Industrial Court there is a right of appeal to the Court of Appeal;
Appeal is of right to the Court of Appeal from any decision of the National Industrial Court on any question of fundamental rights under Chapter IV of the Constitution;
Appeal, is not as of right, but upon leave of the Court of Appeal, from any decision of the National Industrial Court other than an appeal on any fundamental rights question.’’
FROM THE ABOVE:
From the above extracts of the judgment of the Supreme Court, it is clear that the National Industrial Court is not a final court on labour and industrial matters. Like every other court subordinate to the Court of Appeal in the architecture of judicial hierarchy in Nigeria, the decisions of the National Industrial Court are subject to review by the Court of Appeal.
Therefore, a litigant who is aggrieved by the decision of the National Industrial Court can approach the Court of Appeal and pray the appellate court to review the decision of the trial court. Counsel for the appellant must however note the procedure for embarking on appeal from the decision of the National Industrial Court. Where leave is required, such requirement should not be taken for granted.
PRACTICE NOTES FOR LAWYERS:
Study and understand the case of your client thoroughly.
If the grouse against the decision of the National Industrial Court borders on fundamental rights or a criminal issue, an appeal can be made to the Court of Appeal as of right. You do not need to seek leave of either the trial court or the Court of Appeal. Go ahead and file your notice of appeal.
If the grouse borders on any other civil matter (such as wrongful termination of employment, non-payment of arrears of salaries and allowances, etc), an appeal must be with leave of the Court of Appeal. This should be by motion on notice accompanied by an affidavit. It should be brought pursuant to Section 24(1) of the Court of Appeal Act and Order 7 Rules 5 and 10 of the Court of Appeal Rules. Where leave is required, failure to obtain the leave renders the appeal incompetent and liable to be struck out.
There is no big deal in seeking and obtaining the leave of court to appeal against the decision of the National Industrial Court. Apply for the leave and safe the case of your client.
WHAT IF THE APPEAL HAD ALREADY BEEN FILED WITHOUT LEAVE?
While the above decision of the Supreme Court will meet some lawyers smiling, others will certainly be caught frowning. Those on the frowning side will include lawyers who already filed their cases in the Court of Appeal without obtaining the leave of that court. Recall that if the grouse against the judgment of the National Industrial Court borders on a civil matter (such as wrongful termination of employment, non-payment of arrears of salaries and allowances, etc) as against a complaint which borders on fundamental rights, an appeal must be with leave of the Court of Appeal. The question now is what is the fate of all such appeals filed without leave?
It is the law that where leave is required before the taking of a particular action in law, failure to obtain such leave renders the action incompetent and liable to be struck out. On this we refer to the case of Nigerian Air Force v. Wing Commander Shekete (2002) 18 NWLR (Pt. 798) 129.
By implication, the failure to obtain leave to appeal against the decision of the National Industrial Court on a civil matter renders the appeal incompetent and liable to be struck out. The court can raise this issue suo motu. It can also be raised by counsel on the other side. If it is allowed to go through, the appeal will certainly be dismissed for want of jurisdiction.
A lawyer who finds himself in this precarious situation needs to approach the Court of Appeal as quickly as possible for leave to appeal. It is not too late to do so. In the motion for leave to appeal, the grounds should be well captured to persuade the court to grant the leave. The recent decision of the Supreme Court which mandates litigants to obtain leave in certain circumstances should be mentioned in one of the grounds of appeal.
The affidavit should also make reference to this recent decision. This will, amongst others, show that at the time of the filing of the appeal in issue, there was no such decision of the apex court and the appellant could not have known that there is need for leave to appeal. The paragraphs of the affidavit must be well couched to merit the indulgence of the court. With the recent decision of the apex court (a decision the Court of Appeal also anticipated for proper direction) it is difficult to see how the Court of Appeal will refuse an application seeking leave to appeal against the decision of the National Industrial Court.
This brings us to another issue of law. Where an appeal had already been filed without leave, can the subsequent or later grant of leave cure a hitherto incompetent appeal? What happens to the record of appeal which had already been transmitted to the Court of Appeal in about 25 volumes even when there was no leave to appeal? How about the appeal number that had already been assigned to the ‘incompetent’ appeal? Can all these be retained upon the subsequent grant of leave?
The answers to the above will depend largely on the prayers on the face of the motion paper and most importantly, on the discretion and disposition of the Court of Appeal. A properly crafted motion can save the appeal and save the documents already filed. I can however see a contentious session in the Court of Appeal on the day of the hearing of the motion. Counsel should therefore go prepared.
If the argument to save the documents does not go through, it is advisable to stick to the request for leave to appeal. If only the request for leave to appeal is granted, the appeal is saved. The implication here is that the notice of appeal and the record of appeal already filed in about 25 volumes are gone; they need to be filed afresh. No doubts, a huge sum of money is gone. Inspite of this, what is important is that the appeal is saved.
THE SUPREME COURT WAS ON A RESCUE MISSION:
Going through the entire judgment of the Supreme Court, one can clearly see a Supreme Court that was struggling to save the fate of litigants. I say this with due respect to the court. It was not a straightforward decision for the court. The apex court applied more of equity and good conscience than law. If strict law were to be applied, I dare say, the decision of the court would have been different. The court had to resort to numerous principles of interpretation of statutes and place them side by side with several sections of the 1999 Constitution (sections outside the Third Alteration of the Constitution; the alteration that provide for the NIC), all in a bid to save the day. We commend the Supreme Court for taking this trouble in the overall interest of justice. If the judgment had gone the other way, the implication can better be imagined than described.
If there was any clear and unambiguous provision of the Constitution on the right of appeal from the National Industrial Court to the Court of Appeal (as is the case for the other trial courts in the Constitution), there would not have been any need for the requirement that appeals from the NIC to the Court of Appeal on civil issues should be with leave of the Court of Appeal. In saving the day, the Supreme Court had to go the extra mile and resorted to Section 24(1) and Order 7 of the Court of Appeal Act and Court of Appeal Rules respectively which provide for the right to appeal with leave. These laws are nowhere mentioned in the 1999 Constitution.
It is hoped that Nigeria will, from henceforth, produce intelligent and committed legislators who are intellectually mobile and constantly abreast with modern legislative drafting skills and employ such skills for the betterment of the society. Such skills should be used to expand rather than inhibit or curtail already existing rights of citizens.
I dare say that this controversy was created by inelegant drafting of the relevant sections of the Constitution. Such inelegance created untold hardship for litigants across the length and breadth of the Federation of Nigeria. Many divisions of the Court of Appeal suspended the hearing of appeals emanating from the decisions of the National Industrial Court; they all waited the statement of the Supreme Court especially in view of the confusion that was already setting into the judicial system. Appeals were adjourned in limine and the fate of hundreds of litigants left hanging in the balance.
Now that the apex court has spoken, it is hoped that the appeals which were kept in abeyance at the various divisions of the Court of Appeal will be returned to the courtrooms for speedy hearing and determination.
Ekemini Udim is legal practitioner and Senior Partner of Justice Chambers. He is reachable on: email@example.com
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